Case 2:17-cv-00716 Document 1 Filed 05/08/17 Page 1 of 17

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

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10 NORTHWEST IMMIGRANT RIGHTS
PROJECT (“NWIRP”), a nonprofit Washington 11 public benefit corporation; and YUK MAN
MAGGIE CHENG, an individual, 12
Plaintiffs, 13
v. 14
JEFFERSON B. SESSIONS III, in his official 15 capacity as Attorney General of the United
States; UNITED STATES DEPARTMENT OF 16 JUSTICE; EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; JUAN OSUNA, in 17 his official capacity as Director of the Executive
Office for Immigration Review; and JENNIFER 18 BARNES, in her official capacity as
Disciplinary Counsel for the Executive Office 19 for Immigration Review,

No. 2:17-cv-00716
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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Defendants.

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22

The Northwest Immigrant Rights Project (“NWIRP”) provides free and low-cost legal

23 services to more than 10,000 immigrants each year through its 70 staff members and more than

24 350 volunteer attorneys. NWIRP provides these services to noncitizens in deportation

25 (removal) proceedings before the Executive Office for Immigration Review and to those who

26 are not in such proceedings but seek to apply for immigration benefits from U.S. Citizenship

27 and Immigration Services—benefits that include asylum, family visas, naturalization, visas for

COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF
(Case No. 2:17-cv-00716) – 1
4828-9710-2920v.7 0201148-000002

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716 Document 1 Filed 05/08/17 Page 2 of 17

1 survivors of trafficking and other violent crimes, and Temporary Protected Status. NWIRP

2 offers various different legal services depending on the needs of each client, the type of relief

3 sought, and the resources NWIRP has available. These services range from full representation

4 to brief counseling, and they take place on an individualized basis, in legal clinics, in group

5 assistance events, and at community outreach functions.

6

Over the past several weeks, the Executive Office for Immigration Review, the U.S.

7 Department of Justice, and the individual Defendants (collectively, “EOIR”) have set out to

8 restrict NWIRP’s ability to offer this assistance. Relying on a new and novel interpretation of

9 its 2008 rule governing attorney misconduct, EOIR now insists on a Hobson’s choice: either

10 NWIRP must commit to full legal representation of every immigrant in removal proceedings it

11 presently assists (which is plainly impossible), or NWIRP must refrain from providing them

12 any form of legal assistance—not even a brief consultation. EOIR’s cease-and-desist order to

13 NWIRP will deprive thousands of immigrants—including asylum seekers and unaccompanied

14 children—of the chance to consult with a NWIRP lawyer to evaluate their potential claims for

15 legal residence. EOIR’s interpretation will also deprive otherwise unrepresented immigrants of

16 legal advice they need to understand United States law, and assistance with navigating the

17 immigration court system.

18

EOIR’s new edict purports to control not just the appearance of attorneys in removal

19 proceedings but their communications with clients (and even potential clients) and other limited

20 assistance provided outside of an active EOIR proceeding. The vague and overbroad rule, and

21 EOIR’s application of it to NWIRP, violates (1) the First Amendment, by restricting NWIRP’s

22 rights to free speech, free association, and to petition the government, and (2) the Tenth

23 Amendment, by invading the power reserved to the State of Washington (and other states) to

24 regulate the practice of law. And, because individuals in deportation proceedings are not

25 provided with appointed counsel and most of them cannot afford to pay for private counsel,

26 EOIR’s actions will ultimately prevent many immigrants from receiving any legal assistance at

27 all.

COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF
(Case No. 2:17-cv-00716) – 2

Davis Wright Tremaine LLP
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Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716 Document 1 Filed 05/08/17 Page 3 of 17

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Plaintiffs now bring this lawsuit for declaratory and injunctive relief, and respectfully

2 ask this Court to halt EOIR’s unconstitutional overreach.

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I. PARTIES

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1.1 Plaintiff NWIRP is a Washington nonprofit public benefit corporation with its

5 principal place of business in Seattle, Washington, and with additional offices in Tacoma,

6 Wenatchee, and Granger, Washington. NWIRP was founded in 1984. Its mission is to

7 promote justice by defending and advancing the rights of immigrants through direct legal

8 service, systemic advocacy, and community education.

9

1.2 Plaintiff Yuk Man Maggie Cheng is a NWIRP staff attorney licensed to practice

10 law in Washington by the Washington Supreme Court. As a licensed Washington attorney, she

11 is subject to regulation and supervision by the Washington Supreme Court and by the

12 Washington State Bar Association, a state agency.

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1.3 Defendant Jefferson Beauregard Sessions III is the United States Attorney

14 General and head of the United States Department of Justice. Sessions is sued in his official

15 capacity.

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1.4 Defendant United States Department of Justice (“DOJ”) is an executive

17 department of the United States charged with enforcing federal law.

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1.5 Defendant Executive Office for Immigration Review is a federal office/agency

19 within and overseen by DOJ, and is responsible for adjudicating immigration cases. EOIR

20 issued the cease-and-desist letter at issue in this case.

21

1.6 Defendant Juan Osuna is the Director of EOIR. Osuna is sued in his official

22 capacity.

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1.7 Defendant Jennifer Barnes is an employee of EOIR and holds the title of

24 Disciplinary Counsel. Barnes is sued in her official capacity.

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II. JURISDICTION & VENUE

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2.1 This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331, as this

27 civil action arises under the laws of the United States, and pursuant to 28 U.S.C. § 1361, as this

COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF
(Case No. 2:17-cv-00716) – 3

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716 Document 1 Filed 05/08/17 Page 4 of 17

1 action seeks to compel an officer or employee of the United States, or an agency thereof, to

2 perform a duty owed to Plaintiffs. The United States has waived its sovereign immunity pursuant

3 to 5 U.S.C. § 702.

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2.2 This Court has personal jurisdiction over all Defendants, and venue is proper in

5 this district, pursuant to 28 U.S.C. § 1391(e).

6

III. FACTS

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A. NWIRP Plays a Critical Role in Providing Legal Assistance to Immigrants

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3.1 NWIRP is the primary nonprofit legal services provider for immigrants in

9 removal proceedings in Washington State and for persons detained at the Northwest Detention

10 Center (“NWDC”), an immigration prison in Tacoma, Washington. NWIRP staff attorneys

11 provide direct representation in hundreds of cases and organize pro bono representation for

12 more than 200 additional cases each year.

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3.2 NWIRP screens more than 1,000 potential clients per year. In 2016 alone,

14 NWIRP screened 641 individuals who were potentially eligible for asylum.

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3.3 NWIRP also provides “Know Your Rights” (“KYR”) presentations, community

16 workshops, and individual consultations to unrepresented individuals.

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3.4 NWIRP relies on grants and charitable contributions to provide limited services

18 to unrepresented immigrants. These services include helping immigrants file motions to

19 terminate proceedings, motions to change venue, and motions to reopen old removal orders

20 before EOIR. NWIRP also assists hundreds of clients in preparing various application forms

21 seeking relief from removal, including applications for asylum, family visas, cancellation of

22 removal, special immigrant juvenile status, and U & T visas for victims of trafficking and

23 violent crimes.

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3.5 Due to time, cost, and other resource constraints, NWIRP can provide limited or

25 full representation to clients in only a small fraction of the total screenings it performs. Full

26 representation in removal proceedings can entail the preparation and filing of a) required

27 procedural and substantive motions; b) applications and briefing for all forms of relief for

COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF
(Case No. 2:17-cv-00716) – 4

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716 Document 1 Filed 05/08/17 Page 5 of 17

1 which the applicant is eligible; and c) extensive documentation of key facts in the case,

2 including reports on country conditions, testimony by an expert or lay witness, and evaluations

3 by psychologists or other medical professionals. Removal proceedings often involve multiple

4 hearings over the course of several years.

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3.6 For every individual it screens, NWIRP provides personal consultations to

6 advise the individual of procedural requirements and to help identify potential defenses and

7 forms of relief.

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3.7 Of the individuals it screens, NWIRP places, on average, over 200 cases per

9 year with pro bono attorneys. In 2016, NWIRP placed 242 cases with pro bono attorneys, with

10 103 of those cases in removal proceedings. Through the first four months of 2017, NWIRP

11 placed 137 cases for direct representation with pro bono attorneys, with 73 of those cases in

12 removal proceedings.

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B. EOIR Threatens NWIRP with Disciplinary Sanctions for Providing

Limited Legal Assistance to Unrepresented Immigrants

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3.8 On December 18, 2008, EOIR published new rules of professional conduct

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governing “practitioners who appear before [EOIR],” creating additional categories of attorney

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misconduct that are subject to disciplinary sanctions. See Professional Conduct for

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Practitioners, 73 Fed. Reg. 76,914 (Dec. 18, 2008), codified at 8 C.F.R. §§ 1001, 1003 & 1292.

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One of these rules, 8 C.F.R. § 1003.102(t), establishes that EOIR may impose disciplinary

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sanctions against any attorney representing noncitizens before the agency who fails to file a

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notice of entry of appearance (on Form EOIR-27 or -28).

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3.9 EOIR’s rule defines representation very broadly. The rule requires attorneys to

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submit a notice of appearance where they have engaged in “practice” or “preparation,” as

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defined in 8 C.F.R. § 1001.1:

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(i) The term practice means the act or acts of any person

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appearing in any case, either in person or through the preparation

or filing of any brief or other document, paper, application, or

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petition on behalf of another person or client before or with DHS,

or any immigration judge, or the Board.

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COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF
(Case No. 2:17-cv-00716) – 5

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716 Document 1 Filed 05/08/17 Page 6 of 17

… 1

(k) The term preparation, constituting practice, means the study

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of the facts of a case and the applicable laws, coupled with the

giving of advice and auxiliary activities, including the incidental

3

preparation of papers, but does not include the lawful functions

of a notary public or service consisting solely of assistance in the

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completion of blank spaces on printed Service forms by one

whose remuneration, if any, is nominal and who does not hold

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himself out as qualified in legal matters or in immigration and

naturalization procedure.

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3.10 Notably, the immigration court does not permit limited appearances1 or

7 unilateral withdrawals in removal proceedings. Once an attorney files a notice of appearance,

8 the attorney must represent the immigrant for the entirety of the removal case before the

9 immigration judge (or, if on appeal, before the Board of Immigration Appeals). The attorney

10 may only withdraw with leave of the court, and leave is granted only in exceptional

11 circumstances.

12 3.11 When these new rules were adopted, NWIRP met with the local immigration

13 court administrator to discuss how the rule would impact the services NWIRP provides to pro

14 se individuals. NWIRP agreed that it would notify the court when it assisted with any pro se

15 motion or brief by including a subscript or other clear indication in the document that NWIRP

16 had prepared or assisted in preparing the motion or application. This convention was accepted,

17 and no concerns were raised by the local immigration courts or by EOIR in the intervening nine

18 years.

19 3.12 In August 2016, the EOIR’s Fraud & Abuse Prevention Counsel, Brea C.

20 Burgie, contacted NWIRP to coordinate efforts on combatting “notario fraud.”2 Using funding

21 received from the Washington State Attorney General’s Office, NWIRP had already

22 implemented a special project addressing notario fraud. NWIRP discussed with Ms. Burgie the

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24 1 The one exception, created in 2015, allows for a limited appearance only for the purpose of representing a
respondent in a custody (bond) proceeding. See Separate Representation for Custody and Bond Proceedings, 80
25 Fed. Reg. 59,500 (Oct. 1, 2015) (amending 8 C.F.R. § 1003.17).
2 The American Bar Association (ABA) describes this problem as “immigration consultants who are engaging in
26 the unauthorized practice of law” by using “false advertising and fraudulent contacts [and] hold[ing] themselves
out as qualified to help immigrants obtain lawful status, or perform[ing] legal functions such as drafting wills or
27 other legal documents.” See ABA, Fight Notario Fraud, http://www.americanbar.org/groups/public_services/
immigration/projects_initiatives/fightnotariofraud.html.

COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF
(Case No. 2:17-cv-00716) – 6

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716 Document 1 Filed 05/08/17 Page 7 of 17

1 tools it uses to combat such fraud, including community education outreach, KYR

2 presentations, and asylum workshops. The aim of these tools is to provide avenues, besides

3 notarios, for unrepresented people to seek assistance in filling out immigration applications

4 when they cannot afford the representation of an immigration attorney.

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3.13 Ms. Burgie then requested a follow-up call with NWIRP to discuss the asylum

6 workshops. She noted that Defendant Jennifer Barnes, EOIR’s Disciplinary Counsel, would

7 participate in the call. In the subsequent call on October 11, 2016, Defendant Barnes stated that

8 EOIR’s regulations limit organizations, including nonprofit organizations, from assisting pro se

9 individuals in filling out asylum applications.

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3.14 On April 13, 2017, NWIRP received a letter from Defendant Barnes on behalf

11 of EOIR’s Office of General Counsel, stating EOIR was aware that NWIRP had assisted at

12 least two pro se applicants in filing motions without first filing notices of appearance with the

13 immigration court. Defendant Barnes instructed NWIRP to “cease and desist from representing

14 aliens unless and until the appropriate Notice of Entry of Appearance form is filed with each

15 client that NWIRP represents.” A copy of the letter is attached hereto as Exhibit 1.

16

3.15 Attached to Defendant Barnes’s letter were two motions to reopen that NWIRP

17 assisted pro se immigrant clients in preparing: one submitted to the Seattle Immigration Court,

18 and another submitted to the Tacoma Immigration Court at the NWDC. Both motions clearly

19 identified NWIRP as assisting the pro se individual in preparing the motion.

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3.16 The motion filed with the Tacoma Court was a one-page template motion in

21 which a NWIRP advocate assisted the detained person by handwriting in the substance of the

22 basis for the detained person’s request for a new hearing. The pro se individual later submitted

23 the motion through the internal mailing system at the detention center.

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3.17 The motion filed with the Seattle Court was prepared and submitted on behalf of

25 a pro se individual by Plaintiff Maggie Cheng, a NWIRP staff attorney specializing in asylum

26 cases. The motion explained the reasons why the client had missed a prior hearing, which had

27 led the immigration court to issue an order of removal in absentia. In addition, the motion

COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF
(Case No. 2:17-cv-00716) – 7

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716 Document 1 Filed 05/08/17 Page 8 of 17

1 explained that the respondent is prima facie eligible for asylum, withholding of removal, and

2 protection under the Convention Against Torture (“CAT”). The motion stated that “Northwest

3 Immigrant Rights Project is assisting [the respondent] in submitting this motion to reopen.”

4 The motion included an application for asylum, withholding, and CAT protection. The motion

5 also clearly identified Plaintiff Cheng as the attorney preparing the application, and it included

6 Plaintiff Cheng’s contact information. After the motion to reopen was denied, Plaintiff Cheng

7 submitted a notice of appearance with EOIR agreeing to directly represent the respondent in

8 appealing the decision to the Board of Immigration Appeals.

9

C. EOIR’s Threat to Impose Disciplinary Sanctions for Limited Legal

Assistance Will Cripple Pro Bono Legal Aid to Immigrants 10
3.18 There is no right to appointed counsel in immigration court, other than for

11 detained individuals with serious mental illness or disorders.3 According to a recent national

12 study, only 37 percent of individuals appearing before immigration court are represented; in

13 Washington state, 65 percent of individuals are represented before the immigration court in

14 Seattle, and only 8 percent in Tacoma.4 As of May 4, 2017, there are approximately 8,882

15 pending cases before the Seattle and Tacoma immigration courts.5

16 3.19 Access to legal counsel critically affects an individual’s likelihood of success in

17 removal proceedings. Non-detained individuals represented by counsel are five times more

18 likely to submit applications for relief and over three times more likely to succeed than their

19 unrepresented counterparts; even more significantly, detained individuals with representation

20 are over ten times more likely to seek and succeed on their applications for relief when

21 compared to their unrepresented counterparts.6 Yet, pro se immigrants—even those who are

22

23

3 See INA § 240(b)(4)(A) (providing right to counsel “at no expense to the Government”); Franco-Gonzalez v.

24 Holder, 767 F. Supp.2d 1034, 1058 (C.D. Cal. 2011) (finding that mentally disabled immigrant detainees are

entitled to appointed counsel at the government’s expense).
25 4 See Ingrid Eagly and Steven Shafer, American Immigration Council, Access to Counsel in Immigration Court 5

(Sept. 2016), available at https://www.americanimmigrationcouncil.org/sites/default/files/research/

26 access_to_counsel_in_immigration_court.pdf.
5 See TRAC Immigration, “Immigration Court Backlog Tool,” available at http://trac.syr.edu/phptools/

27

immigration/court_backlog/ (last visited May 4, 2017). 6 See Eagly & Shafer, supra n.3, at 10–20.

COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF
(Case No. 2:17-cv-00716) – 8

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716 Document 1 Filed 05/08/17 Page 9 of 17

1 detained—are not entitled to any assistance in preparing and filing forms or briefs with EOIR.

2 Further, although 8 C.F.R. § 1003.33 requires that all written documents be submitted in

3 English, EOIR provides no translation assistance to persons in removal proceedings.

4

3.20 NWIRP seeks to meet the high demand for legal counsel through its staff and

5 pro bono volunteer attorneys, but there remain a vast number of individuals whom NWIRP

6 cannot represent or place with a pro bono attorney, or who require vital services before NWIRP

7 has the opportunity to evaluate their capacity for full representation.

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3.21 NWIRP seeks to ameliorate the significant disadvantage faced by unrepresented

9 persons in removal proceedings by providing limited services to hundreds of unrepresented

10 individuals each year to whom it cannot provide full representation. Some of these services

11 include:

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a. Provision of general information about the immigration court system,

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such as an overview of court procedures, the elaborate procedural requirements for

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filing applications with the immigration court, and the consequences of failing to appear

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for a hearing;

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b. Individual consultations to review the facts of a particular person’s case,

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including assistance with record requests, to identify potential forms of relief and paths

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to legal status;

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c. Assistance in preparing applications for relief from removal, including i)

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applications for asylum, withholding of removal, and relief under the Convention

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Against Torture (“CAT”); ii) applications for cancellation of removal for lawful

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permanent residents under 8 U.S.C. § 1229b(a); iii) applications for cancellation of

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removal for non-permanent residents under § 1229b(b); iv) applications for U and T

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non-immigrant status for victims of violent crimes and human trafficking; and v)

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applications for family petitions;

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d. In the case of asylum seekers in particular, expedited assistance in

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preparing asylum applications, as immigrants are required to file asylum applications

COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF
(Case No. 2:17-cv-00716) – 9

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716 Document 1 Filed 05/08/17 Page 10 of 17

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with the immigration court within one year of arrival in the United States—a deadline

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many are often unaware of until they are screened by NWIRP;

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e. Assistance in gathering evidence and preparing packets of materials on

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country conditions for detained individuals seeking asylum, withholding of removal,

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and relief under CAT;

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f. Assistance in filing motions to terminate removal proceedings where

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DHS charges individuals as being deportable for certain criminal or immigration

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violations that arguably do not constitute grounds of removability;

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g. Assistance in filing motions to change venue, which require detailed

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pleadings and statements of relief—a service that is particularly important for

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individuals who have relocated to Washington after being detained and released near

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the border, as their cases are still scheduled to continue at the border and most will be

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ordered removed in absentia if they fail to travel to their court hearing; and

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h. Assistance in filing motions to reopen cases where persons previously

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ordered removed, often times in absentia, face imminent removal from the United States

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unless they immediately file a motion to reopen.

17

3.22 When assisting individuals with these matters, NWIRP explains the scope of the

18 services that it will and will not provide to make sure the individual understands the nature of

19 the assistance. In every case where NWIRP is able to provide only limited services and not full

20 representation to a client, NWIRP obtains the client’s informed consent to that limitation,

21 consistent with Washington Rule of Professional Conduct 1.2(c).

22

3.23 NWIRP cannot comply with EOIR’s cease-and-desist letter without greatly

23 curtailing its services to immigrants. It does not have—and could not possibly be expected to

24 have—the resources to provide full representation to every person who is potentially eligible

25 for relief.

26

3.24 In fact, as written, EOIR’s letter casts into doubt whether NWIRP can continue

27 to consult with unrepresented persons, screen cases for referral to volunteer attorneys, or

COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF
(Case No. 2:17-cv-00716) – 10

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716 Document 1 Filed 05/08/17 Page 11 of 17

1 conduct workshops and presentations. Due to this uncertainty, NWIRP is now compelled to

2 choose between halting most of the services it provides to immigrants or continuing to provide

3 those services under threat of disciplinary sanctions. EOIR’s letter has a considerable chilling

4 effect on NWIRP’s activities, impairing NWIRP’s ability to advocate for the statutory and

5 constitutional rights of immigrants.

6

3.25 EOIR’s interpretation of its administrative rule fundamentally violates the First

7 Amendment rights of NWIRP and its attorneys to communicate and associate with their clients,

8 and to petition the government. It also encroaches upon the power reserved to Washington

9 (and other states) to regulate the practice of law—a power that belongs exclusively to the States

10 under the Tenth Amendment.

11

3.26 For these reasons, NWIRP now brings this lawsuit to enjoin EOIR from further

12 constitutional violations.

13 IV. FIRST CAUSE OF ACTION—VIOLATION OF THE FIRST AMENDMENT (AS

APPLIED)

14

4.1 The First Amendment to the United States Constitution guarantees Plaintiffs the

15

rights to free speech, to free assembly, and to petition the government.

16

4.2 Plaintiffs exercise these rights when they screen, consult with, advise, and

17

otherwise assist immigrants in need of legal services.

18

4.3 EOIR’s new and overbroad interpretation of 8 C.F.R. § 1001.1(i) and (k), as

19

incorporated into 8 C.F.R. § 1003.102(t), violates the First Amendment by curtailing Plaintiffs’

20

exercise of their First Amendment rights.

21

4.4 This violation causes ongoing and irreparable harm to Plaintiffs, who have no

22

adequate remedy at law for EOIR’s wrongful conduct. Absent immediate injunctive relief,

23

Plaintiffs will continue to suffer irreparable harm.

24

V. SECOND CAUSE OF ACTION—VIOLATION OF THE FIRST AMENDMENT

25

(FACIAL)

26

5.1 The First Amendment to the United States Constitution guarantees Plaintiffs the

27 rights to free speech, to free assembly, and to petition the government.

COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF
(Case No. 2:17-cv-00716) – 11

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716 Document 1 Filed 05/08/17 Page 12 of 17

1

5.2 Plaintiffs exercise these rights when they screen, consult with, advise, and

2 otherwise assist immigrants in need of legal services.

3

5.3 8 C.F.R. § 1001.1(k), as incorporated into 8 C.F.R. § 1003.102(t), violates the

4 First Amendment because it is a vague, overbroad, and unduly burdensome restriction on

5 Plaintiffs’ rights to free speech, to free assembly, and to petition the government.

6

5.4 8 C.F.R. § 1001.1(k), as incorporated into 8 C.F.R. § 1003.102(t), also violates

7 the First Amendment because it burdens the constitutionally protected speech of third parties,

8 including others similarly situated to Plaintiffs and the clients and potential clients of Plaintiffs.

9

5.5 This violation causes ongoing and irreparable harm to Plaintiffs, who have no

10 adequate remedy at law. Absent immediate injunctive relief, Plaintiffs will continue to suffer

11 irreparable harm.

12 VI. THIRD CAUSE OF ACTION—VIOLATION OF THE TENTH AMENDMENT (AS APPLIED)
13 6.1 The Tenth Amendment prohibits the federal government from exercising powers
14 not expressly delegated to it by the Constitution, and reserves those powers to the States or to
15 the people.
16 6.2 Regulation of the practice of law is a matter reserved to the States. While the
17 federal government may regulate the conduct of attorneys who appear in federal administrative
18 proceedings, it may not promulgate or enforce general regulations affecting the conduct of
19 lawyers outside the scope of such proceedings, such as regulations that purport to prohibit
20 consulting with and/or providing limited services to pro se immigrants.
21 6.3 Many of NWIRP’s services—giving KYR presentations, consulting with
22 unrepresented persons, identifying defenses and forms of relief, advising persons regarding
23 procedural steps for obtaining relief, screening and evaluating cases, making referrals, and
24 assisting with forms and applications—are all part of the general practice of law. In the
25 performance of these services, NWIRP attorneys may agree to represent a client and appear in a
26

27

COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF
(Case No. 2:17-cv-00716) – 12

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716 Document 1 Filed 05/08/17 Page 13 of 17

1 federal administrative proceeding—or they may not. But these services occur outside the

2 confines of an EOIR administrative proceeding.

3

6.4 The Supreme Court of the State of Washington regulates the practice of law in

4 Washington. In furtherance of that power, the Supreme Court adopted the Washington Rules

5 of Professional Conduct (“WRPCs”), which govern the conduct of Washington-licensed

6 lawyers and their relationships with clients. Relevant here:

7

a. WRPC 1.2(c) allows lawyers to limit the scope of representation with the

8

informed consent of the client;

9

b. WRPC 1.6(a) prohibits a lawyer from revealing information relating to

10

the representation of a client absent informed consent; and

11

c. WRPC 6.5(a) provides special consideration for pro bono representation,

12

specifically where lawyers provide short-term limited legal services under the auspices

13

of a not-for-profit organization such as NWIRP.

14

6.5 EOIR’s new and overbroad interpretation of 8 C.F.R. § 1001.1(i) and (k), as

15 incorporated into 8 C.F.R. § 1003.102(t), violates the Tenth Amendment by purporting to

16 restrict and unduly burden Plaintiffs in their general practice of law before they have appeared

17 or agreed to represent a client in an agency proceeding. EOIR’s interpretation also violates the

18 Tenth Amendment because it conflicts with a Washington lawyer’s rights and obligations

19 established by the State as set forth in the WRPCs.

20

6.6 This violation causes ongoing and irreparable harm to Plaintiffs, who have no

21 adequate remedy at law. Absent immediate injunctive relief, Plaintiffs will continue to suffer

22 irreparable harm.

23

VII. FOURTH CAUSE OF ACTION—VIOLATION OF THE TENTH

AMENDMENT (FACIAL)

24

7.1 The Tenth Amendment prohibits the federal government from exercising powers

25

not expressly delegated to it by the Constitution, and reserves those powers to the States or to

26

the people.

27

COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF
(Case No. 2:17-cv-00716) – 13

Davis Wright Tremaine LLP
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Case 2:17-cv-00716 Document 1 Filed 05/08/17 Page 14 of 17

1

7.2 Regulation of the practice of law is a matter reserved to the States. While the

2 federal government may regulate the conduct of attorneys who appear in federal administrative

3 proceedings, it may not promulgate or enforce general regulations affecting the conduct of

4 lawyers outside the scope of such proceedings, such as regulations that purport to prohibit

5 consulting with and/or providing limited services to pro se immigrants.

6

7.3 Many of NWIRP’s services—giving KYR presentations, consulting with

7 unrepresented persons, identifying defenses and forms of relief, advising persons regarding

8 procedural steps for obtaining relief, screening and evaluating cases, making referrals, and

9 assisting with forms and applications—are all part of the general practice of law. In the

10 performance of these services, NWIRP attorneys may agree to represent a client and appear in a

11 federal administrative proceeding—or they may not. But these services occur outside the

12 confines of an EOIR administrative proceeding.

13

7.4 The Supreme Court of the State of Washington regulates the practice of law in

14 Washington. In furtherance of that power, the Supreme Court adopted the WRPCs, which

15 govern the conduct of Washington-licensed lawyers and their relationships with clients.

16

7.5 In 1983, the American Bar Association promulgated Model Rules of

17 Professional Conduct (“MRPCs”), which have since been adopted by 49 states and the District

18 of Columbia.

19

7.6 Various WRPCs and MRPCs are implicated by EOIR’s action here, namely:

20

a. WRPC 1.2(c) and MRPC 1.2(c) allow lawyers to limit the scope of

21

representation with the informed consent of the client;

22

b. WRPC 1.6(a) and MRPC 1.6(a) prohibit a lawyer from revealing

23

information relating to the representation of a client absent informed consent; and

24

c. WRPC 6.5(a) and MRPC 6.5(a) provide special consideration for pro

25

bono representation, specifically where lawyers provide short-term limited legal

26

services under the auspices of a not-for-profit organization such as NWIRP.

27

7.7 8 C.F.R. § 1001.1(k), as incorporated into 8 C.F.R. § 1003.102(t), violates the

COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF
(Case No. 2:17-cv-00716) – 14

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Case 2:17-cv-00716 Document 1 Filed 05/08/17 Page 15 of 17

1 Tenth Amendment by restricting and unduly burdening Plaintiffs in their general practice of

2 law before they have appeared or agreed to represent a client in an agency proceeding. EOIR’s

3 interpretation also violates the Tenth Amendment insofar as it conflicts with lawyers’ rights

4 and duties established by the States as set forth in the WRPCs and the MRPCs.

5

7.8 This violation causes ongoing and irreparable harm to Plaintiffs, who have no

6 adequate remedy at law. Absent immediate injunctive relief, Plaintiffs will continue to suffer

7 irreparable harm.

8 VIII. FIFTH CAUSE OF ACTION—DECLARATORY JUDGMENT (28 U.S.C. § 2201)

9

8.1 An actual controversy has arisen between Plaintiffs and EOIR. The parties have

10 genuine and opposing interests, which are direct and substantial.

11

8.2 A judicial determination of the parties’ rights and other legal relations would

12 provide final and conclusive relief. Absent such a determination, Plaintiffs will continue to

13 suffer invasion of their constitutional rights due to EOIR’s wrongful conduct.

14

8.3 Plaintiffs are entitled to a declaration that EOIR cannot lawfully enforce 8

15 C.F.R. § 1003.102(t).

16

8.4 In the alternative, Plaintiffs are entitled to a declaration that EOIR cannot

17 lawfully enforce 8 C.F.R. § 1003.102(t) against Plaintiffs or any staff or volunteer attorney

18 under Plaintiffs’ direction and control.

19

PRAYER FOR RELIEF

20

Plaintiffs respectfully pray for the following relief:

21

A. That the Court find and declare:

22

(i) 8 C.F.R. § 1001.1(k), as incorporated into 8 C.F.R. § 1003.102(t), is

23 vague, overbroad, unduly burdensome, and violates the First and Tenth Amendments to the

24 United States Constitution; and

25

(ii) To the extent EOIR relies on 8 C.F.R. § 1001(i) and (k), as incorporated

26 into 8 C.F.R. § 1003.102(t), to sanction, purport to sanction, or otherwise discipline Plaintiffs

27 and all other similarly situated attorneys for a) conduct unconnected with any agency

COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF
(Case No. 2:17-cv-00716) – 15

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Case 2:17-cv-00716 Document 1 Filed 05/08/17 Page 16 of 17

1 proceeding or b) the provision of limited services related to an agency proceeding in which the

2 attorney has not agreed to represent a client in the proceeding, EOIR violates the First and

3 Tenth Amendments to the United States Constitution;

4

B. That the Court enter an order permanently enjoining Defendants, their officers,

5 agents, representatives, servants, employees, successors and assigns, and all other persons in

6 active concert or participation with them, from:

7

(i) Enforcing the cease-and-desist letter, dated April 5, 2017, from

8

Defendant Barnes and EOIR’s Office of General Counsel to NWIRP; and

9

(ii) Enforcing or threatening to enforce 8 C.F.R. § 1003.102(t); or, in the

10

alternative,

11

(iii) Enforcing or threatening to enforce 8 C.F.R. § 1003.102(t) against

12

Plaintiffs and all other similarly situated attorneys for a) conduct unconnected with any

13

agency proceeding or b) the provision of limited legal services in which the attorney has

14

not appeared or otherwise agreed to represent a client in an agency proceeding;

15

C. That EOIR be required to pay to Plaintiffs both the costs of this action and

16 reasonable attorneys’ fees incurred by Plaintiffs in pursuing this action, pursuant to 5 U.S.C. §

17 504, 28 U.S.C. § 2412, and any other statute or other rule of law or equity which permits such

18 an award; and

19

D. That Plaintiffs be awarded such other, further, and additional relief as the Court

20 deems just and equitable.

21

22

23

24

25

26

27

COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF
(Case No. 2:17-cv-00716) – 16

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Case 2:17-cv-00716 Document 1 Filed 05/08/17 Page 17 of 17

1

DATED this 8th day of May, 2017.

2

DAVIS WRIGHT TREMAINE LLP

3

Attorneys for Northwest Immigrant Rights Project

4

By s/ Michele Radosevich

Michele Radosevich, WSBA #24282

5

By s/ Jaime Drozd Allen

6

Jaime Drozd Allen, WSBA #35742

7

By s/ James Harlan Corning

James Harlan Corning, WSBA #45177

8

By s/ Robert E. Miller

9

Robert E. Miller, WSBA #46507

10

By s/ Laura-Lee Williams

Laura-Lee Williams, WSBA #51358

11

1201 Third Avenue, Suite 2200

12

Seattle, WA 98101-3045

Telephone: (206) 622-3150

13

Fax: (206) 757-7700

E-mail: micheleradosevich@dwt.com

14

jaimeallen@dwt.com

jamescorning@dwt.com

15

robertmiller@dwt.com

lauraleewilliams@dwt.com

16

17

NORTHWEST IMMIGRANT RIGHTS

PROJECT

18

By s/ Matt Adams

19

Matt Adams, WSBA #28287

20

By s/ Glenda M. Aldana Madrid

Glenda M. Aldana Madrid, WSBA # 46987

21

By s/ Leila Kang

22

Leila Kang, WSBA #48048

23

615 2nd Avenue, Suite 400

Seattle, WA 98104-2244

24

Phone: (206) 957-8611

Fax: (206) 587-4025

25

E-mail: matt@nwirp.org

glenda@nwirp.org

26

leila@nwirp.org

27

COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF
(Case No. 2:17-cv-00716) – 17

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
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 Case 2:17-cv-00716-RAJ Document 2 Filed 05/08/17 Page 1 of 32

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

10 NORTHWEST IMMIGRANT RIGHTS
PROJECT (“NWIRP”), a nonprofit Washington 11 public benefit corporation; and YUK MAN
MAGGIE CHENG, an individual, 12
Plaintiffs, 13
v. 14
JEFFERSON B. SESSIONS III, in his official 15 capacity as Attorney General of the United
States; UNITED STATES DEPARTMENT OF 16 JUSTICE; EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; JUAN OSUNA, in 17 his official capacity as Director of the Executive
Office for Immigration Review; and JENNIFER 18 BARNES, in her official capacity as
Disciplinary Counsel for the Executive Office 19 for Immigration Review,

20

Defendants.

21

No. 2:17-cv-00716 MOTION FOR TEMPORARY RESTRAINING ORDER
Note on Motion Calendar: May 8, 2017 ORAL ARGUMENT REQUESTED

22

23

24

25

26

27

MOTION FOR TEMPORARY RESTRAINING ORDER (Case No. 2:17-cv-00716)
4829-1979-6040v.4 0201148-000002

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Case 2:17-cv-00716-RAJ Document 2 Filed 05/08/17 Page 2 of 32

TABLE OF CONTENTS

1

Page

2 I. INTRODUCTION ............................................................................................................. 1

3 II. FACTUAL BACKGROUND ........................................................................................... 2

4

A. NWIRP Plays a Critical Role in Providing Legal Assistance to Immigrants............. 2

5

B. EOIR Threatens NWIRP with Disciplinary Sanctions for Providing Limited Legal

Assistance to Unrepresented Immigrants ................................................................... 3

6 III. ARGUMENT ..................................................................................................................... 5

7

A. Plaintiffs Meet the Standard for Granting Temporary Relief..................................... 5

8

B. Plaintiffs Are Likely to Succeed on the Merits Because EOIR’s Compulsory-

Representation Rule is Unconstitutional .................................................................... 6

9

1. EOIR’s Compulsory-Representation Rule Violates the First Amendment

10

Because It Unduly Burdens Plaintiffs’ Right to Free Speech and Petition

the Government ................................................................................................. 6

11

a. Plaintiffs Have a Well-Established First Amendment Right to Speak

12

and Associate through the Provision of Nonprofit Legal Services .......... 6

b. EOIR’s Rule is Subject to Strict Scrutiny Because It Imposes a

13

Content-Based Restriction and Targets Political Speech ......................... 9

14

c. The Rule Cannot Survive Strict Scrutiny ............................................... 10

15

(1) EOIR Cannot Articulate a Compelling Interest in Enforcing

the Compulsory-Representation Rule Against NWIRP ................. 10

16

(2) The Rule Is Not Narrowly Tailored to Achieve EOIR’s

17

Purported Interest ......................................................................... 12

d. The Rule Cannot Survive Intermediate Scrutiny.................................... 15 18

2. EOIR’s Compulsory-Representation Rule Violates the Tenth Amendment

19

Because It Interferes in the States’ Power to Regulate Lawyer Conduct

and Representation .......................................................................................... 16

20 a. The Tenth Amendment Vests States with the Exclusive Right to

21

Regulate Lawyer Conduct Outside of Federal Proceedings................... 16

22

b. EOIR’s Compulsory-Representation Rule Encroaches Upon Washington State’s Sovereign Power to Regulate Lawyer Conduct ..... 17

23

C. Plaintiffs Are Suffering, and Will Continue to Suffer, Immediate and Irreparable

Harm from EOIR’s Conduct .................................................................................... 21 24

D. The Balance of Equities and Public Interest Strongly Favor Immediate Relief....... 24 25
IV. CONCLUSION ................................................................................................................ 24

26

27

MOTION FOR TEMPORARY RESTRAINING ORDER (Case No. 2:17-cv-00716) – i

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Case 2:17-cv-00716-RAJ Document 2 Filed 05/08/17 Page 3 of 32

1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 3BA Intern. LLC v. Lubahn, No. C10-829RAJ, 2010 WL 2105129 (W.D. Wash. May 20, 2010) ......................................6
5

6

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) .............................................................................................5, 6

7 Bond v. United States,

8

564 U.S. 211 (2011) ..............................................................................................................16

9 Bradwell v. People of State of Illinois,

83 U.S. (16 Wall.) 130 (1872) ...............................................................................................16 10

Buckley v. Valeo,

11

424 U.S. 1 (1976) ....................................................................................................................9

12 Conant v. Walters,

13

309 F.3d 629 (9th Cir. 2002) ...............................................................................................6, 8

14 Denius v. Dunlap,

209 F.3d 944 (7th Cir. 2000) .................................................................................................15 15

Drakes Bay Oyster Co. v. Jewell,

16

747 F.3d 1073 (9th Cir. 2013) ...............................................................................................23

17 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

18

472 U.S. 749 (1985) ..............................................................................................................10

19 Elrod v. Burns,

427 U.S. 347 (1976) ..............................................................................................................22

20

Forsyth Cnty., Ga. v. Nationalist Movement,

21

505 U.S. 123 (1992) ........................................................................................................13, 14

22 Goldfarb v. Virginia State Bar,

23

421 U.S. 773 (1975) ..............................................................................................................17

24 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ................................................................................................................8, 9

25 Hunter ex rel. Brandt v. Regents of Univ. of Cal.,

26

190 F.3d 1061 (9th Cir. 1999) ...............................................................................................12

27

MOTION FOR TEMPORARY RESTRAINING ORDER (Case No. 2:17-cv-00716) – ii

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Case 2:17-cv-00716-RAJ Document 2 Filed 05/08/17 Page 4 of 32

In re Primus,

1

436 U.S. 412 (1978) ..................................................................................................7, 8, 9, 11

2 Jean v. Nelson,

3

727 F.2d 957 (11th Cir. 1984) ...........................................................................................7, 10

4 Legal Services. Corp. v. Velazquez,

531 U.S. 533, 543 (2001) ........................................................................................7, 9, 14, 15

5

Leis v. Flynt,

6

439 U.S. 438 (1979) ..............................................................................................................17

7 McIntyre v. Ohio Elections Comm’n,

8

514 U.S. 334 (1995) ........................................................................................................10, 14

9 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ...........................................................................................21, 24

10 Moncrieffe v. Holder,

11

133 S. Ct. 1678, 1690 (2013) ................................................................................................23

12 NAACP v. Button,

13

371 U.S. 415 (1963) ...................................................................................................... passim

14 New York v. United States, 505 U.S. 144 (1992) ..............................................................................................................16

15 Ohralik v. Ohio State Bar Ass’n,

16

436 U.S. 447 (1978) ..............................................................................................................17

17 Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) ...............................................................................................14
18

19

Preminger v. Principi, 422 F.3d 815 (9th Cir. 2005) .................................................................................................24

20 Reed v. Town of Gilbert, Ariz.,

21

135 S. Ct. 2218 (2015) ............................................................................................................9

22 Reno v. ACLU, 521 U.S. 844 (1997) ..............................................................................................................13
23

24

San Diego Comm. Against Registration & the Draft (Card) v. Governing Bd. of Grossmont Union High Sch. Dist.,

25

790 F.2d 1471 (9th Cir. 1986) ...............................................................................................22

26 Small v. Avanti Health Sys., LLC, 661 F.3d 1180 (9th Cir. 2011) ...............................................................................................23
27

MOTION FOR TEMPORARY RESTRAINING ORDER (Case No. 2:17-cv-00716) – iii

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Case 2:17-cv-00716-RAJ Document 2 Filed 05/08/17 Page 5 of 32

Snyder v. Phelps,

1

562 U.S. 443 (2011) ..............................................................................................................10

2 Sorrell v. IMS Health, Inc.,

3

564 U.S. 552 (2011) ..........................................................................................................6, 16

4 Sperry v. Florida,

373 U.S. 379 (1963) ..............................................................................................................17

5

Stuhlbarg Int’l Sales Co. v. John D. Brush & Co.,

6

240 F.3d 832 (9th Cir. 2001) ...................................................................................................5

7 United Mine Workers of Am., Dist. 12 v. Illinois State Bar Ass’n,

8

389 U.S. 217 (1967) ................................................................................................................7

9 Univ. of Haw. Prof. Assembly v. Cayetano, 183 F.3d 1096 (9th Cir. 1999) ...............................................................................................24

10 Ward v. Rock Against Racism,

11

491 U.S. 781 (1989) .......................................................................................................15, 16

12 Winter v. Nat’l Res. Def. Council,

13

555 U.S. 7 (2008) ..............................................................................................................5, 24

14 Wollschlaeger v. Florida, 848 F.3d 1293 (11th Cir. 2017) ...............................................................................................8
15 Regulations
16 8 C.F.R. § 1001.1(i).............................................................................................................3, 4, 18
17
8 C.F.R. § 1001.1(k) ........................................................................................................3, 4, 9, 18 18
8 C.F.R. § 1003.101(t)...............................................................................................................3, 9 19

20 8 C.F.R. § 1292..............................................................................................................................3

21 73 Fed. Reg. 76,914...........................................................................................................3, 10, 11

22 80 Fed. Reg. 59,500.......................................................................................................................4

23 Rules

24 Washington Rule of Prof. Conduct 1.2 .................................................................................15, 19

25 Washington Rule of Prof. Conduct 1.6 .................................................................................15, 20 26 Immigration Court Practice Manual, Rule 2.3(d)....................................................................4, 18 27

MOTION FOR TEMPORARY RESTRAINING ORDER (Case No. 2:17-cv-00716) – iv

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Case 2:17-cv-00716-RAJ Document 2 Filed 05/08/17 Page 6 of 32

Constitutional Provisions 1
United States Constitution, First Amendment..................................................................... passim 2 3 United States Constitution, Tenth Amendment...........................................................6, 16, 19, 21

4 Other Authorities

5 Ingrid Eagly & Steven Shafer, Special Report: Access to Counsel in

Immigration Court, Am. Imm. Council (Sept. 2016)............................................................23

6

Undisclosed Legal Assistance to Pro Se Litigations,

7

American Bar Ass’n Formal Opinion 07-446 (May 5, 2007) ...............................................20

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

MOTION FOR TEMPORARY RESTRAINING ORDER (Case No. 2:17-cv-00716) – v

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Case 2:17-cv-00716-RAJ Document 2 Filed 05/08/17 Page 7 of 32

1

I. INTRODUCTION

2

The Northwest Immigrant Rights Project (“NWIRP”) provides free and low-cost legal

3 assistance to more than 10,000 immigrants each year through its 70 staff members and more than

4 350 volunteer attorneys. However, the Executive Office for Immigration Review (“EOIR”)—the

5 federal agency charged with adjudicating immigration court cases—has now issued NWIRP a

6 “cease and desist” order, constraining NWIRP’s ability to offer this assistance. Based on a new

7 and novel application of its own 2008 rule governing attorney misconduct, EOIR now insists that

8 NWIRP must either commit in advance to full legal representation of every immigrant in

9 removal proceedings it assists (which is plainly impossible), or refrain from providing them any

10 form of legal assistance. EOIR’s cease-and-desist order to NWIRP will deprive thousands of

11 unrepresented immigrants—including asylum seekers and unaccompanied children—of the

12 chance to consult with a NWIRP lawyer and to receive critical assistance in understanding

13 immigration law and navigating the byzantine immigration system.

14

EOIR’s new edict restricts not just the appearance and conduct of attorneys in removal

15 proceedings, but also their communications with clients and potential clients outside such

16 proceedings. By compelling NWIRP to provide full representation to every immigrant NWIRP

17 seeks to assist in removal proceedings, EOIR is effectively preventing NWIRP from offering any

18 form of limited legal assistance to such persons—even assistance provided entirely outside of an

19 active EOIR proceeding. EOIR’s rule, and its application to NWIRP, violates the First

20 Amendment by restricting NWIRP’s rights to free speech, to free association, and to petition the

21 government. It also violates the Tenth Amendment by invading the sovereign power reserved to

22 Washington and other states to regulate the practice of law within their borders.

23

EOIR has suddenly targeted Washington state—specifically, its primary nonprofit legal

24 services provider for immigrants—with an unprecedented application of a vague, overbroad rule.

25 Armed with the chilling threat of disciplinary sanctions, EOIR’s cease-and-desist order sharply

26 curtails NWIRP’s ability to provide legal assistance to immigrants in removal proceedings.

27 EOIR’s unconstitutional conduct has caused and is causing immediate and irreparable harm to

MOTION FOR TEMPORARY RESTRAINING ORDER (Case No. 2:17-cv-00716) – 1

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Case 2:17-cv-00716-RAJ Document 2 Filed 05/08/17 Page 8 of 32

1 NWIRP, its staff, and its volunteer attorneys, and it is decidedly contrary to the public interest.

2 NWIRP respectfully asks this Court to temporarily enjoin EOIR from further enforcement of its

3 compulsory-representation rule against NWIRP.

4

II. FACTUAL BACKGROUND

5 A. 6

NWIRP Plays a Critical Role in Providing Legal Assistance to Immigrants Founded in 1984, NWIRP seeks to promote justice by defending and advancing the

7 rights of immigrants through direct legal services, systematic advocacy, and community

8 education. Compl. ¶ 1.1. NWIRP is the primary nonprofit legal services provider for

9 immigrants in removal proceedings in Washington State and for persons detained at the

10 Northwest Detention Center (“NWDC”) in Tacoma, Washington. Compl. ¶ 3.1. NWIRP relies

11 on grants and charitable contributions to fund its operations and services. Compl. ¶ 3.4. NWIRP

12 provides “Know Your Rights” (“KYR”) presentations, community workshops, and individual

13 consultations to unrepresented individuals. Compl. ¶ 3.3; Cheng Decl. ¶ 5. NWIRP screens

14 more than 1,000 potential clients per year, and its staff attorneys provide direct representation in

15 hundreds of immigration cases before EOIR, Compl. ¶¶ 3.1–3.2. NWIRP also organizes pro

16 bono representation for more than 200 additional cases each year in removal proceedings.

17 Compl. ¶ 3.2.

18

Indigent persons in removal proceedings are not entitled to appointed counsel; as a

19 result, the majority of people in removal proceedings do not have legal representation. Compl. ¶

20 3.18; Warden-Hertz Decl. ¶ 5. Due to time, cost, and other resource constraints, however,

21 NWIRP cannot provide full legal representation to every person who seeks out NWIRP’s

22 assistance. Compl. ¶ 3.5; Cheng Decl. ¶¶ 6–8. Full representation in removal proceedings often

23 entails the preparation and filing of required procedural and substantive motions, applications

24 and briefing for all defenses and forms of relief for which the applicant is eligible, and/or

25 extensive documentation of key facts in the case, including reports on country conditions,

26 testimony by expert or lay witnesses, and evaluations by psychologists or other medical

27 professionals. Compl. ¶ 3.5. Removal proceedings also often involve multiple hearings over the

MOTION FOR TEMPORARY RESTRAINING ORDER (Case No. 2:17-cv-00716) – 2

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Case 2:17-cv-00716-RAJ Document 2 Filed 05/08/17 Page 9 of 32

1 course of several years. Id.; Cheng Decl. ¶ 6. So, as an alternative to full representation,

2 NWIRP provides a range of limited legal services to otherwise unrepresented immigrants.

3 Compl. ¶ 3.4; Warden-Hertz Decl. ¶ 7. These services include helping them file motions to

4 terminate proceedings, motions to change venue, and motions to reopen old removal orders

5 before EOIR. Id.; Cheng Decl. ¶ 5. NWIRP also assists hundreds of clients in preparing various

6 application forms seeking relief from removal, including applications for asylum, family visas,

7 cancellation of removal, special immigrant juvenile status, and U & T visas for victims of

8 trafficking and violent crimes. Compl. ¶ 3.4; Cheng Decl. ¶ 5.

9

NWIRP’s limited legal services are critical to immigrants who cannot afford private

10 legal representation, especially those who are illiterate or speak a rare language and therefore

11 have difficulty accessing resources and preparing their own filings. Cheng Decl. ¶ 9; Warden-

12 Hertz Decl. ¶ 8. These services help pro se individuals navigate complex immigration court

13 procedures, file motions and applications with all information necessary to preserve eligibility

14 for relief, and understand their rights and options. Id. To ensure accountability when providing

15 these services, NWIRP provides written and oral notice to individuals that it is not agreeing to

16 represent them, and explains the scope of the services it will and will not provide. Cheng Decl. ¶

17 10; Warden-Hertz Decl. ¶ 7.

18 B. EOIR Threatens NWIRP with Disciplinary Sanctions for Providing Limited Legal Assistance to Unrepresented Immigrants
19 On December 18, 2008, EOIR published a new rule of professional conduct governing
20 “practitioners who appear before [EOIR],” creating additional categories of attorney misconduct
21 that are subject to disciplinary sanctions. See Professional Conduct for Practitioners, 73 Fed.
22 Reg. 76,914 (Dec. 18, 2008) (the “Rule”), codified at 8 C.F.R. §§ 1001, 1003 & 1292. Among
23 other things, EOIR’s Rule establishes that an attorney “shall be subject to disciplinary sanctions”
24 if the attorney “[f]ails to submit a signed a completed Notice of Entry of Appearance … when
25 the [attorney] … [h]as engaged in practice or preparation.” 8 C.F.R. § 1003.102(t)(1). The Rule
26 further defines the terms “practice” and “preparation” as follows:
27

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The term practice means the act or acts of any person appearing in

1

any case, either in person or through the preparation or filing of any

brief or other document, paper, application, or petition on behalf of

2

another person or client before or with DHS, or any immigration

judge, or the Board. . . .

3

The term preparation, constituting practice, means the study of the

4

facts of a case and the applicable laws, coupled with the giving of

advice and auxiliary activities, including the incidental preparation

5

of papers . . . .

6 8 C.F.R. § 1001.1(i), (k).

7

When this Rule was adopted, NWIRP met with the local immigration court

8 administrator to discuss its impact on NWIRP’s services to pro se individuals. Compl. ¶ 3.11.

9 NWIRP agreed that it would notify the courts of its assistance with any pro se motion or brief by

10 including a subscript or other clear indication that NWIRP had prepared or assisted in preparing

11 the motion or application. Id. In the nine years since the Rule was adopted, neither the

12 immigration courts nor EOIR raised any concerns over this practice—until now. Id.

13

On April 13, 2017, NWIRP received a letter from Defendant Jennifer Barnes, EOIR’s

14 Disciplinary Counsel, stating EOIR was aware that NWIRP had assisted at least two pro se

15 applicants in filing motions without first filing notices of appearance. Compl. ¶ 3.14 & Ex. 1.

16 Defendant Barnes instructed NWIRP to “cease and desist from representing aliens unless and

17 until the appropriate Notice of Entry of Appearance form is filed with each client that NWIRP

18 represents,” threatening disciplinary action if NWIRP failed to do so. Id. Notably, EOIR did not

19 suggest NWIRP’s limited assistance to the two pro se individuals was deficient in any respect.

20

EOIR does not allow practitioners to enter limited notices of appearance to handle

21 discrete motions or issues in a removal case.1 Cheng Decl. ¶ 6; Warden-Hertz Decl. ¶ 7. Any

22 attorney who appears consents to fully represent the immigrant in the proceeding until its

23 conclusion. The attorney cannot withdraw from representation without leave of the immigration

24 court, and that leave is granted only in exceptional circumstances. See Immigration Court

25 Practice Manual, Rule 2.3(d) (“Once an attorney has made an appearance, that attorney has an

26

27 1 The one exception allows for a limited appearance for the purpose of representing a respondent in a custody
proceeding. See Separate Representation for Custody and Bond Proceedings, 80 Fed. Reg. 59,500 (Oct. 1, 2015).

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1 obligation to continue representation until such time as a motion to withdraw or substitute 2 counsel has been granted by the Immigration Court.”);2 see also Cheng Decl. ¶ 9. NWIRP does

3 not have the resources to provide full representation of each immigrant to whom it currently

4 provides limited services. In effect, EOIR’s new application of its compulsory-representation

5 rule will force NWIRP to discontinue providing limited legal services to thousands of individuals

6 in removal proceedings. Cheng Decl. ¶ 6; Warden-Hertz Decl. ¶ 14.

7

The Rule forces NWIRP attorneys to accept a scope of representation beyond what they

8 and their clients have agreed to. As written, EOIR’s also letter casts into doubt whether NWIRP

9 can even consult with pro se persons or screen cases for referral to volunteer attorneys, let alone

10 provide assistance with preparation of applications or motions. This uncertainty means NWIRP

11 must now choose to either abandon most of the services it provides to immigrants in removal

12 proceedings or to continue to provide those services under the imminent threat of disciplinary

13 sanctions. EOIR’s letter has a considerable chilling effect on NWIRP’s activities, impairing its

14 ability to advocate for the statutory and constitutional rights of immigrants.

15

III. ARGUMENT

16 A. 17

Plaintiffs Meet the Standard for Granting Temporary Relief The standard for granting a temporary restraining order is “substantially identical” to the

18 standard for granting a preliminary injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co.,

19 240 F.3d 832, 839 n.7 (9th Cir. 2001). The Court need only find (1) a likelihood of succeed on

20 the merits; (2) a likelihood of irreparable harm if relief is denied; (3) the balance of equities tips

21 in the movant’s favor; and (4) the public interest favors granting relief. See Winter v. Nat’l Res.

22 Def. Council, 555 U.S. 7, 20 (2008). The Ninth Circuit uses a balancing, or “sliding scale,”

23 approach, clarifying that where the balance of equities weighs strongly in favor of the moving

24 party, it may prevail if its claims raise serious legal questions and otherwise meet the remaining

25 factors. See, e.g., Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131–35 (9th Cir.

26

27 2 Available at https://www.justice.gov/sites/default/files/pages/attachments/2016/12/02/
practice_manual.pdf#page=26 (last updated April 11, 2017).

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1 2011). “Under this approach, the elements of the preliminary injunction test are balanced, so that

2 a stronger showing of one element may offset a weaker showing of another.” Id. at 1131–32.

3 B. Plaintiffs Are Likely to Succeed on the Merits Because EOIR’s Compulsory-

Representation Rule is Unconstitutional
4 “The court need not examine [Plaintiffs’] likelihood of success on all of [their] claims,

5 but rather only those claims sufficient to justify the injunctive relief sought.” 3BA Intern. LLC v.

6 Lubahn, No. C10-829RAJ, 2010 WL 2105129, at *4 (W.D. Wash. May 20, 2010). Here,

7 NWIRP is likely to succeed on the merits of its claims because EOIR’s Rule, and its application

8 to NWIRP, violates the First and Tenth Amendments to the United States Constitution.

9

1. EOIR’s Compulsory-Representation Rule Violates the First Amendment

10

Because It Unduly Burdens Plaintiffs’ Right to Free Speech and Petition the

Government
11 The Rule, both on its face and as applied to NWIRP, violates the First Amendment.

12 NWIRP has a well-established First Amendment right to advocate on behalf of immigrants,

13 including the right to speak and associate through the provision of nonprofit legal services.

14 Because the Rule is a content-based restriction and because it targets political speech, it warrants

15 strict scrutiny—a standard it cannot survive. But, even under intermediate scrutiny, the Rule

16 must still be invalidated because it is not narrowly tailored to achieve EOIR’s interest in

17 adopting it.

18

a. Plaintiffs Have a Well-Established First Amendment Right to Speak

19

and Associate through the Provision of Nonprofit Legal Services

20

NWIRP’s right to advise and assist clients and prospective clients in immigration

21 proceedings, free of government interference, is protected by the First Amendment. “Attorneys

22 have rights to speak freely subject only to the government regulating with ‘narrow specificity.’”

23 Conant v. Walters, 309 F.3d 629, 637 (9th Cir. 2002) (citing NAACP v. Button, 371 U.S. 415,

24 433, 438–39 (1963)). “[T]he creation and dissemination of information” in the context of a

25 lawyer-client relationship unquestionably constitutes “speech within the meaning of the First

26 Amendment.” Sorrell v. IMS Health, Inc., 564 U.S. 552, 570 (2011).

27

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1

“The Supreme Court has repeatedly emphasized that counsel have a [First Amendment]

2 right to inform individuals of their rights . . . when they do so as an exercise of political speech

3 without expectation of remuneration.” Jean v. Nelson, 727 F.2d 957, 983 (11th Cir. 1984), aff’d,

4 472 U.S. 846 (1985). For instance, in NAACP v. Button, the Supreme Court invalidated a state

5 restriction on lawyer solicitation that prohibited attorneys from “advis[ing] another [person] that

6 his legal rights have been infringed and refer[ing] him to a particular attorney . . . for assistance.”

7 371 U.S. 415, 434 (1963). Because the regulation burdened an attorney’s right to communicate

8 with a prospective client, the Court struck down the law, holding that the government “may not,

9 under the guise of prohibiting professional misconduct, ignore constitutional rights.” Id. at 439.

10 The Court strongly affirmed constitutional protections for lawyers to “advocat[e] lawful means

11 of vindicating legal rights,” concluding the First Amendment “protects vigorous advocacy,

12 certainly of lawful ends, against governmental intrusion.” Id. at 429, 437. Further, the Court

13 emphasized that the NAACP provided nonprofit legal services—as Plaintiffs do here—as “a

14 form of political expression” by “serving to vindicate the rights of members” of a particular

15 community.” Id. at 429, 431.

16

Likewise, in In re Primus, the Supreme Court again underscored the broad First

17 Amendment protection for pro bono attorneys seeking to vindicate the legal rights of

18 underserved populations. 436 U.S. 412 (1978). The Court held that South Carolina could not

19 punish an attorney for soliciting “a prospective litigant by mail, on behalf of the ACLU,” without

20 violating the First Amendment. Id. at 432. The Court affirmed that the government may “not

21 abridge unnecessarily the associational freedom of nonprofit organizations, or their members,

22 having characteristics like those of the NAACP or the ACLU.” Id. at 439; see also United Mine

23 Workers of Am., Dist. 12 v. Illinois State Bar Ass’n, 389 U.S. 217, 221 (1967) (the Court’s

24 holding in Button is not “narrowly limited” to apply only to “litigation that can be characterized

25 as a form of political expression”). And again in 2001, the Court affirmed that the government

26 may not seek to “prohibit the analysis of certain legal issues” without violating the First

27 Amendment. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 545 (2001) (“LSC”).

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1

EOIR may not evade First Amendment scrutiny here by mischaracterizing the Rule as a

2 restriction on conduct as opposed to speech. In 2010, the Supreme Court categorically rejected

3 the government’s argument that a statutory prohibition on lawyers providing terror organizations

4 “material support” through “specialized knowledge” or “expert advice or assistance” regulated

5 conduct rather than speech. Holder v. Humanitarian Law Project, 561 U.S. 1, 25 (2010)

6 (“HLP”) (rejecting the government’s position as “extreme”). As the Court explained, while the

7 law “may be described as directed at conduct . . . as applied to plaintiffs the conduct triggering

8 coverage under the statute consists of communicating a message.” Id. at 28. “[L]abeling certain

9 verbal or written communications ‘speech’ and others ‘conduct’ is unprincipled and susceptible

10 to manipulation.” Wollschlaeger v. Florida, 848 F.3d 1293, 1308 (11th Cir. 2017) (quoting King

11 v. New Jersey, 767 F.3d 216, 228 (3d Cir. 2014)).

12

Nor can EOIR avoid First Amendment scrutiny by characterizing its Rule as a

13 regulation of the legal profession rather than a restriction on speech. The Supreme Court

14 routinely applies “heightened scrutiny to regulations restricting the speech of professionals.”

15 Wollschlaeger, 848 F.3d at 1310. “Being a member of a regulated profession does not, as the

16 government suggests, result in a surrender of First Amendment rights.” Conant, 309 F.3d at

17 637 (citing Button, 371 U.S. at 433). “[I]t is no answer to the constitutional claims . . . to say

18 that the purpose of these regulations was merely to insure high professional standards and not

19 to curtail free expression.” Button, 371 U.S. at 438–39.

20

EOIR’s compulsory-representation rule infringes the same First Amendment rights

21 recognized by the Supreme Court in Button, Primus, and LSC. The First Amendment “protects

22 vigorous advocacy, certainly of lawful ends, against governmental intrusion,” particularly when

23 offered on a pro bono basis on behalf of an “unpopular minority.” Button, 371 U.S. at 429, 434,

24 441. NWIRP exists to provide pro bono advocacy for the rights of an “unpopular minority”—

25 immigrants in removal proceedings. And like the NAACP and ACLU, the services NWIRP

26 provides to individual clients are part of the organization’s broader political efforts on behalf of

27 immigrants’ rights, which implicates the right to free speech, the right to free association, and the

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1 right to petition the government for redress.3 Moreover, by constraining NWIRP’s ability to

2 advise or assist persons in immigration proceedings, the compulsory-representation rule limits

3 NWIRP’s right to provide “vigorous advocacy . . . against governmental intrusion”—which is

4 “even more problematic because . . . the client is unlikely to find other counsel.” LSC, 531 U.S.

5 at 546. As a result, EOIR’s Rule is subject to the “exacting scrutiny applicable to limitations on

6 core First Amendment rights.” Primus, 436 U.S. at 432 (quoting Buckley v. Valeo, 424 U.S. 1,

7 44–45 (1976)).

8

b. EOIR’s Rule is Subject to Strict Scrutiny Because It Imposes a

Content-Based Restriction and Targets Political Speech
9 Because EOIR’s compulsory-representation rule is a content-based restriction, it must be

10 analyzed under strict scrutiny. A content-based law is one that “cannot be justified without

11 reference to the content of the regulated speech.” Reed v. Town of Gilbert, Ariz., 135 S. Ct.

12 2218, 2227 (2015). “[A] speech regulation targeted at specific subject matter is content based

13 even if it does not discriminate among viewpoints within that subject matter.” Id. at 2229–30.

14 And, as the Supreme Court confirmed in HLP, government conduct that restricts the content of

15 attorney advice is subject to strict scrutiny. 561 U.S. at 27 (the law “regulates speech on the

16 basis of its content [because] Plaintiffs want to speak to [terrorist organizations], and whether

17 they may do so . . . depends on what they say.”). The Rule here singles out a certain form of

18 speech on a specific subject matter: legal advice about immigration law to unrepresented

19 immigrants in removal proceedings. Moreover, EOIR cannot measure an attorney’s compliance

20 with the Rule unless it examines content of the speech, as it applies in those instances where an

21 attorney has rendered “legal advice.” See 8 C.F.R. §§ 1001.1(k), 1003.102(t). To the extent

22 NWIRP intends to speak to unrepresented immigrants who are seeking legal advice, and wants to

23 do so without triggering the compulsory-representation rule, “whether they may do so . . .

24

25

26 3 See Button, 371 U.S. at 428–29 (“[T]he activities of the NAACP, its affiliates and legal staff shown on this
record are modes of expression and association protected by the First and Fourteenth Amendments . . . .”); id. at
27 430 (“[U]nder the conditions of modern government, litigation may well be the sole practicable avenue open to a
minority to petition for redress of grievances.”).

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1 depends on what they say.” HLP, 561 U.S. at 27 (2010). The Rule is therefore a content-based

2 restriction and subject to strict scrutiny.

3

Strict scrutiny is also warranted in this case because EOIR’s Rule targets political

4 speech on issues of public concern. The Supreme Court “has frequently reaffirmed that speech

5 on public issues occupies the highest rung of the hierarchy of First Amendment values, and is

6 entitled to special protection.” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S.

7 749, 759 (1985) (internal citations and quotations omitted). “Speech deals with matters of public

8 concern when it can be fairly considered as relating to any matter of political, social, or other

9 concern to the community . . . or when it is . . . a subject of general interest and of value and

10 concern to the public.” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (citations and quotations

11 omitted). Informing immigrant communities of their legal rights without expectation of

12 compensation is “an exercise of political speech.” See Jean, 727 F.2d at 983. And when a “law

13 burdens core political speech,” the Supreme Court requires courts to apply strict scrutiny.

14 McIntyre, 514 U.S. at 347.

15

c. The Rule Cannot Survive Strict Scrutiny

16

EOIR’s compulsory-representation rule cannot withstand strict scrutiny. EOIR cannot

17 articulate a compelling interest served by applying the compulsory-representation rule to

18 NWIRP. And, both on its face and as applied to NWIRP, the Rule is not narrowly tailored to

19 serve that compelling government interest.

20

(1) EOIR Cannot Articulate a Compelling Interest in Enforcing

the Compulsory-Representation Rule Against NWIRP
21 In enacting the Rule, EOIR explained that it wanted “to advance the level of

22 professional conduct in immigration matters and foster increased transparency in the client-

23 practitioner relationship.” 73 Fed. Reg. 76,914. EOIR sought to ensure that “[a]ny practitioner

24 who accepts responsibility for rendering immigration-related services to a client [will] be held

25 accountable for his or her own actions, including the loss of the privilege of practice before

26 EOIR, when such conduct fails to meet the minimum standards of professional conduct . . . .”

27

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1 Therefore, ostensibly to ensure it could enforce those standards against an attorney who provided

2 substandard assistance, EOIR required practitioners to enter a notice of appearance and identify

3 themselves as representing a particular immigrant in a pending proceeding. Id.

4

NWIRP does not dispute that, on its face, EOIR’s professed interest is compelling. In

5 fact, NWIRP has sought to further this interest and has even assisted EOIR in doing so. NWIRP

6 received funding from the Washington State Attorney General’s Office to implement a special

7 project addressing “notario fraud”—the unauthorized practice of law by “immigration 8 consultants” who charge immigrants and deliver substandard services, or no services at all.4

9 Compl. ¶ 3.12. NWIRP informed EOIR of the tools it uses to combat notario fraud, and has

10 worked with EOIR on coordinated efforts to combat such fraud. Id.

11

In this case, however, NWIRP asserts both facial and as-applied challenges to the Rule.

12 This means EOIR must also articulate not only a compelling interest in enacting the Rule in the

13 first place, but also a compelling interest in applying the Rule to NWIRP in these particular

14 circumstances. See In re Primus, 436 U.S. at 434–35 (an attorney “may not be disciplined unless

15 her activity in fact involved the type of misconduct” the rule was intended to prevent, and the

16 record was devoid of evidence that such misconduct “actually occurred” in her case). Here,

17 EOIR cannot articulate any compelling interest in enforcing the compulsory-representation rule

18 against NWIRP. None of the problems EOIR allegedly seeks to prevent are present here.

19 EOIR’s cease-and-desist letter does not suggest that NWIRP’s legal services at issue here—

20 assisting two immigrants with preparing motions—were deficient in any respect. EOIR has

21 never alleged NWIRP has “fail[ed] to meet the minimum standards of professional conduct”

22 established by EOIR. 73 Fed. Reg. 76,914. And, more broadly, EOIR’s purported interest in

23 holding attorneys accountable for misconduct and fraud is not served by barring nonprofit legal

24 organizations (especially those, like NWIRP, that have been accredited by EOIR and placed on

25 its pro bono referral lists, see Warden-Hertz Decl. ¶ 4) from providing limited legal services to

26

27 4 See ABA, Fight Notario Fraud, http://www.americanbar.org/groups/public_services/
immigration/projects_initiatives/fightnotariofraud.html.

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1 indigent person for little or no compensation, especially when those organizations identify

2 themselves on the forms, motions, briefs, and applications they assist in preparing.

3

EOIR cannot articulate any compelling interest in enforcing the Rule against NWIRP.

4

(2) The Rule Is Not Narrowly Tailored to Achieve EOIR’s

Purported Interest 5
“[S]trict scrutiny requires a direct rather than approximate fit of means to ends.” Hunter ex

6 rel. Brandt v. Regents of Univ. of Cal., 190 F.3d 1061, 1077 (9th Cir. 1999) (internal quotation marks

7 omitted). Even if the interest expressed by EOIR were sufficiently compelling, the means used to

8 achieve those interests—the Rule—is not narrowly tailored to achieve that interest, for at least

9 four reasons:

10 First, the Rule imposes an all-or-nothing paradigm of client representation that has no

11 logical bearing on EOIR’s professed interest in reducing attorney misconduct. If EOIR’s interest

12 is to hold providers accountable when they fail to meet minimum standards of professional

13 conduct, a rule requiring them simply to identify themselves in a proceeding is sufficient to

14 satisfy that interest. Compelling them to accept full representation of the client, however, is an

15 additional and entirely unnecessary burden that does not further EOIR’s professed interest. In

16 fact, if anything, the compulsory-representation requirement is likely to increase attorney

17 misconduct by overburdening attorneys with an excessive caseload they cannot reasonably and

18 diligently manage.

19 Second, the Rule triggers an appearance requirement based on preliminary contacts

20 between a lawyer and a client (or even a prospective client)—contacts that do not implicate

21 EOIR’s concern about minimum standards of professional conduct. For instance, NWIRP

22 frequently screens potential clients, during which NWIRP gathers information necessary to

23 provide or refer services based on the individual’s needs. Compl. ¶¶ 3.1, 3.2, 3.21(b). Almost

24 anything a lawyer says during that process could be construed as “advice” or an “auxiliary

25 activity” related to immigration proceedings—even if NWIRP ultimately declines to provide

26 representation or assistance. Additionally, a NWIRP lawyer may provide general information

27

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1 about the immigration court system, identify potential avenues for relief, identify necessary

2 forms for the individual to complete, inform a client about upcoming deadlines, and advise the

3 client regarding how to request a custody hearing. Compl. ¶ 3.21. This is similarly true where

4 NWIRP screens individuals and completes the necessary paperwork for purposes of referring

5 their cases to pro bono attorneys. None of these services constitute an agreement to represent a

6 client sufficient to trigger professional-conduct standards applicable to an EOIR proceeding, but

7 each might nonetheless trigger EOIR’s compulsory-representation rule. Likewise, NWIRP’s

8 community workshops and KYR presentations may also be subject to the Rule. NWIRP does

9 not automatically form an attorney-client relationship with individuals who attend these

10 community events, but almost every word spoken by a NWIRP attorney during the event could

11 be construed as “advice,” and the presentation itself may be an “auxiliary activity,” especially if

12 NWIRP provides assistance in filling out application forms. But these community events do not

13 implicate EOIR’s interest in establishing minimal standards of professional conduct in EOIR

14 proceedings.

15

Third, the Rule is impermissibly vague and overbroad. “The vagueness of [any

16 content-based regulation of speech] raises special First Amendment concerns because of its

17 obvious chilling effect on free speech.” Reno v. ACLU, 521 U.S. 844, 871–72 (1997).

18 Likewise, any regulation that impacts speech may be invalidated as overbroad “in cases where

19 the [regulation] sweeps to broadly, penalizing a substantial amount of speech that is

20 constitutionally protected.” Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123, 130

21 (1992). The Court in Button described the extraordinary threat created by a vague and

22 overbroad restriction on attorney speech and advocacy:

23

The objectionable quality of vagueness and overbreadth [depends] .

. . upon the danger of tolerating, in the area of First Amendment

24

freedoms, the existence of a penal statute susceptible of sweeping

and improper application. These freedoms are delicate and

25

vulnerable, as well as supremely precious in our society. The threat

of sanctions may deter their exercise almost as potently as the actual

26

application of sanctions. Because First Amendment freedoms need

breathing space to survive, government may regulate in the area

27

only with narrow specificity.

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1 Button, 371 U.S. at 432–33. An ambiguous law that leaves unclear whether certain attorney

2 speech is permissible cannot be tolerated. See id. at 432.

3

The Rule’s definition of “preparation” is vague because it does not sufficiently define

4 the scope of conduct that triggers the compulsory-representation requirement. “Preparation,” for

5 example, requires the giving of “advice” and “auxiliary activities,” but neither of these terms is

6 defined. Some or all of the above examples of services NWIRP provides could fall within the

7 definition. The Rule—and EOIR’s recent application of it to NWIRP—provide no

8 constitutionally sufficient guidance from which NWIRP can fairly determine what conduct is and

9 is not burdened by the Rule.

10

The Rule is also overbroad because it “sweeps too broadly” and burdens constitutionally

11 protected speech. Forsyth Cnty., 505 U.S. at 130. NWIRP’s community workshops and KYR

12 presentations are two of the most apparent examples. “[W]here a professional is engaged in

13 public dialogue, First Amendment protection is at its greatest.” Pickup v. Brown, 740 F.3d 1208,

14 1227–28 (9th Cir. 2014). “The right of free speech, the right to teach and the right of assembly

15 are … fundamental rights.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 336 n.1 (1995).

16 The Rule, however, will curtail, if not prevent, NWIRP from engaging in these constitutionally

17 protected activities.

18

Fourth, the Rule distorts the traditional attorney-client relationship, the practical effect

19 of which is to limit legal advocacy for unrepresented, indigent immigrants. On this basis alone,

20 the Rule violates the First Amendment and must be invalidated.

21

In LSC, the Court compared a restraint on lawyer speech to cases where “the

22 Government seeks to use an existing medium of expression and to control it . . . in ways which

23 distort its usual functioning.” 531 U.S. at 543. “Where the government uses or attempts to

24 regulate a particular medium,” courts must examine the medium’s “accepted usage in

25 determining whether a particular restriction on speech is necessary for the program’s purposes

26 and limitations.” Id. The Court ultimately invalidated the speech restraint because “[r]estricting

27

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1 LSC attorneys in advising their clients and in presenting arguments and analyses to the courts

2 distorts the legal system by altering the traditional role of the attorneys.” Id. at 544.

3

EOIR’s Rule similarly distorts the legal system and alters the traditional role of

4 attorneys. The right of attorneys and clients to jointly define and limit the scope of the

5 representation is a crucial aspect of the attorney-client relationship. See Wash. R. Prof. Conduct

6 (“WRPC”) 1.2(c) (“A lawyer may limit the scope of the representation if the limitation is

7 reasonable under the circumstances and the client gives informed consent.”) The “rule affords

8 the lawyer and client substantial latitude to limit the representation.” Id., cmt. 7. Like in LSC,

9 the Rule here inhibits the “proper functioning” of the attorney-client relationship by imposing a

10 “serious and fundamental restriction on advocacy of attorneys.” LSC, 531 U.S. at 544.

11

The regulation also may force lawyers to violate their ethical duty of confidentiality.

12 Clients may not wish to disclose their identities or the fact they have received legal assistance,

13 and lawyers must honor that: “A lawyer shall not reveal information relating to the

14 representation of a client unless the client gives informed consent.” WRPC 1.6(a). “If by

15 compelling an individual to reveal information that he would rather keep confidential the state

16 chills the individual’s ability to engage in protected speech, the state has infringed the

17 individual’s First Amendment right in the protected speech, unless it provides a sufficient

18 justification for the required disclosure.” Denius v. Dunlap, 209 F.3d 944, 954–55 (7th Cir.

19 2000) (citations omitted).

20

In sum, the Rule is not narrowly tailored to achieve EOIR’s interest and it therefore fails

21 strict scrutiny.

22

d. The Rule Cannot Survive Intermediate Scrutiny

23

Even if the Court reviews the Rule under intermediate scrutiny, the Rule cannot survive.

24 Under intermediate scrutiny, the regulation must be “narrowly tailored to serve a significant

25 governmental interest and . . . leave open ample alternative channels for communication of the

26 information.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

27

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1

For the same reasons the Rule does not serve a “compelling” EOIR interest, it also fails

2 to serve a “significant” interest. As explained above, the Rule is not narrowly tailored to serve

3 EOIR’s interest. Moreover, the regulation does not “leave open ample alternative channels for

4 communication of the information.” Id. The only channel left open by the regulation is for an

5 attorney to commit in advance to full representation of a client before she can provide any

6 meaningful legal assistance. This single channel will greatly curtail NWIRP’s ability to

7 associate and express through advocacy by broadly reaching the immigrant community.

8

*

*

*

9

“Lawmakers may no more silence unwanted speech by burdening its utterance than by

10 censoring its content.” Sorrell v. IMS Health Inc., 564 U.S. 552, 566 (2011) (citations omitted).

11 But that is exactly what EOIR has chosen to do here. EOIR’s compulsory-representation rule

12 violates the First Amendment and should be invalidated.

13

2. EOIR’s Compulsory-Representation Rule Violates the Tenth Amendment

Because It Interferes in the States’ Power to Regulate Lawyer Conduct and

14

Representation

15

“The powers not delegated to the United States by the Constitution, nor prohibited by it

16 to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X.

17 The Tenth Amendment “is a mere affirmation of what, upon any just reasoning, is a necessary

18 rule of interpreting the constitution[:] . . . that what is not conferred, is withheld, and belongs to

19 the state authorities.” New York v. United States, 505 U.S. 144, 156 (1992). Individuals and

20 private organizations—like NWIRP here—have standing to bring Tenth Amendment claims so

21 long as their “injury [stems] from governmental action taken in excess of the authority that

22 federalism defines.” Bond v. United States, 564 U.S. 211, 220 (2011).

23

a. The Tenth Amendment Vests States with the Exclusive Right to

Regulate Lawyer Conduct Outside of Federal Proceedings
24 The Tenth Amendment unequivocally vests “the right to control and regulate the

25 granting of license to practice law” in the States, not the federal government. Bradwell v. People

26 of State of Illinois, 83 U.S. (16 Wall.) 130, 139 (1872). “Since the founding of the Republic, the

27

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1 licensing and regulation of lawyers has been left exclusively to the States and the District of

2 Columbia within their respective jurisdictions.” Leis v. Flynt, 439 U.S. 438, 442 (1979)

3 (emphasis added). “The interest of the States in regulating lawyers is especially great since

4 lawyers are essential to the primary governmental function of administering justice, and have

5 historically been ‘officers of the courts.’” Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 460

6 (1978) (quoting Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975)). To that end, the

7 “States prescribe the qualifications for admission to practice and the standards of professional

8 conduct. They also are responsible for the discipline of lawyers.” Leis, 439 U.S. at 700–01. The

9 Tenth Amendment’s limitations on federal power are implicated whenever a federal agency tries

10 to regulate the practice of law. See Sperry v. Florida, 373 U.S. 379 (1963).

11

Federal agencies have inherent powers to regulate the conduct of attorneys who appear

12 and practice before them, but that inherent power extends only to the matter or case before the

13 particular agency or court in which the attorney has appeared. Federal agencies do not have the

14 broad power to regulate an attorney’s professional life and practice of law outside the agency

15 proceeding. The Supreme Court’s Sperry decision recognizes the constitutionally limited role

16 federal agencies perform in regulating lawyer conduct. In Sperry, the Court reversed an

17 injunction prohibiting unauthorized practice of law by a Florida patent agent who was not

18 admitted to the Florida bar. 373 U.S. at 404. Nonetheless, the Court also reaffirmed that, as a

19 general principle, the regulation of the practice of law is “otherwise a matter within the control of

20 the State.” Id. at 403–04.

21

b. EOIR’s Compulsory-Representation Rule Encroaches Upon

Washington State’s Sovereign Power to Regulate Lawyer Conduct
22 The Rule encroaches upon the professional life and practice of law by NWIRP’s

23 attorneys, well outside the scope of any specific EOIR-related proceeding. It intrudes upon the

24 sovereign power of the State of Washington to regulate lawyer conduct and the practice of law

25 within its borders, and it directly conflicts with the obligations the State imposes on its attorneys.

26

27

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1

The Rule compels an attorney to appear and commit in advance to full representation of

2 an immigrant once the attorney has engaged in either “practice” or “preparation,” as the Rule

3 defines those terms. Practice includes “the preparation or filing of any brief or other document,

4 paper, application, or petition” on behalf of the immigrant. 8 C.F.R. § 1001.1(i) (emphasis

5 added). Thus, a lawyer who merely assists a client by submitting a filing to EOIR—even if the

6 lawyer played no role in preparing the filing—has engaged in “practice.” The definition of

7 “preparation” is even broader. Preparation means “the study of the facts of a case and the

8 applicable laws, coupled with the giving of advice and auxiliary activities . . . .” § 1001.1(k).

9 The Rule does not define “auxiliary activities,” but includes within its scope the “incidental

10 preparation of papers,” id.—a ubiquitous task common to nearly every legal engagement.

11

Under the Rule’s definition of “preparation,” a short consultation in which an attorney

12 offers general advice to an unrepresented immigrant about court procedures probably constitutes

13 “preparation,” requiring the attorney to enter an appearance. Indeed, this obligation would

14 almost certainly be triggered during every initial screening of a prospective client in which the

15 attorney offers any legal advice—long before the attorney has a full understanding of the facts

16 and can make an informed decision about whether to commit the resources necessary to offer full

17 representation. This is especially troubling because once an attorney has appeared in an EOIR

18 proceeding, she cannot withdraw without leave of the court, which is granted only in exceptional

19 circumstances. See Immigration Court Practice Manual, Rule 2.3(d); Cheng Decl. ¶ 9. Thus,

20 when an attorney enters an appearance, she is committing to fully represent the client in the

21 proceedings from that point forward for the entire duration of the case. Faced with the

22 significant burden this Rule imposes on those attorneys who engage in mere “practice” or

23 “preparation,” many attorneys will understandably choose to sharply curtail the services they

24 offer and the communications they have with unrepresented immigrants.

25

EOIR’s Rule impermissibly encroaches upon Washington State’s sovereign interest in

26 regulating lawyer conduct within its borders, and it creates conflicting ethical and legal duties for

27 NWIRP’s attorneys, in at least three different ways:

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1

First, under the Tenth Amendment, EOIR has no authority to regulate conduct that

2 occurs entirely within an attorney’s ordinary practice of law outside of a particular agency

3 proceeding. There are an unimaginable (and ill-defined) set of circumstances that may constitute

4 “preparation” under this definition, none of which involve an attorney’s participation in EOIR

5 proceedings. For example, NWIRP attorneys participate in community meetings and group

6 assistance events, where they might present legal advice on a particular topic and answer

7 questions involving removal proceedings. Compl. ¶ 3.3. EOIR’s definition of “preparation” is

8 so broad that it would even, perversely, include individual screenings in which an NWIRP

9 lawyer advises a prospective client that she has no legal or factual basis for bringing or

10 challenging a proceeding; thus, after determining that the individual case does not merit the use

11 of NWIRP’s scarce resources, the NWIRP lawyer would then be compelled, under EOIR’s 12 regulations, to commit to that same representation.5

13

Second, the compulsory-representation requirement conflicts with Washington Rule of

14 Professional Conduct 1.2 because it mandates an all-or-nothing approach to the lawyer-client

15 relationship. Rule 1.2 specifies that “a lawyer shall abide by a client’s decisions concerning the

16 objectives of representation,” and that a “lawyer may limit the scope of the representation if the

17 limitation is reasonable under the circumstances and the client gives informed consent,” WRPC

18 1.2(a), (c). As the comments to Rule 1.2 reflect, “the client [has] the ultimate authority to

19 determine the purposes to be served by legal representation,” WRPC 1.2, cmt. 1. Moreover,

20 limited representation may ultimately serve the best interests of both the lawyer and the client:

21 22 23 24 Id., cmt. 7.

If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation.

25

26
5 The regulation also does not take into account those situations, however rare, when an immigrant may decline an
27 attorney’s services—once an attorney has offered legal advice, under EOIR’s Rule, the attorney is obligated to
enter an appearance whether the client wants the attorney’s services or not.

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1

The sensible approach Washington has taken to adopt and encourage (where

2 appropriate) the right of attorneys and clients to enter into limited representation arrangements is

3 not unique to this state. Indeed, this same professional-conduct rule and its comments appear in

4 the Model Rules of Professional Conduct adopted by the American Bar Association, which have

5 now been adopted in 49 states and the District of Columbia. EOIR’s Rule, however, overrides

6 Washington’s decision to permit limited representation, and in so doing, it violates Washington’s

7 sovereign right to regulate the conduct of its lawyers.

8

Third, the compulsory-representation requirement conflicts with Washington Rule of

9 Professional Conduct 1.6 because it requires an attorney to disclose to the government the fact

10 that a particular individual has received legal assistance, even in those situations where the client

11 may not want that assistance disclosed. Rule 1.6 prohibits a lawyer from “reveal[ing]

12 information relating to the representation of a client.” WRPC 1.6(a). “A fundamental principle

13 in the client-lawyer relationship is that, in the absence of the client’s informed consent, the

14 lawyer must not reveal information relating to the representation.” WRPC 1.6, cmt. 2. By

15 imposing strict confidentiality on a client (or even a prospective client’s) communication with

16 lawyer, “[t]he client is thereby encouraged to seek legal assistance and to communicate fully and

17 frankly with the lawyer even as to embarrassing or legally damaging subject matter.” Id. This

18 ironclad guarantee of confidentiality “applies not only to matters communicated in confidence by

19 the client but also to all information relating to the representation, whatever its source.” Id., cmt

20 3. “The phrase ‘information relating to the representation’ should be interpreted broadly [and]

21 includes, but is not necessarily limited to … information gained in the professional relationship

22 that the client has requested be held inviolate or the disclosure of which would be embarrassing

23 or would be likely to be detrimental to the client.” Id., cmt. 21. In fact, the ABA has issued an

24 opinion specifically authorizing the limited representation prohibited by the EOIR’s Rule: “A

25 lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help

26 prepare written submissions without disclosing or ensuring the disclosures of the nature or

27 extent of such assistance.” ABA Opinion 07-446 (May 5, 2007) (emphasis added). To the

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1 extent EOIR’s Rule compels attorneys to disclose a client’s identity and the fact of representation

2 before NWIRP has agreed to provide full representation, it impermissibly intrudes upon

3 Washington’s sovereign power to require lawyers to maintain client confidences.

4

*

*

*

5

The State of Washington, through its supreme court’s sovereign exercise of judicial

6 power, has established requirements for and regulates the licensing and conduct of lawyers

7 within this state. The Rules of Professional Conduct are one result of the exercise of that power.

8 These Rules define the professional obligations of attorneys that practice within this State, and

9 they impose inviolable duties that govern the practice of law.

10

EOIR cannot, under the guise of controlling administrative proceedings before it,

11 arrogate to itself the authority to generally regulate the interactions and agreements between

12 lawyers and their clients, particularly when the activities it seeks to regulate are unconnected

13 with any specific agency proceeding. Unless and until the attorney seeks to appear before the

14 agency and files the notice of appearance, the attorney has not consented to appear before the

15 agency in that proceeding. EOIR cannot use threat of lawyer disciplinary regulations to compel

16 the lawyer to undertake greater representation than the lawyer and client have bargained for, nor

17 can it forbid the lawyer and client from agreeing to discrete services outside of the proceeding.

18 EOIR’s compulsory-representation rule violates the Tenth Amendment.

19 C. Plaintiffs Are Suffering, and Will Continue to Suffer, Immediate and Irreparable Harm from EOIR’s Conduct
20 If the Court declines to intervene, Plaintiffs have and will continue to suffer immediate
21 irreparable harm. “It is well established that the deprivation of constitutional rights
22 ‘unquestionably constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th
23 Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). This is particularly true of “[t]he
24 loss of First Amendment freedoms . . . [as] [t]he timeliness of political speech is particularly
25 important.” San Diego Comm. Against Registration & the Draft (Card) v. Governing Bd. of
26 Grossmont Union High Sch. Dist., 790 F.2d 1471, 1473 (9th Cir. 1986). Although EOIR’s
27

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1 actions deprive NWIRP of fundamental constitutional rights—and this fact alone would

2 constitute sufficient irreparable injury to warrant injunctive relief—the harm caused by EOIR’s

3 actions reaches far beyond NWIRP.

4

EOIR’s order that NWIRP “cease and desist from representing [persons in removal

5 proceedings]” absent a notice of appearance prevents NWIRP attorneys from advocating on

6 behalf of unrepresented persons unless NWIRP can commit in advance to assuming full

7 representation of their case before the immigration court or the Board of Immigration Appeals.

8 Despite more than 1,000 unrepresented people in removal proceedings in Seattle and Tacoma

9 immigration courts, EOIR’s cease-and-desist letter has already forced NWIRP forced to curtail

10 the limited legal services it provides to the hundreds of unrepresented individuals in removal

11 proceedings. Cheng Decl. ¶ 16. NWIRP is the only organization listed in EOIR’s List of Pro

12 Bono Legal Services that provides assistance to adults facing removal proceedings in Tacoma

13 and Seattle. Warden-Hertz Decl. ¶ 4. EOIR’s actions are depriving or will deprive hundreds of

14 people from receiving any legal assistance in their removal proceedings.

15

The cease-and-desist order dramatically impacts NWIRP’s ability to carry out its

16 mission of promoting the statutory and constitutional rights of immigrants in removal

17 proceedings. Cheng Decl. ¶ 11; Warden-Hertz Decl. ¶ 15. For example, following EOIR’s

18 letter, four asylum seekers have already sought pro se assistance at NWIRP. Cheng Decl. ¶ 16.

19 All of them needed to file their asylum applications with the immigration court within several

20 days in order to meet a statutory one-year deadline. Id.; see Compl. ¶ 3.21(d). EOIR’s letter,

21 however, prevents NWIRP from fully analyzing the facts of these individuals’ cases and

22 ensuring the proper completion of their applications. EOIR’s letter also prevents NWIRP from

23 performing simple but critical tasks such as physically submitting an individual’s application for

24 asylum at the Seattle immigration court, which is located only a few blocks away from NWIRP’s

25 office. One of the above-mentioned asylum seekers, who resides two hours away from Seattle,

26 was unable to arrive at immigration court on his own before the court closed; consequently, he

27 will have to expend significant resources to return to Seattle in order to file his application.

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1 Cheng Decl. ¶ 16. Yet another example of the harmed caused by EOIR’s cease-and-desist letter

2 is an individual who requested NWIRP’s help in filing a motion to change venue. Cheng Decl. ¶

3 9; see Compl. ¶ 3.21(g). While EOIR publishes a template motion and self-help instructions on

4 its website, even completing the template requires individuals to enter pleadings to their charges

5 of removability and indicate the forms of relief they intend to seek, Cheng Decl. ¶ 16—tasks that

6 necessarily entail legal and factual analysis, which NWIRP cannot perform without either

7 violating EOIR’s cease-and-desist letter or committing to full representation.

8

Further, NWIRP’s inability to provide limited pro se assistance translates into

9 irreparable harm for unrepresented individuals in proceedings before the Seattle and Tacoma

10 immigration courts. See Cheng Decl. ¶¶ 12-15 (detailing the consequences faced by indigent

11 individuals for failure to properly file applications for relief and key procedural motions);

12 Warden-Hertz Decl. ¶¶ 9-11 (same). The harm is particularly pronounced for the vast numbers

13 of unrepresented immigrants in detention, who face significant challenges to obtaining legal

14 representation or evidentiary support for their cases. See Warden-Hertz Decl. ¶ 9 (describing

15 obstacles faced by immigrant detainees in establishing their eligibility for relief); Ingrid Eagly &

16 Steven Shafer, Special Report: Access to Counsel in Immigration Court, Am. Imm. Council,

17 (Sept. 2016), at 6, available at https://www.americanimmigrationcouncil.org/research/access-

18 counsel-immigration-court (last accessed May 4, 2017) (“[I]n the immigration system

19 noncitizens can be transferred to detention centers located a great distance from where they

20 reside or were apprehended. This means that they are far from their families, lawyers, and the

21 evidence they need to support their cases. Furthermore, many detention facilities are located in

22 remote areas.”); Moncrieffe v. Holder, 133 S. Ct. 1678, 1690 (2013) ( “[D]uring removal

23 proceedings noncitizens are not guaranteed legal representation and are often subject to

24 mandatory detention, § 1226(c)(1)(B), where they have little ability to collect evidence.”).

25

EOIR’s constitutional violations will continue to cause irreparable harm unless and until

26 the Court enters injunctive relief.

27

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D. 1

The Balance of Equities and Public Interest Strongly Favor Immediate Relief In balancing the equities, the Court must consider “‘the competing claims of injury and

2 must consider the effect on each party of the granting or withholding of the requested relief.”

3 Winter, 555 U.S. at 24 (internal quotation omitted); see also Univ. of Haw. Prof. Assembly v.

4 Cayetano, 183 F.3d 1096, 1108 (9th Cir. 1999) (to determine which way the balance of the

5 hardships tips, a court must identify the possible harm caused by the preliminary injunction

6 against the possibility of the harm caused by not issuing it). Since this case involves the

7 government, the balance-of-equities factor merges with the fourth factor, public interest. Drakes Bay

8 Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2013).

9 Here, these factors weigh strongly in favor of granting preliminary relief. “It is always

10 in the public interest to prevent the violation of a party’s constitutional rights.” Melendres v.

11 Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012); see also Small v. Avanti Health Sys., LLC, 661 F.3d

12 1180, 1197 (9th Cir. 2011) (“[T]he public interest favors applying federal law correctly.”); cf.

13 Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005) (“Generally, public interest concerns

14 are implicated when a constitutional right has been violated, because all citizens have a stake in

15 upholding the Constitution.”). NWIRP has shown ongoing and irreparable harm caused by

16 EOIR’s Rule and its cease-and-desist order, and it has illustrated how enforcement of that order

17 against NWIRP does absolutely nothing to further EOIR’s interest in promoting minimal

18 standards of professional conduct for attorneys in EOIR proceedings.

19

IV. CONCLUSION
20 For the last thirty years, NWIRP has advocated for low-income immigrants in

21 Washington by providing limited legal services to pro se persons in removal proceedings.

22 Relying on a nine-year-old rule governing attorney misconduct, EOIR has now suddenly

23 ordered NWIRP to “cease and desist” providing such services. EOIR has violated NWIRP’s

24 constitutional rights. NWIRP respectfully asks this Court to grant a temporary restraining

25 order, enjoining EOIR from further enforcing its compulsory-representation rule until such time

26 as the Court can further consider the merits of NWIRP’s claims.

27

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1

DATED this 8th day of May, 2017.

2

DAVIS WRIGHT TREMAINE LLP

3

Attorneys for Northwest Immigrant Rights Project

4

By s/ James Harlan Corning

Michele Radosevich, WSBA #24282

5

Jaime Drozd Allen, WSBA #35742

James Harlan Corning, WSBA #45177

6

Robert E. Miller, WSBA #46507

Laura-Lee Williams, WSBA #51358

7

1201 Third Avenue, Suite 2200

Seattle, WA 98101-3045

8

Telephone: (206) 622-3150

Fax: (206) 757-7700

9

E-mail: micheleradosevich@dwt.com

jaimeallen@dwt.com

10

jamescorning@dwt.com

robertmiller@dwt.com

11

lauraleewilliams@dwt.com

12

NORTHWEST IMMIGRANT RIGHTS

13

PROJECT

Matt Adams, WSBA #28287

14

Glenda M. Aldana Madrid, WSBA # 46987

Leila Kang, WSBA #48048

15

615 2nd Avenue, Suite 400

Seattle, WA 98104-2244

16

Phone: (206) 957-8611

Fax: (206) 587-4025

17

E-mail: matt@nwirp.org

glenda@nwirp.org

18

leila@nwirp.org

19

20

21

22

23

24

25

26

27

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1

CERTIFICATE OF SERVICE

2

I certify that on May 8, 2017, I caused the following documents:

3

1. Complaint for Declaratory and Injunctive Relief, with Exhibit

4

2. Civil Cover Sheet

5

3. Motion for Temporary Restraining Order

6

4. [Proposed] Temporary Restraining Order

7

5. Declaration of Timothy Warden-Hertz

8

6. Declaration of Yuk Man Maggie Cheng

9 to be served by hand delivery, at or near the time they were filed with the Court, on the

10 following:

11

United States Attorney’s Office

12

Western District of Washington

700 Stewart Street, Suite 5220

13

Seattle, WA 98101-1271

14 Declared under penalty of perjury under the laws of the State of Washington this 8th day
15 of May, 2017, in Seattle, Washington.
16

17

By s/ James Harlan Corning

James Harlan Corning, WSBA #45177

18

19

20

21

22

23

24

25

26

27

CERTIFICATE OF SERVICE (Case No. 2:17-cv-00716)

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1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

10 NORTHWEST IMMIGRANT RIGHTS
PROJECT (“NWIRP”), a nonprofit Washington 11 public benefit corporation; and YUK MAN
MAGGIE CHENG, an individual, 12
Plaintiffs, 13
v. 14
JEFFERSON B. SESSIONS III, in his official 15 capacity as Attorney General of the United
States; UNITED STATES DEPARTMENT OF 16 JUSTICE; EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; JUAN OSUNA, in 17 his official capacity as Director of the Executive
Office for Immigration Review; and JENNIFER 18 BARNES, in her official capacity as
Disciplinary Counsel for the Executive Office 19 for Immigration Review,

No. 2:17-cv-00716
[PROPOSED] TEMPORARY RESTRAINING ORDER

20

Defendants.

21 THIS MATTER comes before the Court on Plaintiffs Northwest Immigrant Rights
22 Project (“NWIRP”) and Yuk Man Maggie Cheng’s Motion for a Temporary Restraining Order.
23 Having considered the motion, all of the parties’ submissions related to motion, the Complaint,
24 the relevant portions of the record, and the applicable law, the Court ORDERS as follows:
25 1. Plaintiffs’ Motion for a Temporary Restraining Order (Dkt. __) is GRANTED.
26

27

[PROPOSED] TEMPORARY RESTRAINING ORDER (Case No. 2:17-cv-00716) – 1
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1

2. Defendants Jefferson B. Sessions III, the United States Department of Justice,

2 the Executive Office for Immigration Review, Juan Osuna, and Jennifer Barnes, and all of their

3 officers, agents, servants, employees, attorneys, successors, assigns, and persons acting in

4 concert or participation with them are hereby ENJOINED and RESTRAINED from

5

(a) Enforcing the cease-and-desist letter, dated April 5, 2017, from Defendant

6

Barnes and EOIR’s Office of General Counsel to NWIRP; and

7

(b) Enforcing or threatening to enforce 8 C.F.R. § 1003.102(t) against Plaintiffs

8

and all other attorneys under their supervision or control, or who are otherwise

9

associated with them.

10

3. No security bond is required under Federal Rule of Civil Procedure 65(c).

11

4. The parties shall, within 2 days of this Order, propose a briefing schedule and

12 noting date with respect to Plaintiffs’ forthcoming motion for a preliminary injunction. The

13 noting date shall be no later than fourteen days from today. At that time, the Court will

14 schedule a hearing on Plaintiffs’ motion for a preliminary injunction, if requested and

15 necessary, following receipt of the parties’ briefing.

16

5. This temporary restraining order shall remain in effect until the Court rules on

17 Plaintiffs’ motion for a preliminary injunction.

18

DATED this ___ day of May, 2017.

19

20

21

UNITED STATES DISTRICT JUDGE

22

23

24

25

26

27

[PROPOSED] TEMPORARY RESTRAINING ORDER (Case No. 2:17-cv-00716) – 2

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 2-1 Filed 05/08/17 Page 3 of 3

1 Presented by:

2 DAVIS WRIGHT TREMAINE LLP

Attorneys for Northwest Immigrant Rights Project

3

By s/ James Harlan Corning

4

Michele Radosevich, WSBA #24282

Jaime Drozd Allen, WSBA #35742

5

James Harlan Corning, WSBA #45177

Robert E. Miller, WSBA #46507

6

Laura-Lee Williams, WSBA #51358

1201 Third Avenue, Suite 2200

7

Seattle, WA 98101-3045

Telephone: (206) 622-3150

8

Fax: (206) 757-7700

E-mail: micheleradosevich@dwt.com

9

jaimeallen@dwt.com

jamescorning@dwt.com

10

robertmiller@dwt.com

lauraleewilliams@dwt.com

11

12 NORTHWEST IMMIGRANT RIGHTS PROJECT

13

Matt Adams, WSBA #28287

Glenda M. Aldana Madrid, WSBA # 46987

14

Leila Kang, WSBA #48048

615 2nd Avenue, Suite 400

15

Seattle, WA 98104-2244

Phone: (206) 957-8611

16

Fax: (206) 587-4025

E-mail: matt@nwirp.org

17

glenda@nwirp.org

leila@nwirp.org

18

19 20 21 22

23

24 25 26 27

[PROPOSED] TEMPORARY RESTRAINING ORDER (Case No. 2:17-cv-00716) – 3

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

 
 Case 2:17-cv-00716-RAJ Document 14 Filed 05/11/17 Page 1 of 26

Hon. Richard A. Jones
1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

8

9 NORTHWEST IMMIGRANT RIGHTS

Case No. 2:17-cv-00716

10 PROJECT (“NWIRP”), a nonprofit

Washington Public benefit corporation; and 11 YUK MAN MAGGIE CHENG, an individual, DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ MOTION FOR TEMPORARY

12

Plaintiff,

RESTRAINING ORDER

13
v.

Noted on Motion Calendar and Hearing:

14
JEFFERSON B. SESSIONS III, in his official Wednesday, May 17, 2017, at 9:00 am 15 capacity as Attorney General of the United

States; UNITED STATES DEPARTMENT 16 OF JUSTICE; EXECUTIVE OFFICE FOR

17 IMMIGRATION REVIEW; JUAN OSUNA, in his official capacity as Director of the
18 Executive Office for Immigration Review; and

JENNIFER BARNES, in her official capacity
19
as Disciplinary Counsel for the Executive

20 Office for Immigration Review,

21

Defendants.

22

23

24

25

26

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER UNDER LOCAL RULE 65(B)(5)
(Case No. 2:17-cv-716)
-1-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 14 Filed 05/11/17 Page 2 of 26
TABLE OF CONTENTS I. INTRODUCTION .........................................................................................................1
II. BACKGROUND ...........................................................................................................2 A. EOIR’s Regulation of Legal Practice before Immigration Courts ................................................................................................................3
B. The Disciplinary Counsel’s Letter to NWIRP regarding their practices .............................................................................................................4
III. STANDARD FOR TEMPORARY RESTRAINING ORDER .....................................7 IV. ARGUMENT .................................................................................................................8
A. Plaintiffs cannot establish that they are likely to suffer irreparable Harm absent a temporary restraining order..........................................................................8
1. Plaintiffs’ have not established they are likely to succeed on their claim that they have a First Amendment right to represent clients in removal proceedings without filing a Notice of Appearance ..........................................................................8
2. Plaintiffs’ are unlikely to demonstrate that EOIR’s regulation of practitioners interferes with a state’s power to regulate lawyers. ................................................................12
3. Plaintiffs’ have failed to seek review under the
Administrative Procedure Act, or to exhaust administrative remedies………………………………………….………14 B. Plaintiffs’ Cannot Show that They are Likely to Suffer Irreparable Harm Absent a Temporary Restraining Order ........................................................15
C. The Public interest and balance of the equities weigh against a temporary restraining order ............................................................................................19
V. CONCLUSION............................................................................................................20
CERTIFICATE OF SERVICE
i

Case 2:17-cv-00716-RAJ Document 14 Filed 05/11/17 Page 3 of 26
TABLE OF AUTHORITIES Adams v. Freedom Forge Corp.,
204 F.3d 475 (3d Cir. 2000) ...................................................................................................... 21
Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011)..................................................................................................... 8
Bennett v. Spear, 520 U.S. 154 (1997) .................................................................................................................. 15
Bible Club v. Placentia-Yorba Linda Sch. Dist., 573 F. Supp. 2d 1291 (C.D. Cal. 2008)..................................................................................... 17
Bronx Household of Faith v. Bd. of Educ. of City of N.Y., 331 F.3d 342 (2d Cir. 2003) ...................................................................................................... 18
Brown v. California Dep’t of Transp., 321 F.3d 1217 (9th Cir. 2003)................................................................................................... 19
Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668 (9th Cir. 1988)............................................................................................... 15, 19
Castillo-Perez v. INS, 212 F.3d 518 (9th Cir. 2000)..................................................................................................... 19
Colo. River Indian Tribes v. Parker, 776 F.2d 846 (9th Cir. 1985)..................................................................................................... 18
Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001)................................................................................................. 13
Flexible Lifeline Systems, Inc. v. Precision Lift, Inc., 654 F.3d 989 (9th Cir. 2011)....................................................................................................... 8
G and G Fremont LLC v. City of Las Vegas, No. 2:14-cv-688, 2014 WL 4206882 (Aug. 25, 2014).............................................................. 17
Goldfarb v. Va. State Bar, 421 U.S. 773 (1975) .................................................................................................................. 11
Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117 (1926) .................................................................................................................. 11
ii

Case 2:17-cv-00716-RAJ Document 14 Filed 05/11/17 Page 4 of 26
Hernandez v. Mukasey, 524 F.3d 1014 (9th Cir. 2008)................................................................................................... 19
Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037 (9th Cir. 2002)............................................................................................. 12, 13
Huston v. Burpo, No. 94-cv-20771, 1995 WL 73097 (N.D. Cal. Feb. 13, 1995)............................................................................... 17
In re Hood, 727 F.3d 1360 (11th Cir. 2013)................................................................................................. 13
In re Primus, 436 U.S. 412 (1978) .................................................................................................................... 9
J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir. 2016)................................................................................................... 18
Jacoby & Meyers, LLP v. Presiding Justices of the First, Second, Third, and Fourth Departments, Appellate Division of the Supreme Court of New York, 852 F.3d 178 (2d Cir. 2017) ........................................................................................................ 8
Koden v. U.S. Dep’t of Justice, 564 F.2d 228 (7th Cir. 1977)..................................................................................................... 11
Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001) .................................................................................................................... 9
Mothershed v. Justices of the Supreme Court, 410 F.3d 602 (9th Cir. 2005).............................................................................................. passim
N.D. v. Haw. Dep’t of Educ., 600 F.3d 1104 (9th Cir.2010).................................................................................................... 19
NAACP v. Button, 371 U.S. (1963) .......................................................................................................................... 9
Nken v. Holder, 556 U.S. 418 (2009) .................................................................................................................. 19
Paciulan v. George, 38 F. Supp. 2d 1128 (N.D. Cal. 1999) ........................................................................................ 9
iii

Case 2:17-cv-00716-RAJ Document 14 Filed 05/11/17 Page 5 of 26
Phany Poeng v. United States, 167 F. Supp. 2d 1136 (S.D. Cal. 2001) ..................................................................................... 18
Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005) ...................................................................................................... 14
Ramos v. U.S. Dep’t of Justice, 538 F. Supp. 2d 4 (D.D.C. 2008) .............................................................................................. 15
Romero v. U.S. Dept. of Justice, 556 F. App’x 365 (5th Cir. 2014).......................................................................................... 9, 12
Sampson v. Murray, 415 U.S. 61, (1974) ................................................................................................................... 15
Singh v. INS, 315 F.3d 1186 (9th Cir. 2003)............................................................................................ passim
Small v. Avanti Health Systems, LLC, 661 F.3d 1180 (9th Cir. 2011)................................................................................................... 19
Sperry v. Florida, 373 U.S. 379 (1963) .................................................................................................................. 13
Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832 (9th Cir. 2001)....................................................................................................... 7
Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7 (2008) .................................................................................................................. 7, 15 FEDERAL REGISTER
73 Fed. Reg. 44183 ..................................................................................................................... 3, 4 73 Fed. Reg. 76914 ......................................................................................................................... 4
REGULATIONS 8 C.F.R. § 292.3(a)........................................................................................................................ 14 8 C.F.R. § 1001.1(f) ........................................................................................................................ 3
iv

Case 2:17-cv-00716-RAJ Document 14 Filed 05/11/17 Page 6 of 26
8 C.F.R. § 1001.1(h) ..................................................................................................................... 13 8 C.F.R. § 1001.1(i) ........................................................................................................................ 3 8 C.F.R. § 1001.1(k) ....................................................................................................................... 3 8 C.F.R. § 1003.02(t) .................................................................................................................... 23 8 C.F.R. § 1003.17(a)...................................................................................................................... 8 8 C.F.R. § 1003.101 .................................................................................................................. 7, 16 8 C.F.R. § 1003.101(a).............................................................................................................. 3, 15 8 C.F.R. § 1003.102(t) .................................................................................................................... 3 8 C.F.R. § 1003.104(a).................................................................................................................... 4 8 C.F.R. § 1003.104(b) ................................................................................................................... 4 8 C.F.R. § 1003.104(c).................................................................................................................... 4 8 C.F.R. § 1003.105 .................................................................................................................... 4, 6 8 C.F.R. § 1003.105(a)(1) ............................................................................................................... 4 8 C.F.R. § 1003.110 ........................................................................................................................ 3
v

Case 2:17-cv-00716-RAJ Document 14 Filed 05/11/17 Page 7 of 26

1

I. INTRODUCTION

2

The Executive Office for Immigration Review (“EOIR”) is the agency entrusted with

3 handling the immigration courts of the United States. As part of its inherent power to regulate

4 immigration courts, EOIR imposes reasonable and sensible regulations on those advocates who

5 practice before the courts in order to ensure that hearings are fair and impartial for the parties

6 involved. All that EOIR sought when it contacted the Northwest Immigrant Rights Project

7 (“NWIRP”) was to advise the organization that its practitioners must comply with a regulation

8 requiring them to enter an appearance before the Immigration Court as the representative of

9 record of those individuals for whom it advocates in the Immigration Courts. Ex. A, Letter from

10 Disciplinary Counsel to NWIRP, April 5, 2017. EOIR in no way sought to impose broad

11 restrictions on NWIRP’s other important work with immigrant communities. However,

12 NWIRP’s misunderstanding of the scope of EOIR’s letter has brought them to seek extraordinary

13 relief.

14

This Court should deny Plaintiffs motion for a temporary restraining order because they

15 are unlikely to prevail on their lawsuit and the balance of equities weigh against temporary relief.

16 Plaintiffs are unable to demonstrate that EOIR seeks to impair their First Amendment rights by

17 requiring them to file a Notice of Appearance in those cases in which they draft legal pleadings

18 to then be presented by pro se respondents in proceedings before EOIR. Furthermore, EOIR’s

19 requirements imposed on practitioners that provide legal representation to individuals in

20 immigration court proceedings do not impair on Washington State’s role of regulating attorney

21 conduct. Requiring that Plaintiffs enter their appearance in cases in which they advocate for

22 individuals before the immigration courts does not amount to irreparable harm, as Plaintiffs are

23 free to continue their broad work with immigrant communities irrespective of the EOIR letter.

24 Lastly, it is in the public interest to ensure that immigration court proceedings are fair, which

25 require equal enforcement of rules governing professional conduct. This Court should deny

26 Plaintiffs’ motion for a temporary restraining order.

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER UNDER LOCAL RULE 65(B)(5)
(Case No. 2:17-cv-716)
-2-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 14 Filed 05/11/17 Page 8 of 26

1

II. BACKGROUND

2 A. EOIR’S Regulation of Legal Practice before Immigration Courts.

3

EOIR regulates the conduct of advocates that practice before the immigration courts

4 through regulations contained at 8 C.F.R. § 1003.101-1003.111. Those regulations provide that

5 the Board of Immigration Appeals (“Board”) may impose disciplinary sanctions on practice

6 before the Board, the immigration courts, or the Department of Homeland Security, “if it is in the

7 public interest to do so.” 8 C.F.R. § 1003.101(a). Any practitioner – which includes licensed

8 attorneys as well as many classes of individuals who are not attorneys – is subject to the Board’s

9 disciplinary power.1 8 C.F.R. §§ 1001.1(f), (j), 1003.101(b).

10

A practitioner may be subject to discipline if he fails to submit a “Notice of Entry of

11 Appearance as Attorney or Representative” (“Notice of Appearance”), engages in “practice” or

12 “preparation,” and engages in a pattern or practice of failing to submit a Notice of Appearance.

13 8 C.F.R. § 1003.102(t). “Practice” is defined as “act or acts of any person appearing in any case,

14 either in person or through the preparation or filing of any brief or other document, paper,

15 application, or petition on behalf of another person or client” before the immigration courts. 8

16 C.F.R. § 1001.1(i) (emphasis added). The term “preparation” under the regulation is “the study

17 of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary

18 activities.” 8 C.F.R. § 1001.1(k). Preparation, however, does not cover assistance in the

19 preparation of forms. See id.

20

The rule requiring a Notice of Appearance serves important purposes. First, EOIR

21 requiring a Notice of Appearance curtails the ability of practitioners who seek to avoid the

22 responsibility of formal representation, and whatever sanctions might result from their 23 ineffective assistance, by failing to file their appearance with the immigration court. 73 Fed. 24 Reg. at 44,183. Second, this rule minimizes the risk that a practitioner’s decision to not formally

25
1 Organizations recognized by EOIR as a Nonprofit Religious, Charitable, Social

26 Service, or Similar Organization Established in the United States to designate representative to

provide immigration legal services on behalf of its clients before EOIR or DHS may be subject

to discipline for conduct enumerated on 8 C.F.R. § 1003.110.

DEFENDANTS’ OPPOSITION TO

PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER

UNDER LOCAL RULE 65(B)(5)

P.O. Box 868 Ben Franklin Station

Washington, D.C. 20044

(Case No. 2:17-cv-716)

(202) 305-7181

-3-

Case 2:17-cv-00716-RAJ Document 14 Filed 05/11/17 Page 9 of 26

1 represent an individual despite drafting legal pleadings and completing legal filings will render

2 ineffective any recourse his or her client would have as a result of the practitioner’s ineffective

3 assistance of counsel or other misconduct. 73 Fed. Reg. at 44,183. Third, as the Ninth Circuit

4 stated, the Notice of Appearance makes clear to the parties who is representing a particular

5 respondent in removal proceedings. Singh v. INS, 315 F.3d 1186, 1189 (9th Cir. 2003). The

6 Notice of Appearance rule is not a new rule and was enacted as far back as 2008. 73 Fed. Reg.

7 76,914 (Dec. 18, 2008).

8

In cases where EOIR receives complaints regarding practitioner conduct, the Disciplinary

9 Counsel will conduct a preliminary inquiry. 8 C.F.R. § 1003.104(a)-(b). The Disciplinary

10 Counsel, in her discretion, may take actions to resolve the dispute without a need for disciplinary

11 proceedings. 8 C.F.R. § 1003.104(c). The Disciplinary Counsel may choose to charge a

12 practitioner before the Board with professional misconduct if sufficient prima facie evidence

13 exists to support the charge. 8 C.F.R. § 1003.105(a)(1). The regulations provide an extensive

14 procedure governing the Board’s disciplinary proceedings. 8 C.F.R. § 1003.105.

15 B. The Disciplinary Counsel’s Letter to NWIRP regarding their practices.

16

NWIRP is a non-profit organization based in the State of Washington that provides

17 various legal services to that State’s migrant population. Compl. ¶ 1.1. NWIRP provides

18 representations and coordinates representation for other migrants seeking its services. Compl.

19 ¶ 3.1. NWIRP receives funds – including Legal Orientation Program (“LOP”) funds from the

20 United States Department of Justice – in order to provide information and services to migrants.

21 Compl. ¶ 3.3-3.4; NWIRP, Community Education, https://www.nwirp.org/our-work/community-

22 education/ (last visited May 11, 2017) (“Since 2005, NWIRP has received funding through the

23 U.S. Department of Justice to operate the Legal Orientation Program (LOP) at the [Northwest

24 Detention Center].”

25

The Department of Justice, through EOIR, manages the LOP program through a contract

26 with the Vera Institute of Justice (“Vera”) and several subcontracting legal services

organizations. United States Department of Justice, Legal Orientation Program,

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER UNDER LOCAL RULE 65(B)(5)
(Case No. 2:17-cv-716)
-4-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 14 Filed 05/11/17 Page 10 of 26

1 https://www.justice.gov/eoir/legal-orientation-program (last visited May 11, 2017). The LOP

2 program provides funds to organizations to provide legal orientation but does not permit that

3 LOP funds be used for legal representation. Vera lists NWIRP as an LOP partner organization.

4 Vera Institute of Justice, Legal Orientation Program, https://www.vera.org/projects/legal-

5 orientation-program/legal-orientation-program-lop-facilities (last visited May 11, 2017). More

6 than six years ago, on July 11, 2011, EOIR issued a memo to Vera providing guidance on the

7 distinction between providing “legal orientation” and “legal representation.” Ex. B,

8 Memorandum from Steven Lang, Program Director, Office of Legal Access Programs, to Orem

9 Root, Director, Vera Institute of Justice (July 11, 2011). The memo provides guidance to LOP

10 organizations services so that contracting organizations do not use LOP funds for legal

11 representation. Ex. B.

12

NWIRP claims that in an August 2016 conversations with EOIR’s Fraud and Abuse

13 Prevention Counsel regarding coordination efforts in Washington to combat “notario” fraud,

14 NWIRP also discussed with EOIR the different tools it uses to assist migrant communities.

15 Compl. ¶ 3.12. NWIRP claims on a follow-up conversation with the Fraud and Abuse

16 Prevention Counsel and the EOIR Disciplinary Counsel, held on October 11, 2016, six months

17 prior to filing with this Court their request for extraordinary remedy, the Disciplinary Counsel

18 informed NWIRP that the regulations governing the EOIR rules of professional conduct

19 provided limitations on the ability to prepare legal documents for pro se individuals to file with

20 the Immigration Court. Compl. ¶ 3.13.

21

In their complaint, NWIRP alleges that it met with an unidentified “local immigration

22 court administrator” to discuss the impact of this rule on NWIRP’s work. Compl. ¶ 3.11.

23 NWIRP claims that a “convention was accepted” with the local court permitting the organization

24 to denote that NWIRP has prepared or assisted in the preparation of motions or applications. Id.

25 Notably, NWIRP does not provide or identify any document or written agreement memorializing

26 this “convention.” NWIRP also fails to allege that any office of EOIR tasked with governing

practitioner conduct was aware of NWIRP’s practice or endorsed such practice.

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER UNDER LOCAL RULE 65(B)(5)
(Case No. 2:17-cv-716)
-5-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 14 Filed 05/11/17 Page 11 of 26

1

On or about November 1, 2016, the court administrator for the Tacoma Immigration

2 Court forwarded a pro se motion to the Office of General Counsel that contained the notation

3 “This pro se brief/motion has been prepared with the assistance of [NWIRP].” Ex. C, Decl. of

4 Elizabeth Burges. On January 13, 2017, the Office of General Counsel received another inquiry,

5 this time from the Seattle Immigration Court, concerning another pro se motion to reopen with a

6 similar notation. Ex. C. The notations do not indicate whom within NWIRP provided that

7 assistance, or if the assistance was provided by an attorney, an accredited representative, or any

8 individual authorized to practice before the immigration courts, or even under which authority it

9 could do so.

10

In response to these filings, on April 5, 2017, the Disciplinary Counsel sent NWIRP a

11 letter “ask[ing] that NWIRP cease and desist from representing aliens unless and until the

12 appropriate Notice of Entry of Appearance form is filed with each client that NWIRP

13 represents.” Ex. A. In that letter, the Disciplinary Counsel stated that it recently came to her

14 attention that NWIRP has attempted to advocate for two individuals in immigration court by

15 preparing filings for court without entering a Notice of Appearance. Ex. A. The letter explained

16 to NWIRP that the Notice of Appearance requirement allows EOIR to hold “attorneys

17 accountable for their conduct” and that it “makes it possible for EOIR to impose disciplinary

18 sanctions on attorneys who do not provide adequate representation to their clients.” Ex. A. The

19 letter only asked NWIRP to comply with regulatory requirements. The letter did not impose any

20 disciplinary sanction on NWIRP or any of its attorneys for violating EOIR regulations; it did not

21 instruct NWIRP to cease engaging in other legal work on behalf of Washington’s migrant

22 community or under any program, including the LOP program. Indeed, while the EOIR

23 Disciplinary Counsel has the authority to charge a practitioner with professional misconduct, see

24 8 C.F.R. §1003.105, she does not have the authority to impose disciplinary sanctions, which is

25 reserved for the EOIR Adjudicating Official or the Board of Immigration Appeals. See 8 C.F.R.

26 §1003.101.

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER UNDER LOCAL RULE 65(B)(5)
(Case No. 2:17-cv-716)
-6-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 14 Filed 05/11/17 Page 12 of 26

1

On May 2, 2017, NWIRP requested EOIR that it rescind its April 5, 2017, letter because

2 it believed the letter unduly restricted its work. Ex. D, Letter from Matt Adams, Legal Director,

3 NWIRP, to Jennifer Barnes, Disciplinary Counsel, EOIR (May 2, 2017). EOIR’s General

4 Counsel responded to NWIRP’s letter on May 8, 2017. Ex. E, Letter from Jean King, General

5 Counsel, EOIR, to Matt Adams (May 8, 2017). In the response, EOIR stated that while it is

6 committed in supporting programs assisting individual in immigration courts proceedings,

7 “EOIR must be consistent in how it enforces the Rules of Professional Conduct.” Ex. E. EOIR

8 explained the history behind the Notice of Appearance requirement to NWIRP, highlighting that

9 the regulation “is meant to advance the level of professional conduct in immigration matters and

10 foster increased transparency in the client-practitioner relationship. Ex. E. EOIR also noted that

11 NWIRP is an LOP provider that has had access to EOIR’s guidance distinguishing between

12 providing legal assistance and legal representation and that “EOIR has not made any changes to

13 its policies affecting this guidance.” Ex. E. EOIR highlighted that “in no way [EOIR] wishes to

14 impede the important work done by organizations like [NWIRP],” but it stands by the April 5,

15 2017, letter. Ex. E.

16

III. STANDARD FOR TEMPORARY RESTRAINING ORDER

17

The standard for issuance of a temporary restraining order is the same as that for issuance

18 of a preliminary injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839

19 n.7 (9th Cir. 2001). A preliminary injunction is an extraordinary remedy never awarded as of

20 right. Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 20 (2008). To obtain a

21 preliminary injunction, a party must ordinarily demonstrate: (1) a likelihood of success on the

22 merits, (2) irreparable harm in the absence of preliminary relief, (3) that the balance of the

23 equities tips in favor of preliminary relief, and (4) that an injunction is in the public interest. Id.

24 Petitioner must satisfy each factor. Id. Although the Ninth Circuit still employs a “sliding scale”

25 approach to the four factors, see Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th

26 Cir. 2011), the moving party must show a likelihood of irreparable harm to warrant preliminary

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER UNDER LOCAL RULE 65(B)(5)
(Case No. 2:17-cv-716)
-7-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 14 Filed 05/11/17 Page 13 of 26

1 relief. See Flexible Lifeline Systems, Inc. v. Precision Lift, Inc., 654 F.3d 989, 1000 (9th Cir.

2 2011).

3

IV. ARGUMENT

4 A. Plaintiffs cannot establish that they are likely to suffer irreparable harm absent a

5 temporary restraining order.

1. Plaintiffs have not established they are likely to succeed on their claim that

6

they have a First Amendment right to represent clients in removal

7

proceedings without filing a Notice of Appearance.

8

Plaintiffs’ First Amendment claim rests on the proposition that they have a

9 Constitutional right to represent clients in removal proceedings without filing a Notice of

10 Entry of Appearance, as required by the regulations. 8 C.F.R. § 1003.17(a). While

11 Plaintiffs’ TRO cites to numerous cases which address the First Amendment rights of

12 attorney’s in the context of soliciting clients, none of these cases remotely support the

13 view that attorneys may invoke the First Amendment in order to avoid complying with

14 rules of the court in which they seek to practice. See TRO at 6-9 (citing, inter alia,

15 NAACP v. Button, 371 U.S. 414 (1963); In re Primus, 436 U.S. 412 (1978); Legal Servs.

16 Corp. v. Velazquez, 531 U.S. 533 (2001)). As the Second Circuit recently explained:

17

The Button line of cases might casually be characterized as reflecting lawyers’

18

expressive rights in the causes they pursue – when those causes implicate

19

expressive values . . . . The Supreme Court has never held, however, that

20

attorneys have their own First Amendment right as attorneys to associate with

21

current or potential clients, or their own First Amendment right to petition the

22

government for the redress of their clients’ grievances when the lawyers are

23

acting as advocates for others, and not advocating for their own cause.

24 Jacoby & Meyers, LLP v. Presiding Justices of the First, Second, Third, and Fourth

25 Departments, Appellate Division of the Supreme Court of New York, 852 F.3d 178, 186 (2d Cir.

26 2017) (emphasis).

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1

Similarly, in Southern Christian Leadership Conf. v. Supreme Court of the State of

2 Louisiana, the Fifth Circuit rejected plaintiffs’ reliance on Button and Primus where the

3 Louisiana Supreme Court’s regulation of legal practice by law school clinics “did not prohibit or

4 prevent speech of any kind.” 252 F.3d 781, 789 (5th Cir. 2001). The court observed that the rule

5 in question did not “prevent the clinics or their members from engaging in outreach, or even

6 from contacting particular clients, advising them of their rights, and offering and then proceeding

7 to represent those clients.” Id. Rather, “the rule only prohibit[ed] the non-lawyer student

8 members of the clinics from representing as attorneys any party the clinic has so solicited.” Id.

9 Given these circumstances, the Fifth Circuit held that the regulations in question were “a far cry

10 from the criminal and disciplinary sanctions invalidated by the Supreme Court in Button and

11 Primus.” Id. at 790; see Paciulan v. George, 38 F. Supp. 2d 1128, 1137 (N.D. Cal. 1999)

12 (rejecting plaintiffs’ contention that “any restriction on practicing law in California implicates

13 attorneys’ rights under the First Amendment”). The cases on which Plaintiffs rely, thus, do not

14 support the notion that the First Amendment is implicated by every regulation of attorney

15 conduct, or that attorneys have the absolute right to represent clients in immigration courts

16 without filing a Notice of Entry of Appearance.

17

To the extent that EOIR’s regulations implicate any of Plaintiffs’ First Amendment

18 rights, it is well settled that these rights are subject to regulation. Mothershed v. Justices of the

19 Supreme Court, 410 F.3d 602, 611 (9th Cir. 2005) (“the [Supreme] Court has . . . repeatedly

20 emphasized that the States have broad power to regulate the practice of law”). In the same

21 manner, EOIR has the authority to regulate the conduct of practitioners who appear before it.

22 See Romero v. U.S. Dept. of Justice, 556 F. App’x 365, 368 (5th Cir. 2014) (“When the EOIR

23 sent Romero the cease and desist letter, it was regulating the conduct of those who appear before

24 it, exactly as it was authorized to do.”) (citing 8 U.S.C. §§ 1103(g) 1362); Goldsmith v. United

25 States Board of Tax Appeals, 270 U.S. 117, 121-23 (1926); Koden v. U.S. Dep’t of Justice, 564

26 F.2d 228, 235 (7th Cir. 1977)). The Supreme Court has explained that the “interest of the States

[or in this case, the agency] in regulating lawyers is especially great since lawyers are essential to

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1 the primary governmental function of administering justice, and have historically been ‘officers

2 of the courts.’” Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975).

3

In order to further its “substantial interest in regulating the legal profession” that practices

4 before it, EOIR may institute reasonable time, place, and manner restrictions. Mothershed, 410

5 F.3d at 611. “Time, place, and manner restrictions are reasonable provided they are justified

6 without reference to the content of the regulated speech, that they are narrowly tailored to serve a

7 significant governmental interest, and that they leave open ample alternative channels for

8 communication of the information.” Id. As explained in the attached May 8, 2017 letter from

9 EOIR General Counsel, Jean King, to Plaintiffs, the rule requiring that attorneys who represent

10 clients in immigration court enter a Notice of Appearance has been in place since 2008, and

11 exists in order to hold accountable those who seek to take advantage of individuals who appear

12 in immigration court. See Ex. E. Indeed, the Ninth Circuit has discussed at great length the

13 importance of the requirement that attorneys who practice in immigration court enter a notice of

14 appearance:

15

The notice of appearance required by [prior versions of the regulation governing

16

notices of appearances], serves important purposes. The [Board of Immigration

17

Appeals (“BIA”)] has a substantial interest in assuring that, at any given time,

18

there is no ambiguity as to who has been given, and who has accepted, the

19

responsibility of representing a party before it. Under the regulations, the notice

20

of appearance constitutes an affirmative representation by the purported

21

representative to the BIA that he or she is qualified to be a representative under

22

the applicable regulations, that he or she has been authorized by the party on

23

whose behalf he or she appears, and that he or she accepts the responsibility of

24

representation until relieved. It also allows the clerk or the computer dispatching

25

notices for the court to scan the docket sheet to determine how to give the

26

required notice correctly, without reviewing all documents in the record.

Singh v. I.N.S., 315 F.3d 1186, 1189-90 (9th Cir. 2003).
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1

Contrary to what Plaintiffs assert in their motion, EOIR’s regulations requiring attorneys

2 who represent clients to file a notice of appearance are content neutral. “Speech restrictions are

3 content-neutral when they can be justified without reference to the content of regulated speech.”

4 Mothershed, 410 F.3d at 611 (citing Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037, 1043 (9th

5 Cir. 2002)). In Mothershed, the Ninth Circuit held that the Arizona Supreme Court’s rules were

6 content-neutral because they imposed a “generally applicable prohibition on the retention of

7 out-of-state counsel without regard to subject matter of the representation.” Id. at 612 (noting

8 that the rules “d[id] not, for example, prohibit out-of-state counsel from undertaking only certain

9 categories of representation such as suits against the State or against tobacco companies.”) In the

10 same manner, the EOIR regulations in question are content-neutral in that they apply to all

11 attorneys who practice before the immigration courts, regardless of whether they are sole

12 practitioners who receive remuneration or are attorneys who are part of a larger nonprofit legal

13 services provider such as NWIRP, and regardless of what types of cases they bring. Id.

14

Because EOIR’s regulations are content-neutral, strict scrutiny does not apply. Rather,

15 the Court’s “standard for determining whether [the regulations] are narrowly tailored is more

16 relaxed.” Menotti v. City of Seattle, 409 F.3 1113, 1167 (9th Cir. 2005). Under this intermediate

17 standard, “the policy adopted need not be the least restrictive or least intrusive means available.”

18 Id.; see Mothershed, 410 F.3d at 612 (“A time, place, and manner regulation is narrowly tailored

19 as long as the substantial government interest it serves would be achieved less effectively absent

20 the regulation and the regulation achieves its ends without . . . significantly restricting a

21 substantial quantity of speech that does not create the same evils.”)

22

Regardless of the level of scrutiny, Plaintiffs have not established that EOIR’s regulation

23 sweeps so broadly as to infringe upon their First Amendment rights. See Mot. for TRO at 10-16.

24 Rather, in advancing their argument that EOIR’s regulations are not narrowly tailored, Plaintiffs

25 misstate the scope of the regulation defining “representation.” See 8 C.F.R. § 1001.1(h).

26 Contrary to what Plaintiffs’ assert, the regulations do not have the effect of “impos[ing] an all-

-or-nothing paradigm of client representation.” Mot. for TRO at 12. Nor do they “trigger an

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1 appearance requirement based on preliminary contacts between a lawyer and a client.” Id. As

2 the attached (and publically available) EOIR Memorandum of July 11, 2011 reflects, EOIR

3 clarified for practitioners the distinction between legal orientation (for which no entry of

4 appearance is required) versus the more substantive “representation,” which triggers the notice of

5 appearance requirement. See Ex. B. The Memorandum sets forth seven categories of tasks and

6 interactions, including individual orientations and assistance with completing legal forms, in

7 which attorneys can participate without formally engaging in “representation.” Id. The

8 publically available guidance of this nature also undermines Plaintiffs’ contention that EOIR’s

9 regulations are “impermissibly vague and overbroad.” See Mot. for TRO at 13-14. In sum, even

10 assuming that EOIR’s regulations implicate Plaintiffs’ First Amendment rights, the regulations

11 constitute reasonable time, place, and manner regulations, and thus Plaintiffs’ First Amendment

12 claim is likely to fail as a matter of law. Mothershed, 410 F.3d at 612.

2. Plaintiffs are unlikely to demonstrate that EOIR’s regulation of practitioners

13

interferes with a state’s power to regulate lawyers.

14

As Plaintiffs acknowledge, and discussed above, “federal agencies have inherent powers

15 to regulate the conduct of attorneys who appear and practice before them.” Mot. for TRO at 17;

16 see Romero, 556 F. App’x at 368. Plaintiffs’ argument that EOIR’s regulations exceed their

17 inherent powers and “encroach upon the professional life an practice of law . . . well outside of

18 any EOIR-related proceeding,” see Mot. for TRO at 17, is again based on a misreading of the

19 regulations in question. As reflected in EOIR’s 2011 Memorandum concerning Legal

20 Orientation Programs, Washington State attorneys may engage in a variety of services that do

21 not trigger the Notice of Appearance requirement. Ex. B. The information contained in this

22 publically available Memorandum directly refutes Plaintiffs’ suggestion that an attorney’s

23 participation in a community meeting or group assistance event would require an attorney to file

24 a Notice of Appearance. Id. at 2-4 (discussing both group and individual orientations outside the

25 scope of formal representation). It also underscores the fact that EOIR’s regulations do not 26 mandate an “all-or-nothing approach” as Plaintiffs contend. See Mot. for TRO at 19.

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1

To the extent that Plaintiffs rely on the Washington Rules of Professional Conduct

2 (“WRPC”), they have not shown that those Rules are inconsistent or incompatible with EOIR’s

3 regulations governing representation in immigration courts. EOIR rules do not impair

4 Washington’s power as it “maintains control over the practice of law within its borders except to

5 the limited extent necessary for the accomplishment of the federal objectives” to regulate the

6 conduct of immigration court practitioners. Sperry, 373 U.S. at 402. As Sperry v. Florida, 373

7 U.S. 379, 402-04 (1963), demonstrates, to the extent that any Washington rule may appear

8 inconsistent with EOIR’s requirements, the state rule must yield. Sperry, 373 U.S. at 403-04.

9 The Notice of Appearance requirement serves the critical role of placing the parties in notice of

10 who is the representative of a particular respondent in removal proceedings and brings that

11 practitioner to the jurisdiction of the court. Singh, 315 F.3d at 1189; 73 Fed. Reg. at 44,183.

12 Clearly, requiring a Notice of Appearance is a central requirement for the conduct of fair and

13 efficient immigration court proceedings, and subjecting practitioners to discipline for failing to

14 file such notice furthers that purpose.2

15

Plaintiffs’ quote from a comment to Rule 1.2, which states that “the client has the

16 ultimate authority to determine the purpose to be served by legal representation.” Mot. TRO at

17 19. But they omit the latter portion of that same sentence, which notes that any such authority by

18 the client must be “within the limits imposed by law and the lawyers’ professional obligations.”

19 WRPC 1.2 cmt 1. In the case of an attorney who represents a client in proceedings before the

20

21

22

2 Federal courts have noted a discrepancy in the treatment of “ghostwritten” pleadings by

attorneys to be used by pro se litigants. Compare In re Hood, 727 F.3d 1360, 1365 (11th Cir.

23 2013) (finding no fraudulent conduct in ghostwritten pleading used in bankruptcy court), with

Duran v. Carris, 238 F.3d 1268, 1271-73 (10th Cir. 2001) (condemning ghostwriting of brief, 24 requiring that attorney signs briefs, and stating that “[a] lawyer usually has no obligation to

25 provide reduced fee or pro bono representation; that is a matter of conscience and professionalism. Once either kind of representation is undertaken, however, it must be

26 undertaken competently and ethically or liability will attach to its provider.”). Given these

differing practices, EOIR’s Notice of Appearance requirement provides uniformity as to this

issue for purposes of immigration practice.

DEFENDANTS’ OPPOSITION TO

PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER

UNDER LOCAL RULE 65(B)(5)

P.O. Box 868 Ben Franklin Station

Washington, D.C. 20044

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1 immigration court, the federal regulations and the lawyers’ professional obligations plainly

2 require the attorney to enter a notice of appearance.

3

Nor do EOIR’s regulations in any way require that attorneys breach the duty of

4 confidentiality they owe to clients. See Mot. for TRO at 20 (citing WRPC 1.6). The regulations

5 in question do not require an attorney to disclose any “information relating to the

6 representation,” WRPC 1.6 cmt. 1, apart from the bare fact of representation in the immigration

7 court. Plaintiffs cite to no authority to support their expansive reading of WRPC 1.6(a), which

8 would permit any client to demand that his or her attorney remain anonymous before a tribunal.

9 Moreover, the concern that a client would not want an attorney to identify himself before a

10 tribunal is entirely speculative – Plaintiffs’ have not identified a single instance in which a client

11 has ever made such a request.

12

In sum, Plaintiffs’ have not shown that EOIR’s regulations require Washington State

13 attorneys to take action that conflict with their duties under the WRPC. Moreover, by their own

14 terms, EOIR’s Rules and Procedures of Professional Conduct only apply to practitioners

15 authorized to practice before EOIR. See 8 C.F.R. § 1003.101 (describing the authority to impose

16 disciplinary sanctions only on practice before the Board of Immigration Appeals, the

17 Immigration Courts and DHS); see also 8 C.F.R. § 292.3(a). Plaintiffs have thus failed to show

18 that they are likely to succeed on the merits of their Tenth Amendment claim.

19

3. Plaintiffs have failed to seek review under the Administrative Procedure Act,

20

or to exhaust administrative remedies.

21

NWIRP is also unable to prevail on their challenges because they have failed to

22 adequately plead a cause of action under the APA, and in any event, no valid cause of action

23 exists. Under the APA, the Court may review a final agency action if that action was final,

24 adversely affected the party seeking review, and does not involve a discretionary determination.

25 Pinho v. Gonzales, 432 F.3d 193, 200 (3d Cir. 2005). An agency action is considered final if two 26 elements are met. First, the action must “mark the consummation of the agency’s decision

making process” and second, “the action must be one by which rights or obligations have been

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1 determined,” or from which “legal consequences will flow.” Id. (citing Bennett v. Spear, 520 2 U.S. 154, 177-78 (1997)).

3

As a preliminary matter, a challenge to the Board’s disciplinary process is subject to APA

4 review and NWIRP fails to allege a cause of action under the APA. See Ramos v. U.S. Dep’t of

5 Justice, 538 F. Supp. 2d 4, 8-12 (D.D.C. 2008) (reviewing a final disciplinary action from the

6 Board under the APA). But even if NWIRP had made such claim, it would fail because the letter

7 from the Disciplinary Counsel does not represent a final reviewable agency action. The

8 Disciplinary Counsel’s letter does not represent a final imposition of any penalty on NWIRP or 9 any of its practitioners. See 8 C.F.R. § 1003.101(a) (listing disciplinary sanctions the Board may

10 impose). Under EOIR regulations, the Disciplinary Counsel may bring disciplinary proceedings 11 before the Board, which then provides the practitioner with an opportunity to respond. See 8

12 C.F.R. §§ 1003.104-1003.106. The Disciplinary Counsel letter to NWIRP did not trigger the 13 initiation of any Board proceedings against any NWIRP employee, but merely advised NWIRP

14 to refrain from engaging in certain practices. Consequently, the Disciplinary Counsel letter did

15 not “mark the consummation of the agency’s decision making process,” nor did that decision

16 determine any of NWIRP’s “rights or obligations” from which “legal consequences will flow.”

17 Bennett, 520 U.S. at 177-78.

18
B.
19

Plaintiffs Cannot Show that They Are Likely to Suffer Irreparable Harm Absent a Temporary Restraining Order.

20

Plaintiffs must demonstrate with specificity an irreparable harm that is likely and

21 immediate in the absence of an injunction. Winter, 555 U.S. at 22 (“Issuing a preliminary

22 injunction based only on a possibility of irreparable harm is inconsistent with our

23 characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a

24 clear showing that the plaintiff is entitled to such relief.”); Caribbean Marine Servs. Co. v.

25 Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (holding the threat of irreparable harm must be

26 immediate). Harm is irreparable when, as the name suggests, the harm cannot be undone by a

later order by the court. See id.; Sampson v. Murray, 415 U.S. 61, 90, (1974) (“The possibility

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1 that adequate compensatory or other corrective relief will be available at a later date . . . weighs

2 heavily against a claim of irreparable harm.”). Plaintiffs assert that they are harmed by the

3 regulation’s claimed infringement on NWIRP and its lawyers’ freedom of speech and their

4 claimed inability to carry out NWIRP’s mission, as well as harm to third parties not before this

5 court. Mot. for TRO at 21, 23. These claims do not satisfy the standard for irreparable harm

6 for several reasons.

7

First, as explained above, NWIRP vastly overstates the alleged consequences of the letter

8 and its interpretation of the applicable regulation on NWIRP’s provision of legal services. The

9 letter—which is not a final or even intermediate disciplinary action—addresses only the

10 complained-of conduct: the preparation of legal pleadings and/or motions on behalf of

11 individual respondents without filing a Notice of Entry of Appearance. It does not address

12 NWIRP’s individual consultations providing information to unrepresented respondents in

13 immigration courts, Mot. for TRO at 2; its orientations or presentations informing respondents of

14 their rights, Mot. for TRO at 2; Cheng Decl. ¶¶ 11- 12; its referrals of respondents to other

15 attorneys; its assistance with the preparation of applications for immigration court respondents

16 without providing legal advice, Mot. for TRO at 3-22; Cheng Decl. ¶ 7; or its physical

17 submission of a respondent’s application. Mot. at 22. Indeed, such activities are generally not

18 considered “representation” under the regulation, according to EOIR’s July 2011 Guidelines.

19 See Ex. B (addressing, among other issues, whether individualized assessments, group

20 orientations, and assistance with the preparation of applications for relief constitute

21 representation).3 Accordingly, there is no showing that NWIRP is unable to carry out its mission

22 in any respect due to EOIR’s letter.

23

The inability to prepare or assist in the preparation of motions without entering an

24 appearance on behalf of the movant does not constitute the type of harm that justifies a grant of

25 emergency relief. Although courts have at times presumed the existence of irreparable injury

26

3 Notably, Plaintiffs filed this lawsuit rather than seeking clarification of the letter’s

meaning or EOIR’s interpretation of the regulation from EOIR’s Disciplinary Counsel.

DEFENDANTS’ OPPOSITION TO

PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER

UNDER LOCAL RULE 65(B)(5)

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Washington, D.C. 20044

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1 when the plaintiff alleges restrictions on his freedom of speech, the Court should not apply such

2 a presumption here. As an initial matter, their First Amendment claim must at the very least be

3 “colorable” in order to benefit from such a presumption, Brown v. California Dep’t of Transp.,

4 321 F.3d 1217, 1225 (9th Cir. 2003), and Plaintiffs’ claim does not withstand this minimal

5 requirement. The regulation, as interpreted in the EOIR letter, does not prevent Plaintiffs from

6 consulting with or representing aliens or making particular arguments; it merely subjects lawyers

7 to a requirement to enter their appearance when filing motions in immigration court and before

8 the Board, in order to ensure lawyers’ accountability for their work on behalf of aliens. As

9 discussed above, Plaintiffs do not cite a single case to support their theory that their freedom of

10 speech and association is burdened by this professional conduct requirement. Accordingly, their

11 First Amendment claims are not substantial enough to support a presumption of irreparable

12 injury. Huston v. Burpo, No. 94-cv-20771, 1995 WL 73097, at *5 (N.D. Cal. Feb. 13, 1995)

13 (finding an insufficient showing of a constitutional violation to support a presumption of

14 irreparable injury); G and G Fremont LLC v. City of Las Vegas, No. 2:14-cv-688, 2014 WL

15 4206882, at *1-2 (Aug. 25, 2014) (declining to presume irreparably injury solely because

16 plaintiffs alleged a constitutional violation); Bible Club v. Placentia-Yorba Linda Sch. Dist., 573

17 F. Supp. 2d 1291, 1300 (C.D. Cal. 2008) (noting that plaintiffs must show a “probable” violation

18 of constitutional rights to benefit from a presumption of irreparability).

19

Relatedly, the presumption should not apply because the harm Plaintiffs complain of is

20 not a direct infringement on their claimed expressive rights to screen, consult with, advice, and

21 otherwise assist aliens seeking legal services. See Compl. ¶¶ 4.2, 5.2. Instead, Plaintiffs argue

22 that the requirement of entering an appearance indirectly prevents them from limiting their 23 representation of immigration court respondents, which they claim means they cannot represent 24 as many such respondents as they would like because of resource constraints.4 Mot. at 21;

25

26

4 As explained just below, Plaintiffs’ contention that this results in harm to aliens who

will not receive “any legal assistance in their removal proceedings,” Mot. for TRO at 22, is not a

proper part of the irreparable harm analysis in this case.

DEFENDANTS’ OPPOSITION TO

PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER

UNDER LOCAL RULE 65(B)(5)

P.O. Box 868 Ben Franklin Station

Washington, D.C. 20044

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1 Compl. ¶ 3.23. Plaintiffs do not explain why the requirement to enter an appearance forces them

2 to immediately stop advising certain clients, nor do they explain how the consequences of

3 entering a notice of appearance on behalf of their clients cannot be remedied later by a motion to

4 withdraw before the immigration court or even relief from this court if they ultimately prevailed

5 on their claims. Thus, even assuming the regulation burdened Plaintiffs’ First Amendment

6 rights, the connection between the regulation and the claimed effect on Plaintiffs’ speech is too

7 tenuous to support a presumption or finding of irreparable injury. E.g., Bronx Household of

8 Faith v. Bd. of Educ. of City of N.Y., 331 F.3d 342, 349 (2d Cir. 2003) (explaining that the

9 presumption of irreparable injury has been limited to cases where a regulation directly limits

10 speech).

11

Finally, any claimed harm to NWIRP’s clients or prospective clients—who are not

12 parties to this case—is irrelevant to the irreparable harm analysis. To obtain a temporary

13 restraining order, Plaintiffs must demonstrate that they themselves face irreparable harm; they

14 cannot meet their burden based on claims of harm to third parties. Phany Poeng v. United States,

15 167 F. Supp. 2d 1136, 1142 (S.D. Cal. 2001); see also, e.g., Colo. River Indian Tribes v. Parker,

16 776 F.2d 846, 850 (9th Cir. 1985) (“[I]njury must be suffered by a party seeking relief.”); Adams

17 v. Freedom Forge Corp., 204 F.3d 475, 487 (3d Cir. 2000) (“[T]he preliminary injunction device

18 should not be exercised unless the moving party shows that it specifically and personally risks

19 irreparable harm.”). In any event, any claim of constitutional deprivation asserted by aliens in

20 removal proceedings who are supposedly unable to benefit from NWIRP’s services must be

21 raised in those proceedings or on judicial review thereof before the Court of Appeals. See

22 J.E.F.M. v. Lynch, 837 F.3d 1026, 1031-35 (9th Cir. 2016) (requiring that right-to-counsel and

23 other legal or constitutional claims arising from immigration removal proceedings must be raised

24 in those administrative proceedings or on judicial review thereof). It is improper for Plaintiffs to

25 rely on alleged harms to others—particularly those that could not be raised in the first instance in

26 this Court—as a basis for their request for emergency relief. Finally, the cited harm to alien

respondents is speculative and there is no concrete evidence that the harm, should it come to

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1 pass, would be irreparable. See Cheng Decl. ¶¶ 12-14 (assuming that unrepresented respondents

2 will incorrectly complete their asylum applications or will be ordered removed; and that no other

3 remedies or exceptions will be available to those respondents in the context of their removal

4 proceedings); Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988)

5 (“Speculative injury does not constitute irreparable injury sufficient to warrant granting a

6 preliminary injunction.”).

7

For the foregoing reasons, Plaintiffs have not shown the likely and imminent irreparable

8 injury necessary to warrant entry of a temporary restraining order enjoining enforcement of the

9 2008 regulation.

C.
10

The public interest and balance of the equities weigh against a temporary restraining order.

11

Where the Government is the opposing party, the balance of equities and public interest

12 factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009). Indeed, “the public interest favors

13 applying federal law correctly.” Small v. Avanti Health Systems, LLC, 661 F.3d 1180, 1197 (9th

14 Cir. 2011)); see also N.D. v. Haw. Dep’t of Educ., 600 F.3d 1104, 1113 (9th Cir.2010) (“[I]t is

15 obvious that compliance with the law is in the public interest.”).” Here, the last two factors

16 heavily weigh in favor of the government.

17

EOIR’s ability to promote compliance with the Notice of Appearance requirement at 8

18 C.F.R. § 1003.02(t) serves important goals of ensuring fair immigration court hearings and

19 protecting individuals in removal proceedings. Requiring that any practitioner – including those

20 affiliated with NWIRP – file a Notice of Appearance makes clear to the immigration court and

21 the respondent in immigration court proceedings who is responsible to advocate for the

22 respondent and subject to discipline for any misconduct. Singh, 315 F.3d at 1189; 73 Fed. Reg.

23 at 44,183. Such clear knowledge by the parties of who represents a respondent would facilitate

24 the respondent’s ability to obtain future relief if the practitioner engages in ineffective assistance.

25 See, e.g., Castillo-Perez v. INS, 212 F.3d 518, 525-26 (9th Cir. 2000) (discussing infective 26 assistance of counsel claims in immigration court proceedings); Hernandez v. Mukasey, 524 F.3d

1014, 1017-19 (9th Cir. 2008) (discussing problems faced by individuals who rely on non-

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P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 14 Filed 05/11/17 Page 25 of 26

1 attorney advise for immigration court proceedings). Even more, the public has a strong interest

2 in ensuring that EOIR enforces reasonable standards of conduct in the nation’s immigration

3 courts, a goal furthered by the Notice of Appearance requirement. EOIR and the public at large

4 have a strong interest in enforcing a rule that makes clear to all parties in immigration court

5 proceedings who is representing a particular respondent with all the rights and responsibilities

6 attached to that representation.

7

NWIRP’s argument that the Notice of Appearance requirement does not advance any

8 EOIR interest, Mot. for TRO at 24, ignores the reason the regulation was enacted – to ensure

9 practitioners do not avoid the responsibility of formal representation. 73 Fed. Reg. at 44, 183.

10 Any burden on NWIRP to undertake formal representation before the immigration court is

11 outweighed by EOIR’s need “that, at any given time, there is no ambiguity as to who has been

12 given, and who has accepted, the responsibility of representing a party before it.” Singh, 315

13 F.3d at 1189. The last two factors weigh against the issuance of a TRO.

14

VI. CONCLUSION

15

For the foregoing reasons, this Court should deny Plaintiffs’ motion for a temporary

16 restraining order.

17

18

19

20

21

22

23

24

25

26

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER UNDER LOCAL RULE 65(B)(5)
(Case No. 2:17-cv-716)
-20-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 14 Filed 05/11/17 Page 26 of 26

Dated: May 11, 2017.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
WILLIAM C. PEACHEY Director Office of Immigration Litigation
GISELA A. WESTWATER Assistant Director
C. FRED SHEFFIELD KATHERINE J. SHINNERS Trial Attorneys
/s/ Victor M. Mercado-Santana VICTOR M. MERCADO-SANTANA Trial Attorney Civil Division, Office of Immigration Litigation United States Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-7001 Facsimile: (202) 616 -8962 victor.m.mercado-santana@usdoj.gov
/s/ Gladys M. Steffens Guzmán GLADYS M. STEFFENS GUZMÁN Office of Immigration Litigation Department of Justice, Civil Division Trial Attorney, District Court Section 450 5th Street, NW Washington, DC 20001 Telephone: (202) 305-7181 Facsimile: (202) 305-1890
E-Mail: gladys.steffens-guzman@usdoj.gov
Counsel for Defendants

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER UNDER LOCAL RULE 65(B)(5)
(Case No. 2:17-cv-716)
-21-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

 
 Case 2:17-cv-00716-RAJ Document 21 Filed 05/12/17 Page 1 of 15

1

2

3 4 5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

10 NORTHWEST IMMIGRANT RIGHTS
PROJECT (“NWIRP”), a nonprofit Washington 11 public benefit corporation; and YUK MAN
MAGGIE CHENG, an individual, 12
Plaintiffs, 13
v. 14
JEFFERSON B. SESSIONS III, in his official 15 capacity as Attorney General of the United
States; UNITED STATES DEPARTMENT OF 16 JUSTICE; EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; JUAN OSUNA, in 17 his official capacity as Director of the Executive
Office for Immigration Review; and JENNIFER 18 BARNES, in her official capacity as
Disciplinary Counsel for the Executive Office 19 for Immigration Review,

No. 2:17-cv-00716 PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER
ORAL ARGUMENT REQUESTED

20

Defendants.

21

22

23

24 25 26

27

PLS’ REPLY RE: TRO - 1 (Case No. 2:17-cv-00716)

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I. INTRODUCTION

1

EOIR’s Opposition is based on the misguided assumption that by “allowing” NWIRP to

2

engage in some generalized activities, EOIR is not infringing on NWIRP’s constitutionally

3

protected rights to provide legal advice and limited representation to individuals in removal

4

proceedings. EOIR’s characterization of the services and programs NWIRP can provide obscures

5

the actual issue: EOIR’s cease and desist letter prescribes an “all or nothing” approach to legal

6

representation, compelling NWIRP to either refrain from offering any legal advice and assistance

7

whatsoever or commit to full representation throughout an individual’s removal proceedings,

8

notwithstanding its finite resources. EOIR seeks to obscure the issue by pointing out that NWIRP

9

is still permitted to provide community presentations and clerical assistance in filling out

10

paperwork. However, such activities are not a constitutionally-permissible substitute for providing

11

individualized legal advice and limited assistance in completing application forms and filing

12

motions, among other activities.

13

Notably, EOIR’s cease and desist letter represents a sudden shift in its implementation of

14

the regulations defining “practice” and “preparation.” Prior to the cease and desist letter, NWIRP

15

could provide limited representation to immigrants. Now, it is prohibited from doing so. EOIR

16

does not dispute this new prohibition, but it fails to address the reason for the change, or even to

17

acknowledge that it occurred. Plaintiffs are suffering immediate irreparable harm as a result of this

18

intrusion on their First Amendment rights. In response, EOIR is unable to demonstrate how an

19

order from this Court preserving the status quo while the parties have an opportunity to more fully

20

present their positions causes them any hardship or undermines the public interest.

21

II. ARGUMENT

22 A. EOIR Ignores and Misrepresents the Impact of the Rule and Its Effect on NWIRP

23

Throughout its Opposition, EOIR attempts to downplay the impact of its compulsory-

24 representation Rule by insisting that it “merely subjects lawyers to a requirement to enter their

25 appearance when filing motions in immigration court and before the Board.” Opp’n 17. EOIR

26 refuses, however, to engage with the central premise of NWIRP’s Motion: that by requiring a

27 notice of appearance, the Rule in effect compels attorney to represent the client for the duration of

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1 the proceeding. EOIR also incorrectly suggests that NWIRP’s Motion does not “explain how the

2 consequences of entering a notice of appearance on behalf of their clients cannot be remedied later

3 by a motion to withdraw.” Opp’n at 18. EOIR ignores the point NWIRP repeatedly emphasizes in

4 its Motion—an “attorney cannot withdraw from representation without leave of the immigration court,

5 and that leave is granted only in exceptional circumstances.” Mot. 4 (citing Immigration Court Practice

6 Manual, Rule 2.3(d)). In other words, if an attorney enters an appearance, he or she is committing (and

7 must be prepared to commit) to represent the client for the duration of the proceeding.

8

EOIR also attempts to narrowly recast the legal services its Rule impedes, suggesting that

9 NWIRP can still broadly engage in a range of services to immigrants without implicating the Rule.

10 As a threshold matter, this position is legally unsound: EOIR cannot justify a restraint on the

11 giving of legal advice—a constitutionally protected activity—by suggesting there are other

12 activities its Rule does not burden. But EOIR also dramatically undersells the impact of its Rule.

13

EOIR’s change in interpretation precludes NWIRP from offering legal advice and

14 assistance in a number of ways. Per EOIR’s guidance “preparation constituting practice” occurs

15 whenever “the legal representative (1) studies the facts of the case, (2) gives legal advice, and (3)

16 performs other activities, such as the preparation of forms or a brief for the Immigration Court.”

17 Dkt. 14-2 at 3. This vague definition can include nearly anything an attorney does, and most

18 certainly infringes on work NWIRP does that is crucial to its mission. Even under the very same

19 guidance EOIR now points to as justification for all of the activities NWIRP can still supposedly

20 continue, EOIR still condemns the following practices:

21 • Interview individuals in removal proceedings about their immigration and personal history;

analyze their potential options for relief; ensure that they “select specific immigration forms

22

. . . to complete,” and “provide advice on how to answer a question.” Compare Dkt. 14-2 at

7, with Dkt. 1 at ¶ 3.21(b)-(c).

23

• Interview asylum seekers about the harm they suffered in their home country; advise them

24

of their eligibility for asylum, withholding of removal, or relief under CAT; explain why it

is critical to include certain facts in the application; and provide evidence of country

25

conditions that the individual would not otherwise know to research or be able to access.

Compare Dkt 14-2 at 6–7 (attorneys may only assist immigrants in obtaining those

26

documents that the client has “independently determined” are “necessary for their

immigration case,” and, in assisting with forms, may not “provide advice on how to answer

27

a question”), with, e.g., Dkt. 3 at ¶ 8 (individuals who have “limited education or

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knowledge of English”), and id. at ¶ 9 (individuals who are “illiterate or speak a rare

1

language”).1

2 • Review an individual’s notice to appear (charging document) and other documents,

determine their grounds of removability and available forms of relief, then prepare

3

corresponding motions or applications for relief. Dkt. 1-1 at ¶ 3.21(g); Dkt. 4 at ¶ 8

(explaining that NWIRP cannot enter an appearance for removal proceedings in another

4

state); id. at ¶ 16 (citing an example of an individual who needed such assistance).

5 • Interview an individual about their criminal history and charges of removability, research

and analyze whether a certain conviction constitutes a ground of removability, then help

6

draft a motion to terminate proceedings or provide them with already-prepared briefs on

whether certain convictions constitute removable offenses. Dkt. 1 at ¶ 3.21(f); Ex. 3 at ¶ 11

7

(noting “complex and evolving” nature of such legal analysis).

8 • Review the facts of an individual’s prior removal case, advise them of the legal grounds to

re-open removal proceedings, then help draft and file a motion to reopen, as expressly

9

instructed by the cease-and-desist letter. Dkt. 1 at ¶ 3.21(h) Dkt. 1-1 at 1-2; Dkt. 3 at ¶ 10

(discussing importance of pro se assistance for motions to reopen).

10

These are all activities that are barred even under the guidance Defendants proffer in

11

support of their position. In fact, EOIR is not even consistent in its own filing about what NWIRP

12

can and can’t do under the Rule, further illustrating the Rule’s constitutional infirmities. EOIR

13

suggests the Rule “does not cover assistance in the preparation of forms.” Opp’n 3. But this

14

directly conflicts with the position taken by their disciplinary counsel that NWIRP cannot assist

15

immigrants in filling out asylum applications. Dkt. 1 ¶ 3.13; Opp’n at 5. And the guidance EOIR

16

attaches to its brief states that attorneys “may not advise the individual on how to answer a

17

question based on a participant’s particular factual situation and the applicable law,” “select

18

specific immigration forms for an individual to complete,” or “provide advice on how to answer a

19

question.” Opp’n at 7. In other words, EOIR would turn NWIRP into voiceless scribes, unable to

20

provide any reasonable degree of legal assistance or advice.

21

Despite EOIR’s efforts to downplay the impact of its Rule, these restrictions are having,

22

and will continue to have, a profound and adverse impact on NWIRP’s ability to assist immigrants.

23 B. EOIR’s Content-Based Rule Violates Plaintiffs’ First Amendment Rights

24

1. NWIRP Has a First Amendment Right to Speak as an Advocate

25

26 1 This is particularly important for individuals who are facing a one-year deadline, Dkt. 4 at ¶ 7, 8, 12 (discussing

27

exigency of pro se assistance for those facing a one-year deadline) and for detained individuals, whose only alternative is to ask for help from a fellow detainee. Dkt. 3 at ¶ 9.

PLS’ REPLY RE: TRO - 3 (Case No. 2:17-cv-00716)

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1

EOIR’s arguments fail to override the overwhelming authority—including Button,

2 Primus, and LSC—that provides First Amendment protection to nonprofit legal organizations

3 engaging in legal work to further their mission. As a non-profit legal organization that promotes

4 and defends the statutory and constitutional rights of immigrants, NWIRP is entitled to the free

5 speech guarantees as an “advocate [for] lawful means of vindicating legal rights.” NAACP v.

6 Button, 371 U.S. 415, 429, 437 (non-profit legal services providers have a constitutionally

7 protected right to free speech).

8

In attempting to refute NWIRP’s First Amendment claim, EOIR relies on authority that is

9 readily distinguishable from the instant case. See Dkt. 14 at 13–14. In Jacoby & Meyers, LLP v.

10 Presiding Justices of the First, Second, Third & Fourth Departments, Appellate Div. of the

11 Supreme Court of N.Y., 852 F.3d 178, 186 (2d Cir. 2017) (attorneys at a for-profit law firm did not 12 have a First Amendment right to associate with clients).2 The court carefully distinguished the

13 lesser protections due to for-profit lawyers than those of nonprofit lawyers engaged in advocacy

14 work: 15 16 17 18

In fact, the Court has explicitly distinguished between the First Amendment protections enjoyed by attorneys who, as part of an advocacy group like the ACLU or the NAACP, have recognized associational rights, and attorneys who are engaged in litigation for their own commercial rewards, albeit in the context of advancing or protecting the interests of their clients. 852 F.3d at 186.
EOIR’s reliance on Singh v. I.N.S. is particularly misplaced. The decision emphasizing

19 the importance of the notice of appearance requirement, in which the Court affirmed that the

20 agency “has a substantial interest in assuring that, at any given time, there is no ambiguity as to

21 who has been given, and who has accepted, the responsibility of representing a party before it.”

22 Opp’n at 10. But that is precisely the point. In giving legal advice and limited assistance to pro se

23
2 Other authorities cited by EOIR are similarly distinguishable. See Christian Leadership Conference v. Supreme
24 Court of State of La., 252 F.3d 781, 789 (5th Cir. 2001) (students in law school clinics were not entitled to same
protections as members of the bar); Mothershed v. Justices of Supreme Court, 410 F.3d 602, 612 (9th Cir. 2005)
25 (state bar regulations did not violate the First Amendment because it applied to all out-of-state attorneys, was
narrowly tailored, and left available alternative channels); Romero v. U.S. Dep't of Justice, 556 F. App'x 365, 367
26 (5th Cir. 2014) (EOIR could regulate Venezuelan lawyer who appeared before the court and represented herself as
an attorney before the EOIR); Singh v. I.N.S., 315 F.3d 1186, 1189 (9th Cir. 2003) (attorney failed to enter notice of
27 appearance when he and his client had agreed to full representation before EOIR).

PLS’ REPLY RE: TRO - 4 (Case No. 2:17-cv-00716)

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1 unrepresented immigrants, both NWIRP and its clients are absolutely clear and in agreement that

2 NWIRP has not accepted the responsibility of representing the immigrant before EOIR. Unlike

3 the attorney in Singh, who failed to enter a notice of appearance when he agreed to (and did) fully

4 represent a client before EOIR, NWIRP and its clients both understand NWIRP is not undertaking

5 full representation. Unlike in the Singh case, the application of EOIR’s Rule here does not

6 eliminate “ambiguity” about the scope of representation. Instead, it imposes a requirement of full

7 representation once a lawyer provides “advice” to an immigrant, thereby imposing an undue and

8 unwanted burden on the lawyer if and once they give legal advice. This advice “unquestionably

9 constitutes speech within the meaning of the First Amendment.” Sorrell v. IMS Health, Inc., 564 U.S.

10 552, 570 (2011) (internal quotations omitted).

11

2. The Rule Imposes a Content-Based Restriction, Subject to Strict Scrutiny

12

EOIR relies on Mothershed, 410 F.3d at 611, to argue that the regulations are content-

13 neutral because they “apply to all attorneys who practice before the immigration courts.” [Dkt. 14

14 at 16]. EOIR makes two fundamental mistakes. First, the restrictions found to be content-neutral

15 in Mothershed are completely unlike the restrictions at issue here. In Mothershed, the court upheld

16 a state rule requiring out-of-state attorneys to be admitted pro hac vice before appearing in a

17 particular matter. The restriction applied “without regard to the subject matter of the

18 representation,” it imposed a minor procedural requirement without any significant burden, and it

19 left open “ample alternative channels” because clients within the state were free to receive

20 assistance from attorneys already licensed in the state. None of those is true with respect to the

21 Rule here.

22

Second, the Rule is unquestionably a content-based restriction. The Rule’s definition of

23 “preparation” does not trigger the compulsory-representation requirement unless and until an

24 attorney provides “advice.” See 8 C.F.R. § 1001.1(k). Speech that does not contain advice does

25 not trigger the requirement. For example, as EOIR acknowledges, an attorney may “translate what

26 is written on [a] form and explain any language that is unclear.” Dkt. 14-2 at 7. But other types of

27 speech are forbidden: attorney cannot, for instance, “advise an individual on how to answer a

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1 question.” Id. To determine whether an attorney has engaged in conduct sufficient to trigger the

2 Rule’s requirements, EOIR must examine the content of what the attorney has said to the client to

3 see if it constitutes “advice.” Thus, while the Rule “may be described as directed at conduct . . . as

4 applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a

5 message.” Holder v. Humanitarian Law Project, 561 U.S. 1, 27 (2010). If attorneys want to

6 confer with clients without triggering the Rule’s compulsory-representation requirement, “whether

7 attorneys may do so...depends on what they say.” Id.

8

Even if EOIR’s interest in identifying the attorney helping an immigrant to prepare a

9 motion or form was a compelling one, that interest is equally served by a more narrowly tailored

10 rule that would simply require the attorney to self-identify, without the additional and burdensome

11 requirement of undertaking full representation. EOIR offers no rationale for why this (or another)

12 more narrowly tailored approach does not adequately satisfy its interest. 3. The Rule Violates the First Amendment
13 Even if the Rules was content-neutral, it still cannot withstand intermediate scrutiny
14 because it is not narrowly tailored to accomplish EOIR’s purposes. EOIR admits that, even under
15 intermediate scrutiny, a “time, place, and manner restriction”—which this Rule is not—cannot
16 survive review if it significantly restricts “a substantial quantity of speech that does not create the
17 same evils.” Opp’n 16 (citing Mothershed, 410 F.3d at 612). EOIR’s Rule is not narrowly tailored
18 to meet its purported goals, and in the interim, it sweeps in and burdens a vast swath of protected
19 speech. Relevant here, NWIRP does not charge for pro se services to persons in deportation
20 proceedings, so any purported interest in preventing notario fraud is inapplicable, Additionally,
21 NWIRP self-identifies on any motion or brief it assists clients in preparing, so EOIR’s purported
22 interest in assuring attorneys are identifiable for disciplinary purposes is already served. Further
23 diminishing EOIR’s purported rationale is that EOIR does not allege a single instance of any actual
24 misconduct in NWIRP’s filings, or a situation where it could not trace NWIRP’s conduct back to
25 NWIRP. In short, none of the purported “evils” the Rule is designed to prevent are being inhibited
26

27
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1 by applying this Rule to NWIRP; but in the process of doing so, EOIR has burdened a substantial

2 quantity of otherwise-protected speech.

3

EOIR confuses the issue by submitting a memorandum relating to the Legal Orientation

4 Program (LOP). This is a specific program that provides some of NWIRP’s funding and imposes

5 certain restrictions on the use of those funds. The program is separate from NWIRP’s limited

6 assistance and legal advice to clients, and the program does not “prohibit [NWIRP] from providing

7 direct legal representation using non-LOP funding.” Dkt. 14-2 at 8. Nonetheless, the

8 memorandum confirms EOIR’s limitless and vague scope of what it considers “representation.”

9 For example: i) NWIRP cannot provide “consultations” to clients in removal proceedings—a

10 crucial part of NWIRP’s work and mission; ii) attorneys may “not give legal advice concerning the

11 individual’s specific case,” leaving immigrants without help navigating the quagmire of the

12 immigration process and forms of available relief; iii) attorneys cannot study the facts of the case,

13 give legal advice, and perform other activities such as the preparation of forms; iv) attorneys

14 cannot prepare or provide “specific written materials,” impeding work for detainees where NWIRP

15 provides country condition packets; v) attorneys can only provide personal documents where

16 “unrepresented individuals [] have independently determined that such documents are necessary

17 for their immigration case;” and vi) attorneys cannot provide any advice as to how to fill out any

18 form or how to answer any question. Dkt. 14 at 3, 6, 11-12. These activities are at the heart of

19 NWIRP’s legal advocacy. EOIR does not acknowledge that to survive intermediate scrutiny, the

20 Rule must “leave open ample alternative channels for communication of the information.” Ward v.

21 Rock Against Racism, 491 U.S. 781, 791 (1989). It leaves open no alternative channels for an

22 unrepresented immigrant to receive legal advice and assistance, unless a lawyer is willing to

23 assume the burdens associated with full representation. The Rule therefore fails intermediate

24 scrutiny.

25 C. The Tenth Amendment Prohibits EOIR from Undermining the States’ Authority

26

EOIR tries to rebut NWIRP’s Tenth Amendment arguments by regurgitating NWIRP’s

27 statement in the Motion that, as a federal agency, EOIR has “inherent powers to regulate the

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1 conduct of attorneys who appear and practice before [it].” Opp’n 12 (emphasis added) (citing

2 Mot. 17). EOIR then expand upon this, suggesting the Rule “serves the critical role of placing the

3 parties in notice of who is the representative of a particular respondent in a removal proceeding,”

4 and that a lawyer’s “professional obligations plainly require the attorney to enter a notice of

5 appearance” whenever the attorney “represents a client in proceedings before the immigration

6 court.” Opp’n 13–14. EOIR completely misses the point, however. As NWIRP showed in its

7 motion, EOIR is limited to regulating the conduct of only those attorneys who appear and practice

8 before it. Ergo, if an attorney does not appear and practice before the agency in a particular

9 matter, EOIR does not have the power to regulate that attorney’s conduct in that matter. Of

10 course, nothing would prevent EOIR from reporting alleged misconduct to the relevant state bar.

11

This is precisely the issue here, and this is why EOIR’s Rule is incompatible with the

12 Washington Rules of Professional Conduct. Rule 1.2 unambiguously permits limited

13 representation where “limitation is reasonable under the circumstances and the client gives

14 informed consent.” WRPC 1.2(c). Because NWIRP’s legal advice and assistance to pro se

15 individuals occur outside EOIR proceedings, such activities are not subject to EOIR regulations

16 and thus fall well “within the limits imposed by law and the lawyers’ professional obligations.”

17 WRPC 1.2 cmt. 1.

18

EOIR also fundamentally misreads Sperry. The case does not demonstrate that “to the

19 extent that any Washington rule may appear inconsistent with EOIR’s requirements, the state rule

20 must yield.” Opp’n at 13. As an initial matter, this statement, in and of itself, is a breathtaking—

21 and entirely unsupported—assertion of agency authority. Sperry concerned the narrow issue of

22 whether a nonlawyer, when explicitly authorized to practice as a patent agent before the U.S.

23 Patent & Trademark Office, may do so in spite of the Florida bar’s efforts to regulate the

24 unlicensed practice of law. 373 U.S. at 404. Relying on the long history of nonlawyer practice

25 before the Patent Office and the overwhelming necessity of continuing that practice, the Court

26 found it “implicit … that registration in the Patent Office confers a right to practice before the

27 Office without regard to whether the State within which the practice is conducted would otherwise

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1 prohibit such conduct.” Id. at 389. Thus, Sperry stands for the unremarkable proposition that a

2 federal agency may, in its own limited forum, authorize non-lawyers to perform certain activities

3 irrespective of a state’s general efforts to regulate unlicensed practice of law. More broadly,

4 though, Sperry reaffirmed that the regulation of the practice of law is “otherwise a matter within

5 the control of the State.” Id. at 403-04.

6

The situation at hand is, in a sense, the inverse of Sperry. Here, a federal agency (EOIR)

7 seeks to prohibit (not permit) legal advice and assistance that is allowed (not forbidden) by the

8 relevant state bar association, and that, while bearing on an agency proceeding, occurs entirely

9 outside of that proceeding. Neither Sperry nor any other case suggests a federal agency may

10 extend its power outside of its own proceedings to control a lawyer’s practice of law when the

11 lawyer has not appeared and submitted herself to the jurisdiction of the agency in a particular

12 matter.

13

EOIR ignores the balance and substance of NWIRP’s Tenth Amendment arguments. It

14 does not contest that the regulation of the practice of law is a power specifically reserved to the

15 states under the Tenth Amendment. It does not dispute that its Rule compels an attorney to appear

16 and commit to representation of an immigrant once the attorney has engaged in either “practice” or

17 “preparation,” as the Rule defines those terms. It does not engage at all on the vague and

18 overbroad definitions of those terms. It does not contest that its Rule would compel attorneys to

19 undertake full representation of a client once the attorney provides any legal advice, even outside

20 of an agency proceeding, and even in those situations where neither the client nor the attorney

21 wants such representation. EOIR’s pointed silence on these issues only further illustrates why

22 NWIRP is likely to succeed in establishing its Tenth Amendment claims, and why temporary

23 injunctive relief is necessary.

24 D. 25

Plaintiffs Satisfy the APA and Have Standing to Bring Their Constitutional Claims EOIR contends that NWIRP has not adequately pleaded a cause of action under the APA,

26 and that even if it had, this Court could not review it because the cease and desist letter was not a

27 final agency action under the APA. EOIR is wrong on both points.
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1

First, NWIRP does not bring a claim under the APA; its complaint satisfies the

2 requirements of notice pleading under Fed. R. Civ. P. 8(a). NWIRP pled federal question

3 jurisdiction under 28 U.S.C. § 1331. “Laws of the United States” encompass 5 U.S.C. § 702,

4 governing judicial review of administrative actions, as well the First and Tenth Amendment.

5 Further, NWIRP’s allegations expressly challenge EOIR’s recent interpretation of its

6 administrative regulations and the regulations themselves. EOIR plainly received notice of the

7 nature of the action—a bare citation to 5 U.S.C. § 702 would have added no new information nor

8 substantively affected the parties.

9

Second, the cease and desist letter is not the only basis for this action. NWIRP also

10 alleges that 8 C.F.R. § 1001.1(k), the regulation defining “preparation,” as incorporated into 8

11 C.F.R. § 1003.102(t), is facially unconstitutional. Dkt. 1 ¶¶ 5.1–5.5. Given that NWIRP

12 challenged the regulation itself, “there can be no question that this regulation—promulgated in a

13 formal manner after notice and evaluation of submitted comments—is a ‘final agency action’

14 under § 10 of the Administrative Procedure Act, 5 U.S.C. § 704.” Toilet Goods Ass'n, Inc. v.

15 Gardner, 387 U.S. 158, 162 (1967). The cease and desist letter is a final action under the APA. It

16 satisfies the two conditions set forth by the Supreme Court in Bennett v. Spear: (1) it was not

17 tentative or interlocutory in nature, and (2) it gives rise to legal consequences. 520 U.S. 154, 177–

18 78 (1997). The cease and desist letter facially satisfies the first condition. It is not an invitation to

19 discuss; it states EOIR’s definitive interpretation of its regulations and concludes that NWIRP has

20 violated them. The letter also satisfies the second condition by implicitly threatening legal

21 consequences in the form of disciplinary sanctions. The Supreme Court has long held that such

22 agency actions are “final” for APA purposes. Just last year in U.S. Army Corps of Engineers v.

23 Hawkes Co, Inc., the court confirmed the “pragmatic” approach it has taken to finality. 136 S.Ct.

24 1807, 1815 (2016). Discussing Frozen Food Express v. U.S., 351 U.S. 40 (1956), the court noted

25 that even without authroity except to give notice, an order was immediately reviewable. Similarly,

26 EOIR iognores that its rule would subject NWIRP or any other attorney providing services to

27 immigrants to disciplinary sanctions.
PLS’ REPLY RE: TRO - 10 (Case No. 2:17-cv-00716)

Davis Wright Tremaine LLP
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Case 2:17-cv-00716-RAJ Document 21 Filed 05/12/17 Page 12 of 15

1

EOIR argues that the letter does not satisfy these conditions because it does not actually

2 impose discipline. But, NWIRP does not have to wait for disciplinary action. The Supreme Court

3 rejected this absurd premise in Hawkes holding that “parties need not await enforcement

4 proceedings before challenging final agency action where such proceedings carry the risk of

5 ‘serious criminal and civil penalties.’” Id. (internal quotations and citations omitted).

E. NWIRP Establishes Imminent and Irreparable Harm Absent an Injunction

6

1. Plaintiffs’ First Amendment Claims Establish the Requisite Harm

7

Plaintiffs are being deprived of their constitutional rights, which alone merits granting a

8 preliminary injunction. Dkt. 2 § III(C). EOIR’s own cited cases support this. Brown v. California

9 Dep’t of Transp., 321 F.3d 1217, 1225 (9th Cir. 2003) (“[t]o establish irreparable injury in the First

10 Amendment context...[plaintiffs] need only demonstrate the existence of a colorable First

11 Amendment claim.”). EOIR cites to nothing to challenge that Plaintiffs’ First Amendment claim

12 does not meet the minimally “colorable” standard. To the contrary, EOIR’s minimization of the

13 impact of the cease and desist letter is proven untrue by the tangible losses of NWIRP’s services.

14 Similarly, in a case cited by EOIR, Bible Club v. Placentia-Yorba Linda Sch. Dist., where the

15 plaintiff alleged a First Amendment claim, the court held that “[n]o further showing of irreparable

16 injury is necessary when the moving party has shown a probable violation of constitutional right.”

17 573 F. Supp. 2d 1291, 1300 (C.D. Cal. 2008) (granting injunction for club to have equal access to

18 school facilities). “In First Amendment cases, the presumption in favor of irreparable harm is

19 particularly strong, as the loss of First Amendment freedoms, for even minimal periods of time,

20 unquestionably constitutes irreparable injury for the purposes of the issuance of a preliminary 21 injunction.” Id. citing Elrod v. Burns, 427 U.S. 347, 373 (1976) (internal quotations omitted).3

22

2. Regulations Impacting First Amendment Rights Are Presumed Harmful

23

“Where a plaintiff alleges injury from a rule or regulation that directly limits speech, the

24 irreparable nature of the harm may be presumed.” Bronx Household of Faith v. Bd. of Educ. of

25 3 EOIR’s other support that First Amendment harm is insufficient is inapposite. Huston v. Burpo, 1995 WL

26 73097, at *5 (N.D. Cal. Feb. 13, 1995) (prisoner’s claim for interference with mail did not state a likelihood of
success or actual injury); G&G Fremont LLC v. City of Las Vegas, 2014 WL 4206882, at * 1-2 (D. Nev. Aug. 25,

27

2014) (plaintiffs who did not allege a constitutional violation did not show requisite harm through conclusory allegations that their businesses would be harmed).

PLS’ REPLY RE: TRO - 11 (Case No. 2:17-cv-00716)

Davis Wright Tremaine LLP
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Case 2:17-cv-00716-RAJ Document 21 Filed 05/12/17 Page 13 of 15

1 City of N.Y., 331 F.3d 342, 349 (2d Cir. 2003) overruled on other grounds Sasmor v. Powell, 2011

2 WL 4460461 at *1 (E.D.N.Y. Sept. 26, 2011) (harm presumed when deprivation of First

3 Amendment rights due to a policy). Plaintiffs allege specific harm to their First Amendment rights

4 as a direct result of the Rule.

5

3. Plaintiffs Can Assert Third-Party Harm on a Facial Challenge

6

Generally jurisdiction “can be invoked only when the plaintiff himself has suffered some

7 threatened or actual injury resulting from the putatively illegal action” Warth v. Seldin, 422 U.S.

8 490, 498 (1975) (internal citations and quotations omitted), in limited circumstances, a plaintiff has

9 third-party standing to assert the rights of others. The unique relationships giving rise to third10 party standing have been recognized in multiple situations.4 For third-party standing to be

11 permitted, the party bringing the claim: (1) must possess a concrete interest in the outcome of the

12 dispute (NWIRP’s mission to advocate for immigrants); (2) must have a close relationship with the

13 party whose rights it is asserting (attorney client relationship); and (3) there must be some

14 hindrance to the third party’s ability to protect its own interest (immigrant’s lack of English and

15 unlikely to assert representation rights). See Singleton, 428 U.S. at 114-15. .

16

4. The Balance of Equities and Public Interest Weigh in Plaintiffs’ Favor

17

EOIR’s interest in applying public law does not outweigh the constitutional interests of

18 Plaintiffs. For the reasons that EOIR’s alleged goals to promote compliance with the compulsory-

19 representation requirement are not narrowly tailored, they also do not serve the public interest.

20 EOIR purports to have an interest in identifying the attorneys practicing before it and maintaining

21 disciplinary authority over them. Dkt. 14 at 24. But, these goals are not impacted by NWIRP’s

22 practice; EOIR is able to identify NWIRP as practitioners on its filings, whether or not it enters a

23 notice of appearance. EOIR’s claimed public interest fails because it does not gain any additional

24 advantage in furthering its goals to identify and have disciplinary authority over counsel when

25 NWIRP is already identifying itself on its EOIR filings. .

26 4 See e.g. Singleton v. Wulff, 428 U.S. 106, 114 (1976) (doctors/patients) ; Barrows v. Jackson, 346 U.S. 249

27

(1953) (seller/purchaser); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (private school/student and parents); Craig v. Boren, 429 U.S. 190 (1976) (vendors/vendees).

PLS’ REPLY RE: TRO - 12 (Case No. 2:17-cv-00716)

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
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Case 2:17-cv-00716-RAJ Document 21 Filed 05/12/17 Page 14 of 15

1

DATED this 12th day of May, 2017.

2

DAVIS WRIGHT TREMAINE LLP

3

Attorneys for Northwest Immigrant Rights Project

4

By s/ Jaime Drozd Allen

Michele Radosevich, WSBA #24282

5

Jaime Drozd Allen, WSBA #35742

James Harlan Corning, WSBA #45177

6

Robert E. Miller, WSBA #46507

Laura-Lee Williams, WSBA #51358

7

1201 Third Avenue, Suite 2200

Seattle, WA 98101-3045

8

Telephone: (206) 622-3150

Fax: (206) 757-7700

9

E-mail: micheleradosevich@dwt.com

jaimeallen@dwt.com

10

jamescorning@dwt.com

robertmiller@dwt.com

11

lauraleewilliams@dwt.com

12

NORTHWEST IMMIGRANT RIGHTS

13

PROJECT

Matt Adams, WSBA #28287

14

Glenda M. Aldana Madrid, WSBA # 46987

Leila Kang, WSBA #48048

15

615 2nd Avenue, Suite 400

Seattle, WA 98104-2244

16

Phone: (206) 957-8611

Fax: (206) 587-4025

17

E-mail: matt@nwirp.org

glenda@nwirp.org

18

leila@nwirp.org

19

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24

25

26

27
PLS’ REPLY RE: TRO - 13 (Case No. 2:17-cv-00716)

Davis Wright Tremaine LLP
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Case 2:17-cv-00716-RAJ Document 21 Filed 05/12/17 Page 15 of 15

1

CERTIFICATE OF SERVICE

2

I certify that on May 12, 2017, I caused the freogoing documents via ECF to registered

3 counsel.

4 Declared under penalty of perjury under the laws of the State of Washington this 8th day
5 of May, 2017, in Seattle, Washington.
6

7

By /s Jaime Drozd Allen

Jaime Drozd Allen, WSBA #35742

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CERTIFICATE OF SERVICE (Case No. 2:17-cv-00716)

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
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 Case 2:17-cv-00716-RAJ Document 33 Filed 05/17/17 Page 1 of 6

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

10 NORTHWEST IMMIGRANT RIGHTS
PROJECT (“NWIRP”), a nonprofit 11 Washington public benefit corporation; and
YUK MAN MAGGIE CHENG, an 12 individual,

No. 2:17-cv-00716 ORDER

13

Plaintiffs,

14

v.

15 JEFFERSON B. SESSIONS III, in his
official capacity as Attorney General of the 16 United States; UNITED STATES
DEPARTMENT OF JUSTICE; 17 EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; JUAN 18 OSUNA, in his official capacity as Director
of the Executive Office for Immigration 19 Review; and JENNIFER BARNES, in her
official capacity as Disciplinary Counsel for 20 the Executive Office for Immigration
Review, 21
Defendants. 22

23

This matter comes before the Court on Plaintiffs Northwest Immigrant Rights

24 Project (“NWIRP”) and Yuk Man Maggie Cheng’s Motion for a Temporary Restraining 25 Order (“TRO”).1 Dkt. # 2. The Government opposes the motion.2 Dkt. # 14. The

26 27 1 The Court refers to the Plaintiffs collectively as “NWIRP” or “Plaintiffs.”
2 The Court refers to the Defendants collectively as “EOIR” or “the Government.”

ORDER-1

Case 2:17-cv-00716-RAJ Document 33 Filed 05/17/17 Page 2 of 6

1 Court heard oral argument on May 17, 2017. For the reasons stated below, the Court

2 GRANTS the motion and enters a TRO with terms as stated at the conclusion of this

3 order.

4

I. BACKGROUND

5

Washington nonprofit Northwest Immigrant Rights Project (“NWIRP”) provides

6 free and low-cost legal services to thousands of immigrants each year. Dkt. # 1. The

7 Executive Office for Immigration Review (“EOIR”), an office within the Department of

8 Justice (“DOJ”), oversees the adjudication of immigration cases. Id. at ¶ 1.5. In

9 seeking to improve immigrants’ access to legal information and counseling, EOIR

10 provides an electronic list of pro bono legal services providers. With regard to

11 Washington, EOIR’s entire list of recognized pro bono organizations includes one

12 group—the NWIRP. Dkt. ## 2 at 17, 3 (Warden-Hertz Decl.) at ¶ 4.

13

In December 2008, EOIR published new rules regulating the professional

14 conduct of attorneys who appear in immigration proceedings. Specifically, EOIR

15 reserved the right to “impose disciplinary sanctions against any practitioner who . . .

16 [f]ails to submit a signed and completed Notice of Entry of Appearance as Attorney or

17 Representative . . . when the practitioner has engaged in practice or preparation as those

18 terms are defined in §§ 1001.1(i) and (k) . . . .” 8 C.F.R. § 1003.102(t). The purpose of

19 these amendments was to protect individuals in immigration proceedings by disciplining

20 attorneys when it is within “the public interest; namely, when a practitioner has engaged

21 in criminal, unethical, or unprofessional conduct or frivolous behavior.” Professional

22 Conduct for Practitioners—Rules and Procedures, and Representation and Appearances,

23 73 Fed. Reg. 76914-01, at *76915 (Dec. 18, 2008). With these new rules, EOIR sought

24 “to preserve the fairness and integrity of immigration proceedings, and increase the

25 level of protection afforded to aliens in those proceedings . . . .” Id.

26

NWIRP recognizes the importance of attorney accountability, especially in the

27 immigration context. Indeed, NWIRP became an ally to EOIR in its efforts to combat

ORDER-2

Case 2:17-cv-00716-RAJ Document 33 Filed 05/17/17 Page 3 of 6

1 “notario fraud.” Dkt. # 1 (Complaint) at ¶ 3.12. However, NWIRP also recognizes that

2 section 1003.102(t) has harmful consequences because NWIRP does not have the

3 resources to undertake full representation of each potential client. Id. at ¶¶ 3.5, 3.21-

4 3.23. Accordingly, NWIRP alleges that it “met with the local immigration court

5 administrator to discuss” the rule’s impact and “agreed that it would notify the court

6 when it assisted with any pro se motion or brief by including a subscript or other clear

7 indication in the document that NWIRP had prepared or assisted in preparing the

8 motion or application.” Id. at ¶ 3.11.

9

Nearly nine years after promulgating the rule, EOIR sent a cease and desist letter

10 to NWIRP asking the nonprofit to stop “representing aliens unless and until the

11 appropriate Notice of Entry of Appearance form is filed with each client that NWIRP

12 represents.” Id. at ¶ 3.14. EOIR’s letter acknowledged that the disputed forms on

13 which NWIRP assisted “contained a notation that NWIRP assisted in the preparation of

14 the pro se motion.” Dkt. # 1-1.

15

NWIRP filed suit against EOIR, among others, seeking injunctive relief from the

16 enforcement of section 1003.102(t). See, generally, Dkt. # 1 (Complaint). In moving

17 for a temporary restraining order, NWIRP seeks to maintain the status quo until the

18 parties can be heard on a motion for preliminary injunction. Dkt. # 21; see also Granny

19 Goose Foods, Inc. v. Bhd. Of Teamsters & Auto Truck Drivers Local No. 70 of Alameda

20 Cty, 415 U.S. 423, 439 (1974). EOIR responds by denying that it has violated any

21 constitutional rights by promulgating and enforcing its own rules. See, generally, Dkt. #

22 14. EOIR opposes the issuance of any injunctive relief. Id.

23

II. LEGAL STANDARD

24

To obtain preliminary injunctive relief, NWIRP must “establish that [it] is likely

25 to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of

26 preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is

27 in the public interest.” Winter v. Natural Resources Defense Council, Inc., 55 U.S. 7,

ORDER-3

Case 2:17-cv-00716-RAJ Document 33 Filed 05/17/17 Page 4 of 6

1 20 (2008). The standard for a temporary restraining order is substantially the same.

2 Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001)

3 (noting that preliminary injunction and temporary restraining order standards are

4 “substantially identical”).

5

The Ninth Circuit employs a “sliding scale” approach to preliminary injunctions,

6 according to which the four elements are balanced, “so that a stronger showing of one

7 element may offset a weaker showing of another.” All. for the Wild Rockies v. Cottrell,

8 632 F.3d 1127, 1131 (9th Cir. 2011). Within this “sliding scale” approach lays the

9 “serious question” test: “a preliminary injunction could issue where the likelihood of

10 success is such that ‘serious questions going to the merits were raised and the balance of

11 hardships tips sharply in [plaintiff's] favor.’” Id. at 1131 (citations omitted). However,

12 to succeed under the “serious question” test, a plaintiff must show that it is likely to

13 suffer irreparable harm and an injunction is in the public interest. Id. at 1132.

14

Regardless of the test used, the burden is on the moving party to show that such

15 extraordinary relief is warranted. Winter, 555 U.S. at 22.

16

III. DISCUSSION

17

The Court finds that NWIRP has satisfied the standards described above—both

18 those outlined in Winter and in the “serious question” test—and this Court should issue

19 a TRO. NWIRP has shown that it is likely to succeed on the claims that entitle it to

20 relief; NWIRP has already suffered and is likely to continue suffering irreparable harm

21 in the absence of temporary injunctive relief; the balance of the equities tips in

22 NWIRP’s favor; and granting this TRO is in the public interest. Alternatively, NWIRP

23 has at least presented serious questions that go to the merits of its claims, and, as the

24 Court previously noted, NWIRP satisfies the remaining Winter elements.

25

The Court finds that NWIRP met its burden to show that it is immediately and

26 irreparably harmed, and will continue to be so harmed, as a result of EOIR’s

27 enforcement of 8 C.F.R. § 1003.102(t) against NWIRP attorneys. NWIRP’s

ORDER-4

Case 2:17-cv-00716-RAJ Document 33 Filed 05/17/17 Page 5 of 6

1 constitutional rights are violated by EOIR’s potentially targeted enforcement of section

2 1003.102(t). These harms are significant and ongoing, and the Court therefore finds

3 that entering this TRO against the Government is necessary to maintain the status quo

4 until such time as the Court may hear and decide the matter of a preliminary injunction.

5

IV. TEMPORARY RESTRAINING ORDER

6

1. Plaintiffs’ Motion for a Temporary Restraining Order (Dkt. # 2) is

7 GRANTED.

8

2. Defendants Jefferson B. Sessions III, the United States Department of

9 Justice, the Executive Office for Immigration Review, Juan Osuna, and Jennifer Barnes,

10 and all of their officers, agents, servants, employees, attorneys, successors, assigns, and

11 persons acting in concert or participation with them are hereby ENJOINED and

12 RESTRAINED from

13

(a) Enforcing the cease-and-desist letter, dated April 5, 2017, from Defendant

14

Barnes and EOIR’s Office of General Counsel to NWIRP; and

15

(b) Enforcing or threatening to enforce 8 C.F.R. § 1003.102(t) against

16

Plaintiffs and all other attorneys under their supervision or control, or who

17

are otherwise associated with them.

18

3. Counsel for the Government represented during the hearing on the TRO

19 that it desired to continue issuing cease and desist letters to non-profit organizations

20 providing legal services to immigrants. As such, the Court grants this TRO on a

21 nationwide basis. Therefore, the Court prohibits the enforcement of 8 C.F.R. §

22 1003.102(t) during the pendency of this TRO on a nationwide basis.

23

4. No security bond is required under Federal Rule of Civil Procedure 65(c).

24

5. The parties shall, within 2 days of this Order, propose a briefing schedule

25 and noting date with respect to Plaintiffs’ forthcoming motion for a preliminary

26 injunction. At that time, the Court may schedule a hearing on Plaintiffs’ motion for a

27 preliminary injunction, if necessary, following receipt of the parties’ briefing.

ORDER-5

Case 2:17-cv-00716-RAJ Document 33 Filed 05/17/17 Page 6 of 6

1

6. This temporary restraining order shall remain in effect until the Court

2 rules on Plaintiffs’ motion for a preliminary injunction.

3

V. CONCLUSION

4

For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion for a

5 Temporary Restraining Order. Dkt. # 2.

6

7

Dated this 17th day of May, 2017.

8

9 10

A

11

The Honorable Richard A. Jones

12

United States District Judge

13

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ORDER-6

 
 Case 2:17-cv-00716-RAJ Document 37 Filed 06/08/17 Page 1 of 36

1

The Honorable Richard A. Jones

2

3 4 5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

10 NORTHWEST IMMIGRANT RIGHTS
PROJECT (“NWIRP”), a nonprofit Washington 11 public benefit corporation; and YUK MAN
MAGGIE CHENG, an individual, 12
Plaintiffs, 13
v. 14
JEFFERSON B. SESSIONS III, in his official 15 capacity as Attorney General of the United
States; UNITED STATES DEPARTMENT OF 16 JUSTICE; EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; JUAN OSUNA, in 17 his official capacity as Director of the Executive
Office for Immigration Review; and JENNIFER 18 BARNES, in her official capacity as
Disciplinary Counsel for the Executive Office 19 for Immigration Review,

No. 2:17-cv-00716
MOTION FOR PRELIMINARY INJUNCTION
Note on Motion Calendar: June 30, 2017

20

Defendants.

21

22

23

24 25 26

27

MOTION FOR PRELIMINARY INJUNCTION (No. 2:17-cv-00716-RAJ)

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
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Case 2:17-cv-00716-RAJ Document 37 Filed 06/08/17 Page 2 of 36

TABLE OF CONTENTS

1

Page

2 TABLE OF AUTHORITIES.................................................................................................... iii

3 INDEX OF SUPPORTING MATERIALS ............................................................................ vii

4 I. INTRODUCTION ............................................................................................................. 1

5 II. FACTUAL BACKGROUND ........................................................................................... 1

6

A. The Vital Importance of Legal Assistance to Immigrants in Removal Proceedings ................................................................................................................ 1

7

B. NWIRP Plays a Critical Role in Providing Legal Assistance to

8

Immigrants ................................................................................................................. 2

C. EOIR Threatens NWIRP with Disciplinary Sanctions for Providing

9

Limited Legal Assistance to Unrepresented Immigrants ........................................... 3

10 III. ARGUMENT ..................................................................................................................... 5

11

A. Plaintiffs Are Likely to Succeed on the Merits .......................................................... 5

12

1. EOIR’s Compulsory-Representation Rule Violates the First Amendment Because It Unduly Burdens Plaintiffs’ Speech and

13

Petitioning Rights .............................................................................................. 6

a. As a Non-Profit Legal Advocate, NWIRP Has a First Amendment

14

Right to Advise Others of Their Legal Rights ......................................... 6

15

b. EOIR’s Rule Is a Restriction on Speech, Not Conduct ............................ 7

16

c. EOIR’s Rule is Subject to Strict Scrutiny Because It Imposes a Content-Based Restriction and Targets Political Speech ......................... 9

17

d. The Rule Cannot Survive Strict Scrutiny ............................................... 10

18

(1) EOIR Cannot Articulate a Compelling Interest in Enforcing

the Compulsory-Representation Rule............................................ 10

19

(2) The Rule Is Not Narrowly Tailored to Achieve EOIR’s Stated

20

Purpose, Nor Is It the Least Restrictive Means of Doing So......... 12

21

e. The Rule Cannot Survive Intermediate Scrutiny.................................... 15

22

2. EOIR’s Compulsory-Representation Rule Violates the Tenth Amendment by Attempting to Broadly Regulate Lawyer Conduct ................ 15

23

a. The Tenth Amendment Vests States with the Exclusive Right to

Regulate Lawyer Conduct Outside of Federal Judicial or Agency

24

Proceedings ............................................................................................ 15

25

b. The Tenth Amendment Limits Federal Agencies’ Ability to

Regulate the Practice of Law ................................................................. 16

26

c. EOIR’s Rule Advances an Impermissible Purpose and Encroaches

27

Upon the States’ Authority to Regulate Lawyer Conduct...................... 17

MOTION FOR PRELIMINARY INJUNCTION (No. 2:17-cv-00716-RAJ) – i

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Case 2:17-cv-00716-RAJ Document 37 Filed 06/08/17 Page 3 of 36

d. EOIR’s Rule Conflicts with the Duties Imposed on Attorneys under

1

State Law................................................................................................ 18

2

B. NWIRP Will Suffer Imminent and Irreparable Harm Absent an

Injunction ................................................................................................................. 19

3

C. The Balance of Equities and Public Interest Strongly Favor a Preliminary

4

Injunction ................................................................................................................. 21

5

1. The Public Interest Favors Preventing the Violation of Constitutional Rights............................................................................................................... 22

6

2. The Public Interest Favors Allowing Limited Representation ........................ 22

7

D. The Preliminary Injunction Should Provide Nationwide Relief .............................. 24

8 IV. CONCLUSION ................................................................................................................ 24

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MOTION FOR PRELIMINARY INJUNCTION (No. 2:17-cv-00716-RAJ) – ii

Davis Wright Tremaine LLP
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Case 2:17-cv-00716-RAJ Document 37 Filed 06/08/17 Page 4 of 36

1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 ACLU v. Mukasey, 534 F.3d 181 (3d Cir. 2008) .................................................................................................10
5

6

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) .................................................................................................5

7 Ashcroft v. ACLU,

8

542 U.S. 656 (2004) .............................................................................................................12

9 Baltazar-Alcazar v. INS,

386 F.3d 940 (9th Cir. 2004) ...................................................................................................1 10

Barrows v. Jackson,

11

346 U.S. 249 (1953) ..............................................................................................................21

12 Bond v. United States,

13

564 U.S. 211 (2011) ..............................................................................................................15

14 Bradwell v. People of State of Ill.,

83 U.S. (16 Wall.) 130, 139 (1872) .......................................................................................15 15

Bronx Household of Faith v. Bd. of Educ. of City of N.Y.,

16

331 F.3d 342 (2d Cir. 2003) ..................................................................................................19

17 Castro-O’Ryan v. INS,

18

847 F.2d 1307 (9th Cir. 1987) .................................................................................................1

19 Conant v. Walters,

309 F.3d 629 (9th Cir. 2002) ...............................................................................................6, 8

20

Craig v. Boren,

21

429 U.S. 190 (1976) ..............................................................................................................21

22 Drakes Bay Oyster Co. v. Jewell,

23

747 F.3d 1073 (9th Cir. 2013) ...............................................................................................21

24 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) ................................................................................................................9

25

Elrod v. Burns,

26

427 U.S. 347 (1976) ..............................................................................................................19

27

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Forsyth Cty., Ga. v. Nationalist Movement,

1

505 U.S. 123 (1992) ........................................................................................................13, 14

2 Goldfarb v. Va. State Bar,

3

421 U.S. 773 (1975) ..............................................................................................................15

4 Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) ................................................................................................................7, 9

5

Hunter ex rel. Brandt v. Regents of Univ. of Cal.,

6

190 F.3d 1061 (9th Cir. 1999) ...............................................................................................12

7 In re Primus,

8

436 U.S. 412 (1978) ................................................................................................7, 8, 10, 11

9 Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984) .............................................................................................6, 9

10

King v. New Jersey,

11

767 F.3d 216 (3d Cir. 2014))...................................................................................................8

12 Kivitz v. SEC,

13

475 F.2d 956 (1973) ..............................................................................................................16

14 Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001) ............................................................................................................7, 8

15 Leis v. Flynt,

16

439 U.S. 438, 442 (1979) ......................................................................................................15

17 McIntyre v. Ohio Elections Comm’n,

18

514 U.S. 334 (1995) ..........................................................................................................9, 14

19

Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ...........................................................................................19, 22

20 Moncrieffe v. Holder,

21

133 S. Ct. 1678, 1690 (2013) ................................................................................................21

22 NAACP v. Button, 371 U.S. 415 (1963) ...................................................................................................... passim
23

24

New York v. United States, 505 U.S. 144 (1992) ..............................................................................................................15

25 Ohralik v. Ohio State Bar Ass’n,

26

436 U.S. 447 (1978) ..............................................................................................................15

27

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Pickup v. Brown,

1

740 F.3d 1208 (9th Cir. 2014) ...............................................................................................14

2 Pierce v. Society of Sisters,

3

268 U.S. 510 (1925) ..............................................................................................................21

4 Preminger v. Principi,

422 F.3d 815 (9th Cir. 2005) .................................................................................................22

5

Reed v. Town of Gilbert, Ariz.,

6

135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015)..............................................................................9

7 Reno v. ACLU,

8

521 U.S. 844 (1997) ........................................................................................................12, 13

9 Sable Commc’ns of Cal., Inc. v. FCC, 92 U.S. 115 (1989) ................................................................................................................10

10

San Diego Comm. Against Registration & the Draft (Card) v. Governing Bd. of

11

Grossmont Union High Sch. Dist.,

790 F.2d 1471 (9th Cir. 1986) ...............................................................................................19 12

13

Singleton v. Wulff, 428 U.S. 106 (1976) ..............................................................................................................21

14 Small v. Avanti Health Sys., LLC,

15

661 F.3d 1180 (9th Cir. 2011) ...............................................................................................22

16 Snyder v. Phelps, 562 U.S. 443 (2011) ................................................................................................................9
17

18

Sperry v. State of Fla., 373 U.S. 379 (1963) ..............................................................................................................16

19 Touche Ross v. SEC,

20

609 F.2d 570 (2d Cir. 1979) ..................................................................................................16

21 United Mine Workers of Am., Dist. 12 v. Ill. State Bar Ass’n,

389 U.S. 217 (1967) ................................................................................................................7 22

Ward v. Rock Against Racism,

23

491 U.S. 781 (1989) ..............................................................................................................14

24 Winter v. Nat’l Res. Def. Council,

25

555 U.S. 7 (2008) ..............................................................................................................5, 22

26 Wollschlaeger v. Florida, 848 F.3d 1293 (11th Cir. 2017) ...............................................................................................8
27

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Statutes & Regulations 1 2 8 U.S.C. § 1229a(b)(4)(A).............................................................................................................2 3 8 C.F.R. § 1001.1...................................................................................................................3, 4, 7 4 8 C.F.R. § 1003.102(t).........................................................................................................3, 4, 17
5 8 C.F.R. § 1003.110(b) ................................................................................................................17

6 8 C.F.R. § 1292..............................................................................................................................3

7 73 Fed. Reg. 76,914...........................................................................................................3, 10, 11

8 80 Fed. Reg. 59,500.......................................................................................................................4

9 Court Rules

10 Imm. Ct. Prac. Man. Rule 2.3(d) ...................................................................................................4

11 Wash. Rule of Prof. Conduct Rule 1.2(c) & cmts. ......................................................................18

12 Wash. Rule of Prof. Conduct 1.6(a) & cmts..........................................................................18, 19

13

Other Authorities

14

Am. Bar Ass’n, “Fight Notario Fraud,”

15

http://www.americanbar.org/groups/public_services/immigration/

16

projects_initiatives/fightnotariofraud.html ............................................................................11

17 Arthur Best, Shortcomings of Administrative Agency Lawyer Discipline, 31 Emory L.J. 535 (1982)......................................................................................................16

18 Ingrid Eagly and Steven Shafer, American Immigration Council,

19

Access to Counsel in Immigration Court (Sept. 2016),

https://www.americanimmigrationcouncil.org/sites/default/files/research/

20

access_to_counsel_in_immigration_court.pdf ..................................................................2, 21

21 Public Comment Letter,

22

2006 WL 4774818 (IRS 2006) ..............................................................................................16

23

24

25

26

27

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1

INDEX OF SUPPORTING MATERIALS

2

Dkt. No.

3 Declarations

4 Ahmad, Prof.Muneer I. (Yale Law School) [Allen Decl. Ex. H]............................................................................................................ 39-8
5

6

Alger, Maureen P. (Cooley LLP) [Allen Decl. Ex. GG]....................................................................................................... 39-33

7 Barón, Jorge L. (NWIRP)............................................................................................................38

8 Bauer, Prof. Jon & Cabot, Jessica Anna (Univ. of Conn. School of Law)

9

[Allen Decl. Ex. F] ............................................................................................................ 39-6

10 Bildhauer, Juliann (Kids in Need of Defense) [Allen Decl. Ex. P] .......................................................................................................... 39-16
11

12

Chan, Prof. R. Linus (Univ. of Minn. Law School) [Allen Decl. Ex. C] ............................................................................................................ 39-3

13 Cheng, Yuk Man Maggie (NWIRP)..............................................................................................4

14 Davis, Claire Loebs (Lane Powell PC)

15

[Allen Decl. Ex. FF] ........................................................................................................ 39-32

16 Dos Santos, Cristina (Cmty. Legal Servs. in East Palo Alto)

17

[Allen Decl. Ex. E] ............................................................................................................ 39-5

18

Fleming, John H. (Eversheds Sutherland (US) LLP) [Allen Decl. Ex. V].......................................................................................................... 39-22

19 Frahn, Harrison J. (Simpson Thacher & Bartlett LLP)

20

[Allen Decl. Ex. CC] ....................................................................................................... 39-29

21 Fritz, Kathryn J. (Fenwick & West LLP) [Allen Decl. Ex. DD]....................................................................................................... 39-30
22

23

Josef, Ellyn Haikin (Vinson & Elkins, LLP) [Allen Decl. Ex. W]......................................................................................................... 39-23

24 Kathawala, Rene A. (Orrick, Herrington & Sutcliffe LLP)

25

[Allen Decl. Ex. Y].......................................................................................................... 39-25

26 Keller, John (Immigrant Law Ctr. of Minn.) [Allen Decl. Ex. I] ............................................................................................................. 39-9
27

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Kelly, Nancy (Greater Boston Legal Servs.)

1

[Allen Decl. Ex. O].......................................................................................................... 39-15

2 Kreimer, Frances M. (Dolores St. Cmty. Servs.)

3

[Allen Decl. Ex. N].......................................................................................................... 39-14

4 Lash, David A. (O’Melveny & Myers LLP)

[Allen Decl. Ex. EE]........................................................................................................ 39-31

5

Lindblom, Marjorie P. (Kirkland & Ellis LLP)

6

[Allen Decl. Ex. HH]....................................................................................................... 39-34

7 Little, Cheryl (AI Justice)

8

[Allen Decl. Ex. L] .......................................................................................................... 39-12

9 London, Judy (Public Counsel) [Allen Decl. Ex. M] ......................................................................................................... 39-13

10

Marcus, Prof. Lynn (Univ. of Ariz. College of Law)

11

[Allen Decl. Ex. Q].......................................................................................................... 39-17

12 Medway, Leah E. (Perkins Coie LLP)

13

[Allen Decl. Ex. Z] .......................................................................................................... 39-26

14 Murray, Mayor Edward B. (City of Seattle) [Allen Decl. Ex. II] .......................................................................................................... 39-35

15 Pennington, Alison (Centro Legal de la Raza)

16

[Allen Decl. Ex. T] .......................................................................................................... 39-20

17 Phelps, Kursten (Tahirih Justice Ctr.)

18

[Allen Decl. Ex. B] ............................................................................................................ 39-2

19

Roche, Susan (Immigrant Legal Advocacy Project) [Allen Decl. Ex. K].......................................................................................................... 39-11

20 Sennett, Caroline Devan (Int’l Institute of Conn.)

21

[Allen Decl. Ex. G]............................................................................................................ 39-7

22 Slater, Stacey (Nixon Peabody LLP) [Allen Decl. Ex. X].......................................................................................................... 39-24
23

24

Soloway, Audra J. (Paul, Weiss, Rifkind, Wharton & Garrison LLP) [Allen Decl. Ex. BB] ....................................................................................................... 39-28

25 Stolz, Richard (OneAmerica)

26

[Allen Decl. Ex. J] ........................................................................................................... 39-10

27

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Van Nortwick, Jr., William A. (Akerman LLP)

1

[Allen Decl. Ex. AA]....................................................................................................... 39-27

2 Warden-Hertz, Timothy (NWIRP) ................................................................................................3

3 Weissman-Ward, Lisa (Stanford Law School)

4

[Allen Decl. Ex. D]............................................................................................................ 39-4

5 Werner, Daniel (Southern Poverty Law Center)

[Allen Decl. Ex. U].......................................................................................................... 39-21 6

Zoltan, Paul S. (Refugee Support Networks)

7

[Allen Decl. Ex. R] .......................................................................................................... 39-18

8 Zukin, Valerie Ann (Bar Assoc. of S.F.)

9

[Allen Decl. Ex. S] .......................................................................................................... 39-19

10 Briefs by Amici Curiae

11 American Civil Liberties Union (ACLU) of Washington ....................................................... 20-1

12 Attorney General of Washington............................................................................................. 18-1

13 Transcripts

14 Excerpts from Oral Argument re: Plaintiffs’ Motion for Temporary Restraining Order

15

(May 17, 2017) [Allen Decl. Ex A]................................................................................... 39-1

16 Other Documents

17 Barnes, Jennifer J., EOIR, Cease & Desist Letter to NWIRP (Apr. 5, 2017)............................ 8-1

18 Lang, Steven, EOIR, Memorandum re: Legal Orientation Program Guidelines – Orientation vs. Representation (July 11, 2011)................................................................. 14-2
19

20

21

22

23

24

25

26

27

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1

I. INTRODUCTION

2

On May 17, 2017, this Court granted Northwest Immigrant Rights Project (“NWIRP”)’s

3 Motion for Temporary Restraining Order, enjoining the Executive Office for Immigration

4 Review (“EOIR”) from enforcing a “cease and desist” order that impaired NWIRP’s ability to

5 provide legal assistance to thousands of immigrants per year (Dkt. 33). The Court’s nationwide

6 TRO also prevented EOIR from targeting others for similar unconstitutional enforcement efforts.

7

This broad injunctive relief was, and remains, vitally necessary. EOIR cannot articulate

8 any constitutionally permissible justification for its newfound insistence that NWIRP either

9 commit in advance to full representation of every immigrant in removal proceedings—an

10 impossibility—or refrain from providing them any legal assistance. EOIR’s cease-and-desist

11 order will deprive thousands of unrepresented immigrants—including asylum seekers,

12 unaccompanied children, and those in detention—of the chance to consult with a NWIRP

13 attorney and receive critical assistance navigating the complex immigration system. If left

14 unchecked, EOIR’s unconstitutional conduct will cause immediate and irreparable harm to

15 NWIRP, its staff and volunteer attorneys, its clients, and countless other legal aid providers,

16 volunteer lawyers, and unrepresented immigrants across the country. For the reasons identified

17 previously (see Dkts. 2, 21) and those discussed below, the Court should convert the temporary

18 restraining order into a preliminary injunction, allowing NWIRP and others to continue

19 providing vital legal assistance to unrepresented immigrants while this lawsuit is pending.

20

II. FACTUAL BACKGROUND

21 A. 22

The Vital Importance of Legal Assistance to Immigrants in Removal Proceedings Removal proceedings have often been described as the second most complex legal

23 system, following only the tax code. Castro-O’Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir.

24 1987); see also Baltazar-Alcazar v. INS, 386 F.3d 940, 948 (9th Cir. 2004) (emphasizing the

25 complexity of the immigration system and noting lawyers may be the only ones capable of

26 navigating it). Removal proceedings are also fiercely adversarial, with a U.S. government-

27 employed attorney advocating against the noncitizen in every proceeding. Despite the

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1 complexity and adversarial nature of removal proceedings, and despite all that is at stake

2 (including, inter alia, forced return to persecution and torture as well as permanent separation

3 from family, home and employment), there is no right to appointed counsel for indigent persons

4 in removal proceedings. See 8 U.S.C. 1229a(b)(4)(A). This is true for unaccompanied children,

5 illiterate persons, and those in custody.

6

“Detainees who are represented by counsel prevail in their cases almost ten times more

7 often than those who proceed pro se.” Allen Decl. Ex. U ¶ 18; Ex. II ¶ 4. Yet, between 2007

8 and 2012, only 65 percent of non-detained individuals at immigration court in downtown Seattle

9 were represented by an attorney; while only eight percent of detained individuals in Tacoma

10 were represented. Id. Ex. II ¶ 4. Nationwide, for those detained while in removal proceedings, 11 approximately 86% are forced to proceed without any legal representation.1 Seattle ranks among

12 the top 20 metropolitan areas with the largest populations of undocumented/unauthorized

13 immigrants. Id. Against this backdrop, organizations like NWIRP provide crucial services to

14 otherwise unrepresented immigrants navigating the byzantine immigration legal system.

15 B. 16

NWIRP Plays a Critical Role in Providing Legal Assistance to Immigrants Founded in 1984, NWIRP seeks to promote justice by defending and advancing the

17 rights of immigrants through direct legal services, systematic advocacy, and community

18 education. Barón Decl. ¶ 2. NWIRP is the primary nonprofit legal services provider for

19 immigrants in removal proceedings in Washington State and for persons detained at the

20 Northwest Detention Center in Tacoma. Id. NWIRP relies on grants and contributions to fund

21 its operations and services. Id. NWIRP provides “Know Your Rights” (“KYR”) presentations,

22 community workshops, and individual consultations to unrepresented individuals. Id. ¶ 3.

23 NWIRP screens several thousand potential clients per year, and its staff attorneys provide direct

24 representation in hundreds of immigration cases before EOIR. Id. NWIRP also organizes pro

25 bono representation for more than 200 additional cases each year in removal proceedings. Id.

26

1 See Ingrid Eagly and Steven Shafer, American Immigration Council, Access to Counsel in Immigration Court,
27 (Sept. 2016), at 5, available at https://www.americanimmigrationcouncil.org/sites/default/files/research/
access_to_counsel_in_immigration_court.pdf.

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1

Full representation in removal proceedings entails the preparation and filing of required

2 procedural and substantive motions, applications and briefing for all defenses and forms of relief

3 for which the applicant is eligible and/or extensive documentation of key facts in the case,

4 including reports on country conditions, witness testimony, and evaluations by psychologists or

5 other medical professionals. Id. Removal proceedings also often involve multiple hearings over

6 the course of several years. Id. Due to time, cost, and other resource constraints, NWIRP cannot

7 provide full representation to every person who seeks out NWIRP’s assistance. Id. Therefore, to

8 meet the exigent need for legal assistance, NWIRP provides a range of limited services to

9 otherwise unrepresented immigrants. Id. These services include helping file motions to

10 terminate proceedings, change venue, and reopen old removal orders before EOIR. Dkt. 4 ¶ 5.

11 NWIRP also assists clients in preparing various forms seeking relief from removal, including

12 applications for asylum, family visas, cancellation of removal, special immigrant juvenile status,

13 and U & T visas for survivors of trafficking and violent crimes. Id.; Barón Decl. ¶ 4.

14

NWIRP’s limited legal services are critical to immigrants who cannot afford private

15 legal representation, especially unaccompanied children, detained persons, and those who are

16 illiterate or speak a rare language and therefore have difficulty accessing resources and preparing

17 their own filings. Dkt. 4 ¶ 9; Dkt. 3 ¶ 8. These services help pro se individuals navigate

18 complex immigration court procedures, file motions and applications with all information

19 necessary to preserve eligibility for relief, and understand their rights and options. Id. To ensure

20 accountability when providing these services, NWIRP provides written and oral notice to

21 individuals that it is not agreeing to represent them, and it explains to them the scope of the

22 services it will and will not provide. Dkt. 4 ¶ 10; Dkt. 3 ¶ 7.

23 C. EOIR Threatens NWIRP with Disciplinary Sanctions for Providing Limited Legal Assistance to Unrepresented Immigrants
24 On December 18, 2008, EOIR published a rule of professional conduct governing
25 “practitioners who appear before [EOIR].” See Professional Conduct for Practitioners, 73 Fed.
26 Reg. 76,914 (Dec. 18, 2008) (the “Rule”), codified at 8 C.F.R. §§ 1001, 1003 & 1292. Among
27 other things, EOIR’s Rule establishes that an attorney “shall be subject to disciplinary sanctions”

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1 if the attorney “[f]ails to submit a signed a completed Notice of Entry of Appearance … when

2 the [attorney] … [h]as engaged in practice or preparation.” 8 C.F.R. § 1003.102(t)(1). The Rule

3 further defines the terms “practice” and “preparation” as follows:

4

The term practice means the act or acts of any person appearing in any case,

either in person or through the preparation or filing of any brief or other

5

document, paper, application, or petition on behalf of another person or client

before or with DHS, or any immigration judge, or the Board .... 6

The term preparation, constituting practice, means the study of the facts of a

7

case and the applicable laws, coupled with the giving of advice and auxiliary

activities, including the incidental preparation of papers .... 8
8 C.F.R. § 1001.1(i), (k).

9 When this Rule was adopted, NWIRP met with the local EOIR immigration court

10 administrator to discuss the Rule’s impact on NWIRP’s services to pro se individuals. Barón

11 Decl. ¶ 5. NWIRP agreed that it would notify the courts of its assistance with any pro se motion

12 or brief by including a subscript or other clear indication that NWIRP had prepared or assisted in

13 preparing the motion or application. Id. In the nine years since the Rule was adopted, the

14 immigration courts have not raised any concerns to NWIRP about this practice. Id.

15 On April 13, 2017, NWIRP received a letter from Defendant Jennifer Barnes, EOIR’s

16 Disciplinary Counsel, stating EOIR was aware that NWIRP had assisted at least two pro se

17 applicants in filing motions without first filing notices of appearance. Dkt. 8-1. Defendant

18 Barnes instructed NWIRP to “cease and desist from representing aliens unless and until the

19 appropriate Notice of Entry of Appearance form is filed with each client that NWIRP

20 represents,” threatening discipline if NWIRP failed to do so. Id. EOIR did not, however, allege

21 NWIRP’s limited assistance to the two pro se individuals was in any way deficient. Id.

22 EOIR does not allow practitioners to enter limited notices of appearance to handle

23 discrete motions or issues in a removal case.2 Dkt. 4 ¶ 6; Dkt. 3 ¶ 7. Any attorney who appears

24 consents to fully represent the immigrant in the proceeding until its conclusion. The attorney

25 cannot withdraw from representation without leave of the immigration court, and leave is granted

26

27 2 The one exception allows for a limited appearance for the purpose of representing a respondent in a custody
proceeding. See Separate Representation for Custody and Bond Proceedings, 80 Fed. Reg. 59,500 (Oct. 1, 2015).

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1 only in exceptional circumstances. See Imm. Ct. Prac. Man. R. 2.3(d) (“Once an attorney has

2 made an appearance, that attorney has an obligation to continue representation until such time as 3 a motion to withdraw or substitute counsel has been granted by the Immigration Court.”);3 see

4 also Dkt. 4 ¶ 9. NWIRP lacks the resources to provide full representation of each immigrant to

5 whom it currently provides limited services. So, in effect, EOIR’s new interpretation of this

6 Rule will force NWIRP to discontinue providing limited legal services to thousands of

7 individuals in removal proceedings. Dkt. 4 ¶ 6; Dkt. 3 ¶ 14.

8

EOIR’s interpretation of the Rule compels NWIRP attorneys to accept a scope of

9 representation beyond what they and their clients have agreed to. EOIR’s letter also casts doubt

10 on whether NWIRP can initially consult with pro se persons or screen cases for referral to

11 volunteer attorneys. This uncertainty means NWIRP must now choose to either abandon most of

12 the services it provides to immigrants in removal proceedings or to continue to provide those

13 services under the imminent threat of disciplinary sanctions. EOIR’s letter has a considerable

14 chilling effect on NWIRP’s activities and the activities of other legal aid providers and volunteer

15 lawyers, impairing their ability to provide legal advice to and advocacy for immigrants.

16

III. ARGUMENT

17

To obtain a preliminary injunction, NWIRP must satisfy the same criteria it satisfied for

18 the TRO: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm if relief is

19 denied; (3) the balance of equities tips in the movant’s favor; and (4) the public interest favors

20 granting relief. See Winter v. Nat’l Res. Def. Council, 555 U.S. 7, 20 (2008). The Ninth Circuit

21 uses a balancing or “sliding scale” approach: where the balance of equities weighs strongly in

22 favor of the moving party, it may prevail if its claims raise serious legal questions and otherwise

23 meet the remaining factors. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131–

24 35 (9th Cir. 2011).

25 A. 26

Plaintiffs Are Likely to Succeed on the Merits NWIRP is likely to succeed on the merits of its claims because EOIR’s Rule, and its

27
3 https://www.justice.gov/sites/default/files/pages/attachments/2016/12/02/practice_manual.pdf#page=26.

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1 application to NWIRP, violates the First and Tenth Amendments. As it did when it entered the

2 TRO, the Court should again find that NWIRP is likely to succeed on the merits of its claims.

3

1. EOIR’s Compulsory-Representation Rule Violates the First Amendment

Because It Unduly Burdens Plaintiffs’ Speech and Petitioning Rights

4

The Rule violates NWIRP’s First Amendment right to advocate on behalf of

5

immigrants, including the right to speak and associate through the provision of nonprofit legal

6

services, and the right to petition the government for redress. NWIRP brings its challenge on

7

both an as-applied basis, to the extent EOIR seeks to enforce the rule against NWIRP through its

8

cease-and-desist letter, and on a facial basis, as the Rule is unconstitutional on its face. The Rule

9

cannot survive the applicable strict scrutiny standard, much less the lower, intermediate scrutiny

10

standard, because the Rule is not narrowly tailored to achieve EOIR’s purported interest.

11

a. As a Non-Profit Legal Advocate, NWIRP Has a First Amendment

12

Right to Advise Others of Their Legal Rights

13

NWIRP’s right to assist clients and prospective clients in removal proceedings is

14 protected by the First Amendment. “Attorneys have rights to speak freely subject only to the

15 government regulating with ‘narrow specificity.’” Conant v. Walters, 309 F.3d 629, 637 (9th

16 Cir. 2002) (citing NAACP v. Button, 371 U.S. 415, 433, 438–39 (1963)). “The Supreme Court

17 has repeatedly emphasized that counsel have a [First Amendment] right to inform individuals of

18 their rights ... when they do so as an exercise of political speech without expectation of

19 remuneration.” Jean v. Nelson, 727 F.2d 957, 983 (11th Cir. 1984), aff’d, 472 U.S. 846 (1985).

20

The First Amendment accords heightened free speech guarantees to Plaintiffs and

21 similarly situated persons who “advocate [for] lawful means of vindicating legal rights.”

22 NAACP v. Button, 371 U.S. 415, 429, 437 (1963). In Button, the Supreme Court upheld the

23 NAACP’s right to provide nonprofit legal services—as Plaintiffs do here—as “a form of political

24 expression” by “serving to vindicate the rights of members” of a particular community. Id. at

25 429, 431 (invalidating solicitation law prohibiting attorneys from advising others their legal

26 rights had been infringed and referring them to an attorney). Recognizing this form of legal

27 advice and advocacy was protected expression, the Court remarked that the First Amendment

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1 “protects vigorous advocacy, certainly of lawful ends, against governmental intrusion.” Id. at

2 429, 437. Thus, although EOIR asserts the Rule regulates lawyer conduct, EOIR “may not,

3 under the guise of prohibiting professional misconduct, ignore constitutional rights.” Id. at 439.

4

Since Button, the Supreme Court has continued to accord broad First Amendment

5 protections to lawyers who advise others of their legal rights. For example, in In re Primus, 436

6 U.S. 412 (1978), the Court affirmed South Carolina could “not abridge unnecessarily the

7 associational freedom of nonprofit organizations, or their members,” through broad lawyer

8 disciplinary rules. Id. at 439; see also United Mine Workers of Am., Dist. 12 v. Ill. State Bar

9 Ass’n, 389 U.S. 217, 221 (1967) (Button’s holding is not “narrowly limited” to “litigation that

10 can be characterized as a form of political expression”). In 2001, the Court affirmed the

11 government cannot “prohibit the analysis of certain legal issues” without violating the First

12 Amendment. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 545 (2001) (“LSC”). The Button,

13 Primus, and LSC trio of cases confirms that lawyers—and, in particular, non-profit legal

14 organizations—have an unfettered First Amendment right to advise clients and prospective

15 clients about their legal rights.

16

b. EOIR’s Rule Is a Restriction on Speech, Not Conduct

17

EOIR claims its Rule regulates conduct, not speech, because it applies to activities like

18 “practice” and “preparation.” As a threshold matter, EOIR’s argument is without merit.

19 “Preparation” includes, and in fact requires, the giving of “advice.” 8 C.F.R. § 1001.1(k). To

20 determine whether NWIRP engaged in “preparation,” EOIR must determine whether NWIRP

21 gave “advice”—which it can do only by examining the content of NWIRP’s speech.

22

Moreover, EOIR’s position contravenes Supreme Court precedent. A restriction on a

23 lawyer giving legal advice is a regulation of speech, not conduct. See Holder v. Humanitarian

24 Law Project, 561 U.S. 1, 25 (2010) (“HLP”) (rejecting as “extreme” the government’s argument

25 that a statute prohibiting lawyers from providing “expert advice or assistance” to terrorist

26 organizations regulated conduct rather than speech). As the Court explained in HLP, while a law

27 restricting the giving of legal advice “may be described as directed at conduct ... as applied to

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1 plaintiffs the conduct triggering coverage under the statute consists of communicating a

2 message.” Id. at 28 (upholding restriction under strict scrutiny because of national security

3 implications). “[L]abeling certain verbal or written communications ‘speech’ and others

4 ‘conduct’ is unprincipled and susceptible to manipulation.” Wollschlaeger v. Florida, 848 F.3d

5 1293, 1308 (11th Cir. 2017) (quoting King v. New Jersey, 767 F.3d 216 (3d Cir. 2014)).

6

Nor can EOIR avoid First Amendment scrutiny by characterizing its Rule as a regulation

7 of the legal profession. The Supreme Court routinely applies “heightened scrutiny to regulations

8 restricting the speech of professionals.” Wollschlaeger, 848 F.3d at 1310. “Being a member of a

9 regulated profession does not, as the government suggests, result in a surrender of First

10 Amendment rights.” Conant, 309 F.3d at 637 (citing Button, 371 U.S. at 433). EOIR’s primary

11 justification for the Rule is its purported need to regulate attorney conduct. But, “it is no answer

12 to the constitutional claims ... to say that the purpose of these regulations was merely to insure

13 high professional standards and not to curtail free expression.” Button, 371 U.S. at 438–39.

14

EOIR’s compulsory-representation rule infringes the same First Amendment speech

15 rights recognized by the Supreme Court in Button, Primus, LSC, and HLP. The First

16 Amendment “protects vigorous advocacy, certainly of lawful ends, against governmental

17 intrusion,” particularly when offered on a pro bono basis on behalf of an “unpopular minority.”

18 Button, 371 U.S. at 429, 434, 441. NWIRP exists to advocate for the rights of an “unpopular

19 minority”—immigrants in removal proceedings. And like the NAACP and ACLU, NWIRP’s

20 services to individual clients are part of the organization’s broader political efforts on behalf of 21 immigrants’ rights, which implicate free speech, free association, and petitioning rights.4

22 Moreover, by constraining NWIRP’s ability to advise persons in agency proceedings, the Rule

23 limits NWIRP’s right to provide “vigorous advocacy … against governmental intrusion”—which

24 is “even more problematic because ... the client is unlikely to find other counsel.” LSC, 531 U.S.

25

26 4 See Button, 371 U.S. at 428–29 (“[T]he activities of the NAACP, its affiliates and legal staff shown on this
record are modes of expression and association protected by the First and Fourteenth Amendments ... .”); id. at 430
27 (“[U]nder the conditions of modern government, litigation may well be the sole practicable avenue open to a
minority to petition for redress of grievances.”).

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1 at 546. As a result, EOIR’s Rule is subject to the “exacting [or strict] scrutiny applicable to

2 limitations on core First Amendment rights.” Primus, 436 U.S. at 432.

3

c. EOIR’s Rule is Subject to Strict Scrutiny Because It Imposes a

Content-Based Restriction and Targets Political Speech

4

EOIR’s Rule is subject to strict scrutiny for two separate reasons.

5

First, EOIR’s Rule is a content-based speech restriction. A content-based restriction is

6

one that “cannot be justified without reference to the content of the regulated speech.” Reed v.

7

Town of Gilbert, 135 S. Ct. 2218, 2227 (2015). “[A] speech regulation targeted at specific

8

subject matter is content based even if it does not discriminate among viewpoints within that

9

subject matter.” Id. at 2229–30. Content-based speech restrictions are presumptively

10

unconstitutional and subject to strict scrutiny. Id. at 2226. This is particularly true when the

11

speech consists of legal advice given by an attorney. See HLP, 561 U.S. at 27. The Rule singles

12

out a certain form of speech (legal advice) on a specific subject matter (immigration law)

13

directed at unrepresented immigrants in removal proceedings, and curtails it. If NWIRP intends

14

to speak to unrepresented immigrants who seek legal advice, and wants to do so without

15

triggering the compulsory-representation rule, “whether [it] may do so ... depends on what [it]

16

say[s].” HLP, 561 U.S. at 27 (2010). This is the essence of an impermissible content restriction.

17

Second, strict scrutiny is warranted because the Rule targets political speech on issues of

18

public concern. The Supreme Court “has frequently reaffirmed that speech on public issues

19

occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special

20

protection.” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759 (1985)

21

(internal quotations omitted). This special protection extends to speech “relating to any matter of

22

political, social, or other concern to the community .....” Snyder v. Phelps, 562 U.S. 443, 453

23

(2011) (citations and quotations omitted). Informing immigrants of their legal rights without

24

expecting compensation is “an exercise of political speech.” See Jean, 727 F.2d at 983. And

25

when a “law burdens core political speech,” strict scrutiny unquestionably applies. McIntyre v.

26

Ohio Elections Comm’n, 514 U.S. 334, 347 (1995).

27

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d. The Rule Cannot Survive Strict Scrutiny

1

“To survive strict scrutiny … a statute must: (1) serve compelling governmental interest;

2

(2) be narrowly tailored to achieve that interest; and (3) be the least restrictive means of

3

advancing that interest.” ACLU v. Mukasey, 534 F.3d 181, 190 (3d Cir. 2008) (citing Sable

4

Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115 (1989)). The Rule fails every element of that test.

5

(1) EOIR Cannot Articulate a Compelling Interest in Enforcing

6

the Compulsory-Representation Rule

7

Because NWIRP asserts both facial and as-applied challenges to the Rule, EOIR must

8 articulate both a compelling interest the Rule generally advances and a compelling interest EOIR

9 has in applying the Rule to NWIRP. See Primus, 436 U.S. at 434–35 (solicitation rule

10 unconstitutional as applied to lawyer “unless her activity in fact involved the type of

11 misconduct” the rule was intended to prevent; no evidence that misconduct “actually occurred”

12 in her case). EOIR asserts various justifications for its Rule, but none of those justifications are

13 served by the Rule in general or by enforcing the Rule against NWIRP:

14

First, in enacting the Rule, EOIR explained it wanted “to advance the level of

15 professional conduct in immigration matters and foster increased transparency in the client-

16 practitioner relationship.” 73 Fed. Reg. 76,914; Allen Decl. Ex. A 42:14–16. EOIR required

17 practitioners to enter a notice of appearance when they represent an individual in a proceeding so

18 that it could ensure that “[a]ny practitioner who accepts responsibility for rendering immigration-

19 related services to a client [will] be held accountable for his or her own actions . . . .” 73 Fed.

20 Reg. 76, 914. But the Rule is not an identification requirement, and it does nothing to advance

21 professional conduct or increase accountability or transparency; instead, it compels attorneys to

22 undertake full representation, and it eliminates their ability to provide limited-scope

23 representation. EOIR cannot articulate any compelling interest in imposing this all-or-nothing

24 approach.

25

Moreover, as applied to NWIRP, EOIR admits “the record does not reflect that NWIRP

26 has engaged in any ineffective assistance or anything like that.” Allen Decl. Ex. A 43:14–16.

27 EOIR does not allege misconduct or a need to discipline NWIRP or its attorneys. Id. 39:19–20;

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1 40:6–15 (EOIR has no information NWIRP was deficient, filed false statements, or engaged in

2 misconduct). The cease-and-desist letter does not suggest any deficiencies in NWIRP’s legal

3 services. See Dkt 8-1. Absent evidence that misconduct has “actually occurred,” EOIR has no

4 compelling interest in applying its Rule to NWIRP. Primus, 436 U.S. at 435.

5

Second, EOIR has suggested the Rule helps to prevent “notario fraud”5—the

6 unauthorized practice of law by “immigration consultants” who charge immigrants and deliver

7 substandard services (or no services at all). But, again, EOIR’s purported interest in holding

8 attorneys accountable for misconduct and fraud is not served by barring nonprofit legal

9 organizations (especially those, like NWIRP, that have been accredited by EOIR and placed on

10 its pro bono referral lists, see Dkt. 3 ¶ 4) from providing limited legal services, especially when

11 those organizations identify themselves on the papers they assist in preparing.

12

As applied to NWIRP, EOIR’s justification makes even less sense. NWIRP does not

13 charge fees for pro se services to persons in removal proceedings, so any purported interest in

14 preventing notario fraud is inapplicable. See Barón Decl. ¶ 4. In fact, “NWIRP is a critical

15 partner in helping the State [of Washington] prevent and combat notario fraud,” as it is well-

16 positioned to learn about and report such abuse given its role as a trusted legal aid provider. Dkt.

17 18-1 at 7. Ironically, a reduction in NWIRP’s ability to provide limited legal services would

18 undermine the State’s interest in combatting notario fraud. Id.; see also Allen Decl. Ex. R ¶ 9

19 (without limited legal services, “[t]he penniless aliens we assist would turn to so-called notarios

20 or, more likely, give up on the asylum process altogether.”); Id. Ex. G ¶ 17 (compulsory

21 representation does not resolve the issue of full representation for all, but instead denies those

22 who need it “crucial access to basic legal advice.”).

23

Third, EOIR suggests it has an interest in preventing the practice of “ghostwriting.” Id.

24 Ex. A 35:17–36:19. A compulsory-representation rule (as opposed to an identification

25 requirement) does not advance this purported interest. This interest is also not compelling—in

26

27 5 See Am. Bar Ass’n, “Fight Notario Fraud,” http://www.americanbar.org/groups/public_services/immigration/
projects_initiatives/fightnotariofraud.html (last accessed June 8, 2017).

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1 fact, it has been squarely rejected. Limited representation, and specifically the practice of

2 ghostwriting, “has been endorsed by the [ABA] and jurisdictions nationwide, and can be

3 accomplished in a manner that maximizes the availability of legal advice (as required by the First

4 Amendment) to people who sorely need it, while preserving attorney oversight.” Dkt. 20-1, at

5 11 (and authorities cited therein). Washington courts, for example, “expressly authorize limited

6 representation to increase the availability of legal services to clients of limited financial means.”

7 Id. (internal citation and quotation omitted).

8

Unlike an identification rule, or rules that impose minimum standards of attorney

9 competence, the only practical effect of EOIR’s Rule is to eliminate the provision of limited

10 legal services and impose an all-or-nothing framework of attorney representation in agency

11 proceedings. EOIR cannot articulate any compelling interest in imposing such a policy on

12 NWIRP or similarly situated legal aid providers.

13

(2) The Rule Is Not Narrowly Tailored to Achieve EOIR’s Stated

Purpose, Nor Is It the Least Restrictive Means of Doing So

14

Even if EOIR’s interests were sufficiently compelling, the Rule is not narrowly tailored

15

to achieve those interests: “strict scrutiny requires a direct rather than approximate fit of means

16

to ends.” Hunter ex rel. Brandt v. Regents of Univ. of Cal., 190 F.3d 1061, 1077 (9th Cir. 1999)

17

(internal quotation marks omitted). The Rule also fails to satisfy the least-restrictive-means test

18

because it “effectively suppresses a large amount of [constitutionally-protected] speech ... [when]

19

less restrictive alternatives would be at least as effective in achieving” its purported goal.

20

Ashcroft v. ACLU, 542 U.S. 656, 665 (2004) (quoting Reno v. ACLU, 521 U.S. 844, 874

21

(1997)). “[T]he burden is on the Government to prove that the proposed alternatives will not be

22

as effective as the challenged statute.” Id. That burden is “not merely to show that a proposed

23

less restrictive alternative has some flaws; its burden is to show that it is less effective.” Id. at

24

669. EOIR cannot satisfy that burden.

25

First, the Rule imposes an all-or-nothing paradigm that is not tied to EOIR’s proffered

26

interest in reducing either attorney misconduct or notario fraud. If an attorney enters an

27

appearance, given the difficulty of later withdrawing, she must be prepared to commit to

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1 represent the client for the duration of the proceeding. If EOIR wants to hold legal providers

2 accountable, EOIR could have those providers identify themselves on the filings they prepare—

3 which NWIRP already does. If EOIR seeks to combat notario fraud, eliminating NWIRP’s

4 ability to provide limited low- or no-cost legal services achieves precisely the opposite: it will

5 drive individuals to notarios, who will become the only option available. See Dkt. 18-1 at 5-6.

6

Second, the Rule triggers an appearance requirement based on preliminary lawyer-client

7 communications that do not implicate EOIR’s standards of professional conduct. For instance,

8 information exchanged during an individual screening could be construed as “advice,” and

9 documenting it might be deemed an “auxiliary activity.” Providing legal advice by identifying

10 avenues for relief and forms to complete, informing clients about deadlines, and advising clients

11 how to present their case to the court could also run afoul of the Rule. See Barón Decl. ¶ 4.

12 Likewise, NWIRP’s community workshops and KYR presentations may also be subject to the

13 Rule depending on what NWIRP’s attorneys say during those events. NWIRP plainly does not

14 intend to form an attorney-client relationship with every person who attends a community event,

15 but NWIRP attorneys may inevitably provide “advice” and engage in “auxiliary activity,”

16 especially if they provide assistance, as they usually do, by answering questions after the

17 presentation and directing individuals to particular forms of relief.

18

Third, the Rule is impermissibly vague and overbroad. “The vagueness of [a content-

19 based restriction] raises special First Amendment concerns because of its obvious chilling effect

20 on free speech.” Reno, 521 U.S. at 871–72. Likewise, any regulation that impacts speech may

21 be invalidated as overbroad “in cases where the [regulation] sweeps too broadly, penalizing a

22 substantial amount of speech that is constitutionally protected.” Forsyth Cnty., Ga. v. Nationalist

23 Movement, 505 U.S. 123, 130 (1992). The Court in Button described the extraordinary threat

24 created by a vague and overbroad restriction on attorney speech and advocacy:

25

The objectionable quality of vagueness and overbreadth [depends] ... upon the

danger of tolerating, in the area of First Amendment freedoms, the existence of a

26

penal statute susceptible of sweeping and improper application. These freedoms

are delicate and vulnerable, as well as supremely precious in our society. The

27

threat of sanctions may deter their exercise almost as potently as the actual

application of sanctions. Because First Amendment freedoms need breathing

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space to survive, government may regulate in the area only with narrow

1

specificity.

2 Button, 371 U.S. at 432–33. EOIR concedes that under the Rule, NWIRP cannot “engage in acts

3 that constitute providing advice and providing actual assistance that is to be presented before the

4 immigration court.” Allen Decl. Ex. A 34:22-35:3. Notably, EOIR cannot clearly define the

5 parameters of “practice,” “preparation,” or “auxiliary activities” that would subject an attorney to

6 discipline. Id. 52:23-53:9 (“the moment your actions have advice and constitute auxiliary

7 activities ... [an] appearance is required”); see also, e.g., id. 57:14–22. The Rule’s definition of

8 “preparation” is similarly vague: it requires the giving of “advice” and “auxiliary activities,” but

9 neither of these terms is defined. Some or all of the above examples of services NWIRP

10 provides could fall within the definition. Tellingly, EOIR could not tell the Court whether an

11 attorney could help someone fill out a form, id. 58:1-59:8, or whether answering a question at a

12 legal aid clinic required the attorney to file an appearance, id. 32:18-33:24. The Rule’s

13 vagueness is highlighted by EOIR’s reliance on lawyers’ “knowledge and experience of

14 distinguishing between providing legal advice and providing legal information” to define the

15 proscribed conduct. Id. 59:13-19. An ambiguous law that leaves unclear whether certain

16 attorney speech is permissible cannot be tolerated. Button, 371 U.S. at 432.

17

The Rule is also overbroad because it “sweeps too broadly” and burdens constitutionally

18 protected speech. Forsyth Cnty., 505 U.S. at 130. NWIRP’s community workshops and KYR

19 presentations are two obvious examples. “[W]here a professional is engaged in public dialogue,

20 First Amendment protection is at its greatest.” Pickup v. Brown, 740 F.3d 1208, 1227–28 (9th

21 Cir. 2014). “The right of free speech, the right to teach and the right of assembly are …

22 fundamental rights.” McIntyre, 514 U.S. at 336 n.1 (1995). The Rule will certainly burden, if

23 not curtail, NWIRP’s ability to engage in these protected activities.

24

In sum, the Rule is not narrowly tailored to achieve EOIR’s interest, nor is it the least

25 restrictive means of doing so. It therefore fails strict scrutiny.

26

27

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e. The Rule Cannot Survive Intermediate Scrutiny

1

Even if the Court applies intermediate scrutiny, the Rule cannot survive because it is not

2

“narrowly tailored to serve a significant governmental interest and ... [does not] leave open

3

ample alternative channels for communication of the information.” Ward v. Rock Against

4

Racism, 491 U.S. 781, 791 (1989). The lack of any legitimate interest or tailoring is discussed

5

above, and the absence of “ample alternative channels” is apparent. “NWIRP is the primary

6

non-profit legal services provider for immigrants in removal proceedings in Washington and for

7

detained person in Tacoma,” Dkt. 18-1 at 2, and in many cases, there are no alternative providers

8

for these vulnerable individuals. NWIRP’s work will be sharply curtailed under EOIR’s new all-

9

or-nothing framework. Many immigrants who receive limited legal services will be deprived of

10

those services with no available alternative. The Rule cannot survive intermediate scrutiny.

11

2. EOIR’s Compulsory-Representation Rule Violates the Tenth Amendment

12

by Attempting to Broadly Regulate Lawyer Conduct

13

The Tenth Amendment “is a mere affirmation of what, upon any just reasoning, is a

14 necessary rule of interpreting the constitution[:] … that what is not conferred, is withheld, and

15 belongs to the state authorities.” New York v. United States, 505 U.S. 144, 156 (1992). NWIRP

16 has standing to bring Tenth Amendment claims because its “injury [stems] from governmental

17 action taken in excess of the authority that federalism defines.” Bond v. United States, 564 U.S.

18 211, 220, 131 S. Ct. 2355, 180 L. Ed. 2d 269 (2011).

19

a. The Tenth Amendment Vests States with the Exclusive Right to

Regulate Lawyer Conduct Outside of Federal Judicial or Agency

20

Proceedings

21

The Tenth Amendment unequivocally vests “the right to control and regulate the

22 granting of license to practice law” in the States, not the federal government. Bradwell v. People

23 of State of Ill., 83 U.S. (16 Wall.) 130, 139 (1872). “Since the founding of the Republic, the

24 licensing and regulation of lawyers has been left exclusively to the States and the District of

25 Columbia within their respective jurisdictions.” Leis v. Flynt, 439 U.S. 438, 442 (1979)

26 (emphasis added). “The interest of the States in regulating lawyers is especially great since

27 lawyers are essential to the primary governmental function of administering justice, and have

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1 historically been ‘officers of the courts.’” Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 460

2 (1978) (quoting Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975)). To that end, the “States

3 prescribe the qualifications for admission to practice and the standards of professional conduct.

4 They also are responsible for the discipline of lawyers.” Leis, 439 U.S. at 700–01.

5

b. The Tenth Amendment Limits Federal Agencies’ Ability to Regulate

the Practice of Law

6

The Tenth Amendment’s limitations on federal power are strongly implicated whenever

7

a federal agency seeks to regulate the practice of law. See Sperry v. State of Fla., 373 U.S. 379

8

(1963). An agency may regulate persons practicing before it because the agency has an interest

9

in the integrity of its administrative processes. See Touche Ross v. SEC, 609 F.2d 570, 581(2d

10

Cir. 1979). However, an agency may not regulate for other purposes or substitute its judgment

11

for that of state licensing agencies in matters that are outside the scope of its expertise. Two

12

factors argue for a narrow definition of permissible agency regulation. First, “agencies bring a

13

mixture of responsibilities and motivations to the discipline process.” Arthur Best, Shortcomings

14

of Administrative Agency Lawyer Discipline, 31 Emory L.J. 535, 557–58 (1982) (“Best”). They

15

are often not neutral decision-makers. Id., see also Public Comment Letter, 2006 WL 4774818

16

at *5 (IRS 2006) (“The relationship between representatives of the Treasury or the IRS and the

17

practitioners whom the Secretary is authorized to regulate is sometimes adversarial; and the

18

Secretary’s authority to dictate how practitioners must conduct themselves might potentially be

19

used to disadvantage unfairly the taxpayers whom those practitioners represent.”). Moreover,

20

the agency’s desire for certain outcomes may lead they agency to improperly impose substantive

21

obligations on attorneys that are disguised as lawyer discipline. Best at 536.

22

Second, agencies generally lack expertise in lawyer discipline. Ethics rules are very

23

different from most agencies’ ordinary work. Id. at 558; Kivitz v. SEC, 475 F.2d 956, 961–62

24

(1973). While the agency may regulate a lawyer’s conduct in a hearing, an agency trying to

25

regulate client counseling “ought to have to justify that scope of attention by demonstrating a

26

clear need for such regulation, as well as by demonstrating its own competence to carry it out.”

27

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1 Best at 564. The need for the regulation when the conduct is already regulated by the state, as is

2 the case here, is especially questionable. Id. at 563-64.

3

c. EOIR’s Rule Advances an Impermissible Purpose and Encroaches

Upon the States’ Authority to Regulate Lawyer Conduct

4

The purpose of EOIR’s “notice of appearance” requirement goes well beyond protecting

5 the integrity of its own administrative process: it encompasses conduct outside of agency

6 hearings, and extends to legal advice and assistance provided in confidential consultations. A

7 lawyer6 is subject to discipline by EOIR for failing to enter a notice of appearance when

8 “engag[ing] in practice or preparation.” 8 C.F.R. § 1003.102(t) (emphasis added). Because the

9 terms “practice” and “preparation” are broad enough to encompass nearly any activity, when

10 coupled with the difficulty of a lawyer later withdrawing from representation, the Rule

11 effectively restricts lawyer communication and thereby limits the number of persons able to

12 obtain some form of legal advice. This does not ensure the integrity of agency proceedings.

13 EOIR’s neutrality and competence in this area is questionable, which only further

14 underscores the need to limit the scope of lawyer conduct it may regulate. As an executive

15 administrative agency within an Administration that has announced its intent to deport as many

16 people as possible, as fast as possible, EOIR finds itself in a directly adversarial position to

17 NWIRP. The Rule will result in fewer immigrants—asylum seekers, unaccompanied children,

18 detainees, and individuals seeking to reunite with family, among others—receiving the legal

19 advice they need to competently represent themselves, which furthers the Administration’s goal.

20 In contrast, the agency cannot show that limiting the number of immigrants who receive legal

21 advice will improve the competency of attorneys or enhance the agency’s disciplinary efforts.

22 Some attorneys may provide full representation but provide it poorly; others may provide limited

23 representation and do it well. The Rule will not change this. Indeed, the Rule will have no

24 impact on unlicensed notaries (one of the primary disciplinary targets), as they have never been

25 in a position to enter an appearance with respect to their unlicensed practice of law. It is unlikely

26

6 EOIR further extends its disciplinary grasp to recognized organizations whenever such sanctions are “in the
27 public interest.” § 1003.110(b) (containing a nonexhaustive list of grounds for organizational discipline, including

“fail[ure] to adequately supervise accredited representatives”).

MOTION FOR PRELIMINARY INJUNCTION (No. 2:17-cv-00716-RAJ) – 17

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1 that the Rule could ever achieve anything beyond minimal and selective enforcement, all while

2 depriving immigrants of critical legal advice.

3

Fortunately, every state, including Washington, has an agency which investigates and

4 disciplines lawyers for misconduct, including lack of competency, and takes disciplinary

5 referrals from courts, state and federal agencies, and individuals. Nothing prevents EOIR from

6 making such a referral. State courts and bar associations are far better positioned to neutrally

7 and competently evaluate the conduct of and, where necessary, discipline their attorneys.

8

d. EOIR’s Rule Conflicts with the Duties Imposed on Attorneys under

State Law

9

Washington and other states following the Model Rules of Professional Responsibility

10

have adopted a rule regarding limited representation that directly contravenes EOIR’s Rule.

11

Washington Rule of Professional Conduct 1.2 specifies that “lawyer may limit the scope of the

12

representation if the limitation is reasonable under the circumstances and the client gives

13

informed consent.” WRPC 1.2(c). As the comments to Rule 1.2 reflect, “the client [has] the

14

ultimate authority to determine the purposes to be served by legal representation,” WRPC 1.2,

15

cmt. [1], and there are a variety of reasons why limited representation may be necessary or

16

desirable, including the client’s limited objectives. Id., cmt. [6]. Moreover, limited

17

representation may, in some circumstances, serve the best interests of both the lawyer and the

18

client, if “a client’s objective is limited to securing general information about the law the client

19

needs in order to handle a common and typically uncomplicated legal problem, the lawyer and

20

client may agree that the lawyer’s services will be limited....” Id., cmt. [7]. EOIR’s Rule,

21

however, disregards Washington’s decision to allow limited representation, thus violating

22

Washington’s sovereign right to regulate attorney conduct.

23

The compulsory-representation rule also conflicts with the attorney’s duty to keep client

24

confidences. When a NWIRP lawyer consults with a client about future (or even potential)

25

immigration proceedings—be it an asylum application, possible removal, or an adjustment of

26

status—the lawyer’s duty to file a notice of appearance is triggered, even though the client may

27

not want to disclose the fact they have received legal advice. Lawyers may not, however,

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1 “reveal information relating to the representation of a client.” WRPC 1.6(a). It is “a

2 fundamental principle in the client-lawyer relationship is that, in the absence of the client’s

3 informed consent, the lawyer must not reveal information relating to the representation.” RPC

4 1.6, cmt [2]. This ironclad guarantee of confidentiality “applies not only to matters

5 communicated in confidence by the client but also to all information relating to the

6 representation, whatever its source.” Id., cmt [3]. Washington has adopted additional comments

7 to Rule 1.6, reflecting the State’s expansion of a lawyer’s duty of confidentiality beyond that

8 imposed under the Model Rule:

9

The phrase “information relating to the representation” should be

interpreted broadly. The “information” protected by this Rule

10

includes, but is not necessarily limited to, confidences and secrets.

“Confidence” refers to information protected by the attorney client

11

privilege under applicable law, and “secret” refers to other

information gained in the professional relationship that the client

12

has requested be held inviolate or the disclosure of which would be

embarrassing or would be likely to be detrimental to the client.

13

Id., cmt. [21].

14

The challenged regulations eviscerate this duty of confidentiality and leave NWIRP

15

attorneys with an impossible choice: disclose to the government the fact that a client has

16

obtained confidential legal advice by filing a notice of appearance, or refuse to appear, thereby

17

risking disciplinary sanctions. The Rule’s obvious conflict with attorney duties and rights

18

imposed by state law further shows why the Rule violates the Tenth Amendment.

19

B. NWIRP Will Suffer Imminent and Irreparable Harm Absent an Injunction

20

Standing alone, EOIR’s violation of NWIRP’s First and Tenth Amendment rights

21

“unquestionably constitutes irreparable injury.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th

22

Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). The “loss of First Amendment

23

freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury for the

24

purposes of the issuance of a preliminary injunction.” Elrod, 427 U.S. at 373; see also San

25

Diego Comm. Against Registration & the Draft (Card) v. Governing Bd. of Grossmont Union

26

High Sch. Dist., 790 F.2d 1471, 1473 (9th Cir. 1986) (“[t]he loss of First Amendment freedoms

27

... [as] [t]he timeliness of political speech is particularly important.”). “Where a plaintiff alleges

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1 injury from a rule or regulation that directly limits speech, the irreparable nature of the harm may

2 be presumed.” Bronx Household of Faith v. Bd. of Educ. of City of N.Y., 331 F.3d 342, 349 (2d

3 Cir. 2003). On these grounds alone, NWIRP establishes the requisite harm.

4

Moreover, NWIRP’s ability to advance the rights of immigrants in removal proceedings

5 is severely impacted. Dkt. 4 ¶ 11; Dkt. 3 ¶ 15. For example, the Rule prevents NWIRP from:

6

• Interviewing asylum seekers about the harm they suffered in their home country;

advising them of their eligibility for asylum, withholding of removal, or relief under

7

CAT; explaining which forms they must complete and why it is critical to include

certain facts in those forms; and providing evidence of country conditions that the

8

individual would not otherwise know to research or be able to access. Compare Dkt 14-2

at 6–7 (attorneys may only assist immigrants in obtaining those documents that the client

9

has “independently determined” are “necessary for their immigration case,” and, in

assisting with forms, may not “provide advice on how to answer a question”), with, e.g.,

10

Dkt. 3 at ¶ 8 (individuals who have “limited education or knowledge of English”), and

id. at ¶ 9 (individuals who are “illiterate or speak a rare language”).7

11

• Reviewing an individual’s notice to appear (charging document) and other documents,

12

advising them as to their grounds of removability and options of relief, and preparing

corresponding motions or applications for relief. Dkt. 1 at ¶ 3.21(g); Dkt. 4 at ¶ 8

13

(explaining that NWIRP cannot enter an appearance for removal proceedings in another

state); id. at ¶ 16 (citing an example of an individual who needed such assistance).

14

• Interviewing an individual about their criminal history and charges of removability,

15

researching whether a certain conviction constitutes a ground of removability, and

advising how to respond to the factual allegations and charges of removability; helping

16

draft a motion to terminate proceedings or providing them with already-prepared briefs

on whether certain convictions constitute removable offenses. Dkt. 1 at ¶ 3.21(f); Ex. 3

17

at ¶ 11 (noting “complex and evolving” nature of such legal analysis).

18

• Reviewing the facts of an individual’s prior removal case, advising them of grounds to

re-open removal proceedings, and helping draft and file a motion to reopen, as expressly

19

precluded by the cease-and-desist letter. Dkt. 1 at ¶ 3.21(h); Dkt. 8-1 at 1–2; Dkt. 3 ¶ 10

(discussing importance of pro se assistance for motions to reopen).

20

Prior to the TRO, in only a two week period, NWIRP was unable to help four non-

21

detained asylum seekers fill out or physically submit applications in order to meet a statutory

22

deadline. Dkt. 4 ¶ 16; see Compl. ¶ 3.21(d). NWIRP also could not help another non-detained

23

individual file a motion to change venue without entering an appearance. Dkt. 4 ¶ 9. Every

24

single day until the Court entered the TRO, NWIRP was forced to refuse to provide limited legal

25

services to unrepresented persons detained at the NWDC. Barón Decl. ¶ 8; Dkt. 3 ¶ 14.

26

27 7 This is particularly important for individuals who are facing a one-year deadline, Dkt. 4 at ¶ 7, 8, 12, and for
detained individuals, whose only alternative is to ask for help from a fellow detainee. Dkt. 3 at ¶ 9.

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1

NWIRP is also harmed by the fact that volunteer attorneys will no longer be able to take

2 cases that help NWIRP serve more clients and further its mission. See Allen Decl. Exs. V-HH

3 (detailing likelihood law firms’ pro bono services would cease if the Rule prohibited limited

4 scope representation). In short, the Rule has a profound and adverse impact on NWIRP’s ability

5 to carry out its mission.

6

Finally, EOIR’s prohibition against limited pro se assistance translates into irreparable

7 harm for hundreds of unrepresented individuals in proceedings before the Seattle and Tacoma

8 immigration courts. See Dkt. 4 ¶¶ 12-15; Dkt. 3 ¶¶ 9-11. NWIRP is entitled to assert—and the

9 court is entitled to rely on—the harm caused to these individuals for purposes of a preliminary 10 injunction.8 See e.g. Singleton v. Wulff, 428 U.S. 106, 114 (1976); Craig v. Boren, 429 U.S. 190

11 (1976); Barrows v. Jackson, 346 U.S. 249 (1953); Pierce v. Society of Sisters, 268 U.S. 510

12 (1925). The harm is particularly pronounced for detained immigrants who face significant 13 challenges to obtaining legal representation or evidentiary support for their cases.9

14 C. The Balance of Equities and Public Interest Strongly Favor a Preliminary Injunction
15 Since this case involves the government, the balance-of-equities factor merges with the
16 fourth factor, public interest. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir.
17 2013). As recognized by the Washington State Attorney General, NWIRP “is essential to the
18 [State’s] mission as the primary provider of free and low-cost immigration assistance in the
19 State.” Dkt. 18-1 at 2. A limitation of NWIRP’s critical services would be detrimental to the
20

21 8 A plaintiff with a unique relationship to a third party can assert the rights of others when the plaintiff:

22 (1) possesses a concrete interest in the outcome of the dispute (NWIRP’s mission to advocate for immigrants);
(2) has a close relationship with the party whose rights it is asserting (attorney client relationship); and (3) there is

23

some hindrance to the third party’s ability to protect its own interest (immigrant’s lack of English and unlikely to assert representation rights). See Singleton, 428 U.S. at 114-15.

24 9 See Dkt. 3 ¶ 9; Ingrid Eagly & Steven Shafer, Special Report: Access to Counsel in Immigration Court, Am.

25

Imm. Council, (Sept. 2016), at 6, available at https://www.americanimmigrationcouncil.org/research/accesscounsel-immigration-court (last accessed May 4, 2017) (“[I]n the immigration system noncitizens can be

transferred to detention centers located a great distance from where they reside or were apprehended. This means
26 that they are far from their families, lawyers, and the evidence they need to support their cases. Furthermore,
many detention facilities are located in remote areas.”); Moncrieffe v. Holder, 133 S. Ct. 1678, 1690 (2013)
27 (“[D]uring removal proceedings noncitizens are not guaranteed legal representation and are often subject to
mandatory detention, § 1226(c)(1)(B), where they have little ability to collect evidence.”).

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1 public interest. Id. at 2. And, as the City of Seattle recognizes, “providing funds to enable

2 indigent persons to obtain legal counsel for immigration related matters is a public function,

3 providing necessary support for the poor and infirm.” Allen Decl. Ex. II ¶ 4(g). EOIR’s Rule

4 will significantly impair the public interest of Washington’s state and local governments in

5 ensuring that free and low-cost immigration assistance is available to their residents.

6

When considering “the competing claims of injury and … the effect on each party of the

7 granting or withholding of the requested relief,” the balance favors NWIRP. Winter, 555 U.S. at

8 24 (internal quotation omitted). Here, and most simplistically, the harm caused by not

9 continuing the injunctive relief is significantly greater than any possible harm caused by

10 enjoining EOIR from implementing its new interpretation of the nine-year-old Rule.

11

1. The Public Interest Favors Preventing the Violation of Constitutional

Rights

12

“It is always in the public interest to prevent the violation of a party’s constitutional

13

rights.” Melendres, 695 F.3d at 1002; see also Small v. Avanti Health Sys., LLC, 661 F.3d 1180,

14

1197 (9th Cir. 2011) (“[T]he public interest favors applying federal law correctly.”); cf.

15

Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005) (“Generally, public interest concerns

16

are implicated when a constitutional right has been violated, because all citizens have a stake in

17

upholding the Constitution.”).

18

2. The Public Interest Favors Allowing Limited Representation

19

It is decisively in the public interest to have more individuals in the immigration system

20

receive more legal advice. The Rule eviscerates this interest. EOIR’s new interpretation of the

21

Rule will result in preventing NWIRP, and countless other organizations like it, from “helping a

22

highly vulnerable and extremely needy population.” Allen Decl. Ex. L ¶ 8. There is absolutely

23

no doubt that the cease-and-desist letter has already had a chilling effect, and if left unchecked,

24

will almost certainly eviscerate much of the pro bono legal assistance presently available to

25

immigrants. Id. Ex. E ¶ 7 (likely have to stop assisting asylum applicants and detained

26

individuals in filling out forms); Ex. R ¶ 9 (program assisting immigrants would cease to exist);

27

Ex. 8 ¶ 13 (unable to assist with basic filings to prevent in absentia orders); Ex. I ¶¶ 9, 10

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1 (discontinue consultations with hundreds of individuals per year); Ex. F ¶¶ 5, 7 (prevent week-

2 long service trip where law students help draft asylum applications and declarations); Ex. D ¶ 9

3 (clinic does not have capacity to agree to full representation of every individual); Ex. K ¶ 8

4 (same); Ex. S ¶ 8 (limit or entirely prevent assistance to pro se detained and non-detained

5 immigrants who have no other assistance available); Ex. Q ¶ 9 (if forced to choose “resource

6 limitations would dictate that we provide them with no services, sometimes with tragic results

7 for the respondents involved.”); Ex. N ¶¶ 7, 11-12 (lose opportunity to assist asylum seekers in

8 filing an application and individuals from receiving in abstentia removal orders); Ex. M ¶ 7

9 (forced to turn away those who will not be able to find representation elsewhere); Ex. B ¶¶ 5,

10 10 (limited scope services would be “denied to those immigrants who need it most”); Ex. H ¶ 8

11 (constrain ability to represent potential class members in limited capacity beyond bond hearings

12 and provide pro bono assistance on discrete issues); Ex. C ¶ 9 (prevent information and advice to

13 families and “threatens ability to provide “basic legal information to clients, that cannot be

14 transmitted via fliers, handouts, or mass presentations”); Ex. L ¶ 7 (unable to help the majority of

15 clients); Ex. O ¶ 7 (prevent from assisting in preparation of forms and applications and

16 evaluating and providing advice); Ex. P ¶ 6, 14 (unable to provide advice to questions after KYR

17 presentations and the order “creates an incentive for children’s advocates such as KIND to

18 withhold free assistance of the type they have previously rendered to the benefit of unrepresented

19 children as well as the Court”); Ex. J ¶ 6 (same); Ex. U ¶ 17 (Southern Poverty Law Center’s

20 program to represent individuals at a detention center where only six percent of detainees have

21 attorneys would “dramatically reduce the number of clients” it could serve); Ex. T

22 ¶ 16 (hundreds of detained immigrants would not have any legal representation).

23

Many law firms across the country partner with NWIRP and other similar organizations

24 to provide limited legal services to immigrants on a volunteer basis. Stifling the ability of law

25 firms to help clients simply because they “cannot provide full scope direct representation” is

26 contrary to the public interest and “is counter-productive to the human and humane goal of

27 helping those in need of legal services.” Ex. Z ¶ 8. EOIR’s interpretation of its Rule will limit,

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1 or eliminate entirely, law firms’ abilities to provide limited scope assistance at detention centers,

2 in legal clinics, and otherwise working in conjunction with NWIRP and groups like them.” Id.

3 ¶ 8; Ex. DD ¶ 16; Ex. X ¶ 10; Ex. CC ¶ 7; Ex. Y ¶ 12; Ex. I ¶ 11; Ex. EE ¶ 14; Ex. GG ¶ 14; Ex.

4 V. ¶ 19. The law firms provide critical attorney representation to an under-represented

5 population, but are limited both in the time they have to devote to representation, Ex. W ¶ 11,

6 and their reliance on NWIRP and similar providers for their expertise to “mentor...attorneys and

7 provide critical technical assistance to ensure [the firms] are providing the best possible service.”

8 Ex. Z ¶ 6. See also Ex. AA ¶ 12; Ex. BB ¶ 12; Ex. DD ¶ 6; Ex. CC ¶ 12; Ex. Y ¶ 12; Ex. I ¶ 11;

9 Ex. FF ¶ 4; Ex. EE ¶ 12; Ex. HH ¶ 9; Ex. V ¶ 7.

10

Finally, “[l]imited-scope services ... create efficiencies for the immigration court and

11 ICE counsel, which would otherwise have to expend significantly greater resources on each

12 case.” Ex. I ¶ 14. It is against the public interest to “increase the number of individuals

13 appearing before EOIR without any preparation or understanding of the proceedings” since this

14 will inevitably “hamper the court’s efficiency.” Ex. I ¶ 10.

15 D. 16

The Preliminary Injunction Should Provide Nationwide Relief At the hearing on NWIRP’s motion for a temporary restraining order, EOIR advised the

17 Court that it would potentially advance its new application of the Rule by issuing similar cease-

18 and-desist letters to others. Allen Decl. Ex. A 56:17-57:8. This alone justifies the Court in

19 continuing to enjoin EOIR from enforcing the Rule on a nationwide basis. But, beyond this,

20 other legal service providers are now facing the chilling effect of EOIR’s order to NWIRP,

21 fearful that their own, similar conduct could result in disciplinary action. See id. Exs. B–U; §

22 III(C)(2), supra. Without the protection afforded by nationwide relief, their services will be

23 hindered by EOIR’s threat of disciplinary sanctions.

24

IV. CONCLUSION

25

NWIRP respectfully asks this Court to convert the temporary restraining order into a

26 preliminary injunction, allowing NWIRP and others to continue providing vital legal assistance

27 to unrepresented immigrants while this lawsuit is pending.

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1

DATED this 8th day of June, 2017.

2

DAVIS WRIGHT TREMAINE LLP

3

Attorneys for Northwest Immigrant Rights Project

4

By s/Jaime Drozd Allen

Michele Radosevich, WSBA #24282

5

Jaime Drozd Allen, WSBA #35742

James Harlan Corning, WSBA #45177

6

Robert E. Miller, WSBA #46507

Laura-Lee Williams, WSBA #51358

7

1201 Third Avenue, Suite 2200

Seattle, WA 98101-3045

8

Telephone: (206) 622-3150

Fax: (206) 757-7700

9

E-mail: micheleradosevich@dwt.com

jaimeallen@dwt.com

10

jamescorning@dwt.com

robertmiller@dwt.com

11

lauraleewilliams@dwt.com

12

NORTHWEST IMMIGRANT RIGHTS

13

PROJECT

Matt Adams, WSBA #28287

14

Glenda M. Aldana Madrid, WSBA # 46987

Leila Kang, WSBA #48048

15

615 2nd Avenue, Suite 400

Seattle, WA 98104-2244

16

Phone: (206) 957-8611

Fax: (206) 587-4025

17

E-mail: matt@nwirp.org

glenda@nwirp.org

18

leila@nwirp.org

19

20

21

22

23

24

25

26

27

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on June 8, 2017, I filed the foregoing using CM/ECF which will

3 cause a copy to be sent to the following:

4

Attorneys for Defendants Jefferson B. Sessions, III Attorney General of the United

5

States; United States Department of Justice; Executive Office for Immigration Review; Juan Osuna; Jennifer Barnes

6 Carlton Frederick Sheffield
7
Gisela A. Westwater 8

carlton.f.sheffield@usdoj.gov gisela.westwater@usdoj.gov

9

Gladys M. Steffens Guzman

Gladys.Steffens-Guzman@usdoj.gov;

10

Victor M. Mercado-Santana

victor.m.mercado-santana@usdoj.gov

11 Attorneys for Amicus Attorney General of Washington

12

Patricio A. Marquez 13

PatricioM@atg.wa.gov, chamenew@atg.wa.gov,

14

colleenm1@atg.wa.gov,

marshac@atg.wa.gov

15
Attorneys for Amicus American Civil Liberties Union of Washington (ACLU) 16

17

Andrew Garcia Murphy

agm@hcmp.com, brenda.partridge@hcmp.com

18 Michael J. Ewart
19

jake.ewart@hcmp.com, angie.perkins@hcmp.com

20

21

DATED: June 8, 2017

By s/ Jaime Drozd Allen

22

Jaime Drozd Allen, WSBA #35742

23

Attorney for Plaintiffs

24

25

26

27

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on June 8, 2017, I filed the foregoing using CM/ECF which will

3 cause a copy to be sent to the following:

4

Attorneys for Defendants Jefferson B. Sessions, III Attorney General of the United

5

States; United States Department of Justice; Executive Office for Immigration Review; Juan Osuna; Jennifer Barnes

6 Carlton Frederick Sheffield

7

Gisela A. Westwater

Gladys M. Steffens Guzman

8

Victor M. Mercado-Santana

9

carlton.f.sheffield@usdoj.gov gisela.westwater@usdoj.gov Gladys.Steffens-Guzman@usdoj.gov; victor.m.mercado-santana@usdoj.gov victor.m.mercado@gmail.com

10

Attorneys for Amicus Attorney General of Washington

11

Patricio A. Marquez

12

13

PatricioM@atg.wa.gov, chamenew@atg.wa.gov, colleenm1@atg.wa.gov, marshac@atg.wa.gov

14

Attorneys for Amicus American Civil Liberties Union of Washington (ACLU)

15

Andrew Garcia Murphy

16

agm@hcmp.com, brenda.partridge@hcmp.com

17

Michael J. Ewart

jake.ewart@hcmp.com, angie.perkins@hcmp.com

18

19

Attorneys for Amicus Immigrant Legal Rights Organization

20

John J Connolly

jconnolly@zuckerman.com

21

Rachel F. Cotton

RCotton@zuckerman.com

22 By s/ Jaime Drozd Allen

23

Jaime Drozd Allen, WSBA #35742

Attorney for Plaintiffs 24

25

26

27
DECLARATION OF JORGE L. BARÓN IN SUPPORT OF NWIRP’S MOTION FOR PRELIMINARY INJUNCTION (No. 2:17-cv-00716-RAJ) – Page 5

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 Case 2:17-cv-00716-RAJ Document 47 Filed 06/26/17 Page 1 of 42

Hon. Richard A. Jones
1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

8

9 NORTHWEST IMMIGRANT RIGHTS

Case No. 2:17-cv-00716

10 PROJECT (“NWIRP”), a nonprofit

Washington Public benefit corporation; and 11 YUK MAN MAGGIE CHENG, an individual, DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ MOTION FOR

12

Plaintiffs,

PRELIMINARY INJUNCTION

13
v.

Noted on Motion Calendar and Hearing:

14
JEFFERSON B. SESSIONS III, in his official June 30, 2017 15 capacity as Attorney General of the United
States; UNITED STATES DEPARTMENT 16 OF JUSTICE; EXECUTIVE OFFICE FOR
17 IMMIGRATION REVIEW; JAMES MCHENRY,1 in his official capacity as Acting
18 Director of the Executive Office for
Immigration Review; and JENNIFER
19
BARNES, in her official capacity as
20 Disciplinary Counsel for the Executive Office
for Immigration Review,
21

Defendants.
22

23

24

25

26

1Under Federal Rule of Civil Procedure 25(d), current Acting Director of EOIR James McHenry is substituted for former Director Juan Osuna.

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (Case No. 2:17-cv-716)

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 47 Filed 06/26/17 Page 2 of 42

TABLE OF CONTENTS
1

2
I. INTRODUCTION .........................................................................................................1
3
II. BACKGROUND ...........................................................................................................2
4

5

A. EOIR’s Historical Commitment to Increasing the Availability of Representation

Before Immigration Courts and the Board.....................................................................2

6

B. The Notice of Appearance requirement is critical for EOIR’s management of removal
7
proceedings, Attorney Discipline Program, and fraud prevention ................................3

8

C. The Disciplinary Counsel’s Letter to NWIRP regarding its practice of ghostwriting

9

briefs for filing with the immigration courts..........................................................................8

10
III. STANDARD FOR PRELIMINARY INJUNCTION ..................................................10

11
III. ARGUMENT ...............................................................................................................11
12

13

A. Plaintiffs cannot establish they are likely to succeed on the merits of their claims.....11

14

1. The notice of appearance requirement as enforced and implemented by EOIR,

is consistent with constitutional requirements. ......................................................11

15

16

a. Section 1003.102(t)(1) extends only to individuals who appear

before the immigration court or the Board, either in person or

17

through written pleadings. ...................................................................11

18

b. To the extent NWIRP challenges the lack of a limited scope

19

representation mechanism in immigration court, that claim is

not properly pleaded in the Complaint and invalidating section

20

1003.102(t) would not achieve relief. .................................................14

21

2. Plaintiffs have not established that they are likely to succeed under their First

22

Amendment Claims. ..............................................................................................16

23

a. EOIR may regulate practice before immigration courts, which

like any courtroom, are nonpublic forums. ....................................16
24

25

b. Plaintiffs’ as-applied challenge to section 1003.102(t)(1) is likely

26

to fail because EOIR’s rule is reasonable and viewpoint neutral. ..18

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

(Case No. 2:17-cv-716)

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c. Plaintiffs’ facial challenge is likely to fail because 1003.102(t)(1)

1

can and should be read so as to only apply to actual appearances – either

2

in person, or in writing – before the immigration court or the Board. .....20

3

3. Plaintiffs are unlikely to establish that the Tenth Amendment prohibits EOIR

from requiring the filing of a notice of appearance. ..............................................22
4

5

a. EOIR has the inherent authority to establish uniform regulations

governing practitioners, including attorneys and non-attorneys, who

6

practice before the immigration courts. ...............................................22

7
b. EOIR’s rules governing attorney practice and requiring filing of a

8

notice of appearance do not cause an undue conflict with state rules. 24

9

B. Plaintiffs’ harm, if any, is nothing more than minimal................................................25

10
C. The public interest and balance of equities weigh against a preliminary injunction. ..27

11
V. CONCLUSION
12

13

CERTIFICATE OF SERVICE

14

15

16

17

18

19

20

21

22

23

24

25

26

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

(Case No. 2:17-cv-716)

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P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
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TABLE OF AUTHORITIES
1

2
Adamian v. Jacobsen,

CASES

3 523 F.2d 929 (9th Cir. 1975) ..................................................................................................... 21

4 Alliance for Wild Rockies v. Cottrell, 5 632 F.3d 1127 (9th Cir. 2011) ................................................................................................... 10

6 Arapaho Tribe v. LaCounte, No. CV-16-11-BLGS-BMM, 2017 WL 908547 (D. Mont. Mar. 7, 2017).......................... 14, 15
7
8 Cabrera-Gutierrez v. Holder, 427 F. App’x 581 (9th Cir. 2011) .............................................................................................. 14
9
Cal. Teachers Ass’n v. State Bd. of Educ.,
10
271 F.3d 1141 (9th Cir. 2001) ................................................................................................... 21
11
Canatella v. Stovitz, 12 365 F. Supp. 2d 1064 (N.D. Cal. 2005) ..................................................................................... 17
13
Caribbean Marine Servs. Co. v. Baldrige, 14 844 F.2d 668 (9th Cir. 1988) ............................................................................................... 25, 27

15 Cazarez Gutierrez v. Ashcroft, 16 382 F.3d 905 (9th Cir. 2004) ..................................................................................................... 23

17 Compassion Over Killing v. FDA, 849 F.3d 849 (9th Cir. 2017) ..................................................................................................... 16
18
19 Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788 (1985)....................................................................................................... 16, 18, 19
20
Dent v. Holder, 21 627 F.3d 365 (9th Cir. 2010) ..................................................................................................... 12
22
State ex rel. Ind. State Bar Ass’n v Diaz, 23 832 N.E.2d 433 (Ind. 2005) ................................................................................................... 4, 23
24 Diloreto v. Downey Unif. Sch. Dist. Bd. of Educ., 25 196 F.3d 958 (9th Cir. 1999) ..................................................................................................... 18

26 Flexible Lifeline Systems, Inc. v. Precision Lift, Inc., 654 F.3d 989 (9th Cir. 2011) ............................................................................................... 10, 12

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

(Case No. 2:17-cv-716)

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Franklin v. Chavis, 1 640 S.E.2d 873 (S.C. 2007) ..................................................................................................... 4, 5
2
Gentile v. State Bar of Nev., 3 501 U.S. 1030 (1991)........................................................................................................... 17, 18
4 Goldfarb v. Va. State Bar, 5 421 U.S. 773 (1975)................................................................................................................... 20
6 Hendricks v. Pierce Cnty., No. C13-5690, 2015 WL 6031646 (W.D. Wash. Oct. 15, 2015) .............................................. 17
7
8 Hill v. Colo., 530 U.S. 703 (2000)................................................................................................................... 20
9
Honolulu Weekly, Inc. v. Harris,
10
298 F.3d 1037 (9th Cir. 2002) ................................................................................................... 20
11
Hum. Law Project v. U.S. Dep’t of Treas., 12 463 F. Supp. 1049 (C.D. Cal. Nov. 21, 2006) ........................................................................... 22
13
Iowa Sup. Ct. Comm’n on Unauthorized Practice of Law v. Sturgeon, 14 635 N.W. 2d 679 (Iowa 2001) ..................................................................................................... 4
15 In re Liu, 16 664 F.3d 367 (2d Cir. 2011)......................................................................................................... 7
17 In re Primus, 436 U.S. 412 (1978)................................................................................................................... 17
18
19 In re Snyder, 472 U.S. 634 (1985)................................................................................................................... 22
20
J.E.F.M. v. Lynch, 21 837 F.3d 1026 (9th Cir. 2016) ................................................................................................... 27
22
Koden v. U.S. Dep't of Justice, 23 564 F.2d 228 (7th Cir. 1977) ............................................................................................... 22, 23
24 L.A. Mem’l Coliseum Comm’n v. NFL, 25 634 F.2d 1197 (9th Cir. 1980) ................................................................................................... 26
26 Laremont-Lopez v. S.E. Tidewater Opportunity Ctr., 968 F. Supp. 1075 (E.D. Va. 1997) ....................................................................................... 6, 19

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

(Case No. 2:17-cv-716)

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Legal Servs. Corp. v. Velazquez, 1 531 U.S. 533 (2001)................................................................................................................... 17
2
Mezibov v. Allen, 3 411 F.3d 712 (6th Cir. 2005) ......................................................................................... 16, 17, 21
4 Morales-Apolinar v. Mukasey, 5 514 F.3d 893 (9th Cir. 2008) ....................................................................................................... 5
6 Mothershed v. Justices of the Sup. Ct., 410 F.3d 602 (9th Cir. 2005) ..................................................................................................... 20
7
8 NAACP v. Button, 371 U.S. (1963)......................................................................................................................... 17
9
Nken v. Holder,
10
556 U.S. 418 (2009)................................................................................................................... 27
11
Ohio Forestry Ass’n Inc. v. Sierra Club, 12 523 U.S. 726 (1998)............................................................................................................. 15, 16
13
Or. State Bar v. Ortiz, 14 713 P.2d. 1068 (Or. Ct. App. 1986)............................................................................................. 4
15 Perkins v. CTX Morg. Co., 16 969 P.2d 93 (Wash. 1999)............................................................................................................ 4
17 Perry Educ. Ass’n v Perry Local Educators’ Ass’n, 460 U.S. 37 (1983)................................................................................................................ 18,19
18
19 Pilsen Neighbors Cmty Council v. Netsch, 960 F.2d 676 (7th Cir. 1992) ..................................................................................................... 19
20
Pony v. Cnty. of Los Angeles, 21 433 F.3d 1138 (9th Cir. 2006) ................................................................................................... 26
22
Preminger v. Peake, 23 552 F.3d 757 (9th Cir. 2008) ............................................................................................... 18, 19
24 Ricotta v. Calif., 25 4 F. Supp. 2d 961 (S.D. Cal. 1998)........................................................................................ 6, 19
26 Romero v. U.S. Dep’t. of Justice, 556 F. App’x 365 (5th Cir. 2014) .............................................................................................. 23

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

(Case No. 2:17-cv-716)

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P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
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Salazar-Gonzalez v. Lynch, 1 798 F.3d 917 (9th Cir. 2015) ....................................................................................................... 6
2
Sammartano v. First Jud. Dist. Ct., 3 303 F.3d 959 (9th Cir. 2002) ..................................................................................................... 16
4 Sampson v. Murray, 5 415 U.S. 61 (1974)..................................................................................................................... 25
6 Scannell v. City of Seattle, 648 P.2d 435 (Wash. 1982)........................................................................................................ 24
7
8 Singh v. INS, 315 F.3d 1186 (9th Cir. 2003) ......................................................................................... 4, 28, 29
9
Small v. Avanti Health Systems, LLC,
10
661 F.3d 1180 (9th Cir. 2011) ................................................................................................... 27
11
Sperry v. State of Fla. ex rel., Fla. Bar, 12 373 U.S. 379 (1963)................................................................................................................... 22
13
State ex rel. Ind. State Bar Ass’n v. Diaz, 14 838 N.E.2d 433 (Ind. 2005) ......................................................................................................... 4
15 Tift v. Ball, 16 No. 07-cv-276-RSM, 2008 WL 701979 (W.D. Wash. Mar. 12, 2008) ....................................... 6
17 United States v. Kaczynski, 551 F.3d 1120 (9th Cir. 2009) ............................................................................................. 18, 21
18
19 United States v. Linick, 195 F.3d 538 (9th Cir. 1999) ............................................................................................... 12, 13
20
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 21 455 U.S. 489 (1982)................................................................................................................... 21
22
Villagordoa Bernal v. Rodriguez, 23 No. 16-cv-152-CAS, 2016 WL 3360951 (C.D. Cal. June 10, 2016)........................................... 6
24 Walker v. Pac. Maritime Ass’n, 25 2008 WL 1734757 (N.D. Cal. April 14, 2008)...................................................................... 7, 19
26 Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7 (2008)........................................................................................................... 10, 15, 25

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

(Case No. 2:17-cv-716)

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Young v. Amer. Mini Theatres, Inc., 1 427 U.S. 50 (1976)..................................................................................................................... 21
2
Zal v. Steppe, 3 968 F.2d 924 (9th Cir. 1992) ............................................................................................... 16, 18

4

ADMINISTRATIVE DECISIONS

5
Matter of Krivonos, 6 24 I. & N. Dec. 292 (BIA 2007) ................................................................................................ 23

7
Matter of Lozada, 8 19 I&N Dec. 637 (BIA 1988) ...................................................................................................... 6

9 Matter of Reyes-Francisco, 2009 WL 3818017 (BIA Nov. 4, 2009) ........................................................................... 6, 26, 28
10
11 Matter of Rosales, 19 I. & N. Dec. 655 (BIA 1988) .......................................................................................... 15, 29
12
13 Matter of Velasquez, 19 I. & N. Dec. 377 (BIA 1986) ................................................................................................ 14
14
STATUTES
15
16 6 U.S.C. § 521(a) .......................................................................................................................... 22

17 8 U.S.C. § 1101(b)(4) ................................................................................................................... 22

18 8 U.S.C. § 1103(g) ........................................................................................................................ 22
19
28 U.S.C. § 2201........................................................................................................................... 14
20
RULES
21
22 Federal Rule of Civil Procedure 11 ................................................................................... 1, passim

23 LCR 83.2(b) ...................................................................................................................................16

24

REGULATIONS

25
65 Fed. Reg. 39,513 (June 27, 2000) ............................................................................................ 22
26

73 Fed. Reg. 44,178 (July 30, 2008)............................................................................................... 4

73 Fed. Reg. 76,914 (Dec. 18, 2008) .................................................................................. 4, 19, 28

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

(Case No. 2:17-cv-716)

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1 79 Fed. Reg. 55, 659 (Sep. 17, 2014) ....................................................................................... 3, 24
2
80 Fed. Reg. 59,514 (Oct. 1, 2015)......................................................................................... 2, 3, 5
3
81 Fed. Reg. 92, 92.346 (Dec. 19, 2016) ........................................................................................ 3
4
5 8 C.F.R. § 1.1(i) ............................................................................................................................ 13

6 8 C.F.R. § 1.1(m) .......................................................................................................................... 13
7
8 C.F.R. § 1001.1(f) ...................................................................................................................... 23
8
8 C.F.R. § 1001.1(i) ............................................................................................................ 4, 12, 14
9
8 C.F.R. § 1001.1(j) ...................................................................................................................... 23
10
11 8 C.F.R. § 1001.1(k) ................................................................................................................. 4, 12

12 8 C.F.R. § 1001.1(m) .................................................................................................................... 13
13
8 C.F.R. § 1003.0(e)(2) ................................................................................................................... 7
14
8 C.F.R. § 1003.17 .............................................................................................................. 3, 14, 15
15
16 8 C.F.R. § 1003.17(a).................................................................................................................... 14
17 8 C.F.R. § 1003.17(b) ................................................................................................................... 14
18 8 C.F.R. § 1003.38(g) ................................................................................................................... 24
19
8 C.F.R. § 1003.101(a)............................................................................................................ 3, 7, 9
20
8 C.F.R. § 1003.102(t) ....................................................................................................... 1, passim
21
22 8 C.F.R. § 1003.102(t)(1)................................................................................................... 4, passim
23 8 C.F.R. § 1003.103(a)(1)............................................................................................................. 23
24 8 C.F.R. § 1003.104(a).................................................................................................................... 7
25
8 C.F.R. § 1003.104(b) ............................................................................................................... 7, 8
26
8 C.F.R. § 1003.104(c).................................................................................................................... 7

8 C.F.R. § 1003.105(a).................................................................................................................... 7

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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1 8 C.F.R. § 1291.1(a)........................................................................................................................ 3
2
8 C.F.R. § 1292.1(a)(4) ................................................................................................................... 3
3
8 C.F.R. § 1292.1(a)(f).................................................................................................................... 3
4
5 8 C.F.R. § 1003.101(b) ............................................................................................................. 8, 29

6

JOURNALS AND LAW REVIEW

7
Charles H. Kuck & Olesia Gorinshteyn, 8 Unauthorized Practice of Immigration Law in the
Context of Supreme Court's Decision 9 in Sperry v. Florida, 35 Wm. Mitchell L. Rev. 340 (2008) ..........................................................29

10
Shannon, Careen, Innovative Approaches to 11 Immigrant Representation: Exploring New Partnerships,
33 Cardozo L. Rev. 437, 480 (2011) ...............................................................................................4
12
13 McKeown, M. Margaret, & Allegra McLeod, The Counsel Conundrum: Effective Representation in
14 Immigration Proceedings, in Ramij-Nogales, J., Schoenholtz, A., & Schrage, P., eds., REFUGEE ROULETTE:
15 DISPARITIES IN ASYLUM ADJUDICATION AND 16 PROPOSALS FOR REFORM (New York: NYU Press, 2009). .................................................5, 19, 28

17

MISCELANEOUS

18 Immigr. Ct. Practice Manual................................................................................................8, 15, 29
19
Wash. R. Prof. Conduct 1.2 ...........................................................................................................24
20

21

22

23

24

25

26

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

(Case No. 2:17-cv-716)

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P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
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Case 2:17-cv-00716-RAJ Document 47 Filed 06/26/17 Page 11 of 42

1

I. INTRODUCTION

2

Plaintiffs, Northwest Immigrant Rights Project (“NWIRP”), ask this Court to

3 constitutionally overturn the balanced priorities of the Executive Office for Immigration Review

4 (“EOIR”) – increasing the availability of representation in immigration court proceedings, while

5 ensuring the quality of such representation – and replace it with NWIRP’s ad hoc practice of

6 ghostwritten briefs. But such a reprioritization – premised on the idea that the rules should not

7 apply to NWIRP practitioners because they claim to provide competent representation and

8 therefore do not need EOIR oversight – is neither constitutionally-mandated nor directly related

9 to the relief NWIRP requests.

10

EOIR’s viewpoint- and practitioner-neutral requirement to file a notice of appearance and

11 sign a brief when “representing” an individual in immigration court is based on the requirements

12 of Federal Rule of Civil Procedure 11, which promote accountability, transparency, and candor

13 in federal district courts—concerns even more salient in immigration courts. Any exemption for

14 NWIRP from this regulation is not required by the First or Tenth Amendments. NWIRP’s

15 requested relief– an injunction against EOIR’s enforcement of its professional conduct rule, 8

16 C.F.R. § 1003.102(t)—would lead to decreased transparency and accountability in immigration

17 proceedings, and undermine the progress that EOIR and stakeholders like NWIRP have achieved

18 in protecting a vulnerable population from unscrupulous immigration service providers, both

19 licensed attorneys and unlicensed practitioners commonly referred to as “notarios,” who

20 routinely hide behind ghostwritten filings.

21

In response to the historically, widely-recognized poor quality of immigration

22 representation, EOIR, the agency tasked with administering the nation’s immigration court

23 system, adopted rules and procedures to promote both the availability of pro bono and low cost

24 representation and the quality of representation for individuals appearing in immigration courts.

25 To further these priorities, EOIR oversees a host of programs facilitating nationwide pro bono

26 and low cost immigration practice by practitioners (both attorneys and non-attorneys), and also

facilitates greater access to information by funding educational programs, among other

initiatives. Concurrently, to further its goal of competent representation in immigration

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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1 proceedings, EOIR has adopted a system built on transparency and accountability and has

2 consistently administered these regulations since their adoption, as evidenced by EOIR’s

3 issuance of numerous similar letters – to private practitioners as well as practitioners associated

4 with non-profit organizations – since early 2009 without resulting in the dire harms invoked by

5 Plaintiffs. By requiring practitioners to file a notice of appearance, sign a brief, and accept

6 EOIR’s professional conduct rules when they speak to an immigration court through a written

7 filing, EOIR facilitates its ability to regulate practice before it. There is simply no precedent for

8 striking down an appearance requirement like EOIR’s under the First or Tenth Amendments.

9

Even if NWIRP believes that not filing a notice of appearance might allow it to increase

10 the number of people it can assist, such an interest does not outweigh EOIR’s strong interest in

11 ensuring the quality of representation provided to those appearing before the immigration courts.

12 This Court should therefore deny Plaintiffs’ motion for a preliminary injunction. First, Plaintiffs

13 are unable to establish that EOIR’s professional conduct rule violates the First or Tenth

14 Amendment. As stated above, requiring a practitioner to file a notice of appearance, sign a brief,

15 and accept EOIR’s professional conduct rules is a reasonable requirement that helps EOIR

16 identify practitioners and enforce its professional conduct rules without impairing NWIRP’s

17 speech rights or unduly infringing on Washington’s sovereignty. Second, NWIRP cannot

18 establish that the requirement irreparably harms it. Section 1003.102(t) is not an “all-or-nothing”

19 or “compulsory representation rule;” indeed, most activities referenced by Plaintiffs and their

20 declarants are not impacted by EOIR’s application of section 1003.102(t). Lastly, EOIR and the

21 public have a strong interest in allowing the agency to rely on the notice of appearance

22 requirement in order to promote quality of representation.

23

II. BACKGROUND

24

A. EOIR’s Historical Commitment to Increasing the Availability of Representation

25

Before Immigration Courts and the Board

26

EOIR has taken significant steps to address the “critical and ongoing shortage of

qualified legal representation for underserved populations in immigration cases before federal

administrative agencies.” See 80 Fed. Reg. 59,514, 59,529 (Oct. 1, 2015). EOIR has authorized

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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1 greater numbers of non-attorney professionals to represent indigent and low income immigrants

2 through recognized nonprofit organizations, Lang Decl. ¶¶ 13-58, 81 Fed. Reg. 92,346 (Dec. 19,

3 2016), 80 Fed. Reg. 59,514; created a program to appoint counsel to represent detainees with

4 serious mental disorders or defects, Lang Decl. at ¶¶ 56-58; facilitated the expansion of pro bono

5 representation by providing a List of Pro Bono Legal Service Providers given to every individual

6 in immigration court proceedings, id. at ¶¶ 38-43, 80 Fed. Reg. 59,503 (Oct. 1, 2015), created

7 and overseen the BIA Pro Bono Project, Lang Decl. at ¶¶ 50-55, promoted best practices with

8 immigration court staff and pro bono groups, such as those included under the immigration

9 courts’ 2008 “Guidelines for Facilitating Pro Bono Legal Services,” id. at ¶¶ 45-49; and changed

10 its regulations to allow separate appearances in the specific context of custody and bond

11 proceedings to encourage more attorneys and accredited representatives to represent respondents

12 in those specific proceedings. 80 Fed. Reg. 59,500 (Oct. 1, 2015), 79 Fed. Reg. 55,659 (Sept.

13 17, 2014), Lang Decl. at ¶ 13-22.

14

B. The Notice of Appearance requirement is critical for EOIR’s management of

15

removal proceedings, Attorney Discipline Program, and fraud prevention.

16

To protect the integrity of proceedings in immigration court and ensure that individuals in

17 such proceedings receive competent counsel, the Board of Immigration Appeals (“Board”) has

18 authority to impose disciplinary sanctions on practitioners who appear before the Board, the

19 immigration courts, or the Department of Homeland Security, “if it is in the public interest to do

20 so.” 8 C.F.R. § 1003.101(a). Only practitioners authorized to practice in immigration court may

21 appear on behalf of a respondent in immigration court proceedings. 8 C.F.R. § 1291.1(a). These

22 practitioners include attorneys regardless of their state of licensing and several categories of non-

23 attorney representatives, id., including “accredited representatives,” i.e. authorized non-lawyer

24 professionals who are associated with a recognized nonprofit or similar organization. 8 C.F.R.

25 § 1292.1(a)(4), (f).

26

EOIR requires that in any proceeding before the immigration court in which the

respondent is represented, the representative must file a notice of appearance (Form EOIR-28). 8

C.F.R. § 1003.17. Failure to do so constitutes chargeable disciplinary misconduct, 8 C.F.R.

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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1 § 1003.102(t), with the additional proviso that “in each case where the respondent is represented,

2 every pleading, application, motion, or other filing shall be signed by the practitioner of record in

3 his or her individual name,” id. § 1003.102(t)(2). Discipline under this charge applies when the

4 practitioner engages in “practice” or “preparation” before the immigration court. id.

5 § 1003.102(t)(1). “Practice” is defined as “act or acts of any person appearing in any case, either

6 in person or through the preparation or filing of any brief or other document, paper, application,

7 or petition on behalf of another person or client” before the immigration courts. 8 C.F.R. §

8 1001.1(i). “Preparation” is “the study of the facts of a case and the applicable laws, coupled with

9 the giving of advice and auxiliary activities.”1 8 C.F.R. § 1001.1(k). Preparation, however, does

10 not cover assistance in the preparation of forms by aiding an individual to fill in the blanks.2 Id.

11

The notice of appearance and signature requirements serve multiple purposes. First, the

12 notice of appearance and signature facilitates EOIR’s enforcement of its rules of professional

13 conduct by allowing EOIR to identify the practitioner responsible for representation. 73 Fed.

14 Reg. 76,914, 76,915 (Dec. 18, 2008) (“It is difficult for EOIR to enforce those standards when

15 practitioners fail to enter a notice of appearance or sign filings made with EOIR.”); 73 Fed. Reg.

16 44,178, 44,183 (July 30, 2008) (“[T]he difficulties in pursuing a practitioner for discipline for

17 participating in the preparation of false or misleading documents are apparent when the

18 practitioner fails to submit a completed notice of entry of appearance form.”); Singh v. INS, 315

19

20

1 One commenter argued that the agency’s definition of practice and preparation should serve as the basis

for a uniform statute on unauthorized practice of immigration law. Shannon, Careen, Innovative Approaches to

21 Immigrant Representation: Exploring New Partnerships, 33 Cardozo L. Rev. 437, 480 (2011).

2 States have recognized that the preparation of forms with legal significance – including immigration

22 forms –amounts to legal practice when the assistance goes beyond the role of a scrivener. See, e.g., Franklin v.

Chavis, 640 S.E.2d 873, 876 (S.C. 2007) (“Even the preparation of standard forms that require no creative drafting

23 may constitute the practice of law if one acts as more than a mere scrivener.”); State ex rel. Ind. State Bar Ass’n v.

Diaz, 838 N.E.2d 433, 443-46 (Ind. 2005) (the selection and preparation of immigration forms was practice of law);

24 Iowa Sup. Ct. Comm’n on Unauthorized Practice of Law v. Sturgeon, 635 N.W. 2d 679, 681-84 (Iowa 2001)

(assistance in the preparation of forms that went beyond the role of a scrivener was unauthorized practice of law);

25 Perkins v. CTX Morg. Co., 969 P.2d 93, 97-98 (Wash. 1999) (the selection and preparation of legal instruments is

practice of law) Or. State Bar v. Ortiz, 713 P.2d. 1068, 1070-71 (Or. Ct. App. 1986) (non-attorney who was not

26 authorized to practice before immigration agencies engaged in practice of law by doing more than filling in blanks

under direction of a customer). But while preparing a form may constitute “the practice of law” in some

jurisdictions, it would not be considered practice before the immigration courts – and thus would not trigger the

requirement of filing a notice of appearance – without the practitioner having substantively shaped the content of a

form filed with an immigration court. 8 C.F.R. § 1003.102(t); see Lang Decl. ¶¶ 66-69; Barnes Decl. ¶ 46; infra at

13.

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1 F.3d 1186, 1189 (9th Cir. 2003) (stating that Board “has a substantial interest in assuring that, at

2 any given time, there is no ambiguity as to who has been given, and who has accepted, the

3 responsibility of representing a party before it”). In the immigration context, such accountability

4 is especially important because many individuals who hold themselves out as immigration

5 attorneys lack minimal competence, are unethical, or are not authorized to represent individuals

6 in immigration court. Morales-Apolinar v. Mukasey, 514 F.3d 893, 897 (9th Cir. 2008) (noting

7 “wide-spread awareness of these abhorrent practices” of “unlicensed notarios and unscrupulous

8 appearance attorneys who extract heavy fees in exchange for false promises and shoddy,

9 ineffective representation”); McKeown, M. Margaret, & Allegra McLeod, The Counsel

10 Conundrum: Effective Representation in Immigration Proceedings, 288 (“some individuals may

11 be better served without counsel than by the assistance of an incompetent attorney or unqualified

12 nonlawyer”), in Ramij-Nogales, J., Schoenholtz, A., & Schrage, P., eds., REFUGEE ROULETTE:

13 DISPARITIES IN ASYLUM ADJUDICATION AND PROPOSALS FOR REFORM (New York: NYU Press,

14 2009). The notice of appearance contains language requiring the practitioner to attest, under

15 penalty of perjury, that they are authorized to practice, are in compliance with the rules of

16 professional conduct. Exs. A-B (Forms EOIR 27 and EOIR-28). The court staff, immigration

17 judges, or the Board can rely on the notice of appearance and signature to identify and report

18 practitioners who violate any of the EOIR rules of professional conduct. Maggard Decl. ¶¶ 4-6;

19 Barnes Decl. ¶¶ 3-4, 11, 33-36, 44-45, 48, 54.

20

Second, the notice of appearance and signature requirement provides EOIR with the

21 ability to ensure that only those individuals authorized to practice before the immigration courts

22 in fact represent foreign nationals before the immigration courts. See 73 Fed. Reg. at 76,915

23 (adding the words “practice” and “preparation” to 8 C.F.R. § 1003.102(t)); 34 Fed. Reg, 12,213,

24 12,213 (May 22, 1969) (stating term “preparation” added to “curb the illegal practice of law by

25 non-lawyers”). With the notice of appearance, attorneys and non-attorney representatives 26 provide their bar membership and EOIR registration number, respectively. Exs. A-B.3 EOIR

3 Additionally, the EOIR-28 notice of appearance requires representatives in immigration court to attest, under penalty of perjury, not only to their authorization to practice, but also to their compliance with EOIR’s professional conduct rules, and to publication of discipline if imposed. See Exs. A-B. EOIR added this language to ensure that practitioners will make their clients aware of the scope of representation. 80 Fed. Reg. 59,501.

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1 can then verify that the practitioner is authorized to practice before the immigration courts and

2 reduce the risk of disciplined practitioners or unauthorized “notarios” taking on new clients or

3 appearing on their behalf in immigration court or before the Board. EOIR would then be able to

4 take appropriate action against individuals who do take on new clients when they are not

5 authorized to practice before the immigration courts or the Board. Barnes Decl. ¶¶ 35-38.

6

Third, the notice of appearance and signature requirement helps a respondent to lodge

7 claims against an ineffective practitioner, and preserve claims for potential relief. In

8 immigration court proceedings, a respondent who received ineffective assistance of counsel may

9 have his immigration court proceedings reopened, if the respondent files a bar complaint. See

10 generally Matter of Lozada, 19 I&N Dec. 637 (BIA 1988); Salazar-Gonzalez v. Lynch, 798 F.3d

11 917 (9th Cir. 2015) (discussing ineffective assistance of counsel claims). A notice of appearance

12 makes it easier for the respondent to establish that a particular practitioner represented him, and

13 to file the bar complaint. See Matter of Reyes-Francisco, 2009 WL 3818017, at *1 (BIA Nov. 4,

14 2009) (unpublished) (rejecting ineffective assistance of counsel claim made against attorney who

15 is part of law firm that represented respondent but who never entered notice of appearance).

16

Fourth, the notice of appearance and signature requirement discourages the practice of

17 “ghostwriting” and ensures the practitioner’s candor to the tribunal and full accountability for the

18 legal positions taken. Section 1003.102(t) is modeled after Rule 11 of the Federal Rules of Civil

19 Procedure, which requires that an attorney sign pleadings filed with federal district courts. 73

20 Fed. Reg. at 44,183; Barnes Decl. ¶¶ 31-32. The federal courts, like EOIR, generally prohibit

21 ghostwriting because allowing a client to file pro se a document actually written by an attorney

22 raises issues of candor to the court. See, e.g., Villagordoa Bernal v. Rodriguez, No. 16-cv-152-

23 CAS, 2016 WL 3360951, at *7 (C.D. Cal. June 10, 2016) (“[T]he parties are reminded that

24 ghostwriting of pro se filings is, of course, inappropriate and potentially sanctionable conduct.”

25 (citing Ricotta v. Calif., 4 F. Supp. 2d 961, 986 (S.D. Cal. 1998))); Tift v. Ball, No. 07-cv-276-

26 RSM, 2008 WL 701979, at *1 (W.D. Wash. Mar. 12, 2008) (“It is therefore a violation for

attorneys to assist pro se litigants by preparing their briefs, and thereby escape the obligations

imposed on them under Rule 11.”); Laremont-Lopez v. S.E. Tidewater Opportunity Ctr., 968 F.

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1 Supp. 1075, 1078-79 (E.D. Va. 1997) (explaining that ghostwriting causes confusion regarding

2 representation, interferes with the administration of justice, constitutes a misrepresentation to the

3 court under Rule 11, and while “convenient for counsel,” disrupts the proper conduct of

4 proceedings); Barnes Decl. ¶¶ 37-39.4 Ghostwriting also prevents immigration judges from

5 conducting oral arguments on legal issues and permits unauthorized practice of law. See Walker

6 v. Pac. Maritime Ass’n, 2008 WL 1734757, at *2 (N.D. Cal. April 14, 2008).

7

EOIR learns about potential disciplinary action through complaints from immigration

8 judges, Board members and the public. See e.g. Barnes Decl., ¶¶ 3-4, 41, 50-51 & Barnes Decl.

9 Exs. 8-10; Maggard Decl., ¶¶ 4, 6. In cases where the Disciplinary Counsel receives complaints

10 regarding practitioner conduct, the Disciplinary Counsel will conduct a preliminary inquiry.5 8

11 C.F.R. § 1003.104(a)-(b), Barnes Decl., ¶ 11, 41 The Disciplinary Counsel, in her discretion,

12 may take actions to resolve the dispute without a need for formal disciplinary proceedings that

13 could result in sanctions.6 8 C.F.R. § 1003.104(c); Barnes Decl. ¶¶ 6, 11-21 However, if the

14 EOIR Disciplinary Counsel determines that “sufficient prima facie evidence exists to warrant

15 charging a practitioner with professional misconduct,” she will initiate formal disciplinary

16 proceedings with the Board. 8 C.F.R. § 1003.105(a); Barnes Decl. ¶ 7, 13, 22, 47. Since it was

17 promulgated, EOIR has consistently enforced section 1003.102(t) where the Disciplinary

18 Counsel finds a violation of 8 C.F.R. § 1003.102(t). Barnes Decl. ¶¶ 40-48. Since January 20,

19 2009, the Disciplinary Counsel has sent at least 31 letters to practitioners that she identified as

20 having potentially violated section 1003.102(t), based on complaints or other information

21 received. Id. at ¶ 43.

22

23

24
4 In In re Liu, 664 F.3d 367, 369 (2d Cir. 2011), the Second Circuit declined to sanction an immigration 25 attorney for ghostwriting appellate briefs to the Circuit, in part because Rule 11 only applies in federal district
courts. Id. at 372 n.5. However, the Liu Court recommended that the Second Circuit amend its local rules to address 26 the issue of ghostwriting. Id. at 373 n.7.
5 In the event that EOIR uncovers that an individual is not authorized to practice before the immigration court, it may refer the case to the Fraud and Abuse Prevention Counsel for investigation and possible prosecution. See 8 C.F.R. § 1003.0(e)(2).
6 Sanctions are only issued if formal disciplinary proceedings are initiated and there is finding by an adjudicating official that there has been a violation. See 8 C.F.R. § 1003.101(a).

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PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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1 C. The Disciplinary Counsel’s Letter to NWIRP regarding its practice of ghostwriting

2

briefs for filing with the immigration courts.

3

NWIRP is a non-profit organization based in the State of Washington that provides

4 various legal services to that State’s migrant population. Compl. ¶ 1.1. NWIRP employs a large

5 number of attorneys, some of whom are not licensed to practice law in Washington, as well as

6 several accredited representatives and support staff. NWIRP – Staff,

7 https://www.nwirp.org/about-nwirp/staff/ (last visited June 23, 2017). NWIRP also employs

8 “legal advocates,” but their website does not these explain these individuals’ qualifications. Id.

9

In their Complaint, Plaintiffs allege that around December 2008 when EOIR promulgated

10 section 1003.102(t), NWIRP met with an unidentified “local immigration court administrator”7

11 to discuss the impact of this rule on NWIRP’s work. Compl. ¶ 3.11. NWIRP claims that a

12 “convention was accepted” that NWIRP would notify the court of its assistance with pro se

13 motions or applications by denoting that an unidentified individual associated with NWIRP had

14 prepared or assisted in the preparation. Id. NWIRP does not state who represented NWIRP in

15 those alleged talks, nor provide or identify any document or written agreement memorializing

16 this “convention.” NWIRP also fails to allege that the Disciplinary Counsel, tasked with

17 governing EOIR practitioner conduct, was aware of or endorsed NWIRP’s practice. Compare

18 Barnes Decl. ¶¶ 49-59.

19

In an October 11, 2016 conversation with EOIR’s Disciplinary Counsel and Fraud and

20 Abuse Prevention Counsel, NWIRP asked for relief from section 1003.102(t). NWIRP

21 mentioned the organization’s recognition to sponsor non-lawyer accredited representatives.

22 Barnes Decl. ¶ 49. The Disciplinary Counsel explained that even competent attorneys can make

23 mistakes, and as such, section 1003.102(t) must be applied uniformly to all immigration 24 practitioners. Id.; see also 8 C.F.R. §§ 1003.101(b), 1292.3 (accredited representatives are 25 subject to the same EOIR professional conduct rules as other practitioners).

26

7 Court administrators supervise a local immigration court’s clerical and technical employees and other staff as part of managing the court’s daily activities, see Immigr. Court Practice Manual § 1.3(b), which include acceptance of filings, see id. § 3.1(d)(1)—as distinct from the Disciplinary Counsel’s authority regarding practitioner conduct and discipline, see 8 C.F.R. § 1003.104(b).

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1

Subsequently, on November 1, 2016, the court administrator for the Tacoma Immigration

2 Court forwarded a pro se motion to EOIR’s Fraud and Abuse Prevention Counsel that contained

3 the notation indicating that NWIRP provide assistance. Barnes Decl. ¶ 50. The referral from

4 Tacoma also noted “potential fraud,” in that the signature in the motion did not appear to be the

5 same signature as appeared on another document filed by the same respondent. Barnes Decl. Ex.

6 8. On January 5, 2017, EOIR’s Disciplinary Counsel received another inquiry, this time from

7 the Seattle Immigration Court, concerning another pro se motion with a similar notation. Barnes

8 Decl. ¶ 51 & Ex. 9. Neither notation indicates who within NWIRP provided that assistance, or

9 whether the assistance was provided by an attorney or an accredited representative, or whether

10 the preparer is authorized to practice before the immigration courts.

11

In response to these filings, on April 5, 2017, the Disciplinary Counsel sent Matt Adams,

12 in his capacity as Legal Director for NWIRP, a letter “ask[ing] that NWIRP cease and desist

13 from representing aliens unless and until the appropriate Notice of Entry of Appearance form is

14 filed with each client that NWIRP represents.” Barnes Decl. ¶¶ 52-55 & Ex. 10. In that letter,

15 the Disciplinary Counsel stated that it recently came to her attention that NWIRP has attempted

16 to advocate for two individuals in immigration court by preparing filings for court without 17 entering a Notice of Appearance.8 Id. The letter explained to NWIRP that the Notice of

18 Appearance requirement allows EOIR to hold “attorneys accountable for their conduct” and that

19 it “makes it possible for EOIR to impose disciplinary sanctions on attorneys who do not provide

20 adequate representation to their clients.” Id. The letter did not impose any disciplinary sanction 21 on NWIRP or any of its attorneys for violating EOIR regulations;9 and it did not instruct NWIRP

22 to cease engaging in activities not involving representation, e.g. other legal work on behalf of

23 Washington’s foreign national community or to cease providing assistance under the Legal

24 Orientation Program (LOP). Barnes Decl. ¶ 46. The Disciplinary Counsel sent the letter to

25 NWIRP’s legal director because the notations did not identify an individual practitioner. Barnes

26 Decl. ¶ 55.

8 The letter noted that the inconsistent signatures in one case “could indicate that someone other than [respondent] drafted his motion to reopen.” Id.
9 Only an adjudicating official or the Board can impose sanction when formal disciplinary proceedings have been initiated. See 8 C.F.R. § 1003.101(a).

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1

On May 2, 2017, NWIRP asked EOIR to rescind its April 5, 2017, letter because it

2 believed the letter unduly restricted its work. Ex. C, Letter from Matt Adams, Legal Director,

3 NWIRP, to Jennifer Barnes, Disciplinary Counsel, EOIR (May 2, 2017). EOIR’s General

4 Counsel responded to NWIRP’s letter on May 8, 2017. Ex. D, Letter from Jean King, General

5 Counsel, EOIR, to Matt Adams (May 8, 2017). In the response, EOIR stated that while it is

6 committed to supporting programs assisting individuals in immigration court proceedings,

7 “EOIR must be consistent in how it enforces the Rules of Professional Conduct.” Id. EOIR

8 explained the history behind the Notice of Appearance requirement to NWIRP, highlighting that 9 the regulation “is meant to advance the level of professional conduct in immigration matters and

10 foster increased transparency in the client-practitioner relationship.” Id. EOIR also noted that 11 NWIRP is an LOP provider that has had access to EOIR’s guidance distinguishing between

12 providing legal assistance and legal representation and that “EOIR has not made any changes to 13 its policies affecting this guidance.” Id. EOIR highlighted that “in no way [does EOIR] wish[]

14 to impede the important work done by organizations like [NWIRP],” but it stands by the April 5,

15 2017, letter. Id.

16

III. STANDARD FOR PRELIMINARY INJUNCTION

17

A preliminary injunction is an extraordinary remedy never awarded as of right. Winter v.

18 Natural Res. Defense Council, Inc., 555 U.S. 7, 20 (2008). To obtain a preliminary injunction, a

19 party must ordinarily demonstrate: (1) a likelihood of success on the merits, (2) irreparable harm 20 in the absence of preliminary relief, (3) that the balance of the equities tips in favor of

21 preliminary relief, and (4) that an injunction is in the public interest. Id. Petitioner must satisfy

22 each factor. Id. Although the Ninth Circuit still employs a “sliding scale” approach to the four

23 factors, see Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011), the

24 moving party must show a likelihood of irreparable harm to warrant preliminary relief. See 25 Flexible Lifeline Systems, Inc. v. Precision Lift, Inc., 654 F.3d 989, 1000 (9th Cir. 2011).

26

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1

IV. ARGUMENT

2

A. Plaintiffs cannot establish they are likely to succeed on the merits of their claims.

3

1. The notice of appearance requirement as enforced and implemented by

4

EOIR is consistent with constitutional requirements.

5

a. Section 1003.102(t)(1) extends only to individuals who appear

6

before the immigration court or the Board, either in person or

7

through written pleadings.

8

Plaintiffs’ Complaint, and by extension, their Motion for Preliminary Injunction, is

9 predicated on at least two incorrect factual assertions: (1) that EOIR recently adopted a “new and

10 novel interpretation” of section 1003.102(t)(1); and (2) that the rule “purports to control not just

11 the appearance of attorneys in removal proceedings but their communications with clients (and

12 even potential clients) and other limited assistance provided outside of an active EOIR

13 proceeding.” ECF No. 1, at 2. Neither of these assertions is true.

14

Since January 20, 2009, when the regulation entered into force, EOIR has consistently

15 taken the position that section 1003.102(t)(1)’s reference to “practice” and “preparation” only

16 encompasses activities by individuals appearing before the immigration court or the Board, i.e. a

17 failure to personally sign and file a complete and accurate Notice of Entry of Appearance before

18 an immigration court or the Board, and/or a failure to sign a motion, brief or other document

19 ultimately filed before an immigration court or the Board. Indeed, EOIR has issued numerous

20 letters to practitioners, some of which have specifically questioned the practice of ghostwriting a

21 legal document– in other words, appearing in immigration court via a written pleading. Barnes

22 Decl. ¶¶ 40-48. Likewise, the April 5, 2017 letter that gave rise to this litigation specifically

23 cites two motions evidently authored by NWIRP personnel that were filed in immigration court,

24 and notes that it is “NWIRP’s practice of representing aliens before EOIR” that is of primary

25 concern. ECF No. 1-1, at 2 (emphasis added). Thus, while NWIRP describes broad categories

26 of “limited services” that they believe are now at risk, see ECF No. 1, at 9-10, EOIR has not

required a notice of appearance for activities that do not constitute an appearance before an

immigration court or the Board . Barnes Decl. at ¶ 46.

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1

EOIR’s reading of section 1003.102(t)(1) as requiring the filing of a notice of appearance

2 only by an individual who appears before the immigration court – either in person or in written

3 pleadings – is fully consistent with the language of the regulation itself. Section 1003.102(t)(1)

4 states that the notice of appearance requirement is triggered when an individual “[h]as engaged

5 in practice or preparation as those terms are defined in §§ 1001.1(i) and (k).” 8 C.F.R.

6 § 1003.102(t)(1). Importantly, “practice” is defined in section 1001.1(i) as “the act or acts of any

7 person appearing in any case, either in person or through the preparation or filing of any brief or

8 other document . . . on behalf of another person or client before or with DHS, or any immigration

9 judge, or the Board.” (emphasis added). The term “practice,” for purposes of section

10 1003.102(t)(1), is thus plainly limited to instances in which a person actually appears in some

11 manner before an immigration judge or the Board. Id. While the term “preparation,” as defined

12 under section 1001.1(k), appears to sweep more broadly, it is important to note that the term

13 being defined is not simply “preparation,” but rather “preparation, constituting practice.” 8

14 C.F.R. § 1001.1(k) (emphasis added). Likewise, the definition of “practice” in section 1001.1(i)

15 explicitly acknowledges the possibility that one may “appear in [a] case . . . through the

16 preparation . . . of any brief or document.” 8 C.F.R. § 1001.1(i). Thus, for purposes of section

17 1003.102(t)(1), “preparation” is best read as defining the term as it used in the definition of

18 “practice” set forth in section 1001.1(i). In this context, the two terms read together only apply

19 to activities by which someone speaks to or interacts with the immigration court either through

20 in-person or written discourse.

21

To the extent that section 1003.102(t)(1) is ambiguous, the Court should interpret the

22 regulation narrowly to avoid any constitutional concerns. “[T]he doctrine of constitutional

23 avoidance requires [the Court] to construe [a] statute [or] regulation, if possible, to avoid a

24 serious constitutional question.” Dent v. Holder, 627 F.3d 365, 375 (9th Cir. 2010). To the

25 extent Plaintiffs’ argue that section 1003.102(t)(1) is facially unconstitutional based on

26 vagueness or overbreadth, the Court should adopt a “narrowing construction.” See United States

v. Linick, 195 F.3d 538, 542 (9th Cir. 1999) (“In evaluating the constitutionality of a regulatory

scheme, we should presume any narrowing construction . . . to which the law is fairly

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1 susceptible.” (internal citations omitted). And in assessing whether a narrowing construction is

2 available, “administrative interpretation of a regulation is “highly relevant to [the Court’s]

3 analysis.” Id. (internal quotation marks omitted).

4

The Court should evaluate Plaintiffs’ constitutional challenges to section 1003.102(t)(1)

5 based on the scope of the regulation as applied by the agency itself. NWIRP suggests that at

6 least eight categories of activities will be chilled by the requirement to file a notice of 7 appearance. Complaint ¶ 3.21. But NWIRP casts the net too far.10 For example, section

8 1003.102(t)(1) does not encompass the provision of general information about the immigration 9 court system,11 individual consultations which identify potential forms of relief,12 translation of 10 information13 or filling out asylum application forms or other types immigration forms without 11 that does not go beyond preparing the form.14 Rather it is only when a practitioner appears in

12 immigration court – either in person or via a written pleading– that the notice of appearance

13 requirement is triggered. Plaintiffs’ broad reading of section 1003.102(t)(1) bears no relationship

14 to how EOIR has actually applied the regulation and serves only to bolster their constitutional

15 challenges.

16
10 NWIRP should reasonably be aware that most services it provides are not encompassed by § 1003.102(t). 17 On July 11, 2011, the Director of EOIR’s Office of Legal Access Programs (OLAP) provided the contractor for the
Legal Orientation Program (LOP), who subcontracts task orders to various nonprofit organizations such as NWIRP, 18 guidance as to activities that are not “representation” as defined at 8 C.F.R. §§ 1.1(m) and 1001.1(m). ECF No. 14-
2, p. 7; Lang Decl. ¶¶ 66-69. Because the definition of “representation” at 8 C.F.R. §§ 1.1(m), 1001.1(m), like 8 19 C.F.R. § 1003.102(t), cross-references “practice” and “preparation” in 8 C.F.R. §§ 1.1(i), 1001.1(k), activities that
do not constitute “representation” under 8 C.F.R. § 1001.1(m) should also not trigger the notice of appearance 20 requirement under 8 C.F.R. § 1003.102(t). Lang Decl. ¶¶ 67, 69; Barnes Decl. ¶ 46.
11 See Lang Decl. ¶ 68(a), (c). Indeed, most of Plaintiffs’ declarants proffer this acceptable activity. See 21 Phelps Decl. ¶ 6; Chan Decl. ¶¶ 6, 8; Weissman-Ward Decl. ¶ 6; Little Decl. ¶7; Dos Santos Decl. ¶ 4; Sennett Decl.
¶ 7; Keller Decl. ¶¶ 4(a), 6-7; Kreimer Decl. ¶¶ 6-7; Kelly Decl. ¶ 4; Zoltan Decl. ¶ 4; Zukin Decl. ¶¶ 3-4; Werner 22 Decl. ¶ 9; Frahn Decl. ¶ 6, 8-9. Regarding “know your rights” presentations, see Stolz Decl. ¶ 6(a); London Decl. ¶
3; Bildhaur Decl. ¶ 6; Zoltan Decl. ¶ 4; Zukin Decl. ¶¶ 3-4; Pennington Decl. ¶¶ 5, 8, 12; Fleming Decl. ¶ 6; 23 Medway Decl. ¶ 3.
12 See Lang Decl. ¶ 68(b). See also Bauer & Cabot Decl. ¶ 5; Sennett Decl. ¶ 6; Keller Decl. ¶¶ 4(a-b)(d), 6; 24 Stolz Decl. ¶ 6(a); Roche Decl. ¶ 6; Little Decl. ¶ 3; London Decl. ¶ 5; Kelly Decl. ¶ 5(c); Ahmad Decl. ¶¶ 4, 6;
Keller Decl. ¶ 4(a); Kreimer Decl. ¶ 6; Marcus Decl. ¶ 12; Pennington Decl. ¶¶ 4-5, 11, 12; Werner Decl. ¶¶ 7-8; 25 Fleming Decl. ¶¶ 12, 14; Josef Decl. ¶ 7; Slater Decl. ¶¶ 4-6; Kathawala Decl. ¶¶ 8, 10; Medway Decl. ¶ 3; Soloway
& Weiss Decl. ¶¶ 7-9; Frahn Decl. ¶¶ 6, 8, 9; Soreff Decl. ¶¶ 4-9; Miller Decl. ¶¶ 6-7; Miao Decl. ¶¶ 4-5; Chan 26 Decl. ¶ 6.
13 See ECF No. 14-2, p. 7 § 7(a). See also Pennington Decl. ¶ 14; Medway Decl. ¶ 8. 14 See Lang Decl. ¶ 68(d), (e). See Bildhauer Decl. ¶ 3; Zoltan Decl. ¶ 4; Marcus Decl. ¶¶ 6-7, 12; Pennington Decl. ¶¶ 5, 14; Kathawala Decl. ¶ 10; Frahn Decl. ¶ 9; Phelps Decl. ¶ 3, 5; Weissman-Ward ¶ 8; Dos Santos Decl. ¶ 4-5; Bauer & Cabot Decl. ¶ 5; Sennett ¶ 3; Kreimer Decl. ¶ 7; Kelly Decl. ¶ 3; Keller ¶ 5; Ahmad Decl. ¶ 5.

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1

b. To the extent NWIRP challenges the lack of a limited scope

2

representation mechanism in immigration court, that claim is

3

not properly pleaded in the Complaint and invalidating section

4

1003.102(t) would not achieve relief.

5

The Complaint lists five causes of action: (1) & (2) facial and as-applied First

6 Amendment challenges, (3) & (4) facial and as-applied Tenth Amendment challenges, and (5) a

7 request for declaratory relief under 28 U.S.C. § 2201. For each of these causes of action,

8 Plaintiffs identify 8 C.F.R. § 1001.1(i) or (k) – i.e., the definitions of “practice” and

9 “preparation” – as incorporated into 8 C.F.R. § 1003.102(t), as the regulations they believe are

10 constitutionally infirm. Compl., at 11-15. While the Complaint makes passing reference to the

11 fact that “the immigration court does not permit limited appearances,” see ECF 1, at 6, Plaintiffs

12 never directly attack the regulatory basis for that rule. In fact, it is not the notice of appearance

13 requirement in section 1003.102(t)(1) that results in the “compulsory representation” alleged by

14 Plaintiffs, but rather the regulation governing attorney appearances and withdrawals.

15

The regulation governing attorney appearances, 8 C.F.R. § 1003.17, provides that “[i]n

16 any proceeding before an Immigration Judge in which the alien is represented, the attorney or

17 representative shall file a Notice of Appearance on Form EOIR-28 with the Immigration Court.”

18 As for withdrawing as counsel, the same regulation provides that “[w]ithdrawal or substitution of

19 an attorney or representative may be permitted by an Immigration Judge during proceedings only

20 upon oral or written motion submitted without fee.” 8 C.F.R. § 1003.17(b). Relying on a

21 previous version of the same regulation, the Board observed in Matter of Velasquez that “there is

22 no ‘limited’ appearance of counsel in immigration proceedings.” 19 I. & N. Dec. 377, 384 (BIA

23 1986) (citing 8 C.F.R. §§ 292.1, 292.4, 292.5(a) (1986)); see Cabrera-Gutierrez v. Holder, 427

24 F. App’x 581 (9th Cir. 2011) (quoting Matter of Velasquez).

25

Plaintiffs’ failure to challenge either 8 C.F.R. § 1003.17(a) or Matter of Velasquez in their

26 Complaint is significant. First, NWIRP’s challenges to a purported “compulsory representation

rule” should be rejected as outside the scope of the complaint. N. Arapaho Tribe v. LaCounte,

No. CV-16-11-BLGS-BMM, 2017 WL 908547, at *2-4 (D. Mont. Mar. 7, 2017). Indeed, while

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1 their Motion for Preliminary Injunction ostensibly challenges section 1003.102(t)(1)’s notice of

2 appearance requirement, NWIRP repeatedly makes clear that its actual intention in this case is to

3 challenge “EOIR’s compulsory representation rule.” ECF 37, at 10, 18. For example, while

4 attempting to explain why 8 C.F.R. § 1003.102(t)(1) is “not narrowly tailored to achieve EOIR’s

5 stated purpose,” NWIRP argues that “the Rule imposes an all-or-nothing paradigm that is not

6 tied to EOIR’s proffered interest in reducing either attorney misconduct or notario fraud.” Id. at

7 12 (emphasis added). But “the rule” that arguably precludes attorneys from engaging in limited

8 representation is 8 C.F.R. § 1003.17, not 8 C.F.R. § 1003.102(t)(1). Indeed, EOIR’s responses to

9 comments at the time that section 1003.102 became effective illustrate that the issue of limited

10 representation was outside the scope of that rule. 73 Fed. Reg. at 76,919 (stating that issues

11 regarding limited representation were outside the scope of proposed rules). In other words,

12 NWIRP devotes considerable effort to attacking 1003.102(t) for failing to address an issue –

13 limited scope representation – that was never the basis for the rule in the first place. Likewise,

14 the Complaint’s near silence as to 8 C.F.R. § 1003.17 necessarily limits what the Court should

15 consider at the preliminary injunction phase. N. Arapaho Tribe, 2017 WL 908547, at *2-4.

16

Additionally, even assuming that NWIRP’s Complaint challenges a “compulsory

17 representation rule,” such a challenge should be rejected as unripe. See Ohio Forestry Ass’n Inc.

18 v. Sierra Club, 523 U.S. 726, 733 (1998). In deciding whether a case is ripe, the Court should

19 consider: “(1) whether delayed review would cause hardship to the plaintiffs; (2) whether

20 judicial intervention would inappropriately interfere with further administrative action; and (3)

21 whether the courts would benefit from further factual development of the issues presented. Id.

22 Plaintiffs’ challenge to the “compulsory representation rule” is unripe because they have not

23 offered any evidence that they have ever attempted to withdraw from a case, much less been

24 denied the opportunity to do so by an immigration judge. The Immigration Court Practice

25 Manual states only that “[w]hen an attorney wishes to withdraw from representing an alien, and

26 the alien has not obtained a new attorney, the attorney must submit a written or oral motion to

withdraw. Immigr. Ct. Practice Manual, Ch. 2.3(i)(ii) (“Withdrawal of counsel”); Matter of

Rosales, 19 I. & N. Dec. 655, 657 (BIA 1988). Plaintiffs’ assertion that leave to withdraw is

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1 only granted in “exceptional circumstances” ECF 37, at 4-5, is not cited and unfounded.15 The

2 Court would therefor benefit from further development of the record on this matter before

3 attempting to assess the degree to which EOIR’s regulation of appearances actually inhibits 4 NWIRP’s activities.16 See Ohio Forestry Ass’n Inc., 523 U.S. at 733.

5

2. Plaintiffs have not established that they are likely to succeed under their

6

First Amendment Claims.

7

a. EOIR may regulate practice before immigration courts, which

8

like any courtroom, are nonpublic forums.

9

“In assessing a First Amendment claim relating to speech on government property, the

10 first step is to ‘identify the nature of the forum, because the extent to which the Government may

11 limit access depends on whether the forum is public or nonpublic.’” Sammartano v. First Jud.

12 Dist. Ct., 303 F.3d 959, 965 (9th Cir. 2002) (quoting Cornelius v. NAACP Legal Def. & Educ.

13 Fund, 473 U.S. 788, 797 (1985)), abrogated on other grounds by Winter v. Nat. Res. Def.

14 Council, 555 U.S. 7 (2008); Mezibov v. Allen, 411 F.3d 712, 718 (6th Cir. 2005) (First

15 Amendment rights “have always depended largely on the nature of the forum.”). “If the forum is

16 public, speakers can be excluded . . . only when the exclusion is necessary to serve compelling

17 state interest and the exclusion has been narrowly drawn to achieve that interest.” Sammartano,

18 303 F.3d at 965 (internal quotation marks omitted). On the other hand, “[i]f the forum is

19 nonpublic, a more lenient standard applies and the government may restrict access ‘as long the

20 restrictions are reasonable and are not an effort to suppress expression merely because the public

21 officials oppose the speakers view.” Id. (emphasis added).

22

Under the framework for forum analysis set forth by the Supreme Court in Cornelius,

23 courts have routinely held that courtrooms are nonpublic forums. Zal v. Steppe, 968 F.2d 924,

24 932 (9th Cir. 1992) (Trott, J., concurring) (“a courtroom is not a public forum . . . in free speech

25 analysis” because “[a]lthough courtrooms have always been devoted to debate, they have never

26

15 Even this Court regulates when an attorney may withdraw his or her legal representation and mandates

that an attorney who has appeared in a civil case may not withdraw “except by leave of court.” LCR 83.2(b).

16 In addition, rather than attacking neutral regulations of the legal practice on constitutional grounds,

NWIRP could submit a petition for rulemaking in which it asks the agency to address its concerns regarding limited

representation and unbundled legal services in the immigration context. See Compassion Over Killing v. FDA, 849

F.3d 849, 854 (9th Cir. 2017). For a policy change like the NWIRP seeks, this would be the proper route.

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1 been devoted to free debate, but only to debate within the confines set by the trial judge and the

2 rule of law. The First Amendment does not allow an attorney to speak beyond those confines.”);

3 Mezibov, 411 F.3d at 718 (“The courtroom is a nonpublic forum where the First Amendment

4 rights of everyone (attorneys included) are at their constitutional nadir. In fact, the courtroom is

5 unique even among nonpublic fora because within its confines we regularly countenance the

6 application of even viewpoint-discriminatory restrictions on speech.”) (internal citations

7 omitted)); Canatella v. Stovitz, 365 F. Supp. 2d 1064, 1071 (N.D. Cal. 2005) (holding, in a case

8 where plaintiff raised claims regarding “the scope of an attorney’s right to freely express himself

9 through words or conduct, whether by arguing in a courtroom [or] filing an action . . .” that “in

10 a non-public forum such as a courthouse, content-based restrictions on speech are permissible as

11 long as they are reasonable in light of the purpose served by the forum and viewpoint neutral”)

12 (emphasis added); Hendricks v. Pierce Cnty., No. C13-5690, 2015 WL 6031646, at *3 (W.D.

13 Wash. Oct. 15, 2015). As the Supreme Court has held, “[i]t is unquestionable that in the

14 courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an attorney has is

15 extremely circumscribed.” Gentile v. State Bar of Nev., 501 U.S. 1030, 1071 (1991) (observing

16 also that “lawyers in pending cases were subject to ethical restrictions on speech to which an

17 ordinary citizen would not be.”). Because EOIR applies section 1003.102(t) only to in court

18 statements, the regulation essentially serves as a disclosure requirement for those who wish to

19 speak in a nonpublic forum; the regulation in no way restricts the content of any practitioner’s

20 speech once they have properly identified themselves.

21

None of the cases on which NWIRP relies involved a nonpublic forum, as is the case

22 here. See ECF 37, at 6-9 (citing inter alia, NAACP v. Button, 371 U.S. 414 (1963); In re Primus,

23 436 U.S. 412 (1978); Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001) (“LSC”). Both

24 Button and Primus involved state bar regulations on solicitation of clients, which are out of court

25 activities. Button, 371 U.S. at 423-25; In re Primus, 436 U.S. at 418-21. In LSC, which

26 involved a First Amendment challenge to conditions attached to funding for a legal assistance

program, the Supreme Court specifically applied “limited forum” analysis standards – not non-

public forum standards – on the ground that the government could not use subsidies to “effect [a]

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1 serious and fundamental restriction on advocacy of attorneys and the functioning of the

2 judiciary.” In contrast, this case arises in connection with conduct before a tribunal where there

3 is no government-imposed viewpoint-based restriction on NWIRP’s advocacy other than that

4 “the attorney may only speak to the extent that his client’s rights allow him to speak.” Zal, 968

5 F.2d at 932 (Trott, J., concurring) (citing Gentile, 501 U.S. at 1071). EOIR’s notice of

6 appearance requirement does not restrict the content of NWIRP’s representation of a client.

7

Nor do any of the other cases on which Plaintiffs rely support the view that a regulation

8 that applies only to in-court speech is subject to strict scrutiny. Rather, nonpublic forum analysis

9 applies, and under Cornelius, the test is whether the regulation is “reasonable and not an effort to

10 suppress expression merely because public officials oppose the speaker’s view.” 473 U.S. at 800

11 (quoting Perry, 460 U.S. at 46); Diloreto v. Downey Unif. Sch. Dist. Bd. of Educ., 196 F.3d 958,

12 965 (9th Cir. 1999) (“The government may limit expressive activity in nonpublic fora if the

13 limitation is reasonable and not based on the speakers viewpoint.”).

14

b. Plaintiffs’ as-applied challenge to section 1003.102(t)(1) is

15

likely to fail because EOIR’s rule is reasonable and viewpoint

16

neutral.

17

Plaintiffs’ as-applied challenge to section 1003.102(t)(1) amounts to an assertion that

18 NWIRP has a First Amendment right to participate in the conduct that prompted the April 5,

19 2017 letter: ghostwriting briefs or motions for submission to the immigration court without filing

20 a notice of appearance. See United States v. Kaczynski, 551 F.3d 1120, 1126 (9th Cir. 2009)

21 (“An as-applied challenge contends that the law is unconstitutional as applied to the litigant’s

22 particular speech activity, even though the law may be capable of valid application to others.”

23 (citation and quotation marks omitted)). Plaintiffs are unlikely to succeed on their as-applied

24 First Amendment challenge because EOIR’s requirement that those who author immigration

25 court filings must enter a notice of appearance and sign them is both reasonable “in light of the

26 purpose served by the forum” – a judicial forum that seeks to promote quality representation and

accountability – and viewpoint neutral. Preminger v. Peake, 552 F.3d 757, 765 (9th Cir. 2008)

(citing Cornelius, 473 U.S. at 806).

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1

EOIR’s application of section 1003.102(t)(1) to NWIRP was viewpoint neutral. The

2 April 5, 2017 letter does not in any way address the contents of the briefs that NWIRP personnel

3 apparently authored. Barnes Decl. ¶ 50-54 & Ex. 10; Ex. D. Rather, the letter was issued

4 because a NWIRP staff member authored the motions without entering a notice of appearance or

5 signing them. Id. EOIR did not prevent NWIRP from expressing any viewpoint whatsoever. Id.

6 To the contrary, the regulation merely requires that practitioners who author briefs for filing in

7 immigration court disclose their representation by filing a notice of entry of appearance. EOIR’s

8 letter was clearly not “an effort to suppress expression merely because public officials oppose the

9 speaker’s view.” Preminger v. Peake, 552 F.3d 757, 765 (9th Cir. 2008) (citing Perry Educ.

10 Ass’n v Perry Local Educators’ Ass’n, 460 U.S. 37, 49 (1983)). EOIR’s application of section

11 1003.102(t)(1) to NWIRP was thus viewpoint neutral. Id.

12

Requiring the author of pleadings to enter a notice of appearance is also reasonable given

13 the form’s need increase the quality of representation and discourage ghostwriting. EOIR

14 modeled its notice of appearance requirement after Rule 11, which has been interpreted to

15 prohibit ghostwriting. 73 Fed. Reg. at 44,183. As discussed above, ghostwriting causes

16 confusion regarding representation, Laremont-Lopez, 968 F. Supp. at 1078-79, allows attorneys

17 to evade responsibility and accountability for their arguments presented to a court, Ricotta, 4 F.

18 Supp. 2d at 986, 73 Fed. Reg. 76,919, prevents immigration judges and the Board from

19 examining the arguments presented by the parties via oral arguments, facilitates the unauthorized

20 practice of law by notarios, Walker, 2008 WL 1734757, at *2 & n.2, a particular problem in

21 immigration court, see McKeown and McLeod at 296-97, and makes it more difficult for

22 immigrant respondents to lodge ineffective assistance claims and preserve relief. See supra at

23 6-7. EOIR’s application of section 1003.102(t)(1) to NWIRP in light of its interest in preventing

24 ghostwriting is entirely reasonable in the context of this forum. Cornelius, 473 U.S. at 806;

25 accord Perry Educ. Ass’n, 460 U.S at 49 (in a nonpublic forum, the government has “the right to

26 make distinctions in access on the basis of subject matter and speaker identity”); Pilsen

Neighbors Cmty Council v. Netsch, 960 F.2d 676, 686 (7th Cir. 1992) (declining to apply strict

scrutiny because the disclosure requirements only applied to a nonpublic forum).

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1

Alternatively, this Court should uphold the regulation as a content-neutral time, place,

2 and manner regulation. Indeed, such regulations are routinely upheld as reasonable exercises of

3 a court’s power to regulate those who practice before it. Mothershed v. Justices of the Sup. Ct.,

4 410 F.3d 602, 611 (9th Cir. 2005). In the same manner, EOIR has the authority to regulate the

5 conduct of practitioners who appear before it. See infra Part IV.A.3.a. The agency’s interest “in

6 regulating lawyers is especially great since lawyers are essential to the primary governmental

7 function of administering justice, and have historically been ‘officers of the courts.’” Goldfarb

8 v. Va. State Bar, 421 U.S. 773, 792 (1975).

9

Contrary to Plaintiffs’ assertion, section 1003.102(t)(1) is content-neutral. “The principle

10 inquiry in determining content neutrality . . . is whether the government has adopted a regulation

11 of speech because of disagreement with the message it conveys.” Honolulu Weekly, Inc. v.

12 Harris, 298 F.3d 1037, 1043 (9th Cir. 2002); see also Hill v. Colo., 530 U.S. 703, 719-20 (2000)

13 (holding that state statute was content neutral because: (1) it was not a “regulation of speech” but

14 instead a regulation of “where some speech may occur,” (2) it was not adopted “because of

15 disagreement with the message it conveys,” and (3) state’s interest was unrelated to the content

16 of the demonstrator’s speech, and could be justified without reference to the content of the

17 speech). EOIR’s application of section 1003.102(t)(1) to NWIRP is content neutral because the

18 regulation only serves to require that NWIRP practitioners file a notice of appearance and sign

19 documents filed with the immigration court. This same rule applies regardless of the content of

20 the briefs and motions that NWIRP prepares, and the rule was in no way adopted based on a

21 disagreement with certain speech.

22

c. Plaintiffs’ facial challenge is likely to fail because

23

1003.102(t)(1) can and should be read so as to only apply to

24

actual appearances – either in person, or in writing – before

25

the immigration court or the Board.

26

A facial challenge to a statute or regulation under the First Amendment must establish

either: (1) that the statute or regulation is “unconstitutional in every conceivable application” or

(2) that it “seeks to prohibit such a broad range of protected conduct that it is unconstitutionally

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1 overbroad.” Kaczynski, 551 F.3d at 1124. A facial challenge may assert that a statute or

2 regulation is unconstitutionally vague, as Plaintiffs do here. Adamian v. Jacobsen, 523 F.2d 929,

3 933 (9th Cir. 1975) (“The closely related First Amendment doctrines of vagueness and

4 overbreadth permit a defendant to assert the invalidity of a statute because of its potential

5 encroachment on First Amendment freedoms, even in cases where the defendant’s conduct itself

6 is unprotected by the First Amendment.”).

7

NWIRP’s contention that “[t]he Rule is . . . overbroad because it ‘sweeps too broadly’

8 and burdens constitutionally protected speech,” see Mot. at 14, is easily dismissed because

9 contrary to their arguments, section 1003.102(t)(1) does not encompass the activities they cite in

10 support of their overbreadth argument. See Mot at 14 (arguing that the regulation is overboard

11 because it encompasses community workshops and know your rights presentations); See supra

12 Part IV.A.1.a. Plaintiffs have therefore failed to show that they are likely to succeed on an

13 overbreadth argument. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.

14 489, 494-95 (1982) (“[A] court’s first task is to determine whether the enactment reaches a

15 substantial amount of constitutionally protected conduct . . . [and] [i]f it does not, then the

16 overbreadth challenge must fail.”).

17

EOIR’s application of section 1003.102(t)(1) also forecloses any claim that the regulation

18 is unconstitutionally vague. “In the First Amendment context, facial vagueness challenges are

19 appropriate if the statute clearly implicates free speech rights.” Cal. Teachers Ass’n v. State Bd.

20 of Educ., 271 F.3d 1141, 1149 (9th Cir. 2001). A statute’s vagueness exceeds constitutional

21 limits only if its “deterrent effect on legitimate expression is . . . both real and substantial, and if

22 the statute is [not] readily subject to a narrowing construction.” Young v. Amer. Mini Theatres,

23 Inc., 427 U.S. 50, 60 (1976) (emphasis added). Section 1003.102(t)(1) is readily subject to a

24 narrowing construction. As explained above, see supra Part IV.A.2.a, the regulation does not

25 clearly implicate NWIRP’s free speech rights because it governs only in-court speech, where free

26 speech rights “are at their constitutional nadir.” Mezibov, 411 F.3d at 718.

Plaintiffs failed to show they are likely to succeed on their claim that section

1003.102(t)(1) is facially invalid. Given the reasonable and constitutionally adequate application

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1 of section 1003.102(t)(1), the Court should decline to invoke the “strong medicine . . . of facial

2 vagueness invalidation.” Hum. Law Project v. U.S. Dep’t of Treas., 463 F. Supp. 1049, 1058

3 (C.D. Cal. Nov. 21, 2006).

4

3. Plaintiffs are unlikely to establish that the Tenth Amendment prohibits

5

EOIR from requiring the filing of a notice of appearance.

6

a. EOIR has the inherent authority to establish uniform

7

regulations governing practitioners, including attorneys and

8

non-attorneys, who practice before the immigration courts.

9

Federal agencies have the inherent power to regulate legal practice before federal

10 administrative tribunals. Sperry v. State of Fla. ex rel. Fla. Bar, 373 U.S. 379, 383-84 (1963).

11 “It is elementary that any court or administrative agency which has the power to admit attorneys

12 to practice has the authority to disbar or discipline attorneys for unprofessional conduct.” Koden

13 v. U.S. Dep’t of Justice, 564 F.2d 228, 233 (7th Cir. 1977). Such a power derives from the

14 forum’s inherent power to discipline practitioners and the practitioners’ status as an officer of the

15 court to which it is granted admission. See In re Snyder, 472 U.S. 634, 643 (1985) (recognizing

16 court’s “inherent authority to suspend or disbar lawyers”). In Sperry, the Supreme Court

17 overturned a state sanction against an attorney practicing before the Patent Office – a federal

18 agency – because that practice was authorized by federal law. 373 U.S. 383-84. In that case, the

19 Supreme Court recognized that while the state has a valid interest in regulating legal practice

20 within its borders, the state must yield to federal rules that permit practice before federal

21 administrative forums. Id.

22

As a federal administrative tribunal, EOIR has the authority to impose reasonable rules

23 governing practice before the immigration courts without unduly impairing Washington’s ability

24 to admit and regulate attorneys. Congress delegated to the Department of Justice the

25 responsibility of establishing an immigration court system and regulations governing those

26 proceedings. 6 U.S.C. § 521(a) (establishing EOIR); 8 U.S.C. §§ 1101(b)(4) (placing

immigration judges within EOIR to conduct specified proceedings), 1103(g) (placing EOIR

within the Department of Justice and delegating power to establish and regulate immigration

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1 proceedings); 65 Fed. Reg. 39,513, 39,524 (June 27, 2000) (asserting agency authority to

2 establish uniform discipline rules “under the broad rulemaking authority of the Attorney General

3 and the federal government’s preemptive powers,”); Romero v. U.S. Dep’t. of Justice, 556 F.

4 App’x 365, 368 (5th Cir. 2014); Koden, 564 F.2d at 235. In doing so, EOIR implemented rules

5 to regulate practice before the immigration courts. 8 C.F.R. § 1003.101-1003.111.

6

Even more, immigration is an area of nationwide concern, compelling EOIR’s need for a

7 uniform national rule governing immigration practice. Cazarez Gutierrez v. Ashcroft, 382 F.3d

8 905 (9th Cir. 2004). States have recognized that EOIR has authority to regulate practice before

9 immigration courts – even recognizing that federal law permits individuals whom the state does

10 not allow to practice law to practice before immigration agencies. See, e.g. Diaz, 832 N.E.2d at

11 446 (recognizing state must accommodate the federal interest in regulating practice by certain

12 non-lawyers before immigration agencies); Ortiz, 713 P.2d at 1069 (acknowledging federal

13 preemption of regulation setting classes of people authorized to practice immigration law in

14 immigration proceedings). Additionally, immigration practice carries concerns unique to that

15 area of law that justify uniform disciplinary procedures. E.g., Matter of Krivonos, 24 I. & N.

16 Dec. 292, 293 (BIA 2007) (declining to reinstate attorney who was expelled from practice due to

17 a conviction for immigration-related fraud after he was reinstated to practice in federal court

18 because his crime struck at the heart of immigration law). Lastly, the rules governing

19 immigration practitioners recognize a state role in the disciplinary process. 8 C.F.R.

20 § 1003.103(a)(1) (allowing reciprocal discipline with states).

21

If this Court were to find that the Constitution prohibits EOIR from adopting different

22 professional conduct rules than that of one state, EOIR could effectively lose its ability to

23 oversee the practice of attorneys and non-attorney representatives before the immigration court.

24 Additionally, such a decision would also affect EOIR’s ability to allow attorneys to practice

25 before an immigration court if the individual is not licensed in the state where the immigration

26 court sits, see 8 C.F.R. § 1001.1(f); 73 Fed. Reg. at 44,180, and its ability to allow non-attorneys

to practice before immigration courts, 8 C.F.R. § 1001.1(j). A finding that state bar rules

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1 override any conflicting federal rules of practice would likely decrease the availability and

2 quality of practitioners available in immigration courts and to the Board.

3

b. EOIR’s rules governing attorney practice and requiring filing

4

of a notice of appearance do not cause an undue conflict with

5

state rules.

6

EOIR’s ability to regulate practice before the immigration courts, and specifically to

7 require the filing of notices of appearance by practitioners, has ample support and causes no

8 undue conflict with Washington rules of professional conduct. Plaintiffs’ assertion of a conflict

9 with Washington rules does not show otherwise.

10

Requiring a notice of appearance does not result in an undue conflict with Washington’s

11 rule allowing limited representation.17 While Rule 1.2(c) of the Washington Rules of

12 Professional Conduct permit limited representation, the rule’s use of the word “may”

13 demonstrates that such limitation is not mandatory. See Scannell v. City of Seattle, 648 P.2d 435,

14 704-05 (Wash. 1982) (explaining that use of the word “may” connotes permissive conduct). The

15 comments of Rule 1.2 explain that any request for limited services is not mandatory, but it must

16 be reasonable, comport with other rules, “and other law.” Wash. R. Prof. Conduct 1.2 cmt.8; see

17 also id. 1.2(c) & cmt. 7 (emphasizing that any limited representation must be reasonable and

18 supported by informed consent). And contrary to NWIRP’s representations, EOIR permits

19 attorneys to withdraw with leave of court – as federal district courts and many jurisdictions do.

20 See supra Part IV.A.1b.

21

NWIRP’s claim that the notice of appearance requirements conflict with their

22 Washington duty of confidentiality is also unfounded because it is based on the incorrect premise

23 that merely advising an individual triggers the filing of a notice of appearance. Mot. at 19. As

24 discussed above, the mere act of advising a client triggers no obligation to file a notice of

25
17 In practice, EOIR permits some forms of “limited representation” as a practitioner may choose to 26 represent a respondent in bond proceedings but not removal proceedings, or decline to continue representation on
appeal. See 79 Fed. Reg. 55,659, 55,660 (Sep. 17, 2014) (allowing representation only for custody redetermination hearings); 8 C.F.R. § 1003.38(g) (separate notice of appearance for an administrative appeal). While an increasing number of jurisdictions have decided to adopt limited scope representation rules, Plaintiffs have not cited any cases which remotely suggest that attorneys have a constitutional right to engage in such representation, or that the Constitution bars federal immigration courts from adopting practice rules that differ from a state’s rules.

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

(Case No. 2:17-cv-716)

-24-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 47 Filed 06/26/17 Page 35 of 42

1 appearance. See supra at 13; 8 C.F.R. § 1003.102(t); Barnes Decl. ¶ 46. It is only when there is

2 representation before the immigration court – whether in person or through a filing that embodies

3 the representative’s voice – that the representation must be disclosed.

4

To the contrary, the enforcement of the notice of appearance requirement furthers the

5 shared interest of EOIR and Washington to curb the unauthorized practice of the law in the

6 immigration context. See ECF No. 18 (Washington alleging interest in combating notario fraud);

7 supra Part II.B (EOIR interest in combating unauthorized practice of immigration law). And

8 EOIR’s Disciplinary Counsel has worked closely with Washington to discipline attorneys in the

9 state. Barnes Decl. ¶11 n.3. The regulation requiring a notice of appearance does not violate the

10 Tenth Amendment.

11 B. Plaintiffs’ harm, if any, is nothing more than minimal.

12

Plaintiffs must demonstrate with specificity an irreparable harm that is likely and

13 immediate in the absence of an injunction. Winter, 555 U.S. at 22; Caribbean Marine Servs. Co.

14 v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). Harm is irreparable when, as the name suggests,

15 the harm cannot be undone by a later order by the court. See Sampson v. Murray, 415 U.S. 61,

16 90, (1974) (“The possibility that adequate compensatory or other corrective relief will be

17 available at a later date . . . weighs heavily against a claim of irreparable harm.”). Plaintiffs

18 assert that they are harmed by the regulation’s claimed infringement on NWIRP and its lawyers’

19 freedom of speech and their claimed inability to carry out NWIRP’s mission, as well as harm to

20 third parties not before this court. Mot. at 30-31. These claims do not satisfy the standard for

21 irreparable harm for several reasons.

22

First, NWIRP vastly overstates the alleged consequences of EOIR’s letter and EOIR’s

23 interpretation of the applicable regulation on NWIRP’s provision of legal services. See supra

24 Part IV.A.1. Plaintiffs cannot show that NWIRP is banned from continuing to assist vulnerable

25 immigrant populations. The letter – which is not a final or even intermediate disciplinary action

26 as it imposed no sanction at all – addresses only the complained-of conduct: the preparation of

legal pleadings and/or motions without filing notices of appearance or signing them. See supra

Part II.B. It does not prohibit Plaintiffs from engaging in many other permissible activities. See

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

(Case No. 2:17-cv-716)

-25-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 47 Filed 06/26/17 Page 36 of 42

1 supra at 13. Accordingly, there is no showing that Plaintiffs cannot, or are substantially chilled

2 in, carrying out their mission as a result of EOIR’s letter.

3

Second, to the degree the letter discourages NWIRP from ghostwriting pleadings, being

4 required to enter a notice of appearance or sign a brief is not irreparable harm that justifies

5 issuing a preliminary injunction. Plaintiffs claim that not being able to ghostwrite for pro se

6 individuals will result in “irreparable harm for hundreds[,]” id. at 31, but the irreparable injury

7 standard measures the harm to plaintiffs, not to third parties. L.A. Mem’l Coliseum Comm’n v.

8 NFL, 634 F.2d 1197, 1200 (9th Cir. 1980) (identifying “irreparable injury to plaintiff” as

9 preliminary injunction factor (emphasis added)).

10

The rule that irreparable injury must be the plaintiff is consistent with notions of Article

11 III standing, which ensure that the party bringing suit has suffered an injury-in-fact, or, at

12 minimum, that the plaintiff’s interests are aligned with those it seeks to represent. Cf. Pony v.

13 Cnty. of Los Angeles, 433 F.3d 1138, 1147 (9th Cir. 2006) (“A litigant is granted third-party

14 standing because the tribunal recognizes that her interests are aligned with those of the party

15 whose rights are at issue and that the litigant has a sufficiently close connection to that party to

16 assert claims on that party's behalf.”). There is no evidence to support Plaintiffs’ claims that

17 those who NWIRP represents in immigration court proceedings prefer limiting NWIRP’s

18 assistance to out-of-court advice and ghostwriting since NWIRP’s practices would not render

19 them accountable to the immigration courts, thus removing a layer of protection to their clients.

20 See 73 Fed. Reg. at 76,915 (discussing difficulty of enforce of professional responsibility rules

21 when practitioner fails to file notice of appearance); 73 Fed. Reg. at 44,183 (same); Matter of

22 Reyes-Francisco, 2009 WL 3818017, at *1 (highlighting difficulty of respondent asserting

23 ineffective assistance of counsel claim against attorney who did not file notice of appearance).

24 Moreover, those in immigration court who are not represented by NWIRP would certainly be

25 impacted if EOIR’s transparency rule was invalidated and replaced by a regime allowing anyone,

26 including notaries, to ghostwrite with impunity. Lastly, application of this regulation against

NWIRP helps ensure that only authorized NWIRP practitioners appear in immigration court

proceedings either by pleadings or in person.

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

(Case No. 2:17-cv-716)

-26-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 47 Filed 06/26/17 Page 37 of 42

1

Any claim of constitutional deprivation asserted by respondents in removal proceedings

2 who are supposedly unable to benefit from NWIRP’s services must be raised in those

3 proceedings or on judicial review thereof before the appropriate court of appeals. See J.E.F.M.

4 v. Lynch, 837 F.3d 1026, 1031-35 (9th Cir. 2016) (requiring that right-to-counsel and other legal

5 or constitutional claims arising from immigration removal proceedings must be raised in those

6 administrative proceedings or on judicial review thereof). It is improper for Plaintiffs to rely on

7 alleged harms to others—particularly those that could not be raised in the first instance in this

8 Court—as a basis for their request for emergency relief. Finally, the cited harm to NWIRP

9 clients is speculative and there is no concrete evidence that the harm, should it come to pass,

10 would be irreparable. Caribbean Marine Servs., 844 F.2d at 674 (“Speculative injury does not

11 constitute irreparable injury sufficient to warrant granting a preliminary injunction.”). Plaintiffs

12 have not shown the likely and imminent irreparable injury necessary to warrant entry of a

13 preliminary injunction enjoining enforcement of the notice of appearance requirement.

14 C. The public interest and balance of equities weigh against a preliminary injunction.

15

Where the Government is the opposing party, the balance of equities and public interest

16 factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009). Indeed, “the public interest favors

17 applying federal law correctly.” Small v. Avanti Health Systems, LLC, 661 F.3d 1180, 1197 (9th

18 Cir. 2011). Here, the last two factors heavily weigh in favor of the government.

19

As explained above, EOIR’s ability to promote compliance with the notice of appearance

20 requirement at 8 C.F.R. § 1003.102(t) furthers the sound administration and efficiency of

21 immigration court proceedings, in line with EOIR’s efforts to promote both the availability and

22 quality of practitioners, in a way that also protects respondents. See generally Lang Decl., ¶¶ 5-

23 12; Maggard Decl., ¶¶ 4-6. Requiring that all practitioners file a notice of appearance makes

24 clear to the immigration court and the respondent in immigration court proceedings who is

25 responsible to advocate for the respondent and subject to discipline for any misconduct. Singh,

26 315 F.3d at 1189; 73 Fed. Reg. at 44,183. Such clear knowledge by the parties of who represents

a respondent would facilitate the respondent’s ability to obtain future relief if the practitioner

engages in ineffective assistance. See supra at 6. Even more, the public has a strong interest in

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

(Case No. 2:17-cv-716)

-27-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 47 Filed 06/26/17 Page 38 of 42

1 promoting quality of representation by enforcing reasonable standards of conduct in the nation’s

2 immigration courts, a goal furthered by the notice of appearance requirement. See supra Part

3 II.A.

4

EOIR’s restrictions on limited representation and ghostwriting also serve the efficiency

5 of the courts. Immigration judges and Board members who receive ghostwritten pleadings or

6 briefs cannot seek complete and accurate information, or have questions answered, regarding

7 such pleadings or briefs, because the respondent, left to explain complex legal arguments set

8 forth in the filings on his or her own, often cannot do so and the actual author cannot be

9 identified. See supra at 6-7; Maggard Decl. ¶ 4. In these situations, immigration judges must

10 decide whether to grant continuances - further delaying an already overly-taxed system or make 11 a determination without any clarifying and supporting arguments.18 Furthermore, statements in

12 ghostwritten filings may not match the statements of the respondent at the merits hearings,

13 potentially hindering the respondent’s credibility. Moreover, ghostwriting can harm the

14 vulnerable respondent because incompetent advocates who seek to evade accountability for their

15 brief or, even competent advocates who perform less than competently or diligently can have

16 truly negative impacts on a respondent’s ability to seek and receive immigration relief. See 76

17 Fed Reg 76,915 (“This rule seeks to preserve the fairness and integrity of immigration

18 proceedings, and increase the level of protection afforded by aliens in those proceedings by

19 defining additional categories of behavior that constitute misconduct.”); McKeown and McLeod

20 at 292-97. Without notification and identification, an ineffective assistance of counsel claim can

21 be denied. See Matter of Reyes-Francisco, 2009 WL 3818017, at *1.

22

Plaintiffs claim that, but for limited representation, the pro bono legal assistance

23 programs “w[ould be] eviscerate[d.]” Mot. at 32. Filing a notice to appear, Plaintiffs contend,

24 would adversely affect the public because they would not be allowed to withdraw their

25 representation but for establishing exceptional circumstances and this, in turn, would lessen the

26 number of individuals that would receive their legal advice. Id. Still, Plaintiffs do not present

any evidence showing the difficulty in withdrawing as counsel once they file a Notice of

18 Unlike a federal district court, an immigration judge does not have the authority to directly compel a practitioner to appear in immigration court via an order to show cause. See Maggard Decl. ¶ 4.

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

(Case No. 2:17-cv-716)

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P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 47 Filed 06/26/17 Page 39 of 42

1 Appearance. The Board has been clear in the steps to be taken in order to successfully withdraw

2 and establishing “exceptional circumstance” is not one of them. See Matter of Rosales, 19 I. &

3 N. Dec. at 657, Immigr. Ct. Practice Manual, Ch. 2.3(i)(ii). Yet, Plaintiffs fail to explain why

4 such motions will be systematically denied.

5

NWIRP’s ad hoc solution—that a pro se brief denote NWIRP’s organizational assistance,

6 without identifying a specific practitioner—is unworkable and legally unenforceable under

7 current regulations. See Barnes Decl. ¶¶ 57-59. First, the pro se respondent remains responsible

8 for including the notation— but EOIR professional conduct rules do not require the respondent

9 to include the notation in the way NWIRP desires. Id. at ¶ 57. The Disciplinary Counsel only

10 has authority regarding “practitioners,” not respondents. See e.g. 8 C.F.R. § 1003.101(b),

11 § 1103.105. Second, NWIRP’s notation does not note the specific practitioner who provided the

12 assistance, frustrating the rule’s goal to identify and correct practitioner misconduct. Barnes

13 Decl. ¶¶ 58.

14

It is contrary to the public interest to prohibit EOIR from regulating the practice of law

15 before its courts. After all, EOIR’s interest in regulating who speaks before it through the filing

16 of legal forms and/or pleadings is to protect a vulnerable sector of the public from the potentially

17 devastating results of improper filing, fraud, and the unaccountability of individuals who craft

18 inadequate legal arguments on their behalf. EOIR’s need “that, at any given time, there is no

19 ambiguity as to who has been given, and who has accepted, the responsibility of representing a

20 party before it,” Singh, 315 F.3d at 1189, is a strong compelling interest. As one commentator

21 argued, “The highest standards of the legal profession must be preserved. This is possible only

22 under strict supervision of the regulating authorities. An attorney whose practice is not regulated

23 becomes no better than a notario. Rules are set for the legal profession not just to set minimum

24 standards of conduct, but to protect the clients, who become the victims of unauthorized

25 practitioners.” Charles H. Kuck & Olesia Gorinshteyn, Unauthorized Practice of Immigration

26 Law in the Context of Supreme Court's Decision in Sperry v. Florida, 35 Wm. Mitchell L. Rev.

340, 358 (2008).

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

(Case No. 2:17-cv-716)

-29-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 47 Filed 06/26/17 Page 40 of 42

1

V. CONCLUSION

2

EOIR is committed to promoting both the availability of representation and the quality of

3 that representation. Its enforcement of the notice of appearance and signature requirement of

4 section 1003.102(t) is an essential tool for EOIR to promote the quality of representation by

5 those who practice before its immigration courts and the Board. Promoting quality of

6 representation in a practitioner and viewpoint neutral manner – as EOIR has done here – does not

7 hinder NWIRP’s First Amendment rights to advocate for their clients. Promoting quality of

8 representation does not hinder Washington’s interest in regulating the legal profession in a way

9 that violates the Tenth Amendment. NWIRP does not suffer irreparable harm by EOIR’s

10 practice to require a notice of appearance for practitioners that appear before its immigration

11 courts or the Board. Indeed, the public is well-served by having a rule that seeks to protect

12 respondents in immigration court proceedings by promoting transparency and guaranteeing

13 accountability of those practitioners who appear before EOIR. The Court should therefore deny

14 NWIRP’s motion for a preliminary injunction and allow EOIR to continue its work to protect

15 individuals in immigration court proceedings by ensuring that those who practice before its

16 immigration courts and the Board meet minimal standards of competence.

17 //

18 //

19

20

21

22

23

24

25

26

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

(Case No. 2:17-cv-716)

-30-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 47 Filed 06/26/17 Page 41 of 42

Dated: June 26, 2017.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
WILLIAM C. PEACHEY Director Office of Immigration Litigation
GISELA A. WESTWATER Assistant Director
C. FRED SHEFFIELD KATHERINE J. SHINNERS Trial Attorneys
/s/ Victor M. Mercado-Santana VICTOR M. MERCADO-SANTANA Trial Attorney Civil Division, Office of Immigration Litigation United States Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-7001 Facsimile: (202) 616 -8962 victor.m.mercado-santana@usdoj.gov
/s/ Gladys M. Steffens Guzmán GLADYS M. STEFFENS GUZMÁN Office of Immigration Litigation Department of Justice, Civil Division Trial Attorney, District Court Section 450 5th Street, NW Washington, DC 20001 Telephone: (202) 305-7181 Facsimile: (202) 305-1890
E-Mail: gladys.steffens-guzman@usdoj.gov
Counsel for Defendants

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

(Case No. 2:17-cv-716)

-31-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 47 Filed 06/26/17 Page 42 of 42

CERTIFICATE OF SERVICE
1
I hereby certify that on this date, I electronically filed the foregoing with the Clerk of
2
3 Court using the CM/ECF system. I certify that all participants are CM/ECF users and that

4 service will be accomplished by the CM/ECF system.

5
Dated: June 26, 2017
6
7
8
9
10
11
12

Respectfully submitted.
/s/ Victor M. Mercado-Santana
VICTOR M. MERCADO-SANTANA Trial Attorney Civil Division, Office of Immigration Litigation United States Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-7001 Facsimile: (202) 616 -8962 victor.m.mercado-santana@usdoj.gov

13

Counsel for Defendants

14

15

16

17

18

19

20

21

22

23

24

25

26

NOTICE OF INTENT TO FILE OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER UNDER LOCAL RULE 65(B)(5)
(Case No. 2:17-cv-716)
-1-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 47-1 Filed 06/26/17 Page 1 of 3
EXHIBIT A

Case 2:17-cv-00716-RAJ Document 47-1 Filed 06/26/17 Page 2 of 3

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

OMB#1125-0005 Notice of Entry of Appearance as Attorney or Representative Before the Board of Immigration Appeals

(Type or Print)
NAME AND ADDRESS OF REPRESENTED PARTY

____________________________________________________

(First)

(Middle Initial)

(Last)

____________________________________________________

(Number and Street)

(Apt. No.)

____________________________________________________

(City)

(State)

(Zip Code)

ALIEN (“A”) NUMBER
(Provide A- number of the party represented or the visa beneficiary in this case.)
_______________________________ USCIS Visa Appeal (Provide beneficiary
name)
______________________
Fine (Provide fine number)
______________________
Disciplinary case (Provide docket number)
______________________

Attorney or Representative (please check one of the following):
I am an attorney eligible to practice law in, and a member in good standing of, the bar of the highest court(s) of the following states(s), possession(s), territory(ies), commonwealth(s), or the District of Columbia (use additional space on reverse side if necessary) and I am not subject to any order disbarring, suspending, enjoining, restraining or otherwise restricting me in the practice of law in any jurisdiction (if subject to such an order, do not check this box and explain on reverse).
Full Name of Court __________________________________ Bar Number (if applicable) __________________________
I am a representative accredited to appear before the Executive Office for Immigration Review as defined in 8 C.F.R. § 1292.1(a)(4) with the following recognized organization:
____________________________________________________________________
I am a law student or law graduate of an accredited U.S. law school as defined in 8 C.F.R. § 1292.1(a)(2). I am a reputable individual as defined in 8 C.F.R. § 1292.1(a)(3). I am an accredited foreign government official, as defined in 8 C.F.R. § 1291.1(a)(5), from _____________________ (country). I am a person who was authorized to practice on December 23, 1952, under 8 C.F.R. § 1292.1(b).

Attorney or Representative (please check one of the following):
I hereby enter my appearance as attorney or representative for, and at the request of, the party named above. EOIR has ordered the provision of a Qualified Representative for the party named above and I appear in that capacity.
I have read and understand the statements provided on the reverse side of this form that set forth the regulations and conditions governing appearances and representations before the Board of Immigration Appeals. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

SIGNATURE OF ATTORNEY OR REPRESENTATIVE

EOIR ID NUMBER

DATE

X __________________________________________________________________________________________________

NAME OF ATTORNEY OR REPRESENTATIVE, ADDRESS, FAX & PHONE NUMBERS, & EMAIL ADDRESS

Name: ____________________________________________________________________________________________________

(First)

(Middle Initial)

(Last)

Address: __________________________________________________________________________________________________ (Number and Street)

__________________________________________________________________________________________________

(City)

(State)

(Zip Code)

Telephone: _________________ Facsimile: _________________ Email: ______________________________________________ Check here if new address

Form EOIR - 27 Rev. July 2015

Case 2:17-cv-00716-RAJ Document 47-1 Filed 06/26/17 Page 3 of 3
Indicate Type of Appearance:

Primary Attorney/Representative

Non-Primary Attorney/Representative

I am providing pro bono representation. Check one: yes no

Proof of Service
I (Name) _____________________________ mailed or delivered a copy of this Form EOIR-27 on (Date) __________________
to the DHS (U.S. Immigration and Customs Enforcement – ICE) at ______________________________________________
DHS (U.S. Citizenship and Immigration Services – USCIS) at _____________________________________________
EOIR Disciplinary Counsel at _______________________________________________________________________
X ___________________________________________________________
Signature of Person Serving
APPEARANCES - An appearance for each represented party shall be filed on a separate Form EOIR-27 by the attorney or representative appearing in each appeal or motion to reopen or motion to reconsider before the Board of Immigration Appeals (see 8 C.F.R. § 1003.38(g)), even though the attorney or representative may have appeared in the case before the Immigration Judge or the U.S. Citizenship and Immigration Services. If information is omitted from the Form EOIR-27 or it is not properly completed, the appearance may not be recognized and the accompanying filing may be rejected. When an appearance is made by a person acting in a representative capacity, his/her personal appearance or signature constitutes a representation that, under the provisions in 8 C.F.R. part 1003, he/she is authorized and qualified to represent individuals and will comply with the EOIR Rules of Professional Conduct in 8 C.F.R. § 1003.102. Thereafter, substitution or withdrawal may be permitted upon approval by the Board of a request of the attorney or representative of record in accordance with Matter of Rosales, 19 I&N Dec. 655 (1988). Please note that appearances for limited purposes are not permitted. See Matter of Velasquez, 19 I&N Dec. 377, 384 (BIA 1986). Attorneys and Accredited Representatives (with full accreditation) must first update their address in eRegistry before filing a Form EOIR-27 that reflects a new address.
FREEDOM OF INFORMATION ACT - This form may not be used to request records under the Freedom of Information Act or the Privacy Act. The manner of requesting such records is in 28 C.F.R. §§ 16.1-16.11 and appendices. For further information about requesting records from EOIR under the Freedom of Information Act, see How to File a Freedom of Information Act (FOIA) Request With the Executive Office for Immigration Review, available on EOIR's website at http://www.justice.gov/eoir.
PRIVACY ACT NOTICE - The information requested on this form is authorized by 8 U.S.C. § 1362 and 8 C.F.R. § 1003.3 in order to enter an appearance to represent a party before the Board of Immigration Appeals. The information you provide is mandatory and required to enter an appearance. Failure to provide the requested information will result in an inability to represent a party or receive notice of actions in a proceeding. EOIR may share this information with others in accordance with approved routine uses described in EOIR's system of records notice, EOIR-001, Records and Management Information System, 69 Fed. Reg. 26,179 (May 11, 2004), or its successors and EOIR-003, Practitioner Complaint-Disciplinary Files, 64 Fed. Reg. 49237 (September 1999).
CASES BEFORE EOIR - Automated information about cases before EOIR is available by calling (800) 898-7180 or (240) 314-1500.
ADDITIONAL INFORMATION:

Under the Paperwork Reduction Act, a person is not required to respond to a collection of information unless it displays a valid OMB control number. We try to create forms and instructions that are accurate, can be easily understood, and which impose the least possible burden on you to provide us with information. The estimated average time to complete this form is six (6) minutes. If you have comments regarding the accuracy of this estimate, or suggestions for making this form simpler, you can write to the Executive Office for Immigration Review, Office of the General Counsel, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041.
Form EOIR - 27 Rev. July 2015

Case 2:17-cv-00716-RAJ Document 47-2 Filed 06/26/17 Page 1 of 3
EXHIBIT B

Case 2:17-cv-00716-RAJ Document 47-2 Filed 06/26/17 Page 2 of 3

U.S. Department of Justice

OMB#1125-0006

Executive Office for Immigration Review

Notice of Entry of Appearance as Attorney or

Immigration Court

Representative Before the Immigration Court

(Type or Print)
NAME AND ADDRESS OF REPRESENTED PARTY

______________________________________________________

(First)

(Middle Initial)

(Last)

______________________________________________________

(Number and Street)

(Apt. No.)

______________________________________________________

(City)

(State)

(Zip Code)

ALIEN (“A”) NUMBER (Provide A-number of the party represented in this case.)
Entry of appearance for (please check one of the following):
All proceedings Custody and bond proceedings only All proceedings other than custody and bond proceedings

Attorney or Representative (please check one of the following):
I am an attorney eligible to practice law in, and a member in good standing of, the bar of the highest court(s) of the following states(s), possession(s), territory(ies), commonwealth(s), or the District of Columbia (use additional space on reverse side if necessary) and I am not subject to any order disbarring, suspending, enjoining, restraining or otherwise restricting me in the practice of law in any jurisdiction (if subject to such an order, do not check this box and explain on reverse).
Full Name of Court __________________________________ Bar Number (if applicable) __________________________
I am a representative accredited to appear before the Executive Office for Immigration Review as defined in 8 C.F.R. § 1292.1(a)(4) with the following recognized organization:
____________________________________________________________________
I am a law student or law graduate of an accredited U.S. law school as defined in 8 C.F.R. § 1292.1(a)(2). I am a reputable individual as defined in 8 C.F.R. § 1292.1(a)(3). I am an accredited foreign government official, as defined in 8 C.F.R. § 1291.1(a)(5), from _____________________ (country). I am a person who was authorized to practice on December 23, 1952, under 8 C.F.R. § 1292.1(b).

Attorney or Representative (please check one of the following):
I hereby enter my appearance as attorney or representative for, and at the request of, the party named above.
EOIR has ordered the provision of a Qualified Representative for the party named above and I appear in that capacity.
I have read and understand the statements provided on the reverse side of this form that set forth the regulations and conditions governing appearances and representations before the Immigration Court. By signing this form, I consent to publication of my name and any findings of misconduct by EOIR, should I become subject to any public discipline by EOIR pursuant to the rules and procedures at 8 C.F.R. 1003.101 et seq. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

SIGNATURE OF ATTORNEY OR REPRESENTATIVE

EOIR ID NUMBER

DATE

X __________________________________________________________________________________________________

NAME OF ATTORNEY OR REPRESENTATIVE, ADDRESS, FAX & PHONE NUMBERS, & EMAIL ADDRESS

Name: ____________________________________________________________________________________________________

(First)

(Middle Initial)

(Last)

Address: __________________________________________________________________________________________________ (Number and Street)

__________________________________________________________________________________________________

(City)

(State)

(Zip Code)

Telephone: _________________ Facsimile: _________________ Email: ______________________________________________ Check here if new address

Form EOIR - 28 Rev. Dec. 2015

Case 2:17-cv-00716-RAJ Document 47-2 Filed 06/26/17 Page 3 of 3
Indicate Type of Appearance:

Primary Attorney/Representative

Non-Primary Attorney/Representative

On behalf of ______________________________ (Attorney’s Name) for the following hearing: _________________ (Date)

I am providing pro bono representation. Check one: yes no

Proof of Service
I (Name) _____________________________ mailed or delivered a copy of this Form EOIR-28 on (Date) __________________
to the DHS (U.S. Immigration and Customs Enforcement – ICE) at _________________________________________________
X ___________________________________________________________
Signature of Person Serving
APPEARANCES - An attorney or Accredited Representative (with full accreditation) must register with the EOIR eRegistry in order to practice before the Immigration Court (see 8 C.F.R. § 1292.1(f)). Registration must be completed online on the EOIR website at www.justice.gov/eoir. An appearance shall be filed on a Form EOIR-28 by the attorney or representative appearing in each case before an Immigration Judge (see 8 C.F.R. § 1003.17). A Form EOIR-28 shall be filed either as an electronic form, or as a paper form, as appropriate (for further information, please see the Immigration Court Practice Manual, which is available on the EOIR website at www.justice.gov/eoir). The attorney or representative must check the box indicating whether the entry of appearance is for custody and bond proceedings only, for all proceedings other than custody and bond, or for all proceedings including custody and bond. When an appearance is made by a person acting in a representative capacity, his/her personal appearance or signature constitutes a representation that, under the provisions of 8 C.F.R. part 1003, he/she is authorized and qualified to represent individuals and will comply with the EOIR Rules of Professional Conduct in 8 C.F.R. § 1003.102. Thereafter, substitution or withdrawal may be permitted upon the approval of the Immigration Judge of a request by the attorney or representative of record in accordance with 8 C.F.R. § 1003.17(b). Please note that although separate appearances in custody and non-custody proceedings are permitted, appearances for limited purposes within those proceedings are not permitted. See Matter of Velasquez, 19 I&N Dec. 377, 384 (BIA 1986). A separate appearance form (Form EOIR-27) must be filed with an appeal to the Board of Immigration Appeals (see 8 C.F.R. § 1003.38(g)). Attorneys and Accredited Representatives (with full accreditation) must first update their address in eRegistry before filing a Form EOIR-28 that reflects a new address.
FREEDOM OF INFORMATION ACT - This form may not be used to request records under the Freedom of Information Act or the Privacy Act. The manner of requesting such records is in 28 C.F.R. §§ 16.1-16.11 and appendices. For further information about requesting records from EOIR under the Freedom of Information Act, see How to File a Freedom of Information Act (FOIA) Request With the Executive Office for Immigration Review, available on EOIR's website at http://www.justice.gov/eoir.
PRIVACY ACT NOTICE - The information requested on this form is authorized by 8 U.S.C. §§ 1229(a), 1362 and 8 C.F.R. § 1003.17 in order to enter an appearance to represent a party before the Immigration Court. The information you provide is mandatory and required to enter an appearance. Failure to provide the requested information will result in an inability to represent a party or receive notice of actions in a proceeding. EOIR may share this information with others in accordance with approved routine uses described in EOIR's system of records notice, EOIR-001, Records and Management Information System, 69 Fed. Reg. 26,179 (May 11, 2004), or its successors and EOIR-003, Practitioner Complaint-Disciplinary Files, 64 Fed. Reg. 49237 (September 1999). Furthermore, the submission of this form acknowledges that an attorney or representative will be subject to the disciplinary rules and procedures at 8 C.F.R. 1003.101et seq., including, pursuant to 8 C.F.R. §§ 292.3(h)(3), 1003.108(c), publication of the name of the attorney or representative and findings of misconduct should the attorney or representative be subject to any public discipline by EOIR.
CASES BEFORE EOIR - Automated information about cases before EOIR is available by calling (800) 898-7180 or (240) 314-1500.
FURTHER INFORMATION - For further information, please see the Immigration Court Practice Manual, which is available on the EOIR website at www.justice.gov/eoir.
ADDITIONAL INFORMATION:

Under the Paperwork Reduction Act, a person is not required to respond to a collection of information unless it displays a valid OMB control number. We try to create forms and instructions that are accurate, can be easily understood, and which impose the least possible burden on you to provide us with information. The estimated average time to complete this form is six (6) minutes. If you have comments regarding the accuracy of this estimate, or suggestions for making this form simpler, you can write to the Executive Office for Immigration Review, Office of the General Counsel, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041.
Form EOIR - 28 Rev. Dec. 2015

Case 2:17-cv-00716-RAJ Document 47-3 Filed 06/26/17 Page 1 of 5
EXHIBIT C

Case 2:17-cv-00716-RAJ Document 47-3 Filed 06/26/17 Page 2 of 5
May 2, 2017
Jennifer J. Barnes Disciplinary Counsel Executive Office for Immigration Review 5017 Pike, Ste. 2600 Falls Church, VA 22041
VIA email: Jennifer.Barnes@usdoj.gov
RE: Northwest Immigrant Rights Project D2017-0104
Dear Ms. Barnes:
I am writing on behalf of Northwest Immigrant Rights Project (NWIRP) in response to your letter directed to my attention, dated April 5, 2017. Your letter advises you have concluded that “NWIRP’s practice of representing aliens before [the Executive Office for Immigration Review (EOIR)] without filing the appropriate Notice of Entry of Appearance form is in violation of federal regulations.” Accordingly, your letter instructs that “NWIRP cease and desist from representing aliens unless and until the appropriate Notice of Entry of Appearance form is filed with each client that NWIRP represents.”
This determination, and the instructions to “cease and desist” representing persons in removal proceedings without filing a Notice of Entry of Appearance form is a drastic change in application of the regulations and has immediately and significantly harmed NWIRP’s work and mission, as it prevents NWIRP attorneys from advocating on behalf of unrepresented persons in removal proceedings unless NWIRP has the resources to take on full representation of their cases before the Immigration Court or the Board of Immigration Appeals. Given NWIRP’s limited resources to provide full representation to persons in removal proceedings, and given that there are over a thousand unrepresented individuals currently in removal proceedings before the Seattle and Tacoma immigration courts, the immediate effect of your instructions to “cease and desist” will be that NWIRP will have to stop

Case 2:17-cv-00716-RAJ Document 47-3 Filed 06/26/17 Page 3 of 5
providing limited legal assistance to hundreds of indigent persons who are unrepresented in removal proceedings.
As you are aware, EOIR does not permit persons to file a notice of entry of appearance for discrete, or limited services, with the one exception allowing for entry of appearance to represent a person solely in a bond or custody hearing. See Separate Representation for Custody and Bond Proceedings, Final Rule, 80 Fed. Reg. 59500-59502 (Oct. 1, 2015) (amending 8 C.F.R. § 1003.17). At the same time, NWIRP is the only organization listed in EOIR’s List of Pro Bono Legal Services that provides assistance to adult individuals facing removal proceedings in the Tacoma and Seattle immigration courts. Thus, the practical effect of your instruction for NWIRP to cease and desist providing limited legal services means that hundreds of indigent persons who are unrepresented in removal proceedings will be deprived of any legal assistance in such crucial activities as, inter alia, filling out and submitting asylum applications prior to the one year deadline; filling out other applications for relief such as cancellation of removal (all of which must be completed in English); filing motions to change venue from other states to the Seattle Immigration Court in order to ensure that persons living in Washington State are not ordered removed in absentia for hearings that were originally scheduled on the southern border and in other parts of the United States; and motions to reopen removal orders so that persons can apply for relief for which they may be entitled.
Just in the past two weeks since receiving your letter we have had to change our practice with three unrelated persons who had appointments scheduled for us to assist them in filling out and submitting their applications for political asylum before the one-year filing deadline. All three were within ten days of forfeiting their right to apply for asylum under 8 U.S.C. 1158(b)(2) if they did not submit a completed application to the Court. Individuals facing removal proceedings often come to us in such circumstances, before we can make a determination of whether we will be able to take on their cases for full representation before the immigration court. Last year alone our office screened over five hundred asylum applicants. We certainly believe that all of these individuals should be entitled to full representation during their removal hearings. Unfortunately, that is not the reality that NWIRP and nonprofit legal services throughout the country operate in: we simply do not have the resources to provide full representation to even one third of those seeking asylum before the courts in our region.
Moreover, as you are aware, persons in removal proceedings are required to file all applications, motions, supporting documents and briefs in English or with an English translation, 8 C.F.R. § 1003.33, yet EOIR provides no assistance in filling out applications, motions or briefs, and provides no language assistance in translating documents or interpreting forms. In addition, applicants for asylum and other forms of relief often suffer drastic consequences if their applications are not completed by attorneys or fully accredited representatives thoroughly familiar with the law, and the responses do not focus on the required legal elements for establishing eligibility for relief. Case law is replete with examples of persons being

Case 2:17-cv-00716-RAJ Document 47-3 Filed 06/26/17 Page 4 of 5
denied relief because the Immigration Judge found that their responses in the application forms focused on irrelevant facts or failed to provide additional facts that corresponded to the requisite elements. If pro se individuals are deprived of even limited legal services such as assistance in preparing applications and submitting motions to change venue or to reopen, they often have virtually no opportunity to present their case.
In addition, by requiring that NWIRP advocates submit a Notice of Entry of Appearance form in order to provide representation, as defined under 8 C.F.R. 1001.1(i), (j), (k), your instructions threaten to prevent our attorneys from even screening pro se individuals to help them identify defenses and forms of relief that they may raise before the Immigration Court. An integral part of NWIRP’s mission is to advocate for immigrants in Washington State by providing legal advice with respect to their constitutional and statutory rights. NWIRP attorneys have a First Amendment right to conduct such advocacy, meeting with pro se persons in removal proceedings, analyzing the facts of their case, the applicable laws, and providing them with the advice and tools they need to exercise their constitutional and statutory rights in removal proceedings. NWIRP attorneys also have the right to act, consistent with the State Rules of Professional Responsibility, in engaging in pre-representation screenings and to confine their representation as agreed upon by the client and the attorney, at any point before needing to file a notice of appearance. Your instructions to cease and desist interfere with our First Amendment rights to carry out our mission, at the expense of hundreds of indigent persons who do not have the resources to retain an attorney to defend them in removal proceedings.
Moreover, apart from providing advice and assistance with the related applications, motions, briefing and support packets, the individual consultations are essential for screening unrepresented individuals for potential placement with pro bono attorneys. In the first four months of 2017 NWIRP has already placed seventy three cases of persons in removal proceedings with pro bono attorneys for full representation. By asserting that NWIRP may not provide representation as defined in the above referenced regulations without filing a Notice of Entry of Appearance form, your office is preventing NWIRP advocates from evaluating and screening cases in order to place pro se individuals with pro bono attorneys, or decline representation if appropriate. Moreover, your cease and desist letter prevents attorneys from exercising their basic rights to consult with potential clients, or to work with clients in the way and within the scope agreed to by the attorney and the client.
In sum, your instructions that NWIRP cease and desist providing limited legal representation to pro se individuals in removal proceedings are a significant shift in the application of the regulations and have caused substantial and immediate harm to NWIRP and the hundreds of pro se persons NWIRP assists. On behalf of NWIRP, I respectfully request that you retract your cease and desist letter by 5:00p.m. PDT on Thursday, May 4, 2017, so that NWIRP may continue with its mission to advocate for

Case 2:17-cv-00716-RAJ Document 47-3 Filed 06/26/17 Page 5 of 5
the constitutional and statutory rights of immigrants in Washington State. Given the urgency of the matter, I would ask that you send us your response via email to matt@nwirp.org. Thank you for your attention in this important matter. Sincerely,
Matt Adams
Matt Adams Legal Director Northwest Immigrant Rights Project

Case 2:17-cv-00716-RAJ Document 47-4 Filed 06/26/17 Page 1 of 4
EXHIBIT D

Case 2:17-cv-00716-RAJ Document 47-4 Filed 06/26/17 Page 2 of 4

Case 2:17-cv-00716-RAJ Document 47-4 Filed 06/26/17 Page 3 of 4

Case 2:17-cv-00716-RAJ Document 47-4 Filed 06/26/17 Page 4 of 4

 
 Case 2:17-cv-00716-RAJ Document 48 Filed 06/26/17 Page 1 of 4

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

NORTHWEST IMMIGRANT RIGHTS PROJECT ("NWIRP"), a nonprofit Washington public benefit corporation; and YUK MAN MAGGIE CHENG, an individual,

Plaintiffs,

CASE No.2: 17-cv-00716

v.

JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States; UNITED STATES DEPARTMENT OF JUSTICE; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; JAMES MCHENRY, 1 in his official capacity as Acting
Director of the Executive Office for Immigration Review; and JENNIFER BARNES, in her official capacity as Disciplinary Counsel for the Executive Office for Immigration Review,

Defendants.

DECLARATION OF PRINT MAGGARD
I, PRINT MAGGARD, Deputy Chieflmmigration Judge, Executive Office for Immigration Review ("EOIR"), Office of the Chieflmmigration Judge ("OCIJ"), in San Francisco, California do hereby declare under penalty of perjury that the
1Under Federal Rule of Civil Procedure 25(d), current Acting Director ofEOIR James McHenry is substituted for fonner Director Juan Osuna.

Case 2:17-cv-00716-RAJ Document 48 Filed 06/26/17 Page 2 of 4
following statements are true and correct to the best of my knowledge, infonnation, and belief:
1. I am a Deputy Chief Immigration Judge ("DCIJ") with supervisory responsibility for the Executive Office for Immigration Review ("EOIR") for the courts from the West Coast to the Mississippi River, and some northeastem courts. I work for the Office of the Chief Immigration Judge ("OCIJ") which provides overall program direction and articulates policies and procedures for the Immigration Courts nationwide. As a DCIJ, my responsibilities include supervising the Assistant Chieflmmigration Judges ("ACIJs") and managing the dockets and daily activity in the immigration courts.
2. I was appointed as a DCIJ in November 2015. Prior to my appointment as a DCIJ, I served as the Acting Chiefi1mnigration Judge from July 2015 to March 2016, and as an Assistant Chieflmmigration Judge from January 2012 to July 2015. I served as an Immigration Judge at the San Francisco Immigration Court from May 2009 to December 2011, and continue to preside over immigration cases in the San Francisco Immigration Court.
3. As a DCIJ, I have knowledge of the policies and practices relating to immigration court operations, including operations of the San Francisco l!mnigration Court. Notice of Entry of Appearance
4. I am aware that the failure to file a Notice of Entry of Appearance fonn by a practitioner when a practitioner drafts a document on behalf of a pro se respondent that is ultimately filed with the Immigration Comi is a violation of EOIR's rules ofprofessional conduct, specifically 8 C.P.R. 1003.102(t). If an Immigration Judge is unable to identify the individual who drafted a document, it would be much more difficult for Immigration Judges in my supervisory area to provide a complaint to EOIR's Disciplinary Counsel. Moreover, in the rare
2

Case 2:17-cv-00716-RAJ Document 48 Filed 06/26/17 Page 3 of 4
instances that an Immigration Judge is able to identify the individual who may have drafted the document filed by a pro se respondent -perhaps a pro se respondent has identified an individual by name who he or she believes is their attorney, or there is identifying information on a motion drafted by an individual who has not filed a Notice of Entry of Appearance fonn- an Immigration Judge cannot directly compel that individual to come to Immigration Court as a means of clarifying the scope of his or her representation. While an Immigration Judge could issue a subpoena to require the identified individual to appear in Immigration Court, see 8 C.P.R. 1003.35(b)(l) and 8 U.S.C 1229a(b)(1), an Immigration Judge has no authority to enforce the subpoena should the individual fail to appear. Instead, the Immigration Judge must request that the local U.S. Attorney's Office request that a federal district court issue an order enforcing the subpoena, on behalf ofEOIR. See 8 C.F.R 1003.35(b)(6).
5. For these reasons, I believe it is in the best interest of prose respondents and the efficiency of immigration court proceedings as a whole to require a Notice of Entry of Appearance form for any practitioner seeking to file documents with an immigration court on a respondent's behalf. Concerns Regarding Temporary Restraining Order
6. In line with the concerns raised above, respectfully, I am concerned that if this Court extended the cunent temporary restraining order that prohibits enforcement of 8 C.P.R. § 1003.1 02(t) into a preliminary injunction, doing so would hann immigrants in proceedings before the immigration courts. This is because prohibiting enforcement of§ 1003.1 02(t) would remove the EOIR Disciplinary Counsel's ability to enforce cunent rules that require a notice of appearance and disallow ghostwriting. Most importantly, a preliminary injunction would frustrate Immigration Judges from submitting complaints to EOIR's Disciplinary Counsel regarding any hannful behavior that could result from failure
3

Case 2:17-cv-00716-RAJ Document 48 Filed 06/26/17 Page 4 of 4

to file a notice of appearance and/or ghostwriting. Without the ability to report such suspected misconduct, I am concerned that such conduct will continue, and

perhaps increase, given the impunity for such behavior. Conclusion

I declare under penalty of perjury of the laws of the United States and the State of California that the foregoing is true and correct to the best of my

knowledge and belief.
~rJ<i ozf, avl7
Date

PRI~d
Deputy Chief Immigration Judge San Francisco, California

4

 
 Case 2:17-cv-00716-RAJ Document 53 Filed 06/30/17 Page 1 of 6

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10
NORTHWEST IMMIGRANT RIGHTS 11 PROJECT; Yuk Man Maggie CHENG,

12

Plaintiffs,

13

v.

14 Jefferson B. SESSIONS III, in his official capacity as U.S. Attorney General; U.S. DEPARTMENT
15 OF JUSTICE; EXECUTIVE OFFICE FOR 16 IMMIGRATION REVIEW; Juan P. OSUNA, in
his official capacity as Director of the Executive 17 Office for Immigration Review; and Jennifer J.
BARNES, in her official capacity as Disciplinary 18 Counsel for the Executive Office for Immigration 19 Review,

Case No. 2:17-cv-00716 DECLARATION OF ELIZABETH BENKI

20

Defendants.

21
I, Elizabeth Benki, declare as follows:
22
1. I am over the age of eighteen, am competent to testify as to the matters below, and
23
24 make this declaration based on personal knowledge. I submit this declaration to provide information 25 about the Motion to Reopen Proceedings filed in F.G.B.'s case before the Tacoma Immigration 26 Court. This motion, along with another filing before the Seattle Immigration Court, is the subject of
27 the April 5, 2017 cease-and-desist letter at issue in this lawsuit.

28

DECLARATION OF ELIZABETH BENKI IN SUPPORT OF NWIRP’S MOTION FOR PRELIMINARY INJUNCTION (No. 2:17-cv-00716-RAJ) – Page 1

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 53 Filed 06/30/17 Page 2 of 6

1

2. I am a Senior Staff Attorney at the Tacoma Office of the Northwest Immigrant Rights

2 Project (“NWIRP”). I have worked at NWIRP’s Tacoma Office since March 2013. I currently

3 supervise two attorneys, two legal advocates, and one law graduate.

4

3. My work primarily consists of providing direct representation, pro se assistance,

5 orientations, and workshops to individuals who are detained at the Northwest Detention Center

6 ("NWDC"). Someone from our Tacoma office is at the NWDC almost every day to provide a range
7
of legal services.
8
4. Another attorney from our office, Meghan Casey, first met with F.G.B. on February
9
18, 2016 to conduct a basic intake and screen his case for any potential relief. At that time, we stated
10
that our office was unable to represent him in his deportation proceedings, but he consented to
11
speaking with us to obtain general information about his case. During this initial meeting, Meghan
12
let him know that he was likely eligible for cancellation of removal under 8 U.S.C. § 1229b(a) and
13
that our office would be referring his case for pro bono representation. When asked for his full name,
14
15 he stated that it is Felipe G.B., but that he also uses the alias and nickname “Phillip,” an English
16 translation of his given name.

17

5. After our initial meeting on February 18, 2016, F.G.B. sent two letters to our office

18 requesting additional information. In one of these letters, he noted that he was scheduled for a final

19 merits hearing before the immigration judge on June 23, 2016.

20

6. On May 16, 2016, I met with F.G.B. at the NWDC. During this meeting, F.G.B. told

21 me that the immigration court held an intervening hearing in his case on May 11, 2016. It appeared

22 that Immigration Customs and Enforcement had amended F.G.B.’s charges of removability to argue

23 that he was in fact removable for an aggravated felony conviction, which bars an individual from
24 applying for cancellation of removal and many other forms of relief. The immigration judge issued 25 an order of removal against F.G.B. on May 11, 2016. F.G.B. had requested to speak with our office
26
in order to ask whether he had any options for continuing to fight his case. Based on these facts, I
27
informed F.G.B. that he could attempt to file a motion to reopen his proceedings.
28

DECLARATION OF ELIZABETH BENKI IN SUPPORT OF NWIRP’S MOTION FOR PRELIMINARY INJUNCTION (No. 2:17-cv-00716-RAJ) – Page 2

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 53 Filed 06/30/17 Page 3 of 6

1

7. F.G.B. responded that he did not know how to file a motion to reopen before the

2 Immigration Court. I thus provided him with a blank motion template, which states in its footer,

3 “This pro se brief/motion has been prepared with the assistance of the Northwest Immigrant Rights

4 Project.” I helped him fill out the form by writing down why he sought to reopen to his proceedings.

5 However, F.G.B. was still uncertain whether he wanted to submit the motion because doing so

6 would prolong his detention. I told him that he would have to make a decision soon because of his
7
impending deportation. I reviewed the contents of the motion by reading it aloud to F.G.B., and after
8
confirming that it was accurate, he signed and dated the motion in front me. I left the signed motion
9
with him so that he could mail it to the immigration court if he decided to fight his case.
10
8. I was not even aware that F.G.B. filed this pro se motion until I read EOIR’s cease-
11
and-desist letter, which alleges that a NWIRP staff member “clearly represented” F.G.B. in the
12
above-described motion to reopen proceedings. Further, the cease-and-desist letter noted that
13
F.G.B.’s signature on the motion did not match his signature on a previous filing, citing this
14
15 discrepancy as an indication that someone other than F.G.B. may have drafted this document for
16 him.

17

9. While I filled out by hand the motion to reopen during my meeting with F.G.B. at the

18 NWDC, F.G.B. signed the motion himself, with a full understanding of its content, and he later

19 submitted it on his own to the immigration court. Over the course of our interaction with F.G.B., he

20 had provided our office with several documents for further review of his case, in addition to signing

21 consent forms and handwritten letters. His signatures on these documents illustrate that he, like

22 many others, sometimes signs documents using the English translation of his name, while other
23 times using his given name in Spanish.
24
I declare under penalty of perjury of the laws of the State of Washington and the United
25
States that the foregoing is true and correct to the best of my knowledge and belief.
26

27

28

DECLARATION OF ELIZABETH BENKI IN SUPPORT OF NWIRP’S MOTION FOR PRELIMINARY INJUNCTION (No. 2:17-cv-00716-RAJ) – Page 3

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 53 Filed 06/30/17 Page 4 of 6
Scanned by CamScanner

Case 2:17-cv-00716-RAJ Document 53 Filed 06/30/17 Page 5 of 6

1

CERTIFICATE OF SERVICE

2

I hereby certify that on June 30, 2017, I caused the following to be filed using CM/ECF

3 which will cause a copy to be sent to the following:

4

Attorneys for Defendants Jefferson B. Sessions, III; United States Department of

5 Justice; Executive Office for Immigration Review; Juan Osuna; Jennifer Barnes

6

Carlton Frederick Sheffield

Gisela A. Westwater

7

Gladys M. Steffens Guzman

Victor M. Mercado-Santana 8

carlton.f.sheffield@usdoj.gov gisela.westwater@usdoj.gov Gladys.Steffens-Guzman@usdoj.gov victor.m.mercado-santana@usdoj.gov

9

Attorneys for Amicus Attorney General of Washington

10

Patricio A. Marquez

11

12

PatricioM@atg.wa.gov chamenew@atg.wa.gov colleenm1@atg.wa.gov marshac@atg.wa.gov

13

Attorneys for Amicus American Civil Liberties Union of Washington (ACLU)

14

Andrew Garcia Murphy

15

16

Michael J. Ewart

agm@hcmp.com brenda.partridge@hcmp.com
jake.ewart@hcmp.com angie.perkins@hcmp.com

17

18

Attorneys for Amicus Fred T. Korematsu Center for Law and Equality

19

Benjamin D. Greenberg

20

21

Sarah Cox

22 Tzu-Huan Augustine Lo
23

greenberg.ben@dorsey.com johnston.natasha@dorsey.com
cox.sarah@dorsey.com, johnston.natasha@dorsey.com
lo.augustine@dorsey.com johnston.natasha@dorsey.com

24

Shawn J. Larsen-Bright

25

26

Robert Seungchul Chang

27

larsen.bright.shawn@dorsey.com price.molly@dorsey.com
changro@seattleu.edu robert.bob.chang@gmail.com

CERTIFICATE OF SERVICE (2:17-cv-00716-RAJ) - 1

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 53 Filed 06/30/17 Page 6 of 6

Zachary E. Davidson 1

2

Melissa R. Lee

3

4

DATED: June 30, 2017

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

davidson.zach@dorsey.com, slavik.jackie@dorsey.com leeme@seattleu.edu
By s/ James Harlan Corning James Harlan Corning, WSBA #45177

CERTIFICATE OF SERVICE (2:17-cv-00716-RAJ) - 2

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

 
 Case 2:17-cv-00716-RAJ Document 52 Filed 06/30/17 Page 1 of 26

1

The Honorable Richard A. Jones

2

3 4 5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

10 NORTHWEST IMMIGRANT RIGHTS
PROJECT (“NWIRP”), a nonprofit Washington 11 public benefit corporation; and YUK MAN
MAGGIE CHENG, an individual, 12
Plaintiffs, 13
v. 14
JEFFERSON B. SESSIONS III, in his official 15 capacity as Attorney General of the United
States; UNITED STATES DEPARTMENT OF 16 JUSTICE; EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; JUAN OSUNA, in 17 his official capacity as Director of the Executive
Office for Immigration Review; and JENNIFER 18 BARNES, in her official capacity as
Disciplinary Counsel for the Executive Office 19 for Immigration Review,

No. 2:17-cv-00716
REPLY IN SUPPPORT OF MOTION FOR PRELIMINARY INJUNCTION
Note on Motion Calendar: June 30, 2017
Oral Argument: July 24, 2017 at 9:00 a.m.

20

Defendants.

21

22

23

24 25 26

27

REPLY IN SUPPORT OF PLFS.’ MOT. FOR PRELIMINARY INJUNCTION (No. 2:17-cv-00716-RAJ)

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 52 Filed 06/30/17 Page 2 of 26

1

TABLE OF CONTENTS

2

Page

3 TABLE OF AUTHORITIES..................................................................................................... ii
4 I. INTRODUCTION ............................................................................................................. 1
5 II. ARGUMENT ..................................................................................................................... 2

6

A. EOIR’s Latest Interpretation of the Rule Suffers from Even More

Problems than its Last Interpretation—But It Ultimately Changes

7

Nothing....................................................................................................................... 2

8

1. EOIR Invents a New Interpretation of the Rule that Conflicts with

Prior Agency Guidance, Prior Representations to Plaintiffs and the

9

Court, and the Agency’s Own Declarations ...................................................... 3

10

2. EOIR’s Latest Interpretation Ignores the Text and Structure of the Rule, and Offers No Guidance About What Constitutes an

11

“Appearance Through Written Pleadings”........................................................ 6

12

B. Plaintiffs Meet the Criteria for a Preliminary Injunction ........................................... 8

1. Plaintiffs’ First Amendment Claims Are Likely to Succeed on the

13

Merits................................................................................................................. 8

14

a. EOIR’s Nonpublic Forum Analysis is Irrelevant ..................................... 9

15

b. EOIR Fails to Identify any Compelling Interest Advanced by Its Compulsory-Representation Rule .......................................................... 11

16

2. Plaintiffs’ Tenth Amendment Claims Are Likely to Succeed on the

17

Merits............................................................................................................... 14

3. NWIRP Establishes Imminent and Irreparable Harm Absent an

18

Injunction......................................................................................................... 15

19

4. The Balance of Equities and Public Interest Strongly Favor a

Preliminary Injunction..................................................................................... 16

20

C. EOIR’s Procedural Objections are Frivolous ........................................................... 16

21

D. The Preliminary Injunction Should Provide Nationwide Relief .............................. 18

22 III. CONCLUSION ................................................................................................................ 18

23

24

25

26

27

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Case 2:17-cv-00716-RAJ Document 52 Filed 06/30/17 Page 3 of 26

1

TABLE OF AUTHORITIES

2

Page

Federal Cases 3

4

Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987) ...............................................................................................18

5 De Niz Robles v. Lynch,

6

803 F.3d 1165 (10th Cir. 2015) ...............................................................................................6

7 Elrod v. Burns,

427 U.S. 347 (1976) ..............................................................................................................15 8

Gentile v. State Bar of Nevada,

9

501 U.S. 1030 (1991) ..............................................................................................................9

10 Harmon v. Thornburgh,

11

878 F.2d 484 (D.C. Cir. 1989)...............................................................................................18

12 Hawaii ex rel. Louie v. HSBC Bank Nevada, N.A.,

761 F.3d 1027 (9th Cir. 2014) ...............................................................................................17

13

Hill v. Colorado,

14

530 U.S. 703 (2000) ..............................................................................................................11

15 In re Fengling Liu,

16

664 F.3d 367 (2d Cir. 2011) ..................................................................................................13

17 In re Primus,

436 U.S. 412 (1978) ..........................................................................................................8, 11

18

Manchester v. Ceco Concrete Constr., LLC,

19

No. C13-832RAJ (order filed Nov. 24, 2014) .........................................................................6

20 Legal Services Corp. v. Velazquez,

21

531 U.S. 533 (2001) ..............................................................................................................11

22 McCullen v. Coakley, 134 S. Ct. 2518 (2014) ..........................................................................................................12

23 Mezibov v. Allen,

24

411 F.3d 712 (6th Cir. 2005) ...................................................................................................9

25 Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs,

26

145 F.3d 1399 (D.C. Cir. 1998).............................................................................................18

27

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Case 2:17-cv-00716-RAJ Document 52 Filed 06/30/17 Page 4 of 26

Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n,

1

461 U.S. 190 (1983) ..............................................................................................................17

2 Preminger v. Peake,

3

552 F.3d 757 (9th Cir. 2008) .................................................................................................10

4 Sammartano v. First Judicial Dist. Court,

303 F.3d 959 (9th Cir. 2002) ...................................................................................................9

5

SEC v. Chenery Corp.,

6

332 U.S. 194 (1947) ................................................................................................................6

7 Sperry v. State of Florida,

8

373 U.S. 379 (1963) ..............................................................................................................15

9 Texas v. United States, 2016 WL 7852330 (N.D. Tex. Nov. 20, 2016) .....................................................................18

10

Texas v. United States,

11

809 F.3d 134 (5th Cir. 2015) .................................................................................................18

12 Torrens v. Hood (In re Hood),

13

727 F.3d 1360 (11th Cir. 2013) .............................................................................................13

14 TRW Inc. v. Andrews, 534 U.S. 19 (2001) ..................................................................................................................7

15 Zal v. Steppe,

16

968 F.2d 924 (9th Cir. 1992) ...................................................................................................9

17 State Cases

18 Ind. State Bar Ass’n v. Diaz,

19

838 N.E. 2d 433 (Ind. 2005)..................................................................................................14

20 Oregon State Bar v. Ortiz, 713 P.2d 1068 (Or. App. 1986) .......................................................................................14, 15
21 Federal Regulations
22 8 C.F.R. § 1001.1(i).....................................................................................................................17
23
8 C.F.R. § 1001.1(k) ............................................................................................................6, 7, 17 24
25 8 C.F.R. § 1003.17.................................................................................................................16, 17

26 8 C.F.R. § 1003.102(t)...........................................................................................................12, 17

27

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Rules of Professional Conduct & Related Materials 1 2 Ala. Ethics Op. 2010-01 ..............................................................................................................13 3 ABA Standing Comm. on Ethics and Prof’l Resp. Formal Op. No. 07-446...............................13 4 Colo. Bar Ass’n Ethics Comm. Op. 101 (May 21, 2016) ..........................................................13 5 D.C. Bar Ass’n Comm. Legal Ethics Op. No. 330 (July 2005) ..................................................13
6 Mich. State Bar Op. No. RI-347 (April 23, 2010).......................................................................13

7 N.J. Advisory Comm. on Prof’l Ethics, Op. 713, at 4.................................................................13 8 NY County Lawyers’ Ass’n Comm. on Prof’l Ethics, Op. 742 at 1 (2010) ...............................13 9 Pa. Bar Ass’n Comm. on Legal Ethics & Phila. Bar Ass’n Prof’l Guidance 10 Comm., Joint Formal Op. 2011-100, at 11-16 ............................................................................13 11 Utah State Bar Ethics Advisory Op. Comm., Formal Op. 08-01 (2008) ....................................13 12 N.C. State Bar Formal Ethics Op. 2008-3 (Jan. 23, 2009) ..........................................................13
13 Wash. Rule of Professional Conduct 1.2.....................................................................................15

14 Wash. Rule of Professional Conduct 1.6.....................................................................................15

15 W.Va. Lawyer Disciplinary Bd. Legal Ethics Op. 2010-01........................................................13

16 Other Authorities

17 Merriam-Webster.com, Ghostwrite,

18

https://www.merriam-webster.com/dictionary/ghostwrite ...................................................12

19 Wikipedia, Legal ghostwriting,
https://en.wikipedia.org/wiki/Legal_ghostwriting ................................................................12 20

21

22

23

24

25

26

27

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1

I. INTRODUCTION

2

In their motion, Plaintiffs established that EOIR’s Rule imposes an all-or-nothing

3 paradigm on immigrant representation. By compelling full representation the moment an attorney

4 agrees to provide any limited representation, EOIR’s Rule violates both the First and Tenth

5 Amendments. The Rule, untailored to any valid governmental interest, impermissibly restricts

6 protected political speech on the basis of its content and viewpoint. The Rule also impairs the

7 states’ sovereign power to regulate the practice of law outside of agency proceedings. Plaintiffs

8 will suffer imminent, irreparable harm without a preliminary injunction. Given the unbounded

9 impact of EOIR’s Rule, the overwhelming public interest strongly favors nationwide relief.

10

EOIR’s opposition does not engage with the substance of these arguments. Instead, it

11 skirts the issue, arguing that Plaintiffs overstate the impact of the agency’s cease-and-desist order

12 and the underlying Rule because NWIRP’s attorneys may still assist unrepresented immigrants— 13 just so long as they don’t provide legal representation.1 This is little comfort, as NWIRP does not

14 seek to provide unspecified social services, but instead, pursuant to its mission, seeks to provide

15 legal representation to immigrants. EOIR’s opposition also tries to move the goal posts, claiming

16 that the Rule has been misunderstood—that the Rule is actually far narrower than Plaintiffs, the

17 Court, and the rest of the legal community understand it to be. The Rule, the agency says, only

18 applies to practitioners “who appear before” EOIR, “either in person or through written

19 pleadings.” Dkt. 47 at 11. Cloaked in this new, strategic litigating position, EOIR says its Rule

20 now survives constitutional scrutiny.

21

EOIR is mistaken. The agency cannot disown its prior interpretation and its

22 representations to this Court as an eleventh-hour tactic to avoid injunctive relief. Nor can it adopt

23 an interpretation unmoored from the text and structure of the Rule itself, an interpretation so

24 vague it will leave practitioners guessing at what conduct is proscribed. But, at the end of the

25 day, this new interpretation EOIR advances is hollow—a palliative rebranding of the same flawed

26 interpretation that led to this lawsuit. In short, EOIR’s new approach changes nothing.

27

1 See, e.g., Dkt. 47 at 25 (“Plaintiffs cannot show that NWIRP is banned from continuing to assist vulnerable

immigrant populations.”); id. (“It does not prohibit Plaintiffs from engaging in many other permissible activities.”).

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1

EOIR offers several other flawed arguments. It claims it can regulate the conduct of

2 immigration attorneys outside the courtroom under the theory that immigration court is a

3 nonpublic forum. It argues preventing the ghostwriting of briefs (a practice Plaintiffs do not

4 engage in) is a compelling interest that justifies otherwise-unconstitutional speech restraints. It

5 asserts two procedural objections, claiming that the omission of an irrelevant citation from

6 Plaintiffs’ Complaint is a fatal defect that precludes relief and that Plaintiffs’ claims are unripe

7 because Plaintiffs have sought to avoid—rather than suffer—the Rule’s harms. Each of these

8 arguments is meritless

9

Nothing EOIR says in its opposition changes the fundamental truth of this case, or

10 materially changes the facts and law that were present when the TRO was granted. If EOIR is

11 permitted to enforce its unconstitutional Rule, the agency will succeed in depriving Plaintiffs of

12 their right to advocate for immigrant rights, and will deprive thousands of immigrants in

13 Washington—and many more throughout the country—of the low cost or pro bono legal

14 assistance they now receive.

15

II. ARGUMENT

16 A. EOIR’s Latest Interpretation of the Rule Suffers from Even More Problems than its Last Interpretation—But It Ultimately Changes Nothing
17 EOIR proposes a new version of its ever-changing interpretation of the compulsory-
18 representation rule. It now claims the Rule is actually bound by an important—but thus-far
19 undisclosed—limiting principle: the Rule’s “reference to ‘practice’ and ‘preparation’ only
20 encompass activities by individuals appearing before [the agency].” Dkt. 47 at 11 (emphasis
21 added). In other words, practitioners are free to “practice” and engage in “preparation” as long as
22 they aren’t “appearing” before the agency. EOIR does not say what “appearing” in this context
23 means (other than, tautologically, “to appear”). Nonetheless, EOIR argues that the Rule applies
24 to only those appearances which are “either in person or in written pleadings.” Id. at 11, 12.
25 As we explain below, the Court should reject EOIR’s position for several reasons. First,
26 EOIR effectively asks the Court to disregard the agency’s formal interpretation as announced in
27 its 2011 memo, Dkt. 14-2, reaffirmed in its supporting declarations, Dkts. 49 & 50, and explained

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1 to the Court in its prior briefing and argument. The agency cannot sweep this overwhelming and

2 contradictory record under the rug because a new interpretation of the Rule now suits their

3 litigation needs. Second, EOIR’s new interpretation ignores and contradicts the text and structure

4 of the Rule itself. The agency’s novel concept of “appearing through written pleadings” is

5 incongruous and undefined, further amplifying the Rule’s existing vagueness problems. Most

6 importantly, EOIR’s latest interpretation is nothing more than a placebo—it results in exactly the

7 same prohibitions and harms as the agency’s prior formal interpretation.

8

1. EOIR Invents a New Interpretation of the Rule that Conflicts with Prior

Agency Guidance, Prior Representations to Plaintiffs and the Court, and

9

the Agency’s Own Declarations

10

If EOIR’s latest interpretation is accepted at face value (which it should not be), EOIR is

11 rewriting history. The agency cannot advance a new interpretation of the Rule that conflicts with

12 its own prior interpretation, particularly not as a litigation strategy to avoid injunctive relief.

13 EOIR’s latest interpretation flatly contradicts the agency’s prior written guidance, its oral and

14 written representations to Plaintiffs, its briefs and oral argument to the Court, and—ironically—

15 the declarations from agency employees submitted with its opposition brief.

16

When the Rule was adopted in 2009, EOIR’s local court administrator agreed NWIRP

17 could comply by disclosing its assistance with pro se filings by including a statement NWIRP had

18 prepared or assisted in preparing the filing. Dkt. 38 ¶ 5. This practice was accepted by EOIR

19 without objection for 8 years until April 2017. Id. EOIR complains there is no “document or

20 written agreement memorializing” this understanding, but does not dispute it. Dkt. 47 at 4.

21

Fast-forward to 2011: EOIR apparently sent a memo to a third party, not NWIRP,

22 distinguishing between “legal orientation” and “legal representation”—the former being activities

23 the agency sought to fund under its Legal Orientation Program (LOP), and the latter

24 encompassing “practice” and “preparation” it wished to exclude from such funding. Dkt. 14 at 5;

25 Dkt. 14-2. The audience of the memo’s guidance is “individuals providing contract service

26 through [EOIR’s LOP],” Dkt. 14-2, at 1; however, NWIRP has never used LOP program funding

27 to provide the limited legal services at issue in this case. Nonetheless, according to EOIR, its

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1 memo was apparently intended to “clarif[y] for practitioners the [meaning of] ‘representation,’

2 which triggers the notice of appearance requirement.” Dkt. 14, at 12 (emphasis added).

3

The memo identifies some of the activities that trigger the compulsory appearance

4 requirement. For example, the memo indicates that, at “self-help workshops,” practitioners

5 “cannot assist in the direct preparation of an individual’s papers.” Dkt. 14-2, at 5. In providing

6 assistance with paperwork during a one-on-one meeting, practitioners cannot “advise the

7 individual on how to answer a question based on a participant’s particular factual situation and the

8 applicable law.” Id. at 6. Practitioners can only provide information that is “information and non-

9 specific to any particular individual’s case” and cover “general areas of law and procedure ... in

10 general terms.” Id. at 2–3. EOIR reaffirmed all of these positions in the Declaration of Steven

11 Lang, filed with its opposition. Dkt. 50 ¶ 68.

12

In late 2016, NWIRP and EOIR attorneys participated in a conference call where NWIRP

13 educated EOIR about some of the tools NWIRP uses to combat notario fraud, based on the special

14 project it implemented in conjunction with the Washington State Attorney General’s Office. 2d

15 Barón Decl. ¶ 2. NWIRP explained that one of the tools it uses is providing workshops to assist

16 unrepresented individuals fill out asylum applications. Id. EOIR later requested a follow-up call,

17 in which its disciplinary counsel, Defendant Jennifer Barnes, stated that such workshops could

18 violate the Rule. Dkt. 47 at 8; Dkt. 49 ¶ 49. The agency characterizes this October conversation

19 as “NWIRP ask[ing] for relief from [the Rule].” Dkt. 47 at 8. NWIRP vehemently disagrees with

20 this characterization. 2d Barón Decl. ¶ 3. Indeed, NWIRP had no reason to seek “relief,” as the

21 agency had not opposed or sanctioned their work to that point. Moreover, as noted, the call

22 pertained to NWIRP’s pro se community asylum workshops and did not address any of the other

23 services NWIRP provides. Notably, under EOIR’s new measuring stick, pro se asylum

24 workshops would not seem to constitute “appearing” in a “written pleading”—yet, according to

25 Defendant Barnes, such activities apparently necessitate “relief” from the Rule.

26

EOIR’s sudden insistence that the Rule is limited to in-person or in-writing appearances

27 also contradicts representations the agency made during the hearing on the Plaintiffs’ TRO

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1 motion before this Court, just six weeks ago:

2

THE COURT: So if someone comes to a legal clinic and says, “I have a

legal form, I need to fill in the blanks, but I need someone to assist me and

3

give me some coaching or legal advice on what I should include,” does that

cross the line, in your interpretation?

4

MR. MERCADO-SANTANA: It depends if the attorney is engaging in

5

providing legal advice and is providing any additional assistance.

6 Dkt. 36, at 58:6–13.

7

THE COURT: And just to be clear -- and I think you’ve conceded this

point -- the regulation does not bar the plaintiffs from making statements at

8

community workshops, the KYR, the know-your-rights events, or legal

clinics; is that correct?

9

MR. MERCADO-SANTANA: That is correct, so long as they don’t cross

10

the line to actually providing advice and auxiliary activity, which, in a

memo from the Legal Orientation Program, agencies like NWIRP have

11

been provided guidance of where those lines lay.

12 Id. at 57:14–22.

13

MR. MERCADO-SANTANA: … [Lawyers] understand what providing

legal advice is. There is clearly a difference in providing legal advice and

14

providing assistance, providing information. There’s also a difference

between helping somebody prepare forms versus providing an individual

15

substantive information and aid and assistance in order to present -- to

apply the facts to the legal law, to the legal framework.

16

THE COURT: So in your interpretation, you don’t think that that presents a

17

chilling effect upon the lawyer or the lawyer’s ability to provide

representation for their client under those circumstances?

18

MR. MERCADO-SANTANA: It would not cause an undue burden on the

19

lawyer. Lawyers have the knowledge and experience of distinguishing

between providing legal advice and providing legal information. And the

20

EOIR has provided guidance in order to provide -- to provide guidance in

order to narrow -- to give a better understanding to practitioners about what

21

is permissible and what is not permissible.

22 Id. at 58:25–59:19.

23

At the TRO hearing on May 17, EOIR insisted that providing individualized legal advice

24 to an unrepresented immigrant without entering a notice of appearance was “not permissible”

25 under their Rule—a position which, although unconstitutional, at least tracks the text of the Rule.

26 Now, however, EOIR reverses course, asserting that “the mere act of advising a client triggers no

27 obligation to file a notice of appearance.” Dkt. 47 at 24–25.

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1

EOIR cannot alter its interpretation of the Rule mid-stream to suit its litigation strategy.

2 “The doctrine of judicial estoppel prohibits such flip-flopping.” Manchester v. Ceco Concrete

3 Constr., LLC, No. C13-832RAJ (Dkt. 69), at 5 (order filed Nov. 24, 2014) (citing Hampshire v.

4 Maine, 532 U.S. 742, 750 (2001)). Nor can the agency rely upon a novel interpretation it did not

5 raise until the commencement of litigation. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)

6 (“a reviewing court, in dealing with a determination or judgment which an administrative agency

7 alone is authorized to make, must judge the propriety of such action solely by the grounds

8 invoked by the agency”); De Niz Robles v. Lynch, 803 F.3d 1165, 1169 n.2 (10th Cir. 2015)

9 (“[T]he BIA order before us didn’t invoke this rationale in defense of its decision and so the

10 agency may not now employ it on appeal.”). This new position advocated by EOIR offers no

11 assurance the agency’s interpretation will not morph again during or after this litigation, nor does

12 it provide clear guidance on when the appearance requirement is triggered. The agency’s

13 interpretive flip-flops leave practitioners and the Court in an “awkward position” of guessing

14 what is and is not permitted. Dkt. 36 at 32:18–33:24, 58:6–59:8, 58:19–21.

15

2. EOIR’s Latest Interpretation Ignores the Text and Structure of the Rule,

and Offers No Guidance About What Constitutes an “Appearance Through

16

Written Pleadings”

17

EOIR’s new interpretation should be disregarded for another reason: it is unmoored from

18 the text and structure of the Rule itself, and it creates additional ambiguity for practitioners.

19 EOIR claims its latest interpretation arises from “the language of the regulation,” Dkt. 47 at 12,

20 but the Rule does not require any sort of appearance through written pleadings, as EOIR suggests.

21 Nor does EOIR define what it means to “appear” before the agency “through written pleadings.”

22

To the extent EOIR tries to cabin the Rule to encompass only acts that constitute

23 “practice,” that effort necessarily fails. The Rule, by its plain text, requires a notice of appearance

24 whenever a practitioner “has engaged in practice or preparation.” The term “preparation,” is

25 broadly defined: even EOIR begrudgingly concedes that it “sweep[s] more broadly” than mere

26 “practice.” Id. at 12. “Preparation” is the “study of the facts of a case and the applicable laws,

27 coupled with the giving of advice and auxiliary activities.” 8 C.F.R. § 1001.1(k). While

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1 preparation can include “the incidental preparation of papers,” the definition does not require that

2 the study, advice, or auxiliary activities relate to a written pleading. Under the plain language of 3 the Rule, any acts of preparation trigger the notice-of-appearance requirement.2 EOIR cannot

4 save the Rule by carving out acts of “preparation” from the notice-of-appearance requirement. It

5 is “a cardinal principle of statutory construction” that a statute must be construed so that “no

6 clause, sentence, or word shall be superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534

7 U.S. 19, 31 (2001).

8

If EOIR’s “appearance through written pleadings” means something other than the text of

9 the regulation, EOIR’s opposition brief offers no insight as to what that meaning might be; it only

10 further muddies the waters as to what activities are permitted or prohibited. EOIR now claims,

11 contrary to the supporting exhibits to its brief, that the Rule “does not encompass … filling out

12 asylum application forms or other types [of] immigration forms without [sic] that does not go

13 beyond preparing the form.” Dkt. 47 at 13; see also id. at n.12 (citing the “preparation of forms

14 … when the assistance goes beyond the role of a scrivener” as an example of conduct that “would

15 not trigger” the Rule). But as noted above, EOIR previously represented that a notice of

16 appearance is required if, while helping a client “fill out” a form, the practitioner advises the 17 client about what information to include. Dkt. 14-2 at 6. 3

18

EOIR reassures the Court that “[i]t is only when there is representation before the

19 immigration court—whether in person or through a filing that embodies the representative’s

20 voice—that the representation must be disclosed.” Dkt. 47 at 25. But EOIR does not explain

21 when assistance to an unrepresented individual with a particular form transforms into “a filing

22 that embodies the [practitioner’s] voice.” Id. at 25. This is precisely the sort of “awkward

23

24

2 Even if the notice-of-appearance requirement applied only to acts constituting “practice” and not “preparation,” the Rule’s scope would remain unchanged. The definitional portion of the regulation specifies that

25

preparation “constitut[es] practice,” 8 C.F.R. § 1001.1(k), so the definition of practice therefore necessarily includes all of the activities that would fall within the definition of “preparation.”

3 EOIR also argues “preparation [] does not cover assistance in the preparation of forms by aiding an
26 individual to fill in the blanks.” Dkt. 47 at 4. However, the plain text of the rule provides the telltale qualifier,

explaining that preparation “does not include the … service consisting solely of assistance in the completion of
27 blank spaces on printed [agency] forms by one … who does not hold himself out as qualified in legal matters.” 8

C.F.R. § 1001.1(k) (emphasis added).

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1 position” the Court commented on at the TRO hearing: with this sort of “moving target,”

2 practitioners “never will know … if they crossed the line[.]” Dkt. 36, at 58:19–21.

3

*

*

*

4

Despite the host of new infirmities created by EOIR’s latest interpretation, the agency’s

5 eleventh-hour effort to save the Rule is a smokescreen: while appearing more narrow and

6 reasonable than the prior interpretation, the new interpretation changes nothing. Despite the

7 agency’s protestations that the Rule is limited to “appearances” before the immigration court, it

8 remains clear that the agency seeks to infringe Plaintiffs’ right to provide limited legal services

9 even where NWIRP’s attorneys do not appear in person before the immigration court, and even

10 where NWIRP’s attorneys do not actually file any documents with the court. The cease-and-

11 desist letter itself specifically points to a motion to reopen in the Tacoma Immigration Court

12 where the NWIRP attorney helped fill out a simple motion, which the detainee subsequently filed 13 on his own.4 Benki Decl. ¶¶ 6–8. Similarly, Defendant Barnes previously tried to limit NWIRP’s

14 ability to provide limited legal services in the context of pro se asylum workshops, wherein

15 NWIRP attorneys advise detainees how to best fill out applications with specific legal advice on

16 formulating their answers and presenting their case. 2d Barón Decl. ¶ 2. No matter what limiting

17 principle EOIR advances, the Rule, and the agency’s enforcement of it, remains unchanged—and

18 unconstitutional.

19 B. Plaintiffs Meet the Criteria for a Preliminary Injunction

20

1. Plaintiffs’ First Amendment Claims Are Likely to Succeed on the Merits

21

EOIR does not try to justify its Rule under a strict scrutiny analysis, because EOIR

22 cannot meet the exacting standards of such an analysis. Nor does EOIR attempt to distinguish the

23 Supreme Court’s controlling precedent—Button and Primus. Instead, EOIR argues that attorneys

24 have no First Amendment rights because immigration court is a nonpublic forum. Dkt. 47 at 16–

25

4 EOIR alleges there was a signature mismatch in the detainee’s signature, as if to create the appearance of
26 impropriety and justify their notice-of-appearance requirement (which has nothing to do with signature
mismatches). As Ms. Benki explains, the signature mismatch is because the detainee, “like many others, sometimes
27 signs documents using the English translation of his name, while other times using his given name in Spanish.”
Benki Decl. ¶ 9.

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1 18. EOIR also advances various rationales justifying its Rule. None of these arguments save the

2 Rule from its unconstitutional fate.

3

a. EOIR’s Nonpublic Forum Analysis is Irrelevant

4

Cases upholding attorney speech restrictions on the ground that a courtroom is a

5 nonpublic forum have addressed restraints on attorney speech inside the courtroom. Here, EOIR

6 seeks to restrain attorney speech by regulating advice and legal assistance that occurs outside the

7 courtroom. Indeed, by its nature, the Rule targets attorneys who have not entered an appearance

8 in the case. In Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), the Supreme Court held

9 Nevada’s regulation on pretrial publicity was void for vagueness. In dicta, the Court observed

10 that “in the courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an

11 attorney has is extremely circumscribed. An attorney may not, by speech or other conduct, resist

12 a ruling of the trial court beyond the point necessary to preserve a claim for appeal.” Id. at 1071.

13 While some subsequent cases involving attorney conduct in courtrooms have categorized

14 courthouses as nonpublic forums, none of the cases EOIR cites extend the concept of a nonpublic

15 forum to out-of-court conduct. See, e.g., Zal v. Steppe, 968 F.2d 924 (9th Cir. 1992) (deliberate

16 disobedience of the judge’s pretrial order not protected speech); Mezibov v. Allen, 411 F.3d 712

17 (6th Cir. 2005) (defending client in court not protected speech).

18

Courtroom speech is not at issue here. Plaintiffs do not contend they are exempt from the

19 notice-of-appearance requirement when they agree to undertake full representation in a client’s

20 case. Nor do Plaintiffs contend EOIR cannot regulate the conduct of attorneys while they are

21 before an immigration judge. That an immigration courtroom may be a nonpublic forum does

22 not, however, give EOIR the right to regulate the conduct and speech of attorneys who engage in

23 legal representation outside of the court. EOIR identifies no authority holding otherwise. EOIR’s

24 nonpublic-forum analysis is wholly inapplicable to this matter.

25

But, even if the nonpublic-forum analysis were to apply, EOIR’s regulations fail because

26 they are neither reasonable in light of the purpose served by the forum nor viewpoint neutral. See

27 Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 966–67 (9th Cir. 2002) (requiring

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1 regulations fulfill a “legitimate need,” a higher standard than rational basis) abrogated on other

2 grounds by CTIA- The Wireless Ass’n v. City of Berkeley, 854 F.3d 1105, 1122 (9th Cir. 2017).

3 EOIR claims the appearance requirement will make it easier for EOIR to identify attorneys who

4 need to be disciplined. However, easing the agency’s burden is not a sufficient justification for

5 infringing First Amendment rights. Moreover, NWIRP self-identifies on pleadings, Dkt. 38 ¶ 5,

6 and EOIR admits it has no instances of disciplinary concern with NWIRP. Dkt. 39-1 at 39:19–20,

7 40:6–15, 43:14–16. EOIR cannot show a “legitimate need” to impose compulsory representation

8 when a mere self-identification requirement would serve every one of the Rule’s rationales as

9 articulated by EOIR. Indeed, Defendants acknowledge there are several alternative ways to

10 modify the Rule so as to avoid infringing on Plaintiffs’ First Amendment rights. Dkt. 50 ¶ 85.

11

Nor is the Rule viewpoint neutral. EOIR implies that the relevant test for viewpoint

12 neutrality is whether it agrees or disagrees with the contents of NWIRP’s briefs. Dkt. 47 at 19. In

13 making this argument, EOIR quotes from Preminger v. Peake, 552 F.3d 757, 765 (9th Cir. 2008),

14 asserting that its cease-and-desist letter was clearly not “an effort to suppress expression merely

15 because public officials oppose the speaker’s view.” Dkt. 47 at 16. EOIR misses the point.

16 While the agency may not intend to suppress any particular argument by an immigrant, the Rule’s

17 effect will be to reduce the overall volume and quality of pro-immigrant advocacy. The outcome

18 of EOIR’s Rule is a restriction on a particular type of speech—legal advice regarding removal

19 proceedings—which in turn limits the number of immigrants Plaintiffs can help. Plaintiffs

20 advocate a consistent pro-immigrant message that is fundamentally opposed to Defendants, who

21 operate a system whose function is to deport immigrants. By diminishing the amount of such 22 speech, EOIR enhances the speech of Plaintiffs’ (and their clients’) opponents.5

23

24

25

5 It hardly needs noting that in the current political climate, immigrant rights are at the forefront of the political debate in this country. For example, yesterday, at a press conference announcing new anti-immigrant legislation

passed in the House, Secretary Kelly of the Department of Homeland Security stated, “[i]t is beyond my
26 comprehension why federal, state, and local officials sworn to enforce the laws of the nation, as I am, would

actively discourage or outright prevent law enforcement agencies from upholding the laws of the United States and
27 why they would set public funds aside to pay for the legal representation of illegal aliens who are also

lawbreakers.” https://www.pscp.tv/NewsHour/1vOGwvyaDdNKB?t=3 at 2:48.

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1

In Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), the Supreme Court rejected a

2 similar effort to place limits on the advocacy of attorneys opposing the government:

3

The attempted restriction is designed to insulate the Government’s

interpretation of the Constitution from judicial challenge. The Constitution

4

does not permit the Government to confine litigants and their attorneys in

this manner. We must be vigilant when Congress imposes rules and

5

conditions which in effect insulate its own laws from legitimate judicial

challenge. 6
LSC, 531 U.S. at 548. Like the restriction in LSC, EOIR’s rule favors one viewpoint—the

7 government—over another viewpoint and cannot pass muster even in a nonpublic forum.6

8

b. EOIR Fails to Identify any Compelling Interest Advanced by Its

9

Compulsory-Representation Rule

10

EOIR suggests there are four “purposes” served by its compulsory-representation rule:

11 (1) facilitating EOIR’s enforcement of professional conduct rules by identifying the practitioner

12 responsible for representation, Dkt. 47 at 4; (2) ensuring those who represent immigrants before

13 the agency are authorized to practice by the agency, id. at 5; (3) helping immigrants lodge claims

14 against an ineffective practitioner (which is the same as the first rationale), id. at 6; and (4)

15 eliminating the practice of ghostwriting, id. None of these rationales is a sufficiently “compelling 16 interest” to survive constitutional scrutiny.7

17

And all of these rationales all boil down to the same thing: EOIR wants to more easily

18 identify the practitioner who appears in court or who drafts a pleading, to ensure the practitioner

19 is authorized to do so and to discipline them for misconduct, if necessary. But when the

20 government’s actions infringe on free speech rights—especially political speech—it does not have

21

22

6 EOIR makes an alternative argument that its regulation can be upheld as merely a time, place, and manner

restriction, but such a restriction must also be reasonable and content neutral. Hill v. Colorado, 530 U.S. 703, 719–

23

20 (2000). EOIR’s compulsory representation rule fails for the same reasons it fails the nonpublic forum analysis above.

24

7 EOIR’s opposition, liberally construed, offers several other possible rationales for its rule. EOIR purports to want to increase the “quality of representation” and “quality of practitioners.” Dkt. 47 at 2, 19, 27. EOIR offers no

25

explanation for how its notice-of-appearance requirement increases the quality of representation. It certainly does not explain how a notice-of-appearance requirement, as opposed to an identification requirement, promotes that

purported interest more effectively. EOIR has also suggested it has an interest in being “consistent in how it
26 enforces the [Rule].” Id. at 10. Of course, consistent enforcement of an unconstitutional restraint does not

magically transform that restraint into one that passes constitutional muster. Moreover, “consistent” enforcement is
27 no defense to a constitutional challenge unless the agency can show that the evils the Rule supposedly targets
“actually occurred” with NWIRP. See In re Primus, 436 U.S. 412, 435 (1978). EOIR cannot do that here.

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1 the prerogative to simply pick the path of least resistance. “To meet the requirement of narrow

2 tailoring, [EOIR] must demonstrate that alternative measures that burden substantially less speech

3 would fail to achieve the [agency’s] interest, not simply that the chosen route is easier. …[T]he

4 prime objective of the First Amendment is not efficiency.” McCullen v. Coakley, 134 S. Ct.

5 2518, 2540 (2014). Even without the Rule, EOIR may still inquire and conduct investigations

6 regarding malpractice or unauthorized practice of law, even where legal advocates do not identify

7 themselves. Immigration judges can readily ask pro se respondents in court to identify the

8 individual that assisted them in filling out any application or motion. And EOIR can continue to

9 refer unlicensed or unauthorized practitioners to state bar authorities.

10

Moreover, as NWIRP has explained in its briefing and at oral argument on the TRO

11 motion, see Dkt. 36 at 9:13–17, Dkt. 2 at 18, it has taken measures to satisfy any concerns by

12 identifying itself and notifying EOIR of its assistance with any application, motion, or filing. The

13 agency’s primary concerns, as articulated, are fully satisfied by an identification requirement—a 14 rule obligating attorneys to sign or otherwise identify themselves on filings they help draft.8

15

EOIR’s concerns about the practice of ghostwriting are particularly unfounded. As a

16 threshold matter, EOIR tries to apply the formulaic “ghostwriting” label to NWIRP’s activities,

17 but this is incorrect. Ghostwriting occurs when an attorney drafts a written product “for and in 18 the name of another” without disclosing any participation in that drafting effort.9 When the

19 attorney discloses her participation in the drafting effort, however, that work cannot be accurately

20 characterized as ghostwriting. This is where EOIR’s argument falters: NWIRP does not engage

21 in ghostwriting. It self-identifies and discloses its participation on every filing with the agency.

22 Indeed, ironically, NWIRP’s commitment to avoid ghostwriting, through self-identification, is

23 what led to the agency’s enforcement effort against Plaintiffs. Dkt. 14-1.

24

25

8 EOIR knows how to draft such an identification requirement—indeed, it has, in large measure, already done
26 so. See 8 C.F.R. § 1003.102(t)(2). With minimal effort, its regulation could be modified to include an explicit

identification requirement.

27

9 Merriam-Webster.com, Ghostwrite, https://www.merriam-webster.com/dictionary/ghostwrite (June 30,

2017); Wikipedia, Legal ghostwriting, https://en.wikipedia.org/wiki/Legal_ghostwriting (June 30, 2017).

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1

Moreover, EOIR’s apparent distaste for the practice of ghostwriting, in and of itself, does

2 not provide a “compelling interest” sufficient to avoid constitutional scrutiny. In 2007, in a

3 formal, published ethics opinion, the ABA’s Standing Committee on Ethics and Professional

4 Responsibility determined that the Model Rules of Professional Conduct (on which EOIR’s own

5 ethics codes are based) neither prohibited ghostwriting nor required lawyers who participated in

6 ghostwriting to disclose their participation to the tribunal. Formal Op. No. 07-446. Since that

7 time, a flood of state ethics opinions mirrored the ABA’s formal conclusion and endorsed the 8 practice of ghostwriting (some requiring self-identification, and some not).10 The overwhelming

9 consensus of these ethics regulators is that the public benefits of ghostwriting outweigh the harm

10 caused by imposing an “all-or-nothing” model of legal representation, like the one advocated by

11 EOIR. Recent opinions from the Court of Appeals have followed this trend and found no ethical

12 violation results from ghostwriting. See, e.g., In re Fengling Liu, 664 F.3d 367, 369 (2d Cir.

13 2011) (rejecting disciplinary committee’s decision to reprimand an immigration attorney for

14 ghostwriting petitions to the Court of Appeals for review of decisions by the Board of

15 Immigration Appeals); Torrens v. Hood (In re Hood), 727 F.3d 1360, 1365 (11th Cir. 2013)

16 (finding no ethical violation in lawyer’s completion of a form for a pro se bankruptcy petitioner).

17

Given the strong and recent authority condoning—and, in fact, promoting—the practice

18 of ghostwriting, EOIR cannot say that preventing ghostwriting, in and of itself, is a compelling

19 justification for a restraint on speech. It must, at the very least, articulate why ghostwriting in the

20 context of agency proceedings is a particular evil that its compulsory-representation rule is

21 narrowly tailored to eradicate. Again, here EOIR’s argument falters.

22

The appearance requirement offers no advantage over an identification requirement in

23 “protecting a vulnerable population from unscrupulous immigration service providers, [or]

24 ‘notarios,’ who routinely hide behind ghostwritten filings.” Dkt. 47 at 1. Scrupulous and diligent

25

10 See, e.g., Ala. Ethics Op. 2010-01; Colo. Bar Ass’n Ethics Comm. Op. 101 (new opinion approved May 21,

2016); D.C. Bar Ass’n Comm. Legal Ethics Op. No. 330 (July 2005); Mich. State Bar Op. No. RI-347 (April 23,
26 2010); N.C. State Bar Formal Ethics Op. 2008-3 (Jan. 23, 2009); N.J. Advisory Comm on Prof’l Ethics, Op. 713, at
4; NY County Lawyers’ Ass’n Comm. on Prof’l Ethics, Op. 742 at 1 (2010) ; Pa. Bar Ass’n Comm. on Legal Ethics
27 & Phila. Bar Ass’n Prof’l Guidance Comm., Joint Formal Op. 2011-100, at 11-16; Utah State Bar Ethics Advisory
Op. Comm., Formal Op. 08-01 (2008); W.Va. Lawyer Disciplinary Bd. Legal Ethics Op. 2010-01.

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1 legal providers will identify themselves if required to do so. Unscrupulous ones—notarios—will

2 not, particularly if they are not licensed or authorized to practice before EOIR. Imposing an

3 appearance requirement, instead of an identification requirement, will not magically result in a

4 more effective crackdown on notario fraud. Despite the agency’s contention throughout its brief

5 that it seeks to prevent notario fraud, EOIR presents no argument or evidence for how its Rule

6 accomplishes that. With or without any prohibitory regulation, EOIR would not be able to

7 identify unauthorized providers who ghostwrite as a matter of course so as to avoid detection.

8

Notario fraud will not be prevented by a rule that purports to require notarios to identify

9 themselves and commit to full representation; they will simply ignore the rule, as they are

10 currently doing. On the other hand, “[c]ritical to protecting consumers from [notarios] … is the

11 availability of, and access to, free or low-cost immigration legal services, [and] NWIRP plays a

12 crucial role in meeting this essential need.” Br. of Amicus Curiae Att’y Gen. of Wash., Dkt. 18-1,

13 at 4–5. In other words, EOIR’s enforcement effort is undercutting the very interest it purports to

14 be advancing.

15

In sum, EOIR’s rationales for its compulsory-representation rule do not rise to the level

16 of a “compelling interest” sufficient to satisfy any level of scrutiny under the First Amendment.

17

2. Plaintiffs’ Tenth Amendment Claims Are Likely to Succeed on the Merits

18

The Rule goes beyond regulating the conduct of lawyers who appear in immigration

19 court. EOIR instead reaches far back into the attorney-client relationship, restraining otherwise-

20 valid legal practice outside of any agency proceeding. EOIR’s own cited authorities reinforce that

21 regulating lawyers is a power reserved to the states under the Tenth Amendment.

22

EOIR cites no authority that a federal agency’s professional rules of conduct can infringe

23 on a lawyer’s right to practice law in a manner otherwise allowed by state licensing authorities.

24 This void in authority is notable because the licensing and regulation of lawyers are matters left to

25 the states under the Tenth Amendment. Ind. State Bar Ass’n v. Diaz, 838 N.E. 2d 433 (Ind. 2005)

26 (Indiana can enjoin unlicensed attorney from engaging in the practice of immigration law);

27 Oregon State Bar v. Ortiz, 713 P.2d 1068 (Or. App. 1986) (person assisting in filling out

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1 immigration forms subject to Oregon licensing authority). EOIR’s reliance on Sperry v. State of

2 Florida, 373 U.S. 379 (1963), remains inapposite because that case involved the exact inverse of

3 the situation here. Sperry upheld a federal agency’s ability to allow an unlicensed practitioner to

4 engage in specific, limited practices before it. In contrast, this case challenges whether a federal

5 agency can prevent a licensed practitioner from engaging in the practice of law, not before the

6 agency, that is otherwise allowed by the state licensing authority. Defendants cannot take refuge

7 in the sweeping authority of the federal government in immigration matters because “[t]he federal

8 power [regarding immigration] is exclusive only in regard to making a determination of who

9 should or should not be admitted in the country and the conditions under which a legal entrant 10 may remain.” Ortiz, 713 P.2d at 1069.11

11

EOIR’s proscription against providing legal advice to a pro se litigant also conflicts with

12 the Rules of Professional Conduct. EOIR’s interpretation requires that an attorney who advises a

13 client about how to fill out an immigration form must file a notice of appearance. But, if the

14 client does not want the attorney to reveal the assistance, or the client is not prepared to file the

15 form, EOIR again puts the attorney in an impossible position. The attorney is left only with

16 conflicting and untenable options: (i) file a notice of appearance, as required by EOIR, but face

17 discipline by the state bar for violating RPC 1.2 and 1.6, which allow for limited representation

18 and impose a duty of confidentiality; (ii) abide by the RPCs, but face disciplinary action from

19 EOIR for not filing a notice of appearance; or (iii) simply provide no legal assistance at all to any

20 pro se litigant who might have immigration concerns.

21

3. NWIRP Establishes Imminent and Irreparable Harm Absent an Injunction

22

EOIR does not dispute that constitutional violations per se result in irreparable harm.

23 Dkt. 37 at 19-20; see e.g. Elrod v. Burns, 427 U.S. 347, 373 (1976). Therefore, EOIR’s Rule

24 unlawfully restraining Plaintiffs’ First Amendment rights alone constitutes irreparable harm.

25 Moreover, Defendants do not dispute that third-party harm can support injunctive relief where a

26

11 Moreover, Defendants “uniformity” argument fails on their own admission that practitioners are required to

consult their own state bars to ensure their conduct is consistent with those rules, regardless of what the federal
27 government regulations permit. Dkt. 47 at 4 n.2. Defendants similarly acknowledge that they often rely on the

states to investigate and discipline any misconduct that occurs in immigration court. Dkt. 49 ¶ 11.

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1 special relationship exists. Dkt. 37 at 21, n.8. NWIRP has established that an injunction is

2 necessary to prevent significant harm to its ability to effectuate its mission, and to the immigrants

3 who would be deprived of NWIRP’s services. See id.at 21; Dkts. 39-2 – 39-21. This harm is

4 sufficient for the purposes of a preliminary injunction.

5

4. The Balance of Equities and Public Interest Strongly Favor a Preliminary

Injunction

6

Plaintiffs’ constitutional interests trump EOIR’s ever-changing justifications for the Rule.

7

Dkt. 37 at 22. Defendants’ proposed justifications for the Rule are not in the public interest.

8

Defendants claim that the Rule promotes judicial efficiency so that immigration judges can

9

identify the author of a filing in order to ask substantive questions, Dkt. 47 at 48; but, an

10

appearance requirement compelling full representation does not advance that justification beyond

11

what is achieved by NWIRP’s consistent practice of self-identifying, see Dkt. 21 at 6. EOIR

12

disingenuously claims NWIRP’s self-identification practice is insufficient because it does not

13

identify the specific attorney responsible for the brief. However, the record belies that claim:

14

EOIR identified one of the two NWIRP attorneys at issue in the cease-and-desist letter; in fact,

15

Ms. Barnes explicitly used Ms. Cheng’s name in the letter. See Dkt. 1-1 at 2. EOIR never

16

bothered to inquire as to which NWIRP attorney assisted with the other pro se motion.

17

EOIR does not rebut the evidence offered by Plaintiffs—including declarations from law

18

firms and legal service organizations, see e.g. Dkts. 39-2 – 39-34—that requiring full

19

representation and foreclosing limited representation will significantly curtail legal services to

20

immigrants, given the difficulty of withdrawing from that representation. The balance of equities

21

and public interest warrant preliminary injunctive relief.

22

C. EOIR’s Procedural Objections are Frivolous

23

Neither of the two procedural objections EOIR raises justifies denying preliminary relief.

24

First, the agency claims Plaintiffs should have directly challenged one of the agency’s rules of

25

procedure, 8 C.F.R. § 1003.17, in its Complaint. With no supporting authority, EOIR reasons that

26

the omission of this citation from the Complaint is a defect of such magnitude that it precludes

27

otherwise-warranted injunctive relief. “[T]he party who brings a suit is master to decide what law

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1 [it] will rely upon.” Hawaii ex rel. Louie v. HSBC Bank Nevada, N.A., 761 F.3d 1027, 1040 (9th

2 Cir. 2014). NWIRP’s complaint, its briefing on the prior motion for a TRO, and its present

3 motion all identify and explain how the challenged regulation—8 C.F.R. § 1003.102(t)—operates

4 in conjunction with the definitional language in 8 C.F.R. § 1001.1(i) and (k) to require a notice of

5 appearance by the practitioner, which in and of itself violates the First and Tenth Amendments

6 regardless of whether the practitioner is later permitted to withdraw. If EOIR is enjoined from

7 enforcing 8 C.F.R. § 1003.102(t), the harm will cease. On the other hand, § 1003.17 does not

8 require a notice of appearance based on protected out-of-court conduct, like advice-giving, but

9 rather regulates attorney conduct only when the immigrant “is represented” in a “proceeding

10 before an Immigration Judge.” As NWIRP has explained, when it provides limited assistance to

11 immigrants, it does not agree to (and it does not) represent those immigrants in proceedings

12 before an immigration judge. Therefore, § 1003.17 is not at issue here.

13

Second, EOIR contends Plaintiffs’ claims are unripe because Plaintiffs “have not offered

14 any evidence that they have ever attempted to withdraw from a case, much less been denied the

15 opportunity to do so by an immigration judge.” Dkt. 47 at 15. In other words, EOIR believes

16 NWIRP must suffer the harm it seeks to avoid before it can challenge the Rule’s validity.

17 Unsurprisingly, the law requires no such thing. “One does not have to await the consummation of

18 threatened injury to obtain preventive relief. If the injury is certainly impending, that is

19 enough.” Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S.

20 190, 201 (1983). Plaintiffs filed an unchallenged declaration “based on personal knowledge”

21 attesting that withdrawal from immigration cases is not permitted except in exceptional

22 circumstances. See Dkt. 4 ¶ 6 (“If an attorney enters a notice of appearance, the immigration

23 court does not allow the attorney to withdraw from the case at a later stage absent exceptional

24 circumstances.”). EOIR does not dispute the truth of that; to the contrary, it concedes it by citing

25 to its own precedent. Dkt. 47 at 14.

26

27

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1 D. The Preliminary Injunction Should Provide Nationwide Relief

2

Defendants do not contest Plaintiffs’ request for relief on a nationwide basis given that

3 “[t]here is no general requirement that an injunction affect only the parties in the suit.” Bresgal v.

4 Brock, 843 F.2d 1163, 1169 (9th Cir.1987) (nationwide permanent injunction requiring Secretary

5 of Labor to enforce migrant workers protection act). Nationwide relief should be granted here for

6 several reasons:

7

First, “[w]here a party brings a facial challenge ... a nationwide injunction is

8 appropriate.” Texas v. United States, 2016 WL 7852330 at * 3 (N.D. Tex. Nov. 20, 2016); Nat’l

9 Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1407–08 (D.C. Cir. 1998)

10 (invalidating rule and enjoining nationwide application); Harmon v. Thornburgh, 878 F.2d 484,

11 495 n.21 (D.C. Cir. 1989) (“When … agency regulations are unlawful, the ordinary result is that

12 the rules are vacated—not that their application to the individual petitioners is proscribed.”).

13

Second, nationwide relief is appropriate in matters of immigration law and policy to

14 ensure nationwide uniformity. Texas v. United States, 809 F.3d 134, 187–88 (5th Cir. 2015)

15 (nationwide injunction upheld because “immigration laws of the United States should be enforced

16 vigorously and uniformly”). An “injunction is not necessarily made over-broad by extending

17 benefit or protection to persons other than prevailing parties in the lawsuit—even if it is not a

18 class action—if such breadth is necessary to give prevailing parties the relief to which they are

19 entitled.” Bresgal, 843 F.2d at 1170–71 (emphasis in original).

20

Third, Plaintiffs offer uncontested evidence that EOIR’s interpretation of the rule is

21 chilling the speech of other organizations providing similar direct legal representation services to

22 immigrants. Dkts. 39-2 – 39-21. A narrow injunction applying only to Plaintiffs would not cure

23 the constitutional defects in the regulation. Nat’l Mining Ass’n, 145 F.3d at 1409.

24

III. CONCLUSION

25

NWIRP respectfully asks this Court to convert the temporary restraining order into a

26 preliminary injunction, allowing NWIRP and others to continue providing vital legal assistance to

27 unrepresented immigrants while this lawsuit is pending.

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1 DATED this 30th day of June, 2017. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
REPLY IN SUPPORT OF PLFS.’ MOT. FOR PRELIMINARY INJUNCTION (No. 2:17-cv-00716-RAJ) – 19

DAVIS WRIGHT TREMAINE LLP Attorneys for Northwest Immigrant Rights Project
By s/Jaime Drozd Allen Michele Radosevich, WSBA #24282 Jaime Drozd Allen, WSBA #35742 James Harlan Corning, WSBA #45177 Robert E. Miller, WSBA #46507 Laura-Lee Williams, WSBA #51358 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 Telephone: (206) 622-3150 Fax: (206) 757-7700 E-mail: micheleradosevich@dwt.com jaimeallen@dwt.com jamescorning@dwt.com robertmiller@dwt.com lauraleewilliams@dwt.com
NORTHWEST IMMIGRANT RIGHTS PROJECT Matt Adams, WSBA #28287 Glenda M. Aldana Madrid, WSBA # 46987 Leila Kang, WSBA #48048 615 2nd Avenue, Suite 400 Seattle, WA 98104-2244 Phone: (206) 957-8611 Fax: (206) 587-4025 E-mail: matt@nwirp.org
glenda@nwirp.org leila@nwirp.org
Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 52 Filed 06/30/17 Page 25 of 26

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CERTIFICATE OF SERVICE

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I hereby certify that on June 30, 2017, I caused the following to be filed using CM/ECF

3 which will cause a copy to be sent to the following:

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Attorneys for Defendants Jefferson B. Sessions, III; United States Department of

5 Justice; Executive Office for Immigration Review; Juan Osuna; Jennifer Barnes

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Carlton Frederick Sheffield

Gisela A. Westwater

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Gladys M. Steffens Guzman

Victor M. Mercado-Santana 8

carlton.f.sheffield@usdoj.gov gisela.westwater@usdoj.gov Gladys.Steffens-Guzman@usdoj.gov victor.m.mercado-santana@usdoj.gov

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Attorneys for Amicus Attorney General of Washington

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Patricio A. Marquez

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PatricioM@atg.wa.gov chamenew@atg.wa.gov colleenm1@atg.wa.gov marshac@atg.wa.gov

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Attorneys for Amicus American Civil Liberties Union of Washington (ACLU)

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Andrew Garcia Murphy

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Michael J. Ewart

agm@hcmp.com brenda.partridge@hcmp.com
jake.ewart@hcmp.com angie.perkins@hcmp.com

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Attorneys for Amicus Fred T. Korematsu Center for Law and Equality

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Benjamin D. Greenberg

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Sarah Cox

22 Tzu-Huan Augustine Lo
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greenberg.ben@dorsey.com johnston.natasha@dorsey.com
cox.sarah@dorsey.com, johnston.natasha@dorsey.com
lo.augustine@dorsey.com johnston.natasha@dorsey.com

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Shawn J. Larsen-Bright

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Robert Seungchul Chang

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larsen.bright.shawn@dorsey.com price.molly@dorsey.com
changro@seattleu.edu robert.bob.chang@gmail.com

CERTIFICATE OF SERVICE (No. 2:17-cv-00716-RAJ) – 1

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 52 Filed 06/30/17 Page 26 of 26

Zachary E. Davidson 1

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Melissa R. Lee

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DATED: June 30, 2017

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CERTIFICATE OF SERVICE (No. 2:17-cv-00716-RAJ) – 2

davidson.zach@dorsey.com, slavik.jackie@dorsey.com leeme@seattleu.edu By s/ James Harlan Corning James Harlan Corning, WSBA #45177
Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

 
 Case 2:17-cv-00716-RAJ Document 50 Filed 06/26/17 Page 1 of 26

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

NORTHWEST IMMIGRANT RIGHTS PROJECT (“NWIRP”), a nonprofit Washington public benefit corporation; and YUK MAN MAGGIE CHENG, an individual,
Plaintiffs,

CASE NO. 2:17-cv-00716

v.

JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States; UNITED STATES DEPARTMENT OF JUSTICE; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; JAMES MCHENRY,1 in his official capacity as Acting Director of the Executive Office for Immigration Review; and JENNIFER BARNES, in her official capacity as Disciplinary Counsel for the Executive Office for Immigration Review,

Defendants.

DECLARATION OF STEVEN LANG
I, STEVEN LANG, Program Director of the Office of Legal Access Programs (“OLAP”) for the U.S. Department of Justice, Executive Office for Immigration Review (“EOIR”), in Falls Church, Virginia, do hereby declare under penalty of perjury that the following statements are true and correct to the best of my knowledge, information, and belief:

1Under Federal Rule of Civil Procedure 25(d), current Acting Director of EOIR James McHenry is substituted for former Director Juan Osuna.
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1. I am the Program Director of the Office of Legal Access Programs (“OLAP”) within the Executive Office for Immigration Review (“EOIR”) in the Department of Justice (“DOJ”).
2. I have been OLAP Program Director since 2012. Prior to that, I served as the Coordinator of the EOIR Legal Orientation and Pro Bono Program since 2003, and as the Coordinator of the EOIR Pro Bono Program since April 2000. From May 1997 until February 2000, I served as the Attorney Coordinator of the American Bar Association’s South Texas Pro Bono Asylum Representation Project (ProBAR) in Harlingen, Texas. Prior to ProBAR, and since May 1994, I was in private practice in Houston, and was active in several pro bono efforts.
3. As OLAP Program Director, I manage the various programs and initiatives of OLAP, consisting of the Legal Orientation Program (LOP), Legal Orientation Program for Custodians (LOPC) of Unaccompanied Alien Children, Immigration Court Helpdesk (ICH), Self-Help Legal Centers, Model Hearing Program, National Qualified Representative Program, Recognition and Accreditation Program, List of Pro Bono Legal Service Providers, BIA Pro Bono Project, and other initiatives aimed to increase access to information and raise the level of representation for individuals appearing before the immigration courts and Board of Immigration Appeals. OLAP also provides technical advice and support to both immigration court staff and pro bono groups and other legal service providers to facilitate efforts to increase access to legal services for low income and indigent individuals. See https://www.justice.gov/eoir/office-oflegal-access-programs.
4. I have personal knowledge of the facts stated in this declaration and am competent to testify to the same.
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Overview 5. EOIR has increasingly encouraged and facilitated the provision of qualified and
responsible legal assistance to low income and indigent immigrant respondents before the immigration courts and the Board of Immigration Appeals (“BIA” or “Board”). EOIR primarily does this through OLAP. See 8 C.F.R. § 1003.0(f).
6. OLAP’s mission has long been to increase access to information and raise the level of representation for individuals appearing before the immigration courts and Board of Immigration Appeals (BIA). See https://www.justice.gov/eoir/office-of-legal-access-programs.
7. Raising the level of representation before the immigration courts and BIA means increasing both the availability and quality of that representation. The problem is “two-fold,” as Second Circuit Judge Robert Katzmann described.2
8. Increasing the availability of representation is vitally important. There is a critical and ongoing shortage of qualified legal representation for underserved populations in immigration cases before federal administrative agencies. See, e.g., 80 FR 59514, 59429 (Oct. 1, 2015); 81 FR 92358 (Dec. 19, 2016).
9. As described below, OLAP has taken significant steps to address this shortage through a number of initiatives: by reforming the Recognition and Accreditation Program to authorize greater numbers of non-attorney professionals to represent indigent and low income immigrants through recognized nonprofit organizations; creating and overseeing the National Qualified Representative Program (“NQRP”), which appoints counsel to represent detainees with serious mental disorders or defects in removal proceedings; and facilitating the expansion of pro bono representation through reforming the List of Pro Bono Legal Service Providers (which is
2 See Robert A. Katzmann, Innovative Approaches to Immigrant Representation: Exploring New Partnerships, 33 Cardozo L. Rev. 331, 332 (2011).
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given to every individual in immigration court proceedings), creating and overseeing the BIA Pro Bono Project, and promoting best practices (such as those included under the immigration courts’ 2008 “Guidelines for Facilitating Pro Bono Legal Services”) with immigration court staff and pro bono groups. Additionally, in 2014, with strong support from OLAP, EOIR made regulatory changes to allow for separate appearances (a.k.a. “limited representation”) in the specific context of custody and bond proceedings to encourage more attorneys and accredited representatives to represent respondents in those specific proceedings.
10. However, it is equally important to ensure the quality of representation for underserved populations in immigration cases. The historical problem of poor quality of representation in immigration courts and before the BIA; the particular vulnerability of immigrant populations, particularly low-income and/or limited English proficiency individuals; and the legal, financial, and emotional harm and exploitation perpetrated by notarios and other unauthorized individuals against vulnerable immigrant populations are all well-documented.
11. Accordingly, as EOIR has worked to increase the availability of representation for underserved populations in immigration cases, EOIR has also made certain that its initiatives at the same time raise the quality of representation provided. For example, as described below, the recently-implemented regulations governing the OLAP Recognition and Accreditation Program were designed not only to increase the capacity of current and new organizations to provide representation to low income and indigent individuals, but also to strengthen EOIR’s oversight of these organizations and their accredited representatives that provide representation, to ensure that qualified individuals are accredited and that once accredited, they continue to meet the standards for accreditation and EOIR professional conduct rules. In addition, EOIR has promulgated safeguards to protect the integrity of OLAP’s List of Pro Bono Legal Service Providers and to
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ensure that practitioners on it comply with EOIR professional conduct rules. Also, EOIR provides individuals interested in providing pro bono representation with the training and tools to do so competently and confidently, through initiatives to assist pro bono groups train pro bono attorneys such as the OLAP Model Hearing Program. And EOIR’s rule that implemented “limited representation” in the specific context of custody and bond proceedings strengthened safeguards to ensure disclosure of the scope of representation to immigration court respondents.
12. I describe below my concerns that an extension of the current temporary restraining order prohibiting enforcement of 8 C.F.R. § 1003.102(t) would harm respondents in proceedings before the immigration courts and the Board. This is because prohibiting enforcement of § 1003.102(t) would remove a key mechanism that enables EOIR to hold accountable attorneys and accredited representatives committing unethical and other sanctionable acts against vulnerable respondents, by requiring practitioners to identify themselves and accept responsibility under EOIR’s professional conduct rules, and disallowing “ghostwriting.” EOIR’s Efforts to Increase the Availability and Quality of Representation in Immigration Proceedings
Separate Appearances for Custody and Bond Proceedings 13. On October 1, 2015, EOIR promulgated a rulemaking that allowed a form of “limited representation”—i.e. separate appearances for custody and bond proceedings, as distinct from an immigration removal proceeding. See 80 FR 59,500 (October 1, 2015) (final rule); 79 FR 55659 (Sept. 17, 2014) (proposed rule); 77 FR 59567 (advance notice of proposed rulemaking).
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14. Custody and bond proceedings are legally separate and apart from removal and deportation proceedings under EOIR regulations.3 79 FR 55660, citing 8 CFR 1003.19(d); Matter of Guerra, 24 I&N Dec 37, 40 n.2 (BIA 2006); Matter of R–S–H-, 23 I&N Dec 629, 630 n.7 (BIA 2003).
15. The rulemaking amended EOIR regulations to allow a representative before EOIR to enter an appearance in custody and bond proceedings without such appearance constituting an entry of appearance for all of the individual’s proceedings before the Immigration Court. 80 FR 59,500.
16. The rule was intended to encourage more attorneys and accredited representatives to agree to represent individuals who would otherwise appear pro se at their custody and bond proceedings. Id. Statements by public interest groups, such as the American Immigration Lawyers Association (AILA), and comments received in response to the advance notice of proposed rulemaking, indicated that increased representation was likely to happen, including by pro bono counsel. 79 FR 55660.
17. EOIR regulations still require representatives to file a notice of entry of appearance in a custody and bond proceeding. However, representatives can now indicate whether they are entering an appearance for custody and bond proceedings only. 79 FR 5566061.
18. Multiple rationales for the rule specifically supported limited representation in separate custody and bond proceedings for detained respondents.
3 Similarly, because an appeal to the Board of Immigration Appeals is also a separate proceeding, a practitioner can file a notice of appearance to the Board without being required to continue representation on remand to immigration court or appeal to the Circuit. See 8 C.F.R. 1003.38(g).
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19. Because custody and bond proceedings are legally separate and apart from removal and deportation proceedings under EOIR regulations (as noted above), EOIR required a Notice of Entry of Appearance to be filed separately for different types of proceedings, with a representative of record required to represent a respondent in all aspects of each separate type of proceeding, unless the Immigration Court grants a motion to withdraw or substitute counsel. 70 FR 55,660.
20. Additionally, detained respondents were less likely to be represented in immigration proceedings. 79 FR 55659-60. EOIR found that public benefits of the rule included “increased representation of detained individuals... the amendment will make it easier for individuals who may not be able to afford to hire an attorney for all of their proceedings before the Immigration Court to at least be able to be represented during their custody and bond proceedings.” 80 FR 59,501.
21. EOIR declined to expand the rule to allow for limited appearances within a removal proceeding, such as for motions to reopen, motions for change of venue, or motions to remand. 80 FR 59,500; see also Matter of Velasquez, 19 I&N Dec. 377, 384 (BIA 1986) (holding that under INS regulations a representative cannot enter a “limited” appearance in removal proceedings).
22. EOIR noted concerns from commenters that a practitioner adequately explain the scope of his or her representation to his or her client, and obtained his or her client’s consent to the limited representation. 80 FR 59,501. EOIR, to ensure that respondents would be aware of the limited scope of representation, reiterated that a check box on the EOIR-28 requires the practitioner to attest to the client’s consent, and added language to clarify that EOIR’s
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disciplinary rules and procedures apply to practitioners entering an appearance before EOIR, including a limited appearance for custody and bond proceedings. Id.
Recognition and Accreditation Program 23. OLAP’s Recognition and Accreditation Program authorizes non-lawyer representatives of non-profit religious, charitable, social service, or similar organizations to represent persons in proceedings before EOIR and the Department of Homeland Security (DHS).4 See https://www.justice.gov/eoir/recognition-and-accreditation-program. 24. As of June 19, 2017, there are 948 recognized organizations, with 1,806 accredited representatives. 25. EOIR recently amended the regulations governing the Recognition and Accreditation Program in 2016, with the amendments effective on January 18, 2017. 81 Fed. Reg. 92346 (Dec. 19, 2016) (final rule); 80 Fed. Reg. 59514 (Oct. 1, 2015) (proposed rule); 77 FR 9590 (Feb. 17, 2012) (notice of two public meetings and request for comments). 26. The purpose of EOIR’s rule was twofold—to increase the availability of representation for immigrants in proceedings, while ensuring the quality of such representation. 27. As EOIR stated, the purpose was “to promote the effective and efficient administration of justice before . . . EOIR by increasing the availability of competent non-lawyer representation for underserved immigrant populations”— while balancing “the potential increased availability of recognized organizations and accredited representatives with greater oversight and accountability for recognized organizations and accredited representatives.” 80 Fed. Reg. 59514; see also id. at 59616 (stating the “express purpose of increasing capacity while
4 Accreditation of non-lawyers affiliated with organizations to represent respondents in immigration proceedings has existed since the 1950s. See, e.g., 23 FR 2672 (Apr. 23, 1958); 40 FR 23271 (May 19, 1975); 49 FR 44084 (Nov. 2, 1984).
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maintaining adequate standards”). EOIR sought “to increase the availability of qualified representation for primarily low-income and indigent persons while protecting the public from fraud and abuse by unscrupulous organizations and individuals.” Id. at 59514.
28. The rule pointed out that “legal, financial, and emotional harm and exploitation perpetrated by notarios and other unauthorized individuals against vulnerable immigrant populations is well-documented.” Id. EOIR also stated that its rule would assist federal interagency, state and local, and private efforts to address notario fraud and the unauthorized practice of law “by seeking to increase the number of recognized organizations and the availability of authorized and qualified immigration practitioners for underserved persons, which, in turn, should reduce the likelihood that such persons become the victims of immigration scams involving the unauthorized practice of law.” Id. at 59514-15 & ns. 2-5.
29. To accomplish its goals, EOIR’s rule clarified the recognition and accreditation (“R&A”) application processes, established greater oversight and accountability for recognized organizations and accredited representatives, and enhanced the management of the R&A roster.
30. Oversight and accountability of recognized organizations and accredited representatives remains essential. Accredited representatives must be affiliated with a recognized nonprofit or similar organization.5 See 8 C.F.R. §§ 1292.11, §1292.12. But regrettably, not all accredited representatives affiliated with recognized nonprofit organizations provide competent representation, sometimes to the harm of their clients.
31. For example, in 2011, the Board of Immigration Appeals, which previously oversaw accreditation of representatives, declined to renew the accreditation of Robert “Father
5 Specifically, the organization must be a “non-profit religious, charitable, social service, or similar organization that provides immigration legal services primarily to low-income and indigent clients within the United States, and, if the organization charges fees, has a written policy for accommodating clients unable to pay fees for immigration legal services,” and a “Federal tax-exempt organization established in the United States.” 8 C.F.R. § 1292.11(a).
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Bob” Vitaglione, chairman of the organization Comité Nuestra Senora de Loreto Sobre Asuntos de Inmigracion Hispana, based in Brooklyn, New York. See In re Reverend Robert Vitaglione (BIA 2011), attached as Exhibit 1, and available at https://www.justice.gov/sites/default/files/eoir/legacy/2012/06/12/BIA_decision_5-6-12.pdf.
32. Father Bob had been an accredited representative for decades. However, by 2010, Father Bob was representing respondents in over 800 cases, and had failed to appear or appeared unprepared in roughly a third of his non-detained cases in immigration court. The BIA also found several specific examples of ineffective assistance of counsel.
33. The BIA noted Father Bob’s “good intentions,” and its “respect [for his] dedication to his vocation.” But, the BIA found that it could not “excuse his failings as an accredited representative or overlook the impact his performance has had on the low-income and indigent aliens who have relied upon his services.” And, while the BIA appreciated the “need for pro bono and low cost representation,” the “potential unavailability of alternate representation does not relieve Rev. Vitaglione of his responsibility to provide competent representation in each case he accepts.”
34. Additionally, on March 27, 2017, the Board suspended accredited representative Gloria Saucedo from practice before DHS. See Exhibit 2, In re Gloria Dora Saucedo, D20160313 (BIA 2017), also available at https://www.justice.gov/sites/default/files/pages/attachments/2017/03/28/saucedoimmediatesusp ensionorder.pdf. Saucedo was convicted in a California court for engaging in unauthorized practice of law for many years, before she became an accredited representative affiliated with Hermandad Mexicana Transnacional in 2015. Also, on May 24, 2017, OLAP terminated the accreditation of Ali Paula. See Exhibit 3 (April 20, 2017, letter to Open Arms Community
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Center); Exhibit 4 (May 24, 2017, letter to Open Arms Community Center terminating accreditation). Paula was permanently enjoined by the Supreme Court of Florida on October 22, 2015, for engaging in the unlicensed practice of law in Florida, before Paula was approved as an accredited representative on December 10, 2015. Additionally, OLAP placed Paula’s sponsoring organization, Open Arms Community Center, on inactive status, since Paula was its only accredited representative.
35. Cases like Father Bob’s, Gloria Saucedo’s, Ali Paula’s and others show a compelling need for sufficient oversight of representatives in immigration court and before the BIA, even those representatives affiliated with nonprofit organizations with a demonstrated commitment to helping immigrants. Sometimes, representatives lose the capacity to competently or ethically represent respondents to the detriment of their clients, or are convicted of crimes or disciplined by state bar authorities.
36. Additionally, the rule updates the disciplinary process to ensure that recognized organizations, not only their accredited representatives, are subject to disciplinary sanctions for conduct contrary to the public interest. See 81 FR 92356; 8 C.F.R. § 1292.19
37. For example, in Matter of Baptist Educational Center, 20 I&N Dec. 723 (BIA 1993), the Board withdrew an organization’s recognition because the organization was engaging in for-profit referrals and fee sharing with private counsel.
Programs to Facilitate Pro Bono Representation 38. List of Pro Bono Legal Service Providers. OLAP administers the List of Pro Bono Legal Service Providers (the “List”). The List is central to EOIR’s efforts to improve the level and quality of representation before its adjudicators, and it is an essential tool to inform individuals in proceedings before EOIR of available pro bono legal services. See https://www.justice.gov/eoir/list-pro-bono-legal-service-providers.
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39. The List is provided to all pro se individuals in immigration court proceedings. The List contains information on recognized non-profit or similar organizations that provide immigration legal services, other organizations providing pro bono services, pro bono referral services that refer individuals in immigration court proceedings to pro bono counsel, and private attorneys who have committed to providing at least 50 hours per year of pro bono legal services before the immigration court location where they appear on the List, where other organizations or pro bono referral services are not available. 8 C.F.R. § 1003.62. The List can be found at https://www.justice.gov/eoir/file/probonofulllist/download.
40. The regulations governing the List “aim to ensure that private attorneys on the List, and attorneys and accredited representatives who provide pro bono legal services for organizations on the List, satisfy EOIR's professional conduct standards.”6 79 FR at 55664.
41. To address these concerns, the regulations require pro bono attorneys and accredited representatives to certify under penalty of perjury that they are not subject to a disbarment order under § 1003.101(a)(1) or suspension under § 1003.101(a)(2). See 79 FR 55664; 8 CFR §§ 1003.62(a)(3), (b)(4), (d)(1). This practice is consistent with the declarations under penalty of perjury on EOIR’s notice of appearance forms that the practitioner consents to EOIR’s professional conduct rules. Id. at 55664.
42. Additionally, concerns had been expressed to the government and by the public that, for example, attorneys on the List were improperly advertising or soliciting for paying clients, or were misleading respondents as to their true willingness to provide pro bono services. 79 FR at 55664, 55666. The regulations now include provisions for termination from the pro bono list for such misconduct. 8 C.F.R. § 1003.65.
6 EOIR’s final rulemaking reiterated that “the existing EOIR disciplinary rules… are applicable to all attorneys and accredited representatives appearing before EOIR on behalf of any client.” 80 FR 59506 n. 8.
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43. Related to this lawsuit, EOIR’s final rulemaking regarding the List distinguished attorneys and accredited representatives “who will represent clients pro bono before EOIR,” from attorneys and accredited representatives “who will not enter appearances with EOIR, but who will perform [other] pro bono legal services in cases pending before EOIR other than representing clients,” such as “conducting an intake interview.” 80 FR 59507 & n. 13; 8 CFR § 1003.63(b)(2). This position is consistent with the definition of “representation” before immigration courts and the Board at 8 C.F.R. §§ 1.1(m) and 1001.1(m), which includes “practice” and “preparation” as defined in 8 C.F.R. §§ 1.1(i), (k) and 1001.1(i), (k), and my related 2011 Memorandum analyzing activities provided under the Legal Orientation Program (LOP) that do not constitute “representation,” provided in this lawsuit at Dkt #14, Ex. B, and described further below at ¶¶ 66-69. Specifically, this position in EOIR’s rulemaking regarding the List further supports that conducting an intake interview does not constitute “practice” and “preparation” as defined in 8 C.F.R. §§ 1001.1(i) and (k), and thus does not trigger a requirement to file a notice of entry of appearance under 8 C.F.R. § 1003.102(t).
Facilitating Pro Bono Representation in Immigration Court. 44. OLAP plays a key role in facilitating the provision of pro bono representation in
immigration courts around the country. 45. A 2008 memorandum by the Office of the Chief Immigration Judge (“OCIJ”),
Guidelines for Facilitating Pro Bono Legal Services, OPPM 08-01 (March 10, 2008), Exhibit 5, and available at https://www.justice.gov/sites/default/files/eoir/legacy/2008/04/24/08-01.pdf, provides guidance on how immigration courts and court administrators can encourage and facilitate pro bono legal services for respondents.
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46. As the 2008 memorandum sets out, “[p]ro bono representation benefits both the respondent and the court, providing respondents with welcome legal assistance and the judge with efficiencies that can only be realized when the respondent is represented.” OPPM 08-01, at 2.
47. The 2008 memorandum directs the designation of a “pro bono liaison judge” in each immigration court, who represents the judges of that court in interactions with outside entities regarding matters involving pro bono representation. OLAP interacts with the pro bono liaison judges around the country to facilitate the provision of pro bono legal assistance in each court. Every year, OLAP either meets with the judges as a group, or conducts a series of conference calls with the pro bono liaison judges in each court in order to familiarize each judge with their roles and scope of duties in facilitating access to pro bono legal services. One of these duties is to meet regularly with local pro bono legal service providers to discuss these issues. Id. at 3.
48. Additionally, the 2008 memorandum sets out guidance to take into account “the particular needs of pro bono representatives,” including by denoting and tracking their pro bono appearance, giving pro bono representatives priority scheduling, encouraging flexibility in appearing by telephone or videoconference, encouraging pre-hearing statements and pre-hearing conferences, making court records available to pro bono organizations and representatives, and strongly encouraging the facilitation of pro bono representation whenever minors are involved..
49. The 2008 memorandum also recognizes that while it “is incumbent on every judge to facilitate pro bono representation,” “[e]qually important, however, is that every judge must be careful to stay within the bounds of ethics and propriety.” Id. at 6.
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50. Facilitating Pro Bono Representation at the BIA (the BIA Pro Bono Project). OLAP also administers the BIA Pro Bono Project, which helps to provide pro bono representation in appropriate cases to respondents with case appeals before the Board. See https://www.justice.gov/eoir/bia-pro-bono-project.
51. EOIR assists in identifying potentially meritorious case appeals based upon criteria determined by the partnering volunteer groups. Once cases are identified and reviewed, their summaries are then distributed via e-mail to pro bono representatives across the United States. Volunteers who accept a case under the Project receive a copy of the file, as well as additional time to file the appeal brief.
52. Since its start, the BIA Pro Bono Project has succeeded in securing pro bono counsel for well over 1,100 individuals around the country.
Model Hearing Program 53. The Model Hearing Program (“MHP”) is an educational program coordinated by OLAP, to improve the quality of advocacy before the immigration courts, as well as to increase levels of pro bono representation. See https://www.justice.gov/eoir/model-hearing-program. 54. The program, implemented in 2001, provides hands-on immigration court training and is designed for attorneys, accredited representatives, law students, and law school graduates with little or no experience in immigration removal proceedings, who are interested in representing indigent immigrants on a pro bono basis in the immigration court. 55. OLAP facilitates coordination of the MHP between a sponsoring non-profit organization and an immigration court, and provides technical assistance where needed. Substantive training in a specific area of immigration law is provided by the non-profit organization sponsoring the MHP. This is followed by a model hearing presided over by an immigration judge from the local immigration court. The in-court model hearing focuses on
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practice, procedure and advocacy skills. Participants commit to a minimal level of pro bono representation throughout the year, and may receive training materials and CLE credit. Since 2001, there have been well over 100 Model Hearings conducted.
National Qualified Representative Program 56. In April 2013, EOIR collaborated with the Department of Homeland Security’s Immigration and Customs Enforcement (“ICE”) agency to initiate a new nationwide policy to provide enhanced procedural protections, including competency inquiries in immigration court, mental health examinations, and bond hearings to certain unrepresented and detained respondents with serious mental disorders or conditions that may render them incompetent to represent themselves in immigration proceedings. See https://www.justice.gov/eoir/nationalqualified-representative-program-nqrp. 57. As part of the Nationwide Policy’s enhanced procedural protections, EOIR launched the National Qualified Representative Program (“NQRP”), a nationwide program to provide Qualified Representatives (“QRs”) to certain unrepresented and detained respondents who are found by an Immigration Judge or the BIA to be mentally incompetent to represent themselves in immigration proceedings. EOIR carries out the NQRP through a contract with the Vera Institute of Justice and local subcontracting legal service organizations to provide QRs where required. 58. The NQRP followed a federal district court ruling, Franco-Gonzalez v. Holder, 2013 WL 3674492 (C.D. Cal. Apr. 23, 2013), which found that the Rehabilitation Act required the appointment of a qualified representative to detainees determined to be incompetent to represent themselves due to a serious mental disorder or defect. Since April, 2013, over 800 qualified representatives have been appointed.
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Increasing Access to Legal Information for Pro Se Immigrants 59. OLAP also implements several initiatives to increase access to information for
individuals appearing before the immigration courts and Board of Immigration Appeals (BIA). These initiatives are described below.
Legal Orientation Program (LOP) 60. Since 2003, OLAP has carried out the Legal Orientation Program (LOP) to improve judicial efficiency and assist all parties in adult detained removal proceedings – unrepresented detained adults, the immigration court, Immigration and Customs Enforcement (ICE) and the detention facility. The LOP currently operates in 39 ICE detention facilities. See https://www.justice.gov/eoir/legal-orientation-program. 61. Through the LOP, representatives from nonprofit organizations provide comprehensive explanations about immigration court procedures along with other basic legal information to large groups of detained individuals 62. The program is normally comprised of four components: (1) Group Orientations, which provide an interactive general overview of immigration proceedings, individual responsibilities, and available legal options , and are open to general questions; (2) Individual Orientations, where unrepresented individuals can briefly discuss their cases with experienced LOP providers and pose more specific questions; (3) Self-help Workshops, where those interested in pursuing various legal relief options or those who wish to voluntarily depart the country, are provided classroom-style training on specific topics (such as how to complete an asylum application or prepare for a bond hearing), and given self-help legal materials; and (4) Referral to Pro Bono Legal Services, where available. 63. In 2016, across the United States, the LOP served 42,610 detained individuals in INA § 240 removal proceedings, and an additional 10,376 individuals in other immigration
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proceedings. Additionally and specifically, 16,094 individuals were provided individual orientations, 18,744 individuals were provided self-help workshops, and 1,508 individuals were referred to pro bono legal counsel.
64. Specifically, in the Tacoma Immigration Court, where NWIRP is the sole provider of the LOP program, the LOP served 2,835 detained individuals in INA § 240 removal proceedings, and an additional 596 individuals in other immigration proceedings. Additionally and specifically, 1,468 individuals were provided individual orientations, 126 individuals were provided self-help workshops, and 142 individuals were referred to pro bono legal counsel.
65. Experience has shown that the LOP has had positive effects on the immigration court process: detained individuals make more timely and better-informed decisions and are more likely to obtain representation; non-profit organizations reach a wider audience of people with minimal resources; and, cases are more likely to be completed faster, resulting in fewer court hearings and less time spent in detention.
2011 Memorandum Distinguishing Orientation from Representation 66. On July 11, 2011, I issued a memorandum (“2011 Memorandum”), entitled “Legal Orientation Program: Guidelines—Orientation vs. Representation,” setting forth guidance in distinguishing between services considered ‘legal representation’ and those considered ‘legal orientation’ for individuals providing contract services through the LOP.7 This memorandum is attached as Exhibit 6 (and was previously Exhibit B to Defendant’s Opposition to Plaintiffs’ Motion for Temporary Restraining Order, filed May 11, 2017 (Dkt #14-2, Ex. B)). I issued the guidance memo to the Vera Institute, EOIR’s contractor for the LOP, with the purpose that Vera
7 The memorandum was issued to Oren Root, Director of the Center on Immigration and Justice at the Vera Institute of Justice. Vera Institute of Justice is the contractor for the Legal Orientation Program, and carries out LOP work through individual task orders issued to subcontractors, such as NWIRP.
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Institute would incorporate this guidance into their subcontract agreements with local LOP providers (including NWIRP). I understand that this guidance has been part of every subsequent LOP subcontract.
67. The 2011 Memorandum is relevant to this lawsuit because it analyzes whether certain activities fall under the definition of “representation,” see 8 C.F.R. §§ 1.1(m), 1001.1(m)—which, like 8 C.F.R. § 1003.102(t)(1), cross-references the terms “practice” and “preparation” as defined in 8 C.F.R. § 1.1(i), (k), and § 1001.1(i), (k), respectively.8 Thus, activities that do not constitute “representation” under 8 C.F.R. § 1.1(m) or § 1001.1(m) should also not trigger the notice of appearance requirement under 8 C.F.R. § 1003.102(t).
68. In my 2011 Memorandum, I analyzed and set forth a list of activities that did not constitute “representation.” These activities include:
a. Group orientations. Because a group orientation “is informational and nonspecific to any particular individual’s case,” and “should cover general areas of law and procedure, and familiarize individuals with their legal rights, responsibilities and options in general terms,” it is “not considered representation.” 2011 Memorandum at 2-3.
b. Individual orientations. I concluded that a LOP presenter “may respond to specific concerns/questions of an individual, generally educating the individual in law and applicable procedure, as well as in the requirements for pursuing particular forms of relief,” but should not “give legal advice concerning the individual’s specific case.” Id. at 3-4. However, I noted that “LOP providers
8 Compare 8 C.F.R. § 1001.1(m) (“The term representation before the Board and the Service includes practice and preparation as defined in paragraphs (i) and (k) of this section.”) with 8 C.F.R. § 1003.102(t) (failure to submit notice of entry of appearance is misconduct “when the practitioner: (1) Has engaged in practice or preparation as those terms are defined in §§ 1001.1(i) and (k)”).
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should familiarize themselves with their respective State Bar rules regarding actions which may form the basis of an attorney-client relationship.” Id. at 3 n. 4. c. Distribution of materials. I concluded that LOP presenters could distribute materials “relating to how a particular type of legal relief may be pursued, or standard sample motions and briefs,” but could not perform the “preparation and/or provision of any case-specific written materials (i.e., those created or specifically tailored to the individual’s particular circumstances).” Id. at 6. d. Assistance in obtaining documents. I concluded that "assistance in obtaining documents does not constitute representation," but such assistance should “only be provided to unrepresented individuals who have independently determined that such documents are necessary for their immigration case, and who have made all diligent efforts to obtain these materials themselves.” Id. at 6-7. e. Assistance in Completing Legal Forms. I stated that “LOP presenters may assist unrepresented LOP participants with completing immigration forms,” but cautioned that “LOP presenters should only provide such services in adherence to the guidelines” regarding individual orientations, and set forth additional guidelines, including that a presenter “may not advise the individual on how to answer a question based on a participant’s particular factual situation and the applicable law.” Id. at 7. 69. Plaintiffs in this lawsuit, and Plaintiffs’ declarants, allege that many of these activities described in ¶ 68 trigger the notice of appearance requirement under 8 C.F.R. § 1003.102(t), under what Plaintiffs allege is an “all-or-nothing” or “compulsory representation rule.” This is misleading and inaccurate. Under the analysis in my 2011 memorandum, these
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activities described in ¶ 68 that do not constitute “representation” under 8 C.F.R. § 1.1(m) or § 1001.1(m) also should not trigger the notice of appearance requirement under 8 C.F.R. § 1003.102(t).
Legal Orientation Program for Custodians of Unaccompanied Alien Children (LOPC) 70. The Legal Orientation Program for Custodians of Unaccompanied Alien Children (LOPC) provides legal orientation presentations to the adult caregivers (custodians) of unaccompanied children in EOIR removal proceedings. See https://www.justice.gov/eoir/legalorientation-program-custodians-unaccompanied-alien-children. 71. The purpose of LOPC is to inform the children’s custodians of their responsibilities in ensuring the child's appearance at all immigration proceedings, as well as protecting the child from mistreatment, exploitation, and trafficking, as provided under the Trafficking Victims Protection Reauthorization Act of 2008. EOIR works with the Department of Health and Human Services, Office of Refugee Resettlement, and non-government partners to carry out this program nationally. 72. Specifically, the LOPC educates custodians on the immigration court process and how it works; the importance of the children’s attendance at removal hearings and consequences of failure to appear; the forms of immigration relief available to children in removal proceedings; and the custodians’ responsibility to protect the children from mistreatment, exploitation, and human trafficking. 73. Similar to the LOP, through the LOPC representatives from nonprofit organizations provide comprehensive explanations about immigration court procedures along with other basic legal information to groups of individuals made up of custodians, the children in their care, and other family members. The program is comprised of four components: (1) Group
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Orientations, (2) Individual Orientations, (3) Self-help Workshops, and (4) Referral to Pro Bono Legal Services, where available.
74. The LOPC is currently operating in 15 immigration court sites. In FY2016, the LOPC served the custodians of roughly 20,000 children who were released from federal custody and scheduled for immigration court hearings. The LOPC also operates the National LOPC Call Center to provide LOPC scheduling assistance, telephonic orientations, and other basic legal information to custodians of children who cannot attend a live LOPC.
Immigration Court Help Desk (ICH) 75. OLAP also oversees Immigration Court Helpdesks at immigration court locations in order to orient non-detained individuals appearing before the immigration court on the removal hearing process, and provide information to inform them about possible remedies and legal resources. The ICH provides in-person information sessions, self-help assistance to individuals without counsel, and information on available pro bono resources to unrepresented individuals. The ICH was launched in Summer 2016 at five immigration courts: Chicago; Los Angeles; Miami; New York City; and San Antonio. The self-help assistance provided by the ICH includes user-friendly legal materials and basic training on self-representation through group workshops. Self-Help Legal Centers 76. Self Help Legal Centers, currently in place within 21 immigration courts, provide general written legal information as well as specific written information about the local immigration court to pro se respondents and other interested parties. See https://www.justice.gov/eoir/self-help-materials. 77. The centers provide user-friendly fill in the blank forms, including change of address and fee waiver forms, as well as self-help packets on various forms of relief, including
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Asylum, Cancellation Removal, and Voluntary Departure, and answers to frequently asked questions about the local immigration court.
78. Self-Help Legal Centers can facilitate respondents’ access to legal information, which in turn can increase court efficiency and improve outcomes in the immigration courts. As described in EOIR OPPM 08-01, materials provided at Self Help Legal Centers “have the ability to increase respondents’ understanding of immigration laws, removal proceedings, and the implications of their pleadings.” Respondents who have access to basic information require less assistance from court staff and are better prepared when they appear before an immigration judge. In addition, immigration judges can directly refer unrepresented respondents to the centers and the respondent can then obtain accurate and helpful information. Concerns Regarding Temporary Restraining Order
79. As described above, since 2000, EOIR has developed and promoted a variety of programs and initiatives to assist indigent and low income immigrants with matters before the agency. Many of these efforts have involved working closely with nonprofit organizations, bar associations, private attorneys and other entities to help design innovative approaches to expand access to legal services – everything from basic legal information to intensive pro se assistance and appointment of legal counsel. Many thousands of individuals are effectively served every year through self-help/pro se assistance efforts operating in full compliance with federal regulations.
80. I am concerned that, respectfully, if this Court extended the current temporary restraining order that prohibits enforcement of 8 C.F.R. § 1003.102(t) into a preliminary injunction, doing so would harm many immigrants in proceedings before EOIR and the Board. This is because prohibiting enforcement of § 1003.102(t) would remove a key mechanism that enables EOIR to hold accountable attorneys and accredited representatives committing unethical
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and other sanctionable acts against vulnerable respondents, by requiring practitioners to identify themselves and accept responsibility under EOIR’s professional conduct rules, and disallowing “ghostwriting.”
81. For example, unscrupulous, unethical, or incompetent practitioners would no longer be subject to discipline for hiding their identity through the practice of ghostwriting. Such practitioners could exploit a vulnerable foreign national respondent by charging for unnecessary and/or frivolous legal services, such as in pursuing legal relief that the immigrant is not eligible for, or in writing a legal brief that harms rather than helps the client’s interests with little to no accountability for their actions. I am particularly concerned because ghostwriting is a tool by which unscrupulous attorneys, so called “jailhouse” lawyers, notarios and others committing the unauthorized practice of law commonly evade accountability for their actions.
82. Additionally, vulnerable respondents may be confused as to the scope of representation provided by a practitioner, and then appear at immigration proceedings expecting a lawyer who does not appear, resulting in the respondent having to proceed without legal assistance he or she thought would be provided, and additional continuances, delay, or an order of removal. Or, unscrupulous practitioners may take advantage of that confusion by charging the immigrant respondent for a full case when the practitioner has no intention of representing the respondent throughout. Relatedly, such unscrupulous practitioners could hide these activities from accountability through ghostwriting.
83. Or, practitioners would no longer be required to attest under penalty of perjury their compliance with EOIR’s professional conduct rules, including rules that require disclosure of the scope of representation to the respondent. (Notably, when EOIR instituted limited
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representation in custody and bond proceedings, EOIR added language to this attestation as a safeguard. 80 FR 59,501.)
84. While most nonprofit organizations like NWIRP are not unscrupulous organizations, and most nonprofit organizations do not employ unscrupulous practitioners, the current 8 C.F.R. § 1003.102(t) does not carve out nonprofit organizations or their practitioners from its coverage. Accordingly, if enforcement of 8 C.F.R. § 1003.102(t) continued to be enjoined, any practitioner could take advantage of EOIR’s non-enforcement to evade accountability for his or her actions. In any case, 8 C.F.R. § 1003.102(t) remains essential to ensure identification of the few practitioners from nonprofit organizations who become incompetent or unethical, as such practitioners can still have a harmful impact on a large number of people, as Father Bob had.
85. While EOIR theoretically could engage in rulemaking to extend limited representation to a single immigration removal proceeding, or distinct phases within it, or carve out different rules of practice for practitioners affiliated with nonprofit organizations, such changes should only come about through formal rulemaking. Such changes would raise complex issues that necessitate safeguards as to the quality of representation.
86. Such a rulemaking, given EOIR’s legitimate concerns about ensuring the quality of representation in immigration proceedings, would and should necessarily invite and consider comment from a wide range of stakeholders – including but not limited to nonprofit organizations – to address appropriate safeguards. Notably, EOIR proposed both its rules for recognition and accreditation and limited representation in custody and bond proceedings after EOIR solicited public comments, even before EOIR issued its notices of proposed rulemaking. See 80 FR 59515 & n. 9 (proposed recognition and accreditation rule), citing 77 FR 9,590 (Feb.
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Case 2:17-cv-00716-RAJ Document 50-1 Filed 06/26/17 Page 1 of 6
Exhibit 1

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Case 2:17-cv-00716-RAJ Document 50-2 Filed 06/26/17 Page 1 of 3
Exhibit 2

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Case 2:17-cv-00716-RAJ Document 50-3 Filed 06/26/17 Page 1 of 3
Exhibit 3

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Case 2:17-cv-00716-RAJ Document 50-4 Filed 06/26/17 Page 1 of 2
Exhibit 4

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Case 2:17-cv-00716-RAJ Document 50-5 Filed 06/26/17 Page 1 of 7
Exhibit 5

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Case 2:17-cv-00716-RAJ Document 50-5 Filed 06/26/17 Page 3 of 7

OPPM 08-01: Guidelines for Facilitating Pro Bono Legal Services

page 2

I. Introduction
Pro bono representation benefits both the respondent and the court, providing respondents with welcome legal assistance and the judge with efficiencies that can only be realized when the respondent is represented. A capable pro bono representative can help the respondent navigate court rules and immigration laws and thereby assist the court in understanding the respondent's circumstances and interests in relief, if any is available. Pro bono representation in immigration court thus promotes the effective and efficient administration of justice. This Interim OPPM provides guidance on how immigration courts and court administrators can encourage and facilitate pro bono legal services for respondents.1

II. Meaning of “Pro Bono”
As a general rule, a “pro bono representative” is an attorney or other representative specified in 8 C.F.R. § 1292.1 who provides legal representation without any present or future expectation of remuneration from the respondent (other than filing fees and nominal costs). Uncompensated initial consultations or initial court appearances, with the ultimate intention or goal of compensation by the respondent, are contrary to the spirit of pro bono representation. While an attorney or representative may be regularly compensated by an employing firm or organization, representation should be provided solely and honestly for the public good.

III. Facilitating Pro Bono Representation
A. Pro Bono Liaison Judge and Pro Bono Committee
A judge in each court should be designated the “pro bono liaison judge,” who represents the judges of that court in interactions with outside entities regarding matters involving pro bono representation.
In addition to designating a pro bono liaison judge, courts of appropriate size and location should consider creating a pro bono committee. Committees may include, as appropriate, other judges, the court administrator, attorney advisors, judicial law clerks, and/or other interested court staff. Each court with a pro bono committee should consult its Assistant Chief Immigration Judge (ACIJ) regarding the judge and staff composition of its committee and the length of each committee member’s term. For continuity’s sake, the pro bono liaison judge and/or committee members should serve terms of one year or longer. Ideally, the pro bono liaison judge position (and the pro bono

1 This Interim OPPM was generated from the recommendations by the EOIR Committee on Pro Bono, which consisted of immigration judges, court administrators, the Acting Chairman of the Board of Immigration Appeals, the Coordinator of the Legal Orientation and Pro Bono Program, and other EOIR staff. The committee met with non-profit organizations, bar associations, private law firms, the Department of Homeland Security, the Office of Refugee Resettlement in the Department of Health and Human Services, and the United Nations High Commissioner for Refugees. The Office of the Chief Immigration Judge expresses its gratitude for the committee’s hard work and dedication.

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committee membership as well) should rotate between judges, but the decision to rotate a liaison judge or committee member is left to the ACIJ and that court.
The pro bono liaison judge, together with the court administrator, should meet regularly with local pro bono legal service providers to discuss improving the level and quality of pro bono representation at the court. Such meetings should be used to develop and refine local procedures to encourage pro bono representation, bearing in mind the particular needs and circumstances of each court. Pro bono liaison judges should encourage and, insofar as appropriate, facilitate discussion between government and pro bono counsel. They should also consult with the EOIR Legal Orientation & Pro Bono Program (LOPBP) to strengthen the agency’s public outreach and to better coordinate the agency’s support of pro bono representation.
B. Training for Pro Bono Counsel
Pro bono training conferences, the Model Hearing Program (coordinated through the LOPBP), and similar efforts are effective ways to increase the available pool of pro bono representatives. Judges and pro bono committee members are encouraged to play an active part in pro bono training programs on immigration courtroom practice and procedure, where appropriate and authorized. When a judge is interested in participating in such a program, the judge must promptly forward the invitation (and any additional information) to his or her ACIJ for supervisory authorization and thereafter request approval from the EOIR Ethics Office. Judges should not accept invitations prior to receiving authorization and approval.
C. Courtroom Practices
Although EOIR is committed to completing cases promptly, the particular needs of pro bono representatives who appear before the immigration courts should also be taken into consideration. Judges are strongly encouraged to be flexible with pro bono representatives, particularly in the scheduling of hearings and in the setting of filing deadlines.
1. Pro Bono Appearances
Judges should ask representatives appearing pro bono to identify themselves as such. Pro bono representatives should be asked to annotate the Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court (Form EOIR-28) to reflect pro bono representation. Absent that annotation, judges should ask representatives to identify themselves orally on the record as appearing pro bono (e.g., “Jane Doe, appearing pro bono on behalf of John Smith”).
When a pro bono representative enters an appearance, the court should enter the words “pro bono” in the comments field in CASE. An accurate electronic record is critical to track and to verify genuine pro bono representation.

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OPPM 08-01: Guidelines for Facilitating Pro Bono Legal Services

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2. Scheduling of Pro Bono Cases
Judges should be mindful of the inherent difficulties in the recruiting of pro bono representatives and the burdens pro bono representatives assume for the public good. To facilitate pro bono representation, judges are encouraged to give pro bono representatives priority scheduling at master calendars when requested.
With respect to individual calendars, judges should be cognizant of the unique scheduling needs of law school clinics operating on an academic calendar and pro bono programs which require sufficient time to recruit and train representatives. Because clinics and pro bono entities often face special staffing and preparation constraints, judges should be flexible and are encouraged to accommodate appropriate requests for a continuance or to advance a hearing date.
3. Pre-Hearing Statements and Conferences
Pursuant to 8 C.F.R. § 1003.21, judges may require pre-hearing statements, including stipulations of fact. Pre-hearing statements can be especially valuable in pro bono cases, where the representative’s time and resources might be limited. Judges should also encourage pre-hearing conferences between the parties to narrow the issues and to prompt the timely submission of evidence, which foster both more efficient proceedings and more efficient use of limited pro bono resources.
4. Appearance by Telephone or Video Conference
As discussed above, judges should be mindful of the difficulties and burdens facing pro bono representatives. Accordingly, judges should be flexible when a pro bono representative seeks to appear telephonically or through video conferencing (also known as televideo and VTC).
As respondents are often detained in locations that are not readily accessible, video conferencing is an attractive means for a pro bono representative to communicate with his or her client. Where EOIR video conferencing is available in conjunction with a scheduled hearing and the request to use the equipment is reasonable, courts may allow representatives to use EOIR video conferencing equipment to communicate briefly with respondents. However, courts should be careful that the use of video conferencing by representatives not disrupt court operations, and courts must be vigilant and responsible regarding the expenses associated with the use of any telecommunication equipment.
D. Legal Orientations and Group Rights Presentations
Judges and courts are encouraged to support legal orientations and group rights presentations, whether or not funded by the LOPBP. Non-profit organizations that provide such programs can greatly assist local pro bono efforts to disseminate critical legal information, prepare respondents for master calendar hearings, screen respondents for eligibility for relief, and identify cases for referral to pro bono counsel. These programs serve a vital role in providing detained respondents with access to basic legal services. They also provide a benefit to the court in that respondents better understand the proceedings when they enter the courtroom.

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Judges and court administrators can facilitate orientation and rights presentations in a variety of ways. For example, liaison judges and court administrators should be attentive to operational issues for the presenters of these programs. Also, where appropriate, reasonable, and available, immigration courtrooms and EOIR video conferencing equipment may be made available to pro bono organizations to conduct presentations. Furthermore, within the bounds of reason and propriety, courts could share information that will help presenters to assemble detainees and to tailor their presentation to the specific audience.
Given the value of such programs, courts should encourage and facilitate the development of orientation and rights presentations for non-detained respondents as well.
E. Access to Respondent Information
Upon reasonable request, immigration court records should be made available to pro bono organizations and representatives, where court resources allow and the sharing of information is not prohibited by law (e.g., attorney-client privilege, the Privacy Act, 8 C.F.R. § 1208.6). Courts should support pro bono operations in their efforts to identify potential pro bono cases and, with respondents’ written authorization, may share non-classified information prior to a formal entry of appearance.
If a court is concerned that an organization or representative is requesting information for a motive or purpose other than the identification of pro bono clients, the court should consult its supervising ACIJ and, as appropriate, the LOPBP Coordinator.
F. Self-Help Legal Materials
Self-help legal materials prepared by the LOPBP are valuable to anyone appearing without counsel. These materials, which are regularly reviewed and updated by the LOPBP contractor staff and EOIR’s Office of the General Counsel, have the ability to increase respondents’ understanding of immigration laws, removal proceedings, and the implications of their pleadings.
Approved materials are available from the LOPBP and, insofar as it is practical, courts should make these available to the public as well. Courts could make materials available upon request at the filing window and/or, if the materials are available electronically, distribute or post flyers specifying where those materials are located on the Internet.
Please note that the LOPBP welcomes comments and suggestions from judges, court administrators, attorney advisors, judicial law clerks, and other court staff on how to improve existing self-help legal materials. However, anyone in the courts who develops self-help legal materials for their location must first provide a draft to the LOPBP and the appropriate ACIJ for approval.

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OPPM 08-01: Guidelines for Facilitating Pro Bono Legal Services

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G. Minor Respondents
Given the particular vulnerability of minor respondents, judges are strongly encouraged to facilitate pro bono representation whenever minors are involved. Judges are reminded to employ the child-friendly practices described in OPPM 07-01 (Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children). Many of those practices can and should be applied to any case involving a minor, whether unaccompanied, accompanied, detained, or non-detained.

IV. Handling Pro Bono Cases Ethically
It is incumbent on every judge to facilitate pro bono representation. Equally important, however, is that every judge must be careful to stay within the bounds of ethics and propriety.
When encouraging pro bono representation, judges should be mindful neither to pressure representatives to appear pro bono nor to penalize representatives who do not wish to handle pro bono cases. Pro bono representation should be truly voluntary, and attorneys and other representatives should not feel compelled to appear on specific cases.
As issues regarding Department ethics and agency policy frequently arise in this area, individual judges, pro bono liaison judges, and pro bono committees should consult their supervising ACIJ and the EOIR Ethics Office. Such consultations will ensure that new programs and/or new practices are permissible. Judges are also encouraged to review their current practices and consult headquarters personnel as appropriate.

V. Conclusion
The best practices listed above are certainly not exhaustive. Judges, court administrators, attorney advisors, judicial law clerks, and all court staff are invited to submit suggestions — both to the Office of the Chief Immigration Judge and to the LOPBP — on how to encourage and facilitate pro bono representation.

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Exhibit 6

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U.S. Department of Justice
Executive Office for Immigration Review Office of the Director Office of Legal Access Programs
5107 Leesburg Pike, Suite 2600 Falls Church, VA 22041
July 11, 2011

MEMORANDUM TO:

Oren Root, Director Center on Immigration and Justice Vera Institute of Justice

FROM: Steven Lang, Program Director Office of Legal Access Programs

SUBJECT: Legal Orientation Program Guidelines - Orientation vs. Representation

The purpose of this memo is to provide guidance in distinguishing between services considered ‘legal representation’ and those considered ‘legal orientation’ for individuals providing contract services through the Executive Office for Immigration Review’s (EOIR) Legal Orientation Program (LOP). The LOP is currently carried out through individual task orders issued under a GSA contract (known collectively as “the Contract”) with the Vera Institute of Justice. While government funds under the Contract may be used for services considered legal orientation, those services considered legal representation cannot be covered by Contract funds.
The Statement of Work (SOW) of Task order #36 under Fiscal Year 2011 funding states at Section B that Contract funds “may not be used to provide ‘representation’ within the meaning of 8 C.F.R. § 1.1(m), and as restricted by § 292 of the Immigration and Nationality Act , 8 U.S.C. § 1362.”1 While “legal orientation” is not defined in the Immigration and Nationality Act
1Section 292, 8 U.S.C. § 1362: “In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.” This section is also echoed at 8 C.F.R. § 1003.16(b): “The alien may be represented in proceedings before an Immigration Judge by an
1

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(INA), nor at Title 8 Code of Federal Regulations, “representation” is defined at 8 C.F.R. §§ 1.1(m) and 1001.1(m): “The term representation before the Board and the Service includes practice and preparation as defined in paragraphs (i) and (k) of this section.”
8 C.F.R. §§ 1.1(i) and 1001.1(i) - “The term practice means the act or acts of any person appearing in any case, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with the Service, or any officer of the Service, or the Board.”
8 C.F.R. §§ 1.1(k) and 1001.1(k) - “The term preparation, constituting practice, means the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers, but does not include the lawful functions of a notary public or service consisting solely of assistance in the completion of blank spaces on printed Service forms by one whose remuneration, if any, is nominal and who does not hold himself out as qualified in legal matters or in immigration and naturalization procedure.”
There are five specific tasks under Section A of the SOW, as well as three other associated services not mentioned in the SOW that need to be examined in light of such restrictions.
1. Group Orientations - SOW Sections A(5) and A(6) 2. Individual Orientations - SOW Section A(9) 3. Acknowledgement of Non-Representation - SOW Section A(10) 4. Distribution of Materials - SOW Section A(12) 5. Self-Help Workshops - SOW Section A(13) 6. Assistance in Obtaining Documents 7. Assistance in Completing Legal Forms 8. Legal Representation and other advocacy under non-LOP funding
1. Group Orientations
A(5) - Provide group orientations to all detained aliens, who are or may be placed in immigration removal proceedings, (with reasonable exceptions to be approved by the COTR), prior to their initial Master Calendar Hearing in the Immigration Court... Group orientations will review the range of rights available to detained aliens in immigration proceedings, and alert these individuals to their alternatives or the lack thereof.
A(6) … The presenters will respond to general concerns of individuals in group question and answer periods held during the group orientations.
attorney or other representative of his or her choice in accordance with 8 C.F.R. part 1292, at no expense to the government.”
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The group orientation is informational and non-specific to any particular individual’s case. It should cover general areas of law and procedure, and familiarize individuals with their legal rights, responsibilities and options in general terms. As such, it is not considered representation. The presenter does not “appear in any case, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client,” nor is the presenter “studying the facts of a [specific] case” and giving “advice and auxiliary activities, including the incidental preparation of papers....”
2. Individual Orientations
A(9) - Provide individual orientations when requested by unrepresented individuals and as specified in the POP2. The individual orientations are intended to assist individuals in understanding their legal situations. The presenters may respond to specific concerns/questions of an individual regarding matters of immigration law and procedure. Individual orientations should be distinguishable from consultations with legal representatives to avoid the appearance of representation to the individuals.
The purpose of the individual orientation is to elicit information from unrepresented individuals in order to assist them in understanding their legal situations, including the availability of potential relief from removal and release eligibility, as well as in distinguishing between meritorious cases and frivolous cases.3 The presenter may respond to specific concerns/questions of an individual, generally educating the individual in law and applicable procedure, as well as in the requirements for pursuing particular forms of relief. The presenter should be very careful not to give legal advice concerning the individual’s specific case.
Under regulations at 8 C.F.R. §§ 1.1(k) and 1001.1(k), “preparation constituting practice” (and thus representation) does not occur unless the legal representative (1) studies the facts of the case, (2) gives legal advice, and (3) performs other activities, such as the preparation of forms or a brief for the Immigration Court. Providing even one of these three services, though, may lead to circumstances in which an attorney-client relationship is created under local state bar rules (for example, if the attorney provides specific legal advice regarding a particular action), and could constitute the unauthorized practice of law if provided by a non-attorney/accredited representative. Under guidelines published by the American Bar Association (ABA), the existence of an attorney-client relationship is based on the “subjective understanding” of the potential client.4
2 Program Operation Plan (POP) 3Section 2(G) of the LOP Statement of Work copies the language from the original Senate version of the appropriation bill, stating that presentations were to “provide immigration detainees with essential information about immigration court procedures and the availability of legal remedies to assist detainees in distinguishing between meritorious cases and frivolous cases.” See page 39 of the Senate Appropriation Committee Report from the Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act for Fiscal Year 2002 (P.L. 107-77). 4LOP providers should familiarize themselves with their respective State Bar rules regarding actions which may form the basis of an attorney-client relationship and make all diligent efforts to avoid these while performing LOP-contracted services. The following link provides information about various
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For this reason, it is important to distinguish between information provided as part of an individualized assessment and legal advice. The Contract and regulations allow for the provision of information through an individualized assessment as long as such services do not include the giving of advice and other activities. The concept of advice is directive (“I suggest you apply for this relief”) and not informational (“If you are interested in applying for this type of relief, this is what the Immigration Law requires”).
In addition, individual orientations must be conducted in a manner that is clearly distinguishable to detainees from consultations with legal representatives to avoid the appearance of an attorney-client relationship (representation) to the individual, to other detained individuals, and to detention facility staff. Best efforts should be taken to hold the individual orientations during a time and at a location in the detention facility where consultations with legal representatives are not taking place. Moreover, relevant detention facility staff should be regularly reminded of the limited role of the presenter during the individual orientation in order to avoid any confusion.
3. Acknowledgement of Non-Representation
A(10) - Explain to all aliens receiving an individual orientation that the presenter is not their attorney or representative… The presenter shall also obtain written acknowledgment from the individual stating, in effect, that the individual understands the presenter is not his/her attorney or representative, that the individual has voluntarily given his/her information, and that there is no guarantee of pro bono representation in the individual’s case.
At the beginning of the individual orientation, the presenter should have all individuals sign a disclaimer acknowledging, in effect, that (1) they understand that the presenter is not their attorney or representative; (2) that they are willingly providing their personal information; (3) that they authorize its disclosure to other parties for the purpose of obtaining pro bono/volunteer legal assistance; and (4) that there is no guarantee of pro bono representation in their cases. Additionally, presenters should be aware of their responsibilities under the Privacy Act at 5 U.S.C. § 552(a) et. seq. and the confidentiality provisions at 8 C.F.R. §§ 208.6 and 1208.6.
State Bar definitions for the practice of law: http://www.abanet.org/cpr/modeldef/model_def_statutes.pdf. The ABA’s Model Rules of Professional Responsibility are available at http://www.abanet.org/cpr/mrpc/mrpc_toc.html. In particular, see Model Rule 6.5 “Nonprofit and Court Annexed Limited Legal Services Programs” which is applicable to all states except Oregon (which follows the Model Code). Those admitted to the California State Bar should review California’s rules since it follows neither the Model Rules nor the Model Code. Finally, useful links for finding state law rules involving representation and the attorney-client relationship are the Cornell University Law School, American Legal Ethics Library, Comparative and Topical Index and State Law links at http://www.law.cornell.edu/ethics/comparative/ (index of comparative law) and http://www.law.cornell.edu/ethics/comparative/rules topical.html (topical index by State).
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The following is sample language that can be provided to LOP participants prior to the start of an individual orientation session that may be helpful in both clarifying the role of the LOP subcontractor while obtaining written evidence that the participants were notified of this limited role. The sample language is as follows:

Sample Acknowledgment Language for use at the beginning of an individual orientation session:

I,

, understand that [name of LOP staff person] from [LOP Subcontractor] is

here to help inform me of my legal rights, help me understand the legal process, and assist me in

finding a free attorney, if possible. [Name of LOP staff person] from [LOP Subcontractor] is not

my attorney, and will not appear in court on my behalf. I understand that I should begin looking

for a private attorney if I am able and want to be represented.

I also understand that the information I give [name of LOP staff person] from [LOP Subcontractor] about my case may be given to other people for the purpose of obtaining free legal services with my case

_____________________ Signature

______________ Date

If an individual in search of representation seems able to afford a private attorney, the presenter should not refer the individual to a particular attorney. However, the presenter may refer the individual to a bar-associated attorney referral service (e.g., the AILA Immigration Attorney Referral Service) or to an inclusive list of attorneys who represent individuals at the detention facility. LOP providers should not restrict which attorneys are included on this list. LOP staff are reminded that such general lists of immigration providers intended for distribution to detained individuals must first be reviewed by EOIR and may also require the approval of local ICE and the facility. Further, any list distributed by an LOP provider should not be on EOIR agency letterhead or the letterhead of any immigration court. The list must include a disclaimer stating that: (a) the list is being provided by the LOP provider as a courtesy, (b) there is no guarantee of representation by any of the listed attorneys, and (c) neither the Department of Justice nor EOIR controls, maintains, or screens the list, or endorses any individuals or organizations on the list. While EOIR may review the lists to ensure that they contain the proper disclaimers, EOIR cannot give guidance on or select who should be included on the lists. Finally, the maintenance and distribution of an attorney list is within the discretion of each LOP provider, and each provider should contact the relevant state bar association to confirm that the proposed list would not violate state bar restrictions on attorney advertising or referrals.

4. Distribution of Materials

A(12) - Distribute to individuals at the group orientation and individual orientation appropriate written legal orientation and other relevant and informative materials, as well as make available any relevant taped materials. All such materials intended for distribution under this agreement must be pre-approved by the COTR.

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Presenters may only distribute to individuals written and relevant taped materials that have been pre-approved by EOIR, such as those relating to how a particular type of legal relief may be pursued, or standard sample motions and briefs designed to assist unrepresented individuals appearing before the Immigration Court. However, the preparation and/or provision of any case-specific written materials (i.e., those created or specifically tailored to the individual’s particular circumstances) may not be performed using LOP funding. In addition, case-specific written materials prepared using non-LOP funding may not be provided to individuals at the group orientation, individual orientation, or group workshop, and they should only be provided in a manner that is distinguishable to the individual and other detainees from activities covered by the Contract.
5. Self-Help Workshops
A(13) - Provide “self-help workshops” in accordance with the POP for unrepresented individuals interested in pursuing relief from removal (including voluntary departure), custody redetermination, or subject to special procedures (i.e. Temporary Protected Status, reinstatement of a previous order of removal/deportation, “reasonable fear” or “credible fear” proceedings, and aliens eligible for post-removal order review). The purpose of the self-help workshop is to inform and assist small groups of individuals in understanding the relevant law and procedures to be followed in pursuing particular forms of relief, custody redetermination, or in understanding special procedures in place, that may apply to their own legal situation…
The setting of the self-help workshop should be that of a classroom, in which unrepresented detainees are trained to assist themselves in pursuing forms of legal relief, including the collection of information and documents and the preparation of papers. As legal professionals who hold themselves out as knowledgeable in immigration law, presenters cannot assist in the direct preparation of an individual’s papers (which would constitute performance of “auxiliary activities” under 8 C.F.R. §§ 1.1(k) and 1001.1(k)), except regarding the clerical completion of forms as provided below. Self-help workshops should only be scheduled for multiple participants. In the event that only one of the scheduled LOP participants appears for a scheduled self-help workshop, the LOP presenter may proceed with the session as an individual orientation (and count it as such in the database). However, self-help workshops should not be initially scheduled for one individual.
6. Assistance in Obtaining Documents
LOP presenters may assist LOP participants in obtaining personal documents (such as medical or criminal conviction records) under LOP funding. However, such assistance should only be provided to unrepresented individuals who have independently determined that such documents are necessary for their immigration case, and who have made all diligent efforts to obtain these materials themselves. While assistance in obtaining documents does not constitute representation under the regulations cited above, LOP presenters are nevertheless cautioned that they may be held liable under other laws for any errors they commit in performing such services. It is recommended that before undertaking any such services: (1) the LOP participant provide to the presenter written authorization allowing the presenter to obtain the specified items on behalf
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of the participant; (2) the LOP participant acknowledge in writing that the LOP presenter is not acting as his/her representative; and (3) the LOP presenters consult with their malpractice insurers to determine if performing such services subjects them to potential liability when not carried out successfully. It is also suggested that LOP presenters, where possible, assign such clerical tasks to other staff in order to distance themselves further from any appearance of representation, practice, or preparation activities.
7. Assistance in Completing Legal Forms
LOP presenters may assist unrepresented LOP participants with completing immigration forms under LOP funding. However, to ensure that the presenters do not engage in representation as defined by 8 C.F.R. §§ 1.1(m) and 1001.1(m), LOP presenters should only provide such services in adherence to the guidelines set forth above at section 2, as well as with the additional guidelines set forth below:
A. LOP presenters must limit these services to helping unrepresented participants fill in the blank spaces on immigration forms. The assistance must be clerical in nature, but can include general information on how to complete the form. The LOP presenter may translate what is written on the form and explain any language that is unclear. However the LOP presenter must fill in the blanks with the individual’s answers and may not advise the individual on how to answer a question based on a participant’s particular factual situation and the applicable law.
B. The LOP presenters may not select specific immigration forms for an individual to complete. Rather, presenters may provide information on various forms generally and how to complete them. Once an individual selects a form or is provided a form by an Immigration Judge, the LOP presenters may meet one-onone with the individual to assist with filling in the blanks on such pre-selected forms.
C. After an individual completes the form with the assistance of the LOP presenter, the LOP presenter should read it back to the individual and ask the individual to confirm its accuracy. This read-back must occur before the individual signs the form stating that all the information on the form is true to the best of his/her knowledge. Additionally, the LOP presenter must sign the form as the preparer, if required by the form.
D. Supervising attorneys may review applications completed by another authorized representative or immigration assistant. However, the type of feedback the reviewer may give is limited. A reviewer may confirm that the individual has completed each line that is required to be filled in, that required signatures are given, and that the necessary attachments are present. The reviewer may not, however, provide advice on how to answer a question.
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8. Providing Legal Representation While LOP presenters are not prohibited under the Contract from providing direct legal
representation using non-LOP funding, best efforts should be taken to carry out such legal representation services in a manner clearly distinguishable and separately accountable from LOP-funded services. In addition, legal representation of individuals identified through the LOP must be limited to pro bono work (i.e., no charge to the client beyond possible filing fees or other nominal expenses).
Similarly, presenters should refrain from any activities related to fund-raising, political/issue advocacy, impact litigation, or other legal support activities if performed in a manner that would not be clearly distinguishable from LOP-funded services. The key consideration is ‘appearance’ to the non-LOP individual.
If an LOP presenter is considering personally accepting a case for pro bono representation, she/he should consider the use of a third party (who may be on the subcontractor’s staff) to broker the relationship. Under such an arrangement, the presenter would not appear to be in the position of deciding whether or not to accept the case.
*** This memo replaces any previous guidance to LOP presenters regarding permissible services under LOP funding. LOP presenters are further advised to be cognizant of the requirements of their respective state bars. If you have any additional questions concerning any of the issues explained above, please contact Steven Lang, Program Director of the EOIR Office of Legal Access Programs at 703-305-1295.
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 Case 2:17-cv-00716-RAJ Document 66 Filed 07/27/17 Page 1 of 16

1

HONORABLE RICHARD A. JONES

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 9

10

NORTHWEST IMMIGRANT

11

RIGHTS PROJECT, et al.,

CASE NO. C17-716 RAJ

12

Plaintiffs,

ORDER

13

v.

14 JEFFERSON B SESSIONS, III, et al.,
15 Defendants.
16

17 I. INTRODUCTION
18 This matter comes before the Court on Plaintiffs Northwest Immigrant Rights
19 Project’s (“NWIRP”) and Yuk Man Maggie Cheng’s Motion for Preliminary Injunction.1
20 Dkt. # 37. The Government opposes the Motion.2 Dkt. # 47. On July 24, 2017, the
21 Court heard oral arguments on the matter. Dkt. # 64. For the reasons set forth below, the
22 Court GRANTS Plaintiffs’ Motion and converts the temporary restraining order into a
23 preliminary injunction pursuant to the terms stated below.
24

25

26

1 The Court refers to the Plaintiffs collectively as “NWIRP” or “Plaintiffs.”

27

2 The Court refers to the Defendants collectively as “EOIR” or “the Government.”

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1

II. BACKGROUND

2

Washington nonprofit Northwest Immigrant Rights Project (“NWIRP”) provides

3 free and low-cost legal services to thousands of immigrants each year. Dkt. # 1. The

4 Executive Office for Immigration Review (“EOIR”), an office within the Department of

5 Justice (“DOJ”), oversees the adjudication of immigration cases. Id. at ¶ 1.5. In seeking

6 to improve immigrants’ access to legal information and counseling, EOIR provides an

7 electronic list of pro bono legal services providers. With regard to Washington, EOIR’s

8 entire list of recognized pro bono organizations includes one group—NWIRP. Dkt. ## 2

9 at 17, 3 (Warden-Hertz Decl.) at ¶ 4.

10

In December 2008, EOIR published new rules regulating the professional conduct

11 of attorneys who appear in immigration proceedings. Specifically, EOIR reserved the

12 right to “impose disciplinary sanctions against any practitioner who . . . [f]ails to submit a

13 signed and completed Notice of Entry of Appearance as Attorney or Representative . . .

14 when the practitioner has engaged in practice or preparation as those terms are defined in

15 §§ 1001.1(i) and (k) . . . .” 8 C.F.R. § 1003.102(t) (hereinafter, “the Regulation”). EOIR

16 defines “practice” and “preparation” as follows:

17

The term practice means the act or acts of any person appearing

18

in any case, either in person or through the preparation or filing

19

of any brief or other document, paper, application, or petition

20

on behalf of another person or client before or with DHS, or

21

any immigration judge, or the Board [of Immigration Appeals].

22

23

The term preparation, constituting practice, means the study of

24

the facts of a case and the applicable laws, coupled with the

25

giving of advice and auxiliary activities, including the

26

incidental preparation of papers, but does not include the

27

lawful functions of a notary public or service consisting solely

ORDER- 2

Case 2:17-cv-00716-RAJ Document 66 Filed 07/27/17 Page 3 of 16

1

of assistance in the completion of blank spaces on printed

2

Service forms by one whose remuneration, if any, is nominal

3

and who does not hold himself out as qualified in legal matters

4

or in immigration and naturalization procedure.

5 8 C.F.R. § 1001.1(i), (k).

6

The purpose of these amendments was to protect individuals in immigration

7 proceedings by disciplining attorneys when it is within “the public interest; namely, when

8 a practitioner has engaged in criminal, unethical, or unprofessional conduct or frivolous

9 behavior.” Professional Conduct for Practitioners—Rules and Procedures, and

10 Representation and Appearances, 73 Fed. Reg. 76914-01, at *76915 (Dec. 18, 2008).

11 With these new rules, EOIR sought “to preserve the fairness and integrity of immigration

12 proceedings, and increase the level of protection afforded to aliens in those

13 proceedings. . . .” Id.

14

NWIRP recognizes the importance of attorney accountability, especially in the

15 immigration context. Indeed, NWIRP became an ally to EOIR in its efforts to combat

16 “notario fraud.”3 Dkt. # 1 (Complaint) at ¶ 3.12. However, NWIRP also recognizes that

17 the Regulation poses challenges because NWIRP does not have the resources to

18 undertake full representation of each potential client. Id. at ¶¶ 3.5, 3.21-3.23. To address

19 these challenges, NWIRP alleges that it “met with the local immigration court

20 administrator” soon after the Regulation was adopted to discuss the Regulation’s impact

21 and “agreed that it would notify the court when it assisted with any pro se motion or brief

22 by including a subscript or other clear indication in the document that NWIRP had

23

24

25
3 “Notario fraud” refers to “immigration consultants who are engaging in the unauthorized
26 practice of law by using false advertising and fraudulent contacts and holding themselves out as qualified
to help immigrants obtain lawful status, or performing legal functions such as drafting wills or other legal
27 documents.” Dkt. # 1 (Complaint) at 6 (internal punctuation omitted).

ORDER- 3

Case 2:17-cv-00716-RAJ Document 66 Filed 07/27/17 Page 4 of 16

1 prepared or assisted in preparing the motion or application.” Id. at ¶ 3.11; see also Dkt. #

2 38 (Baron Decl.) at ¶ 5.

3

Nearly nine years after promulgating the Regulation, EOIR sent a cease and desist

4 letter to NWIRP asking the nonprofit to stop “representing aliens unless and until the

5 appropriate Notice of Entry of Appearance form is filed with each client that NWIRP

6 represents.” Dkt. # 1 (Complaint) ¶ 3.14. EOIR’s letter acknowledged that the disputed

7 forms on which NWIRP assisted “contained a notation that NWIRP assisted in the

8 preparation of the pro se motion.” Dkt. # 1-1.

9

NWIRP filed suit against EOIR and others seeking injunctive relief from the

10 enforcement of the Regulation. See generally Dkt. # 1 (Complaint). In moving for a

11 temporary restraining order (“TRO”), NWIRP sought to maintain the status quo until the

12 parties could be heard on a motion for preliminary injunction. Dkt. # 21.

13

On May 17, 2017, the Court heard oral arguments on the TRO. Dkt. # 31. The

14 Court questioned the parties and discovered, among other things, that the Government

15 had no evidence that NWIRP had engaged in substandard legal representation. Dkt. # 36

16 (Transcript of TRO Hearing) at 39.

17

Finding that Plaintiffs met their burden under the TRO standard, the Court granted

18 the TRO. Dkt. # 33. The parties are now before the Court to argue whether the Court

19 should convert the TRO into a preliminary injunction.

20

III. LEGAL STANDARD

21

Plaintiffs seek a preliminary injunction enjoining the Government from enforcing

22 the notice of appearance regulation codified at 8 C.F.R. § 1003.102(t)(1). “A preliminary

23 injunction is an extraordinary and drastic remedy; it is never awarded as of right . . . .”

24 Munaf v. Geren, 553 U.S. 674, 689 (2008) (citation and internal quotation marks

25 omitted). To obtain a preliminary injunction, the moving party must establish that: (1) it

26 is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence

27

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Case 2:17-cv-00716-RAJ Document 66 Filed 07/27/17 Page 5 of 16

1 of preliminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is

2 in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

3

Alternatively, “serious questions going to the merits” and a balance of hardships

4 that tips sharply towards the plaintiffs can support issuance of a preliminary injunction,

5 so long as plaintiffs also show that there is a likelihood of irreparable injury and that the

6 injunction is in the public interest. Alliance for the Wild Rockies v. Cottrell, 632 F.3d

7 1127, 1135 (9th Cir. 2011).

8

IV. DISCUSSION

9

Plaintiffs allege claims for facial and as-applied violations of the First and Tenth

10 Amendment. The Court will discuss the merits of each claim below.

11

A. First Amendment

12

At issue are Plaintiffs’ actions in offering pro bono legal assistance to immigrants

13 subject to removal proceedings. Such actions fall within the protections afforded by the

14 First Amendment. See In re Primus, 436 U.S. 412, 426 (1978) (“Subsequent decisions

15 have interpreted Button as establishing the principle that ‘collective activity undertaken to

16 obtain meaningful access to the courts is a fundamental right within the protection of the

17 First Amendment.’”) (citations omitted); United Transp. Union v. State Bar of Mich., 401

18 U.S. 576, 580 (1971) (finding that the First Amendment protected the Union’s ability to

19 give legal advice or counsel to an injured worker or his family concerning a FELA

20 claim); Conant v. Walters, 309 F.3d 629, 637 (9th Cir. 2002) (“Attorneys have rights to

21 speak freely subject only to the government regulating with ‘narrow specificity.’”) (citing

22 Nat’l Ass’n for Advancement of Colored People v. Button, 371 U.S. 415, 433 (1963)).

23

This case falls neatly within the precedent set by the Supreme Court in Button and

24 its progeny. This line of authority embodies the principle that non-profit organizations

25 may not be threatened when “advocating lawful means of vindicating legal rights.”

26 Button, 371 U.S. at 437. In Button, the Supreme Court invalidated a Virginia statute

27 aimed at proscribing “solicitation of legal business by a ‘runner’ or ‘capper,’ [which

ORDER- 5

Case 2:17-cv-00716-RAJ Document 66 Filed 07/27/17 Page 6 of 16

1 included] in the definition of ‘runner’ or ‘capper,’ an agent for an individual or

2 organization which retains a lawyer in connection with an action to which it is not a party

3 and in which it has no pecuniary right or liability.” Id. at 423. Virginia claimed that the

4 statute’s purpose was to “further control the evils of solicitation of legal business.” Id. at

5 424. The NAACP had for many years, without incident, openly solicited legal business

6 to further desegregation efforts. Id. at 423. But Virginia courts found that these activities

7 were prohibited under the new iteration of the statute. Id. at 426. The Supreme Court

8 saw through this targeted enforcement, recognizing “a record devoid of any evidence of

9 interference by the NAACP in the actual conduct of litigation, or neglect or harassment

10 of clients[.]” Id. at 433. Though acknowledging Virginia’s otherwise valid efforts to

11 restrain the “oppressive, malicious, or avaricious use of the legal process for purely

12 private gain,” the Supreme Court rejected those efforts as applied to the NAACP. Id. at

13 443. The statute’s justifications were simply not applicable to the NAACP’s actions and

14 they highlighted the reality of that era:

15

[T]he militant Negro civil rights movement ha[d] engendered

16

the intense resentment and opposition of the politically

17

dominant white community of Virginia; litigation assisted by

18

the NAACP ha[d] been bitterly fought. In such circumstances,

19

a statute broadly curtailing group activity leading to litigation

20

may easily become a weapon of oppression, however

21

evenhanded its terms appear. Its mere existence could well

22

freeze out of existence all such activity on behalf of the civil

23

rights of Negro citizens.

24 Id. at 435–36.

25

In United Transportation Union v. State Bar of Michigan, the Supreme Court

26 emphasized the broad application of Button. There, the Court refused to allow the

27 Michigan State Bar to enjoin the Union “from engaging in activities undertaken for the

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Case 2:17-cv-00716-RAJ Document 66 Filed 07/27/17 Page 7 of 16

1 stated purpose of assisting their fellow workers, their widows and families, to protect

2 themselves from excessive fees at the hands of incompetent attorneys in suits for

3 damages under the Federal Employers’ Liability Act.” United Transp. Union, 401 U.S. at

4 577. The Court reversed the Michigan Supreme Court’s narrow holdings, finding that the

5 First Amendment broadly protects groups who “unite to assert their legal rights as

6 effectively and economically as possible.” Id. at 580. In doing so, the Court rejected the

7 State Bar’s insistence on a restrictive interpretation of the injunction; such an

8 interpretation was so vague that it would “jeopardize the exercise of protected freedoms.”

9 Id. at 581. United Transportation Union made clear that “collective activity undertaken

10 to obtain meaningful access to the courts is a fundamental right within the protection of

11 the First Amendment.” Id. at 585.

12

Non-profit organizations whose “primary purpose[ is] the rendition of legal

13 services” share equally in the fundamental protections of association and expression

14 described in Button. In re Primus, 436 U.S. at 427 (internal quotations and citations

15 omitted). In Primus, the Supreme Court leaned heavily on the precedent set by Button to

16 invalidate South Carolina’s professional ethics rule against solicitation. In re Primus,

17 436 U.S. 412. The Court had no issue extending the protections set forth in Button to an

18 attorney associated with the ACLU because, in that context, the organization was

19 interchangeable with the NAACP: both organizations educate the public, lobby for

20 specific civil-rights related causes, and devote time and resources to specific litigation

21 involving those civil-rights related causes. Id. at 427. Like it did in Button, the Court

22 acknowledged the political undercurrent—wherein pregnant mothers were threatened

23 with sterilization to maintain their Medicaid benefits—and the ACLU’s engagement “in

24 the defense of unpopular causes and unpopular defendants.” Id. at 427. The Court

25 recognized that the ACLU’s litigation practice “has defined the scope of constitutional

26 protection in areas such as political dissent, juvenile rights, prisoners’ rights, military law,

27 amnesty, and privacy.” Id. at 427-28. Building on the conclusions from Button, the

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Case 2:17-cv-00716-RAJ Document 66 Filed 07/27/17 Page 8 of 16

1 Court embraced the idea that “efficacy of litigation as a means of advancing the cause of

2 civil liberties often depends on the ability to make legal assistance available to suitable

3 litigants.” Id. at 431. With these circumstances in mind, the Court concluded that South

4 Carolina’s disciplinary rule invaded “the generous zone of First Amendment protection

5 reserved for associational freedoms.” Id. at 431-32. Without “proof of any of the

6 substantive evils” that the rule aimed at preventing, South Carolina’s vague disciplinary

7 rule failed to withstand strict scrutiny. Id. at 433. The Court was quick to qualify its

8 ruling by reiterating that states are free to reasonably regulate members of their Bars, but

9 such regulations must be “narrowly drawn” to proscribe conduct that “in fact is

10 misleading, overbearing, or involves other features of deception or improper influence.”

11 Id. at 438. Many times these regulations may be upheld as applied to individuals seeking

12 pecuniary gain; it is doubtful, though, that such regulations will be applicable to non-

13 profit organizations such as the ACLU or NAACP. See, e.g., Ohralik v. Ohio State Bar

14 Ass’n, 436 U.S. 447 (1978).

15

Though framed around the protected freedoms of association and expression, these

16 cases nonetheless support Plaintiffs’ position. Therefore, to survive the Motion, the

17 Regulation “must withstand the ‘exacting scrutiny applicable to limitations to core First

18 Amendment rights.’” In re Primus, 436 at 432 (quoting Buckley v. Valeo, U.S. 1, 44-45

19 (1976)). To do so, the Government must demonstrate a compelling interest that is

20 narrowly tailored “to avoid unnecessary abridgment” of First Amendment freedoms. Id.

21

NWIRP is a non-profit organization that provides education to the community,

22 advances its cause through systemic advocacy, and provides legal assistance to

23 immigrants navigating the legal system, often in the context of removal proceedings.

24 Dkt. ## 1 (Complaint) at ¶¶ 1.1, 3.1-3.3; 37 at 12. NWIRP is the primary non-profit legal

25 services provider in Washington State, making it essential to low-income and indigent

26 immigrants. Dkt. # 37 at 12. The Government agrees that the work done by NWIRP and

27 similar non-profit organizations is crucial and admirable. Dkt. ## 36 (Transcript of TRO

ORDER- 8

Case 2:17-cv-00716-RAJ Document 66 Filed 07/27/17 Page 9 of 16

1 Hearing) at 37-38, 45; 47 at 11-13 (explaining EOIR’s commitment to ensuring that

2 immigrants have available quality representation). Moreover, the Government does not

3 dispute NWIRP’s contention that the Regulation would deprive this “vulnerable

4 population” of representation, essentially leading to an increase in avoidable deportations.

5 Dkt. ## 47 at 11; 39-35 (Murray Decl.) at ¶ 4. The dichotomy between the Government’s

6 recognition of the importance of legal representation and acknowledgment that the

7 Regulation will result in decreased services lays bare an uncomfortable reality. The

8 effect of the Regulation as interpreted by the Government will be the inevitable chipping

9 away at attorneys’ fundamental rights. Under the circumstances of this case, EOIR is

10 blindly seeking to impose its rules and regulations and spin precedent in a manner

11 inconsistent with fairness. As W.E.B. DuBois once wrote, “[r]ule-following, legal

12 precedence, and political consistency are not more important than right, justice and plain

13 common-sense.”

14

Similar to the states in Button and Primus, the Government justifies its Regulation

15 by citing a host of evils associated with attorneys failing to file notices of appearances.

16 Dkt. ## 47 at 14-17, 49 (Barnes Decl.) at ¶ 28-39. The Court does not deny that the

17 Government’s stated concerns are relevant to ensuring high quality representation in the

18 immigration courts. In fact, the Court applauds the existence of regulations that seek to

19 protect the rights of a vulnerable class of people. The Court does not find that Button and

20 its progeny foreclose the Government’s authority to regulate the conduct of lawyers,

21 generally. However, the Government may not regulate in a way that chills the ability of

22 non-profit organizations to obtain meaningful access to the courts, especially when that

23 access is sought to advance civil-rights objectives. In this context, the Government may

24 regulate “only with narrow specificity.” In re Primus, 436 U.S. at 425 (citing Button, 371

25 U.S. at 433). The Government has not done so in this instance.

26

The Government’s key objective in promulgating and enforcing the Regulation is

27 to prevent notarios, as well as incompetent, unethical, unauthorized, or fraudulent

ORDER- 9

Case 2:17-cv-00716-RAJ Document 66 Filed 07/27/17 Page 10 of 16
1 individuals from exploiting the plight of vulnerable immigrants. Dkt. ## 36 (Transcript 2 of TRO Hearing ) at 42, 47 at 15. Central to enforcement is the Government’s ability to 3 identify the practitioner who engaged in the unethical behavior and hold this individual 4 accountable. Id. at 14-15. Here, the Government lacks any evidence that NWIRP 5 committed wrongdoing or provided subpar representation to immigrants. Dkt. # 36 6 (Transcript of TRO Hearing) at 39-40; see, generally, Dkt. # 47. Moreover, even if there 7 were evidence, the Government had no trouble identifying the author of the documents. 8 There is no evidence or record before the Court of NWIRP having ever failed to clearly 9 advise the immigration court of its participation in any litigation. NWIRP 10 unambiguously identified itself on documents and indicated whether the organization 11 provided assistance. Dkt. ## 49 (Barnes Decl.) at ¶¶ 50-52, 37 at 14. Because of this, 12 EOIR was able to contact NWIRP’s Legal Director. Dkt. # 49 (Barnes Decl.) at ¶ 54. It 13 is questionable whether an actual notario or ne’er-do-well would have so clearly 14 identified himself such that EOIR could attempt enforcement in the same way. Even if 15 the Government’s reasons for the Regulation could rise to a compelling level, the 16 Regulation is not narrowly tailored to achieve its own ends.4 As in Button, the 17 Government has failed to advance any substantial regulatory interest, in the form of 18 substantive evils flowing from NWIRP’s activities, which can justify the broad 19 prohibitions which it has imposed. See Button, 371 U.S. at 442-43. Nothing in the 20 record justifies the breadth and vagueness of the Government’s interpretations of the 21 Regulation. 22 23 24
4 During the hearing on the TRO, the Government argued that NWIRP’s transparency is not
25 enough. The Government wished to have “the name, the address of the attorney or practitioner, they can
list a bar license number, so that the parties can verify whether there is actual bar membership.” Dkt. # 36
26 (Transcript of TRO Hearing) at 41. As such, it appears that NWIRP could adjust its stamps in a way that
allows EOIR to identify the author with more precision without submitting to full representation.
27
ORDER- 10

Case 2:17-cv-00716-RAJ Document 66 Filed 07/27/17 Page 11 of 16

1

The Regulation is not only too broad, it is impermissibly vague. The Government

2 created a moving target with regard to the definition of “practice” or “preparation.”

3 Section 1001.1(k) describes “preparation” as “the study of the facts of a case and the

4 applicable laws, coupled with the giving of advice and auxiliary activities,” which could

5 include the mere “incidental preparation of papers.” 8 C.F.R. § 1001.1(k). NWIRP

6 sought guidance from EOIR regarding which actions constitute “preparation” such that

7 an attorney would need to file a notice of appearance. Dkt. # 52 at 9. EOIR indicated

8 that workshops aimed at assisting immigrants complete asylum forms may trigger the

9 Regulation. Id. During the TRO hearing, the Government was unable to offer a static

10 definition or example of “preparation,” instead claiming that experienced lawyers will

11 “understand what providing legal advice is.” Dkt. # 36 (Transcript of TRO Hearing) at

12 58-59. In this case, the “I know it when I see it” approach is outside the realm of “narrow

13 specificity” required by the First Amendment. In its brief opposing a preliminary

14 injunction, the Government sought to delineate what NWIRP could do without triggering

15 the notice of appearance requirement. Dkt. # 47 at 23. But the Government immediately

16 blurred the line by asserting that “EOIR applies section 1003.102(t) only to in court

17 statements,” thereby claiming the Regulation affects only those speaking in a nonpublic

18 forum. Id. at 27, 42.5 “Precision of regulation must be the touchstone in an area so

19 closely touching our most precious freedoms.” Button, 371 U.S. at 438. “In sum, the

20 [Regulation] in [its] present form [has] a distinct potential for dampening the kind of

21 ‘cooperative activity that would make advocacy of litigation meaningful,’ as well as for

22 permitting discretionary enforcement against unpopular causes.” In re Primus, 436 U.S.

23 at 433 (quoting Button, 371 U.S. at 438).

24

25

26

5 Of course, this cannot be the case. Attorneys who speak in such a forum—that is, as a

representative inside the courtroom—have presumably filed a notice of appearance. It seems, then, that
27 the Regulation must be triggered prior to an attorney’s in-court appearance.

ORDER- 11

Case 2:17-cv-00716-RAJ Document 66 Filed 07/27/17 Page 12 of 16

1

A regulation withstands intermediate scrutiny only if is “justified without

2 reference to the content of the regulated speech, [is] narrowly tailored to serve a

3 significant governmental interest, and . . . leave[s] open ample alternative channels for

4 communication of the information.” McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014)

5 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). The Government’s

6 failure to narrowly tailor the Regulation or “leave open ample alternative channels for

7 communication of the information” dooms it even under intermediate scrutiny. Id. EOIR

8 presents NWIRP with a Hobson’s choice: NWIRP must either fully represent or fully

9 refuse to represent an immigrant. Or, NWIRP could maintain the status quo by offering

10 immigrants limited representation and face serious consequences. On the other hand,

11 EOIR is equipped to promulgate or interpret regulations in ways that satisfy its

12 significant interest in promoting accountability without invading the First Amendment’s

13 guarantees. As such, the Regulation cannot withstand intermediate scrutiny; Plaintiffs

14 are likely to succeed on their First Amendment claim.

15

The majority of briefing—both by the parties and amici—focuses on how this

16 Regulation affects NWIRP and similarly situated non-profit organizations. Dkt. ## 37,

17 40, 47. The Court can conceive of situations—most likely when private attorneys

18 represent immigrants with expectation of remuneration—in which EOIR could

19 constitutionally enforce the Regulation. Foti v. City of Menlo Park, 146 F.3d 629, 635

20 (9th Cir. 1998), as amended on denial of reh’g (July 29, 1998). For that reason, the Court

21 limits its ruling at this early stage to Plaintiffs’ as-applied challenge.

22

B. Tenth Amendment

23

Plaintiffs argue that the Regulation violates Washington’s right to regulate its

24 attorneys under the Tenth Amendment. Dkt. # 37. Regulating and licensing attorneys is

25 a matter left to the states. Leis v. Flynt, 439 U.S. 438, 442 (1979). “But ‘the law of the

26 State, though enacted in the exercise of powers not controverted, must yield’ when

27

ORDER- 12

Case 2:17-cv-00716-RAJ Document 66 Filed 07/27/17 Page 13 of 16

1 incompatible with federal legislation.” Sperry v. State of Fla. ex rel. Fla. Bar, 373 U.S.

2 379, 384 (1963) (quoting Gibbons v. Ogden, 22 U.S. 1, 211 (1824)).

3

It is well established that Congress may authorize agencies to regulate attorneys

4 appearing before them. See Sperry, 373 U.S. 379; Goldsmith v. U.S. Bd. of Tax Appeals,

5 270 U.S. 117 (1926); Koden v. U.S. Dep’t of Justice, 564 F.2d 228 (7th Cir. 1977);

6 Touche Ross & Co. v. Sec. & Exch. Comm’n, 609 F.2d 570 (2nd Cir. 1979). In such

7 cases,

8

A State may not enforce licensing requirements which,

9

though valid in the absence of federal regulation, give the

10

State’s licensing board a virtual power of review over the

11

federal determination that a person or agency is qualified and

12

entitled to perform certain functions, or which impose upon

13

the performance of activity sanctioned by federal license

14

additional conditions not contemplated by Congress.

15 Sperry, 373 U.S. at 385.

16

Congress authorized EOIR to regulate the conduct of attorneys appearing before it.

17 8 U.S.C. §§ 1103(g), 1362. As such, EOIR may impose requirements on its practitioners

18 that Washington does not. Accordingly, Plaintiffs’ argument that EOIR may not regulate

19 attorneys differently than Washington is unlikely to succeed on the merits. As noted,

20 however, Plaintiffs’ likelihood of success on their First Amendment claim is sufficient to

21 warrant the entry of a preliminary injunction.

22

C. Irreparable Harm

23

Plaintiffs have met their burden to show they have suffered and will continue to

24 suffer irreparable harm. This Order makes clear that Plaintiffs’ “First Amendment rights

25 were either threatened or in fact being impaired at the time relief was sought.” Elrod v.

26 Burns, 427 U.S. 347, 373 (1976). “The loss of First Amendment freedoms, for even

27

ORDER- 13

Case 2:17-cv-00716-RAJ Document 66 Filed 07/27/17 Page 14 of 16

1 minimal periods of time, unquestionably constitutes irreparable injury.” Id. (citing New

2 York Times Co. v. U.S., 403 U.S. 713 (1971)).

3

Prior to the Court’s issuance of a TRO, and in order to abide by the Government’s

4 cease and desist letter, Plaintiffs refrained from assisting at least four individuals. Dkt.

5 ## 37 at 30, 4 at ¶ 12. Were the injunction lifted, Plaintiffs would likely encounter

6 additional harm in being deprived of continuing their mission. Button, 371 U.S. at 435

7 (“It makes no difference whether such prosecutions or proceedings would actually be

8 commenced. It is enough that a vague and broad statute lends itself to selective

9 enforcement against unpopular causes.”).6

10

That Plaintiffs may withdraw representation with leave of court is no solution. See

11 Dkt. # 47 at 34. Quite simply, “[t]his misses the point.” Legal Servs. Corp. v. Valazquez,

12 531 U.S. 533, 546 (2001). As applied to NWIRP, the Regulation threatens to “smother[]

13 all discussion looking to the eventual institution of litigation on behalf of the rights of

14 members of an unpopular minority.” Button, 371 U.S. at 434. Just as NWIRP lacks

15 resources to undertake full representation of each immigrant, it likely lacks resources to

16 undertake full representation and then seek withdrawal. Moreover, if attorneys were able

17 to assume full representation and then withdraw with impunity, the evils that EOIR seeks

18 to remedy might instead be exacerbated.

19

D. Balance of Equities & Public Interest

20

Plaintiffs have met their burden to show that the balance of equities and public

21 interest weigh in favor of granting the preliminary injunction. The parties agree that

22 providing quality representation to vulnerable immigrants is a high priority. Moreover,

23 the Government is not harmed by allowing NWIRP and other similarly situated

24 organizations from continuing to provide competent representation. This is especially

25

26 6 As the myriad of attached declarations attest, NWIRP and other organizations may lose
27 the ability to receive aid in furthering their cause. See Dkt. # 39 (Allen Decl.).

ORDER- 14

Case 2:17-cv-00716-RAJ Document 66 Filed 07/27/17 Page 15 of 16

1 true in light of the Court’s narrow ruling that authorizes EOIR to enforce the Regulation

2 against those private attorneys who may actually be engaging in the evils so described.

3 Finally, “it is always in the public interest to prevent the violation of a party’s

4 constitutional rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (citations

5 and internal quotation marks omitted).

6

V. PRELIMINARY INJUNCTION

7

1. Plaintiffs’ Motion for Preliminary Injunction (Dkt. 37) is GRANTED.

8

2. Defendants Jefferson B. Sessions III, the United States Department of

9 Justice, the Executive Office for Immigration Review, Juan Osuna, and Jennifer Barnes,

10 and all of their officers, agents, servants, employees, attorneys, successors, assigns, and

11 persons acting in concert or participation with them are hereby ENJOINED and

12 RESTRAINED from:

13

(a) Enforcing the cease and desist letter, dated April 5, 2017, from Defendant

14 Barnes and EOIR’s Office of General Counsel to NWIRP; and

15

(b) Enforcing or threatening to enforce 8 C.F.R. § 1003.102(t) against Plaintiffs

16 and all other attorneys under their supervision or control, or who are otherwise associated

17 with them.

18

3. The Preliminary Injunction is granted on a nationwide basis as to any other

19 similarly situated non-profit organizations who, like NWIRP, self-identify and disclose

20 their assistance on pro se filings. Therefore, the Court prohibits the enforcement of 8

21 C.F.R. § 1003.102(t) during the pendency of this preliminary injunction on a nationwide

22 basis.

23

4. No security bond is required under Federal Rule of Civil Procedure 65(c).

24

5. This preliminary injunction shall remain in effect until further Order of this

25 Court.

26 //

27 //

ORDER- 15

Case 2:17-cv-00716-RAJ Document 66 Filed 07/27/17 Page 16 of 16

1

VI. CONCLUSION

2

For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion. Dkt. # 37. The

3 Government is enjoined from enforcing the Regulation against NWIRP and any other

4 similarly situated organizations, as outlined above.

5

6

Dated this 27th day of July, 2017.

7

8

A

9

10

The Honorable Richard A. Jones United States District Judge

11

12

13

14

15

16

17

18

19

20

21

22

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24

25

26

27

ORDER- 16

 
 Case 2:17-cv-00716-RAJ Document 54 Filed 06/30/17 Page 1 of 5

Case 2:17-cv-00716-RAJ Document 54 Filed 06/30/17 Page 2 of 5

Case 2:17-cv-00716-RAJ Document 54 Filed 06/30/17 Page 3 of 5

Case 2:17-cv-00716-RAJ Document 54 Filed 06/30/17 Page 4 of 5

1

CERTIFICATE OF SERVICE

2

I hereby certify that on June 30, 2017, I caused the following to be filed using CM/ECF

3 which will cause a copy to be sent to the following:

4

Attorneys for Defendants Jefferson B. Sessions, III; United States Department of

5 Justice; Executive Office for Immigration Review; Juan Osuna; Jennifer Barnes

6

Carlton Frederick Sheffield

Gisela A. Westwater

7

Gladys M. Steffens Guzman

Victor M. Mercado-Santana 8

carlton.f.sheffield@usdoj.gov gisela.westwater@usdoj.gov Gladys.Steffens-Guzman@usdoj.gov victor.m.mercado-santana@usdoj.gov

9

Attorneys for Amicus Attorney General of Washington

10

Patricio A. Marquez

11

12

PatricioM@atg.wa.gov chamenew@atg.wa.gov colleenm1@atg.wa.gov marshac@atg.wa.gov

13

Attorneys for Amicus American Civil Liberties Union of Washington (ACLU)

14

Andrew Garcia Murphy

15

16

Michael J. Ewart

agm@hcmp.com brenda.partridge@hcmp.com
jake.ewart@hcmp.com angie.perkins@hcmp.com

17

18

Attorneys for Amicus Fred T. Korematsu Center for Law and Equality

19

Benjamin D. Greenberg

20

21

Sarah Cox

22 Tzu-Huan Augustine Lo
23

greenberg.ben@dorsey.com johnston.natasha@dorsey.com
cox.sarah@dorsey.com, johnston.natasha@dorsey.com
lo.augustine@dorsey.com johnston.natasha@dorsey.com

24

Shawn J. Larsen-Bright

25

26

Robert Seungchul Chang

27

larsen.bright.shawn@dorsey.com price.molly@dorsey.com
changro@seattleu.edu robert.bob.chang@gmail.com

CERTIFICATE OF SERVICE (2:17-cv-00716-RAJ) - 1

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 54 Filed 06/30/17 Page 5 of 5

Zachary E. Davidson 1

2

Melissa R. Lee

3

4

DATED: June 30, 2017

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

davidson.zach@dorsey.com, slavik.jackie@dorsey.com leeme@seattleu.edu
By s/ James Harlan Corning James Harlan Corning, WSBA #45177

CERTIFICATE OF SERVICE (2:17-cv-00716-RAJ) - 2

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

 
 Case 2:17-cv-00716-RAJ Document 39 Filed 06/08/17 Page 1 of 7

The Honorable Richard A. Jones 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

10 NORTHWEST IMMIGRANT RIGHTS
PROJECT (“NWIRP”), a nonprofit Washington 11 public benefit corporation; and YUK MAN
MAGGIE CHENG, an individual, 12
Plaintiffs, 13
v. 14
JEFFERSON B. SESSIONS III, in his official 15 capacity as Attorney General of the United
States; UNITED STATES DEPARTMENT OF 16 JUSTICE; EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; JUAN OSUNA, in 17 his official capacity as Director of the Executive
Office for Immigration Review; and JENNIFER 18 BARNES, in her official capacity as
Disciplinary Counsel for the Executive Office 19 for Immigration Review,

No. 2:17-cv-00716
DECLARATION OFJAIME DROZD ALLEN IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Note on Motion Calendar: June 30, 2017

20

Defendants.

21

22

23

24

25

26

27
DECLARATION OF JAIME DROZD ALLEN RE: MOTION FOR PRELIMINARY INJUNCTION - 1 (Case No. 2:17-cv-00716)

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 39 Filed 06/08/17 Page 2 of 7

1 I, Jaime Drozd Allen, declare the following:
2 1. I am a partner with Davis Wright Tremaine LLP (“DWT”) and am counsel of
3 4 record for Plaintiffs in this matter. I have personal knowledge of the facts stated in this
5 declaration and am competent to testify to the same.

6

2. Attached hereto as EXHIBIT A is a true and correct copy of excerpts from the

7 Verbatim Report of Proceedings for the May 17, 2017 Temporary Restraining Order hearing

8 heard before Judge Richard A. Jones.
9 3. Attached hereto as EXHIBIT B is a true and correct copy of the Declaration of
10
Kursten Phelps, Director of Legal and Social Services at Tahirih Justice Center. 11

12

4. Attached hereto as EXHIBIT C is a true and correct copy of the Declaration of

13 R. Linus Chan, Clinical Professor of Law and Supervisor of Detainee Rights Clinic at the

14 James H. Binger Center for New Americans at the University of Minnesota Law School.

15

5. Attached hereto as EXHIBIT D is a true and correct copy of the Declaration of

16 Lisa Weissman-Ward, Clinical Supervising Attorney for Stanford Law School Immigrants’
17 Rights Clinic.
18

19

6. Attached hereto as EXHIBIT E is a true and correct copy of the Declaration of

20 Cristina Dos Santos, Senior Attorney for the Immigration Program at the Community Legal

21 Services in East Palo Alto.

22

7. Attached hereto as EXHIBIT F is a true and correct copy of the Declaration of

23 Jon Bauer and Jessica Anna Cabot with the University of Connecticut School of Law Asylum

24 and Human Rights Clinic.
25 8. Attached hereto as EXHIBIT G is a true and correct copy of the Declaration of
26

27

Caroline Devan Sennett, Staff Attorney and Site Supervisor for the Hartford Office of the
Davis Wright Tremaine LLP

DECLARATION OF JAIME DROZD ALLEN RE:

LAW OFFICES 1201 Third Avenue, Suite 2200

MOTION FOR PRELIMINARY INJUNCTION - 2

Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

(Case No. 2:17-cv-00716)

Case 2:17-cv-00716-RAJ Document 39 Filed 06/08/17 Page 3 of 7

International Institute of Connecticut. 1

2

9. Attached hereto as EXHIBIT H is a true and correct copy of the Declaration of

3 Muneer I. Ahmad, Clinical Professor of Law within the Worker and Immigrant Rights

4 Advocacy Clinic at Yale Law School.

5

10. Attached hereto as EXHIBIT I is a true and correct copy of the Declaration of

6 John Keller, Executive Director of the Immigrant Law Center of Minnesota.
7 11. Attached hereto as EXHIBIT J is a true and correct copy of the Declaration of
8
Richard Stolz, Executive Director of OneAmerica. 9

10

12. Attached hereto as EXHIBIT K is a true and correct copy of the Declaration of

11 Susan Roche, Executive Director of the Immigrant Legal Advocacy Project in Maine.

12

13. Attached hereto as EXHIBIT L is a true and correct copy of the Declaration of

13 Cheryl Little, Executive Director of Americans for Immigrant Justice.
14 14. Attached hereto as EXHIBIT M is a true and correct copy of the Declaration of
15 Judy London, Directing Attorney of the Immigrants’ Rights Project for Los Angeles Public
16
17 Counsel.

18

15. Attached hereto as EXHIBIT N is a true and correct copy of the Declaration of

19 Frances Miriam Kreimer, Senior Attorney at the Deportation Defense and Legal Advocacy

20 Program at Dolores Street Community Services.

21

16. Attached hereto as EXHIBIT O is a true and correct copy of the Declaration of

22 Nancy Kelly, Managing Attorney of the Immigration Unit at Greater Boston Legal Services.
23 17. Attached hereto as EXHIBIT P is a true and correct copy of the Declaration of
24

25 Juliann Bildhauer, Co-Director of Legal Services for Kids in Need of Defense (KIND).

26

18. Attached hereto as EXHIBIT Q is a true and correct copy of the Declaration of

27
DECLARATION OF JAIME DROZD ALLEN RE: MOTION FOR PRELIMINARY INJUNCTION - 3 (Case No. 2:17-cv-00716)

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 39 Filed 06/08/17 Page 4 of 7

Lynn Marcus, Professor of the Practice and Co-Director of the Immigration Law Clinic at the 1 2 University of Arizona James E. Rogers College of Law.

3

19. Attached hereto as EXHIBIT R is a true and correct copy of the Declaration of

4 Paul S. Zoltan, founder of the Refugee Support Network and liaison with Houston Asylum

5 Office of the American Immigration Lawyers Association.
6 20. Attached hereto as EXHIBIT S is a true and correct copy of the Declaration of
7 Valerie Anne Zukin, Lead Attorney Coordinator for the Northern Collaborative for Immigrant
8 Justice and attorney for the Justice & Diversity Center of The Bar Association of San
9
10 Francisco.

11

21. Attached hereto as EXHIBIT T is a true and correct copy of the Declaration of

12 Alison Pennington, Immigration Senior Staff Attorney at Centro Legal.

13

22. Attached hereto as EXHIBIT U is a true and correct copy of the Declaration of

14 Daniel Werner, Director of the Southeast Immigrant Freedom Initiative, a project of the
15 Southern Poverty Law Center.
16

17

23. Attached hereto as EXHIBIT V is a true and correct copy of the Declaration of

18 John H. Fleming, Pro Bono Partner at Eversheds Sutherland (US), LLP.

19

24. Attached hereto as EXHIBIT W is a true and correct copy of Declaration of

20 Ellyn Haikin Josef, Pro Bono Counsel at Vinson & Elkins, LLP.

21

25. Attached hereto as EXHIBIT X is a true and correct copy of the Declaration of

22 Stacey Slater, Pro Bono Partner at Nixon Peabody, LLP.
23 26. Attached hereto as EXHIBIT Y is a true and correct copy of the Declaration
24

25 from Rene A. Kathawala, Pro Bono Counsel at Orrick, Herrington & Sutcliffe LLP.

26

27. Attached hereto as EXHIBIT Z is a true and correct copy of the Declaration of

27
DECLARATION OF JAIME DROZD ALLEN RE: MOTION FOR PRELIMINARY INJUNCTION - 4 (Case No. 2:17-cv-00716)

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 39 Filed 06/08/17 Page 5 of 7

Leah E. Medway, Pro Bono Counsel at Perkins Coie LLP. 1

2

28. Attached hereto as EXHIBIT AA is a true and correct copy of the Declaration

3 of William A. Van Nortwick, Jr., Partner-in-charge of Pro Bono at Akerman LLP.

4

29. Attached hereto as EXHIBIT BB is a true and correct copy of the Declaration

5 of Audra J. Soloway, Partner and Co-Chair of Public Matters Committee at Paul Weiss Rifkind

6 Wharton & Garrison LLP.
7 30. Attached hereto as EXHIBIT CC is a true and correct copy of the Declaration
8
of Harrison J. Frahn, Litigation Partner at Simpson Thacher & Bartlett, LLP. 9

10

31. Attached hereto as EXHIBIT DD is a true and correct copy of the Declaration

11 of Kathryn Fritz, Managing Partner of Fenwick & West LLP.

12

32. Attached hereto as EXHIBIT EE is a true and correct copy of the Declaration

13 of David A. Lash, Managing Counsel for Pro Bono and Public Interest Services at O’Melveny
14 & Myers LLP.
15 33. Attached hereto as EXHIBIT FF is a true and correct copy of the Declaration of
16
17 Claire Loebs Davis, Seattle chair of the Pro Bono Committee at Lane Powell PC.

18

34. Attached hereto as EXHIBIT GG is a true and correct copy of the Declaration

19 of Maureen P. Alger, Pro Bono Partner for Cooley LLP.

20

35. Attached hereto as EXHIBIT HH is a true and correct copy of the Declaration

21 of Marjorie Press Lindblom, Counsel and Co-Chair of the Pro Bono Management Committee at
22 Kirkland & Ellis LLP.
23 36. Attached hereto as EXHIBIT II is a true and correct copy of the Declaration
24
25 and accompanying exhibit of Edward B. Murray, Mayor of the City of Seattle.

26

27
DECLARATION OF JAIME DROZD ALLEN RE: MOTION FOR PRELIMINARY INJUNCTION - 5 (Case No. 2:17-cv-00716)

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 39 Filed 06/08/17 Page 6 of 7

I declare under penalty of perjury under the laws of the United States of America that 1 2 the foregoing is true and correct to the best of my knowledge and belief.

3

EXECUTED at Seattle, Washington, this 8th day of June, 2017.

4

5

By: /s Jaime Drozd Allen

6

Jaime Drozd Allen, WSBA #35742

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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DECLARATION OF JAIME DROZD ALLEN RE: MOTION FOR PRELIMINARY INJUNCTION - 6 (Case No. 2:17-cv-00716)

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 39 Filed 06/08/17 Page 7 of 7

1

CERTIFICATE OF SERVICE

2

I hereby certify that on June 8, 2017, I filed the foregoing using CM/ECF which will

3 cause a copy to be sent to the following:

4

Attorneys for Defendants Jefferson B. Sessions, III Attorney General of the United

5

States; United States Department of Justice; Executive Office for Immigration Review; Juan Osuna; Jennifer Barnes

6 Carlton Frederick Sheffield

7

Gisela A. Westwater

Gladys M. Steffens Guzman

8

Victor M. Mercado-Santana

9

carlton.f.sheffield@usdoj.gov gisela.westwater@usdoj.gov Gladys.Steffens-Guzman@usdoj.gov; victor.m.mercado-santana@usdoj.gov victor.m.mercado@gmail.com

10

Attorneys for Amicus Attorney General of Washington

11

Patricio A. Marquez

12

13

PatricioM@atg.wa.gov, chamenew@atg.wa.gov, colleenm1@atg.wa.gov, marshac@atg.wa.gov

14

Attorneys for Amicus American Civil Liberties Union of Washington (ACLU)

15

Andrew Garcia Murphy

16

agm@hcmp.com, brenda.partridge@hcmp.com

17

Michael J. Ewart

jake.ewart@hcmp.com, angie.perkins@hcmp.com

18

19

Attorneys for Amicus Immigrant Legal Rights Organization

20

John J Connolly

jconnolly@zuckerman.com

21

Rachel F. Cotton

RCotton@zuckerman.com

22 By s/ Jaime Drozd Allen

23

Jaime Drozd Allen, WSBA #35742

Attorney for Plaintiffs 24

25

26

27
DECLARATION OF JAIME DROZD ALLEN RE: MOTION FOR PRELIMINARY INJUNCTION - 7 (Case No. 2:17-cv-00716)

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 39-1 Filed 06/08/17 Page 1 of 18
Exhibit A

Case 2:17-cv-00716-RAJ Document 39-1 Filed 06/08/17 Page 2 of 18
May 17, 2017 - 1

1

UNITED STATES DISTRICT COURT

2

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

3 ________________________________________________________________

)

4 NORTHWEST IMMIGRANT RIGHTS

) C17-00716-RAJ

PROJECT ("NWIRP"), a nonprofit )

5 Washington public benefit

) SEATTLE, WASHINGTON

corporation; and YUK MAN

)

6 MAGGIE CHENG, an individual,

) May 17, 2017

)

7

Plaintiffs,

) Temporary Restraining

) Order Hearing

8 v.

)

)

9 JEFFERSON B. SESSIONS III, in )

his official capacity as

)

10 Attorney General of the United )

States; UNITED STATES

)

11 DEPARTMENT OF JUSTICE;

)

EXECUTIVE OFFICE FOR

)

12 IMMIGRATION REVIEW; JUAN

)

OSUNA, in his official

)

13 capacity as Director of the

)

Executive Office for

)

14 Immigration Review; and

)

JENNIFER BARNES, in her

)

15 official capacity as

)

Disciplinary Counsel for the

)

16 Executive Office for

)

Immigration Review.

)

17

)

Defendants.

)

18

)

________________________________________________________________

19

VERBATIM REPORT OF PROCEEDINGS

20

BEFORE THE HONORABLE RICHARD A. JONES

UNITED STATES DISTRICT JUDGE

21 ________________________________________________________________

22 APPEARANCES:

23 For the Plaintiffs: 24 25

Jaime Drozd Allen James H. Corning Davis Wright Tremaine 1201 Third Avenue Suite 2200 Seattle, WA 98101

Proceedings stenographically reported and transcript produced with computed-aided technology

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May 17, 2017 - 2

1

Matt Adams

2

Northwest Immigrant Rights Project

615 2nd Avenue

3

Suite 400

Seattle, WA 98104

4

5 For the Defendants: 6 7 8

Victor Mercado-Santana Gisela Westwater Gladys Steffens Guzman U.S. Department of Justice Civil Division 450 5th Street N.W. Washington, DC 20001

9

10 11

12

13 14

15 16

17

18

19

20

21

22

23

24

25

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1

THE COURT: Let me ask you this, counsel. I'm trying to

2 look at the practical impact of the regulation and see if there's

3 some options or alternatives.

4

Are there any alternatives? In other words, is there any way

5 for NWIRP to assist immigrants by offering what I characterize as

6 light or low-cal legal services, for guiding them in the right

7 direction, without filing a notice of appearance?

8

MR. MERCADO-SANTANA: Yes. NWIRP has the ability to

9 provide many forms of legal assistance. In fact, many of the

10 things that NWIRP is claiming that they cannot do because of this 11 letter, they can actually do. For example, NWIRP wants to

12 engage -- wants to provide know-your-rights presentations to

13 immigrant populations; they want to be able to at least have

14 consultations with individuals. Those practices are not

15 prohibited by the regulation because those practices do not

16 trigger the clause that discusses engaging in auxiliary

17 activities.

18

THE COURT: Well, would you consider auxiliary

19 activities, for example, if there's a legal clinic? And I think

20 most cities -- and Seattle certainly does -- have legal clinics

21 and forums that a program provides, access-to-justice programs.

22 In those circumstances, if a lawyer is giving any type of advice

23 to an individual who comes and presents them with, for example, 24 any kind of issue affecting their status and says, "What do I do

25 with this document," once that lawyer answers that question, are

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1 they required to file that notice?

2

MR. MERCADO-SANTANA: Not necessarily, because providing

3 advice --

4

THE COURT: "Not necessarily" puts the lawyer in an

5 awkward and challenging position, doesn't it, counsel? Doesn't

6 that chill the effect of that lawyer's ability to represent their

7 client?

8

MR. MERCADO-SANTANA: No, it doesn't chill their ability

9 to represent the client. But the moment that the -- as a matter

10 of practice before the immigration court, the moment that the 11 attorney provides advice and then engages in additional action to

12 advance their case before the immigration court, at that moment,

13 there is a -- for the purposes of federal practice, there is

14 representation before the immigration court, and it is important

15 for the parties to know who is the person that is engaging in

16 that representation so that the practitioner becomes subject to

17 the jurisdiction of the Court, can be sanctioned if there are any

18 errors, any malpractice, the parties know who the person is, so

19 that the client can present an ineffective assistance of counsel,

20 which is a very common filing in immigration courts. And in

21 knowing who the practitioner is, there is a very strong interest

22 that is advanced in the filing-of-the-notice-of-appearance

23 requirement once the attorney engages in those additional 24 actions.

25

THE COURT: Well, let me ask a question, counsel. One

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1 of the arguments or the concepts advanced by NWIRP is that they

2 have high-volume responsibility.

3

MR. MERCADO-SANTANA: Uh-huh.

4

THE COURT: And because of that high-volume

5 responsibility, they max out at some point in time, in terms of

6 the number of individuals they can actually represent without

7 engaging in ineffective assistance of counsel. So my question to

8 you is, is there any way that they could continue to assist large

9 amounts of immigrants without taking on each immigrant as a full

10 client? Because as I interpret your regulation, once you touch 11 it -- it's essentially a no-touch rule -- if you touch it, it's

12 yours, full representation to the end.

13

MR. MERCADO-SANTANA: Well, two things, Your Honor.

14 First of all, the regulation is not just you have a contact with

15 the person and then you have representation. The regulation is

16 about circumstances, when the attorney or the attorney

17 practitioner engages in additional conduct.

18

Now, going to the question about how NWIRP can practice in

19 light of this regulation, I cannot make any comments or

20 suggestions about what NWIRP should or should not do in the sense

21 that I'm not familiar with their organization in that sense. But

22 in general terms, NWIRP is still allowed to consult with

23 individuals, to provide know-your-rights presentations, they can 24 still prepare forms, they can still engage in many of the average

25 activities that they want to engage in so long as they don't

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1 engage in acts that constitute providing advice and providing

2 actual additional assistance that is to be presented before the

3 immigration court.

4

THE COURT: Let me ask this, counsel. If an attorney

5 gives advice to a client, a prospective client, or someone that

6 comes to them, and the attorney dictates a motion, the client

7 types the motion, has the rule been triggered at that point in

8 time?

9

MR. MERCADO-SANTANA: If the client were to go ahead and

10 present it before the immigration court without the attorney, 11 then the rule, yes, it would be triggered. Because even

12 something like the writing of a brief, the preparation of

13 substantive legal argument, is recognized as the practice of

14 law, and having an individual present complicated arguments to

15 the Court in order to advance their case before the immigration

16 court, then, yes, there is representation.

17

I also would like to note that this rule regarding the entry

18 of appearances, that, in essence, pretty much prohibits practices

19 like ghostwriting. It is a practice that many federal courts

20 have found not to be permissible, at least for the purposes of

21 federal practice. In fact, in the notice and comments, when EOIR

22 first presented this rule, they articulated the rule was modeled

23 after Rule 11, the rule regarding sanctions in federal court. 24 Some tribunals that have reviewed the practice of ghostwriting,

25 where an attorney prepares the filing for an individual that is

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1

THE COURT: Well, from a practical standpoint, counsel.

2

MR. MERCADO-SANTANA: Yes.

3

THE COURT: So recognizing that that's more probably

4 than not the circumstance, and recognizing that the requirement

5 of filing a notice of appearance any time you touch a case would

6 be the effect of your rule, and that each of these agencies,

7 assuming that there's more than one, would max out or cap out at

8 some point in time, doesn't the effect of your rule seriously

9 decrease the amount of people that can actually be assisted or

10 helped in immigration-consequences cases?

11

MR. MERCADO-SANTANA: It might decrease the amount of

12 people that might be helped, but that is outweighed by the

13 compelling need of the immigration court system to ensure that

14 those who actually are represented enjoy the full representation

15 of the advocate. And whether NWIRP decides to represent or not

16 represent a person, that is a decision that they must take into

17 account given their limited resources. But as a matter of

18 policy, the immigration courts have determined that once an

19 attorney engages in these practices, then they need to represent

20 the individual in order to ensure the quality of the

21 representation and enforce any disciplinary action, if necessary.

22

THE COURT: Okay. Counsel, you just mentioned the magic

23 word, "quality of representation."

24

MR. MERCADO-SANTANA: Uh-huh.

25

THE COURT: And I don't think that you dispute that

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1 it is that's supporting that, that's getting behind the mask,

2 that anyone is filing paperwork or pleadings anonymously?

3

MR. MERCADO-SANTANA: Well, it is -- I mean, yeah, the

4 organization is saying that they did it, but the regulation of

5 practice before the immigration court is regulation of

6 practitioners, of individuals. And by not disclosing who the

7 person is, the interests of the immigration court, in being able

8 to regulate the individuals who practice, was frustrated by not

9 disclosing who the particular individual was.

10

THE COURT: Then let me ask you this, counsel: Your

11 organization received, I think it was just two letters from an

12 immigration judge about "What am I supposed to do with this,"

13 correct?

14

MR. MERCADO-SANTANA: Yeah, they received notice from

15 the immigration court.

16

THE COURT: Okay. So based upon the evidence that you

17 have in terms of the enforcement of that regulation, does EOIR

18 have evidence of any poor representation on the part of NWIRP?

19

MR. MERCADO-SANTANA: Based on the record, we don't have

20 any of that currently, right now, regarding NWIRP representation.

21 However, at the end of the day, these are rules of ethical

22 conduct, ethical behavior, which are designed for the general

23 protection of the public in order to ensure that practitioners 24 are good, in order to ensure that all of those attorneys deserve

25 the privilege of advocating for people, and they need to be

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1 applied evenly to all practitioners regardless of who they are

2 affiliated with.

3

So even though there may not be any evidence on the record

4 regarding NWIRP's precise quality of representation, the rules

5 must apply to all practitioners, regardless of who they are.

6

THE COURT: Well, counsel, was there ever any indication

7 that you had from any communication that you had from a

8 particular immigration judge or from any source that NWIRP was

9 deficient in any respect, that it filed false statements, engaged

10 in frivolous behavior or misconduct, or failed to even meet the 11 minimum standards of professional conduct? Was any of those

12 facts or concerns ever raised to your organization to pinpoint

13 NWIRP as the target or the scope of your cease and desist letter?

14

MR. MERCADO-SANTANA: At this moment, I don't have any

15 information regarding that, Your Honor. But, again, these are

16 rules that ought to apply to everyone, regardless of who they

17 are, in order to continue showing society, and the individuals

18 that are in immigration court can know that who is representing

19 them and knowing that -- and showing society that we, as

20 attorneys, comply with minimal standards imposed on us.

21

THE COURT: All right. Counsel, again, I'm trying to

22 dovetail exactly what it is that your regulation addresses. And

23 when I asked you about what appears to be transparent disclosure 24 by NWIRP, by the fact that they put their name on their pleading,

25 and in terms of your reference to they didn't tell you exactly

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1 know who it is, we're disclosing our entity -- not

2 individually -- but you clearly know the organization. If the

3 immigration judge had concerns who that organization was or who

4 was serving in that representative capacity, couldn't they have a

5 show cause or some type of order issued for the benefit of that

6 organization to say, "What capacity are you providing for us?"

7

MR. MERCADO-SANTANA: Well, the authority for

8 discipline would be by a referral to the disciplinary counsel.

9

As to the concerns regarding the notation, the issue is that,

10 as a matter of policy, the immigration court made a determination 11 that once an advocate provides advice and engages in additional

12 activities to advance their claim before the immigration courts,

13 that advocate is engaging in representation.

14

There are many concerns about notario fraud, there are many

15 concerns about quality of representation, of making sure that

16 the parties know who the advocate is in a case, which is why this

17 notice of appearance is required, and that is why the agency made

18 the determination that it is important, for purposes of

19 immigration practice, given the enormous amount of fraud, the

20 need of the parties to know who is doing the representation,

21 that's why the notice of appearance is required. It actually

22 would benefit the litigants that appear before the immigration

23 court.

24

Earlier I had mentioned an ineffective-assistance-of-counsel

25 claim. In immigration court, an individual can try to reopen a

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1 case because of ineffective assistance of counsel. That requires

2 the parties knowing who the counsel is. This so-called Lozada

3 requirement. And in many of those cases, one of the many

4 inquiries is making sure, finding out -- making sure that people

5 know who the advocate is so that the individual can tell the

6 advocate of his ineffectiveness, provide opportunity for the

7 advocate to respond, and file a complaint with the appropriate

8 bar jurisdiction. If the parties cannot agree, before any

9 problems happen, on who the advocate is, because they didn't file

10 a notice of appearance, that would hinder the ability of 11 litigants in immigration court to reopen their case when one of

12 its advocates might have provided ineffective assistance and a

13 need to reopen the case.

14

And so far -- I mean, so far, yes, the record does not

15 reflect that NWIRP has engaged in any ineffective assistance or

16 anything like that, but if in the future something were to

17 happen -- because even the best of us commit error -- if in the

18 future something were to happen, and one of these individuals who

19 appears pro se with complex pleadings prepared by NWIRP

20 attorneys, and that person later, in the future, needs to present

21 an ineffective assistance of counsel against an advocate in

22 NWIRP, it would cause difficulty for that person to present a

23 claim before the agency because there was never an indication of 24 who the advocate was.

25

THE COURT: You're talking about the individual as

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1 appearance in every single case that they have, and they reach

2 their limits or maximum in terms of what services that they can

3 provide? Doesn't that provide a chilling effect on NWIRP's

4 behavior, and in effect, impact the intended beneficiaries? In

5 other words, the ones facing the dire consequences are the ones

6 that can't get legal representation if NWIRP is capped out in

7 terms of who they can actually represent?

8

MR. MERCADO-SANTANA: Well, Your Honor, it doesn't

9 unduly chill their ability to continue their mission if they --

10 because at the moment that -- if they're working with an 11 individual, the moment that their work becomes practice before

12 the immigration court, at that moment, they should file their

13 notice of appearance and actually advocate for the individual in

14 court instead of letting them go on their own and face an

15 immigration court system on their own. If they're helping them,

16 if they're providing legal advice and assistance to these people,

17 they should appear before the immigration court.

18

And whether to take a case or not, whether to provide that

19 additional assistance, that is a question that NWIRP should

20 consider, given their resources. And they do recognize they have

21 limited resources. But that is something that they should

22 consider. And the government is not stopping them from doing any

23 of the other actions that they engage in. It's not stopping them 24 from approaching individuals who want legal assistance and

25 providing them advice about their rights. It's not providing

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1 them -- it's not blocking them from advocating for immigrants

2 before the press, before other groups, before the government.

3 It's not stopping them from many of the actions that they allege

4 in their complaint and in their motion.

5

The only thing that the immigration court is saying is that

6 the moment that your actions have advice and constitute auxiliary

7 activities, at that point, they're actually engaging in

8 representation before the immigration court and appearance is

9 required.

10

THE COURT: Counsel, let me get back to a couple cases

11 that I asked plaintiff about. I just want to ask you the same.

12 Both Button and In re Primus involve state regulations and

13 attorneys soliciting clients. This case involves federal

14 regulations and actual representation. Does that place this case

15 outside the realm of Button and its progeny, is the first

16 question.

17

MR. MERCADO-SANTANA: This case is clearly

18 distinguishable from all of those cases, because in Button and in

19 Primus, those are cases really about looking for clients, getting

20 those clients. The regulations here are in no way stopping NWIRP

21 from seeking people, from talking to them about their rights, to

22 providing know-your-rights presentations at any immigration

23 facility. In fact, the EOIR does provide them funds to engage in 24 many of these assistance programs.

25

So the only limitation here is about what happens once you

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1 take action in order to minimize this practice happening again in

2 the future.

3

THE COURT: Well, I can't tell, counsel, but doesn't it

4 appear that there was a pattern or practice of tolerance created

5 by EOIR's nonenforcement of this regulation until just now, just

6 at this time, with just this particular agency?

7

MR. MERCADO-SANTANA: Well, the immigration court has

8 not waived any rights to enforce this regulation based on

9 conversations with the agency. The agency has implemented -- has

10 enforced this regulation, but it's kind of a hard regulation 11 to -- it's hard to enforce when you don't know who the particular

12 person is. So, yeah, there are issues. But it doesn't change

13 the fact that the individual in federal court -- I'm sorry, in

14 the government, who is actually in charge of enforcing the

15 regulation, took action after learning about the practices of the

16 organization.

17

THE COURT: And, counsel, are you aware or do you know

18 how many other cease and desist communications are outstanding,

19 or is this the only one that's outstanding that you're aware of,

20 from your client's perspective?

21

MR. MERCADO-SANTANA: I'm not aware of any specific

22 example in other circumstances. But my understanding is, there

23 has been enforcement in other cases. I just don't have any 24 particular information about any other cases to represent to the

25 Court.

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1

THE COURT: But do you think you have other

2 circumstances where a cease and desist letter was issued to a

3 nonprofit organization under circumstances as now before this

4 Court? That's my question.

5

MR. MERCADO-SANTANA: That is my understanding. But I

6 would have to, in order to provide a definite answer, I would

7 like to consult with the agency to provide a more clear, detailed

8 response to that question. But at the end of the day, EOIR, the

9 disciplinary counsel's office, is the one that is in charge of

10 enforcing this regulation. So even if the immigration court in 11 Seattle or Tacoma might have interpreted it differently, or made

12 this agreement, they are not the individuals who are charged with

13 enforcing the regulation.

14

THE COURT: And just to be clear -- and I think you've

15 conceded this point -- the regulation does not bar the plaintiffs

16 from making statements at community workshops, the KYR, the

17 know-your-rights events, or legal clinics; is that correct?

18

MR. MERCADO-SANTANA: That is correct, so long as they

19 don't cross the line to actually providing advice and auxiliary

20 activity, which, in a memo from the Legal Orientation Program,

21 agencies like NWIRP have been provided guidance of where those

22 lines lay.

23

THE COURT: All right.

24

MR. MERCADO-SANTANA: But they can still engage in those

25 activities.

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1

THE COURT: So you don't have any problem with someone

2 at a legal clinic providing advice; is that correct?

3

MR. MERCADO-SANTANA: There is no problem with providing

4 advice, so long as they don't take the additional step of

5 providing auxiliary activities that advance the case before --

6

THE COURT: So if someone comes to a legal clinic and

7 says, "I have a legal form, I need to fill in the blanks, but I

8 need someone to assist me and give me some coaching or legal

9 advice on what I should include," does that cross the line, in

10 your interpretation?

11

MR. MERCADO-SANTANA: It depends if the attorney is

12 engaging in providing legal advice and is providing any

13 additional assistance. If the individual comes for help to

14 understand the form, to have the form explained to them, to

15 understand what the form means, to understand how to best answer

16 the question, it may not trigger the requirement; however -- but

17 the requirement triggers once the actions are taken to advance

18 the case before the immigration court.

19

THE COURT: Doesn't it require a lawyer to be placed in

20 an awkward position? That they never will know, if there's a

21 moving target, if they crossed the line or crossed the bar of

22 giving advice or merely coaching, to the fact that they now need

23 to transition into providing a formal notice? How is the lawyer 24 supposed to know?

25

MR. MERCADO-SANTANA: Well, the lawyer would know if --

Nickoline Drury - RMR, CRR - Official Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case 2:17-cv-00716-RAJ Document 39-1 Filed 06/08/17 Page 18 of 18
May 17, 2017 - 59

1 I mean, based on their experience, they understand what --

2 lawyers understand what providing legal advice is. There is

3 clearly a difference in providing legal advice and providing

4 assistance, providing information. There's also a difference

5 between helping somebody prepare forms versus providing an

6 individual substantive information and aid and assistance in

7 order to present -- to apply the facts to the legal law, to the

8 legal framework.

9

THE COURT: So in your interpretation, you don't think

10 that that presents a chilling effect upon the lawyer or the 11 lawyer's ability to provide representation for their client under

12 those circumstances?

13

MR. MERCADO-SANTANA: It would not cause an undue burden

14 on the lawyer. Lawyers have the knowledge and experience of

15 distinguishing between providing legal advice and providing legal

16 information. And the EOIR has provided guidance in order to

17 provide -- to provide guidance in order to narrow -- to give a

18 better understanding to practitioners about what is permissible

19 and what is not permissible.

20

THE COURT: So if my understanding is correct of what

21 you are saying is, it's a burden, but it's just not an undue

22 burden; is that correct, counsel?

23

MR. MERCADO-SANTANA: That is correct, Your Honor.

24

THE COURT: Anything else that you want to add, counsel?

25

MR. MERCADO-SANTANA: I just would like to quickly add,

Nickoline Drury - RMR, CRR - Official Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

Case 2:17-cv-00716-RAJ Document 39-2 Filed 06/08/17 Page 1 of 5
Exhibit B

Case 2:17-cv-00716-RAJ Document 39-2 Filed 06/08/17 Page 2 of 5

Case 2:17-cv-00716-RAJ Document 39-2 Filed 06/08/17 Page 3 of 5

Case 2:17-cv-00716-RAJ Document 39-2 Filed 06/08/17 Page 4 of 5

Case 2:17-cv-00716-RAJ Document 39-2 Filed 06/08/17 Page 5 of 5

Case 2:17-cv-00716-RAJ Document 39-3 Filed 06/08/17 Page 1 of 5
Exhibit C

Case 2:17-cv-00716-RAJ Document 39-3 Filed 06/08/17 Page 2 of 5

Case 2:17-cv-00716-RAJ Document 39-3 Filed 06/08/17 Page 3 of 5

Case 2:17-cv-00716-RAJ Document 39-3 Filed 06/08/17 Page 4 of 5

Case 2:17-cv-00716-RAJ Document 39-3 Filed 06/08/17 Page 5 of 5

Case 2:17-cv-00716-RAJ Document 39-4 Filed 06/08/17 Page 1 of 5
Exhibit D

Case 2:17-cv-00716-RAJ Document 39-4 Filed 06/08/17 Page 2 of 5

The Honorable Richard A. Jones
1

2

3

4

5

6

7
UNITED STATES DISTRICT COURT

8

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

NORTHWEST IMMIGRANT RIGHTS 10 PROJECT (“NWIRP”), a nonprofit Washington

11

public benefit corporation; and YUK MAN MAGGIE CHENG, an individual,

No. 2:17-cv-00716

12
Plaintiffs,
13
v.
14
JEFFERSON B. SESSIONS III, in his official 15 capacity as Attorney General of the United
States; UNITED STATES DEPARTMENT OF 16 JUSTICE; EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; JUAN OSUNA, in 17 his official capacity as Director of the Executive
Office for Immigration Review; and JENNIFER 18 BARNES, in her official capacity as Disciplinary
Counsel for the Executive Office for Immigration 19 Review,

DECLARATION OF LISA WEISSMANWARD

20

Defendants.

21

22

I, Lisa Weissman-Ward, declare as follows:

23

1. I am over the age of eighteen, am competent to testify as to the matters below, and

24
make this declaration based on personal knowledge.
25

2. I am the Clinical Supervising Attorney for the Stanford Law School Immigrants’
26

27 Rights Clinic (“Clinic”). Together with the clinic director, Jayashri Srikantiah, I supervise law

28 DECL. OF LISA WEISSMAN-WARD – 1 Case No. 2:17-cv-00716

Stanford Law School
Immigrants’ Rights Clinic
559 Nathan Abbott Way Stanford, CA 94305
650-724-7396 phone ·650-723-4426 fax

Case 2:17-cv-00716-RAJ Document 39-4 Filed 06/08/17 Page 3 of 5

students in providing a wide range of direct services, including removal defense work before the
1
2 Immigration Court, the Board of Immigration Appeals, the Federal Courts of Appeals and the United

3 States Citizenship and Immigration Service). Under our supervision, students also engage in
4 advocacy and policy work, much of which is aimed at ensuring access to justice for immigrants and
5
their families.
6
3. The advocacy and policy work of the Clinic often focuses on expanding public and
7
8 private funding for legal services for noncitizens facing removal and on empowering noncitizens to

9 represent themselves in removal proceedings where counsel is simply not available.
10
4. The Clinic is a member of the Northern California Collaborative for Immigrant
11
Justice, a collaborative whose principal goal is advocating for increased access to legal services for
12
13 individuals in removal proceedings. In 2014, the Clinic, on behalf of the collaborative, published the

14 first report in California that examined and analyzed the role and impact of counsel for detained

15 immigrants in removal proceedings. The report was instrumental in helping to secure increased
16
funding for detained removal defense attorneys in Northern California.
17
5. The Clinic is also a member of the Northern California Rapid Response coalition, a
18
19 coalition made up of government entities, non-profits, law school clinics, community based

20 organizations, and private practitioners. The coalition seeks to ensure access to information,

21 education, and legal services for noncitizens subject to increased enforcement/raids/arrests. I
22
recently organized, planned and facilitated a 100 + person convening focused on local rapid response
23
networks, local capacity, and the need to be able to provide legal services, including limited scope
24
25 advice to pro se individuals.

26

6. Under my supervision, Clinic students have created and distributed many pro se

27
materials that provide information and resources to individuals who are unable to secure
28

DECL. OF LISA WEISSMAN-WARD – 2 Case No. 2:17-cv-00716

Stanford Law School
Immigrants’ Rights Clinic
559 Nathan Abbott Way Stanford, CA 94305
650-724-7396 phone ·650-723-4426 fax

Case 2:17-cv-00716-RAJ Document 39-4 Filed 06/08/17 Page 4 of 5

immigration counsel. The Clinic has prepared the following materials: a Pro Se U Visa Manual; a
1
2 Pro Se Guide to Defending Oneself in Reinstatement of Removal Proceeding; a Pro Se Guide for

3 individuals subject to ankle monitors as part of the Intensive Supervision Appearance Program; and
4 a Pro Se Guide for Asylum Seekers in removal proceedings before the San Francisco Immigration
5
Court. Each of these guides has the goal of providing legal advice to pro se individuals in removal
6
proceedings. It is my understanding that noncitizens have used these guides to defend themselves
7
8 against removal when they have been unable to secure full scope legal representation.

9

7. Under my supervision, Clinic law students have served as pro bono “Attorneys of the

10
Day (AOD)” through the Bar Association of San Francisco’s AOD program. As AODs, law
11
students and I have conducted intakes, preliminary legal assessment screenings, and have
12
13 represented pro se respondents during their master calendar court appearances. The representation

14 has been limited in scope, without the entry of a Form G-28, and has entailed providing legal advice

15 as is appropriate.
16
8. In addition to the advocacy and policy work associated directly with the Clinic, I am a
17
faculty advisor for one of the most popular and well-staffed pro bono programs at the law school: the
18
19 Immigration Pro Bono. This pro bono project involves students attending intake nights at a local

20 immigration non-profit, Community Legal Services of East Palo Alto. During these intake nights,

21 students, under my supervision or that of other trained immigration attorneys, are responsible for
22
conducting intakes and engaging in screenings in order to make preliminary assessments relating to
23
possible avenues to securing lawful immigration status (or to maintaining lawful immigration
24
25 status). Much of the Immigration Pro Bono work is focused on providing limited scope pro bono

26 legal assistance. Students participate in general intake nights as well as asylum clinic intake nights.

27
During the asylum clinic intake nights, students assist noncitizens to prepare and respond to
28

DECL. OF LISA WEISSMAN-WARD – 3 Case No. 2:17-cv-00716

Stanford Law School
Immigrants’ Rights Clinic
559 Nathan Abbott Way Stanford, CA 94305
650-724-7396 phone ·650-723-4426 fax

Case 2:17-cv-00716-RAJ Document 39-4 Filed 06/08/17 Page 5 of 5

questions in the Form I-589. In the 2016-2017 school year, there were approximately 60 students
1
2 who participated in this pro bono program.

3

9. I am extremely concerned with the cease-and-desist letter, dated April 5, 2017 from

4 the Office of General Counsel of the Executive Office of Immigration Review to the Northwest
5
Immigrant Rights Project (NWIRP). The letter appears to be an attempt to limit and thwart NWIRP
6
(and many others, including the IRC’s) ability to provide consultations and advice to pro se litigants.
7

8 The letter also appears to require that a nonprofit (or any attorney for that matter) either commit to

9 full legal representation of noncitizens seeking legal advice or to refrain from engaging with the
10
immigrant all together. I have learned from years of experience that it is simply impossible to
11
choose between one and the other. The Clinic does not have the capacity to agree to represent (full
12
13 scope) every individual with whom it consults. Our students are assigned cases that allow for

14 pedagogical engagement and teaching opportunities. We are only able to provide our students with

15 close supervision and critical feedback because of our limited caseload.
16

17
I declare under penalty of perjury of the laws of the State of California and the United States that the
18
19 foregoing is true and correct to the best of our knowledge and belief.

20

21 Executed this 31st day of May, 2017 in Stanford, California.
22

23

24

25
Lisa Weissman-Ward
26

27

28 DECL. OF LISA WEISSMAN-WARD – 4 Case No. 2:17-cv-00716

Stanford Law School
Immigrants’ Rights Clinic
559 Nathan Abbott Way Stanford, CA 94305
650-724-7396 phone ·650-723-4426 fax

Case 2:17-cv-00716-RAJ Document 39-5 Filed 06/08/17 Page 1 of 4
Exhibit E

Case 2:17-cv-00716-RAJ Document 39-5 Filed 06/08/17 Page 2 of 4

Case 2:17-cv-00716-RAJ Document 39-5 Filed 06/08/17 Page 3 of 4

Case 2:17-cv-00716-RAJ Document 39-5 Filed 06/08/17 Page 4 of 4

Case 2:17-cv-00716-RAJ Document 39-6 Filed 06/08/17 Page 1 of 5
Exhibit F

Case 2:17-cv-00716-RAJ Document 39-6 Filed 06/08/17 Page 2 of 5

Case 2:17-cv-00716-RAJ Document 39-6 Filed 06/08/17 Page 3 of 5

Case 2:17-cv-00716-RAJ Document 39-6 Filed 06/08/17 Page 4 of 5

Case 2:17-cv-00716-RAJ Document 39-6 Filed 06/08/17 Page 5 of 5

Case 2:17-cv-00716-RAJ Document 39-7 Filed 06/08/17 Page 1 of 7
Exhibit G

Case 2:17-cv-00716-RAJ Document 39-7 Filed 06/08/17 Page 2 of 7

Case 2:17-cv-00716-RAJ Document 39-7 Filed 06/08/17 Page 3 of 7

Case 2:17-cv-00716-RAJ Document 39-7 Filed 06/08/17 Page 4 of 7

Case 2:17-cv-00716-RAJ Document 39-7 Filed 06/08/17 Page 5 of 7

Case 2:17-cv-00716-RAJ Document 39-7 Filed 06/08/17 Page 6 of 7

Case 2:17-cv-00716-RAJ Document 39-7 Filed 06/08/17 Page 7 of 7

Case 2:17-cv-00716-RAJ Document 39-8 Filed 06/08/17 Page 1 of 6
Exhibit H

Case 2:17-cv-00716-RAJ Document 39-8 Filed 06/08/17 Page 2 of 6

The Honorable Richard A. Jones
1

2

3

4

5

6

7
UNITED STATES DISTRICT COURT

8

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

NORTHWEST IMMIGRANT RIGHTS 10 PROJECT (“NWIRP”), a nonprofit Washington

11

public benefit corporation; and YUK MAN MAGGIE CHENG, an individual,

No. 2:17-cv-00716

12
Plaintiffs,
13
v.
14
JEFFERSON B. SESSIONS III, in his official 15 capacity as Attorney General of the United
States; UNITED STATES DEPARTMENT OF 16 JUSTICE; EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; JUAN OSUNA, in 17 his official capacity as Director of the Executive
Office for Immigration Review; and JENNIFER 18 BARNES, in her official capacity as Disciplinary
Counsel for the Executive Office for Immigration 19 Review,

DECLARATION OF MUNEER I. AHMAD

20

Defendants.

21

22

23

24

25

26

27

28

DECL. OF MUNEER AHMAD – 1 Case No. 2:17-cv-00716

Case 2:17-cv-00716-RAJ Document 39-8 Filed 06/08/17 Page 3 of 6

I, Muneer I. Ahmad, declare as follows:
1

2

1. I am over the age of eighteen, am competent to testify as to the matters below, and

3 make this declaration based on personal knowledge.

4
2. I am a Clinical Professor of Law within the Worker and Immigrant Rights Advocacy
5
Clinic (WIRAC or “the clinic”) of the Jerome N. Frank Legal Services Organization (LSO) at Yale
6
Law School. The clinic is located at 127 Wall Street, New Haven, CT 06511.
7

8

3. Under the supervision of attorneys like myself, law student interns within WIRAC

9 represent immigrants, low-wage workers, and organizations in labor, immigration, criminal justice,
10
civil rights, and other matters. The clinic works on cases in all stages of the removal process—in
11
Immigration Court, before the Board of Immigration Appeals, and in the U.S. Courts of Appeals for
12
13 the First and Second Circuits—as well as in federal district courts and state courts in the region.

14 WIRAC has represented both detained and non-detained clients, and the clinic regularly works on

15 issues that affect the national conversation about immigrant rights, including advocacy against

16
detainer use and family detention, challenges to the Executive Order on the Muslim travel ban, and
17
defense of the Deferred Action for Childhood Arrivals program.
18

19

4. One of WIRAC’s cases includes a habeas class action, Reid v. Donelan, Case No.

20 3:13-cv-30125, in the U.S. District Court of Massachusetts and the U.S. Court of Appeals for the

21 First Circuit. As Reid class counsel, WIRAC represents all immigrants detained under 8 U.S.C. §
22
1226(c) for over six months in Massachusetts who have not been afforded a bond hearing. Within
23
the clinic’s capacity as class counsel, clinic members regularly visit the four immigration detention
24
25 facilities in Massachusetts—Bristol County, Franklin County, Plymouth, and Suffolk County—in

26 order to meet detainees and screen for potential class members, to whom WIRAC may provide
27
limited legal advice, such as information on appealing to the Board of Immigration Appeals or filing
28

DECL. OF MUNEER AHMAD – 2 Case No. 2:17-cv-00716

Case 2:17-cv-00716-RAJ Document 39-8 Filed 06/08/17 Page 4 of 6

petitions for review and habeas petitions to challenge post-removal detention. The clinic also seeks
1
2 pro bono counsel representation for Reid class members who have bond hearings scheduled pursuant

3 to the District Court order. For some class members, WIRAC has provided bond-only representation

4
as well as limited assistance on their immigration cases. The clinic has had almost 90 Reid class
5
members in total since 2014, and the clinic regularly meets or speaks with dozens of detainees each
6
semester.
7

8

5. Effective representation as Reid class counsel depends on the clinic’s ability to

9 communicate with and provide assistance, including limited assistance, to detainees in
10
Massachusetts. Most detained individuals that WIRAC meets are pro se in their removal proceedings
11
and cannot afford an attorney. While these individuals may potentially become Reid class members,
12
13 they face tremendous barriers in litigating their immigration cases because of difficulty in

14 communicating with outside parties or following complicated procedures for appeals. Thus, while

15 the clinic cannot formally represent all potential or actual class members in their removal
16
proceedings, it provides limited pro bono assistance on discrete tasks, such as reaching out to law
17
enforcement agencies for U-visa certification, or filing petitions for review and motions for stay of
18
19 removal.

20

6. In addition to the clinic’s representation of detained individuals in Reid v. Donelan,

21 WIRAC provides limited pro bono legal assistance through the Legal Orientation Program (LOP) at
22
the immigration detention facility in Franklin County. Since 2007, WIRAC has been the only legal
23
services organization that is certified to visit and provide LOP services to detained individuals at that
24
25 facility. In that capacity, the clinic visits the facility at least once or twice a semester, gives a Know

26 Your Rights presentation, conducts intakes of dozens of detainees, and follows up with letters
27
providing detailed legal advice on their immigration cases. WIRAC provides these services in both
28

DECL. OF MUNEER AHMAD – 3 Case No. 2:17-cv-00716

Case 2:17-cv-00716-RAJ Document 39-8 Filed 06/08/17 Page 5 of 6
English and Spanish, and often has capacity for additional languages. While the clinic does not have
1
2 the capacity to formally represent most of the individuals it meets, WIRAC provides critical
3 information such as: an explanation of the forms of relief that are available to each detainee;
4
instructions on how to appeal cases and contest their detention; country conditions research and
5
documentation for asylum, withholding and Convention Against Torture claims; and general
6
resources on U-visas, Padilla habeas petitions, and bond hearings. Thus, detainees at Franklin,
7
8 particularly those who are pro se, rely heavily on WIRAC’s capacity to continue providing pro bono
9 legal services.
10
7. Based on the experiences detailed in the paragraphs above, I am seriously concerned
11
about the cease-and-desist letter sent from the Executive Office for Immigration Review (EOIR) to
12
13 the Northwest Immigrant Rights Project (NWIRP), and the implications of EOIR’s interpretation of
14 the Rules and Procedures of Professional Conduct for Practitioners on immigrant rights advocacy
15 groups like WIRAC.
16
8. According to EOIR’s position in the cease-and-desist letter, any attorney who assists
17
in the preparation of a pro se motion would be required to enter a formal appearance. This places
18
19 organizations like WIRAC in a untenable position: either overextend our capacities to take on full
20 representation of a few individuals, or cease providing pro bono legal services altogether to 21 detainees who otherwise have little to no alternative resources. Detainees in Massachusetts, and at
22
Franklin County in particular, would be forced to represent themselves in removal proceedings and
23
risk being deported, despite having relief available, without the limited but crucial legal services that
24
25 we provide. Moreover, the clinic’s representation of detained individuals as Reid class counsel
26 would be severely constrained if it could not provide limited advice on their immigration cases
27
beyond their bond hearings.
28
DECL. OF MUNEER AHMAD – 4 Case No. 2:17-cv-00716

Case 2:17-cv-00716-RAJ Document 39-8 Filed 06/08/17 Page 6 of 6

9. I believe that rules like 8 C.F.R. § 1003.102(t) are meant to discipline practitioners,
1
2 often non-lawyers, who take advantage of immigrants to charge fees to file paperwork without

3 formally entering an appearance. However, EOIR’s interpretation of the rules to cover attorneys
4
providing pro bono legal advice and assistance to pro se individuals purposely distorts the meaning
5
of the unauthorized practice rules. Based on the clinic’s experiences, I believe EOIR’s interpretation
6
seeks to, and will, chill organizations like WIRAC who only intend to provide as much quality, free
7
8 legal assistance to as many individuals who would otherwise not afford any such aid.

9

I declare under penalty of perjury of the laws of the State of Connecticut and the United

10
States that the foregoing is true and correct to the best of my knowledge and belief.
11
Executed this first day of June, 2017 in Washington, DC.
12

13

14

MUNEER I. AHMAD

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DECL. OF MUNEER AHMAD – 5 Case No. 2:17-cv-00716

Case 2:17-cv-00716-RAJ Document 39-9 Filed 06/08/17 Page 1 of 8
Exhibit I

Case 2:17-cv-00716-RAJ Document 39-9 Filed 06/08/17 Page 2 of 8

Case 2:17-cv-00716-RAJ Document 39-9 Filed 06/08/17 Page 3 of 8

Case 2:17-cv-00716-RAJ Document 39-9 Filed 06/08/17 Page 4 of 8

Case 2:17-cv-00716-RAJ Document 39-9 Filed 06/08/17 Page 5 of 8

Case 2:17-cv-00716-RAJ Document 39-9 Filed 06/08/17 Page 6 of 8

Case 2:17-cv-00716-RAJ Document 39-9 Filed 06/08/17 Page 7 of 8

Case 2:17-cv-00716-RAJ Document 39-9 Filed 06/08/17 Page 8 of 8

Case 2:17-cv-00716-RAJ Document 39-10 Filed 06/08/17 Page 1 of 9
Exhibit J

Case 2:17-cv-00716-RAJ Document 39-10 Filed 06/08/17 Page 2 of 9

1

The Honorable Richard A. Jones

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 NORTHWEST IMMIGRANT RIGHTS

PROJECT (“NWIRP”), a nonprofit Washington 10 public benefit corporation; and YUK MAN

11

MAGGIE CHENG, an individual, Plaintiffs,

12

v.

13 JEFFERSON B. SESSIONS III, in his official

capacity as Attorney General of the United 14 States; UNITED STATES DEPARTMENT OF

15

JUSTICE; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; JUAN OSUNA, in

16 his official capacity as Director of the Executive Office for Immigration Review; and JENNIFER

17 BARNES, in her official capacity as

Disciplinary Counsel for the Executive Office 18 for Immigration Review,

19

Defendants.

No. 2:17-cv-00716 RAJ
ONE AMERICA’S DECLARATION REGARDING DOJ CEASE & DESIST LETTER

20

Richard Stolz declares as follows:

21

1. Declarant. I am an American citizen who came to the United States from Korea with

22 my parents when I was 3 years old. I am now the Executive Director of OneAmerica. I am over

23 18 years of age, have personal knowledge of the matters stated below, and am competent to testify

24 to them.

25

2. Roadmap. To provide context for this OneAmerica declaration, paragraphs 3-5 briefly

26 summarize who we are, who we serve, and who we rely upon. Paragraph 6 then describes several

ONE AMERICA’S DECLARATION REGARDING DOJ CEASE & DESIST LETTER - 1 Case No. 2:17-cv-00716
51611568.8

FOSTER PEPPER PLLC
1111 THIRD AVENUE, SUITE 3000 SEATTLE, WASHINGTON 98101‐3299 PHONE (206) 447‐4400 FAX (206) 447‐9700

Case 2:17-cv-00716-RAJ Document 39-10 Filed 06/08/17 Page 3 of 9

1 harms that the Department of Justice’s cease & desist letter imposes upon OneAmerica and the

2 Washington residents we serve. Paragraph 7 then summarizes how the Department of Justice

3 imposing those harms is not consistent with the justice for all promised in our nation’s pledge of

4 allegiance.

5

3. Who We Are. Originally organized under the name “Hate Free Zone”, OneAmerica

6 was founded immediately after September 11, 2001 to address the post 9/11 backlash against

7 America’s immigrant communities. A registered 501(c)(3) organization and Washington

8 nonprofit corporation, we are the largest immigrant advocacy organization in our State, and play

9 a leading role in national coalitions working, speaking, and advocating in the immigrant rights

10 and due process arenas. For example, we participate as amicus in deportation litigation, submit

11 filings in support of individuals facing deportation, and run the law-related immigrant and

12 refugee assistance programs discussed in paragraph 6 below. We also conduct direct outreach,

13 leadership development, and organizing programs through which we empower immigrants and

14 refugees to advocate on their own behalf, collectively, on local, state and national matters that

15 directly impact themselves, their families, and communities

16

4. Who We Serve. We serve immigrants and refugees throughout the State of Washington,

17 including over 1,000 families a year in the Puget Sound, Vancouver (WA), and Yakima areas. Put

18 bluntly, we serve newcomers who have journeyed here to work and live in the freedom of the

19 America that President Reagan described as the world’s “shining city on a hill”, the America whose

20 statue of liberty declares with a large bronze plaque at its base: “Give me your tired, your poor,

21 your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send

22 these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!” We provide

23 assistance and organization to newcomers to help them fully realize the promise of our nation.

24

5. Who We Rely Upon. Paragraph 6 below describes several of the services we provide

25 to advance fundamental principles of democracy and justice in our State’s immigrant

26 communities. In providing these services, we heavily rely upon the legal assistance of key allies

ONE AMERICA’S DECLARATION REGARDING DOJ CEASE & DESIST LETTER - 2 Case No. 2:17-cv-00716
51611568.8

FOSTER PEPPER PLLC
1111 THIRD AVENUE, SUITE 3000 SEATTLE, WASHINGTON 98101‐3299 PHONE (206) 447‐4400 FAX (206) 447‐9700

Case 2:17-cv-00716-RAJ Document 39-10 Filed 06/08/17 Page 4 of 9

1 like Northwest Immigrant Rights Project and pro-bono attorneys. We rely upon them because

2 OneAmerica lacks the resources to employ the legal counsel needed to assist the immigrants and

3 refugees we serve. The legal knowledge, skills, and assistance that Northwest Immigrant Rights

4 Project and pro-bono attorneys provide us are critical to enabling the immigrants and refugees

5 we serve to successfully make their way through the maze of legal technicalities, requirements,

6 hurdles, traps, landmines, and barriers set up under federal law.

7

6. Real World Harms. The following subparagraphs summarize just three areas of harm

8 to OneAmerica and the Washington residents we serve that flow from the Department of Justice’s

9 cease & desist letter:

10

(a) Know Your Legal Rights Project. OneAmerica conducts know-your-legal-rights

11 trainings in Seattle, SeaTac, Tukwila, Kent, Auburn, Tacoma, Redmond, Shoreline, Everett,

12 Mount Vernon, Vancouver (WA), Ellensburg, Yakima, and Everett to inform immigrants and

13 refugees of their legal rights and how to exercise them in our democracy. Providing this legal

14 assistance is a complicated endeavor because new immigrants and refugees face a complex legal

15 web of forms, paperwork, statutes, regulations, rules, and judicial proceedings. Neither

16 OneAmerica nor the people we serve, however, have the resources to hire legal professionals to

17 provide the legal knowledge and skills essential for these trainings and ensuing follow-up with

18 individuals who need additional legal aid. We therefore depend upon the active pro-bono

19 assistance of lawyers and federally accredited non-lawyer representatives trained and

20 knowledgeable in this field of the law who are authorized by the Department of Justice through,

21 e.g., its Board of Immigration Appeals (BIA) to provide immigrants legal assistance.

22

Because of these attorneys upon whom we rely, a significant component of our know-your-

23 legal-rights trainings occurs when people have an opportunity at the end to come up to the

24 participating attorneys, ask individual questions, and receive individual legal advice on matters such

25 as legal assistance on which government forms that individual needs to file and how to properly

26 answer specific questions on those forms. The legal assistance that Northwest Immigrant Rights

ONE AMERICA’S DECLARATION REGARDING DOJ CEASE & DESIST LETTER - 3 Case No. 2:17-cv-00716
51611568.8

FOSTER PEPPER PLLC
1111 THIRD AVENUE, SUITE 3000 SEATTLE, WASHINGTON 98101‐3299 PHONE (206) 447‐4400 FAX (206) 447‐9700

Case 2:17-cv-00716-RAJ Document 39-10 Filed 06/08/17 Page 5 of 9

1 Project (NWIRP) and its affiliated attorneys provide to OneAmerica and the individuals we serve

2 is therefore essential. It’s legal assistance that can begin with those attorneys helping guide an

3 immigrant or refugee with his or her initial legal paperwork at the training, and then (depending

4 on the attorney’s other legal commitments) proceed to additional legal assistance as the legal

5 process for that individual progresses.

6

If the Department of Justice requires an attorney who steps in at any point to help an

7 immigrant or refugee in need of legal assistance relating to their immigration proceeding to also

8 commit to continue providing legal assistance until that individual’s legal proceedings are over,

9 the Department of Justice effectively hamstrings our know-your-legal-rights project by

10 preventing our participating attorneys from temporarily stepping in on an emergency basis to

11 help an immigrant or refugee in need of legal assistance at an important point in their

12 immigration proceeding. For example, requiring an attorney to formally enter a notice of

13 appearance with the immigration court, Executive Office of Immigration Review (EOIR), or BIA

14 would bind that attorney to then provide that individual with legal representation for the duration

15 of that individual’s immigration proceedings – which is a substantial long-term commitment

16 since, for example, legal proceedings before the EOIR can go on for years. As the Department

17 of Justice must be well informed enough to know, that is not a long-term commitment that the

18 pro-bono counsel upon whom our know-your-legal-rights project depends can make. In this

19 way, the Department’s cease & desist letter is analogous to the federal government ordering an

20 EMT to cease & desist providing medical assistance to persons in emergency situations unless

21 that EMT commits to continue providing that person’s needed medical assistance until that

22 person recovers (or dies). Since an EMT cannot make that long-term commitment, such a cease

23 & desist order would effectively halt EMT medical assistance to persons in emergency

24 situations.

25

In short, enforcement of the Department of Justice’s cease & desist letter does not curtail the

26 existing need for the competent legal assistance our know-your-legal-rights project provides to

ONE AMERICA’S DECLARATION REGARDING DOJ CEASE & DESIST LETTER - 4 Case No. 2:17-cv-00716
51611568.8

FOSTER PEPPER PLLC
1111 THIRD AVENUE, SUITE 3000 SEATTLE, WASHINGTON 98101‐3299 PHONE (206) 447‐4400 FAX (206) 447‐9700

Case 2:17-cv-00716-RAJ Document 39-10 Filed 06/08/17 Page 6 of 9

1 immigrants and refugees. Enforcement would instead curtail the availability of that needed legal

2 assistance and our know-your-legal-rights project’s ability to provide it. As the Department of

3 Justice is surely well informed enough to know, an immigrant or refugee unable to secure

4 competent legal advice faces loss of liberty (detention), loss of property (through scams and “help”

5 from legal advisors not authorized or accredited by EOIR, BIA, etc.), and even loss of life

6 (deportation back into the danger from which the immigrant or refugee fled). The Department of

7 Justice endangering the life, liberty, or property of immigrants and refugees in this way imposes

8 significant and immediate harm on OneAmerica and the individuals and communities we serve.

9

(b) New Americans Program and Citizenship Clinic Program. OneAmerica also

10 coordinates a “new Americans” program to provide limited legal services regarding immigration

11 and naturalization to newcomers to our country. Every year since 2009, OneAmerica has also

12 coordinated a joint “citizenship clinic” program with the American Immigration Lawyers

13 Association to provide legal assistance to immigrants and refugees on citizenship day in April. For

14 example, our April 2017 citizenship clinics were conducted in Tacoma, Vancouver (WA), and

15 Yakima.

16

The cease & desist letter’s effect on these programs is similar to its effect on our know-your-

17 legal-rights project, because: these programs coordinate with volunteer lawyers throughout the

18 State to provide the legal knowledge and skills essential for these programs and ensuing follow-up

19 with individuals who need additional legal aid; these programs depend upon the active pro-bono

20 assistance of lawyers knowledgeable in this field of the law; the legal assistance provided by those

21 attorneys is essential to these programs’ ability to help guide immigrants and refugees through

22 the legal process since that assistance provides needed legal advice such as whether the person

23 qualifies to submit the applications and follow-up help properly filling out the necessary forms;

24 and the practical effect of requiring an attorney who steps in at any point to help an individual in

25 this legal process to also commit to continue providing legal assistance until that individual’s

26 legal proceedings are over would effectively hamstring the capacity and efficacy of these

ONE AMERICA’S DECLARATION REGARDING DOJ CEASE & DESIST LETTER - 5 Case No. 2:17-cv-00716
51611568.8

FOSTER PEPPER PLLC
1111 THIRD AVENUE, SUITE 3000 SEATTLE, WASHINGTON 98101‐3299 PHONE (206) 447‐4400 FAX (206) 447‐9700

Case 2:17-cv-00716-RAJ Document 39-10 Filed 06/08/17 Page 7 of 9

1 programs by, for example, preventing an attorney from stepping in to help an immigrant or

2 refugee in need of legal assistance at any point of their immigration proceeding unless that

3 attorney is able to commit to continue providing that individual’s needed legal assistance – a

4 substantial time commitment that the Department of Justice must be well informed enough to

5 know a volunteer attorney can very rarely make.

6

As with our know-your-legal-rights project, enforcement of the Department of Justice’s

7 cease & desist letter does not curtail the existing need for the legal assistance our new Americans

8 and citizenship programs provide to immigrants and refugees. Enforcement instead curtails the

9 availability of that needed legal assistance and our programs’ ability to provide it. The Department

10 of Justice is surely well informed enough to know that immigrants and refugees unable to secure

11 competent legal advice face the previously-noted loss of liberty (detention), property (though scams

12 & unqualified “help”), and life (deportation into danger). By hamstringing our new Americans and

13 citizenship clinic programs, the Department of Justice endangers the life, liberty, or property of

14 immigrants and refugees. This imposes significant and immediate harm on OneAmerica and the

15 individuals and communities we serve.

16

(c) Immigrant Legal Defense Project. OneAmerica is also in the process of providing

17 limited legal services through counsel and legal professionals under the City of Seattle’s recently

18 established immigrant legal defense fund. This legal defense project includes lawyers and legal

19 navigators (“promotoras”) to assist immigrants and refugees in legal proceedings including

20 proceedings before EOIR. The cease & desist letter imposes a direct threat to OneAmerica’s

21 undertaking because this legal defense project will directly employ lawyers and legal staff

22 knowledgeable in this field of the law; and the practical effect of requiring attorneys who step in

23 at any point to represent an individual in their legal defense to commit to continue providing that

24 defense until the individual’s legal proceedings are over would hamstring this project. That is

25 because preventing this defense project’s attorneys and federally-accredited non-lawyer

26 representatives from stepping in to help an immigrant or refugee in need of defense assistance at

ONE AMERICA’S DECLARATION REGARDING DOJ CEASE & DESIST LETTER - 6 Case No. 2:17-cv-00716
51611568.8

FOSTER PEPPER PLLC
1111 THIRD AVENUE, SUITE 3000 SEATTLE, WASHINGTON 98101‐3299 PHONE (206) 447‐4400 FAX (206) 447‐9700

Case 2:17-cv-00716-RAJ Document 39-10 Filed 06/08/17 Page 8 of 9

1 any point of their proceeding unless he or she also commits to continue providing that defense

2 thereafter mandates a substantial long-term time commitment that the Department of Justice

3 must be well informed enough to know an annually funded city project cannot promise.

4

As with the the other OneAmerica projects noted earlier: enforcement of the cease & desist

5 letter does not curtail the need for this project’s legal defense services; enforcement instead curtails

6 the availability of those needed legal defense services; immigrants and refugees unable to secure a

7 competent legal defense face the previously-noted loss of life, liberty, and property; and the

8 Department of Justice endangering immigrants and refugees in this way imposes significant and

9 immediate harm on OneAmerica and the individuals and communities we serve.

10

7. Summary. Starting a new life as an immigrant or refugee in a new country is hard. And

11 once an immigrant or refugee arrives in the United States, he or she must successfully make his or

12 her way through the multitude of legal requirements, technicalities, and barriers erected by our

13 federal government. An effective, low-cost way for the federal government to make successful

14 passage even harder would be for it to affirmatively take measures to keep needed legal

15 assistance away from immigrants and refugees.

16

That’s precisely what the cease & desist letter does here.

17

I noted President Reagan’s “shining city on a hill” observation at the beginning of my

18 declaration. He more fully explained this in his January 11, 1989, farewell speech to the nation:

19 “I’ve spoken of the shining city all my political life, but I don’t know if I ever quite

20 communicated what I saw when I said it. But in my mind it was a tall, proud city built on rocks

21 stronger than oceans, wind-swept, God-blessed, and teeming with people of all kinds living in

22 harmony and peace; a city with free ports that hummed with commerce and creativity. And if

23 there had to be city walls, the walls had doors and the doors were open to anyone with the will

24 and the heart to get here. That’s how I saw it, and see it still.” But as the examples described in

25 paragraph 6 above illustrate, the Department of Justice’s cease & desist letter instead operates to

26 jam the door shut for those needing competent legal assistance to get through the imposing wall

ONE AMERICA’S DECLARATION REGARDING DOJ CEASE & DESIST LETTER - 7 Case No. 2:17-cv-00716
51611568.8

FOSTER PEPPER PLLC
1111 THIRD AVENUE, SUITE 3000 SEATTLE, WASHINGTON 98101‐3299 PHONE (206) 447‐4400 FAX (206) 447‐9700

Case 2:17-cv-00716-RAJ Document 39-10 Filed 06/08/17 Page 9 of 9

1 of laws, rules, and regulations that the federal government has erected. In short, the cease &

2 desist letter operates to shut the previously-quoted “golden door” over which the statute of

3 liberty shines her torch.

4

Personally, that’s not the America I believe in. Our pledge of allegiance pledges justice

5 for all – not just the “us” who’ve already been here a while. And the defendants in this case are

6 part of the Department of Justice – not the Department of “Just Us”. I am not a lawyer, and do

7 not know all the legalisms involved in this case. But I do know the harm that enforcement of the

8 Department’s cease & desist letter would impose on OneAmerica and on the immigrants and

9 refugees we serve. And as outlined above, that harm is real. It’s direct. It’s substantial. And

10 once inflicted, it’s irreversible.

11

12 I declare under penalty of perjury that the foregoing is to the best of my knowledge true
13 and correct. Executed at Seattle, Washington this _5_th_ day of June, 2017.
14

15

_____________________________________

Richard Stolz 16

17

18

19

20

21

22

23

24

25

26

ONE AMERICA’S DECLARATION REGARDING DOJ CEASE & DESIST LETTER - 8 Case No. 2:17-cv-00716
51611568.7

FOSTER PEPPER PLLC
1111 THIRD AVENUE, SUITE 3000 SEATTLE, WASHINGTON 98101‐3299 PHONE (206) 447‐4400 FAX (206) 447‐9700

Case 2:17-cv-00716-RAJ Document 39-11 Filed 06/08/17 Page 1 of 5
Exhibit K

Case 2:17-cv-00716-RAJ Document 39-11 Filed 06/08/17 Page 2 of 5

Case 2:17-cv-00716-RAJ Document 39-11 Filed 06/08/17 Page 3 of 5

Case 2:17-cv-00716-RAJ Document 39-11 Filed 06/08/17 Page 4 of 5

Case 2:17-cv-00716-RAJ Document 39-11 Filed 06/08/17 Page 5 of 5

Case 2:17-cv-00716-RAJ Document 39-12 Filed 06/08/17 Page 1 of 4
Exhibit L

Case 2:17-cv-00716-RAJ Document 39-12 Filed 06/08/17 Page 2 of 4

Case 2:17-cv-00716-RAJ Document 39-12 Filed 06/08/17 Page 3 of 4

Case 2:17-cv-00716-RAJ Document 39-12 Filed 06/08/17 Page 4 of 4

Case 2:17-cv-00716-RAJ Document 39-13 Filed 06/08/17 Page 1 of 5
Exhibit M

Case 2:17-cv-00716-RAJ Document 39-13 Filed 06/08/17 Page 2 of 5

Case 2:17-cv-00716-RAJ Document 39-13 Filed 06/08/17 Page 3 of 5

Case 2:17-cv-00716-RAJ Document 39-13 Filed 06/08/17 Page 4 of 5

Case 2:17-cv-00716-RAJ Document 39-13 Filed 06/08/17 Page 5 of 5

Case 2:17-cv-00716-RAJ Document 39-14 Filed 06/08/17 Page 1 of 5
Exhibit N

Case 2:17-cv-00716-RAJ Document 39-14 Filed 06/08/17 Page 2 of 5

Case 2:17-cv-00716-RAJ Document 39-14 Filed 06/08/17 Page 3 of 5

Case 2:17-cv-00716-RAJ Document 39-14 Filed 06/08/17 Page 4 of 5

Case 2:17-cv-00716-RAJ Document 39-14 Filed 06/08/17 Page 5 of 5

Case 2:17-cv-00716-RAJ Document 39-15 Filed 06/08/17 Page 1 of 7
Exhibit O

Case 2:17-cv-00716-RAJ Document 39-15 Filed 06/08/17 Page 2 of 7

Case 2:17-cv-00716-RAJ Document 39-15 Filed 06/08/17 Page 3 of 7

Case 2:17-cv-00716-RAJ Document 39-15 Filed 06/08/17 Page 4 of 7

Case 2:17-cv-00716-RAJ Document 39-15 Filed 06/08/17 Page 5 of 7

Case 2:17-cv-00716-RAJ Document 39-15 Filed 06/08/17 Page 6 of 7

Case 2:17-cv-00716-RAJ Document 39-15 Filed 06/08/17 Page 7 of 7

Case 2:17-cv-00716-RAJ Document 39-16 Filed 06/08/17 Page 1 of 9
Exhibit P

Case 2:17-cv-00716-RAJ Document 39-16 Filed 06/08/17 Page 2 of 9

Case 2:17-cv-00716-RAJ Document 39-16 Filed 06/08/17 Page 3 of 9

Case 2:17-cv-00716-RAJ Document 39-16 Filed 06/08/17 Page 4 of 9

Case 2:17-cv-00716-RAJ Document 39-16 Filed 06/08/17 Page 5 of 9

Case 2:17-cv-00716-RAJ Document 39-16 Filed 06/08/17 Page 6 of 9

Case 2:17-cv-00716-RAJ Document 39-16 Filed 06/08/17 Page 7 of 9

Case 2:17-cv-00716-RAJ Document 39-16 Filed 06/08/17 Page 8 of 9

Case 2:17-cv-00716-RAJ Document 39-16 Filed 06/08/17 Page 9 of 9

Case 2:17-cv-00716-RAJ Document 39-17 Filed 06/08/17 Page 1 of 8
Exhibit Q

Case 2:17-cv-00716-RAJ Document 39-17 Filed 06/08/17 Page 2 of 8 The Honorable Richard A. Jones

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

\O
NORTHWEST IMMIGRANT RIGHTS
YUK MAN oD-I PROJECT (“NWIRP”), a nonproﬁt Washington public beneﬁt corporation; and
D-| _. MAGGIE CHENG, an individual,

No. 2:17-cv-00716

to I—|
Plaintiffs,

we U-I
V.

AU-‘
JEFFERSON B. SESSIONS III, in his ofﬁcial

U: D—| Ox
If

JcStaUapStaeTcsIi;tCyUEN;asIEATXtEtEDoCrnUSeTTyAIGTVeEnEeSrOaDFlFEoIPfCAtEhReFTUOMnRiEtNedT OF

IMMIGRATION REVIEW; JUAN OSUNA, in

D—" xx his official capacity as Director of the Executive
Ofﬁce for Immigration Review; and JENNIFER

oo D—| BARNES, in her ofﬁcial capacity as Disciplinary

Counsel for the Executive Ofﬁce for Immigration

\o h-I Review,

DECLARATION OF LYNN MARCUS

Defendants.

22 23 24 25 26 27
DECL. OF LYNN MARCUS — 1
Case No. 2:17-cv-00716

Davis Wright Tremaine LLP

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Case 2:17-cv-00716-RAJ Document 39-17 Filed 06/08/17 Page 3 of 8

1, Lynn Marcus declare as follows:

1.

I am over the ‘age of eighteen, am competent to testify as to the matters below, and

make this declaration based on personal knowledge.

2.

I am a Professor of the Practice and Co-Director of the Immigration Law Clinic at the

University of Arizona James E. Rogers College of Law in Tucson, Arizona. I am also Chair of the

Asylum Services Committee, a local group affiliated with Catholic Community Services that raises

funds and arranges for the provision of legal services to indigent asylum seekers in Southern

Arizona. In addition, having practiced immigration law in Tucson for over 27 years, I am familiar

10 with the availability of legal services to immigrants in Southern Arizona.

11

3.

The Immigration Law Clinic (“the Clinic”) provides law students with the opportunity to

12

gain hands-on experience with the law by providing services to low income immigrants in Southern Arizona.

14 As Co-Director, I supervise students providing two types of services: 1) direct representation in a small number of cases — typically, one per student pair per semester — and 2) advice and brief services relating to a
16 variety of immigration matters. Many of the individuals we assist with both types of services are in removal

17 proceedings.

18

4.

Our limited resources and the structure of the Clinic only enable us to undertake direct

19 representation, in conjunction with our students, in approximately four cases per semester.‘ It is through our

20
“advice and brief services” component that we are able to assist a larger number of respondents

21

5.

Our ability to provide advice and limited services to pro se individuals, including

22

23 those in removal proceedings, enhances the quality of education we are able to provide. Through

24 this work, law students are exposed to a variety of immigrants with a range of personal and cultural

25 backgrounds and legal problems. The “advice and brief services” component of the program thus
26

A 27 1 law fellow working under the supervision of Co-Director Nina Rabin has enabled us to expand our capacity for direct

representation, but the respondent population she assists is limited to detainees. 28
DECL. OF LYNN MARCUS — 2

Davis Wright Tremaine LLP
LAW omens

Case No. 2: 17-CV-00716

WA 120] Third Avenue, Suite 2200

Seattle,

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206.622.3150 main ~ 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 39-17 Filed 06/08/17 Page 4 of 8

enables them to work on a range of skills, from interviewing and counseling to legal analysis,

research, and writing. The people we assist typically are unable to afford direct representation, and

often, they either do not ﬁt within the scope of services provided by local nonproﬁt organizations or
they cannot obtain help there for reasons such as limited capacity. Thus, if we were to restrict our students to providing only advice, we would not only limit their educational opportunities, but we

would also be teaching them to turn their backs on indigent people in need of assistance that they, as

a result of their education and training, are in a position to provide free of charge. This is the

opposite of the sense of ethical responsibility that we, as legal educators, seek to instill in our

10
students.
ll

6.

While the number of people we are able to help is limited, our services are an

important part of the patchwork of legal services available to low income people in removal
14
proceedings. The capacity of nonproﬁt organizations in Southern Arizona to represent immigrants
15
free of charge in removal proceedings is extremely limited. The Immigration Unit of Southern

Arizona Legal Aid, Inc. focuses most of its limited resources on immigration beneﬁts ﬁled with U.S.
U Citizenship and Immigration Services, such as applications for visas (for certain victims of certain
19 types of crimes) and petitions for legal residence under the Violence Against Women Act. The same
20
is true for Catholic Community Services, except that it also engages in refugee resettlement and
21
22 assists with family visa petitions. Because cases in immigration court tend to be resource intensive,
23 and because the demand for their services in general often exceeds capacity, these organizations are

24 able to represent relatively few individuals in removal proceedings. I believe that, because of these
25
limitations, these organizations have elected not request inclusion in the list of free legal service
26
providers maintained and distributed by the Executive Office of Immigration Review. In fact, our
27

28
DECL. OF LYNN MARCUS — 3
Case No. 2: 17-CV-00716

Davis Wright Tremaine LLP

LAW OFFICES

WA 1201 Third Avenue, Suite 2200

Seattle,

93101-3045

206.622.3150 main - 205.757.7700 fax

Case 2:17-cv-00716-RAJ Document 39-17 Filed 06/08/17 Page 5 of 8

Clinic is one of only two entities under the heading, “Tucson Immigration Court” that appears on the list of free legal service providers maintained and distributed to respondents by the Executive Ofﬁce of Immigration Review? The other entity under that heading only assists children.3 Thus, even
when we screen the case of a pro se respondent and ﬁnd that he or she has a potential defense or claim to relief, we may not be in a position to represent the individual ourselves, and there may not be a nonproﬁt law ofﬁce to which we can refer him or her.“ However, as I will explain, our limited
assistance makes a critical difference in some cases.

7.

The brief, limited services our Clinic is able to provide to pro se respondents

10

ll sometimes enables us to bridge gaps in legal representation. For example, by helping pro se

12 respondents prepare asylum applications, our students have been able to ensure that the respondents

preserved their eligibility for asylum by ﬁling within the one-year-from period required by law. In
14
most of these instances, I have been able to refer the cases to attorneys, but various circumstances

prevent me from being able to refer the cases quickly, making our in-Clinic work on the applications
16
17 critical. Prompt preparation of the applications can be critical not only to preserving the individuals’
18 ability to qualify for asylum, but also to enabling them to qualify for work authorization during the
19 period in which the cases are pending before the Immigration Court and, in some cases, the Board of
20
Immigration Appeals.
21

22

8.

Even services that are more limited in nature, such as drafting a letter to the

23
immigration judge on behalf of an applicant explaining the need for additional time to investigate a
24
25 claim or prepare a visa application to ﬁle with USCIS, may help ensure that an individual is able to

26

27

2 3

The The

listings, by state, are available at https://www.justice.gov/eoir/list-pro-bono-legal-service-providers. other entity, the Florence Immigrant and Refugee Rights Project, also assists adults, but only adult detainees.

The

respondents appearing in Tucson Immigration Court are not in custody.
28 DECL. OF LYNN MARCUS — 4

Davis Wright Tremaine LLP LAW OFFICES

Case No. 2:17-cv-00716

WA 1201 Third Avenue, Suite 2200

Seattle,

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Case 2:17-cv-00716-RAJ Document 39-17 Filed 06/08/17 Page 6 of 8

pursue claims available to him or her under the law.4 Lack of ﬂuency in English or an inability to
adequately explain the circumstances of his or her case prevent the vast majority of the respondents
we see from being able to write effective letters to judges on their own.

9.

If our Clinic were required to choose between a) providing these individuals with no

assistance or b) entering notices of appearance and providing them with full representation
throughout the course of removal proceedings, resource limitations would dictate that we provide

them with no services, sometimes with tragic results for the respondents involved.

10

10. I am and have long been aware of the regulation that subjects attorneys to disciplinary

ll action should they assist respondents with their cases without ﬁling notices of appearance with the
12
Executive Ofﬁce of Immigration Review. I understand that a primary purpose of this regulation is to

14 maintain transparency in the representation process so that attorneys may be held accountable for the
work they do in immigration cases. For this reason, whenever I or law students working under my

16 supervision in the Clinic prepare letters, applications, or other documents on behalf ofpro se

my 17
immigrants, it is

policy and practice to state, in the document, that we have prepared it.

18

19

11. Being forced to either provide full representation or no assistance at all to indigent

20 respondents would also thwart my work and the work of my colleagues in the Asylum Services
21
Committee (“ASC” or “Committee”). The Committee originated in 2002 as the “Asylum Program
22

23

24 4 For example, I recently wrote a letter on behalf of a respondent whose case was screened by a law student under the supervision of the Clinic’s Co-Director, Nina Rabin. The respondent had two potential claims: a claim to U.S.
25 citizenship (acquired at birth abroad to a U.S. citizen parent) and an asylum claim. I was able to find a nonimmigration lawyer willing to help the client seek and track down evidence for the citizenship claim, but that attorney was in no
26 position to represent the individual in the event that sufﬂcient evidence of citizenship could not be found, and thus, given rules preventing limited representation, could not enter an appearance in the case. The respondent ﬁled the letter and the
27 judge continued her case for three months to give her and her lawyer helping her a chance to investigate her claim to

citizenship.
28 DECL. OF LYNN MARCUS — 5
Case No. 2:17-cv—007l6

Davis Wright Tremaine LLP

LAW OFFICES

WA 1201 Third Avenue, Suite 2200

Seattle,

98101-3045

206.622.3150 main ' 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 39-17 Filed 06/08/17 Page 7 of 8

of Southern Arizona,” in the wake of the closing of a law ofﬁce in Tucson that provided free legal services to indigent asylum seekers (The law office closed due to insufﬁcient resources.). Over the
years, the ASC has maintained several of its original members, including myself and, has gained

others who likewise share a commitment to providing access to representation to individuals seeking

asylum and related forms of protection under U.S. immigration laws. At times, collaborating with a
nonproﬁt organization, we have been able to raise sufficient funds to support staff members who

provided protection seekers with direct representation. Presently, in collaboration with Catholic
Community Services, which manages the account that holds the funds we have raised, we are able to
10 offer immigration lawyers low fees in a limited number of cases so that they may represent asylum
11
seekers on a “pro bono,” rather than a “low bono” basis.5
12

12. Since the ASC has no staff to screen the cases of asylum seekers, we rely mostly on
14 either the Clinic or a private immigration lawyer to perform this task. The private attorney who

helps us with this work is not in a position to represent respondents in removal proceedings due to
16
117 health considerations, but she provides us with invaluable services by screening the cases as well as

18 by providing various forms of limited assistance to respondents while the cases are being considered 19 for “low bono” funds or while referrals are pending. Frequently, she helps respondents prepare
20
asylum applications so that the applications may stamped by the court clerk for purposes relating to
21
22 work authorization and/or to ensure that applicants are able to meet their ﬁling deadlines. In some
23 cases, she drafts pro se change of venueimotions so that the cases will be transferred to Immigration
24 Court in Tucson, making it far easier for me to find a local attorney willing to take the case. If this
25

26 5 Despite the generosity of the private immigration bar, we deem the low bono services model essential to maintaining

ﬁee services for indigent asylum seekers. This is largely because the immigration bar is inundated with requests for pro 27 bono services. It is also because, given the specialized nature of asylum cases and their time-intensive nature, relatively

few immigration lawyers are willing and able to represent asylum seekers. 28
DECL. OF LYNN MARCUS — 6

Davis Wright Tremaine LLP LAW OFFICES

Case No. 2:17-cv-00716

WA 1201 Third Avenue, Suite 2200

Seattle,

98101-3045

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Case 2:17-cv-00716-RAJ Document 39-17 Filed 06/08/17 Page 8 of 8

attorney were ordered to desist from providing limited services to asylum seekers in removal
proceedings, the ASC would be unable to assist many of those we are presently able to help. The
individuals would suffer the consequences, and we would be unable to fulﬁll our mission of
providing a safety net for indigent asylum seekers in Southern Arizona.

I declare under penalty of perjury of the laws of Arizona and the United States that the
foregoing is true and correct to the best of my knowledge and belief.

Executed this 15‘ day of June, 2017 in Tucson, Arizona.

10

11

l2

Iﬂfm Marcus

14

16 17 l8 19 20 21 22 23 24 25 26 27 28
DECL. OF LYNN MARCUS — 7
Case No. 2:17-cv-00716

Davis Wright Tremaine LLP

LAW OFFICES

WA 1201 Third Avenue, Suite 2200

Seattle,

98101-3045

206.622.3150 main '206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 39-18 Filed 06/08/17 Page 1 of 5
Exhibit R

Case 2:17-cv-00716-RAJ Document 39-18 Filed 06/08/17 Page 2 of 5

Case 2:17-cv-00716-RAJ Document 39-18 Filed 06/08/17 Page 3 of 5

Case 2:17-cv-00716-RAJ Document 39-18 Filed 06/08/17 Page 4 of 5

Case 2:17-cv-00716-RAJ Document 39-18 Filed 06/08/17 Page 5 of 5

Case 2:17-cv-00716-RAJ Document 39-19 Filed 06/08/17 Page 1 of 5
Exhibit S

Case 2:17-cv-00716-RAJ Document 39-19 Filed 06/08/17 Page 2 of 5

The Honorable Richard A. Jones
1

2

3

4

5

6

,|
UNITED STATES DISTRICT COURT

8

FOR THE V/ESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

NORTHV/EST IMMIGRANT RIGHTS 10 PROJECT ('NWIRP"), a nonprofit Washington
public benefit corporation; and YUK MAN 11 MAGGIE CHENG, an individual,

No. 2:17-cv-00716

12

Plaintiffs,

13
v

14
JEFFERSON B. SESSIONS III, in his official
15 capacity as Attorney General of the United
States; TINITED STATES DEPARTMENT OF
16 JUSTICE; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; JUAN OSUNA, iN
I7 his official capacity as Director of the Executive
Office for Immigration Review; and JENNIFER 18 BARNES, in her official capacity as Disciplinary
Counsel for the Executive Office for Immigration 19 Review,

DECLARATION OF' VALERIE ANNE ZUKIN

20

Defendants.

21

22

I, Valerie Anne Zukin, declare as follows:

23

1. I am over the age of eighteen, am competent to testify as to the matters below, and

24
make this declaration based on personal knowledge.
25
2. I am employed by the Justice & Diversity Center ("JDC") of The Bar Association of
26

27 San Francisco. I am the Lead Attomey Coordinator for the Northem California Collaborative for

28
- DECL. oF VALERIE ANNE ZUKIN I
Case No. 2:17-cv-00716

Davis Wright Tremaine LLP
LAw OFFIcES l20l Third Avenue, Suite 2200
Seattle, Vr'A 98101-3045 206.622.3 1 50 main 206.'1 5'7.'Ì1 00 lax

Case 2:17-cv-00716-RAJ Document 39-19 Filed 06/08/17 Page 3 of 5

I Immigrant Justice ("NCCIJ"), which is one of the removal defense collaboratives that JDC leads and 2 coordinates. The NCCIJ focuses specifically on the provision of legal services to, and increasing

J legal representation for, detained immigrants, including the Pro Bono Attorney of the Day ("AOD")
4
Program for the detained dockets.
5
3. JDC advances fairness and equality by providing pro bono limited legal assistance to
6
7 low-income people and educational programs that foster diversity in the legal profession. Through
8 its Immigrant Legal Defense Program, JDC (a) administers the AOD Program for the detained, non-

9 detained and non-detained juvenile dockets at the San Francisco Immigration Court; (b) provides
l0
leadership and coordination within two removal defense collaboratives to provide legal
il
representation for indigent immigrants in Northern Califomia; and (c) paftners with other
T2
l3 otganizations to coordinate Rapid Attomey Response in the event of immigration enforcement

t4 actions.

15

4. Through these programs, JDC encounters and assists uffepresented immigrants at

t6
court, in detention facility visits, and through legal calls. JDC attorneys and volunteer immigration
17

r8 attomeys regularly provide unrepresented immigrants with limited legal assistance, including legal

t9 advice regarding legal and judicial challenges to administrative proceedings, and tailored Know

20 Your Rights ("KYR") legal orientations. The AOD and KYR advice and screening provide the
21 primary mechanism for identifying those who may qualify for representation through the immigrant
22
legal defense collaboratives which JDC leads and the regional partners with whom JDC coordinates.
z3
24 JDC also provides self-help legal materials to those unable to obtain counsel, including templates for
25 legal filings. In addition, AODs appear on the record as a friend of the court on behalf of

26 unrepresented respondents.
27

28 DECL. oF VALERIE ANNE ZUKIN _ 2
Case No. 2:17-cv-00776

Davis Wright Tremaine LLp
LAW OFFICES l20l Third Avenue, Suite 2200
seattle, wA 98101-3045 206.622.3 I 50 main 206.7 57.7't0O lax

Case 2:17-cv-00716-RAJ Document 39-19 Filed 06/08/17 Page 4 of 5

1

5. In all of these efforts, JDC carefully advises and obtains informed consent from each

2 individual assisted regarding the scope of the assistance that will and will not be provided.
J
6. JDC provides this limited legal assistance because there are scores of pro se
4
immigrants who are unable to obtain full-scope legal representation, and have no other legal
5

6 assistance available. Numerous studies have shown that access to legal counsel significantly impacts

7 the likelihood of success in defending against deportation.t JDC seeks to protect due process rights

8
and access to justice, as well as to ameliorate the significant disadvantage faced by those immigrants
9
l0 who are unable to retain counsel or securepro bono representation by providing vital limited scope

ll services.

l2

7. JDC is alarmed by the cease-and-desist letter that the Northwest Immigrant Rights

t3 Project ("NWIRlt") received from the Executive Office for Immigration Review ("EOIR") on April
t4
5,2017, because the spirit behind the letters will severely limit access to justice and the JDC's
t5
programs. So few of the individuals served by JDC are able to obtain full-scope representation. JDC
16

17 is only able to secure full-scope p ro bono representation for some of the individuals it provides with

18 legal screenings, and the percentage is particularly small in regards to the detained immigrants.
l9
Thus, JDC's provision of limited legal assistance is the only legal assistance that many detained
20
individuals ever obtain, and those who proceed without any legal assistance often waive all of their
21
22 rights to take removal orders initially, or, where they elect to defend against removal pro se, their
23 cases can toil for several months, or sometimes years, due to their inability to navigate the system

24

t Ingrid Eagly and Steven Shafer, American Immigration Council, Access to Counsel ín Immigration Court (Sept. 2016),

25 available at: https://www.Americanimmigrationc_ouncil.org/research/ê-c_qess-counsel-immigËAJion-cou-{-t; Northern

California Collaborative for Immigrant Justice, Access to Justicefor Immigrant Fqmilies and Communitìes: Study of

26 Legøl Representation of Detained Immigrants in Northern Califurnia, availqble at:

httns ://media. law. stanford.

shts-clinìc/l I -4-l 4-Access-to-Justice-Reoort-

27 FINAL.pdf; The New York Family Unity Project, Goodfor Families, Goodfor Employers, Goodfor All New Yorkers (Oct. 2013), available at http://populardemocracy.org/sites/default/files/immgrant:family*unity project printlayou
28

DECL. OF VALERIE ANNE ZUKIN - 3

Davis Wright Tremaine LLP LAw OFFICES

caseNo.2:1i-cv-00716

''i:iH:S;"äifi$ff"

206.622.3 1 50 main 206.'7 5'7.7'1 00 fax

Case 2:17-cv-00716-RAJ Document 39-19 Filed 06/08/17 Page 5 of 5

competently. Additionally, JDC is often the only organization able to identify and refer cases for pro
1

2 bono representation.

3

8. EOIR's interpretation of the rule regarding the entry of appearance for attorneys

4 providing limited legal assistance would greatly limit, if not entirely prevent, JDC's provision of the
5
aforementioned services, because the EOIR rules do not permit the entry of appearance of an
6
7 attorney for services more limited in scope than removal andlor custody proceedings. Se¿ S C.F.R. $

8 1003.17;80 Fed. Reg. 59,500 (Oct. 7,2075) (amending 8 C.F.R. $ 1003.17). As demonstrated by

9 numerous studies, the lack of access to legal counsel is hugely detrimental to the likelihood of

t0
success in defending against deporlation, which frustrates JDC's mission to increase access to
1t
counsel.2 t2

13

I declare under penalty of perjury of the laws of the State of California and the United States

t4 that the foregoing is true and correct to the best of my knowledge and belief.

l5

Executed this 2nd day of June ,2077 in San Francisco, Califomia.

16

l7
Valerie Anne Z
18

t9

20
2l

22

23

24

25

26

27
2 See n.l, supra.
28
- DECL. oF VALERIE eNNe zurnq 4
Case No. 2:17-cv-00716

Davis Wright Tremaine LLp
LAw OFFIcES l20l Third Avenue, Suite 2200
seartle, wA 98101-3045 206.622.3150 main 206.'157 7700 fax

Case 2:17-cv-00716-RAJ Document 39-20 Filed 06/08/17 Page 1 of 8
Exhibit T

Case 2:17-cv-00716-RAJ Document 39-20 Filed 06/08/17 Page 2 of 8

Case 2:17-cv-00716-RAJ Document 39-20 Filed 06/08/17 Page 3 of 8

Case 2:17-cv-00716-RAJ Document 39-20 Filed 06/08/17 Page 4 of 8

Case 2:17-cv-00716-RAJ Document 39-20 Filed 06/08/17 Page 5 of 8

Case 2:17-cv-00716-RAJ Document 39-20 Filed 06/08/17 Page 6 of 8

Case 2:17-cv-00716-RAJ Document 39-20 Filed 06/08/17 Page 7 of 8

Case 2:17-cv-00716-RAJ Document 39-20 Filed 06/08/17 Page 8 of 8

Case 2:17-cv-00716-RAJ Document 39-21 Filed 06/08/17 Page 1 of 7
Exhibit U

Case 2:17-cv-00716-RAJ Document 39-21 Filed 06/08/17 Page 2 of 7

1

2

3

4

5

6

7
UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE
9

10 NORTHWEST IMMIGRANT RIGHTS
11 PROJECT (“NWIRP”); and YUK MAN MAGGIE CHENG,
12

13

Plaintiffs,

v.

14
JEFFERSON B. SESSIONS III, in his official 15 capacity as Attorney General of
16 the United States; UNITED STATES DEPARTMENT OF JUSTICE; EXECUTIVE
17 OFFICE FOR IMMIGRATION REVIEW; JUAN
OSUNA, in his official capacity as Director of the 18 Executive Office for Immigration Review; and
19 JENNIFER BARNES, in her official capacity as Disciplinary Counsel
20 for the Executive Office for Immigration Review,

Case No. 2:17-cv-00716
DECLARATION OF DANIEL WERNER

21

Defendants.

22 __________________________________________

23 I, Daniel Werner, declare as follows:

24

25

1. I am over the age of eighteen, am competent to testify as to the matters below, and make

26

this declaration based on personal knowledge.

27

28

DECL. OF DANIEL WERNER - 1

Southern Poverty Law Center 150 East Ponce de Leon Ave., Suite 340
Decatur, GA 30030 404-521-6700 main 404-221-5857 fax

Case 2:17-cv-00716-RAJ Document 39-21 Filed 06/08/17 Page 3 of 7

1

2. I am the director of the Southeast Immigrant Freedom Initiative (SIFI), a project of the

2
Southern Poverty Law Center located in Decatur, Georgia.

3
3. The SIFI project is a new initiative of the Southern Poverty Law Center to provide pro
4

5

bono legal representation to immigrants detained in the southeastern United States. By

6

ensuring that skilled attorneys are available, at no charge, to protect the due process rights

7

of detained immigrants, SIFI endeavors to win every meritorious removal defense case

8
arising out of recent and anticipated immigration enforcement actions.
9
4. The SIFI project is led by the Southern Poverty Law Center. It has begun at the Stewart
10

11

Detention Center in Lumpkin, Georgia. It will later be expanded to other detention

12

centers throughout the Southeast, including the Irwin County Detention Center in Ocilla,

13

Georgia; the LaSalle Detention Facility in Jena, Louisiana; and the Folkston ICE

14
Processing Center in Folkston, Georgia.
15
5. The SIFI project works exclusively with detained immigrants in removal proceedings.
16

17

6. The SIFI project, both through its paid staff and its pro bono volunteers, routinely

18

appears on behalf of respondents only in their bond proceedings and not in their removal

19

proceedings.

20
7. The SIFI project, both through its paid staff and its pro bono volunteers, routinely meets
21

22

with detainees to consult with them about their cases and the may later decide, for

23

reasons either related to the project’s capacity limitations or to the substance of the

24

detainee’s case, that the project cannot represent the detainee at all.

25
8. The SIFI project also sometimes advises detainees with whom we meet that we believe
26
they do not have any meritorious legal defense against removal. In those cases one of our
27

28

goals is to convey our legal assessment clearly with the hope that in doing so, the

DECL. OF DANIEL WERNER - 2

Southern Poverty Law Center 150 East Ponce de Leon Ave., Suite 340
Decatur, GA 30030 404-521-6700 main 404-221-5857 fax

Case 2:17-cv-00716-RAJ Document 39-21 Filed 06/08/17 Page 4 of 7

1

detainee may be less susceptible to fraudulent practitioners, including “notarios” who

2
might seek to take advantage of them.

3
9. The SIFI project, both through its paid staff and its pro bono volunteers, sometimes
4

5

advises detainees regarding how to answer potential questions from the Court, or what to

6

say to the Court, in cases in which the project does not represent the detainee in removal

7

proceedings.

8
10. The SIFI project sometimes assists detainees through the preparation and filing of simple
9
pro se template motions, including motions to continue, in cases in which the project
10

11

does not represent the detainee in removal proceedings. Among the situations in which

12

we might assist with the preparation of a pro se motion to continue are cases in which the

13

SIFI project needs more time to investigate and evaluate the merits of a case to determine

14
whether we may represent the detainee, or when we have filed a bond motion for the
15
detainee, but the Court has not yet held a bond hearing.
16

17

11. The SIFI project is in its very early stages. We anticipate that there are other situations in

18

which our project could assist with pro se filings, including a motion to change venue, a

19

motion to reopen, or a motion to advance, among others.

20
12. The SIFI project began at the Stewart Detention Center in part because it is among the
21

22

largest detention center in the United States, with capacity to detain approximately 1,900

23

people.

24

13. Currently, the SIFI project has the capacity to do approximately ten client intakes per

25
week. When operating at full capacity, which we anticipate will be in a matter of weeks,
26
the SIFI project anticipates the ability to conduct approximately twenty client intakes per
27

28

week. At that rate, the SIFI project could see as many as a thousand detainees per year

DECL. OF DANIEL WERNER - 3

Southern Poverty Law Center 150 East Ponce de Leon Ave., Suite 340
Decatur, GA 30030 404-521-6700 main 404-221-5857 fax

Case 2:17-cv-00716-RAJ Document 39-21 Filed 06/08/17 Page 5 of 7

1

only at the Stewart Detention Center. By 2018, when operating at all four planned

2
detention centers, the SIFI project would anticipate conducting between three to five

3
thousand client intakes per year.
4

5

14. In addition to client representation, the SIFI project plans to hire an “advocacy attorney”

6

at some point this calendar year. The role of that attorney will be to assist the SPLC in

7

identifying, investigating and bringing litigation geared toward enhancing the treatment

8
of detainees and protecting their rights, both in confinement and in Immigration Court.
9
Already the SIFI project is taking close note of issues related to the ability of our
10

11

volunteer attorneys to access our clients and other detainees in the detention centers and

12

in court. The project also has an interest in issues related to conditions of confinement

13

and detainee mental health care and medical care. Already, the SIFI project engages in

14
advocacy on behalf of the detainees it serves through our interaction with local court staff
15
and “ICE” field office leadership. In addition, SIFI and the SPLC generally have long
16

17

been a partner to immigrant advocacy organizations in Georgia and throughout the

18

southeast, including the Center of Excellence, the Immigrant Working Group, the

19

Georgia Latino Alliance for Human Rights, Catholic Charities, AILA and others.

20
15. The “cease and desist” letter sent by the Department of Justice (DOJ) to the Northwest
21

22

Immigrant Rights Project (NWIRP) caused SIFI, and SPLC, grave concern. We know the

23

NWIRP project staff to be professionals of the highest quality and unassailable ethics.

24

Through its immigration law practice, the NWIRP has made enormous contributions to

25
the advancement of immigrant rights over many years. The NWIRP provides high quality
26
representation to their clients, and valuable advice to those it consults with but does not
27

28

DECL. OF DANIEL WERNER - 4

Southern Poverty Law Center 150 East Ponce de Leon Ave., Suite 340
Decatur, GA 30030 404-521-6700 main 404-221-5857 fax

Case 2:17-cv-00716-RAJ Document 39-21 Filed 06/08/17 Page 6 of 7

1

represent in court. And so it was with both sadness and great alarm that we received the

2
news of the cease and desist letter sent by the DOJ to NWIRP.

3
16. SIFI was also alarmed by the cease and desist letter because we do not believe that the
4

5

regulations in question were designed or intended to curtail the work of reputable non-

6

profits like NWIRP, but rather to protect vulnerable immigrant populations against

7

unscrupulous “notarios” who do not have any legal education or training.

8
17. The DOJ interpretation of the regulations in question relating to limited legal services
9
would be crippling to SIFI’s work. It would dramatically reduce the number of clients we
10

11

could serve. It would mean that any in case in which the project had any inclination at all

12

that we could potentially decide in the future we wanted to represent the detainee in their

13

removal case, we would be forced to enter an EOIR- 28 at the outset of our involvement.

14
The practical impact of this would mean that we would interact with, and thus serve,
15
many fewer detainees as our capacity to represent clients in their merits cases, is, of
16

17

course, limited. By forcing SIFI to make the decision as to which detainees we can

18

represent at a much earlier stage in the process, we would be forced to decline a larger

19

number of cases to prevent the risk of getting into cases the project could not follow

20
through on with requisite diligence and professionalism. This would be a perversion, we
21

22

believe, of the regulation. It would have the impact of harming immigrant detainees and

23

denying them access to competent counsel; this using the vehicle of a rule that was

24

developed and implemented with the goal of protecting unrepresented immigrants from

25
fraud. The DOJ position in this matter, we believe to cruel effect, stands the rule on its
26
head.
27

28

DECL. OF DANIEL WERNER - 5

Southern Poverty Law Center 150 East Ponce de Leon Ave., Suite 340
Decatur, GA 30030 404-521-6700 main 404-221-5857 fax

Case 2:17-cv-00716-RAJ Document 39-21 Filed 06/08/17 Page 7 of 7

1

18. The impact of the DOJ position in this matter on the detained immigrants SIFI seeks to

2
serve would be substantial. A recent study found that six percent of detainees at the

3
Stewart Detention Center were represented by counsel, a statistic that we understand to
4

5

be in keeping with the situation at other detention centers in the southeast. Detainees who

6

are represented by counsel prevail in their cases almost ten times more often than those

7

who proceed pro se.

8
19. SIFI was instituted to address a long-standing and urgent need. There has never been a
9
project of our type and scope in the southeast United States, despite the many
10

11

immigration detention centers we have here. Our project has been met with tremendous

12

support both within our region and throughout the country, in no small part because

13

people understand how sorely our services are needed.

14
20. It is not hyperbole to say that were the DOJ’s position in this matter to be vindicated, it
15
would cut SIFI off at the knees.
16

17

18

I declare under penalty of perjury that the foregoing is true and correct to the best of my

19 knowledge and belief.
20

21

22

Executed this 7th day of June, 2017, in Columbus, Georgia.

23

24

25
______________________________

26

DANIEL WERNER

27

28

DECL. OF DANIEL WERNER - 6

Southern Poverty Law Center 150 East Ponce de Leon Ave., Suite 340
Decatur, GA 30030 404-521-6700 main 404-221-5857 fax

Case 2:17-cv-00716-RAJ Document 39-22 Filed 06/08/17 Page 1 of 9
Exhibit V

Case 2:17-cv-00716-RAJ Document 39-22 Filed 06/08/17 Page 2 of 9

Case 2:17-cv-00716-RAJ Document 39-22 Filed 06/08/17 Page 3 of 9

Case 2:17-cv-00716-RAJ Document 39-22 Filed 06/08/17 Page 4 of 9

Case 2:17-cv-00716-RAJ Document 39-22 Filed 06/08/17 Page 5 of 9

Case 2:17-cv-00716-RAJ Document 39-22 Filed 06/08/17 Page 6 of 9

Case 2:17-cv-00716-RAJ Document 39-22 Filed 06/08/17 Page 7 of 9

Case 2:17-cv-00716-RAJ Document 39-22 Filed 06/08/17 Page 8 of 9

Case 2:17-cv-00716-RAJ Document 39-22 Filed 06/08/17 Page 9 of 9

Case 2:17-cv-00716-RAJ Document 39-23 Filed 06/08/17 Page 1 of 6
Exhibit W

Case 2:17-cv-00716-RAJ Document 39-23 Filed 06/08/17 Page 2 of 6

Case 2:17-cv-00716-RAJ Document 39-23 Filed 06/08/17 Page 3 of 6

Case 2:17-cv-00716-RAJ Document 39-23 Filed 06/08/17 Page 4 of 6

Case 2:17-cv-00716-RAJ Document 39-23 Filed 06/08/17 Page 5 of 6

Case 2:17-cv-00716-RAJ Document 39-23 Filed 06/08/17 Page 6 of 6

Case 2:17-cv-00716-RAJ Document 39-24 Filed 06/08/17 Page 1 of 5
Exhibit X

Case 2:17-cv-00716-RAJ Document 39-24 Filed 06/08/17 Page 2 of 5

Case 2:17-cv-00716-RAJ Document 39-24 Filed 06/08/17 Page 3 of 5

Case 2:17-cv-00716-RAJ Document 39-24 Filed 06/08/17 Page 4 of 5

Case 2:17-cv-00716-RAJ Document 39-24 Filed 06/08/17 Page 5 of 5

Case 2:17-cv-00716-RAJ Document 39-25 Filed 06/08/17 Page 1 of 9
Exhibit Y

Case 2:17-cv-00716-RAJ Document 39-25 Filed 06/08/17 Page 2 of 9

Case 2:17-cv-00716-RAJ Document 39-25 Filed 06/08/17 Page 3 of 9

Case 2:17-cv-00716-RAJ Document 39-25 Filed 06/08/17 Page 4 of 9

Case 2:17-cv-00716-RAJ Document 39-25 Filed 06/08/17 Page 5 of 9

Case 2:17-cv-00716-RAJ Document 39-25 Filed 06/08/17 Page 6 of 9

Case 2:17-cv-00716-RAJ Document 39-25 Filed 06/08/17 Page 7 of 9

Case 2:17-cv-00716-RAJ Document 39-25 Filed 06/08/17 Page 8 of 9

Case 2:17-cv-00716-RAJ Document 39-25 Filed 06/08/17 Page 9 of 9

Case 2:17-cv-00716-RAJ Document 39-26 Filed 06/08/17 Page 1 of 5
Exhibit Z

Case 2:17-cv-00716-RAJ Document 39-26 Filed 06/08/17 Page 2 of 5

The Honorable Richard A. Jones
1

2

J

4

5

6

7
I-INITED STATES DISTRICT COURT

I

FOR THE V/ESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

l0

NORTHV/EST IMMIGRANT RIGHTS PROJECT ("NWIRP"), a nonprofit V/ashington

ll public benefit corporation; and YUK MAN
MAGGIE CHENG, an individual,

No. 2:17-cv-00716

12
Plaintiffs,
l3
v
t4
JEFFERSON B. SESSIONS III, in his official
15 capacity as Attorney General of the United States; TINITED STATES DEPARTMENT OF
t6 JUSTICE; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; JUAN OSIJNA, in
t7 his official capacity as Director of the Executive Office for Immigration Review; and JENNIFER
t8 BARNES, in her official capacity as Disciplinary Counsel for the Executive Office for Immigration
19 Review,

DECLARATION OF'LEAH E. MED\ilAY

20

Defendants

2t

22

I, Leah E. Medway, declare as follows:

23

1. I am over the age of eighteen, am competent to testify as to the matters below, and

24
make this declaration based on personal knowledge.
25

26

2. I am the firmwide Pro Bono Counsel of Perkins Coie LLP ("Perkins Coie"). Perkins

27 Coie is a national law firm with sixteen offrces in the United States, three in China, and

28 approximately 1,000 attorneys. I am based in our firm's headquarters in Seattle, Washington. As

- DECL. oF LEAH E. MEDIVAY I
Cæe No. 2:17-cv-00716

Case 2:17-cv-00716-RAJ Document 39-26 Filed 06/08/17 Page 3 of 5

I Pro Bono Counsel, I oversee all aspects of the firm's pro bono program. In addition to my 2 administrative duties, I also participate in pro bono legal work, both supervising other attorneys' J efforts and undertaking representations myself.

4
3. Perkins Coie attorneys perform pro bono legal services in a variety of areas, with a
5
significant amount of this work focusing on immigration. Our immigration work is extensive and
6
wide-ranging. It includes the following: a) direct representation of clients seeking asylum and
7
withholding of removal; b) direct representation of clients applying for U Visas, T Visas, VAWA, 8 special immigrant juvenile status and defened action for childhood arrivals ("DACA"); c) direct
9 representation of clients before the Board of Immigration Appeals and United States Circuit Courts

10 of Appeal; d) amicus briefs on immigration topics before various courts, including the U.S. Supreme

1l Court; e) limited scope direct representation of immigrant youth seeking DACA; fl limited scope

l2 representation of detained clients at bond hearings; g) limited scope advice and referral, and intake,

l3 at immigration legal clinics; h) know your rights presentations to individuals and to nonprofits

t4 assisting immigrants; i) legal counsel to nonprofit immigrant rights groups; j) guidance to

l5 immigrants and families at airports following the President's Executive Order imposing a travel ban and assistance in litigation opposing the travel ban; k) assistance in litigation challenging
16
discriminatory or unfair immigration policies, including the travel ban; and l) limited representation
t7
of immigrants in detention facing deportation.
l8

19

4. 'When possible, we are engaged by individuals to represent them in their full case

20 seeking one or more specific forms of relief (e.g. asylum). Even if we are providing limited
representation, such as representing an individual at one bond hearing, we will typically bring the
21
individual in as a client of the firm with the limited nature of our engagement spelled out. However
22
there are instances where we assist people as part of our broader work for an immigrant rights
23
organization, who do not become official clients of the firm. For example, a Perkins Coie attorney 24 spent a week at the detention center in Dilley, Texas working for the CARA Project and during this
25 time she assisted many clients, mainly women and children, to prepare for their credible fear

26 hearings. Attorneys from law firms across the country have done similar work at Dilley and other

27 detention facilities. Due to the extremely large number of clients being detained and facing

28 deportation, immigration groups have collaborated with each other and with private law firms to

DECL. OF LEAHE. MEDWAY- 2 Case No. 2:17-cv-00716

Case 2:17-cv-00716-RAJ Document 39-26 Filed 06/08/17 Page 4 of 5

I assist as many clients as possible to ensure they are not deported without having their case heard.

za Given the very high success rate volunteer attorneys have at these hearings, it is evident that many of
the clients detained are at least potentially eligible for some form of relief. Our attorneys also
3
routinely assist people in clinic settings where they provide advice and referral only.

4

5

5. Perkins Coie has been part of the public conversation on immigrant rights through our

6 amicus briefs in multiple cases, including Washington v. Trump and related litigation challenging the President's Executive Order instituting a travel ban. 'We are also part of acurrent class action
7
litigation with NV/IRP and several ACLU chapters Q|ragafe v. Trump) challenging the Controlled
8
Application Review and Resolution Program.
9

10

6. In all of the aforementioned work, Perkins Coie relies heavily upon our nonprofit

ll community partners, such as NWIRP. NV/IRP has expertise in immigration that most of our

12 attorneys do not have, and they operate in the community to work directly with immigrants in need.

l3 They are in the best position to screen individuals to determine what forms of relief they are eligible
for and then to either assist those people or refer them to a broad network of volunteer attorneys.
14
And when they refer clients to firms such as Perkins Coie, they mentor our attorneys and provide
15
critical technical assistance to ensure we are providing the best possible service.

t6

t7

7. My initial reaction to the cease-and-desist letter that NWIRP received from the

l8 Executive Office for Immigration Review (EOIR) was disbelief. Groups such as NV/IRP are at the
forefront of advocacy for immigrants. There is no right to counsel in immigration court. The
19
number of immigrants facing possible deportation (and with that facing grave harm or possibly
20
death), is staggering. There are not enough legal aid attorneys or pro bono attorneys to come close
2t
to representing all of those in need of help. Thus, the majority of people do not have attorneys to 22 represent them in deportation proceedings. Given the serious risks involved, it is imperative that
23 individuals receive some legal guidance, however brief or limited in scope that might be. The

24 Department of Justice's cease-and-desist order threatens to preclude a significant number of

25 immigrants in deportation proceedings from receiving any legal assistance in their cases.

26

8.

If EOIR's interpretation of the rule were to stand, this would limit Perkins Coie's

27
ability to provide limited scope assistance at detention centers, in legal clinics, and otherwise

28 working in conjunction with NWIRP and groups like them. In Seattle and in cities across the United

DECL. oF LEAH E. ueowey_ 3

Case No. 2:17-cv-00716

Case 2:17-cv-00716-RAJ Document 39-26 Filed 06/08/17 Page 5 of 5

States where Perkins Coie operates, there are significantly underserved populations in desperate
I
need of legal help. This is the case not only with immigrant clients facing deportation. For example,
2
our attorneys assist survivors of domestic violence in legal clinics where we help them prepare
J
declarations and advise them to go into court alone to seek a protection order. This type of work is 4 at the core of who we are as a law firm and as attorneys with an ethical obligation to help those in
5 need through pro bono legal service. To stifle our ability to help clients in need simply because we
6 cannot provide full scope direct representation lacks compassion and is counter-productive to the
7 human and humane goal of helping those in need of legal services.

8
I declare under penalty of perjury of the laws of the State of V/ashington and the United
9
States that the foregoing is true and correct to the best of my knowledge and belief.
r0

lt

Executed this 6th day of June,2017 in Seattle, V/ashington.

t2

13
LEAH E. MEDV/AY
l4

l5

t6 l7

18

19

20
2l

22

23

24

25

26

27

28

- DECL. OF LEAH E. tr¡PnWeY 4
Case No. 2:1.7 -cv-007 16

Case 2:17-cv-00716-RAJ Document 39-27 Filed 06/08/17 Page 1 of 6
Exhibit AA

Case 2:17-cv-00716-RAJ Document 39-27 Filed 06/08/17 Page 2 of 6

Case 2:17-cv-00716-RAJ Document 39-27 Filed 06/08/17 Page 3 of 6

Case 2:17-cv-00716-RAJ Document 39-27 Filed 06/08/17 Page 4 of 6

Case 2:17-cv-00716-RAJ Document 39-27 Filed 06/08/17 Page 5 of 6

Case 2:17-cv-00716-RAJ Document 39-27 Filed 06/08/17 Page 6 of 6

Case 2:17-cv-00716-RAJ Document 39-28 Filed 06/08/17 Page 1 of 7
Exhibit BB

Case 2:17-cv-00716-RAJ Document 39-28 Filed 06/08/17 Page 2 of 7

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

NORTHWEST IMMIGRANT RIGHTS PROJECT (“NWIRP”), a nonprofit Washington public benefit corporation; and YUK MAN MAGGIE CHENG, an individual,
Plaintiffs,
v.
JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States; UNITED STATES DEPARTMENT OF JUSTICE; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; JUAN OSUNA, in his official capacity as Director of the Executive Office for Immigration Review; and JENNIFER BARNES, in her official capacity as Disciplinary Counsel for the Executive Office for Immigration Review,
Defendants.

No. 2:17-cv-00716
DECLARATION OF AUDRA J. SOLOWAY, PARTNER & CO-CHAIR OF THE PUBLIC MATTERS COMMITTEE, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

I, Audra J. Soloway, declare as follows: 1. I am over the age of eighteen, am competent to testify as to the matters below, and make this declaration based on personal knowledge. 2. I am a Litigation Partner at the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP (“Paul, Weiss”). Paul, Weiss is a firm of more than 900 lawyers. The firm’s largest office is in New York, which is where I practice.

Case 2:17-cv-00716-RAJ Document 39-28 Filed 06/08/17 Page 3 of 7

3. I have served as the Chair or Co-Chair of the firm’s Public Matters Committee since
1
2 2014. In this role, I have oversight responsibility for the firm’s Pro Bono Program, which is

3 managed by a full-time Pro Bono Counsel. As a result, I have a depth of knowledge of the firm’s

4 pro bono activities and priorities. I also maintain an active pro bono practice in a diverse range of
5
subject matters.
6
4. Throughout our firm’s history, Paul, Weiss has maintained an unwavering
7
8 commitment to providing pro bono legal assistance to the most vulnerable members of our society

9 and in support of the public interest. This commitment is a part of the firm’s identity, and is
10
embraced by every member of the Paul, Weiss community.
11

12

5. In 2016 alone, Paul, Weiss provided more than 70,000 hours of pro bono legal

13 assistance. This work ranged from large scale impact litigation to limited-scope one-day clinic
14
assistance.
15

16

6. Immigration work is an area of high priority for our Pro Bono Program. The vast

17
majority of our immigration practice involves the representation of low-income immigrants in
18

asylum cases and minors seeking Special Immigrant Juvenile Status (“SIJS”). Paul, Weiss makes
19

20 this significant commitment to pro bono immigration work because of the vulnerability of the client

21 population and the high stakes involved (e.g., death, serious physical and psychological harm,
22
imprisonment, denial of the ability to live safely as “out” for LGBTQ individuals, and other forms of
23
intolerable persecution). As a result of our long-time focus in this practice area, we understand that
24
25 full service immigration work is complex and requires vastly more resources than many other types

26 of pro bono work. Further, immigration cases often continue for many years due to the

27 overburdened immigration court dockets. These factors combine to make immigration cases
28

2

Case 2:17-cv-00716-RAJ Document 39-28 Filed 06/08/17 Page 4 of 7

particularly challenging for law firms and serve to limit the number of full representation cases that
1
2 our firm and, I believe most firms, can accept.

3
7. A significant portion of our asylum docket consists of full representation cases for
4
5 clients who suffered persecution in their home countries based on their LGBTQ and/or HIV+ status.

6 We consider this work an extension of the firm’s broader commitment to protecting the rights of the

7 LGBTQ community—the most high-profile example being our work to achieve marriage equality in
8
United States v. Windsor. In some instances, we have partnered with in-house counsel from large
9
corporations on pro bono immigration projects. Because corporations generally lack the resources to
10
11 provide full representation, in-house counsel may choose to collaborate with law firms on “limited

12 scope” pro bono projects. For example, Paul, Weiss recently launched a limited scope legal clinic
13 for unrepresented immigrants seeking asylum based on their LGBTQ or HIV+ status (the “Asylum
14
Clinic”). Paul, Weiss operates the Asylum Clinic in cooperation with a New York-based legal
15
16 services organization, along with corporate in-house counsel. The purpose of the Asylum Clinic is
17 to relieve some of the burden on the cooperating legal services organization, which has been

18 inundated with requests for assistance from low-income LGBTQ clients seeking immigration relief.

19

20

8. At the Clinic, Paul, Weiss attorneys and in-house counsel meet with eight to ten

21 clients per Asylum Clinic and assess each client’s potential claim for asylum or other form of
22
immigration relief. Clients are advised of the limited scope nature of the clinic, including the fact
23
that the attorneys involved will not provide full representation (i.e., will not enter a notice of
24
25 appearance on their behalf in Immigration Court or with any federal government department or

26 agency). If the client consents to this limited legal service, s/he is asked to sign an agreement

27 memorializing the limited nature of the relationship. The Asylum Clinic was never intended to
28

3

Case 2:17-cv-00716-RAJ Document 39-28 Filed 06/08/17 Page 5 of 7

operate on a full representation model. To the contrary, this project is appealing because of its
1
2 limited scope nature: it allows in-house attorneys and Paul, Weiss attorneys who do not have the

3 capacity to take on a full representation asylum case to make a difference in the life of a vulnerable

4 immigrant and assist an overburdened legal services organization without engaging in a full-scope
5
representation.
6

7

9. The Asylum Clinic requires Paul, Weiss attorneys to study the facts of each case and

8
apply the relevant law to assess the merits and/or weaknesses of the case. In certain situations, Paul,
9
Weiss attorneys may provide clients with guidance as to possible claims for relief. After each clinic,
10

11 Paul, Weiss attorneys provide the cooperating legal services organization with an evaluation of each

12 case—setting forth both the relevant facts and legal conclusions regarding the merits and any
13 challenges identified during the Clinic. The legal services organization then uses the Paul, Weiss
14
assessments to determine whether clients will receive assistance in obtaining full representation from
15
16 pro bono counsel.

17
10. The firm’s involvement in the Asylum Clinic is just one example of our work in a
18
variety of limited scope pro bono efforts, including additional projects that also implicate federal
19
20 law. In another example, our attorneys review and analyze documents for veterans’ disability

21 matters in order to assist several legal services organizations to assess the factual basis for claims of
22
service-connected disabilities in cases before the U.S. Department of Veterans Affairs.
23

24

11. Limited scope pro bono efforts are vital, and thus have become a robust part of law

25 firm pro bono practice, because they allow our attorneys to provide pro bono assistance to a far
26
greater number of vulnerable clients than we could through the traditional full representation model.
27
Paul, Weiss simply cannot accept for full representation all of the clients our attorneys work with
28

4

Case 2:17-cv-00716-RAJ Document 39-28 Filed 06/08/17 Page 6 of 7

during limited scope pro bono projects. In the immigration context, the firm is already devoting
1
2 substantial resources to full representation cases. Since 2010, Paul, Weiss attorneys spent over

3 16,000 hours on behalf of close to 20 clients in defensive asylum cases before the immigration

4 courts. During that same period, our attorneys spent over 11,000 hours assisting over 20 immigrant
5
children seeking SIJS relief.
6

7

12. All of the firm’s full representation pro bono immigration cases are referred by local

8
or national legal services organizations. Each of those organizations provides active “mentoring” for
9
every case referred to Paul, Weiss. This is a common model for pro bono immigration work due to
10

11 the complexity of the relevant law and practice rules, and the fact that most large firms do not have

12 established immigration practices for paying clients. Through this mentoring model, an immigration
13 lawyer at the referring legal services organization provides advice, reviews and provides input on
14
draft filings, and assists in developing strategies to address challenges in each of our full
15
16 representation immigration cases. Those legal services attorneys do not appear in any of our cases,
17 and our clients consent to this limited scope mentoring role.

18
13. I have personal knowledge of the matters stated above, except as to those matters
19
20 stated on information and belief, which I believe to be true.

21

22

23

24

25

26

27

28

5

Case 2:17-cv-00716-RAJ Document 39-28 Filed 06/08/17 Page 7 of 7
I declare under penalty of perjury of the laws of the State of New York and the United States that the foregoing is true and correct to the best of my knowledge and belief.
Executed this 7th day of June, 2017 in New York, New York.
(Olr- A&V^
Audra J. Solows
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 2:17-cv-00716-RAJ Document 39-29 Filed 06/08/17 Page 1 of 6
Exhibit CC

Case 2:17-cv-00716-RAJ Document 39-29 Filed 06/08/17 Page 2 of 6

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Case 2:17-cv-00716-RAJ Document 39-30 Filed 06/08/17 Page 1 of 9
Exhibit DD

Case 2:17-cv-00716-RAJ Document 39-30 Filed 06/08/17 Page 2 of 9

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 NORTHWEST IMMIGRANT RIGHTS PROJECT (''NWIRP"), a nonprofit
10 Washington public benefit corporation; and YUK MAN MAGGIE CHENG, an individual,
11
Plaintiffs,
12
V.
13
JEFFERSON 8. SESSIONS III, in his official 14 capacity as Attorney General of the United
States; UNITED STATES DEPARTMENT 0 15 JUSTICE; EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; JUAN OSUNA, 16 in his official capacity as Director of the
Executive Office for Immigration Review; and 17 JENNIFER BARNES, in her official capacity
as Disciplinary Counsel for the Executive 18 Office for Immigration Review,

19

Defendants.

20

Case No.: 2:17-cv-00716
DECLARATION OF KATHRYN J. FRITZ IN SUPPORT OF NORTHWEST IMMIGRANT RIGHTS PROJECT'S MOTION FOR PRELIMININARY INJUNCTION

21 I, Kathryn J. Fritz, hereby declare under penalty of perjury as follows:

22

1. I make this declaration in support of Plaintiff Northwest Immigrant Rights

23 Project's ("NWIRP") Motion for Preliminary Injunction. The following statements are based
24 upon my personal knowledge or on information and beliefwhere indicated. If called upon to

25 testify, I would testify competently to the matters contained herein.

26

2. I am the Managing Partner of Fenwick & West LLP ("Fenwick"). Fenwick is a

27 private law firm with over 350 attorneys practicing in offices located in Seattle, New York, San

28 DECL. OF KATHRYN J. FRITZ ISO NWIRP'S MOT. FOR PRELIM. INJUNCT. - I Case No.: 2:17-cv-00716

FENWICK & WEST LLP
1191 SECONOAVENUE, 10TH FLOOR SEAmE, WASHINGTON 98101

Case 2:17-cv-00716-RAJ Document 39-30 Filed 06/08/17 Page 3 of 9

1 Francisco, Silicon Valley, and Shanghai. Fenwick provides comprehensive legal services to

2 ground-breaking technology and life sciences companies at every stage of their lifecycle on

3 matters including venture capital financing, public offerings, joint ventures, mergers and

4 acquisitions, strategic relationships, intellectual property, litigation and dispute resolution, tax,

5 antitrust, and employment and labor law.

6

3. During the time that I have served as Managing Partner of the firm, I have served

7 as a member of the Legal Service Corporation's Pro Bono Task Force and co-chair of the

8 Subcommittee on Technology Best Practices in Pro Bono, and serve as a member of the Pro

9 Bono Institute's Law Firm Advisory Board. I have also co-chaired the Bar Association ofSan

10 Francisco's Pro Bono Committee. In 2015, I was honored by the public interest legal

11 organization OneJustice for my work in leading Fenwick's pro bono efforts. In addition to my

12 own regular practice, I have personally been actively involved in work on behalfof many pro

13 bono clients, including (among other matters) assisting individuals who sought political asylum

14 in the United States as well as participating in legal clinics focused on providing immigration

15 assistance, including under the Deferred Action for Childhood Arrivals (DACA) program.

16

4. Fenwick is deeply committed to pro bono work. Over the last three years,

17 Fenwick's records show that its attorneys devoted over 50,000 pro bono hours valued at over

18 $20 million in fees. When I refer to "pro bono" legal activity, I am referring to legal assistance

19 that Fenwick provides for free, for which the fion neither seeks nor obtains payment from

20 clients. Referring specifically to the limited-representation immigration clinics discussed below,

21 in no instance has Fenwick sought or received any fees, payments, or remuneration of any kind

22 whatsoever from anyone for services provided in any legal clinic.

23

5. Fenwick and its attorneys are committed to providing pro bono services to fulfill

24 the attorney's professional and social responsibility to assist those who otherwise would go

25 unrepresented and, to the extent feasible, to ensure that those who participate in our nation's .

26 legal processes understand their legal rights and are in a position to assert their rights. The

27 American Bar Association as well as the Bars of many states, including Washington, California,

28 DECL. OF KATHRYN J. FRITZ ISO NWIRP'S MOT. FOR PRELIM. lNJUNCT. - 2
Case No.: 2: l 7-cv-00716

FENWICK & WEST LLP
1191 SECOND AVENUE. 10TH FLOOR SEAntE. WASHINGTON 98101

Case 2:17-cv-00716-RAJ Document 39-30 Filed 06/08/17 Page 4 of 9

1 and New York, also consider providing pro bono legal services to those in need to be an

2 important duty and responsibility that goes along with the privilege ofbeing an attorney.

3 Fenwick and its attorneys are committed to fulfilling this duty and responsibility.

4

6. Fenwick's pro bono work covers many areas, but a significant portion of its

5 activity involves representation and assistance regarding immigration issues, provided to non-

6 citizens who cannot afford to pay for legal services and who would otherwise go without legal

7 assistance. Because Fenwick does not specialize in immigration law, however, this work is

8 commonly performed in cooperation with and under the general supervision of full-time

9 immigration attorneys at public interest legal organizations, including the Northwest Immigrant

10 Rights Project in Seattle, the Lawyers' Committee for Civil Rights of the San Francisco Bay

11 Area, Asian Pacific Islander Legal Outreach, California Rural Legal Assistance, Centro Legal de

12 la Raza, the Social Justice Collaborative, Kids in Need of Defense, and Community Legal

13 Services of East Palo Alto in Silicon Valley.

14

7. A substantial part of Fenwick's engagement in pro bono immigration work

15 involves participating in limited-scope immigration clinics. In a limited-scope clinic, potential

16 clients are typically initially screened by attorneys or personnel from a non-profit legal

17 organization. The potential clients are informed that attorneys from a private firm or corporate

18 legal department are available to assist them for a limited period of time, regarding a specific

1'9 concern, such as naturalization or DACA. The clients understand and agree that they will receive

20 assistance and counseling from an attorney at the clinic, but will thereafter have to continue

21 without further assistance or representation from that individual attorney or his or her firm. In

22 Fenwick's experience, limited-scope immigration clinic work has provided important assistance

23 to numerous individuals in understanding their legal rights and being able to exercise them.

24

8. Fenwick has worked with a number of non-profit organizations to provide

25 immigration legal aid at such limited-scope clinics, providing counseling regarding immigrants'

26 rights and options under U.S. immigration law, and assisting in filling out applications for

27 naturalization, asylum, U and T visas, Special Immigrant Juvenile Status, relief under the

28 DECL. OF KATHRYN J. FRITZ ISO
NWIRP'S MOT. FOR PRELIM. INJUNCT.• 3 Case No.: 2:17-cv-00716

FENWICK & WEST LLP
1191 SECONO AVENUE, 10TH FLOOR SEATTLE, WASHINGTON 98101

Case 2:17-cv-00716-RAJ Document 39-30 Filed 06/08/17 Page 5 of 9

1 Violence Against Women Act, and DACA. At these clinics, Fenwick attorneys always work

2 under the supervision of and with experienced immigration attorneys. Through these clinic

3 partnerships, financially strapped non-profit legal services organizations can leverage their legal

4 skills and expertise through private law firm attorneys to provide even more individuals with

5 access to justice.

6

9. Fenwick's records indicate that over the last five years, Fenwick attorneys have

7 participated in 39 such immigration clinics with non-profit legal aid organizations. Through

8 these clinics, Fenwick has served approximately 595 individuals for approximately 277 attorney

9 hours.

10

10. Fenwick has also participated in limited-scope immigration clinics alongside

11 attorneys from the legal departments of many corporate entities. Because of the nature of the

12 work of in-house counsel, these attorneys are usually not in a position to engage in pro bono

13 litigation or protracted pro bono representation. However, attorneys in in-house legal

14 departments are also eager to contribute legal services to individuals who would otherwise go

15 without legal assistance, and legal clinics have provided an important channel for such pro bono

16 services by a number of Fenwick's clients and other companies. Attached as Exhibit A is a true

17 and correct copy of an impact statement from OneJustice describing Fenwick's participation in

18 immigration clinic on April 13, 2017, along with attorneys from other private law firms as well

19 as corporate entities.

20

11. Notwithstanding Fenwick's substantial commitments to pro bono work over the

21 years, Fenwick is not a nonprofit legal aid organization. Fenwick attorneys are simply not in a

22 position to enter an appearance in immigration proceedings for every individual they assist in an

23 immigration clinic, nor to undertake the full representation of the more than one hundred

24 additional pro bono immigration clients, on average, to whom Fenwick provides some assistance

25 each year.

26

12. I have read the letter dated April 5, 2017, from Jennifer J. Barnes, Disciplinary

27 Counsel ofthe Department of Justice, to Matt Adams ofNWIRP ("the DOJ Letter"), which is

28 DECL. OF KATHRYN J. FRITZ ISO
NWIRP'S MOT. FOR PRELIM. INJUNCT. - 4 Case No.: 2: 17-cv-00716

FENWICK & WEST LLP
1191 SECONOAVENUE, 10TH FLOOR 5EAmE, WASHINGTON 98101

Case 2:17-cv-00716-RAJ Document 39-30 Filed 06/08/17 Page 6 of 9

1 identified as Exhibit 1 to NWIRP's Complaint in this matter. I have also reviewed NWIRP's

2 Complaint (Dkt. No. 1), the Department of Justice's ("DOJ'') opposition brief to NWIRP's

3 motion for a temporary restraining order (Dkt. No. 14), and the transcript of the hearing on the ·

4 motion in this matter (Dkt. No. 36).

5

13. The DOJ Letter is not entirely clear. However, my best understanding of the

6 Letter is that under the DOJ's statement of the ethical requirements of immigration practice, an

7 attorney's participation in an immigration legal clinic involves "representation" within the

8 meaning of the DOJ Letter because it includes "preparation" and "practice" as those terms are

9 defined in the DOJ Letter, which appears to include providing any legal advice.

10

14. The statements made by the DOJ's attorney at the May 17, 2017 hearing on

11 NWIRP's motion for a temporary restraining order do not eliminate these concerns. I remain

12 concerned that there is not a clear distinction between "providing legal advice" (said by the

13 DOJ's attorney to require a formal appearance) and "providing assistance, providing

14 information" (said by the DOJ's attorney not to require a formal appearance). If, as the DOJ's

15 attorney stated, attorneys are required to enter a formal appearance and represent an individual

16 for the entirety of their immigration proceeding whenever they "provid[e] individual substantive

17 information and aid and assistance ... to apply the facts to the legal law," then this is likely to

18 occur or may well occur every time Fenwick attorneys advise someone at an immigration clinic.

19

15. If the DOJ's interpretation of attorneys' obligations with regard to immigration

20 counseling were upheld, attorneys from Fenwick who participate in clinics would be very

21 reasonably concerned that they would be obliged- under threat of disciplinary action-to file a

22 formal Notice of Appearance for every individual they help at a clinic, and to agree to represent

23 each individual for the entirety of their immigration matter.

24

16. At best, the issue is fraught with uncertainty. But if providing assistance at legal

25 clinics requires a formal appearance and full representation, Fenwick will likely end its

26 participation in immigration clinics and assistance in the provision of this critically needed legal

27 assistance. Fenwick is not in a position to take on more than one hundred additional full-scope

28 DECL. OF KATHRYN J. FRITZ ISO NWIRP'S MOT. FOR PRELIM. INJUNCT. - 5 Case No.: 2: 17-cv-00716

FENWICK & WEST LLP
1191 SECOND AVENUE. 10TH FlDOR SEAmE, WASHINGTON 98101

Case 2:17-cv-00716-RAJ Document 39-30 Filed 06/08/17 Page 7 of 9

1 pro bono cases each year, in addition to maintaining its current regular clientele and pro bono

2 efforts. If the DOJ's apparent interpretation of its ethical rules is in the end upheld, Fenwick-

3 and likely also the corporate legal departments- will simply cease to participate in immigration

4 clinics.

5

17. As a private firm engaging in pro bono work, Fenwick's concerns focus on the

6 need to protect the legal rights of those in possible peril from government legal action who

7 would otherwise go unrepresented. It is important to the rule of law that attorneys be able to

8 assist them as far as they are able.

9

IO

I declare under penalty of perjury under the laws of the United States that the foregoing is

11 true and correct. I have personal knowledge of the matters stated above, except as to those

12 matters stated on information and belief, which I believe to be true.

13

Executed on this'l4day of June 2017, in San Francisco, California.

14
15

By~ n

16

Kat · . F

17

18

19

20

21

22

23

24

25

26

27

28 DECL. OF KATHRYN J. FRITZ ISO
NWIRP'S MOT. FOR PRELIM. INJUNCT. - 6 Case No.: 2:17-cv-00716

FENWICK & WEST LLP
1191 SECOND AVENUE, 10TH FLOOR SEAffiE, WASHINGTON 98101

Case 2:17-cv-00716-RAJ Document 39-30 Filed 06/08/17 Page 8 of 9
EXHIBIT A

Case 2:17-cv-00716-RAJ Document 39-30 Filed 06/08/17 Page 9 of 9
  

Case 2:17-cv-00716-RAJ Document 39-31 Filed 06/08/17 Page 1 of 8
Exhibit EE

Case 2:17-cv-00716-RAJ Document 39-31 Filed 06/08/17 Page 2 of 8

Case 2:17-cv-00716-RAJ Document 39-31 Filed 06/08/17 Page 3 of 8

Case 2:17-cv-00716-RAJ Document 39-31 Filed 06/08/17 Page 4 of 8

Case 2:17-cv-00716-RAJ Document 39-31 Filed 06/08/17 Page 5 of 8

Case 2:17-cv-00716-RAJ Document 39-31 Filed 06/08/17 Page 6 of 8

Case 2:17-cv-00716-RAJ Document 39-31 Filed 06/08/17 Page 7 of 8

Case 2:17-cv-00716-RAJ Document 39-31 Filed 06/08/17 Page 8 of 8

Case 2:17-cv-00716-RAJ Document 39-32 Filed 06/08/17 Page 1 of 4
Exhibit FF

Case 2:17-cv-00716-RAJ Document 39-32 Filed 06/08/17 Page 2 of 4

THE HONORABLE RICHARD A. JONES 1

2

3

4

5

6

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

7

8 NORTHWEST IMMIGRANT RIGHTS PROJECT (“NWIRP”), a nonprofit
9 Washington public benefit corporation, et al., Case No. 2:17-cv-00716

10

Plaintiffs,

11 v.
12

JEFFERSON B. SESSIONS III, et al., 13

DECLARATION OF CLAIRE LOEBS DAVIS IN SUPPORT OF THE NORTHWEST IMMIGRANTS RIGHTS PROJECT’S MOTION FOR PRELIMINARY INJUNCTION

14

Defendants.

15 I, Claire Loebs Davis, declare as follows:

16

1. I am the Seattle chair of the pro bono committee at Lane Powell PC (“Lane

17 Powell”), a multi-specialty law firm with approximately 200 attorneys in offices located in

18 Washington, Oregon, Alaska and London, England. I have personal knowledge of the facts

19 contained herein and am competent to testify about the same.

20

2. In my capacity as the Seattle chair of the pro bono committee, I coordinate Lane

21 Powell’s Seattle pro bono efforts. Lane Powell performs a wide variety of pro bono work,

22 including but not limited to work in the area of criminal law, environmental law, and civil rights.

23 In the past twelve months, Lane Powell attorneys and paralegals devoted approximately 12,000

24 hours to the firm’s pro bono efforts.

25

3. Immigration law constitutes a significant portion of Lane Powell’s pro bono

26 practice. Over the past year, Lane Powell attorneys and paralegals have devoted several hundred

27
Declaration of Claire Loebs Davis Case No. 2:17-cv-00716 - 1

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107

Case 2:17-cv-00716-RAJ Document 39-32 Filed 06/08/17 Page 3 of 4

1 hours to immigration-related pro bono work. Lane Powell’s immigration work includes

2 participating in limited-advice clinics, such as statewide citizenship clinics and citywide general

3 immigration advice clinics.

4

4. Lane Powell often partners with the Northwest Immigrant Rights Project

5 (“NWIRP”), in conjunction with other community organizations, to provide these services, and

6 would not be able to provide these services without the invaluable guidance and support of

7 NWIRP. NWIRP trains volunteer attorneys to enable them to provide these legal services to

8 underserved communities. If not for the training materials provided by NWIRP and NWIRP’s

9 sponsorship of these clinics, Lane Powell would not be able to serve these clients. Participation

10 in these limited-representation clinics allows Lane Powell to provide legal services to a much

11 broader population than Lane Powell would be able to serve it could only take on full

12 representation.

13

5. For example, for the past two years, Lane Powell has participated in statewide

14 citizenship clinics. At these citizenship clinics, attorney volunteers conduct an initial consultation

15 and advise immigrants on completing their citizenship forms, including the N-400 form. At each

16 clinic, Lane Powell provided advice to between 10 and 15 individual clients. Working with other

17 community non-profit organizations, NWIRP provides the training materials and resources for the

18 volunteer attorneys at these clinics.

19

6. In the past year, Lane Powell has also provided limited representation services at

20 Seattle citywide immigration-related clinics, including a clinic at the University of Washington

21 and a clinic organized by the Council on American-Islamic Relations (“CAIR”). Lane Powell

22 participates in these clinics with the objective to advise several individuals at each clinic.

23

7. NWIRP’s limited representation services have also played a crucial role in the pro

24 bono immigration cases in which Lane Powell provides full representation. For example, one of

25 Lane Powell’s current asylum clients received the benefit of limited representation from NWIRP

26 when filing her initial application for asylum. Had Lane Powell’s client not received the initial

27
Declaration of Claire Loebs Davis Case No. 2:17-cv-00716 - 2

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107

Case 2:17-cv-00716-RAJ Document 39-32 Filed 06/08/17 Page 4 of 4

1 limited representation from NWIRP, she would not have been able to file her asylum application

2 by the strict one-year deadline, and we would not have had the opportunity to represent her in her

3 court asylum proceedings.

4

8. Providing pro bono support to immigrants is an important component of Lane

5 Powell’s commitment to help ensure that members of underserved communities receive full and

6 equal access to the justice system. The immigrants that Lane Powell represents, both in full

7 representation and in limited-representation capacities, are some of the people most in need of the

8 pro bono legal services.

9

9. If NWIRP, other legal rights organizations, and the pro bono programs of private

10 law firms were precluded from providing immigrants with limited-representation services, then

11 their combined services would reach only a fraction of the immigrants they current assist in

12 navigating the immigration, asylum, and citizenship system.

13

14

DATED: June 7, 2017

15

By

16

Claire Loebs Davis

17

18

19

20

21

22

23

24

25

26

27
Declaration of Claire Loebs Davis Case No. 2:17-cv-00716 - 3

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107

Case 2:17-cv-00716-RAJ Document 39-33 Filed 06/08/17 Page 1 of 7
Exhibit GG

Case 2:17-cv-00716-RAJ Document 39-33 Filed 06/08/17 Page 2 of 7

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

SEATTLE DIVISION

10
NORTHWEST IMMIGRANT RIGHTS 11 PROJECT("NWIRP"),a nonprofit
Washington public benefit corporation; and 12 YUK MAN MAGGI~ CHENG,an
individual, 13
Plaintiffs, 14
►~~ 15
JEFFERSON B. SESSIONS III, in his 16 official capacity as Attorney General ofthe
United States; UNITED STATES 17 DEPARTMENT OF JUSTICE;
EXECUTIVE OFFICE FOR 18 IMMIGRATION REVIEW;JUAN
OSUNA,in his official capacity as Director 19 ofthe Executive Office for Immigration
Review; and JENNIFER BARNES,in her 20 official capacity as Disciplinary Counsel
For the Executive Office for Immigration 21 Review,

22

Defendants.

23

Case No. 2:17-cv-00716
DECLARATION OF MAUREEN P. ALGER IN SUPPORT OF NORTHWEST IMMIGRANT RIGHTS PROJECT'S MOTION- FOR PRELIMINARY INJUNCTION

24

I, Maureen P. Alger, declare as follows:

25

1. I am over the age of eighteen, am competent to testify as to the matters below, and

26

CASE NO.2:17-CV-00716

1 •

COOLLY LLP
3175 HANOVF.,R STREE"1',
PAt,o ALTO, CA 94304-1 130 (650)843-5000

Case 2:17-cv-00716-RAJ Document 39-33 Filed 06/08/17 Page 3 of 7

1 make this declaration based on personal knowledge.

2

2. I am Cooley LLP's("Cooley")Pro Bono Partner and in that capacity manage

3 Cooley's firm wide Pro Bono practice. Cooley is a global private law firm with more than 900

4 lawyers across twelve offices in the United States, China and Europe. Cooley provides a full

5 range oflegal services for public and private technology and life sciences companies and their

6 investors,including representation on transformative deals,complex IP and regulatory matters,

7 and high-stakes litigation.

8

3. I currently serve on the board of OneJustice and on the ABA Section of

9 Litigation's Pro Bono Committee. I have previously served on the boards of Western Center on

10 Law and Poverty and the Legal Aid Society ofSan Mateo County. I am a co-founder,former

11 board member and Emeritus Council member ofthe Association ofPro Bono Counsel. I have

12 previously chaired the Bar Association ofSan Francisco's Pro Bono Committee,the State Bar of

13 California's Pro Bono Coordinating Committee,and the State Bar of California's Standing

14 Committee on the Delivery ofLegal Services. I was presented with the National Legal Aid &

15 Defender Association's Arthur von Briesen Award in 2014 for my leadership on pro bono legal

16 services and advocacy on equaljustice issues.

17

4. Cooley's Pro Bono Practice is built on a long tradition and institutional

18 commitment to providing free legal services to individuals oflimited means,organizations that

19 serve individuals oflimited means,and community and education-focused nonprofit

20 organizations. We apply the same expertise and resources on behalfofour pro bono clients as

21 we do For all other clients. We encourage attorneys in every office and every practice group to

22 contribute on pro bono matters, consistent with the canons ofprofessional responsibility

23 promulgated by the American Bar Association and the bars of many ofthe states in which we

24 practice. In 2016,Cooley timekeepers provided over 51,000 hours ofpro bono legal services.

25

5. Cooley provides pro bono legal services in many substantive areas oflaw

26. including civil rights, constitutional law,environmental,law, housing, human rights,

CAsc No.2:17-ry-00716

2.

CooL~Y LLP
3175 HANOVER STREF.;7',
PnLo ALPO, CA 94304-1 1 30 (650)843-5000

Case 2:17-cv-00716-RAJ Document 39-33 Filed 06/08/17 Page 4 of 7

1 immigration, mental health advocacy, micro-enterprise advising, micro-finance, and nonprofit

2 advising. Our advocacy is often on behalfofchildren, survivors of domestic violence,seniors,

3 veterans, prisoners, and the homeless. Our Pro Bono Practice is built on partnerships with local,

4 regional and national legal services organizations that provide screening,training, and mentoring

5 in areas ofthe law in which we do not typically practice.

6

6. Cooley is engaged in regional and national conversations about how to use pro

7 bono as a tool to address the gap in access to legal representation generally, and in the

8 immigration context in particular. As part ofthese discussions, I have attended multiple

9 meetings hosted by former Vice President Joseph Biden at the White House complex over the

10 past several years,including an event specifically focused on meeting the legal representation,

11 needs ofimmigrants. Additionally,the firm is actively participating in the Association ofPro

12 Bono Counsel's Immigration Task Force and in other discussions among a broad range of

13 stakeholders regarding access to counsel for immigrant children and families.

14

7. Immigration law is the largest substantive area of Cooley's Pro Bono Practice.

15 The firm does not have a paying immigration practice, or extensive internal expertise in

16 immigration law matters. Thus,in order to provide these critical legal services with the level of

17 expertise for which our Pro Bono practice is known,the firm partners with legal services

18 organizations with immigration lawyers on staff, including Northwest Immigrant Rights Project

19 in Seattle(NWIRP),and many other similar organizations around the country,including the

20 Lawyers' Committee For Civil.Rights ofthe San Francisco Bay Area,CAIR Coalition, Casa

21 Cornelia Law Center, Catholic Charities, Centro Legal de la Raza,Community Legal Services of

22 East Palo Alto, Human Rights First, Kids in Need ofDefense(KIND),OneJustice,Public

23 Counsel, and Rocky Mountain Immigrant Advocacy Network.

24

8. Cooley provides full-scope legal representation on immigration issues for many

25 pro Bono clients, including representation on asylum, Special Immigrant Juvenile Status, DACA,

26 U visa, T visa, and Violence Against Women Act(VAWA)cases. The firm currently has 116

C~sc No.2:17-ry-00716

3.

COOLEY LLP
3175 HANOVER STRF,F.•,"1', P~[.o AI.7'o, Cn 94304-1 1 30
(650)843-5000

Case 2:17-cv-00716-RAJ Document 39-33 Filed 06/08/17 Page 5 of 7

1 active full-scope immigration cases on its docket. In 2017 to date, more than one hundred

2 Cooley attorneys have been engaged in pro Bono immigration cases, delivering more than 5,000

3 hours ofpro Bono services.

4

9. Despite the commitment of Cooley and other law firms to providing full-scope

5 pro Bono representation where possible,the need for representation in immigration cases remains

6 overwhelming. We must regularly turn down many meritorious cases referred from our partner

7 organizations due to capacity constraints.

8

10. Limited-scope clinics provide an,additional way pro bono attorneys can contribute

9 to filling the gap in access to legal representation and are therefore a crucial component ofthe

10 legal services delivery system. These clinics provide a mechanism for Cooley and other

11 volunteer pro Bono attorneys,in cooperation with our legal services partners, to provide critical

12 legal information and limited legal advice to immigrants navigating our complex immigration

13 system who are unable to obtain full-scope representation.

14

11. In limited-scope clinics, volunteer attorneys explain to potential clients that they

15 are available to assist them on a pro bono basis (i.e., without charge)for a limited period oftime

16 during the clinic regarding specific legal issues. The clients at these clinics agree to the limited

17 representation and verify that they understand that the representation does not extend beyond the

l8 time spent with the volunteer attorney at the clinic on that particular day.

19

12. Cooley attorneys volunteer regularly at these limited-scope clinics, including

20 limited-scope clinics Focused on providing immigration advice. Our participation in such clinics

21 is always under the supervision ofexperienced immigration attorneys employed by the legal

22 services organizations with which we partner. In 2016 and 2017,43 Cooley attorneys

23 participated in limited-scope immigration clinics, delivering approximately 700 hours ofpro

24 Bono legal services.

25

13. I have reviewed the letter dated April 5,2017,from Jennifer J. Barnes,

26 Disciplinary Counsel ofthe Department of Justice, to Matt Adams ofNWIRP(Exhibit 1 to

CAs~ No.2:17-Cv-00716

COOLEY LLP
3175 HANOVER STREE'C, Pn~o A[.~ro, CA 94304-I l30
(650)843-5000

Case 2:17-cv-00716-RAJ Document 39-33 Filed 06/08/17 Page 6 of 7

1 NWIRP's Complaint in this matter), as well as NWIRP's Complaint(Dkt. No. 1), NWIRP's

2 Motion for Temporary Restraining Order(Dkt. No.2), and the Department ofJustice's(DOJ)

3 opposition to NWIRP's motion(Dkt. No. 14).

4

14. DOJ's letter to NWIRP appears to indicate that any time an attorney consults in a

5. clinic setting with an immigrant who is in removal proceedings about her case,that attorney is

6 required to file a notice ofappearance for the entirety ofthat immigrant's removal proceedings.

7 My understanding is that this would be a new and novel interpretation ofEOIR's rules governing

8 attorney conduct. If adopted and enforced,the practical effect ofthis interpretation will be that

9 many vulnerable immigrants who are unable to obtain attorneys to represent them throughout

10 their removal proceedings will have no access to legal guidance at all.

11

15. While Cooley has committed to providing a substantial level offree legal services

12 to those in need,capacity constraints and obligations to other clients dictate that we are able to

13 take only a certain number offull-scope representations. It would not be feasible for Cooley

14 attorneys to enter an appearance on behalfofevery client served at a limited-scope immigration

15 clinic. Ifforced to do so under threat ofdisciplinary action, our attorneys would no longer be

16 able to participate in such clinics, and those clinics would likely be discontinued altogether. As a

17 result, hundreds, if not thousands, ofimmigrants,including minors and many with strong claims

18 fox asylum or other relief, would be without any legal guidance in navigating the immigration

19 system and the immigration courts.

20

16. Cooley is committed to providing pro bono representation to immigrants and

21 others whose lives and liberty are injeopardy because they cannot afford to pay attorneys to help

22 them navigate our complex court system. Providing limited scope assistance in a clinic setting,

23 supervised by expert attorneys from legal services organizations, is one ofthe primary ways our

24 attorneys put that commitment into action. The DOJ's interpretation ofits rules as explained in

25 the DOJ letter would severely limit the contributions we are able to make to assist this vulnerable

26 population.

Cass No.2:17-cv-00716

5.

CooLEv LLP
3175 HANOVLRSI'RGET,
PASO AI.'ro, CA 94304-t 130 (650)843-5000

Case 2:17-cv-00716-RAJ Document 39-33 Filed 06/08/17 Page 7 of 7

1

I declare under penalty of perjury under the

States that the foregoing is true and correct to the be

3

Executed on this 8th day ofJune,2017 in Pa]

4

5 6 7 8 9 10 11 l?

13 14 15 16 17 lg 19 ~~

21 22 23 24 25 26

CASE NO.2:17-CV-00716

6.

COOLEY LLP
3175 HANOVER STREET,
PALO ALTO, CA 94304-1130 (650)843-5000

Case 2:17-cv-00716-RAJ Document 39-34 Filed 06/08/17 Page 1 of 6
Exhibit HH

Case 2:17-cv-00716-RAJ Document 39-34 Filed 06/08/17 Page 2 of 6
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
NORTHWEST IMMIGRANT RIGHTS PROJECT (“NWIRP”), a nonprofit Washington public benefit corporation; and YUK MAN MAGGIE CHENG, an individual,
Plaintiffs,
v.
JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States; UNITED STATES DEPARTMENT OF JUSTICE; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; JUAN OSUNA, in his official capacity as Director of the Executive Office for Immigration Review; and JENNIFER BARNES, in her official capacity as Disciplinary Counsel for the Executive Office for Immigration Review,
Defendants.
Case No.: 2:17-cv-00716
DECLARATION OF MARJORIE PRESS LINDBLOM IN SUPPORT OF NORTHWEST IMMIGRANT RIGHTS PROJECT’S MOTION FOR PRELIMINARY INJUNCTION
I, Marjorie Press Lindblom, hereby declare under penalty of perjury as follows:
1. I make this declaration in support of Plaintiff Northwest Immigrant Rights Project’s (“NWIRP”) Motion for a Preliminary Injunction. This declaration is based upon my personal knowledge of the facts contained herein, or upon information and belief, as reflected below.
2. Kirkland & Ellis LLP (“Kirkland”) is an international law firm with over 1700 attorneys in private practice in Beijing, Chicago, Hong Kong, Houston, London, Los Angeles, Munich, New York, Palo Alto, San Francisco, Shanghai, and Washington DC. The firm’s primary areas of practice are all types of corporate transactions, business restructuring, commercial litigation, and intellectual property litigation and transactions.
3. I am Of Counsel to Kirkland, resident in the New York office of the firm. I have been with Kirkland for 39 years, as a litigation partner for 29 of them. My role since 2013 has been as Counsel and Co-Chair of the Firmwide Pro Bono Management Committee. As such, I am responsible, with my Co-Chair, Thomas D. Yannucci, in conjunction with the pro bono committee and the Firm’s management committee, for setting Firmwide pro bono policy and ensuring the effective achievement of the firm’s pro bono goals.
47372620_l.docx

Case 2:17-cv-00716-RAJ Document 39-34 Filed 06/08/17 Page 3 of 6
4. Kirkland’s commitment to pro bono legal service is oriented toward improving our clients’ lives, bettering our communities, and fulfilling our attorneys’ professional responsibilities. Pro bono service is an essential component of the culture at Kirkland. Over 81% of the firm’s U.S. attorneys contributed at least twenty hours of pro bono service in 2016. The firm donated over 100,000 hours of pro bono legal services in 2016. Kirkland has been recognized many times for excellence in pro bono service, including the Immigration Equality Safe Haven Award, the Sanctuary for Families Above and Beyond Award, the ABA Pro Bono Publico Award, the New York Center for Law and Justice Access to Justice Award, and the Thomson Reuters Foundation TrustLaw Award, among numerous others.
5. The Firm has a robust pro bono practice, including work in numerous areas including, but not limited to, asylum law, immigration-related remedies for crime victims and victims of domestic violence, naturalization assistance, immigration relief for victims of labor and sex trafficking, immigration assistance to unaccompanied minors and those who qualify for Deferred Action for Childhood Arrival, applications for advance parole, community development through legal support of microenterprise, nonprofit law, artists’ intellectual property, personal bankruptcy, housing court matters, an array of veterans’ matters, assistance to incarcerated mothers, clemency matters, death penalty appeals, advance directives, guardianship, LGBT rights, voting rights, and numerous other civil and human rights causes.
6. Although our attorneys often undertake full representation of individuals and organizations on a pro bono basis, many of our attorneys choose to serve clients on a limited scope basis in clinics sponsored by our legal service organization partners, and in programs offered by the courts in the cities in which Kirkland has offices. These programs are all intended to provide at least some degree of quality legal services to meet the enormous unmet need for legal advice.
7. Our attorneys provide limited scope screening and brief advice at clinics created by our legal service organization partners on topics including but not limited to veterans’ benefits, legal issues facing the homeless, family law, legal guidance for incarcerated mothers, immigration remedies for victims of sex trafficking and domestic violence, individuals facing personal bankruptcy, housing court litigation, applications for orders of protection, guardianship, vacatur or expungement of criminal records, applications for advance parole, and many other areas of legal need. In each of these clinics, our attorneys are likely to screen clients to determine legal issues, provide basic legal advice, and sometimes to assist in preparation of documents or applications to the courts.
8. Our attorneys also participate in programs offered by the courts themselves to assist pro se individuals. These court-sponsored access to justice programs include housing law, human trafficking intervention, family law, and criminal law. In this context our attorneys will offer brief advice, assist in preparation of documents to be submitted pro se, or sometimes appear in court for single appearances before judges. Upon information and belief, the clients of these clinics and court programs are universally the poor or underserved. They are individuals who fall into the “justice gap” — the countless number of Americans who cannot pay for private attorneys, but who have serious legal issues and do not have matters that guarantee them counsel.
2
47372620_l.docx

Case 2:17-cv-00716-RAJ Document 39-34 Filed 06/08/17 Page 4 of 6
9. Kirkland has created a substantial pro bono practice in immigration law. In an immigration context, we rely almost entirely on legal service partner organizations to screen those who have asked for help to determine their financial need and applicable legal issues, work with us in training our attorneys, create opportunities for our attorneys to serve, and follow up with our attorneys with mentoring and expertise as needed. It is extremely unlikely in an immigration context that the firm would take on a client that did not first come to us through one of our legal service organization partners. In our immigration work, the firm works closely with Sanctuary for Families, Immigration Equality, Community Activism Law Alliance, National Immigrants Justice Center, the New York Immigration Coalition, Make the Road, The City Bar Justice Center, Legal Services NYC, Catholic Charities, Volunteers of Legal Services, Kids In Need of Defense, Legal Aid Societies of several cities, and OneJustice, among others. These organizations are highly regarded and expert in all services that they provide to clients, whether in full representation or in limited scope advice.
10. Before every limited scope pro bono service is delivered by Kirkland’s attorneys, the individuals being assisted are fully informed both by our legal service organization partners and our lawyers of the parameters of the services being rendered. The exact scope of the services is made clear in the clients’ native languages. In the clinical context, the legal service organizations do not submit notices of appearance for these clients, and the firm does not execute retention letters with the individuals being served. Typically, the clients receiving limited scope advice or other services are informed of next steps to be taken pro se, and given resources, where available, for follow-up services.
11. Through limited scope representation, attorneys with limited time or expertise can contribute to pro bono service by enabling our legal service organization partners to screen and assist more clients than they would otherwise be able to serve without the additional support of volunteers from the private bar. The clinics’ clients — the ultimate beneficiaries of this service — are typically grateful not to have to navigate our daunting legal system alone on a pro se basis, without any advice at all. While all of the needs of the limited scope clients are certainly not being met, at least some of them are, and they are being met by competent, capable, caring attorneys, who do their best to guide the clients as they move forward pro se. The clients know from the beginning of the relationship that the scope of the services will be limited, and they are not misled into relying to their detriment upon a lawyer who will not be there for them after the contemplated period of service has ended.
12. In addition, through clinic work and limited scope representation, our attorneys develop increasing levels of substantive understanding of new areas of law that are not central to the core practice of the firm, and they are often able to use that new knowledge to assist future pro bono clients on an ongoing full-representation basis. The clinic practices, in addition to providing advice to legal service organization clients who would otherwise not have counsel, and assisting the legal service organizations to better serve increased numbers of the poor and underserved, are effectively the “thin end of the wedge” to full representation, as lawyers become exposed to the compelling needs of the clients and the subject areas of their legal problems. Without this introduction to these areas of law, it is possible that these lawyers would not develop the affinity they have for helping these clients on a longer-term, fullrepresentation basis.
3
47372620_l.docx

Case 2:17-cv-00716-RAJ Document 39-34 Filed 06/08/17 Page 5 of 6
13. Incidentally, we have seen at the firm that this relationship with these needy individuals and compelling legal issues also drives personal giving by pro bono volunteers to the legal service organizations and other organizations that serve the immigrant and other needy communities. In fact, the Kirkland & Ellis Foundation provides funds to be donated by our most committed pro bono attorneys on an annual basis, in addition to whatever personal funds they donate, to the legal service organizations or nonprofit clients of the firm of their choice. In addition to the value of the legal services they provide, there is an economic benefit to the underserved in lawyers providing these limited scope services.
14. In my home state, the New York Rules of Professional Responsibility Rule 6.1 strongly encourages every attorney to provide at least fifty hours of pro bono service, and to contribute financially to legal services for the poor. Rule 6.5, entitled Participation in Limited Pro Bono Legal Service Programs, explicitly provides that attorneys can engage in “short­ term limited legal services [to provide] legal advice or representation free of charge ... with no expectation that the assistance will continue beyond what is necessary to complete an initial consultation, representation, or court appearance,” provided that the program is run in accordance with certain guidelines, and that the client is informed and consents to the limited scope of the representation. Kirkland adheres rigorously to all rules set forth in the Rules of Professional Conduct, and our legal service organization partners join with us in creating and staffing these clinics according to the rules, to help ensure that the needs of the community are being addressed in the most efficient and effective way possible with the available resources.
15. It is my understanding that NWIRP is being required by the Department of Justice to cease limited scope representation of immigrant clients in removal defense proceedings, under a federal regulation requiring that a notice of appearance be entered in all cases, thus committing the appearing attorney to a representation for the duration of the action. The intent of this regulation was to protect these vulnerable litigants from predatory behavior by inexperienced non-lawyers and those attorneys who would take their money and fail to follow through on the services for which the clients believe they have paid, and upon which they are relying. It is simple math to deduce that if attorneys who volunteer their services pro bono are forced to undertake full representation for every client, the number of clients who can be represented on a limited scope basis at the critical early stages of removal defense would be severely limited indeed.
16. Although we do not work directly with NWIRP, it is my understanding from our brothers and sisters at the bar in Washington State that NWIRP is a reputable organization that does excellent work with immigrants in deportation proceedings. In our experience, the dangers against which the rule is intended to protect, but which is now being used to inhibit the services of NWIRP, bear no resemblance to the work that is done by reputable legal service organizations partnering with ethical pro bono volunteers from the private bar. In Kirkland’s case, our poor immigration clients do not pay for services, they are fully informed of the limited scope nature of the services being provided, and they are assisted with resources and guidance for pro se follow-up to the brief advice that is being provided. It is a cruel irony to use a rule designed to protect poor litigants to instead deprive them of whatever minimal legal advice they could be receiving from trained public service lawyers and volunteers from the private bar.
4
47372620 l.docx

Case 2:17-cv-00716-RAJ Document 39-34 Filed 06/08/17 Page 6 of 6
17. Furthermore, it is worth noting that if poor people are prevented from utilizing limited scope legal services in an immigration-related context due to a fear of predatory conduct by bad actors, the Court will be hard-pressed to explain why the immigration context differs from any other context in which limited scope legal services are provided to poor litigants. One need only read the local legal press to learn about predatory conduct on the part of non­ lawyers and unscrupulous attorneys. It is hard to envision how the Court would not soon find itself “protecting” litigants in Housing Court, Family Court, Bankruptcy Court, Civil Court, and perhaps even Criminal Court from both the nefarious actions of those who engage in predatory conduct against vulnerable populations in their time of need, and concomitantly from dedicated volunteer or public service attorneys who are trying to the best of their ability to be helpful in a limited scope context, as we are now seeing in the immigration context. It seems almost too obvious to state, but unethical behavior toward clients is not inextricably related to the limited scope legal services that are provided by reputable legal service organizations and their pro bono lawyer volunteers.
18.1 have personal knowledge of the aforementioned statements, except where asserted upon information and belief, in which case 1 believe them to be true.
State of New York ss.:
County of New York On the 8th day of June, 2017, before me Marjorie Lindblom, personally known to me, subscribed to the within instrument. Subscribed and sworn to before me this 8th day of June, 2017.
Jacqueline Haberfeld, Notary Public
JACQUELINE HABERFELD Notary Public, State of New York
No. 02HA6237084 Qualified in New York County 0 Commission Expires March 14,20 JH
5
47372620 l.docx

Case 2:17-cv-00716-RAJ Document 39-35 Filed 06/08/17 Page 1 of 17
Exhibit II

Case 2:17-cv-00716-RAJ Document 39-35 Filed 06/08/17 Page 2 of 17

1

The Honorable Richard A. Jones

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10 NORTHWEST IMMIGRANT RIGHTS

11

PROJECT ("NWIRP"), a nonprofit Washington public benefit corporation; and

YUK MAN MAGGIE CHENG, an

12

individual,

No. 2:17-cv-00716
DECLARATION OF EDWARD B. MURRAY

13 Plaintiffs,
14
VS.
15 JEFFERSON B. SESSIONS III, et al.,

16

Defendants.

17

18

I, EDWARD B. MURRAY, declare as follows:

19

1. I am the Mayor of the City of Seattle. I am over 18 years of age, am competent to

20 testify about the matters set forth herein, and submit the testimony below based on personal

21 knowledge and information.

22

2. On April 17, 2017, the Seattle City Council unanimously passed Seattle

23 Ordinance 125296 (the "Ordinance"). As discussed below, the Ordinance appropriated

DECLARATION OF EDWARD B. MURRAY (2:17-cv-00716RAJ)- 1

Peter S. Holmes
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98124-4769 (206) 684-8200

Case 2:17-cv-00716-RAJ Document 39-35 Filed 06/08/17 Page 3 of 17

1 $1,000,000 to provide legal representation, and to provide guidance and referral services for

2 legal representation, to indigent Seattle residents and workers in immigration proceedings.

3

3. On April 28, 2017, in my capacity of Mayor of the City of Seattle, I signed the

4 Ordinance. A true and correct copy of the Ordinance is attached hereto as Exhibit A.

5

4. The Ordinance contained a number of recitals and findings, including the

6 following:

7

a. In a national study of access to counsel in U.S. immigration courts

8 published in September 2016, the American Immigration Council found that between 2007 and

9 2012 only 65 percent of non-detained individuals at the immigration court in downtown Seattle

10 were represented by an attorney. At the immigration court in Tacoma, only eight percent of

11 detained individuals were represented.

12

b. The study also found that immigrants who were represented by an attorney

13 were far more likely to succeed in their cases. Specifically, "detained immigrants with counsel,

14 when compared to detained immigrants without counsel, were ten-and-a-half times more likely

15 to succeed; released immigrants with counsel were five-and-a-half times more likely to succeed;

16 and never detained immigrants with counsel were three-and-a-half times more likely to succeed."

17

c. In fiscal year 2016, the Seattle Immigration Court had 7,229 pending

18 cases, had an average wait of 548 days, and completed 2,979 cases. Over the same time period,

19 the Tacoma Immigration Court had 1,208 pending cases, had an average wait of 102 days, and

20 completed 1,883 cases.

21

d. The Northwest Detention Center in Tacoma currently has the capacity to

22 detain 1,575 individuals, a portion of whom are Seattle residents and workers.

23

DECLARATION OF EDWARD B. MURRAY (2:17-cv-00716RAJ)- 2

Peter S. Holmes
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98124-4769 (206) 684-8200

Case 2:17-cv-00716-RAJ Document 39-35 Filed 06/08/17 Page 4 of 17

1

e. According to a February 2, 2017, Pew Research Center report, Seattle is

2 among the 20 U.S. metropolitan areas with the largest populations of

3 undocumented/unauthorized immigrants.

4

f. More than 28,000 undocumented youth in Washington are the recipients

5 of the Deferred Action for Childhood Arrivals (DACA) program.

6

g. Providing funds to enable indigent persons to obtain legal counsel for

7 immigration related matters is a public function, providing necessary support for the poor and

8 infirm

9

5. Section 2 of the Ordinance directs the Seattle Office of Immigrant and Refugee

10 Affairs ("OIRA") to "enter into one or more contracts, through a competitive process, with non-

11 profit organizations to provide: a) legal representation in immigration matters, and/or b)

12 guidance and referral services for legal representation, to indigent persons living or working in

13 Seattle in need of civil legal representation for matters related to their immigration status."

14

6. Section 2.a of the Ordinance further provides that "[a] determination of indigent

15 status shall be made for all persons seeking the appointment of counsel in immigration cases,"

16 and that the Director of OIRA "may contract with an individual or entity to make the

17 determination of indigent status."

18

7. Section 3 of the Ordinance appropriates $1,000,000 to OIRA for the purposes of

19 contracting with third parties to provide legal representation in immigration matters, and/or

20 guidance and referral services for legal representation, to indigent persons living or working in

21 Seattle who are in need of civil legal representation for matters related to their immigration

22 status.

23

DECLARATION OF EDWARD B. MURRAY (2:17-cv-00716RAJ)- 3

Peter S. Holmes
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98124-4769 (206) 684-8200

Case 2:17-cv-00716-RAJ Document 39-35 Filed 06/08/17 Page 5 of 17

1

8. Plaintiff Northwest Immigration Rights Project ("NWIRP") is an organization

2 with which OIRA might choose to contract to provide the legal services authorized and directed

3 by the Ordinance.

4

9. The Cease and Desist Order ("Order") issued by the Defendants to NWIRP would

5 impair the City of Seattle's efforts to provide legal assistance to City residents and workers in

6 immigration matters. Although the Order is directed to NWIRP, I understand the Department of

7 Justice may issue similar orders to other legal aid providers. Because the Order eliminates the

8 ability of legal aid providers to provide limited legal assistance, recipients of the appropriation

9 made under the Ordinance will be unable to use the funds to offer such limited assistance, and

10 can use the funds only to provide full representation in immigration proceedings. The Order will

11 therefore have the practical effect of significantly limiting the number of indigent Seattle

12 residents and workers who could receive legal services through the appropriation made under the

13 Ordinance, and limiting the range of services that could be offered.

14

I declare under penalty of perjury under the laws of the United States of America that the

15 foregoing is true and correct.

16

EXECUTED THIS 9 day of June, 2017 at Seattle, Washington.

17

18

EDWARD

-

19

20

21

22

23

DECLARATION OF EDWARD B. MURRAY (2:17-cv-00716RAJ)- 4

Peter S. Holmes
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98124-4769 (206) 684-8200

Case 2:17-cv-00716-RAJ Document 39-35 Filed 06/08/17 Page 6 of 17
EXHIBIT A

Case 2:17-cv-00716-RAJ Document 39-35 Filed 06/08/17 Page 7 of 17

Case 2:17-cv-00716-RAJ Document 39-35 Filed 06/08/17 Page 8 of 17

Case 2:17-cv-00716-RAJ Document 39-35 Filed 06/08/17 Page 9 of 17

Case 2:17-cv-00716-RAJ Document 39-35 Filed 06/08/17 Page 10 of 17

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

NORTHWEST IMMIGRANT RIGHTS PROJECT (“NWIRP”), a nonprofit Washington public benefit corporation; and YUK MAN MAGGIE CHENG, an individual,

Plaintiffs,

CASE NO. 2:17-cv-00716

v.

JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States; UNITED STATES DEPARTMENT OF JUSTICE; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; JAMES MCHENRY,1 in his official capacity as Acting Director of the Executive Office for Immigration Review; and JENNIFER BARNES, in her official capacity as Disciplinary Counsel for the Executive Office for Immigration Review,

Defendants.

DECLARATION OF JENNIFER BARNES
I, JENNIFER BARNES, Disciplinary Counsel for the U.S. Department of Justice, Executive Office for Immigration Review (“EOIR”), Office of the General Counsel, in Falls Church,
1Under Federal Rule of Civil Procedure 25(d), current Acting Director of EOIR James McHenry is substituted for former Director Juan Osuna.
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Virginia, do hereby declare under penalty of perjury that the following statements are true and correct to the best of my knowledge, information, and belief:
1. I am the Disciplinary Counsel for EOIR. I have served in this role for approximately seventeen years, since July 2000. The regulations governing the role of the Disciplinary Counsel, and the rules and procedures for disciplinary proceedings, are set forth at 8 C.F.R. part 1003, subpart G. These regulations were substantively amended, most recently on December 18, 2008, see 73 FR 76914, with the revisions taking effect on January 20, 2009.2 Prior to that, the authorities of the Disciplinary Counsel were reserved generally to the EOIR Office of the General Counsel, and I exercised those authorities under the internal title “Bar Counsel.”
2. I am the first, and to date the only, individual who has the ultimate responsibility for exercising these authorities as Disciplinary Counsel. Presently, no other individual within EOIR exercises this authority as the Disciplinary Counsel. Throughout this declaration, when I refer to actions I took as Disciplinary Counsel, it can be assumed that no one else at EOIR has taken those actions as the Disciplinary Counsel since July 2000 when I assumed the role of Bar Counsel, and presently, Disciplinary Counsel. Role and Duties of EOIR Disciplinary Counsel
3. In my role as Disciplinary Counsel, I oversee the investigation of complaints involving alleged misconduct by practitioners before EOIR’s immigration courts and the Board of Immigration Appeals (“the Board”) to determine whether an attorney or representative has engaged in criminal, unethical, or unprofessional conduct, or in frivolous behavior. My role is analogous to that of a state bar prosecutor in that I am tasked by EOIR with investigating alleged misconduct and determining whether to dismiss complaints, to resolve complaints informally through confidential discipline, or to institute formal disciplinary proceedings.
4. In my role as Disciplinary Counsel, pursuant to 8 C.F.R. § 1003.104(b), I may investigate professional misconduct based on complaints from immigration judges, the Board, other state or federal agencies, or the public, or on my own initiative. In practice, I rarely initiate an investigation without first receiving a complaint from an immigration judge, the Board, other state or federal agencies, or the public. The vast majority of meritorious complaints of practitioner
2 Prior to that, these regulations were substantively amended on June 27, 2000. See 65 FR 39513.
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misconduct referred to me come from immigration judges and the Board. See Peter Markowitz, Barriers To Representation For Detained Immigrants Facing Deportation: Varick Street Detention Facility, A Case Study, 78 Fordham L. Rev. 541, 563 (2009) (“immigration judges . . . are in many ways best positioned to identify incompetent lawyering”). Immigration judges typically report unethical or unprofessional conduct, or frivolous behavior that they have observed in their courtrooms or in documents filed with the court, and the Board typically reports the same type of misconduct that is observed in filings made with the Board.
5. In practice, I typically focus my investigations, issue informal confidential discipline, and/or initiate formal disciplinary proceedings for conduct taken by an individual practitioner before the immigration courts or the Board—i.e. during an in-person appearance before the immigration courts or the Board, or when a practitioner has signed and completed a Notice of Entry of Appearance form but fails to appear for a scheduled hearing, or when a practitioner has drafted a document ultimately filed with the immigration courts or the Board. Evidence of conduct beyond these parameters is difficult for me to prove and generally is not the goal of EOIR’s Attorney Discipline program.
6. In my role as Disciplinary Counsel, I have the authority to informally resolve complaints without the initiation of formal disciplinary proceedings through the issuance of confidential discipline, pursuant to 8 C.F.R. § 1003.104(c). Informal confidential discipline may be in the form of a warning letter or informal admonition, or an agreement with the practitioner in lieu of discipline, and is confidential pursuant to 8 C.F.R. § 1003.108(b).
7. In my role as Disciplinary Counsel, I do not have the authority to impose formal sanctions for violations of the professional conduct rules. Instead, pursuant to regulation, adjudicating officials and the Board have the authority to impose formal disciplinary sanctions upon any practitioner for a finding that he or she has violated the rules of professional conduct “if it is in the public interest to do so,” e.g. for criminal, unethical or unprofessional conduct, or frivolous behavior, as set forth in 8 C.F.R. § 1003.102. As described in 8 C.F.R. § 1003.101(a), formal sanctions can include disbarment, suspension, private or public censure, or such other disciplinary sanctions as deemed appropriate.
8. In my role as Disciplinary Counsel, I do not have authority to investigate disciplinary proceedings with respect to any conduct that takes place before the Department of Homeland Security (“DHS”); however, I may refer any complaint I receive about such conduct to
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the Disciplinary Counsel for DHS. Additionally, I may join a prosecution initiated by the DHS Disciplinary Counsel so that any sanction that prohibits a practitioner from practice before DHS would equally prohibit the practitioner from practice before the immigration courts and the Board. 8 C.F.R. §§ 1003.110(c), 1003.105(b).
9. I also coordinate with EOIR’s Fraud and Abuse Prevention Counsel regarding the discipline of attorneys or accredited representatives who commit, enable, or induce fraud. See 8 C.F.R. § 1003.0(e)(2) (directing EOIR’s anti-fraud officer to “[s]erve as a point of contact relating to concerns about possible fraud,” "[c]oordinate with investigative authorities,” and “[n]otify the EOIR disciplinary counsel and other appropriate authorities with respect to instances of fraud, misrepresentation, or abuse pertaining to an attorney or accredited representative.”). If a complaint I receive contains allegations of fraud and/or the unauthorized practice of law, I coordinate handling of the complaint with the Fraud and Abuse Prevention Counsel to assess whether individuals are in fact practitioners subject to the EOIR Rules of Professional Conduct, and in light of potential criminal investigations that the Fraud and Abuse Prevention Program might assist. Procedures and Practices of EOIR Disciplinary Enforcement
10. As Disciplinary Counsel, I manage the Attorney Discipline Program, and am assisted by: the Assistant Disciplinary Counsel; another attorney who spends part of her time working in the Attorney Discipline Program; an investigator; and other support staff. I maintain ultimate authority on behalf of EOIR to investigate complaints of practitioner misconduct, dismiss those complaints, issue informal confidential discipline, and/or institute formal disciplinary proceedings.
11. As Disciplinary Counsel, I oversee the receipt of hundreds of complaints of misconduct each year, with the number of complaints rising in recent years. For example, in calendar year 2015, EOIR received over 400 complaints of practitioner misconduct; in calendar year 2016, EOIR received approximately 600 complaints; and as of May 31, 2017, EOIR has received nearly 400 complaints in calendar year 2017. When a complaint is received, with the assistance of my staff, I log the complaint into a database, and then I conduct a case-by-case preliminary inquiry into each complaint. Upon conclusion of the preliminary inquiry, I determine whether to dismiss the complaint, refer the complaint to another regulatory agency or state bar
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authorities,3 issue informal confidential discipline, reach some other form of resolution, institute formal disciplinary proceedings and/or resolve the issue in some other manner. See 8 C.F.R. § 1003.104(c) (“disciplinary counsel, in its discretion, may issue warning letters”) (emphasis added); see also 8 C.F.R. § 1003.105(a) (explaining that formal disciplinary charges may be initiated if there is “sufficient prima facie evidence to warrant charging.”).
12. A complaint may merit the issuance of informal confidential discipline only if there is clear and convincing evidence of a violation of the EOIR rules of professional conduct. I consider this discipline to be “informal” because these matters are resolved without the initiation of formal disciplinary proceedings and without formal sanctions to the practitioner, and the final action is confidential pursuant to 8 C.F.R. § 1003.108(b).
13. In my discretion, I may initiate formal disciplinary proceedings if after a preliminary inquiry, there is sufficient prima facie evidence of professional misconduct. Such formal proceedings would be adjudicated before the Board and/or an adjudicating official.
14. If a complaint does not merit disciplinary action, I dismiss it. When a complaint is dismissed, it means that there is no action taken against the practitioner. Dismissals also remain confidential.
15. In light of the volume of complaints received each year, and the Attorney Discipline Program’s resources, I generally begin review of a complaint in the order that it is received. For example, it has generally been the Attorney Discipline Program’s practice to review a complaint received on January 1 before reviewing a complaint received on February 1.
16. However, a number of factors may affect when I complete the review and take action on a complaint, if necessary. For example, a complaint may be closed earlier or later, depending on the nature and length of an investigation and preliminary inquiry. Moreover, alleged violations of certain rules of professional conduct may require more expeditious review due to the nature of the violation. In my discretion, the alleged violations that are reviewed more expeditiously are violations of: § 1003.102(g) (contempt of court through contumelious or
3 In fact, I have worked closely with the Washington State Bar Association, including their disciplinary counsel, through both in-person presentations and numerous phone conversations, to coordinate efforts to regulate Washington State attorneys who also practice before EOIR. On numerous occasions, for example, I have instituted reciprocal disciplinary action on behalf of EOIR when the Washington State Bar Association has suspended or disbarred attorneys from the practice of law in the state of Washington. See, e.g., Matter of Grosvenor Anschell, D2000-097 (BIA Dec. 21, 2000), available at https://www.justice.gov/sites/default/files/eoir/legacy/2014/02/03/Anschell_FinalOrder.pdf; In re Disciplinary Proceeding Against Anschell, 69 P.3d 844 (Wash. 2003).
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obnoxious conduct); § 1003.102(l) (repeated failures to appear for scheduled hearings); and § 1003.102(t) (failure to submit signed and completed Notice of Entry of Appearance form). I strive to complete review of alleged violations of these rules promptly upon receiving them – instead of in the order that they are received – because in my view, the conduct should be addressed immediately (rather than months later) so that it does not re-occur. For example, practitioners who fail to appear for scheduled hearings in a timely manner without good cause should be put on notice sooner rather than later that such misconduct is not acceptable and that the practitioner should appear in the future for all scheduled hearings, absent an emergency. Informing a practitioner about an obligation to appear for a scheduled hearing or to sign and file a Notice of Entry Appearance form several months or even a year after the conduct occurred would not be an effective way to curb the conduct and change behavior. Moreover, it is important to try and resolve this type of misconduct sooner rather than later because repeated failures to appear interfere with the timely adjudication of immigration cases, potentially contributing to the backlog of cases in immigration court. Additionally, regarding § 1003.102(l) and § 1003.102(t) specifically, the facts alleged in the complaint usually describe conduct that may be determined to constitute a violation of the applicable rule without the need for further investigation.
17. When a complaint appears to demonstrate prima facie evidence of a violation of EOIR’s rules of professional conduct, my staff or I usually send a confidential “inquiry letter” to the practitioner. This letter informs the practitioner of the complaint, and describes the conduct at issue and the rule(s) of professional conduct that are alleged to have been violated. The inquiry letter is comprised of information from the complaint and information gathered through our investigation, which most often includes a review of the EOIR record of proceedings. The inquiry letter informs the practitioner that, at the time of issuing the letter, I have not taken any formal position regarding the validity of the allegations. The practitioner is given at least 30 days to respond to the inquiry letter and to provide an explanation, if any, for the conduct at issue. If the practitioner responds, and provides an explanation that shows that he or she has not violated EOIR’s rules of professional conduct as alleged, I will dismiss the complaint or dismiss the complaint with a warning. However, if the practitioner’s response does not provide an explanation that excuses the conduct constituting the violation – or if the practitioner does not respond at all – I may issue informal confidential discipline or initiate formal disciplinary proceedings.
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18. Informal confidential discipline, whether in the form of a warning letter or informal admonition, provides the practitioner with a description of the conduct that is the subject of the complaint, a summary of the practitioner’s response to such conduct, if any, and an analysis of why the conduct is a violation of the rules of professional conduct. The goal is to caution the practitioner that his or her conduct was in violation of the rules of professional conduct in the hope that the practitioner changes his or her practices and does not repeat the conduct. This type of discipline is informal and does not result in any formal sanction to the practitioner. Besides dismissals, informal confidential discipline is the most common way in which a complaint is closed.
19. In some instances, a complaint may merit informal confidential discipline in the first instance without sending an inquiry letter to the practitioner. These cases are rare and are limited to circumstances in which I find that the facts as alleged in the complaint are confirmed as true so no further investigation is necessary. In such instances, no preliminary inquiry is needed because the facts “speak for themselves.” Additionally and importantly, however, issuance of such informal confidential discipline by itself will not result in any formal sanction to the practitioner as described in 8 C.F.R. § 1003.101(a).
20. In some cases when informal confidential discipline is issued, my letter may contain the statement that the practitioner “cease and desist” from a certain practice because it is or may be – if continued in a pattern or practice of activity – a violation of the rules of professional conduct. Such a statement is consistent with the cautionary statements I make in warning letters and admonitions so that the practitioner is aware of conduct that needs to be changed in order to avoid violating the rules of professional conduct and the initiation of formal disciplinary proceedings in the future.
21. I may also enter into an agreement with the practitioner in lieu of discipline. These types of agreements are instituted in limited circumstances in cases when the practitioner admits that he or she has engaged in professional misconduct and is seeking to avoid the initiation of formal disciplinary proceedings. For example, such agreements have been used to require practitioners to return unearned fees to clients. The scope of such an agreement is fashioned in my discretion as Disciplinary Counsel. See 8 C.F.R. § 1003.104(c).
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22. Formal disciplinary proceedings4 are instituted when I determine that “sufficient prima facie evidence exists to warrant charging a practitioner with professional misconduct.” 8 C.F.R. § 1003.105(a). As a general matter, largely due to resource concerns, formal disciplinary proceedings are initiated infrequently and limited to conduct that is egregious, conduct that is repeated despite prior informal confidential discipline, and/or conduct that is the subject of multiple complaints. To institute formal disciplinary proceedings, I file a Notice of Intent to Discipline (“NID”) with the Board and serve it on the practitioner. The NID contains a statement of the charge(s), a proposed sanction, and a copy of the preliminary inquiry report. The practitioner must file a timely answer to the NID or the Board will enter a default order. If a practitioner files an answer to the NID, then EOIR will appoint an adjudicating official from a specially trained corps of immigration judges to hear and decide the case. The adjudicating official and/or the Board will make a finding as to whether the practitioner has violated the rules of professional conduct and will make a determination on the appropriate sanction.
23. Since I began serving in the role of Disciplinary Counsel for EOIR (previously known as “Bar Counsel”) in July 2000, I have been solely responsible in my capacity as Disciplinary Counsel for all decisions with regard to investigating complaints, dismissing complaints, issuing informal confidential discipline, and instituting formal disciplinary proceedings. While immigration judges or Board members acting as administrative officials are tasked with determining whether disciplinary sanctions should be imposed once formal disciplinary proceedings have been initiated, no other EOIR employee or entity within the agency has been given authority to determine the scope of investigation and initiation of charges under the applicable regulations.
24. No Department of Justice official outside of EOIR has dictated the manner in which I, as EOIR Disciplinary Counsel, take action under the disciplinary regulations, including 8 C.F.R. § 1003.102(t) or any other disciplinary rule.
25. I have never spoken to any Department of Justice official outside of EOIR about this case or the letter I sent to Northwest Immigrant Rights Project (“NWIRP”) on April 5, 2017.
4 When someone has been convicted of a serious crime or has been suspended or disbarred by a state bar or federal court, for example, I initiate formal, streamlined proceedings, as provided by regulation, to seek an immediate sanction. See 8 C.F.R. § 1003.103.
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26. I have never spoken to President Donald Trump or his White House staff about this case, the letter I sent to NWIRP on April 5, 2017, or for any other reason.
27. I have never spoken to Attorney General Jefferson B. Sessions, III about this case, the letter I sent to NWIRP on April 5, 2017, or for any other reason. Importance of 8 C.F.R. § 1003.102(t)
28. The twenty-one grounds for misconduct that constitute chargeable disciplinary conduct are listed at 8 C.F.R. § 1003.102.5 These chargeable grounds were expanded by EOIR’s December 18, 2008 rulemaking, “Professional Conduct for Practitioners – Rules and Procedures,” 73 FR 76914, which became effective on January 20, 2009.
29. 8 C.F.R. § 1003.102(t), added by EOIR’s 2008 rulemaking, defines as misconduct the failure to “submit a signed and completed Notice of Entry of Appearance as Attorney or Representative in compliance with applicable rules and regulations when the practitioner: (1) Has engaged in practice or preparation as those terms are defined in 1003.1(i) and (k), and, (2) Has been deemed to have engaged in a pattern and practice of failing to submit such forms, in compliance with applicable rules and regulations. Notwithstanding the foregoing, in each case where the respondent is represented, every pleading, application, motion or other filing shall be signed by the practitioner of record in his or her individual name[.]”
30. The purposes and guiding principles behind the enforcement of 8 C.F.R. § 1003.102(t) were succinctly stated in the supplementary information to the proposed and final rules that promulgated it.
5 These grounds of misconduct are charging or receiving grossly excessive fees, § 1003.102(a); bribery or coercion, § 1003.102(b); false or misleading statements or evidence, § 1003.102(c); soliciting clients for money, § 1003.102(d); practicing while disbarred or suspended by a state bar or a federal court, § 1003.102(e); a false or misleading statement about qualifications, § 1003.102(f); contempt of court through contumelious or obnoxious conduct, § 1003.102(g); conviction of a serious crime, § 1003.102(h); false certification of a document, § 1003.102(i); frivolous behavior, § 1003.102(j); ineffective assistance of counsel, § 1003.102(k); repeated failures to appear in court, § 1003.102(l); assistance in unauthorized practice of law, § 1003.102(m); conduct prejudicial to the administration of justice, § 1003.102(n); incompetence, § 1003.102(o); failure to abide by the client’s decision as to the scope of representation, § 1003.102(p); lack of diligence, § 1003.102(q); failure to communicate with a client, § 1003.102(r); failure to disclose adverse legal authority, § 1003.102(s); failure to submit a signed notice of appearance or sign a filing, § 1003.102(t); and boilerplate filings, § 1003.102(u).
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31. In the proposed rule, the Department stated that 8 C.F.R. § 1003.102(t) was patterned after the language of Rule 11 of the Federal Rules of Civil Procedure. Section 1003.102(t) was “intended to address the growing problem of practitioners who seek to avoid the responsibilities of formal representation by routinely failing to submit the required notice of entry of appearance forms” and the attendant “difficulties in pursuing a practitioner for discipline for participating in the preparation of false or misleading documents are apparent when the practitioner fails to submit a completed notice of entry of appearance form.” The Department concluded that the goals of § 1003.102(t) would be “accountability for the preparer and presenter of documents that are submitted to the government and the elimination of fraudulent practices that undermine a client’s ability to seek recourse against a practitioner when the practitioner fails to formally acknowledge representation and subsequently provides ineffective assistance of counsel or otherwise engages in misconduct.” See 73 FR 44183.
32. Similarly, in the final rule, the Department asserted: “The Department believes that all practitioners should submit Forms EOIR-27 and EOIR-28, and sign all filings made with EOIR, in cases where practitioners engage in “practice” or “preparation” as those words are defined in 8 CFR 1001.1(i) and (k). It is appropriate to require practitioners who engage in “practice” and “preparation,” whether it is for a fee or on a bro bono basis, to enter a notice of appearance and sign any filings submitted to EOIR. As stated in the supplemental information to the proposed rule, this provision is meant to advance the level of professional conduct in immigration proceedings and foster increased transparency in the client-practitioner relationship. Any practitioner who accepts responsibility for rendering immigration-related services to a client should be held accountable for his or her own actions, including the loss of the privilege of practice before EOIR, when such conduct fails to meet the minimum standards of professional conduct in 8 CFR 1003.102. It is difficult for EOIR to enforce those standards when practitioners fail to enter a notice of appearance or sign filings made with EOIR.” 73 Fed. Reg. 76,914, 76,919 (Dec. 18, 2008).
33. 8 C.F.R. § 1003.102(t) is essential to my ability to discipline practitioners because practitioners’ compliance with § 1003.102(t) allows me to identify practitioners who commit misconduct, as embodied in the twenty other charges described in § 1003.102. Put differently, when an individual practitioner fails to enter a notice of appearance or sign a document, it is difficult – and in some cases, impossible – for me to determine who engaged in the alleged
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misconduct, and thus, it is difficult to take further action or initiate formal discipline. In fact, if there are no other indicators in the record that can lead me to a specific individual who might have prepared the document, these cases have to be dismissed because I don’t know to whom to write.
34. For example, when a motion or brief is signed and filed by the alien pro se but it appears as if the motion or brief was clearly drafted by an unidentified individual with a legal background, it is hard to identify that drafter unless there is evidence in the record that points to that drafter, such as an envelope containing a return address or a signed proof of service. Even then, after investigation of a return address, it may be difficult to take further action or initiate formal discipline if the attorney denies involvement, given the high standard of “clear and convincing evidence.” See e.g. Exhibit 1; Exhibit 2. And, while some drafters will sign an accompanying proof of service, see e.g. Exhibit 3, many will not in order to hide their identity.
35. Additionally and importantly, I use identifying information on a Notice of Entry of Appearance form to check against any relevant state bar information, as necessary, in order to determine if a practitioner is under any orders of discipline by state bar regulators, or if an individual may be engaging in the unauthorized practice of law.
36. In these ways, the ability to identify practitioners enables me to enforce EOIR’s professional conduct rules and has facilitated the reporting of misconduct to me.
37. Moreover, in my seventeen years as Disciplinary Counsel, I have been made aware from complaints received of the problems in the immigration field associated with “ghostwriting,” i.e. individuals who engage in the practice of drafting documents for pro se individuals, but fail to sign the documents or enter a Notice of Entry of Appearance in their name as the actual drafter of the document. I believe that many of these individuals do so in order to evade responsibility for their actions and that such actions risk harming vulnerable pro se immigrant respondents. For example, I am aware based upon internal discussions with EOIR’s Fraud and Abuse Prevention Counsel, and with individuals from the immigration courts and the Board that ghostwriting can harm pro se individuals when the drafted document includes incorrect or false information about an individual’s case or is a “boilerplate” document that does not address the particular facts of the individual’s case. Such conduct may cause an individual to squander his or her one opportunity to file a motion to reopen or appeal as of right. See e.g. Exhibit 1; Exhibit 2; Exhibit 4. In some instances, such practitioners are notarios, or, individuals engaging in the unauthorized practice of law. Given these potential harms, I believe that my ability to enforce 8 C.F.R. § 1003.102(t) deters
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some of these individuals from ghostwriting motions, briefs and other documents because they know that they are required to identify themselves to EOIR under this provision.
38. For these reasons, if I am unable to enforce § 1003.102(t), not only may practitioners escape any consequences for their misconduct, but immigrant respondents will be exposed to irreparable harm by individuals who are not authorized by federal regulation to practice immigration law in the first place.
39. Relatedly, I have concerns about the harms that can result when practitioners take action on behalf of a respondent in a limited capacity, instead of entering an appearance. For example, while separate appearances are permitted for bond and removal proceedings, immigration judges have informed me that clients often do not understand the concept of separate appearances. Clients are confused when a practitioner who represented them in a bond proceeding does not appear on their behalf in their removal proceedings because the practitioner only entered an appearance for the bond proceedings. In these circumstances, immigration judges have indicated that if they are unsure whether a respondent is in fact represented – based upon statements by a respondent to the effect that they were represented by counsel at some point or that they thought the practitioner would represent them for their entire case – judges will likely continue the hearing to allow the respondent time to locate his or her attorney, resulting in a further delay of the immigration proceedings. If practitioners were permitted to appear in a more limited capacity than allowed under current regulations without other safeguards in place, I believe that the confusion that clients have now and the delays in the ability to complete immigration proceedings in a timely manner will be compounded. Entering an appearance not only allows me to identify responsible practitioners, but it makes the existence of an attorney-client relationship more transparent and aids in the proper functioning of the courts. Past Enforcement of 8 C.F.R. § 1003.102(t)
40. In practice, EOIR, through the Attorney Discipline Program, has taken action with respect to alleged violators of 8 C.F.R. § 1003.102(t) in the same manner that it takes action with respect to any alleged violator of the professional conduct rules set out at 8 C.F.R. § 1003.102. I have not and do not single out or target individual practitioners, nonprofit organizations, nongovernmental organizations, or any type of law firms for enforcement. I am not aware of any informal or formal policy or guidance regarding the targeting of enforcement of charges under 8
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C.F.R. § 1003.102 against certain practitioners, or types of practitioners, or practitioners employed by certain organizations or law firms, or types of organizations or law firms.
41. Instead, in practice I enforce 8 C.F.R. § 1003.102(t) against alleged violators as I enforce all other charges under § 1003.102. As complaints are submitted to me in my role as Disciplinary Counsel that may implicate conduct described in § 1003.102 (and in conjunction with the action described in paragraph 15), I evaluate whether the conduct alleged constitutes a violation or violations under § 1003.102. I consider whether a violation has been committed even if the individual who is the subject of the complaint has not previously, or is not currently, engaged in other unethical behavior or professional misconduct.
42. Like with any other alleged violation of the rules of professional conduct, the conduct alleged in a complaint that may implicate § 1003.102(t) is reviewed to determine if there is clear and convincing evidence of a violation. In practice, the following conduct has been identified as a possible violation of § 1003.102(t): failure to personally sign and file a complete and accurate Notice of Entry of Appearance, and/or failure to sign a motion, brief or other document ultimately filed before an immigration court or the Board.
43. Since 8 C.F.R. § 1003.102(t) became effective on January 20, 2009, in my role as Disciplinary Counsel, I have issued 31 letters that EOIR has located based on complaints or other information received, including the letter sent to Matt Adams on behalf of NWIRP on April 5, 2017, that address a possible violation of § 1003.102(t). Regardless of whether these letters dismissed the complaint or found the complaint was substantiated, the letters have included a warning or cautionary statement that the particular individual’s conduct may be in violation of 8 C.F.R. § 1003.102(t) for the particular type of conduct described in the paragraph above. That cautionary statement may be about the obligation to file a Notice of Entry of Appearance, the obligation to sign filings that the practitioner drafted, or the obligation to sign and file a complete and accurate Notice of Entry of Appearance, or a combination of these obligations.
44. In the cases in which the practitioners have not entered a Notice of Entry of Appearance or otherwise identified themselves, the conduct involved the drafting of documents including, but not limited to: a motion to reopen, a motion to reconsider, a motion for stay of removal, a motion for extension of time to file a brief, or a combination of these documents, and in each instance, the document(s) was filed with an immigration judge or the Board. In the instances where a pro se respondent signed the documents, it appeared highly unlikely that the
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drafter of the document was actually the pro se individual who signed the document. See e.g. Exhibit 5; Exhibit 6. The document will have citations to legal authority, application of facts to law, and/or legal arguments that most likely could not have been written by a pro se respondent.
45. In order to identify the true drafter of the document, I attempt to locate identifying information attached to or in the motion or brief itself – such as a name on the certificate of service, an address on letterhead or an envelope attached to the motion or brief, or a notation of a practitioner who previously entered an appearance in the respondent’s case during a different stage of the proceedings. See e.g. Exhibit 3. I address the confidential letter to the practitioner who can most reasonably be identified as the presumed drafter of the motion, brief or other document based on the circumstantial evidence. In some of these cases, the evidence was sufficient to find that the practitioner drafted the document or the practitioner admitted to drafting the document, but in other cases, the evidence did not result in such a finding despite my suspicions. In most cases of the above conduct regarding the signing, completing, and filing of a Notice of Entry of Appearance, I cannot find clear and convincing evidence of a violation of § 1003.102(t) because there is no evidence of a “pattern or practice” of such conduct. However, even though I may not find a violation of § 1003.102(t), I still write to the practitioner and/or remind him of the requirement. I caution the practitioner about the obligation to enter a signed and completed Notice of Entry of Appearance when engaging in conduct that constitutes “practice” or “preparation” or to “cease and desist” from engaging in conduct that constitutes “practice” or “preparation” without filing a Notice of Entry of Appearance. Such reminders and cautionary statements are even made when that particular conduct relating to § 1003.102(t) was raised in response to other alleged misconduct conduct by the practitioner that was the primary focus of our investigation.
46. In my role as Disciplinary Counsel, I have never taken any disciplinary action against an individual when an individual has failed to sign, complete, and file a Notice of Entry of Appearance form in conjunction with any of the following conduct: provision of general information about the immigration court system; interviews with or screening of potential clients; individual consultations to review facts of a particular person’s case; conducting community workshops or “Know Your Rights” presentations; or merely assisting with the completion of “fillin-the blank” forms. Additionally, I consulted on the July 11, 2011 memorandum by Steven Lang, Program Director of the Office of Legal Access Programs, regarding the definition of “representation” in 8 C.F.R. §§ 1.1(m), 1001.1(m)—which, like 8 C.F.R. § 1003.102(t)(1), cross-
14

Case 2:17-cv-00716-RAJ Document 49 Filed 06/26/17 Page 15 of 18
references the terms “practice” and “preparation” as defined in 8 C.F.R. § 1.1(i), (k), and § 1001.1(i), (k), respectively. I consider the activities identified as not “representation” in that memorandum as activities that would not trigger disciplinary action, whether informal confidential discipline or the initiation of formal disciplinary proceedings.
47. In my role as Disciplinary Counsel, I have never instituted formal discipline – i.e., the issuing of a NID as described above – for an alleged violation of 8 C.F.R. § 1003.102(t). No individual has been formally sanctioned for this conduct.
48. The limited number of enforcement actions taken under § 1003.102(t) since the regulation became effective on January 20, 2009 does not support the conclusion that there has been a change in EOIR’s practice of enforcing § 1003.102(t). Rather, my practice of enforcing 102(t) since January 20, 2009 has been the same. See e.g. Exhibit 7 and compare with Exhibit 10. First, the practice of entering a Notice of Entry of Appearance is a regular and routine activity that most practitioners perform without difficulty because they readily agree to accept responsibility for their work. Second, and most relevant to these proceedings, practitioners and notarios who want to avoid identification and accountability for their work can often do so because it is extremely difficult for EOIR to successfully investigate, identify, and take action under § 1003.102(t) when a practitioner or notario does not expose identifying information that could be discovered. See e.g. Exhibit 1; Exhibit 2. Letter of April 5, 2017 to NWIRP regarding 8 C.F.R. § 1003.102(t)
49. In October 2016, Brea Burgie, the EOIR Fraud Abuse and Prevention Counsel, and I had a phone conversation with representatives from NWIRP regarding the application of 1003.102(t) and how it applied to NWIRP. On that call, NWIRP raised the question of their compliance with 1003.102(t), given that they were a “recognized organization” by the Board.6 I explained that even competent attorneys can make mistakes, and as such, 1003.102(t) must be applied uniformly to all immigration practitioners – regardless of who employs them – when they
6 NWIRP stated that because they were a “recognized organization” by the Board, their organization had already been “vetted” and should, thus, be exempt from the requirement to file a Notice of Entry of Appearance form in certain circumstances. However, even if NWIRP is a recognized organization, such organizations, and particularly the practitioners thereof, are still subject to the same rules of professional conduct as other practitioners. See 8 C.F.R. 1003.101(b). Being a recognized organization confers no other status than the ability to provide immigration legal services through non-attorneys who they sponsor for accreditation.
15

Case 2:17-cv-00716-RAJ Document 49 Filed 06/26/17 Page 16 of 18
fail to sign and file a Notice of Entry of Appearance form when filing legal documents. I offered my assistance to have NWIRP call me in the future if they had any question or needed guidance with regard to this rule.
50. On November 1, 2016, the Court Administrator for the Tacoma Immigration Court, Edwin Lopez, wrote to the EOIR Fraud and Abuse Prevention Counsel, Brea Burgie, about a potential fraud. See Exhibit 8. Mr. Lopez stated that the respondent’s signatures on documents in his criminal proceedings differed from his signatures on his pro se motion to reopen in his removal proceedings. Mr. Lopez stated that an immigration judge suspected that NWIRP may have been involved in the possible fraud because NWIRP indicated on the pro se motion to reopen that it provided assistance to the respondent. Ms. Burgie forwarded this complaint to me because it concerned a possible violation of 8 C.F.R. § 1003.102(t), since no practitioner from NWIRP had signed the motion to reopen or entered a Notice of Entry of Appearance.
51. On January 5, 2017, I received a complaint from Immigration Judge Brett Parchert at the Seattle Immigration Court about a possible violation of 8 C.F.R. § 1003.102(t) by NWIRP. Judge Parchert stated in his complaint: “I have a case where an alien and her children were ordered removed in absentia. She has filed a pro se motion to reopen. However, the motion states it is being filed with the assistance of the Northwest Immigrant Rights Project and it included an I-589 drafted by NWIRP. Yet, no one from NWIRP has entered a Notice of Appearance. I know there is an ethical prohibition in the regs about acting as a lawyer but not filing an E-28.” See Exhibit 9.
52. Upon completion of a preliminary inquiry into both complaints, I issued the April 5, 2017 confidential discipline letter to Matt Adams on behalf of NWIRP for conduct arising under § 1003.102(t). Consistent with the other letters described above that I issued for conduct that may violate § 1003.102(t), the letter warned NWIRP that an individual(s) at NWIRP may have violated 8 C.F.R. § 1003.102(t) when he or she drafted two motions to reopen, one with an asylum application attached, but had not signed, completed and filed a Notice of Entry of Appearance form in conjunction with the filing of the motions before EOIR’s immigration courts and had not signed the motions to reopen as the drafter of such motions. The letter also noted that the respondent’s “signature on his Motion to Reopen appears to be inconsistent with his signature on December 21, 2015, requesting a custody redetermination by an Immigration Judge. This difference could indicate that someone other than [the respondent] drafted his motion to reopen.”
16

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53. The letter issued to Matt Adams on behalf of NWIRP on April 5, 2017 was confidential discipline. It simply warned practitioners at NWIRP that they must enter a signed and completed Notice of Entry of Appearance form before drafting a motion, brief or other document on behalf of an immigrant respondent, and that if such practice resulted in a “pattern” of not signing and completing a Notice of Appearance form, formal discipline – such as sanctions – could result. It did not result in any sanctions to any NWIRP practitioner.
54. The letter sent to NWIRP on April 5, 2017 was addressed to Matt Adams, the Legal Director for NWIRP, because the identifying information that I could glean from the notations on the two motions to reopen clearly indicated that someone at NWIRP had drafted the motions. Because Matt Adams is the Legal Director of NWIRP, I determined that he was the most appropriate individual to receive the letter given that the particular individual practitioner responsible for drafting the motions could not be identified from the motions. If the identity of the practitioner from NWIRP who drafted the motions could have been ascertained from the documents, I would have written the letter directly to that practitioner, as I have done in other similar cases.
55. I addressed the letter to Matt Adams on behalf of NWIRP not because I was seeking to enforce the regulation against NWIRP in its capacity as an organization,7 but because the conduct of NWIRP’s staff became known to EOIR through the respondents’ notation of NWIRP’s organizational name on both motions to reopen, without identifying an individual by name.
56. As described above in paragraph 49, in past discussions with NWIRP, NWIRP has suggested that nonprofit organizations, such as NWIRP, be given leave to file written documents with the immigration courts and the Board without signing, completing and filing a Notice of Entry of Appearance form, so long as there is a notation indicating that their organization has provided assistance in drafting and filing the document. However, such suggestion is unenforceable under EOIR’s current rules of professional conduct.8
7 Separately, “recognized organizations”—i.e. nonprofit organizations which sponsor non-lawyer professionals to represent individuals in immigration proceedings (formally, “accredited representatives”)—can be subject to disciplinary sanctions that affect its ability to sponsor accredited representatives. See 8 C.F.R. § 1003.110. While as Disciplinary Counsel, I have authority to initiate disciplinary proceedings for that purpose, see 8 C.F.R. § 1003.110(c), I did not send the April 5, 2017 letter to NWIRP for that purpose. The April 5, 2017 letter does not mention 8 C.F.R. § 1003.110. 8 See n.6, supra.
17

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Case 2:17-cv-00716-RAJ Document 49-1 Filed 06/26/17 Page 1 of 4
Exhibit 1

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Exhibit 2

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Case 2:17-cv-00716-RAJ Document 49-3 Filed 06/26/17 Page 1 of 3
Exhibit 3

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Case 2:17-cv-00716-RAJ Document 49-4 Filed 06/26/17 Page 1 of 6
Exhibit 4

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Exhibit 5

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Case 2:17-cv-00716-RAJ Document 49-6 Filed 06/26/17 Page 1 of 4
Exhibit 6

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Exhibit 7

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Case 2:17-cv-00716-RAJ Document 49-8 Filed 06/26/17 Page 1 of 2
Exhibit 8

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Case 2:17-cv-00716-RAJ Document 49-9 Filed 06/26/17 Page 1 of 2
Exhibit 9

Case 2:17-cv-00716-RAJ Document 49-9 Filed 06/26/17 Page 2 of 2

From: To: Subject: Date:

Parchert, Brett (EOIR) Barnes, Jennifer (EOIR) question Thursday, January 05, 2017 3:48:04 PM

Happy New Year Jenni,

I have a question: I have a case where an alien and her children were ordered removed in absentia. She has filed a “pro se” motion to reopen. However, the motion states that it is being filed with the assistance of the Northwest Immigrants Rights Project and it included an I-589 drafted by NWIRP. Yet, no one from NWIRP has entered a Notice of Appearance. I know there is an ethical prohibition in the regs about acting as a lawyer but not filing an E-28. Are there different rules for immigrants’ rights groups??

Brett

Case 2:17-cv-00716-RAJ Document 49-10 Filed 06/26/17 Page 1 of 3
Exhibit 10

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 Case 2:17-cv-00716-RAJ Document 69 Filed 08/10/17 Page 1 of 11

Hon. Richard A. Jones
1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

8

9 NORTHWEST IMMIGRANT RIGHTS

Case No. 2:17-cv-00716

10 PROJECT (“NWIRP”), a nonprofit

Washington public benefit corporation; and 11 YUK MAN MAGGIE CHENG, an individual, DEFENDANTS’ MOTION TO STAY
DISCOVERY PENDING RESOLUTION OF

12

Plaintiffs,

THEIR MOTION TO DISMISS

13
v.
14
JEFFERSON B. SESSIONS III, in his official 15 capacity as Attorney General of the United
States; UNITED STATES DEPARTMENT 16 OF JUSTICE; EXECUTIVE OFFICE FOR 17 IMMIGRATION REVIEW; JAMES
MCHENRY, in his official capacity as Acting 18 Director of the Executive Office for 19 Immigration Review; and JENNIFER
BARNES, in her official capacity as 20 Disciplinary Counsel for the Executive Office
for Immigration Review,
21
Defendants.
22

Noted on motion calendar for: Friday, August 18, 2017

23

24

Defendants respectfully request that this Court stay discovery deadlines (with the

25 exception of the August 11, 2017 and August 24, 2017 deadlines reflected in the parties’ July 12,

26 2017 Stipulation) and issuance of its Rule 16(b) scheduling order pending resolution of

DEFENDANTS’ MOTION TO STAY DISCOVERY PENDING RESOLUTION OF THEIR MOTION TO DISMISS
(Case No. 2:17-cv-716)
-1-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 69 Filed 08/10/17 Page 2 of 11

1 Defendants’ Motion to Dismiss, which was filed August 4, 2017.1 Specifically, on July 17,

2 2017, Plaintiffs filed the first discovery request, Plaintiffs’ First Interrogatories and Requests for

3 Production (“Plaintiffs’ First Discovery request”), see Exh. 1 (NWIRP’s First Interrogatories and

4 Requests for Production to All Defendants), to which Defendants must reply by August 16,

5 2017. Defendants hereby request that this court stay this August 16 deadline and all other

6 discovery requests not reflected in the parties’ Stipulation filed with this Court on July 12, 2017,

7 pending resolution of their Motion to Dismiss. In addition, Defendants request that this court

8 stay issuance of the Rule 16(b) scheduling order pending resolution of Defendants’ Motion to

9 Dismiss.

10

In the alternative, should the court not stay discovery-related deadlines pending

11 resolution of the MTD, Defendants request, that the Court stay discovery deadlines until the

12 Court issues a Rule 16(b) scheduling order. The parties exchanged views about Defendants’

13 request to modify the foregoing dates, but were not able to reach an agreement. For the reasons

14 described below, Defendants’ request is supported by good cause.

15 A. A stay of discovery-related deadlines pending resolution of Defendants’ Motion to

16

Dismiss will avoid unnecessary discovery if that motion is granted and provide

17

guidance to discovery if it is denied.

18

This Court has discretion to control discovery, including whether to stay discovery. Little

19 v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). “The court may, for good cause, issue an

20 order to protect a party or person from annoyance, embarrassment, oppression, or undue burden

21

1 On July 12, 2017, the parties agreed to exchange Initial Disclosures on August 11, 2017, and file the Joint Status 22 Report (“JSR”) with this Court no later than August 22, 2017. No other discovery deadlines were accorded, and

Defendants preserved their right to seek a stay of any discovery to be had in this case and/or related deadlines. See 23 ECF No. 59. This Court approved the terms of the Stipulation the next day. See Block Order of July 13, 2017 (no

docket number attached). While Defendants do not seek postponement of these August 11 and August 22 deadlines, 24 Defendants request a stay of any other discovery production outside of these agreed-upon deadlines until after

resolution of Defendants’ Motion to Dismiss and issuance of this Court’s Rule 16(b) scheduling order, which 25 ordinarily follows exchange of initial disclosures and the parties’ submission of the JSR. As such, Defendants’

26

request includes a request to stay Defendants’ deadline to respond to Plaintiffs’ First Interrogatories and Requests for Production, served on July 17, 2017 and due August 16, 2017. Since this motion to stay will not be noticed for

consideration until after August 16, Defendants are nevertheless working to provide responses to those requests as

practicable and reasonable. However, Defendants will likely object to portions of Plaintiffs’ requests as early and

overbroad, as discussed in Section B of this motion.

DEFENDANTS’ MOTION TO STAY DISCOVERY PENDING

RESOLUTION OF THEIR MOTION TO DISMISS

P.O. Box 868 Ben Franklin Station

Washington, D.C. 20044

(Case No. 2:17-cv-716)

(202) 305-7181

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Case 2:17-cv-00716-RAJ Document 69 Filed 08/10/17 Page 3 of 11

1 or expense,” Fed. R. Civ. P. 26(c)(1), including an order that delays the commencement of

2 discovery while the Court decides a potentially dispositive motion. Extending the

3 commencement of discovery may be particularly appropriate where discovery can be disruptive

4 to a government entity. See Jiron v. City of Lakewood, 392 F.3d 410, 414 (10th Cir. 2004). The

5 Court may stay discovery pending resolution of a dispositive motion. Heck v. Stern, No. 06-cv-

6 5030, 2006 WL 2222348, at *1 (W.D. Wash. Aug. 2, 2006) (citing DiMartini v. Ferrin, 889 F.2d

7 922 (9th Cir. 1989); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (stating that doors of

8 discovery should not open to party who fails to adequately plead a cause of action).

9

In this case, a stay of discovery will highly benefit the “just, speedy, and inexpensive”

10 resolution of this case. Fed. R. Civ. P. 1. “If resolution of the motion to dismiss does not

11 dispose of the case, it will focus the scope of discovery by identifying the governing law and the

12 issues relevant to its application.” Lazar v. Charles Schwab & Co. Inc., No. 14-cv-1511, 2014

13 WL 12551210, at *2 (D. Ariz. Sept. 19, 2014). But “if resolution of these purely legal issues

14 does dispose of the case . . . , a stay will have prevented waste of assets through needless fact

15 discovery.” Id. To the extent Plaintiffs present facial challenges to 8 C.F.R. § 1003.102(t) under

16 the First and Tenth Amendments, discovery is unnecessary as to those issues because a facial

17 challenge focuses on the language of the regulation itself. Gen. Elec. Co. v. Johnson, 362 F.

18 Supp. 2d 327, 338 (D.D.C. 2005) (“[A] facial challenge to the text of a statute does not typically

19 require discovery for resolution because the challenge focuses on the language of the statute

20 itself.”).

21

As for Plaintiffs’ as-applied challenges, a stay of discovery pending resolution of

22 Defendants’ motion to dismiss will guide the parties as to facts that may affect the analysis of

23 remaining claims. See LASO v. LSC, 561 F. Supp. 2d 1187, 1203-04 (D. Or. 2008) (noting that

24 legal questions in as-applied First Amendment challenge relating to regulation of legal aid

25 organization after resolution of motion to dismiss were “quite limited in scope”); id. at 1205

26 (stating that decision on motion to dismiss narrowed legal issues in as-applied challenge); see

also Igielski v. Riversource Life Insurance Company, 2015 WL 12025324 (W.D.Wa. May 22,

DEFENDANTS’ MOTION TO STAY DISCOVERY PENDING RESOLUTION OF THEIR MOTION TO DISMISS
(Case No. 2:17-cv-716)
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P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 69 Filed 08/10/17 Page 4 of 11

1 2015) (Jones, J.) (“In an appropriate case, it makes sense to delay discovery while a dispositive

2 motion is pending.”). Defendants recognize that this Court found that Plaintiffs’ First

3 Amendment as-applied challenge has a likelihood of success before this Court. ECF No. 66.

4 However, that ruling does not necessarily mean that all issues raised by Plaintiffs in relation to

5 their First Amendment claim will be subject to discovery. As in LASO, the Court may narrowly

6 define the relevant issues in Plaintiffs’ as-applied challenge to 8 C.F.R. § 1003.102(t) in a way

7 that will inform the scope of relevant discovery.

8

Defendants and the public will be burdened if the motion to stay discovery is denied,

9 particularly in light of the overbroad scope of the first discovery requests. For example, EOIR is

10 the government agency tasked with managing the immigration courts, and Plaintiffs’ complaint

11 alleges facts relating to the Seattle and Tacoma immigration courts, two already overextended

12 courts. See Compl. ¶ 3.11, 3.18; see also Report to Congressional Requesters on Immigration

13 Courts, http://www.gao.gov/assets/690/685022.pdf (last visited on August 10, 2017) (concluding

14 that “[t]he doubling of the immigration courts’ backlog over the last decade . . . poses challenges

15 to EOIR in meeting its mission to adjudicate immigration cases by fairly, expeditiously, and

16 uniformly administering and interpreting federal immigration laws.”). It is well understood that

17 immigration courts are burdened, rendering any discovery distractions on immigration court staff

18 harmful to court efficiency. To the extent Plaintiffs seek discovery from immigration court staff,

19 this Court should minimize the burden on government employees in distracting them from their

20 critical functions in order to comply with potentially unnecessary discovery. Cf. Harlow v.

21 Fitzgerald, 457 U.S. 800, 819 (1982) (holding that in the context of qualified immunity, courts

22 should resolve jurisdictional question of qualified immunity and “avoid excessive disruption” of

23 government).

24

More so, the broad discovery sought by Plaintiffs evinces the need for guidance as to the

25 issues of this case – which a Court ruling on the dispositive motion can provide. Plaintiffs’ First

26 Discovery Request, for example, asks for information “of any facts or information alleged in the

DEFENDANTS’ MOTION TO STAY DISCOVERY PENDING RESOLUTION OF THEIR MOTION TO DISMISS
(Case No. 2:17-cv-716)
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P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 69 Filed 08/10/17 Page 5 of 11

1 complaint,” and documents that “refer or relate to facts or information alleged in the complaint.” 2 Exh. 1, at 5. But, their complaint alleges a large number of facts, including but not limited to:

3

(1) NWIRP and their work with the federal and state governments;

4

(2) The enactment of EOIR disciplinary regulations;

5

(3) Plaintiffs’ alleged conversations with unknown individuals at an unspecified

6

immigration court that took place almost 10 years ago;

7

(4) Two cases pending before the immigration courts;

8

(5) A conversation with the Disciplinary Counsel and with the Fraud Prevention Counsel;

9

(6) The Disciplinary Counsel’s issuance of a letter to NWIRP regarding compliance with

10

EOIR regulations;

11

(7) Allegations as to how EOIR’s regulations are inconsistent with practices permitted by

12

Washington; and

13

(8) Alleged harms to NWIRP arising out of the Disciplinary Counsel’s letter.

14 See generally Compl.

15

Plaintiffs’ overly-broad request itself best demonstrates a need for legal guidance as to

16 whether and what facts would be discoverable. A grant of the motion would alleviate the need

17 for any discovery and, to the extent that an opinion on the dispositive motion does not dismiss a 18 count of Plaintiffs’ complaint, it would provide guidance as to what facts relating to specific

19 counts are adequately subject to discovery. Accordingly, Discovery with respect to Plaintiffs’ 20 First Discovery Request and any other discovery sought outside the scope of the discovery

21 already contemplated in the parties’ agreement of July 12, 2017, ECF No. 59, should therefore

22 be stayed until this Court adjudicates the pending motion to dismiss. See Fed. R. Civ. P. 33(a)(2)

23 (“[T]he court may order that the interrogatory need not be answered until . . . some other time);

24 Fed. R. Civ. P. 34(b)(A) (noting that the court may order a longer time to respond to Requests for

25 Production).

26

DEFENDANTS’ MOTION TO STAY DISCOVERY PENDING RESOLUTION OF THEIR MOTION TO DISMISS
(Case No. 2:17-cv-716)
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P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 69 Filed 08/10/17 Page 6 of 11

1

In addition, because the disposition of the Motion to Dismiss will clarify what, if any,

2 issues remain in the litigation, and therefore help to guide discovery, Defendants also move this

3 Court to stay issuance of its Rule 16(b) scheduling order pending disposition of the motion.

4 B. Alternatively, Defendants request that this Court stay discovery deadlines, including

5

deadlines to respond to Plaintiffs’ First Discovery Requests, until the Court issues a

6

Rule 16 Scheduling Order.

7

In the alternative, should this Court not stay discovery and issuance of its Rule 16(b)

8 scheduling order pending resolution of the Motion to Dismiss, Defendants request, that this

9 Court postpone discovery production, including the response to Plaintiffs’ First Discovery

10 Request, at least until after the exchange of initial disclosures (August 11), submission of a Joint

11 Status Report and Discovery Plan to the Court (August 22),2 entry of a protective order, and this

12 Court’s issuance of a Rule 16(b) scheduling order.

13

Plaintiffs’ First Discovery Request is so broad in scope that it essentially requests

14 completion of all relevant document production, and such production currently is due by August

15 16 pursuant to Federal Rules of Civil Procedure 33(b)(2) and 34(b)(2). See Ex. 1, NWIRP’s

16 First Interrogatories and Requests for Production to All Defendants, at 5 (Interrogatory #1 asks

17 for information regarding “any facts or information alleged in the complaint,” and

18 correspondingly, Request for Production #1 asks for documents that “refer or relate to facts or

19 information alleged in the Complaint, the subject matter of this action, or this action 20 itself.”). However, Plaintiffs request for completion of this discovery before the Court has issued 21 its Rule 16 scheduling order setting discovery deadlines, appears unusual, and not in the ordinary 22 course. See Recognicorp, LLC v. Nintendo Co. Ltd., 2013 WL 2099518, at *2 (W.D.Wa. May 8,

23 2013) (Jones, J.) (“After obtaining a joint status report from the parties, the court issued a 24 scheduling order…”); ECF No. 45, Order Regarding Initial Disclosures and Joint Status Report,

25

2 This is particularly important to Defendants given that a JSR and Discovery Plan includes the parties’ views 26 regarding the need for a protective order – indeed, such protective orders are essential to Defendants’ ability to

provide certain production in this case. See, e.g., 8 C.F.R. § 1003.108 (confidentiality of preliminary attorney

disciplinary actions under EOIR regulations); 8 C.F.R. § 208.6 (confidentiality of information contained in or

pertaining to any asylum application).

DEFENDANTS’ MOTION TO STAY DISCOVERY PENDING

RESOLUTION OF THEIR MOTION TO DISMISS

P.O. Box 868 Ben Franklin Station

Washington, D.C. 20044

(Case No. 2:17-cv-716)

(202) 305-7181

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Case 2:17-cv-00716-RAJ Document 69 Filed 08/10/17 Page 7 of 11

1 sec. III (June 22, 2017) (this Court’s order states that the Joint Status Report and Discovery Plan

2 “will be used in setting a schedule for the prompt completion of the case”).

3

Defendants’ appearance in this case soon after the filing of the Complaint – thus

4 triggering the 60-day period for the Court to issue a scheduling order under Rule 16(b)(2) – was

5 attributable to Plaintiffs’ Motion for a Temporary Restraining Order. Plaintiffs subsequently

6 moved for a preliminary injunction. While Defendants recognize that discovery requests issued

7 during the preliminary injunction stage of a case are not invalid for that reason alone, see Quest

8 Integrity USA, LLC v. A.Hak Industrial Services US, LLC, 2016 WL 4533062, *2 (W.D.Wa.

9 March 23, 2016) (Jones, J.), responding to Plaintiffs’ requests for a TRO and preliminary

10 injunctive relief has already required the government to expend considerable time and resources.

11 Exh. 2 (Declaration of Michelle Curry).

12

Accordingly, this request should not be construed as an attempt to indefinitely frustrate

13 production of discovery that is relevant to the claims of the case. Rather, this request is fully

14 consistent with the ordinary course of discovery under the Federal Rules of Civil Procedure. See

15 Fed. R. Civ. P. 16(b)(2) (noting that a judge may delay issuance of a Rule 16(b) scheduling order

16 upon a showing of good cause). For example, the Federal Rules set the default timing for

17 issuance of a scheduling order – either 90 days after any defendant has been served, or 60 days

18 after any defendant has appeared, whichever is earliest, see Fed. R. Civ. P. 16(b)(2) – well after

19 the time by which most defendants will have been required to file their answer. See Fed. R. Civ.

20 P. 12(a)(1) (providing that defendants who are not the United States government must serve an

21 answer within 21 days after service).

22

While the 2015 Amendments to the Federal Rules of Civil Procedure reduced the time

23 period to issue a scheduling order from 120 days to 90 days, and from 90 days to 60 days, see

24 Rule 16(b)(2), these changes were introduced to “reduce delay at the beginning of litigation,”

25 and were not intended to advance the commencement of discovery prior to defendants filing an

26 answer. See Advisory Committee Note to 2015 Amendment to Rule 16. Moreover, the 2015

Amendments also added a new provision by which “the court may find good cause to extend the

DEFENDANTS’ MOTION TO STAY DISCOVERY PENDING RESOLUTION OF THEIR MOTION TO DISMISS
(Case No. 2:17-cv-716)
-7-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 69 Filed 08/10/17 Page 8 of 11

1 time to issue a scheduling order.” Id. The Advisory Committee notes accompanying the

2 amendment explicitly recognize that “[l]itigation involving complex issues, multiple parties, and

3 large organizations, public or private, may be more likely to need extra time to establish

4 meaningful collaboration between counsel and the people who can supply the information

5 needed to participate in a meaningful way.” Id.

6

Postponing discovery responses until after this Court’s issuance of a scheduling order is

7 fully consistent with the Advisory Committee Notes to the 2015 Amendments, which explicitly

8 acknowledge the possibility that “[i]n some cases, it may be that the parties cannot prepare

9 adequately for a meaningful Rule 26(f) conference and then a scheduling conference in the time

10 allowed.” Advisory Committee Note to 2015 Amendment to Rule 16; see Fed. R. Civ. P. 1

11 (stating that all rules “should be construed, administered, and employed . . . to secure the just,

12 speedy and inexpensive determination of every action and proceeding”).

13

The complex and far-reaching nature of Plaintiffs’ claims as well as the size of the

14 agency at issue in this case favor postponing discovery responses, regarding discovery beyond

15 that agreed to by the parties on July 17, 2017, until the entry of a scheduling order. See ECF No.

16 59, see also Fed. R. Civ. P. 26(a)(1)(C) (linking the time of initial disclosures to the Rule 26(f)

17 conference). Allowing resolution of Defendants’ dispositive motion without engaging in heavy

18 discovery greatly enhances the likelihood that the parties will be able to coordinate a mutually

19 agreeable plan for discovery and, if possible, narrow the issues requiring discovery, thus

20 affecting the “subjects, timing, and potential phasing of discovery.” ECF No. 45, at 3; see

21 Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 608 (D. Nev. 2011) (addressing situations where

22 staying discovery is appropriate during the pendency of a dispositive motion); see also Rutman

23 Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987) (observing that the purpose

24 of a dispositive motion under Rule 12(b)(6) “is to enable defendants to challenge the legal

25 sufficiency of complaints without subjecting themselves to discovery”). Finally, given the

26 nationwide injunctive relief currently in place under the Court’s preliminary injunction, see ECF

DEFENDANTS’ MOTION TO STAY DISCOVERY PENDING RESOLUTION OF THEIR MOTION TO DISMISS
(Case No. 2:17-cv-716)
-8-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 69 Filed 08/10/17 Page 9 of 11

1 No. 66, Plaintiffs will not in any way be prejudiced by postponing the commencement of

2 discovery in the manner proposed.

3

* * *

4

“Where . . . the operative complaint is challenged by motion practice, delaying discovery

5 until the claims and defenses in the case are better defined reduces expenses, minimizes the

6 burden of unnecessary discovery, and conserves judicial resources.” In re Morning Song Bird

7 Food Litig., No. 12-CV-1592, 2013 WL 12143947 at *3 (S.D. Cal. Jan 25, 2013), objections

8 overruled, No. 12-CV-1592, 2013 WL 12143948 (S.D. Cal. Apr. 3. 2013)). Good cause exists to

9 stay discovery until after Defendants’ motion to dismiss is resolved, or alternately, until after the

10 Court’s issuance of a scheduling order.

11 //

12 //

13

14

15

16

17

18

19

20

21

22

23

24

25

26

DEFENDANTS’ MOTION TO STAY DISCOVERY PENDING RESOLUTION OF THEIR MOTION TO DISMISS
(Case No. 2:17-cv-716)
-9-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 69 Filed 08/10/17 Page 10 of 11

Dated: August 10, 2017
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
WILLIAM C. PEACHEY Director Office of Immigration Litigation
GISELA A. WESTWATER Assistant Director
FRED A. SHEFFIELD VICTOR M. MERCADO-SANTANA Trial Attorneys
KATHLEEN A. CONNOLLY Senior Litigation Counsel
/s/ Gladys Steffens-Guzman GLADYS STEFFENS-GUZMÁN Trial Attorney Civil Division, Office of Immigration Litigation United States Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-7181 Facsimile: (202) 616 -8962 gladys.steffens-guzman@usdoj.gov
Counsel for Defendants

DEFENDANTS’ MOTION TO STAY DISCOVERY PENDING RESOLUTION OF THEIR MOTION TO DISMISS
(Case No. 2:17-cv-716)
-10-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 69 Filed 08/10/17 Page 11 of 11

CERTIFICATE OF SERVICE
1
I hereby certify that on this date, I electronically filed the foregoing with the Clerk of
2
3 Court using the CM/ECF system. I certify that all participants are CM/ECF users and that

4 service will be accomplished by the CM/ECF system.

5
Dated: August 10, 2017
6

Respectfully submitted.

7

/s/ Gladys M. Steffens Guzman

GLADYS M. STEFFENS GUZMAN

8

Trial Attorney

9

Civil Division, Office of Immigration Litigation

United States Department of Justice

10

P.O. Box 868, Ben Franklin Station

11

Washington, DC 20044

Telephone: (202) 305-7181

12

Facsimile: (202) 616 -8962

gladys.steffens-guzman@usdoj.gov
13

14

Counsel for Defendants

15

16

17

18

19

20

21

22

23

24

25

26

DEFENDANTS’ MOTION TO STAY DISCOVERY PENDING RESOLUTION OF THEIR MOTION TO DISMISS
(Case No. 2:17-cv-716)
-11-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 69-1 Filed 08/10/17 Page 1 of 9

1

The Honorable Richard A. Jones

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9
NORTHWEST IMMIGRANT RIGHTS 10 PROJECT (“NWIRP”), a nonprofit Washington
public benefit corporation; and YUK MAN 11 MAGGIE CHENG, an individual,

12

Plaintiffs,

13

v.

No. 2:17-cv-00716
NWIRP’S FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO ALL DEFENDANTS

14 JEFFERSON B. SESSIONS III, in his official
capacity as Attorney General of the United 15 States; UNITED STATES DEPARTMENT OF
JUSTICE; EXECUTIVE OFFICE FOR 16 IMMIGRATION REVIEW; JUAN OSUNA, in
his official capacity as Director of the Executive 17 Office for Immigration Review; and JENNIFER
BARNES, in her official capacity as 18 Disciplinary Counsel for the Executive Office
for Immigration Review, 19
Defendants. 20

21 TO: 22 23

Defendant Jefferson B. Sessions III; Defendant United States Department of Justice; Defendant Executive Office for Immigration Review; Defendant James McHenry;1and Defendant Jennifer Barnes

24 AND TO: 25

Victor M. Mercado-Santana, Gladys M. Steffens-Guzman, C. Frederick Sheffield, and Gisela A. Westwater, U.S. Department of Justice (Office of Immigration Litigation), their counsel of record.

26

27
1 Substituted for Juan Osuna pursuant to Fed. R. Civ. P. 25(d).
NWIRP’S FIRST ROGS & RFPS TO ALL DEFENDANTS (No. 2:17-cv-00716-RAJ) – 1

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 69-1 Filed 08/10/17 Page 2 of 9

1

Pursuant to Federal Rules of Civil Procedure 26, 33, and 34, Plaintiff Northwest

2 Immigrant Rights Project requests that each of Defendants Jefferson B. Sessions III, United

3 States Department of Justice (“DOJ”), Executive Office for Immigration Review (“EOIR”),

4 James McHenry, and Jennifer Barnes, within 30 days of service, respond to the following

5 interrogatories and produce for inspection and copying the documents described below at the

6 offices of Davis Wright Tremaine, 1201 Third Avenue, Suite 2200, Seattle, WA 98101-3045.

7

INSTRUCTIONS

8

A. In answering these interrogatories and requests for production, furnish all

9 information, documents, and things available to you regardless whether they were obtained

10 directly by you, your attorneys, through your agents, assigns, or representatives, or by anyone

11 acting on your or their behalf.

12

B. If you cannot answer these interrogatories and requests in full, answer to the

13 extent possible, specify the reasons for your inability to answer the remainder, and state

14 whatever information or knowledge you have concerning the unanswered portion.

15

C. Please mark each page or sheet you produce with an identification of

16 consecutive document control numbers.

17

D. If you object to answering any interrogatory or request for production, in whole

18 or in part, state your objection and the basis for it. If you object on grounds of privilege, please

19 also state the nature and extent of all allegedly privileged matters in sufficient detail to allow

20 Plaintiffs to decide whether to seek an order compelling disclosure of the information or

21 document in question. State the date, author(s), addresses, persons receiving copies of, and the

22 general subject matter of each document withheld under a claim of privilege, work product, or

23 on any other ground.

24

E. All documents shall be produced in a reasonably usable form. Electronically

25 stored information shall be produced in a form that preserves all native metadata and

26 functionality. This instruction may be superseded if and to the extent the parties reach

27

NWIRP’S FIRST ROGS & RFPS TO ALL DEFENDANTS (No. 2:17-cv-00716-RAJ) – 2

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 69-1 Filed 08/10/17 Page 3 of 9

1 agreement on a protocol for ESI discovery, as discussed during the parties’ Rule 26(f)

2 conference.

3

F. If, after responding to these interrogatories and requests for production, you

4 subsequently learn that your disclosure or response is incomplete or incorrect, or if you obtain,

5 directly or indirectly, additional information between the time your responses are served and

6 the time of trial, you must promptly supplement your responses. If you fail to do so, Plaintiffs

7 may seek to exclude from evidence such information or documentation, or other relief.

8

DEFINITIONS

9

A. “Person” includes, in the plural as well as singular, any natural person, firm,

10 association, partnership, government agency, nonprofit organization, joint venture, corporation

11 or other entity, unless the context indicates otherwise.

12

B. “Complaint” shall mean the complaint filed on May 8, 2017, in this matter.

13

C. “Cease and Desist Letter” shall mean the cease and desist letter sent from

14 Defendant Jennifer Barnes, EOIR’s Disciplinary Counsel, to Matt Adams and Northwest

15 Immigrant Rights Project on April 5, 2017.

16

D. “You,” “your,” “Defendant,” or “Defendants” means each and all of Jefferson

17 B. Sessions III, DOJ, EOIR, James McHenry, and Jennifer Barnes, and all present and former

18 attorneys, agents, employees, officials, contractors, representatives, or other persons who

19 possess, or who have obtained information for or on their behalf.

20

E. “NWIRP” means the Northwest Immigrant Rights Project, and each and all of

21 its attorneys, practitioners, agents, employees, and directors.

22

F. “Documents” means all physical material, electronically stored information, or

23 tangible things and includes but is not limited to those types of items specifically enumerated in

24 Rule 34(a)(1)(A).

25

G. “Communication” means any oral or written exchange by words or of thoughts

26 or ideas to another person, whether person to person, in a group, in a meeting, by telephone, by

27

NWIRP’S FIRST ROGS & RFPS TO ALL DEFENDANTS (No. 2:17-cv-00716-RAJ) – 3

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 69-1 Filed 08/10/17 Page 4 of 9

1 letter, by facsimile, by e-mail, by text message, or by any other process, whether oral, written,

2 electronic, or otherwise.

3

H. “Identify” means:

4

(1) With respect to documents: to provide separate identification of the date

5

of each document, its title, its format, the authors and recipients, its location, and its

6

general contents. In lieu of identifying a document, you may attach a copy of such

7

document(s) to your answers to these discovery requests;

8

(2) With respect to communications: to provide the date of each

9

communication; a description of its contents; the means of communication; the person

10

who initiated the communication and each other person who was a participant or

11

recipient; any document reflecting or referring to the communication; and its precise

12

words. For communications in a document or other tangible form, you may attach a copy

13

of such document to your answers to these discovery requests in lieu of identifying the

14

communications;

15

(3) With respect to persons: to provide the name of the person, his or her job

16

title and employer, and all known contact information, including without limitation his or

17

her present or last known address, phone numbers, and email addresses;

18

(4) With respect to anything else: to provide all characteristics that describe a

19

particular thing, place, activity, event, or instance for which an identification is sought,

20

including the date, persons involved, and substance thereof;

21

I. “And” and “or” are to be construed either disjunctively or conjunctively as

22 necessary to bring within the scope of these discovery requests all responses, disclosures, or

23 information that is otherwise responsive to a particular discovery request. These terms shall

24 not be narrowly construed as conjunctive or disjunctive in any particular context so as to

25 exclude any information otherwise within the scope of a particular discovery request.

26

27

NWIRP’S FIRST ROGS & RFPS TO ALL DEFENDANTS (No. 2:17-cv-00716-RAJ) – 4

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 69-1 Filed 08/10/17 Page 5 of 9

1

INTERROGATORIES & REQUESTS FOR PRODUCTION

2

INTERROGATORY NO. 1: Identify each person who has knowledge of any facts or

3 information alleged in the Complaint, or who otherwise has knowledge concerning the subject

4 matter of this action, and describe the information known by each person so identified.

5

ANSWER:

6

7

8

REQUEST FOR PRODUCTION NO. 1: Produce all documents, including without

9 limitation communications, that refer or relate to facts or information alleged in the Complaint,

10 the subject matter of this action, or this action itself.

11

RESPONSE:

12

13

14

INTERROGATORY NO. 2: Identify each person who participated in, had knowledge

15 of, or directed or contributed to the sending of the Cease and Desist Letter, and describe the

16 role that each such person played and the knowledge possessed by that person.

17

ANSWER:

18

19

20

INTERROGATORY NO. 3: Identify all communications you sent or received that

21 refer or relate to the Cease and Desist Letter.

22

ANSWER:

23

24

25

REQUEST FOR PRODUCTION NO. 2: Produce all documents, including without

26 limitation communications, that refer or relate to the Cease and Desist Letter.

27

RESPONSE:

NWIRP’S FIRST ROGS & RFPS TO ALL DEFENDANTS (No. 2:17-cv-00716-RAJ) – 5

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 69-1 Filed 08/10/17 Page 6 of 9

1

2

INTERROGATORY NO. 4: Identify all communications you have had with any

3 person on or after August 1, 2016 that refer or relate to NWIRP and practitioner discipline.

4

ANSWER:

5

6

7

REQUEST FOR PRODUCTION NO. 3: Produce all documents that reflect, refer, or

8 relate to the communications described in Interrogatory No. 4 or your answer thereto.

9

RESPONSE:

10

11

12

INTERROGATORY NO. 5: Identify all communications you have had with any

13 person on or after August 1, 2016 that refer or relate to any change in or any emphasis or focus

14 on practitioner disciplinary policy, interpretations, enforcement, priorities, or targets.

15

ANSWER:

16

17

18

REQUEST FOR PRODUCTION NO. 4: Produce all documents that reflect, refer, or

19 relate to the communications described in Interrogatory No. 5 or your answer thereto, or which

20 otherwise reflect, refer, or relate to any change in or any emphasis or focus on practitioner

21 disciplinary policy, interpretations, enforcement, priorities, or targets on or after August 1, 2016.

22

RESPONSE:

23

24

25

26

27

NWIRP’S FIRST ROGS & RFPS TO ALL DEFENDANTS (No. 2:17-cv-00716-RAJ) – 6

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 69-1 Filed 08/10/17 Page 7 of 9

1

INTERROGATORY NO. 6: Identify all communications you have sent, received, or

2 otherwise participated in, on or after January 1, 2016, that refer or relate to the same disciplinary

3 rule and/or policy referred to in the Cease and Desist Letter.

4

ANSWER:

5

6

7

REQUEST FOR PRODUCTION NO. 5: Produce all documents that reflect, refer, or

8 relate to the communications identified in response to Interrogatory No. 6.

9

RESPONSE:

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

NWIRP’S FIRST ROGS & RFPS TO ALL DEFENDANTS (No. 2:17-cv-00716-RAJ) – 7

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 69-1 Filed 08/10/17 Page 8 of 9

1

DATED this 17th day of July, 2017.

2

DAVIS WRIGHT TREMAINE LLP

3

Attorneys for Northwest Immigrant Rights Project

4

By s/ James Harlan Corning

Michele Radosevich, WSBA #24282

5

Jaime Drozd Allen, WSBA #35742

James Harlan Corning, WSBA #45177

6

Robert E. Miller, WSBA #46507

Laura-Lee Williams, WSBA #51358

7

1201 Third Avenue, Suite 2200

Seattle, WA 98101-3045

8

Telephone: (206) 622-3150

Fax: (206) 757-7700

9

E-mail: micheleradosevich@dwt.com

jaimeallen@dwt.com

10

jamescorning@dwt.com

robertmiller@dwt.com

11

lauraleewilliams@dwt.com

12

NORTHWEST IMMIGRANT RIGHTS

13

PROJECT

Matt Adams, WSBA #28287

14

Glenda M. Aldana Madrid, WSBA # 46987

Leila Kang, WSBA #48048

15

615 2nd Avenue, Suite 400

Seattle, WA 98104-2244

16

Phone: (206) 957-8611

Fax: (206) 587-4025

17

E-mail: matt@nwirp.org

glenda@nwirp.org

18

leila@nwirp.org

19

20

21

22

23

24

25

26

27

NWIRP’S FIRST ROGS & RFPS TO ALL DEFENDANTS (No. 2:17-cv-00716-RAJ) – 8

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 69-1 Filed 08/10/17 Page 9 of 9

1

CERTIFICATE OF SERVICE

2

I hereby certify that on July 17, 2017, I caused the above document to be served upon

3 Defendants’ counsel of record by electronic mail pursuant to the parties’ e-service agreement.

4

5

DATED: July 17, 2017

6

7

By s/ James Harlan Corning James Harlan Corning, WSBA #45177

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

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25

26

27

CERTIFICATE OF SERVICE (No. 2:17-cv-00716-RAJ) – 1

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 69-2 Filed 08/10/17 Page 1 of 4

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 Case 2:17-cv-00716-RAJ Document 75 Filed 08/28/17 Page 1 of 31

1

The Honorable Richard A. Jones

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

10 NORTHWEST IMMIGRANT RIGHTS
PROJECT (“NWIRP”), a nonprofit Washington 11 public benefit corporation; and YUK MAN
MAGGIE CHENG, an individual, 12
Plaintiffs, 13
v. 14
JEFFERSON B. SESSIONS III, in his official 15 capacity as Attorney General of the United
States; UNITED STATES DEPARTMENT OF 16 JUSTICE; EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; JAMES 17 MCHENRY, in his official capacity as Acting
Director of the Executive Office for 18 Immigration Review; and JENNIFER
BARNES, in her official capacity as 19 Disciplinary Counsel for the Executive Office
for Immigration Review, 20
Defendants. 21

No. 2:17-cv-00716
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
Noted for Consideration: September 1, 2017

22

23

24

25

26

27

PLFS.’ OPP’N TO DEFS.’ MOTION TO DISMISS (No. 2:17-cv-00716-RAJ)

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 75 Filed 08/28/17 Page 2 of 31

TABLE OF CONTENTS

1

Page

2 TABLE OF AUTHORITIES........................................................Error! Bookmark not defined.

3 I. INTRODUCTION ............................................................................................................. 1

4 II. BACKGROUND................................................................................................................ 3

5 III. LEGAL STANDARD........................................................................................................ 4

6 IV. ARGUMENT ..................................................................................................................... 4

7

A. The Court Should Not Dismiss Plaintiffs’ First Amendment Claims After Concluding, Less than a Month Ago, that Plaintiffs Were Likely to

8

Succeed on These Claims........................................................................................... 4

1. Defendants’ Efforts to Restrict Plaintiffs’ Out-of-Court Speech to

9

Potential Clients Is Subject to Strict Scrutiny, Not a Nonpublic Forum

Analysis. ............................................................................................................ 5

10 2. Even Under a Nonpublic Forum Analysis, the Regulation Fails to

11

Satisfy Minimal Scrutiny................................................................................... 8

12

3. The Regulation Is Not “Readily Susceptible” to a Narrowing Construction. ................................................................................................... 10

13

a. EOIR Cannot Suggest Any Feasible Narrowing Construction. ............. 11

14

b. Defendants’ Inconsistent Interpretations Demonstrate the Regulation

Cannot Be Given a Narrowing Construction. ........................................ 12

15

c. The Regulation Cannot Be Narrowed to Restrict Only In-Court

16

Speech Unless Completely Redrafted. ................................................... 13

17

4. Plaintiffs’ Facial Challenges to the Regulation Are Not Barred by the Statute of Limitations. ..................................................................................... 14

18

a. The Statute of Limitations in 28 U.S.C. § 2401(a) Does Not Apply

19

to Facial Challenges for Vagueness and Overbreadth Under the First Amendment. ........................................................................................... 14

20

b. Even If Plaintiffs’ Facial Challenges Were Subject to the Statute of

Limitations, the Claims Are Timely....................................................... 17 21
B. Plaintiffs State a Tenth Amendment Claim Because the Regulation

22

Restricts Conduct Beyond the Limited Forum Defendants Can

Permissibly Regulate................................................................................................ 19

23 V. CONCLUSION ................................................................................................................ 22

24

25

26

27

PLFS.’ OPP’N TO DEFS.’ MOTION TO DISMISS (No. 2:17-cv-00716-RAJ) – i

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 75 Filed 08/28/17 Page 3 of 31

1 TABLE OF AUTHORITIES

2 Page(s)
3

Federal Cases 4

3570 East Foothill Blvd., Inc. v. City of Pasadena,

5

912 F. Supp. 1268 (C.D. Cal. 1996) ................................................................................16, 17

6 Ashcroft v. Iqbal,

7

556 U.S. 662 (2009) ................................................................................................................4

8 Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ............................................................................................................3, 4 9

Brockett v. Spokane Arcades, Inc.,

10

472 U.S. 491 (1985) ..............................................................................................................11

11 Brown v. Cal. Dep’t of Transp.,

12

321 F.3d 1217 (9th Cir. 2003) ...............................................................................................10

13 Cal. Teachers Ass’n v. State Bd. of Educ.,

271 F.3d 1141 (9th Cir. 2001) ...............................................................................................15

14

Carson Harbor Village Ltd. v. City of Carson,

15

37 F.3d 468 (9th Cir. 1994) ...................................................................................................17

16 Cedars-Sinai Med. Ctr. v. Shalala,

17

125 F.3d 765 (9th Cir. 1997) .............................................................................................3, 19

18 City of Chicago v. Morales, 527 U.S. 41 (1999) ................................................................................................................15

19

Farrell v. Burke,

20

449 F.3d 470 (2d Cir. 2006) ..................................................................................................15

21 Francois v. Johnson,

22

2014 WL 1613932 (D. Ariz. April 22, 2014)........................................................................16

23 Gen. Media Commc’ns, Inc. v. Cohen, 131 F.3d 273 (2d Cir. 1997) ..................................................................................................10

24 Giovani Carandola, Ltd. v. Fox,

25

470 F.3d 1074 (4th Cir. 2006) ...............................................................................................11

26 Grayned v. City of Rockford,

27

408 U.S. 104 (1972) ........................................................................................................15, 16

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Green v. United States,

1

630 F.3d 1245 (9th Cir. 2011) .................................................................................................3

2 Hal Roach Studios, Inc. v. Richard Feiner & Co.,

3

896 F.2d 1542 (9th Cir. 1990) .................................................................................................3

4 Hotel & Motel Ass’n of Oakland v. City of Oakland,

344 F.3d 959 (9th Cir. 2003) .................................................................................................15

5

In re Primus,

6

436 U.S. 412 (1978) ..........................................................................................................1, 17

7 Jacobellis v. Ohio,

8

378 U.S. 184 (1964) ................................................................................................................2

9 Kuhnle Brothers, Inc. v. County of Geauga, 103 F.3d 516 (6th Cir. 1997) ...........................................................................................18, 19

10

Legal Servs. Corp. v. Velazquez,

11

531 U.S. 533 (2001) ................................................................................................................9

12 Lehman Bros. Holdings, Inc. v. Evergreen Moneysource Mortg. Co.,

13

793 F. Supp. 2d 1189 (W.D. Wash. 2011) ............................................................................14

14 Leis v. Flynt, 439 U.S. 438 (1979) ..............................................................................................................20

15 LSO, Ltd. v. Stroh,

16

205 F.3d 1146 (9th Cir. 2000) .................................................................................................8

17 Maldonado v. Harris,

18

370 F.2d 945 (9th Cir. 2004) ...........................................................................................17, 19

19

Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229 (2010) ................................................................................................................8

20 NAACP v. Button,

21

371 U.S. 415 (1963) ......................................................................................................5, 6, 14

22 Napa Valley Publ’g Co. v. City of Calistoga, 225 F. Supp. 2d 1176 (N.D. Cal. 2002).................................................................................16
23

24

Nat’l Advert. Co. v. City of Raleigh, 947 F.2d 1158 (4th Cir. 1991) ...............................................................................................17

25 Oksner v. Blakely,

26

2007 WL 3238659 (N.D. Cal. Oct. 31, 2007) .......................................................................16

27

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Paris Adult Theatre I v. Slaton,

1

413 U.S. 49 (1973) ..................................................................................................................2

2 Preminger v. Sec’y of Veterans Affairs,

3

517 F.3d 1299 (Fed. Cir. 2008) .............................................................................................16

4 R.A.V. v. City of St. Paul, Minn.,

505 U.S. 377 (1992) ..............................................................................................................10

5

Reno v. Am. Civil Liberties Union,

6

521 U.S. 844 (1997) ..............................................................................................................10

7 Ridley v. Mass. Bay Transp. Auth.,

8

390 F.3d 65 (1st Cir. 2004) ...................................................................................................10

9 Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028 (9th Cir. 2009) ...............................................................................................22

10

S.O.C., Inc. v. Cty. of Clark,

11

152 F.3d 1136 (9th Cir. 1998) ...............................................................................................14

12 Sammartano v. First Judicial Dist. Court,

13

303 F.3d 959 (9th Cir. 2002) ...........................................................................................1, 5, 8

14 Sanders v. Brown, 504 F.3d 903 (9th Cir. 2007) .............................................................................................4, 20

15 Santa Fe Springs Realty Corp. v. City of Westminster,

16

906 F. Supp. 1341 (C.D. Cal. 1995) ......................................................................................15

17 Scheer v. Kelly,

18

817 F.3d 1183 (9th Cir. 2016) ...............................................................................................18

19

Shiny Rock Mining Corp. v. United States, 906 F.2d 1362 (9th Cir. 1990) ...............................................................................................16

20 Sperry v. State of Fla. ex rel. Fla. Bar,

21

373 U.S. 379 (1963) ........................................................................................................20, 21

22 Summit Media, LLC v. City of Los Angeles, 530 F. Supp. 2d 1084 (C.D. Cal. 2008) .................................................................................16
23

24

United States v. Arizona, 2010 WL 11405085 (D. Ariz. Dec. 10, 2010) ...................................................................4, 20

25 United States v. Houser,

26

804 F.2d 565 (9th Cir. 1986) ...................................................................................................4

27

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United States v. Nat’l Treasury Emps. Union,

1

513 U.S. 454 (1995) ..............................................................................................................12

2 United States v. Salerno,

3

481 U.S. 739 (1987) ..............................................................................................................15

4 United States v. Smith,

389 F.3d 944 (9th Cir. 2004) ...................................................................................................4

5

Va. Hosp. Ass’n v. Baliles,

6

868 F.2d 653 (4th Cir. 1989) .................................................................................................19

7 Valle del Sol Inc. v. Whiting,

8

732 F.3d 1006 (9th Cir. 2013) ...............................................................................................15

9 Virginia v. American Booksellers Ass’n, 484 U.S. 383 (1988) ..............................................................................................................13

10

Wallace v. New York,

11

40 F. Supp. 3d 278 (E.D.N.Y. 2014) .....................................................................................18

12 Wind River Mining Corp. v. United States,

13

946 F.2d 710 (9th Cir. 1991) .................................................................................................16

14 Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7 (2008) ..................................................................................................................20
15 U.S. Constitutional Provisions
16 First Amendment ................................................................................................................. passim
17
Tenth Amendment .........................................................................................................2, 3, 20, 22 18
19 Federal Statutes

20 28 U.S.C. § 2401(a)...........................................................................................................3, 15, 19

21 Court Rules

22 Fed. R. Civ. P. 12(b)(1) .................................................................................................................3

23 Fed. R. Civ. P. 12(b)(6) .............................................................................................................3, 4

24 Federal Regulations

25 8 C.F.R. § 1001.1(i).......................................................................................................................6 26 8 C.F.R. § 1001.1(k)..........................................................................................................6, 14, 21 27 8 C.F.R. § 1003.101(b) ................................................................................................................10

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8 C.F.R. § 1003.102(t)......................................................................................................... passim 1 2 8 C.F.R. § 1003.109.....................................................................................................................10 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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1

I. INTRODUCTION

2

On May 17, 2017, this Court entered a temporary restraining order (TRO), enjoining

3 Defendants from enforcing 8 C.F.R. § 1003.102(t) (the “Regulation”) and their “cease and desist”

4 directive to Northwest Immigrant Rights Project (“NWIRP”), through which Defendants had

5 sought to prevent NWIRP from providing legal assistance to thousands of immigrants each year.

6 Dkt. 33. On July 27, the Court converted the TRO into a preliminary injunction. Dkt. 66. In so

7 doing, the Court determined that“[t]his case falls neatly within the [Supreme Court] precedent …

8 embod[ying] the principle that non-profit organizations may not be threatened when advocating

9 lawful means of vindicating legal rights.” Id. at 5 (internal quotation marks omitted).

10

Undeterred, Defendants are back for a third bite at the apple. Their Motion to Dismiss

11 largely repeats (in some cases, verbatim) the same flawed arguments they advanced in prior

12 briefing—even though the Court has already rejected these arguments. Defendants’ Motion fails

13 to articulate any compelling reason why the Court should dismiss any of Plaintiffs’ claims:

14

First, Defendants’ Regulation—which, they do not deny, effectively prevents Plaintiffs

15 from providing limited assistance to immigrants in removal proceedings—is subject to strict

16 scrutiny. Defendants “must demonstrate a compelling interest that is narrowly tailored ‘to avoid

17 unnecessary abridgement’ of First Amendment freedoms.” Dkt. 66, at 8 (quoting In re Primus,

18 436 U.S. 412, 432 (1978)). Defendants cannot avail themselves of the lesser scrutiny applied to

19 non-public forum restrictions, as the Regulation interferes with protected, out-of-court speech,

20 like self-help presentations, individual meetings, and asylum workshops. In any case, the

21 Regulation cannot survive even minimal scrutiny under a non-public forum analysis. The

22 Regulation imposes unreasonable restrictions unmoored from its stated purpose (or any other

23 legitimate purpose), and it is not viewpoint-neutral, as it burdens only attorneys who represent

24 immigrants and not government lawyers.

25

Second, Defendants cannot save their Regulation by asking the Court to rewrite it for

26 them. Although Defendants suggest the Regulation can be rescued by a “narrowing

27 construction,” they fail to offer a viable one. In fact, the only interpretation they offer is one of

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1 pure caprice—that each interaction between an attorney and client is “extremely fact-specific,”

2 and only Defendant Barnes can judge if that interaction “crosses the line,” something she will 3 “know” when she “see[s] it.”1 Corning Decl. Ex. A at 38:10–14. Although Defendants reassure

4 the Court that the Regulation can be confined to only “in court” speech, this promise is illusory: it

5 contradicts the text of the Regulation. Moreover, as Defendants apparently interpret it, the “in

6 court” limitation still prohibits Plaintiffs from offering out-of-court legal assistance to

7 immigrants. Clever labels aside, this new “limitation” cannot pass constitutional muster.

8

Third, Defendants cannot avail themselves of the statute of limitations to evade a facial

9 challenge to their Regulation. As the Ninth Circuit and other courts within this Circuit have

10 recognized, the statute of limitations does not bar First Amendment challenges to a regulation’s

11 constitutionality, particularly when the harm caused by vagueness and overbreadth is persistent

12 and ongoing. Moreover, even if the statute of limitations did apply, Plaintiffs’ cause of action did

13 not accrue until April 2017, when Plaintiffs first became aware Defendants intended to enforce

14 the vague and overbroad language contained in the Regulation. Defendants are barred from

15 arguing for an earlier accrual date, as they expressly accepted and acceded to NWIRP’s practice

16 of self-identification until April 2017. And, in any event, the limitations period restarts each day

17 that it is enforced against Plaintiffs.

18

Fourth, the Court should not dismiss Plaintiffs’ Tenth Amendment claims. Plaintiffs’

19 claims are not—as Defendants have argued—a contest for supremacy between Defendants’ right

20 to regulate immigration-court practice and Washington State’s legal ethics rules. Rather, the core

21 issue presented in these claims is how far beyond the immigration court Defendants may extend

22 their regulatory reach without trampling the States’ sovereign power to regulate the general

23 practice of law. Here, the Regulation restricts, among other things, purely out-of-court speech

24

25

1 “I know it when I see it,” is Justice Potter Stewart’s oft-quoted foray into defining a standard for pornography. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart J., concurring). Less remarked upon, but no less noteworthy,

is Justice Stewart’s decision to later recant that test, in which he and two of his colleagues admitted they were
26 “manifestly unable to describe [pornography] in advance except by reference to concepts so elusive that they fail to

distinguish clearly between protected and unprotected speech.” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 84
27 (1973) (Brennan, J., joined by Stewart and Marshall, JJ., dissenting). Defendants’ “we know it when we see it”

approach to practitioner discipline suffers from the same infirmity.

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1 and conduct—advice and communication between an attorney and a client (including prospective

2 clients). These privileged communications may or may not culminate in an appearance or

3 representation before the immigration court, but the Regulation ignores that distinction. The

4 Regulation is not—as it must be—circumscribed to the narrow arena in which Defendants can

5 permissibly regulate. Even if Plaintiffs’ Tenth Amendment claims were insufficient to satisfy the

6 stringent standard for preliminary injunctive relief, they survive the much lesser standard

7 applicable to a motion to dismiss.

8

If the Court grants Defendants’ Motion, Defendants will succeed in depriving Plaintiffs

9 of their ability to advocate for immigrant rights. They will also deprive thousands of immigrants

10 in Washington—and many more throughout the country—of the high-quality legal assistance they

11 now receive from non-profit legal providers.

12

II. BACKGROUND

13

The Court is familiar with Plaintiffs’ Complaint and the relevant facts. Dkt. 66, at 2–4.

14 Rather than repeating them here, Plaintiffs incorporate the factual recitation set forth in their

15 preliminary-injunction motion, Dkt. 37, at 1–5, which contains only facts pled in the Complaint,

16 reasonable inferences therefrom, and facts in supporting declarations that are “consistent with the

17 allegations in the complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007).

18

On the other hand, most of Defendants’ factual recitation is based, not on the Complaint,

19 but on the declaration of Defendant Jennifer Barnes. See Dkt. 67, at 2–5. Defendants may not

20 rely on their own factual contentions and material outside (or not incorporated by reference into)

21 the Complaint in bringing a Rule 12(b)(6) motion to dismiss. See Hal Roach Studios, Inc. v.

22 Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Defendants’ factual recitation 23 is therefore improper.2

24

25

2 Presumably, Defendants will argue in reply that they can rely on their own factual contentions and material because they also seek dismissal under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter

jurisdiction (which, although not stated, appears to rest on their statute-of-limitations argument). It is true that Rule
26 12(b)(1) motions allow for consideration of material outside the pleadings. See Green v. United States, 630 F.3d

1245, 1248 n.3 (9th Cir. 2011). But motions to dismiss based on 28 U.S.C. § 2401(a)’s limitations provision are not
27 jurisdictional motions, and therefore must be brought under (and subject to the limitations of) Rule 12(b)(1). See

Cedars-Sinai Med. Ctr. v. Shalala, 125 F.3d 765, 770–71 (9th Cir. 1997).

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III. LEGAL STANDARD

1

On a Rule 12(b)(6) motion to dismiss, the Court assumes the truth of the complaint’s

2

factual allegations and credits all reasonable inferences arising from those allegations. Sanders v.

3

Brown, 504 F.3d 903, 910 (9th Cir. 2007). If the plaintiff points to factual allegations that “state a

4

claim to relief that is plausible on its face,” the complaint avoids dismissal if there is “any set of

5

facts consistent with the allegations in the complaint” that would entitle the plaintiff to relief.

6

Twombly, 550 U.S. at 563, 568; Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). Under this

7

standard, Defendants’ motion fails.

8

IV. ARGUMENT

9

A. The Court Should Not Dismiss Plaintiffs’ First Amendment Claims After

10

Concluding, Less than a Month Ago, that Plaintiffs Were Likely to Succeed on

These Claims.

11

In seeking dismissal of Plaintiffs’ First Amendment claims, Defendants advance many of

12

the same arguments they relied on, unsuccessfully, in opposing entry of the TRO and preliminary

13

injunction. See Dkt 14, at 8–12; Dkt. 47, at 11–22. Given the more stringent requirement to

14

demonstrate a likelihood of success on the merits for a preliminary injunction, the Court should

15

not reexamine on a motion to dismiss those “claims with regard to which the Court previously

16

found that Plaintiff[s] had demonstrated a likelihood of success.” United States v. Arizona, 2010

17

WL 11405085, at *6 (D. Ariz. Dec. 10, 2010). Moreover, because the Court already twice ruled

18

that Plaintiffs have demonstrated a likelihood of success on the merits on their First Amendment

19

claims, see Dkts. 33 & 66, the law-of-the-case doctrine counsels against revisiting these claims

20

now. See United States v. Smith, 389 F.3d 944, 948 (9th Cir. 2004) (“Under the ‘law of the case’

21

doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the

22

same court . . . in the same case.”) (internal quotation marks omitted); United States v. Houser,

23

804 F.2d 565, 567 (9th Cir. 1986) (“[R]econsideration of legal questions previously decided

24

should be avoided.”). Asking this Court to wholly revise its interpretation of law applied in an

25

earlier motion, without providing the Court “strong and reasonable [grounds for deciding] that the

26

earlier ruling was wrong,” violates the purpose and intent of the doctrine. Smith, 389 F.3d at 949.

27

Defendants offer no compelling reason for the Court to revisit these rulings.

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1

In any event, however, each of Defendants’ arguments lack merit and should be rejected.

2

1. Defendants’ Efforts to Restrict Plaintiffs’ Out-of-Court Speech to Potential

Clients Is Subject to Strict Scrutiny, Not a Nonpublic Forum Analysis.

3

Defendants insist the Regulation, promulgated by the Executive Office for Immigration

4

Review (“EOIR”), exclusively regulates “in-court” speech. Because courtrooms are (according to

5

Defendants) nonpublic forums, Defendants reason that EOIR’s Regulation should receive only

6

minimal First Amendment scrutiny. Dkt. 67, at 12–15. Defendants are mistaken for several

7

reasons:

8

First, Defendants ignore the Court’s prior ruling applying strict scrutiny to Plaintiffs’

9

First Amendment claims. Dkt. 66, at 8. In that ruling, the Court determined not only that the

10

Regulation failed strict scrutiny, but that the breadth of the Regulation “dooms it even under

11

intermediate scrutiny.” Id. at 12. Despite the Court’s unambiguous conclusion to the contrary,

12

Defendants persist in arguing that only minimal scrutiny should apply because the Regulation

13

restricts speech in a nonpublic forum—the courtroom. See Dkt. 67, at 12. But in granting

14

Plaintiffs preliminary injunctive relief, the Court rejected the argument that “EOIR applies

15

Section 1003.102(t) only to in court statements,” see Dkt. 47, at 11, stating:

16

Of course, this cannot be the case. Attorneys who speak in such a forum—

17

that is, as a representative inside the courtroom—have presumably filed a

notice of appearance. It seems, then, that the Regulation must be triggered

18

prior to an attorney’s in-court appearance.

19 Dkt. 66, at 11 n.5. Defendants offer no compelling rationale for why the Court should reverse its

20 prior conclusion that the challenged Regulation is subject to—and fails—strict scrutiny.

21

Second, legal advice and other speech in the context of providing limited representation

22 to immigrants in removal proceedings are essential to vindicating the rights of an unpopular

23 minority. This fact alone mandates strict scrutiny. See id. at 5 (“This case falls neatly within the .

24 . . authority embod[ying] the principle that non-profit organizations may not be threatened when

25 ‘advocating lawful means of vindicating legal rights.’”) (quoting NAACP v. Button, 371 U.S. 415,

26 437 (1963)). This argument has been extensively briefing in connection with the prior motions,

27 so Plaintiffs will not repeat it again here. See Dkt. 2, at 6–10; Dkt. 21, at 4; Dkt. 37, at 6–9.

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1

Third, even accepting Defendants’ questionable premise that a courtroom is a nonpublic

2 forum, the Regulation unquestionably reaches and restricts conduct that occurs outside that

3 forum. By its own terms, the Regulation prohibits “advice” given to clients when the lawyer has

4 not committed to full representation. 8 C.F.R. §§ 1001.1(k), 1003.102(t). This “advice” includes

5 speech between a lawyer and client outside a courtroom and never directed to a court.

6 Defendants’ own interpretive guidance confirms that the Regulation restrains attorneys’ speech to

7 their clients in out-of-court, confidential meetings. See Dkt. 52, at 9. EOIR’s guidance

8 memorandum on its Legal Orientation Program (“LOP”)—which interprets the definitions of

9 “practice” and “preparation” in 8 C.F.R. § 1001.1(i) & (k)—advises practitioners they cannot, for

10 example, “assist in the direct preparation of an individual’s papers” at a “self-help workshop,”

11 Dkt. 14-2, at 6, or “advise [an] individual how to answer a question [on a form] based on a

12 participant’s particular factual situation and the applicable law,” id. at 7. Defendants admit their

13 Regulation prevents a practitioner from “giv[ing] legal advice concerning [an] individual’s

14 specific case,” unless the practitioner appears and agrees to full representation. Dkt. 50 ¶ 68. In

15 fact, Defendant Barnes initially contacted NWIRP because she believed NWIRP’s practice of

16 hosting pro se asylum workshops violated the Regulation. See Dkt. 54 ¶¶ 2–3; Dkt. 47, at 8; Dkt.

17 49 ¶ 49.

18

Self-help workshops, individual consultations, and asylum workshops are quintessential

19 out-of-court activities; yet, Defendants indisputably seek to restrict Plaintiffs’ speech in these

20 situations. Defendants cite no authority to support their argument that regulation of out-of-court

21 speech not directed to a court is subject to an in-court nonpublic forum analysis—because it is

22 not. Defendants’ admitted intention to regulate out-of-court speech renders any nonpublic forum

23 analysis irrelevant.

24

Defendants try to avoid this inescapable conclusion by arguing, essentially, that the

25 Regulation does not mean what it says. Defendants argue that, despite the plain and unambiguous

26 language of the Regulation, it nonetheless is somehow limited to “in-court speech.” See Dkt. 67,

27 at 14–15. Defendants even proffer a limiting principle, found nowhere in the text of the

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1 Regulation, that they only restrict “activities by which someone speaks to or interacts with the

2 immigration court either through in-person or written discourse.” Id. at 8 (emphasis in original).

3 As Plaintiffs previously explained, Defendants’ attempt to redraft the Regulation through their

4 briefing, to limit the rule to “in-court speech,” suffers from a number of fatal defects, including

5 Defendants’ own prior—and inconsistent—statements on how the Regulation is to be interpreted.

6 See Dkt. 52, at 8–13.

7

Nonetheless, to bolster their new “in-court speech” limiting principle, Defendants say

8 NWIRP has failed to “allege a single instance in which EOIR has applied [the Regulation] in the

9 broad manner that Plaintiffs purportedly fear.” Dkt. 67, at 14. In essence, Defendants are

10 contending that Plaintiffs’ lawsuit is premature because (i) Defendants’ disciplinary threat to

11 NWIRP stemmed from NWIRP’s assistance with written documents that were ultimately filed

12 with the immigration court (even though NWIRP did not file the motion to reopen submitted to

13 the Tacoma court, but instead only assisted the individual to fill out the one page template

14 motion), and (ii) Defendants have not (yet) enforced the regulation against NWIRP for out-of-

15 court advice to a client.

16

Plaintiffs’ challenge is not premature. Plaintiffs may challenge potential applications of

17 the statute prior to enforcement because the even the potential for future enforcement chills

18 protected speech. “It is clear that a plaintiff ‘does not have to await the consummation of

19 threatened injury to obtain preventive relief’” because it “is sufficient for standing purposes that

20 the plaintiff intends to engage in ‘a course of conduct arguably affected with a constitutional

21 interest’ and that there is a credible threat that the challenged provision will be invoked against

22 the plaintiff.” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154–55 (9th Cir. 2000) (quoting Babbitt v.

23 United Farm Workers, 442 U.S. 289, 298 (1979)). This is particularly true, as here, “when the

24 threatened enforcement effort implicates First Amendment rights ….” Id. at 1155. As a result,

25 “[f]ederal courts most frequently find pre-enforcement challenges justiciable when the challenged

26 statutes allegedly ‘chill’ conduct protected by the First Amendment.” Id. at 1156 (quoting

27 Navegar, Inc. v. United States, 103 F.3d 994, 999 (D.C. Cir. 1997)); see also Milavetz, Gallop &

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1 Milavetz, P.A. v. United States, 559 U.S. 229, 234 (2010) (considering an as-applied pre-

2 enforcement challenge brought under the First Amendment). EOIR’s threat of disciplinary

3 sanctions is more than sufficient to meet this standard. Further chilling Plaintiffs’ speech is the

4 fact that the regulatory language cited in the cease-and-desist letter is facially overbroad and

5 vague, reaching conduct far beyond the courtroom. See Dkt. 66, at 11 (“The Regulation is not

6 only too broad, it is impermissibly vague.”); see also Dkt. 67, at 15–16 (acknowledging and citing

7 case law to support that an overbroad or vague law restraining speech is facially unconstitutional).

8

In sum, Defendants cannot show their Regulation is entitled to the lower level of scrutiny

9 that applies to nonpublic forum restrictions. The Regulation is a fundamental restraint on

10 protected speech, and it therefore receives strict scrutiny—a standard it cannot survive.

11

2. Even Under a Nonpublic Forum Analysis, the Regulation Fails to Satisfy

Minimal Scrutiny.

12

Even if a nonpublic forum analysis were relevant (it is not), EOIR’s Regulation still fails

13

to pass muster. It is neither reasonable in light of the purpose it serves nor viewpoint neutral. See

14

Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 966–67 (9th Cir. 2002) (requiring

15

regulations fulfill a “legitimate need,” a higher standard than rational basis), abrogated on other

16

grounds by CTIA-The Wireless Ass’n v. City of Berkeley, 854 F.3d 1105, 1123 (9th Cir. 2017).

17

First, the Regulation is not reasonable in light of the purpose served. As this Court

18

noted, the primary purpose of the Regulation identified by Defendants is to ensure quality

19

representation by attorneys appearing before the immigration court. Dkt. 66, at 9. That purpose

20

is not served with an all-or-nothing notice of appearance requirement because it “is questionable

21

whether an actual notario or ne’er-do-well would have so clearly identified himself such that

22

EOIR could attempt enforcement in the same way.” Id. at 10. NWIRP already identifies itself on

23

documents. Id.; Dkt. 49 ¶¶ 50–52; Dkt. 37, at 13. And Defendants do not contest that NWIRP

24

provides high-quality legal assistance to immigrants. Simply put, the “Regulation is not narrowly

25

tailored to achieve its own ends.” Dkt. 66, at 10. Defendants cannot show a “legitimate need” for

26

compelling full representation when a less-burdensome self-identification requirement would

27

equally serve its purported need.

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1

The “multiple purposes” for the Regulation that Defendants otherwise identify in their

2 motion are equally poor fits for the compulsory-representation rule they adopted. “[A]llowing

3 EOIR to identify the practitioner responsible for representation,” Dkt. 67, at 8, makes sense—if

4 the practitioner has agreed to fully represent the client. But, if not, compelling full representation

5 just so the agency can identify a practitioner who has engaged in limited representation is wildly

6 disproportionate: it’s the procedural equivalent of performing brain surgery with a sledgehammer.

7 And EOIR’s remaining rationales for its Regulation—ensuring only authorized practitioners are

8 representing immigrants, id. at 9, preserving claims of ineffective assistance, id., and discouraging

9 ghostwriting, id. at 10—all boil down to the same thing: EOIR wants to be able to identify a

10 practitioner who assists a respondent with a written submission to the immigration court. This

11 objective could be served by far less intrusive requirements, like requiring self-identification or

12 simply asking the respondent to identify his or her attorney (or, in many cases, the notario

13 engaged in unauthorized practice of law). Defendants fail to advance any rationale—legitimate or

14 otherwise—to justify their attempt to compel full representation when they plainly have other,

15 better tailored, and less burdensome avenues to achieve their purported goals.

16

Second, the Regulation is not viewpoint neutral. The only practical effect of the

17 compulsory-representation requirement is to reduce the overall volume and quality of pro-

18 immigrant advocacy. See Dkt. 52, at 10. Defendants cannot, by regulation, “insulate [their] own

19 [practices] from legitimate judicial challenge.” Legal Servs. Corp. v. Velazquez, 531 U.S. 533,

20 548 (2001). Moreover, the Regulation facially discriminates based on viewpoint because it

21 applies only to attorneys representing immigrants, not to attorneys representing the government.

22 “Viewpoint discrimination concerns arise when the government intentionally tilts the playing

23 field for speech; reducing the effectiveness of a message, as opposed to repressing it entirely, thus

24 may be an alternative form of viewpoint discrimination.” Ridley v. Mass. Bay Transp. Auth., 390

25 F.3d 65, 88 (1st Cir. 2004). The Regulation eliminates limited-scope representation and thereby

26 limits the permissible advocacy for only one side of the adversarial process—the same side that

27 seeks vindication of the civil rights for an unpopular minority. The Regulation does not apply to

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1 the government’s attorneys, who are not required to file a notice of appearance and who routinely

2 engage in limited representation. See 8 C.F.R. § 1003.101(b) (defining “practitioner” for the

3 purposes of § 1003.102 as “any attorney...who does not represent the federal government”); see

4 also id. § 1003.109 (providing no reciprocal restriction on government attorneys).

5

The government “has no such authority to license one side of a debate to fight freestyle,

6 while requiring the other to follow Marquis of Queensberry rules.” R.A.V. v. City of St. Paul,

7 Minn., 505 U.S. 377, 392 (1992). Such restrictions are, on their face, viewpoint-based. See id.;

8 see also Gen. Media Commc’ns, Inc. v. Cohen, 131 F.3d 273, 281 n.10 (2d Cir. 1997) (“The

9 Supreme Court’s decisions dealing with viewpoint discrimination evidence particular hostility to

10 restrictions specifically intended to suppress the circulation of the arguments on one side of a

11 particular debate.”); Brown v. Cal. Dep’t of Transp., 321 F.3d 1217, 1225 (9th Cir. 2003)

12 (“Imposing a financial burden on one viewpoint while permitting the expression of another free of

13 charge runs afoul of [the First Amendment].”). Plaintiffs advocate a consistent, pro-immigrant

14 message. By diminishing the volume and availability of Plaintiffs’ speech—but not the speech of

15 their litigation opponents—EOIR effectively tilts the playing field in Defendants’ favor. This sort

16 of viewpoint-based discrimination dooms the Regulation under any level of scrutiny.

17

3. The Regulation Is Not “Readily Susceptible” to a Narrowing Construction.

18

Defendants argue that Plaintiffs’ claims should be dismissed because the Regulation is

19 subject to a narrowing construction. Courts may impose a narrowing construction only if a statute

20 or regulation “is readily susceptible to such a construction.” Reno v. Am. Civil Liberties Union,

21 521 U.S. 844, 884 (1997) (internal quotation marks omitted). A statute or regulation is “readily

22 susceptible” to a narrowing construction if the text (or other source of agency intent) identifies a

23 “clear line” that the court can draw. Id.; see also, e.g., Brockett v. Spokane Arcades, Inc., 472

24 U.S. 491, 504–05 (1985) (invalidating obscenity statute only to the extent that word “lust” was

25 actually or effectively excised from statute). There is no such clear line here, and Defendants do

26 not attempt to draw one. Indeed, the Regulation is so vague that Defendants have offered several

27 competing and conflicting interpretations of it in just the three months since this lawsuit was filed.

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1 See Dkt. 66, at 11. The Regulation simply is not “readily susceptible” to any valid narrowing

2 construction.

3

a. EOIR Cannot Suggest Any Feasible Narrowing Construction.

4

Defendants’ failure to suggest a limiting construction (beyond the moniker of “in-court

5 speech”) illustrates that the Regulation is not “readily susceptible” to such a construction. See

6 Giovani Carandola, Ltd. v. Fox, 470 F.3d 1074, 1084 (4th Cir. 2006) (noting absence of

7 suggested limiting construction in a prior ruling suggested that the statute was not readily

8 susceptible to limiting construction). Defendants themselves have struggled to offer a definitive

9 interpretation of their own regulation. At the hearing on Plaintiffs’ TRO motion, they could not

10 tell the Court whether an attorney could help fill out a form, Dkt. 39-1, at 58:1–59:8, or whether

11 answering a question at a legal aid clinic required the attorney to file an appearance, id. at 32:18–

12 33:24. Similarly, at the hearing on Plaintiffs’ preliminary injunction motion, Defendants could

13 not tell the Court whether providing guidance in the preparation of an asylum form would trigger

14 the notice of appearance requirement. Corning Decl. Ex. A at 35:19–40:10.

15

Defendants have also repeatedly sought to deflect responsibility for interpreting the Rule,

16 which further suggests there is no viable limiting construction here. First, Defendants suggested

17 that practitioners themselves should be responsible for defining the parameters of the Regulation

18 because their “knowledge and expertise distinguishing between providing legal advice and

19 providing legal information” is sufficient to define whether certain attorney speech triggers the

20 notice of appearance requirement. Dkt. 39-1, at 59:13–19. When that suggestion was rejected,

21 Defendants then tried to defer, repeatedly, to Defendant Jennifer Barnes, suggesting that the

22 Regulation requires “fact-specific” inquiries best left to her discretion. Corning Decl. Ex. A at

23 37:4–6 (whether providing guidance for an I-589 form constitutes preparation is a “fact-specific

24 questions that [Ms.] Barnes and the attorneys that work with her would be responsible for.”); id.

25 at 38:10–14 (defining when assistance with a form transitions from speech to legal advice “would

26 be extremely fact-specific, and you kind of have to see it to know when it crosses the line. That’s

27 what [Ms.] Barnes’ job is.”). The Court recognized this fallacy when it remarked to Defendants’

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1 counsel, “It causes grave confusion, doesn’t it, for practitioners to know what is in Ms. Barnes’

2 mind or how she’s going to interpret it. There is no further definitions, clarifications or

3 explanations in the process.” Id. at 40:21–24. Defendants have not resolved this fatal flaw.

4

After repeatedly failing to pass the interpretive buck, first to practitioners and then to Ms.

5 Barnes, Defendants now want the Court to bail them out by rewriting the Regulation for them.

6

The Court should decline this invitation.

7

b. Defendants’ Inconsistent Interpretations Demonstrate the

Regulation Cannot Be Given a Narrowing Construction.

8

Even if the Court were inclined to task itself with narrowing the Regulation, Defendants’

9

inconsistent interpretations of the Regulation show that the Regulation is not “readily susceptible”

10

to a narrowing construction. See United States v. Nat’l Treasury Emps. Union, 513 U.S. 454,

11

479, n.26 (1995) (noting that a statute is not “readily susceptible” to a narrowing construction if

12

Congress has sent inconsistent signals as to where the line or lines should be drawn). When the

13

Regulation was adopted in 2008, the agency’s representative—the local court administrator—

14

agreed NWIRP could comply with the Regulation and disclose its assistance with pro se filings by

15

including a statement that NWIRP prepared or assisted in the filing. Dkt. 1 ¶ 3.11; Dkt. 38 ¶ 5.

16

But, in 2011, EOIR sent a memo to a third party indicating that, in providing assistance with

17

paperwork during a one-on-one meeting, practitioners cannot “advise the individual on how to

18

answer a question based on a participant’s particular factual situation and the applicable law”

19

without filing a notice of appearance in order to comply with the Regulation. Dkt. 14-2, at 6. The

20

Memo also stated that practitioners could only provide information that is “non-specific to any

21

particular individual’s case” and cover “general areas of law and procedure…in general terms”

22

without filing a notice of appearance. Id. at 2–3. Then, in late 2016, Defendant Jennifer Barnes

23

suggested during a conference call with NWIRP attorneys that NWIRP’s workshops intended to

24

assist unrepresented individuals fill out asylum applications—a quintessential out-of-court

25

activity—could violate the Regulation. Dkt. 54 ¶¶ 2–3; Dkt. 47, at 8; Dkt. 49 ¶ 49.

26

Not only are EOIR’s past interpretations of the Regulation inconsistent, its interpretations

27

in this litigation have been equally inconsistent. For example, during the hearing on Plaintiffs’

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1 TRO motion, EOIR stated that the Regulation does not bar NWIRP from making statements at

2 community workshops or legal clinics, “so long as they [NWIRP] don’t cross the line to actually

3 providing advice and auxiliary activity.” Dkt. 36, at 57:14–22. Then, in opposing Plaintiffs’

4 preliminary injunction motion, Defendants again changed their interpretation of the Regulation,

5 contending it applied only to “activities by which someone speaks to or interacts with the

6 immigration court either through in-person or written discourse.” Dkt. 47, at 12. Now, in their

7 Motion to Dismiss, Defendants again change their interpretation, suggesting—without any

8 authority or meaningful guidance—that the notice of appearance requirement extends only to “in9 court speech.” Dkt. 67, at 16.3

10

Defendants’ inability to pick and stick to a single interpretation shows that no valid

11 narrowing construction exists.

12

c. The Regulation Cannot Be Narrowed to Restrict Only In-Court

Speech Unless Completely Redrafted.

13

Defendants’ suggestion that the Court interpret the Regulation to encompass only “in-

14

court speech,” Dkt. 67, at 16, would require the Court to rewrite the Regulation in a way that is

15

precluded by its plain language. A statute or regulation is not “readily susceptible” to a narrowing

16

construction if it needs to be rewritten to conform to constitutional standards. See Virginia v.

17

American Booksellers Ass’n, 484 U.S. 383, 397 (1988). Moreover, the Court cannot adopt an

18

interpretation of a statute if that interpretation conflicts with or is precluded by its plain language.

19

S.O.C., Inc. v. Cty. of Clark, 152 F.3d 1136, 1144 (9th Cir. 1998).

20

The plain language of the Regulation requires a notice of appearance whenever a

21

practitioner “has engaged in practice or preparation.” 8 C.F.R. § 1003.102(t)(1). The term

22

preparation is expansively defined to encompass the “study of the facts of a case and the

23

applicable laws, couple with the giving of advice and auxiliary activities.” 8 C.F.R. § 1001.1(k).

24

This definition does not limit the study, advice, or auxiliary activities to only those activities

25

26

3 Defendants’ new “in-court speech” limiting principle appears to be a marked shift from their previous reliance

on the far more stringent prohibitions set out in their guidance memorandum, Dkt. 14-2, as reaffirmed in the
27 declarations of various agency personnel, Dkts. 49 & 50, and at the TRO hearing, Dkt. 36, at 57:14–22; 58:6–13;
58:25–59:19.

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1 involving or culminating in “in-court speech.” The only way such activities could be limited to

2 in-court speech would be if the Court grafted new words into the statute—words that conflict with

3 the existing plain language. This is not construction; it is wholesale rewriting.

4

Moreover, even if it could be done, grafting a “in court” limitation into the Regulation

5 would still violate the First Amendment. Defendants admit they interpret “in-court speech” to

6 cover such limited services as assisting persons in deportation proceedings with completing forms

7 and basic requests for relief. If the Regulation requires NWIRP to file a notice of appearance and

8 binds it to take on the entire case each time it offers these limited services, it will no longer have

9 the capacity to offer such services at all. The Regulation would continue to bar NWIRP from

10 “advocating lawful means of vindicating legal rights.” Button, 371 U.S. at 437.

11

4. Plaintiffs’ Facial Challenges to the Regulation Are Not Barred by the

Statute of Limitations.

12

Defendants claim the statute of limitations bars Plaintiffs’ facial challenges. Apparently,

13

Defendants believe they can interpret a regulation in an unconstitutional manner and threaten

14

disciplinary sanctions, and, as long as they wait at least six years after enactment before engaging

15

in such conduct, the statute of limitations will shield them from judicial review. Unsurprisingly,

16

neither the case law they cite nor the case law they ignore supports their position.

17

To obtain a dismissal on statute of limitations grounds, the defendant carries the burden

18

of “establishing the absence of a genuine issue of fact” with regard to the statute of limitations.

19

Lehman Bros. Holdings, Inc. v. Evergreen Moneysource Mortg. Co., 793 F. Supp. 2d 1189, 1197

20

(W.D. Wash. 2011). Defendants cannot meet this burden here because (1) facial First

21

Amendment challenges to a regulation are never barred by a statute of limitations; and (2) even if

22

they were, Plaintiffs’ facial challenges were brought within the limitations period.

23

a. The Statute of Limitations in 28 U.S.C. § 2401(a) Does Not Apply to

24

Facial Challenges for Vagueness and Overbreadth Under the First

Amendment.

25

Plaintiffs’ facial challenge rests on the vagueness and overbreadth in the text of the

26

Regulation. See Dkt. 1 ¶ 5.3; Dkt. 2, at 13–14; see also Dkt. 66, at 11 (concluding the

27

“Regulation is not only too broad, it is impermissibly vague.”). Facial First Amendment

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1 challenges are intended to remedy “a continuing injury based upon the statute’s on-going effect

2 on protected speech.” Santa Fe Springs Realty Corp. v. City of Westminster, 906 F. Supp. 1341,

3 1364–65 (C.D. Cal. 1995) (“[S]trong policy reasons militate in favor of permitting facial 4 challenges to statutes that impinge upon protected First Amendment rights ….”).4 “[V]agueness

5 in the law is particularly troubling when First Amendment rights are involved.” Farrell v. Burke,

6 449 F.3d 470, 485 (2d Cir. 2006). A vague law—like the Regulation here—“may trap the

7 innocent by not providing fair warning,” and it “impermissibly delegates basic policy matters” to

8 those charged with enforcement “on an ad hoc and subjective basis, with the attendant dangers of

9 arbitrary and discriminatory application.” Grayned v. City of Rockford, 408 U.S. 104, 108–09

10 (1972). In the First Amendment context, a vague regulation is intolerable because it “operates to

11 inhibit the basic exercise of [First Amendment] freedoms,” which “inevitably lead[s]” those it

12 affects “to steer far wider of the unlawful zone … than if the boundaries of the forbidden areas

13 were clearly marked.” Id. (internal quotation marks omitted).

14

Against this backdrop, Defendants cite no actual authority for the proposition that the

15 statute of limitations bars a facial First Amendment challenge, particularly one based on the

16 vagueness or overbreadth of a law. Defendants’ careful selection of dicta from easily

17 distinguishable cases actually illustrates the flaw in their argument. For example, the claims in

18 both Wind River Mining Corp. v. United States, 946 F.2d 710, 714–16 (9th Cir. 1991), and

19 Francois v. Johnson, 2014 WL 1613932, at *4 (D. Ariz. April 22, 2014), involved allegations of

20

21

4 To prevail on their facial challenge, Plaintiffs do not need to show—as with non-First Amendment facial

challenges—that there are “no set of circumstances” in which the Regulation could be lawful. The “no set of

22 circumstances” test for facial challenges, which is traceable to “dictum” in United States v. Salerno, 481 U.S. 739,
745 (1987)—and which has since been questioned, City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999)—does

23

not apply to facial First Amendment challenges for vagueness and overbreadth. Salerno, 481 U.S. at 745 (if statute has both valid and invalid applications, this “is insufficient to render [the statute] wholly invalid, since we have not

24

recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment”) (emphasis added); see also Hotel & Motel Ass’n of Oakland v. City of Oakland, 344 F.3d 959, 971 (9th Cir. 2003) (Salerno’s “no set of

25

circumstances” test applies to “facial challenge[s] outside the context of the First Amendment”). Facial First Amendment challenges are exempt from this stringent test because vague speech restrictions pose an ongoing and

persistent harm to all who could fall subject to it, irrespective of whether the statute could be applied lawfully in a
26 particular circumstance. See Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013). This is why

Plaintiffs, to prevail on their facial First Amendment challenge, need only show that the challenged law “reaches a
27 substantial amount of constitutionally protected conduct.” Cal. Teachers Ass'n v. State Bd. of Educ., 271 F.3d 1141,
1149 n.7 (9th Cir. 2001) (internal quotation marks omitted), as the Regulation does here.

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1 erroneous agency decision-making, not facially unconstitutional enactments. Similarly, the

2 claims in both Shiny Rock Mining Corp. v. United States, 906 F.2d 1362, 1364 (9th Cir. 1990),

3 and Oksner v. Blakely, 2007 WL 3238659, at *6 (N.D. Cal. Oct. 31, 2007), involved allegations

4 that an agency exceeded its authority in promulgating a rule or regulation, as opposed to

5 allegations of facial unconstitutionality within the rule or regulation itself. This distinction is key,

6 as courts have occasionally dismissed as untimely procedural challenges to a regulation, but not

7 First Amendment challenges to the same regulation. See, e.g., Preminger v. Sec’y of Veterans

8 Affairs, 517 F.3d 1299, 1318 (Fed. Cir. 2008).

9

A vague or overbroad speech restriction can always be challenged on First Amendment

10 grounds, irrespective of any limitations period, because the restraint poses ongoing and

11 continuous harm. A number of courts in the Ninth Circuit have expressly held that statutes of

12 limitations do not apply to First Amendment facial challenges precisely because of this ongoing

13 harm. See Napa Valley Publ’g Co. v. City of Calistoga, 225 F. Supp. 2d 1176, 1184 (N.D. Cal.

14 2002) (statute of limitations “does not apply to the facial challenge of a statute that infringes First

15 Amendment freedoms as such a statute inflicts continuing harm”); 3570 East Foothill Blvd., Inc.

16 v. City of Pasadena, 912 F. Supp. 1268, 1278 (C.D. Cal. 1996) (“[A] statute that, on its face,

17 violates the First Amendment’s guarantee of free speech inflicts a continuing harm. Either a

18 person is punished for speaking or refrains from speaking for fear of punishment. The harm

19 continues until the statute is either repealed or invalidated.”); Summit Media, LLC v. City of Los

20 Angeles, 530 F. Supp. 2d 1084, 1090 (C.D. Cal. 2008) (“The statute of limitations does not apply

21 to the facial challenge of a statute that infringes First Amendment freedoms as such a statute

22 inflicts a continuing harm.”). While not reaching the ultimate issue, the Ninth Circuit has

23 “express[ed] serious doubts that a facial challenge under the First Amendment can ever be barred

24 by a statute of limitations.” Maldonado v. Harris, 370 F.2d 945, 955 (9th Cir. 2004). Other

25 Circuits have expressed the same doubts. See Nat'l Advert. Co. v. City of Raleigh, 947 F.2d 1158,

26 1168 (4th Cir. 1991) (“[I]t is doubtful that an ordinance facially offensive to the First Amendment

27 can be insulated from challenge by a statutory limitations period . . . .”). Defendants point to no

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1 case in which a court dismissed a facial First Amendment challenge on the basis of the statute of

2 limitations.

3

As the Court previously concluded, the Regulation is “impermissibly vague,” and has “a

4 distinct potential for dampening the kind of ‘cooperative activity that would make advocacy of

5 litigation meaningful,’ as well as for permitting discretionary enforcement against unpopular

6 causes.” Dkt. 66, at 11 (quoting In re Primus, 436 U.S.412, 433 (1978)). This harm will persist

7 “until the statute is either repealed or invalidated.” 3570 East Foothill Blvd., 912 F. Supp. at

8 1278. The statute of limitations does not insulate the Regulation from this Court’s review.

9

b. Even If Plaintiffs’ Facial Challenges Were Subject to the Statute of

Limitations, the Claims Are Timely.

10

Even if Plaintiffs’ facial challenges were subject to the statute of limitations (they are not)

11

EOIR erroneously contends that the limitations period began to run in 2008, when the Regulation

12

was enacted and published in the federal registrar. Not so.

13

“Under federal law, a claim accrues when the plaintiff knows or has reason to know of

14

the injury which is the basis of the action.” Maldonado, 370 F.3d at 955 (quoting Knox v. Davis,

15

260 F.3d 1009, 1013 (9th Cir. 2001)). In the context of facial challenges to statutes and

16

regulations outside of the takings context, the plaintiff’s injury “does not occur until the statute ‘is

17

enforced’” against the plaintiff. Carson Harbor Village Ltd. v. City of Carson, 37 F.3d 468, 476

18

n.7 (9th Cir. 1994), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133,

19

1136 (9th Cir. 1997).

20

The case of Scheer v. Kelly, 817 F.3d 1183, 1188 (9th Cir. 2016), cert. denied, 137 S. Ct.

21

240 (2016), is particularly instructive. In Scheer, an attorney alleged that the California State

22

Bar’s disciplinary rules were facially unconstitutional because they did not provide for

23

meaningful judicial review. The State Bar moved to dismiss, arguing that the attorney’s claim

24

was untimely because it was filed more than two years (the applicable limitations period) after the

25

rule was enacted. Id. at 1186. The Ninth Circuit rejected the State Bar’s argument, holding that

26

the limitations period did not begin to run until the California Supreme Court, citing the State

27

Bar’s rules, denied the attorney’s petition for review. Id. at 1188. The Court noted that while the

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1 existence of the rule “might have arguably put [the attorney] ‘on notice’ of the State Bar’s alleged

2 violations in some sense, as she was a lawyer at the time,” the attorney did not “know[] or ha[ve]

3 reason to know of the actual injury” until the State Bar’s rule was enforced against her by the

4 California Supreme Court. Id.

5

Here, the earliest possible point that Plaintiffs knew or had reason to know of the

6 Regulation’s injurious effect was April 13, 2017. That was the date NWIRP received a letter

7 from Defendant Barnes, which instructed it to “cease and desist from representing aliens unless

8 and until the appropriate Notice of Entry of Appearance form is filed,” and which threatened

9 discipline if NWIRP failed to do so. Dkt. 1 ¶ 3.14; Dkt. 8-1. Until that letter, Plaintiffs did not

10 know or have reason to know that Defendants would enforce the Regulation to prevent NWIRP

11 from offering limited legal services

12

To the extent Defendants believe Plaintiffs knew or should have known of the injury

13 caused by the Regulation prior to April 2017, it does not affect the limitations period. The statute

14 of limitations for Plaintiffs’ facial challenges starts anew each day Defendants seek to enforce the

15 statute. Wallace v. New York, 40 F. Supp. 3d 278, 302 (E.D.N.Y. 2014) (“[T]he clock on any

16 challenge to the constitutionality of a statute, whose continued application works an ongoing

17 constitutional violation, starts to run anew, every day that the statute applies.”). In Kuhnle

18 Brothers, Inc. v. County of Geauga, 103 F.3d 516, 518, 521–22 (6th Cir. 1997), the Sixth Circuit

19 held that a due process claim challenging a law that restricted access by trucks to a particular

20 county road was timely despite Ohio’s two-year statute of limitations. Although the claim was

21 brought “more than two years after” the enactment of the law, it was brought “less than two years

22 after” the law ceased to apply. Id. at 518. The court concluded that the law barred the plaintiff

23 from “using the roads in question on an ongoing basis, and thus actively deprived [the plaintiff] of

24 its asserted constitutional rights every day that it remained in effect. Id. at 522 (emphasis added);

25 see also Maldonado, 370 F.3d at 955–56 (holding that a First Amendment challenge to a

26 California statute on outdoor advertising was not time-barred, because the “continuing

27 enforcement of the statute” permitted the plaintiff “to raise a facial challenge to the statute at any

PLFS.’ OPP’N TO DEFS.’ MOTION TO DISMISS (No. 2:17-cv-00716-RAJ) – 18

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Case 2:17-cv-00716-RAJ Document 75 Filed 08/28/17 Page 26 of 31

1 time”); Va. Hosp. Ass’n v. Baliles, 868 F.2d 653, 663 (4th Cir. 1989), aff’d sub nom Wilder v. Va.

2 Hops. Ass’n, 496 U.S. 498 (1990) (agreeing with the district court that, since its enactment,

3 Virginia’s “current reimbursement plan” perpetrated an “ongoing” violation of the supremacy and

4 due process clauses, and, thus, the applicable limitations period “would not have begun to run

5 until the violation ended”). Thus, despite Defendants’ contention that Plaintiffs should have been

6 aware of the injury at the time of enactment, the limitations period effectively restarted when 7 Defendant Barnes sent NWIRP a cease-and-desist letter in April 2017.5

8

Even if the Court were to find that the limitations period began running at the time of the

9 Regulation’s enactment, and that it has never restarted (which is essentially what Defendants

10 argue), the Court should still decline to dismiss on statute-of-limitations grounds. Because the

11 limitations provision in 28 U.S.C. § 2401(a) “is not jurisdictional,” it is subject to “traditional

12 exceptions such as equitable tolling, waiver, and estoppel.” Cedars-Sinai Med. Ctr., 125 F.3d at

13 770. As alleged in Plaintiffs’ Complaint, when the Regulation was first adopted, NWIRP met

14 with EOIR’s local administrator, who agreed that NWIRP could comply with the Regulation by

15 merely disclosing its assistance with pro se filings by including a statement that NWIRP prepared 16 or assisted in the filing.6 Dkt. 38 ¶ 5. At a minimum, this raises factual questions of whether the

17 statute of limitations should be tolled based on Defendants’ representations to NWIRP. Thus,

18 even if the Court adopts Defendants’ position that the limitations period began in 2008, factual

19 issues preclude dismissal at this stage of the proceedings.

20 B. Plaintiffs State a Tenth Amendment Claim Because the Regulation Restricts Conduct Beyond the Limited Forum Defendants Can Permissibly Regulate.
21 Plaintiffs have already briefed, extensively, the validity of their Tenth Amendment
22 claims. See Dkt. 2, at 16–21; Dkt. 21, at 7–9; Dkt. 37, at 15–19; Dkt. 52, at 14–15. Because of
23 the vastly different standards and burdens required in seeking a preliminary injunction, as
24

25

5 Even if the Court were to start (and not reset) the limitations period at the date EOIR issued its LOP memorandum that proscribed various forms of limited legal assistance, that memo is dated July 11, 2011. See Dkt.

14-2, at 1. As a result, even under this rigid formulation, Plaintiffs’ claims would still be timely.

26

6 This practice was accepted by EOIR without objection for eight years until April 2017. Dkt. 38 ¶ 5. EOIR

complains there is no “document or written agreement memorializing” this understanding, but does not dispute it.
27 Dkt. 47, at 4. At no time did EOIR indicate that Ms. Barnes’s approval was necessary; nor was there any reason for

Plaintiffs to assume it was needed.

PLFS.’ OPP’N TO DEFS.’ MOTION TO DISMISS (No. 2:17-cv-00716-RAJ) – 19

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1 opposed to a motion to dismiss, the fact that the Court did not grant a preliminary injunction on

2 Plaintiffs’ Tenth Amendment claims is not dispositive. See United States v. Arizona, 2010 WL

3 11405085, at *6 (D. Ariz. Dec. 10, 2010) (the standard for determining a likelihood of success is

4 more stringent that the standard for determining whether plaintiffs have stated a claim); compare

5 Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (preliminary injunction requires a

6 likelihood of success on the merits) with Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007)

7 (motion to dismiss requires the court to assume the truth of the complaint’s factual allegations and

8 all reasonable inferences arising from those allegations).

9

The Court has concluded—and Defendants do not contest—that the “licensing and

10 regulation of lawyers has been left exclusively to the States.” Leis v. Flynt, 439 U.S. 438, 442

11 (1979); see Dkt. 66, at 12. When the federal government intrudes upon the States’ exclusive

12 “responsib[ility] for the discipline of lawyers,” Leis, 439 U.S. at 442, it must do so with narrow

13 precision. Defendants assert that EOIR, as a federal agency, has “the inherent power to regulate

14 legal practice before” it. Dkt. 67, at 29 (citing Sperry v. State of Fla. ex rel. Fla. Bar, 373 U.S.

15 379, 383–84 (1963)). This is generally true—but only so long as such regulation is limited to

16 practice before the agency.

17

But, here, EOIR’s Regulation is not limited to conduct that constitutes “practice before”

18 the agency. Instead, the Regulation imposes a burdensome compulsory-representation

19 requirement whenever a licensed practitioner engages in “study of the facts of a case and the

20 applicable laws, coupled with the giving of advice and auxiliary activities.” 8 C.F.R. § 1001.1(k).

21 Neither the text of the Regulation nor EOIR’s interpretation of it limits the agency’s disciplinary

22 reach to just the advice-giving activities that occur after a practitioner appears before the agency.

23 Indeed, the giving of legal advice customarily occurs within the private confines of an attorney-

24 client relationship, not before the agency, and occasionally before an appearance is ever entered.

25 Defendants cite no authority (and there is none) that permits them, in the guise of regulating

26 practice before the agency, to reach more broadly and regulate routine attorney conduct outside of

27 agency proceedings.

PLFS.’ OPP’N TO DEFS.’ MOTION TO DISMISS (No. 2:17-cv-00716-RAJ) – 20

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1

Defendants also fundamentally misread Sperry. Sperry concerned the narrow issue of

2 whether a nonlawyer, when explicitly authorized to practice as a patent agent before the U.S.

3 Patent & Trademark Office, could do so in spite of the Florida bar’s efforts to restrict practice of

4 law by nonlawyers. 373 U.S. at 381–82. Relying on the long history of nonlawyer practice

5 before the Patent Office and the overwhelming necessity of continuing that practice, the Court

6 found it “implicit … that registration in the Patent Office confers a right to practice before the

7 Office without regard to whether the State within which the practice is conducted would

8 otherwise prohibit such conduct.” Id. at 388. Thus, Sperry stands for the unremarkable

9 proposition that a federal agency may, in its own limited forum, authorize non-lawyers to perform

10 certain activities irrespective of a state’s general power to regulate unlicensed practice of law.

11 More broadly, though, Sperry reaffirmed that the regulation of the practice of law is “a matter

12 otherwise within the control of the State.” Id. at 403–04.

13

This case is precisely the inverse of Sperry. Here, a federal agency (EOIR) seeks to

14 effectively prohibit (not permit) unbundled legal advice that is otherwise allowed (not forbidden)

15 by the relevant state bar association. And while that advice might (but need not necessarily)

16 pertain to some aspect of a current immigration proceeding, the advice occurs entirely outside of

17 that proceeding—in a private setting. Neither Sperry nor any other case gives Defendants the

18 power they have arrogated to themselves to control a lawyer’s general practice of law when the

19 lawyer has not appeared and submitted herself to the agency’s jurisdiction in a particular matter.

20

Defendants rely on a false dichotomy in characterizing Plaintiffs’ Tenth Amendment

21 claims. They frame these claims as presenting an intractable conflict between the agency’s

22 nationwide “rules governing practice before the immigration courts” and the “professional

23 conduct rules … of one state.” Dkt. 67, at 21–22. According to Defendants, the States’ power to

24 regulate the practice of law must always yield to the federal government’s “uniform national set

25 of rules,” id. at 21, and EOIR remains free to regulate practitioners differently than Washington

26 State. Whether true or not, this misses the point. Plaintiffs’ Tenth Amendment claims do not

27

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1 require the Court to decide whose ethics rules reign supreme. The issue here is precisely how far

2 EOIR can regulate without encroaching upon the States’ power to regulate the practice of law.

3

Even assuming EOIR has the general power to regulate practitioners who appear before

4 it, the scope of that regulation must be reasonably related to EOIR’s legitimate interest in

5 controlling the proceedings before it. No serious argument can be made that EOIR’s power to

6 regulate practitioners allows EOIR to regulate practitioners on matters that, while affecting the

7 practitioner, do not concern the proceedings before the agency. EOIR could not, for example, use

8 its authority to preclude immigration practitioners from practicing other areas of law, nor could it

9 fix the rates those practitioners charge for their services or limit the amount of time practitioners

10 spend advising clients. EOIR’s power to regulate practitioners is not unchecked. To the extent

11 EOIR purports to reach conduct beyond its own proceedings and govern more generally the

12 practice of law—the confidential communication between and the advice from a lawyer to a

13 client—it reaches too far.

14

Here, EOIR has reached well beyond the confines of “practice before” the agency,

15 encroaching upon the general regulation of the practice of law—a power reserved to the states.

16 At most, Defendants have successfully “blurred the line,” Dkt. 66, at 11, about the exact conduct

17 they seek to regulate, by claiming the Regulation applies “only to in-court activities.” Dkt. 67, at

18 21–24. For purposes of this motion, the scope of the Regulation and the agency’s (ever-shifting)

19 interpretation of it is a factual question must be resolved in Plaintiffs’ favor. See Rowe v. Educ.

20 Credit Mgmt. Corp., 559 F.3d 1028, 1029–30 (9th Cir. 2009).

21

V. CONCLUSION

22

For the reasons discussed above, Defendants fail to meet their burden, and their Motion

23 to Dismiss should be denied.

24

25

26 ///
27

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Case 2:17-cv-00716-RAJ Document 75 Filed 08/28/17 Page 30 of 31

1

DATED this 28th day of August, 2017.

2

DAVIS WRIGHT TREMAINE LLP

3

Attorneys for Northwest Immigrant Rights Project

4

By s/ James Harlan Corning

5

Michele Radosevich, WSBA #24282

Jaime Drozd Allen, WSBA #35742

6

James Harlan Corning, WSBA #45177

Robert E. Miller, WSBA #46507

7

Laura-Lee Williams, WSBA #51358

1201 Third Avenue, Suite 2200

8

Seattle, WA 98101-3045

Telephone: (206) 622-3150

9

Fax: (206) 757-7700

E-mail: micheleradosevich@dwt.com

10

jaimeallen@dwt.com

jamescorning@dwt.com

11

robertmiller@dwt.com

lauraleewilliams@dwt.com

12

13

NORTHWEST IMMIGRANT RIGHTS

PROJECT

14

Matt Adams, WSBA #28287

Glenda M. Aldana Madrid, WSBA # 46987

15

Leila Kang, WSBA #48048

615 2nd Avenue, Suite 400

16

Seattle, WA 98104-2244

Phone: (206) 957-8611

17

Fax: (206) 587-4025

E-mail: matt@nwirp.org

18

glenda@nwirp.org

leila@nwirp.org

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Case 2:17-cv-00716-RAJ Document 75 Filed 08/28/17 Page 31 of 31

1

CERTIFICATE OF SERVICE

2

I hereby certify that on the date below, I filed the foregoing with the Clerk of the Court

3 using the CM/ECF system, which will send notification of such filing to all counsel of record.

4

DATED this 28th day of August, 2017.

5

s/ James Harlan Corning

6

James Harlan Corning, WSBA #45177

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PLFS.’ OPP’N TO DEFS.’ MOTION TO DISMISS (No. 2:17-cv-00716-RAJ) – CERTIFICATE OF SERVICE

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 Case 2:17-cv-00716-RAJ Document 77 Filed 09/01/17 Page 1 of 19

Hon. Richard A. Jones
1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

8

9 NORTHWEST IMMIGRANT RIGHTS

Case No. 2:17-cv-00716

10 PROJECT (“NWIRP”), a nonprofit

Washington Public benefit corporation; and 11 YUK MAN MAGGIE CHENG, an individual, DEFENDANTS’ REPLY IN SUPPORT OF
THEIR MOTION TO DISMISS

12

Plaintiff,

13
v.
14
JEFFERSON B. SESSIONS III, in his official 15 capacity as Attorney General of the United
States; UNITED STATES DEPARTMENT 16 OF JUSTICE; EXECUTIVE OFFICE FOR 17 IMMIGRATION REVIEW; JAMES
MCHENRY, in his official capacity as Acting 18 Director of the Executive Office for
Immigration Review; and JENNIFER
19
BARNES, in her official capacity as 20 Disciplinary Counsel for the Executive Office
for Immigration Review,
21
Defendants.
22

23

24

25

26

DEFENDANTS REPLY IN SUPPORT OF THEIR MOTION TO DISMISS (Case No. 2:17-cv-716)
-1-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 77 Filed 09/01/17 Page 2 of 19

1

TABLE OF CONTENTS

2

3
ARGUMENT ...................................................................................................................................1
4
I. Plaintiffs’ claims under the First Amendment should be dismissed. .................................1
5

6

a. This Court’s ruling on the Plaintiffs’ motion for preliminary injunction was a

preliminary ruling and is not binding on this Court as the law of the case..............1

7

b. Plaintiffs urge this Court to imagine a sweeping interpretation of Rule 102(t) that
8
has never been applied by EOIR, solely for purposes of bolstering their First

9

Amendment Claim ...................................................................................................2

10

c. Rule 102(t) is reasonable in light of the purpose it serves, and is viewpoint neutral;

11

Plaintiffs misapprehend the test applicable to nonpublic forums ............................6

12

d. To the extent there is any question about the scope of Rule 102(t), the Court should

adopt a narrowing construction consistent with the agency’s own application of the

13

Rule ..........................................................................................................................7

14

II. EOIR’s regulation of immigration court practitioners’ is permitted under the Tenth

15

Amendment and cause undue conflict with Washington’s power to regulate

lawyers ..............................................................................................................................10

16

CONCLUSION ..............................................................................................................................12
17

18

19

20

21

22

23

24

25

26

DEFENDANTS’ REPLY IN SUPPORT OF

THEIR MOTION TO DISMISS

(Case No. 2:17-cv-716)

-i-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 77 Filed 09/01/17 Page 3 of 19

TABLE OF AUTHORITIES
1

2

CASES

3 Berrigan v. Sigler, 499 F.2d 514 (D.D.C. 1974) ........................................................................................................ 2
4
Cal. Teachers Ass’n v. State Bd. of Educ.,
5
271 F.3d 1141 (9th Cir. 2001) ..................................................................................................... 9
6
Canatella v. Stovitz, 7 365 F. Supp. 2d 1064 (N.D. Cal. 2005) ....................................................................................... 8

8
City of Angoon v. Hodel, 9 803 F.2d 1016 (9th Cir.1986) ...................................................................................................... 1

10 DeBartolo Corp., v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 11 485 U.S. 568 (1988)..................................................................................................................... 7

12 Dent v. Holder, 627 F.3d 365 (9th Cir. 2010) ....................................................................................................... 7
13
14 Dunn-McCampbell Royalty Interest, Inc. v. National Park Service, 112 F.3d 1283 (5th Cir. 1997) ................................................................................................... 10
15
Gadda v. Ashcroft, 16 377 F.3d 934 (9th Cir. 2004) .................................................................................................. .1, 3
17
Golden State Transit Corp. v. City of Los Angeles, 18 754 F.2d 830 (9th Cir. 1985) .................................................................................................... .10
19 Koden v. U.S. Dep’t of Justice, 20 564 F.2d 228 (7th Cir. 1977) ............................................................................................... 10, 11

21 Preminger v. Peake, 552 F.3d 757 (9th Cir. 2008) ................................................................................................... 6, 7
22
23 Romero v. U.S. Dep’t. of Justice, 556 F. App’x 365 (5th Cir. 2014) .............................................................................................. 10
24
25 Sperry v. Florida ex. rel. Florida Bar, 373 U.S. 379 (1963)............................................................................................................. 10, 11
26
Swarmer v. United States, 937 F.2d 1478 (9th Cir. 1991) ..................................................................................................... 6

DEFENDANTS’ REPLY IN SUPPORT OF

THEIR MOTION TO DISMISS

(Case No. 2:17-cv-716)

-ii-

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Case 2:17-cv-00716-RAJ Document 77 Filed 09/01/17 Page 4 of 19

United States v. Arizona, 1 2010 WL 11405085 (D. Ariz. Dec. 10, 2010) ......................................................................... 2, 3
2

3
United States v. Houser, 4 804 F.2d 565 (9th Cir. 1986) ....................................................................................................... 2
5 United States v. Smith, 6 389 F.3d 944 (9th Cir. 2004) ....................................................................................................... 2
7 University of Texas v. Camenisch, 451 U.S. 390 (1981)......................................................................................................... 1, 2, 3, 4
8
9 Zal v. Steppe, 968 F. 2d 924 (9th Cir. 1992) ...................................................................................................... 8
10
STATUTES
11

12
8 U.S.C. § 1103(g) ........................................................................................................................ 12
13
8 U.S.C. § 1362......................................................................................................................... 4, 12
14
28 U.S.C. § 530B ............................................................................................................................ 7
15

16

17

REGULATIONS

18 8 C.F.R. § 1001.1(i) ........................................................................................................................ 8

19 8 C.F.R. § 1001.1(k) ................................................................................................................... 8, 9

20
8 C.F.R. § 1003.102(t) ....................................................................................................... 1, passim
21
8 C.F.R. § 1003.16(b) ..................................................................................................................... 4
22
23 8 C.F.R. § 2635.101 ........................................................................................................................ 7

24

FEDERAL REGISTER

25 23 Fed. Reg. 2,670 ........................................................................................................................ 11

26 65 Fed. Reg. 39,513 ........................................................................................................................ 7

73 Fed. Reg. 44,178 ........................................................................................................................ 6

DEFENDANTS’ REPLY IN SUPPORT OF

THEIR MOTION TO DISMISS

(Case No. 2:17-cv-716)

-iii-

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Case 2:17-cv-00716-RAJ Document 77 Filed 09/01/17 Page 5 of 19

73 Fed. Reg. 76,914 .................................................................................................................. 6, 10
1
2 73 Fed. Reg. 76,917 ........................................................................................................................ 7

3 73 Fed. Reg. 76,918 ...................................................................................................................... 10

4

MISCELLANEOUS

5
Wash. R. Prof. Conduct 1.2 .......................................................................................................... 12
6

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20

21

22

23

24

25

26

DEFENDANTS’ REPLY IN SUPPORT OF

THEIR MOTION TO DISMISS

(Case No. 2:17-cv-716)

-iv-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
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Case 2:17-cv-00716-RAJ Document 77 Filed 09/01/17 Page 6 of 19

1

This Court should grant Defendants’ motion to dismiss Plaintiffs’ complaint. This

2 Court’s ruling on the preliminary injunction is not binding as law of the case because of its

3 preliminary nature. Furthermore, the Court should reject Plaintiffs’ invitation to read 8 C.F.R.

4 § 1003.102(t) i more broadly than the Executive Office for Immigration Review (“EOIR”) has

5 ever done. Rather, any concerns this Court has regarding the constitutionality of the agency’s

6 regulations should be addressed by engaging in a narrow construction of the statute as

7 consistently proposed by Defendants. Indeed, 8 C.F.R. § 1003.102(t) is amenable to a narrow

8 reading that avoids constitutional concerns because it can and should be read as applying to

9 speech conducted either in person or via filings with the immigration court or the Board of

10 Immigration Appeals (“Board”). This regulation is viewpoint neutral and reasonable in light of

11 the forum’s need to promote quality in the representation of respondents in immigration court

12 proceedings. Lastly, the regulation does not violate the Tenth Amendment because EOIR has the

13 inherent and statutory power to regulate the practice of immigration law, including the conduct

14 of any practitioners before it, nor does the regulation in fact conflict with state rules.

15 Consequently, this Court should dismiss Plaintiffs’ Complaint for lack of jurisdiction and for

16 failure to state a claim upon which relief may be granted.

17

ARGUMENT

18 I.
19

Plaintiffs’ claims under the First Amendment should be dismissed. a. This Court’s ruling on the Plaintiffs’ motion for preliminary injunction was

20

a preliminary ruling and is not binding on this Court as the law of the case.

21

While Plaintiffs’ first argue that the “law-of-the-case” doctrine precludes the Court from

22 revisiting issues addressed in its Order granting Plaintiffs’ Motion for Preliminary Injunction,

23 Pls.’ Resp., at 4; see ECF No. 66, Plaintiffs ignore overwhelming authority holding that

24 decisions on preliminary injunctions do not constitute binding “law of the case.” See University

25 of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (“the finding of fact and conclusions of law

26 made by a court granting a preliminary injunction are not binding at trial on the merits”); City of

Angoon v. Hodel, 803 F.2d 1016, 1024 n. 4 (9th Cir.1986) (determinations corresponding to a

preliminary injunction do not constitute the law of the case); Golden State Transit Corp. v. City

DEFENDANTS’ REPLY IN SUPPORT OF

THEIR MOTION TO DISMISS

(Case No. 2:17-cv-716)

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Case 2:17-cv-00716-RAJ Document 77 Filed 09/01/17 Page 7 of 19

1 of Los Angeles, 754 F.2d 830, 832 n. 3 (9th Cir.1985) (“As a general rule, decisions on

2 preliminary injunctions do not constitute law of the case and parties are free to litigate the

3 merits.”) (internal quotations omitted), rev’d on other grounds, 475 U.S. 608 (1986); see also

4 Berrigan v. Sigler, 499 F.2d 514, 519 (D.D.C. 1974) (“The decision of a trial . . . court to grant

5 or deny a preliminary injunction does not constitute the law of the case for purposes of further

6 proceedings and does not limit or preclude the parties from litigating the merits . . .”).

7

The cases Plaintiffs cite to invoke the “law of the case” doctrine are inapposite. See Pls.’

8 Resp. at 4-5 (citing United States v. Arizona, 10–cv-1413, 2010 WL 11405085, at *6 (D. Ariz.

9 Dec. 10, 2010); and United States v. Smith, 389 F.3d 944, 948 (9th Cir. 2004); and United States

10 v. Houser, 804 F.2d 565, 567 (9th Cir. 1986)). Neither Smith nor Houser involved a ruling on a

11 motion for preliminary injunction, and in any event, in both cases the Ninth Circuit declined to

12 apply the law of the case doctrine. See Smith, 389 F.3d at 948-49 (“[A] district court may

13 reconsider its prior rulings so long as it retains jurisdiction over the case.”); Houser, 804 F.2d

14 567-69 (noting “that the doctrine is discretionary, not mandatory,” and that “[a]ll rulings of a

15 trial court are subject to revision at any time before the entry of judgment” (internal quotation

16 marks omitted)). In Arizona, an unpublished district court decision, the court decided on a Rule

17 12(b)(6) motion not to revisit issues on which plaintiff had already demonstrated a likelihood of

18 success, but even in doing so echoed the Supreme Court’s holding that law of the case did not

19 apply to preliminary injunction determinations. 2010 WL 11405085, at *6 (quoting Camenisch,

20 451 U.S. at 395). In sum, the law of the case doctrine does not preclude this Court from

21 analyzing anew whether Plaintiffs have failed to state a claim on which relief can be granted.

22

b. Plaintiffs urge this Court to imagine a sweeping interpretation of Rule 102(t)

23

that has never been applied by EOIR, solely to bolster their First

24

Amendment claim.

25

Plaintiffs argue that Defendants have attempted to “[r]estrict [their] [o]ut-of-[c]ourt

26 [s]peech to [p]otential [c]lients.” Pls.’ Resp. at 5. But as discussed in Defendants’ Motion to

Dismiss, the Complaint fails to allege a single instance in which EOIR has applied Rule 102(t) to

communications – either written or oral – that were not actually presented to an immigration

DEFENDANTS’ REPLY IN SUPPORT OF

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Case 2:17-cv-00716-RAJ Document 77 Filed 09/01/17 Page 8 of 19

1 court. See Defs.’ Mot. at 14-15. Indeed, EOIR’s April 5, 2017 letter cited two specific motions

2 to reopen apparently authored by NWIRP staff, and it is undisputed that both of these motions

3 were filed in immigration court. Compl. at ¶ 3.15-17.

4

In their Response, Plaintiffs cite this Court’s Order granting their Motion for Preliminary

5 Injunction, wherein the Court expressed skepticism about whether Rule 102(t) would apply only

6 to in-court statements. ECF No. 66, 11, n. 5 (“Attorneys who speak in such a forum – that is, as

7 a representative inside the courtroom – have presumably filed a notice of appearance.”), id., is

8 perfectly consistent with Defendants’ position. Indeed, EOIR’s application of Rule 102(t) is

9 aimed precisely at enforcing this commonsense presumption but with one important clarification

10 – that attorneys may “speak in a forum” through written as well as oral communication and

11 therefore must file an appearance when directly communicating to a court by either means. To

12 the extent that the Court suggested nonpublic forum analysis only applies to statements made

13 within the physical confines of a courtroom, Defendants urge the Court to reconsider this

14 position. As discussed in Defendants’ Motion to Dismiss, “[c]ourts have routinely held that

15 nonpublic forum analysis applies to rules that govern an attorney’s oral or written statements to a

16 court.” See Defs.’ Mot. at 13 (citing cases). Insofar as written pleadings are almost always

17 prepared outside the physical confines of a courtroom, the cases cited in Defendants’ Motion to

18 Dismiss establish that nonpublic forum analysis extends to statements directed to a court,

19 regardless of the physical space in which those statements are authored. Id. Upsetting this

20 delicate balance would affect practice before Article III courts – not just immigration courts. Id.

21

In their effort to re-interpret Rule 102(t) to better suit their constitutional claims,

22 Plaintiffs also mischaracterize Defendants’ position. See Pls.’ Resp. at 6. Contrary to what

23 Plaintiffs assert, Defendants do not take the position that Rule 102(t) applies to “self-help

24 workshops, individual consultations, and asylum workshops.” See id. As long as the individual

25 conducting these activities does not submit written statements to the immigration court, they are

26 free to engage in all of those activities without filing a notice of appearance. As Defendants have

repeatedly stated, EOIR only applies Rule 102(t) to statements made out of court (in a physical

sense) if they presented to an immigration court – thus constituting in-court speech. By focusing

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1 on various scenarios, such as self-help workshops, individual consultations, and asylum

2 workshops, to which EOIR has never applied Rule 102(t), Plaintiffs obfuscate the real issue:

3 whether nonpublic forum analysis governs documents that are prepared for and actually filed in

4 immigration court - the exact in-court speech that led to the April 5, 2017 letter.

5

Plaintiffs’ effort to mischaracterize the scope of Rule 102(t) also relies on the Legal

6 Orientation Program (“LOP”) memorandum that Defendants attached to their Opposition to

7 Plaintiffs’ Motion for Temporary Restraining Order. See Pls.’ Resp. at 6 (citing ECF No. 14-2).

8 As explained in Defendants’ previous filings, the purpose of the LOP memorandum was to

9 ensure that organizations receiving LOP funding1 use that funding to provide legal orientation,

10 rather than legal representation, as directed by law.2 ECF No. 14 at 5; see ECF No. 14-2 (citing

11 8 U.S.C. § 1362, and 8 C.F.R. § 1003.16(b)). The LOP memorandum plainly states that

12 practitioners may indeed participate in many of the activities that Plaintiffs claim are at risk, all

13 without filing a notice of appearance. See ECF No 14-2 (explaining that activities which

14 generally do not require entry of an appearance include: group orientations, individual

15 orientations, distribution of materials, self-help workshops, assistance in obtaining documents,

16 and assistance in completing legal forms).

17

Plaintiffs nevertheless cite several passages from the memo out of context in an attempt

18 to suggest that EOIR has read the regulations defining “practice” and “preparation” to cover out

19 of court speech. Pls.’ Resp. at 6. The LOP addresses activities for which a provider may use

20 program funds without triggering representation while the regulation addresses conduct that

21 reaches an immigration court or the Board and therefore triggers the requirement to file a notice

22 of appearance before the appropriate forum. These passages do not support the reading Plaintiffs

23 imply. For example, the language in the memorandum Plaintiffs cite regarding “direct

24 preparation of an individual’s papers” should be read in concert with the next section,

25 “Assistance in Obtaining Documents,” which states that “LOP presenters may assist . . . in

26 obtaining personal documents (such as medical or criminal conviction records) under LOP

1 Plaintiff Northwest Immigrant Rights Project receives LOP funding for its work as LOP provider at the Northwest Detention Center in Tacoma, Washington. See ECF No. 50 at ¶ 64. 2 The LOP memorandum does not prohibit organizations from advocating on behalf of their clients; instead it provides guidance so that program funds are used for their intended purpose. Id.

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1 funding.” ECF No. 14-2 (emphasis added). Reading these sections together, it is evident that

2 “direct preparation of an individual’s papers” refers to authorship of documents to be filed in

3 immigration court, and not merely to assistance with obtaining or organizing papers. While

4 preparing documents to be filed in immigration court is not compensable under the LOP, it is

5 important to note that under Rule 102(t) the preparer would not be required to file a notice of

6 appearance unless and until the document is filed with the immigration court or Board. Plaintiffs

7 also cite a portion of Steven Lang’s Declaration out of context. See Pls.’ Resp. at 6 (citing ECF

8 No. 50, at ¶ 68). In the memo, Lang quotes from part of the LOP memorandum he authored and

9 notes that practitioners should be “careful not to give legal advice concerning [an] individual’s

10 specific case, see ECF No. 14-2, at 4. The next sentence of the LOP memorandum, however,

11 goes onto clarify that representation occurs when a practitioner prepares a filing for immigration

12 court. ECF No. 14-2, at 4 (emphasis added) (representation “does not occur unless the legal

13 representative (1) studies the fact of the case, (2) gives legal advice, and (3) performs other 14 activities, such as the preparation of forms or a brief for the Immigration Court.”3)

15

In any event, given the purpose of the LOP memorandum – ensuring that government

16 funds are used for “legal orientation” and not representation – it makes sense that the document

17 conservatively cautions LOP providers to avoid scenarios that begin to approach “legal

18 representation.” ECF No. 14-2, at 2 (“The purpose of this memo is to provide guidance in

19 distinguishing between services considered ‘legal representation’ and those considered ‘legal

20 orientation’ for individuals providing contract services through the . . . Legal Orientation

21 Program. The LOP memorandum nevertheless serves to clarify that practitioners may proceed

22 with many of the activities Plaintiffs claim are in jeopardy – self-help workshops, individual 23 consultations, assistance in completing forms – without the filing of a notice of appearance.4

24

25 3 The LOP memorandum goes on to state that while all three of these elements are necessary in order to constitute representation under federal regulations, “[p]roviding even one of these three services . . . may lead to circumstances
26 in which an attorney-client relationship is created under local state bar rules.” ECF No. 14-2, at 4. 4 Plaintiffs also claim that “Defendant Barnes initially contacted NWIRP because she believed NWIRP’s practice of hosting pro se asylum workshops violated the Regulation.” See Pls.’ Resp. at 6. Plaintiffs did not allege this fact in their Complaint, and instead offered only a vague allegation that “Defendant Barnes stated that EOIR’s regulations limit organizations, including nonprofit organizations, from assisting pro se individuals in filling out asylum applications.” Compl. at ¶ 3.13.

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1

c. Rule 102(t) is reasonable in light of the purpose its serves, and is viewpoint

2

neutral; Plaintiffs misapprehend the test applicable to nonpublic forums.

3

While Plaintiffs ostensibly argue that Rule 102(t) “fails to pass muster” even under

4 nonpublic forum analysis, they arrive at this result only by largely ignoring the test that applies

5 in nonpublic forum cases and resorting instead to intermediate scrutiny. See Pls.’ Resp. at 8-10.

6 As Plaintiffs seemingly acknowledge, a regulation that governs a nonpublic forum survives a

7 First Amendment challenge if it is reasonable in light of the purpose served by the forum, and

8 viewpoint neutral. Pls.’ Resp. at 8-9; see Defs.’ Mot. at 18-20.

9

Plaintiffs’ argument as to why Rule 102(t) is not reasonable in light of the purpose served

10 by the forum is simply that “the regulation is not narrowly tailored to achieve its own ends,” and

11 that “a less burdensome self-identification requirement would equally serve its purported need.”

12 Pls.’ Resp. at 8-9. Defendants offered numerous reasons why Rule 102(t) addresses a

13 “legitimate need.” See Defs.’ Mot. at 8-10, 18-20; Preminger v. Peake, 552 F.3d 757, 766 (9th

14 Cir. 2008) (noting that under nonpublic forum analysis, the restriction “must reasonably fulfill ‘a

15 legitimate need’”). Plaintiffs do not appear to contest any of these points. See Pls.’ Resp. at 8-9.

16 Rather, Plaintiffs simply argue that Rule 102(t) is not reasonable because there may be less

17 restrictive means of accomplishing the same result. Id. The Ninth Circuit has clearly held that

18 for purposes of nonpublic forum analysis, “the restriction need not constitute the least restrictive

19 alternative available.” Preminger, 552 F.3d at 766 (emphasis added) (citing Swarmer v. United

20 States, 937 F.2d 1478, 1482 (9th Cir. 1991)). Plaintiffs’ suggestion that EOIR’s objectives could

21 be served “by far less intrusive requirements” is thus inapposite. See Pls.’ Resp. at 9.

22

Plaintiffs similarly misread binding precedent with respect to whether the regulation is

23 “viewpoint neutral.” Pls.’ Resp. at 9-10. “[I]n a nonpublic forum, the government has the right

24 to make distinctions in access on the basis of subject matter and speaker identity, as long as the

25 distinctions are not an effort to suppress expression merely because public officials oppose the

26 speakers view.” Preminger, 552 F.3d at 767 (emphasis added). While Plaintiffs suggest in their

response that Rule 102(t) is not viewpoint neutral because it applies only to non-government

practitioners, their Complaint in no way alleges that the regulation was somehow devised as a

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1 means of suppressing expression by immigration attorneys. See generally, Compl. In any event,

2 the rationale behind Rule 102(t) is well-documented in the Federal Register, as Defendants have

3 described. See Defs.’ Mot. at 8-10 (citing 73 Fed. Reg. 76,914 (Dec. 18, 2008), and 73 Fed. Reg.

4 44,178 (July 30, 2008)). Nothing there remotely suggests that the regulation is “an effort to

5 suppress expression merely because public officials oppose the speaker’s view.” Preminger,

6 552 F.3d at 767. To the extent that government lawyers are subject to different ethical rules, that

7 difference is attributable to their different role as public servants subject to state ethics rules,

8 federal and agency regulations, and not to the viewpoints they may express in court. See, e.g., 28

9 U.S.C. § 530B (imposing regulation of government attorneys); 8 C.F.R. § 2635.101 et seq.

10 (government ethics regulations); 8 C.F.R. § 1003.109 (providing for referral of government

11 attorneys accused of ethical violations); 73 Fed. Reg. at 76,917 (discussing regulation of

12 government attorneys); 65 Fed. Reg. 39,522 (same). Indeed, by Plaintiffs’ logic, any rule in any

13 court that applies differently for government attorneys could be challenged as a form of

14 “viewpoint discrimination.”

15

d. To the extent there is any question about the scope of Rule 102(t), the Court

16

should adopt a narrowing construction consistent with the agency’s own

17

application of the Rule.

18

As stated in Defendants’ Motion to Dismiss, “the doctrine of constitutional avoidance

19 requires [the Court] to construe [a] statute [or] regulation, if possible, to avoid a serious

20 constitutional question.” Defs.’ Mot. at 16 (citing Dent v. Holder, 627 F.3d 365, 375 (9th Cir.

21 2010)). Accordingly, the Supreme Court has held that “every reasonable construction must be

22 resorted to, in order to save a statute from unconstitutionality.” DeBartolo Corp., v. Fla. Gulf

23 Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).

24

Plaintiffs’ primary arguments as to why this Court should not adopt a narrowing

25 construction are based primarily on the allegations that Defendants have offered inconsistent

26 interpretations of the regulation. See Pls.’ Resp. at 11-13. Defendants disagree with this assessment,5 but the issue is ultimately a distraction. Plaintiffs offered no authority for the

5 In their effort to portray Defendants’ position as “inconsistent,” Plaintiffs rely in large part on statements made by Defendants’ counsel at a Temporary Restraining Order hearing conducted nine days after the filing of the

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1 position that a Court’s obligation to consider a reasonably available narrowing construction

2 diminishes if the government offers varying interpretations of a statute or regulation. See Pls.

3 Resp. at 11-13.

4

The only relevant test – as Plaintiffs acknowledge– is whether the regulation is “readily

5 susceptible” to a narrowing construction. Pls.’ Resp. at 12. To the extent this Court has

6 concerns about the scope of Rule 102(t), the Court can avoid the vast majority of these concerns

7 by construing the rule to apply only to speech – either oral or written communication – that is

8 directed to the immigration court or the Board. As explained above and in Defendants’ Motion

9 to Dismiss, courts have routinely held that First Amendment protections apply more narrowly in

10 the context of speech – whether written or oral – that is actually presented to a court. See Defs.’

11 Mot. at 13 (citing Canatella v. Stovitz, 365 F. Supp. 2d 1064, 1071 (N.D. Cal. 2005), and Zal v.

12 Steppe, 968 F. 2d 924, 925-29 (9th Cir. 1992). Accordingly, construing Rule 102(t) in the 13 manner suggested above would necessarily reduce the degree to which the rule affects First

14 Amendment protected speech.

15

Notwithstanding Plaintiffs’ argument to the contrary, see Pls.’ Resp. at 13-14,

16 interpreting Rule 102(t) so that it applies only to speech that is directed to the immigration court

17 or the Board is fully consistent with the language of the regulations. As explained in

18 Defendants’ Motion to Dismiss (and Defendants’ Opposition to the Plaintiffs’ Motion for

19 Preliminary Injunction, see ECF No. 47, at 12) the term “practice” includes a built-in limitation

20 in that it only applies to appearances “before . . . any immigration judge, or the Board.” Defs’.

21 Mot. at 13-14 (citing 8 C.F.R. § 1001.1(i)). Plaintiffs urge the Court to adopt an expansive

22 reading of the term “preparation,” as set forth in 8 C.F.R. § 1001.1(k), to encompass all forms of

23 “study, advice, or auxiliary activities,” regardless of whether any materials are ever filed in

24

25 Complaint. Pls.’ Mot. at 11-13. It is entirely reasonable to expect that Defendants would be able to better articulate their position in later filings, after having additional time to review how the regulations in question have been
26 applied in practice by the agency. Moreover, even at that early hearing, Defendants’ counsel stated on several occasions that it was the presentation of materials to the immigration court that triggers the notice of appearance requirement. See e.g., ECF No. 39-1, at 34:22 – 35:3 (“NWIRP is still allowed to consult with individuals, to provide know-your-rights presentations, they can still prepare forms, they can still engage in many of the average activities that they want to engage in so long as they don’t engage in acts that constitute providing advice and providing actual assistance that is to be presented before the immigration court.”) (emphasis added).

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1 immigration court or with the Board. Pls.’ Resp. at 14. But the Court need not “graft[] new

2 words into the [regulation]” in order to limit its scope. Id. Rather, the Court need only recognize

3 that the term being defined at 8 C.F.R. § 1001.1(k) is not simply “preparation,” but “preparation,

4 constituting practice.” Indeed, as explained in Defendants’ previous filings, a careful reading of

5 the regulatory definitions of “practice” and “preparation, constituting practice” leads to the

6 reasonable conclusion that the regulations only extend to those practitioners whose activities

7 result in communications presented to the immigration court or the Board. See ECF No. 47, at

8 12 (explaining how the terms “practice” and “preparation” should be read in concert).

9

Plaintiffs also suggest that Defendants’ narrowing construction is not viable because of

10 uncertainty about when assistance with completing an asylum form triggers a notice of

11 appearance requirement. Pls.’ Resp. at 11-12. However, the regulations allow assistance with

12 the preparation of materials to be filed before the immigration court without triggering the notice

13 of appearance requirement. 8 C.F.R. § 1001.1(k). Defendants’ counsel did acknowledge during

14 the Preliminary Injunction hearing that application of this exception is often fact-specific because

15 an individual assisting with an asylum form could conceivably populate blank spaces on an

16 asylum form with legal arguments, which could trigger a notice of appearance requirement. Pls.’

17 Resp., Ex. A, at 36:5-12 (ECF No. 76-1). Nevertheless, the fact-specific nature of these

18 determinations is not the “fatal flaw” that Plaintiffs allege in their Response. Pls.’ Resp. at 12.

19 “[U]ncertainty at a statute’s margins will not warrant facial invalidation if it is clear what the

20 statute proscribes in the vast majority of its intended applications.” Cal. Teachers Ass’n v. State

21 Bd. of Educ., 271 F.3d 1141, 1151 (9th Cir. 2001). In this case, the narrowing construction

22 proposed by Defendants makes it clear when a notice of appearance is required in the vast

23 majority of situations: those who author briefs and motions must file a notice of appearance. On

24 the other hand, the notice of appearance requirement does not apply to those who simply offer

25 assistance via self-help workshops and know your rights presentations, as well as those who

26 offer basic clerical assistance with completing asylum forms.

In sum, the narrowing construction proffered by Defendants is reasonable in light of the

regulatory language, and would avoid the vast majority of the Constitutional concerns raised by

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1 Plaintiffs. The Court should construe the regulations in this constitutionally adequate manner,

2 and should reject Plaintiffs’ invitation to purposely reach for a constitutionally suspect 3 interpretation. This Court should therefore dismiss Counts I and II of Plaintiffs’ Complaint.6

4 II. EOIR’s regulation of immigration court practitioners is permitted under the Tenth

5

Amendment and causes no undue conflict with Washington’s power to regulate

6

lawyers.

7

Under the Tenth Amendment, the federal government has the ability to regulate practice

8 before the immigration courts, including regulation of admission to practice and the conduct of

9 practitioners. Plaintiffs rely on an extremely narrow reading of case law and EOIR authority to

10 regulate immigration court practice. The case law does not support such a reading.

11

EOIR, as the federal administrator of the immigration court system, has the inherent and

12 statutory authority to regulate the practice of immigration practitioners before its tribunals. See

13 Defs.’ Mot. at 21 (collecting statutory authority); see also ECF 66, at 13 (this Court stated

14 “Congress may authorize agencies to regulate attorneys appearing before them”). Consequently,

15 Plaintiffs’ narrow interpretation of EOIR’s authority to regulate immigration practitioners is

16 inconsistent with Supreme Court precedent. Sperry v. Florida ex. rel. Florida Bar, 373 U.S.

17 379, 385 (1963) (“A State may not enforce licensing requirements which, though valid in the

18 absence of federal regulation, give the State’s licensing board a virtual power of review over the

19 federal determination that a person or agency is qualified and entitled to perform certain

20 functions, or which impose upon the performance of activity sanctioned by federal license

21 additional conditions not contemplated by Congress.”). In other words, Sperry recognizes that

22 the state cannot interfere with a federal agency’s power to regulate practice before its federal

23
6 Plaintiffs inaccurately suggest that Defendants “wait[ed] at least six years after enactment” of Rule 102(t) before 24 ever seeking to enforce it. Pls.’ Resp. at 14. As Plaintiffs are well aware, EOIR has issued warning letters under
Rule 102(t) in many instances dating back to at least 2012. See ECF No. 49-3, 49-7. Plaintiffs’ argument that “they 25 did not have reason to know that Defendants would enforce the Regulation to prevent NWIRP from offering limited
legal services” is also problematic. Pls. Resp. at 18. First, the document that Plaintiffs’ repeatedly cite as evidence 26 for EOIR’s “new” broad interpretation is the previously discussed LOP memorandum, which was authored in
2011. ECF No. 14-2. More fundamentally, the Final Rule adopting section 1003.102(t) in 2008 explicitly declined one commenter’s suggestion that “the Department permit limited appearances.” See 73 Fed. Reg. 76,914, 76,918; Dunn-McCampbell Royalty Interest, Inc. v. National Park Service, 112 F.3d 1283, 1287 (5th Cir. 1997) (“On a facial challenge to a regulation, the [statute of] limitations period beings to run when the agency publishes the regulation in the Federal Register.”).

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1 forum, because the state of Washington only “maintains control over the practice of law within

2 its borders except to the limited extent necessary for the accomplishment of the federal

3 objectives.” Id. at 402 (emphasis added). In this case, such permissible federal regulation is of

4 immigration court practitioners, a field with nationwide and unique concerns. Def. Mot. at 21-22.

5 And, Plaintiffs’ narrow interpretation of EOIR’s authority to regulate immigration practitioners

6 is inconsistent with courts that have found EOIR’s regulation of the admission and conduct of

7 immigration practitioners permissible. Gadda v. Ashcroft, 377 F.3d 934, 944-45 (9th Cir. 2004)

8 (finding no conflict between EOIR attorney regulation and state regulation); Romero v. U.S.

9 Dep’t. of Justice, 556 F. App’x 365, 370 (5th Cir. 2014) (upholding EOIR authority to restrict

10 practice of law by foreign law graduates); Koden v. U.S. Dep’t of Justice, 564 F.2d 228, 230,

11 234, 235 (7th Cir. 1977) (stating that it is “elementary that any court or administrative agency

12 which has the power to admit attorneys to practice has the authority to disbar or discipline

13 attorneys” and finding that the immigration court has authority to regulate the conduct of

14 immigration practitioners, i.e. representation for a fee and methods of soliciting clients).

15

Plaintiffs attempt to distinguish Sperry by alleging that it only involved authorization to

16 practice, but not regulation of the conduct of practitioners. Pls.’ Resp. at 21. That distinction

17 misreads Sperry. Sperry upheld the authority of a federal agency under the Tenth Amendment to

18 regulate who can practice before the agency, what conduct those practitioners may engage in,

19 and whether practitioners do so competently. 373 U.S. at 383-84, 403-04; id. at 402 (Patent

20 Office insists “on the maintenance of high standards of integrity,” and failure to comply “may

21 result in suspension or disbarment”). Under the Tenth Amendment, EOIR could regulate 22 analogous conduct of immigration practitioners.7 Cf. Koden, 564 F.2d at 234 (attorney discipline

23 for immigration practitioners need not be “in connection with a proceeding pending” before the 24 legacy INS or Board).8

25
7 To the extent that Plaintiffs raise a “parade of horribles,” alleging that EOIR cannot claim authority to regulate 26 conduct beyond the confines of immigration court, Pls’ Resp. at 22, such fears are unfounded because the regulation
at issue applies to in-court activities. 8 Plaintiffs’ Tenth Amendment arguments, if accepted, ironically would also limit the ability of non-attorneys to practice before immigration courts on behalf of respondents. Def. Mot. at 22; see also 23 Fed. Reg. 2670 (Apr. 14, 1958). Such a result would have unintended consequences for Plaintiffs and other organizations that provide immigration-related services through accredited representatives. And it would limit out-of-state attorneys’ ability to

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1

Ultimately, Plaintiffs do nothing more than manufacture a conflict between Washington’s

2 rules authorizing (but not mandating) limited legal practice and EOIR’s rule requiring notices of

3 appearance. See Compl. ¶¶ 6.1-7.8. But there is no actual tension between these rules. While

4 Rule 1.2(c) of the Washington Rules of Professional Conduct permits limited representation, that 5 rule does not provide NWIRP with a carte blanche to engage in limited representation in any way 6 it sees fit – it merely permits such practice in state court when such practice is reasonable and 7 comports with other rules “and other law.” Wash. R. Prof. Conduct 1.2 cmt.8; see also id. 1.2(c) 8 & cmt. 7 (emphasizing that any limited representation must be reasonable and supported by 9 informed consent). And in fact, EOIR allows practitioners to limit their representation to 10 discrete aspects of immigration court proceedings by allowing notices of appearances to be filed 11 solely for bond proceedings or for appeals before the Board and by providing a mechanism – 12 which Plaintiffs do not allege to have tried – for withdrawing (and hence limiting) appearances. 13 Def. Mot. at 23 n.10. Any concern regarding the scope of Rule 102(t) can be resolved with a 14 narrowing construction of the statute. See supra Part I.d. The requirement of a notice of 15 appearance does not cause any undue conflict with Washington’s regulation of lawyers licensed 16 by that state. And even if it did, as this Court stated, “Congress authorized EOIR to regulate the 17 conduct of attorneys appearing before it. 8 U.S.C. §§ 1103(g), 1362. As such, EOIR may 18 regulate immigration practitioners. ECF No. 66 at 13. This Court should, therefore, dismiss 19 Counts III and IV for failure to state a claim upon which relief may be granted.

20

CONCLUSION

21

For the foregoing reasons, this Court should dismiss Plaintiffs’ Complaint.

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23

24

25

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practice immigration law in Washington. Id. Significantly, the implications of such an interpretation for regulation of practice before this Court, other Article III courts, and all federal administrative adjudicative bodies.

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Dated: September 1, 2017.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
WILLIAM C. PEACHEY Director Office of Immigration Litigation
GISELA A. WESTWATER Assistant Director
C. FRED SHEFFIELD GLADYS M. STEFFENS GUZMÁN Trial Attorneys
/s/ Victor M. Mercado-Santana VICTOR M. MERCADO-SANTANA Trial Attorney Civil Division, Office of Immigration Litigation United States Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-7001 Facsimile: (202) 616 -8962 victor.m.mercado-santana@usdoj.gov
Counsel for Defendants

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CERTIFICATE OF SERVICE
1
I hereby certify that on this date, I electronically filed the foregoing with the Clerk of
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3 Court using the CM/ECF system. I certify that all participants are CM/ECF users and that

4 service will be accomplished by the CM/ECF system.

5
Dated: September 1, 2017
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Respectfully submitted.
/s/ Victor M. Mercado-Santana
VICTOR M. MERCADO-SANTANA Trial Attorney Civil Division, Office of Immigration Litigation United States Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-7001 Facsimile: (202) 616 -8962 victor.m.mercado-santana@usdoj.gov

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Counsel for Defendants

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1

HONORABLE RICHARD A. JONES

2

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UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 9

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NORTHWEST IMMIGRANT

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RIGHTS PROJECT, et al.,

CASE NO. C17-716 RAJ

12

Plaintiffs,

ORDER

13

v.

14 JEFFERSON B SESSIONS, III, et al.,
15 Defendants.
16

17 I. INTRODUCTION
18 This matter comes before the Court on the Government’s Motion to Dismiss. Dkt.
19 # 67. Plaintiffs Northwest Immigrant Rights Project (“NWIRP”) and Yuk Man Maggie
20 Cheng (collectively, “Plaintiffs”) oppose the motion. Dkt. # 75. Having considered the
21 pleadings1 and balance of the record, the Court finds oral argument unnecessary. For the
22

23

24

1 The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run

around page limits and formatting requirements dictated by the Local Rules. See Local Rules W.D. Wash.

25 LCR 7(e). Moreover, several courts have observed that “citations are highly relevant in a legal brief” and

including them in footnotes “makes brief-reading difficult.” Wichansky v. Zowine, No. CV-13-01208-
26 PHX-DGC, 2014 WL 289924, at *1 (D. Ariz. Jan. 24, 2014). The Court strongly discourages the parties

from footnoting their legal citations in any future submissions. See Kano v. Nat’l Consumer Co-op Bank,
27 22 F.3d 899-900 (9th Cir. 1994).

ORDER- 1

Case 2:17-cv-00716-RAJ Document 79 Filed 12/19/17 Page 2 of 7

1 reasons set forth below, the Court GRANTS in part and DENIES in part the

2 Government’s motion.

3

II. BACKGROUND

4

On July 27, 2017, the Court entered a preliminary injunction barring the

5 Government from enforcing 8 C.F.R. § 1003.102(t) (“the Regulation”) on a nation-wide

6 basis. Dkt. # 66. In its Order, the Court detailed the likelihood that Plaintiffs would

7 succeed on the merits of their as-applied First Amendment challenge but showed

8 skepticism that Plaintiffs would succeed on their remaining claims. Id. The Government

9 now moves the Court to dismiss all Plaintiffs’ constitutional challenges to the Regulation.

10

III. LEGAL STANDARD

11

A. FRCP 12(b)(1)

12

Federal courts are tribunals of limited jurisdiction and may only hear cases

13 authorized by the Constitution or a statutory grant. Kokkonen v. Guardian Life Ins. Co.

14 of America, 511 U.S. 375, 377 (1994). The burden of establishing subject-matter

15 jurisdiction rests upon the party seeking to invoke federal jurisdiction. Id. Once it is

16 determined that a federal court lacks subject-matter jurisdiction, the court has no choice

17 but to dismiss the suit. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006); Fed. R. Civ.

18 P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction,

19 the court must dismiss the action.”).

20

A party may bring a factual challenge to subject-matter jurisdiction, and in such

21 cases the court may consider materials beyond the complaint. PW Arms, Inc. v. United

22 States, 186 F. Supp. 3d 1137, 1142 (W.D. Wash. 2016) (citing Savage v. Glendale Union

23 High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003); see also McCarthy v. United States,

24 850 F.2d 558, 560 (9th Cir. 1988) (“Moreover, when considering a motion to dismiss

25 pursuant to Rule 12(b)(1) the district court is not restricted to the face of the pleadings,

26 but may review any evidence, such as affidavits and testimony, to resolve factual disputes

27 concerning the existence of jurisdiction.”).

ORDER- 2

Case 2:17-cv-00716-RAJ Document 79 Filed 12/19/17 Page 3 of 7

1

B. FRCP 12(b)(6)

2

Fed. R. Civ. P. 12(b)(6) permits a court to dismiss a complaint for failure to state a

3 claim. The rule requires the court to assume the truth of the complaint’s factual

4 allegations and credit all reasonable inferences arising from those allegations. Sanders v.

5 Brown, 504 F.3d 903, 910 (9th Cir. 2007). A court “need not accept as true conclusory

6 allegations that are contradicted by documents referred to in the complaint.” Manzarek v.

7 St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The plaintiff must

8 point to factual allegations that “state a claim to relief that is plausible on its face.” Bell

9 Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). If the plaintiff succeeds, the complaint

10 avoids dismissal if there is “any set of facts consistent with the allegations in the

11 complaint” that would entitle the plaintiff to relief. Id. at 563; Ashcroft v. Iqbal, 556 U.S.

12 662, 679 (2009).

13

A court typically cannot consider evidence beyond the four corners of the

14 complaint, although it may rely on a document to which the complaint refers if the

15 document is central to the party’s claims and its authenticity is not in question. Marder v.

16 Lopez, 450 F.3d 445, 448 (9th Cir. 2006). A court may also consider evidence subject to

17 judicial notice. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

18

IV. DISCUSSION

19

A. Statute of Limitations

20

The Government cites 28 U.S.C. § 2401(a) for the principal that “every civil

21 action commenced against the United States shall be barred unless the complaint is filed

22 within six years after the right of action first accrues.” Dkt. # 67 at 20; 28 U.S.C.A. §

23 2401(a). The Government argues that Plaintiffs are barred from bringing facial

24 challenges to the constitutionality of the Regulation because they filed the Complaint

25 more than six years after the Regulation was adopted. Dkt. # 67 at 20-21.

26

The Ninth Circuit has “express[ed] serious doubts that a facial challenge under the

27 First Amendment can ever be barred by a statute of limitations.” Maldonado v. Harris,

ORDER- 3

Case 2:17-cv-00716-RAJ Document 79 Filed 12/19/17 Page 4 of 7

1 370 F.3d 945, 955 (9th Cir. 2004) (citing Nat’l Adver. Co. v. City of Raleigh, 947 F.2d

2 1158, 1168 (4th Cir. 1991). This Court joins the large number of other courts that find

3 that the “statute of limitations does not apply to the facial challenge of a statute that

4 infringes First Amendment freedoms as such a statute inflicts a continuing harm.” Napa

5 Valley Publ'g Co. v. City of Calistoga, 225 F. Supp. 2d 1176, 1184 (N.D. Cal. 2002).

6 Accordingly, the statute of limitations does not bar Plaintiffs from bringing a facial

7 challenge under the First Amendment.

8

Neither are Plaintiffs barred in this case from alleging a facial challenge under the

9 Tenth Amendment. The statute of limitations did not begin to run when the Regulation

10 was adopted, as the Government argues is the case. If the Court entertained the

11 Government’s line of reasoning, then any statute or regulation that has been around for

12 more than six years would be insulated from a facial challenge. Scheer v. Kelly, 817 F.3d

13 1183, 1188 (9th Cir. 2016). This cannot be how section 2401 operates. Instead, the

14 statute begins running when “the right of action first accrues.” 28 U.S.C. § 2401(a). This

15 coincides with “when a plaintiff ‘knows or has reason to know of the actual injury.’”

16 Scheer, 817 F.3d at 1188 (quoting Lukovsky v. City & Cty. of San Francisco, 535 F.3d

17 1044, 1051 (9th Cir. 2008)).

18

Plaintiffs allege that when the Regulation was adopted, “NWIRP agreed that it

19 would notify the court when it assisted with any pro se motion or brief by including a

20 subscript or other clear indication . . . that NWIRP had prepared or assisted in preparing

21 the motion or application.” Dkt. # 1 (Complaint) at ¶ 3.11. “This convention was

22 accepted[.]” Id. As such, Plaintiffs had no reason to know of an actual injury until they

23 received the cease and desist letter on April 13, 2017. Plaintiffs filed suit well within six

24 years of the letter. Therefore, section 2401 does not bar Plaintiffs from bringing their

25 facial challenge under the Tenth Amendment.

26

27

ORDER- 4

Case 2:17-cv-00716-RAJ Document 79 Filed 12/19/17 Page 5 of 7

1

B. First Amendment

2

Plaintiffs have stated claims for facial and as-applied challenges under the First

3 Amendment. In its prior Order, the Court offered in great detail why Plaintiffs as-applied

4 First Amendment challenge is likely to succeed. See Dkt. # 66 at 5-12.2 The Court finds

5 those determinations relevant and controlling in light of the parties’ pleadings on this

6 motion. To the extent the Government wishes the Court to reconsider those conclusions,

7 the Court declines. However, the Court will address any new arguments put forth by the

8 Government in their current motion.

9

1. The Government’s nonpublic forum argument

10

The Government argues that the Court should read the Regulation as only

11 affecting in-court speech, whether spoken or written. Dkt. # 67 at 21-24. This is a new

12 interpretation of the Regulation; redrafting Regulations to make them constitutionally

13 sound is not in the purview of the federal courts.

14

The Regulation requires attorneys to assume full representation if they have

15 engaged in practice or preparation. 8 C.F.R. § 1003.102(t). “Preparation” is subsumed

16 into “practice,” and, despite the Government’s new, narrowed approach, includes more

17 than just in-court speech. If the Regulation were as simple as the Government contends it

18 to be, it would clearly advise attorneys that they must file a notice of appearance if they

19 are appearing before the court, whether in person or through briefing.3 But the

20 Regulation is not so confined, which was evidenced by the Government during the

21

22

2 Plaintiffs urge the Court to use the law of the case doctrine to uphold its prior

determinations. Dkt. # 75 at 11. Though the Court found that Plaintiffs’ as-applied First 23 Amendment challenge was likely to succeed on the merits, it did not find similarly for any of the

24

remaining claims. But Plaintiffs do not concede that the Court should uphold the unfavorable findings under the same doctrine. Instead, Plaintiffs argue that those unfavorable findings could

25 be reversed here because “the fact that the Court did not grant preliminary injunction on [those claims] is not dispositive.” Id. at 27. This line of argument is disingenuous; Plaintiffs cannot

26 have it both ways. 3 This kind of clear language would make the Regulation similar to Rule 11, which the
27 Government cites as a model for the Regulation. See Dkt. # 67 at 27.

ORDER- 5

Case 2:17-cv-00716-RAJ Document 79 Filed 12/19/17 Page 6 of 7

1 hearing on Plaintiffs’ request for a preliminary injunction. Dkt. # 70 at 37 (in response to

2 the Court’s hypothetical examples, the Government stated the “these are fact-specific

3 questions that Jenny Barnes and the attorneys that work with her would be responsible

4 for.”); see also id. at 38 (responding that “you kind of have to see it to know when it

5 crosses the line.”). The Regulation’s terms are broad and vague such that attorneys

6 cannot decipher exactly when they have triggered the notice of appearance requirement.

7

The Court finds that the Regulation affects more than just in-court statements, and

8 results in chilling Plaintiffs’ speech.4 Moreover, the Court finds that a narrowing

9 construction is not feasible where the target of the Regulation—specifically, what exactly

10 the Government views to be “auxiliary activities” or “incidental preparation of papers”—

11 is always shifting. It appears, in this specific case and at this early stage in litigation, that

12 an attempt to narrow the Regulation would amount to rewriting the Regulation. Virginia

13 v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988) (finding that “the statute must

14 be ‘readily susceptible’ to the limitation; we will not rewrite a state law to conform it to

15 constitutional requirements.”); see also Foti v. City of Menlo Park, 146 F.3d 629, 639

16 (9th Cir. 1998), as amended on denial of reh’g (July 29, 1998) (“Although we must

17 consider the City’s limiting construction of the ordinance, we are not required to insert

18 missing terms into the statute or adopt an interpretation precluded by the plain language

19 of the ordinance.”). Accordingly, the Court finds that Plaintiffs have successfully alleged

20 in their Complaint both an as-applied and facial challenge under the First Amendment.

21

C. Tenth Amendment

22

In its prior Order, the Court detailed why Plaintiffs are unlikely to succeed on their

23 Tenth Amendment claims. Dkt. # 66 at 12-13. The Court finds that its analysis remains

24 appropriate in light of the parties’ pleadings on the motion to dismiss. To the extent that

25

26 4 The Court was not asked to find that Plaintiffs have a First Amendment right to assume
27 limited representation in immigration cases. As such, the Court makes no such determination.

ORDER- 6

Case 2:17-cv-00716-RAJ Document 79 Filed 12/19/17 Page 7 of 7

1 Plaintiffs wish the Court to reconsider those determinations, it declines. However, the

2 Court will address any new arguments that Plaintiffs make in favor of their Tenth

3 Amendment claims.

4

Plaintiffs aver that the Regulation “is not limited to conduct that constitutes

5 ‘practice before’ the agency” and therefore the Government exceeded its authority in

6 adopting this rule. Dkt. # 75 at 27. Plaintiffs further argue that the issue before the Court

7 is not whether Washington’s professional conduct rules interfere with the Government’s

8 professional conduct rules. Id. at 28. The Court disagrees. Plaintiffs conflate their First

9 and Tenth Amendment claims when they argue that the Regulation extends to conduct

10 beyond the agency. EOIR may regulate the conduct of attorneys appearing before it, and

11 it did so by promulgating the Regulation. Accordingly, the Regulation is aimed at those

12 who are practicing in the federal immigration courts. Whether the Regulation offends the

13 First Amendment is a separate issue from whether it offends the Tenth Amendment. As

14 to the former, this litigation will continue, as to the latter, the Court finds that Plaintiffs

15 failed to state such a claim.

16

V. CONCLUSION

17

For the foregoing reasons, the Court GRANTS in part and DENIES in part the

18 Government’s motion. Dkt. # 67.

19

Dated this 19th day of December, 2017.

20

21

A

22

23

The Honorable Richard A. Jones United States District Judge

24

25

26

27

ORDER- 7

 
 Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 1 of 20

1

The Honorable Richard A. Jones

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9
NORTHWEST IMMIGRANT RIGHTS 10 PROJECT (“NWIRP”), a nonprofit Washington
public benefit corporation; and YUK MAN 11 MAGGIE CHENG, an individual,

12

Plaintiffs,

No. 2:17-cv-00716-RAJ
NOTICE OF SETTLEMENT AND FILING OF SETTLEMENT AGREEMENT

13

v.

14 WILLIAM P. BARR, in his official capacity as
Acting Attorney General of the United States; et 15 al.,

16

Defendants.

17

18

Plaintiffs, Northwest Immigrant Rights Project (“NWIRP”) and Yuk Man Maggie

19 Cheng, respectfully file this Notice of Settlement with the Court and attach as Exhibit A the

20 fully executed Settlement Agreement signed by Plaintiffs and Defendants.

21 //

22

23 //

24

25 //

26

27 //
NOTICE OF SETTLEMENT AND FILING OF SETTLEMENT AGREEMENT (No. 2:17-cv-00716-RAJ) - 1
4837-7820-8404v.1 0201148-000002

Davis Wright Tremaine LLP
LAW OFFICES 920 Fifth Avenue, Suite 3300
Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 2 of 20

1 DATED this 17th day of April, 2019. 2 3 4 5 6 7 8 9 10 11 12

DAVIS WRIGHT TREMAINE LLP Attorneys for Plaintiffs Northwest Immigrant Rights Project and Yuk Man Maggie Cheng
By: s/ Jaime Drozd Allen Michele Radosevich, WSBA #24282 Jaime Drozd Allen, WSBA #35742 James Harlan Corning, WSBA #45177 Robert E. Miller, WSBA #46507 Laura-Lee Williams, WSBA #51358 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 Telephone: (206) 622-3150 Fax: (206) 757-7700 E-mail: micheleradosevich@dwt.com jaimeallen@dwt.com jamescorning@dwt.com robertmiller@dwt.com lauraleewilliams@dwt.com

13

NORTHWEST IMMIGRANT RIGHTS

14

PROJECT Matt Adams, WSBA #28287

15

Glenda M. Aldana Madrid, WSBA #46987 Leila Kang, WSBA #48048

16

615 Second Avenue, Suite 400 Seattle, WA 98104-2244

17

Phone: (206) 957-8611 Fax: (206) 587-4025

18

E-mail: matt@nwirp.org glenda@nwirp.org

19

leila@nwirp.org

20

21

22

23

24

25

26

27
NOTICE OF SETTLEMENT AND FILING OF SETTLEMENT AGREEMENT (No. 2:17-cv-00716-RAJ) - 2
4837-7820-8404v.1 0201148-000002

Davis Wright Tremaine LLP
LAW OFFICES 920 Fifth Avenue, Suite 3300
Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 3 of 20

1

CERTIFICATE OF SERVICE

2

I hereby certify that on the date below, I filed the foregoing with the Clerk of the Court

3 using the CM/ECF system, which will send notification of such filing to all counsel of record.

4

DATED this 17th day of April, 2019.

5

s/ Jaime Drozd Allen

6

Jaime Drozd Allen, WSBA #35742

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27
NOTICE OF SETTLEMENT AND FILING OF SETTLEMENT AGREEMENT (No. 2:17-cv-00716-RAJ) - 3
4837-7820-8404v.1 0201148-000002

Davis Wright Tremaine LLP
LAW OFFICES 920 Fifth Avenue, Suite 3300
Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax

Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 4 of 20
Exhibit A

Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 5 of 20

Hon. Richard A. Jones
1

2

3

4

5

6
UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

8

9 NORTHWEST IMMIGRANT RIGHTS

Case No. 2:17-cv-00716

10 PROJECT (“NWIRP”), a nonprofit Washington Public benefit corporation; and
11 YUK MAN MAGGIE CHENG, an individual, SETTLEMENT AGREEMENT

12

Plaintiff,

13

v.

14
WILLIAM P. BARR, in his official capacity 15 as Attorney General of the United States;
UNITED STATES DEPARTMENT OF 16 JUSTICE; EXECUTIVE OFFICE FOR 17 IMMIGRATION REVIEW; JAMES
MCHENRY, in his official capacity as 18 Director of the Executive Office for
Immigration Review; and PAUL 19 RODRIGUES, in his official capacity as 20 Disciplinary Counsel for the Executive Office
for Immigration Review,1
21
Defendants.
22

23

24

25

26

1 Under Rule 25(d) of the Federal Rules of Civil Procedure, William P. Barr, the Attorney General of the

United States is substituted for Jefferson B. Sessions III, and Paul Rodrigues, the current Disciplinary Counsel for

the Executive Office for Immigration Review, is substituted for former Disciplinary Counsel Jennifer Barnes.

SETTLEMENT AGREEMENT

P.O. Box 868 Ben Franklin Station

(Case No. 2:17-cv-716)

Washington, D.C. 20044

(202) 305-7181

-1-

4814-2732-6099v.4 0201148-000002

Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 6 of 20

1

2

Plaintiffs, the Northwest Immigrant Rights Project (“NWIRP”) and Yuk Man Maggie

3 Cheng, and Defendants, William P. Barr, in his official capacity as Attorney General of the

4 United States; the United States Department of Justice; the Executive Office for Immigration

5 Review (“EOIR”); James McHenry, in his official capacity as Director of EOIR; and Paul

6 Rodrigues, in his official capacity as Disciplinary Counsel for the Executive Office for

7 Immigration Review (collectively, “Parties”), hereby agree as follows:

8

WHEREAS, on May 8, 2017, Plaintiffs filed a Complaint for Declaratory and Injunctive

9 Relief against Defendants in Northwest Immigrant Rights Project et al. v. Sessions et al., No.

10 2:17-cv-00716 (W.D. Wash.) (the “Lawsuit” or “Litigation”), challenging Defendants’

11 application of 8 C.F.R. § 1003.102(t) (“Rule 102(t)”);

12

WHEREAS, on May 8, 2017, Plaintiffs filed a Motion for Temporary Restraining Order

13 barring Defendants from enforcing Rule 102(t) on a nationwide basis.

14

WHEREAS, on May 17, 2017, the Court entered a Temporary Restraining Order barring,

15 among other things, the Defendants from “(a) [e]nforcing the cease-and-desist letter, dated April

16 5, 2017 . . .; and (b) [e]nforcing or threatening to enforce 8 C.F.R. § 1003.102(t) against

17 Plaintiffs and all other attorneys under their supervision or control, or who are otherwise

18 associated with them.” The Court also “prohibit[ed] the enforcement of 8 C.F.R. § 1003.102(t)

19 during the pendency of this TRO on a nationwide basis.”

20

WHEREAS, on July 27, 2017, the Court in this Lawsuit entered a preliminary injunction

21 enjoining and restraining Defendants from:

22

“(a) enforcing the cease and desist letter, dated April 5, 2017, from Defendant Barnes and

23 EOIR’s Office of General Counsel to NWIRP; and

24

(b) enforcing or threatening to enforce 8 C.F.R. § 1003.102(t) against Plaintiffs and all

25 other attorneys under their supervision or control, or who are otherwise associated with them.”

26 The Court further ordered that “[t]he Preliminary Injunction is granted on a nationwide basis as

to any other similarly situated non-profit organizations who, like NWIRP, self-identify and

SETTLEMENT AGREEMENT (Case No. 2:17-cv-716)
-2-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

4814-2732-6099v.4 0201148-000002

Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 7 of 20

1 disclose their assistance on pro se filings,” and “prohibit[ed] the enforcement of 8 C.F.R.

2 § 1003.102(t) during the pendency of this preliminary injunction on a nationwide basis.”

3

WHEREAS, on December 19, 2017, the Court denied Defendants’ Motion to Dismiss

4 Plaintiff’s First Amendment claims and granted Defendants’ Motion to Dismiss Plaintiffs’ Tenth

5 Amendment claims;

6

WHEREAS, an amendment of Rule 102(t), the regulation that is the primary subject of

7 this Litigation, could render further litigation of this matter unnecessary under the terms of this

8 settlement;

9

WHEREAS, the Parties seek to reach an agreement that would permit Defendants

10 reasonable time to proceed with Rule Making in order to attempt to amend Rule 102(t);

11

WHEREAS, Defendants deny all liability with respect to this Lawsuit, deny that they

12 have engaged in any wrongdoing, deny the allegations in the Complaint, deny that they

13 committed any violation of law, deny that they acted improperly in any way, and deny liability of

14 any kind to the Plaintiffs, but have agreed to settle this Lawsuit in order to: (i) avoid the

15 substantial expense, inconvenience, and distraction of further protracted litigation; and (ii) take

16 actions that would potentially terminate this Lawsuit;

17

WHEREAS, the Parties participated in arm’s-length negotiations regarding a compromise

18 and settlement of this Lawsuit, including participating in a settlement conference with United

19 States Magistrate Judge Mary Alice Theiler, in order to settle all matters in dispute;

20

WHEREAS, the Parties acknowledge the benefits and risks of continuing on with

21 litigation and conclude that a settlement, as provided herein, is in each party’s respective best

22 interest;

23

THEREFORE, it is hereby STIPULATED AND AGREED, by and among the Parties,

24 through their respective attorneys, in consideration of the benefits flowing from the Agreement

25 to the Parties, that the Plaintiffs’ claims in this Lawsuit shall be compromised, settled, and

26 forever released, barred, and dismissed with prejudice, upon and subject to the following terms

and conditions:
SETTLEMENT AGREEMENT (Case No. 2:17-cv-716)
-3-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

4814-2732-6099v.4 0201148-000002

Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 8 of 20

1
I. DEFINITIONS
2
Wherever used in this Agreement, the following terms are defined as follows:
3
A. “Notice of Proposed Rule Making” or “NPRM” shall refer to any notice issued in
4
accordance with 5 U.S.C. § 553(b).
5
B. “Rule 102(t)” shall refer to 8 C.F.R. § 1003.102(t), as it exists on the date this Agreement
6
was signed.
7
C. “Agreement” or “Settlement Agreement” means this document.
8
D. “Rule Making” shall refer to the agency process for considering, formulating, amending,
9
or repealing a rule.
10
E. “Practitioner” shall refer to individuals authorized to practice before EOIR’s immigration
11
court or the Board of Immigration Appeals as permitted by 8 C.F.R. § 1292.1.
12

13
II.
14
A.
15
16
17
B.
18
19
20
C.
21
22
23
24
25
26

U.S. DEPARTMENT OF JUSTICE RULE MAKING Defendants agree that the U.S. Department of Justice (“DOJ”) will engage in the federal Rule Making process with the aim of amending Rule 102(t), the regulation that is the primary subject of this Litigation. DOJ will follow processes and procedures consistent with the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., and/or any statutory or constitutional provision that governs the process by which Rule 102(t) may be amended. The Parties acknowledge that during Rule Making, Plaintiffs will have a statutory right under the APA to comment on any NPRM published by the DOJ in the Federal Register. Plaintiffs may, if they so choose, exercise these rights. Nothing in this Agreement shall be construed to enlarge or restrict any right Plaintiffs may have to participate in the Rule Making. Conversely, nor do Plaintiffs have any obligation or expectation to exercise these rights.

SETTLEMENT AGREEMENT (Case No. 2:17-cv-716)
-4-
4814-2732-6099v.4 0201148-000002

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 9 of 20

1 III. 2 A.
3 4 5 6 7 8
9 B.
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

AGREEMENT TO STAY PROCEEDINGS DURING RULE MAKING In order to facilitate Defendants’ Rule Making, the Parties agree that they will jointly seek an order from the Court staying all proceedings for nine (9) months, pending DOJ’s publication of an NPRM in the Federal Register (“Publication Period”). The Parties recognize that the Court is not obligated to enter a stay of proceedings. If the Court declines to enter a stay, the provisions of this Agreement are null and void and the Parties may agree at each party’s discretion to a different amount of time for Defendants to publish an NPRM, or proceed with litigation. If Defendants have not published an NPRM 28 days before the conclusion of the Publication Period set forth in Section III.A, the Parties shall meet and confer in good faith no later than 14 days before the conclusion of that period to discuss the status of the NPRM and a proposed course of action. In these discussions, the Parties will discuss whether DOJ is likely to publish an NPRM, when that might occur, and whether to seek an additional stay of proceedings pending publication of an NPRM, or to resume litigation before the Court. 1. If Plaintiffs agree at that time, the Parties shall jointly move the Court for an
additional stay of no longer than 90 days (“First Extension Period”). At the conclusion of the First Extension Period, if Plaintiffs agree, the Parties may agree to seek a further stay of proceedings not longer than 30-days (“Second Extension Period”) for publication of an NPRM, and to file a corresponding joint motion with the Court. If the Court does not enter a stay after either the First Extension Period or Second Extension Period, the Parties may seek to amend the additional time sought by agreement. 2. If the Parties fail to reach an agreement on the course of action after the meet-andconfer described in the introductory paragraph of Section III.B., the stay before the Court shall be lifted and the Parties will proceed with litigation.

SETTLEMENT AGREEMENT (Case No. 2:17-cv-716)
-5-
4814-2732-6099v.4 0201148-000002

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 10 of 20

1 2 3 4
5 C.
6 7 8 9 10
11 D.
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

3. If at any time Defendants inform Plaintiffs that DOJ is unlikely to publish an NPRM to repeal or amend Rule 102(t) in accordance with the terms of this agreement, within fourteen (14) days of such notice, the Parties will inform the Court and recommend an appropriate case schedule to continue litigation.
Upon issuance of an NPRM within the Publication Period or within the First Extension Period or Second Extension Period provided for in Sections III.A and B, the Parties shall notify the Court, and jointly move for extension of the stay in order to facilitate the conclusion of Rule Making. After issuance of an NPRM, the Parties agree to seek to extend the stay through the comment period and for four (4) months following the close of the comment period (“Rule Enacting Period”). If Defendants have not published a final rule 28 days before the end of the Rule Enacting Period set forth in Section III.C, the Parties shall meet and confer in good faith no later than fourteen (14) days before the conclusion of that period to discuss the status of the final rule and a proposed course of action. In these discussions, the Parties will discuss, among other things, whether DOJ is likely to publish a final rule that achieves the standards set forth herein (see Section IV(A)), and whether to extend the stay of proceedings pending publication of a rule, or to resume litigation before the Court. 1. If the Parties agree that publication of a final rule that achieves the standards set
forth herein (see Section IV(A)) appears likely, the Parties shall jointly move the Court for an additional stay of no longer than 30 days (“Supplemental Rule Enacting Period”). 2. If the Parties fail to reach an agreement on the course of action after the meet-andconfer described in the introductory paragraph of Section III.D., the stay before the Court shall be lifted and the Parties will proceed with litigation. 3. If at any time following issuance of the NPRM, Defendants inform Plaintiffs that DOJ is unlikely to publish a final rule that achieves the standards set forth in

SETTLEMENT AGREEMENT (Case No. 2:17-cv-716)
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4814-2732-6099v.4 0201148-000002

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 11 of 20

1

Section IV.A, within fourteen (14) days of such notice, the Parties will inform the

2

Court and recommend an appropriate case schedule to continue the litigation.

3

4 IV. ISSUANCE OF FINAL RULE; EFFECT ON CLAIMS.

5 A. Plaintiffs agree to dismiss their Lawsuit if, at the conclusion of Rule Making, DOJ issues

6

a final rule that repeals Rule 102(t) or takes other agency action that is consistent with, or

7

achieves the following:

8

1. Elimination of disciplinary consequences presently associated with Rule 102(t)

9

for a Practitioner failing to file a notice of appearance if the scope of the

10

representation is limited to preparing, drafting, or filing pleadings, briefs, or other

11

documents (collectively, “Pleadings”) on behalf of an individual in a proceeding

12

before one of EOIR’s immigration courts or the Board of Immigration Appeals

13

(“BIA”). Consistent with the foregoing, a Practitioner is not prohibited from

14

preparing, drafting, or filing pleadings before one of EOIR’s immigration courts

15

or the BIA without entering a notice of appearance that could commit the

16

Practitioner to representation beyond those specific pleadings.

17

2. Clarification that a Practitioner will not be required to enter a notice of

18

appearance for any actions or conduct other than preparing of a Pleading for filing

19

with one of EOIR’s immigration courts or the BIA, or an in-person appearance

20

before one of EOIR’s immigration courts or the BIA. No notice of appearance

21

will be required based on conduct by a Practitioner that occurs prior to the filing

22

of a Pleading or that does not constitute an in-person appearance before an EOIR

23

immigration courts or the BIA.

24

3. The final rule may require Practitioners who prepare or draft Pleadings that are

25

ultimately filed with one of EOIR’s immigration courts or the BIA, to identify

26

themselves either on the filed documents themselves or potentially via a new or

amended government form, and may subject Practitioners to possible disciplinary

SETTLEMENT AGREEMENT (Case No. 2:17-cv-716)
-7-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

4814-2732-6099v.4 0201148-000002

Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 12 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
16 B.
17 18 19 20 21 22 23 24 25 26

consequences for failing to comply with such requirement. Such identification, however, will be limited to the Practitioner’s name, EOIR number and/or bar number, phone number, and a statement that the Practitioner’s representation is limited to that specific Pleading. Consistent with Paragraph IV.A.2, the potential identification requirements discussed in this paragraph will not apply to a Practitioner whose actions or conduct does not result in the filing of a Pleading with one of EOIR’s immigration courts or the BIA, or an in-person appearance before one of EOIR’s immigration courts or the BIA. 4. The final rule would not limit a Practitioner’s good faith compliance with the conditions and limitations set forth in Paragraphs 1 through 3 of this section, nor discipline a Practitioner on account of the number of pleadings filed in a single case. The final rule, however, may clarify how a Practitioner, despite technical compliance with the conditions and limitations described in Paragraphs 1 through 3 of this section, could engage in conduct that may be in violation of the existing Rules of Professional Conduct. Upon issuance of a final rule consistent with Section IV.A, the Parties shall be deemed to have fully, finally, and forever released, relinquished, and discharged one another of and from any and all claims, counterclaims, or defenses that they brought or could have brought in the Lawsuit. For clarification, the Parties’ mutual release in the preceding sentence does not impact their ability to bring any defenses against one another in subsequent, unrelated disputes. The Parties shall file a Joint Stipulation for the Dismissal (“Stipulated Dismissal”) of this litigation with prejudice and without fees or costs, except as otherwise agreed-upon herein in Section IX, within 14 days of issuance of the final rule.

SETTLEMENT AGREEMENT (Case No. 2:17-cv-716)
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4814-2732-6099v.4 0201148-000002

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 13 of 20

1 V. 2 A.
3 4 5 6 7 8 9 10 11 12 13 14
15 B.
16 17

PLAINTIFFS’ OBLIGATIONS Plaintiff NWIRP agrees to the following obligations as a compromise to advance this Settlement Agreement only and does not concede any independent obligation to undertake these obligations otherwise, or that any similarly situated organization would be required to undertake these obligations. Plaintiff NWIRP agrees that within 14 days after the signing of this Agreement, NWIRP will direct its Practitioners to provide the following information on Pleadings filed with EOIR’s immigration courts and the BIA in cases where they provided assistance drafting the Pleadings to a respondent appearing pro se:
a. Practitioner’s Name; b. Phone number; c. Bar and/or EOIR number; and d. A statement stating “ [Practitioner’s] appearance in this matter is limited
to preparation of this pleading.” The Plaintiffs’ obligation under Section V shall terminate if DOJ issues a final rule consistent with Section IV.A or at the conclusion of the stay period described in Section III.

18

19 VI. LIABILITY UNDER RULE 102(T)

20 A. Defendants agree not to take any further disciplinary action against Plaintiffs based on

21

any violations of Rule 102(t) that may have taken place at any point prior to the signing

22

of this Agreement. See ECF No. 66.

23 B. Nothing in this Agreement shall be construed to limit or otherwise restrict Defendants’

24

discretion to investigate or take any disciplinary action against Plaintiffs on any other

25

basis under the disciplinary regulations other than Rule 102(t). Similarly, nothing in this

26

Agreement shall be construed to limit or otherwise restrict Plaintiffs’ defenses to any

such investigation or disciplinary action. Furthermore, nothing in this Agreement shall

SETTLEMENT AGREEMENT (Case No. 2:17-cv-716)
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P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

4814-2732-6099v.4 0201148-000002

Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 14 of 20

1

be construed or interpreted to limit or otherwise restrict Defendants’ ability to work or

2

cooperate with any federal, state, or local bar regulators or law enforcement regarding

3

Plaintiffs’ conduct.

4

5 VII. AGENCY RETENTION OF DISCRETION

6 A. Nothing in the terms of this Agreement shall be construed to limit or modify the

7

discretion accorded to the United States Department of Justice or the Executive Office for

8

Immigration Review by the Immigration and Nationality Act, the Administrative

9

Procedure Act, the United States Constitution, or by general principles of administrative

10

law. Consistent with the exercise of this discretion, Defendants are not to be considered

11

in breach of this Agreement if Rule Making does not result in an NPRM, a final rule, or

12

results in a final rule that is in any way inconsistent with Section IV.A.1-3 of this

13

Agreement.

14 B. No provision of this Agreement shall be interpreted as or constitute a commitment or

15

requirement that Defendants obligate funds in contravention of the Anti-Deficiency Act,

16

31 U.S.C. § 1341.

17 C. Nothing in the terms of this Agreement shall be construed to limit Defendants’ authority

18

to alter, amend, or revise any final rule that DOJ may issue pursuant to this Agreement or

19

to promulgate superseding regulations or guidance.

20

21 VIII. NO ADMISSION OF WRONGDOING.

22 This Agreement, whether or not executed, and any proceedings taken pursuant to it:

23 A. Shall not be construed to waive, reduce, or otherwise diminish the authority of the

24

Defendants to enforce the laws of the United States against Plaintiffs, consistent with the

25

Constitution and laws of the United States, and applicable regulations.

26 B. Shall not be offered or received against Defendants as evidence of, or construed as or

deemed to be evidence of, any presumption, concession, or admission by any of the

SETTLEMENT AGREEMENT (Case No. 2:17-cv-716)
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P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

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Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 15 of 20

1 2 3 4 5 6
7 C.
8 9 10 11 12 13

Defendants of the truth of any fact alleged by the Plaintiffs or the validity of any claim that had been or could have been asserted in the action or in any litigation, or the deficiency of any defense that has been or could have been asserted in the action, or of any liability, negligence, fault, or wrongdoing of the Defendants; or any admission by the Defendants of any violations of, or failure to comply with, the Constitution, laws or regulations. Shall not be offered or received against the Parties as evidence of a presumption, concession, or admission of any liability, negligence, fault, or wrongdoing, or in any way referred to for any other reason as against any of the Parties to this Agreement, in any other civil, criminal, or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of this Agreement; provided, however, that Defendants may refer to it and rely upon it to effectuate the liability protection granted to them under the Agreement.

14

15 IX. ATTORNEYS’ FEES

16 A. In order to settle and resolve Plaintiffs’ claims to attorneys’ fees and costs, including

17

claims under the Equal Access to Justice Act, 28 U.S.C. § 2412, Defendants agree to pay

18

Plaintiffs the sum of $380,000 in attorneys’ fees and costs subject to the provisions of

19

Section IX herein (“Attorneys’ Fees Settlement Amount”).

20 B. Defendants obligation to pay the Attorneys’ Fees Settlement Amount is triggered only

21

upon the occurrence one of the following:

22

1. The filing of a Stipulated Dismissal pursuant to Section IV.B of this Agreement;

23

or

24

2. This Lawsuit is dismissed with prejudice due to the issuance of a Final Rule that

25

moots Plaintiffs’ claims in this lawsuit.

26 C Defendants shall pay to Plaintiffs the Attorneys’ Fees Settlement Amount within thirty

(30) days of dismissal with prejudice under Section IX.B.
SETTLEMENT AGREEMENT (Case No. 2:17-cv-716)
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P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

4814-2732-6099v.4 0201148-000002

Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 16 of 20

1 D.
2 3 4 5 6 7
8 E.
9 10 11 12 13 14 15 16
17 X. 18 A.
19 20 21 22 23 24 25 26

Defendants’ payment of the Attorneys’ Fees Settlement Amount shall satisfy any claims by Plaintiffs or their counsel to attorney fees and costs related to the litigation. Plaintiffs, Plaintiffs’ Counsel, and their heirs, executors, administrators, representatives, attorneys, predecessors, successors, assigns, agents, affiliates, and partners, and any persons they represent, fully, finally, and forever release, relinquish and discharge the Defendants of and from any and all claims for attorney fees and costs related to and for the litigation, including any fees and costs that may be incurred after the signing of this Agreement. If Defendants obligation to pay the Attorneys’ Fees Settlement Amount is not triggered under Section IX.B, Plaintiffs reserve all rights to seek payment of their attorneys’ fees and costs from Defendants, including attorneys’ fees and costs incurred both before and after the signing of this Agreement. If Defendants’ obligation is not triggered by Section IX.B, Defendants do not waive any arguments or defenses against any other claim for attorneys’ fees and costs that Plaintiff may bring, nor should this Agreement be construed as a concession or admission of liability for payment of attorneys’ fees and costs in any scenario not described under Section IX.B of this agreement.
DISPUTE RESOLUTION; CONFIDENTIALITY The Parties agree that they will seek to resolve any dispute regarding a breach of this Agreement informally as set forth herein. However, if a dispute cannot be resolved informally, the following procedures shall apply: 1. Counsel shall notify counsel for the opposing party in writing and request that
counsel meet and confer. The Parties shall have 14 days from the date of said notice to attempt to arrive at an amicable resolution of the dispute. 2. Upon mutual agreement of the Parties and with the consent of Magistrate Judge Mary Alice Theiler, the Parties may refer any unresolved dispute to Magistrate Judge Theiler to attempt to mediate the dispute.

SETTLEMENT AGREEMENT (Case No. 2:17-cv-716)
-12-
4814-2732-6099v.4 0201148-000002

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 17 of 20

1 2 3 4
5 B.
6 7
8 C.
9 10
11 D.
12

3. If one of the parties do not agree to go through mediation, or should the Parties fail to reach resolution of their dispute in mediation, or if Magistrate Judge Theiler declines to mediate the dispute, either party may file a motion requesting that the Court resolve the dispute.
The dispute resolution procedures and all meet-and-confer requirements in this Agreement shall be conducted confidentially. No public disclosure relating to the dispute shall be made unless the dispute is filed with the Court. Any and all documents and information disclosed by either party during the mediation process or during any meet-and-confer in this Agreement shall not be admissible in any judicial proceeding and shall be given the protection of Fed. R. Evid. 408. All statements or conclusions of the mediator shall not be admissible in any subsequent judicial proceeding.

13

14 XI. ADDITIONAL PROVISIONS

15 A. This Agreement may not be modified or amended, nor may any of its provisions be

16

waived except by a writing signed by all Parties hereto or their successors-in-interest.

17 B. The waiver by one party of any breach of this Agreement by any other party shall not be

18

deemed a waiver of any other prior or subsequent breach of this Agreement.

19 C. This Agreement constitutes the entire agreement among the Parties hereto concerning the

20

settlement of the action, and no representations, warranties, or inducements have been

21

made by any party hereto other than those contained and memorialized in such

22

documents.

23 D. This Agreement may be executed in one or more counterparts. All executed counterparts

24

and each of them shall be deemed to be one and the same instrument. Electronic or

25

facsimile transmitted signatures shall have the same effect as originals.

26 E. This Agreement shall be binding upon, and inure to the benefit of, the successors and

assigns of the Parties hereto.
SETTLEMENT AGREEMENT (Case No. 2:17-cv-716)
-13-

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

4814-2732-6099v.4 0201148-000002

Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 18 of 20

1 F.
2 3 4 5
6 G.
7 8 9
10 H.
11 12 13 14
15 I.
16
17 J.
18 19 20 21 22 23 24 25 26

This Agreement shall not be construed more strictly against one party than another merely by virtue of the fact that it, or any part of it, may have been prepared by counsel for one of the Parties, it being recognized by the Parties that this Agreement is the result of negotiations between the Parties and that all Parties have contributed substantially and materially to the preparation of this Agreement. All counsel and any other person executing this Agreement and any of the exhibits hereto, or any related settlement documents, warrant and represent that they have the full authority to do so and that they have the authority to take appropriate action required or permitted to be taken under the Agreement to effectuate its terms. The computation of time will be determined by Federal Rule of Civil Procedure 6. If a lapse in appropriations affecting Defendants or Defendants’ counsel occurs within 60 days prior to any deadline of this Agreement, that deadline shall be extended automatically one calendar day for each calendar day of delay caused by the lapse in appropriations. The Parties may extend the dates set forth in this Agreement or otherwise modify this Agreement by a written agreement executed by counsel for the Parties. Any notices required or provided for by this Agreement shall be in writing and shall be deemed effective (1) upon receipt if sent by U.S. Postal Service, or (2) upon the date sent if sent by overnight delivery, facsimile, or email.

SETTLEMENT AGREEMENT (Case No. 2:17-cv-716)
-14-
4814-2732-6099v.4 0201148-000002

P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181

Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 19 of 20

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Counsel for Defendants
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Case 2:17-cv-00716-RAJ Document 109 Filed 04/17/19 Page 20 of 20

1 DATED: _A_pr_il_1_7_, 2_0_1_9_______
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
SETTLEMENT AGREEMENT (Case No. 2:17-cv-716)
4814-2732-6099v.4 0201148-000002

Counsel for Plaintiffs DAVIS WRIGHT TREMAINE LLP Attorneys for Plaintiffs Northwest Immigrant Rights Project and Yuk Man Maggie Cheng By
Michele Radosevich, WSBA #24282 Jaime Drozd Allen, WSBA #35742 James Harlan Corning, WSBA #45177 Robert E. Miller, WSBA #46507 Laura-Lee Williams, WSBA #51358 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 Telephone: (206) 622-3150 Fax: (206) 757-7700 E-mail: micheleradosevich@dwt.com
jaimeallen@dwt.com jamescorning@dwt.com robertmiller@dwt.com lauraleewilliams@dwt.com NORTHWEST IMMIGRANT RIGHTS PROJECT Matt Adams, WSBA #28287 Leila Kang, WSBA #48048 615 2nd Avenue, Suite 400 Seattle, WA 98104-2244 Phone: (206) 957-8611 Fax: (206) 587-4025 E-mail: matt@nwirp.org leila@nwirp.org
P.O. Box 868 Ben Franklin Station Washington, D.C. 20044
(202) 305-7181 -16-

 
 U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:17-cv-00716-RAJ

Northwest Immigrant Rights Project et al v. Sessions, III Date Filed: 05/08/2017

et al

Jury Demand: None

Assigned to: Judge Richard A. Jones

Nature of Suit: 440 Civil Rights:

Referred to: Hon. Mary Alice Theiler (Settlement)

Other

Cause: 42:1981 Civil Rights

Jurisdiction: U.S. Government

Defendant

Plaintiff
Northwest Immigrant Rights Project a nonprofit Washington public benefit corporation doing business as NWIFP

represented by Glenda Melinda Aldana Madrid NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8646 Email: glenda@nwirp.org TERMINATED: 11/08/2018 LEAD ATTORNEY

Jaime Drozd Allen DAVIS WRIGHT TREMAINE (SEA) 920 FIFTH AVE STE 3300 SEATTLE, WA 98104-1610 206-622-3150 Fax: 206-757-7700 Email: jaimeallen@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Harlan Corning DAVIS WRIGHT TREMAINE (SEA) 920 FIFTH AVE STE 3300 SEATTLE, WA 98104-1610 206-757-8253 Fax: 206-757-7700 Email: jamescorning@dwt.com LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Laura-Lee S Williams DAVIS WRIGHT TREMAINE (SEA) 920 FIFTH AVE STE 3300 SEATTLE, WA 98104-1610 206-757-8262 Fax: 206-757-7700 Email: lauraleewilliams@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leila Kang NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8608 Email: leila@nwirp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matt Adams NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8611 Email: matt@nwirp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Radosevich DAVIS WRIGHT TREMAINE (SEA) 920 FIFTH AVE STE 3300 SEATTLE, WA 98104-1610 206-622-3150 Fax: 206-757-7700 Email: micheleradosevich@dwt.com

Plaintiff Yuk Man Maggie Cheng an individual
V. Defendant

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert E Miller DAVIS WRIGHT TREMAINE (BELLEVUE) 777 108TH AVE NE STE 2300 BELLEVUE, WA 98004-5149 425-646-6189 Email: robertmiller@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jaime Drozd Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Harlan Corning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura-Lee S Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Radosevich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert E Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jefferson Beauregard Sessions, III in his official capacity as Attorney General of the United States

represented by Alexander J Halaska US DEPT. OF JUSTICE CIVIL DIVISION OFFICE OF IMMIGRATION LITIGATION 450 FIFTH ST. NW WASHINGTON, DC 20001 202-307-8704 Email: alexander.j.halaska@usdoj.gov ATTORNEY TO BE NOTICED
Carlton Frederick Sheffield US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-532-4737 Email: carlton.f.sheffield@usdoj.gov ATTORNEY TO BE NOTICED
Gisela A Westwater US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-532-4174 Email: gisela.westwater@usdoj.gov ATTORNEY TO BE NOTICED
Gladys M. Steffens Guzman DEPARTMENT OF JUSTICE CIVIL DIVISION 450 5TH STREET NW PO BOX 898, BEN FRANKLIN STATION WASHINGTON, DC 20044 202-305-7181 Email: Gladys.SteffensGuzman@usdoj.gov ATTORNEY TO BE NOTICED
Victor M. Mercado-Santana

Defendant United States Department of Justice
Defendant Executive Office for Immigration Review

DEPT. OF JUSTICE, CIVIL DIVISION OIL DCS 450 5TH ST. NW WASHINGTON, DC 20001 202-305-7001 Email: victor.m.mercadosantana@usdoj.gov ATTORNEY TO BE NOTICED
represented by Alexander J Halaska (See above for address) ATTORNEY TO BE NOTICED
Carlton Frederick Sheffield (See above for address) ATTORNEY TO BE NOTICED
Gisela A Westwater (See above for address) ATTORNEY TO BE NOTICED
Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
Victor M. Mercado-Santana (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander J Halaska (See above for address) ATTORNEY TO BE NOTICED
Carlton Frederick Sheffield (See above for address) ATTORNEY TO BE NOTICED
Gisela A Westwater (See above for address) ATTORNEY TO BE NOTICED
Gladys M. Steffens Guzman (See above for address)

Defendant Juan Osuna in his official capacity as Director of the Executive Office for Immigration Review
Defendant Jennifer Barnes in her official capacity as Disciplinary Counsel for the Executive Office for Immigration Review

ATTORNEY TO BE NOTICED
Victor M. Mercado-Santana (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander J Halaska (See above for address) ATTORNEY TO BE NOTICED
Carlton Frederick Sheffield (See above for address) ATTORNEY TO BE NOTICED
Gisela A Westwater (See above for address) ATTORNEY TO BE NOTICED
Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
Victor M. Mercado-Santana (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander J Halaska (See above for address) ATTORNEY TO BE NOTICED
Carlton Frederick Sheffield (See above for address) ATTORNEY TO BE NOTICED
Gisela A Westwater (See above for address) ATTORNEY TO BE NOTICED
Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
Victor M. Mercado-Santana

Amicus Immigrant Legal Rights Organizations TERMINATED: 05/12/2017
Amicus Attorney General of Washington
Amicus American Civil Liberties Union of Washington (ACLU)

(See above for address) ATTORNEY TO BE NOTICED
represented by John J Connolly ZUCKERMAN SPAEDER LLP 100 E. PRATT STREET SUITE 2440 BALTIMORE, MD 21202-1031 410-949-1149 Email: jconnolly@zuckerman.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel F. Cotton ZUCKERMAN SPAEDER LLP 1800 M STREET, NW SUITE 1000 WASHINGTON, DC 20036 202-778-1800 Email: RCotton@zuckerman.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Patricio A. Marquez ATTORNEY GENERAL'S OFFICE (SEA- FIFTH AVE) 800 5TH AVE STE 2000 SEATTLE, WA 98104-3188 206-442-4495 Email: PatricioM@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew Garcia Murphy HILLIS CLARK MARTIN & PETERSON 999 3RD AVENUE, SUITE 4600 SEATTLE, WA 98104 206-623-1745 Email:

Amicus Legal Voice f/k/a Northwest Women's Law Center Amicus TERMINATED: 05/19/2017
Amicus The Fred T. Korematsu Center for Law and Equality

andy.murphy@millernash.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J Ewart HILLIS CLARK MARTIN & PETERSON 999 3RD AVENUE, SUITE 4600 SEATTLE, WA 98104 206-623-1745 Fax: 206-623-7786 Email: jake.ewart@hcmp.com ATTORNEY TO BE NOTICED
represented by Sara L. Ainsworth THE SIA LEGAL TEAM 1517 12TH AVENUE, STE 101 SEATTLE, WA 98101 206-567-9234, EXT. 1006 Email: sara@sialegalteam.org TERMINATED: 05/19/2017 LEAD ATTORNEY
Laura K Clinton ATTORNEY GENERAL'S OFFICE (SEA- FIFTH AVE) 800 5TH AVE STE 2000 SEATTLE, WA 98104-3188 206-464-7744 Email: laura.clinton@atg.wa.gov TERMINATED: 05/19/2017
represented by Benjamin D Greenberg DORSEY & WHITNEY (WA) 701 FIFTH AVENUE SUITE 6100 SEATTLE, WA 98104-7043 206-903-8800 Email: greenberg.ben@dorsey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Seungchul Chang

SCHOOL OF LAW ANNEX 1215 E. COLUMBIA SEATTLE, WA 98122 206-398-4025 Email: changro@seattleu.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Cox DAVIS WRIGHT TREMAINE (SEA) 920 FIFTH AVE STE 3300 SEATTLE, WA 98104-1610 206-757-8256 Fax: 206-757-7700 Email: sarahcox@dwt.com TERMINATED: 06/25/2018 LEAD ATTORNEY
Shawn J Larsen-Bright DORSEY & WHITNEY (WA) 701 FIFTH AVENUE SUITE 6100 SEATTLE, WA 98104-7043 206-903-8800 Email: larsen.bright.shawn@dorsey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tzu-Huan Augustine Lo DORSEY & WHITNEY (WA) 701 FIFTH AVENUE SUITE 6100 SEATTLE, WA 98104-7043 206-903-8800 Fax: 206-903-8820 Email: Lo.Augustine@dorsey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary E Davison PERKINS COIE (SEA) 1201 3RD AVE STE 4900

Amicus American Immigration Lawyers Association
Amicus Immigration Reform Law Institute

SEATTLE, WA 98101-3099 206-359-6739 Fax: 206-359-7739 Email: zdavison@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa R Lee RONALD A PETERSON LAW CLINIC SEATTLE UNIVERSITY SCHOOL OF LAW 1112 E COLUMBIA STREET SEATTLE, WA 98122 206-398-4394 Email: leeme@seattleu.edu ATTORNEY TO BE NOTICED
represented by Steven Soloman Miller COWAN MILLER LEDERMAN 1001 FOURTH AVE STE 3330 SEATTLE, WA 98154 206-340-1033 Email: ssmiller@cmlseattle.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Devin T Theriot-Orr OPEN SKY LAW PLLC 20415 72ND AVE S STE 110 KENT, WA 98032 206-962-5052 Fax: 206-681-9663 Email: devin@opensky.law ATTORNEY TO BE NOTICED
represented by Christopher J Hajec IMMIGRATION REFORM LAW INSTITUTE 25 MASSACHUSETTS AVE NW SUITE 335 WASHINGTON, DC 20001 202-232-5590

Email: chajec@irli.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Richard M Stephens STEPHENS & KLINGE LLP 601 108TH AVENUE NE SUITE 1900 BELLEVUE, WA 98004 425-453-6206 Email: stephens@sklegal.pro LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/08/2017
05/08/2017
05/08/2017 05/08/2017 05/08/2017 05/09/2017

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against All Defendants (Receipt # 0981-4869102), filed by Northwest Immigrant Rights Project. (Attachments: # 1 Exhibit 1, # 2 Civil Cover Sheet, # 3 Summons Sessions, # 4Summons DOJ, # 5 Summons EOIR, # 6 Summons EOIR Barnes, # 7 Summons EOIR Osuna)(Corning, James) Modified on 5/9/2017 to seal exhibit per direction of filer; redacted version to be filed separately (RS). (Entered: 05/08/2017)
2 MOTION for Temporary Restraining Order , filed by Plaintiff Northwest Immigrant Rights Project. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 5/8/2017, (Corning, James) (Entered: 05/08/2017)
3 DECLARATION of Timothy Warden-Hertz filed by Plaintiff Northwest Immigrant Rights Project re 2 MOTION for Temporary Restraining Order (Corning, James) (Entered: 05/08/2017)
4 DECLARATION of Yuk Man Maggie Cheng filed by Plaintiff Northwest Immigrant Rights Project re 2 MOTION for Temporary Restraining Order (Corning, James) (Entered: 05/08/2017)
Judge Richard A Jones added. (SG) (Entered: 05/08/2017)
5 Summons electronically issued as to defendant(s) Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice. (Attachments: # 1 Summons, # 2 Summons, # 3Summons, # 4 Summons)(ST) (Entered: 05/09/2017)

05/09/2017 05/09/2017 05/09/2017 05/09/2017 05/09/2017 05/10/2017 05/10/2017
05/11/2017 05/11/2017

6 STANDING ORDER for Civil Cases Assigned to Judge Richard A. Jones. (VE) (Entered: 05/09/2017)
7 NOTICE of Appearance by attorney Gladys M. Steffens Guzman on behalf of Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice. (Steffens Guzman, Gladys) (Entered: 05/09/2017)
8 PRAECIPE to attach document Redacted Exhibit re 1 Complaint, by Plaintiff Northwest Immigrant Rights Project (Attachments: # 1 Exhibit 1)(Corning, James) (Entered: 05/09/2017)
9 NOTICE Pursuant to Local Rulde 65(b) re 2 MOTION for Temporary Restraining Order ; filed by Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice. (Steffens Guzman, Gladys) (Entered: 05/09/2017)
Set Hearing: TELEPHONE CONFERENCE set for 5/10/2017 at 8:45 AM before Judge Richard A. Jones. (VE) (Entered: 05/09/2017)
10 AFFIDAVIT of Mailing of Summons and Complaint to all named Defendants, U.S. Attorney General, and U.S. Attorney's Office Civil Process Unit Western District of Washington on 5/9/2017, filed by Plaintiff Northwest Immigrant Rights Project. (Corning, James) (Entered: 05/10/2017)
11 MINUTE ENTRY for proceedings held before Judge Richard A. Jones Dep Clerk: Victoria Ericksen; Pla Counsel:Jaime Allen, James Corning, Matt Adams; Def Counsel: Victor Mercado Santana, Gladys Steffens Guzman; CR: Debbie Zurn, Andrea Ramirez; TELEPHONE CONFERENCE held on 5/10/2017. The Court hears from counsel and recesses the telephone conference to 2:45 p.m. After reconvening at 2:45 p.m., based upon the parties' agreement, the Court sets the following briefing schedule on Plaintiff's 2 MOTION for Temporary Restraining Order: Defendants' Opposition is due 5/11/2017 by 4:30 p.m., Plaintiff's Reply is due 5/12/2017 by 4:30 p.m. ORAL ARGUMENT set for 5/17/2017 at 9:00 a.m., before the Hon. Richard A. Jones. (VE) (Entered: 05/10/2017)
12 NOTICE of Appearance by attorney Victor M. Mercado-Santana on behalf of Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice. (Mercado-Santana, Victor) (Entered: 05/11/2017)
13 NOTICE of Appearance by attorney Carlton Frederick Sheffield on behalf of Defendants Jennifer Barnes, Executive Office for Immigration

05/11/2017
05/12/2017 05/12/2017 05/12/2017 05/12/2017 05/12/2017 05/12/2017 05/12/2017 05/12/2017 05/12/2017

Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice. (Sheffield, Carlton) (Entered: 05/11/2017)
14 RESPONSE, by Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice, to 2 MOTION for Temporary Restraining Order . (Attachments: # 1Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Certificate of Service)(MercadoSantana, Victor) (Entered: 05/11/2017)
15 MOTION for Leave to File Brief as Amicus Curiae, filed by Amicus Immigrant Legal Rights Organizations. (Attachments: # 1 Exhibit A Proposed Amicus Brief, # 2 Proposed Order) Noting Date 5/12/2017, (Anderson, Heidi) (Entered: 05/12/2017)
16 APPLICATION OF ATTORNEY John Connolly FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Immigrant Legal Rights Organizations (Fee Paid) Receipt No. 0981-4875104 (Anderson, Heidi) (Entered: 05/12/2017)
17 APPLICATION OF ATTORNEY Rachel F. Cotton FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Immigrant Legal Rights Organizations (Fee Paid) Receipt No. 0981-4875123 (Anderson, Heidi) (Entered: 05/12/2017)
18 MOTION for Leave to File Amicus Brief in Support of Plaintiffs' Motion for Temporary Restraining Order, filed by Amicus Attorney General of Washington. (Attachments: # 1 Amicus Brief, # 2 Proposed Order) Noting Date 5/15/2017, (Marquez, Patricio) (Entered: 05/12/2017)
19 NOTICE of Appearance by attorney Michael J Ewart on behalf of Amicus American Civil Liberties Union of Washington (ACLU). (Ewart, Michael) (Entered: 05/12/2017)
20 MOTION for Leave to File Brief of Amicus Curiae, filed by Amicus American Civil Liberties Union of Washington (ACLU). (Attachments: # 1 Exhibit A, # 2 Proposed Order) Noting Date 5/12/2017, (Ewart, Michael) (Entered: 05/12/2017)
21 REPLY, filed by Plaintiff Northwest Immigrant Rights Project, TO RESPONSE to 2 MOTION for Temporary Restraining Order (Allen, Jaime) (Entered: 05/12/2017)
22 ORDER granting Amicus Attorney General of Washington's 18 Motion for Expedited Leave to File Amicus Brief, by Judge Richard A Jones.(SWT) (Entered: 05/12/2017)
Party Attorney General of Washington added. (See 22 Order) (SWT) (Entered: 05/12/2017)

05/12/2017 05/12/2017 05/12/2017 05/15/2017
05/15/2017
05/16/2017

23 ORDER denying Amicus Immigrant Legal Rights Organizations' 15 Motion for Leave to File Brief as Amicus Curiae, by Judge Richard A Jones.(SWT) (cc counsel Anderson and Walder via USPS) (Entered: 05/12/2017)
24 ORDER granting American Civil Liberties Union of Washington's 20 Motion for Leave to File Brief of Amicus Curiae, by Judge Richard A Jones. (SWT) (Entered: 05/12/2017)
25 MINUTE ORDER entered upon the authority of Judge Richard A. Jones. The Court directs counsel to deliver to chambers no later than noon on Monday, 5/15/2017, a binder containing all cases listed in the Table of Authorities in Plaintiffs' 2 Motion for Temporary Restraining Order and Defendants' 14 Response to Plaintiffs' Motion for Temporary Restraining Order. (VE) (Entered: 05/12/2017)
26 Application For Leave to Appear PHV 16 withdrawn, Court DENIED Amicus 23 . Directed Finance Division to refund PHV fee to Local Counsel. ORDER re 16 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney John J Connolly for Amicus Immigrant Legal Rights Organizations, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) Modified on 5/15/2017 (DS). (Entered: 05/15/2017)
27 Application For Leave to Appear PHV 17 withdrawn, Court DENIED Amicus 23 . Directed Finance Division to refund PHV fee to Local Counsel. ORDER re 17 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Rachel F. Cotton for Amicus Immigrant Legal Rights Organizations, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) Modified on 5/15/2017 (DS). (Entered: 05/15/2017)
28 Unopposed MOTION for Leave to File Amicus Brief in Support of Motion for Temporary Restraining Order, filed by Amicus Legal Voice f/k/a Northwest Women's Law Center. (Attachments: # 1 Exhibit) Noting Date 5/16/2017, (Clinton, Laura) (Entered: 05/16/2017)

05/16/2017 05/16/2017
05/16/2017 05/17/2017
05/17/2017 05/17/2017 05/19/2017 05/19/2017 05/22/2017

29 NOTICE of Appearance by attorney Laura K Clinton on behalf of Amicus Legal Voice f/k/a Northwest Women's Law Center. (Clinton, Laura) (Entered: 05/16/2017)
30 NOTICE of Appearance by attorney Gisela A Westwater on behalf of Amicus Attorney General of Washington, Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice. (Attachments: # 1 Certificate of Service)(Westwater, Gisela) Modified text on 5/19/2017 (RS). (Entered: 05/16/2017)
Attorney Sara Ainsworth for Legal Voice f/k/a Northwest Women's Law Center added; per 28 Unopposed MOTION for Leave to File Amicus Brief in Support of Motion for Temporary Restraining Order. (SWT) (Entered: 05/17/2017)
31 MINUTE ENTRY for proceedings held before Judge Richard A. Jones Dep Clerk: Victoria Ericksen; Pla Counsel:James Corning, Jaime Allen, Matt Adams; Def Counsel: Victor Mercado-Santana, Gladys Steffens Guzman, Gisela Westwater; CR: Nickie Drury; TEMPORARY RESTRAINING ORDER HEARING held on 5/17/2017. The Court hears argument of counsel. For the reasons stated on the record, the Court GRANTS Plaintiffs' 2 MOTION for Temporary Restraining Order. Written order memorializing the Court's oral ruling to be entered. (VE) (Entered: 05/17/2017)
32 TRANSCRIPT REQUEST by Plaintiff Northwest Immigrant Rights Project for proceedings held on 05/17/2017, Requesting Attorney: James Harlan Corning. (Corning, James) (Entered: 05/17/2017)
33 ORDER granting Plaintiffs' 2 Motion for a Temporary Restraining Order, by Judge Richard A Jones. (PM) (Entered: 05/17/2017)
34 ORDER denying non party organizations' 28 Motion for Leave to File Amici Curiae Brief by Judge Richard A Jones.(RS) (Entered: 05/19/2017)
35 STIPULATION AND PROPOSED ORDER regarding briefing schedule for Plaintiffs' Motion for Preliminary Injunction by parties re 33 Order on Motion for TRO (Attachments: # 1 Proposed Order)(Allen, Jaime) (Entered: 05/19/2017)
Set Deadlines -- Pursuant to the parties' 35 Stipulation Regarding Briefing Schedule for Plaintiffs' Motion for Preliminary Injunction, the Court sets the following deadlines: Plaintiffs' Motion for Preliminary Injunction shall be filed no later than 6/8/2017, Defendants' response is due 6/26/2017, Plaintiffs' reply is due and the motion shall be noted for 6/30/2017. (VE) (Entered: 05/22/2017)

05/23/2017
06/08/2017 06/08/2017 06/08/2017

36 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Temporary Restraining Order Hearing held on 5/17/2017 before Judge Richard A. Jones.
Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.
To purchase a copy of the transcript, contact court reporter Nickoline Drury, nickoline_drury@wawd.uscourts.gov, 206-370-8508.
Release of Transcript Restriction set for 8/21/2017, (ND) (Entered: 05/23/2017)
37 MOTION for Preliminary Injunction , filed by Plaintiff Northwest Immigrant Rights Project. (Attachments: # 1Proposed Order) Noting Date 6/30/2017, (Allen, Jaime) (Entered: 06/08/2017)
38 DECLARATION of Jorge L. Baron filed by Plaintiff Northwest Immigrant Rights Project re 37 MOTION for Preliminary Injunction (Allen, Jaime) (Entered: 06/08/2017)
39 DECLARATION of Jaime Drozd Allen filed by Plaintiff Northwest Immigrant Rights Project re 37 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit A - Highlighted Portions of 5/17/17 Transcript, # 2 Exhibit B - Phelps, Kursten (Tahirih Justice Ctr.), # 3 Exhibit C - Chan, Prof. R. Linus (Univ. of Minn. Law School), # 4 Exhibit D - Weissman-Ward, Lisa (Stanford Law School), # 5 Exhibit E - Dos Santos, Cristina (Cmty. Legal Servs. in East Palo Alto), # 6 Exhibit F - Bauer, Prof. Jon & Cabot, Jessica Anna (Univ. of Conn. School of Law), # 7 Exhibit G - Sennett, Caroline Devan (Intl Institute of Conn.), # 8 Exhibit H - Ahmad, Prof.Muneer I. (Yale Law School), # 9 Exhibit I - Keller, John (Immigrant Law Ctr. of Minn.), # 10 Exhibit J - Stolz, Richard (OneAmerica), # 11 Exhibit K - Roche, Susan (Immigrant Legal Advocacy Project), # 12 Exhibit L - Little, Cheryl (AI Justice), # 13 Exhibit M - London, Judy (Public Counsel), # 14 Exhibit N - Kreimer, Frances M. (Dolores St. Cmty. Servs.), # 15 Exhibit O - Kelly, Nancy (Greater Boston Legal Servs.), # 16 Exhibit P - Bildhauer, Juliann (Kids in Need of Defense), # 17 Exhibit Q - Marcus, Prof. Lynn (Univ. of Ariz. College of Law),

06/09/2017 06/16/2017
06/16/2017 06/16/2017

# 18 Exhibit R - Zoltan, Paul S. (Refugee Support Networks), # 19 Exhibit S - Zukin, Valerie Ann (Bar Assoc. of S.F.), # 20 Exhibit T - Pennington, Alison (Centro Legal de la Raza), # 21 Exhibit U Werner, Daniel (Southern Poverty Law Center), # 22 Exhibit V Fleming, John H. (Eversheds Sutherland (US) LLP), # 23 Exhibit W Josef, Ellyn Haikin (Vinson & Elkins, LLP), # 24 Exhibit X - Slater, Stacey (Nixon Peabody LLP), # 25 Exhibit Y - Kathawala, Rene A. (Orrick, Herrington & Sutcliffe LLP), # 26 Exhibit Z - Medway, Leah E. (Perkins Coie LLP), # 27 Exhibit AA - Van Nortwick, Jr., William A. (Akerman LLP), # 28 Exhibit BB - Soloway, Audra J. (Paul, Weiss, Rifkind, Wharton & Garrison LLP), # 29 Exhibit CC - Frahn, Harrison J. (Simpson Thacher & Bartlett LLP), # 30 Exhibit DD - Fritz, Kathryn J. (Fenwick & West LLP), # 31 Exhibit EE - Lash, David A. (OMelveny & Myers LLP), # 32 Exhibit FF - Davis, Claire Loebs (Lane Powell PC), # 33 Exhibit GG - Alger, Maureen P. (Cooley LLP), # 34 Exhibit HH Lindblom, Marjorie P. (Kirkland & Ellis LLP), # 35 Exhibit II - Murray, Mayor Edward B. (City of Seattle))(Allen, Jaime) (Entered: 06/08/2017)
Set Hearing on 37 MOTION for Preliminary Injunction: ORAL ARGUMENT set for 7/24/2017 at 9:00 AM in Courtroom 13106 before Judge Richard A. Jones. (VE) (Entered: 06/09/2017)
40 MOTION for Leave to File AMICUS CURIAE BRIEF OF THE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION, filed by Amicus The Fred T. Korematsu Center for Law and Equality. (Attachments: # 1 Proposed Order GRANTING MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF OF THE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION) Noting Date 6/16/2017, (Larsen-Bright, Shawn) (Entered: 06/16/2017)
41 MOTION for Leave to File Brief Amicus Curiae, filed by Amicus American Immigration Lawyers Association. (Attachments: # 1 Brief of Amicus Curiae AILA, # 2 Declaration of Steven Soloman Miller, # 3 Declaration of Paul Soreff, # 4 Declaration of Qingqing Miao, # 5 Declaration of Bart Klein, # 6 Instructions for Applicants Receiving Assistance at Group Events, # 7 Excerpts from USCIS Form N-400, # 8 Proposed Order) Noting Date 7/7/2017, (Theriot-Orr, Devin) (Entered: 06/16/2017)
42 ERRATA re 41 MOTION for Leave to File Brief Amicus Curiae by Amicus American Immigration Lawyers Association (Attachments: # 1 Corrected Brief of Amicus Curiae AILA)(Theriot-Orr, Devin) (Entered: 06/16/2017)

06/19/2017
06/22/2017 06/22/2017 06/22/2017 06/22/2017 06/23/2017 06/26/2017
06/26/2017
06/26/2017 06/26/2017

Noting Date Reset re 40 MOTION for Leave to File AMICUS CURIAE BRIEF OF THE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION: Noting Date reset for 7/7/2017 pursuant to LCR 7(d)(3). (VE) (Entered: 06/19/2017)
43 ORDER granting Fred T. Korematsu Center for Law and Equality's 40 Motion for leave to file brief as amicus curiae; denying AILA's 41 Motion for leave to file brief as amicus curiae signed by Judge Richard A Jones.(RS) (Entered: 06/22/2017)
44 NOTICE of Appearance by attorney Melissa R Lee on behalf of Amicus The Fred T. Korematsu Center for Law and Equality. (Lee, Melissa) (Entered: 06/22/2017)
45 ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT. FRCP 26f Conference Deadline is 7/7/2017, Initial Disclosure Deadline is 7/14/2017, Joint Status Report due by 7/21/2017, by Judge Richard A. Jones. (VE) (Entered: 06/22/2017)
46 STIPULATION AND PROPOSED ORDER by parties (Attachments: # 1 Proposed Order)(Mercado-Santana, Victor) (Entered: 06/22/2017)
Attorney Robert Seungchul Chang for The Fred T. Korematsu Center for Law and Equality added; per 44 Notice of Appearance. (RS) (Entered: 06/23/2017)
Pursuant to the parties' 46 STIPULATION Regarding Extension of Page Limits on Preliminary Injunction Response and Reply, Defendants will be allowed an additional 6 pages for their brief in Opposition to Plaintiffs' Motion for Preliminary Injunction, and Plaintiffs will be allowed an additional 6 pages for their brief in Reply. (VE) (Entered: 06/26/2017)
47 RESPONSE, by Defendant Executive Office for Immigration Review, to 37 MOTION for Preliminary Injunction . (Attachments: # 1 Exhibit A - EOIR 27, # 2 Exhibit B - EOIR 28, # 3 Exhibit C - Letter to EOIR, # 4 Exhibit D - Letter to NWIRP)(Mercado-Santana, Victor) (Entered: 06/26/2017)
48 DECLARATION of Print Maggard, Deputy Chief Immigration Judge filed by Defendant Executive Office for Immigration Review re 37 MOTION for Preliminary Injunction (Mercado-Santana, Victor) (Entered: 06/26/2017)
49 DECLARATION of Jennifer Barnes, Disciplinary Counsel, EOIR filed by Defendant Executive Office for Immigration Review re 37 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit 1 - Disciplinary Counsel Letter, # 2Exhibit 2 - Disciplinary Counsel Letter, # 3 Exhibit 3

06/26/2017
06/30/2017 06/30/2017 06/30/2017 06/30/2017 07/06/2017 07/06/2017

- Disciplinary Counsel Letter, # 4 Exhibit 4 - Disciplinary Counsel Letter, # 5 Exhibit 5 - Disciplinary Counsel Letter, # 6 Exhibit 6 Disciplinary Counsel Letter, # 7 Exhibit 7 - Disciplinary Counsel Letter, # 8 Exhibit 8 - Tacoma referral to Disciplinary Counsel, # 9 Exhibit 9 Seattle referral to Disciplinary Counsel, # 10 Exhibit 10 - Disciplinary Counsel Letter to NWIRP)(Mercado-Santana, Victor) (Entered: 06/26/2017)
50 DECLARATION of Steven Lang, Program Director, Office of Legal Access Programs, EOIR filed by Defendant Executive Office for Immigration Review re 37 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit 1 - "Father Bob" Decision, # 2 Exhibit 2 - Saucedo Decision, # 3 Exhibit 3 - Paula Notice of Termination, # 4 Exhibit 4 - Paula Termination of accredited representative status, # 5 Exhibit 5 - 2008 OCIJ Pro Bono Guidance, # 6 Exhibit 6 - Memo to Vera)(Mercado-Santana, Victor) (Entered: 06/26/2017)
51 MOTION for Extension of Time to File Answer re 1 Complaint, , filed by Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice. (Attachments: # 1Proposed Order) Noting Date 7/14/2017, (Sheffield, Carlton) (Entered: 06/30/2017)
52 REPLY, filed by Plaintiff Northwest Immigrant Rights Project, TO RESPONSE to 37 MOTION for Preliminary Injunction (Allen, Jaime) (Entered: 06/30/2017)
53 DECLARATION of Elizabeth Benki filed by Plaintiff Northwest Immigrant Rights Project re 37 MOTION for Preliminary Injunction (Allen, Jaime) (Entered: 06/30/2017)
54 Second DECLARATION of Jorge L. Baron filed by Plaintiff Northwest Immigrant Rights Project re 37 MOTION for Preliminary Injunction (Allen, Jaime) (Entered: 06/30/2017)
55 STIPULATION AND PROPOSED ORDER extending Defendants' time to respond to Complaint by parties re 1Complaint, (Allen, Jaime) (Entered: 07/06/2017)
Reset Deadline: Pursuant to the parties' 55 STIPULATION extending Defendants' time to respond to Complaint, Defendants' deadline to answer or otherwise respond to Plaintiff's Complaint is extended to 8/4/2017. Defendants acknowledge service of the summons and complaint, and waive any alleged defects or defenses available to them regarding service of process. Defendants' 51 MOTION for Extension of Time to File Answer re 1 Complaint is withdrawn. (VE) (Entered: 07/06/2017)

07/06/2017 07/06/2017 07/06/2017 07/07/2017 07/12/2017 07/13/2017
07/19/2017

56 MOTION to Amend 45 Joint Status Report Order Form for District Judges,(ex parte), filed by Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice. (Attachments: # 1 Proposed Order) Noting Date 7/6/2017, (Mercado-Santana, Victor) (Entered: 07/06/2017)
57 OBJECTIONS re 56 MOTION to Amend 45 Joint Status Report Order Form for District Judges,(ex parte) and Request to Renote Motion Pursuant to LCR 7(d)(2) by Plaintiffs Yuk Man Maggie Cheng, Northwest Immigrant Rights Project (Corning, James) (Entered: 07/06/2017)
58 REPLY, filed by Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice, TO RESPONSE to 56 MOTION to Amend 45 Joint Status Report Order Form for District Judges,(ex parte) (Mercado-Santana, Victor) (Entered: 07/06/2017)
Noting Date Reset: At the direction of chambers, 56 MOTION to Amend 45 Joint Status Report Order Form for District Judges, (ex parte) is renoted for 7/14/2017 pursuant to LCR 7(d)(2). The Court finds this motion is not appropriately brought ex parte. (VE) (Entered: 07/07/2017)
59 STIPULATION AND PROPOSED ORDER Extending Initial Disclosure Deadline and Joint Status Report Deadline and Withdrawing Defendants' Motion at Dkt. 56 by parties re 56 MOTION to Amend 45 Joint Status Report Order Form for District Judges,(ex parte) (Corning, James) (Entered: 07/12/2017)
Pursuant to the parties' 59 STIPULATION Extending Initial Disclosure Deadline and Joint Status Report Deadline and Withdrawing Defendants' Motion at Dkt. 56, the parties shall exchange initial disclosures under Fed. R. Civ. P. 26(a)(1) by 8/11/2017; the parties will submit a Joint Status Report and Discovery Plan to the Court by 8/22/2017; and Defendants' 56 MOTION to Amend Amend Order Regarding Initial Disclosures and Joint Status Report is terminated. The parties' stipulation does not waive Defendants' right to seek a stay of discovery or of deadlines relating to discovery, if appropriate. (VE) (Entered: 07/13/2017)
60 NOTIFICATION REGARDING PROPOSED VIDEO RECORDING. All parties have either consented or taken no position (which the court construes as consent) regarding the video recording of the hearing on Plaintiffs' 37 Motion for Preliminary Injunction scheduled for 7/24/2017 at 9:00 AM. Unless otherwise ordered by the presiding judge, the proceeding will be video recorded. (VE) (Entered: 07/19/2017)

07/20/2017 07/20/2017 07/20/2017 07/20/2017
07/24/2017
07/24/2017 07/27/2017 08/04/2017

61 APPLICATION OF ATTORNEY Chris Hajec FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Immigration Reform Law Institute (Fee Paid) Receipt No. 0981-4950605 (Stephens, Richard) (Entered: 07/20/2017)
62 Unopposed MOTION for Leave to File Amicus Brief, filed by Amicus Immigration Reform Law Institute. (Attachments: # 1 Proposed Amicus Brief, # 2 Proposed Order) Noting Date 8/4/2017, (Stephens, Richard) (Entered: 07/20/2017)
Attorney Richard M Stephens for Immigration Reform Law Institute added; per 62 Unopposed MOTION for Leave to File Amicus Brief. (CDA) (Entered: 07/20/2017)
63 ORDER re 61 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Christopher J Hajec for Immigration Reform Law Institute, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CDA) (Entered: 07/20/2017)
64 MINUTE ENTRY for proceedings held before Judge Richard A. Jones Dep Clerk: Victoria Ericksen; Pla Counsel:James Corning, Jaime Allen, Matt Adams; Def Counsel: Carlton Sheffield, Gladys Steffens-Guzman; CR: Debbie Zurn; PRELIMINARY INJUNCTION HEARING held on 7/24/2017. After hearing argument of counsel, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' 37 MOTION for Preliminary Injunction as stated on the record. Written Order to follow. (VE) (Entered: 07/24/2017)
65 ORDER granting the Immigration Reform Law Institute's 62 Motion to file an amicus brief, signed by Judge Richard A Jones. (PM) (Entered: 07/24/2017)
66 ORDER granting plaintiffs' 37 Motion for Preliminary Injunction signed by Judge Richard A Jones.(RS) (Entered: 07/27/2017)
67 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , filed by Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice. (Attachments: # 1Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Proposed Order) Noting Date 9/1/2017, (Steffens Guzman, Gladys) (Entered: 08/04/2017)

08/10/2017 08/10/2017 08/12/2017
08/16/2017 08/16/2017 08/18/2017 08/22/2017

68 TRANSCRIPT REQUEST by Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice for proceedings held on July 24, 2017, Requesting Attorney: Carlton Frederick Sheffield. (Sheffield, Carlton) (Entered: 08/10/2017)
69 MOTION to Stay Discovery Pending Adjudication of Defendants' Motion to Dismiss, filed by Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) Noting Date 8/18/2017, (Steffens Guzman, Gladys) (Entered: 08/10/2017)
70 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 7/24/2017 before Judge Richard A. Jones.<p>Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.<p>Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at <a href= http://www.wawd.uscourts.gov target=_blank>www.wawd.uscourts.gov</a>.<p>To purchase a copy of the transcript, contact court reporter Debbie Zurn, debbie_zurn@wawd.uscourts.gov, 206-370-8504.<p> Release of Transcript Restriction set for 11/13/2017, (DZ) (Entered: 08/12/2017)
71 RESPONSE, by Plaintiffs Yuk Man Maggie Cheng, Northwest Immigrant Rights Project, to 69 MOTION to Stay Discovery Pending Adjudication of Defendants' Motion to Dismiss. (Allen, Jaime) (Entered: 08/16/2017)
72 DECLARATION of Jaime Drozd Allen filed by Plaintiffs Yuk Man Maggie Cheng, Northwest Immigrant Rights Project re 69 MOTION to Stay Discovery Pending Adjudication of Defendants' Motion to Dismiss (Attachments: # 1 Exhibit A)(Allen, Jaime) (Entered: 08/16/2017)
73 REPLY, filed by Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice, TO RESPONSE to 69 MOTION to Stay Discovery Pending Adjudication of Defendants' Motion to Dismiss (Mercado-Santana, Victor) (Entered: 08/18/2017)
74 JOINT STATUS REPORT signed by all parties estimated Trial Days: 3. (Corning, James) (Entered: 08/22/2017)

08/28/2017 08/28/2017 08/30/2017
09/01/2017
09/18/2017 12/19/2017 12/21/2017 01/02/2018 01/05/2018 01/16/2018

75 RESPONSE, by Plaintiffs Yuk Man Maggie Cheng, Northwest Immigrant Rights Project, to 67 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . (Corning, James) (Entered: 08/28/2017)
76 DECLARATION of James Harlan Corning filed by Plaintiffs Yuk Man Maggie Cheng, Northwest Immigrant Rights Project re 67 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Attachments: # 1 Exhibit A)(Corning, James) (Entered: 08/28/2017)
The Court acknowledges it has received and reviewed the parties' 74 Joint Status Report, but finds good cause to defer entry of a case schedule pending the Court's ruling on Defendants' 67 Motion to Dismiss for Failure to State a Claim and 69 Motion to Stay Discovery Pending Adjudication of Defendants' Motion to Dismiss. (VE) (Entered: 08/30/2017)
77 REPLY, filed by Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice, TO RESPONSE to 67 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Mercado-Santana, Victor) (Entered: 09/01/2017)
78 ORDER denying Defendants' 69 Motion to Stay signed by Judge Richard A Jones.(PM) (Entered: 09/18/2017)
79 ORDER granting in part and denying in part Government's 67 Motion to Dismiss for Failure to State a Claim signed by Judge Richard A Jones.(TH) (Entered: 12/19/2017)
80 MINUTE ORDER Requiring Updated Joint Status Report entered upon the authority of Judge Richard A. Jones. Updated Joint Status Report due 1/5/2018. (VE) (Entered: 12/21/2017)
81 ANSWER to 1 Complaint, by Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice.(Mercado-Santana, Victor) (Entered: 01/02/2018)
82 JOINT STATUS REPORT signed by all parties estimated Trial Days: 3. (Allen, Jaime) (Entered: 01/05/2018)
83 ORDER SETTING TRIAL DATE AND RELATED DATES. Length of Trial: 3 days. BENCH TRIAL is set for 11/13/2018 at 9:00 AM in Courtroom 13106 before Judge Richard A. Jones. Joinder of Parties due by 2/2/2018, Amended Pleadings due by 5/17/2018, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 5/17/2018, Discovery completed by 7/16/2018, Dispositive motions due by 8/15/2018, Motions in Limine due by 10/16/2018, Pretrial Order due by 10/30/2018,

01/19/2018 01/22/2018 06/25/2018 06/28/2018 06/28/2018 07/06/2018 07/06/2018
07/06/2018 07/09/2018 07/13/2018

Trial briefs, deposition designations, and trial exhibits to be submitted by 11/6/2018, by Judge Richard A. Jones. (VE) (Entered: 01/16/2018)
84 STIPULATION for Entry of a Protective Order by parties (Sheffield, Carlton) (Entered: 01/19/2018)
85 STIPULATED PROTECTIVE ORDER signed by Judge Richard A. Jones. (VE) (Entered: 01/22/2018)
86 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Sarah Cox for Amicus The Fred T. Korematsu Center for Law and Equality. (Cox, Sarah) (Entered: 06/25/2018)
87 MOTION for Protective Order , filed by Plaintiff Northwest Immigrant Rights Project. (Attachments: # 1 Proposed Order) Noting Date 7/6/2018, (Corning, James) (Entered: 06/28/2018)
88 DECLARATION of James Harlan Corning filed by Plaintiff Northwest Immigrant Rights Project re 87 MOTION for Protective Order (Corning, James) (Entered: 06/28/2018)
89 REPLY, filed by Plaintiffs Yuk Man Maggie Cheng, Northwest Immigrant Rights Project, TO RESPONSE to 87MOTION for Protective Order (Corning, James) (Entered: 07/06/2018)
90 MOTION for Leave to File Late Pleading - Defendants' Opposition to Motion for Protective Order, filed by Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice. (Attachments: # 1 Exhibit Declaration of C. Frederick Sheffield, # 2 Exhibit Defendants' Response to Plaintiffs' Motion for Protective Order, # 3 Proposed Order) Noting Date 7/27/2018, (Sheffield, Carlton) (Entered: 07/06/2018)
Noting Date Reset: The Court construes Defendants' 90 MOTION for Leave to File Late Pleading as a motion for relief from a deadline and renotes the motion for 7/20/2018, pursuant to LCR 7(d)(2)(A). (VE) (Entered: 07/06/2018)
91 NOTICE of Appearance by attorney Alexander J Halaska on behalf of Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice. (Halaska, Alexander) (Entered: 07/09/2018)
92 NOTICE to Withdraw Pending Motion re 87 MOTION for Protective Order , 90 MOTION for Leave to File Late Pleading - Defendants' Opposition to Motion for Protective Order ; by Plaintiffs Yuk Man Maggie Cheng, Northwest Immigrant Rights Project. (Corning, James) (Entered: 07/13/2018)

07/19/2018 08/09/2018 08/09/2018 08/14/2018
08/14/2018
08/14/2018 08/15/2018

93 NOTICE of Change of Address/Change of Name of Attorney Richard M Stephens. Filed by Amicus Immigration Reform Law Institute. (Stephens, Richard) Modified firm address on 7/20/2018 (DS). (Entered: 07/19/2018)
94 Stipulated MOTION and Proposed Order to Appoint Magistrate Judge for Mediation and Stay Proceedings, filed by Plaintiffs Yuk Man Maggie Cheng, Northwest Immigrant Rights Project. Noting Date 8/9/2018, (Allen, Jaime) (Entered: 08/09/2018)
Set Hearing: TELEPHONE CONFERENCE set for 8/14/2018 at 10:00 AM before Judge Richard A. Jones. (VE) (Entered: 08/09/2018)
95 MINUTE ENTRY for proceedings held before Judge Richard A. Jones Dep Clerk: Victoria Ericksen; Pla Counsel:JaimeAllen, James Corning; Def Counsel: Carlton Sheffield, Victor Mercado-Santana, Gladys Steffans-Guzman; CR:Andrea Ramirez; TELEPHONE CONFERENCE held on 8/14/2018. The Court hears from counsel, and for the reasons stated on the record, GRANTS the parties' 94 Stipulated MOTION to Appoint Magistrate Judge for Mediation and Stay Proceedings. The Court will appoint a magistrate judge to conduct a mediation and will stay this matter through 12/5/2018. The parties shall mutually exchange mediation briefs on 9/5/2018. No later than 11/5/2018, or within 10 days after the conclusion of the mediation, whichever occurs first, the parties shall submit a joint status report, and if necessary, propose new dispositive motion cutoff and trial dates. (VE) (Entered: 08/14/2018)
96 MINUTE ORDER entered upon the authority of Judge Richard A. Jones. The Court GRANTS the parties' 94 Stipulated MOTION to Appoint Magistrate Judge for Mediation and Stay Proceedings. The Court will refer this matter to a magistrate judge to conduct a mediation. This matter is stayed through 12/5/2018. The parties shall mutually exchange mediation briefs on 9/5/2018. No later than 11/5/2018, or within 10 days after the conclusion of the mediation, whichever occurs first, the parties shall submit a joint status report apprising the Court of the status of this matter, and if necessary, proposing new dispositive motion cutoff and trial dates. (VE) (Entered: 08/14/2018)
***Deadlines/Hearings terminated: The trial date and all remaining pretrial deadlines are VACATED, to be reset if necessary after mediation. This matter is stayed through 12/5/2018. (VE) (Entered: 08/14/2018)
97 MINUTE ORDER entered upon the authority of Judge Richard A. Jones referring this matter to Magistrate Judge Mary Alice Theiler for the purposes of conducting a mediation. The parties will be contacted by Judge Theiler's staff regarding scheduling. (VE) (Entered: 08/15/2018)

08/16/2018 09/18/2018 11/01/2018 11/08/2018 11/29/2018 11/30/2018
12/13/2018 01/07/2019 01/08/2019

98 ORDER REGARDING SETTLEMENT CONFERENCE by Hon. Mary Alice Theiler. Settlement Conference set for 9/18/2018 at 09:30 AM in Courtroom 12A before Hon. Mary Alice Theiler. (KMP) (Entered: 08/16/2018)
99 MINUTE ENTRY for proceedings held before Hon. Mary Alice TheilerTime of Hearing: 9:30am; Courtroom:12A;Settlement Conference held on 9/18/2018. (KMP) (Entered: 09/18/2018)
100 JOINT STATUS REPORT signed by all parties (Sheffield, Carlton) (Entered: 11/01/2018)
101 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Glenda Melinda Aldana Madrid for Plaintiffs Yuk Man Maggie Cheng, Northwest Immigrant Rights Project. (Aldana Madrid, Glenda) (Entered: 11/08/2018)
102 Stipulated MOTION and [Proposed] Order to Extend Stay of Proceedings, filed by Plaintiffs Yuk Man Maggie Cheng, Northwest Immigrant Rights Project. Noting Date 11/29/2018, (Allen, Jaime) (Entered: 11/29/2018)
Set deadline: Having considered the parties' 102 Stipulated MOTION to Extend Stay of Proceedings, and finding good cause, the stay of this matter is extended through 1/18/2019. At the conclusion of the stay, the parties shall submit a joint status report appraising the Court of the status of this matter and, if necessary, proposing new dispositive motion cutoff and trial dates. (VE) (Entered: 11/30/2018)
103 NOTICE of Change of Address/Change of Name of Attorney Jaime Drozd Allen. Filed by Plaintiffs Yuk Man Maggie Cheng, Northwest Immigrant Rights Project. (Allen, Jaime) Modified address on 12/13/2018 (DS). (Entered: 12/13/2018)
104 Stipulated MOTION and Proposed Order to Stay Proceedings Pending Restoration of Funding Appropriations, filed by Plaintiffs Yuk Man Maggie Cheng, Northwest Immigrant Rights Project. Noting Date 1/7/2019, (Allen, Jaime) (Entered: 01/07/2019)
Reset Deadline: Having considered the parties' 104 Stipulated MOTION to Stay Proceedings Pending Restoration of Funding Appropriations, and finding good cause, the stay of this matter is extended for ten (10) days after funding appropriations are restored for Defendants' counsel, at which time the parties shall submit a joint status report appraising the Court of the status of this matter and propose new deadlines for a stay so the parties can continue to work on their potential settlement agreement. (VE) (Entered: 01/08/2019)

02/01/2019 02/01/2019
03/28/2019 03/28/2019 04/04/2019
04/09/2019 04/11/2019
04/17/2019 04/17/2019 04/18/2019

105 STIPULATION AND PROPOSED ORDER Staying Proceedings by parties re Set/Reset Deadlines,,, Terminate Motions,, (Allen, Jaime) (Entered: 02/01/2019)
Having considered the parties' 105 STIPULATION Staying Proceedings, and finding good cause, the Court extends the stay in this matter until 3/28/2019, except that the stay will be extended by any additional days in which funding is lapsed between now and 3/28/2019, at which time the parties shall submit a joint status report appraising the Court of the status of this matter and propose new deadlines for a stay so the parties can continue to work on their potential settlement agreement. (VE) (Entered: 02/01/2019)
106 JOINT STATUS REPORT and PROPOSED ORDER signed by all parties estimated Trial Days: 0. (Allen, Jaime) Modified on 3/28/2019 (PS). (Entered: 03/28/2019)
NOTICE of Docket Text Modification re 106 Joint Status Report : Amended docket text to correctly indicate inclusion of Proposed Order, per counsel request. (PS) (Entered: 03/28/2019)
Set Deadline: Having considered the parties' 106 JOINT STATUS REPORT, and finding good cause, the Court extends the stay in this matter to 4/9/2019, at which time the parties shall submit a joint motion to stay proceedings pending rulemaking pursuant to the parties' settlement agreement. (VE) (Entered: 04/04/2019)
107 Stipulated MOTION TO STAYING PROCEEDINGS, filed by Plaintiffs Yuk Man Maggie Cheng, Northwest Immigrant Rights Project. Noting Date 4/9/2019, (Allen, Jaime) (Entered: 04/09/2019)
Reset Deadline: Having considered the parties' 107 Stipulated MOTION TO STAYING PROCEEDINGS, and finding good cause, the Court extends the stay in this matter to 4/17/2019, at which time the parties shall submit a joint motion to stay proceedings pending rulemaking pursuant to the parties' settlement agreement. (VE) (Entered: 04/11/2019)
108 STIPULATION AND PROPOSED ORDER staying proceedings by parties (Mercado-Santana, Victor) (Entered: 04/17/2019)
109 NOTICE of Settlement AND FILING OF SETTLEMENT AGREEMENT by Plaintiffs Yuk Man Maggie Cheng, Northwest Immigrant Rights Project (Allen, Jaime) (Entered: 04/17/2019)
Reset Deadline: Having considered the parties' 108 STIPULATION staying proceedings, and finding good cause, the Court extends the stay in this matter pending rulemaking until 1/17/2020, at which time the parties shall submit a joint status report

regarding whether a further stay of proceedings is necessary. (VE) (Entered: 04/18/2019)

 
 5/10/2017 NWIRP Challenges Order from Department of Justice to Cease and Desist Providing Legal Assistance to Unrepresented Individuals in Deportation Proceedings…
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NWIRP CHALLENGES ORDER FROM DEPARTMENT OF JUSTICE TO CEASE AND DESIST PROVIDING LEGAL ASSISTANCE TO UNREPRESENTED INDIVIDUALS IN DEPORTATION PROCEEDINGS

Today, Northwest Immigrant Rights Project led a lawsuit in federal district court challenging an order from the Department of Justice instructing NWIRP to “cease and desist” from assisting unrepresented immigrants in deportation proceedings. The DOJ letter purports to rely on agency regulations issued in 2008 that require attorneys to enter a formal notice of appearance if they provide any legal assistance to persons in deportation proceedings. However, the immigration courts do not allow limited appearances, so once an attorney les a notice of appearance they are obligated to take over full representation in the deportation proceedings.
There is no right to a public defender or appointed counsel in immigration court. Consequently, the majority of people do not have attorneys to represent them in those proceedings. Given the resulting grave need for legal representation and NWIRP’s limited resources, the cease and desist order threatens to preclude the majority of people in deportation proceedings in Washington State from receiving any legal assistance in their cases.
For over thirty years NWIRP has been providing community presentations, workshops, and individual consultations to help people in deportation proceedings understand their rights and identify defenses from deportation and types of immigration relief. Last year alone NWIRP screened over a thousand people with cases pending before the immigration tribunals, and more than six hundred persons seeking to apply for asylum. While NWIRP is able to provide full representation in some of those cases, the majority of people are left without an attorney. In response, NWIRP has historically provided limited assistance to help those individuals ll out applications for asylum, cancellation of removal, family visas; le motions to reopen removal proceedings, change venue, and to terminate proceedings; and advise them on defenses, forms of relief, and the procedural requirements for moving forward on cases. But now the cease and desist order has caused a dramatic and immediate impact in the way NWIRP is able to serve hundreds of unrepresented persons.
The lawsuit, led by NWIRP and the cooperating law rm of Davis Wright Tremaine LLP, asserts that the DOJ order violates NWIRP attorneys’ constitutional right to free speech, impeding their ability to promote and defend the rights of immigrants in Washington State. In addition, the suit charges that the regulation unlawfully interferes with Washington’s authority to regulate the conduct of how Washington State attorneys provide legal services.
“The cease and desist letter has slammed the door on the only chance hundreds of unrepresented individuals have to receive any legal assistance,” said Matt Adams, Legal Director for NWIRP. “But we will not be so easily deterred. We are asking the Court to protect our rights to advocate on behalf of immigrants, including children and people locked up in immigration detention, who have no other avenues for help.”
A copy of the complaint can be found here. A copy of the motion for temporary restraining order can be found here. A copy of the cease and desist letter can be found here.

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