U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:20-cv-05883-JSW

ADRMOP

Immigrant Legal Resource Center et al v. Wolf et al Assigned to: Judge Jeffrey S. White Cause: 05:702 Administrative Procedure Act

Date Filed: 08/20/2020 Jury Demand: Plaintiff Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff Immigrant Legal Resource Center

represented by Chelsea B. Davis Sidley Austin LLP 555 California Street San Francisco, CA 94104 415-772-1217 Email: chelsea.davis@sidley.com TERMINATED: 08/27/2020

Jesse Matthew Bless American Immigration Lawyers Association 1331 G St NW, Ste 300 Washington, DC 20005 781-704-3897 Email: jbless@aila.org PRO HAC VICE ATTORNEY TO BE NOTICED

Naomi Ariel Igra Sidley Austin LLP 555 California Street Suite 2000 San Francisco, CA 94104 415-772-1495 Email: nigra@sidley.com ATTORNEY TO BE NOTICED

Plaintiff East Bay Sanctuary Covenant

Samina M Bharmal Sidley Austin LLP 1501 K Street, NW Washington, DC 20005 202-736-8350 Fax: 202-736-8711 Email: sbharmal@sidley.com PRO HAC VICE ATTORNEY TO BE NOTICED
Brian Joseph Stretch Sidley Austin LLP 555 California Street Suite 2000 San Francisco, CA 94104 415 772 1227 Email: Bstretch@sidley.com ATTORNEY TO BE NOTICED
represented by Chelsea B. Davis (See above for address) TERMINATED: 08/27/2020
Jesse Matthew Bless (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Samina M Bharmal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brian Joseph Stretch (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Coalition for Humane Immigrant Rights
Plaintiff Catholic Legal Immigration Network, Inc.
Plaintiff International Rescue Committee

represented by Chelsea B. Davis (See above for address) TERMINATED: 08/27/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Samina M Bharmal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brian Joseph Stretch (See above for address) ATTORNEY TO BE NOTICED
represented by Chelsea B. Davis (See above for address) TERMINATED: 08/27/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Samina M Bharmal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brian Joseph Stretch (See above for address) ATTORNEY TO BE NOTICED
represented by Chelsea B. Davis (See above for address) TERMINATED: 08/27/2020
Jesse Matthew Bless (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff OneAmerica
Plaintiff Asian Counseling and Referral Service

Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Samina M Bharmal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brian Joseph Stretch (See above for address) ATTORNEY TO BE NOTICED
represented by Chelsea B. Davis (See above for address) TERMINATED: 08/27/2020
Jesse Matthew Bless (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Samina M Bharmal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brian Joseph Stretch (See above for address) ATTORNEY TO BE NOTICED
represented by Chelsea B. Davis (See above for address) TERMINATED: 08/27/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Illinois Coalition for Immigrant and Refugee Rights
V. Defendant Chad F. Wolf

Samina M Bharmal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brian Joseph Stretch (See above for address) ATTORNEY TO BE NOTICED
represented by Chelsea B. Davis (See above for address) TERMINATED: 08/27/2020
Jesse Matthew Bless (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Samina M Bharmal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brian Joseph Stretch (See above for address) ATTORNEY TO BE NOTICED
represented by Julie Straus Harris U.S. Department of Justice Civil Division 1100 L Street NW Washington, DC 20005 202-353-7633 Fax: 202-616-8470 Email: julie.strausharris@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant U.S. Department of Homeland Security
Defendant Kenneth T. Cuccinelli

Bradley Craigmyle U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L St. NW Washington, DC 20005 202-616-8101 Email: Bradley.T.Craigmyle@usdoj.gov ATTORNEY TO BE NOTICED
Charles E.T. Roberts U.S. Department of Justice Civil Division - Federal Programs Branch 1100 L Street NW Washington, DC 20005 202-305-8628 Email: charles.e.roberts@usdoj.gov ATTORNEY TO BE NOTICED
represented by Julie Straus Harris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Craigmyle (See above for address) ATTORNEY TO BE NOTICED
Charles E.T. Roberts (See above for address) ATTORNEY TO BE NOTICED
represented by Julie Straus Harris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Craigmyle (See above for address) ATTORNEY TO BE NOTICED

Defendant U.S. Citizenship & Immigration Services
Amicus Constitutional Accountability Center
Amicus Cato Institute

Charles E.T. Roberts (See above for address) ATTORNEY TO BE NOTICED
represented by Julie Straus Harris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Craigmyle (See above for address) ATTORNEY TO BE NOTICED
Charles E.T. Roberts (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra Constitutional Accountability Center 1200 18th Street, NW Suite 501 Washington, DC 20036 202 296 6889 Fax: 202 296 6895 Email: elizabeth@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Allison Ann Davis Davis Wright Tremaine LLP 505 Montgomery Street Suite 800 San Francisco, CA 94111 415-276-6500 Fax: 415-276-4880 Email: allisondavis@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Alliance of Business Immigration Lawyers, Inc.
Amicus State of California

Mark Howard Rogge Davis Wright Tremaine LLP 505 Montgomery St Suite 800 San Francisco, CA 94111 United Sta 415-276-6537 Fax: (415) 276-6599 Email: markrogge@dwt.com ATTORNEY TO BE NOTICED
represented by Angelo A. Paparelli Seyfarth Shaw LLP 601 S. Figueroa St., Suite 3300 Los Angeles, CA 90017-5793 United Sta (213)270-9797 Email: Apaparelli@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Jeffrey Malm Seyfarth Shaw LLP 601 South Figueroa Street Suite 3300 Los Angeles, CA 90017 2132709600 Email: smalm@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Hawthorne Downer Department of Justice Civil Rights 1300 I Street Sacramento, CA 95814 916-210-6120 Fax: 916-327-2319 Email: william.downer@doj.ca.gov ATTORNEY TO BE NOTICED

Amicus Immigration Reform Law Institute
Amicus Amicus Curiae 21 Counties, Cities, and Municipalities
Amicus NONPROFIT IMMIGRATION ADVOCATES AND LEGAL AND SOCIAL SERVICE PROVIDERS

represented by Lawrence John Joseph Law Office of Lawrence J. Joseph 1250 Connecticut Avenue, NW, Suite 700-1A Washington, DC 20036 (202) 355-9452 Fax: (202) 318-2254 Email: ljoseph@larryjoseph.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Julia Blau Spiegel Santa Clara County Counsel's Office 70 West Hedding Street East Wing, 9th Floor San Jose, CA 95110 United Sta 650-740-6621 Fax: 6507406621 Email: julia.spiegel@cco.sccgov.org ATTORNEY TO BE NOTICED
represented by Joseph Daniel Lee Munger Tolles & Olson LLP 350 South Grand Avenue 50th Floor Los Angeles, CA 90071 213-683-9157 Fax: 213-687-3702 Email: joseph.lee@mto.com ATTORNEY TO BE NOTICED
Keren Hart Zwick National Immigrant Justice Center 224 S. Michigan Ave. Suite 600 Chicago, IL 60604 United Sta 312-660-1364 Fax: 312-660-1505 Email: kzwick@heartlandalliance.org ATTORNEY TO BE NOTICED

Amicus State of Connecticut
Amicus District of Columbia
Amicus State of Delaware
Amicus State of Hawaii
Amicus State of Illinois
Amicus State of Maryland
Amicus State of Massachusetts

Scott Shuchart Kids in Need of Defense (KIND) 1201 L St., NW 2nd Floor Washington, DC 20005 202-318-0595 Fax: 202-824-0702 Email: sshuchart@supportkind.org PRO HAC VICE ATTORNEY TO BE NOTICED
Xiaonan April Hu Munger, Tolles and Olson LLP 1155 F Street NW 7th Floor Washington, DC 20004 United Sta 202-220-1123 Fax: 202-220-2300 Email: april.hu@mto.com PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus State of Michigan
Amicus State of Minnesota
Amicus State of Nevada
Amicus State of New Jersey
Amicus State of New Mexico
Amicus State of New York
Amicus State of Oregon
Amicus State of Pennsylvania
Amicus State of Rhode Island
Amicus State of Vermont
Amicus State of Washington
Amicus Reclaim the Records

represented by Matthew Daniel Strugar 2108 Cove Avenuye Los Angeles, CA 90039 323-696-2299 Email: matthew@matthewstrugar.com ATTORNEY TO BE NOTICED

Date Filed 08/20/2020
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# Docket Text
1 COMPLAINT For Injunctive Relief and Administrative Procedure Case against All Defendants with jury demand ( Filing fee $ 400, receipt number 0971-14843547.). Filed by OneAmerica, Coalition for Humane Immigrant Rights, Asian Counseling and Referral Service, East Bay Sanctuary Covenant, Illinois Coalition for Immigrant and Refugee Rights, Catholic Legal Immigration Network, Inc., Immigrant Legal Resource Center, International Rescue Committee. (Attachments:
# 1 Civil Cover Sheet)(Stretch, Brian) (Filed on 8/20/2020) Modified on 8/24/2020 (jmlS, COURT STAFF). (Entered: 08/20/2020)
2 Proposed Summons. (Stretch, Brian) (Filed on 8/20/2020) (Entered: 08/20/2020)
3 NOTICE of Appearance by Naomi Ariel Igra (Igra, Naomi) (Filed on 8/20/2020) (Entered: 08/20/2020)
4 NOTICE of Appearance by Chelsea B. Davis (Davis, Chelsea) (Filed on 8/20/2020) (Entered: 08/20/2020)
5 MOTION for leave to appear in Pro Hac Vice of Samina Bharmal ( Filing fee $ 310, receipt number 0971-14843684.) filed by Asian Counseling and Referral Service, Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights, East Bay Sanctuary Covenant, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, International Rescue Committee, OneAmerica. (Bharmal, Samina) (Filed on 8/20/2020) (Entered: 08/20/2020)
6 Corporate Disclosure Statement by Asian Counseling and Referral Service and Certification of Interested Entities or Persons (Stretch, Brian) (Filed on 8/20/2020) (Entered: 08/20/2020)
7 Corporate Disclosure Statement by Coalition for Humane Immigrant Rights and Certification of Interested Entities or Persons (Stretch, Brian) (Filed on 8/20/2020) (Entered: 08/20/2020)
8 Corporate Disclosure Statement by Catholic Legal Immigration Network, Inc. and Certification of Interested Entities or Persons (Stretch, Brian) (Filed on 8/20/2020) (Entered: 08/20/2020)
9 Corporate Disclosure Statement by East Bay Sanctuary Covenant and Certification of Interested Entities or Persons (Stretch, Brian) (Filed on 8/20/2020) (Entered: 08/20/2020)

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10 Corporate Disclosure Statement by Illinois Coalition for Immigrant and Refugee Rights and Certification of Interested Entities or Persons (Stretch, Brian) (Filed on 8/20/2020) (Entered: 08/20/2020)
11 Corporate Disclosure Statement by International Rescue Committee and Certification of Interested Entities or Persons (Stretch, Brian) (Filed on 8/20/2020) (Entered: 08/20/2020)
12 Corporate Disclosure Statement by OneAmerica and Certification of Interested Entities or Persons (Stretch, Brian) (Filed on 8/20/2020) (Entered: 08/20/2020)
13 Corporate Disclosure Statement by Immigrant Legal Resource Center and Certification of Interested Entities or Persons (Stretch, Brian) (Filed on 8/20/2020) (Entered: 08/20/2020)
14 Case assigned to Magistrate Judge Donna M. Ryu.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 9/4/2020. (cv, COURT STAFF) (Filed on 8/21/2020) (Entered: 08/21/2020)
15 ORDER by Magistrate Judge Donna M. Ryu granting 5 Samina M. Bharmal's Motion for admission Pro Hac Vice. (ig, COURT STAFF) (Filed on 8/21/2020) (Entered: 08/21/2020)
Electronic filing error. A maximum of THREE summons will be issued. Please list all defendants on ONE summons or multiple defendants on THREE summons and re-file in its entirety. Re: 2 Proposed Summons filed by Illinois Coalition for Immigrant and Refugee Rights, East Bay Sanctuary Covenant, International Rescue Committee, Immigrant Legal Resource Center, Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights, OneAmerica, Asian Counseling and Referral Service (jmlS, COURT STAFF) (Filed on 8/21/2020) (Entered: 08/24/2020)

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08/24/2020 08/24/2020 08/24/2020

16 MOTION for leave to appear in Pro Hac Vice Re: Jesse Bless (Filing fee $310, receipt number 0971-14850768) filed by East Bay Sanctuary Covenant, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, International Rescue Committee, OneAmerica. (Bless, Jesse) (Filed on 8/24/2020) Modified on 8/25/2020 (cjlS, COURT STAFF). (Entered: 08/24/2020)
17 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 11/25/2020. Initial Case Management Conference set for 12/2/2020 01:30 PM in Oakland, Courtroom 4, 3rd Floor. (jmlS, COURT STAFF) (Filed on 8/24/2020) (Entered: 08/24/2020)
18 ORDER by Magistrate Judge Donna M. Ryu granting 16 Jesse Bless's Motion for admission Pro Hac Vice. (ig, COURT STAFF) (Filed on 8/24/2020) (Entered: 08/24/2020)
19 Proposed Summons. (Stretch, Brian) (Filed on 8/24/2020) (Entered: 08/24/2020)
20 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Asian Counseling and Referral Service, Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights, East Bay Sanctuary Covenant, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, International Rescue Committee, OneAmerica, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, Kenneth T. Cuccinelli and Chad Wolf. (Stretch, Brian) (Filed on 8/24/2020) Modified on 8/24/2020 (jmlS, COURT STAFF). (Entered: 08/24/2020)
21 NOTICE of Appearance by Julie Straus Harris (Straus Harris, Julie) (Filed on 8/24/2020) (Entered: 08/24/2020)
22 Summons Issued as to Kenneth T. Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf, U.S. Attorney and U.S. Attorney General. (jmlS, COURT STAFF) (Filed on 8/24/2020) (Entered: 08/24/2020)
23 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned.

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ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE-NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.
This is a text only docket entry; there is no document associated with this notice. (ig, COURT STAFF) (Filed on 8/24/2020) (Entered: 08/24/2020)
24 ORDER REASSIGNING CASE. Case reassigned using a proportionate, random, and blind system pursuant to General Order No. 44 to Judge Jeffrey S. White for all further proceedings. Magistrate Judge Donna M. Ryu no longer assigned to case, Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See General Order No. 65 and http://cand.uscourts.gov/cameras. Signed by the Clerk on 8/24/2020. (Attachments: # 1 Notice of Eligibility for Video Recording)(anjS, COURT STAFF) (Filed on 8/24/2020) (Entered: 08/24/2020)
25 ORDER SETTING CASE MANAGEMENT CONFERENCE AND REQUIRING JOINT CASE MANAGEMENT CONFERENCE STATEMENT. Signed by Judge JEFFREY S. WHITE on 8/25/20. Joint Case Management Statement due by 11/27/2020. Initial Case Management Conference set for 12/4/2020 11:00 AM. (jjoS, COURT STAFF) (Filed on 8/25/2020) (Entered: 08/25/2020)
26 CERTIFICATE OF SERVICE by Asian Counseling and Referral Service, Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights, East Bay Sanctuary Covenant, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, International Rescue Committee, OneAmerica re 1 Complaint,, (Stretch, Brian) (Filed on 8/25/2020) (Entered: 08/25/2020)
27 MOTION for Preliminary Injunction and Memorandum of Points and Authorities In Support Thereof, And Petition For Review and Request for Stay filed by Asian Counseling and Referral Service, Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights, East Bay Sanctuary Covenant, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, International Rescue Committee, OneAmerica. Motion Hearing set for 10/9/2020 09:00 AM in Oakland, Courtroom 5, 2nd Floor before Judge Jeffrey S. White. Responses due by 9/8/2020. Replies due by 9/15/2020. (Attachments: # 1 Declaration Brian J. Stretch, # 2 Exhibit 1-12 to

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Brian J. Strech Declaration, # 3 Exhibit 13-34 to Brian J. Stretch Declaration, # 4 Declaration Lawrence Benito, # 5 Declaration Olga Byrne, # 6 Declaration Michael Byun, # 7 Declaration Jeff Chenoweth, # 8 Declaration Douglas B. Rand, # 9 Declaration Duncan Lawrence, PhD., # 10 Declaration Michael Smith, # 11 Declaration Manuel Pastor Jr., # 12 Declaration Melissa Rodgers, # 13 Declaration Angelica Salas, # 14 Declaration Rich Stolz, # 15 Proposed Order)(Stretch, Brian) (Filed on 8/25/2020) (Entered: 08/25/2020)
28 ORDER Requiring Delivery of Chambers Copies of 27
MOTION for Preliminary Injunction and Memorandum of Points and Authorities In Support Thereof, And Petition For Review and Request for Stay and 1 Complaint. Signed by Judge Jeffrey S. White on August 26, 2020. (jswlc2S, COURT STAFF) (Filed on 8/26/2020) (Entered: 08/26/2020)
29 NOTICE OF WITHDRAWAL OF CHELSEA DAVIS AS COUNSEL FOR PLAINTIFFS by Asian Counseling and Referral Service, Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights, East Bay Sanctuary Covenant, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, International Rescue Committee, OneAmerica. (Davis, Chelsea) (Filed on 8/27/2020) Modified on 8/28/2020 (cjlS, COURT STAFF). (Entered: 08/27/2020)
30 Joint MOTION to Modify Schedule filed by Asian Counseling and Referral Service, Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights, East Bay Sanctuary Covenant, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, International Rescue Committee, OneAmerica, Kenneth T. Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf. (Attachments: # 1 Declaration of Brian J. Stretch, # 2 Proposed Order)(Stretch, Brian) (Filed on 8/27/2020) Modified on 8/28/2020 (cjlS, COURT STAFF). (Entered: 08/27/2020)
31 ORDER GRANTING AS MODIFIED 30 Joint Motion to Modify
Schedule on 27 Plaintiff's Motion for a Preliminary Injunction. Opposition to Motion due by 12:00 p.m. 9/9/2020. Amicus Briefs due by 9/9/2020 at 12:00 p.m. Plaintiffs' Reply due by 9/15/2020 at 12:00 p.m. Defendants' Reply to Amicus Briefs due by 9/15/2020 at 12:00 p.m. Preliminary Injunction Hearing set for 9/25/2020 09:00 AM. Signed by Judge Jeffrey S. White on August

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28, 2020. (jswlc3S, COURT STAFF) (Filed on 8/28/2020) (Entered: 08/28/2020)
32 MOTION for Leave to File Excess Pages filed by Constitutional Accountability Center. (Attachments: # 1 Proposed Order, # 2 Declaration)(Wydra, Elizabeth) (Filed on 9/3/2020) (Entered: 09/03/2020)
33 ORDER by Judge Jeffrey S. White granting 32 Motion for Leave to File Excess Pages. (jjoS, COURT STAFF) (Filed on 9/3/2020) (Entered: 09/03/2020)
34 MOTION for Leave to File as Amici Curiae in Support of Plaintiffs; Motion for Request for Excess Pages filed by Cato Institute. (Attachments: # 1 Proposed Order)(Rogge, Mark) (Filed on 9/8/2020) (Entered: 09/08/2020)
35 ORDER by Judge Jeffrey S. White granting 34 Motion for Leave to File as Amici Curiae in Support of Plaintiffs; Motion for Request for Excess Pages. (jjoS, COURT STAFF) (Filed on 9/8/2020) (Entered: 09/08/2020)
36 MOTION to File Amicus Curiae Brief with Amicus Curaie Brief attached filed by Alliance of Business Immigration Lawyers, Inc. Motion Hearing set for 9/25/2020 09:00 AM in Oakland, Courtroom 5, 2nd Floor before Judge Jeffrey S. White. Responses due by 9/22/2020. Replies due by 9/29/2020. (Attachments: # 1 Proposed Order Proposed order granting leave, # 2 Certificate/Proof of Service Certificate of Service on Parties)(Malm, Steven) (Filed on 9/8/2020) Modified on 9/9/2020 (cjlS, COURT STAFF). (Entered: 09/08/2020)
37 ORDER by Judge Jeffrey S. White granting 36 Motion to File Amicus Curiae Brief. (jjoS, COURT STAFF) (Filed on 9/9/2020) (Entered: 09/09/2020)
38 MOTION for Leave to File Amicus Brief filed by Constitutional Accountability Center. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Wydra, Elizabeth) (Filed on 9/9/2020) (Entered: 09/09/2020)
39 BRIEF FOR AMICUS CURIAE CATO INSTITUTE IN SUPPORT OF PLAINTIFFS by Allison Ann Davis on behalf of Cato Institute. (Davis, Allison) (Filed on 9/9/2020) Modified on 9/9/2020 (cjlS, COURT STAFF). (Entered: 09/09/2020)
40 MOTION to File Amicus Curiae Brief filed by State of California. Responses due by 9/23/2020. Replies due by 9/30/2020. (Attachments:

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# 1 Exhibit Amicus Curiae Brief of the States of California, Connecticut, District of Columbia, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington in Support of Plaintiffs Motion for Preliminary Injunction, # 2 Proposed Order [Proposed] Order Granting Motion for Leave to File Amicus Curiae Brief in Support of Plaintiffs Motion for Preliminary Injunction)(Downer, William) (Filed on 9/9/2020) (Entered: 09/09/2020)
41 ORDER by Judge Jeffrey S. White granting AS MODIFIED 38 Motion for Leave to File Amicus Brief filed by Constitutional Accountability Center.. (jjoS, COURT STAFF) (Filed on 9/9/2020) (Entered: 09/09/2020)
42 MOTION to File Amicus Curiae Brief Memorandum of Law in Support of Defendants as Amicus Curiae filed by Immigration Reform Law Institute. Responses due by 9/23/2020. Replies due by 9/30/2020.
(Attachments: # 1 Exhibit Proposed Amicus Memo of Law, # 2 Proposed Order Proposed Order)(Joseph, Lawrence) (Filed on 9/9/2020) (Entered: 09/09/2020)
43 MOTION for Leave to File Amicus Brief filed by Amicus Curiae 21 Counties, Cities, and Municipalities. (Attachments: # 1 Proposed Order)(Spiegel, Julia) (Filed on 9/9/2020) (Entered: 09/09/2020)
44 NOTICE of Appearance by Bradley Craigmyle (Craigmyle, Bradley) (Filed on 9/9/2020) (Entered: 09/09/2020)
45 INCORRECT DOCUMENT ATTACHED - PLEASE DISREGARD AND SEE DOCUMENT 53 ORDER by Judge JEFFREY S. WHITE granting 40 Motion to File Amicus Curiae Brief filed by State of California. (jjoS, COURT STAFF) (Filed on 9/9/2020) Modified on 9/9/2020 (jjoS, COURT STAFF). (Entered: 09/09/2020)
46 ORDER by Judge JEFFREY S. WHITE granting 42 Motion to File Amicus Curiae Brief. (jjoS, COURT STAFF) (Filed on 9/9/2020) (Entered: 09/09/2020)
47 MOTION to File Amicus Curiae Brief filed by NONPROFIT IMMIGRATION ADVOCATES AND LEGAL AND SOCIAL SERVICE PROVIDERS. Motion Hearing set for 10/9/2020 09:00 AM in Oakland, Courtroom 5, 2nd Floor before Judge Jeffrey S. White. Responses due by 9/23/2020. Replies due by 9/30/2020. (Attachments:

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# 1 Exhibit Exhibit 1, # 2 Proposed Order)(Lee, Joseph) (Filed on 9/9/2020) (Entered: 09/09/2020)
48 ORDER by Judge JEFFREY S. WHITE granting 43 Motion for Leave to File Amicus Brief filed by Amicus Curiae 21 Counties, Cities, and Municipalities. (jjoS, COURT STAFF) (Filed on 9/9/2020) (Entered: 09/09/2020)
49 OPPOSITION/RESPONSE (re 27 MOTION for Preliminary Injunction and Memorandum of Points and Authorities In Support Thereof, And Petition For Review and Request for Stay ) filed byKenneth T. Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf. (Straus Harris, Julie) (Filed on 9/9/2020) (Entered: 09/09/2020)
50 ORDER by Judge JEFFREY S. WHITE granting 47 Motion to File Amicus Curiae Brief by IMMIGRATION ADVOCATES AND LEGAL AND SOCIAL SERVICE PROVIDERS. (jjoS, COURT STAFF) (Filed on 9/9/2020) (Entered: 09/09/2020)
51 Brief of Amicus Curiae Immigration Reform Law Institute in Support of Defendants Opposition to Plaintiff's Motion for Preliminary Injunction and Stay re 46 Order on Motion to File by Immigration Reform Law Institute. (Joseph, Lawrence) (Filed on 9/9/2020) Modified on 9/9/2020 (cjlS, COURT STAFF). (Entered: 09/09/2020)
52 Proposed Order re 49 Opposition/Response to Motion, by Kenneth T. Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf. (Straus Harris, Julie) (Filed on 9/9/2020) (Entered: 09/09/2020)
53 ORDER by Judge JEFFREY S. WHITE granting 40 Motion to File Amicus Curiae Brief filed by State of California. Signed by Judge Jeffrey S. White on 9/9/20. (jjoS, COURT STAFF) (Filed on 9/9/2020) (Entered: 09/09/2020)
54 Amicus Curiae Brief filed by Amicus Curiae 21 Counties, Cities, and Municipalities. (Spiegel, Julia) (Filed on 9/9/2020) Modified on 9/9/2020 (cjlS, COURT STAFF). (Entered: 09/09/2020)
55 Amicus Curiae Brief in Support of Plaintiffs Motion for Preliminary Injunction filed by State of California, State of Connecticut, District of Columbia, State of Delaware, State of Hawaii, State of Illinois, State of Maryland, State of Massachusetts, State of Michigan, State of Minnesota, State of Nevada, State of New Jersey, State of New Mexico, State of New York, State of Oregon, State of Pennsylvania, State of

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Rhode Island, State of Vermont, State of Washington. (Downer, William) (Filed on 9/9/2020) Modified on 9/9/2020 (cjlS, COURT STAFF). (Entered: 09/09/2020)
56 MOTION for leave to appear in Pro Hac Vice Re; Scott Shuchart (Filing fee $ 310, receipt number 0971-14920024.) filed by NONPROFIT IMMIGRATION ADVOCATES AND LEGAL AND SOCIAL SERVICE PROVIDERS. (Shuchart, Scott) (Filed on 9/9/2020) Modified on 9/9/2020 (cjlS, COURT STAFF). (Entered: 09/09/2020)
57 MOTION for leave to appear in Pro Hac Vice Re: Xiaonan April Hu (Filing fee $ 310, receipt number 0971-14920094.) filed by NONPROFIT IMMIGRATION ADVOCATES AND LEGAL AND SOCIAL SERVICE PROVIDERS. (Hu, Xiaonan) (Filed on 9/9/2020) Modified on 9/9/2020 (cjlS, COURT STAFF). (Entered: 09/09/2020)
58 ORDER REQUIRING FEDEX DELIVERY OF TWO SETS OF CHAMBERS COPIES OF DEFENDANTS BRIEF AND ADDITIONAL MATERIALS. Signed by Judge Jeffrey S. White on 9/9/20. (jjoS, COURT STAFF) (Filed on 9/9/2020) (Entered: 09/09/2020)
59 ORDER by Judge Jeffrey S. White granting 56 Motion for Pro Hac Vice re Scott Shuchart. (jjoS, COURT STAFF) (Filed on 9/9/2020) (Entered: 09/09/2020)
60 ORDER by Judge Jeffrey S. White granting 57 Motion for Pro Hac Vice re Xiaonan April Hu. (jjoS, COURT STAFF) (Filed on 9/9/2020) (Entered: 09/09/2020)
61 NOTICE of Appearance by Angelo A. Paparelli (Attachments: # 1 Certificate/Proof of Service Certificate of Filing and Service)(Paparelli, Angelo) (Filed on 9/9/2020) (Entered: 09/09/2020)
62 MOTION for leave to appear in Pro Hac Vice Re: Keren Z wick (Filing fee $ 310, receipt number 0971-14923115) filed by NONPROFIT IMMIGRATION ADVOCATES AND LEGAL AND SOCIAL SERVICE PROVIDERS. (Zwick, Keren) (Filed on 9/10/2020) Modified on 9/10/2020 (cjlS, COURT STAFF). (Entered: 09/10/2020)
63 ORDER by Judge Jeffrey S. White granting 62 Motion for Pro Hac Vice re Keren Zwick. (jjoS, COURT STAFF) (Filed on 9/10/2020) (Entered: 09/10/2020)

09/10/2020 09/10/2020
09/10/2020 09/11/2020 09/11/2020 09/11/2020

64 NOTICE of Appearance by Matthew Daniel Strugar for Amicus Curiae Reclaim the Records (Strugar, Matthew) (Filed on 9/10/2020) (Entered: 09/10/2020)
65 MOTION to File Amicus Curiae Brief filed by Reclaim the Records. Motion Hearing set for 10/9/2020 09:00 AM in Oakland, Courtroom 5, 2nd Floor before Judge Jeffrey S. White. Responses due by 9/24/2020.
Replies due by 10/1/2020. (Attachments: # 1 Proposed Amicus Brief in Support of Plaintiffs' Motion for a Preliminary Injunction and
Petition for Review and Request for Stay, # 2 Proposed Order)(Strugar, Matthew) (Filed on 9/10/2020) (Entered: 09/10/2020)
66 ORDER REQUIRING RESPONSE FROM DEFENDANTS TO RESPOND TO REQUEST TO FILE AMICUS FROM RECLAIM THE RECORDS re: 65 MOTION to File Amicus Curiae Brief filed by Reclaim the Records. Signed by Judge Jeffrey S. White on 9/10/20. (jjoS, COURT STAFF) (Filed on 9/10/2020) (Entered: 09/10/2020)
67 DEFENDANTS RESPONSE TO 65 RECLAIM THE RECORDS
REQUEST TO FILE AMICUS Re: 66 Order by Kenneth T. Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf. (Straus Harris, Julie) (Filed on 9/11/2020) Modified on 9/14/2020 (cjlS, COURT STAFF). (Entered: 09/11/2020)
68 ORDER by Judge Jeffrey S. White granting 65 Motion to File Amicus Curiae Brief filed by Reclaim the Records. Responses due by 12:30 pm 9/17/2020. (jjoS, COURT STAFF) (Filed on 9/11/2020) (Entered: 09/11/2020)
69 DEFENDANTS NOTICE OF FILING OF DOCUMENTS RELEVANT TO PLAINTIFFS CLAIMS UNDER THE ADMINISTRATIVE PROCEDURE ACT ALLEGING VIOLATIONS OF THE FEDERAL VACANCIES REFORM ACT, THE HOMELAND SECURITY ACT, AND THE APPOINTMENTS CLAUSE by Kenneth T. Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf. (Attachments: # 1 Exhibit Designation of an Order of Succession for the Secretary (Apr. 9, 2019), # 2 Exhibit DHS Orders of Succession and Delegations of Authorities for Named Positions, DHS Delegation No. 00106, Revision No. 08.5 (Apr. 10, 2019))(Craigmyle, Bradley) (Filed on 9/11/2020) Modified on 9/14/2020 (cjlS, COURT STAFF). (Entered: 09/11/2020)

09/14/2020 09/14/2020
09/14/2020 09/14/2020

70 ORDER AMENDING DEADLINE TO RESPOND TO AMICUS BRIEF FROM RECLAIM THE RECORDS AND GIVING DEFENDANTS EXTENSION OF TIME TO RESPOND re 68
Order on Motion to File Amicus Curiae Brief. Signed by Judge Jeffrey S. White on 9/13/20. (jjoS, COURT STAFF) (Filed on 9/14/2020) (Entered: 09/14/2020)
71 MOTION for Leave to File Excess Pages filed by Asian Counseling and Referral Service, Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights, East Bay Sanctuary Covenant, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, International Rescue Committee, OneAmerica. (Attachments: # 1 Declaration of Brian J. Stretch in Support of Plaintiffs' Motion for Excess Pages, # 2 Proposed Order)(Stretch, Brian) (Filed on 9/14/2020) (Entered: 09/14/2020)
72 ORDER by Judge Jeffrey S. White granting 71 Motion for LEAVE TO FILE OVERSIZE REPLY AND INSTRUCTIONS TO COUNSEL (jjoS, COURT STAFF) (Filed on 9/14/2020) (Entered: 09/14/2020)
73 CLERKS NOTICE SETTING ZOOM HEARING. Preliminary Injunction Hearing set for 9/25/2020 09:00 AM. This proceeding will be held via a Zoom webinar.
Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/jsw
Court Appearances: Advanced notice is required of counsel or parties who wish to be identified by the court as making an app earance or will be participating in the argument at the hearing. A list of names and emails must be sent to the CRD at jswcrd@cand.uscourts.gov no later than 9/21/20 by 12:00 PM PDT.
General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.
Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.
(This is a text-only entry generated by the court. There is no document associated with this entry.) (jjoS, COURT S TAFF) (Filed on 9/14/2020) (Entered: 09/14/2020)

09/15/2020 09/15/2020
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74 REPLY (re 27 MOTION for Preliminary Injunction and Memorandum of Points and Authorities In Support Thereof, And Petition For Review and Request for Stay ) filed byAsian Counseling and Referral Service, Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights, East Bay Sanctuary Covenant, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, International Rescue Committee, OneAmerica. (Attachments: # 1 Declaration, # 2 Exhibit 35, # 3 Exhibit 36, # 4 Exhibit 37, # 5 Exhibit 38, # 6 Exhibit 39, # 7 Exhibit 40, # 8 Exhibit 41, # 9 Exhibit 42, # 10 Exhibit 43)(Stretch, Brian) (Filed on 9/15/2020) (Entered: 09/15/2020)
75 DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO THE BRIEFS OF AMICI CURIAE IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION re 50 Order on Motion to File Amicus
Curiae Brief, 68 Order on Motion to File Amicus Curiae Brief, 48 Order on Motion for Leave to File, 41 Order on Motion for
Leave to File, 61 Notice of Appearance, 39 Amicus Curiae
Appearance, 55 Brief by Kenneth T. Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf. (Attachments: # 1 Declaration Declaration of Bradley Craigmyle, # 2 Exhibit Exhibits to Craigmyle Declaration)(Straus Harris, Julie) (Filed on 9/15/2020) Modified on 9/16/2020 (cjlS, COURT STAFF). (Entered: 09/15/2020)
76 ORDER REQUIRING FED EX COPIES OF 75 Response to Amicus. Signed by Judge Jeffrey S. White on September 15, 2020. (jswlc3S, COURT STAFF) (Filed on 9/15/2020) (Entered: 09/15/2020)
77 NOTICE by Asian Counseling and Referral Service, Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights, East Bay Sanctuary Covenant, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, International Rescue Committee, OneAmerica Plaintiffs' Notice of Filing Relevant Documents and Request for Supplemental Briefing (Attachments: # 1
Declaration of Jesse Bless, # 2 Proposed Order, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3)(Stretch, Brian) (Filed on 9/16/2020) (Entered: 09/16/2020)

09/17/2020 09/18/2020 09/18/2020 09/21/2020
09/21/2020 09/21/2020

78 ORDER GRANTING 77 Request for Supplemental Briefing. Signed by Judge Jeffrey S. White on 9/19/20. Plaintiffs and Defendants Supplemental Briefs due by 12:00 PM 9/21/2020 and Shall not exceed 5 pages. (jjoS, COURT STAFF) (Filed on 9/17/2020) (Entered: 09/17/2020)
79 NOTICE OF QUESTIONS FOR HEARING re 27 MOTION for Preliminary Injunction. Signed by Judge Jeffrey S. White on 9/18/20. (jjoS, COURT STAFF) (Filed on 9/18/2020) (Entered: 09/18/2020)
80 NOTICE of Ratification and Legal Authority Not Cited in Defendants' Briefs by Kenneth T. Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf re 79
Order (Attachments: # 1 Declaration Declaration of Bradley Craigmyle, # 2 Exhibit CFPB v. Gordon, 819 F.3d 1179 (9th Cir. 2016))(Craigmyle, Bradley) (Filed on 9/18/2020) Modified on 9/21/2020 (jmlS, COURT STAFF). (Entered: 09/18/2020)
81 Supplemental Brief re 27 MOTION for Preliminary Injunction and Memorandum of Points and Authorities In Support Thereof, And
Petition For Review and Request for Stay, 78 Order Plaintiffs' Supplemental Brief in Support of Motion for Preliminary Injunction filed byAsian Counseling and Referral Service, Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights, East Bay Sanctuary Covenant, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, International
Rescue Committee, OneAmerica. (Related document(s) 27 , 78
) (Stretch, Brian) (Filed on 9/21/2020) (Entered: 09/21/2020)
82 DEFENDANTS SUPPLEMENTAL BRIEF IN RESPONSE TO
PLAINTIFFS FILING, ECF NO. 77 by Kenneth T. Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf. (Straus Harris, Julie) (Filed on 9/21/2020) Modified on 9/22/2020 (cjlS, COURT STAFF). (Entered: 09/21/2020)
83 ORDER PERMTTING SUPPLEMENTAL BRIEFING ON 80 Notice of Additional Authority. Signed by Judge Jeffrey S.

09/22/2020 09/23/2020
09/23/2020
09/24/2020 09/24/2020

White on September 21, 2020. (jswlc3S, COURT STAFF) (Filed on 9/21/2020) (Entered: 09/21/2020)
84 STIPULATION WITH PROPOSED ORDER to Manually File Drive Containing Electronic Copy of Administrative Record filed by Kenneth T. Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf. (Attachments: # 1 Declaration of Julie Straus Harris)(Straus Harris, Julie) (Filed on 9/22/2020) (Entered: 09/22/2020)
85 PLAINTIFFS SECOND SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION re 83 Order, 27
MOTION for Preliminary Injunction and Memorandum of Points and Authorities In Support Thereof, And Petition For Review and Request for Stay, 80 Notice (Other), filed by Asian Counseling and Referral Service, Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, International Rescue Committee, OneAmerica. (Related document(s) 83 , 27
, 80 ) (Stretch, Brian) (Filed on 9/23/2020) Modified on 9/23/2020 (cjlS, COURT STAFF). (Entered: 09/23/2020)
86 DEFENDANTS SUPPLEMENTAL BRIEF REGARDING NOTICE
OF RATIFICATION, ECF NO. 80 re 83 Order, 27 MOTION for Preliminary Injunction and Memorandum of Points and Authorities In Support Thereof, And Petition For Review and Request for Stay, 80 Notice (Other), filed by Kenneth T. Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, Chad
F. Wolf. (Related document(s) 83 , 27 , 80 ) (Straus Harris, Julie) (Filed on 9/23/2020) Modified on 9/23/2020 (cjlS, COURT STAFF). (Entered: 09/23/2020)
87 NOTICE of Appearance by Charles E.T. Roberts on behalf of Defendants. (Roberts, Charles) (Filed on 9/24/2020) (Entered: 09/24/2020)
88 NOTICE OF ADDITIONAL QUESTIONS FOR HEARING re 27
MOTION for Preliminary Injunction. Signed by Judge Jeffrey S. White on 9/24/20. (jjoS, COURT STAFF) (Filed on 9/24/2020) (Entered: 09/24/2020)

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89 ORDER GRANTING AS MODIFIED 84 STIPULATION to Manually File Drive Containing Electronic Copy of Administrative Record. Chambers Copies to be provided per Docket No. 76. Signed by Judge Jeffrey S. White on September 25, 2020. (jswlc3S, COURT STAFF) (Filed on 9/25/2020) (Entered: 09/25/2020)
90 Minute Entry for proceedings held before Judge Jeffrey S. White: Motion Hearing held on 9/25/2020. Total Time in Court: 3 hours 15 minutes. Court Reporter: Pamela Batalo Hebel. Plaintiff Attorney: Samina M. Bharmal. Defendant Attorney: Julie Straus Harris and Bradley Craigmyle. Attachment: Minute Order. (jjoS, COURT STAFF) (Date Filed: 9/25/2020) (Entered: 09/25/2020)
91 NOTICE of Filing of the Administrative Record Certification and Index by Kenneth T. Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf. (Attachments: # 1 Certification of the Administrative Record, # 2 Certified List of Contents of the Administrative Record)(Roberts, Charles) (Filed on 9/25/2020) Modified on 9/28/2020 (cjlS, COURT STAFF). (Entered: 09/25/2020)
92 NOTICE of Manual Filing of the Administrative Record by Kenneth T. Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf. (Roberts, Charles) (Filed on 9/25/2020) Modified on 9/28/2020 (cjlS, COURT STAFF). (Entered: 09/25/2020)
93 NOTICE of Supplemental Citations by Kenneth T. Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf. (Attachments: # 1 Exhibit)(Roberts, Charles) (Filed on 9/25/2020) Modified on 9/28/2020 (cjlS, COURT STAFF). (Entered: 09/25/2020)
94 TRANSCRIPT ORDER for proceedings held on 09/25/2020 before Judge Jeffrey S. White by Kenneth T. Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf, for Court Reporter Pam Batalo. (Roberts, Charles) (Filed on 9/25/2020) (Entered: 09/25/2020)
95 Plaintiffs' Response to Request from the Court During September 25, 2020 Hearing filed by Asian Counseling and Referral Service, Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights, East Bay Sanctuary Covenant, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, International Rescue Committee, OneAmerica. (Stretch, Brian) (Filed on 9/25/2020) Modified on 9/28/2020 (cjlS, COURT STAFF). (Entered: 09/25/2020)

09/28/2020

96 Transcript of Proceedings held on 09/25/2020, before Judge White. Court Reporter Pamela Batalo Hebel, telephone number 626-688-7509; pamela_batalo-hebel@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 94

Transcript Order, ) Redaction Request due 10/19/2020. Redacted Transcript Deadline set for 10/29/2020. Release of Transcript

Restriction set for 12/28/2020. (Related documents(s) 94 Pam) (Filed on 9/28/2020) (Entered: 09/28/2020)

) (Batalo,

09/29/2020

97 Administrative Record on a Digital Storage Drive re 92 Notice of Manual Filing, filed by Chad F. Wolf. (Related document(s) 92 ) (anjS, COURT STAFF) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020

98 ORDER GRANTING 27 Motion for Preliminary Injunction. Signed by Judge Jeffrey S. White on September 29, 2020. (jswlc3S, COURT STAFF) (Filed on 9/29/2020) (Entered: 09/29/2020)

10/01/2020

99 CERTIFICATE OF SERVICE by Asian Counseling and Referral Service, Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights, East Bay Sanctuary Covenant, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, International Rescue Committee, OneAmerica re 22 Summons Issued as to USA, 1 Complaint,, (Stretch, Brian) (Filed on 10/1/2020) (Entered: 10/01/2020)

10/02/2020

100 TRANSCRIPT ORDER for proceedings held on 09/25/2020 before Judge Jeffrey S. White by Asian Counseling and Referral Service, Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights, East Bay Sanctuary Covenant, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, International Rescue Committee, OneAmerica, for Court Reporter Pam Batalo. (Igra, Naomi) (Filed on 10/2/2020) (Entered: 10/02/2020)

10/16/2020

101 CERTIFICATE OF SERVICE by Asian Counseling and Referral Service, Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights, East Bay Sanctuary Covenant, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, International Rescue Committee, OneAmerica

re 22 Summons Issued as to USA, 1 Complaint,, (Stretch, Brian) (Filed on 10/16/2020) (Entered: 10/16/2020)

PACER Service Center Transaction Receipt

10/21/2020 17:24:03

PACER Login:

CRClearinghouse:2563377:0

Client Code:

Description: Docket Report

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Cost:

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4:20-cv05883-JSW
1.80

 
 Case 3:20-cv-05883 Document 1 Filed 08/20/20 Page 1 of 85

1 Brian J. Stretch, SBN 163973 bstretch@sidley.com
2 Naomi Igra, SBN 269095 naomi.igra@sidley.com
3 Chelsea Davis, SBN 330968 chelsea.davis@sidley.com
4 SIDLEY AUSTIN LLP 555 California Street, Suite 2000
5 San Francisco, CA 94104 Telephone: +1 415 772 1200
6 Facsimile: +1 415 772 7400
7 Attorneys for Plaintiffs
8 (Additional counsel listed on signature page)

Jesse Bless (pro hac vice pending) jbless@aila.org AMERICAN IMMIGRATION LAWYERS ASSOCIATION 1301 G Street, Suite 300 Washington, D.C. 20005 Samina M. Bharmal (pro hac vice pending) sbharmal@sidley.com SIDLEY AUSTIN LLP 1501 K Street NW Washington, D.C. 20005 Telephone: +1 202 736 8000

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO

12 IMMIGRANT LEGAL RESOURCE CENTER;

EAST BAY SANCTUARY COVENANT;

13 COALITION FOR HUMANE IMMIGRANT

Case No. ___________________

RIGHTS; CATHOLIC LEGAL IMMIGRATION

14 NETWORK, INC.; INTERNATIONAL RESCUE Hon. _______________________

COMMITTEE; ONEAMERICA; ASIAN

15 COUNSELING AND REFERRAL SERVICE; ILLINOIS COALITION FOR IMMIGRANT
16 AND REFUGEE RIGHTS,

COMPLAINT FOR INJUNCTIVE RELIEF AND ADMINISTRATIVE PROCEDURE CASE

17

Plaintiffs,

18

v.

DEMAND FOR JURY TRIAL

19 CHAD F. WOLF, under the title of Acting Secretary of Homeland Security;
20 U.S. DEPARTMENT OF HOMELAND SECURITY; KENNETH T. CUCCINELLI,
21 under the title of Senior Official Performing the Duties of the Deputy Secretary of Homeland
22 Security; U.S. CITIZENSHIP & IMMIGRATION SERVICES
23

24

Defendants.

25

26

27

28

COMPLAINT

Case 3:20-cv-05883 Document 1 Filed 08/20/20 Page 2 of 85

1

INTRODUCTION

2

1. This case challenges a final rule that drastically increases the cost of applying for

3 immigration benefits, including naturalization and asylum. 85 Fed. Reg. 46,788 (Aug. 3, 2020)

4 (“Final Rule”). For low income applicants, the Final Rule increases the cost of applying to

5 naturalize, in some cases from $0 to $1,170 for the lowest income applicants. It also charges a non-

6 waivable fee for asylum applications for the first time in U.S. history, even though the fee will deter

7 vulnerable people from seeking statutory protections. The Final Rule also requires asylum seekers

8 to pay $580 to obtain their first employment authorization. In total, the Final Rule increases the

9 price of seeking asylum and work authorization from $0 to $630, with no possibility of a fee waiver.

10 With these and other changes, the U.S. Department of Homeland Security (“DHS”) awards U.S.

11 Customs and Immigration Services (“USCIS”) an unexplained 21% budget increase at the expense

12 of low-income applicants.

13

2. The Final Rule is unlawful because it was proposed under Kevin McAleenan and

14 issued under Chad Wolf, both of whom assumed the title of Acting Secretary of the Department of

15 Homeland Security without constitutional or statutory authority. The Final Rule is therefore void

16 and without effect under the Homeland Security Act, the Federal Vacancies Reform Act of 1998 and

17 the Appointments Clause of the United States Constitution. It is also procedurally invalid and

18 contrary to law under the APA. On this basis alone, the Final Rule should be set aside.

19

3. The Final Rule does all this without providing any cogent explanation for the

20 dramatic change in the financial needs of USCIS. DHS does not disclose calculations underlying its

21 skyrocketing costs, or explain why it projects a massive budget shortfall despite the agency’s recent

22 history of running at a surplus with substantial cash reserves.

23

4. The Final Rule abandons the prior practice of using an “ability to pay” model and

24 purports to adopt a “beneficiary pays” model that DHS calls more “equitable.” But merely labeling

25 a practice “equitable” does not constitute a reasoned response to comments cogently explaining the

26 inequity of the fee increases and elimination of fee waivers in the Final Rule. Nor does it explain the

27 arbitrary application of the “beneficiary pays” model to impose substantial burdens on low income

28

1
COMPLAINT

Case 3:20-cv-05883 Document 1 Filed 08/20/20 Page 3 of 85

1 applicants for naturalization and asylum but not wealthier applicants such as immigrant investors,

2 U.S. citizens applying for overseas adoptions, or visas for religious workers.

3

5. Far from promoting equity, the Final Rule transforms the agency from one that serves

4 its statutory purpose of adjudicating immigration benefits to one that serves this Administration’s

5 goals of reducing immigration and naturalization for low-income applicants and deterring asylum

6 seekers. The Final Rule achieves this transformation by adhering to irrational and unsupported

7 financial models, abandoning longstanding ability-to-pay principles, imposing disproportionate costs

8 on those least able to pay, dramatically increasing funds for “fraud detection,” and diverting

9 resources to enforcement agencies. It does all this while ignoring data and comments that contradict

10 what DHS says it “believes.”

11

6. This is unlawful. The Final Rule is procedurally defective, contrary to law, and

12 arbitrary and capricious under Administrative Procedure Act (“APA”). It also violates the Due

13 Process Clause and the Equal Protection Clause of the United States Constitution by denying

14 indigent people the right to access a statutory process for seeking immigration benefits, including

15 naturalization and asylum,

16

7. The Final Rule is already causing irreparable harm to Plaintiffs. Plaintiffs are non-

17 profit organizations that provide services benefitting low-income applicants for immigration

18 benefits. Plaintiffs have diverted resources to address the implications of the 142-page Final Rule for

19 their organizations including the threat it poses to their funding and organizational models. And

20 when the Final Rule goes into effect, it will immediately frustrate the missions of all Plaintiffs

21 because populations they serve will not be able to afford to apply for immigration benefits, even

22 with Plaintiffs’ help.

23

8. The Final Rule also causes substantial harm to individuals and the public. A vast

24 body of literature and data attests to the benefits of naturalization for families, communities, cities,

25 states and the country as a whole. These benefits include higher incomes, increased civic

26 engagement, and more stable families. The benefits of asylum are even more fundamental. Those

27 who cannot pay for an asylum application are at risk of being deported back to countries where they

28 may suffer persecution, injury, or even death. Here, DHS failed to account for how impeding access

2
COMPLAINT

Case 3:20-cv-05883 Document 1 Filed 08/20/20 Page 4 of 85

1 to naturalization, asylum, and other immigration benefits harms the public, despite ample evidence

2 in the administrative record.

3

9. For these and other reasons, the Final Rule is unlawful and should be set aside.

4

JURISDICTION AND VENUE

5

10. This Court has subject-matter jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C.

6 § 702.

7

11. Defendants’ promulgation of the Final Rule in the Federal Register on August 3, 2020

8 constitutes final agency action and is therefore subject to judicial review. 5 U.S.C. §§ 704, 706.

9

12. Plaintiffs have standing to challenge the Final Rule under 5 U.S.C. § 702 because

10 they have been and will be injured by the Final Rule’s operation. They are also within the zone of

11 interest of the INA, which established the fund into which application fees are collected. See, e.g., E.

12 Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1270 (9th Cir. 2020); La Clinica de la Raza v.

13 Trump, 19-CV-04980-PJH, 2020 WL 4569462, at *9 (N.D. Cal. Aug. 7, 2020).

14

13. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e)(1) because

15 defendants are officers or employees of the United States or any agency thereof acting his their

16 official capacity or under color of legal authority, or are agencies of the United States, or the United

17 States. Venue is furthermore proper because Immigrant Legal Resource Center’s principal place of

18 business is in San Francisco, California, and East Bay Sanctuary Covenant’s principal place of

19 business is in Berkeley, California. Therefore, they both reside in this judicial district under 28

20 U.S.C. § 1391(c)(2).

21

PARTIES

22

PLAINTIFFS

23

14. Plaintiff Immigrant Legal Resource Center (“ILRC”) is a national non-profit

24 organization headquartered in San Francisco, California. ILRC’s mission is to collaborate with and

25 educate immigrants, community organizations, and the legal sector to build a democratic society that

26 values diversity and the rights of all people. As a key part of that mission, ILRC serves as the lead

27 agency for the New Americans Campaign (“NAC”). The NAC provides, among other things,

28 funding to national and local non-profit partners to provide naturalization assistance such as assisting

3
COMPLAINT

Case 3:20-cv-05883 Document 1 Filed 08/20/20 Page 5 of 85

1 with paperwork and navigating fee waiver eligibility. Since the NAC began in 2011, NAC partners

2 have completed hundreds of thousands of naturalization applications. ILRC also trains attorneys,

3 paralegals, and community-based advocates who work with immigrants around the country. To

4 assist practitioners, ILRC produces manuals on naturalization, U-Visas, T-Visas, Special Immigrant

5 Juvenile Status (“SIJS”), the Violence Against Women Act (“VAWA”), Asylum, and Families and

6 Immigration as well as an annotated guide to completing fee waivers. ILRC staff also work with

7 grassroots immigrant organizations to promote civic engagement and social change.

8

15. Plaintiff East Bay Sanctuary Covenant (“EBSC”), located in Berkeley, California, is

9 part of the National Sanctuary Movement founded in 1982 to assist refugees fleeing the civil wars

10 and violence in El Salvador and Guatemala. EBSC remains dedicated to offering sanctuary, support,

11 community organizing assistance, advocacy, and legal services to people escaping war, terror,

12 political persecution, intolerance, exploitation, and other expressions of violence. Assisting

13 individuals seeking asylum and other forms of humanitarian relief in the United States is a critical

14 part of EBSC’s mission. EBSC provides legal and social services to immigrants and refugees within

15 the jurisdiction of the San Francisco Asylum Office, including applicants in California, Washington,

16 and Oregon. EBSC offers its low-income clients legal assistance in applying for affirmative asylum,

17 Deferred Action for Childhood Arrivals (“DACA”), Temporary Protective Status (“TPS”), SIJS, U

18 and T visas, VAWA self-petitions, permanent residency, and naturalization.

19

16. Plaintiff Coalition for Humane Immigrant Rights (“CHIRLA”) is a non-profit,

20 membership-based organization headquartered in Los Angeles, California. CHIRLA’s mission is to

21 ensure that immigrant communities are fully integrated into our society with full rights and access to

22 resources. In furtherance of its mission, CHIRLA handles the full spectrum of immigration-related

23 needs of those who form primarily low-income immigrant communities in an area with very high

24 costs of living. CHIRLA provides immigration services, including applications for naturalization,

25 asylum, and lawful permanent residence, in addition to performing outreach and advocating on

26 behalf of its over 12,000-person dues-paying membership. CHIRLA is on the Executive Office of

27 Immigration Review (EOIR) List of Pro Bono Legal Service Providers distributed to all individuals

28 in removal proceedings. Members can receive immigration legal services at no additional cost.

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1 CHIRLA brings this action on its own behalf and on behalf of its members. CHIRLA’s members

2 represent a diverse mix of people from various communities and include individuals who are

3 currently and will be eligible for the immigration benefits affected by the Final Rule. A majority of

4 CHIRLA’s members are low-income individuals who will be unable to afford the new and increased

5 fees in the Final Rule, such as the fee increase for naturalization and the new fee for asylum and

6 work authorization. CHIRLA’s low-income members are similarly situated in all relevant ways, such

7 that their due process injuries from the Final Rule or proposed remedies do not require individual

8 participation in this litigation.

9

17. Plaintiff Catholic Legal Immigration Network, Inc. (“CLINIC”) is a non-profit

10 organization headquartered in Silver Spring, Maryland. CLINIC’s mission is to provide immigration

11 legal services to low income and vulnerable populations. This mission is part of CLINIC’s broader

12 purpose of embracing the Gospel value of welcoming the stranger and promoting the dignity and

13 protecting the rights of immigrants. CLINIC administers a network of approximately 400 affiliated

14 immigration programs, which operate out of more than 400 offices in 48 states and the District of

15 Columbia. The network includes faith-based institutions, farmworker programs, domestic violence

16 shelters, ethnic community-focused organizations, libraries and other entities that serve immigrants.

17 Members of the network, referred to as “affiliates,” provide immigration services—including

18 applications for asylum, lawful permanent residence, the Nicaraguan Adjustment and Central

19 American Relief Act (“NACARA”) relief, and naturalization—using materials, training, education,

20 best practices, and sometimes, funding provided by CLINIC. Ninety-six percent of CLINIC affiliates

21 provide legal services related to naturalization. CLINIC’s affiliate network completes 35,000 to

22 40,000 naturalization applications per year. CLINIC affiliates, including Catholic Charities of the

23 East Bay, are on the EOIR List of Pro Bono Legal Service Providers distributed to asylum

24 applicants. CLINIC also provides direct representation to asylum seekers as part of its Defending

25 Vulnerable Populations section.

26

18. Plaintiff International Rescue Committee (“IRC”) is a nonprofit organization

27 headquartered in New York City, New York. IRC responds to the world’s worst humanitarian crises

28 and helps people whose lives and livelihoods are shattered by conflict and disaster to survive,

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1 recover, and gain control of their future. IRC operates in more than 40 countries and has 26 offices

2 across 15 U.S. states, including Arizona, California, Colorado, Florida, Georgia, Idaho, Kansas,

3 Maryland, Montana, New Jersey, New York, Texas, Utah, Virginia, and Washington. The provision

4 of immigration legal services—in particular, adjustment of status, family reunification, and

5 naturalization—is an integral component of IRC’s mission in the United States. Through a paid

6 immigration staff of roughly 50 employees, as well as volunteers, IRC provides high-quality, low-

7 cost immigration legal services to clients, including by filing applications for asylum, adjustments of

8 status, DACA, and naturalization. In fiscal year 2019, IRC provided 13,719 clients with immigration

9 legal services, including by helping over 7,000 individuals become U.S. citizens and filing 2,033

10 Request for Fee Waiver (I-912) forms in conjunction with naturalization applications. In addition,

11 IRC assisted 5,595 children and parents seeking asylum in the United States through humanitarian

12 and social service programs. IRC’s immigration services are funded by a mixture of private and local

13 funding, as well as by nominal fees charged to some clients themselves. IRC also receives funding

14 through the USCIS Citizenship and Integration Grant Program. IRC’s Denver and Dallas offices

15 help potential asylees submit asylum applications through federal funding (IRC Denver), and

16 funding from the City of Dallas and the Vera Institute (IRC Dallas). IRC is one of nine nonprofit

17 agencies with federal contracts to resettle refugees in the United States.

18

19. Plaintiff OneAmerica is a non-profit organization headquartered in Seattle,

19 Washington. OneAmerica’s mission is to advance the fundamental principles of democracy and

20 justice at the local, state, and national levels by building power within immigrant communities. As

21 part of advancing its mission, OneAmerica provides free naturalization services, helping eligible

22 immigrants apply for citizenship and become civically engaged citizens. One of OneAmerica’s

23 flagship programs, Washington New Americans (WNA), receives funding from the State of

24 Washington, which shares OneAmerica’s conviction that naturalized citizens bring significant

25 economic and civic benefit to the state. WNA’s founding goal is to provide free legal counsel in

26 communities where there are few, if any, affordable immigration attorneys or Department of Justice-

27 accredited representatives. OneAmerica uses two essential methods to meet its naturalization grant

28

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1 requirements: (i) hosting its own naturalization workshops; and (2) re-granting a significant amount

2 of its WNA funding to thirteen local organizations.

3

20. Plaintiff Asian Counseling and Referral Service (“ACRS”) is a nonprofit organization

4 headquartered in Seattle, Washington. ACRS serves the Asian and Pacific Islander community in

5 Washington through multiple programs that provide culturally and linguistically competent care and

6 services. ACRS provides legal services to a myriad of vulnerable groups including, but not limited

7 to, asylum seekers, TPS applicants, U and T visa applicants, SIJS applicants, VAWA petitioners, and

8 unaccompanied minors. Furthermore, it assists immigrants with adjustment of status to permanent

9 resident, and applications for naturalization. ACRS has provided citizenship and naturalization

10 services since 1997, and in 2019 helped nearly 754 individuals from 31 countries file naturalization

11 applications. Assistance to immigrants seeking to naturalize reflects ACRS’s commitment to serving

12 the well-being of its community-at-large. The benefits of citizenship include an increased sense of

13 belonging and connection with communities; increased civic engagement; higher earnings; higher

14 home-ownership; and higher voting levels. ACRS is the largest naturalization services provider in

15 Washington State. Under the conditions of ACRS’s grant funding, ACRS must submit 650

16 naturalization applications on behalf of Washington residents for fiscal year 2020. Among other

17 sources, ACRS receives funding through the USCIS Citizenship and Integration Grant Program.

18

21. Plaintiff Illinois Coalition for Immigrant and Refugee Rights (“ICIRR”) is a nonprofit

19 organization headquartered in Chicago, Illinois, with operations extending throughout the state.

20 ICIRR is a coalition of more than 100 member organizations throughout Illinois that advocate on

21 behalf of immigrants and refugees at the local, state, and federal levels. Through its member

22 organizations, ICIRR educates and organizes immigrant and refugee communities to assert their

23 rights; promotes citizenship and civic participation; monitors, analyzes, and advocates on immigrant-

24 related issues; and informs the public about the contributions of immigrants and refugees. In

25 partnership with the Illinois Department of Human Services, ICIRR administers the New Americans

26 Initiative (“NAI”), to fund collaborations of community organizations that promote citizenship,

27 conduct outreach, and organize workshops to assist long-term legal immigrants in completing their

28 naturalization applications, as well as assisting immigrants youth in applying for and renewing

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1 DACA status. ICIRR’s agreement with Illinois DHS obligates ICIRR and its forty program-partner 2 organizations to complete at least 7,278 N-400 or DACA applications on behalf of Illinois residents

3 each year; serve 3,348 distinct individuals through English-language and civic-education classes;

4 and reach 14,081 distinct individuals through community outreach services. As the NAI

5 Administrator, ICIRR also is responsible for assisting its program-partner organizations, ensuring

6 effective use of NAI funds, and helping them meet the NAI deliverable expectations.

7

DEFENDANTS

8

22. Defendant U.S. Department of Homeland Security (“DHS”) is a cabinet-level

9 department of the United States federal government. DHS issued the Final Rule.

10

23. Defendant Chad Wolf has held the title of Acting Secretary of Homeland Security

11 since November 13, 2019. He issued the Final Rule under that purported authority. He is sued in that

12 capacity.

13

24. The U.S. Citizenship and Immigration Service (“USCIS”) is a sub-agency of DHS

14 and responsible for providing immigration adjudication services.

15

25. Defendant Kenneth Cuccinelli currently holds the role of Senior Official Performing

16 the Duties of the Deputy Secretary of Homeland Security.

17

LEGAL AND FACTUAL FRAMEWORK

18 I. CONSTITUTIONAL AND STATUTORY BACKGROUND

19

26. Article I of the Constitution gives Congress “the Power … [t]o establish an uniform

20 Rule of Naturalization.” U.S. Const. art. I, § 8. Congress has used that power to enact legislation that

21 promotes diversity, unifies families, protects refugees and vulnerable non-citizens, and encourages

22 naturalization. Through these laws, Congress has established a detailed process for immigrants to

23 obtain status in the United States, adjust status to lawful permanent resident, and naturalize to 24 become a U.S. citizen.1

25

26 1 See, e.g., Immigration and Nationality Act of 1965, Pub. L. No. 89-236, 79 Stat. 911 (“INA”); Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110
27 Stat. 2009-546 (“IIRIRA”); Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (“Refugee Act”), Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464
28 (“VTVPA”).

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1

A. The INA Promotes Diversity and Family Unity

2

27. Before 1965, the nation’s immigration laws codified discrimination against non-

3 whites. For example, the Naturalization Act of 1790 limited United States citizenship to “any alien,

4 being a free white person.” 1 Stat. 103 Chapter 3, 1 Congress, Session 2, An Act: To establish an

5 uniform rule of naturalization. (Mar. 26, 1790). And although this particular law changed, others

6 passed in the 19th and 20th centuries also expressed racist exclusionary preferences. Laws including

7 the Chinese Exclusion Act of 1882 and the 1924 National Origins Quotas Act, created quotas in

8 favor of Northern and Western Europeans and banned most Asians from immigrating to the United

9 States.

10

28. The INA of 1952and subsequent legislation, reversed these practices and prioritized

11 family unification and diversity. They eliminated national origin quotas that favored Northern and

12 Western European immigrants and helped level the playing field for immigrants who hailed from

13 other parts of the world.

14

29. The INA makes family unification, regardless of nationality or income, a priority. For

15 example, the INA exempts “immediate relatives,” including “children, spouses, and parents,” from

16 visa limits, or quotas. 8 U.S.C. § 1151(b)(2)(A)(i). “That exemption, and other priority given to

17 family members of U.S. residents, meant that about three-quarters of visas were set aside for

18 relatives of those already in the U.S.—putting the emphasis in U.S. immigration policy on family

19 reunification.”2

20

30. This is by design. In amending the INA, Senator Kennedy explained, “Reunification

21 of families is to be the foremost consideration.” See H.R. Rep. 89-748, at 13 (1965).3

22

23 2 City of Philadelphia, Comment Letter on Proposed Rule on U.S. Citizenship and Immigration

24

Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements at Attachment 3, 34 n.15. DHS No. USCIS-2019-0010-7628 (citing Pew Research Ctr., Modern

25

Immigration Wave Brings 59 Million to U.S., Driving Population Growth and Change Through 2065 at 20 (Sept. 28, 2015), https://pewrsr.ch/3l3oneY).

26 3 Courts have long recognized that a central purpose of the INA is to keep families together. See, e.g., Fiallo v. Bell, 430 U.S. 787, 806 (1977) (The INA’s legislative history “establishes that congressional

27 concern was directed at ‘the problem of keeping families of United States citizens and immigrants

united.’” (quoting H.R. Rep. No. 1199, 85th Cong., 1st Sess., 7 (1957)). 28

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1

31. The Treasury and General Government Appropriations Act of 1999, Section 654

2 requires agencies to consider the impact of proposed agency action on the well-being of all families,

3 not just the families of citizens. See Pub. L. No. 105-277, 112 Stat. 2681. It requires federal agencies

4 to prepare a Family Policymaking Assessment before enacting any rule that may affect family well-

5 being and enumerates seven factors the agency must assess, including whether the action erodes

6 stability or safety of the family, erodes the authority of parents in the education, nurture, and

7 supervision of their children, helps the family perform its functions, affects the disposable income or

8 poverty of families and children, and if the proposed benefits of the action justify the financial

9 impacts on the family.

10

B. The Refugee Act Protects Asylum Seekers

11

32. The 1951 United Nations Refugee Convention and the 1967 Protocol, to which the

12 United States acceded on November 1, 1968, were designed to prevent a recurrence of the horrors

13 refugees experienced during World War II. The United States Refugee Act of 1980 (Public Law 96-

14 212) (the “Refugee Act”) “conform[ed] United States statutory law to our obligations under Article

15 33 [of the Refugee Convention]”) H.R. Rep. No. 96-608, at 17 (1979); S. Rep. No. 96-256, at 4

16 (1979) (same). The Act “imbued these international commitments with the force of law.” R-S-C v.

17 Sessions, 869 F.3d 1176, 1178 (10th Cir. 2017).

18

33. The Refugee Act thus codified a longstanding tradition of “welcoming the oppressed

19 of other nations.” H.R. Conf. Rep. 96-781, at 17–18 (1980). In the Refugee Act, Congress declared

20 that “it is the historic policy of the United States to respond to the urgent needs of persons subject to

21 persecution in their homelands, including, where appropriate, humanitarian assistance for their care

22 and maintenance in asylum areas.” Pub. L. No. 96-212, 94 Stat. 102 § 101(a).

23

34. The objective of the Refugee Act is to “provide a permanent and systematic

24 procedure for the admission … of refugees of special humanitarian concern to the United States, and

25 to provide comprehensive and uniform provisions for the effective resettlement and absorption of

26 those refugees who are admitted.” Pub. L. No. 96-212, 94 Stat. 102 § 101(b).

27

35. The Refugee Act amended the INA to include a formal process for people fearing

28 persecution in their home country to apply for asylum and announced “the policy of the United

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1 States to encourage all nations to provide assistance and resettlement opportunities to refugees to the

2 fullest extent possible.” Id. § 101(a) (codified as Note to 8 U.S.C. § 1521).

3

36. To request asylum in the U.S., an applicant need only be physically present in the

4 United States or have arrived at a U.S. border and apply within one year of their last arrival in the

5 U.S., or qualify for an exception to the one-year rule. See 8 U.S.C. § 1158. Today, asylum may be

6 granted to “any person” who has suffered “persecution or who has a well-founded fear of

7 persecution” based on one of five enumerated protected grounds: “race, religion, nationality,

8 membership in a particular social group, or political opinion.” 8 U.S.C. § 1158(b)(1)(A); id.

9 § 1101(a)(42)(A).

10

37. Recognizing the importance of legal assistance for asylum seekers, Congress requires

11 that the Attorney General advise an asylum applicant of her right to be represented by counsel and

12 provide a list of pro bono legal service providers who are available to assist in asylum proceedings. 8

13 U.S.C. § 1158(d)(5).

14

C. U.S. Immigration Laws Provide Additional Protections for Vulnerable People

15

38. U.S. immigration laws also codify protections for vulnerable groups, including those

16 from countries experiencing significant hardship, battered women, trafficked individuals, and crime

17 victims.

18

39. Through the Immigration Act of 1990, Congress created TPS, which provides

19 nationals of specifically-designated countries confronting ongoing conflicts, environmental disasters,

20 or extraordinary and temporary conditions, temporary immigration status. See 8 U.S.C. § 1254a. It

21 provides nationals of those countries who are in the United States at the time of the TPS designation

22 work permits and stay of deportation. 8 U.S.C. § 1254a(a)(1). The Secretary of Homeland Security

23 may decide when a country merits a TPS designation. Countries currently designated include: El

24 Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen. See

25 Ramos v. Nielsen, 336 F. Supp. 3d 1075 (N.D. Cal. 2018); USCIS, Temporary Protected Status

26 (Mar. 30, 2020), https://bit.ly/3haeGZT.

27

40. In 2000, President Clinton signed into law the first federal law to address human

28 trafficking, the Trafficking Victims Protection Act (TVPRA). See Pub. L. No. 106-386. Among

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1 other things, this law established trafficking as a federal crime, provided assistance for trafficking

2 victims, and established the T visa, which affords victims of severe trafficking temporary stay in the

3 U.S., access to benefits, and a path to lawful permanent residency if they have assisted in

4 prosecuting human trafficking. See Pub. L. No. 106-386.

5

41. The William Wilberforce Trafficking Victims Protection Reauthorization Act

6 (TVPRA) expanded these protections by requiring USCIS to allow applicants for these primary

7 benefits—VAWA, T (trafficked individuals), U (crime victims), VAWA Cancellation, and TPS—to

8 apply for fee waivers for associated filings up to and including the application for permanent

9 residence. See 8 U.S.C. § 1255(l)(7); Pub. L. No. 110-457, 122 Stat. 5044 at 5054.

10

42. Similarly, the Nicaraguan Adjustment and Central American Relief Act

11 (“NACARA”) specifically addresses certain asylum-seekers whose applications were unfairly

12 affected by changes to the immigration law enacted by the Illegal Immigration Reform and

13 Immigrant Responsibility Act of 1996 (IIRIRA).

14

43. In these and other statutes, Congress has recognized that the limited financial means

15 of vulnerable populations should not block their access to immigration benefits

16

D. The Constitution and Congress Recognize the Importance of Naturalization

17

44. The Constitution establishes naturalization as a pathway to citizenship. U.S. Const.

18 amend. XIV, § 1. “Many invaluable benefits flow from United States citizenship, including rights to

19 vote in federal elections, to travel internationally with a U.S. passport, to convey citizenship to one’s

20 own children even if they are born abroad, to be eligible for citizen-only federal jobs, and, indeed, to

21 be free of discrimination by Congress on the basis of alienage.” L. Xia v. Tillerson, 865 F.3d 643,

22 650 (D.C. Cir. 2017). Citizenship is among the most momentous elements of an individual’s legal

23 status. “It would be difficult to exaggerate its value and importance.” Schneiderman v. United States,

24 320 U.S. 118, 122 (1943).

25

45. The United States has historically exhibited “extraordinary hospitality to those who

26 come to our country,” and “[o]ne indication of this attitude is Congress’ determination to make it

27 relatively easy for immigrants to become naturalized citizens.” Foley v. Connelie, 435 U.S. 291, 294

28 & n.2 (1978) (citing the INA, 8 U.S.C. § 1427 (1976 ed.)).

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1

46. Congress promotes the attainment of citizenship for those who are statutorily eligible

2 through the use of appropriations. Just last year, Congress appropriated $10 million to USCIS to

3 fund its Citizenship and Integration Grant Program,4 Pub. L. No. 116–6, 133 Stat. 13, which awards

4 millions in grants to civic organizations that help lawful permanent residents prepare for U.S.

5 citizenship. “The main goal of the grant program has been to provide citizenship instruction and

6 application assistance to LPRs.”5 At least two Plaintiffs in this case receive these grants in support of

7 their naturalization work.

8

E. The Homeland Security Act Separated Immigration Services from Enforcement

9

47. The Homeland Security Act of 2002 reconfigured the Immigration and

10 Nationalization Service (“INS”). Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.

11 2135 (Nov. 25, 2002) (“HSA”). Subtitle D of Title IV addressed “immigration enforcement

12 functions” and established the Bureau of Border Security, which now consists of Immigration and 13 Customs Enforcement (“ICE”) and Customs and Border Patrol (“CBP”). HSA §§ 441-42, 116 Stat. 14 at 2192-94. Subtitle E created the Bureau of Citizenship and Immigration Service to handle 15 “adjudications” of immigration applications; that bureau is now USCIS. HSA § 451, 116 Stat. at 16 2195-97.

17

48. Section 476 of the HSA is entitled “Separation of Funding.” HSA § 476, 116 Stat. at

18 2209. It specifies separate budgets for the two bureaus, requires that “fees imposed for a particular

19 service, application or benefit shall be deposited” into the account of the bureau “with jurisdiction

20 over the function to which the fee relates,” and provides that “no fee may be transferred” between

21 the separate bureaus, with only limited statutory exceptions. HSA § 476(c), (d), 116 Stat. at 2209.

22

F. The Immigration and Examinations Fee Account (“IEFA”) Limits the Use of

23

Funds Raised Through Application Fees

24

49. USCIS is funded primarily through the fees it collects for the adjudication and

25 naturalization services it provides. These fees are deposited in the IEFA. The legislation creating the

26 IEFA predates USCIS and defines the agency’s fee-setting authority. INA § 286(m) and

27 4 USCIS now refers to this program as the Citizenship and Assimilation Grant Program.

28

5 USCIS, Learn About the Citizenship and Assimilation Program (July 30, 2020), https://bit.ly/2FwCZ69.

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1 (n) (codified at 8 U.S.C. § 1356(m) and (n)) establish the IEFA, and provide that “fees for providing

2 adjudication and naturalization services may be set at a level that will ensure recovery of the full

3 costs of providing all such services, including the costs of similar services provided without charge

4 to asylum applicants or other immigrants.” 8 U.S.C. § 1356(m).

5

50. The legislative history confirms that Congress intended to IEFA to cover adjudication

6 and naturalization services only. The House Conference Report for the 1990 amendment states that:

7 “Examinations Fee Account–Subsection (d)(1) provides that adjudications and naturalization fees be

8 deposited into the Examinations Fee Account as offsetting receipts. Subsection (d)(2) allows the

9 Department to establish adjudications and naturalization fees at a level that will ensure recovery of

10 the full costs of the program, to include the overseas program and administration.” H.R. Conf. Rep.

11 101-909.

12

51. An opinion by the General Counsel of the INS in the years following the enactment

13 of §1356 interpreted the term “adjudication and naturalization services” to exclude enforcement. See

14 1994 General Counsel’s Opinions, 9 Immigration Law Service 2d PSD 1994 General Counsel

15 Opinions, Opinion 94-8 (“[F]ees which may be deposited into the Examinations Fee Account are

16 those fees which arise from applications that are processed as part of the INS's adjudication service

17 and not its enforcement function. Funds from the Examinations Fee Account may be expended only

18 to reimburse an appropriation for expense incurred in providing adjudicative or naturalization

19 services.”).

20

52. USCIS does not have boundless authority to use fees collected through the IEFA. It

21 can only use fees to cover the cost of providing adjudication and naturalization services, in line with

22 the agency’s mandate under the HSA. See Pub. L. No. 107-296, § 451 (6 U.S.C. § 271).

23

53. USCIS also manages two other fee accounts funded by statutorily set fees, which the

24 agency has no authority to alter: the Fraud Prevention and Detection Account (FDNA), INA

25 § 214(c)(12)–(13), 286(v); 8 U.S.C. §§ 1184(c)(12)–(13), 1356(v), and the H-1B Nonimmigrant

26 Petitioner Account, INA §§ 214(c)(9), (11), 286(s); 8 U.S.C. §§ 1184(c)(9), (11), 1356(s).

27

28

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1

54. The fees collected in the separate Fraud Prevention and Detention Account are split

2 among the Department of Homeland Security, Department of Labor, and Department of State to

3 cover the fraud-related detection and prevention work of each department.

4

55. Since its creation, the agency has adjusted fees in 2004, 2005, 2007, 2010, and 2016.

5 84 Fed. Reg. 62,280, 62,285 (Nov. 14, 2019); Supporting Material Appendix Table 7: USCIS IEFA

6 Fee History.

7

56. USCIS’s primary source of funding is the IEFA. In FY 2018, USCIS received

8 approximately 95 percent of its funding from the IEFA.

9

G. USCIS Applies Ability-to-Pay Principles Consistent with Congressional

10

Directives

11

57. Consistent with statutory goals of promoting diversity, unifying families, encouraging

12 citizenship, and protecting particularly vulnerable people, USCIS has provided mechanisms for low-

13 income applicants to access immigration benefits.

14

58. One mechanism is an “ability-to-pay” model for USCIS fees. See 84 Fed. Reg. at

15 62,298. “Under the ability-to-pay principle, those who are more capable of bearing the burden of

16 fees should pay more for the service than those with less ability to pay.” GAO, Federal User Fees:

17 A Design Guide (May 29, 2008), https://bit.ly/33txZt3. Applying these principles, USCIS has

18 assessed fees based on applicants’ ability to pay and has provided discretionary waivers of fees for

19 certain immigration benefit requests when an applicant is unable to pay. See 8 C.F.R. § 103.7(c).

20

59. DHS’s longtime policy has been “that individuals may apply for and be granted a fee

21 waiver for certain immigration benefits and services based on an inability-to-pay.” DHS, USCIS Fee

22 Waiver Policies and Data, App’x B at 2 (Sept. 27, 2017), https://bit.ly/2DP8R5u; see also 85 Fed.

23 Reg. at 46,807 (“In prior years, USCIS fees have given significant weight to the ability-to-pay

24 principle by providing relatively liberal fee waivers and exemptions and placing the costs of those

25 services on those who pay.”). This established practice aligned with express Congressional

26 instructions to keep naturalization and immigration benefits affordable. See, e.g., H.R. Rep. 115-948

27 at 61 (stating that “USCIS is expected to continue the use of fee waivers for applicants who can

28

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1 demonstrate an inability to pay the naturalization fee” and “encourage[ing] USCIS to maintain 2 naturalization fees at an affordable level”).

3

60. The ability-to-pay standard allows an applicant to seek a fee waiver if her household

4 income is at or below 150% of the Federal Poverty Guidelines, or on other grounds showing

5 inability to pay, such as receiving a means-tested benefit or experiencing financial hardship such as

6 medical expenses of family members, unemployment, eviction, or homelessness.6

7

61. For nearly two decades,7 USCIS has offered these waivers pursuant to 8 U.S.C.

8 § 1356(m), which authorizes the agency to collect fees for “similar services provided without charge

9 to asylum applicants or other immigrants” as part of the “full cost of providing” “adjudication and

10 naturalization services.” USCIS’s regulations expressly allow applicants who have demonstrated an 11 inability to pay to obtain fee waivers.8

12

62. The current fee schedule for lawful permanent resident and naturalization applications

13 also reflect ability-to-pay principles.

14

63. Immigrants in the United States who are eligible for adjustment of status may file a

15 Form I-485, Application to Register Permanent Residence—i.e., lawful permanent residence. Since

16 the FY 2008/2009 Final Rule, USCIS has allowed I-485 applicants to apply for some other benefits

17

18

6 See current Form I-912 at Part 6 (https://bit.ly/3h56dH7), Instructions for Form I-912 at 8 (https://bit.ly/3axT2wf).

19

7 E.g., Michael A. Pearson memorandum, Fee Waiver Relating to Employment Authorization for Victims of Trafficking, dated May 25, 2001.

8 USCIS may waive fees for the following services based on an inability to pay: Biometrics services 20 fee; Form I-90, Application to Replace Permanent Resident Card; Form I-191, Application for

Advance Permission to Return to Unrelinquished Domicile; Form I-751, Petition to Remove 21 Conditions on Residence; Form I-765, Application for Employment Authorization; Form I-817,

Application for Family Unity Benefits; Form I-821, Application for Temporary Protected Status; 22 Form I-881, Application for Suspension of Deportation or Special Rule Cancellation of Removal

(Pursuant to Section 203 of Public Law 105-100 (NACARA)); Form N-300, Application to File 23 Declaration of Intention; Form N-336, Request for a Hearing on a Decision in Naturalization

Proceedings (Under Section 336 of the INA); Form N-400, Application for Naturalization; Form N24 470, Application to Preserve Residence for Naturalization Purposes; Form N-565, Application for

Replacement of Naturalization/Citizenship Document; Form N-600, Application for Certification of 25 Citizenship; and Form N-600K, Application for Citizenship and Issuance of Certificate under

Section 322. Policy Memorandum: Fee Waiver Guidelines as Established by the Final Rule of the 26 USCIS Fee Schedule; Revisions to Adjudicator's Field Manual (AFM) Chapter 10.9, AFM Update

AD11-26 (Mar. 13, 2011), https://bit.ly/3i8UZSe. Additionally the TVPRA requires that “[t]he 27 Secretary of Homeland Security shall permit aliens to apply for a waiver of any fees associated with

filing an application for relief through final adjudication of the adjustment of status” for VAWA, U, 28 T, and TPS applicants. 8 U.S.C. § 1255.

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1 without paying a fee. 84 Fed. Reg. at 62,304. Applicants who file Forms I-131, Application for

2 Travel Document, or I-765, Application for Employment Authorization, concurrently with their I-

3 485 application, or while their Form I-485 is pending before USCIS, may do so without paying a fee.

4 84 Fed. Reg. at 62,304. Furthermore, a reduced fee is available for children under the age of 14. 8

5 C.F.R. § 103.7(b)(1)(i)(U)(2).

6

64. Fees USCIS charges for Naturalization Applications, Form N-400, are $640, and are

7 waivable based upon inability to pay. A reduced fee of $405 is available for applicants with family

8 incomes greater than 150% of the Federal Poverty Guidelines but less than 200%. 8 C.F.R.

9 § 103.7(b)(1)(i)(BBB)(1). The biometric fee of $85 is also waivable based on qualifying for a full

10 fee waiver of the naturalization application fee.

11

65. The “ability-to-pay” principle has also shaped our asylum fee system. Applicants use

12 Form I-589, Application for Asylum and for Withholding of Removal, to apply for asylum. See id.

13 As the agency recognizes, “[t]he U.S. Government has never charged a fee for form I–589, but rather

14 has relied on other fee-paying benefit requestors to subsidize asylum seeking applicants. Application

15 fees from other form types have always been used to fund the operation involved in processing

16 asylum claims.” 84 Fed. Reg. at 62,318.

17

66. Past fee rules have interpreted the law as directing USCIS not to charge a fee for

18 asylum. As discussed above, USCIS deposits fees from immigration applications into the IEFA. The

19 fees are specifically “for providing adjudication and naturalization services.” 8 U.S.C. § 1356(m).

20 By statute, the fees “may be set at a level that will ensure recovery of the full cost of providing all

21 such services, including the cost of similar services provided without charge to asylum applicants or

22 other immigrants.” 8 U.S.C. § 1356(m).

23

67. As USCIS previously understood, “Congress directed that the IEFA fund the cost of

24 asylum processing and other services provided to immigrants at no charge.” See Pub. L. No. 101-

25 515, § 210(d)(1) and (2), 104 Stat. 2101, 2121 (Nov. 5, 1990). USCIS’ understanding of that

26 Congressional directive was reflected consistently in the rulemaking proposals for the 2004, 2007,

27 and 2010 USCIS fee rules. 69 Fed. Reg. 5088 (2004); 72 Fed. Reg. 4890 (2007); 75 Fed. Reg. 33448

28 (2010). None of these proposed rules resulted in fees for asylum applicants. For the 2016 Final

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1 Rule, USCIS was explicit about the adoption of this principle: “fees for each benefit type are

2 adequate to cover USCIS’ costs associated with processing applications and petitions, as well as

3 providing similar benefits to asylum and refugee applicants and certain other immigrants at no

4 charge.” 81 Fed. Reg. 26,904, 26,908 (May 4, 2016).

5

68. In addition, the agency recognizes certain statutorily required fee waivers. The

6 TVPRA requires that “[t]he Secretary of Homeland Security shall permit aliens to apply for a waiver

7 of any fees associated with filing an application for relief through final adjudication of the

8 adjustment of status” for VAWA, U, T, and TPS applicants. 8 U.S.C. § 1255.

9

69. NACARA provides for relief from deportation for qualifying asylum seekers.

10 NACARA applicants must file Form I-881, Application for Suspension of Deportation or

11 Cancellation of Removal Pursuant to NACARA, to apply for relief. The IEFA fees for these

12 applicants have remained the same since 2005, except for inflation adjustments. 84 Fed. Reg. at

13 62,323. The fee for this benefit is $285 for individuals, with a $570 cap for families and flat $165

14 EOIR fee, whether an individual or family. Id.

15

70. Congress has repeatedly emphasized that cost should not prevent an otherwise

16 eligible lawful permanent resident from naturalizing. On February 13, 2019, Congress reiterated its

17 support of keeping naturalization affordable by making fee waivers more widely available. A

18 bipartisan, bicameral conference report published on Feb. 13, 2019 accompanying the omnibus

19 appropriations act for Fiscal Year 2019 says:

20

USCIS is expected to continue the use of fee waivers for applicants who can demonstrate an inability to pay the naturalization fee. USCIS

21

is also encouraged to consider whether the current naturalization fee is a barrier to naturalization for those earning between 150 percent and

22

200 percent of the federal poverty guidelines, who are not currently eligible for a fee waiver. The conferees encourage USCIS to maintain

23

naturalization fees at an affordable level while also focusing on reducing the backlog of applicants.

24 71. Even more recently, Congress encouraged USCIS to preserve fee waivers for
25 applicants who demonstrate an inability to pay. On December 16, 2019, the House Appropriations
26 Committee published an Explanatory statement on the Consolidated Appropriations Act of 2020,
27 which said:
28

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1

Fee Waivers.—USCIS is encouraged to continue the use of fee

waivers for applicants who demonstrate an inability to pay the

2

naturalization fee, and to consider, in consultation with the Office of

the Citizenship and Immigration Services Ombudsman (CIS

3

Ombudsman), whether the current naturalization fee is a barrier to

naturalization for those earning between 150 percent and 200 percent

4

of the federal poverty guidelines and who are not currently eligible for

a fee waiver, and provide a briefing to the Committees within 60 days

5

of the date of enactment of this Act.9

6

72. This explanatory statement shows concern about imposing fees on vulnerable groups:

7

Further, USCIS is encouraged to refrain from imposing fees on any

individual filing a humanitarian petition, including, but not limited to,

8

individuals requesting asylum; refugee admission; protection under the

Violence Against Women Act; Special Immigrant Juvenile status; a T

9

or U visa; or requests [for] adjustment of status or petitions for another

benefit after receiving humanitarian protection. USCIS shall consult

10

with the CIS Ombudsman on the impact of imposing such fees and

provide a briefing to the Committees within 60 days of the date of

11

enactment of this Act.10

12

H. USCIS Announces A New Mission

13

73. In early 2018, USCIS announced a new mission.11 Its mission statement had read:

14 “USCIS secures America's promise as a nation of immigrants by providing accurate and useful

15 information to our customers, granting immigration and citizenship benefits, promoting an

16 awareness and understanding of citizenship, and ensuring the integrity of our immigration system.”12

17

74. Its new mission statement came to read: “U.S. Citizenship and Immigration Services

18 administers the nation’s lawful immigration system, safeguarding its integrity and promise by

19 efficiently and fairly adjudicating requests for immigration benefits while protecting Americans,

20 securing the homeland, and honoring our values.”13

21

22

23

9 Committee on Appropriations, Explanatory Statement on HR 1158, Pub. L. No. 116-93,

24 https://bit.ly/2EeoovN (last visited 8/17/2020).

25

10 Id. 11 Richard Gonzales, America No Longer A ‘Nation of Immigrants,’ USCIS Says, NPR (Feb. 22,

2018), https://n.pr/316fysK.

26 12 See, e.g., Department of Homeland Security, Office of Inspector General, United States

Citizenship and Immigration Services’ Employment͈ Based Fifth Preference (EB͈ 5) Regional Center

27 Program, OIG 14-19, at 2, https://bit.ly/3azvE1k.

13 USCIS, “Mission and Core Values,” https://www.uscis.gov/about-us/mission-and-core-values

28 (last visited Aug. 20, 2020).

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1

75. In 2019, Ken Cuccinelli noted that he saw “USCIS as a vetting agency, not a benefits

2 agency.” Adam Shaw, Cuccinelli puts hardline stamp on immigration agenda, just 2 months into

3 USCIS job, Fox News (Aug. 23, 2019), https://fxn.ws/3kWAnyP.

4

76. USCIS has assisted with ICE and CBP enforcement work in recent years. For

5 example, in response to heightened immigration levels at the U.S.-Mexico border, USCIS deputy

6 director Mark Koumans sent an email to USCIS staff in July 2019 stating that “[c]urrent conditions 7 are placing extreme stress on our colleagues at Immigration and Customs Enforcement,” and that 8 “USCIS has agreed to seek USCIS volunteers to provide ICE with support. . . . I appreciate your 9 willingness to consider helping our colleagues fulfill the DHS mission.” Hamed Aleaziz, Civil 10 Servants Who Process Immigration Applications Are Being Asked To Help ICE Instead, Buzzfeed 11 News (July 17, 2019), https://bit.ly/3kQ1knH. “One USCIS officer, however, . . . [said] that

12 Cuccinelli appeared focused on helping ICE with its law enforcement work, rather than adjudicating 13 immigration benefits. . . . ‘Cuccinelli is diverting resources towards enforcement.’” Id.; see also Eric 14 Katz, Employees Concerned After Agency Threatens Furloughs Over Budget Shortfall, Gov’t Exec. 15 (May 22, 2020), https://bit.ly/3iO4qXt (“USCIS employees employed on a volunteer basis to Border 16 Patrol and Immigration to help conduct operations within the purview of those agencies.” (emphasis 17 added)).14 And USCIS leadership has recently moved to expand the agency’s authority to initiate

18 removal proceedings and encourage placing applicants into removal proceedings. See USCIS Policy

19 Memorandum on Notices to Appear, No. PM-602-0050.1 (June 28, 2018); USCIS Policy

20 Memorandum on Requests for Evidence, No. PM-602-0163 (July 13, 2018).

21 II. IRREGULAR PROPOSED RULEMAKING

22

77. USCIS rolled out the Final Rule after an irregular and chaotic proposed rulemaking

23 process that denied the public adequate opportunity to comment.

24

A. Inadequate Opportunity to Comment

25

78. On November 14, 2019, USCS published a proposed rule just before the

26 Thanksgiving holiday (“November Proposal”). It specified a deadline for comments of December
27 14 The Final Rule explicitly takes CBP’s costs into account in setting I-192 fees. 85 Fed. Reg. at
28 46,791, 46,792 n.4.

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1 16, 2019. This allowed just 32 days for public comment, in contrast to the 45-60 days provided in

2 past fee rules.

3

79. The November Proposal included a $207 million transfer of IEFA funds to ICE but

4 also included six alternative fee schedules, including a fee schedule with a $0 to ICE.

5

80. On November 22, 2019, USCIS replaced the economic analysis on the regulatory

6 docket with a new economic analysis, without informing the public. As a result, some commenters

7 were drafting their comments on the basis of the old economic analysis without even realizing it was

8 obsolete.

9

81. On December 9, 2019 – just one week before the original deadline for comments –

10 USCIS published a “supplement” that included an entirely different set of budget assumptions.

11 USCIS extended the deadline for comments to December 30, 2019 (“December Proposal”). That

12 gave commenters 21 days running over the holiday season to comment on an entirely new financial

13 justification for the rule.

14

82. The December Proposal advanced new rationales for fee increases not previously

15 suggested in the November Proposal. It did not include a corresponding new fee schedule and did

16 not propose concrete adjustments of fees in accordance with the new rationales.

17

83. On January 24, 2020, and without advance notice to the public, USCIS reopened the

18 public comment period for the proposed rule for another seventeen days, with a deadline of February

19 10, 2020.

20

84. One week before that deadline, USCIS finally held a meeting to demonstrate its cost-

21 modeling to stakeholders, as promised in the November Proposal. However, the meeting was in-

22 person only, with no public telephone or virtual access, and thus only a few people could attend.

23

85. In other words, USCIS did not provide 60 days for public comment on the proposed

24 rule with its supplemental material. It provided 21 days for comment from December 9-30 and 17

25 days from January 24 to February 10. Commenters only had access to the agency’s highly technical

26 cost-modeling in the final week of that period, from February 3 to 10.

27

86. The extra days in January and February did not remedy the problem with the

28 abbreviated comment period because the additional days were given with no notice. Commenters

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1 had no opportunity to make time for analyzing the new material and drafting a new comment letter.

2 Because of the disjointed comment period, commenters were not able to spend sufficient time

3 analyzing the Proposals in full and providing complete responses.

4

87. In spite of the irregular process and insufficient time to comment, regulations.gov

5 shows 39,665 comments were submitted on the November Proposal, and 4,279 comments were

6 submitted when the public comment period was reopened. The vast majority of the comments were

7 in opposition to the Proposals. Comments to the proposed rule included, among other things,

8 research showing that the proposed rule would disproportionately affect people of color and low-

9 income immigrants and research showing the benefits of increased naturalization. . The comments

10 also outlined new unjustified and wasteful practices at USCIS that increased processing times,

11 decreased efficiency, and reduced access to immigration benefits.

12

B. Insufficient Information in the Proposal

13

88. In addition to the timing problems, the contents of both the November Proposal and

14 the December Proposal made it impossible for the public to discern what the agency was proposing.

15

89. The narrative portion of the November Proposal proposed fees that would recover

16 USCIS projected costs, as shown in its budget. See 84 Fed. Reg. at 62,286-87 & Table 2. Its

17 proposed budget fell into four categories: (i) Transfer to ICE ($207.6 million), (ii) Pay and benefits

18 adjustments for on-board staff ($280.2 million in FY 2019 and $89.8 million in FY 2020, or an

19 average of $185 million), (iii) Pay and benefits for new staff ($116.7 million in FY 2019 and $128.8

20 million in FY 2020, or an average of $122.75 million), (iv) Net additional costs ($150.8 million in

21 FY 2019 and $6.2 million in FY 2020, or an average of $78.5 million). See 84 Fed. Reg. at 62,286.

22

90. These dollar figures from the narrative portion of the rule did not match the dollar

23 figures in Table 2 of the November Proposal, adding to the confusion about which amount the

24 agency was proposing to recover through applicants’ fees. See 84 Fed. Reg. at 62,287 at Table 2

25 (depicted below).

26

27

28

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1

2

3

4

5

6

7

8

9

10

91. In addition, the explanation for each of the four categories is vague and opaque.

11

92. The November Proposal included a $207.6 million transfer to ICE. That proposed

12 transfer decreased by $95 million in the December Proposal, without an adequate explanation of

13 why the first amount was proposed, or what assumptions applied.

14

93. DHS also did not explain why it previously failed to project the need for a substantial

15 increase in staffing.

16

94. Its Proposal included a 44% increase in staff above the levels set in 2016 without any

17 adequate explanation for the enormous increase. See Table 6, below. The November Proposal

18 simply provides that, “This additional staffing requirement reflects the facts that it takes USCIS

19 longer to adjudicate many workloads than was planned for in the FY 2016/2017 Final Rule and that

20 workload volumes, particularly for work types that do not currently generate fee revenue, have

21 grown.” 84 Fed. Reg. at 66,286.

22

23

24

25

26

27

28

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1

95. DHS did not address policies it adopted that contribute to longer adjudication times

2 and increased backlog.

3

96. DHS did not adequately explain the Proposals’ distribution of staffing increases. For

4 example, USCIS admitted in the Final Rule that it “has experienced a continuous, sizeable increase

5 in the affirmative asylum backlog . . . .” but increased staffing for Refugee Asylum and International

6 Operations Directorate by 30%. 85 Fed. Reg. at 46,846; DHS, Immigration Examinations Fee

7 Account: Fee Review Supporting Documentation with Addendum FY 2019-2020 at 42 (May 2020),

8 USCIS-2019-0010-12271. At the same time, it DHS is increasing the Fraud Detection and National

9 Security Directorate staffing by 108%, without any data to explain why “Fraud Detection” work is

10 doubling. Id.

11

97. DHS also describes$150.8 million it seeks to recover from individuals and families

12 seeking immigration services as “net additional costs,” including “enhancement requests such as

13 secure mail shipping for permanent resident cards, increased background investigations,

14 headquarters consolidations, etc.” 84 Fed. Reg. at 62,286. It states these and other operations

15 expenses are “necessary for achieving USCIS’s strategic goals,” without explaining what new

16 strategic goals require this increase. 82 Fed. Reg. at 62,286. That omission prevents the public from

17 determining whether the fees are being used within the limits of the IEFA’s statutory purpose.

18

98. The November Proposal claimed an annual additional budget need of $1.26 billion.

19 84 Fed. Reg. at 62,282. Subtracting the $95 million from its December Proposal’s decrease for ICE

20 funding (the first category of its four identified budget components), DHS proposed recovering

21 $1.17 billion from fees. It did not update the other three budget components in the December

22 Proposal. Thus, the following math problem emerges: $112 million to ICE + $185 million for

23 current staff pay + 122.75 million for new staff + $78.5 million for net additional costs = $498.25

24 million.

25

99. In other words, the November Proposal shows that DHS structured its fees to raise

26 $672 million for reasons it does not disclose.

27

100. The Proposals were also deficient because it was unclear what fee schedule DHS was

28 actually proposing. The November Proposal identified 6 alternative scenarios with different assigned

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1 fee amounts to address combinations of hypotheticals relating to whether DACA remained in place

2 and whether the ICE transfer was finalized. 84 Fed. Reg. at 62,328 & Table 20. It was impossible to

3 tell what formula or rationale DHS would apply, and whether the agency’s actions were reasonable

4 in light of alternatives.

5

101. In addition, the November Proposal explained the final amount would reflect fees at

6 an amount “in between” the levels proposed. 84 Fed. Reg. at 62,327. Again, the public could not

7 comment on whether the agency’s arrival at an “in between” amount was reasonable or within its

8 discretion.

9

102. Furthermore, the December Proposal, though it identified a $95 million decrease in its

10 budget assumptions, did not propose new fees. Instead, DHS stated the resulting fee schedule would

11 be “somewhere between” the levels of full ICE transfer and no ICE transfer identified in the

12 November Proposal. Again, this was insufficient information for public comment. 84 Fed. Reg.

13 67,246.

14

103. DHS proposed allocating costs unevenly and without justification. DHS proposed

15 increasing the fees for Form I-485 (Application to Register Permanent Residence) by 17%, Form I-

16 751 (Petition to Remove Conditions on Residence) by 52%, Form N-400 (Application for

17 Naturalization) by 83%. But it would decrease the Form I-140 (Immigration Petition for Alien

18 Worker) by 9%. The November Proposal provided no adequate explanation for these variations, so

19 the public could not provide comment to help inform the agency’s decision making.

20

104. DHS also failed to provide an adequate explanation for its projected 2.1 million

21 increase in employment authorization applications. 84 Fed. Reg. at 62,289. The agency provided no

22 supporting data for this figure. Given that DHS projected that employment authorization applications

23 would account for 60% of its projected workload increase, this omission deprived the public of a

24 meaningful opportunity to comment.

25

105. The sheer breadth of the chaotic Proposals compounded the confusion. The Proposals

26 reflected changes to some 59 forms. With this volume and complexity of changes, it was unclear

27 whether the Administration was proposing consistent bases for its changes or what those bases might

28 be.

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1

106. This is particularly true because the fees in the proposed rule stem from DHS’s

2 estimates of future costs and revenues but USCIS did not offer enough information for the public to

3 understand its estimates.

4 III. BUDGET REQUESTS AND CONGRESSIONAL HEARINGS

5

107. In May 2020, DHS told Congress it would need a $1.2 billion bailout due to the

6 COVID-19 crisis. The agency pitched this as a loan that it would pay back to the Treasury through a

7 10% surcharge on top of all other fees.15 See Camila DeChalus, USCIS seeks $1.2 billion from

8 Congress, Roll Call (May 18, 2020), https://bit.ly/3iW5xVo. The agency claimed that without the

9 funding it would have to furlough some 13,400 employees by the end of August 2020 due to

10 decreased receipts during the COVID pandemic. But long before COVID, the agency had projected

11 its own financial demise.

12

108. This graphic from the April 2019 IEFA Fee Review Supporting Documentation16 tells

13 the story of how far the agency’s financial condition had deteriorated more than a year before it

14 sought the congressional bailout purportedly due to COVID:

15

16

17

18

19

20

21

22

23

24

25 15 Testimony of Joseph B. Edlow, Deputy Director for Policy, USCIS, House Committee on the
26 Judiciary, Submissions on Immigration and Citizenship, Hearing entitled “Oversight of U.S. Citizenship and Immigration Services” at 3 (July 29, 2020).
27 16 USCIS, FY 2019 Immigration Examinations Fee Account: Fee Review Supporting Documentation 14 (April 2019), DHS No. USCIS-2019-0010-0007.
28

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1

109. After USCIS announced furloughs, members of Congress disclosed that the FY2020

2 deficit USCIS projected in the Final Rule would not come to pass.

3

110. Senators Leahy and Tester sent a letter to USCIS noting that the agency now

4 anticipated a surplus for 2020, rather than a deficit.17

5

111. DHS postponed the furloughs to August 30, 2020 after receipt of the letter from

6 Senators Leahy and Tester.

7

112. Nevertheless, USCIS’s Deputy Director for Policy, Joseph Edlow, testified to the

8 U.S. House of Representatives’ Committee on the Judiciary, Subcommittee on Immigration and 9 Citizenship that the COVID-19 pandemic was responsible for USCIS insolvency. 18 Yet, he also 10 explained that USCIS’s revenues and receipts were increasing in recent months.19

11

113. To date, DHS still has not submitted to Congress any formal request for emergency

12 supplemental funding, even though it is still threatening furloughs. The lack of any formal funding

13 requests confirms that DHS is using the COVID-19 crisis opportunistically as pretext for crippling

14 the system of lawful immigration to the United States.

15

114. The Final Rule raises fees based on DHS projections that it publicized long before

16 COVID and that appear to conflict with information it provided to Congress in connection with the

17 hearings. In all events, the Final Rule is clear that it did not take the effects of COVID into account

18 when it issued the final rule. 85 Fed. Reg. at 46,793.

19 IV. 20

THE FINAL RULE 115. The Final Rule is irrational, arbitrary, contrary to law, and an unjustified reversal of

21 past practice. It allocates fees for the unlawful purposes of deterring applicants from seeking

22 statutory benefits, including naturalization and asylum.

23

24 17 See Letter from Patrick Leahy, Vice Chairman, U.S. Senate Comm. on Appropriations, and Jon

Tester, Ranking Member, U.S. Senate Comm. on Appropriations, to Chad F. Wolf, Acting Sec’y, 25 Dep’t of Homeland Sec., and Joseph Edlow, Deputy Dir. for Policy, U.S. Citizen and Immigration

26

Services (Jul. 21, 2020) (on file with U.S. Senate); see also Letter from Patrick Leahy, Vice Chairman, U.S. Senate Committee on Appropriations, to Chad F. Wolf, Acting Sec’y, Dep’t of

Homeland Sec., and Joseph Edlow, Deputy Dir. for Policy, U.S. Citizen and Immigration Services 27 (Aug. 18, 2020) (on file with U.S. Senate).

28

18 Id. at 2. 19 Id.

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1

A. The Final Rule’s Reasoning Is Incomplete, Inconsistent, and Irrational

2

1. Underlying Assumptions about USCIS Budget Needs Are Incoherent

3

116. USCIS has asserted that its financial situation necessitates the fee increases. But the

4 Final Rule does not offer a cogent explanation for how USCIS burned through surplus revenues and

5 cash reserves, why it needs a 20% budget increase now, or how it will spend the new revenue it

6 generates from higher fees.

7

117. The November Proposal predicted that even though USCIS had an $800 million

8 carryover balance at the end of FY2019, it would be $250 million in the red by the end of FY 2019

9 and over $1.5 billion in the red by FY 2020. And it projected all this long before COVID-19 was a

10 concern.

11

118. The Proposals’ description of USCIS’s financial condition is puzzling because the

12 2016 Final Rule resulted in an unexpected $400 million budget surplus. USCIS does not account for

13 how it used the surplus or explain why its finances have changed so dramatically. 85 Fed. Reg. at

14 46,794.

15

119. DHS also fails to explain how it spent the $1 billion carryover from FY 2017.20

16 USCIS’s use of all of this revenue is astonishing. Without some explanation of how it incurred

17 additional expenses of $1 billion, DHS cannot rationally explain its decision, and the public cannot

18 meaningfully comment on whether DHS is raising its fees for a lawful purpose.

19

120. USCIS also does not explain why it is anticipating a $1.4 billion increase in its

20 budgetary needs. The Final Rule asserts that the extra revenue generated by the Final Rule will pay

21 for new hires, pay raises, and “net additional costs,” but the numbers it provides for these items leave

22 63% of the new revenue allocation completely unexplained. The following chart illustrates the

23 point21:

24 20 See USCIS Budget Overview, Congressional Budget Justification FY 2019 at CIS-10, https://bit.ly/3g5JcTt.
25 21 See Supplemental Testimony of Douglas Rand, House Committee on the Judiciary, Submissions on Immigration and Citizenship, Hearing entitled “Oversight of U.S. Citizenship and Immigration
26 Services” (July 29, 2020), Attachment at 2; see also cost breakdown in November Proposal, 84 Fed. Reg. at 62,286; December Proposal reduction in proposed cost attributed to ICE diversion, 84 Fed.
27 Reg. 67,243 (Dec. 9, 2019); Final Rule budget, 85 Fed. Reg. at 46,794. The Final Rule updated the “net additional costs” category to $69,050,000, such that the final unexplained amount is in fact
28 $659,148,915.

28
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1

2

3

4

5

6

7

8

9

10

11

12

13

14

121. Similarly, USCIS asserts that its costs are skyrocketing but without any cogent

15 explanation for the sudden and dramatic pre-COVID increase in the cost of providing adjudication 16 services. The data show the increase in cost but not the reason for the increase.22

17

18

19

20

21

22

23

24

25

26 22 USCIS Immigration Examination Fee Account: Fee Review Supporting Documentation FY 2019
27 at 6 (Apr. 2019); see also 81 Fed. Reg. at 73,323 ($3.038 billion USCIS FY2016/2017 budget); 85 Fed. Reg. at 46,794 ($4.556 billion USCIS FY2019 budget and $4.783 FY2020 budget, or an
28 average FY2019/2020 $4.444 billion budget).

29
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1 2 3 4 5 6 7 8 9 10 11 12 13 14
122. Meanwhile, DHS has pursued denaturalization efforts, which are by definition ICE15
led efforts, by raising funds using USCIS’s fee-setting authority.23 The Proposals sought to directly 16
fund these efforts, none of which are led by USCIS, but instead are led by enforcement agencies 17
such as ICE, and adjudicated by DOJ.24 18
123. Simultaneously, DHS suggests it is pursuing policies that increase USCIS’s costs, but 19
does not provide any supporting detail. Instead, DHS bakes in assumptions of costs for escalated 20 21 22 23 See, e.g., Naturalization Working Grp., Comment Letter on Proposed Rule on U.S. Citizenship
and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request 23 Requirements (Feb. 10, 2020), DHS No. USCIS-2019-0010-12030.
24 OneAmerica, Comment Letter on Proposed Rule on U.S. Citizenship and Immigration Services 24 Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements (Dec. 30,
2019), DHS No. USCIS-2019-0010-10310; OneAmerica, Comment Letter on Proposed Rule on U.S. 25 Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration
Benefit Request Requirements (Feb. 10, 2020), DHS No. USCIS-2019-0010-12018; Naturalization 26 Working Grp., Comment Letter on Proposed Rule on U.S. Citizenship and Immigration Services Fee
Schedule and Changes to Certain Other Immigration Benefit Request Requirements (Dec. 30, 2019), 27 DHS No. USCIS-2019-0010-11097; Naturalization Working Grp., Comment Letter on Proposed
Rule on U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other 28 Immigration Benefit Request Requirements (Feb. 10, 2020), DHS No. USCIS-2019-0010-12030.
30
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1 vetting, in-person interviews, and unspecified policy changes, and then concludes its costs have 2 increased, requiring additional fees from applicants.25

3

124. The Final Rule’s financial assumptions are also inconsistent with USCIS’s reports to

4 Congress about their anticipated surplus.

5

125. DHS cannot reasonably use the previously-projected deficit as justification for the

6 Final Rule.

7

126. The gap between DHS projections in the November Proposal and the projections

8 USCIS reported to Congress indicates there may be some underlying flaw in the calculations that

9 support the Final Rule. DHS did not disclose enough about those calculations for the public to offer

10 meaningful comments.

11

127. DHS’s data and assertions about its costs are unreliable in other respects. For

12 example, DHS has asserted that it is not changing the fee for DACA. That assertion is deceptive.

13 The DACA fee had been charged every two years and now it will be charged every year. That

14 means DHS is collecting twice as much money from DACA applicants under the Final Rule.

15

128. In the Final Rule, DHS explains it has removed all revenues generated from DACA

16 recipients’ fees from its cost modeling because it does not “rely” on revenues from DACA. 85 Fed.

17 Reg. at 46,853 n.88. In other words, DHS discounts the revenues it receives from DACA recipients

18 even though it extracts fees from them.

19

129. DHS does not adequately account for its $10 discount for certain online applications,

20 newly introduced in the Final Rule.

21

130. DHS makes no account of any purported cost-savings measures or any measures to

22 reduce waste. It also has not stated whether the fee increases relate to the agency’s litigation costs or

23 any fees it has been required to pay opposing counsel after DHS policies have been deemed unlawful

24 by a court of law. It is unclear whether or how these costs are being allocated within DHS.

25

26 27 25 See Am. Immigr. Lawyers Ass’n and Am. Immigr. Council, Comment Letter on Proposed Rule on
U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration 28 Benefit Request Requirements at 4 (Dec. 23, 2019), DHS No. USCIS-2019-0010-7077.

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1

2. The Final Rule Is Based on A False Premise About Inelasticity of Demand

2

131. The Final Rule is built on a faulty premise that demand for immigration services is

3 inelastic. This assumption defies common sense, ignores 200 years of free-market economic theory

4 demonstrating that when prices go up, demand usually goes down, and ignores the government’s

5 own data.

6

132. In particular, DHS ignores its own data that show applications for naturalization

7 surged before prior fee increases, and dropped after.26 DHS also ignores data in the record showing

8 that the fee increases and elimination of fee waivers could decrease demand to such a degree that the

9 agency will collect less money as a result of the Final Rule than it does under the current fee regime.

10

133. Additional analysis by the Congressional Research Service concludes that “Empirical

11 studies suggest that the volume of naturalization petitions filed may be inversely related to the

12 naturalization fee amount.” Congressional Research Service, U.S. Naturalization Policy, Jan. 16,

13 2014, https://bit.ly/321UXW0.

14

134. DHS data also show that naturalization applicants are the highest beneficiaries of fee

15 waivers. The Final Rule recognizes that naturalization applications have continued under prior fee

16 rules, but refuses to consider that under those fee rules, fee waivers and reduced fees were available

17 to naturalization applicants. 85 Fed. Reg. at 46,895.

18

135. DHS “acknowledges that evidence presented indicating naturalization increases when

19 previous fees were waived entirely” but asserts without explanation that this “does not support the

20 claim that immigration benefits are sensitive to the changes implemented by this rule.” See 85 Fed.

21 Reg. at 46,895.

22

136. The Final Rule’s claims of inelasticity also fail to account for the interplay between

23 fees. Because the Final Rule increases the N-400 fee for naturalization so significantly, from $640 to

24 $1,170, and slightly decreases the I-90 fee for lawful permanent residence renewal, from $455 to

25 $415, the Final Rule creates a significant financial incentive for renewing lawful permanent

26 26 See 2020 USCIS Ombudsman Report to Congress, https://bit.ly/347JQND (“USCIS historically
27 experiences a temporary increase in naturalization filings in presidential election years and when fee
increases are proposed, followed by reduced filings in the next fiscal year.”). 28

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1 residence status instead of naturalizing. DHS offers no explanation for why it believes that those

2 faced with the choice of a $415 renewal or a $1,170 naturalization application would not be price

3 sensitive.

4

137. Instead, DHS says that it “did not consider any interplay between the fees for Forms

5 I–90 and N–400 in the NPRM, nor do we in the final rule.” 85 Fed. Reg. at 46,838. DHS provides no

6 reasoned explanation for failing to consider this important aspect of the problem.

7

3. Irrational Cost Modeling Results In Unjustified Conclusions

8

138. The Final Rule uses an “Activity-Based Cost” (“ABC”) model to assign fees to

9 different benefit applications, based on the average cost to USCIS to adjudicate a given type of form.

10 This modeling relies on unexplained and irrational economic assumptions that are contradicted by

11 data.

12

139. First, the agency’s total budget amount is an input into the ABC model. Nothing in

13 the model explains how USCIS arrived at the total budget number. In other words, DHS first

14 determines the total budget for the agency and then uses the ABC model to determine how to

15 allocate that budget to the various fees. But, as described above, the total budget DHS adopted in the

16 Final Rule is itself deeply flawed and unexplained. That renders the entire cost model irrational.

17

140. Second, DHS’s belief that the demand for immigration services is inelastic means that

18 the ABC model does not take into account price elasticity. Thus, the rule fails to account for the

19 likelihood that the volume of applications will go down as prices rise, rendering the model’s results

20 without analytical support.

21

141. Third, the Final Rule uses opaque and varied assumptions and inputs for different

22 benefit applications for no apparent reason. The Final Rule nowhere explains why USCIS costs have

23 changed so dramatically and inconsistently across different form types.

24

142. In particular, USCIS has not explained its source for data on hourly cost projections

25 that it entered into the ABC model, a key driver of the fees. For example, the Proposed Rule projects

26 that an N-400 takes 1.57 hours to complete at a fee of $1,170, or $745 per hour. But an EB-5 I-526

27 petition takes 8.65 hours at a fee of $4,015, or $464.16 per hour. DHS does not explain the different

28 hourly costs for different forms.

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1

143. The disparate hourly rates per form is inconsistent with the agency’s purported

2 activity-based cost system. In the Final Rule, its only explanation is that “DHS uses multiple,

3 different techniques to forecast USCIS’ workloads.” 85 Fed. Reg. at 46,871.

4

144. That assertion is not a reasoned explanation of USCIS’s inputs into the cost model

5 that it says generated the fees in the Final Rule.

6

B. The Final Rule Is Contrary to Law Because It Increases Fees Intended for the

7

Adjudication of Applications In Order To Fund Other Activities

8

145. The Final Rule’s recovery of its costs for performing ICE and CBP functions is

9 contrary to law. The Final Rule is clear that USCIS now interprets its mission and functions broadly

10 to include “securing the homeland,” but it is not clear how it is allocating fees to any non-

11 adjudication efforts it has undertaken pursuant to this new mission. See 85 Fed. Reg. at 46,789.

12

146. Several statutory provisions provide that USCIS cannot recover through the IEFA

13 those costs it incurs in assisting ICE or engaging in enforcement.

14

147. Congress established a separate Fraud Prevention and Detection Account over which

15 the agency has no discretion to adjust fees and which is entirely separate from the IEFA. The INA

16 prescribes a fee for the Fraud Detection and Prevention Account in the amount $500 and $150 for

17 non-U.S. citizens applying for certain employment-related visas. 8 U.S.C. § 1184(c)(12)-(13).

18 Congress expressly provided these amounts for fraud prevention and detection services.

19

148. Despite this unambiguous statutory provision with set dollar amounts, DHS charges

20 additional fees to cover its costs for training staff on fraud detection and prevention well beyond

21 what can be recovered through these funds.

22

149. Although some fraud detection may be attendant to adjudication, the Final Rule

23 proposes a doubling of staff in the fraud detection unit without providing any evidence that this

24 increase is necessary to adjudicate applications.

25

150. The Final Rule also recovers the costs of diverting its staff to ICE and CBP under the

26 Emergency Supplemental Appropriations for Humanitarian Assistance and Security at the Southern

27

28

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1 Border Act of 2019, 27 despite Congress’s express and unambiguous prohibition on using IEFA 2 funds for enforcement.

3

151. The Emergency Act expressly provides that the DHS agencies could provide their

4 personnel “without reimbursement.”28 But that does not mean that USCIS can recover the costs of

5 providing staff to ICE by raising fees charged to applicants.

6

152. The Final Rule indicates that USCIS administrative staff have been deployed to ICE.

7 85 Fed. Reg. at 46,871. Presumably, the work of those administrative staff members has been spread

8 distributed to the remaining USCIS staff, who are now spread thin. This may explain the sudden

9 need for additional staffing in the USCIS budget.

10

153. If USCIS is loaning staff to ICE, but continuing to pay that staff through IEFA funds,

11 USCIS is effectively diverting funds to ICE that ICE would have spent on hiring new staff.

12

154. If USCIS is itself hiring new staff to absorb the work its former staff is now doing for

13 ICE, and passing the costs of hiring new USCIS staff to applicants under the guise of the IEFA, this

14 too is contrary to law.

15

155. USCIS statements that it sent personnel but not “dollars” to the enforcement agency

16 is merely an attempt to evade Congress’s express direction. House Comm. on the Judiciary,

17 Oversight of U.S. Citizenship and Immigration Services at 1:21:15-1:22:46 (July 29, 2020), 18 https://bit.ly/31eibZL.

19

156. In either case, the work that USCIS staff does for ICE is by definition outside of

20 USCIS’s mission. A discussed above, Congress, the courts, and the predecessor immigration agency

21 have all understood the adjudication of immigration services is a separate and distinct concept from

22 enforcement. See supra section I.E. Because administrative work performed for ICE is not USCIS

23 work providing adjudication services, the related costs cannot be recovered through the IEFA under

24 INA 286(m).

25

157. In addition to being contrary to law, DHS’s attempt to explain away these questions

26 demonstrates that the Final Rule is also arbitrary and capricious. The Final Rule gives no clarity on 27 27 Emergency Supplemental Appropriations for Humanitarian Assistance and Security at the
Southern Border Act of 2019, Pub. L. No. 116-26, 133 Stat. 1018. 28 28 Pub. L. No. 116-26, 133 Stat. 1018.

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1 these points because it does not explain how staffing needs have risen by such a dramatic amount: an 2 increase of 6,277 positions, or 43% above the staffing amount identified in the 2016/2017 Final

3 Rule. See 85 Fed. Reg. at 46,871. Although DHS claims that the “[m]arginal costs associated with 4 this effort [to assist ICE] are not in this final rule” it is unclear based on the record how they have

5 been accounted for anywhere.

6

158. Furthermore, DHS explains the high staffing needs arise from receiving greater

7 volumes of applications, but historical figures show there is no correlation between volume of

8 applications and volume of adjudications. The below infographic, created from USCIS’s data

9 available at www.uscis.gov/data, illustrates this point29:

10

11

12 13 14 15 16

17

18

19

20

21

22

159. In addition, the Final Rule states it needs additional staff because processing times

23 have increased. 85 Fed. Reg. at 46,872. Yet, the agency is not specific about how the additional staff

24 will address the backlog. The agency merely reasons that additional revenue “may be used to fund

25 staff that will adjudicate incoming workload and potentially mitigate or stabilize future backlog

26 growth.” Id. (emphasis added). It is unclear what purpose the additional staffing serves and whether

27 29 See Immigrant Legal Res. Ctr., Comment Letter on Proposed Rule on U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request
28 Requirements at 39 (Dec. 23, 2019), DHS No. USCIS-2019-0010-7084.

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1 it will, in fact, improve processing times. This is particular true because so much of the increase in 2 staffing is for “Fraud Detection and National Security.”

3

160. Staffing numbers in the Final Rule that seek to recover the costs of DHS’s staff

4 shuffling despite statutory prohibitions and are without rational justification provided in the Final

5 Rule. For example, USCIS has allocated staff to assist CBP and ICE with enforcement work. See ¶ 6 76, supra (citing Aleazis, Civil Servants, supra; Katz, Employees Concerned, supra). The Final Rule 7 explicitly takes CBP’s costs into account in setting I-192 fees. 85 Fed. Reg. at 46,791, 46,792 n.4. 8 And USCIS has devoted significant resources to a new denaturalization unit, which seeks (in 9 diametric opposition to USCIS’s mission) to enforce immigration law to strip naturalized 10 immigrants of their citizenship, as well as to strip lawful permanent residents of their status.30

11

C. The Final Rule Unlawfully Allocates Costs Across Fee Categories and Places a

12

Disproportionate Burden on Low-Income Applicants for Naturalization or

13

Asylum

14

161. The Final Rule abandons ability-to-pay principles in favor of the selective use of a

15 beneficiary-pays policy that disproportionately burdens low income applicants, without a reasoned

16 explanation.

17

162. DHS asserts that the Final Rule adopts a beneficiary-pays policy in the interests of

18 “equity” but there is nothing equitable about the way the Final Rule drastically increases fees for

19 low-income applicants for some benefits, and imposes much smaller increases for some wealthier 20 applicants. The uneven allocation of the fee increases across benefit categories confirms that DHS is 21 using the fee increase to impede access to immigration benefits for low-income applicants who are 22 seeking immigration benefits, including naturalization or asylum.

23

24 30 See Amy Taxin, US launches bid to find citizenship cheaters, Assoc. Press (June 11, 2018), https://bit.ly/3h3IJCk (“The U.S. government agency that oversees immigration applications is
25 launching an office that will focus on identifying Americans who are accused of cheating to get their citizenship and seek to strip them of it. [then-USCIS] Director L. Francis Cissna told The Associated
26 Press in an interview that his agency is hiring several dozen lawyers and immigration officers to review cases of immigrants who were ordered deported and are suspected of using fake identities to
27 later get green cards [i.e., lawful permanent residence status] and citizenship through naturalization. . . . He declined to say how much the effort would cost but said it would be covered
28 by the agency’s existing budget, which is funded by immigration application fees.”).

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1

1. The Final Rule Dramatically Increases Fees for Low Income Applicants by

2

Eliminating or Reducing Access To Fee Waivers

3

163. The Final Rule targets low-income applicants by eliminating discretionary fee

4 waivers for naturalization, lawful permanent residence, and work authorizations for most

5 immigrants.

6

164. The Final Rule also reduces access to statutorily-required fee waivers. It limits

7 waivers to applicants with household income under 125% of the federal poverty guidelines (“FPG”)

8 instead of the current 150% FPG, and it eliminates the alternative bases for a fee waiver, receipt of a

9 means-tested benefit or demonstration of financial hardship. And it imposes significantly more

10 demanding requirements for proving income level than ever before.

11

165. The Final Rule imposes these changes even though commenters referred to studies in

12 the record showing that immigrants who would be ineligible for fee waivers under the Final Rule

13 would suffer significant hardship if forced to pay full fees for immigration filings, or might be priced

14 out of the benefits altogether.

15

166. DHS offers no cogent response, saying only that it is adopting a “beneficiary pays”

16 model that it believes to be more “equitable” than the ability to pay model.

17

167. But even this unsupported principle is inconsistently applied. DHS purports to

18 recognize the humanitarian concerns for VAWA (domestic violence), T-visa (trafficking), and U-

19 visa (other crime) nonimmigrant populations, and that such applicants would likely qualify for fee

20 waivers, in deciding to provide fee exemptions for initial employment authorization to these groups.

21 84 Fed. Reg. at 62,302. Yet, DHS gives no similar consideration to asylum applicants who have a

22 statutory right to apply for asylum. 8 U.S.C. 1158(a). Asylum applicants face the same threats that

23 justify granting fee waivers to VAWA/T-visa/U-visa applicants, but DHS nevertheless treats asylum

24 applicants differently, without a legitimate reason.

25

168. DHS also makes contradictory claims about the impact of changes to fee waivers. On

26 the one hand, it claims that it does not have data indicating that individuals will delay submitting

27 applications and petitions in response to the fee waiver policy changes. 85 Fed. Reg. at 46,807.

28 Then it claims that it “does not believe” applicants will be prevented from receiving immigration

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1 benefits a result of its change, without citing any basis for that belief. 85 Fed. Reg. at 46,806.

2 Elsewhere, DHS acknowledges, “Limiting fee waivers may adversely affect some applicants’ ability

3 to apply for immigration benefits.” 85 Fed. Reg. at 46,891. However, according to DHS, the benefits

4 of immigration “continue to outweigh the cost associated.” 85 Fed. Reg. at 46,896. With respect to

5 asylum applications, the regulatory impact analysis expressly states, “Some applicants may not be

6 able to afford this fee and will no longer be able to apply for asylum.” Regulatory Impact Analysis at

7 20. The Final Rule states it believes asylum applicants “will find a way” to pay. 85 Fed. Reg. at

8 46,882.

9

2. The Final Rule Dramatically Increases Fees for Those Seeking to Naturalize

10

169. The Final Rule does not apply the fee increase equally across all applicants. Instead,

11 it is structured to deter naturalization by allocating a disproportionate share of USCIS costs to those

12 seeking to become citizens. This chart summarizes the dramatic increase in the cost to naturalize:

13

14

Form

Application Type

Percentage Change

Total Cost

15

Form N-300

Application to File Declaration of Intention

+383%

$1,305

16

Request for Hearing on a

Form N-336 Decision in Naturalization

+148%

$1,735

17

Proceeding

18 19

Application for Naturalization

Form N-400

for someone who currently qualifies for a reduced fee and

+266% +263%

$1,170 (paper) $1,160 (online)

must pay a biometric fee

20 21

Form N-400

Application for Naturalization without a fee waiver

Application to Preserve

+83% (paper) $1,170 (paper) +81% (online) $1,160 (online)

22

Form N-470 Residence for Naturalization

+346%

$1,585

Purposes

23

Form I-90

Application to Replace Permanent Resident Card

-11% (paper) -9% (online)

$405 (paper) $415 (online)

24

170. For those who previously qualified for fee waivers, the increase is from $0 to the new 25

fee. 26

171. The Final Rule does not explain why those pursuing citizenship should shoulder such 27

dramatic fee increases. Nor does it explain why it has increased these fees but decreased the fee for 28

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1 lawful permanent resident status renewal, creating a clear financial incentive to renew permanent

2 residence for those who could naturalize instead. By renewing permanent residence rather than

3 naturalizing, these immigrants remain in peril of removal, are limited in their ability to leave the

4 country, cannot sponsor relatives in pursuit of family unification, cannot register to vote, and are

5 limited in other ways as well. DHS does not offer a reasoned explanation for setting prices in a way

6 that creates incentives not to naturalize.

7

172. The Final Rule also imposes these dramatic increases on naturalization without

8 consideration of the benefits of increasing naturalization rates. For example, DHS did not address

9 studies suggesting as much as $5.7 billion earrings increase from increased naturalization in 21 10 major cities, and a $2.03 billion increase in federal, state, city income tax and payroll tax revenue.31

11

173. Increased naturalization also decreases the cost of government programs as

12 individuals gain access to better employment opportunities. For example, a study of one major city 13 showed a potential net fiscal gain of $823 million.32

14

174. Comments to the proposed rule noted that USCIS’s own data shows that the increases

15 in naturalization fees would disproportionately affect permanent residents of color. Comments to the

16 proposed rule cited to research showing that increases in naturalization fees disproportionately affect

17 Latino populations. DHS nevertheless declined to make any adjustments to mitigate these disparate

18 effects. In fact, in failing to account for the disproportionate harm on permanent residents of color,

19 DHS even ignored its own data showing that most immigrants who naturalized in 2018 were from

20 Mexico, India, Philippines, Cuba, and the People’s Republic of China.

21

175. DHS did not allow for adequate consideration of the impact of these fee increases on

22 the overall rate of naturalization, how the rate of naturalization impacts the public interest, or the

23 disproportionate impact on communities of color.

24

25 31 Immigrant Legal Res. Ctr., Comment Letter on Proposed Rule on U.S. Citizenship and
26 Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements at 6, 19 (Dec. 23, 2019), DHS No. USCIS-2019-0010-7084 (citing Maria E.
27 Enchautegui & Linda Giannarelli, “The Economic Impact of Naturalization on Immigrants and Cities.” (Dec. 2015)).
28 32 Id.

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1

176. DHS’s failure to consider the broader benefits of naturalization in setting its

2 naturalization fees is also a significant policy shift. The agency acknowledges that this is a shift in

3 policy but does not give an adequate explanation for the change:

4

DHS has historically held the fee for Form N-400, Application for Naturalization, below the estimated cost to USCIS of adjudicating the

5

form in recognition of the social value of citizenship. Immigration services provide varying levels of social benefit, and previously DHS

6

accounted for some aspect of the social benefit of specific services through holding fees below their cost. However, in this final rule DHS

7

is emphasizing the beneficiary pays principle of user fees. Because DHS has held the fee for Form N-400 below full cost in the past,

8

adjusting to full cost requires an increase in excess of the volumeweighted average increase of 20 percent. If DHS did not increase the

9

fee for Form N-400 this amount, other fees would need to increase further to generate the revenue necessary to recover full cost, including

10

the costs of the N-400 not covered by its fee. DHS believes the increase in the fee for Form N-400 is fully justified.33

11 177. Despite this passing acknowledgement of a major policy shift, however, the agency
12 gives no reason why departing from this previous practice would be beneficial or acceptable, or why
13 the agency’s newfound beneficiary-pays principle should take precedence over accounting for the
14 social benefits of naturalization when setting fees.
15 3. The Final Rule Unlawfully Imposes New Fees for Asylum Seekers
16 178. For the first time in U.S. history, the Final Rule imposes a non-waivable fee for
17 asylum applications. Past fee rules have interpreted the law as directing USCIS not to charge a fee
18 for asylum. See supra ¶ 66. The Final Rule also imposes a fee for an asylum seeker’s first
19 application for employment authorization. The fee for the asylum application is $50 and the fee for
20 employment authorization is $550.
21 179. In addition, the Final Rule will impose a $30 biometric fee for asylum applicants
22 seeking employment authorization. 85 Fed. Reg. at 46,790. This provision was not included or
23 alluded to in the Proposals.
24 180. The $50 fee for an asylum application makes the United States one of just four
25 countries in the world that charges a fee for humanitarian protection. DHS attempts to justify the fee
26 as “in line” with those three countries34 but the United States is an outliner even in that group. Each
27

33 85 Fed. Reg. at 46,799. 28 34 Iran, Fiji, and Australia. See 85 Fed. Reg. at 46,845.

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1 of the other countries that charges a fee for the application also offers fee waivers or fee exemptions.

2 The Final Rule does not, with one limited exception for unaccompanied immigrant children.

3

181. The Final Rule does not offer a reasoned explanation for the asylum fee or the lack of

4 a waiver. It asserts without support that it would not take an asylum seeker an “unreasonable

5 amount of time to save, would generate some revenue to offset costs, discourage frivolous filings

6 and not be unaffordable to an indigent alien.” 84 Fed. Reg. at 62,320. Yet the agency concludes

7 elsewhere that “[s]ome applicants may not be able to afford this fee and may not be able to apply for

8 asylum.” 85 Fed. Reg. at 46,894, and acknowledges that the fee is set “so that it . . . may deter some

9 filings.” Regulatory Impact Analysis at 153. Deterring asylum filings is not a lawful basis for a fee

10 under a statute that permits fees only for cost recovery.

11

182. The $50 asylum fee does not provide cost recovery and serves no purpose except to

12 discourage filings. Although DHS has stated the fee will “offset” some costs, the cost-benefit

13 analysis in the rule itself negates that statement. 85 Fed. Reg. at 46,984.

14

15

16

17

18

19

20

21 183. DHS also asserts that the $50 fee will be refunded as a discount if the asylee seeks
22 lawful permanent residency. But the cost of the administrative burden associated with tracking and
23 paying these refunds undermines the notion that the $50 asylum fee provides any lawful cost-
24 recovery. And this refund has no benefit at all to the asylum seekers who cannot afford the $50 fee in
25 the first place.
26 184. The Final Rule also denies asylum seekers the statutory option of paying the fee in
27 installments. 85 Fed. Reg. at 46,859. DHS does not explain why it requires a single payment except
28

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1 for a statement that “installments plans, or micro-loans would be administratively complex and 2 would require even higher costs than in the NPRM.” Id. DHS does not consider the potential benefits 3 to asylum seekers for offering the option of installments and the detrimental impact felt by

4 eliminating this option.

5

185. Throughout the Final Rule, Defendants assert that they had no data to indicate that the

6 $50 fee would affect asylum applicants or impede them from seeking asylum. At one point, DHS 7 makes the baseless assertion, defying logic, that the $50 fee’s effects are not only unknown, but also 8 unknowable: “the agency has no data describing the myriad complex and changing unobservable 9 factors that may affect each immigrant’s unique decision to file for a particular immigration benefit.”

10 85 Fed. Reg. at 46,882, 46,895; cf. id. at 46,797-98, 46,841, 46,906. This is false; comments 11 provided this data to DHS and the agency simply declined to address them.35

12

186. Nor does the Final Rule adequately justify the fee increase. Under the Final Rule, the

13 $50 asylum fee appears intended to deter what DHS considers ‘frivolous’ asylum applications. See

14 85 Fed. Reg. at 46,887, 46,844. Defendants make no effort to show, however, that refugees with

15 meritorious asylum claims are more likely to have fifty dollars than those with so-called ‘frivolous’

16 claims. Both the comments submitted to DHS as well as common sense suggest that the opposite is

17 true: the refugees most in need of asylum protections will have few or no financial resources.

18

187. In addition to the $50 application fee, the Final Rule imposes a $550 fee to apply for

19 employment authorization while an asylum application is pending, with a $30 biometric fee.

20 Currently, asylum seekers are exempt from paying a fee for their initial employment authorization

21 applications.

22 35 See, e.g., Bridget Crawford, Immigr. Equality, Comment Letter on Proposed Rule on U.S.

Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration

23 Benefit Request Requirements at 3 n.3 (Dec. 27, 2019), DHS No. USCIS-2019-0010-10794 (citing

24

Human Rights First, Callous and Calculated: Longer Work Authorization Bar Endangers Lives of Asylum Seekers and Their Families (Apr. 29, 2019), https://bit.ly/2DYyYXF)); Natasha Lycia Ora

Bannan, LatinoJustice PRLDEF, Comment Letter on Proposed Rule on U.S. Citizenship and

25 Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request

Requirements at 8 n.30 (Dec. 16, 2019), DHS No. USCIS-2019-0010-5755 (citing Lindsay Harris, 26 Asylum seekers leave everything behind. There’s no way they can pay Trump’s fee., Wash. Post

(May 1, 2019)); Elizabeth Foydel, Int’l Refugee Assist. Project, Comment Letter on Proposed Rule 27 on U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other

Immigration Benefit Request Requirements at 5-8 (Dec. 20, 2019), DHS No. USCIS-2019-001028 6858.

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1

188. By statute, USCIS must complete adjudication of an asylum application within 180

2 days after the application is filed, absent extraordinary circumstances; and the applicant is not

3 eligible for work authorization until the asylum application has been pending for 180 days. DHS

4 regulations provide that it will grant work authorization to asylum seekers whose applications have

5 been pending for 180 days and will also adjudicate employment authorizations within 30 days.

6

189. But under separate new DHS rules set to take effect on August 21, 2020 and August

7 25, 2020, DHS will require asylum applicants to wait a year after applying for asylum to apply for

8 employment authorization, will remove the 30-day regulatory deadline to render a decision on those

9 applications, and will significantly restrict asylum seekers’ eligibility for employment authorization.

10 85 Fed. Reg. 37,502 (June 22, 2020); 85 Fed. Reg. 38,532 (June 26, 2020).

11

190. The interplay between the rules means that an asylum applicant must now pay $50 to

12 submit her asylum application, could be prohibited from working in the United States for one year if

13 her application remains pending during that time, and then must pay $580 to seek employment

14 authorization, with no assurance as to if or when that employment authorization might be granted

15 such that she can earn any income at all. And once the work authorization is granted, she would

16 need to pay another $580 for new renewals every two years because the Final Rule eliminates fee

17 waivers for employment authorization renewals.

18

191. For context, the $630 that asylum seekers must now pay for the previously no-cost

19 applications for asylum and initial work authorization amounts to roughly two weeks of full time

20 work at the United States minimum wage. Many asylum seekers will not be able to pay this amount.

21

192. DHS does not offer a reasoned explanation for the drastic increase from $0 to $630

22 for an asylum applicant seeking work authorization. Its thin responses make no sense for several

23 reasons:

24

193. First, DHS suggests that asylum seekers could use credit cards to pay the fees but this

25 ignores the information commenters provided on their financial vulnerability. Refugees often flee

26 persecution with little advance notice, abandoning their possessions and livelihoods. Without

27

28

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1 material wealth, employment, or legal status, asylum seekers cannot easily obtain a credit card in the

2 United States.36 DHS provides no data suggesting otherwise.

3

194. Second, DHS asserts that asylum seekers spend “thousands” of dollars to get to the

4 United States but that is irrelevant to their ability to pay once they arrive in the United States. DHS

5 ignores comments explaining that most asylum seekers spend their life savings to make the trip and

6 arrive empty-handed.37

7

195. Third, DHS ignores the interplay between the Final Rule and its recently-finalized

8 rules on asylum employment authorization applications. Together, these rules will decrease the

9 volume of asylum seekers applying for employment authorization and the timing of any revenues

10 from such applications, which should have been accounted for in the cost modeling. This failing is

11 significant because the fee for employment authorization has an impact on a large population of

12 asylum seekers. In 2019, 74 percent of asylum seekers also sought employment authorization.

13

196. The Final Rule is dismissive of the inability of asylum seekers to afford the fee for

14 initial employment authorization. DHS asserts, without citation or evidence, that “[m]any asylum

15 seekers spend thousands of dollars to make the journey to the United States.” 85 Fed. Reg. at 46,853.

16 As a result, DHS believes that it is “not unduly burdensome to require asylum seekers to plan and

17 allocate their financial resources to pay a fee that all other noncitizens must pay.” Id. Many asylum

18 seekers have no financial resources because they are urgently fleeing dangerous situations, but even

19 if they had resources at the time of the journey, DHS ignores that they must provide for themselves

20 for at least a year in the United States without any income before applying for employment

21 authorization.

22 36 See Elizabeth Foydel, Int’l Refugee Assist. Project, Comment Letter on Proposed Rule on U.S.

Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration

23 Benefit Request Requirements at 10-11 (Dec. 20, 2019), DHS No. USCIS-2019-0010-6858.

24

(noting that asylum seekers must abandon their previous homes and possessions); id. at 14 (noting that an EAD is often required to obtain an official state identification card or driver’s license);

Asylum Seeker Advoc. Project, Comment Letter on Proposed Rule on U.S. Citizenship and

25 Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request

Requirements at 4 (Dec. 30, 2019), DHS No. USCIS-2019-0010-7898 (noting that, without an EAD, 26 asylum seekers often have no government-issued identification).

27

37 See Jill Marie Bussey, Catholic Legal Immigr. Network, Inc., Comment Letter on U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request

Requirements at 20 (Dec. 18, 2019), DHS No. USCIS-2019-0010-5894. 28

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1

197. The Final Rules also contravenes the INA as amended by the Refugee Act. The INA

2 sets out the right to seek asylum in the United States for “any person” who is not a citizen of the

3 United States. 8 U.S.C. §§ 1101(a)(3), 1158(a). The word “any” is understood to have “an expansive

4 meaning, that is, one or some indiscriminately of whatever kind.” United States v. Gonzales, 520

5 U.S. 1, 5 (1997) (internal quotations omitted). A fee that prevents “any person” from accessing the

6 asylum process violates the statute. The only condition under which the agency has permissive

7 authority to assess such a fee is one set for cost recovery, as opposed to deterrence. 8 U.S.C. §

8 1158(d)(3). Congress evinced its concern for affordability by allowing both the assessment and

9 payment of fees to occur in installments and over time.

10

198. Because Congress has the primary role in immigration law, the Executive’s power is

11 at its “lowest ebb.” See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-40 (1952).

12 Congress’s express and implied will is to provide the right for refugees to seek asylum. Here, DHS

13 provided no sufficient explanation to support its decision to effectively deny individuals that right

14 based on whether they can afford the $50 fee.

15

199. Nor does DHS support its contravention of international law to which the United

16 States is a signatory. Under the 1967 Protocol, which incorporates articles 2 through 34 of the 1951

17 Convention relating to the Status of Refugees, the United States is required to issue identity papers

18 and travel documents to those seeking asylum absent compelling reasons of national security or

19 public order.

20

200. Under the Final Rule, asylum seekers who cannot afford the $50 fee cannot apply for

21 asylum, and likewise cannot afford to apply for employment authorization as asylum applicants,

22 such that the United States will fail to issue identity or travel documents to these individuals. This

23 violates the United States’ obligations under international law.

24

201. DHS provides no “compelling reason” for this deviation from the norm..

25

202. The Final Rule does not consider the significant harm to asylum seekers who will be

26 unable to work as a result of increased fees. Instead, it deliberately prices out eligible asylum

27 seekers from the opportunity to support themselves and their families. See 85 Fed. Reg. at 46,809.

28

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1 This intentional action is an unjustified end-run around statutory provisions aimed at allowing

2 asylum seekers to support themselves and their families.

3

203. As comments to the proposed rule noted, DHS’s own data shows that these changes

4 to fees for asylum seekers will disproportionately affect people of color. DHS data shows that most

5 asylum applicants are from Venezuela, the People’s Republic of China, Guatemala, and Mexico.

6 DHS failed to consider this disparate impact on people of color.

7

4. The Final Rule Unlawfully Increases Fees for Vulnerable Populations

8

204. The Final Rule narrows eligibility for fee waivers based on income for the world’s

9 most vulnerable people, for whom Congress expressly provided fee exemptions or fee caps under the

10 INA and TVPRA. These include applicants under VAWA, U (crime victim), T (trafficked

11 individuals), and TPS provisions.

12

205. First, applicants for primary benefits that are fee exempt must obtain associated

13 benefits in order to gain access to their primary benefits. Thus, barriers to accessing those associated

14 benefits can result in barriers to statutorily provided protections.

15

206. For this reason, while the costs of primary benefits for these groups are statutorily

16 capped or exempted, the TVPRA also requires USCIS to allow applicants for these primary benefits

17 to apply for a fee waiver for associated filings up to and including the application for permanent

18 residence. Pub. L. No. 110-457, 122 Stat. 5044 at 5054.

19

207. In the Final Rule, DHS erects barriers to this statutory design by drastically narrowing

20 fee waiver eligibility. See supra IV.C.1. In addition to heightening the standards beyond the reach of

21 many survivors and eliminating alternate bases for qualifying for a fee waiver, the Final Rule

22 requires documentation of income that survivors are unlikely to have. In so doing, the Final Rule’s

23 new requirements make it exceedingly difficult for individuals to obtain a fee waiver.

24

208. These heightened standards will prevent many applicants from qualifying for the

25 main benefit application because associated filings include applications for waivers of

26 inadmissibility, which must be approved in order to qualify for the primary benefit of VAWA, U, T

27 and TPS.

28

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1

209. The result of making the fee waivers for associated filings so difficult to obtain will

2 be that many survivors will not be able to qualify for the primary benefit of VAWA, U or T status, in

3 direct contravention of the purpose of the INA in making these visas available.

4

210. Although many commenters raised this concern in detail, DHS states simply that it

5 “believes that maintaining access to fee waivers for these vulnerable populations mitigates any

6 concerns that the increase in certain fees would limit access for protected categories of individuals.”

7 85 Fed. Reg. at 46,810. This insufficiently responds to this serious issue.

8

211. Second, the Final Rule drastically increases fees for family members of these

9 vulnerable populations. The fee for Form I-929, Petition for Qualifying Family Member of a U-1

10 Nonimmigrant, which is a benefit available to the family members of crime victims, has increased

11 by $1,255, to $1,485. 85 Fed. Reg. at 46,855.

12

212. DHS states it raises this fee because it expects many more vulnerable populations will

13 meet fee waiver criteria. 85 Fed. Reg. at 46,855. DHS supplies no data to support its justification for

14 raising fees in this context.

15

213. Furthermore, DHS treats similarly situated groups differently. While the Final Rule

16 “reiterates that the rule continues to exempt the VAWA, T, and U populations from fees for the main

17 benefit forms and allows them to submit fee waiver requests for any associated forms up to and

18 including the application for adjustment of status, as provided by statute,” 85 Fed. Reg. at 46,811,

19 the Final Rule does not appear to permit fee waivers for derivatives of T and U populations. The

20 revised §106.3 expressly permits fee waivers for VAWA derivatives (§106.3(a)(1)(i)) but makes no

21 mention of derivatives in the subsections pertaining to U and T nonimmigrants (§106.3(a)(1)(ii-iii)).

22 85 Fed. Reg. at 46,920.

23

214. Even if derivatives remain eligible for fee waiver, the new requirements for those fee

24 waivers make it exceedingly difficult for individuals to obtain a fee waiver, as described above.

25

215. The heightened fee waiver standards will prevent many applicants from qualifying,

26 which creates the very real risk that individuals eligible for VAWA relief and U and T visas will stay

27 in an abusive or dangerous situation because they cannot afford to pay fees for immigration

28

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1 applications to keep their family members together. The risk is even greater if U and T derivatives

2 are not fee waiver eligible.

3

216. The heightened fee waiver standards would also frustrate the important goal of

4 encouraging individuals to come forward and report when they have been the victim of a crime, in a

5 way that also protects their families. The risk is even greater if the U and T derivatives are not fee

6 waiver eligible.

7

217. Thus, more stringent requirements for fee waivers, or the lack of fee waiver

8 eligibility, contravenes Congress’s intent to prioritize both public safety and family unity by creating

9 statutory fee exemptions for these vulnerable groups.

10

218. Third, the fees established for many benefits available to these statutorily protected

11 groups have skyrocketed without adequate explanation. For example, the Final Rule sets the fee for

12 I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant at $1,485, more than 5 times

13 its current cost. 85 Fed. Reg. at 46,919.

14

219. These factors combine to demonstrate that the Final Rule erects financial barriers to

15 applicants’ ability to access protections that Congress expressly provided.

16

5. The Final Rule Unlawfully Increases Fees by Unbundling Applications for

17

Those Seeking Lawful Permanent Resident Status and Interim Benefits

18

220. Since 2007, DHS has charged a flat rate for a bundle of applications for those seeking

19 lawful permanent residency. The flat fee of $1,140 covered the application for permanent residency

20 (I-485), an employment authorization application (I-765), and application for travel document (I-

21 131). A flat fee of $750 covers the same three documents for children under 14.

22

221. DHS has explained that bundling reduces agency workload and processing costs. 72

23 Fed. Reg. 4,888, 4,894 (Feb 1, 2007).

24

222. The Final Rule unbundles these forms and applies fees for each one. As a result, the

25 Final Rule effectively doubles the fees for applying for the three previously-bundled benefits. The

26 fees for children under 14 jump nearly 200%.

27

28

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1

223. Despite its prior detailed justifications in support of taking the opposite approach, the

2 Final Rule raises fees for suspending deportation (I-881) from $285/individual, or $570/family, to a

3 flat fee of $1,810 (with exceptions for statutorily protected groups).

4

224. DHS charges this fee regardless of whether the applicant is a child or adult for both

5 forms, claiming these changes “reduc[e] the administrative burden.” 84 Fed. Reg. at 62,323.

6

225. DHS does not explain its reversal on bundling except to say that “USCIS did not

7 realize the operational efficiencies envisioned when it introduced the bundled filing.” 85 Fed. Reg.

8 at 46,841.

9

226. These two ambiguous statements—a general effort to reduce administration burden,

10 and an alleged failure to “realize operational efficiencies”—are not an adequate justification for the

11 agency to reverse course.

12

6. The Final Rule drastically increases fees in the NACARA process without

13

adequate justification.

14

227. NACARA was specifically enacted as “a political response to the concern that many

15 individuals had spent years in the United States, complying with the immigration laws and

16 establishing countless equities,” were nevertheless “adversely affected by the harsh changes in the 17 immigration law as amended by [IIRIRA].”38 “The law permits these individuals to adjust status

18 even if they have been ordered excluded, deported, removed or have failed to depart voluntarily after

19 an order of voluntary departure.”39

20

228. Nevertheless, despite Congress’s intent to make immigration benefits available to

21 nearly all eligible Guatemalans, Salvadorans, or former-Soviet-bloc nationals, the Final Rule

22 drastically increases the fees for filing Form I-881 (Application for Suspension of Deportation or

23 Cancellation of Removal). For individuals who previously paid only $285 to file Form I-881, the

24 Final Rule would now require that they pay $1,810—a 535 percent increase. 85 Fed. Reg. at 46,791.

25 For families who previously paid only $570 together, the Final Rule now imposes a $1,810 fee as

26 well—a 218 percent increase. Id. 27 38 Lourdes A. Rodriguez, Understanding The Nicaraguan Adjustment and Central American Relief
Act at 502, https://core.ac.uk/download/pdf/51091763.pdf 28 39 Id. at 503 (citing NACARA §§ 202(a)(1)(A), 202(b)(1)).

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1

229. The Final Rule provided only boilerplate justification for this fee increase. Several

2 commenters pointed out that the Proposed Rule “provided no explanation for the 532 percent fee

3 increase for Form I-881,” and questioned whether “adjudication had changed drastically to justify

4 the fee increase,” and pointed out that “the proposal was contrary to the purpose of [NACARA].” 85

5 Fed. Reg. at 46,854. DHS responded only that it “disagrees with the commenters’ contention that

6 DHS failed to explain or justify the fee increase for Form I-881,” and stated that it had adjusted the

7 fee to “reflect the estimated full cost of adjudication.” 85 Fed. Reg. at 46,854.

8

230. The Final Rule did not address at all whether DHS believed that the fee increase was

9 consistent with NACARA, or whether the adjudication process had changed so dramatically since

10 2005 to justify a 535 percent increase. See 84 Fed. Reg. at 62,323 (NACARA fees “have not

11 changed since 2005”). Nor did the Final Rule explain why adjudicating a relatively straightforward

12 statutory benefit—explained in full in a few bullet points on a single USCIS webpage40—would

13 require USCIS to expend more resources than adjudicating N-400 naturalization applications, which

14 cost $1,170 under the Final Rule. 85 Fed. Reg. at 46,792. And USCIS’s website suggests that the

15 entirety of the NACARA Form I-881 adjudication process consists of fingerprinting and a single

16 interview with an asylum officer.41

17

231. Furthermore, the Final Rule does not attempt to explain why adjudicating an

18 individual Form I-881 would cost DHS exactly as much as adjudicating a family Form I-881 in the

19 NACARA context. See 85 Fed. Reg. at 46,791 (raising both the individual and family fees to

20 $1,810). Common sense suggests this is unlikely.42

21

7. The Final Rule Favors Wealthier Applicants Without Justification

22

232. In contrast to the increased fees for low-income applicants, the Final Rule applies

23 minimal or no increase to the fees paid by some wealthy applicants.

24

25 40 See USCIS, Nicaraguan Adjustment and Central American Relief Act (NACARA) 203: Eligibility

26

to Apply with USCIS (Sept. 21, 2017), https://bit.ly/2PrdogP. 41 See USCIS, Nicaraguan Adjustment and Central American Relief Act (NACARA) 203: The

27

Decision Making Process (Mar. 8, 2018), https://bit.ly/2PubKep. 42 See Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2575 (2019) (courts evaluating agency

action “are ‘not required to exhibit a naiveté from which ordinary citizens are free’” (citation

28 omitted)).

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1

233. For example, the Final Rule reduced the fee employers pay to apply for a visa for an

2 exceptional immigrant employee. 85 Fed Reg. at 46,971.

3

234. The fees for forms used by wealthy investors also either did not increase at all or

4 increased only 9 percent. 85 Fed. Reg. at 46,971.

5

235. The fees to naturalize an adopted foreign-born child increased by only 4 percent. 85

6 Fed. Reg. at 46,971.

7

236. The Final Rule also applies a minimal increase on the I-360 form used by religious

8 workers. The Proposed Rule raised the I-360 fee by just 5 percent, in contrast with triple-digit

9 increases for other fees, including the 535 percent increase for NACARA. 84 Fed. Reg. at 62,326.

10 When commenters opposed the proposed 5 percent fee on grounds that it would “harm the ability of

11 religious organizations to petition for their workers,” DHS lowered the fee to 3 percent and

12 transferred the costs to all other fee payers. The Final Rule does not offer a reasoned explanation for

13 why DHS was concerned about harm to religious employers but not harm to others.

14 V. THE FINAL RULE MUST BE SET ASIDE BECAUSE NO AUTHORIZED DHS

15

OFFICIAL ISSUED OR PROPOSED THE RULE

16

237. The Final Rule was invalidly finalized under the HSA, Federal Vacancies Reform Act

17 (“FVRA”), and APA because Defendant Wolf was not authorized to issue the Final Rule, and

18 because the Final Rule comes from an invalid proposal that no one at DHS was authorized to issue—

19 neither Defendant Wolf nor his immediate predecessor Kevin McAleenan.

20

238. The HSA requires that the DHS Secretary shall be “appointed by the President, by

21 and with advice and consent of the Senate.” 6 U.S.C. § 112(a)(1). The HSA mandates that, in the

22 event of the “absence, disability, or vacancy in office” of the Secretary, the Deputy DHS Secretary is

23 first in the order of succession as Acting Secretary and the Under Secretary of Management is

24 second. Id. § 113(a)(1)(A), (g)(1). After the Deputy Secretary and Under Secretary of Management,

25 the HSA allows the DHS Secretary to “designate such other officers of the Department in further

26 order of succession to serve as Acting Secretary.” Id. § 113(g)(2).

27

239. The DHS has established multiple orders of succession and/or delegations pertaining

28 to the Office of the Secretary and other DHS positions. Those documents are contained in a broader

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1 directive, entitled DHS Orders of Succession and Delegations of Authorities for Named Positions,

2 Dep’t of Homeland Sec., Delegation No. 00106, Revision No.08.5 (Dec. 15, 2016) (“DHS Orders”).

3

240. From at least December 15, 2016, through and beyond April 11, 2019, Section II.A of

4 the DHS Orders stated in full that: “In case of the Secretary’s death, resignation, or inability to

5 perform the functions of the Office, the orderly succession of officials is governed by Executive

6 Order 13753, amended on December 9, 2016.” Id. (emphases added).

7

241. Executive Order 13753, in turn, set the order of succession at DHS in cases of

8 resignation of the Secretary. Executive Order 13753 establishes in relevant part that in the event the

9 Secretary resigns, the order of succession is as follows:

10

• Deputy Secretary of Homeland Security;

11

• Under Secretary for Management;

12

• Administrator of the Federal Emergency Management Agency;

13

• Under Secretary for National Protection and Programs;

14

• Under Secretary for Science and Technology;

15

• Under Secretary for Intelligence and Analysis; and

16

• Commissioner of U.S. Customs and Border Protection.

17

242. From at least December 15, 2016, through and beyond April 11, 2019, Section II.B of

18 the DHS Orders additionally provided: “I [Secretary of Homeland Security] hereby delegate to the

19 officials occupying the identified positions in the order listed ([at] Annex A), my authority to

20 exercise the powers and perform the functions and duties of my office, to the extent not otherwise

21 prohibited by law, in the event I am unavailable to act during a disaster or catastrophic emergency.”

22 DHS Orders § II.B (emphases added).

23

243. President Trump announced Secretary Nielsen’s departure from office on April 7,

24 2019 by tweet, and at the same time announced that her successor would be Kevin McAleenan, who

25 was then serving as Commissioner of U.S. Customs and Border Protection (“CBP”).

26

244. Secretary Nielsen announced her resignation later in the day on April 7, 2019 and

27 publicly submitted her resignation letter, which stated that it was “effective April 7th, 2019.”

28

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1

245. A few hours later in the day on April 7, 2019, however, former Secretary Nielsen

2 announced by tweet that she “ha[d] agreed to stay on as Secretary” until April 10, 2019.43

3

246. On April 10, 2019, prior to her departure, Secretary Nielsen purported to issue an

4 amendment to the DHS Orders (the “April 2019 Amendment”). The only action directed by the

5 April 2019 Amendment was to “strik[e] the text of such Annex [A] in its entirety and insert” a

6 different list of positions “in lieu thereof.” The inserted text listed the Commissioner of U.S.

7 Customs and Border Protection third behind the Deputy Secretary of Homeland Security and Under

8 Secretary for Management.

9

247. Notably, the April 2019 Amendment did not change Section II.A of the DHS Orders,

10 which continued to state that in the event of the Secretary’s resignation, “the orderly succession of

11 officials [would be] governed by Executive Order 13753[.]” Consequently, consistent with Section

12 II.B of the DHS Orders, the April 2019 Amendment to Annex A governed only where the Secretary

13 was “unavailable to act during a disaster or catastrophic emergency.”

14

248. Executive Order 13753 thus governed succession following Secretary Nielsen’s

15 resignation. Notwithstanding this distinction, in apparent reliance on the April 2019 Amendment,

16 then-CBP Commissioner Kevin McAleenan purported to assume the position of Acting Secretary on

17 April 11, 2019.

18

249. On November 8, 2019, McAleenan attempted to issue a further amendment to Annex

19 A (the “November 2019 Amendment”) revising the order of succession set forth therein to elevate 20 Under Secretary for Strategy, Policy, and Plans to be fourth in line to lead DHS. Unlike Secretary 21 Nielsen’s April 2019 Amendment, the November 2019 Amendment also purported to amend Section 22 II.A of the DHS Orders such that the succession of officials would be governed by Annex A “[i]n 23 case of the Secretary’s death, resignation, or inability to perform the functions of the Office.”44

24 43 On April 7, 2019, former Secretary Nielsen’s effective resignation date, Claire Grady served as the
25 Senate-confirmed Under Secretary for Management, and in that capacity, had been the Acting DHS Deputy Secretary since April 16, 2018. Pursuant to the text of the HSA and DHS Orders in place at
26 the time of Secretary Nielsen’s resignation, Grady would have become Acting DHS Secretary as soon as former Secretary Nielsen’s resignation was effective. Grady submitted her resignation as
27 Acting DHS Deputy Secretary on April 9, 2019, which became effective April 10, 2019. 44 Had Annex A already applied in the event of a resignation, this attempted amendment would not
28 have been necessary.

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1

250. On November 13, 2019, Defendant Wolf (who had been confirmed as Under

2 Secretary for Strategy, Policy, and Plans on that same day) purported to become Acting Secretary of

3 DHS pursuant to McAleenan’s attempted November 2019 Amendment.

4

251. On August 14, 2020, the U.S. Government Accountability Office (“GAO”) issued a

5 decision stating that the “incorrect official assumed the title of Acting Secretary at [the time of

6 Nielsen’s resignation]” and that “subsequent amendments to the order of succession made by

7 [McAleenan] were invalid and officials who assumed their positions under such amendments,

8 including Chad Wolf and Kenneth Cuccinelli, were named by reference to an invalid order of

9 succession.” U.S. Gov’t Accountability Off., GAO- B-331650, Department of Homeland Security—

10 Legality of Service of Acting Secretary of Homeland Security and Service of Senior Official

11 Performing the Duties of Deputy Secretary of Homeland Security at 1 (2020) (“GAO Decision”).

12

252. On November 14, 2019, DHS published the November Proposal. McAleenan signed

13 the proposal, notwithstanding that (i) the GAO decision suggests that actions he took as Acting

14 Secretary were invalid; (ii) the November Proposal was issued well beyond the 210-day limit set

15 forth in the FVRA; and (iii) he had resigned the day before. 84 Fed. Reg. at 62,280; see also

16 Declaration of Juliana Blackwell, CASA de Md., Inc. v. Wolf, No. 8:20-cv-02118-PX (D. Md. Aug.

17 3, 2020), ECF No. 41-1 (“Blackwell Decl.”).

18

253. On December 9, 2019, DHS published an extension of the comment period. 84 Fed.

19 Reg. 67,243. Then on January 24, 2020, DHS further extended the comment period until February

20 10, 2020. See 85 Fed. Reg. 4,243. Both were issued by Defendant Wolf under his purported

21 authority as Acting DHS Secretary.

22

254. On August 3, 2020, DHS published the Final Rule. Defendant Wolf signed the Final

23 Rule under his purported authority as Acting DHS Secretary. Specifically, Defendant Wolf, “having

24 reviewed and approved” the Final Rule, “delegat[ed] the authority to electronically sign” it to Chad

25 Mizelle, “the Senior Official Performing the Duties of the General Counsel for DHS.” 85 Fed. Reg.

26 at 46,913.

27

28

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1

255. On August 17, 2020, DHS published corrections to the Final Rule, signed by Chad R.

2 Mizelle as “Senior Official Performing the Duties of the General Counsel for the Department of

3 Homeland Security.” 85 Fed. Reg. 49,941 (Aug. 17, 2020).

4

256. The Final Rule is therefore invalid for two reasons.

5

257. First, DHS did not lawfully issue the Final Rule because Defendant Wolf is not

6 validly serving as the Acting DHS Secretary. His assumption of that office was unlawful under the

7 HSA, because he was not next in the order of succession at the time that he purported to succeed to

8 that office. His succession was pursuant to McAleenan’s unlawful November 2019 Amendment to

9 the DHS Orders. See GAO Decision at 9-11.

10

258. Moreover, Defendant Wolf assumed the role of Acting Secretary after the office of

11 DHS Secretary had remained vacant since Secretary Nielsen’s departure, well beyond the 210-day

12 limitation for acting officers provided by the Federal Vacancies Reform Act (“FVRA”). See 5

13 U.S.C. § 3346(a)(1).

14

259. As such, Defendant Wolf has no valid legal claim to the Office of Acting DHS

15 Secretary, and the action he has taken in promulgating the final rule “shall have no force or effect.”45

16

260. Second, the Final Rule arises from its invalid Proposal in violation of the APA and

17 must be set aside. As noted above, Defendant Wolf is not validly serving as the Acting Secretary of

18 DHS, and thus was not authorized to issue the December Proposal.

19

261. In addition, his immediate predecessor McAleenan was likewise not authorized to

20 issue the November Proposal. The November Proposal was signed on November 9, 2019, well after

21 the 210-day statutory limitation for acting officers under the FVRA.

22

262. In addition, McAleenan resigned the day before the November Proposal was

23 published. Thus, the November Proposal was effectively unsigned. See Yovino v. Rizo, 139 S. Ct. 24 706, 709 (2019) (a judge cannot participate in a decision if he becomes inactive before a decision is

25 issued (citing United States v. Am.-Foreign S.S. Corp., 363 U.S. 685 (1960)). A valid proposal 26 published in the Federal Register is required under the APA. 5 U.S.C. § 553(b) (“General notice of 27 proposed rule making shall be published in the Federal Register . . . .”) (emphasis added); Louis v. 28 45 5 U.S.C. § 3348.

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1 U.S. Dep’t of Labor, 419 F.3d 970, 975 (9th Cir. 2005) (stating that the APA requires agencies to

2 publish legally sufficient notices of proposed rulemaking, which must “fairly apprise[] interested

3 persons of the subject and issues before the Agency”); See also Cal. ex rel. Lockyer v. FERC, 329

4 F.3d 700, 706-07 (9th Cir. 2003) (noting connection between Due Process Clause and APA notice

5 provisions).

6

263. Because McAleenan’s purported succession was unlawful, see GAO Decision at 11,

7 he had no valid legal claim to the Office of Acting DHS Secretary on that basis and could not

8 lawfully exercise the authority of that office, including issuing the proposed rule.

9

264. DHS issued the Final Rule in purported accordance with the rulemaking procedures

10 of the APA. For informal rulemaking such as the Final Rule—i.e., those that are not subject to

11 formal hearing procedures—the APA requires a proposed rule. Because no valid proposed rule was

12 issued, the Final Rule does not comply with the APA and must be set aside.

13 VI. THE FINAL RULE HARMS INDIVIDUALS AND COMMUNITIES.

14

A. Individuals

15

1. Naturalization applicants and recipients

16

265. By raising fees and practically eliminating access to fee waivers for low-income

17 applicants, the Final Rule leaves many individuals with few, grim options for becoming U.S.

18 citizens. Desperate applicants may become easier targets for predatory lenders and scams. They may

19 also be more likely to accept financial assistance from abusers at the cost of remaining in abusive

20 relationships.

21

266. Many other applicants will simply be unable to afford the cost of becoming a U.S.

22 citizen.

23

267. Because fee hikes apply to each individual applicant, families will have to make

24 tough choices about which family members become citizens, if any at all can afford to do so.

25

268. Because the Final Rule reduces the price of lawful permanent resident status renewal

26 while drastically raising naturalization fees, poorer applicants will rationally choose to remain non-

27 citizens, foregoing the right to vote, serve on juries, and run for elected office, which deprives their

28 communities of this important representation.

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1

269. The Final Rule risks creating a caste system within our immigration system in which

2 the affluent gain citizenship while the poor remain permanent residents, thereby creating the kind of

3 structural inequality and unequal access to voting and representation that many immigrants came to

4 America to escape. The calculations and allocations of costs in the Final Rule operate as a poll tax,

5 and are pretext for decreasing the proportion of immigrant voters in the American electorate.

6

2. Lawful permanent resident applicants

7

270. As discussed above, supra IV.C.5, the Final Rule significantly increases fees for

8 immigrants who are seeking lawful permanent residence (I-485) and common interim benefits

9 (travel authorization and employment authorization), from $1,140 and $750 for adults and children,

10 respectively, to $2,195 for all applicants. These staggering increases will make lawful permanent

11 residence unaffordable for many eligible foreign nationals and their United-States-citizen and

12 lawful-permanent-resident sponsors. DHS, despite receiving numerous comments and reviewing

13 substantial evidence showing that the proposed fees would be unaffordable for the immigrant

14 population, dismissively waved off these concerns: “Individuals applying for adjustment of status

15 are not required to request a travel document or employment authorization,” and “[w]ith bundled

16 interim benefits, individuals may have requested interim benefits that they did not intend to use

17 because it was already included in the bundled price.” 85 Fed. Reg. at 46,841. “Debundling,” says

18 DHS, “allows individuals to pay for only the services actually requested.” Id. But the portion of

19 applicants wanting to pay all three separate fees is irrelevant; the harm is that three benefits that

20 previously cost these applicants $1,140 (or $750 for children) now cost $2,195, id. at 46,791, and (as

21 the comments submitted to DHS demonstrate) many otherwise-eligible applicants cannot afford to

22 pay that amount.

23

271. As numerous commenters pointed out to DHS during the comment period, the

24 unaffordability of the lawful permanent residence fees (and of immigration fees under the Final Rule

25 generally) will drive immigrants increasingly to predatory lenders. For example, one commenter

26 “wrote that many of its clients were ‘cut off’ from financial institutions and described the dangers of

27 borrowing from ‘predatory lending mechanisms’ or from family members who may use the debt

28 owed as ‘currency for their abusive behavior’ in some circumstances.” 85 Fed. Reg. at 46,810.

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1 DHS’s nonresponse to similar concerns throughout the Final Rule remained consistent: “DHS does

2 not intend for the new fees to prevent individuals from applying for naturalization [or other benefits],

3 that they require applicants to depend on predatory financing to pay naturalization application fees,

4 and we do not believe the rule will have those effects.” 85 Fed. Reg. at 46,860. DHS offers no

5 support for that irrational belief, and presents no information to cast doubt on the numerous

6 comments DHS received showing that increased fees would be a boon for predatory lenders.

7

272. DHS repeatedly serves up the same tone-deaf suggestion that increased fees would

8 not be problematic because applicants could use credit cards to pay them, see 85 Fed. Reg. at 46,797,

9 46,807, 46,851, 46,877—despite having received comments identifying the fact that many

10 immigrants, particularly poor immigrants, do not have credit cards.

11

273. This unaffordable $2,195 fee total makes it increasingly likely that families will be

12 separated simply because they cannot afford to pay for all family members to maintain status, and

13 for working parents to receive employment authorization. For example, a family of four (two

14 parents, two children) would currently pay $3,780 in fees—already a significant sum for low- and

15 middle-income families—to adjust status and obtain employment and travel authorization for all four

16 family members. Under the Final Rule, that same family of four would have to come up with $8,780

17 to receive the same benefits. If only the parents applied for employment authorization and nobody

18 applied for travel authorization, the family would still pay significantly more—$5,620 versus

19 $3,780—and all four family members would have fewer benefits than under the current regime.

20

274. When certain combinations of benefits become inaccessible due to cost, the loss of

21 those benefits leads to other harms as well. As the prices of these benefits rise, families will be

22 forced to make difficult choices about who receives immigration benefits and who does not. For

23 example, a married adult who could afford to apply for lawful permanent residence status but not

24 employment authorization would be financially dependent on his or her spouse while the lawful

25 permanent residence application is pending—even if that spouse were abusive. If a family could not

26 afford employment-authorization fees for anyone, the parents—quite understandably—would de

27 facto need to work unlawfully to provide food and housing. This would put the parents at the mercy

28 of the employer; the parents, for example, might have to accept unfair under-the-table wages,

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1 exhausting schedules, and/or unsafe work environments without complaint just so that the employer

2 does not report them to immigration authorities. Everybody loses in these situations.

3

275. Perhaps the most consequential effect this might have would be to delay, interfere

4 with, or even foreclose naturalization down the road for lawful permanent residence applicants, since

5 an immigrant may file an N-400, at the earliest, after three years of lawful permanent residence

6 status. If an immigrant loses their lawful status because they cannot afford the fees, this could

7 snowball to deportation or removal, a resulting ban on reentering the United States, and difficulties

8 ultimately naturalizing.

9

3. Asylum Applicants and Asylees

10

276. The Final Rule will impose a $50 fee on Form I-589 applications for asylum that is

11 not subject to a fee waiver. The Final Rule will irreparably harm those who need to apply for

12 asylum, but now cannot, because of the new fee without the opportunity for a waiver, and will be

13 forced to return to the dangerous conditions that brought them to the United States to seek

14 protection. See Regulatory Impact Analysis at 152 (“DHS recognizes that some applicants may not

15 be able to afford this new fee and will no longer be able to apply for asylum.”).

16

277. Seeking asylum is a fundamental human right and tenet of international human rights

17 law to which the United States is bound by treaty to respect, but under the Final Rule, the individuals

18 least likely to have the resources to afford USCIS’s new fee would be prevented from receiving the

19 basic protections and opportunities envisioned by the INA. The harm is patently obvious. By

20 definition, individuals and their families seeking asylum have suffered persecution or credibly fear

21 that they will suffer persecution due to their race, religion, nationality, membership in a particular

22 social group, or political opinion. See 8 U.S.C. § 1158(b)(1)(A), (B)(i).

23

278. Individuals seeking asylum in the U.S. frequently arrive with limited resources, and

24 these scarce resources should be reserved for key expenses like food and shelter. The Final Rule

25 puts asylum applicants in danger by forcing them to choose between foregoing basic necessities and

26 the application fee.

27

279. The $50 fee puts asylum applicants and their families in a vulnerable position with

28 respect to predatory lending practices. Because many asylum applicants cannot communicate in

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1 English and have few financial resources, they are vulnerable to predatory lending practices, which

2 might seem appealing in the short term to pay the required fee.

3

280. Asylum seekers who cannot afford the filing fee but are fearful of being removed to a

4 country where they will be persecuted may be forced to remain in the United States without

5 documentation. Forced to rely on charity to survive, they are at risk of housing instability, food

6 insecurity, and lack of adequate medical care. If they work without authorization, they are also

7 vulnerable to exploitation, including trafficking, and abusive work environments.

8

281. The Final Rule will cause particular harm to families, including creating a risk of

9 family separation. The fee increase will force families to make the unconscionable choice of which

10 family member can apply for and possibly attain asylum protections, and which cannot, and who can

11 seek work to provide basic needs, if anyone.

12

282. The new fee also forces them to decide between whether to forgo basic medical care

13 and feed their families or pay their asylum application fee.

14

283. Families who cannot afford multiple filing fees may be forced to abandon

15 independent claims to asylum relief for certain family members. This will harm children in particular

16 because a child with a strong independent asylum claim cannot include her parents as derivatives, so

17 her family is likely to forego her claim in favor of having a parent serve as the principal applicant if

18 the family cannot afford multiple filing fees. Families may also end up separated because if a

19 principal asylum applicant is denied asylum but granted withholding of removal, his derivative

20 family members may still be subject to removal because that relief does not apply to those family

21 members.

22

284. The new fee will also create an obstacle to family reunification. Many asylum seekers

23 who must flee their home countries without their family members. If an asylum seeker is granted

24 asylum, she can petition to bring her immediate family members to the United States, but none of

25 that is possible if she cannot afford to apply for asylum. In addition, the fee hurts families in the U.S.

26 who are willing to receive family members fleeing from other countries. Asylum applicants who are

27 able to reunify with family in the U.S. may be financially dependent on their family, and a $50

28 application fee puts an unexpected burden on the families of asylum applicants.

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1

285. In addition to the asylum application fee, the imposition of a substantial fee of $550

2 for an I-765 application for employment authorization and the $30 biometric fee will negatively

3 affect asylum seekers while they wait through the asylum process that may last years and, in some

4 cases, decades. Although USCIS previously imposed a waiting period of 180 days for an asylum

5 applicant to be eligible for employment authorization, the initial application for employment

6 authorization for an asylum seeker had been free. As of August 25, 2020, asylum seekers are unable 7 to apply for employment authorization until their asylum application has been pending for 365 days. 8 That means that asylum seekers will have to sustain themselves without any income for a year and 9 then come up with $580 per application in order to work.

10

Many asylum applicants will be unable to afford the cost of the employment authorization

11 application and will thus miss out on opportunities for legal employment in the U.S. and the benefit

12 of having identification issued by the U.S. government because of the $580 total fee requirement.

13 The Final Rule will result in lost wages for asylum applicants.

14

Moreover, asylum seekers who cannot afford the filing fee for employment authorization will

15 be unable to provide for themselves and their families, who will likely suffer food insecurity,

16 housing instability, and lack of access to adequate medical care. The inability for many asylum

17 seekers to apply to legally work in the United States will destabilize the financial situation of

18 individuals and families already traumatized by the persecution that led them to apply for asylum.

19 The significant collateral consequences of the Final Rule on asylum seekers will be seen in the areas

20 of health, food security, and housing stability.

21

286. In the proposed Rule, DHS said that it “does not want the inability to pay the fee to be

22 an extraordinary circumstance excusing an applicant from meeting the one-year filing deadline in

23 INA 208(a)(2)(B), (D),” which indicated that the Final Rule could prohibit a potential applicant from 24 using inability to pay as a grounds for equitable tolling of the one-year asylum filing deadline.46

25 But the Final Rule is silent on this issue. If DHS refuses to allow equitable tolling for inability to

26 pay the $50 fee, asylum seekers face significant harm: they will be denied asylum simply due to their 27 inability to pay the filing fee, regardless of the merit of their asylum claim. 28 46 84 Fed. Reg. at 62,320.

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1

287. For those who are able to pay the filing fee and are granted asylum, the Final Rule

2 creates additional harms. Derivative asylees are able to adjust status to lawful permanent resident as

3 long as the principal applicant retains asylee status. The Final Rule eliminates the fee waiver for

4 asylees and the reduced filing fee for children applying for lawful permanent resident status on Form

5 I-485. As a practical matter, this means that families will be forced to complete applications as they

6 can afford them. If a principal asylee naturalizes before all of his derivatives have adjusted status,

7 those family members will lose the ability to adjust as derivatives and may put lawful permanent

8 resident status out of reach for family members of asylees.

9

4. Statutorily protected groups

10

288. Statutorily protected groups—survivors of domestic violence, victims of crime and

11 physical and mental abuse, victims of human trafficking, and those fleeing armed conflict and

12 natural disasters—are among the most vulnerable people in the world. The lawful status afforded

13 these individuals by statute can increase income and provide stability for their family members. Fee

14 waivers for associated benefits allow survivors to apply for immigration benefits without having to

15 either ask their abuser for funds or to have to forgo other necessities like food or housing in order to

16 pay immigration fees. By way of access to fee waivers, survivors are able to obtain employment

17 authorization and immigration status, work with a Social Security number, and contribute to payroll

18 and other taxes.

19

289. But the barriers to lawful status and associated benefits erected by the Final Rule

20 would significantly harm individuals in these statutorily protected groups in several ways.

21

290. Indigent survivors struggle to cover basic expenses for themselves and their children,

22 including mental and physical health care needed as a direct result of abuse or victimization. The

23 Final Rule will force survivors to choose between the immigration benefits provided to them by

24 Congress or food, shelter, and other necessities for themselves and their families.

25

291. Being forced to remain financially dependent on, and therefore at the mercy of, an

26 abuser, or to make the decision between necessities like food and shelter or immigration benefits, in

27 many cases risking homelessness and hunger, also prolongs trauma-induced mental health conditions

28 from which many survivors suffer.

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1

292. In narrowing fee waiver eligibility to individuals who can prove they have a

2 household income at or below 125% of the federal poverty guidelines, USCIS will be using the same

3 lack of employment authorization and immigration status that abusers and traffickers exploit in

4 terrorizing survivors to then deny them the chance to apply for immigration status and eventually

5 obtain economic freedom, independence, and safety.

6

293. Alternatively, individuals may turn to predatory lenders to try to obtain the required

7 fees, which would victimize both individuals and their families.

8

294. Additionally, indigent survivors who do flee their abusers but cannot work due to

9 being unable to afford USCIS’s employment authorization renewal fees risk losing their children to

10 the system if they are deemed unable to protect and provide for them.

11

295. Furthermore, one abuser parent can easily manipulate the child custody process in his

12 favor while the other parent waits years to secure lawful status. Thus, the abuser can often gain

13 custody of the children, thereby putting the children in further danger of being abused.

14

296. DHS received detailed comments of the physical and financial vulnerabilities these

15 groups and their families face, and how the removal of the current eligibility structure for fee

16 waivers could severely harm these groups. DHS ignored these important aspects of the problem

17 posed by its new fee waiver eligibility scheme.

18

5. Long-Term Harm

19

297. The fee increases in the Final Rule will have a chilling effect both on immigration-

20 related filings in the near term as well as immigration and naturalization in the long term.

21 Fundamentally, the Final Rule sends the message that low-income immigrants are not welcome. As

22 fewer people naturalize, communities, states, and the entire nation would lose the economic and

23 societal benefits of immigration and naturalization, including greater diversity, increased earnings,

24 increased tax revenues at all levels of government, and less costly government programs.

25

B. Public Interest, Communities

26

298. The fee increase and effective elimination of fee waivers will prevent permanent

27 residents who otherwise would have naturalized from doing so. By making naturalization less

28 accessible, the Final Rule harms the public interest. Controlling for all other factors, naturalized

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1 citizens are more likely to access higher education, become homeowners and business owners, and

2 earn higher wages, than their non-naturalized foreign-born peers. Further, naturalized citizens are

3 less likely than U.S.-born citizens to use SNAP, TANF, and other public welfare programs in the

4 future. In addition, naturalization, on average, accounts for an 8 to 11% increase in wages, which

5 results in higher spending and more federal, state, and local taxes paid. In fact, if all eligible lawful

6 permanent residents naturalized, annual tax revenue could grow by as much as $2 billion.

7

299. By effectively placing naturalization beyond the reach of indigent individuals, the

8 Final Rule will result in greater utilization of public benefits and diminished tax realization. Limiting

9 access to naturalization for low income people will also foster inequality in the United States.

10

300. In addition to the economic impacts, the Final Rule will keep the nation’s cities,

11 states, and country from reaching their full democratic potential by decreasing civic engagement and

12 political representation. By making naturalization less accessible, the Final Rule will have the effect

13 of preventing low-income immigrants from voting, serving as jurors, and running for elected

14 positions.

15

301. By increasing the fee for I-765 applications and reducing the availability of fee

16 waivers, the Final Rule will damage state and local economies by increasing unemployment among

17 immigrant workers. When immigrants are unable to renew employment authorization, they lose their

18 jobs and associated benefits like health insurance coverage. Immigrants who are forced to leave their

19 jobs are no longer able to contribute to the local economy as homeowners, consumers, and

20 taxpayers. This also harms employers, including schools, hospitals, and state agencies, who lose

21 workers. By increasing immigrant unemployment, the Final Rule will significantly reduce the

22 potential for millions in tax revenue, to the detriment of government budgets.

23

302. By imposing a fee for asylum seekers to obtain their initial employment

24 authorization, the Final Rule harms communities by creating a barrier to asylee self-sufficiency

25 through lawful employment.

26

303. The Final Rule will keep some immigrants from obtaining permanent resident status,

27 which harms the interests of state and local governments in encouraging all eligible residents to

28 obtain lawful permanent resident status. Increased acquisition of lawful permanent resident status

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1 has social and economic benefits for local communities. Acquisition of a permanent legal right to

2 reside in the United States increases household stability, increases earnings and household income,

3 and improves outcomes for children in the household. This reduces the burden on local governments

4 to address social ills created by immigrants living without status. Permanent residents also contribute

5 to the local economy and tax base.

6

304. The Final Rule will harm cities, which benefit from the contributions of immigrants,

7 by making the Unites States a less attractive and welcoming place to live and work.

8

305. Because of the extraordinary public harms the Rule will inflict, numerous state and

9 local governments and officials, including the states of Washington and New York, and the cities of

10 Los Angeles, Chicago, New York, Minneapolis, Philadelphia, Denver, Boston, San Diego, San

11 Francisco, San Jose, San Antonio, Seattle, and the District of Columbia, submitted comments in

12 opposition to the Rule.

13

C. Plaintiffs are and will be irreparably harmed by the Final Rule.

14

306. Plaintiffs are nonprofit organizations that provide and/or support programs to provide

15 legal services in connection with immigration benefit applications for low-income individuals. These

16 programs have relied on the availability of fee waivers and exemptions under Defendants’ ability-to-

17 pay policy. The Final Rule’s increase in fees, elimination of even the possibility of fee waivers and

18 exemptions for many forms and applicants, and more difficult standard for obtaining a fee waiver

19 will harm Plaintiffs’ missions and operations. The Final Rule will make it impossible for Plaintiffs to

20 continue to provide core services benefitting low-income individuals at anywhere near the same

21 level and may cause the organizations to cease operations.

22

1. The Final Rule Frustrates Plaintiffs’ Missions.

23

307. Each of the Plaintiffs shares a mission to provide services directed at assisting low-

24 income and vulnerable individuals to obtain immigration status, adjust status to lawful permanent

25 resident, and naturalize to become a U.S. citizen. Advancing immigrant rights is at the core of

26 Plaintiffs’ missions. This includes ensuring that immigrants have access to naturalization, family-

27 based immigration, humanitarian relief, asylum, VAWA, U and T visas, adjustment of status, and

28 more. Contrary to Plaintiffs’ missions, the Final Rule erects barriers to access to immigration

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1 benefits. Plaintiffs will now serve far fewer low income and vulnerable people in completing

2 applications for asylum, permanent residence, naturalization, and for other immigration-related

3 benefits due to the increases in fees in the Final Rule, the elimination of fee waivers and exemptions,

4 and the new eligibility standard for the limited fee waivers that remain. Additionally, Plaintiffs will

5 experience a drastic reduction in the number of people who will submit applications because they

6 can no longer afford to do so.

7

2. The Final Rule Diverts Resources from Plaintiffs’ Core Programs

8

308. Plaintiffs are immediately experiencing an increase in operational costs due to the

9 Final Rule. Plaintiffs have had to divert resources away from providing legal services in order for

10 their staff to understand the Final Rule, update their internal and public-facing materials to conform

11 with the Final Rule, develop materials and webinar presentations to inform and train practitioners on

12 the contours and effects of the Final Rule, develop materials to explain the Rule to the communities

13 they serve, and conduct community outreach on the Rule. The sheer number of significant changes

14 the Final Rule proposes amplifies these effects, as Plaintiffs scramble to understand the contours of

15 the complex 142 pages of the Final Rule, including changes to some 59 forms, update materials to

16 reflect the changes in the Final Rule, scramble to submit as many applications as possible before the

17 Final Rule takes effect, and make plans to address the decline in applications that will result from the

18 Final Rule.

19

309. At the same time, Plaintiffs must now attempt to submit as many applications for

20 immigration benefits as possible before the Final Rule takes effect and makes it impossible for many

21 clients to afford to apply for these benefits. The Final Rule is thus straining Plaintiffs’ staffs.

22

310. Plaintiffs must also change the manner in which they deliver legal services in

23 response to the Final Rule. Plaintiffs have relied on a workshop model as an efficient means of

24 providing assistance to many applicants for immigration benefits at one time. Plaintiffs have

25 expended significant resources to develop this model. The Final Rule jeopardizes the efficacy of that

26 model, which depends on the availability of full fee waivers and reduced fees to convert applications

27 completed at the workshop into applications actually submitted. For example, half of CLINIC’s

28 affiliates utilize workshop models to help Lawful Permanent Residents complete naturalization

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1 applications and fee waiver requests. CLINIC anticipates that at least 40 percent of workshop

2 attendees, who currently qualify to request a full fee waivers or reduced fees, will be unable to afford

3 to submit applications once the Final Rule goes into effect.

4

311. The dramatic fee increases and the abandonment of the long-standing ability-to-pay

5 policy undermines Plaintiffs’ (and other non-profits) decades of reliance interests, will render the

6 workshop model that Plaintiffs use unsustainable, and will force Plaintiffs to devote resources to

7 adapt their service models, including by transitioning to helping clients in one-to-one appointments,

8 which are the least efficient way of helping potential applicants.

9

312. Because the populations Plaintiffs serve cannot afford the fees in the Final Rule,

10 Plaintiffs will have to devote resources to try to find a way to cover these fees for applicants.

11 Covering these fees will cause Plaintiffs to expend more money per application. To cover such fees,

12 Plaintiffs will have to either redirect funds from other programs or endeavors or will have to expend

13 staff member and executive time and resources to raise additional funding. Either contingency would

14 frustrate Plaintiffs’ execution of legal service and other programs. For example, Plaintiff East Bay

15 Sanctuary Covenant, would have to expend over $270,000—or 16 percent of its 2020 budget—to

16 cover those affected by I-765, Application for Employment Authorization changes.

17

313. Furthermore, Plaintiffs have expended and will expend staff time and resources in

18 advocating against this Rule, including by submitting comments opposing the Final Rule during the

19 notice-and-comment period.

20

3. The Final Rule Threatens Plaintiffs’ Funding

21

314. Plaintiffs rely on private and public funding to maintain their operations. In Plaintiffs’

22 experience, both private and public funding are dependent on the volume of services Plaintiffs can

23 provide because donors want their funds to have the greatest impact. Plaintiffs’ grant funding often

24 requires that they meet specific contract deliverables. For example, ACRS has a yearly deliverable

25 requirement that ACRS submit a certain number of naturalization applications. For fiscal year 2020,

26 ACRS is obligated to help submit 650 N-400 applications. The anticipated decline in the number of

27 people who will be able to afford to submit applications because of the Final Rule will lead to a

28 marked decrease in Plaintiffs’ ability to meet their deliverables and put their funding in jeopardy.

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1

315. Unable to meet their contractual deliverable requirements, Plaintiffs will likely lose

2 their contracts and grant funding. Plaintiffs will have to institute hiring freezes, furlough or reduce

3 staff, or decrease salaries. Plaintiffs will thus lose irreplaceable individuals with institutional

4 knowledge and expertise, which will compound the harm to the organizations’ legal services.

5 Plaintiffs will also likely have to divert resources, including funding currently used for outreach,

6 policy, and advocacy work, to fund their legal services. The Final Rule could ultimately lead to the

7 closure of Plaintiff’s immigration services programs in their entirety.

8

4. The Final Rule Harms Plaintiff’s Reputations and Goodwill.

9

316. The Final Rule will immediately harm the reputations that Plaintiffs have built over

10 time. Plaintiffs enjoy strong reputations among donors and grant-making entities because of their

11 robust programs and consistent ability to deliver on their contractual obligations. The Final Rule

12 makes it impossible for Plaintiffs to maintain the same level of programming at the same cost, and

13 Plaintiffs are already having to undertake difficult conversations with donors about the effects of the

14 Final Rule at the same time they are struggling to serve those seeking to apply for benefits prior to

15 the Rule’s effective date. Plaintiffs also enjoy strong reputations within the communities they serve

16 because of their ability to deliver high quality legal services for free or at low cost and their robust

17 community engagement and advocacy. As fewer community members are able to afford to apply for

18 immigration benefits, Plaintiffs will experience a decline in goodwill and harm to their reputations.

19 When Plaintiffs must limit the number of clients they serve due to funding constraints, community

20 members will express their dissatisfaction, compounding the reputational harm. For example,

21 CHIRLA has provided its legal services to members for free. The Final Rule might force CHIRLA

22 to charge fees for legal services, which is not in-line with its mission and would compound the

23 reputational harm. As CHIRLA provides fewer services and engages less with the community,

24 membership will decline. This decline in membership will negatively impact CHIRLA’s mission as

25 well as its financials.

26

317. The Final Rule is causing and will continue to cause a decline in morale among

27 Plaintiffs’ staffs. Plaintiffs’ staffs work with vulnerable, low-income individuals, which is

28 challenging on its own. The Final Rule denigrates this work. For example, the Final Rule suggests

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1 that an asylum application fee is necessary to deter frivolous filings despite the statutory penalties in-

2 place for making frivolous applications. These unfounded insinuations harm the reputations of

3 Plaintiffs and their staff members. Moreover, in their comments to the proposed rule, Plaintiffs

4 provided information about the expected impact of the rule based on their substantial expertise and

5 experience. By casually dismissing the comments of Plaintiffs, the Final Rule harms Plaintiffs’

6 reputation as experts and leaders in the immigration legal services sphere.

7

CAUSES OF ACTION

8

COUNT I

9

Violation of Administrative Procedure Act, 5 U.S.C. §706

10 Contravention of the Federal Vacancies Reform Act, Homeland Security Act, Appointments

11

Clause, Administrative Procedure Act

12

318. Plaintiffs repeat and incorporate by reference each allegation contained in the

13 preceding paragraphs of this Complaint.

14

319. Under the APA, a court must set “aside agency action” that is “not in accordance with

15 law.” 5 U.S.C. § 706(2)(A).

16

320. The issuance of the Final Rule was an agency action.

17

321. The Final Rule is not in accordance with the Federal Vacancies Reform Act (FVRA).

18 Under the FVRA, an “action taken by a person who is not acting” under its requirements “in the

19 performance of any function or duty of a vacant office . . . shall have no force or effect.” 5 U.S.C. §

20 3348(d).

21

322. The Secretary of Homeland Security is a principal officer of the United States whose

22 appointment requires presidential nomination and Senate confirmation. 6 U.S.C. § 112(a)(1).

23

323. Defendant Wolf issued the Final Rule purportedly in the performance of the function

24 or duty of Acting Secretary. Defendant Wolf was not validly appointed pursuant to the HSA, thus

25 the FVRA does not apply to his actions in that purported role.

26

324. Even if the FVRA did apply to Defendant Wolf’s assumption of duties, the Final Rule

27 was issued after the statutory 210-day limit on actions by acting officials.

28

325. The Final Rule should have no force or effect under the FVRA.

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1

326. The Final Rule is invalid under the Appointments Clause of the Constitution because

2 Defendant Wolf is not authorized to assume the duties of Acting Secretary under the HSA and the

3 FVRA, and he was not nominated by the President and confirmed by the Senate to occupy that role.

4 U.S. Const. art. II, § 2, cl. 2.

5

327. The Final Rule contravenes the APA because it arose from an invalid proposal in

6 violation of the APA.

7

328. Both Proposals signed by McAleenan and Wolf were issued after the FVRA

8 allowance period, and thus were issued in contravention of the FVRA and the Assignments Clause.

9 Defendant Wolf was not validly appointed under the HSA and thus was not authorized to issue the

10 December Proposal.

11

329. The Final Rule should be set aside under the APA for contravening the HSA, FVRA,

12 Constitution, and APA.

13

COUNT II

14

Violation of Administrative Procedure Act, 5 U.S.C. §706

15

Agency Action Not in Accordance with Law

16

330. Plaintiffs repeat and incorporate by reference each allegation contained in the

17 preceding paragraphs of this Complaint.

18

331. Under the APA, a court must set “aside agency action” that is “not in accordance with

19 law.” 5 U.S.C. § 706(2)(A).

20

332. The Final Rule contravenes APA § 553(b)(3) because it does not adequately provide

21 the terms or substance of the Proposal or a description of the subjects and issues involved.

22

333. The Final Rule contravenes APA § 553(c) because it fails to give persons adequate

23 opportunity to participate in the rulemaking.

24

334. The Final Rule contravenes INA § 286(m) because it recovers costs for providing

25 staffing and administrative assistance to ICE that does not constitute providing adjudication and

26 naturalization services consistent with the statute’s plain language. 8 USC § 1356(m).

27

28

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1

335. The Final Rule recovers costs for fraud prevention and detection above the statutory

2 limits for fraud prevention and detection as set forth in statutorily established Fraud Prevention and

3 Detection Account, INA §§ 214(c)(12)–(13), 286(v); 8 U.S.C. § 1184(c)(12)–(13), 1356(v).

4

336. The Final Rule contravenes the HSA, which keeps the accounts of USCIS and ICE

5 separate and prohibits transfers of fees for purposes not authorized by 8 USC § 1356. 6 USC § 296.

6

337. The Final Rule contravenes the Emergency Supplemental Appropriations Act, which

7 prohibits reimbursement between agencies. Pub. L. No. 116-26, 133 Stat. 1018.

8

338. The Final Rule contravenes the INA’s prioritization of diversity through imposing

9 dramatic fee increases that disproportionately impact non-European applicants.

10

339. The Final Rule contravenes the INA’s prioritization of family unification through

11 imposing fees that will result in family separation.

12

340. The Final Rule contravenes Section 654 of the Treasury and General Government

13 Appropriations Act of 1999’s prioritization of family unification through imposing fees that will

14 result in family separation.

15

341. The Final Rule contravenes the INA, Refugee Act, and international law by imposing

16 nonwaivable fees that will result in restricting access to asylum protections.

17

342. The Final Rule contravenes the INA § 1158(d) by imposing an asylum fee based on

18 deterrence.

19

343. The Final Rule contravenes the INA and HSA by failing to separate funding for

20 adjudication and enforcement.

21

344. The Final Rule contravenes the TVPRA by erecting financial barriers between

22 TVPRA applicants and primary benefits.

23

345. The Final Rule contravenes NACARA by erecting financial barriers between eligible

24 applicants and NACARA protections.

25

346. The Final Rule was issued without lawful authority in violation of the FVRA, HSA,

26 and the United States Constitution.

27

347. The Final Rule violates the Due Process Clause and the Equal Protection Clause of

28 the United States Constitution.

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348. The Final Rule violates the RFA.

2

349. Defendants’ violation is causing ongoing harm to Plaintiffs.

3

COUNT III

4

Violation of Administrative Procedure Act, 5 U.S.C. § 706

5

Arbitrary and Capricious Action

6

350. Plaintiffs repeat and incorporate by reference each allegation contained in the

7 preceding paragraphs of this Complaint.

8

351. The APA states that a court must “hold unlawful and set aside” agency action that is

9 “arbitrary, capricious, [or] an abuse of discretion, or otherwise not in accordance with law; . . . (C) in

10 excess of statutory jurisdiction, authority, or limitations, or short of statutory right;. . . (D) without

11 observance of procedure required by law . . .” or “(E) unsupported by substantial evidence.” 5

12 U.S.C. § 706(2). Courts will invalidate agency determinations that fail to “examine the relevant data

13 and articulate a satisfactory explanation for its action including a ‘rational connection between the

14 facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463

15 U.S. 29, 43 (1983) (citation omitted).

16

352. Furthermore, when an agency substantially alters a position, it must “supply a

17 reasoned analysis for the change,” State Farm, 463 U.S. at 42, and may not “depart from a prior

18 policy sub silentio or simply disregard rules that are still on the books.” FCC v. Fox TV Stations,

19 Inc., 556 U.S. 502, 515 (2009) (citing United States v. Nixon, 418 U.S. 683, 696 (1974)).

20

353. The Final Rule is unlawful under the APA for several independent reasons, each of

21 which is sufficient to require that the Final Rule be set aside.

22

354. The Final Rule does not adequately provide the terms or substance of the Proposal or

23 a description of the subjects and issues involved. APA § 553(b)(3).

24

355. The Final Rule fails to give persons adequate opportunity to participate in the

25 rulemaking. APA § 553(c).

26

356. DHS fails to adequately justify the change in rationale from its historic ability-to-pay

27 policy to the Final Rule’s “beneficiary pays” policy. DHS fails to justify removal of the alternative

28 bases for establishing fee waiver eligibility.

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357. DHS fails to adequately justify its reversal from bundled to unbundled fees for lawful

2 permanent residence applications. DHS fails to adequately justify its removal of a reduced fee for

3 minors applying for lawful permanent resident status.

4

358. DHS fails to adequately justify its changed rationale to now charge a fee for seeking

5 asylum and initial employment authorization for asylum seekers.

6

359. DHS fails to adequately justify that it is recovering costs authorized under 8 U.S.C.

7 § 1356(m). DHS’s budget for USCIS rests on unexplained assumptions, reflects an extreme increase

8 over prior budgets, is inconsistent with prior and contemporaneous representations to Congress, fails

9 to explain loss of carryover funds, and fails to account for efficiencies already realized.

10

360. The cost modeling used for setting the fees in the Final Rule suffers from arbitrary

11 and unexplained inputs, fails to account for efficiencies realized, fails to account for costs of

12 foregone benefits, fails to account for revenue from other rule changes, and fails to account for price

13 elasticity, and fails to account for the reliance interests of the affected parties.

14

361. The Final Rule fails to apply the model in a rational or objective manner, but instead

15 applies unexplained “value judgments” to different fee categories.

16

362. The Final Rule provides inconsistent or mutually exclusive justifications for certain

17 fees. The Rule states that it sets a $50 fee for asylum applications to align with its beneficiary-pays

18 policy and to recover revenues. The Rule also states that USCIS will apply a $50 discount to asylees

19 who apply for lawful permanent resident status, thus undercutting the asserted benefits of realizing

20 those fees. The Final Rule later states that the benefits to USCIS of the $50 fee will be “none” in its

21 cost-benefit analysis.

22

363. The Final Rule fails to adequately address comments on the barriers to accessing

23 immigration benefits posed by the unaffordability of the fee schedule for low-income applicants and

24 particular applicant categories—including naturalization applicants, lawful permanent residence

25 applicants, asylum applicants, applicants for TVPRA benefits, NACARA applicants, and applicants

26 for employment authorization.

27

364. The Final Rule fails to adequately address comments on the harms such barriers have

28 on applicants, including family separation and loss of income, safety, health, and ability to vote.

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1

365. The Final Rule fails to adequately address comments on the harms such barriers have

2 on small non-profit immigration service organizations, including Plaintiffs, in meeting their

3 missions, obtaining funding, and qualifying for grants.

4

366. The Final Rule fails to adequately address comments on harms such barriers have on

5 the public, including public health, loss of diversity, loss of tax revenue, lower gross domestic

6 product, interference with state and local initiatives to promote diversity and naturalization.

7

367. The Final Rule fails to consider the numerous studies and comments in the record

8 raising these important aspects of the problem of its fee schedule. The Final Rule instead repeats its

9 statement that it “believes” its chosen conclusions are correct, without analysis or data to support its

10 conclusions.

11

368. The Final Rule is arbitrary and capricious because it claims to have “no data” when

12 data is in the record.

13

369. The Final Rule is arbitrary and capricious because it rests on ungrounded assumptions

14 without support to justify the quantified, real harm to public health, state or local economies, or other

15 administrative burdens or adequately address the harms alleged in the record.

16

370. The Final Rule is arbitrary and capricious because DHS relied on and considered

17 factors that Congress did not intend for DHS to consider, including: elevating the so-called

18 beneficiary-pays principle above all other considerations; charging asylum fees for the purposes of

19 deterrence instead of for the only authorized reason of cost recovery; considering itself obligated to

20 cover all adjudicative costs with fee revenues; supporting President Trump’s anti-immigrant political

21 agenda; DHS “value judgments”; and elevating other considerations over Congress’s express

22 direction to keep naturalization affordable.

23

371. The Final Rule is arbitrary and capricious because DHS failed to consider factors that

24 Congress did want considered, including: the effect the fee increases would have on application

25 volume; the burden of fee increases on low-income and middle-income immigrants; and the effects

26 of fee increases on immigration and naturalization, diversity, family unification, including under the

27 INA and the Treasury and General Government Appropriations Act of 1999, Section 654, and

28 vulnerable populations.

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1

372. The Final Rule is arbitrary and capricious because it is not a logical outgrowth of the

2 proposal: DHS failed to propose the Final Rule provision providing a $50 discount in some

3 circumstances for asylees who apply for lawful permanent resident status; its $10 discount for online

4 applications; sufficient information to understand the cost modeling and budget assumptions

5 underlying the fees in the November Proposal and in the alternative Scenario D of that proposal. As

6 a result, DHS incorporates new and unexplained provisions and conclusions as to fee amounts in the

7 Final Rule.

8

373. The Final Rule is arbitrary and capricious because it is pretext for discrimination.

9 While the Final Rule’s “beneficiary-pays” principle purports to be more “equitable,” its application

10 of exceptions to that approach bears no reasonable relationship to USCIS’s mission to provide

11 immigration adjudication services and instead demonstrates Defendants’ intent to reduce

12 immigration by immigrants of color.

13

374. The Final Rule is arbitrary and capricious because Defendants have failed to consider

14 the racially disparate impact of the Final Rule.

15

375. Defendants’ actions are thus arbitrary and capricious, within the meaning proscribed

16 by 5 U.S.C. §§ 705 and 706.

17

376. Defendants’ violation is causing ongoing harm to Plaintiffs.

18

COUNT IV

19

Violation of Regulatory Flexibility Act

20

377. Plaintiffs repeat and incorporate by reference each allegation contained in the

21 preceding paragraphs of this Complaint.

22

378. The Regulatory Flexibility Act (“RFA”), as amended, requires federal administrative

23 agencies to analyze the effects on “small entities” of rules they promulgate, and to publish initial and

24 final versions of those analyses. 5 U.S.C. §§ 603-604.

25

379. Under the RFA, the court may set aside, stay, or grant other relief for agency action in

26 violation of the RFA, 5 U.S.C. §§ 601, 604, 605(b), 608, and 610. 5 U.S.C. § 611.

27

380. The RFA defines “small entities” to include small businesses, small nonprofit

28 organizations, and small governmental jurisdictions. 5 U.S.C. § 601(6).

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381. The Final Rule is a “rule” within the meaning of the RFA. 5 U.S.C. § 601(2).

2

382. Each of the Plaintiffs is a “small entity” within the meaning of the RFA and is

3 directly affected by the Final Rule, which, inter alia, will jeopardize their funding sources, will likely

4 cause them to breach contractual requirements (including with state and local governments), will

5 require them to divert resources to address the new requirements in the Final Rule, will devalue their

6 services, and will frustrate their missions.

7

383. DHS’s final regulatory flexibility analysis does not comply with the RFA because

8 DHS concluded that the Final Rule will not have a significant impact on small business entities. This

9 conclusion is unsupported and irrational when considered in light of the record and numerous

10 comments to the Proposed Rule. 5 U.S.C. §§ 605(b), 608.

11

384. The RFA requires DHS to describe and estimate the number of small entities that

12 would be affected by the Final Rule. 5 U.S.C. § 604(a)(4).

13

385. DHS refused to include small nonprofit organizations affected by the Final Rule. 85

14 Fed. Reg. at 46,898.

15

386. The RFA requires DHS to describe “the projected reporting, recordkeeping and other

16 compliance requirements of the [Final Rule], including an estimate of the classes of small entities

17 which will be subject to the requirement and the type of professional skills necessary for preparation

18 of the report or record.” 5 U.S.C. § 604(a)(5).

19

387. DHS failed to do so. The agency asserted instead that because small nonprofit entities

20 providing immigration services are not the individuals assessed immigration fees, the RFA excludes

21 their consideration. 85 Fed. Reg. at 46,898.

22

388. DHS ignored comments identifying the requirements of the Final Rule that will

23 directly affect small nonprofit entities. DHS does not support its unexplained assertion that form fees

24 are the only direct effect of the Final Rule and its failure to consider the reliance interests of

25 Plaintiffs remains unexplained.

26

389. The RFA requires DHS to describe “the steps the agency has taken to minimize the

27 significant economic impact on small entities consistent with the stated objectives of applicable

28 statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative

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1 adopted in the final rule and why each one of the other significant alternatives to the rule considered

2 by the agency which affect the impact on small entities was rejected.” 5 U.S.C. § 604(a)(6).

3

390. DHS failed describe these steps with respect to small nonprofits. 85 Fed. Reg. at

4 46,898.

5

391. DHS failed to consider “the stated objectives of applicable statutes,” including the

6 INA, Refugee Act, TVPRA, Treasury and General Government Appropriations Act, and HSA.

7

392. Thus, the Final Rule’s final regulatory flexibility analysis does not comply with the

8 RFA because of, as a threshold matter, DHS’s erroneous and unexplained conclusion that the Final

9 Rule does not directly affect small entities.

10

393. The Final Rule’s final regulatory flexibility analysis is also arbitrary and capricious

11 because it does not reflect reasoned decision-making, fails to respond to significant comments

12 demonstrating the critical reliance interests of affected parties, fails to consider available data about

13 the effects of the Final Rule, and fails to support its conclusions with substantial evidence.

14

394. The Final Rule is therefore unlawful and must be set aside. See 5 U.S.C. § 611; 5

15 U.S.C. § 706.

16

COUNT V

17

Violation of the Due Process Clause

18

395. Petitioner repeats and re-alleges the allegations contained in each preceding

19 paragraph.

20

396. The Due Process Clauses of the Fifth Amendment of the Constitution guarantees that

21 people cannot be deprived of life, liberty, or property without due process of law.

22

397. “A necessary predicate for a due process claim is a constitutionally protected

23 interest.” Brown v. Holder, 763 F.3d 1141, 1147 (9th Cir. 2014). Immigrants have “such a protected

24 interest in being able to apply for citizenship,” id., and asylum, see Haitian Refugee Ctr. v. Smith,

25 676 F.2d 1023, 1037–38 (5th Cir. 1982), (finding “a clear intent to grant aliens the right to submit

26 and the opportunity to substantiate their claim for asylum”), disapproved of by Jean v. Nelson, 727

27 F.2d 957 (11th Cir. 1984).

28

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398. The Final Rule arbitrarily and intentionally obstructs the rights to naturalization and

2 asylum for low income applicants.

3

399. DHS remains deliberately indifferent to whether low income applicants have access

4 to the naturalization and asylum processes.

5

400. Through the Final Rule, Defendants have arbitrarily and intentionally imposed

6 barriers to applying for immigration benefits for eligible individuals, unconstitutionally depriving

7 those eligible individuals of their vested interests.

8

401. Both the INA and international law give asylum seekers a right to apply for protection

9 in the United States.

10

402. The Final Rule imposes a mandatory $50 filing fee on all asylum applications, other

11 than those submitted by unaccompanied immigrant children who are in removal proceedings.

12

403. The Final Rule prohibits asylum applicants from receiving a fee waiver.

13

404. The Final Rule prohibits USCIS from considering an asylum applicant’s ability to pay

14 the $50 fee.

15

405. DHS asserted in the Final Rule it had no data to assess the effects of the fees it was

16 imposing, but DHS received extensive comments on asylum seekers’ inability to pay and the

17 substantial harms the fee would impose.

18

406. DHS inferred that substantial harm from the asylum application fee was likely,

19 stating, “Some applicants may not be able to afford this fee and may not be able to apply for

20 asylum.” 85 Fed. Reg. at 46,894. DHS acknowledges that the fee is set “so that it . . . may deter

21 some filings.” Regulatory Impact Analysis at 153. DHS cannot reasonably deny drawing this

22 inference, but even if it did, any reasonable DHS official would be compelled to draw that inference.

23 Dent v. Sessions, 243 F. Supp. 3d 1062, 1069-70 (D. Ariz. 2017).

24

407. For these reasons, the Final Rule’s $50 fee for asylum applications constitutes a due

25 process violation.

26

408. In cases where an applicant cannot afford the filing fee, failing to give any

27 consideration to an applicant’s ability to pay is the equivalent of denying the relief to which an

28 applicant is entitled by law to seek.

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409. The Final Rule fails to consider the financial circumstances of asylum applicants in

2 its decision to impose a $50 fee on such applicants.

3

410. The Final Rule fails to consider the financial circumstances of asylum applicants in

4 its decision to prohibit USCIS from considering an applicant’s ability to pay.

5

411. An asylum applicant who cannot afford the filing fee will be denied asylum solely

6 based on the inability to pay the filing fee.

7

412. The Constitution requires consideration of the financial circumstances of an asylum

8 applicant in assessing a fee to apply for relief to which the applicant is entitled to seek under the INA

9 and international law.

10

413. The Final Rule violates the Due Process Clause because due process does not

11 permit an applicant to be denied asylum solely based on lack of financial resources.

12

414. The Final Rule imposes a fee of $1,170 for naturalization (or $10 less if filing online).

13

415. Currently, the fee for naturalization is $320 (not including the biometric fee) for

14 qualifying low-income applicants, or $640 (not including the biometric fee). The $85 biometric fee

15 is not assessed for applicants 75 or older. There is currently no fee for applicants who qualify for a

16 full fee waiver.

17

416. The Final Rule prohibits naturalization applicants from receiving a fee waiver in

18 nearly all cases.

19

417. The Final Rule prohibits USCIS from considering a naturalization applicant’s ability

20 to pay the $1,170 fee.

21

418. DHS asserted in the Final Rule it had no data to assess the effects of the fees it was

22 imposing, but DHS received extensive comments on naturalization applicants’ inability to pay and

23 the substantial harms the fee would impose. See 85 Fed. Reg. at 46,799. DHS inferred that

24 substantial harm from the proposed naturalization fee combined with the elimination of fee waivers

25 and reduced fees was likely. It stated, “Limiting fee waivers may adversely affect some applicants’

26 ability to apply for immigration benefits.” 85 Fed. Reg. at 46,891. Even if DHS denies making this

27 inference, any reasonable DHS official would be compelled to draw that inference. Dent, 243 F.

28 Supp. 3d at 1069-70.

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419. For these reasons, the Final Rule’s naturalization fee increase, combined with the

2 elimination of the reduced fee and fee waiver eligibility, constitutes a due process violation.

3

420. In cases where an applicant cannot afford the filing fee, failing to give any

4 consideration to an applicant’s ability to pay is the equivalent of denying the relief to which an

5 applicant is entitled by law to seek.

6

421. The Final Rule fails to consider the financial circumstances of naturalization

7 applicants in its decision to impose a $1,170 fee and eliminate access to reduced fees or fee waivers.

8

422. The Final Rule fails to consider the financial circumstances of naturalization

9 applicants in its decision to prohibit USCIS from considering an applicant’s ability to pay.

10

423. A naturalization applicant who cannot afford the filing fee will be denied citizenship

11 solely based on the inability to pay the filing fee.

12

424. The Constitution requires consideration of the financial circumstances of a

13 naturalization applicant in assessing a fee to apply for citizenship, which the applicant is entitled to

14 seek under the INA.

15

425. The Final Rule violates the Due Process Clause because due process does not

16 permit an applicant to be denied citizenship solely based on lack of financial resources.

17

426. The Final Rule violates the Due Process Clause because it is pretext for reducing

18 immigration and naturalization without a legitimate purpose.

19

427. The Final Rule violates the Due Process Clausen because it is designed to have a

20 disproportionate impact on immigrants and communities of color.

21

COUNT VI

22

Violation of the Fifth Amendment – Equal Protection

23

428. Plaintiffs repeat and incorporate by reference each allegation contained in the

24 preceding paragraphs of this Complaint.

25

429. The Due Process Clause of the Fifth Amendment prohibits the Defendants from

26 denying equal protection of laws to persons residing in the United States.

27

430. The Final Rule denies equal protection based on indigence, race, and national origin.

28

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431. The Defendants violated the Fifth Amendment because they acted with racial animus

2 to promote policy that disproportionally affects Latin American immigrants.

3

432. Defendants were motivated by “discriminatory purpose” to disparately impact people

4 of color when they promulgated the Final Rule. Defendants not only knew of that disparate impact,

5 but that impact is also consistent with the intent made plain by the Administration’s repeated public

6 statements in support of a broader agenda to vilify persons from majority non-white countries, to

7 suppress immigration, and to discourage those individuals from seeking citizenship, exercising the

8 right to vote, and gaining access to certain careers.

9

433. The purpose of the Final Rule is to discriminate against non-white individuals and

10 families.

11

434. Defendants received many comments, including data and analyses, informing them

12 that the Final Rule would have a targeted, disproportionate impact on people and families from non-

13 white countries, and that the Final Rule departs from rulemaking history and procedure as part of a

14 pattern and practice of discriminatory animus towards persons from majority non-white countries.

15 The Defendants knew the Final Rule would have these effects.

16

435. Defendants ignore the record and use facially neutral but pre-textual concerns about

17 self-sufficiency in a thinly-veiled effort to cloak their discriminatory intent against non-white people.

18

436. Thus, the Final Rule violates the right to equal protection under the law of non-citizen

19 immigrants of color and Latino immigrants from majority non-white countries.

20

437. The Final Rule is pretext for decreasing immigration and naturalization for low-

21 income immigrants primarily from non-European countries, and does not have a legitimate purpose.

22

438. Defendants’ violation is causing ongoing harm to Plaintiffs by constructing barriers to

23 asylum, citizenship, and other immigration benefits.

24

JURY DEMAND

25

439. Plaintiffs demand a jury trial on all counts triable by jury.

26

PRAYER FOR RELIEF

27

WHEREFORE, Plaintiffs pray that this Court:

28

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1

A. Declare that the actions of the Defendants are arbitrary, capricious, and otherwise not

2 in accordance with the law and without observance of procedure required by law in violation of the

3 Administrative Procedure Act, 5 U.S.C. § 706.

4

B. Declare the Final Rule unlawful and invalid as a violation of the Fifth Amendment of

5 the United States Constitution.

6

C. Enter a preliminary and permanent nationwide injunction, without bond, enjoining

7 Defendants, their officials, agents, employees, and assigns from implementing or enforcing the Final

8 Rule.

9

D. Stay the implementation or enforcement of the Final Rule.

10

E. Award Plaintiffs reasonable attorneys’ fees and costs pursuant to 28 U.S.C. § 2412;

11 and

12

F. Order such other relief as the Court deems just and equitable.

13

14

Respectfully submitted,

15 16 DATE: August 20, 2020

17

Jesse Bless (pro hac vice forthcoming) jbless@aila.org

18 AMERICAN IMMIGRATION LAWYERS

ASSOCIATION 19 1301 G Street, Suite 300

20 Washington, D.C. 20005

21

22

23

24

25

26

27

28

/s/ Brian J. Stetch
Brian J. Stretch, SBN 163973 bstretch@sidley.com Naomi Igra, SBN 269095 naomi.igra@sidley.com Chelsea Davis, SBN 330968 chelsea.davis@sidley.com SIDLEY AUSTIN LLP 555 California Street, Suite 2000 San Francisco, CA 94104 Telephone: +1 415 772 1200 Facsimile: +1 415 772 7400
Samina M. Bharmal (pro hac vice pending) sbharmal@sidley.com Emmanuel Hampton ehampton@sidley.com Katherine Olson katherine.olson@sidley.com John L. Gibbons, SBN 317720 jgibbons@sidley.com

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1

David Goldenberg

2

dgoldenberg@sidley.com Elizabeth MacGill

3

emacgill@sidley.com Brendan Bohn

4

bbohn@sidley.com

William Chorba

5

wchorba@sidley.com

6

SIDLEY AUSTIN LLP 1501 K Street NW

7

Washington, DC 20005 Telephone: +1 202 736 8000

8

Facsimile: +1 202 736 8711

9

Attorneys for Plaintiffs

10

11

12

13

14

15

16

17

18

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24

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 Case 4:20-cv-05883-JSW Document 98 Filed 09/29/20 Page 1 of 35

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

IMMIGRANT LEGAL RESOURCE

CENTER, et al.,

8

Plaintiffs,

9

v.

10 CHAD F. WOLF, et al.,

11

Defendants.

12

Case No. 20-cv-05883-JSW
ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND REQUEST FOR STAY OF EFFECTIVE DATE OF RULE AND DENYING REQUEST FOR ADMINISTRATIVE STAY
Re: Dkt. No. 27

13

Now before the Court for consideration is the motion for a preliminary injunction filed by

14 Plaintiffs1, eight non-profit organizations that provide a variety of “services benefitting low-

15 income applicants for immigration benefits.” Compl. ¶¶ 7, 14-21; see generally Dkt. Nos. 27-4

16 through 24-7, 27-10, and 27-12 through 27-14: Declarations of Lawrence Benito (ICIRR), Olga

17 Byrne (IRC), Michael Byun (ACRS), Jeff Chenoweth (CLINIC), Michael Smith (EBSC), Melissa

18 Rodgers (ILRC), Angelica Salas (CHIRLA), and Rich Stolz (One America); see also Docket No.

19 95 (describing populations served and types of services provided).

20

Defendants are Chad Wolf (“Mr. Wolf”), in his capacity as Acting Secretary of the United

21 States Department of Homeland Security (“DHS”), DHS, Kenneth T. Cuccinelli (“Mr.

22 Cuccinelli”), in his capacity as Senior Official Performing the Duties of Deputy Secretary of

23 Homeland Security, and USCIS.2

24

25 1

Immigrant Legal Resource Center (“ILRC”), East Bay Sanctuary Covenant (“EBSC”),

Coalition for Human Immigrant Rights (“CHIRLA”), Catholic Legal Immigration Network, Inc.

26 (“CLINIC”), International Rescue Committee (“IRC”), OneAmerica, Asian Counseling and

Referral Service (“ACRS”), and the Illinois Coalition for Immigrant and Refugee Rights

27 (“ICIRR”).

28 2

Plaintiffs contend that neither Mr. Wolf nor Mr. Cuccinelli are lawfully serving in those 1

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United States District Court Northern District of California

1

Plaintiffs move to enjoin implementation of the USCIS Fee Schedule & Changes to

2 Certain Other Immigration Benefit Request Requirements, 85 Fed. Reg. 46,788 (Aug. 3, 2020)

3 (“Final Rule”) and to stay its effective date of October 2, 2020.3 See Dkt. No. 74-1, Reply

4 Declaration of Brian Stretch (“Stretch Reply Decl.”), ¶ 2, Ex. 35 (Final Rule). The Court has

5 considered the parties’ papers, including all supplemental submissions, relevant legal authority,

6 the record in this case, and the parties’ arguments at the hearing held on September 25, 2020.4 For

7 the reasons that follow, the Court GRANTS Plaintiffs’ motion. The Court also determines that a

8 brief administrative stay of this ruling pending any decision by Defendants to appeal this Order is

9 not warranted. However, if Defendants do file an appeal, nothing in this Order shall preclude

10 them from filing a motion to stay before this Court.

11

BACKGROUND

12

USCIS is funded primarily by the fees it collects, rather by Congressional appropriations,

13 and its budget is separate from the budgets for the agencies that provide DHS’s enforcement

14 services, Immigration and Customs Enforcement (“ICE”) and Customs and Border Protection

15 (“CBP”). See 6 U.S.C. § 296; 8 U.S.C. §§ 1356(h), (m); see also Compl. ¶¶ 47-49, 56. Fees

16 collected by USCIS are deposited in the Immigration Examinations Fee Account (“IEFA”) to

17

18 offices.

19 3

There are at least two additional cases that challenge all or portions of the Final Rule on

20

the same or similar grounds raised by Plaintiffs here. See Northwest Immigrant Rights Project, et al., v. U.S. Customs & Immigration Servs., et al., D.D.C No. 19-cv-3283-RDM; Project

21

Citizenship, Inc. v. U.S. Dep’t of Homeland Sec., et al., D. Ma. No. 20-cv-11545-NMG. The court in Northwest Immigrants held a hearing on the plaintiffs’ motion for a preliminary injunction on

22

September 24, 2020. The court in Project Citizenship is scheduled to hear the plaintiff’s motion for a preliminary injunction on October 23, 2020.

23 4

The Court also considered eight amicus briefs. The Constitutional Accountability Center

24

(“CAC”) (Dkt. No. 38-1) and The Cato Institute (“Cato”) (Dkt. No. 39) provided additional argument in support Plaintiffs on the issues addressed in Section B of this Order. The remaining

25

briefs filed in support of Plaintiffs’ motion are from: (1) the Alliance of Business Immigration Lawyers (Dkt. No. 36); (2) a group of ten non-profit immigration advocates and legal and social

26

service providers, including Kids in Need of Defense and the National Immigration Justice Center (Dkt. No. 47-1); (3) a group of twenty-one local governments and elected officials, including the

27

County of Santa Clara and the City of New York (Dkt. No. 54); (4) a group of nineteen states, including California (Dkt. No. 55); and (5) Reclaim the Records (Dkt. No. 65-1). The

28 Immigration Reform Law Institute filed an amicus brief in support of Defendants. (Dkt. No. 51.)

2

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1 provide “adjudication and naturalization services.” 8 U.S.C. § 1356(m). Those fees

2 3 4 5 Id.

may be set at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants. Such fees may also be set at a level that will recover any additional costs associated with the administration of the fees collected.

6

USCIS conducts biennial fee reviews and, during the review for Fiscal Years (“FY”)

7 2019/2020, “determined that current fees do not recover the full cost of providing adjudication and

8 naturalization services.” Final Rule, 85 Fed. Reg. at 46,788; see also id. at 46,789 (stating “[f]ee

9 schedule adjustments are necessary to recover the full operating costs associated with

10 administering the nation’s lawful immigration system and safeguarding its integrity and promise

11 by efficiently and fairly adjudicating requests for immigration benefit[s], while protecting

12 Americans, securing the homeland, and honoring our values”); see also Stretch Reply Decl., ¶ 5,

13 Ex. 38 (2019-2020 IEFA Fee Review Supporting Documentation with Addendum, May 2020

14 (“May IEFA Fee Review”)).

15

On November 14, 2019, following that biennial fee review, DHS issued a notice of

16 proposed rule-making signed by Kevin K. McAleenan (“Mr. McAleenan”) as “Acting Secretary”.

17 Stretch Reply. Decl., ¶ 3, Ex. 36 (USCIS Fee Schedule & Changes to Certain Other Immigration

18 Benefit Request Requirements, 84 Fed. Reg. 62,280, at 62,280 and 62,371 (Nov. 14, 2019)

19 (“NPRM”)). DHS stated that the current fee levels “are insufficient to recover the full cost of

20 [USCIS’s] operations funded by the IEFA” and stated that if USCIS “continues to operate at

21 current fee levels, it would experience an average annual shortfall (the amount by which expenses

22 exceed revenue) of $1,262.3 million.” Id. at 62,282. DHS required written comments to be

23 submitted before December 16, 2019, although DHS extended the comment period twice. The

24 comment period eventually closed on February 10, 2020. See Stretch Reply Decl., ¶ 4, Ex. 4 (84

25 Fed. Reg. 67,243 (Dec. 19, 2019)); see also 85 Fed. Reg. 4,243 (Jan. 24, 2020). DHS published

26 the Final Rule on August 3, 2020.

27

DHS initially proposed to adjust fees by a weighted average increase of 21 percent.

28 NPRM, 84 Fed. Reg. at 46,280. In the Final Rule DHS adjusts “USCIS fees by a weighted 3

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1 average increase of 20 percent, add[s] new fees for certain immigration benefit requests,

2 establish[es] multiple fees for non-immigrant worker petitions, and limit[s] the number of

3 beneficiaries for certain forms.” Final Rule, 85 Fed. Reg. at 46,788. The Final Rule also makes

4 changes to fee waivers by eliminating the ability to seek a waiver for some fees and by changing

5 the criteria used to determine if an individual is eligible for a waiver. Id. at 46,789.

6

While Plaintiffs challenge the validity of the Final Rule in its entirety, they highlight that

7 DHS will require a $50.00 non-waivable fee to apply for asylum. See id. at 46,844. The

8 Immigration and Nationality Act (“INA”) permits USCIS to impose a fee “for the consideration of

9 an application for asylum [and] for employment authorization” so long as the fees do not “exceed

10 the Attorney General’s costs in adjudicating the applications.” 8 U.S.C. § 1158(d). Until this rule

11 was proposed, the United States did not charge a fee to apply for asylum.5 Instead, the cost of

12 applying for asylum has been subsidized by “other fee-paying benefit requestors[.]” NPRM, 84

13 Fed. Reg. at 62,318. In addition to the application fees, immigrants seeking asylum also will be

14 required to pay a $550.00 for their first Employment Authorization Document (“EAD”), as well as

15 a $30.00 biometric fee. None of these three fees can be waived. The Final Rule does provide for

16 “a $50 reduction in the fee for Form I-485, Application to Register Permanent Residence or

17 Adjust Status, filed in the future, for principal applicants who pay the $50 fee for Form I-589 and

18 are subsequently granted asylum.” Final Rule, 85 Fed. Reg. at 46,790.

19

On the same day DHS issued this NRPM, it also initiated a proposed rule-making

20 procedure regarding Asylum Application, Interview, and Employment Authorization for

21 Applicants. See 85 Fed. Reg. 38,532 (June 26, 2020). Under prior rules, applicants for asylum

22 had to wait 180 days before they could work in the United States, but DHS extended that waiting

23 period to 365 days. See 85 Fed. Reg. at 38,626 (to be codified at 8 C.F.R. § 208.7(a)(1)(ii)) (“An

24 applicant for asylum cannot apply for initial employment authorization earlier than 365 calendar

25

26 5

This decision makes the United States one of four countries that impose fees to apply for

27

this type of relief. According to the record, Iran, Fiji, and Australia also charge fees for asylum or refugee protection but provide for waivers or exemptions in some instances. See Final Rule, 85

28 Fed. Reg. at 46,848; NPRM, 84 Fed. Reg. at 62,319.

4

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1 days after the date USCIS or the immigration court receives the asylum application[.]”), enjoined,

2 in part, by Casa de Maryland, Inc. v. Wolf, No. 8:20-cv-02118-PX, -- F. Supp. 3d --, 2020 WL

3 5500165, at *2 n.3 (D. Md. Sept. 11, 2020) (“Casa de Maryland”) (noting that “[i]n the last year,”

4 DHS has pursued rulemakings that “would make it more difficult to secure asylum” and citing,

5 inter alia, NPRM, 84 Fed. Reg. 62,280).

6

Plaintiffs also highlight the fact that DHS increased the application fee for naturalization

7 from $640 to $1,170, increased other fees associated with naturalization, and eliminated the option

8 to obtain fee waivers for those fees. Final Rule, 85 Fed. Reg. at 46,791-792, Table 1 (noting fee

9 increases for Forms N-300, N-36, N-400, N-470). DHS did reduce the fee associated with

10 renewing lawful permanent resident (“LPR”) status, but it “unbundled” fees for three applications

11 associated with obtaining LPR status: the application for permanent residency (Form I-485), the

12 application for an EAD (Form I-765), and an application for travel document (Form I-131.) Id., at

13 46,791-792 & Table 1. Plaintiffs allege that, since 2007, there has been flat fee of $1,140 for

14 those applications ($750 for children under 14). DHS will now charge $1,130 for Form I-485,

15 $550 for Form I-765, and $590 for Form I-131. Id.

16

Plaintiffs also highlight the changes to fee waivers in the Final Rule. “The 2011 Fee

17 Waiver Policy” provided that an applicant could qualify for a fee waiver if: (1) they received a

18 means-tested benefit; (2) had household incomes at or below 150% of the Federal Poverty

19 Guidelines (“FPG”); or (3) could establish extreme financial hardship. See NPRM, 84 Fed. Reg.

20 at 62,298. The NPRM noted that the proposed rule would “further limit[] forms eligible for a fee

21 waiver and the criteria to establish eligibility for a fee waiver. Id. Under the Final Rule, where fee

22 waivers are still available, an applicant will be eligible only if their annual household income is

23 less than 125% of the FPG.6 Final Rule, 85 Fed. Reg. at 46,819-820.

24

Plaintiffs’ motion addresses their first, second, and third claims for relief, which allege

25

26 6

Under the William Wilburforce Trafficking Victims Protection Reauthorization Act of

27

2008 (“TVPRA”), DHS is required to provide the opportunity for certain applicants to apply for fee waivers for “any fees associated with filing an application for relief through final adjudication

28

of the adjustment of status.” 8 U.S.C. § 1255(l)(7); see also NPRM, 84 Fed. Reg. at 62,297, Table 7; Final Rule, 85 Fed. Reg. at 46,812-813, Table 3.

5

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1 violations of the Administrative Procedure Act, 5 U.S.C. section 706. The Court will address

2 additional facts as necessary in the analysis.

3

ANALYSIS

4 A. 5

Legal Standards Applicable to a Motion for a Preliminary Injunction. In order to prevail on their motion, “Plaintiffs must show that (1) they are likely to succeed

6 on the merits, (2) they are likely to ‘suffer irreparable harm’ without relief, (3) the balance of

7 equities tips in their favor, and (4) an injunction is in the public interest.” East Bay Sanctuary

8 Covenant v. Barr, 964 F.3d 832, 844-45 (9th Cir. 2020) (“Barr”); see also Winter v. Nat. Res. Def.

9 Council, Inc., 555 U.S. 7, 20 (2008). Where, as here, “the government is a party these last two

10 factors merge.” Barr, 964 F.3d at 845 (quoting Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073,

11 1092 (9th Cir. 2014). In Alliance for the Wild Rockies v. Cottrell, the Ninth Circuit held that the

12 “serious questions” sliding scale approach survives Winter. 632 F.3d 1127, 1134-35 (9th Cir.

13 2011). Thus, a court may grant a preliminary injunction if a plaintiff demonstrates that there are

14 serious questions going to the merits and a hardship balance that tips sharply in its favor, and the

15 other two elements of the Winter test are also met. Id. at 1132.

16

Under the APA, “[o]n such conditions as may be required and to the extent necessary to

17 prevent irreparable injury, the reviewing court, …, may issue all necessary and appropriate process

18 to postpone the effective date of an agency action or to preserve status or rights pending

19 conclusion of the review proceedings.” 5 U.S.C. § 705. “The factors considered when issuing

20 such a stay substantially overlap with the Winter factors for a preliminary injunction.” City and

21 County of San Francisco v. U.S. Customs & Immigration Servs., 408 F. Supp. 3d 1057, 1078

22 (N.D. Cal. 2019).

23 B. 24

Plaintiffs’ Challenges to the Validity of Mr. McAleenan’s and Mr. Wolf’s Service as Acting Secretary of DHS.

25

The APA permits a court to, inter alia, “hold unlawful and set aside agency action,

26 findings and conclusions found to be - arbitrary, capricious, an abuse of discretion, or otherwise

27 not in accordance with law.” 5 U.S.C. § 706(2)(A). Plaintiffs assert the Final Rule must be set

28 aside as contrary to law because neither Mr. McAleenan nor Mr. Wolf were lawfully serving as 6

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1 Acting Secretary when the NRPM and Final Rule were issued. Plaintiffs argue the appointments:

2 (1) were not effective under the relevant provisions of the Homeland Security Act (“HSA”); and

3 (2) violated the time limitations on service contained in the Federal Vacancies Reform Act

4 (“FVRA”).

5

Under the Appointments Clause, the President is granted the power to nominate Officers of

6 the United States, such as DHS Secretary. U.S. Const., art. II, § 2, cl.2. That power is

7 counterbalanced by “[t]he Senate’s advice and consent power … a critical structural safeguard of

8 the constitutional scheme.” NLRB v. Sw. General, Inc., -- U.S. --, 137 S.Ct. 929, 935 (2017) (“Sw.

9 General II”) (internal quotations, alterations and citations omitted). The Senate’s power to advise

10 and consent was designed to place a “‘check upon a spirit of favoritism in the President,’ ‘prevent

11 the appointment of unfit characters,’ and provide a ‘source of stability in the administration.’”

12 Bullock v. U.S. Bureau of Land Mgmt., No. 20-cv-000620-BMM, -- F. Supp. 3d --, 2020 WL

13 5746836, at *7 (D. Mont. Sept. 25, 2020) (quoting The Federalist No. 76 (A. Hamilton)).

14

On April 7, 2019, former DHS Secretary Kirstjen M. Nielsen announced her resignation

15 and left office on April 10, 2019. President Trump did not submit a nominee to replace Secretary

16 Nielsen until September 10, 2020, when he nominated Mr. Wolf for that position. As that delay

17 demonstrates, “[t]he constitutional process of Presidential appointment and Senate confirmation

18 [PAS] can take time.” Sw. General II, 137 S.Ct. at 935. To account for such delays, Congress

19 enacted vacancy statutes through which it gives “the President limited authority to appoint acting

20 officials to temporarily perform the functions of a PAS office without first obtaining Senate

21 approval.” Id.; see also Casa De Maryland, 2020 WL 5500165, at *14. Those vacancy statutes

22 “allowed the President to fill vacancies with temporary acting officers, subject to limitations on

23 whom he could appoint and how long the appointee could serve.” Sw. General, Inc. v. NLRB, 796

24 F.3d 67, 81 (D.C. Cir. 2015) (“Sw. General I”). The Executive Branch did not always comply

25 with those limitations, resulting in “interbranch conflict” and, eventually, the passage of the

26 FVRA in 1998. See Sw. General II, 137 S.Ct. at 935-36.7

27

28

7

The Court will not detail the history of the various vacancy statutes or the conflicts that

ultimately led to the passage of the FVRA, which are detailed in Southwest General II, 137 S.Ct.

7

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1

Section 3345 of the FVRA addresses who may fill a vacancy in a PAS office. 5 U.S.C. §

2 3345(a). Section 3345(a) sets forth a “default” rule, which provides that the “first assistant” to the

3 vacant office “shall perform the functions and duties of the office temporarily in an acting capacity

4 subject to the time limitations of section 3346.” Alternatively, “the President (and only the

5 President) may direct” an individual to serve temporarily in an acting capacity “subject to the time

6 limitations of section 3346[.]” 5 U.S.C. § 3345(a)(2)-(3). Section 3345 of the FVRA also

7 addresses who is not eligible to serve as an acting officer. By way of example, “a person may not

8 service as an acting officer for an office under this section if -- during the 365-day period

9 preceding the” vacancy “such person … did not serve in the position of first assistant to the office

10 of such officer … and the President submits a nomination of such person to the Senate to such

11 office.” 5 U.S.C. §§ 3345(b)(1)(A)(i), (B); see also Sw. General II, 137 S.Ct. at 938. The

12 Supreme Court has held the prohibition contained in Section 3345(b)(1) applies to each subsection

13 of 3345(a). Sw. General II, 137 S.Ct. at 935.

14

Subject to an exception not relevant here, “the person serving as an acting officer as

15 described under section 3345 may serve in the office – (1) for no longer than 210 days beginning

16 on the date the vacancy occurs; or (2) … once a first or second nomination for the office is

17 submitted to the Senate, from the date of such nomination for the period that the nomination is

18 pending in the Senate.” 5 U.S.C. §§ 3346(a)(1)-(2). The FVRA also establishes certain penalties

19 for non-compliance with its terms. “An action taken by any person who is not acting under

20 section 3345, 3346, or 3347, or as provided by [section 3348] subsection (b), in the performance

21 of any function or duty of a vacant office to which this section and sections 3346, 3347, 3349,

22 3349a, 3349b, and 3349c apply shall have no force and effect.” 5 U.S.C. § 3348(d)(1) (emphasis

23 added). Such an action also “may not be ratified.” Id. § 3348(d)(2).

24

“Congress enacted the FVRA against the backdrop of several agency-specific succession

25 statutes applicable to PAS offices,” and it added an “exclusivity” provision, Section 3347, to

26 accommodate those statutes. Casa de Maryland, 2020 WL 5500165, at *15. Section 3347

27

28

at 935-36, Casa de Maryland, 2020 WL 5500165, at *14-15, and the amicus brief submitted by CAC at pp. 3-6.

8

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1 provides, in relevant part:

2

Sections 3345 and 3346 are the exclusive means for temporarily

authorizing an acting official to perform the functions and duties of

3

[a PAS office] unless – … a statutory provision expressly – …

authorizes the … head of an Executive department, to designate an

4

officer or employee to perform the functions and duties of a

specified office temporarily in an acting capacity; or … designates

5

an officer or employee to perform the functions and duties of a

specified office temporarily in an acting capacity[.] 6

7 5 U.S.C. § 3347(a)(1)(A)-(B) (emphasis added).

8

Enter the HSA, which provides that the Deputy Secretary “shall be the Secretary’s first

9 assistant for purposes of” the FVRA, expressly incorporating the “first assistant” language used in

10 the FVRA. Pub. L. No. 107-296, § 103, 116 Stat. 2135, 2144 (2002) (emphasis added) (codified

11 at 6 U.S.C. § 113(a)(1)(A)).

12

On December 15, 2016, former DHS Secretary Jeh Johnson issued DHS Delegation No.

13 00106 (“Delegation 00106”), DHS Orders of Succession and Delegations of Authorities for

14 Named Positions, Revision 8 (“Revision 8”). Dkt. No. 75-1, Declaration of Bradley Craigmyle

15 (“Craigmyle Decl.”), ¶ 6, Ex. 8. Section II.A of Revision 8 states that “[i]n the case of the

16 Secretary’s death, resignation, or inability to perform the functions of the Office, the orderly

17 succession of officials is governed by Executive Order 13753 [“E.O. 13753”], amended on

18 December 9, 2016.” Revision 8 at 1. Under E.O. 13753, the order of succession was: Deputy

19 Secretary; Under Secretary for Management; Administrator of the Federal Emergency

20 Management Agency (“FEMA”); and Director of Cybersecurity and Infrastructure Security

21 Agency (“CISA”).8 Revision 8, Section II.B. states “I hereby delegate to the officials occupying

22 the identified positions in the order listed (Annex A), my authority to exercise the powers and

23 perform the functions and duties of my office, to the extent not otherwise prohibited by law, in the

24 event I am unavailable to act during a disaster or catastrophic emergency.” (Id.) The first four

25 officials listed in Annex A are the same four officials listed in E.O. 13753.

26

27

8

E.O. 13753 actually states that the Under Secretary for National Protection and Programs

is fourth in the line of succession. “[T]hat agency has been re-designated as the Cybersecurity and

28

Infrastructure Security Agency,” and the Under Secretary for NPP is the Director of CISA. Casa de Maryland, 2020 WL 5500165, at *21 n.15; see also 6 U.S.C. § 652(a)(1)-(2).

9

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1

On December 23, 2016, Congress amended the HSA to provide that the Under Secretary of

2 Management “shall be first assistant to the Deputy Secretary … for purposes of” the FVRA. Pub.

3 L. No. 114-328, § 1903, 130 Stat. 2000, 2672 (2016) (codified at 6 U.S.C. § 113(a)(1)(F)

4 (emphasis added). Congress also added subsection (g), entitled “Vacancies.” Id. (codified at 6

5 U.S.C. § 113(g)). Section 113(g)(1) provides that “[n]otwithstanding [the FVRA], “the Under

6 Secretary of Management shall serve as the Acting Secretary if by reason of … vacancy in office,

7 neither the Secretary nor Deputy Secretary is available to exercise the duties of the Office of the

8 Secretary.” Section 113(g)(2) provides that “[n]otwithstanding [the FVRA], the Secretary may

9 designate such other officers of the Department in further order of succession to serve as Acting

10 Secretary.”

11

On April 9, 2019, Secretary Nielsen signed a memorandum entitled “Designation of an

12 Order of Succession for the Secretary.” Craigmyle Decl., ¶ 3, Ex. 2. The Court refers that

13 memorandum and its attachment as the “April 9 Order.” It is undisputed that the first time a DHS

14 Secretary purported to alter the order of succession, pursuant to the authority granted in Section

15 113(g)(2), was when Secretary Nielsen issued the April 9 Order. The memorandum notes that

16 Secretary Nielsen had expressed her “desire to designate certain officers of the Department of

17 Homeland Security … in order of succession to serve as Acting Secretary” and states “[y]our

18 approval of the attached document will accomplish such designation.” April 9 Order at 1. It also

19 refers to the attachment as “Annex A.” The discussion section of the memorandum is redacted

20 but concludes with the statement that “[b]y approving the attached document, you will designate

21 your desired order of succession for the Secretary of Homeland Security in accordance with your

22 authority pursuant to” 6 U.S.C. section 113(g)(2). Id. The attachment states:

23

Amending the Order of Succession in the Department of

Homeland Security. 24

By the authority vested in me as Secretary of Homeland Security,

25

including the Homeland Security Act of 2002, 6 U.S.C. § 113(g)(2),

I hereby designate the order of succession for the Secretary of

26

Homeland Security as follows:

27

Annex A of DHS Orders of Succession and Delegations of

Authorities for Named Positions, Delegation No. 00106, is hereby 28

10

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1

amended by striking the text of such Annex in its entirety and

inserting the following in lieu thereof: 2

Annex A: Order for Delegation of Authority by the Secretary of the

3

Department of Homeland Security.

4

1. Deputy Secretary of Homeland Security.

5

2. Under Secretary for Management;

6

3. Commissioner of [CPB].

7

4. Administrator of [FEMA].

8

…

9

No individual who is serving in an office herein listed in an acting

capacity, by virtue of so serving, shall act as Secretary pursuant to

10

this designation.

11 Id. at 2.
12 The April 9 Order thus amended the officials listed in Annex A by inserting the CBP
13 Commissioner above the FEMA Administrator. On April 10, 2019, DHS updated Delegation
14 00106 with Revision 08.5 (“Revision 8.5”). That revision provides, in relevant part:
15

II. Succession Order/Delegation. 16

A. In the case of the Secretary’s death, resignation, or inability to

17

perform the functions of the Office, the orderly succession of officials

is governed by Executive Order 13753, amended on December 9,

18

2016.

19

B. I hereby delegate to the officials occupying the identified positions

in the order listed (Annex A) my authority to exercise the powers and

20

perform the functions and duties of my office, to the extent not

otherwise prohibited by law, in the event I am unable to act during a

21

disaster or catastrophic emergency.

22 Craigmyle Decl., ¶ 5, Ex. 4. Thus, the text of Section II.A in Revision 8.5 remained identical to

23 the text of Section II.A in Revision 8.

24

As of the effective date of Secretary Nielsen’s resignation, the offices of the Deputy

25 Secretary and the Under Secretary of Management were vacant, and Mr. McAleenan was serving

26 in the Senate-confirmed role of CPB Commissioner. Mr. McAleenan assumed the title of DHS

27 Acting Secretary, and when DHS notified Congress of the vacancy left by Secretary Nielsen’s

28 11

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1 resignation, it advised he had done so pursuant to 6 U.S.C. section 113(g)(2). Dkt. No. 75-3,

2 Plaintiffs’ Notice and Request to Submit Supplemental Briefing, Ex. 3 at 2.

3

Mr. McAleenan putatively served as Acting Secretary from April 10, 2019, until

4 November 13, 2019, when he resigned. On or about November 8, 2019, Mr. McAleenan issued an

5 order that explicitly amended Section II.A of Delegation 00106 to provide that “In the case of the

6 Secretary’s death, resignation, or inability to perform the functions of the Office, the order of

7 succession of officials is governed by Annex A.” He also amended the order of officials listed in

8 Annex A to insert the Under Secretary for Strategy, Policy, and Plans above the FEMA

9 Administrator. That amendment also includes the proviso that “[n]o individual who is serving in

10 an office herein listed in an acting capacity, by virtue of so serving, shall act as Secretary pursuant

11 to this designation.” Craigmyle Decl., ¶ 8, Ex. 7. Mr. Wolf was the Senate-confirmed Secretary

12 for Strategy, Policy and Plans and, thus, purported to assume the role of Acting Secretary of DHS.

13 At the time Mr. Wolf assumed the role of Acting Secretary of DHS, the office had been without a

14 Senate-confirmed Secretary for 217 days.

15

1. Plaintiffs Have Met Their Burden to Show They Are Likely to Succeed on

their Claim that Mr. McAleenan and Mr. Wolf Were Not Lawfully Serving

16

Under the HSA.

17

The parties agree that under Section 113(g)(2), Secretary Nielsen had the authority to

18 designate an order of succession in the event of her resignation and that she could supersede the

19 provisions of E.O. 13753. They dispute whether Secretary Nielsen’s “desire” to change the order

20 of succession was realized. According to Plaintiffs, the language of Revision 8.5 controls and

21 Section II.A of that document demonstrates that E.O. 13753 still governed the order of succession

22 in the event of the Secretary’s resignation. Pursuant to that order of succession, Mr. McAleenan

23 was seventh in line and, thus, was not eligible to assume the role of Acting Secretary. Defendants

24 argue the language of the April 9 Order controls and, pursuant to that order, Mr. McAleenan’s

25 appointment was valid. Defendants conceded at the hearing that if this Court rejects their

26 arguments on this issue, which it does, the Final Rule would have been promulgated without

27 lawful authority.

28

Defendants arguments have been considered and rejected by two district courts and by the

12

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1 Government Accountability Office (“GAO”). See Casa de Maryland, 2020 WL 5500165, at *20-

2 *23; La Clinica de la Raza v. Trump, No. 19-cv-04980-PJH, -- F. Supp. 3d --, 2020 WL 4569462,

3 at *13 (N.D. Cal. Aug. 7, 2020); Dkt. No. 27-1, Declaration of Bryan Stretch (“Stretch Decl.”), ¶

4 1, Ex. 1 (U.S. Government Accountability Office Decision in the matter of Department of

5 Homeland Security – Legality of Service of Acting Secretary of Homeland Security and Service of

6 Senior Official Performing the Duties of Deputy Secretary of Homeland Security, File No. B-

7 331650 (Aug. 14, 2020) at 8-9 (“GAO Decision”)).

8

In La Clinica de la Raza, the plaintiffs challenged DHS’ “public charge” rule and argued

9 that the rule was invalid because Mr. McAleenan had not been validly appointed under the HSA

10 and because his appointment violated the FVRA. 2020 WL 4569462, at *13. The court,

11 reviewing the plain language of the April 9 Order, determined that it “only replaced Annex A and

12 made no other changes to Delegation No. 00106. Thus, when Secretary Nielsen resigned,” E.O.

13 13753 governed the succession of officials in the event of vacancy and Annex A “applied when

14 the Secretary was unavailable due to disaster or emergency.” Id. The court also reasoned that if

15 Secretary Nielsen had intended to modify the order of succession in the event of a vacancy, she

16 “could have so stated” as Mr. McAleenan did when he amended Delegation 00106. Id., 2020 WL

17 4569462, at *14.9

18

In Casa de Maryland, the court also determined that Revision 8.5 meant what it said: E.O.

19 13753 would govern the order of succession in the event of a vacancy due to resignation and

20 concluded the defendants provided no basis to ignore its plain language. 2020 WL 5500165, at

21 *20. The court also rejected the defendants’ arguments that the references to the order of

22 succession and the authority provided under Section 113(g)(2) demonstrated that Secretary

23

24

9

The court nonetheless granted the defendants motion to dismiss because “Plaintiffs do not

allege that McAleenan failed to meet one of the three options provided by the FVRA for the

25

temporary appointment of officers.” La Clinica de la Raza, 2020 WL 4569462, at *14. The court concluded that Mr. McAleenan’s appointment may have been valid under the FVRA. Id. The

26

court recently granted leave to file a motion to reconsider that decision based on plaintiffs’ assertion that defendants have taken the position in other cases, notably Casa de Maryland, that

27

Mr. McAleenan was not appointed pursuant to the FVRA. La Clinica de la Raza v. Trump, N.D. Cal. No. 19-cv-4980-PJH, Dkt. No. 182 (Order Granting Motion for Leave to File), Dkt. No. 183

28 (Motion to Reconsider at 3:5-4:2).)

13

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1 Nielsen altered the line of succession in the event of a vacancy. The court determined that

2 language “at best state[d] the obvious – that Nielsen had the authority to change the succession

3 order as applied to the office of the Secretary,” but it did not support the proposition that she did

4 so. Id., 2020 WL 55001665, at *22.10

5

Because Mr. McAleenan was not the next in line under E.O. 13753, the court could not

6 “help but conclude” he assumed “the role of Acting Secretary without lawful authority.” Id., 2020

7 WL 5500165, at *21. The court also noted the difference between Mr. McAleenan’s amendment

8 to Delegation 00106, which expressly amended Section II.A, and Secretary Nielsen’s

9 amendments, which did not. Id. The court determined that because Mr. McAleenan had not been

10 lawfully appointed, his amendments to the order of succession were done without authority,

11 impacting Mr. Wolf’s subsequent appointment to the role of Acting Secretary and making it likely

12 that the rules at issue would be invalidated under the APA. Id., 2020 WL 55001665, at *21.

13

Defendants also argue that the additional sentence at the conclusion of the April 9 Order is

14 reflective of language used when establishing orders of succession. Defendants also argue their

15 position is supported by a distinction between a delegation of authority and an order of succession,

16 a distinction that is reflected in the HSA. Under the HSA, the Secretary has the authority to

17 delegate his or her authority to “any officer, employee, or organizational unit of the Department”

18 and to designate a further order of succession. Compare 6 U.S.C. § 112(b)(1) with 6 U.S.C. §

19 113(g)(2). While that argument has surface appeal, Secretary Nielsen purported to strike the text

20 of Annex A in its entirety. The replacement text continues to state “Annex A. Order for

21 Delegation of Authority….” April 9 Order at 2. Defendants also do not provide a persuasive

22 argument as to why it was necessary for Mr. McAleenan to amend Section II.A of Delegation

23 00106, if Secretary Nielsen had already accomplished that change. The Court finds the reasoning

24

25

10 The court also noted that defendants failed to cite any authority for the proposition that Delegation 00106 is merely an administrative document as an explanation for why the April 9

26

Order controls. Here, Defendants do provide a declaration from Neal J. Swartz, submitted in connection with a different case, that provides factual support for that argument. Craigmyle Decl.,

27

¶ 5, Ex. 4. They also cite to Vill. of Bald Head Island v. U.S. Army Corps. Of Eng’rs, which noted that in the context of the APA, project implementation is not “final agency action” under the APA.

28

714 F.3d 186, 195 (4th Cir. 2013). The Court does not find that authority persuasive in this context.

14

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1 set forth in La Clinica de la Raza and Casa de Maryland on the succession issue highly

2 persuasive, and like the Casa de Maryland court concludes that Plaintiffs are likely to show that

3 the appointments were not lawful and, thus, that the Final Rule is likely invalid under the APA.

4

On September 10, 2020, President Trump formally nominated Mr. Wolf to serve as DHS

5 Secretary. On that same day, Peter T. Gaynor, who became the acting FEMA Administrator in

6 2019 and was officially confirmed by the Senate in January 2020, “out of an abundance of caution

7 and to minimize any disruption occasioned” by the GAO Opinion, issued a document entitled

8 “Order Designating the Order of Succession for the Secretary of Homeland Security,” which

9 mirrored the order Mr. McAleenan issued in November 2019. Craigmyle Decl., ¶ 2, Ex. 1

10 (“Gaynor order”). Administrator Gaynor states that he exercised this authority pursuant to the

11 FVRA and the order of succession set forth in E.O. 13753, “[a]s the most senior successor listed”

12 in E.O. 13753, “in accordance with the President’s advance exercise of his authority to name an

13 Acting Secretary under the FVRA.” Id. (emphasis added). Administrator Gaynor also stated that

14 “[u]pon my signature, any authority that I may have been granted by the FVRA will terminate

15 because 6 U.S.C. § 113(g)(2) applies notwithstanding chapter 33 of title 5.” Id. (internal

16 quotations omitted). There is nothing in the record that demonstrates whether Administrator

17 Gaynor issued this order before or after President Trump sent Mr. Wolf’s nomination to the

18 Senate.

19

On September 17, 2020, after briefing on the motion had closed, Mr. Wolf issued a

20 document entitled “Ratification of Actions Taken by the Acting Secretary of Homeland Security”

21 (the “Ratification”).11 Dkt. No. 80-1, Declaration of Bradley Craigmyle dated Sept. 18, 2020, ¶ 2,

22 Ex. 1. In the Ratification, Mr. Wolf purports to “affirm[] and ratify[] each of my delegable prior

23 actions as Acting Secretary … out of an abundance of caution[,]” including the Notice of Proposed

24 Rule Making that led to the Final Rule at issue here, as well as the Final Rule. Ratification at 1-2.

25

Defendants argue that the Ratification nullifies Plaintiffs’ first claim for relief because “a

26 subsequent valid appointment, coupled with ratification, cures any initial” defects. Consumer

27

28

11 By adopting this definition, the Court is not expressing its views on the validity of those actions.

15

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1 Protection Fin. Bureau v. Gordon, 819 F.3d 1179, 1190-91 (9th Cir. 2016) (emphasis added).

2 When Mr. Wolf issued the Ratification, his nomination was – and still is – pending confirmation.

3 Defendants also maintain that by virtue of the Gaynor order, Mr. Wolf is not serving pursuant to

4 the FVRA, which would trigger the prohibition on his service under Section 3345(b)(1), even

5 though the Gaynor order suggests that President Trump submitted Mr. Wolf’s nomination

6 pursuant to the FVRA. Sw. General II, 137 S.Ct. at 935. The effectiveness of the Ratification

7 depends upon a valid appointment. Consumer Protection Fin. Bureau, 816 F.3d at 1190-91. For

8 the reasons set forth above, the Court concludes Plaintiffs have shown that they are likely to

9 succeed on the merits of their claim that Mr. Wolf was not validly serving in office. At the very

10 least, Plaintiffs have shown that recent events support a finding that there a serious questions

11 going to the merits of their claim that the Final Rule is contrary to law.

12

2. Plaintiffs Have Not Met Their Burden to Show They Are Likely to Succeed on

the Merits of their Claim that Mr. McAleenan’s and Mr. Wolf’s Appointments

13

Violated the FVRA.

14

The FVRA’s default rule provides that if a PAS position becomes vacant following a

15 resignation, the “first assistant” would step into the rule and could serve for “no longer than 210

16 days beginning on the date the vacancy occurs[.]” 5 U.S.C. §§ 3345(a)(1), 3346(a)(1). It is

17 undisputed that when Mr. Wolf assumed the role of Acting Secretary, more than 210 days had

18 elapsed since Secretary Nielsen resigned. The parties’ dispute centers primarily on whether the

19 time limits set forth in Section 3346 of the FVRA would apply to individuals serving pursuant to

20 an agency-specific succession statute, such as Section 113(g)(2). Plaintiffs contend that Section

21 3346’s time limits are applicable; therefore, Mr. Wolf did not validly hold office. See also Dkt.

22 No. 39, Cato Brief at 20 (arguing the “simplest” reason the appointment is invalid is because Mr.

23 Wolf assumed the role after 210 days elapsed following Secretary Nielsen’s resignation). “If it

24 were only that simple.” Casa de Maryland, 2020 WL 5500165, at *15.

25

In that case, the plaintiffs challenged two sets of rule changes to asylum procedures,

26 including the waiting period to obtain an EAD. The plaintiffs, as Plaintiffs do here, argued the

27 rules were invalid because Mr. Wolf’s appointment violated the time limitations set forth in the

28 FVRA. However, the court determined that Congress “tied the timing provision of Section 3346 16

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1 only to offices filled under section 3345, and no others.” Casa de Maryland, 2020 WL 5500165,

2 at *16. The court relied on the plain language of the FVRA, including Congress’s precise use of

3 internal cross-references. Id., 2020 WL 5500165, at *15 (citing Sw. General I, 796 F.3d at 74);

4 see also Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 559 (9th Cir. 2016)

5 (“‘Throughout the FVRA, the Congress was precise in its use of internal cross-references,’ using

6 the term ‘subsection’ or ‘paragraph’ when it meant to refer to something less than a whole

7 section.”) (quoting Sw. General, I, 796 F.3d at 74).

8

In particular, the Casa de Maryland court noted that Section 3346 did not contain a cross-

9 reference to Section 3347; it provided only that a “person serving as an acting officer as described

10 under section 3345” could serve for no longer than 210 days. Id. The court also reasoned that

11 “Congress took great pains to identify ‘Sections 3345 and 3346’ as the ‘exclusive means for

12 temporarily authorizing an acting official” to serve as an acting officer unless an agency specific

13 statute existed. Id., 2020 WL 5500165, at *16. The court then noted that when Mr. Wolf assumed

14 the role of Acting Secretary he was not a “first assistant” and had not been “tapped by the

15 President” and, thus, was not serving pursuant to Section 3345. Id., 2020 WL 5500165, at *18.

16 Because the court construed Section 3346 to be tied to Section 3345, the court could “not find that

17 Wolf’s tenure contravene[d] the FVRA, despite his serving well past the FRVA’s 210 day time

18 frame.” Id.

19

Plaintiffs argue the Casa de Maryland court’s interpretation of Sections 3346 and 3347 is

20 flawed. They argue that Section 3346 by its terms applies to “a person serving as an acting officer

21 as described under section 3345” and posit that “Section 3345 describes officers ‘serving

22 temporarily due to death, resignation, or unavailability[.]’” Reply Br. at 5 n.10. In Plaintiffs’

23 view, these are general descriptors that could also refer to officers serving under an agency-

24 specific succession statute, such as Section 113(g)(2). The Court does not find this argument

25 persuasive. The preamble of Section 3345 refers to those conditions as circumstances that may

26 trigger the appointments, but the body Section 3345(a) describes the categories of individuals who

27 may be tapped to fill a vacancy.

28

In addition, the only cross-reference to Section 3347 in Section 3345, is in subsection

17

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1 (c)(2), which states that “[f]or purposes of this section and sections 3346, 3347, 3348, 3349,

2 3349a, and 3349d, the expiration of a term of office is an inability to perform the functions and

3 duties of such office.” The Court does not find the Casa de Maryland court’s construction of

4 Sections 3346 and 3347 flawed. If Congress had intended Section 3346 to apply to individuals

5 “serving as an acting officer as described under” either section 3345 or under Section 3347, “it

6 likely would have said” so. Id. That conclusion is supported further by the fact that many agency-

7 specific statutes incorporate their own time limits on temporary service. See Casa de Maryland,

8 2020 WL 5500165, at *18 & n.12.

9

Plaintiffs also focus on the fact that Section 113(g)(2) of the HSA states that the Secretary

10 may designate a further order of succession “notwithstanding” the FVRA, which is in contrast to

11 the phrase “for purposes of” used in Section 113(a)(1)(A) and 113(a)(1)(F) of the HSA. The latter

12 phrase implies limitation, where as “notwithstanding” generally means “in spite of” or “without

13 prevention or obstruction from or by” and, in the context of statutory construction “shows which

14 provision prevails in the event of a clash.” Sw. General II, 137 S.Ct. at 939 (citations omitted);

15 Hooks, 816 F.3d at 559 & n. 10; Sw. General I, 796 F.3d at 75. All parties agree with that general

16 proposition. Plaintiffs argue the phrase “notwithstanding” in Section 113(g)(2) of the HSA is

17 followed by “chapter 33 of Title 5[.]” Plaintiffs argue that this refers to all, not a portion of, of the

18 FVRA, and they contend there is no conflict between permitting the Secretary to designate a

19 further order of succession and placing the FVRA’s time limits on that appointment. The Court

20 concludes that a more natural read the notwithstanding clause in Sections 113(g)(1) and (g)(2) is

21 that it serves to demonstrate these sections operate as an agency-specific succession statute,

22 superseding the FVRA as the exclusive means to fill a vacancy in the office of DHS Secretary.

23 Cf. S. Rep. 105-250, at 15 (1998) (referencing Section 3347 and stating that “statutes enacted in

24 the future purporting to or argued to be construed to govern the temporary filling of offices

25 covered by this statute are not to be effective unless they expressly provide that they are

26 superseding the Vacancies Reform Act”).

27

Plaintiffs also argue that the Court should not follow the reasoning set forth in Casa de

28 Maryland because that court failed to consider whether its ruling that Mr. Wolf’s appointment 18

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1 under the HSA was invalid also rendered his appointment invalid under the FVRA. Section 3347

2 states that “Sections 3345 and 3346 are the exclusive means for temporarily authorizing an acting

3 official to perform the functions and duties” of a PSA office, unless an agency-specific statute

4 authorizes designation. 5 U.S.C. § 3347(a)(1)(A). There is no language in Section 3347 that

5 suggests the exclusivity of the FVRA applies only when an official is properly designated

6 pursuant to an agency specific statute.

7

The Court also finds Plaintiffs’ reliance on Hooks unpersuasive. There, the Ninth Circuit

8 examined the validity of the appointment of the NLRB’s general counsel, noting it was undisputed

9 that the appointment did not satisfy the conditions of the NRLA’s succession statute. 816 F.3d at

10 855. The court then rejected the plaintiff’s argument that the NLRA’s succession statute was the

11 exclusive means to appoint an acting general counsel. 816 F.3d at 556. The D.C. Circuit and the

12 Supreme Court considered that same appointment in the Southwest General cases. The D.C.

13 Circuit, on which the Hooks court relied, expressly stated “[t]he President cited the FVRA as the

14 authority for [the] appointment.” Sw. General I, 796 F.3d at 71 (emphasis added); see also Sw.

15 General II, 137 S.Ct. at 937. Therefore, it is not clear that that the Hooks court was called upon to

16 decide how to evaluate the applicability of FVRA where an official has purportedly, but not

17 properly, been appointed pursuant to an agency specific statute. Cf. Webster v. Fall, 266 U.S. 507,

18 511 (1925) (“Questions which merely lurk in the record, neither brought to the attention of the

19 court nor ruled upon, are not to be considered as having been so decided as to constitute

20 precedents.”); United States v. Pepe, 895 F.3d 679, 688 (9th Cir. 2018) (“cases are not

21 precedential for propositions not considered”).

22

The Casa de Maryland court recognized the “tension of crediting an agency succession

23 statute as one that provides ‘temporary’ service that can continue indefinitely.” 2020 WL

24 5500165, at *18. Plaintiffs argue the Court should not adopt the court’s reasoning as to why that

25 tension did not warrant ruling in the plaintiffs’ favor. The Court will not repeat that reasoning

26 here, but it does find it persuasive, especially the court’s discussion of why, in the context of the

27 HSA, Congress would have wanted to “instill continuity in the functioning of the agency” in a

28 situation where the three top positions at DHS remained vacant. Id., 2020 WL 5500165, at *1819

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1 20. Accordingly, the Court concludes Plaintiffs have not met their burden to show they are likely

2 to succeed on the merits of their claim that Mr. McAleenan’s and Mr. Wolf’s appointments

3 violated the provisions of the FVRA.

4 C. 5

Plaintiffs Have Met Their Burden to Show the Final Rule Violates Some Procedural and Substantive Requirements of the APA.

6

In addition to allowing a court to set aside agency action that is contrary to law, a court

7 may “hold unlawful and set aside agency action, findings and conclusions found to be - arbitrary,

8 capricious” or “without observance of procedure required by law[.]” 5 U.S.C. §§ 706(2)(A), (D).

9 Plaintiffs raise numerous arguments about why the Final Rule violates procedural and substantive

10 requirements of the APA. The Court concludes they have met their burden to show a likelihood of

11 success on the merits or, in the alternative, serious questions as to a subset of those arguments.

12 The Court expresses no opinion on the arguments it does not reach.

13

“The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is

14 not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the

15 relevant data and articulate a satisfactory explanation for its action including a rational connection

16 between the facts found and the choice made.” Motor Vehicle Mfr. Ass’n of U.S., Inc. v. State

17 Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1989) (internal quotations omitted) (“State Farm”).

18 “[T]he notice required by the APA, or information subsequently supplied to the public, must

19 disclose the thinking that has animated the form of a proposed rule and the data upon which that

20 rule is based.” California ex rel Becerra v. U.S. Dep’t of the Interior, 381 F. Supp. 3d 1153, 1173

21 (N.D. Cal. 2019) (quoting Home Box Office, Inc. v. F.C.C., 567 F.2d 9, 35 (D.C. Cir. 1977)).

22

A rule may be arbitrary and capricious “if the agency has relied on factors which Congress

23 has not intended it to consider, entirely failed to consider an important aspect of the problem,

24 offered an explanation for its decision that runs counter to the evidence before the agency, or is so

25 implausible that it could not be ascribed to a difference in view or the product of agency

26 expertise.” State Farm, 463 U.S. at 43.

27 //

28 // 20

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1

1. Failing to Disclose Data, Relying on Unexplained Data, and Ignoring Data in

the Record. 2

3

Plaintiffs argue that there are procedural flaws in the promulgation of the Final Rule

4 because Defendants failed to “disclose adequate information about the thinking and data on

5 which” the Final Rule is based, in particular the “dramatic change in [USCIS’s] financial

6 condition or its skyrocketing costs.” Reply Br. at 7:8-9. DHS did disclose the “thinking” that

7 animated the fee changes, namely that “[i]f USCIS continues to operate at current fee levels” it

8 would experience a deficit of $1,262.3 million, revised to $1,035.9 million in the Final Rule.

9 NPRM, 84 Fed. Reg. at 62,282; Final Rule, 85 Fed. Reg. at 46,794 & Table 2; see also May IEFA

10 Fee Review at 5.

11

In some instances, if “an agency explains its decision with less than ideal clarity, a

12 reviewing court will not upset the decision on that account if the agency’s path may reasonably be

13 discerned.” Alaska Dep’t of Envtl. Conservation v. E.P.A., 540 U.S. 461, 497 (2004) (internal

14 quotations and citations omitted). Defendants argue the NPRM and the Final Rule clearly explain

15 DHS’s decision, but even if they are less than ideal, argue the path DHS followed can “reasonably

16 be discerned.” For support, Defendants cite a section of the NPRM entitled “Full Cost Recovery.”

17 NPRM, 84 Fed. Reg. at 62,283-284. As in other portions of the NPRM and the Final Rule, DHS

18 states that it may “charge fees at a level that will ensure recovery of all direct and indirect costs

19 associated with providing immigration adjudication and naturalization services.” See, e.g.,

20 NPRM, 84 Fed. Reg. at 62,283; Final Rule, 85 Fed. Reg. at 46,796. That section provides some

21 information about the types of costs DHS can recover through fees. It also states that DHS uses an

22 Activity-Based Costing (“ABC”) model, “distribute[s] costs that are not attributed to, or driven by,

23 specific adjudication and naturalization, services,” and “make[s] additional adjustments to

24 effectuate specific policy objectives.” NPRM, 84 Fed. Reg. at 62,284. While this might provide a

25 general roadmap, nothing in that discussion provides data showing why USCIS’ fiscal situation

26 has become so dire.

27

Plaintiffs also acknowledge that DHS described four general categories of costs that would

28 21

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1 comprise part of UCSIS’ budget. NPRM, 84 Fed. Reg. at 62,286 (citing transfer of funding to

2 ICE, pay and benefit adjustments for on-board staff, pay and benefits for new staff, and net

3 additional costs). Plaintiffs argue that taking those estimates into account, the bulk of the budget

4 remains unexplained. See, e.g., Dkt. No. 27-8, Declaration of Douglas B. Rand (“Rand Decl.”), ¶¶

5 24-25. Defendants have not countered that point with argument or data. Plaintiffs also contend

6 that there is insufficient data in the record to understand how the model actually works and cite to

7 some results that appear inconsistent with that model. Id., ¶¶ 30-34.

8

In support of their argument that the calculations and data underlying the rule are adequate

9 and that Plaintiffs have not overcome the deference owed to DHS’ expertise, Defendants cite to

10 Consumer Electronics Association v. Federal Communications Commission, 347 F.3d 291 (D.C.

11 Cir. 2003). There, the plaintiffs challenged a final rule that required certain televisions and other

12 devices capable of receiving over-the-air television signals to include a tuner that could receive

13 digital signals (“DTV”). The plaintiffs argued the FCC unreasonably assessed the costs of this

14 change to consumers. Id. at 293-94, 302. The court rejected that argument noting that although

15 the FCC’s assessment was not a “model of thorough consideration” it met the minimum

16 requirements for reasoned decision making. Id. at 302. The court reasoned that the FCC had been

17 gathering information about economies of scale for as long as it had been managing the DTV

18 transition and, during the rule making process, asked for comments on the initial projected costs of

19 the requirements of costs over time. Id. The comments submitted provided wide ranging

20 estimates, especially on the question of whether costs would decrease over time. The court

21 acknowledged the evidence before the FCC was “imperfect and uncertain” but determined it was

22 not unreasonable to assume that costs would fall. Therefore, it deferred to the FCC’s “predictive

23 judgment” and upheld the agency’s determination that those costs were not outweighed by the

24 benefits of the proposed rule. Id.

25

According to Defendants, “DHS saw no or limited decreases in the number of benefit

26 requests after its fee adjustments in 2007, 2010, and 2016.” They argue those references provide

27 the data that justified changes to the rule. See, e.g., Final Rule, 85 Fed. Reg. at 46,798, 46,805,

28 46,860, 46,881, 46,882, 46,886. DHS also stated that it “is unable to quantify how many people 22

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1 will not apply [for immigration benefits] because they do not have access to fee waivers,” and

2 stated it “does not know the price elasticity of demand for immigration benefits, nor does DHS

3 know the level at which the fee increases become too high for applicants/petitioners to apply.” Id.

4 at 46,797. DHS then stated it “disagreed that the fees will result in the negative effects the

5 commenters’ suggested” because it “believes that immigration to the United States remains

6 attractive … and that its benefits continue to outweigh the costs noted by the commenters.” Id.

7 DHS concludes that it “believes the price elasticity for immigration services is inelastic and

8 increases in price will have no impact on the demand for these services. This is true for all

9 immigration services impacted by this rule.” Id.

10

Unlike the FCC in Consumer Electronics, it is not immediately evident that DHS has been

11 gathering data over the years about the impact of price increases on applications for immigration

12 benefits. In addition, these statements appear to ignore information presented during the notice

13 and comment period that contradict DHS’ beliefs about price elasticity of demand. See, e.g.,

14 Stretch Decl., ¶ 7, Ex. 6 (Comment Letter dated Dec. 30, 2019 from Naturalization Working

15 Group at 6 (citing Pastor, et al., National Partnership for New Americans, “Nurturing

16 Naturalization: could Lowering the Fee Help?” 17 (Feb. 2013)); Stretch Decl., ¶ 23, Ex. 22

17 (Comment Letter dated Dec. 30, 2019 from National Immigration Law Center (NILC), Ex. A,

18 Comment Letter dated Nov. 27, 2018 at 5 n.4, citing Hainmueller, et al., A randomized controlled

19 design reveals barriers to citizenship for low-income immigrants, at 1 (Jan. 30, 2018); see also

20 Dkt. No. 27-11, Declaration of Manuel Pastor, Jr., ¶ 17. Those facts support the conclusion that

21 Plaintiffs would be likely to succeed on the merits of their APA claim. See State Farm, 463 U.S.

22 at 43 (rule may be arbitrary and capricious where explanation for decision runs counter to

23 evidence in the record).

24

2. Failure to Consider Important Aspects of the Problem.

25

The Defendants’ belief about the price elasticity of demand for immigration services leads

26 to another of Plaintiffs’ larger arguments about why the Final Rule is arbitrary and capricious: the

27 failure to consider important aspects of the problem, including the negative impact the rule will

28 have on low-income immigrant populations. Plaintiffs note that Defendants’ reliance on statistics 23

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1 or data following prior fee increases is not a fair comparison because the Final Rule combines

2 increases with a correspondent decrease in the ability to obtain waivers of fees, a variable not

3 relevant to past fee changes. The Court agrees with that assessment.

4

In addition, at the hearing on this motion, Defendants conceded they did not take the

5 changes to the waiting period for an applicant for asylum to obtain an EAD into consideration

6 when promulgating the changes to the fees for immigration benefits. See also Final Rule, 85 Fed.

7 Reg. at 46,852 (noting that “[n]o asylum seeker may receive employment authorization before 180

8 days have passed since the filing of his or her application” and concluding that “charging asylum

9 seekers for the first work permit [would not create] a conflict between contradictory conditions

10 where aliens cannot work to pay their asylum fees and may incentivize people to work illegally”).

11

Defendants argue that DHS uses data available to it at the time of review and argue that by

12 the time the rule relating to the waiting period was issued, the Final Rule here was in the final

13 clearance process. However, this is not a situation where a rule promulgated by a different agency

14 could impact a rule being proposed by DHS. Rather, these were two rules proposed by the same

15 agency, at the same time, on overlapping topics. Further, DHS published the Final Rule in this

16 case on August 3, 2020. The final rule that impacted the waiting period had been published in

17 June. Thus, DHS’ reference in the Final Rule to a180-day waiting period was, by that time,

18 demonstrably inaccurate. By failing to consider the combined impact of these rules, DHS either

19 failed to consider an important aspect of the problem and disregarded “inconvenient facts” about

20 the combined impact of these rules, Fox, 556 U.S. at 537, or DHS reached a conclusion that defies

21 common sense, cf. Casa de Maryland, 2020 WL 5500165, at *28 (“It is axiomatic that without

22 being able to work, asylum applicants lack the resources to pursue their claims.”). Either situation

23 lends further support to the conclusion that Plaintiffs would be likely to succeed on the merits of

24 this aspect of their challenge to the Final Rule or, in the alternative, that they have shown serious

25 questions going to the merits of that aspect of their APA claims.

26

3. Failure to Justify Policy Shifts.

27

Plaintiffs also argue Defendants failed to adequately justify the shift in policy from the

28 ability-to-pay principle to the beneficiary-pays principle utilized in the Final Rule or to adequately 24

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1 justify the significant departure from past practice with regard to asylum fees. “Agencies are free

2 to change their existing policies as long as they provide a reasoned explanation for the change.”

3 Encino Motorcars, LLC v. Navarro, __ U.S. __, 136 S.Ct. 2117, 2125 (2016).

4

An agency may not, for example, depart from a prior policy sub

silentio or simply disregard rules that are still on the books. … And

5

of course the agency must show that there are good reasons for the

new policy. But it need not demonstrate to a court’s satisfaction that

6

the reasons for the new policy are better than the reasons for the old

one; it suffices that the new policy is permissible under the statute,

7

that there are good reasons for it, and that the agency believes it to

be better, which the conscious change of course adequately

8

indicates. This means that the agency need not always provide a

more detailed justification than what would suffice for a new policy

9

created on a blank slate. Sometimes it must—when, for example, its

new policy rests upon factual findings that contradict those which

10

underlay its prior policy; or when its prior policy has engendered

serious reliance interests that must be taken into account. … It

11

would be arbitrary or capricious to ignore such matters. In such

cases it is not that further justification is demanded by the mere fact

12

of policy change; but that a reasoned explanation is needed for

disregarding facts and circumstances that underlay or were

13

engendered by the prior policy.

14 FCC v. Fox Television Studios, Inc., 556 U.S. 502, 515-16 (2009) (“Fox”); see also Organized

15 Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 966 (9th Cir. 2015) (quoting Fox, 556 U.S. at

16 515-16).

17

The record establishes that DHS was aware and acknowledged that it was shifting from the

18 ability-to-pay principle to the beneficiary-pays principle. See Final Rule 85 Fed. Reg. at 46,799

19 (“[I]n this final rule DHS is emphasizing the beneficiary-pays principle of user fees.”), 46,806-07

20 (acknowledging “change from its previous approach” and stating “[i]n prior years, USCIS fees

21 have given significant weight to the ability-to-pay principle[.]”) DHS also noted that shift in

22 policy as it related to naturalization fees, stating:

23

[t]he fee for [Form N-400] is increasing more than for most other

forms because DHS has historically held the fee … below the

24

estimated cost to USCIS of adjudicating the form in recognition of

the social value of citizenship. Immigration services provide

25

varying levels of social benefit and previously DHS accounted for

some aspect of the social benefit of specific services through

26

holding fees below their cost. However, in this final rule DHS is

emphasizing the beneficiary-pays principle of user fees. 27

28 Final Rule, 85 Fed. Reg. at 46,799. DHS also acknowledged the fact that the decision to impose a 25

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1 fee to apply for asylum was a change in policy. Therefore, DHS was aware that it was changing

2 positions. That “conscious change of course adequately indicates” an agency’s belief that a new

3 policy is better. Fox, 556 U.S. at 515. DHS’s belief that the beneficiary-pays principle is a better

4 policy also is reflected in its statements that it believes the policy is more “equitable.” See, e.g.,

5 Final Rule, 85 Fed. Reg. at 46,806 (“DHS … believes these changes will make USCIS’ fee

6 schedule more equitable for all immigration benefits by requiring fees to be paid mostly by those

7 who receive and benefit from the applicable service.”), 46,819 (same), 46,890 (same).

8

However, at least five Plaintiffs attest that they have structured their service models based

9 on the ability-to-pay principle, engendering reliance interests in its continued application. See,

10 e.g., Benito Decl. (ICRR), ¶¶ 29-30; Byrne Decl. (IRC), ¶ 34; Byun Decl. (ACRS), ¶¶ 15, 25;

11 Chenoweth Decl. (CLINIC), ¶¶ 23, 33, 37; Rodgers Decl. (ILRC), ¶¶ 19-25. Defendants argue

12 that “at most” they were only required to consider applicant’s interests, rather than any reliance

13 interests Plaintiffs might have, because Plaintiffs are outside the relevant zone of interests served

14 by Section 1356(m). The Court is not persuaded.

15

First, Fox does not limit its discussion of reliance interests to interests that are “directly

16 affected” by proposed action; it requires a more detailed justification when a prior policy has

17 “engendered serious reliance interests that must be taken into account.” Fox, 556 U.S. at 515.

18 Second, despite multiple rounds of briefing on various issues and oral argument, Defendants have

19 not argued that Plaintiffs lack standing to sue. The zone of interests test cited by Defendants “is

20 not meant to be especially demanding;” it will deny a plaintiff a right of review where those

21 interests “are so marginally related to or inconsistent with the purposes implicit in the statute that

22 it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Sec. Indus.

23 Ass’n, 479 U.S. 388, 399 (1987). The record shows Plaintiffs directly or indirectly provide

24 services to individuals who will be impacted by the changes in the fee schedule and the fee waiver

25 policy, making Plaintiffs interests more than “marginally related” to statutory and regulatory

26 provisions governing those issue.

27

For that reason, and for the reasons discussed in Section D, infra, regarding irreparable

28 harm, Plaintiffs’ reliance interests cannot be discounted, even if Defendants may not be required to 26

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1 align the fees with those interests. Cf. Dep’t of Homeland Sec. v. Regents of the Univ. of Ca., __

2 U.S. __, 140 S.Ct. 1891, 1914 (2020) (noting that reliance interests of individuals indirectly

3 impacted by DACA program were “noteworthy” but not necessarily “dispositive” concerns and

4 stating “DHS may determine … that other interests and policy concerns outweigh any reliance

5 interests,” but DHS failed to make that “difficult decision” by ignoring reliance interests”).

6

Even if Plaintiffs’ reliance interests are not pertinent to this inquiry, DHS was not writing

7 on a “blank slate” with regard to fee increases, the changes to fee waivers, and the asylum fee.

8 Therefore, the Court concludes that “a more detailed justification” for policy changes that

9 contradict prior findings or had engendered reliance interests is required. Fox, 556 U.S. at 515-16.

10 For example, Defendants do not provide a persuasive explanation of why it is more likely that

11 those with legitimate claims for asylum are more likely to have $50 than those who do not; nor do

12 they supply data to support that proposition. DHS also acknowledged there is no quantitative

13 benefit from the fee. See Final Rule, 85 Fed. Reg. at 46,894.

14

With respect to the fees associated with naturalization, Plaintiffs also argue that the shift in

15 policy conflicts with congressional intent. Plaintiffs cite to an appropriations bill that stated

16 “USCIS is expected to continue the use of fee waivers for applicants who can demonstrate an

17 inability to pay the naturalization fee. USCIS is also encouraged to consider whether the current

18 naturalization fee is a barrier to naturalization for those earning between 150 percent and 200

19 percent of the federal poverty guidelines, who are not currently eligible for a fee waiver.” DHS

20 Appropriations Bill, 2019 H.R. Rep. No. 115-948, at 61-62 (Sept. 12, 2018).

21

In large part, DHS responded to such concerns by reference to the arguments about price

22 elasticity of demand and its belief that the change is necessary to fully recover costs of

23 adjudication. For the reasons discussed above, that explanation is not supported by adequate data.

24 The Court also finds, at this stage, that Defendants’ deviations from a beneficiary-pays principle

25 are inconsistent and conflict with the comments presented on the effects of these changes on low-

26 income and vulnerable immigrant populations. See, e.g., Final Rule, 85 Fed. Reg. at 46,841

27 (deviating from the beneficiary-pays principle on Form I-360, because would “place unreasonable

28 burden” on religious organizations petitioning for their workers); Final Rule, 85 Fed. Reg. at 27

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1 46,850 and NPRM, 84 Fed. Reg. at 62,313 (deviating from beneficiary-pays principle regarding

2 foreign adoptions because “it would be contrary to humanitarian and public interests to impose”

3 full fee “on prospective adoptive parents seeking to adopt a child from another country”).

4

4. Reliance on Factors Congress did not Intend DHS to Consider.

5

In addition to the issues on the asylum fees discussed above, Plaintiffs argue the decision

6 to impose the asylum related fees is arbitrary and capricious because Defendants stated during the

7 NPRM that the fee was intended to deter frivolous applications. NPRM, 84 Fed. Reg. at 62,320;

8 see also Stretch Reply Decl., ¶ 7 Ex. 40 (Regulatory Impact Analysis (“RIA”), July 22, 2020 at

9 150 (“DHS set the fee so that it would not require an alien an unreasonable amount of time to

10 save, may generate some revenue to offset costs, and may deter some filings.”).) Defendants

11 argue that throughout the Final Rule they made clear their intent is to generate some revenue to

12 cover costs and that “DHS does not intend to discourage meritorious asylum claims or unduly

13 burden any applicant, group of applications, or their families.” Final Rule, 85 Fed. Reg. at 46,844;

14 see also. Id. at 46,850, 46,882. Although the language used in the NRPM and the RIA does not

15 appear in the Final Rule, that purpose can reasonably be inferred from DHS’s statement that “it

16 did not intend to discourage meritorious asylum claims[.]” Final Rule, 85 Fed. Reg. at 46,844

17 (emphasis added).

18

For each of the reasons discussed above, the Court concludes Plaintiffs have demonstrated

19 a likelihood of success on the merits or, in the alternative, have demonstrated serious questions

20 going to the merits their challenges to the Final Rule under the APA.

21 D. 22

Plaintiffs Have Met Their Burden to Show Irreparable Harm. In order to obtain an injunction Plaintiffs must show it is likely – rather than possible – that

23 they will suffer irreparable harm. Winter, 555 U.S. at 20. “Organizations may establish

24 irreparable harm by showing ‘ongoing harms to their organizational missions.’” Barr, 964 F.3d at

25 854 (quoting Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013)). Defendants

26 argue Plaintiffs “rely on economic harm[,]” which is not irreparable. Opp. Br. at 14:21. In the

27 context of APA claims, “controlling circuit precedent establishes otherwise.” Barr, 964 F.3d at

28 854; see also East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1280 (9th Cir. 2020) 28

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1 (“Trump II”).12 “[E]conomic harms may be irreparable because plaintiffs are otherwise unable to

2 recover monetary damages.” Barr, 964 F.3d at 854.

3

In Barr, the plaintiffs presented un-refuted evidence that the rule at issue “harm[ed] their

4 mission of representing and assisting asylum seekers and results in a substantial loss of

5 organizational funding” and jeopardized funding streams. Id. The court reasoned that because the

6 rule rendered “a substantial portion of plaintiffs’ clients categorically ineligible for asylum, it

7 directly threatens their standard caseload, and consequently, their caseload dependent funding.”

8 Id. The Ninth Circuit, therefore, affirmed the district court’s conclusion that the plaintiffs

9 “established a sufficient likelihood of irreparable harm through diversion of resources and the non-

10 speculative loss of substantial funding from other sources.” Id. (quoting East Bay Sanctuary

11 Covenant v. Barr, 385 F. Supp. 3d 922, 957 (N.D. Cal. 2019)). The plaintiffs in Trump II also

12 presented evidence that showed they would “suffer a significant change in their programs and a

13 concomitant loss of funding.” 950 F.3d at 1280. The Court held “[b]oth constitute irreparable

14 injuries: the first is an intangible injury; and the second is economic harm for which the [plaintiffs]

15 have no vehicle for recovery.” Id.

16

Plaintiffs submitted unrebutted evidence that, as part of their overall missions, they assist

17 low-income immigrants with applications for immigration benefits, including naturalization and

18 asylum. Benito Decl., ¶¶ 5, 13; Byrne Decl., ¶¶ 3-4, 6, 27; Byun Decl., ¶¶ 3-5, 14; Chenowith

19 Decl., ¶¶ 2-3, 5, 32; Smith Decl., ¶¶ 3-7; Rodgers Decl., ¶¶ 2, 24; Salas Decl., ¶¶ 2, 14; Stolz

20 Decl., ¶¶ 3, 33. Plaintiffs attest that fee waivers, which from the record are tied to the ability-to-

21 pay principle that was reflected in prior fee changes, are critical to fulfilling their mission.

22 According to Plaintiffs, the combination of the changes to fee waivers and the fee increases will

23 either increase their own costs or make existing business models unsustainable. See, e.g., Benito

24 Decl., ¶¶ 11, 27, 29-30; Byrne Decl., ¶¶ 27-29, 34; Byun Decl., ¶¶ 15-16, 20, 24-25; Chenowith

25

26

12 Plaintiffs also present evidence that the Final Rule threatens the existence of certain programs and that if they are unable to meet deliverables the good will and reputation they have

27

established with donors will suffer. See, e.g., Byun Decl., ¶ 26, Smith Decl., ¶ 37. Defendants do not present evidence to refute those assertions, which further support the Court’s conclusion that

28

Plaintiffs would suffer irreparable harm in the absence of an injunction. See, e.g., hiQ Labs., Inc. v. LinkedIn Corp., 938 F.3d 985, 993 (9th Cir. 2019).

29

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1 Decl., ¶¶ 17, 22-23, 26-27, 33, 36; Smith Decl., ¶¶ 19, 21, 24, 27, 29, 35; Rodgers Decl., ¶¶ 12, 19,

2 21, 23, 27; Salas Decl., ¶¶ 17, 20, 23; Stolz Decl., ¶¶ 7, 24, 30-31, 33.) Like the plaintiffs in Barr

3 and Trump II, each Plaintiff attests that the Final Rule has and will continue to impact their ability

4 to meet funding obligations, has and will continue to cause them to divert existing resources, or

5 that both scenarios have and will continue to occur. Benito Decl., 13-15, 26, 39-44; Byrne Decl.,

6 ¶¶ 14, 30, 35-37, 39; Byun Decl., ¶¶ 6-7, 16, 25-30; Chenowith Decl., ¶¶ 11, 39, 40, 42-43, 46, 48,

7 54, 56; Smith Decl., ¶¶ 8, 21, 27, 33, 37-42; Rodgers Decl., ¶¶ 5-6, 10, 23-26, 28-32; Salas Decl.,

8 ¶¶ 3, 18-20, 23-24, 28; Stolz Decl., ¶¶ 4, 11-15, 28, 30, 34-39. CHIRLA also attests that its

9 members either will not apply for or will be forced to wait to apply for benefits, impacting family

10 unification. Salas Decl., ¶¶ 29-31, 34; cf. Smith Decl., ¶¶ 32-33 (noting similar harms to

11 population that EBSC serves). In addition, Plaintiffs filed suit within three weeks after DHS

12 published the Final Rule. Although “not dispositive”, it does suggest “urgency and impending

13 irreparable harm.” Trump II, 950 F.3d at 1280.

14

Defendants did not address the Ninth Circuit’s holdings in either Barr or Trump II in their

15 briefs, and their arguments on the factual record here do not provide a basis for the Court to

16 meaningfully distinguish those cases. Defendants’ arguments at the hearing on the issue of

17 irreparable harm were similarly unpersuasive. Accordingly, the Court concludes that Plaintiffs

18 have established a likelihood of irreparable harm before the Court reaches a decision on the merits

19 based on their showing of “non-speculative loss of substantial funding from other sources” and

20 their showing of the need to alter their programs. See Barr, 964 F.3d at 1280; Trump II, 950 F.3d

21 at 1280.

22 E. 23

Plaintiffs Have Met Their Burden to Show the Balance of Equities and Public Interest Weighs in Favor of an Injunction.

24

Because the government is a party, the third and fourth Winter factors merge. Barr, 964

25 F.3d at 854. “[T]he government and the public have an interest in the efficient administration of

26 the immigration laws at the border. … Control over matters of immigration is a sovereign

27 prerogative, largely within the control of the executive and the legislature.” Trump II, 950 F.3d at

28 1281 (internal quotations, citations and alterations omitted). Plaintiffs do not suggest those 30

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1 interests would not extend to the efficient administration of applications for immigration benefits.

2 Defendants also argue they do not, as Plaintiffs contend, have a “surplus,” and DHS reported only

3 that USCIS would not deplete its carryover balance. Defendants also argue that if the Court

4 enjoins the rule USCIS will forego millions of dollars of revenue each day, which will lead to

5 funding cuts, furloughs, and further delays in processing applications.

6

The public would have an interest in reducing or relieving burdens on the adjudication of

7 immigration benefits. Cf. Barr, 964 F.3d at 855 (“On the side of the government, the public has

8 an interest in relieving burdens on the asylum system and the efficient conduct of foreign

9 affairs.”). However, the weight the Court will ascribe to those factors depends, in part, on the

10 validity of the Final Rule. Trump II, 950 F.3d at 1282. For the reasons set forth in Sections B and

11 C, the Court has determined Plaintiffs are likely to succeed on the merits on at least some portions

12 of their APA claims that the Final Rule is invalid. For that reason, and for reasons discussed

13 below, the Court places less weight on this factor. Id.

14

Plaintiffs persuasively argue that the public interest would be served by enjoining or

15 staying the effective date of the Final Rule because if it takes effect, it will prevent vulnerable and

16 low-income applicants from applying for immigration benefits, will block access to humanitarian

17 protections, and will expose those populations to further danger. Plaintiffs also cite comments and

18 research that argue the public at large would be harmed if the Final Rule goes into effect because it

19 will negatively impact tax revenues and would delay individuals seeking to naturalize from

20 participating in essential civic activities like voting, service in public office, and jury service.

21 Defendants do not counter those arguments.

22

Finally, in light of the issues raised regarding the validity of Mr. McAleenan’s and Mr.

23 Wolf’s appointments, the Court concludes the public has an interest in avoiding overreach of

24 Executive power with respect to appointments that require the informed consent of the Legislative

25 branch. Cf. Barr, 964 F.3d at 855 (affirming district court’s conclusion that public interest is

26 served by “ensuring that statutes enacted by their representatives are not imperiled by executive

27 fiat,” where court found the rule at issue was “contrary to the asylum statute and contravene[d]

28 clear congressional intent to give effect to our international treaty obligations”); Trump II, 950 31

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1 F.3d at 1281 (“[T]he public has an interest in ensuring that the “statutes enacted by [their]

2 representatives” are not imperiled by executive fiat.”) (quoting East Bay Sanctuary Covenant v.

3 Trump, 932 F.3d 742, 779 (9th Cir. 2018) (“Trump I”), in turn quoting Maryland v. King, 567 U.S.

4 1301, 1301 (2012) (Roberts, C.J., in chambers)).

5

The Court concludes the Plaintiffs have met their burden to show the public interest and

6 the balance of the equities tip sharply in favor of enjoining implementation and staying the

7 effective date of the Final Rule.

8 F. 9

The Scope of the Injunctive Relief. Plaintiffs argue the Final Rule should be enjoined or stayed in its entirety. Defendants

10 argue Plaintiffs would not be “entitled to injunctive relief with respect to any aspect of the rule

11 where they have not substantiated a specific harm[.]” Opp. Br. at 15:6-17. Neither party directly

12 addressed the geographic scope of any remedy to be imposed. The Court “recognizes that the

13 proper scope of injunctions against agency action is a matter of intense and active controversy.”

14 Innovation Law Lab v. Wolf, 951 F.3d 986, 990 (9th Cir. 2020) (staying portion of decision

15 granting nationwide injunction and limiting injunction to “geographical boundaries of the Ninth

16 Circuit”).

17

The Court has “considerable discretion in crafting suitable equitable relief[.]” Trump II,

18 950 F.3d at 1282. Injunctive relief “should be no more burdensome to the defendant than

19 necessary to provide complete relief to the plaintiffs before the court.” Id. (citation omitted);

20 accord Barr, 964 F.3d at 855-56. An injunction need not, however, “affect only the parties in the

21 suit.” Bresgal v. Brock, 843 F.2d 1163, 1169-70 (9th Cir. 1987). A “broad” injunction may be

22 “appropriate when necessary to remedy a plaintiff’s harm.” Barr, 964 F.3d at 855. Plaintiffs have

23 shown the Final Rule interferes with their organizational missions and is likely to cause them to

24 lose funding. In Barr, the court concluded that “[c]omplete relief for plaintiff must remedy both

25 harms,” and it determined that the plaintiffs did “not operate in a fashion that permits neat

26 geographic boundaries.” Id. at 856 (quoting Trump II, 950 F.3d at 1282-83). The Court concludes

27 the same is true in this case. The Court also has received amicus briefs from a wide array of local

28 and state governments arguing in favor of setting aside the Final Rule. The Final Rule also 32

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1 touches on immigration policy, and “cases implicating immigration policy have a particularly

2 strong claim for uniform, nationwide relief.” Id. at 857 (internal quotations and citations omitted,

3 and citing cases). The Court concludes the record demonstrates that universal relief is

4 warranted.13

5

The Court is mindful of the fact that the Final Rule contains a severability provision. Final

6 Rule, 85 Fed. Reg. at 46,921 (citing 8 C.F.R. § 106.6). In Casa de Maryland, the court cited to a

7 similar severability provision to show why a more limited injunction was appropriate. 2020 WL

8 5500165, at *33 (noting severability provision created presumption that DHS “did not intend the

9 validity of the [remaining rules] … to depend on the validity of the … offensive provision”).

10 Because of the number of fees and policies addressed by the Final Rule and taking into

11 consideration the severability provision, the Court directed Plaintiff to submit a statement of the

12 fees that would most impact the populations they serve. See Dkt. No. 95. The Court has carefully

13 considered whether it should limit its stay to the forms covered in that list, the imposition of the

14 asylum fee, and the changes to the fee exemptions and waivers.

15

However, the Court has determined that Plaintiffs are likely to show that Mr. McAleenan’s

16 and Mr. Wolf’s appointments impact the validity of the Final Rule in its entirety. In addition,

17 many of the flaws identified in its discussion of why Plaintiffs are likely to succeed on the merits

18 of their arguments on the other procedural and substantive violations of the APA also impact fees

19 and forms beyond those identified by Plaintiffs. In the context of the APA, when such findings

20 are made “the ordinary result is that the rules are vacated – not that their application to the

21 individual petitioners is proscribed.” Trump II, 950 F.3d at 1283 (internal quotations and citations

22 omitted); accord Barr, 964 F.3d at 856-57 (“[v]acatur of an agency rule prevents its application to

23 all those who would otherwise be subject to its operation) (citing cases).

24

Accordingly, the Court concludes it is appropriate to stay the effective date of the Final

25 Rule pending resolution of the merits in this case. See Washington v. U.S. Dep’t of Homeland

26

27

13 The Casa de Maryland declined to issue a nationwide injunction on the basis that it was bound by a recent Fourth Circuit decision that the plaintiffs did not meaningfully distinguish,

28

Casa de Maryland v. Trump, 971 F.3d 220 (4th Cir. 2020). See Casa de Maryland, 2020 WL 5500165, at *32.

33

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1 Sec., 408 F. Supp. 3d 1191, 1212-1213, 1223 (E.D. Wash. 2019).

2 G. 3

Security. Pursuant to Federal Rule of Civil Procedure 65(c), the Court finds in its discretion that it is

4 not proper to impose any security for the preliminary injunction because (1) despite the assertion

5 that USCIS “would continue to forgo millions of dollars of revenue each day” if the Final Rule is

6 stayed or enjoined, Defendants did not request a bond; and (2) there is a significant public interest

7 at stake. See, e.g., East Bay Sanctuary Covenant v. Trump, 349 F. Supp. 3d 838, 868-69 (N.D.

8 Cal. 2018) (citing Johnson v. Couturier, 472 F.3d 1067, 1086 (9th Cir. 2009) (finding that the

9 district court retains discretion “as the amount of the security required, if any”)).

10 H. 11

The Court Denies the Government’s Request for a Brief Administrative Stay. In general, a motion to stay pending appeal must be presented to the district court in the

12 first instance. Fed. R. App. P. 8(a)(1)(A). Because the Final Rule was scheduled to go into effect

13 a week after the hearing on the motion, the Court posed a question to the parties about their

14 positions on a stay of the ruling pending appeal. At that time, Defendants’ counsel noted that they

15 were not the decision makers on whether to appeal or whether Defendants would seek a stay.

16 Therefore, they asked that if the Court’s ruling was adverse to them, it impose a brief

17 administrative stay to allow that process to occur. A stay beyond October 2, 2020, would allow

18 the Final Rule to go into effect, thereby altering the status quo. For that reason, the Court denies

19 Defendants’ request for a brief administrative stay. If Defendants do file an appeal, nothing in this

20 Order shall preclude them from filing a motion to stay before this Court.

21

CONCLUSION

22

For the foregoing reasons, the Court GRANTS Plaintiffs’ motion for a preliminary

23 injunction and a stay of the effective date of the Final Rule. Accordingly,

24

1. Pursuant to 5 U.S.C. section 705 the Court STAYS implementation and the

25 effective date of of USCIS Immigration Fee Schedule and Changes to Certain Other Immigration

26 Benefit Request Requirements, 85 Fed. Reg. 46,788 (Aug. 3, 2020) (the “Final Rule”) in its

27 entirety pending final adjudication of this matter.

28

2. Pursuant to Federal Rule of Civil Procedure 65, Defendants Wolf, in his official

34

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1 capacity under the title of Acting Secretary of DHS; Cuccinelli, in his official capacity under the

2 title of Senior Official Performing the Duties of the Deputy Secretary of DHS; DHS; and USCIS,

3 and all persons acting under their direction, ARE ENJOINED from implementing or enforcing the

4 Final Rule or any portion thereof.

5

3. This preliminary injunction and stay shall take effect immediately and shall remain

6 in effect pending trial in this action or further of this Court.

7

4. The posting of security is waived.

8

IT IS SO ORDERED.

9 Dated: September 29, 2020

10

______________________________________

11

JEFFREY S. WHITE United States District Judge

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