Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 1 of 23

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7 UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

SEATTLE, WASHINGTON 9

10 NORTHWEST IMMIGRANT RIGHTS PROJECT and THE ADVOCATES FOR

Case No.

11 HUMAN RIGHTS;

COMPLAINT FOR DECLARATORY AND 12 Marvella ARCOS-PEREZ, Carmen OSORIO- INJUNCTIVE RELIEF AND MANDAMUS

13 BALLESTEROS, and W.H., Individually and

on Behalf of All Others Similarly Situated,

CLASS ACTION

14

Plaintiffs, 15

16

v.

17 UNITED STATES CITIZENSHIP AND

18

IMMIGRATION SERVICES; UNITED STATES DEPARTMENT OF HOMELAND

19 SECURITY; Leon RODRIGUEZ, Director, U.S. Citizenship and Immigration Services;

20 Jeh JOHNSON, Secretary, U.S. Department of

21 Homeland Security,

22 Defendants.

23

24

1. Plaintiffs challenge Defendants’ policies and practices of unlawfully delaying

25 adjudication of applications for employment authorization and refusing to issue interim

26 employment authorization. Plaintiffs include individual noncitizens entitled to employment
27 authorization (“Individual Plaintiffs”) and the class members they seek to represent, as well as
28

CLASS ACTION COMPLAINT – 1

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 (206) 957- 8628

Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 2 of 23

1 the Northwest Immigrant Rights Project (“NWIRP”) and The Advocates for Human Rights 2 (“Organizational Plaintiffs”), non-profit legal services organizations in Washington State and

3 Minnesota, respectively, that serve low-income immigrants.

4

2. Employment authorization yields economic benefits not only for eligible

5 noncitizens, but also for the U.S. economy. Individuals who can prove their eligibility to work
6

7 in the United States earn higher wages than those who do not. Workers who earn higher wages

8 are better able to provide for themselves and their families, pay more in federal and state taxes,

9 and have more disposable income to spend on goods and services produced by U.S. businesses.
10 Delays by the federal government in providing employment authorization to eligible noncitizens
11 undermine these goals. In fact, employers may be forced to lay off these workers to avoid the
12
13 risk of fines imposed by Immigration and Customs Enforcement (“ICE”). Moreover, if an

14 asylum applicant does not have an extension of work authorization timely adjudicated and

15 continues to work without such authorization, he or she accrues unlawful presence which may

16 have potentially devastating consequences for future immigration to the United States.
17

18

3. When hiring any employee, U.S. employers must verify his or her eligibility to

19 work by examining certain documents that, for noncitizens, commonly include an employment

20 authorization document (“EAD”) issued by the Department of Homeland Security (“DHS”). If

21 an employee presents a time-limited EAD at the time of hire, the employer must reverify the
22 employee’s work authorization prior to its expiration, or the employer may be subject to civil
23
24 fines for continuing to employ the individual.

25

4. To obtain an EAD, an eligible individual generally must submit a Form I-765,

26 Application for Employment Authorization, to Defendant United States Citizenship and
27 Immigration Services (“USCIS”), an agency within Defendant United States Department of
28

CLASS ACTION COMPLAINT – 2

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 (206) 957- 8628

Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 3 of 23

1 Homeland Security. By regulation, USCIS must either adjudicate the I-765 application within a 2 fixed time period or issue interim employment authorization. In the case of Individual Plaintiffs,

3 Defendants have done neither, leaving them in a precarious situation, unable to work legally,

4 and at risk of losing their jobs and related benefits, as well as their driver’s licenses in some

5 states.
6

7

5. Under the regulations, USCIS is required to adjudicate all applications for

8 employment authorization, except initial EAD application based on asylum applications, within

9 90 days. Initial EAD applications based on an asylum application are to be adjudicated within

10 30 days.
11 6.
12

By regulation, USCIS’s failure to timely adjudicate EAD applications “will result

13 in the grant of an employment authorization document for a period not to exceed 240 days.”

14 8 C.F.R. § 274a.13(d) (entitled “Interim Employment Authorization”) (emphasis added). Yet,

15 USCIS regularly fails to timely adjudicate EAD applications, and never issues interim

16 employment authorization.
17

18

7. An August 18, 2006 Interoffice Memorandum from Michael Aytes, then-Acting

19 Director, Domestic Operations USCIS, to Regional Directors, Service Center Directors,

20 National Benefits Center Director and District Directors, affirms the mandatory requirements (at

21 page 3): “USCIS is required to adjudicate a pending Form I-765 within 90 days from the date of
22 receipt. 8 C.F.R. 274a.13(d). Failure to complete the adjudication within this time frame
23
24 requires the Service to grant an employment authorization document for a period not to exceed

25 240 days.”

26

8. The USCIS instructions for the I-765 Application for Employment Authorization

27 provide the agency’s definition of “Interim EAD”:
28

CLASS ACTION COMPLAINT – 3

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 (206) 957- 8628

Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 4 of 23

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Interim EAD: An EAD issued to an eligible applicant when USCIS has failed to adjudicate an application within 90 days of a properly filed EAD

2

application, or within 30 days of a properly filed initial EAD application

based on an asylum application filed on or after January 4, 1995. The

3

interim EAD will be granted for a period not to exceed 240 days and is

4

subject to the conditions noted on this document.

5 Form I-765 Instructions at 1 (August 6, 2014).

6

9. The interim employment authorization process is intended to allow people to

7 work lawfully while they await final adjudication of a pending EAD application. In
8 promulgating the regulation, the former Immigration and Naturalization Service (“legacy INS”)
9

10 (now USCIS) recognized “the importance of expeditious processing of employment

11 authorization applications.” 52 Fed. Reg. 16216 (May 1, 1987).

12

10. Despite this clear mandate, Defendants routinely violate the interim employment

13 authorization rules by consistently failing to issue interim employment authorization to EAD
14 applicants, including Individual Plaintiffs, who have waited longer than the requisite period. In
15

16 addition, Defendants provide incorrect and conflicting information to applicants who call the

17 agency’s 1-800 customer service number or visit USCIS offices for Infopass appointments.

18 Defendants’ failure to issue interim employment authorization eviscerates the very purpose of

19 the regulation.
20

21

11. Defendants’ policies and practices of failing to adjudicate employment

22 authorization applications within the required time period, and failing to issue interim

23 employment authorization to Individual Plaintiffs who have waited longer than the required
24 time period, violate the governing regulations and the Administrative Procedure Act (APA). 25
12. Plaintiffs seek declaratory and injunctive relief to remedy Defendants’ unlawful 26 27 failure to timely adjudicate EAD applications and their unlawful withholding of interim

28 employment authorization in violation of 8 C.F.R. §§ 274a.13(d), 274a.13(a)(2), 208.7(a), and

CLASS ACTION COMPLAINT – 4

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 (206) 957- 8628

Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 5 of 23

1 the Form I-765 instructions. Plaintiffs seek this Court’s intervention to compel the timely 2 adjudication of EAD applications or, alternatively, the timely issuance of interim employment

3 authorization to all noncitizens who have waited the relevant period.

4

JURISDICTION AND VENUE

5 13. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. § 1331, as a civil
6

7 action arising under the laws of the United States, and the Mandamus and Venue Act of 1962,

8 28 U.S.C. § 1361. Declaratory judgment is sought pursuant to 28 U.S.C. §§ 2201-02. The

9 United States has waived its sovereign immunity pursuant to 5 U.S.C. § 702.
10 14. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e) because
11 Defendants are officers or employees of the United States or agencies thereof acting in their
12
13 official capacities. A substantial part of the events or omissions giving rise to the claims

14 occurred in this district, and Plaintiff NWIRP resides in this district as do many of NWIRP’s

15 clients who are putative class members. In addition, no real property is involved in this action.

16 PARTIES
17

18

15. Plaintiff Northwest Immigrant Rights Project is a non-profit immigration legal

19 services organization founded in 1984. Each year, NWIRP provides direct legal assistance in

20 immigration matters to over 10,000 low-income people from over 150 countries, speaking over
21 60 different languages and dialects. NWIRP serves the community from four offices in 22
Washington State in Seattle, Granger, Tacoma, and Wenatchee. NWIRP has clients who are 23
24 noncitizens entitled to employment authorization and challenges Defendants’ policies and

25 practices that unlawfully prevent its clients from legally working in the United States by failing

26 to adjudicate EAD applications within the required time period and denying them interim
27 employment authorization. Defendants’ practices and policies frustrate NWIRP’s mission of
28

CLASS ACTION COMPLAINT – 5

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 (206) 957- 8628

Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 6 of 23

1 assisting immigrants in obtaining legal status and the right to lawfully work in the United States. 2 Defendants’ policies and practices have caused NWIRP to divert scarce resources to assisting

3 and advising clients whose EAD applications have been delayed, and who have not received
4 interim employment authorization. 5
16. Plaintiff The Advocates for Human Rights (“The Advocates”) is a non-profit 6 7 human rights organization that provides free legal services to low-income immigrants seeking

8 political asylum. Since 1984, The Advocates has provided free legal advice and representation

9 before federal immigration agencies, immigration courts, and U.S. courts of appeal to
10 noncitizens who have fled persecution in their home countries. Primarily serving asylum
11 seekers in Minnesota, North Dakota, and South Dakota, The Advocates is the largest provider of
12
13 asylum-related legal services in the region. The Advocates’ three staff attorneys regularly file

14 applications for employment authorization on behalf of their own asylum clients and, in some

15 cases, on behalf of asylum clients represented by volunteer attorneys. The Advocates 16
challenges Defendants’ policies and practices that unlawfully prevent its clients from legally 17 18 working in the United States by failing to adjudicate EAD applications within the required time
19 period and denying them interim employment authorization. Defendants’ practices and policies

20 frustrate The Advocates’ primary mission of helping its clients to apply for asylum.

21 Defendants’ policies and practices have caused The Advocates to divert scarce resources to
22 assisting and advising clients whose EAD applications have been delayed, and who have not
23
24 received interim employment authorization.

25

17. Individual Plaintiffs are all noncitizens eligible to obtain work authorization in the

26 United States, who have filed EAD applications that have been pending with USCIS beyond the 27

28

CLASS ACTION COMPLAINT – 6

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 (206) 957- 8628

Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 7 of 23

1 regulatory deadline for adjudication, and who would be eligible to work lawfully in the United 2 States but for Defendants’ unlawful policies and practices.

3

18. Plaintiff Marvella ARCOS-PEREZ is a noncitizen who currently resides in

4 Tacoma, Washington. Ms. ARCOS-PEREZ’s EAD application has been pending with USCIS 5
for more than ninety days from USCIS’s receipt of the application on January 12, 2015, which 6
7 obligates USCIS to issue interim employment authorization to Ms. ARCOS-PEREZ in

8 accordance with 8 C.F.R. § 274a.13(d). Ms. ARCOS-PEREZ did not receive a Request for

9 Evidence on the EAD or underlying application and did not fail to appear for or request to

10 reschedule a biometrics appointment. Defendants have not yet issued Ms. ARCOS-PEREZ
11 interim employment authorization.
12

13

19. Plaintiff Carmen OSORIO-BALLESTEROS is a noncitizen who currently resides

14 in Rockford, Illinois. Ms. OSORIO-BALLESTEROS’ EAD application has been pending with

15 USCIS for more than ninety days from USCIS’s receipt of the application on December 29, 16
2014, which obligates USCIS to issue interim employment authorization to Ms. OSORIO17 18 BALLESTEROS in accordance with 8 C.F.R. § 274a.13(d). Ms. OSORIO-BALLESTEROS did
19 not receive a Request for Evidence on the EAD or underlying application and completed her

20 biometrics requirement on the scheduled date and time. Defendants have not yet issued Ms.

21 OSORIO-BALLESTEROS interim employment authorization.
22 20. Plaintiff W.H. is a noncitizen asylum applicant who currently resides in St. Louis,
23
24 Missouri. W.H.’s EAD application has been pending with USCIS for more than thirty days from

25 USCIS’s receipt of the application on January 9, 2015, which obligates USCIS to issue interim

26 employment authorization to W.H. in accordance with 8 C.F.R. §§ 274a.13(a)(2), 208.7(a), and
27 the Form I-765 instructions. W.H. did not receive a Request for Evidence on the EAD or
28

CLASS ACTION COMPLAINT – 7

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 (206) 957- 8628

Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 8 of 23

1 underlying application and has not missed or asked to reschedule a biometrics appointment. 2 Defendants have not yet issued W.H. interim employment authorization.

3

21. Defendant United States Department of Homeland Security is an executive

4 agency of the United States. As of March 1, 2003, DHS has been the agency responsible for 5
implementing the Immigration and Nationality Act (“INA”), including provisions relating to 6
7 employer I-9 requirements.

8

22. Within DHS, Defendant USCIS is the agency responsible for timely adjudicating

9 EAD applications and issuing interim employment authorization when it does not adjudicate

10 EAD applications within the required period, as provided in 8 C.F.R. §§ 274a.13(d),
11 274a.13(a)(2), 208.7(a), and the Form I-765 instructions.
12

13

23. Defendant Jeh JOHNSON is the Secretary of DHS and has ultimate responsibility

14 for the administration and enforcement of the INA and all other laws relating to the immigration

15 of noncitizens. He is sued in his official capacity. 16
24. Defendant Leon RODRIGUEZ is the Director of USCIS and has ultimate 17 18 responsibility for the timely adjudication of EAD applications and the issuance of interim
19 employment authorization when EAD applications are not adjudicated within the required

20 period as provided in 8 C.F.R. §§ 274a.13(d), 274a.13(a)(2), 208.7(a), and the Form I-765

21 instructions. He is sued in his official capacity.

22 STATUTORY AND REGULATORY BACKGROUND
23

24

25. When establishing the employment verification system in 1986, Congress

25 differentiated among: (a) documents that establish both employment authorization and identity;

26 (b) documents that establish only employment authorization; and (c) documents that establish
27 only identity. For documents evidencing only employment authorization, Congress identified a
28

CLASS ACTION COMPLAINT – 8

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 (206) 957- 8628

Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 9 of 23

1 “social security account number card” without any restriction as to employment authorization 2 and “other documentation … which the Attorney General [now the DHS Secretary] finds, by

3 regulation, to be acceptable for purposes of this section.” 8 U.S.C. § 1324a(b)(1)(C). Pursuant to
4 this authority, DHS regulations identify eight categories of acceptable documents, including an 5
“employment authorization document issued by the Department of Homeland Security.” 6 7 8 C.F.R. §§ 274a.2(b)(1)(v)(C)(1)-(8). Other regulations define which foreign nationals must

8 separately apply for employment authorization. 8 C.F.R. §§ 274a.12(a), (c); 274a.13(a).

9

26. Applicants for EADs must file Form I-765 with required supporting documents

10 and specify the classification that entitles them to employment authorization. For example, an
11 applicant for adjustment of status to lawful permanent resident may apply for an EAD under
12

13 8 C.F.R. § 274a.12(c)(9). Upon verifying that the underlying application for adjustment of

14 status remains pending, USCIS must adjudicate most EAD applications within ninety days from

15 the date of receipt or issue interim employment authorization. 8 C.F.R. § 274a.13(d). 16
27. Initial EAD applications filed by asylum applicants are subject to a different 17 18 timetable. An asylum applicant may submit an EAD application at any point after 150 days
19 have elapsed since the date USCIS received his or her complete asylum application. 8 C.F.R.

20 § 208.7(a)(1). USCIS must adjudicate the EAD application within thirty days of the date of

21 filing. Id. In recognition of the economic hardship asylum seekers may face during the asylum
22 application process, this regulation enables them to work lawfully while they wait for their cases
23
24 to be decided, if their cases are delayed more than 180 days through no fault of their own.

25 8 C.F.R. §§ 208.7(a)(1), 1208.7(a)(1); see also 8 U.S.C. § 1158(d)(2). Asylum EAD renewals,

26 however, are controlled by the 90-day rule of 8 C.F.R. § 274a.13(d). See 8 C.F.R. § 208.7(d). 27

28

CLASS ACTION COMPLAINT – 9

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 (206) 957- 8628

Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 10 of 23

1

28. Pursuant to 8 U.S.C. § 1324a(a), employers cannot employ lawfully, or continue

2 to employ, an individual who the employer knows is not work authorized. The employer must

3 view certain documents and complete an I-9 form based on these documents to meet the

4 requirements of the law, and to have an affirmative defense to an alleged “knowing hire”

5 violation. 8 U.S.C. § 1324a(a)(3).
6

7

29. For more than a quarter-century, the immigration regulations have mandated the

8 automatic provision of interim employment authorization to specified noncitizens if the agency

9 fails to timely adjudicate their EAD applications. Promulgated on May 1, 1987, 8 C.F.R.

10 § 274a.13(d) initially provided for interim employment authorization if the EAD application
11 was not adjudicated within sixty days of receipt. It read:
12

13

d) Interim employment authorization. The district director shall adjudicate

the application for employment authorization within 60 days from the date

14

of receipt of the application by the Service or the date of receipt of a

returned application by the Service. Failure to complete the adjudication

15

within 60 days will result in the grant of interim employment

16

authorization for a period not to exceed 120 days. Such authorization

shall be subject to any conditions noted on the employment authorization

17

document. However, if the district director adjudicates the application

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prior to the expiration date of the interim employment authorization and denies the individual's employment authorization application, the

19

employment authorization granted under this section shall automatically

terminate.

20

21 See 8 C.F.R. § 274a.13(d), added by 52 Fed. Reg. 16216 (May 1, 1987) (emphasis added). The

22 regulation also applied to initial asylum EAD applications. See 8 C.F.R. §§ 274a.13(a), (d)

23 (1988); see also Ramos v. Thornburgh, 732 F.Supp. 696, 701 (E.D. Texas 1989).

24

30. The preamble to the regulation makes clear that legacy INS’s (now USCIS’s)

25 obligation to issue interim employment authorization is mandatory and intended to remedy
26

27 agency delay in adjudicating EAD applications:

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CLASS ACTION COMPLAINT – 10

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 (206) 957- 8628

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The final rule requires INS to adjudicate an application for employment authorization within sixty days from the date of the receipt by INS of the

2

application or the date of the receipt of a returned application. Any

application for employment authorization not adjudicated within sixty

3

days will result in an automatic grant to the applicant of interim

4

employment authorization for a period of up to 120 days. In promulgating this rule, INS recognizes the importance of expeditious

5

processing of employment authorization applications. As in the case of

the rule regarding employment authorizations for certain nonimmigrant

6

extension applicants, this regulation was developed in response to public

7

comment.

8 52 Fed. Reg. 16216 (emphasis added).

9

31. In late 1994, legacy INS extended the waiting period for interim employment

10 authorization issuance from 60 days to 90 days but exempted initial asylum-based EAD
11 applications from this period, requiring the agency to adjudicate initial asylum EAD
12

13 applications within 30 days. 59 Fed. Reg. 62284 (Dec. 5, 1994) (effective Jan. 1, 1995).

14

32. The current regulation, with a recent amendment promulgated this year,1 reads:

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(d) Interim employment authorization. USCIS will adjudicate the

16

application within 90 days from the date of receipt of the application,

except in the case of an initial application for employment authorization

17

under § 274a.12(c)(8), which is governed by paragraph (a)(2) of this

18

section, and § 274a.12(c)(9) insofar as it is governed by §§ 245.13(j) and 245.15(n) of this chapter. Failure to complete the adjudication within 90

19

days will result in the grant of an employment authorization document

for a period not to exceed 240 days. Such authorization will be subject to

20

any conditions noted on the employment authorization document.

21

However, if USCIS adjudicates the application prior to the expiration date of the interim employment authorization and denies the individual's

22

employment authorization application, the interim employment

authorization granted under this section will automatically terminate as of

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the date of the adjudication and denial.

24 8 C.F.R. § 274a.13(d) (emphasis added). 25

26

27

28 1

DHS’s most recent amendment, which will take effect on May 26, 2015, added the clause

“except as described in 8 C.F.R. 214.2(h)(9)(iv).” 80 Fed. Reg. 10284, 10312 (Feb. 25, 2015).

CLASS ACTION COMPLAINT – 11

Northwest Immigrant Rights Project

615 Second Ave., Ste. 400

Seattle, WA 98104

(206) 957- 8628

Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 12 of 23

1

33. The agency’s interpretation of the regulations is spelled out in the instructions to

2 the I-765 Application for Employment Authorization, which describes how EAD applicants

3 become eligible for interim employment authorization once the EAD adjudication deadline has

4 passed: 5 6 7 8 9

Interim EAD: An EAD issued to an eligible applicant when USCIS has failed to adjudicate an application within 90 days of a properly filed EAD application, or within 30 days of a properly filed initial EAD application based on an asylum application filed on or after January 4, 1995. The interim EAD will be granted for a period not to exceed 240 days and is subject to the conditions noted on this document.

10 Form I-765 Instructions at 1 (August 6, 2014).

11

34. Through 8 C.F.R. § 274a.13(d), legacy INS (now USCIS) acknowledged that

12 adjudications of EAD applications have been and continue to be subject to extensive delays.
13 The interim employment authorization regulation is intended to cure harm arising from these
14 delays. Defendants’ failure to grant interim employment authorization in accordance with this
15
16 regulation leaves EAD applicants at risk of being unable to support themselves and their

17 families as a result of lost jobs or interruptions in employment. In some cases, the lack of

18 employment authorization can result in the loss of driver’s licenses, as well as work-related
19 medical and other benefits. Moreover, Defendants’ actions nullify Individual Plaintiffs’
20
21 regulatory right to interim employment authorization while their EAD applications are pending.

22

35. Since 2013, the American Immigration Lawyers Association (AILA) has raised

23 the issue repeatedly with representatives from USCIS Service Center Operations as well as

24 USCIS headquarters. AILA chapters also have raised the issues of EAD delays in the course of

25 their local liaison efforts with USCIS field offices.
26

27

36. At a meeting with USCIS headquarters on April 16, 2015, agency representatives

28 indicated that “USCIS no longer produces interim EADs.”

CLASS ACTION COMPLAINT – 12

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 (206) 957- 8628

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1

FACTUAL ALLEGATIONS

2

37. Individual Plaintiffs are suffering and will continue to suffer serious and

3 irreparable harm due to Defendants’ unlawful failure to timely adjudicate EAD applications and

4 to issue interim employment authorization, in violation of 8 C.F.R. §§ 274a.13(d),

5 274a.13(a)(2), 208.7(a), and the Form I-765 instructions.
6

7

38. On January 12, 2015, Plaintiff Marvella ARCOS-PEREZ filed an application for

8 renewal of her employment authorization, which had been previously granted in conjunction

9 with an application for asylum. USCIS failed to adjudicate the EAD application by April 12,
10 2015, the ninetieth day after filing. At the time of this filing, 40 days have passed since the day
11 that Defendants became obligated to issue Ms. ARCOS-PEREZ interim employment
12
13 authorization under 8 C.F.R. § 274a.13(d). Defendants have not complied with the regulation

14 and have not issued an interim employment authorization document.

15

39. Ms. Arcos is a widow who resides with and provides support for her twenty-four

16 year old daughter, who has an intellectual disability. When Ms. Arcos was granted work
17

18 authorization after filing her asylum application, she was hired to work at a mattress company.

19 Even with her income, however, Ms. Arcos relies on her family to provide some of the financial

20 support she and her daughter require. The inability to lawfully work will cause a substantial and

21 irreparable hardship to Ms. Arcos and her daughter. Ms. Arcos has no financial savings to rely

22
on in place of earned income if she loses her job. 23

24

40. On December 29, 2014, Plaintiff Carmen OSORIO-BALLASTEROS filed an

25 application for renewal of her employment authorization in conjunction with a request for

26 renewal of Deferred Action for Childhood Arrivals (DACA). USCIS failed to adjudicate the
27 EAD application by March 29, 2014, the ninetieth day after filing. At the time of this filing, 54
28

CLASS ACTION COMPLAINT – 13

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 (206) 957- 8628

Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 14 of 23

1 days have passed since Defendants’ obligation to issue Ms. OSORIO-BALLASTEROS interim 2 employment authorization arose under 8 C.F.R. § 274a.13(d). Defendants have not complied

3 with the regulation and have not issued an interim authorization document.

4

41. On April 10, 2015, after Ms. OSORIO-BALLASTEROS’ applications had been

5 pending over 100 days, her lawyer requested case assistance from the USCIS Ombudsman’s
6

7 Office. On May 15, 2015, her lawyer received an e-mail from the USCIS Ombudsman’s Office

8 stating that Ms. OSORIO-BALLASTEROS’ pending applications were “actively being

9 reviewed.”
10 42. When Ms. OSORIO-BALLASTEROS’ EAD expired on April 21, 2015, she lost
11 her full-time job, which she needed to support herself and her three minor U.S. citizen children.
12
13 Because she does not have a valid EAD and is not a U.S. citizen or lawful permanent resident,

14 she is not eligible to apply for unemployment benefits. She is no longer able to pay her utility

15 bills and is not sure how she is going to pay for needed medical tests. 16
43. On January 9, 2015, Plaintiff W.H., who at that time had employment 17 18 authorization based on an approved Temporary Protected Status application, filed an application
19 for employment authorization in conjunction with an asylum application that had been pending

20 since March 12, 2014. USCIS acknowledged receipt of W.H.’s EAD application on January 9,

21 2015. USCIS failed to adjudicate the EAD application by February 9, 2015, the thirtieth day

22
after filing. 23

24

44. W.H.’s lawyer has called USCIS’s NCSC hotline twice to inquire about the status

25 of W.H.’s EAD. On February 25, 2015, W.H.’s lawyer was told to expect a response by mail

26 within 15 days. On March 3, 2015, W.H.’s lawyer was told that the “application [wa]s currently
27 pending adjudication [but they] regret [they] are unable to provide [W.H.’s lawyer] with a
28

CLASS ACTION COMPLAINT – 14

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 (206) 957- 8628

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1 completion date at this time.” To date, W.H.’s lawyer has not received a response by mail from 2 USCIS.

3

45. W.H.’s prior EAD expired on March 31, 2015. Due to USCIS’s failure to grant

4 him interim employment, he has lost his Missouri driver’s license. 5
46. Defendants’ untimely adjudication of EAD applications and failure to issue 6
7 interim employment authorization frustrate NWIRP’s mission, which is to assist immigrants in

8 obtaining legal status and the right to lawfully work in the United States. Defendants’ policies

9 and practices have caused NWIRP to divert scarce resources to assisting and advising clients
10 whose EAD applications have been delayed, and who have not received interim employment
11 authorization. NWIRP clients are understandably anxious about not receiving timely
12
13 adjudication of EAD applications, and NWIRP staff must respond to client calls and walk-ins,

14 explaining the EAD process, the delay, and the lack of remedies. NWIRP staff make calls to the

15 1-800 customer service number, set up InfoPass appointments, and email the USCIS Service
16 Centers regarding delayed EADs. NWIRP is not compensated by its clients for this diversion of
17 18 resources to address delayed EAD adjudication.

19

47. Defendants’ delays in adjudicating EAD applications and their failure to issue

20 interim employment authorization also frustrate The Advocates’ mission of providing legal

21 services to asylum seekers in Minnesota, North Dakota, and South Dakota. Defendants’
22 policies and practices have caused The Advocates to divert scarce staff resources to resolving
23
24 and addressing EAD adjudication delays. In addition to fielding calls from and meeting with

25 worried clients, staff attorneys spend considerable time calling and e-mailing USCIS, working

26 with employers to hold jobs open until their clients’ EADs are renewed, intervening with the
27 state on driver’s license issues, and working with agency liaison and congressional offices to try
28

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Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 16 of 23

1 to obtain EADs for their clients. These tasks require significant staff time, forcing the 2 Advocates to divert very limited resources that should be used to screen, place and support

3 asylum cases.

4

48. There are no administrative remedies for Plaintiffs to exhaust. No other remedy

5 exists for Plaintiffs to compel Defendants to comply with the APA, the INA and 8 C.F.R.
6

7 §§ 274a.13(d), 274a.13(a)(2), 208.7(a), and the I-765 instructions.

8

CLASS ALLEGATIONS

9

49. Individual Plaintiffs bring this action on behalf of themselves and all others who

10 are similarly situated pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). A class
11 action is proper because this action involves questions of law and fact common to the class, the
12

13 class is so numerous that joinder of all members is impractical, the claims of the Individual

14 Plaintiffs are typical of the claims of the class, the Individual Plaintiffs will fairly and

15 adequately protect the interests of the class, and Defendants have acted on grounds that apply
16 generally to the class, so that final injunctive relief or corresponding declaratory relief is
17 18 appropriate with respect to the class as a whole.

19

50. Individual Plaintiffs seek to represent the following nationwide class:

20

Noncitizens who have filed or will file an application for employment

21

authorization that was not or will not be adjudicated within the required regulatory timeframe, comprising those who:

22

1. Have filed or will file an application for employment authorization

23

under 8 C.F.R. § 274a.13, and who are entitled or will be entitled

24

to interim employment authorization under 8 C.F.R. § 274a.13(d) but who have not received or will not receive employment

25

authorization or interim employment authorization (the “90-Day

Subclass”); or 26

27

2. Have filed or will file an application for employment authorization

under 8 C.F.R. § 208.7, and who are entitled or will be entitled to

28

employment authorization under 8 C.F.R. § 208.7(a)(1), but who

CLASS ACTION COMPLAINT – 16

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Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 17 of 23

1

have not received or will not receive employment authorization or interim employment authorization (the “30-Day Subclass”).

2 51. The class is so numerous that joinder of all members is impracticable. Plaintiffs
3

4 are not aware of the precise number of potential class members because Defendants are in the

5 best position to identify such persons. Upon information and belief, there are thousands of

6 persons for whom Defendants have failed or will fail to timely adjudicate EAD applications and

7 from whom Defendants have withheld or will withhold interim employment authorization in
8 violation of 8 C.F.R. §§ 274a.13(d), 274a.13(a)(2), 208.7(a), and the I-765 Instructions.
9

10

52. Questions of law and fact common to the proposed class that predominate over

11 any questions affecting only the individually named Plaintiffs include whether Defendants

12 violate the APA and/or 8 C.F.R. §§ 274a.13(d), 274a.13(a)(2), 208.7(a), and the I-765

13 Instructions by failing to timely adjudicate EAD applications and failing to issue interim
14 employment authorization.
15

16

53. Individual Plaintiffs’ claims are typical of the claims of the proposed class.

17 Defendants have failed to timely adjudicate EAD applications and failed to issue interim

18 employment authorization to the named Plaintiffs, as well as the proposed class, despite their
19 regulatory entitlement to these documents and their right under the APA to compel agency
20
21 action unlawfully withheld.

22

54. The Individual Plaintiffs will fairly and adequately protect the interests of the

23 proposed class members because they seek relief on behalf of the class as a whole and have no
24 interest antagonistic to other class members. 25
55. The Individual Plaintiffs also are represented by competent counsel with 26 27 extensive experience in complex class actions and immigration law.

28

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Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 18 of 23

1

56. Defendants have acted on grounds generally applicable to the proposed class,

2 thereby making appropriate final declaratory and injunctive relief.

3

DECLARATORY AND INJUNCTIVE RELIEF ALLEGATIONS

4

57. An actual and substantial controversy exists between the proposed class and the

5 Defendants as to their respective legal rights and duties. Plaintiffs contend that Defendants’
6

7 actions violate Plaintiffs’ rights and the rights of the proposed class.

8

58. Defendants’ policy and practice of failing to timely adjudicate EAD applications

9 and failing to issue interim employment authorization to individuals who are entitled to receive
10 it has caused and will continue to cause irreparable injury to Plaintiffs and proposed class
11 members. Individual Plaintiffs and proposed class members are not authorized to work unless
12
13 they have received and are in possession of valid, unexpired EADs. Plaintiffs have no adequate

14 remedy at law.

15

59. Interim employment authorization for Individual Plaintiffs and the proposed class

16 has been or will be withheld due to Defendants’ policies and practices challenged herein.
17

18 Defendants’ actions constitute final agency action for the purpose of the APA, 5 U.S.C. § 701,

19 et seq.

20

60. The INA and applicable regulations provide for no administrative appeal from the

21 withholding of interim employment authorization. 8 C.F.R. § 274a.13(c). Accordingly,

22
Plaintiffs have exhausted their administrative remedies. 23

24

61. Under 5 U.S.C. §§ 702 and 704, Plaintiffs and proposed class members have

25 suffered a “legal wrong” and have been “adversely affected or aggrieved” by agency action for

26 which there is no adequate remedy in a court of law. 27

28

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Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 19 of 23

1

62. Based on the foregoing, the Court should grant declaratory and injunctive relief

2 under 28 U.S.C. §§ 2201, 2202, 5 U.S.C. § 702, and the Mandamus and Venue Act of 1962, 28

3 U.S.C. § 1361.

4

CAUSES OF ACTION

5 COUNT ONE
6

Violation of 8 C.F.R § 274a.13(d) (mandamus claim on behalf of Plaintiffs and the 90-Day

7

Subclass)

8

63. Plaintiffs and the proposed 90-Day Subclass have a clear and certain claim to

9 have their EAD applications adjudicated in accordance with the Immigration and Nationality
10

11 Act and governing regulations.

12

64. Defendants have a ministerial, non-discretionary duty to adjudicate EAD

13 applications, other than initial asylum EAD applications, within 90 days.
14 65. Defendants have a ministerial, non-discretionary duty to issue interim
15 employment authorization in the event that Defendants fail to adjudicate an EAD application
16
17 within 90 days.

18

66. Plaintiffs and the 90-Day Subclass have no adequate remedy at law.

19

67. By failing to timely adjudicate EAD applications and failing to issue interim

20 employment authorization to Individual Plaintiffs and the proposed 90-Day Subclass,
21

22 Defendants violate 8 C.F.R. § 274a.13(d).

23

68. Under the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361, the Court may

24 order the Defendants to timely adjudicate Individual Plaintiffs’ and the proposed class
25 members’ EAD applications, and to issue interim employment authorization, in compliance 26
with 8 C.F.R. § 274a.13(d). 27

28

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Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 20 of 23

1

COUNT TWO

2 Regulatory Violations (mandamus claims on behalf of Plaintiffs and 30-Day Subclass)

3

69. Plaintiffs and the proposed 30-Day Subclass have a clear and certain claim to

4 have their initial asylum EAD applications adjudicated and approved in accordance with the
5 Immigration and Nationality Act and governing regulations.
6 70. Defendants have a ministerial, non-discretionary duty to adjudicate initial asylum
7
8 EAD applications within 30 days.

9

71. Defendants have a ministerial, non-discretionary duty to issue interim

10 employment authorization in the event that Defendants fail to adjudicate an initial asylum EAD

11 application within 30 days.
12

13

72. Plaintiffs and the proposed 30-Day Subclass have no adequate remedy at law.

14

73. By failing to timely adjudicate EAD applications and failing to issue interim

15 employment authorization to Individual Plaintiffs and the proposed 30-Day Subclass,

16 Defendants violate 8 C.F.R. §§ 208.7(a), 274a.13(a)(2), 274a.13(d), and the I-765 Instructions,

17 which have the force of law and are incorporated into the regulations by 8 C.F.R. § 103.2(a)(1).
18

19

74. Under the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361, the Court may

20 order the Defendants to timely adjudicate Individual Plaintiffs’ and the proposed class

21 members’ EAD applications and to issue interim employment authorization in compliance with

22 8 C.F.R. §§ 208.7(a)(1), 274a.13(a)(2), 274a.13(d), and the I-765 Instructions.

23 COUNT THREE
24

25

Violation of Administrative Procedure Act

26

(on behalf of Plaintiffs and 90-Day Subclass)

27

75. Defendants’ failure to timely adjudicate Plaintiffs’ and proposed 90-Day Subclass

28 members’ EAD applications or, where the regulatory time period has elapsed, issue interim

CLASS ACTION COMPLAINT – 20

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Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 21 of 23

1 employment authorization, constitutes unlawfully withheld or unreasonably delayed agency 2 action, is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with

3 the law in violation of the Administrative Procedure Act, 5 U.S.C. § 701, et seq.

4

76. Plaintiffs and the proposed 90-day Subclass have suffered final agency action

5 within the meaning of 5 U.S.C. § 704 and have exhausted all available remedies.
6

7

77. Plaintiffs and the proposed 90-day Subclass have a right to relief under 5 U.S.C.

8 § 702.

9

COUNT FOUR

10

Violation of Administrative Procedure Act

11 (on behalf of Plaintiffs and 30-day Initial Asylum EAD Subclass)
12 78. Defendants’ failure to timely adjudicate Plaintiffs’ and proposed 30-Day Subclass
13

14 members’ initial asylum EAD applications or, where the regulatory time period has elapsed, to

15 issue interim employment authorization, constitutes unlawfully withheld or unreasonably

16 delayed agency action, and is arbitrary and capricious, an abuse of discretion, and otherwise not

17 in accordance with the law in violation of the Administrative Procedure Act, 5 U.S.C. § 701, et
18 seq.
19

20

79. Plaintiffs and the proposed 30-day Subclass have suffered final agency action

21 within the meaning of 5 U.S.C. § 704 and have exhausted all available remedies.

22

80.

23 § 702.
24

25

Plaintiffs and the proposed 30-day Subclass have a right to relief under 5 U.S.C. REQUEST FOR RELIEF

26

WHEREFORE, Plaintiffs request that this Court grant the following relief:

27

(1) Assume jurisdiction over this matter;

28

(2) Certify the case as a class action, as proposed herein and in the accompanying

CLASS ACTION COMPLAINT – 21

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Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 22 of 23

1 motion for class certification;

2

(3) Appoint all individual Plaintiffs as representatives of the class;

3

(4) Appoint Northwest Immigrant Rights Project, the American Immigration Council,

4 Scott D. Pollock and Associates, P.C., Gibbs Houston Pauw, and Van Der Hout, Brigagliano &

5 Nightingale, LLP, as class counsel pursuant to Federal Rule of Civil Procedure 23(g);
6

7

(5) Declare Defendants’ failure to timely adjudicate Plaintiffs’ and proposed class

8 members’ EAD applications or, where the regulatory time period has elapsed, to provide them

9 with interim employment authorization, to be arbitrary and capricious, an abuse of discretion,
10 and in violation of the applicable regulations;
11 (6) Order Defendants to comply with 8 C.F.R. § 208.7(a) by adjudicating initial
12
13 asylum EAD applications within 30 days of receipt;

14

(7) Order Defendants to comply with 8 C.F.R. § 274a.13(d) by adjudicating all EAD

15 applications, other than initial asylum EAD applications, within 90 days of receipt; 16
(8) Order Defendants to comply with 8 C.F.R. § 208.7(a) and 8 C.F.R. 17 18 §§ 274a.13(a)(2), (d) and the I-765 Instructions by immediately issuing interim employment
19 authorization to Individual Plaintiffs and all proposed class members in cases where the

20 regulatory time period has elapsed;

21

(9) Award reasonable costs and attorneys’ fees and expenses pursuant to the Equal

22
Access to Justice Act, 28 U.S.C. § 2412(d), 5 U.S.C. § 504, or any other applicable law; and 23

24

(10) Grant such other and further relief as the Court deems just and proper.

25

26

27

28

CLASS ACTION COMPLAINT – 22

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 (206) 957- 8628

Case 2:15-cv-00813-JLR Document 1 Filed 05/22/15 Page 23 of 23

1 Dated this 22nd day of May, 2015.

2

/s/ Christopher Strawn

.

3 Chris Strawn, WSBA No. 32243 Northwest Immigrant Rights Project

4 615 Second Avenue, Suite 400

Seattle, WA 98104 5 (206) 957-8611

6 Melissa Crow (pro hac vice admission pending)

7 Leslie K. Dellon (pro hac vice admission pending)

American Immigration Council 8 1331 G Street, NW, Suite 200

9 Washington, DC 20005 (202) 507-7523
10

11

/s/ Devin T. Theriot-Orr Devin Theriot-Orr, WSBA 33995

12

/s/ Robert Gibbs.

Robert H. Gibbs, WSBA 5932

13

/s/ Robert Pauw

14

Robert Pauw, WSBA 13613 Erin Cipolla, CA Bar No. 264016

15 Gibbs Houston Pauw 1000 Second Avenue, Suite 1600
16 Seattle, WA 98104-1003

17 (206) 682-1080

18 Scott D. Pollock (pro hac vice admission pending) Christina J. Murdoch (pro hac vice admission pending)
19 Kathryn R. Weber (pro hac vice admission pending) 20 Scott D. Pollock & Associates, P.C.
105 W. Madison, Suite 2200 21 Chicago, IL 60602
(312) 444-1940 22
23 Marc Van Der Hout (pro hac vice admission pending) Van Der Hout, Brigagliano & Nightingale, LLP
24 180 Sutter St., Fifth Floor San Francisco, CA 84104
25 (415) 981-3000
26

27

28

CLASS ACTION COMPLAINT – 23

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 Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 1 of 27

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10

WILMAN GONZALEZ ROSARIO,

CASE NO. C15-0813JLR

et al., 11

ORDER

Plaintiffs,

12

v.

13

UNITED STATES CITIZENSHIP

14

AND IMMIGRATION SERVICES,

et al.,

15 Defendants.

16

17

I. INTRODUCTION

18

Before the court are two motions: (1) a partial motion to dismiss (3d MTD (Dkt.

19 # 88)) by Defendants United States Citizenship and Immigration Services (“USCIS”);

20 United States Department of Homeland Security (“DHS”), which oversees USCIS; James

21 McCament, Acting Director of USCIS, in his official capacity; and John Kelly, Secretary

22 of DHS, in his official capacity (collectively, “Defendants”); and (2) a motion for class

ORDER - 1

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 2 of 27

1 certification (3d MCC (Dkt. # 82)) by Plaintiffs Wilman Gonzalez-Rosario, L.S., K.T.,

2 A.A., Karla Diaz Marin, Antonio Machic Yac, Faridy Salmon, Jaimin Shah, and W.H.

3 (collectively, “Plaintiffs”).1 The court has considered the motions, the briefing filed in

4 support thereof and opposition thereto, the relevant portions of the record, and the

5 applicable law. In addition, the court held oral argument on July 13, 2017. Considering

6 itself fully advised, the court GRANTS Defendants’ partial motion to dismiss and

7 GRANTS in part and DENIES in part Plaintiffs’ motion for class certification.

8

II. BACKGROUND

9

Through this injunctive class action, Plaintiffs seek to compel USCIS to abide by

10 regulatory deadlines for adjudicating applications for employment authorization

11 documents (“EADs”) filed by noncitizens. (See generally Am. Compl. (Dkt. # 58).)

12 A. Regulatory Structure

13

For an alien to be eligible to work in the United States, the alien must file Form

14 I-765 with DHS and obtain an EAD. (Am. Compl. ¶¶ 3-4; Instructions for Application

15 for Employment Authorization (“I-765 Instructions”), U.S. Customs and Immigration

16 Services (Nov. 4, 2015), available at https://www.uscis.gov/sites/default/files/files/form/

17 i-765instr.pdf (last accessed July 18, 2017).2 USCIS is responsible for adjudicating Form

18 //

19

1 The court directs the Clerk to substitute James McCament for former Director of USCIS

Leon Rodriguez and John Kelly for former Secretary of DHS Jeh Johnson. See Fed. R. Civ. P.

20 25(d). Furthermore, pursuant to the court’s October 5, 2016, order, the court DIRECTS the Clerk to terminate as plaintiffs Northwest Immigrant Rights Project, The Advocates for Human

21 Rights, Marvella Arcos, and Carmen Osorio. (See 10/5/16 Order (Dkt. # 80) at 17-18, 22-36.)

2 Plaintiffs incorporate the I-765 Instructions into their amended complaint by reference. 22 (See Am. Compl. ¶ 8.)

ORDER - 2

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 3 of 27

1 I-765. (Am. Compl. ¶ 4.) When Plaintiffs filed this lawsuit, federal regulations provided

2 a 90-day timeline—with certain exceptions—for USCIS to adjudicate EAD applications.3

3 See 8 C.F.R. §§ 274a.13(d) (effective until Jan. 16, 2017). The regulations excepted

4 individuals seeking an initial EAD based on an underlying asylum applicationfrom the

5 90-day timeline. See id. (excluding from the 90-day deadline “initial application[s] for

6 employment authorization under 8 CFR 274a.12(c)(8)”); cf. id. §§ 274a.12(c)(8)

7 (covering aliens who have “filed a complete application for asylum or withholding of

8 deportation or removal pursuant to 8 CFR part 208”), 208.7(a)(1) (providing a timeline

9 for adjudicating asylum-based EAD applications).

10

Throughout this case, the regulations have conferred discretion on USCIS to

11 approve or deny EAD applications unless they are filed by an applicant for asylum. See 8

12 C.F.R. § 274a.13(a)(1); 8 C.F.R. § 274a.13(a)(1) (effective until Jan. 16, 2017); see also

13 Guevara v. Holder, 649 F.3d 1086, 1091-92 (9th Cir. 2011) (“[T]he authorization for

14 such employment is not mandated.”); Kaddoura v. Gonzales, No. C06-1402RSL, 2007

15 WL 1521218, at *5 (W.D. Wash. May 21, 2007) (“While plaintiff is correct that as an

16 ‘alien who has filed an application for adjustment of status’ he is within the class of

17 aliens ‘eligible’ for an EAD, under the plain language 8 C.F.R. §§ 274a.12 and 274a.13,

18 his eligibility for an EAD resides within the discretion of USCIS and there is no appeal

19 //

20 3 The applicable regulations have changed since Plaintiffs filed this lawsuit, and those

21

changes are important to the motions before the court. Compare 8 C.F.R. § 274a.13(d) (effective until January 16, 2017), with 8 C.F.R. § 274a.13(d) (eliminating the prior version’s 90-day

22

adjudication deadline and automatic issuance of an interim EAD). Except where parenthetically noted, the court’s citations to the Code of Federal Regulations are to the current version.

ORDER - 3

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 4 of 27

1 from the denial of the application.”). However, the prior version of the regulation used

2 mandatory language when discussing the timeline for adjudicating such applications:

3

USCIS will adjudicate the application within 90 days from the date of receipt

of the application. . . . Failure to complete the adjudication within 90 days

4

will result in the grant of an employment authorization document for a period

not to exceed 240 days. Such authorization will be subject to any conditions

5

noted on the employment authorization document. However, if USCIS

adjudicates the application prior to the expiration date of the interim

6

employment authorization and denies the individual’s employment

authorization application, the interim employment authorization granted

7

under this section will automatically terminate as of the date of the

adjudication and denial.

8

8 C.F.R. § 274a.13(d) (effective until Jan. 16, 2017). In sum, if USCIS had not

9

adjudicated an EAD application within 90 days of receipt, the regulation required USCIS

10

to issue one or more interim EADs for 240 days or until USCIS adjudicated the EAD

11

application, whichever came first.

12

Effective January 17, 2017, DHS amended the regulations that imposed the 90-day

13

deadline. The regulations no longer set a 90-day timeline for adjudicating EAD

14

applications. See 8 C.F.R. § 274a.13(d); Retention of EB-1, EB-2, and EB-3 Immigrant

15

Workers & Program Improvements Affecting High-Skilled Nonimmigrant Workers

16

(“Retention of Immigrant Workers”), 81 Fed. Reg. 82,398, 82,455 (Nov. 18, 2016)

17

(codified at 8 C.F.R. §§ 204-05, 214, 245, 274a). Instead, they provide for automatic

18

extension of certain types of EADs upon the filing of an EAD renewal application. See 8

19

C.F.R. § 274a.13(d); Retention of Immigrant Workers, 81 Fed. Reg. at 82,455-57.

20

A different regulation governs asylum seekers applying for an initial EAD, who

21

the court will refer to as initial asylum EAD applicants, and that regulation has not

22

ORDER - 4

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 5 of 27

1 changed during the course of this litigation.4 See 8 C.F.R. §§ 208.7(a)(1), 274a.12(c)(8),

2 274a.13(d); see also Carballo v. Meissner, No. C00-2145, 2000 WL 1741948, at *2

3 (N.D. Cal. Nov. 17, 2000) (describing the process for an asylum applicant seeking an

4 EAD). Section 274a.13(a)(2) mandates that USCIS adjudicate initial asylum EAD

5 applications “in accordance with [Section] 208.7.” 8 C.F.R. § 274a.13(a)(2). After filing

6 an application for asylum, an individual typically must wait 150 days before filing an

7 initial EAD application, but there are exceptions to this rule. Id. § 208.7(a)(1). For

8 instance, if asylum is granted within 150 days, the asylee may apply for an EAD

9 immediately thereafter. Id. Additionally, if asylum is denied at any point, the applicant

10 becomes ineligible for an EAD. Id.

11

Assuming an individual’s “asylum clock” runs for at least 150 days without delay

12 caused by the applicant, she may apply for an EAD while her asylum application pends.

13 Id. §§ 208.7(a)(1)-(2), (4). USCIS “shall have 30 days from the date of filing of the

14 request [sic] employment authorization to grant or deny that application,” except that in

15 no event may USCIS grant the EAD prior to 180 days after the noncitizen files her

16 asylum application. Id. § 208.7(a)(1); see also 8 U.S.C. § 1158(d)(2). Section 208.7 is

17 silent about whether there is any consequence if USCIS fails to meet this 30-day

18 adjudication deadline. See 8 C.F.R. § 208.7(a)(1); cf. id. § 274a.13(d) (effective until

19 //

20 //

21

4 DHS did not amend 8 C.F.R. § 208.7, which governs initial asylum EAD applicants, as

22

part of the January 2017 amendments. See generally Retention of Immigrant Workers, 81 Fed. Reg. 82,398.

ORDER - 5

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 6 of 27

1 Jan. 16, 2017) (providing for interim EADs for other EAD applicants if USCIS has not

2 decided their EAD applications within 90 days).

3 B. Factual Allegations

4

Based on this regulatory structure, Plaintiffs seek to certify a nationwide class

5 consisting of two subclasses. (See generally 3d MCC.) Each Plaintiff seeks to serve as a

6 class representative of one of the two putative subclasses. (See Am. Compl. ¶¶ 89-90; 3d

7 MCC at 5.) Plaintiffs propose the following class definition:

8

Noncitizens who have filed or will file applications for employment

authorization that were not or will not be adjudicated within the regulatory

9

timeframe, namely:

10

(1) 90 days, for those filing applications for employment authorization

under 8 C.F.R. § 274a.13 (“90-Day Subclass”); or

11

(2) 30 days, for those filing initial applications for employment

12

authorization under 8 C.F.R. § 208.7 (“30-Day Subclass”); and

13

who have not or will not be granted interim employment authorization.

14

[The 90-Day Subclass] consists of only those applicants for whom 90 days

has accrued or will accrue under the applicable regulations, 8 C.F.R.

15

§§ 103.2(b)(10)(i), 274.13a.13(d).

16

[The 30-Day Subclass] consists of only those applicants for whom 30 days

has accrued or will accrue under the applicable regulations, 8 C.F.R.

17

§§ 103.2(b)(10)(i), 208.7(a)(2), (a)(4).

18 (3d MCC at 2.)

19

Mr. Gonzalez Rosario, L.S., K.T., Ms. Diaz Marin, Ms. Salmon, and Mr. Shah

20 (collectively, “90-Day Plaintiffs”) seek to represent the 90-Day Subclass. (3d MCC at 5;

21 see also Am. Compl. ¶ 89.) 90-Day Plaintiffs argued on behalf of the 90-Day Subclass

22 that the previous version of 8 C.F.R. § 274a.13(d) obligated USCIS to either adjudicate

ORDER - 6

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 7 of 27

1 their EAD application within 90 days or issue an interim EAD. (Am. Compl. ¶¶ 5-6; see

2 also 10/5/16 Order (Dkt. # 80) at 7-9 (articulating in greater detail 90-Day Plaintiffs’

3 factual allegations).) 90-Day Plaintiffs concede that the January 2017 amendments

4 eliminate USCIS’s duty going forward to adjudicate EAD applications within 90 days or

5 issue interim EADs, but 90-Day Plaintiffs maintain that injunctive relief is warranted.

6 (3d MTD Resp. (Dkt. # 91) at 1-2.) Specifically, 90-Day Plaintiffs ask the court to enjoin

7 Defendants from ascribing negative immigration consequences based on the 90-Day

8 Subclass’s inability to legally work or decision to work unlawfully during USCIS’s

9 failure to timely adjudicate the 90-Day Subclass’s EAD applications or issue interim

10 EADs. (Id.)

11

A.A., Mr. Machic Yac, and W.H. (collectively, “30-Day Plaintiffs”) seek to

12 represent the 30-Day Subclass. (Am. Compl. ¶ 90.) All three individuals are initial

13 asylum EAD applicants and contend that Defendants failed to comply with their

14 regulatory obligation to adjudicate 30-Day Plaintiffs’ EAD applications within 30 days.

15 (Id. ¶¶ 21, 23, 28, 57, 62, 81.)

16 C. Procedural History

17

Ms. Arcos, Ms. Osorio, W.H., Northwest Immigrant Rights Project, and The

18 Advocates for Human Rights filed this lawsuit as a putative class action on May 22,

19 2015. (Compl. (Dkt. # 1).) On February 10, 2016, the court concluded it lacked

20 subject-matter jurisdiction over claims by Ms. Arcos, Ms. Osorio, Northwest Immigrant

21 Rights Project, and The Advocates for Human Rights. (See 2/10/16 Order (Dkt. # 55).)

22 //

ORDER - 7

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 8 of 27

1 However, the court granted leave to amend the complaint to remedy the deficiencies

2 identified in the order. (Id. at 37-39.)

3

On March 10, 2016, the plaintiffs filed an amended complaint. (Am. Compl.)

4 The amended complaint includes the five original plaintiffs and adds eight additional

5 plaintiffs. (Id.) The day after filing their amended complaint, Plaintiffs moved for class

6 certification. (2d MCC (Dkt. # 59).) Several weeks later, Defendants moved to dismiss

7 the amended complaint. (2d MTD (Dkt. # 69).) The court granted in part the motion to

8 dismiss and dismissed the claims of Ms. Arcos, Ms. Osorio, Northwest Immigrant Rights

9 Project, and The Advocates for Human Rights. (10/5/16 Order at 17-18, 22-36); see also

10 supra n.1. The court denied class certification with leave to renew the motion in a

11 manner that cured commonality deficiencies that the court identified. (Id. at 41-55.) The

12 currently pending motions followed the court’s order.

13

III. ANALYSIS

14 A. Partial Motion to Dismiss

15

Defendants contend the amended EAD regulations that went into effect on January

16 17, 2017, moot 90-Day Plaintiffs’ claims and the 90-Day Subclass’s claims. (See

17 generally 3d MTD.) Accordingly, Defendants argue that the court should dismiss those

18 claims for lack of subject-matter jurisdiction.

19

1. Legal Standard

20

“If the court determines at any time that it lacks subject-matter jurisdiction, the

21 court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). Because subject-matter

22 jurisdiction is not waivable, parties may present a motion to dismiss for lack of

ORDER - 8

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 9 of 27

1 subject-matter jurisdiction at any point in the litigation. Cf. Fed. R. Civ. P. 12(h)(1). A

2 motion to dismiss for lack of subject-matter jurisdiction is either facial or factual. See

3 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack,

4 the challenger asserts that the allegations contained in a complaint are insufficient on

5 their face to invoke federal jurisdiction.” Id. The court accepts the factual allegations in

6 the complaint as true, and the nonmoving party is entitled to have those facts construed in

7 the light most favorable to it. Fed’n of African Am. Contractors v. City of Oakland, 96

8 F.3d 1204, 1207 (9th Cir. 1996). However, if the moving party “convert[s] the motion to

9 dismiss into a factual motion by presenting affidavits or other evidence properly brought

10 before the court, the party opposing the motion must furnish affidavits or other evidence

11 necessary to satisfy its burden of establishing subject[-]matter jurisdiction.” Savage v.

12 Glendale Union High Sch., Dist. No. 205, Maricopa Cty., 343 F.3d 1036, 1039 n.2 (9th

13 Cir. 2003) (citing St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989)). In either

14 instance, the party asserting its claims in federal court bears the burden of establishing

15 subject-matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

16 375, 377 (1994).

17

Here, Defendants challenge the court’s subject-matter jurisdiction by arguing that

18 90-Day Plaintiffs’ claims are moot. (See generally 3d MTD.) Mootness is “the doctrine

19 of standing set in a time frame: The requisite personal interest that must exist at the

20 commencement of litigation (standing) must continue throughout its existence

21 (mootness).” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980). “To establish

22 Article III standing, an injury must be ‘concrete, particularized, and actual or imminent;

ORDER - 9

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 10 of 27

1 fairly traceable to the challenged action; and redressable by a favorable ruling.’” Clapper

2 v. Amnesty Int’l USA, --- U.S. ---, 133 S. Ct. 1138, 1147 (2013) (quoting Monsanto Co. v.

3 Geertson Seed Farms, 561 U.S. 139, 149 (2010)). Even if the plaintiff had standing

4 when the complaint was filed, a case becomes moot if at any point it “does not satisfy the

5 case-or-controversy requirement of Article III, § 2 of the Constitution.” Caswell v.

6 Calderon, 363 F.3d 832, 836 (9th Cir. 2004).

7

2. 90-Day Plaintiffs’ Claims

8

“The type of claim asserted in the complaint dictates the nature of the relief that

9 may be afforded to the plaintiff.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1277 n.6

10 (9th Cir. 2006). 90-Day Plaintiffs assert two claims on behalf of themselves and the

11 90-Day Subclass—one under the Mandamus Act, 28 U.S.C. § 1361, and one under the

12 Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. (Am. Compl. ¶¶ 104-10,

13 125-28.) The Mandamus Act vests original jurisdiction in the district courts over “any

14 action in the nature of mandamus to compel an officer or employee of the United States

15 or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. APA

16 Section 706(1) operates similarly in this realm, permitting courts to “compel agency

17 action unlawfully withheld or unreasonably delayed.” Id. § 706(1). The APA also

18 provides for judicial review of “final agency action for which there is no other adequate

19 remedy in a court.” 5 U.S.C. § 704. The court may “hold unlawful and set aside” such

20 agency action where it is “arbitrary, capricious, an abuse of discretion, or otherwise not in

21 accordance with law.” Id. § 706(2)(A).

22 //

ORDER - 10

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 11 of 27

1

a. Claims under APA Section 706(1) and the Mandamus Act

2

APA Section 706(1) and the Mandamus Act do not permit the relief 90-Day

3 Plaintiffs now seek. APA Section 706(1) empowers the court to “compel agency action

4 unlawfully withheld or unreasonably delayed.” Id. § 706(1). However, such a claim

5 “can proceed only where a plaintiff asserts that an agency failed to take a discrete agency

6 action that it is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64

7 (2004). “Absent such an assertion, a Section 706(1) claim may be dismissed for lack of

8 jurisdiction.” Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1019-20 (9th Cir.

9 2007); see also Gros Ventre Tribe v. United States, 469 F.3d 801, 814 (9th Cir. 2006)

10 (upholding the district court’s dismissal of an APA claim for lack of jurisdiction because

11 the plaintiffs failed to demonstrate the government’s obligation to “take discrete

12 nondiscretionary actions”). Furthermore, “when an agency is compelled by law to act

13 within a certain time period, but the manner of its action is left to the agency’s discretion,

14 a court can compel the agency to act, but has no power to specify what the action must

15 be.” Norton, 542 U.S. at 65 (clarifying that “law” can include “agency regulations that

16 have the force of law”).

17

The Mandamus Act operates similarly in this context, empowering district courts

18 “to compel an officer or employee of the United States or any agency thereof to perform

19 a duty owed to the plaintiff.” 28 U.S.C. § 1361; see also Garcia v. Johnson, No.

20 14-cv-1775-YGR, 2014 WL 6657591, at *5 (N.D. Cal. Nov. 21, 2014) (“The

21 jurisdictional dimensions of the APA and the Mandamus Act are considered to be

22 coextensive for purposes of compelling agency action that has been unreasonably

ORDER - 11

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 12 of 27

1 delayed.”). “Although the exact interplay between these two statutory schemes has not

2 been thoroughly examined by the courts, the Supreme Court has construed a claim

3 seeking mandamus under the [Mandamus Act], ‘in essence,’ as one for relief under

4 [Section] 706 of the APA.” Indep. Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir.

5 1997) (citing Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 n.4

6 (1986)); see also Garcia, 2014 WL 6657591, at *5 (“Where, as here, the relief sought is

7 identical under the APA and the mandamus statute, proceeding under one as opposed to

8 the other is not significant.”).

9

90-Day Plaintiffs indicate that in light of the amendments to 8 C.F.R.

10 § 274a.13(d), they “no longer seek class-wide relief” in the form of compelling

11 Defendants to either adjudicate EADs within 90 days or grant an interim EAD. (3d MTD

12 Resp. at 1.) Rather, 90-Day Plaintiffs now contend that they and the 90-Day Subclass

13 suffered harm by either (1) being unlawfully deprived of the opportunity to work, or (2)

14 engaging in unauthorized employment, which may count against applicants in any

15 subsequent application for immigration benefits. (Id. at 1-7.) 90-Day Plaintiffs therefore

16 now seek relief in the form of “an order enjoining Defendants from denying 90-Day

17 Subclass members’ future applications for immigration benefits based on unauthorized

18 employment during any periods when adjudication of their EAD applications was

19 delayed beyond 90 days.” (Id. at 12-13.) In other words, 90-Day Plaintiffs no longer

20 seek to compel Defendants to take a discrete agency action that they are required to take.5

21 5 At oral argument, 90-Day Plaintiffs narrowed their amended request for relief. 90-Day
22 Plaintiffs suggested that the court could merely compel Defendants to adjudicate EAD

ORDER - 12

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 13 of 27

1 See Norton, 542 U.S. at 64; cf. Viet. Veterans of Am. v. Cent. Intelligence Agency, 811

2 F.3d 1068, 1075-82 (9th Cir. 2015) (affirming remedial injunctive relief under APA

3 Section 706(1) where the applicable regulation “unequivocally command[ed]” the

4 defendants to provide that relief in the first instance, but the defendants failed to do so).

5 Instead, they now seek injunctive relief to remedy potential collateral harm from

6 Defendants’ alleged violations of the previous iteration of 8 C.F.R. § 274a.13(d).

7 Accordingly, the court concludes that 90-Day Plaintiffs’ claims under the Mandamus Act

8 and APA Section 706(1) are moot and dismisses those claims.

9

b. Claims under APA Sections 704 and 706(2)

10

90-Day Plaintiffs pivot and argue that their complaint supports a claim under other

11 sections of the APA. Specifically, APA Section 704 authorizes courts to review “final

12 agency action for which there is no other adequate remedy in a court,” 5 U.S.C. § 704,

13 and APA Section 706(2) empowers courts to “hold unlawful and set aside agency action,

14 //

15 applications or issue interim EADs—rather than granting further collateral relief—for the

16

90-Day Subclass members who (1) are subject to the prior version of 8 C.F.R. § 274a.13(d); (2) have not yet received a final adjudication of their EAD application from USCIS; and (3) have not

received an interim EAD. (But see MTD Resp. at 1:18-2:7.) Although this narrowed, 17 backward-looking relief arguably constitutes discrete agency action that Defendants were

required to take, it applies to an ever-shrinking putative class about which 90-Day Plaintiffs

18 make no showing of numerosity. (See generally 3d MCC Reply (Dkt. # 87) (proposing a new

class definition that incorporates the January 16, 2017, amendment, but failing to make any

19 showing of the numerosity of that class); cf. Fed. R. Civ. P. 23(a)(1). Under that theory, class

certification is unwarranted, see Fed. R. Civ. P. 23(a)(1), and 90-Day Plaintiffs’ claims are moot.

20 Therefore, no class action-specific exceptions to mootness save 90-Day Plaintiffs’ claims. (Cf. 10/5/16 Order at 21-22 (holding that the claims of the individual plaintiffs, including 90-Day

21

Plaintiffs, are subject to the inherently transitory exception to mootness “[u]ntil the court issues a final determination on the merits of class certification”).) Accordingly, 90-Day Plaintiffs’

22

narrowed request for relief also fails to avoid the court’s conclusion that 90-Day Plaintiffs’ APA Section 706(1) and Mandamus Act claims are moot.

ORDER - 13

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 14 of 27

1 findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or

2 otherwise not in accordance with law,” id. § 706(2)(A).

3

“A final agency action ‘for which there is no other adequate remedy in a court’ is

4 subject to judicial review under” APA Sections 704 and 706(2). WildEarth Guardians v.

5 Mont. Snowmobile Ass’n, 790 F.3d 920, 924 (9th Cir. 2015). Typically, two conditions

6 must be met for agency action to be considered final: (1) “the action must mark the

7 ‘consummation’ of the agency’s decisionmaking process—it must not be of a merely

8 tentative or interlocutory nature”; and (2) “the action must be one by which ‘rights or

9 obligations have been determined,’ or from which ‘legal consequences will flow.’”

10 Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal citations omitted) (quoting Chi.

11 & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948); Port of Bos.

12 Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)).

13 The Ninth Circuit has explained that this exhaustion requirement avoids undertaking

14 judicial review “where pending administrative proceedings or further agency action

15 might render the case moot and judicial review completely unnecessary.” Sierra Club v.

16 U.S. Nuclear Regulatory Comm’n, 825 F.2d 1356, 1362 (9th Cir. 1987). Courts lack

17 subject-matter jurisdiction to review claims under APA Sections 704 and 706(2) unless

18 the responsible agency has taken final action. See City of San Diego v. Whitman, 242

19 F.3d 1097, 1102 (9th Cir. 2001).

20

90-Day Plaintiffs make passing reference to the arbitrary and capricious standard

21 in their amended complaint (Am. Compl. ¶ 125), and they allege in conclusory fashion

22 that they have suffered “final agency action within the meaning of 5 U.S.C. § 704” (id.

ORDER - 14

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 15 of 27

1 ¶ 126). However, they have litigated the entirety of this case in pursuit of their claim

2 under APA Section 706(1) and the related Mandamus Act claim. (See, e.g., 1st MCC

3 (Dkt. # 5) at 1; MSJ (Dkt. # 24) at 23-24; 1st MTD Resp. (Dkt. # 40) at 7-12; 2d MCC

4 (Dkt. # 59) at 1; 2d MTD Resp. (Dkt. # 73) at 4-6; 3d MCC at 6-11.) Even assuming the

5 amended complaint sufficiently informs Defendants of claims under other sections of the

6 APA and the relief 90-Day Plaintiffs now pursue, Defendants’ delay in adjudicating

7 90-Day Plaintiffs’ EAD applications does not constitute final agency action.6 See Sze v.

8 I.N.S., No. C-97-0569 SC, 1997 WL 446236, at *5 n.2 (N.D. Cal. July 24, 1997)

9 (rejecting an analogous argument as “frivolous”). Indeed, the absence of a timely final

10 decision by Defendants caused Plaintiffs to seek to compel adjudication pursuant to APA

11 Section 706(1) and the Mandamus Act.7 In contrast, the harm 90-Day Plaintiffs now

12 //

13

6 “Agency action” includes the failure to act. See 5 U.S.C. § 551(13); see also 5 U.S.C.

§ 701(b)(2) (“‘[A]gency action’ ha[s] the meaning given to [it] by [S]ection 551 of this title.”).

14 However, “the relief the APA provides for a failure to act is that ‘[t]he reviewing court shall . . . compel agency action unlawfully withheld or unreasonably delayed’” pursuant to APA Section

15

706(1). Leigh v. Salazar, No. 3:13-cv-00006-MMD-VPC, 2014 WL 4700016, at *4 (D. Nev. Sept. 22, 2014) (quoting 5 U.S.C. § 706(1); Norton, 542 U.S. at 62) (second and third alterations

16

in original); see also S.F. BayKeeper v. Whitman, 297 F.3d 877, 886 (9th Cir. 2002) (distinguishing between an unreasonable delay claim under the APA, which is based on an

agency’s failure to act, and an APA Section 706(2) claim, which must be based on a final 17 decision); Audubon Soc’y of Portland v. Jewell, 104 F. Supp. 3d 1099, 1102 (D. Or. 2015). In

other words, the APA channels failure-to-act claims into Section 706(1). The court has

18 concluded 90-Day Plaintiff’s claim under APA Section 706(1) is moot. See supra § III.A.2.a.

The failure-to-act theory does not alter the court’s rationale or conclusion regarding APA Section

19 706(1) or apply to 90-Day Plaintiffs’ claim under any other sections of the APA.

20

7 (See, e.g., Am. Compl. ¶¶ 6 (“USCIS regularly fails to timely adjudicate EAD

applications and never issues interim employment authorization.”), 9 (“The interim employment

21

authorization process was intended to allow people to work lawfully while awaiting final adjudication of pending EAD applications.”), 12 (“Plaintiffs seek declaratory and injunctive

22

relief to remedy Defendants’ unlawful failure to timely adjudicate EAD applications and their unlawful withholding of interim employment authorization . . . .”).)

ORDER - 15

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 16 of 27

1 assert that they fear—adverse immigration consequences from unauthorized employment

2 (3d MTD Resp. at 10, 12-13)—can be addressed, in the event it arises, through an APA

3 challenge to that final agency action, see Bennett, 520 U.S. at 177-78.

4

The absence of a final decision by Defendants lays bare 90-Day Plaintiffs’ attempt

5 to shoehorn their Mandamus Act and APA Section 706(1) claims into APA Sections 702,

6 704 or 706(2)(A) to avoid mootness problems. See Sze, 1997 WL 446236, at *5 n.2.

7 Because 90-Day Plaintiffs allege facts that demonstrate the lack of a final agency action

8 by Defendants, the court concludes that it lacks subject-matter jurisdiction over their

9 claims under other sections of the APA. See Whitman, 242 F.3d at 1102. The court

10 accordingly dismisses those claims without prejudice and without leave to amend.

11 Having dismissed 90-Day Plaintiffs’ claims, the court DENIES as moot 90-Day

12 Plaintiffs’ motion for class certification8 and turns to 30-Day Plaintiffs’ motion for class

13 certification.

14 B. 30-Day Plaintiffs’ Motion for Class Certification

15

After excising the portion of Plaintiffs’ proposed class definition that applies to the

16 90-Day Subclass, 30-Day Plaintiffs’ proposed class definition reads:

17 //

18 //

19 //

20

21

8 This determination also moots the parties’ dispute over whether Plaintiffs adequately

presented their amended proposed class definition by providing it in their reply brief, because the

22

amended proposed class definition only altered portions of the original proposed class definition that applied to the 90-Day Subclass. (See 3d MCC Reply at 2 & n.2; 3d MTD at 3 n.2.)

ORDER - 16

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 17 of 27

1

Noncitizens who have filed or will file applications for employment

authorization that were not or will not be adjudicated within . . . 30 days . . .

2

and who have not or will not be granted interim employment authorization.

[This class] consists of only those applicants for whom 30 days has accrued

3

or will accrue under the applicable regulations, 8 C.F.R. §§ 103.2(b)(10)(i),

208.7(a)(2), (a)(4).

4

(3d MCC at 2; 3d MCC Reply at 2.)

5

1. Legal Standard

6

“Class certification is governed by Federal Rule of Civil Procedure 23.”

7

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011). Under Federal Rule of Civil

8

Procedure Rule 23(a), the party seeking certification must first demonstrate that “(1) the

9

class is so numerous that joinder of all members is impracticable; (2) there are questions

10

of law or fact common to the class; (3) the claims or defenses of the representative parties

11

are typical of the claims or defenses of the class; and (4) the representative parties will

12

fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). “Second,

13

the proposed class must satisfy at least one of the three requirements listed in Rule

14

23(b).” Dukes, 564 U.S. at 345; see also Leyva v. Medline Indus. Inc., 716 F.3d 510, 512

15

(9th Cir. 2013). Here, Plaintiffs seek to certify a class under Rule 23(b)(2), which

16

requires that “the party opposing the class has acted or refused to act on grounds that

17

apply generally to the class, so that final injunctive relief or corresponding declaratory

18

relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2); (see 3d

19

MCC at 2.) “Rule 23(b)(2) applies only when a single injunction or declaratory judgment

20

would provide relief to each member of the class.” Dukes, 564 U.S. at 360.

21

//

22

ORDER - 17

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 18 of 27

1

Rule 23 “does not set forth a mere pleading standard.” Id. at 350. Rather,

2 “certification is proper only if the trial court is satisfied, after a rigorous analysis, that the

3 prerequisites of Rule 23(a) have been satisfied.” Id. at 350-51 (internal quotation

4 omitted). “[I]t may be necessary for the court to probe behind the pleadings before

5 coming to rest on the certification question.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.

6 147, 160 (1982). This is because “the class determination generally involves

7 considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s

8 cause of action.” Id. (internal quotation omitted). Nonetheless, the ultimate decision

9 regarding class certification “involve[s] a significant element of discretion.” Yokoyama

10 v. Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1090 (9th Cir. 2010).

11

2. Numerosity

12

“The prerequisite of numerosity is discharged if ‘the class is so large that joinder

13 of all members is impracticable.’” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th

14 Cir. 1998) (quoting Fed. R. Civ. P. 23(a)(1)). In its previous order on class certification,

15 the court concluded that the 30-Day Subclass was sufficiently numerous to satisfy Rule

16 23(a)(1). (10/5/16 Order at 40-41.) Although 30-Day Plaintiffs have since altered the

17 proposed class definition, the size of the putative class has not changed and Defendants

18 do not challenge numerosity. (See id.; see generally 3d MCC Resp. (Dkt. # 86).)

19 Accordingly, the court’s previous analysis applies (see 10/5/16 Order at 40-41), and the

20 court concludes that 30-Day Plaintiffs satisfy the numerosity requirement.

21 //

22 //

ORDER - 18

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 19 of 27

1

3. Commonality

2

The requirement of “commonality” is met through the existence of a “common

3 contention” that is of “such a nature that it is capable of classwide resolution.” Dukes,

4 564 U.S. at 350. A contention is capable of classwide resolution if “the determination of

5 its truth or falsity will resolve an issue that is central to the validity of each one of the

6 claims in one stroke.” Id. Accordingly, “what matters to class certification . . . is not the

7 raising of common questions—even in droves—but, rather the capacity of a classwide

8 proceeding to generate common answers apt to drive the resolution of the litigation.” Id.

9 This requirement is “construed permissively.” Hanlon, 150 F.3d at 1019. Accordingly,

10 “[a]ll questions of fact and law need not be common to satisfy the rule.” Id.; see also

11 Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir. 2010).

12

In its previous order, the court denied class certification largely because 30-Day

13 Plaintiffs failed to demonstrate commonality. (10/5/16 Order at 41-48.) The court noted

14 that “answers to one legal question and one factual question will ‘drive the resolution of

15 the litigation.’” (Id. at 42 (quoting Dukes, 564 U.S. at 350).) The court determined that

16 the legal question—“whether USCIS is legally obligated to adjudicate EAD applications

17 within a certain timeframe”—was “a ‘common contention’ that is ‘capable of classwide

18 resolution.’” (Id. (quoting Dukes, 564 U.S. at 350).) However, the court concluded that

19 fact-specific tolling inquiries precluded a finding of commonality. (See id. at 42-45.) In

20 response, 30-Day Plaintiffs altered their proposed class definition and now contend that

21 the proposed class definition eliminates the commonality flaw: “If tolling occurred, the

22 regulatory adjudication deadline would not have expired, and the applicant would not be

ORDER - 19

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 20 of 27

1 a class member, at least until the problem that gave rise to tolling is remedied and the

2 day-count restarts and reaches . . . 30 . . . .” (3d MCC at 8; see also 3d MCC at 2 (“To

3 address the court’s concerns about commonality, Plaintiffs propose a simplified class

4 definition that limits the class members to individuals whose claims have accrued.”).)

5

The court agrees that by excluding from the class definition any applicants whose

6 deadline has not passed due to tolling, 30-Day Plaintiffs have remedied the commonality

7 issue that the court identified in its prior order. (Cf. 10/5/16 Order at 44-45 & n.20

8 (rejecting the same argument based on the court’s reading of the previous proposed class

9 definition).) Unlike the previous class definition, 30-Day Plaintiffs’ current proposal

10 limits the class to “applicants for whom 30 days has accrued or will accrue under the

11 applicable regulations, 8 C.F.R. §§ 103.2(b)(10)(i), 208.7(a)(2), (a)(4).” (3d MCC at 2.)

12 This excludes from the class any applicants whose 30 days has not accrued and will not

13 accrue under the applicable regulations due to tolling or other regulatory provisions.

14

Defendants argue that the individualized six-factor reasonableness analysis from

15 Telecommunications Research & Action Center v. F.C.C. (“TRAC”), 750 F.2d 70, 80

16 (D.C. Cir. 1984), precludes the conclusion that common questions will generate common

17 answers apt to drive the resolution of the litigation.9 (See 3d MCC Resp. at 10-13.) In

18

19

9 Under the TRAC standard, the court balances the following factors: (1) the time

agencies take to make decisions must be governed by a rule of reason; (2) where Congress has

20 provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3)

21

delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting

22

delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court

ORDER - 20

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 21 of 27

1 most circumstances, the TRAC standard governs unreasonable delay claims under APA

2 Section 706(1). See Brower v. Evans, 257 F.3d 1058, 1068 (9th Cir. 2001). However,

3 the Ninth Circuit has rejected the TRAC standard where “Congress has specifically

4 provided a deadline for performance.” Biodiversity Legal Found. v. Badgley, 309 F.3d

5 1166, 1177 n.11 (9th Cir. 2002); see also Ctr. for Food Safety v. Hamburg, 954

6 F. Supp. 2d 965, 970-71 (N.D. Cal. 2013) (quoting Badgley, 309 F.3d at 1177 n.11)

7 (“[W]here Congress has specifically provided a deadline for performance by an agency,

8 ‘no balancing of factors is required or permitted.’”).

9

Here, agency regulations rather than a congressional statute provided a deadline

10 for performance, but the court has already concluded that those regulatory deadlines are

11 mandatory.10 (2/10/16 Order at 21-26.) The court discerns no reason to differentiate

12 those mandatory regulatory deadlines from the mandatory statutory deadlines in Badgley,

13 Hamburg, and similar cases from district courts in the Ninth Circuit. See, e.g., Garcia,

14 2014 WL 6657591, at *12 (observing that Ninth Circuit authority suggests that the court

15 “need not undertake TRAC’s six-factor balancing inquiry” where a regulation imposes a

16 firm deadline). Accordingly, the court rejects Defendants’ argument that the

17 individualized TRAC inquiry undermines commonality. Having concluded that 30-Day

18 //

19 need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed. TRAC, 750 F.2d at 80; see also Indep. Mining, 105 F.3d at 507 n.7.

20 10 Defendants contrast the court’s prior ruling, which they characterize as concluding that

21

“the regulations created a mandatory duty for Defendants to act,” with their current argument— that the regulatory timeline is not mandatory. (3d MCC Resp. at 11 n.2.) The court rejects this

22

characterization of the court’s previous decision and Defendants’ effort to relitigate whether the 30-day deadline is directory or mandatory. (See 2/10/16 Order at 25-26 & n.18.)

ORDER - 21

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 22 of 27

1 Plaintiffs remedied the previously identified commonality flaws and rejected Defendants’

2 argument regarding the TRAC factors, the court concludes that Plaintiffs meet Rule 23’s

3 commonality requirement.

4

4. Typicality

5

“[R]epresentative claims are ‘typical’ if they are reasonably co-extensive with

6 those of absent class members; they need not be substantially identical.” Hanlon, 150

7 F.3d at 1020. “Typicality refers to the nature of the claim or defense of the class

8 representative, and not to the specific facts from which it arose or the relief sought.”

9 Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). Nonetheless, the

10 “commonality and typicality requirements of Rule 23(a) tend to merge.” Falcon, 457

11 U.S. at 157 n.13. “Both serve as guideposts for determining whether under the particular

12 circumstances maintenance of a class action is economical and whether the named

13 plaintiff’s claim and the class claims are so interrelated that the interests of the class

14 members will be fairly and adequately protected in their absence.” Id. In determining

15 typicality, courts consider “whether other members have the same or similar injury,

16 whether the action is based on conduct which is not unique to the named plaintiffs, and

17 whether other class members have been injured by the same course of conduct.” Hanon,

18 976 F.2d at 508.

19

The court has already concluded that 30-Day Plaintiffs’ previous proposed class

20 definition satisfies the typicality requirement, and the court’s analysis of the previous

21 class definition applies with equal force to the current class definition. (Compare 10/5/16

22 Order at 48-50, with 3d MCC at 2.) Defendants’ only new argument pertaining to

ORDER - 22

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 23 of 27

1 typicality is based on the TRAC standard. (See 3d MCC Resp. at 13-14.) The court

2 concluded that the TRAC standard does not apply to the 30-day deadline in 8 C.F.R.

3 § 208.7(a)(1), see supra § III.B.3., and the individual analysis required under that

4 standard therefore presents no obstacle to class certification. Accordingly, the court

5 concludes that the proposed 30-Day Subclass satisfies Rule 23’s typicality requirement.

6

5. Adequacy

7

“The final hurdle interposed by Rule 23(a) is that ‘the representative parties will

8 fairly and adequately protect the interests of the class.’” Hanlon, 150 F.3d at 1020

9 (quoting Fed. R. Civ. P. 23(a)(4)); see also Fed. R. Civ. P. 23(g). “Resolution of two

10 questions determines legal adequacy: (1) do the named plaintiffs and their counsel have

11 any conflicts of interest with other class members and (2) will the named plaintiffs and

12 their counsel prosecute the action vigorously on behalf of the class?” Id. (citing Lerwill

13 v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978)).

14

As Defendants acknowledge (3d MCC Resp. at 15 n.4), the court has already

15 concluded that the putative class representatives and putative class counsel are adequate

16 (10/5/16 Order at 50-53). The putative class representatives and putative class counsel

17 for the 30-Day Subclass have not changed since the court made that conclusion. (See

18 generally Am. Compl.) Nonetheless, “Defendants request that the Court reconsider their

19 arguments and also preserve the issue for appeal.” (3d MCC Resp. at 15 n.4.)

20 Defendants’ deadline to move for reconsideration of the court’s October 5, 2016, order

21 passed more than eight months ago. See Local Rules W.D. Wash. LCR 7(h)(2). They

22 raise no new arguments, and most of their arguments pertain specifically to the now-moot

ORDER - 23

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 24 of 27

1 90-Day Subclass. (3d MCC Resp. at 15-16.) The court therefore appoints 30-Day

2 Plaintiffs as class representatives.

3

However, the court’s rulings significantly narrow this case, and 30-Day Plaintiffs

4 have not shown that the appointment of 10 lawyers as class counsel is warranted. Federal

5 Rule of Civil Procedure 23(g) governs the appointment of class counsel, and the

6 Committee Note regarding that subsection provides, in part:

7

The rule states that the court should appoint “class counsel.” In many

instances, the applicant will be an individual attorney. In other cases,

8

however, an entire firm, or perhaps numerous attorneys who are not

otherwise affiliated but are collaborating on the action will apply. No rule of

9

thumb exists to determine when such arrangements are appropriate; the court

should be alert to the need for adequate staffing of the case, but also to the

10

risk of overstaffing or an ungainly counsel structure.

11 Fed. R. Civ. P. 23(g) advisory committee’s note to 2003 amendment. Rule 23(g) also

12 permits the court to “include in the appointing order provisions about the award of

13 attorney’s fees or nontaxable costs under Rule 23(h).” Fed. R. Civ. P. 23(g)(1)(D). The

14 court’s experience with this case and similar past actions suggests that 10 lawyers would

15 constitute overstaffing and an ungainly counsel structure. See Fed. R. Civ. P. 23(g)

16 advisory committee’s note to 2003 amendment. Accordingly, the court directs the parties

17 to review Rule 23(g), meet and confer regarding the appointment of class counsel, and

18 file a motion—or motions, see Fed. R. Civ. P. 23(g)(2)—to appoint class counsel that

19 contemplate the narrowing of the case and the considerations articulated above. If the

20 parties agree regarding class counsel, they may file a stipulated motion; if the parties

21 cannot agree, the motion or motions must be noted for the second Friday and briefed

22 //

ORDER - 24

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 25 of 27

1 accordingly. See Local Rules W.D. Wash. LCR 7(d)(2). Any motion to appoint class

2 counsel must be filed no later than July 27, 2017.

3

6. Common Grounds

4

Class certification under Rule 23(b)(2) is only appropriate where the plaintiffs

5 allege that the defendant has “acted or refused to act on grounds that apply generally to

6 the class, so that final injunctive relief or corresponding declaratory relief is appropriate

7 respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). The court has already

8 concluded that 30-Day Plaintiffs’ claims satisfy this standard (10/5/16 Order at 53-54),

9 and Defendants do not challenge that conclusion here (see generally 3d MCC Resp.).

10 Accordingly, the court concludes that the 30-Day Subclass satisfies Rule 23(b)(2).

11

7. Failsafe Class

12

Separately, Defendants argue that the proposed class is failsafe. (3d MCC Resp. at

13 16-17.) “[A] failsafe class definition requires the court to reach a legal conclusion on the

14 validity of a person’s claim in order to determine whether the person is in the class,

15 meaning the class is unascertainable prior to a liability determination.” Waterbury v. A1

16 Solar Power Inc., No. 15cv2374-MMA (WVG), 2016 WL 3166910, at *4 (S.D. Cal. June

17 7, 2016) (internal quotations omitted); see also In re AutoZone, Inc. Wage & Hour Emp’t

18 Practices Litig., 289 F.R.D. 526, 545-46 (N.D. Cal. 2012); Kamar v. RadioShack Corp.,

19 375 F. App’x 734, 736 (9th Cir. 2010). “Importantly, however, it is not clear that the

20 Ninth Circuit forbids fail-safe classes.” In re AutoZone, 289 F.R.D. at 546.

21

Even assuming failsafe classes are improper, the proposed class is not failsafe. As

22 defined, the proposed class includes any noncitizen (1) who has filed or will file an initial

ORDER - 25

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 26 of 27

1 application for employment authorization under 8 C.F.R. § 208.7; (2) whose application

2 was not or will not be adjudicated within 30 days, as calculated pursuant to the applicable

3 regulations, 8 C.F.R. §§ 103.2(b)(10)(i), 208.7(a)(2), (a)(4); and (3) who has not or will

4 not be granted interim employment authorization. (See 3d MCC at 2.) This class

5 definition is based on factual characteristics of the putative class members, and it is not

6 contingent on whether Section 208.7(a)(1)’s 30-day deadline is mandatory or directory.

7 In other words, if Defendants prevailed on their argument that the 30-day deadline is

8 directory, Defendants could obtain a binding judgment against the 30-Day Subclass. The

9 class becomes failsafe, as Defendants define that term, only because earlier proceedings

10 pertaining to subject-matter jurisdiction required the court to determine whether the

11 30-day deadline imposed by 8 C.F.R. § 208.7(a)(1) is mandatory. (See 2/10/16 Order at

12 21-26.) This procedural happenstance does not render the class failsafe, as properly

13 defined, because the class definition does not require such a conclusion in order to

14 determine membership.11 See Waterbury, 2016 WL 3166910, at *4. Accordingly, the

15 court rejects Defendants’ argument.

16

8. Certification

17

The court finds that all of the prerequisites of Rules 23(a) and 23(b)(2) are met.

18 Accordingly, the court grants 30-Day Plaintiffs’ motion and certifies the following class:

19

Noncitizens who have filed or will file applications for employment

authorization that were not or will not be adjudicated within . . . 30 days . . .

20

and who have not or will not be granted interim employment authorization.

21

11 In addition, although the court has ruled that the 30-day regulatory deadline is

22

mandatory, the court has reserved judgment on the availability of interim EADs as a remedy. (See 2/10/16 Order at 26 n.19.)

ORDER - 26

Case 2:15-cv-00813-JLR Document 95 Filed 07/18/17 Page 27 of 27

1

[This class] consists of only those applicants for whom 30 days has accrued

or will accrue under the applicable regulations, 8 C.F.R. §§ 103.2(b)(10)(i),

2

208.7(a)(2), (a)(4).

3 Further, the court appoints A.A., Mr. Machic Yac, and W.H. as class representatives.

4 Finally, the court directs the parties to review Rule 23(g), meet and confer, and brief the

5 appointment of class counsel in the manner described above. See Fed. R. Civ. P. 23(g);

6 supra § III.B.5.

7

IV. CONCLUSION

8

Based on the foregoing analysis, the court GRANTS Defendants’ motion to

9 dismiss the 90-Day Plaintiffs’ and 90-Day Subclass’s claims (Dkt. # 88), DISMISSES

10 those claims as moot, and GRANTS in part and DENIES in part 30-Day Plaintiffs’

11 motion for class certification (Dkt. # 82). The court APPOINTS A.A., Mr. Machic Yac,

12 and W.H. as class representatives and DIRECTS the parties to review Rule 23(g), meet

13 and confer, and brief the appointment of class counsel in the manner described above.

14 Finally, the court DIRECTS the Clerk to update the docket to reflect substitution of

15 government officials sued in their official capacities. See supra n.1.

16

Dated this 18th day of July, 2017.

17 18

A

19

JAMES L. ROBART

United States District Judge

20

21

22

ORDER - 27

 
 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10 NORTHWEST IMMIGRANT

CASE NO. C15-0813JLR

RIGHTS PROJECT, et al., 11
Plaintiffs,

ORDER

12

v.

13

UNITED STATES CITIZENSHIP

14 AND IMMIGRATION SERVICES, et

al.,

15 Defendants.

16

I. INTRODUCTION 17

This matter comes before the court on two motions: (1) a motion to dismiss 18

(MTD (Dkt. # 69)) by Defendants United States Citizenship and Immigration Services 19

(“USCIS”); the Department of Homeland Security (“DHS”), which oversees USCIS; 20

Leon Rodriguez, the Director of USCIS, in his official capacity; and Jeh Johnson, the 21

Secretary of DHS, in his official capacity; and (2) a motion for class certification by 22

ORDER- 1

1 Plaintiffs Wilman Gonzalez Rosario, L.S., K.T., A.A., Karla Diaz Marin, Antonio

2 Machic Yac, Faridy Salmon, Jaimin Shah, Marvella Arcos-Perez, Carmen Osorio 3 Ballesteros, and W.H. (collectively, “Individual Plaintiffs”) (MCC (Dkt. # 59)).1 Two

4 non-profit organizations that serve putative class members, Plaintiffs Northwest

5 Immigrant Rights Project (“NWIRP”) and The Advocates for Human Rights (“the

6 Advocates”) (collectively, “Organizational Plaintiffs”), and Individual Plaintiffs oppose

7 the motion to dismiss. (MTD Resp. (Dkt. # 73).) Defendants oppose Individual

8 Plaintiffs’ motion for class certification. (MCC Resp. (Dkt. # 72).)

9

Having considered the submissions of the parties, the appropriate portions of the

10 record, the relevant law, and having held oral argument on September 7, 2016, the court

11 GRANTS in part and DENIES in part Defendants’ motion to dismiss, DENIES Plaintiffs’

12 motion for class certification without prejudice, and GRANTS Plaintiffs leave to renew

13 their motion for class certification within 30 days of the date of this order.

14

II. BACKGROUND

15

Through this putative injunctive class action, Plaintiffs seek to compel USCIS to

16 abide by regulatory deadlines for adjudicating applications for employment authorization

17 documents (“EADs”) filed by noncitizens. (See generally Am. Compl. (Dkt. # 58).)

18

19 1 In the court’s February 10, 2016, order, the court “t[ook] its cue from Plaintiffs’

20 briefing” and “shortened the last names of Ms. Arcos-Perez and Ms. Osorio-Ballesteros” to Ms. Arcos and Ms. Osorio, respectively. (2/10/16 Order (Dkt. # 55) at 2 n.1.) For consistency, the

21 court continues to use those shortened names herein. However, in their briefing on the instant motions, Plaintiffs do not shorten the names of Individual Plaintiffs. (See generally MCC; MTD

22

Resp.) Accordingly, the court retains the full last names for Individual Plaintiffs besides Ms. Arcos and Ms. Osorio.

ORDER- 2

1 A. 2

Regulatory Structure For an alien to be eligible to work in the United States, the alien must file Form

3 I-765 with DHS and obtain an EAD. (Am. Compl. ¶¶ 3-4; Instructions for I-765 (“I-765

4 Instructions”), U.S. Customs and Immigration Services (Nov. 4, 2015), available at 5 https://www.uscis.gov/sites/default/files/files/form/ i-765instr.pdf.2 USCIS, an agency

6 within DHS, is responsible for adjudicating Form I-765. (Am. Compl. ¶ 4.) Federal

7 regulations provide a timeline for USCIS to adjudicate EADs; that timeline is different

8 for individuals seeking an initial EAD based on an underlying asylum application. See 8

9 C.F.R. §§ 274a.13(d) (excluding from the 90-day deadline “initial application[s] for

10 employment authorization under 8 CFR 274a.12(c)(8)”), 274a.12(c)(8) (covering aliens

11 who have “filed a complete application for asylum or withholding of deportation or 12 removal pursuant to 8 CFR part 208”), 208.7(a)(1) (providing a timeline for adjudicating

13 asylum-based EAD applications).

14

The regulations confer unfettered discretion on USCIS to approve or deny EAD

15 applications unless they are filed by an applicant for asylum. 8 C.F.R. § 274a.13(a)(1);

16 see also Guevara v. Holder, 649 F.3d 1086, 1091-92 (9th Cir. 2011) (“[T]he

17 authorization for such employment is not mandated.”); Kaddoura v. Gonzales, No.

18 C06-1402RSL, 2007 WL 1521218, at *5 (W.D. Wash. May 21, 2007) (“While plaintiff is

19 correct that as an ‘alien who has filed an application for adjustment of status’ he is within 20 the class of aliens ‘eligible’ for an EAD, under the plain language 8 C.F.R. §§ 274a.12

21

22

2 Plaintiffs incorporate the I-765 Instructions into their amended complaint by reference. (See Am. Compl. ¶ 8.)

ORDER- 3

1 and 274a.13, his eligibility for an EAD resides within the discretion of USCIS and there

2 is no appeal from the denial of the application.”). However, the same regulations use

3 mandatory language when discussing the timeline for adjudicating such applications:

4

USCIS will adjudicate the application within 90 days from the date of

receipt of the application. . . . Failure to complete the adjudication within

5

90 days will result in the grant of an employment authorization document

for a period not to exceed 240 days. Such authorization will be subject to

6

any conditions noted on the employment authorization document.

However, if USCIS adjudicates the application prior to the expiration date

7

of the interim employment authorization and denies the individual’s

employment authorization application, the interim employment

8

authorization granted under this section will automatically terminate as of

the date of the adjudication and denial.

9

8 C.F.R. § 274a.13(d). In sum, if USCIS has not adjudicated an EAD application within

10

90 days of receipt, the regulation requires USCIS to issue one or more interim EADs for

11

240 days or until USCIS adjudicates the EAD application, whichever comes first.

12

The regulations provide a different procedure for an asylum seeker applying for an

13

initial EAD, which the court will refer to as an initial asylum EAD applicant. See

14

8 C.F.R. §§ 208.7(a)(1), 274a.12(c)(8), 274a.13(d); see also Carballo v. Meissner, No.

15

C00-2145, 2000 WL 1741948, at *2 (N.D. Cal. Nov. 17, 2000) (describing the process

16

for an asylum applicant seeking an EAD). Section 274a.13(a)(2) mandates that initial

17

asylum EAD applications “shall be adjudicated in accordance with [Section] 208.7.” 8

18

C.F.R. § 274a.13(a)(2). After filing an application for asylum, an individual typically

19

must wait 150 days before filing an initial EAD application. Id. § 208.7(a)(1). But there

20

are exceptions to this rule. For instance, if asylum is granted within 150 days, the asylee

21

may apply for an EAD immediately thereafter. Id. Additionally, if asylum is denied at

22

ORDER- 4

1 any point, the applicant becomes ineligible for an EAD. Id. However, assuming an

2 individual’s “asylum clock” runs for at least 150 days without delay caused by the

3 applicant, she may apply for an EAD while her asylum application pends. Id.

4 §§ 208.7(a)(1)-(2), (4). USCIS “shall have 30 days from the date of filing of the request

5 [sic] employment authorization to grant or deny that application,” except that in no event

6 may USCIS grant the EAD prior to 180 days after the noncitizen files her asylum

7 application. Id. § 208.7(a)(1); see also 8 U.S.C. § 1158(d)(2). Section 208.7 is silent

8 about whether there is any consequence if USCIS fails to meet this 30-day adjudication

9 deadline. See 8 C.F.R. § 208.7(a)(1); cf. id. § 274a.13(d) (providing for interim EADs for

10 other EAD applicants if USCIS has not decided their EAD applications within 90 days).

11

Plaintiffs contest the manner in which USCIS applies these adjudication deadlines.

12 The instructions accompanying Form I-765, which USCIS provides, allow applicants

13 who “have not received a decision within 90 days,” or “within 30 days of a properly filed

14 initial EAD application based on an asylum application,” to “request interim work

15 authorization.” (See I-765 Instructions at 11.) Plaintiffs contend this interpretation

16 impermissibly construes the regulatory timeline to be hortatory rather than mandatory.

17 (See, e.g., Compl. ¶ 11.) Applicants who have requested to qualify for the Deferred 18 Action for Childhood Arrivals program (“DACA”)3 also experience delay because

19

20 3 DHS initiated DACA in 2012. The program allows DHS to “exercise prosecutorial

21 discretion as appropriate” to defer deportation or other action against individuals who were brought to the United States as children and meet certain other criteria. DACA Frequently

22

Asked Questions, U.S. Customs and Immigration Services (June 15, 2015), http://www.uscis. gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-

ORDER- 5

1 USCIS interprets the 90-day clock to begin only after DHS adjudicates an applicant’s

2 DACA application. (See I-765 Instructions at 1, 6, 11.) Similarly, USCIS tolls the

3 asylum clock when an asylum applicant accepts deferred prosecution in deportation

4 proceedings, which postpones indefinitely the date on which that individual becomes

5 eligible to apply for an asylum-based EAD. See Memorandum from the Principal Legal

6 Advisor (“11/17/11 Memo”), U.S. Immigrations and Customs Enf’t, Case-by-Case

7 Review of Incoming and Certain Pending Cases (Nov. 17, 2011) at 3 n.5, available at

8 http://www.ice.gov/doclib/foia/prosecutorial-discretion/case-by-case-review-incoming9 certain-pending-cases-memorandum.pdf.4

10 B. Factual Allegations

11

Based on this regulatory structure, Individual Plaintiffs seek to certify a

12 nationwide class consisting of three subclasses. Each Individual Plaintiff seeks to serve

13 as a class representative of one of the three putative subclasses. (See Am. Compl.

14 ¶¶ 89-91; MCC at 2.) The three subclasses are:

15

Noncitizens who have filed or will file applications for employment

authorization that were not or will not be adjudicated within the required

16

regulatory timeframe, comprising those who:

17
questions (last visited August 31, 2016). The court takes judicial notice of this background 18 information “as it was made publicly available by government entities” and its accuracy is “not
subject to reasonable dispute.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 19 2010) (citing Fed. R. Evid. 201).

20

4 Although a subsequent memorandum superseded the 11/17/11 Memo, the 11/17/11

Memo’s provisions on administrative closure for EAD purposes remain in effect. See

21 Memorandum from the Sec’y (“11/20/14 Memo”), Dep’t of Homeland Sec., Policies for the Apprehension, Det., and Removal of Undocumented Immigrants (Nov. 20, 2014) at 5-6,

22

available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_ prosecutorial_discretion.pdf; (see also MTD at 9 n.2.)

ORDER- 6

1

1. Have filed or will file applications for employment authorization under 8

2

C.F.R. § 274a.13, excluding initial applications based on pending asylum

applications or requests to renew Deferred Action for Childhood Arrivals,

3

but who have not received or will not receive a grant or denial of their EAD

applications within 90 days of filing, and who are entitled or will be entitled

4

to interim employment authorization under 8 C.F.R. § 274a.13(d), but who

have not received or will not receive interim employment authorization.

5

Applications for employment authorization based on Deferred Action for

Childhood Arrivals, U or T visa applications, and self-petitions under the

6

Violence Against Women Act are excluded until USCIS has determined

eligibility for the underlying immigration benefit or granted deferred action

7

(the “90-Day Subclass”); or

8

2. Are asylum applicants who have filed or will file initial applications for

employment authorization under 8 C.F.R. § 208.7, but who, absent any

9

applicant-caused delay, have not received or will not receive a grant or

denial of their EAD applications within 30 days of filing, and who have not

10

received or will not receive interim employment authorization (the “30-Day

Subclass”); or

11

3. Have filed or will file applications for employment authorization under 8

12

C.F.R. § 274a.13 on the basis of requests to renew Deferred Action for

Childhood Arrivals, but who have not received or will not receive a grant or

13

denial of their EAD applications within 90 days of filing, and who are

entitled or will be entitled to interim employment authorization under 8

14

C.F.R. § 274a.13(d), but who have not received or will not receive interim

employment authorization (the “DACA Renewal Subclass”).

15

(Am. Compl. ¶ 88; see also MCC at 2.) For background, the court briefly recounts
16 Plaintiffs’ factual allegations.5
17

1. Putative Representatives of the 90-Day Subclass
18 Mr. Gonzalez Rosario, L.S., K.T., Ms. Diaz Marin, Ms. Salmon, Mr. Shah, and

19 Ms. Arcos seek to represent the 90-Day Subclass. (Am. Compl. ¶ 89.)

20

21

5 Rather than summarizing the factual evidence provided in conjunction with Individual

22

Plaintiffs’ motion for class certification, the court discusses that evidence as relevant to the court’s analysis of class certification. See infra § III.B.

ORDER- 7

1

On March 10, 2015, USCIS granted Mr. Gonzalez Rosario deferred action based

2 on his petition for “U Nonimmigrant status.” (Id. ¶ 46.) He filed an EAD application on

3 April 27, 2015, and as of 90 days after he filed the application, USCIS had not

4 adjudicated that application or granted Mr. Gonzalez Rosario an interim EAD. (Id. ¶ 47.)

5 As of the filing of the amended complaint, he had not been granted an EAD. (See id.

6 ¶ 49.)

7

Like Mr. Gonzalez Rosario, Ms. Diaz Marin filed a petition for U Nonimmigrant

8 status and an EAD application. (Id. ¶ 59.) Ms. Diaz Marin filed both the petition and the

9 application on March 18, 2014. (Id.) On February 24, 2015, USCIS granted Ms. Diaz

10 Marin deferred action and indicated that she was eligible to apply for an EAD. (Id.) Ms.

11 Diaz Marin then filed a second EAD application on August 2, 2015. (Id. ¶ 60.) As of the

12 filing of the amended complaint, more than 90 days had passed since Ms. Diaz Marin

13 filed her second EAD application and USCIS had not ruled on Ms. Diaz Marin’s

14 application or granted her an interim EAD. (Id.)

15

Ms. Salmon also applied for an EAD after receiving deferred action. (Id. ¶ 64.) In

16 Ms. Salmon’s case, USCIS granted deferred action on humanitarian grounds due to Ms.

17 Salmon’s disabled daughter. (Id.) USCIS took more than 90 days to adjudicate the EAD

18 application, and as of the filing of the amended complaint had neither adjudicated the

19 EAD application nor issued an interim EAD. (Id. ¶ 65.)

20

Mr. Shah is a recent law school graduate who applied for employment

21 authorization based on his law school’s recommendation that he receive post-completion

22 optional practical training beginning in March 2016. (Id. ¶ 68 (citing 8 C.F.R.

ORDER- 8

1 § 214.2(f)(11)(i)(B)(2)).) Mr. Shah filed his EAD application on November 9, 2015, but

2 USCIS failed to adjudicate the EAD application within 90 days and had not adjudicated

3 the application as of the filing of the amended complaint. (Id. ¶¶ 68-69.)

4

L.S. and K.T. are both asylum applicants who seek to renew their EADs.

5 (Id. ¶¶ 50, 53.) L.S. filed his application for EAD renewal on November 16, 2015, K.T.

6 filed his application for EAD renewal on July 30, 2015, and as of the filing of the

7 amended complaint, USCIS had not adjudicated either renewal application. (Id.) The

8 principal difference between L.S. and K.T. is that USCIS did not schedule a biometrics

9 appointment for L.S., whereas USCIS did schedule a biometrics appointment for K.T.,

10 and he completed the biometrics. (Id. ¶¶ 19-20.)

11

Ms. Arcos is also an asylum applicant who applied to renew her EAD. (Id. ¶ 73.)

12 The court has previously summarized Ms. Arcos’s allegations (2/10/16 Order at 8),

13 analyzed her claim (id. at 15-20), and dismissed Ms. Arcos’s allegations for lack of

14 subject matter jurisdiction (id. at 37-38). Ms. Arcos’s current allegations largely mirror

15 those in the original complaint, which was operative when the court dismissed her

16 previous claims. (Compare Compl. (Dkt. # 1) ¶¶ 38-39 with Am. Compl. ¶¶ 73-75.) The

17 only update in the amended complaint is that since filing the original complaint, Ms.

18 Arcos filed another application to renew her EAD on October 15, 2015, and USCIS had

19 not adjudicated that application as of the filing of the amended complaint. (Am. Compl.

20 ¶ 74.)

21 //

22 //

ORDER- 9

1

2. Putative Representatives of the 30-Day Subclass

2

A.A., Mr. Machic Yac, and W.H. seek to represent the 30-Day Subclass. (Id.

3 ¶ 90.) All three are asylum applicants seeking initial EADs. (Id. ¶¶ 21, 23, 28.) Each of

4 the applicants filed his EAD application more than 150 days after USCIS received his

5 asylum application. (Id.) Although more than 30 days had passed since they applied for

6 EADs, neither A.A. nor Mr. Machic Yac had received a ruling as of the filing of the

7 amended complaint. (Id. ¶¶ 21, 23, 57, 62.) However, USCIS approved W.H.’s EAD

8 application on June 16, 2015—after the filing of the original complaint but before the

9 filing of the amended complaint. (Id. ¶¶ 28, 81.)

10

3. Putative Representative of the DACA Renewal Subclass

11

Ms. Osorio seeks to represent the DACA Renewal Subclass. (Id. ¶ 91.) On

12 December 29, 2014, she applied to renew her EAD in conjunction with her application to

13 renew her DACA status. (Id. ¶ 76.) USCIS failed to adjudicate her application within 90

14 days and still had not done so when Ms. Osorio filed the initial complaint in this matter;

15 USCIS did, however, grant Ms. Osorio an EAD on June 3, 2015. (Id.) USCIS interprets

16 the regulation such that the 90-day adjudication clock did not begin until USCIS

17 approved Ms. Osorio’s DACA application, which had not yet occurred. (2/10/16 Order

18 at 28-29.) After concluding that USCIS’s interpretation is not plainly erroneous or

19 inconsistent with the language of the applicable regulations, the court dismissed Ms.

20 Osorio’s claim for lack of subject matter jurisdiction. (Id. at 29, 37-38.)

21 //

22 //

ORDER- 10

1

4. Organizational Plaintiffs

2

NWIRP’s mission is to “assist immigrants in obtaining legal status and the right to

3 lawfully work in the United States.” (Am. Compl. ¶ 82.) According to NWIRP, many of

4 its clients, who fall into “all three proposed subclasses,” are “subject to unlawful delay” 5 in their efforts to “receive EADs and interim EADs.” (Id. ¶ 83.) NWIRP alleges that 6 “Defendants’ untimely adjudication of EADS and failure to grant interim employment 7 authorization” requires NWIRP to either assist clients in dealing with adjudicatory delays

8 and serve fewer clients, or turn away clients dealing with adjudicatory delays. (Id. ¶ 84.)

9 NWIRP seeks to compel Defendants to follow the adjudicatory deadline so that NWIRP

10 may avoid this choice, which inevitably diverts resources and frustrates NWIRP’s

11 purpose. (Id.)

12

The Advocates’ mission is to “provid[e] legal services to asylum seekers in

13 Minnesota, North Dakota, and South Dakota.” (Id. ¶ 85.) In comparison to NWIRP, the

14 Advocates represent a narrower swath of the putative class members—only initial asylum

15 EAD applicants and renewal asylum EAD applicants. (Id.) Nonetheless, like NWIRP,

16 the Advocates allege that Defendants’ indifference to the regulatory deadlines poses a

17 choice to the Advocates that necessarily diverts resources and frustrates its purpose. (Id.)

18 C. Procedural History

19

Ms. Arcos, Ms. Osorio, W.H., and Organizational Plaintiffs filed this lawsuit as a

20 putative class action on May 22, 2015. (Compl. (Dkt. # 1).) On February 10, 2016, the

21 court concluded it lacked subject matter jurisdiction over claims by Ms. Arcos, Ms.

22

ORDER- 11

1 Osorio, and Organizational Plaintiffs. (2/10/16 Order.) However, the court granted leave

2 to amend the complaint to remedy the deficiencies identified in the order. (Id. at 37-39.)

3

On March 10, 2016, Plaintiffs filed an amended complaint. (Am. Compl.) The

4 amended complaint includes the five original plaintiffs and adds eight Individual

5 Plaintiffs. (Id.) Individual Plaintiffs seek to represent the 90-Day Subclass, the 30-Day

6 Subclass, and the DACA Renewal Subclass. (Am. Compl. ¶ 88; see also MCC at 2.)

7 The day after filing their amended complaint, Individual Plaintiffs moved for class

8 certification. (MCC.) Several weeks later, Defendants moved to dismiss the amended

9 complaint. (MTD.)

10

III. ANALYSIS

11 A. Defendants’ Motion to Dismiss

12

Defendants move to dismiss all claims on various grounds. First, Defendants

13 argue that the law of the case doctrine should be applied to Ms. Arcos and Ms. Osorio’s

14 claims. (MTD at 11-12.) Even if that doctrine does not apply, Defendants argue, the

15 court lacks subject matter jurisdiction over Ms. Arcos and Ms. Osorio’s claims, and those

16 claims should accordingly be dismissed. (Id. at 12-13.) Second, Defendants seek

17 dismissal of W.H., A.A., and Mr. Machic Yac’s claims on the basis that they fail to

18 identify a discrete action that USCIS was required to take and the court therefore lacks 19 subject matter jurisdiction under the APA. (Id. at 14 (citing Norton v. S. Utah Wilderness 20 All., 542 U.S. 55, 64 (2004)).) Third, Defendants contend that if class certification fails, 21 Individual Plaintiffs’ claims are moot and should be dismissed. (Id. at 14-16 & n.3.)

22

ORDER- 12

1 Finally, Defendants argue that Organizational Plaintiffs lack standing and fail to state a

2 claim. (Id. at 17-20.) The court addresses each of these arguments in turn.

3

1. Legal Standards

4

a. Under Rule 12(b)(1)

5

Defendants argue on several different bases that the court lacks subject matter

6 jurisdiction over Plaintiffs’ claims. A motion to dismiss for lack of subject matter

7 jurisdiction is either facial or factual. See Safe Air for Everyone v. Meyer, 373 F.3d 1035,

8 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the allegations

9 contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Id.

10 “The district court resolves a facial attack as it would a motion to dismiss under Rule

11 12(b)(6): Accepting the plaintiff’s allegations as true and drawing all reasonable

12 inferences in the plaintiff’s favor, the court determines whether the allegations are

13 sufficient as a legal matter to invoke the court’s jurisdiction.” Leite v. Crane Co., 749

14 F.3d 1117, 1121 (9th Cir. 2014) (citing Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir.

15 2013)). However, if the moving party “convert[s] the motion to dismiss into a factual

16 motion by presenting affidavits or other evidence properly brought before the court, the

17 party opposing the motion must furnish affidavits or other evidence necessary to satisfy

18 its burden of establishing subject matter jurisdiction.” Savage v. Glendale Union High

19 Sch., Dist. No. 205, Maricopa Cty., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) (citing St.

20 Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989)). In either instance, the party

21 asserting its claims in federal court bears the burden of establishing subject matter

22 jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

ORDER- 13

1

“To establish Article III standing, an injury must be ‘concrete, particularized, and

2 actual or imminent; fairly traceable to the challenged action; and redressable by a

3 favorable ruling.’” Clapper v. Amnesty Int’l USA, --- U.S. ---, 133 S. Ct. 1138, 1147

4 (2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)).

5 More concisely, these requirements are known as injury, causation, and redressability.

6 See Massachusetts v. E.P.A., 549 U.S. 497, 540 (2007) (Roberts, C.J., dissenting).

7 Because Plaintiffs seek “declaratory and injunctive relief only,” “there is a further

8 requirement that they show a very significant possibility of future harm; it is insufficient

9 for them to demonstrate only a past injury.” San Diego Cty. Gun Rights Comm. v. Reno,

10 98 F.3d 1121, 1126 (9th Cir. 1996). The party asserting its claims in federal court bears

11 the burden of establishing standing. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561

12 (1992).

13

Mootness is “the doctrine of standing set in a time frame: The requisite personal

14 interest that must exist at the commencement of litigation (standing) must continue

15 throughout its existence (mootness).” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388,

16 397 (1980). Even if the plaintiff had standing when the complaint was filed, a case

17 becomes moot if at any point it “does not satisfy the case-or-controversy requirement of 18 Article III, § 2 of the Constitution.”6 Caswell v. Calderon, 363 F.3d 832, 836 (9th Cir.

19 2004).

20

21

22

6 The court discusses exceptions to mootness as they arise in its analysis.

ORDER- 14

1

The Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., entitles a

2 “person suffering legal wrong because of agency action” to “judicial review thereof.” 5

3 U.S.C. § 702. The reviewing court must “decide all relevant questions of law, interpret

4 constitutional and statutory provisions, and determine the meaning or applicability of the

5 terms of an agency action.” Id. § 706. As relevant here, the court is empowered to

6 “compel agency action unlawfully withheld or unreasonably delayed.” Id. § 706(1).

7 However, such a claim “can proceed only where a plaintiff asserts that an agency failed

8 to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness

9 All., 542 U.S. 55, 64 (2004). “Absent such an assertion, a Section 706(1) claim may be

10 dismissed for lack of jurisdiction.” Alvarado v. Table Mountain Rancheria, 509 F.3d

11 1008, 1019-20 (9th Cir. 2007); see also Gros Ventre Tribe v. United States, 469 F.3d 801,

12 814 (9th Cir. 2006) (upholding the district court’s dismissal of an APA claim for lack of

13 jurisdiction because the plaintiffs failed to demonstrate the government’s obligation to

14 “take discrete nondiscretionary actions”). Furthermore, “when an agency is compelled

15 by law to act within a certain time period, but the manner of its action is left to the

16 agency’s discretion, a court can compel the agency to act, but has no power to specify

17 what the action must be.” Norton, 542 U.S. at 65 (clarifying that “law” can include

18 “agency regulations that have the force of law”).

19

The Mandamus Act operates similarly in this context, empowering district courts

20 “to compel an officer or employee of the United States or any agency thereof to perform

21 a duty owed to the plaintiff.” 28 U.S.C. § 1361; see also Garcia v. Johnson, No.

22 14-cv-1775-YGR, 2014 WL 6657591, at *5 (N.D. Cal. Nov. 21, 2014) (“The

ORDER- 15

1 jurisdictional dimensions of the APA and the Mandamus Act are considered to be

2 coextensive for purposes of compelling agency action that has been unreasonably

3 delayed.”). “Although the exact interplay between these two statutory schemes has not

4 been thoroughly examined by the courts, the Supreme Court has construed a claim

5 seeking mandamus under the [Mandamus Act], ‘in essence,’ as one for relief under

6 [Section] 706 of the APA.” Indep. Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir.

7 1997) (citing Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 n.4

8 (1986)); see also Garcia, 2014 WL 6657591, at *5 (“Where, as here, the relief sought is

9 identical under the APA and the mandamus statute, proceeding under one as opposed to

10 the other is not significant.”).

11

b. Under 12(b)(6)

12

When considering a motion to dismiss under Federal Rule of Civil Procedure

13 12(b)(6), the court construes the complaint in the light most favorable to the nonmoving

14 party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir.

15 2005). The court must accept all well-pleaded allegations of material fact as true and

16 draw all reasonable inferences in favor of the plaintiff. See Wyler Summit P’ship v.

17 Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). “To survive a motion to

18 dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a 19 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 20 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Telesaurus 21 VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). “A claim has facial plausibility

22

ORDER- 16

1 when the plaintiff pleads factual content that allows the court to draw the reasonable

2 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663.

3

The court, however, need not accept as true a legal conclusion presented as a

4 factual allegation. Id. at 678. Although the pleading standard announced by Federal

5 Rule of Civil Procedure 8 does not require “detailed factual allegations,” it demands more

6 than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citing

7 Twombly, 550 U.S. at 555). A pleading that offers only “labels and conclusions or a

8 formulaic recitation of the elements of a cause of action” will not survive a motion to

9 dismiss under Federal Rule of Civil Procedure 12(b)(6). Id.

10

Motions to dismiss for lack of statutory standing are reviewed for failure to state a

11 claim under Federal Rule of Civil Procedure 12(b)(6). See Vaughn v. Bay Envtl. Mgmt.,

12 Inc., 567 F.3d 1021, 1022, 1024 (9th Cir. 2008).

13

2. Ms. Arcos and Ms. Osorio

14

Defendants argue that the law of the case doctrine bars Ms. Arcos’s and Ms.

15 Osorio’s claims (id. at 11-12), which the court previously dismissed for lack of subject

16 matter jurisdiction (2/10/16 Order at 14-20, 27-29). Plaintiffs respond that the law of the

17 case doctrine is inapplicable (MTD Resp. at 3 n.4), but they concede that “the Court has

18 already ruled on Ms. Arcos-Perez and Ms. Osorio-Ballesteros’ claims” (id. at 3 (citing 19 2/10/16 Order at 20, 29)). Plaintiffs indicate that they merely intend to “preserve for 20 appeal their arguments that Ms. Arcos-Perez and Ms. Osorio-Ballesteros have standing 21 and that this [c]ourt has subject matter jurisdiction over their claims.” (Id.)

22

ORDER- 17

1

A review of the amended complaint reveals no new allegations regarding Ms.

2 Osorio or Ms. Arcos that alters the court’s prior analysis. (Compare Compl. ¶¶ 18-19,

3 38-42 with Am. Compl. ¶¶ 26-27, 73-78.) Both individuals add the date on which USCIS

4 adjudicated their EAD applications (Am. Compl. ¶¶ 73 (indicating that USCIS denied

5 Ms. Arcos’s EAD application on June 10, 2015), 76 (indicating that USCIS approved Ms.

6 Osorio’s EAD application on June 3, 2015)), and Ms. Arcos added that she again applied

7 to renew her EAD on October 15, 2015, and USCIS had not adjudicated it as of the filing

8 of the amended complaint (id. ¶ 74). Ms. Arcos’s additional allegations are irrelevant to

9 the court’s conclusion that “an ineligible EAD-holder—who obtained her current EAD

10 only through error—[lacks] a legally cognizable right to compel adjudication of her

11 renewal application within a certain time period.” (2/10/16 Order at 20.) Furthermore,

12 Ms. Arcos and Ms. Osorio make no new arguments in their briefing. (See generally

13 MTD Resp.; see also id. at 3 (referring exclusively to arguments made in prior briefing in

14 support of Plaintiffs’ eventual grounds for appeal of the court’s rulings regarding Ms.

15 Arcos and Ms. Osorio).) Accordingly, for reasons it has previously articulated, the court 16 dismisses Ms. Arcos’s and Ms. Osorio’s claims for lack of subject matter jurisdiction.7

17

3. W.H., A.A., and Mr. Machic Yac

18

W.H., A.A., and Mr. Machic Yac seek to represent the 30-Day Subclass. (Am.

19 Compl. ¶ 90.) Defendants contend that the court lacks subject matter jurisdiction over all

20

21

7 Based on Ms. Arcos and Ms. Osorio’s failure to remedy the jurisdictional deficiencies

22

in their prior allegations, the court concludes amendment would be futile and declines to grant these plaintiffs leave to amend. See Foman v. Davis, 371 U.S. 178, 182 (1962).

ORDER- 18

1 three individuals’ claims because pursuant to the regulations, USCIS is not “required” to

2 grant interim EADs to initial asylum applicants when USCIS fails to complete

3 adjudication within the 30-day period allotted. (MTD at 14 (citing Norton, 542 U.S. at

4 64); see also MTD Reply (Dkt. # 74) at 1-2.) Accordingly, Defendants argue that USCIS

5 is not required to perform the “discrete action” that W.H., A.A., and Mr. Machic Yac

6 seek to compel, and those three plaintiffs lack standing. (MTD at 14; MTD Reply at

7 1-2.)

8

The court addressed this precise issue in rejecting Defendants’ first effort to

9 dismiss W.H.’s claim:

10

W.H. ultimately seeks one of two prospective remedies—either adjudicate

his EAD application within 30 days or issue an interim EAD after 30

11

days. . . . The APA and the Mandamus Act contemplate the former

remedy—compelling Defendants to act. However, because the regulations

12

applicable to asylum applicants make no reference to interim EADs, the

court reserves judgment as to whether the latter remedy is available.

13

(2/10/16 Order at 26 n.19.) As Plaintiffs argue, Defendants dispute the remedy available

14

to W.H., A.A., and Mr. Machic Yac. (MTD Resp. at 4.) But even if one remedy that

15

W.H., A.A., and Mr. Machic Yac seek—issuance of interim EADs—is unavailable,

16

another remedy that they seek—compelling USCIS to adjudicate EAD applications in a

17

timely fashion—is indeed available. (See 2/10/16 Order at 26 n.19); Norton, 542 U.S. at

18

64 (“[W]hen an agency is compelled by law to act within a certain time period, but the

19

manner of its action is left to the agency’s discretion, a court can compel the agency to

20

act, but has no power to specify what the action must be.”). Accordingly, the court

21

22

ORDER- 19

1 denies Defendants’ motion to dismiss W.H.’s, A.A.’s, and Mr. Machic Yac’s claims for

2 lack of subject matter jurisdiction.

3

4. Mootness

4

Defendants “do not dispute mootness for class certification purposes,” but they

5 contend that “[I]ndividual Plaintiffs cannot assert independent claims should class

6 certification fail because their claims have mooted out.” (MTD at 14 n.3.) Individual

7 Plaintiffs contend that even if the court denies class certification, Individual Plaintiffs’

8 claims fall within one of several narrow exceptions to the mootness doctrine. (MTD

9 Resp. at 7-9.) The court need not reach either of these arguments because it denies class

10 certification without prejudice to renewing the motion and providing a further factual 11 record, and thus the inherently transitory exception to mootness still applies.8

12

13

8 On the other hand, if the court analyzes standing based on the date Plaintiffs filed the

operative complaint, W.H.’s claims are not moot; rather, W.H. lacked standing as of the date

14 Plaintiffs filed the operative complaint. (See Am. Compl. at 39 (indicating a filing date of March 10, 2016), ¶ 28 (indicating that Defendants approved W.H.’s EAD application on June 16,

15 2015)); Geraghty, 445 U.S. at 397 (characterizing mootness as “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation

16

(standing) must continue throughout its existence (mootness)”). This conclusion would render any exceptions to mootness inapplicable to W.H.

In analogous situations, courts have taken different approaches to determining which 17 complaint governs subject matter jurisdiction. Compare In re Atlas Van Lines, Inc., 209 F.3d

1064, 1067 (8th Cir. 2000) (“[I]n cases where a plaintiff has filed an amended complaint, federal

18 courts must resolve questions of subject matter jurisdiction by examining the face of the

amended complaint.”), with Schreiber Foods, Inc. v. Beatrice Cheese, Inc., 402 F.3d 1198, 1202

19 n.3 (Fed. Cir. 2005) (“The initial standing of the original plaintiff is assessed at the time of the

original complaint, even if the complaint is later amended.”), and Lynch v. Leis, 382 F.3d 642,

20 647 (6th Cir. 2004) (quoting Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991)) (“A careful reading of County of Riverside demonstrates that the second amended complaint was

21 important not because it was the operative pleading, but because it was that complaint which named ‘three additional plaintiffs’ who were ‘still in custody’ at the time the complaint was filed,

22

and who were the plaintiffs found to have standing by the Court. . . . Therefore, the operative complaint is the one adding [the plaintiff] to the action, and the operative date is May 25,

ORDER- 20

1

In the class action context, inherently transitory claims “relate to [the plaintiff’s]

2 standing at the outset of the case in order ‘to preserve the merits of the case for judicial

3 resolution.’” Wade v. Kirkland, 118 F.3d 667, 670 (9th Cir. 1997); see also Hernandez v.

4 Cty. of Monterey, 70 F. Supp. 3d 963, 971-72 (N.D. Cal. 2014) (“If the inherently

5 transitory exception applies, the mootness determination merges with the standing

6 analysis as of the filing of the complaint. . . . If class claims fall within the [inherently]

7 transitory exception, a plaintiff need not file a motion for class certification before the

8 mooting of the plaintiff’s claim for injunctive relief, unlike cases in which the

9 [inherently] transitory exception does not apply.”). Typically, the inherently transitory

10 doctrine ceases to apply when the court denies class certification, at which point the court

11 applies traditional mootness analysis. However, because the court denies Plaintiffs’

12 motion for class certification without prejudice to refining the subclass definitions and

13 providing further evidence of commonality, see infra § III.B., the court rejects the

14 contention that the remaining Individual Plaintiffs’ claims are moot at this juncture, see

15 Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1035 (5th Cir. 1981) (allowing

16 plaintiffs’ renewed motion for class certification to relate back to the initial motion for

17 class certification because the district court’s denial of the initial motion for class

18 certification was without prejudice and invited plaintiffs to present further evidence of

19 numerosity). Until the court issues a final determination on the merits of class

20

21 2000 . . . .”). The court is persuaded that W.H.’s standing is based on the filing of his initial

22

complaint, and the inherently transitory exception to mootness therefore saves his claim so long as he remains a potential or certified class representative.

ORDER- 21

1 certification, the remaining Individual Plaintiffs constitute putative class representatives

2 whose claims are inherently transitory and relate back to the filing of the amended

3 complaint. Id.; (see also 2/10/16 Order at 30-31 & n.23.) Accordingly, their claims are

4 not subject to dismissal on mootness grounds.

5

5. Organizational Plaintiffs

6

Defendants contend that Organizational Plaintiffs again fail to plead sufficient

7 facts to confer standing. (MTD at 17-18.) Even if Organizational Plaintiffs allege

8 sufficient facts to confer standing, Defendants argue that Organizational Plaintiffs fail to

9 state a claim. (Id. at 18-20.) The court addresses these arguments in turn.

10

a. Constitutional Standing

11

Organizational Plaintiffs can establish injury by demonstrating that they “suffered

12 ‘both a diversion of [their] resources and a frustration of [their] mission[s].’” La

13 Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088

14 (9th Cir. 2010) (citing Fair Housing of Marin v. Combs, 285 F.3d 899, 905 (9th Cir.

15 2002)). Defendants mount a facial challenge to Organizational Plaintiffs’ standing. See

16 Safe Air for Everyone, 373 F.3d at 1039 (“In a facial attack, the challenger asserts that the

17 allegations contained in a complaint are insufficient on their face to invoke federal

18 jurisdiction.”); (MTD at 17-18 (exclusively referencing the amended complaint).)

19 Defendants argue that the amended complaint “suffers from the same infirmities” as the

20 original complaint—namely, that it lacked “any indication of how much of

21 [Organizational Plaintiffs’] resources were diverted to assisting the types of claims that

22

ORDER- 22

1 survived [Defendants’ prior motion to dismiss] or what parts of their mission were

2 frustrated.” (MTD at 17-18 (citing 2/10/16 Order at 33).)

3

The amended complaint meaningfully alters Individual Plaintiffs’ allegations,

4 Organizational Plaintiffs’ allegations, and the interplay between the two. In the original

5 complaint, two Individual Plaintiffs lacked standing. (See generally 2/10/16 Order.)

6 Dismissal of those Individual Plaintiffs’ claims left a putative subclass without a viable

7 class representative. (Id. at 35-36.) Because “the complaint operate[d] on the assumption

8 that all three Individual Plaintiffs and the broad classes they s[ought] to represent ha[d]

9 the right to enforce various and varying federal regulations,” and Organizational

10 Plaintiffs’ allegations addressing organizational standing pertained generally to

11 “Defendants’ untimely adjudication of EAD applications,” the court concluded it was

12 “unclear the extent to which Organizational Plaintiffs’ allegations confer standing.” (Id.

13 at 33.)

14

Here, the same two Individual Plaintiffs lack standing. See supra § III.A.2.

15 (dismissing Ms. Arcos and Ms. Osorio). However, nine Individual Plaintiffs remain

16 parties to this lawsuit. (See Am. Compl. ¶¶ 18-25, 28.) Those Individual Plaintiffs seek

17 timely issued EADs or interim EADs when the regulatory timeline for issuing the EADs

18 expires, and they seek to represent subclasses of similarly situated individuals. (See

19 generally id.) NWIRP alleges that its clients include Individual Plaintiffs in all three

20 proposed subclasses. (Id. ¶ 83.) The Advocates alleges its clients are asylum seekers (id.

21 ¶ 85), some of whom fall into the 90-Day Subclass and others of whom fall into the

22 30-Day Subclass (id. ¶¶ 5, 16; see also MTD Resp. at 11).

ORDER- 23

1

Organizational Plaintiffs’ allegations support the inference USCIS’s actions

2 diverted Organizational Plaintiffs’ resources and frustrated their missions. See La

3 Asociacion de Trabajadores, 624 F.3d at 1088. NWIRP’s mission is “to assist

4 immigrants in obtaining legal status and the right to lawfully work in the United States.”

5 (Am. Compl. ¶ 82.) When “EAD applications are not timely adjudicated, . . . NWIRP

6 staff must respond to client calls and walk-ins, explain the EAD process, the reasons for 7 delay, and the lack of remedies,” among other diversions.9 (Id. ¶ 83.) These tasks divert

8 resources from NWIRP’s mission and thereby frustrate that mission. Contrary to

9 Defendants’ argument, at this stage NWIRP need not allege the magnitude of the 10 diversion.10 See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 & n.21 (1982)

11 (concluding that dismissal on the pleadings for lack of organizational standing was

12 inappropriate but recognizing that the organizational plaintiff would nonetheless “have to

13 demonstrate at trial that it ha[d] indeed suffered impairment in its role of facilitating open

14 housing before it w[ould] be entitled to judicial relief”). NWIRP’s current allegations

15

16

9 The Ninth Circuit recently acknowledged that “under current precedent it might not be enough merely to choose to divert resources: current precedent might be understood to require

the organization to show that it was ‘forced’ to divert resources to avoid or counteract an injury 17 to its own ability to function.” Animal Legal Def. Fund v. U.S. Dep’t of Agric., 632 F. App’x

905, 909 (9th Cir. 2015) (citing Comite de Jornaleros de Redondo Beach v. City of Redondo

18 Beach, 657 F.3d 936, 943 (9th Cir. 2011) (en banc)). The court can plausibly infer that at least

some of the alleged diversions forced Organizational Plaintiffs to respond, and thus at this stage

19 the court does not find that this line of cases undermines whether Organizational Plaintiffs have

standing.

20 10 Defendants misapply the legal standard on a facial challenge to standing, as evidenced

21 by phrases such as “fails to show” and “do not show any evidence.” (MTD at 18.) Plaintiffs need not “show” anything at the pleading stage; rather, their factual allegations, accepted as true,

22

and all reasonable inferences arising therefrom must support jurisdiction. See Leite, 749 F.3d at 1121.

ORDER- 24

1 permit a plausible inference that the magnitude of diversion is sufficient to confer

2 standing. (See MTD at 18.)

3

The Advocates also alleges sufficient detail to confer standing. The Advocates

4 states that its mission is “providing legal services to asylum seekers in Minnesota, North

5 Dakota, and South Dakota.” (Am. Compl. ¶ 85.) Instead of providing legal services, the

6 Advocates “divert[s] scarce resources to resolving and addressing EAD adjudication

7 delays” for initial and renewal EAD requests. (Id.) The Advocates’ “staff attorneys

8 spend considerable time calling and e-mailing USCIS, working with employees to hold

9 jobs open until their clients’ EADs are renewed, intervening with the state on driver’s

10 license issues, and working with agency liaison and congressional offices to try to obtain

11 EADs for their clients.” (Id.) These allegations sufficiently show that the Advocates

12 must divert resources from advocating in support of asylum applications to addressing

13 and redressing untimely issued EADs. Accordingly, the court concludes the Advocates 14 has pleaded sufficient facts to confer standing.11

15

b. Failure to State an APA Claim

16

Defendants next argue that Organizational Plaintiffs fail to state an APA claim

17 because Organizational Plaintiffs do not fall within the zone of interests of the 18 Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1101 et seq., and the related

19

20 11 To be clear, the court concludes that Organizational Plaintiffs’ pleadings withstand a

21 facial attack on standing. See Safe Air for Everyone, 373 F.3d at 1039. Defendants have not mounted a factual attack on standing, nor does the court see reason to raise the issue sua sponte

22

at this juncture, and accordingly the court expresses no opinion on that distinct question. (Cf. MTD Reply at 5 n.1.)

ORDER- 25

1 regulations.12 (MTD at 18-20.) To bring an APA claim, a plaintiff must assert an interest

2 that is “‘arguably within the zone of interests to be protected or regulated by the statute’

3 that he says was violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.

4 Patchak, --- U.S. ---, 132 S. Ct. 2199, 2210 (2012) (quoting Ass’n of Data Processing

5 Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)); see also id. (“[W]e have always

6 conspicuously included the word ‘arguably’ in the test to indicate that the benefit of any

7 doubt goes to the plaintiff.”). This inquiry “is not meant to be especially demanding.”

8 Id. (citing Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987)). “The test forecloses

9 suit only when a plaintiff’s ‘interests are so marginally related to or inconsistent with the

10 purposes implicit in the statute that it cannot reasonably be assumed that Congress

11 intended to permit the suit.’” Id. (quoting Clarke, 479 U.S. at 399).

12

The “pivotal question here is whether [DHS] intended to create a cause of action

13 encompassing [Organizational Plaintiffs’] claims when it” formulated the relevant 14 regulations.13 Pit River Tribe, 793 F.3d at 1156. The court must answer this question

15

16

12 Although “[t]he Supreme Court has often characterized the zone-of-interests test as a

‘prudential standing’ requirement,” the Court recently “rejected the ‘prudential standing’ label 17 and made clear that whether a plaintiff’s claims are within a statute’s zone of interests is not a

jurisdictional question.” Pit River Tribe v. Bureau of Land Mgmt., 793 F.3d 1147, 1155 (9th Cir.

18 2015) (citing Lexmark Int’l, Inc. v. Static Control Components, --- U.S. ---, 134 S. Ct. 1377,

1387-88 (2014)). Instead, it is a question of statutory standing, which does not implicate the

19 court’s subject matter jurisdiction. Id.; see also Nw. Requirements Utils. v. F.E.R.C., 798 F.3d

796, 807 n.9 (9th Cir. 2015).

20 13 In advocating for and against the zone of interests, neither side differentiates between

21 the INA and the regulations enacted thereunder. The Ninth Circuit has cautioned that “courts should not use regulations to expand the zone of interest beyond what Congress intended.”

22

Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 944 n.4 (9th Cir. 2005). However, the Ninth Circuit issued that caution in a case in which the purported right to sue arose under the

ORDER- 26

1 “not by reference to the overall purpose of the [regulations] in question . . . , but by

2 reference to the particular provision of law upon which [Organizational Plaintiffs] rel[y].”

3 Bennett v. Spear, 520 U.S. 154, 175-76 (1997). The regulations governing asylum-based

4 EAD applicants are intended chiefly to “ensure that bona fide asylees are eligible to

5 obtain employment authorization as quickly as possible.” Inspection and Expedited

6 Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings;

7 Asylum Procedures, 62 Fed. Reg. 10,312, 10,318 (Mar. 6, 1997). The EAD regulations

8 that apply to non-asylum-based applications are intended to address “the importance of

9 expeditious processing of employment authorization applications.” Control of

10 Employment of Aliens, 52 Fed. Reg. 16,216, 16,220 (May 1, 1987).

11

Defendants argue that these regulations were not “enacted to prevent organizations

12 that represent individuals applying for employment authorization from expending

13 resources to handle any delay in the adjudication of applicants.” (MTD at 20.)

14 Organizational Plaintiffs respond that the applicable regulations implicate their interests

15 because Organizational Plaintiffs “have an instrumental role to play in assisting their

16 clients to obtain EADs.” (MTD Resp. at 17 (“Organizational Plaintiffs play a significant

17 role in preparation and, where necessary, advocacy on behalf of clients in their

18 applications for EADs.”).) Because this role is “squarely within the ambit of the

19 regulations” (id.), Plaintiffs contend that they satisfy the zone of interests test.

20

21 statute and not the regulations. Id. at 939. Where, as here, the purported substantive right arises

22

from the regulation itself, it is appropriate to look to both the statute and the regulation that underlies it. See Cox Cable Tuscon, Inc. v. Ladd, 795 F.2d 1479, 1481 (9th Cir. 1986).

ORDER- 27

1

Organizational Plaintiffs base their argument that they fall within the zone of

2 interests on the implicit premise that their “role” equates to their “interest” in the

3 litigation. (See MTD Resp. at 17.) Organizational Plaintiffs cite no authority supporting

4 this premise. In contrast, the Ninth Circuit and several district courts therein equate a

5 party’s “interests” with the “injuries” that confer constitutional standing upon that party.

6 See, e.g., Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001) (“In addition

7 to [Article III’s standing] requirements, a plaintiff bringing suit under the Administrative

8 Procedure Act for a violation of [a statute] must show that his alleged injury falls within

9 the ‘zone of interests’ that [the statute] was designed to protect.”); Oberdorfer v. Jewkes,

10 583 F. App’x 770, 773 (9th Cir. 2014) (“[The plaintiff]’s economic injury . . . suffices for

11 Article III standing but does not fall within [the statute]’s zone of interests. [The

12 plaintiff]’s environmental injury . . . is within [the statute]’s zone of interests but will not

13 be redressed by a favorable decision, since the damage in question occurred in the past.”);

14 Yount v. Salazar, No. CV11-8171 PCT-DGC, 2014 WL 4904423, at *6 (D. Ariz. Sept.

15 30, 2014) (citing Lexmark, 134 S. Ct. at 1387) (concluding that applying the

16 “single-injury requirement,” which requires that the injury that confers constitutional

17 standing is also the injury that falls within the relevant statute’s zone of interests,

18 comports with the purposes of the statutory standing doctrine—ascertaining and heeding

19 congressional intent); Kanoa Inc. v. Clinton, 1 F. Supp. 2d 1088, 1095 (D. Haw. 1998)

20 (“Plaintiff’s injuries, economic losses, are not within the zone of interests that the

21 [statute] was enacted to protect.”).

22

ORDER- 28

1

Organizational Plaintiffs’ clients, who presumably resemble Individual Plaintiffs

2 and the putative classes they seek to represent, suffer injuries from delayed adjudication

3 of EADs. (See, e.g., Am. Compl. ¶¶ 49, 52, 55-56, 58, 61, 63, 66-67, 71, 81.) These

4 injuries place those plaintiffs within the zone of interests of the relevant INA and

5 regulatory provisions. See 52 Fed. Reg. at 16,216; 62 Fed. Reg. at 10,318. However,

6 Organizational Plaintiffs allege a markedly different injury—diversion of scarce

7 resources—and that injury is the toehold that supports Organizational Plaintiffs’ standing.

8 See supra § III.A.5.c.; (Am. Compl. ¶¶ 83-85.) Supreme Court Justice Sandra Day

9 O’Connor, sitting as the Circuit Justice for the Ninth Circuit, made the following

10 observations about the Immigration Reform and Control Act (“IRCA”) and the

11 regulations enacted thereunder:

12

IRCA was clearly meant to protect the interests of undocumented aliens,

not the interests of organizations . . . . Though such organizations did play

13

a role in the IRCA scheme—during the amnesty period, they were so-called

“qualified designated entities,” which were to “assis[t] in the program of

14

legalization provided under this section,” [8 U.S.C.] § 1255a(c)(2)—there

is no indication that IRCA was in any way addressed to their interests. The

15

fact that the INS regulation may affect the way an organization allocates its

resources . . . does not give standing to an entity which is not within the

16

zone of interests the statute meant to protect.

17 I.N.S. v. Legalization Assistance Project of L.A. Cty. Fed’n of Labor, 510 U.S. 1301,

18 1305 (1993) (first alteration in original); see also Immigrant Assistance Project of L.A.

19 Cty. Fed’n of Labor (AFL-CIO) v. I.N.S., 306 F.3d 842, 867 (9th Cir. 2002) (emphases in

20 original) (interpreting Justice O’Connor’s opinion as holding “that the IRCA did not give

21 organizational plaintiffs standing to sue on their own behalf” but that organizational

22 plaintiffs had “standing to sue on behalf of their members whose claims are ripe”); Situ v.

ORDER- 29

1 Leavitt, No. C06-2841 THE, 2006 WL 3734373, at *10 (N.D. Cal. Dec. 18, 2006)

2 (“[T]he Court finds that the organizational plaintiffs in this case fail to satisfy the zone of

3 interests test because they have failed to rebut Defendant’s argument that the Medicare

4 statutory scheme is intended to protect individuals, not advocacy organizations.”).

5

Organizational Plaintiffs’ claims are analogous to the claims that Justice O’Connor

6 confronted. See Legalization Assistance Project, 510 U.S. at 1302 (characterizing the

7 organizational plaintiffs as “organizations that provide legal help to immigrants” and

8 “believe the INS interpreted” amnesty provisions “too narrowly”). Organizational

9 Plaintiffs do not argue that the applicable INA and regulatory provisions provide recourse 10 for advocates’ diverted resources in addition to protection for EAD applicants.14 (See

11 MTD Resp. at 15-17.) Nor can the text of the relevant provisions be fairly read to

12 implicate Organizational Plaintiffs’ interest in the efficient use of resources. Finally, the

13 regulatory history shows that the regulations were intended to promote expediency and

14 predictability for the sake of EAD applicants. See 52 Fed. Reg. at 16,216; 62 Fed. Reg.

15 at 10,318.

16

Accordingly, even though the zone of interests inquiry is not demanding, the court

17 concludes that Organizational Plaintiffs’ interests are unarguably “so marginally related

18

19

14 Elsewhere, Organizational Plaintiffs argue that they have third-party standing to sue on

behalf of Individual Plaintiffs. (MTD Resp. at 18-19 (arguing that the court “should reject

20 Defendants’ argument that the Organizational Plaintiffs have not adequately stated a mandamus claim” for two reasons: “[f]irst,” because it is an issue of prudential standing, and “[s]econd,”

21 because “Organizational Plaintiffs meet the prudential standing requirement for asserting the rights of third parties”).) Because Organizational Plaintiffs direct that argument only toward

22

their Mandamus Act claim, the court declines to consider it as applied to the APA claim. See infra § III.A.5.c.

ORDER- 30

1 to . . . the purposes implicit in the [regulation] that it cannot reasonably be assumed that

2 Congress [and the regulators] intended to permit the suit.” Match-E-Be-Nash-She-Wish,

3 132 S. Ct. at 2210. The court therefore dismisses Organizational Plaintiffs’ APA claim

4 for failure to state a claim.

5

c. Failure to State a Mandamus Act Claim

6

Defendants also seek dismissal of Organizational Plaintiffs’ Mandamus Act claim

7 on the basis that Defendants owe no duty to Organizational Plaintiffs and therefore

8 Organizational Plaintiffs lack statutory standing. The Mandamus Act confers jurisdiction

9 on the court “to compel an officer or employee of the United States or any agency

10 thereof” to take certain actions. 28 U.S.C. § 1361. However, the court may only compel

11 the officer or employee to “perform a duty owed to the plaintiff.” Id. The Ninth Circuit 12 has concluded “a duty is ‘owed to the plaintiff’ if the plaintiff falls within the ‘zone of 13 interests’ protected by the underlying statute.” Silveyra v. Moschorak, 989 F.2d 1012, 14 1014 n.1 (9th Cir. 1993) (citing Jarecki v. United States, 590 F.2d 670, 675 (7th Cir.

15 1979)), superseded by statute on other grounds, 8 U.S.C. § 1252(i); see also Blackman v.

16 Taxdahl, No. CV F 04 6389 AWI NEW (DLB) P, 2007 WL 613862, at *3 (E.D. Cal.

17 Feb. 27, 2007).

18

The Ninth Circuit, reasoning that “both the APA and the Mandamus Act are

19 ‘ordinary element[s] of administrative enforcement schemes,’ and both provide a basis

20 for compelling an agency to take action which by law it is required to take,” has

21 concluded that there is “no reason to infer differing [statutory] standing requirements for

22 these two means of compelling wrongfully withheld agency action.” See Soler v. Scott,

ORDER- 31

1 942 F.2d 597, 605 (9th Cir. 1991) (first alteration in original) (internal citations omitted),

2 vacated on other grounds by Sivley v. Soler, 506 U.S. 969 (1992); see also

3 Hernandez-Avalos v. I.N.S., 50 F.3d 842, 846 (10th Cir. 1995) (“[B]ecause mandamus is

4 properly sought where government officials ‘owe a duty’ to the plaintiff, and because a

5 ‘duty’ is ‘owed’ in the administrative context if the plaintiff’s interest is within the ‘zone

6 of interests’ protected by the underlying statute, all a plaintiff seeking mandamus in

7 administrative litigation need show is that the interest he seeks to vindicate falls within

8 the statutory zone of interests.”); Giddings v. Chandler, 979 F.2d 1104, 1110 (5th Cir.

9 1992) (“[S]tanding under the APA is determined by applying the same ‘zone of interest’

10 test as applied to determine standing in the mandamus context.”). The court has

11 concluded that Organizational Plaintiffs do not fall within the zone of interests of the

12 applicable statute and regulations for purposes of their APA claim. See supra § III.A.5.b.

13 By the same reasoning, Organizational Plaintiffs’ Mandamus Act claim fails because

14 Defendants do not owe a duty to Organizational Plaintiffs. See 28 U.S.C. § 1361.

15

Organizational Plaintiffs raise only one argument in support of their Mandamus

16 Act claim that they did not raise in support of their APA claim: “Organizational

17 Plaintiffs meet the prudential standing requirement for asserting the rights of third

18 parties.” (MTD Resp. at 18); see also supra n.14. Organizational Plaintiffs therefore

19 argue that even if Defendants do not owe them a duty, Defendants owe a duty to

20 Organizational Plaintiffs’ clients, and Organizational Plaintiffs should be treated as

21 falling within the zone of interests because they have standing to raise their clients’

22 rights.

ORDER- 32

1

Generally, a party “must assert his own legal rights and interests, and cannot rest

2 his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422

3 U.S. 490, 499 (1975). However, this rule is not absolute, and the Supreme Court has

4 authorized third-party standing when “the party asserting the right has a ‘close’

5 relationship with the person who possesses the right” and “there is a ‘hindrance’ to the 6 possessor’s ability to protect his own interests.”15 Kowalski v. Tesmer, 543 U.S. 125, 129

7 (2004); see also id. at 130 (emphasis in original) (indicating that the Supreme Court has

8 more leniently allowed third-party standing in the First Amendment context and “when

9 enforcement of the challenged restriction against the litigant would result indirectly in

10 the violation of third parties’ rights,” but otherwise has “not looked favorably upon

11 third-party standing”).

12

Here, Organizational Plaintiffs do not have a close relationship with the class they

13 seek to represent. Organizational Plaintiffs point out that “courts have in some cases

14 found third-party standing for attorneys representing clients.” (MTD Resp. at 19.)

15 However, the Supreme Court has held that a “hypothetical attorney-client relationship”

16 between attorneys and “as yet unascertained Michigan criminal defendants ‘who will

17 request, but be denied, the appointment of appellate counsel’” is an insufficient

18 attorney-client relationship to support third-party standing. Kowalski, 543 U.S. at

19 130-31. Much like in Kowalski, Organizational Plaintiffs seek to assert the rights of an

20

21

15 The party asserting the right must also have Article III standing, see Caplin &

22

Drysdale, Chartered v. United States, 491 U.S. 617, 623 n.3 (1989), which Organizational Plaintiffs have adequately alleged, see supra § III.A.5.a.

ORDER- 33

1 “as yet unascertained” class of EAD applicants “who will request” and fail to timely

2 receive EAD or interim EAD approval. Id. This relationship is insufficient to confer

3 third-party standing on Organizational Plaintiffs.

4

Furthermore, Organizational Plaintiffs’ clients are not sufficiently hindered in their

5 ability to protect their own interests. As demonstrated by this lawsuit, Organizational

6 Plaintiffs’ clients are capable of filing a lawsuit to vindicate their rights. (See Compl.)

7 Each Individual Plaintiff has obtained the individual relief that she or he sought. See

8 Pruitt v. City of Arlington, No. C08-1107MJP, 2009 WL 1505267, at *2 (W.D. Wash.

9 May 28, 2009) (concluding that where a third party was “also a plaintiff in th[e] lawsuit,

10 her ability to protect her own interests [wa]s not hindered”); see also Suciu v.

11 Washington, No. 12-12316, 2012 WL 4839924, at *4 (E.D. Mich. Oct. 11, 2012)

12 (“Prisoners may pursue relief through the grievance process and through the courts.

13 These methods would be effective to resolve the issue before any loss of standing.”).

14 Furthermore, as Defendants acknowledge, the “inherently transitory” exception to the

15 mootness doctrine enables Individual Plaintiffs to seek injunctive relief on behalf of a

16 putative class, even after Defendants adjudicate their EAD applications. (See MTD at 14

17 n.3); supra § III.A.4. The permissive nature of standing doctrine and its temporal

18 permutations in the context of putative class actions further undermines the notion that

19 Organizational Plaintiffs’ clients suffer a sufficient hindrance to filing this lawsuit.

20 Finally, difficulty in or reticence to obtaining an attorney does not constitute “the type of

21 hindrance necessary to allow another to assert” EAD applicants’ rights. Kowalski, 543

22

ORDER- 34

1 U.S. at 569. Accordingly, the infrequency with which plaintiffs file suits such as this one

2 is also unpersuasive evidence of a hindrance. (See MTD Resp. at 19.)

3

This case thus does not resemble those in which courts have concluded that a third

4 party’s ability to protect its own interests was sufficiently hindered to warrant third-party

5 standing. See, e.g., Powers v. Ohio, 499 U.S. 400, 411 (“[W]e have permitted criminal

6 defendants to challenge their convictions by raising the rights of third parties. . . . By

7 similar reasoning, we have permitted litigants to raise third-party rights in order to

8 prevent possible future prosecution.”); Singleton v. Wulff, 428 U.S. 106, 117 (1976)

9 (allowing physicians to sue on behalf of women seeking abortions after identifying

10 “several obstacles” to women asserting their own rights, including the chilling effect of

11 “the publicity of a court suit” and “imminent mootness”); Homeaway Inc. v. City & Cty.

12 of S.F., No. 14-cv-04859-JCS, 2015 WL 367121, at *11 (N.D. Cal. Jan. 27, 2015)

13 (“Decisions that have found a sufficient hindrance generally identify more structural

14 concerns than are present [in a business-customer relationship].”). Accordingly, the court

15 rejects the contention that Organizational Plaintiffs have statutory standing to pursue their

16 Mandamus Act claim on behalf of third parties.

17

The court concludes that Organizational Plaintiffs lack statutory standing to assert

18 their Mandamus Act claim and cannot circumvent that conclusion by asserting the rights

19 //

20 //

21 //

22 //

ORDER- 35

1 of their clients.16 Therefore, the court dismisses Organizational Plaintiffs’ Mandamus

2 Act claim.

3 B. 4

Plaintiffs’ Motion for Class Certification Plaintiffs move to certify three subclasses. As a threshold matter, the court has

5 dismissed Ms. Osorio, who served as the only putative representative of the DACA

6 Renewal Subclass. (Am. Compl. ¶ 91; MCC at 6); supra § III.A.2. Accordingly, the

7 court denies Plaintiffs’ motion to certify the DACA Renewal Subclass for lack of

8 adequate representation. However, putative class representatives remain for the 90-Day

9 Subclass and the 30-Day Subclass, and the court analyzes whether class certification is

10 appropriate as to those subclasses.

11

1. Legal Standard

12

“Class certification is governed by Federal Rule of Civil Procedure 23.”

13 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011). Under Federal Rule of Civil

14 Procedure Rule 23(a), the party seeking certification must first demonstrate that “(1) the

15 class is so numerous that joinder of all members is impracticable; (2) there are questions

16 of law or fact common to the class; (3) the claims or defenses of the representative parties

17 are typical of the claims or defenses of the class; and (4) the representative parties will

18

19

16 The conclusion that Organizational Plaintiffs lack statutory standing under the APA

and Mandamus Act is a determination of law and cannot be remedied by further allegations.

20 Accordingly, the court concludes that amendment of Organizational Plaintiffs’ claims would be futile and dismisses those claims without leave to amend. See Cahill v. Liberty Mut. Ins. Co., 80

21 F.3d 336, 339 (9th Cir. 1996); Kibby Road, LLC v. N. Tr. Co., No. 15-cv-00795-YGR, 2015 WL 2198724, at *5 (N.D. Cal. May 11, 2015) (denying leave to amend because “th[e] case

22

present[ed] a straightforward disagreement as to a basic legal question, where the relevant facts . . . [we]re not in dispute”).

ORDER- 36

1 fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). “Second,

2 the proposed class must satisfy at least one of the three requirements listed in Rule

3 23(b).” Dukes, 564 U.S. at 345; see also Leyva v. Medline Indus. Inc., 716 F.3d 510, 512

4 (9th Cir. 2013). Here, Plaintiffs seek to certify a class under Rule 23(b)(2), which

5 requires that “the party opposing the class has acted or refused to act on grounds that

6 apply generally to the class, so that final injunctive relief or corresponding declaratory

7 relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2); (see MCC

8 at 6, 21.) “Rule 23(b)(2) applies only when a single injunction or declaratory judgment

9 would provide relief to each member of the class.” Dukes, 564 U.S. at 360.

10

Rule 23 “does not set forth a mere pleading standard.” Id. at 350. Rather,

11 “certification is proper only if the trial court is satisfied, after a rigorous analysis, that the

12 prerequisites of Rule 23(a) have been satisfied.” Id. at 350-51 (internal quotation

13 omitted). “[I]t may be necessary for the court to probe behind the pleadings before

14 coming to rest on the certification question.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.

15 147, 160 (1982). This is because “the class determination generally involves

16 considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s

17 cause of action.” Id. (internal quotation omitted). Nonetheless, the ultimate decision

18 regarding class certification “involve[s] a significant element of discretion.” Yokoyama

19 v. Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1090 (9th Cir. 2010).

20

2. Putative Subclasses

21

Plaintiffs propose the following definition for the 90-Day Subclass:

22

ORDER- 37

1

Noncitizens who have filed or will file applications for employment

authorization that were not or will not be adjudicated within the required

2

regulatory timeframe, comprising those who . . . [h]ave filed or will file

applications for employment authorization under 8 C.F.R. § 274a.13,

3

excluding initial applications based on pending asylum applications or

requests to renew Deferred Action for Childhood Arrivals, but who have

4

not received or will not receive a grant or denial of their EAD applications

within 90 days of filing, and who are entitled or will be entitled to interim

5

employment authorization under 8 C.F.R. § 274a.13(d), but who have not

received or will not receive interim employment authorization.

6

Applications for employment authorization based on Deferred Action for

Childhood Arrivals, U or T visa applications, and self-petitions under the

7

Violence Against Women Act are excluded until USCIS has determined

eligibility for the underlying immigration benefit or granted deferred action.

8

(MCC at 2.) Plaintiffs contend that this putative subclass constitutes individuals that are

9

entitled pursuant to 8 C.F.R. § 274a.13(d) to receive an interim EAD or an adjudication

10

of their EAD application within 90 days of submitting the application, but receive neither

11

in a timely fashion. (Id. at 3.) Acknowledging that Section 274a.13(d) does not apply to

12

all EAD applications, Plaintiffs exclude three types of EAD applications from their

13

proposed definition (see MCC at 4): (1) initial EAD applications based on a pending

14

asylum application, see 8 C.F.R. §§ 208.7, 274a.12(c)(8); (2) EAD applications with a

15

pending permanent residence application under the Haitian Refugee Immigration

16

Fairness Act (“HRIFA”), 8 U.S.C. § 1151 et seq.; and (3) certain spouses of H-1B

17

nonimmigrants, see 8 C.F.R. § 214.2(h)(9)(iv).

18

Plaintiffs propose the following definition for the 30-Day Subclass:

19

Noncitizens who have filed or will file applications for employment

20

authorization that were not or will not be adjudicated within the required

regulatory timeframe, comprising those who . . . [a]re asylum applicants

21

who have filed or will file initial applications for employment authorization

under 8 C.F.R. § 208.7, but who, absent any applicant-caused delay, have

22

not received or will not receive a grant or denial of their EAD applications

ORDER- 38

1

within 30 days of filing, and who have not received or will not receive

interim employment authorization. 2

(MCC at 2.) According to Plaintiffs, this subclass “is comprised of asylum applicants 3

making their first application for an asylum-based EAD, also called an initial asylum 4

EAD.” (Id. at 5.) Plaintiffs contend that members of this class are entitled to 5

adjudication of their EAD application within 30 days pursuant to 8 C.F.R. § 208.7(a)(1). 6

(Id.) 7

Defendants oppose the 90-Day Subclass and the 30-Day Subclass on the same

8

grounds. First, Defendants restate the standing arguments that the court addressed above. 9

(MCC Resp. at 8-12.) Defendants then argue that Plaintiffs fail to satisfy the 10

commonality, typicality, and adequacy requirements. (Id. at 12-23.) 11

3. Certification
12 Plaintiffs argue that their proposed subclasses satisfy all Rule 23(a) and Rule

13 23(b)(2) requirements.17 The court analyzes those requirements below.

14

15

16

17 For class actions proceeding under Rule 23(b)(3), courts require a putative lead plaintiff to show that the class definition is ascertainable in addition to the express requirements

of Rules 23(a) and 23(b)(3). See O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D. 17 Cal. 1998). However, the Ninth Circuit has not ruled on whether and to what extent this tacit

ascertainability requirement applies to a class proceeding under Rule 23(b)(2), and courts are

18 split on that issue. See Bee, Denning, Inc. v. Cap. All. Corp., No. 13-cv-02654-BAS(WVG),

2016 WL 3952153, at *4 (S.D. Cal. July 21, 2016) (collecting cases). This court has previously

19 adopted the rationale that “due to the unique characteristics of a Rule 23(b)(2) class, it is

improper to require ascertainability.” Dunakin v. Quigley, 99 F. Supp. 3d 1297, 1326 (W.D.

20 Wash. 2015); see also Bee, Denning, Inc., 2016 WL 3952153, at *4 (concluding that the majority approach “appears to favor either a lower standard for the ascertainability requirement or no

21 requirement at all in the 23(b)(2) context”). In addition, Defendants do not contend that an ascertainability requirement applies or that the subclass definitions suffer from ascertainability

22

flaws. Accordingly, the court concludes that ascertainability presents no obstacle to class certification.

ORDER- 39

1

a. Numerosity

2

“The prerequisite of numerosity is discharged if ‘the class is so large that joinder

3 of all members is impracticable.’” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th

4 Cir. 1998) (quoting Fed. R. Civ. P. 23(a)(1)). Plaintiffs note that “DHS has control of the

5 information proving the impracticability of joinder and does not make such information

6 available.” (MCC at 8.) If DHS has such information, it is presumably available through

7 discovery in this action. Plaintiffs have apparently not obtained such information via

8 discovery.

9

The USCIS Ombudsman’s 2016 report indicates based on information from

10 USCIS that “more than 2 million EAD applications were filed with the agency in FY

11 2015,” and 449,307, or 22 percent, of those applications were adjudicated more than 90

12 days after filing. U.S. Dep’t of Homeland Sec., USCIS Ombudsman Annual Report 2016

13 [hereinafter, 2016 Ombudsman Report] at 61-62 & nn.474, 487 (June 29, 2016),

14 available at https://www.dhs.gov/annual-report-congress (“While some delays are due to

15 the customer’s failure to file timely or provide required documentation, other delays

16 occur through no fault of the customer.”). This evidence does not indicate how many of

17 the 449,307 applications adjudicated after 90 days were timely—for instance, because

18 they were subject to tolling. However, Plaintiffs have provided sampled statistical

19 evidence from numerous sources that demonstrates USCIS fails to timely adjudicate

20 EAD applications for putative members of both subclasses. (See MCC at 9 n.7

21 (collecting declarations).) Furthermore, Defendants have conceded that USCIS has for

22 the most part ceased granting interim EADs. (See 2/10/16 Order at 7 n.6); see also 2016

ORDER- 40

1 Ombudsman Report at 61 (“Interim EADs are no longer issued by the agency, despite

2 regulatory language allowing for that option after 90 days.”).

3

Based on this evidence, “general knowledge,” and “common sense,” the court can

4 infer that both putative subclasses are sufficiently large. Perez-Funez v. Dist. Dir., I.N.S.,

5 611 F. Supp. 990, 995 (C.D. Cal. 1984). Further, each putative subclass includes

6 “unnamed and unknown future” EAD applicants, and joinder of such “individuals is

7 inherently impracticable.” Jordan v. L.A. Cty., 669 F.2d 1311, 1320 (9th Cir. 1982),

8 vacated on other grounds, 459 U.S. 810. Finally, Defendants do not argue that either

9 subclass is insufficiently numerous. (See generally MCC Resp.) The court therefore

10 concludes that the 90-Day Subclass and the 30-Day Subclass are both sufficiently

11 numerous to satisfy Rule 23(a)(1).

12

b. Commonality

13

The requirement of “commonality” is met through the existence of a “common

14 contention” that is of “such a nature that it is capable of classwide resolution.” Dukes,

15 564 U.S. at 350. A contention is capable of classwide resolution if “the determination of

16 its truth or falsity will resolve an issue that is central to the validity of each one of the

17 claims in one stroke.” Id. Accordingly, “what matters to class certification . . . is not the

18 raising of common questions—even in droves—but, rather the capacity of a classwide 19 proceeding to generate common answers apt to drive the resolution of the litigation.” Id. 20 This requirement is “construed permissively.” Hanlon, 150 F.3d at 1019. Accordingly, 21 “[a]ll questions of fact and law need not be common to satisfy the rule.” Id.; see also

22 Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir. 2010).

ORDER- 41

1

Here, the answers to one legal question and one factual question will “drive the

2 resolution of the litigation.” Dukes, 564 U.S. at 350. The legal question is whether

3 USCIS is legally obligated to adjudicate EAD applications within a certain timeframe.

4 (See MCC at 15; Am. Compl. ¶¶ 104-17, 125-132.) Although there may be a nuanced

5 difference between the relief available to the 30-Day Subclass and the 90-Day Subclass

6 (see 2/10/16 Order at 26 n.19), this legal question will at most generate one answer—yes

7 or no—for each putative subclass. This legal issue is thus a “common contention” that is

8 “capable of classwide resolution.” Dukes, 564 U.S. at 350.

9

The core factual question in this case asks to what degree USCIS fails to timely

10 adjudicate EAD applications. (See MCC at 15.) Although this inquiry appears ripe for a

11 straightforward answer, the current proposed subclass definitions render the question

12 “[in]capable of classwide resolution.” Id. As exemplified by Individual Plaintiffs,

13 Defendants’ records will provide some common evidence relevant to that question. (See,

14 e.g., A.R.s (Dkt. ## 38, 67 to 67-8.) However, the proposed subclass definitions suffer

15 from several flaws that necessitate a substantial individualized inquiry into the timeliness

16 of USCIS’s adjudications.

17

As Defendants argue, the timeliness of USCIS’s adjudication requires an

18 individualized inquiry to determine in what circumstances the 30- or 90-day adjudication

19 period was tolled or reset.18 (MCC Resp. at 15 (citing 8 C.F.R. §§ 103.2(b)(10),

20

21

18 Defendants also make the broader argument that of the 40 or more types of aliens

22

eligible to seek an EAD, a panoply of diverse factual scenarios arise that render some applicants eligible for an EAD and some applicants ineligible. (See MCC Resp. at 14 (citing 8 C.F.R.

ORDER- 42

1 208.7(a)(2)) (arguing that depending on the type of EAD applicant, applicant-caused

2 delay, failure to provide initial evidence, rescheduling requests, requests for evidence,

3 and missing a biometric appointment may toll or reset the relevant adjudicatory

4 deadline).) The proposed subclasses exclude most, but not all, individuals whose

5 adjudicatory time period is tolled or reset. For instance, the 90-Day Subclass excludes

6 EAD applications based on “Deferred Action for Childhood Arrivals, U or T visa

7 applications, and self-petitions under the Violence Against Women Act . . . until USCIS

8 has determined eligibility for the underlying immigration benefit or granted deferred

9 action.” (MCC at 2.) The 90-Day Subclass further categorically excludes individuals

10 who base their EAD application on an application for DACA renewal. (Id. (excluding

11 “initial applications based on . . . requests to renew Deferred Action for Childhood

12 Arrivals”).) The 30-Day Subclass excludes EAD applicants who have “caused delay.”

13 By excluding from the subclasses these individuals, Plaintiffs temper Defendants’

14 argument that the proposed subclasses lack commonality.

15

However, the subclass definitions fail to account for several scenarios that may

16 also toll the 30-day and 90-day EAD adjudication clocks. For instance, if an EAD

17 application “is missing required initial evidence, or an applicant, petitioner, sponsor,

18 beneficiary, or other individual who requires fingerprinting requests that the

19 fingerprinting appointment or interview be rescheduled,” the adjudication clock is tolled

20

21 §§ 274a.12(a), (c)).) This argument sidesteps Plaintiffs’ claim, which is that irrespective of an applicant’s ultimate eligibility for an EAD, USCIS must either adjudicate applications within 90

22

days for members of the 90-Day Subclass and 30 days for members of the 30-Day Subclass, or issue interim EADs. (See, e.g., Am. Compl. ¶ 5.)

ORDER- 43

1 during the delay. 8 C.F.R. § 103.2(b)(10)(i).19 Each putative class member’s claim

2 would need to be evaluated to see if this situation had occurred—a substantial

3 individualized undertaking.

4

Plaintiffs respond that in the event Section 103.2(b)(10)(i) tolls or resets the

5 adjudicatory period, “the deadline would not have expired, and the applicant would not

6 be a member of the class, at least until the problem is remedied and the day-count restarts

7 and reaches either 30 or 90 days.” (MCC Reply (Dkt. # 75) at 5 (citing 8 C.F.R.

8 § 103.2(b)(10)(i)).) Plaintiffs do not clearly indicate which aspect of the class definition

9 they view as imposing this limitation. However, the overarching, opening clause to the

10 class definition, which applies to both subclass definitions, arguably incorporates the 11 limitation.20 That clause includes in each subclass only noncitizens whose EAD

12 applications “were not or will not be adjudicated within the required regulatory

13 timeframe.” (MCC at 2.) This language could be read to exclude individuals whose

14

15

19 On August 29, 2016, an amended version of 8 C.F.R. § 103.2 went into effect, but the

amendment merely remedied several typographic errors in the prior version of the regulation.

16

Compare 8 C.F.R. § 103.2(b)(10)(i) (effective Jan. 27, 2015) with 8 C.F.R. § 103.2(b)(10)(i) (effective Aug. 29, 2016).

17

20 Neither subclass-specific definition incorporates this limitation. The 90-Day Subclass

proposes to include noncitizens “who have not received or will not receive a grant or denial of

18 their EAD applications within 90 days of filing.” (MCC at 2.) The 30-Day Subclass similarly

proposes to include noncitizen asylum applicants “who, absent any applicant-caused delay, have

19 not received or will not receive a grant or denial of their EAD applications within 30 days of

filing.” (Id.) Although this definition’s reference to “applicant-caused delay” (id.) could be read

20 to except from the subclass definition the missing evidence or rescheduling circumstances that lead to tolling, see 8 C.F.R. § 103.2(b)(10)(i), the better reading is that “applicant-caused delay”

21 refers to one of the provisions of Section 208.7, see 8 C.F.R. § 208.7(a)(2) (“Any delay requested or caused by the applicant shall not be counted as part of these time periods . . . .”). Both

22

subclass definitions thus fail to exclude EAD applicants who have waited the requisite 30- or 90-day period but whose adjudications are not overdue because of tolling or resetting.

ORDER- 44

1 adjudicatory deadline has tolled or reset because those individuals’ “regulatory

2 timeframe” has not passed; it could also be read to include all individuals whose EAD

3 had not been adjudicated within the 30- or 90-day regulatory timeframe. At most, this

4 argument merely transmutes the factual question underlying this case into a question of 5 class membership.21 However, it does nothing to eliminate the individualized inquiry

6 necessary to answer that factual question, and accordingly moves the court no closer to

7 concluding that “a classwide proceeding” in this case would “generate common answers

8 apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 350.

9

Ultimately, whether USCIS has “unlawfully withheld or unreasonably delayed”

10 action, 5 U.S.C. § 706(1), or owes a “duty . . . to the plaintiff[s],” 28 U.S.C. § 1361, goes

11 to the merits of the APA and Mandamus Act claims, respectively. But the court’s

12 “rigorous analysis” under Rule 23 “[f]requently . . . entail[s] some overlap with the merits

13 of the plaintiff’s underlying claim.” Dukes, 564 U.S. at 351. Here, Plaintiffs

14

15

21 As Plaintiffs appear to read this limitation, it renders the class fail-safe. A fail-safe

16

class is one with a definition that aligns with the elements of the class’s claim such that finding no liability for the defendants would necessarily exclude all members from the class. See In re

AutoZone, Inc. Wage & Hour Emp’t Practices Litig., 289 F.R.D. 526, 545-46 (N.D. Cal. 2012); 17 see also Kamar v. RadioShack Corp., 375 F. App’x 734, 736 (9th Cir. 2010). Fail-safe classes

are problematic because they preclude a defendant in a class action from obtaining a binding

18 judgment on the merits against the would-be class members. See AutoZone, 289 F.R.D. at

545-46; see also Randleman v. Fid. Nat’l Title Ins. Co., 646 F.3d 347, 352 (6th Cir. 2011)

19 (holding a class constituted “an improper fail-safe class that shields the putative class members

from receiving an adverse judgment” by defining the class in such a way that “[e]ither the class

20 members win or, by virtue of losing, they are not in the class and, therefore, not bound by the judgment”); Genenbacher v. CenturyTel Fiber Co. II, 244 F.R.D. 485, 487-88 (C.D. Ill. 2007)

21 (finding that a proposed class “fail[ed] to meet the requirements of Rule 23(c)(3) because the Court cannot enter an adverse judgment that is enforceable against at least some of the proposed

22

class members”); but see AutoZone, 289 F.R.D. at 546 (“[I]t is not clear that the Ninth Circuit forbids fail-safe classes.”).

ORDER- 45

1 acknowledge that certain circumstances toll or reset the adjudication timetable (see, e.g.,

2 MCC Reply at 5), but Plaintiffs provide no evidence of the frequency with which this

3 occurs (see generally MCC); see also 2016 Ombudsman Report at 61-62 (indicating that

4 in fiscal year 2015, 449,307 EAD applications were adjudicated after more than 90 days,

5 but failing to apportion between delays that “are due to the customer’s failure to file

6 timely or provide required documentation” and “other delays [that] occur through no fault

7 of the customer”). The court will not permit Defendants’ speculation to defeat class

8 certification. Agne, 286 F.R.D. at 568. However, the onus is on Individual Plaintiffs to

9 come forward with evidence demonstrating that the timeliness of adjudication is “a

10 common question of liability that can be resolved ‘in one stroke’ and ‘is central to the 11 validity of . . . the [class] claim.’”22 Id. (alterations in original) (quoting Dukes, 564 U.S.

12

13 22 At oral argument, Plaintiffs cited Walters v. Reno as an analogous case in which this

14 court and the Ninth Circuit found the commonality element satisfied. See Walters v. Reno (Walters I), No. C94-1204C, 1996 WL 897663 (W.D. Wash. Oct. 2, 1996); Walters v. Reno

15 (Walters II), 145 F.3d 1032 (9th Cir. 1998). In Walters I, Judge Coughenour certified a class of “[a]ll non-citizens who have or will become subject to a Final Order under § 274C of the INA

16

because they received notice forms that did not adequately advise them of their rights, of the consequences of waiving their rights or of the consequences of failing to request a hearing.”

Walters I, 1996 WL 897663, at *1. This definition “limit[ed] the class to those who became 17 subject to a final order through their failure to request a hearing, and who failed to request a

hearing because their notice forms did not adequately advise them of their rights or the

18 consequences of failing to exercise those rights.” Id. By so limiting the class, Judge

Coughenour excluded class members who “received constitutionally adequate notice” and thus

19 lacked a claim. (Id.) Here, in contrast, the proposed class definition fails to limit the class

members to individuals whose claim has accrued.

20

In Walters II, the Ninth Circuit affirmed Judge Coughenour’s conclusion regarding

commonality because “[d]ifferences among the class members with respect to the merits of their

21 actual document fraud cases . . . are simply insufficient to defeat the propriety of class certification.” 145 F.3d at 1046 (“What makes the plaintiffs’ claims suitable for a class action is

22

the common allegation that the INS’s procedures provide insufficient notice.”). The Ninth Circuit decided Walters II more than a decade before the Supreme Court acknowledged that the

ORDER- 46

1 at 350); see also Dukes, 564 U.S. at 350 (“A party seeking class certification must

2 affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to

3 prove that there are in fact sufficiently numerous parties, common questions of law or

4 fact, etc.”). The court cannot make this conclusion based on the anecdotal evidence in

5 the record and thus cannot conclude that Individual Plaintiffs satisfy the commonality 6 requirement.23

7

The court has discretion to “construe the complaint or redefine the class to bring it

8 within the scope of Rule 23.” 7A Charles Alan Wright & Arthur R. Miller, Federal

9 Practice and Procedure § 1759 (3d ed. 2004); see also Powers v. Hamilton Cty. Pub.

10 Def. Comm’n, 501 F.3d 592, 619 (6th Cir. 2007); Wolph v. Acer Am. Corp., 272 F.R.D.

11 477, 483 (N.D. Cal. 2011). However, the court does not readily identify such a

12 modification. As illustrated by the already cumbersome proposed subclass definitions,

13 satisfying Rule 23 is complex in light of the statutory and regulatory scheme at issue and

14 the discretion Defendants have to interpret that regime. However, in light of the court’s

15 conclusion that the other Rule 23 requirements are met, counsel’s familiarity and facility

16
“rigorous analysis” performed at the Rule 23 stage frequently “will entail some overlap with the 17 merits of the plaintiff’s underlying claim.” Dukes, 564 U.S. at 351. In the instant case, unlike in
Walters II, Plaintiffs have failed to show that factual differences between putative class members 18 do not preclude class adjudication.

19

23 In their argument supporting numerosity, Plaintiffs point out that Defendants uniquely

possess information pertinent to class certification. (See MCC at 8.) Plaintiffs first moved for

20 class certification the same day they filed their complaint (see Dkt. ## 1, 5), and Plaintiffs again moved for class certification the day after filing their amended complaint (see Dkt. ## 58-59.)

21 Plaintiffs make no argument that they sought data from Defendants on the prevalence of tolling or resetting deadlines pursuant to 8 C.F.R. § 103.2(b)(10)(i). The court will not make

22

unsupported inferences or lower Plaintiffs’ burden solely because Plaintiffs have performed inadequate discovery.

ORDER- 47

1 with the regulatory scheme at issue, and the potential for Individual Plaintiffs to refine

2 their class definitions and collect further evidence supporting commonality, the court

3 grants Individual Plaintiffs leave to renew their class certification motion in a manner that

4 resolves the definitional and evidentiary issues associated with commonality.

5

c. Typicality

6

“[R]epresentative claims are ‘typical’ if they are reasonably co-extensive with

7 those of absent class members; they need not be substantially identical.” Hanlon, 150

8 F.3d at 1020. “Typicality refers to the nature of the claim or defense of the class

9 representative, and not to the specific facts from which it arose or the relief sought.”

10 Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). Nonetheless, the

11 “commonality and typicality requirements of Rule 23(a) tend to merge.” Falcon, 457 12 U.S. at 157 n.13. “Both serve as guideposts for determining whether under the particular 13 circumstances maintenance of a class action is economical and whether the named 14 plaintiff’s claim and the class claims are so interrelated that the interests of the class 15 members will be fairly and adequately protected in their absence.” Id. In determining

16 typicality, courts consider “whether other members have the same or similar injury,

17 whether the action is based on conduct which is not unique to the named plaintiffs, and

18 whether other class members have been injured by the same course of conduct.” Hanon,

19 976 F.2d at 508.

20

Aside from the Individual Plaintiffs that the court dismissed above, Plaintiffs

21 convincingly argue that as of the filing of the complaint, all Individual Plaintiffs suffered

22 the same injury as the putative class—a wait beyond the regulatory deadline for EAD

ORDER- 48

1 adjudication. (MCC at 16-17.) Defendants respond with examples of Individual

2 Plaintiffs that Defendants contend are not typical of the putative classes. (MCC Resp. at

3 16-17.) For instance, Defendants argue that Ms. Salmon and Ms. Diaz Marin’s “own

4 mistake[s]” caused their EAD delays. (Id.) According to Defendants, Ms. Salmon

5 “incorrectly filed her application with the Vermont Service Center, rather than with the

6 Chicago Lockbox.” (Id. (citing Salmon A.R. (Dkt. # 67-7) at 7).) Ms. Diaz Marin erred,

7 according to Defendants, by “incorrectly indicating that she was the recipient of a U

8 nonimmigrant visa, rather than the recipient of deferred action.” (Id. at 17 (citing Diaz

9 Marin A.R. (Dkt. # 67-2) at 8).)

10

Even assuming they were applicant-caused, the minor mistakes in Ms. Salmon’s

11 and Ms. Diaz Marin’s applications minimally impacted the roughly 200 days that USCIS

12 took to adjudicate their EAD applications. (Salmon A.R. at 6; Diaz Marin A.R. at 8.) In

13 other words, Defendants have described “the specific facts from which” Ms. Salmon’s

14 and Ms. Diaz Marin’s claims arose, but Defendants’ argument does not undermine the

15 conclusion that “the nature of the claim or defense of the class representative[s]” is

16 typical of the putative class. Hanon, 976 F.2d at 508. Accordingly, although these

17 examples provide a modicum of further evidence that undermines commonality, see

18 supra § III.B.3.b., they otherwise fail to call typicality into question, see Falcon, 457 U.S.

19 at 157 n.13 (“The commonality and typicality requirements of Rule 23(a) tend to

20 merge.”); (MCC Resp. at 17 (“These unique factual patterns amongst just 11 named

21 plaintiffs demonstrate the variety of factual situations experienced by applicants for

22 EADs and the filing mistakes made by EAD applicants.”).

ORDER- 49

1

Defendants’ other arguments in opposition to typicality are similar and no more

2 persuasive, and the court concludes that Individual Plaintiffs are typical of the subclasses

3 they seek to represent.

4

d. Adequacy

5

The parties also dispute whether Individual Plaintiffs would “fairly and adequately

6 protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Defendants contend that

7 several types of EAD applicants have interests that are misaligned with Individual 8 Plaintiffs’ interests.24 (MCC Resp. at 18-19.) Specifically, Defendants contend that

9 Individual Plaintiffs inadequately represent H-4-based EAD applicants, initial TPS-based

10 EAD applicants, spouses and children of diplomats and dignitaries, students with an F-1

11 visa who apply for pre-completion Optional Practical Training, and certain parolees. (Id.

12 at 18-21.)

13

Defendants first argue that USCIS’s “90 day period to adjudicate the EAD

14 application” of an H-4 applicant “will commence on the latest date that a concurrently

15 filed benefit request is approved.” (Id. at 19 (citing 8 C.F.R. § 214.2(h)(9)(iv)).)

16 However, EAD applications grounded in H-4 applications are not governed by 8 C.F.R.

17 § 274a.13, which is the regulation by which Individual Plaintiffs propose to define 18 membership in the 90-Day Subclass. (MCC at 2 (including in the 90-Day Subclass

19

20

24 As the Supreme Court has recognized, “the commonality and typicality

requirements . . . tend to merge with the adequacy-of-representation requirement, although the

21 latter requirement also raises concerns about the competency of class counsel and conflicts of interest.” Falcon, 457 U.S. at 157 n.13. The commonality concern that the court expressed

22

above, see supra § III.B.3.b., extends to the adequacy requirement, but the court does not restate that issue here.

ORDER- 50

1 noncitizens who “[h]ave filed or will file applications for employment authorization

2 under 8 C.F.R. § 274a.13”)); see 8 C.F.R. § 274a.13(d) (excepting from the 90-day

3 deadline employment authorization considered pursuant to 8 C.F.R. § 214.2(h)(9)(iv)); 8

4 C.F.R. § 214.2(h)(9)(iv) (describing the EAD application process and adjudicatory

5 deadline for “[t]he spouse and children of an H nonimmigrant,” who may be admitted “as

6 H-4 nonimmigrants”). Defendants correctly argue that the regulations provide for a

7 different calculation of H-4 applicants’ adjudicatory deadline. 8 C.F.R. § 214.2(h)(9)(iv)

8 (“If such [EAD] Application . . . is filed concurrently with another related benefit

9 request(s), in accordance with and as permitted by form instructions, the 90–day period

10 described in 8 CFR § 274.13(d) will commence on the latest date that a concurrently filed

11 related benefit request is approved.”). However, because the subclass definition excludes

12 these applicants, whether Individual Plaintiffs would adequately represent H-4-based

13 EAD applicants is irrelevant.

14

Defendants’ argument that Individual Plaintiffs inadequately represent initial

15 TPS-based EAD applicants is also unpersuasive. (See MCC Resp. at 19-20.) TPS-based

16 applicants who make a prima facie showing of TPS eligibility are immediately granted

17 temporary benefits. 8 C.F.R. §§ 244.5(b), 244.10(a). Defendants posit that USCIS

18 adjudicates Form I-765 only after making this prima facie determination, and Defendants

19 therefore argue that much like a DACA applicant, the 90-day adjudicatory clock begins

20 only after USCIS makes the prima facie evaluation. (MCC Resp. at 20.) At most, this

21 argument reinforces the court’s conclusion regarding commonality, but it does not

22

ORDER- 51

1 demonstrate that Individual Plaintiffs would inadequately represent TPS-based EAD

2 applicants.

3

The court is also unpersuaded by Defendants’ hypotheticals regarding spouses and

4 children of diplomats and dignitaries, students with F-1 visas, and parolees. (MCC Resp.

5 at 20-21.) Defendants argue that Individual Plaintiffs’ success on behalf of the putative 6 class would be unhelpful to certain members of those groups.25 But Defendants’

7 speculation cannot defeat class certification. Agne, 286 F.R.D. at 568. Moreover, even

8 assuming Defendants’ posited scenarios occur with some regularity, at most they show

9 that not all class members would benefit from a successful class action. This showing

10 falls short of constituting a “conflict[] of interest between named parties and the class

11 they seek to represent,” and discerning such conflicts is the purpose of the adequacy

12 requirement. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997).

13

Finally, Defendants set forth a more overarching argument that allocation of

14 insufficient resources may create conflicting interests between subgroups of the

15 subclasses. (MCC Resp. at 21-22 (arguing that because USCIS is “a self-funded agency

16 with finite resources,” a spike in one type of EAD application could lead the agency to

17

18

25 (MCC Resp. at 20 (“[Certain spouses and children of diplomats and foreign dignitaries]

have an interest that could conflict with the Plaintiffs’ request that a decision be issued within 90

19 days of filing with USCIS, if for instance, these applicants wanted a decision within 90 days of

filing with the State Department.”), 21 (“[I]f the [F-1 student] applicant files less than 90 days

20 before the job begins, then the 2 month employment period may have already begun, or even expired, by the time USCIS completes adjudication of the Form I-765. In this case, issuing an

21 interim EAD for a time period that is different from the period that [the applicant] requested to work would not make any sense and would not redress any injury.”), 21 (“If they are only here

22

for a short time, USCIS may not be able to adjudicate the application before the parolee would have to return to his or her home country.”).

ORDER- 52

1 pay less attention to other types of EAD applications).) The court recognizes that

2 Defendants have limited resources. However, to the extent the putative class obtains

3 injunctive relief in this class action, the sufficiency of Defendants’ resources to effectuate

4 that relief is a function of budgeting and the regulatory timelines established by

5 Defendants, not this court’s determination that Defendants must abide by those timelines.

6

Accordingly, the court concludes that aside from the commonality issues noted

7 above, Individual Plaintiffs and their proposed counsel constitute adequate class 8 representatives.26

9

e. Common Grounds

10

Plaintiffs contend that their class action satisfies Rule 23(b)(2) because Defendants

11 have “acted or refused to act on grounds that apply generally to the class, so that final

12 injunctive relief or corresponding declaratory relief is appropriate respecting the class as

13 a whole.” Fed. R. Civ. P. 23(b)(2). “Class certification under Rule 23(b)(2) is

14 appropriate only where the primary relief sought is declaratory or injunctive.” Zinser v.

15 Accufix Research Inst., Inc., 253 F.3d 1180, 1195 (9th Cir. 2001). The court treats

16 [p]redominance and superiority a[s] self-evident,” Dukes, 564 U.S. at 363, and requires

17 “[o]nly a showing of cohesiveness of class claims,” Herskowitz v. Apple, Inc., 301 F.R.D.

18 460, 481 (N.D. Cal. 2014) (citing Fosmire v. Progressive Max Ins. Co., 277 F.R.D. 625,

19 635 (W.D. Wash. 2011)).

20

21

26 At oral argument, the court expressed its hesitancy to appoint as class counsel a

22

member of NWIRP because NWIRP is an Organizational Plaintiff to this action. However, because the court dismisses Organizational Plaintiffs, see supra § III.A.5., that concern is moot.

ORDER- 53

1

Here, the only relief Plaintiffs seek is declaratory and injunctive. Plaintiffs seek a

2 declaration that Defendants have violated the applicable EAD regulations and an order

3 prospectively requiring Defendants to comply with the regulatory timelines set forth in

4 those regulations. (Am. Compl. at 37-39; see also MCC at 21.) Those claims are

5 sufficiently cohesive to satisfy Rule 23(b)(2). See Herskowitz, 301 F.R.D. at 481.

6 Furthermore, in opposing class certification, Defendants do not argue that this case is

7 unsuited to proceed as Rule 23(b)(2) class action. (See generally MCC Resp.)

8 Therefore, the court concludes that Rule 23(b)(2) is satisfied.

9 C. 10

Leave to Renew Motion Although Plaintiffs have previously moved for class certification, this order marks

11 the first time the court has addressed class certification on the merits. (Cf. 2/10/16 Order 12 at 35-36 (declining to decide Plaintiffs’ motion for class certification after dismissing two 13 of the three putative class representatives for lack of subject matter jurisdiction).) After 14 analyzing commonality, the court finds Individual Plaintiffs have not demonstrated that

15 their current class definitions satisfy that element. See supra § III.B.3.b. The confluence

16 of a complex regulatory scheme, necessary deference to agency interpretations, and

17 Individual Plaintiffs’ expansive proposed class may render this Rule 23(a) issue

18 intractable. Indeed, the court’s own efforts to cure the flaws in the subclass definitions

19 proved fruitless. In sum, Individual Plaintiffs may have bitten off more than Rule 23

20 permits them to chew.

21

However, the court will provide putative class counsel an opportunity to cure the

22 Rule 23 deficiencies identified herein by modifying the subclass definitions, providing

ORDER- 54

1 further evidence, and renewing their motion for class certification.27 The court GRANTS

2 Individual Plaintiffs leave to renew their motion for class certification no later than 30 3 days from the date of this order.28

4

IV. CONCLUSION

5

Based on the foregoing analysis, the court GRANTS in part and DENIES in part

6 Defendants’ motion to dismiss (Dkt. # 69), DENIES without prejudice Individual

7 Plaintiffs’ motion for class certification (Dkt. # 59), and GRANTS Individual Plaintiffs

8 leave to renew their motion for class certification within 30 days of the date of this order.

9

Dated this 5th day of October, 2016.

10

11

A

12

JAMES L. ROBART

13

United States District Judge

14

15

16

17

18

19

27 In this order, the court identifies the possible utility of further discovery. See supra

n.23. Such further discovery may warrant granting Individual Plaintiffs more than 30 days to

20 renew their motion for class certification. The court will consider granting an extension of Plaintiffs’ deadline on an appropriate motion.

21

28 If Plaintiffs fail to timely renew their motion for class certification, the court will deny

22

the motion for class certification with prejudice and, on an appropriate motion, determine whether the remaining Individual Plaintiffs’ claims are subject to dismissal. See supra § III.A.4.

ORDER- 55

 
 General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 18-35806 Nature of Suit: 2465 Other Immigration Actions NWIRP, et al v. USCIS, et al Appeal From: U.S. District Court for Western Washington, Seattle Fee Status: USA - No Fee Req

Docketed: 09/27/2018

Case Type Information: 1) civil 2) united states 3) null

Originating Court Information:

District: 0981-2 : 2:15-cv-00813-JLR

Trial Judge: James L. Robart, Senior District Judge

Date Filed: 05/22/2015

Date

Date Order/Judgment Date NOA

Order/Judgment:

EOD:

Filed:

07/26/2018

07/26/2018

09/21/2018

Date Rec'd COA:
09/21/2018

Prior Cases: None

Current Cases: None

NORTHWEST IMMIGRANT RIGHTS PROJECT
Plaintiff,

W. H., Individually and on behalf of all others Trina A. Realmuto

similarly situated

Direct: 857-305-3600

Plaintiff - Appellee,

[COR NTC Retained]

American Immigration Council

1318 Beacon Street

Suite 18

Brookline, MA 02446

Christopher Strawn, Attorney Direct: 206-957-8628 [COR NTC Retained] Northwest Immigrant Rights Project Suite 400 615 Second Avenue

A. A.

Plaintiff - Appellee,

ANTONIO MACHIC YAC Plaintiff - Appellee,

Seattle, WA 98104
Devin T. Theriot-Orr, Attorney Direct: 206-962-5052 [COR NTC Retained] Sunbird Law, PLLC 1001 Fourth Avenue 3200 Seattle, WA 98154
Marc Van Der Hout Direct: 415-981-3000 [COR NTC Retained] Van Der Hout, Brigagliano & Nightingale, LLP 180 Sutter Street San Francisco, CA 94104
Trina A. Realmuto Direct: 857-305-3600 [COR NTC Retained] (see above)
Christopher Strawn, Attorney Direct: 206-957-8628 [COR NTC Retained] (see above)
Devin T. Theriot-Orr, Attorney Direct: 206-962-5052 [COR NTC Retained] (see above)
Marc Van Der Hout Direct: 415-981-3000 [COR NTC Retained] (see above)
Trina A. Realmuto Direct: 857-305-3600 [COR NTC Retained] (see above)
Christopher Strawn, Attorney Direct: 206-957-8628 [COR NTC Retained]

(see above)
Devin T. Theriot-Orr, Attorney Direct: 206-962-5052 [COR NTC Retained] (see above)
Marc Van Der Hout Direct: 415-981-3000 [COR NTC Retained] (see above)
v.

UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES
Defendant - Appellant,

Jeffrey S. Robins, Trial Attorney [NTC Assist US Attorney] DOJ - U.S. DEPARTMENT OF JUSTICE Civil Division/Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044

U.S. DEPARTMENT OF HOMELAND SECURITY
Defendant - Appellant,

Jeffrey S. Robins, Trial Attorney [NTC Assist US Attorney] (see above)

L. FRANCIS CISSNA, Director of USCIS Defendant - Appellant,

Jeffrey S. Robins, Trial Attorney [NTC Assist US Attorney] (see above)

KIRSTJEN NIELSEN, Secretary of DHS Defendant - Appellant,

Jeffrey S. Robins, Trial Attorney [NTC Assist US Attorney] (see above)

NORTHWEST IMMIGRANT RIGHTS PROJECT,

Plaintiff,

and

W. H., Individually and on behalf of all others similarly situated; A. A.; ANTONIO MACHIC YAC,

Plaintiffs - Appellees,

v.

UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; U.S. DEPARTMENT OF HOMELAND SECURITY; L. FRANCIS CISSNA, Director of USCIS; KIRSTJEN NIELSEN, Secretary of

DHS,

Defendants - Appellants.

09/27/2018

1

0 pg, 0 KB

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: Mediation Questionnaire due on 10/04/2018. Appellants L. Francis Cissna, Kirstjen Nielsen, U.S. Department of Homeland Security and United States Citizenship and Immigration Services opening brief due 11/20/2018. Appellees A. A., W. H. and Antonio Machic Yac answering brief due 12/20/2018. Appellant's optional reply brief is due 21 days after service of the answering brief. [11027324] (KM) [Entered: 09/27/2018 10:33 AM]

10/04/2018

2

0 pg, 0 KB

Filed (ECF) Appellees A. A., W. H. and Antonio Machic Yac Mediation Questionnaire. Date of service: 10/04/2018. [11036062] [18-35806] (Theriot-Orr, Devin) [Entered: 10/04/2018 04:12 PM]

10/04/2018

3

0 pg, 0 KB

Filed (ECF) Appellants L. Francis Cissna, Kirstjen Nielsen, USCIS and USDHS Mediation Questionnaire. Date of service: 10/04/2018. [11036255] [18-35806] (Robins, Jeffrey) [Entered: 10/04/2018 07:38 PM]

10/11/2018

4

2 pg, 201.85 KB

MEDIATION ORDER FILED: The Mediation Program of the 9th Circuit Court of Appeals facilitates settlement while appeals are pending. By 10/31/2018, counsel for all parties intending to file briefs in this matter are requested to inform the Circuit Mediator by email of their clients' views on whether the issues on appeal or the underlying dispute might be amenable to settlement presently or in the foreseeable future. This communication will be kept confidential, if requested... This communication should not be filed with the court... The existing briefing schedule remains in effect... [11043189] (LW) [Entered: 10/11/2018 11:55 AM]

11/08/2018

5

1 pg, 183.72 KB

MEDIATION ORDER FILED: This case is RELEASED from the Mediation Program. Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant further settlement discussions. The briefing schedule previously established by the court remains in effect. [11082527] (LW) [Entered: 11/08/2018 03:57 PM]

11/20/2018

6

Filed (ECF) Streamlined request for extension of time to file Opening Brief by Appellants L. Francis Cissna, Kirstjen Nielsen,

USCIS and USDHS. New requested due date is 12/20/2018.

[11094677] [18-35806] (Robins, Jeffrey) [Entered: 11/20/2018

12:32 PM]

11/20/2018

7

Streamlined request [6] by Appellants L. Francis Cissna, Kirstjen Nielsen, USDHS and USCIS to extend time to file the

brief is approved. Amended briefing schedule: Appellants L. Francis Cissna, Kirstjen Nielsen, U.S. Department of Homeland Security and United States Citizenship and Immigration Services opening brief due 12/20/2018. Appellees A. A., W. H. and Antonio Machic Yac answering brief due 01/22/2019. The optional reply brief is due 21 days from the date of service of the answering brief. [11095231] (KM) [Entered: 11/20/2018 03:48 PM]

11/21/2018

8

0 pg, 0 KB

Filed (ECF) Appellants L. Francis Cissna, Kirstjen Nielsen, USCIS and USDHS Correspondence: Remove FAUSA Helen J. Brunner from ECF Notices. Date of service: 11/21/2018 [11096596] [1835806] (Brunner, Helen) [Entered: 11/21/2018 02:34 PM]

11/21/2018

9

Terminated Helen J. Brunner for USCIS, USDHS, Kirstjen Nielsen and L. Francis Cissna in 18-35806 [11096699] (CW) [Entered:

11/21/2018 03:07 PM]

12/13/2018

10

0 pg, 0 KB

Filed (ECF) Appellants L. Francis Cissna, Kirstjen Nielsen, USCIS and USDHS Unopposed Motion to extend time to file Opening brief until 01/22/2019. Date of service: 12/13/2018. [11119454] [1835806] (Robins, Jeffrey) [Entered: 12/13/2018 11:23 AM]

12/13/2018

11

2 pg, 186.37 KB

Filed clerk order (Deputy Clerk: GS): Granting Motion [10] (ECF Filing) filed by Appellants USCIS, USDHS, L. Francis Cissna and Kirstjen Nielsen; Appellants L. Francis Cissna, Kirstjen Nielsen, U.S. Department of Homeland Security and United States Citizenship and Immigration Services opening brief due 01/22/2019. Appellees A. A., W. H. and Antonio Machic Yac answering brief due 02/21/2019. The optional reply brief is due 21 days after service of the answering brief. [11120183] (GS) [Entered: 12/13/2018 05:06 PM]

 
 Case 2:15-cv-00813-JLR Document 113 Filed 04/17/18 Page 1 of 14

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10

A.A., et al.,

CASE NO. C15-0813JLR

11

Plaintiffs,

ORDER ON CROSS-MOTIONS

v.

TO SUPPLEMENT THE

12

ADMINISTRATIVE RECORD

UNITED STATES CITIZENSHIP

13

AND IMMIGRATION SERVICES,

14

et al.,

15

Defendants.

16

I.

INTRODUCTION

17

There are two motions before the court: (1) a motion to supplement the

18 administrative record filed by Defendants United States Citizenship and Immigration

19 Services (“USCIS”); United States Department of Homeland Security (“DHS”), which

20 oversees USCIS; James McCament, Acting Director of USCIS, in his official capacity;

21 and John Kelly, Secretary of DHS, in his official capacity (collectively, “Defendants”);

22 and (2) a cross-motion to supplement the administrative record filed by Plaintiffs A.A.,

ORDER - 1

Case 2:15-cv-00813-JLR Document 113 Filed 04/17/18 Page 2 of 14

1 Antonio Machic Yac, and W.H. (collectively, “Plaintiffs”).1 (Defs. Mot. (Dkt. # 103);

2 Pls. Mot. (Dkt. # 104).) Being fully advised,2 the court GRANTS in part and DENIES in

3 part Defendants’ motion to supplement the administrative record and GRANTS in part

4 and DENIES in part Plaintiffs’ cross-motion to supplement the administrative record.

5

II. BACKGROUND

6

Through this injunctive class action, Plaintiffs seek to compel USCIS to abide by

7 regulatory deadlines for adjudicating applications for employment authorization

8 documents (“EADs”) filed by asylum applicants. (See generally Am. Compl. (Dkt.

9 # 58).) Plaintiffs claim that Defendants have failed to adjudicate EADs within the

10 regulatory timeframe, which constitutes “unlawfully withheld or unreasonably delayed”

11 agency action. See 5 U.S.C. § 706(1).

12

A. Regulatory Structure

13

For an alien to be eligible to work in the United States, the alien must file Form

14 I-765 with DHS in order to obtain an EAD.3 (Am. Compl. ¶¶ 3-4.) USCIS is responsible

15 for adjudicating I-765 forms. (Id. ¶ 4.) A separate regulation governs asylum seekers

16 applying for an EAD for the first time. See 8 C.F.R. §§ 208.7(a)(1), 274a.12(c)(8),

17 1 The court DIRECTS the Clerk to substitute L. Francis Cissna for former Acting
18 Director of USCIS James McCament and Kirstjen Nielsen for former Secretary of DHS John Kelly. See Fed. R. Civ. P. 25(d).
19 2 No party requests oral argument. (Defs. Mot. at1; Pls. Mot. at 1.) The court thus
20 declines to hold oral argument because oral argument would not be helpful to the court’s disposition of the motion. Local Rules W.D. Wash. LCR 7(b)(4) (“Unless otherwise ordered by
21 the court, all motions will be decided . . . without oral argument.”).
3 Plaintiffs incorporate the I-765 Instructions into their amended complaint by reference. 22 (See Am. Compl. ¶ 8.)

ORDER - 2

Case 2:15-cv-00813-JLR Document 113 Filed 04/17/18 Page 3 of 14

1 274.13(d); see also Carballo v. Meissner, No. C00-2145, 2000 WL 174198, at *2 (N.D.

2 Cal. Nov. 17, 2000) (describing the process for an asylum applicant seeking an EAD).

3 Section 274a.13(a)(2) mandates that USCIS adjudicate initial asylum EAD applications

4 “in accordance with [Section] 208.7.” 8 C.F.R. § 274a.13(a)(2). Section 208.7 provides

5 that after filing an application for asylum, an individual must typically wait 150 days

6 before filing an initial EAD application. Id. § 208.7(a)(1). But there are exceptions to

7 this rule. Id. For instance, if asylum is granted within 150 days, the asylee may apply for

8 an EAD immediately thereafter. Id. Additionally, if asylum is denied at any point, the

9 applicant becomes ineligible for an EAD. Id.

10

Assuming an application remains pending for at least 150 days without delay

11 caused by the applicant, the applicant may apply for an EAD. Id. §§ 208.7(a)(1)-(2), (4).

12 USCIS “shall have 30 days from the date of filing of the request [sic] employment

13 authorization to grant or deny that application,” except that USCIS may not in any event

14 grant the EAD prior to 180 days after the noncitizen files her asylum application. Id.

15 § 208.7(a)(1).

16

B. Procedural History

17

Plaintiffs filed this putative class action on May 22, 2015, because Defendants

18 failed to adjudicate I-765 forms within the regulatory deadline. (Compl. (Dkt. # 1).) On

19 November 4, 2016, Plaintiffs filed a third motion for class certification (3d MCC (Dkt.

20 # 82)), and Defendants subsequently filed a third motion to dismiss (3d MTD (Dkt.

21 # 88)). The court denied and dismissed Plaintiffs’ proposed “90-Day” subclass, but

22 //

ORDER - 3

Case 2:15-cv-00813-JLR Document 113 Filed 04/17/18 Page 4 of 14

1 certified Plaintiffs’ “30-Day” subclass. (7/18/17 Order (Dkt. # 95)). The “30-Day” class

2 is defined as:

3

Noncitizens who have filed or will file applications for employment

authorization that were not or will not be adjudicated within . . . 30

4

days . . . and who have not or will not be granted interim employment

authorization. [This class] consists of only those applicants for whom 30

5

days has accrued or will accrue under the applicable regulations, 8 C.F.R.

§§ 103.2(b)(10)(i), 208.7(a)(2), (a)(4).

6 (Id. at 26-27.) The court appointed A.A., Mr. Machic Yac, and W.H. as class

7 representatives. (Id. at 27.) The current administrative record consists of documents

8 related to individual EAD applications within the “30-Day” subclass. (See AR-I (Dkt.

9 # 67); AR-II (Dkt. # 67-6); AR-III (Dkt. # 38) at 41-51.) The parties filed their motions

10 to supplement the administrative record following class certification. (Defs. Mot; Pls.

11 Mot.)

12 Defendants seek to add six documents to the administrative record. (Defs. Mot.,

13 Ex. A (“Ex. A”) (Dkt. # 103-1); id., Ex. B (“Ex. B”) (Dkt. # 103-2); id., Ex. C (“Ex. C”)

14 (Dkt. # 103-3); id., Ex. D (“Ex. D”) (Dkt. # 103-4); id., Ex. E (“Ex. E”) (Dkt. # 103-5);

15 id., Ex. F (“Neufeld Decl.”) (Dkt. # 103-4)). These documents describe the I-765

16 adjudication and asylum application procedures. (Ex. A; Ex. B; Ex. C; Ex. D; Ex. E;

17 Neufeld Decl.) Three of the documents are data sheets showing “various factors and

18 considerations” as to why USCIS is unable to comply with the 30-day regulatory

19 deadline. (See Defs. Mot. at 3; Ex. B; Ex. C; Ex. D.) Defendants argue the documents

20 provide key background information and historical context relevant to USCIS’s inaction

21 on EAD applications. (Defs. Mot. at 3.)

22

ORDER - 4

Case 2:15-cv-00813-JLR Document 113 Filed 04/17/18 Page 5 of 14

1

Plaintiffs seek to supplement the administrative record with a March 31, 2017

2 Memorandum entitled, “Jurisdiction and EAD Clock Procedures for Unaccompanied

3 Alien Children (UACs).” (Pls. Mot. at 10.) Plaintiffs also request to supplement the

4 administrative record with materials already submitted to the court, such as declarations

5 and exhibits. (Id. at 11.) These documents detail the harm to class members resulting

6 from delayed adjudications by Defendants. (Id.)

7

In addition, Plaintiffs argue that Exhibits B, C, and E are not relevant to the

8 underlying cause of action and therefore oppose adding them to the record. (Pls. Mot. at

9 2-3.) Plaintiffs also object to including Exhibit F, the declaration of Donald W. Neufeld,

10 the Associate Director for Service Center Operations at USCIS, because they contend the

11 declaration provides unwarranted post-hoc rationalizations for USCIS’s inaction. (Id. at

12 3-4.) However, if the court supplements the record with the declaration, Plaintiffs request

13 an opportunity to depose Mr. Neufeld and request that Defendants produce the data

14 underlying his assertions. (Id. at 6-11.)

15

III. ANALYSIS

16

A. Legal Standard

17

Section 706 of the Administrative Procedure Act (“APA”) defines the scope of

18 review of agency action. 5 U.S.C. § 706. It states that a court “shall review the whole

19 record or those parts of it cited by a party.” Id. The general rule therefore is that

20 reviewing courts are limited to considering only the materials in the administrative

21 record. Fla. Power & Light Co., v. Lorion, 470 U.S. 729, 743-44 (1985). Under this

22 general rule, “[j]udicial review of an agency decision typically focuses on the

ORDER - 5

Case 2:15-cv-00813-JLR Document 113 Filed 04/17/18 Page 6 of 14

1 administrative record in existence at the time of the decision and does not encompass any

2 part of the record that is made initially in the reviewing court.” Sw. Ctr. for Biological

3 Diversity v. United States Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996); see also

4 Camp v. Pitts, 411 U.S. 138, 142 (1973) (“[T]he focal point for judicial review should be

5 the administrative record already in existence, not some new record made initially in the

6 reviewing court.”).

7

The Ninth Circuit recognizes certain exceptions to the general rule. The scope of

8 those exceptions depends on whether the claims are challenging final agency action or

9 agency inaction under 5 U.S.C. § 706(1), also known as “failure-to-act” claims. See

10 Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (“A § 706(1) claim can

11 proceed only where a plaintiff asserts that an agency failed to take a discrete agency

12 action that it is required to take.”)

13

For claims challenging final agency action, exceptions for supplementing the

14 administrative record are “widely accepted” but “narrowly construed and applied.”

15 Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005). The court may admit

16 extra-record evidence:

17

(1) if admission is necessary to determine “whether the agency has

considered all relevant factors and has explained its decision,” (2) if “the

18

agency has relied on documents not in the record,” (3) “when supplementing

the record is necessary to explain technical terms or complex subject matter,”

19

or (4) “when plaintiffs make a showing of agency bad faith.”

20 Id. at 1030 (citing Sw. Ctr. for Biological Diversity, 100 F.3d at 1450). The four limited

21 exceptions “operate to identify and plug holes in the administrative record.” Id. at 1030.

22 //

ORDER - 6

Case 2:15-cv-00813-JLR Document 113 Filed 04/17/18 Page 7 of 14

1

However, under § 706(1), “review is not limited to the record as it existed at any

2 single point in time, because there is no final agency action to demarcate the limits of the

3 record.” Friends of The Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000); see

4 also Indep. Mining. Co., Inc. v. Babbitt, 105 F.3d 502, 511-12 (9th Cir. 1997) (noting that

5 when a suit seeks to compel agency action, the court can consider supplementary

6 information regarding the agency’s position because no single date defines the

7 administrative record). In “failure-to-act” cases, “there is often no official statement of

8 the agency’s justification for its actions or inactions.” S.F. Baykeeper v. Whitman, 297

9 F.3d 877, 886 (9th Cir. 2002).

10

Because the limit of the record is less clear in “failure-to-act” cases, courts may

11 supplement beyond the “widely accepted” four exceptions in final agency action cases.

12 See, e.g., Babbitt, 105 F.3d at 505; Firebaugh Canal Water Dist. v. United States,

13 No. 1:88-CV-00634 OWW DL, 2010 WL 3702664, at *1 (E.D. Cal. Sept. 17, 2010);

14 Seattle Audubon Soc’y v. Norton, No. C05-1835RSL, 2006 WL 1518895, at *3 (W.D.

15 Wash. May 25, 2006) (stating that a reviewing court is not only limited to the four

16 exceptions “because there is a greater chance that some extraneous piece of information

17 might be necessary to shed light on the agency’s inaction.”). Supplementation is

18 therefore determined on a case-by-case basis. Seattle Audubon Soc’y, 2006 WL

19 1518895, at *3. However, supplementation is appropriate only when the materials are

20 relevant to determining whether relief should be granted. See Friends of The Clearwater,

21 222 F.3d at 560 (“If extra-record evidence shows that an agency has rectified a [National

22 Environmental Policy Act (“NEPA”)] violation after the onset of legal proceedings, that

ORDER - 7

Case 2:15-cv-00813-JLR Document 113 Filed 04/17/18 Page 8 of 14

1 evidence is relevant to the question of whether relief should be granted.”); Babbitt, 105

2 F.3d at 511 (holding that the district court did not err in reviewing an extra-record

3 document because “[i]t was merely supplemental evidence submitted in support of

4 appellee’s position on IMC’s motion for reconsideration”).

5

Although supplementation is generally more permissible in “failure-to-act” cases,

6 “the focal point for judicial review” should nevertheless be the “administrative record

7 already in existence, not some new record made initially in the reviewing court.” Camp,

8 411 U.S. at 142. Thus, there is no “unlimited discovery” in “failure-to-act” cases, Seattle

9 Audubon Soc’y, 2006 WL 1518895, at *3, and the scope of supplementation remains

10 “constrained,” Lands Council, 395 F.3d at 1030. “Were the federal courts routinely or

11 liberally to admit new evidence . . . it would be obvious that the federal courts would be

12 proceeding, in effect, de novo.” Id.

13

In Friends of The Clearwater v. Dombeck, for example, the Ninth Circuit allowed

14 the United States Forest Service to supplement the record with several studies prepared

15 after the agency refused the plaintiff’s request to prepare a supplemental environmental

16 impact statement under the National Environmental Policy Act (“NEPA”). 22 F.3d at

17 560-61. The court allowed such studies because if the studies showed that the agency

18 “rectified a NEPA violation after the onset of legal proceedings,” that evidence directly

19 related to the question of whether relief should be granted. Id. In San Francisco

20 Baykeeper v. Whitman, the Ninth Circuit permitted the agency to supplement the

21 administrative record with a “Program Review Document,” describing efforts by the state

22 of California to comply with various statutory guidelines under the Clean Water Act. 297

ORDER - 8

Case 2:15-cv-00813-JLR Document 113 Filed 04/17/18 Page 9 of 14

1 F.3d at 886. The court concluded that the document directly related to the relief the

2 plaintiff requested and thus provided the court with helpful background information. Id.

3 And in Wildearth Guardians v. U.S. Federal Emergency Management Agency, the

4 district court granted plaintiff’s motion to supplement the administrative record with

5 several documents highlighting background information relevant to the underlying claim.

6 No. CV-10-863-PHX-MHM, 2011 WL 935656, at *4 (D. Ariz. Mar. 15, 2011).

7

B. Application to the Parties’ Requests

8

Applying the legal standard to the motions before the court, the court grants

9 Defendants’ motion as to Exhibits A-E and denies Defendants’ motion as to Exhibit F.

10 The court grants Plaintiffs’ motion in regards to the March 31, 2017 Memorandum and

11 denies Plaintiffs’ remaining requests.

12 1. Exhibits A-E

13

Exhibits A-E contain relevant historical context and background information

14 related to Plaintiffs’ § 706(1) claim. Exhibit A is a presentation explaining the I-765

15 Form, the Application for Employment Authorization, and the (c)(8) Asylum and

16 Withholding of Removal process. (Ex. A.) Exhibits B, C, and D are spreadsheets

17 categorizing data regarding the initial EAD applications of the certified class. (Ex. B; Ex.

18 C; Ex. D.) Exhibit B shows the number of initial EAD applications received by USCIS

19 from asylum applicants on a monthly basis from Fiscal Year 2013 to Fiscal Year 2017.

20 (Ex. B.) Exhibit C indicates the number of pending initial EAD applications that also

21 have Requests for Evidence (“RFE”) and/or were routed to the Background Check Unit

22 (“BCU”)/Center Fraud Detections Operations (“CFDO”). (Ex. C.) Exhibit C further

ORDER - 9

Case 2:15-cv-00813-JLR Document 113 Filed 04/17/18 Page 10 of 14

1 categorizes this data into 30-day increments to highlight how many pending EAD

2 applications exist after the 30-day regulatory deadline. (Id.) Exhibit D shows “the

3 processing times of initial EAD applications based on a pending asylum application,

4 aggregated quarterly, from Fiscal Year 2010 to Fiscal Year 2017.” (Ex. D.) Lastly,

5 Exhibit E is a printout of a USCIS webpage describing the current waiting period for

6 asylum application interviews. (Ex. E.)

7

Exhibits A and D provide background information relevant to the certified class

8 and the requested relief. (Ex. A; Ex. D.) In addition, Plaintiffs do not object to adding

9 Exhibits A and D to the administrative record. (Pls. Mot. at 2); see Firebaugh Canal

10 Water Dist., 2010 WL 3702664, at *5 (allowing supplementation of the administrative

11 record when the parties both agreed that the documents provided relevant historical

12 information).

13

Plaintiffs rely only on the four exceptions to final agency action, rather than the

14 broader “failure-to-act” exception, to argue that Exhibits B, C, and E fall outside the

15 scope of proper supplementation. (See Pls. Mot. at 3). However, in agency inaction

16 cases—“failure-to-act” claims—supplementation is not so limited. See Friends of The

17 Clearwater, 222 F.3d at 560; Babbitt, 105 F.3d at 511-12; S.F. Baykeeper, 297 F.3d at

18 886. Plaintiffs also object to including Exhibits B, C, and E in the administrative record

19 because the court previously held that the 30-day regulatory deadline is mandatory

20 (2/20/16 Order at 21-26), and according to Plaintiffs, any explanation regarding why

21 USCIS has failed to comply is irrelevant (Pls. Mot. at 2-3). However, at this time, the

22 question presently before the court is not the underlying merits of the Plaintiffs’ claims,

ORDER - 10

Case 2:15-cv-00813-JLR Document 113 Filed 04/17/18 Page 11 of 14

1 but whether it is appropriate to supplement the administrative record.4 Courts in the

2 Ninth Circuit permit supplementation when “there is no final agency action to demarcate

3 the limits of the record.” Friends of The Clearwater, 222 F.3d at 560.

4

Thus, the court allows supplementation of the administrative record with Exhibits

5 A-E because they provide relevant background information given the certified class

6 definition (7/18/2017 Order at 26-27) and the relief Plaintiffs request. The court

7 therefore also grants Plaintiffs’ request to supplement with the March 31, 2017

8 Memorandum entitled, “Jurisdiction and EAD Clock Procedures for Unaccompanied

9 Alien Children (UACs).” (Pls. Mot. at 10.) Defendants’ Exhibit A mentions the

10 Memorandum, which is directly relevant to the procedures Defendants describe. (Ex. A

11 at 29.)

12

However, the court denies Plaintiffs’ request to supplement the administrative

13 record with materials already submitted to the court. (Pls. Mot. at 11.) In agency

14 inaction cases, supplementation must directly relate to the requested relief. See Friends

15 of The Clearwater, 222 F.3d at 560. However, these materials detail the harm to class

16 members from delayed adjudications and do not provide an answer regarding why the

17 delay has occurred. (See Pls. Mot. at 11.) “The reason for this rule is that when a court is

18 asked to review agency inaction before the agency has made a final decision, there is

19

20

4 Plaintiffs attempt to distinguish this case from other “failure-to-act” cases by arguing

that because the 30-day regulatory deadline is mandatory, the factors used to assess the

21

reasonableness of USCIS’s delay will not apply. Telecomms. Research & Action Ctr. v. F.C.C., 750 F.2d 70, 79-80 (D.C. Cir. 1984). Under this argument, any supplementation that explains

22

delay falls outside the scope of exceptions. However, Plaintiffs do not point to any authority regarding mandatory deadlines and supplementing the administrative record.

ORDER - 11

Case 2:15-cv-00813-JLR Document 113 Filed 04/17/18 Page 12 of 14

1 often no official statement of the agency’s justification for its actions or inaction.” S.F.

2 Baykeeper, 297 F.3d at 866. Supplementing with these documents would impermissibly

3 expand the record, even in this “failure-to-act” case. See id.

4 2. Exhibit F

5

Lastly, Defendants seek to include the declaration of Mr. Neufeld. (Defs. Mot. at

6 5; see also Neufeld Decl. ¶ 1.) Mr. Neufeld describes the adjudication process of EAD

7 applications and the dramatic increase in both asylum and EAD applications. (Id.

8 ¶¶ 31-35.) Plaintiffs object because they argue Mr. Neufeld’s declaration amounts to an

9 “impermissible post-hoc rationalization.” (Pls. Mot. at 3.)

10

Regardless of whether Mr. Neufeld’s declaration represents an impermissible

11 post-hoc rationalization, the court declines to supplement the administrative record with

12 Mr. Neufeld’s declaration for several reasons. First, multiple sections of Mr. Neufeld’s

13 declaration are irrelevant to the issues in this case. For example, the certified class

14 definition does not contain a distinction between the processing times for affirmative and

15 defensive applications for asylum, which Mr. Neufeld expounds upon at length.5

16 (Neufeld Decl. ¶¶ 27-29, 51.) Second, even though the declaration includes sections

17 relevant to the background and historical context of EAD adjudications, those sections

18

19

5 Mr. Neufeld also asserts that “perfect compliance” with the 30-day regulatory mandate

“may pose public safety or other risks.” (See, e.g., Neufeld Decl. ¶ 58.) Defendants have not

20 provided any data to support such an assertion, nor is it relevant to the class certification definition or Plaintiffs’ request for relief. Similarly, Mr. Neufeld referenced difficulty in

21

processing initial EAD applications “filed at exactly or around the day the underlying asylum application has been pending for 150 days.” (Id. ¶¶ 30, 52.) In response to Plaintiffs’ discovery

22

request, Defendants admits that this data “is not kept in the ordinary course of business.” (Defs. Reply (Dkt. # 106) at 5.)

ORDER - 12

Case 2:15-cv-00813-JLR Document 113 Filed 04/17/18 Page 13 of 14

1 duplicate Exhibits A-E. Although the court may permit parties to supplement the

2 administrative record, the “failure-to-act” exception is not an invitation for “unlimited

3 discovery,” which would be required if the court allowed Mr. Neufeld’s opinions to

4 become part of the record. Seattle Audubon Soc’y, 2006 WL 1518895, at *3.

5

Finally, Plaintiffs request discovery on a number of points Mr. Neufeld raised, if

6 the court permits the declaration to become part of the record. (Pls. Mot. at 8-10.)

7 Because Plaintiffs’ requests hinge upon the admissibility of Mr. Neufeld’s declaration,

8 the court denies as moot the rest of Plaintiffs’ requests that pertain to the declaration.

9

IV. CONCLUSION

10

Based on the foregoing analysis, the court GRANTS in part and DENIES in part

11 Defendants’ motion to supplement the administrative record (Dkt. # 103) and GRANTS

12 in part and DENIES in part Plaintiffs’ cross-motion to supplement the administrative

13 record (Dkt. # 104). The court GRANTS Defendants’ motion in regards to Exhibits A-E

14 and DENIES Defendants’ motion in regards to Exhibit F. The court GRANTS Plaintiffs’

15 cross-motion in regards to the March 31, 2017 Memorandum, “Jurisdiction and EAD

16 Clock Procedures,” and DENIES Plaintiffs’ remaining requests. Lastly, the court

17 DIRECTS the clerk to substitute L. Francis Cissna for former Acting Director of USCIS

18 //

19 //

20 //

21 //

22 //

ORDER - 13

Case 2:15-cv-00813-JLR Document 113 Filed 04/17/18 Page 14 of 14

1 James McCament and Kirstjen Nielsen for former Secretary of DHS John Kelly. See

2 supra note 1.

3

Dated this 17th day of April, 2018.

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A

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JAMES L. ROBART

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United States District Judge

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ORDER - 14

 
 Case 2:15-cv-00813-JLR Document 145 Filed 03/20/19 Page 1 of 9

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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WILMAN GONZALEZ ROSARIO,

CASE NO. C15-0813JLR

et al., 11

ORDER

Plaintiffs,

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v.

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U.S. CITIZENSHIP AND

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IMMIGRATION SERVICES, et al.,

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Defendants.

16

I. INTRODUCTION

17

Before the court are two letter briefs filed by the parties. (Plf. Ltr. (Dkt. # 138);

18 Def. Ltr. (Dkt. # 139).) The parties filed these letters pursuant to a stipulated order

19 directing them to do so. (See Stip. Order (Dkt. # 137).) The parties ask the court to

20 resolve two disputes concerning the parties’ agreed plan to implement the court’s

21 injunction in this matter. (See generally Plf. Ltr.; Def. Ltr.; see also Agreed Imp. Plan

22 (Dkt. # 134-1); SJ Order/Injunction (Dkt. # 127).) In addition to their initial filings, the

ORDER - 1

Case 2:15-cv-00813-JLR Document 145 Filed 03/20/19 Page 2 of 9

1 court ordered the parties to simultaneously file responsive letters (11/15/18 Order (Dkt.

2 # 140)), and those letters are also before the court (Plf. Resp. Ltr. (Dkt. # 141); Def. Resp.

3 Ltr. (Dkt. # 142)). Based on the parties’ initial and responsive letters, the court resolves

4 the parties’ disputes as described below.

5

II. BACKGROUND

6

On July 18, 2017, the court granted in part and denied in part Plaintiffs’ motion for

7 class certification. (CC Order (Dkt # 95) at 27.) The court certified a class of noncitizens

8 who have filed or will file applications for employment authorization that were not or

9 will not be adjudicated within 30 days and who have not or will not be granted interim

10 employment authorization. (Id. at 26.) The court further stated that the class consists of

11 only those applicants for whom 30 days has accrued or will accrue under the applicable

12 regulation, 8 C.F.R. §§ 103.2(b)(10)(i), 208.7(a)(2), (a)(4). (Id. at 27.)

13

On July 26, 2018, the court granted Plaintiffs’ motion for summary judgment and

14 found Defendants in violation of 8 C.F.R. § 208.7(a)(1). (SJ Order at 12.) The court also

15 enjoined Defendants “from further failing to adhere to the 30-day deadline for

16 adjudicating [employment authorization document (“EAD”)] applications [for asylum

17 seekers], as set forth in 8 C.F.R. § 208.7(a)(1).” (Id.) Finally, the court ordered

18 Defendants “to submit status reports every six (6) months regarding the rate of

19 compliance with the 30-day timeline.” (Id.) At the time of the order, Defendants’ own

20 data revealed that from 2010 to 2017, Defendant U.S. Citizenship and Immigration

21 Services (“USCIS”) met the 30-day deadline in in only 22% of cases. (See id. at 3.)

22 //

ORDER - 2

Case 2:15-cv-00813-JLR Document 145 Filed 03/20/19 Page 3 of 9

1

On September 14, 2018, the parties submitted a joint plan for implementation of

2 the court’s order and injunction. (Joint Statement (Dkt. # 134); see also Agreed Imp.

3 Plan.) Nevertheless, the parties stated they had not been able to come to agreement on

4 two points: “(1) whether the [c]ourt should specify specific rates of compliance for

5 employment authorization document (EAD) adjudication as part of an implementation

6 order and what those rates should be; [and] (2) the appropriate venue for filing any

7 Federal District Court action where an EAD application is not adjudicated in compliance

8 with this [c]ourt’s order, after the individual has complied with the steps set forth in the

9 implementation plan.” (Joint Statement at 1.) The parties asked the court if they could

10 “simultaneously file short letter-briefs of no more than three pages addressing these two

11 issues” and have the court “resolve this lingering dispute.” (Id.) On October 3, 2018, the

12 court entered an order consistent with the parties’ stipulated motion. (10/3/18 Order

13 (Dkt. # 137); see also Plf. Ltr.; Def. Ltr.) At the direction of the court, the parties also

14 simultaneously filed responsive letters. (11/15/18 Order; Plf. Resp. Ltr.; Def. Resp. Ltr.)

15

On September 21, 2018, Defendants filed a notice of appeal concerning the court’s

16 summary judgment order and injunction. (Not. of App. (Dkt # 135).)

17

On January 25, 2019, Defendants submitted their first status report pursuant to the

18 court’s order. (Status Report (Dkt. # 144); see also SJ Order at 12.) Defendants’ status

19 report indicates that Defendants achieved a 96.3% compliance rate with 8 C.F.R.

20 § 208.7(a)(1) in December 2018, and an average compliance rate of 92.7% for the final

21 quarter of 2018. (Status Report at 2; see also Status Report Ex. A (Dkt. # 144-1) at 3.)

22

The court now considers the issues presented in the parties’ letters.

ORDER - 3

Case 2:15-cv-00813-JLR Document 145 Filed 03/20/19 Page 4 of 9

1

III. ANALYSIS

2 A. Jurisdiction

3

Because Defendants filed a notice of appeal (Not. of App. (Dkt. # 135)), the court

4 initially considers its jurisdiction. The filing of a notice appeal generally divests the

5 district court of jurisdiction over the matters appealed. McClatchy Newspapers v. Cent.

6 Valley Typographical Union No. 46, Int’l Typographical Union, 686 F.2d 731, 734 (9th

7 Cir. 1982), amended sub nom. McClatchy Newspaper v. Local 46 (9th Cir. Sept. 22,

8 1982). Nevertheless, the district court retains jurisdiction to enforce an injunction under

9 certain exceptions to this rule. First, Federal Rule of Civil Procedure 62(d) provides that

10 “[w]hile an appeal is pending from . . . [a] final judgment that grants . . . an injunction,

11 the court may suspend, modify, restore or grant an injunction on terms for bond or other

12 terms that secure the opposing party’s rights.” Fed. R. Civ. P. 62(d). Second, until its

13 judgment is superseded on appellate review, the district court retains jurisdiction to

14 enforce the injunction and to preserve the status quo. See Nat. Res. Def. Council, Inc. v.

15 Sw. Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001); Robinson v. Delgado, No.

16 1:02-CV-01538-NJV, 2012 WL 4753493, at *1 (N.D. Cal. Oct. 4, 2012). Thus, the court

17 concludes that it retains jurisdiction to consider the issues that the parties have stipulated

18 to place before this court.

19 B. Rates of Compliance

20

Plaintiffs argue that the court should require Defendants to be in full compliance

21 with 8 C.F.R. § 208.7(a)(1) by a date certain instead of simply requiring 6-month status

22 reports. (Plf. Ltr. at 1.) Defendants assert that an order specifying Defendants’ rate of

ORDER - 4

Case 2:15-cv-00813-JLR Document 145 Filed 03/20/19 Page 5 of 9

1 compliance would be an improper modification of the court’s injunction and would

2 improperly curtail the scope of the court’s adjudication of Defendants’ “substantial

3 compliance” with the injunction if Plaintiffs were to pursue an enforcement action. (Def.

4 Ltr. at 2.)

5

The court agrees that adding such a provision to the injunction when the court has

6 already specified that Defendants are to submit status reports at regular intervals would

7 be an improper modification to the court’s injunction. A party seeking to modify an

8 injunction bears the burden of establishing that a significant change in circumstances

9 warrants a revision of the injunction. See Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S.

10 367, 383 (1992). Here, even if the court had jurisdiction to order such a change, see

11 supra § III.A., Plaintiffs have failed to meet their burden. Defendants’ January 25, 2019,

12 status report demonstrates clear improvement in Defendants’ compliance rates. (See

13 Status Report.) Given that the adjudication rate reflects significant improvement since

14 the court entered its injunction, modification of the court’s injunction to include specific

15 rates of compliance is not justified by any change in the law or facts.

16

Further, if Plaintiffs at some point allege that Defendants have failed to comply

17 with the court’s injunction, their remedy is a motion for civil contempt. Civil contempt is

18 defined as “a party’s disobedience to a specific and definite court order by failure to take

19 all reasonable steps within the party’s power to comply.” Reno Air Racing Ass’n., Inc. v.

20 McCord, 452 F.3d 1126, 1130 (9th Cir. 2006). As Defendants point out, substantial

21 compliance is a defense to civil contempt. Gen. Signal Corp. v. Donallco, Inc., 787 F.2d

22 1376, 1379 (9th Cir. 1986). “If a violating party has taken all reasonable steps to comply

ORDER - 5

Case 2:15-cv-00813-JLR Document 145 Filed 03/20/19 Page 6 of 9

1 with the court order, technical or inadvertant [sic] violations of the order will not support

2 a finding of civil contempt.” Id. (internal quotations omitted); see also Kelly v. Wengler,

3 822 F.3d 1085, 1096 (9th Cir. 2016) (“A contemnor in violation of a court order may

4 avoid a finding of civil contempt only by showing it took all reasonable steps to comply

5 with the order.”) (italics in original). Thus, the court concludes that adoption of specific

6 rates of compliance would not be appropriate because such rates would invite the

7 possibility of arbitrary enforcement actions that would fail to take into account the

8 reasonable steps that Defendants take to comply with the court’s order.

9

Based on the foregoing analysis, the court declines to require Defendants to be in

10 full compliance with 8 C.F.R. § 208.7(a)(1) by a date certain.

11 C. Venue for Future Individual Actions

12

The parties agree that only this court has jurisdiction to enforce compliance with

13 issues that affect all or a substantial part of the class. (Plf. Resp. Ltr. at 3; Def. Ltr. at 3

14 (“[T]o the extent that Plaintiffs seek enforcement of this [c]ourt’s injunction . . . on a[]

15 . . . class-wide basis—the only proper venue is in this [c]ourt.”). The parties disagree on

16 whether this court is the only court to have jurisdiction over an action filed by an

17 individual class member seeking to compel adjudication of his or her individual EAD

18 application. Plaintiffs argue that any district court that would otherwise have venue

19 should be able to adjudicate individual plaintiffs’ claims to compel timely adjudication of

20 their individual EAD applications. (Plf. Ltr. at 2-3; Plf. Resp. Ltr. at 3.) Defendants

21 insist that all such individual claims must be filed in this court. (Def Ltr. at 3; Def. Resp.

22 Ltr. at 1-2.)

ORDER - 6

Case 2:15-cv-00813-JLR Document 145 Filed 03/20/19 Page 7 of 9

1

Defendants’ position is both practically problematic and legally incorrect. As

2 Plaintiffs point out, there were over 200,000 initial asylum EAD applications filed in

3 Fiscal Years 2017 and 2018. (See Plf Ltr. at 2, Ex. A.) The class is numerous and

4 inherently transitory. As such, there will be class members in various locations

5 throughout the country who may wish to file mandamus or Administrative Procedure Act

6 district court actions if their EAD applications are not decided within 30 days. Requiring

7 all of these actions to be filed in this court would represent an unreasonable and

8 unwarranted burden on both this court and the individual plaintiffs who may be involved.

9 Further, any such district court action would require examination of more than what this

10 court already decided—that USCIS is obligated to comply with the 30-day deadline in 8

11 C.F.R. § 208.7(a)(1). (See generally SJ Order.) For example, based on the specific facts

12 alleged, such individual actions may require the court to engage in additional factual

13 inquiry to determine whether the 30-day clock has run, whether the EAD application was

14 complete, and whether the individual met the requirements of the implementation plan,

15 was responsible for any delay, or had been convicted of an aggravated felony.

16

This court’s binding resolution of the common question whether USCIS is

17 obligated to adjudicate initial asylum EADs within 30 days is distinct from the factual

18 questions that may arise in individual actions. The general principle of class litigation is

19 that court may resolve common questions—in this case the 30-day deadline—but

20 individual, future claims for individualized relief can still be brought separately. See,

21 e.g., Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 881 (1984) (observing that

22 Rule 23 class action procedures are designed to provide a mechanism for the expeditious

ORDER - 7

Case 2:15-cv-00813-JLR Document 145 Filed 03/20/19 Page 8 of 9

1 decision of common questions, but would not bar later exclusively individual claims); In

2 re TFT-LCD (Flat Panel) Antitrust Litig., No. M 07-1827 SI, 2012 WL 273883, at *3

3 (N.D. Cal. Jan. 30, 2012) (“[A] Rule 23(b)(2) judgment, with its one-size-fits-all

4 approach and its limited procedural protections, will not preclude later claims for

5 individualized relief.”); Cameron v. Tomes, 990 F.2d 14, 17 (1st Cir. 1993) (“[I]n

6 Cooper, . . . the Supreme Court confirmed what common sense would suggest: a class

7 action judgment . . . binds the class members as to matters actually litigated but does not

8 resolve any claim based on individual circumstances that was not addressed in the class

9 action.”).

10

Thus, the court concludes that any class-wide relief requested by either Plaintiffs

11 or Defendants, including any contempt motions, are properly directed to this court.

12 However, the class certification order in this case does not preclude individual class

13 members from filing separate actions in other appropriate forums because the delay in a

14 particular case involves individual circumstances and would require the court to go

15 beyond the legal issues already decided by this court.

16

IV. CONCLUSION

17

Based on the foregoing analysis, the court (1) declines to require full compliance

18 with its injunction by a date certain, and (2) declines to require individuals who seek to

19 //

20 //

21 //

22 //

ORDER - 8

Case 2:15-cv-00813-JLR Document 145 Filed 03/20/19 Page 9 of 9

1 compel Defendants to adjudicate a specific EAD application to file their action in this

2 court.

3

Dated this 20th day of March, 2019.

4

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A

6

JAMES L. ROBART

United States District Judge

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ORDER - 9

 
 U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:15-cv-00813-JLR

Rosario, et al v. United States Citizenship and Immigration Services et al Assigned to: Judge James L. Robart Case in other court: 9th Circuit Court of Appeals, 18-
35806 Cause: 05:702 Administrative Procedure Act

Date Filed: 05/22/2015 Date Terminated: 07/26/2018 Jury Demand: None Nature of Suit: 465 Other Immigration Actions Jurisdiction: U.S. Government Defendant

Plaintiff
Northwest Immigrant Rights Project TERMINATED: 07/18/2017

represented by Christina J Murdoch SCOTT D. POLLOCK & ASSOCIATES, PC 105 W. MADISON STREET SUITE 2200 CHICAGO, IL 60602 312-444-1940 Email: cmurdoch@lawfirm1.com TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE

Christopher Strawn NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8628 Fax: 206-587-4025 Email: chris@nwirp.org TERMINATED: 07/18/2017 LEAD ATTORNEY

Devin T Theriot-Orr OPEN SKY LAW PLLC 20415 72ND AVE S STE 110 KENT, WA 98032 206-962-5052 Fax: 206-681-9663 Email: devin@opensky.law

TERMINATED: 07/18/2017 LEAD ATTORNEY
Kathryn R Weber SCOTT D. POLLOCK & ASSOCIATES PC 105 W MADISON ST. STE 2200 CHICAGO, IL 60602 312-444-1940 Email: kweber@lawfirm1.com TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Leslie K Dellon AMERICAN IMMIGRATION COUNCIL 1331 G ST. NW SUITE 200 WASHINGTON, DC 20005 202-507-7530 Email: ldellon@immcouncil.org TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Marc Van Der Hout VANDERHOUT BRIGAGLIANO AND NIGHTINGALE 180 SUTTER STREET SUITE 500 SAN FRANCISCO, CA 94104 415-981-3000 Email: ndca@vblaw.com TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Melissa Crow AMERICAN IMMIGRATION COUNCIL 1331 G STREET NW STE 200 WASHINGTON, DC 20005 202-507-7523

Email: mcrow@immcouncil.org TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Robert H. Gibbs GIBBS HOUSTON PAUW 1000 SECOND AVE STE 1600 SEATTLE, WA 98104 206-682-1080 Fax: 206-689-2270 Email: rgibbs@ghp-law.net TERMINATED: 07/18/2017 LEAD ATTORNEY
Robert Pauw GIBBS HOUSTON PAUW 1000 SECOND AVE STE 1600 SEATTLE, WA 98104 206-682-1080 Fax: 206-689-2270 Email: rpauw@ghp-law.net TERMINATED: 07/18/2017 LEAD ATTORNEY
Scott D Pollock SCOTT D. POLLOCK & ASSOCIATES, PC 105 W MADISON ST. SUITE 2200 CHICAGO, IL 60602 312-444-1940 Email: spollock@lawfirm1.com TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Matt Adams NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8611

Plaintiff
The Advocates for Human Rights TERMINATED: 07/18/2017

Email: matt@nwirp.org ATTORNEY TO BE NOTICED
represented by Christina J Murdoch (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Christopher Strawn (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY
Kathryn R Weber (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Leslie K Dellon (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Marc Van Der Hout (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Melissa Crow (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Scott D Pollock (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Matt Adams

Plaintiff
Marvella Arcos-Perez Individually and on behalf of all others similarly situated TERMINATED: 07/18/2017

(See above for address) ATTORNEY TO BE NOTICED
represented by Christina J Murdoch (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Christopher Strawn (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY
Kathryn R Weber (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Leslie K Dellon (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Marc Van Der Hout (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Melissa Crow (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Scott D Pollock (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Matt Adams

Plaintiff
Carmen Osorio-Ballesteros Individually and on behalf of all others similarly situated TERMINATED: 07/18/2017

(See above for address) ATTORNEY TO BE NOTICED
represented by Christina J Murdoch (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Christopher Strawn (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY
Kathryn R Weber (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Leslie K Dellon (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Marc Van Der Hout (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Melissa Crow (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Scott D Pollock (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Matt Adams

Plaintiff
W. H. Individually and on behalf of all others similarly situated

(See above for address) ATTORNEY TO BE NOTICED
represented by Christina J Murdoch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Strawn (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY
Emma Curtis Winger AMERICAN IMMIGRATION COUNCIL 1318 BEACON ST STE 18 BROOKINE, MA 02446 617-505-5375 Email: ewinger@immcouncil.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn R Weber (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie K Dellon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc Van Der Hout (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Crow (See above for address)

Plaintiff
Wilman Gonzalez Rosario TERMINATED: 09/26/2018

TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Scott D Pollock (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Trina Realmuto AMERICAN IMMIGRATION COUNCIL 1318 BEACON STREET STE 18 Suite 18 BROOKLINE, MA 02446 857-305-3600 Fax: 202-742-5619 Email: trina@immigrationlitigation.org TERMINATED: 06/01/2020 LEAD ATTORNEY PRO HAC VICE
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Christina J Murdoch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Strawn (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY
Devin T Theriot-Orr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn R Weber

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie K Dellon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc Van Der Hout (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Crow (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott D Pollock (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Trina Realmuto (See above for address) TERMINATED: 06/01/2020 LEAD ATTORNEY PRO HAC VICE
Matt Adams

Plaintiff
L. S. TERMINATED: 09/26/2018

(See above for address) ATTORNEY TO BE NOTICED
represented by Christina J Murdoch (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Christopher Strawn (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY
Devin T Theriot-Orr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn R Weber (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Leslie K Dellon (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Marc Van Der Hout (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Melissa Crow (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Robert H. Gibbs (See above for address)

Plaintiff
K. T. TERMINATED: 09/26/2018

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott D Pollock (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Trina Realmuto (See above for address) TERMINATED: 06/01/2020 LEAD ATTORNEY PRO HAC VICE
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Christina J Murdoch (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Christopher Strawn (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY
Devin T Theriot-Orr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn R Weber (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE

Plaintiff

Leslie K Dellon (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Marc Van Der Hout (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Melissa Crow (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott D Pollock (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Trina Realmuto (See above for address) TERMINATED: 06/01/2020 LEAD ATTORNEY PRO HAC VICE
Matt Adams (See above for address) ATTORNEY TO BE NOTICED

A.A.

represented by Christina J Murdoch

(See above for address)

TERMINATED: 07/18/2017

LEAD ATTORNEY

PRO HAC VICE

Christopher Strawn (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY

Devin T Theriot-Orr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emma Curtis Winger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn R Weber (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE

Leslie K Dellon (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE

Marc Van Der Hout (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE

Melissa Crow (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE

Plaintiff
Karla Diaz Marin TERMINATED: 09/26/2018

Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott D Pollock (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Trina Realmuto (See above for address) TERMINATED: 06/01/2020 LEAD ATTORNEY PRO HAC VICE
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Christina J Murdoch (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Christopher Strawn (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY
Devin T Theriot-Orr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn R Weber (See above for address) TERMINATED: 07/18/2017

LEAD ATTORNEY PRO HAC VICE
Leslie K Dellon (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Marc Van Der Hout (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Melissa Crow (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott D Pollock (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Trina Realmuto (See above for address) TERMINATED: 06/01/2020 LEAD ATTORNEY PRO HAC VICE
Matt Adams (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Antonio Machic Yac

represented by Christina J Murdoch (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Christopher Strawn (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY
Devin T Theriot-Orr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emma Curtis Winger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn R Weber (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Leslie K Dellon (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Marc Van Der Hout (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Melissa Crow (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE

Plaintiff
Faridy Salmon TERMINATED: 09/26/2018

Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott D Pollock (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Trina Realmuto (See above for address) TERMINATED: 06/01/2020 LEAD ATTORNEY PRO HAC VICE
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Christina J Murdoch (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Christopher Strawn (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY
Devin T Theriot-Orr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn R Weber (See above for address)

TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Leslie K Dellon (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Marc Van Der Hout (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Melissa Crow (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott D Pollock (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Trina Realmuto (See above for address) TERMINATED: 06/01/2020 LEAD ATTORNEY PRO HAC VICE
Matt Adams

Plaintiff
Jaimin Shah TERMINATED: 09/26/2018

(See above for address) ATTORNEY TO BE NOTICED
represented by Christina J Murdoch (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Christopher Strawn (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY
Devin T Theriot-Orr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn R Weber (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Leslie K Dellon (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Marc Van Der Hout (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Melissa Crow (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Robert H. Gibbs (See above for address)

V.
Defendant
US Citizenship and Immigration Services

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott D Pollock (See above for address) TERMINATED: 07/18/2017 LEAD ATTORNEY PRO HAC VICE
Trina Realmuto (See above for address) TERMINATED: 06/01/2020 LEAD ATTORNEY PRO HAC VICE
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron S Goldsmith US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-532-4107 Email: Aaron.Goldsmith@usdoj.gov ATTORNEY TO BE NOTICED
Adrienne Zack US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-598-2446 Email:

Defendant

Adrienne.M.Zack@usdoj.gov TERMINATED: 07/18/2017
Craig Andrew Defoe US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-532-4114 Email: craig.defoe@usdoj.gov TERMINATED: 11/28/2016
Jeffrey S Robins US DEPARTMENT OF JUSTICE (BOX 878) PO BOX 878 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-616-1246 Email: jeffrey.robins@usdoj.gov ATTORNEY TO BE NOTICED
John Inkeles US DEPT OF JUSTICE CIVIL DIVISION OFFICE OF IMMIGRATION LITIGATION 450 5TH ST NW WASHINGTON, DC 20001 202-532-4309 Email: john.inkeles@usdoj.gov ATTORNEY TO BE NOTICED
Sarah Maloney US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-305-4193 Email: Sarah.Maloney2@usdoj.gov TERMINATED: 03/14/2016

United States Department of Homeland Security
Defendant Leon Rodriguez Director, U.S. Citizenship and Immigration Services TERMINATED: 07/18/2017
Defendant

represented by Aaron S Goldsmith (See above for address) ATTORNEY TO BE NOTICED
Adrienne Zack (See above for address) TERMINATED: 07/18/2017
Craig Andrew Defoe (See above for address) TERMINATED: 11/28/2016
Jeffrey S Robins (See above for address) ATTORNEY TO BE NOTICED
John Inkeles (See above for address) ATTORNEY TO BE NOTICED
Sarah Maloney (See above for address) TERMINATED: 03/14/2016
represented by Adrienne Zack (See above for address) TERMINATED: 07/18/2017
Craig Andrew Defoe (See above for address) TERMINATED: 11/28/2016
Jeffrey S Robins (See above for address) TERMINATED: 07/18/2017
John Inkeles (See above for address) TERMINATED: 07/18/2017
Sarah Maloney (See above for address) TERMINATED: 03/14/2016

Jeh Johnson Secretary, U.S. Department of Homeland Security TERMINATED: 07/18/2017
Defendant James McCament Director, U.S. Citizenship and Immigration Services TERMINATED: 04/17/2018
Defendant

represented by Adrienne Zack (See above for address) TERMINATED: 07/18/2017
Craig Andrew Defoe (See above for address) TERMINATED: 11/28/2016
Jeffrey S Robins (See above for address) ATTORNEY TO BE NOTICED
John Inkeles (See above for address) TERMINATED: 07/18/2017
Sarah Maloney (See above for address) TERMINATED: 03/14/2016
represented by Adrienne Zack (See above for address) TERMINATED: 07/18/2017
Jeffrey S Robins (See above for address) ATTORNEY TO BE NOTICED
John Inkeles US DEPT OF JUSTICE CIVIL DIVISION OFFICE OF IMMIGRATION LITIGATION 450 5TH ST NW
WASHINGTON, DC 20001 202-532-4309 Fax: Email: john.inkeles@usdoj.gov TERMINATED: 07/18/2017

John Kelly Secretary of DHS TERMINATED: 04/17/2018
Defendant L Francis Cissna Director of USCIS
Defendant Kirstjen M Nielsen Secretary of DHS

represented by Adrienne Zack (See above for address) TERMINATED: 07/18/2017
Jeffrey S Robins (See above for address) ATTORNEY TO BE NOTICED
John Inkeles (See above for address) TERMINATED: 07/18/2017
represented by Jeffrey S Robins (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey S Robins (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/22/2015
05/22/2015

# Docket Text
1 COMPLAINT Class Action against defendant(s) All Plaintiffs (Receipt # 0981-4027612) Attorney Christopher Strawn added to party Marvella Arcos-Perez(pty:pla), Attorney Christopher Strawn added to party W. H.(pty:pla), Attorney Christopher Strawn added to party Northwest Immigrant Rights Project(pty:pla), Attorney Christopher Strawn added to party Carmen Osorio-Ballesteros(pty:pla), Attorney Christopher Strawn added to party The Advocates for Human Rights(pty:pla), filed by Marvella Arcos-Perez, Carmen Osorio-Ballesteros, W. H., Northwest Immigrant Rights Project, The Advocates for Human Rights. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons)(Strawn, Christopher) (Entered: 05/22/2015)
2 APPLICATION OF ATTORNEY Melissa Crow FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Marvella Arcos-Perez, W. H., Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros, The Advocates for Human Rights (Fee Paid) Receipt No. 0981-4027656 (Theriot-Orr, Devin) (Entered: 05/22/2015)

05/22/2015 05/22/2015 05/22/2015 05/22/2015 05/22/2015 05/22/2015 05/26/2015

3 ERRATA re 2 Application for Leave to Appear Pro Hac Vice, by Plaintiffs Marvella Arcos-Perez, W. H., Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros, The Advocates for Human Rights (Theriot-Orr, Devin) (Entered: 05/22/2015)
4 APPLICATION OF ATTORNEY Leslie K. Dellon FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Marvella Arcos-Perez, W. H., Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros, The Advocates for Human Rights (Fee Paid) Receipt No. 0981-4027690 (Theriot-Orr, Devin) (Entered: 05/22/2015)
6 APPLICATION OF ATTORNEY Scott D. Pollock FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Marvella Arcos-Perez, W. H., Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros, The Advocates for Human Rights (Fee Paid) Receipt No. 0981-4027700 (Theriot-Orr, Devin) (Entered: 05/22/2015)
7 APPLICATION OF ATTORNEY Kathryn R. Weber FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Marvella Arcos-Perez, W. H., Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros, The Advocates for Human Rights (Fee Paid) Receipt No. 0981-4027723 (Theriot-Orr, Devin) (Entered: 05/22/2015)
8 APPLICATION OF ATTORNEY Christina J. Murdoch FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Marvella Arcos-Perez, W. H., Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros, The Advocates for Human Rights (Fee Paid) Receipt No. 09814027729 (Theriot-Orr, Devin) (Entered: 05/22/2015)
9 APPLICATION OF ATTORNEY Marc Van Der Hout FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Marvella Arcos-Perez, W. H., Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros, The Advocates for Human Rights (Fee Paid) Receipt No. 09814027733 (Theriot-Orr, Devin) (Entered: 05/22/2015)
10 ORDER re 2 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney Melissa Crow for Marvella Arcos-Perez, W. H., Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros snd for The Advocates for Human Rights, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 05/26/2015)

05/26/2015 05/26/2015 05/26/2015 05/26/2015 05/26/2015

11 ORDER re 4 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney Leslie K Dellon for Marvella Arcos-Perez, W. H., Northwest Immigrant Rights Project, Carmen OsorioBallesteros and for The Advocates for Human Rights, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 05/26/2015)
12 ORDER re 6 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Scott D Pollock for Marvella Arcos-Perez, W. H., Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros and for The Advocates for Human Rights, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 05/26/2015)
13 ORDER re 7 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Kathryn R Weber for Marvella Arcos-Perez,W. H., Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros and for The Advocates for Human Rights, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 05/26/2015)
14 ORDER re 8 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney Christina J Murdoch for Marvella ArcosPerez, W. H., Northwest Immigrant Rights Project, Carmen OsorioBallesteros and for The Advocates for Human Rights, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 05/26/2015)
15 ORDER re 9 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Marc Van Der Hout for Marvella Arcos-Perez, W.

05/26/2015 05/26/2015 05/26/2015
06/11/2015
06/15/2015
06/22/2015 07/22/2015
07/24/2015 07/24/2015

H., Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros and for The Advocates for Human Rights, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 05/26/2015)
Judge James L. Robart added. (ST) (Entered: 05/26/2015)
NOTICE: Pursuant to Fed.R.Civ.P 7.1, Plaintiff(s) must file a Corporate Disclosure Statement by 6/2/2015. (ST) (Entered: 05/26/2015)
16 Summons electronically issued as to defendant(s) Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(ST) (Entered: 05/26/2015)
19 NOTICE of Appearance by attorney Sarah Maloney on behalf of Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Maloney, Sarah) (Entered: 06/11/2015)
21 ORDER re 20 Stipulation to extend deadline to respond to motion for class certification and Re-note 5 Plaintiffs' MOTION to Certify Class :RE- Noting Date 8/28/2015, by Judge James L. Robart. (MD) (Entered: 06/16/2015)
23 ORDER granting 22 Plaintiff's Motion for Protective Order, by Judge James L. Robart.(MD) (Entered: 06/22/2015)
25 NOTICE of Appearance by attorney Craig Andrew Defoe on behalf of Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Defoe, Craig) (Entered: 07/22/2015)
26 STIPULATION AND PROPOSED ORDER To Extend by Fourteen Days the Deadline to Respond to the Complaint and Class Certification Motion by parties (Maloney, Sarah) (Entered: 07/24/2015)
27 MOTION to Stay Summary Judgment Proceedings by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. Noting Date 8/14/2015, (Maloney, Sarah) (Entered: 07/24/2015)

07/27/2015 08/10/2015 08/10/2015 08/10/2015 08/10/2015 08/10/2015 08/10/2015
08/10/2015

28 ORDER EXTENDING DEADLINE TO RESPOND TO MOTION FOR CLASS CERTIFICATION AND RE-NOTING pltfs' 5 MOTION to Certify Class ; Noting Date 9/11/2015, by Judge James L. Robart. (RS) (Entered: 07/27/2015)
29 RESPONSE, by Plaintiff Northwest Immigrant Rights Project, to 27 MOTION to Stay Summary Judgment Proceedings. (Attachments: # 1 Exhibit A - Strawn decl., # 2 Exhibit B - Strawn email, # 3 Exhibit C - Press statements, # 4 Exhibit D - Dolgaya decl., # 5 Exhibit E - Moran decl., # 6 Exhibit F - Svendsen decl.)(Strawn, Christopher) (Entered: 08/10/2015)
30 Unopposed MOTION to Seal Administrative Records by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Attachments: # 1 Proposed Order) Noting Date 9/11/2015, (Maloney, Sarah) (Entered: 08/10/2015)
31 SEALED DOCUMENT Administrative Records by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security re 30 Unopposed MOTION to Seal Administrative Records (Attachments: # 1 1, # 2 2)(Maloney, Sarah) (Entered: 08/10/2015)
32 NOTICE of Appearance by attorney Jeffrey S Robins on behalf of Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Robins, Jeffrey) (Entered: 08/10/2015)
33 MOTION to Seal Motion to Dismiss and Opposition to Class Certification Motion by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Attachments: # 1 Proposed Order) Noting Date 9/11/2015, (Maloney, Sarah) (Entered: 08/10/2015)
34 SEALED MOTION MOTION TO DISMISS by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security re 33 MOTION to Seal Motion to Dismiss and Opposition to Class Certification Motion Oral argument requested. Noted for 9/11/15 (Attachments: # 1 Proposed Order)(Maloney, Sarah) Modified on 8/11/2015 to change document into a motion (RS). Modified on 2/10/2016 to unseal per Order (RS). (Entered: 08/10/2015)
35 SEALED DOCUMENT Defendants' Response in Opposition to Plaintiffs' Motion for Class Certification 5 by Defendants Jeh Johnson,

08/11/2015 08/12/2015 08/25/2015 08/25/2015 08/27/2015 08/31/2015 09/08/2015 09/11/2015

Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security re 33 MOTION to Seal Motion to Dismiss and Opposition to Class Certification Motion (Robins, Jeffrey) Modified on 8/11/2015 to add link to motion (RS). Modified on 2/10/2016 to unseal per Order (RS). (Entered: 08/10/2015)
Noting Date Set/Reset re dfts' 34 SEALED MOTION : Noting Date 9/11/2015, (Clerk changed sealed document into a sealed motion) (RS) (Entered: 08/11/2015)
36 ORDER denying plaintiffs' unopposed 30 Motion to Seal without prejudice to re-filing a motion within 14 days that complies with the Local Rules and Ninth Circuit precedent. Clerk is directed to maintain the seal on documents at issue (Dkt. ##31, 31-1, 31-2) by Judge James L. Robart.(PM) (Entered: 08/12/2015)
37 Unopposed MOTION to Seal Administrative Records by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Attachments: # 1 Proposed Order) Noting Date 9/11/2015, (Maloney, Sarah) (Entered: 08/25/2015)
38 SEALED DOCUMENT Administrative Records of Ms. Arcos-Perez, Ms. Osorio-Ballesteros, and W.H. by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security re 37 Unopposed MOTION to Seal Administrative Records (Maloney, Sarah) (Entered: 08/25/2015)
39 ORDER granting dfts' 37 Motion to Seal Admin Records by Judge James L. Robart.(RS) (Entered: 08/27/2015)
40 RESPONSE, by Plaintiffs Marvella Arcos-Perez, W. H., Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros, The Advocates for Human Rights, to 34 SEALED MOTION. Oral Argument Requested. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Theriot-Orr, Devin) (Entered: 08/31/2015)
41 RESPONSE, by Plaintiff Northwest Immigrant Rights Project, to 33 MOTION to Seal Motion to Dismiss and Opposition to Class Certification Motion. (Strawn, Christopher) (Entered: 09/08/2015)
42 REPLY, filed by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security, TO RESPONSE to 33 MOTION to Seal Motion to Dismiss and Opposition to Class Certification Motion (Maloney, Sarah) (Entered: 09/11/2015)

09/11/2015 09/11/2015 09/28/2015 12/10/2015
01/07/2016 01/07/2016 01/21/2016
01/22/2016

43 SEALED DOCUMENT Reply In Support of Motion to Dismiss by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security re 33 MOTION to Seal Motion to Dismiss and Opposition to Class Certification Motion, 34 SEALED MOTION (Maloney, Sarah) Modified on 2/10/2016 to unseal per Order (RS). (Entered: 09/11/2015)
44 REPLY, filed by Plaintiffs Marvella Arcos-Perez, W. H., Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros, The Advocates for Human Rights, TO RESPONSE to 5 MOTION to Certify Class (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Theriot-Orr, Devin) (Entered: 09/11/2015)
45 NOTICE of Supplemental Authority re 34 SEALED MOTION by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security (Attachments: # 1 Citation)(Maloney, Sarah) (Entered: 09/28/2015)
46 MINUTE ORDER by Judge James L. Robart; Oral argument on Plaintiffs' 5 motion for class certification and Defendants' 34 motion to dismiss is scheduled for 90 minutes on 9:30 AM on Wednesday, January 13, 2016. The parties should also be prepared to address an appropriate schedule for summary judgment proceedings (see Dkt. ## 24 , 27 , 29 ) and the merits of Defendants' motion to seal (see Dkt. ## 33 , 41 , 42 ). (AD) (Entered: 12/10/2015)
***Deadlines/Hearings terminated. (RS) (Entered: 01/07/2016)
47 MINUTE ORDER striking the 1/13/16 hearing; Oral argument on 34 SEALED MOTION, 5 MOTION to Certify Class is rescheduled for 1/21/2016 at 10:00 AM by Judge James L. Robart. (RS) (Entered: 01/07/2016)
48 MINUTE ENTRY for proceedings held before Judge James L. RobartDep Clerk: Casey Condon; Pla Counsel: Christopher Strawn, Leslie Dellon, Robert Gibbs; Def Counsel: Jeffrey Robins, Sarah Maloney; CR: Nancy Bauer; Motion Hearing held on 1/21/2016. The court hears argument from counsel on the pending motions. The court renotes the motion to seal, Dkt. #33, for January 29, 2016. The court takes the matter under advisement(CC) (Entered: 01/21/2016)
49 MINUTE ORDER DIRECTING PARTIES TO FILE SUPPLEMENTAL BRIEFING; The briefs are not to exceed five (5) pages and must be submitted by Friday, January 29, 2016, by Judge James L. Robart. (AD) (Entered: 01/22/2016)

01/25/2016 01/29/2016 01/29/2016 01/29/2016 02/09/2016 02/10/2016
02/19/2016 02/22/2016

50 NOTICE of Supplemental Authority re 34 SEALED MOTION Supreme Court and environmental law citations on organization standing by Plaintiff Northwest Immigrant Rights Project (Strawn, Christopher) (Entered: 01/25/2016)
51 NOTICE re 49 Minute Order, 48 Motion Hearing, 33 MOTION to Seal Motion to Dismiss and Opposition to Class Certification Motion ; filed by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Robins, Jeffrey) (Entered: 01/29/2016)
52 MEMORANDUM re 49 Minute Order by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security (Robins, Jeffrey) (Entered: 01/29/2016)
53 SUPPLEMENT re 49 Minute Order Supplemental Brief by Plaintiff Northwest Immigrant Rights Project (Attachments: # 1 Exhibit Exh. 1 Arcos I-765 receipt)(Strawn, Christopher) (Entered: 01/29/2016)
54 NOTICE to Withdraw Pending Motion re 33 MOTION to Seal Motion to Dismiss and Opposition to Class Certification Motion ; by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Robins, Jeffrey) (Entered: 02/09/2016)
55 ORDER PRELIMINARILY FILED UNDER SEAL ORDER denying plaintiffs' 24 MOTION for Summary Judgment and plaintiffs' 5 MOTION to Certify Class ; granting in part and denying in part defendants' 34 MOTION to dismiss; denying as moot defendants' 27 MOTION to stay summary judgment proceedings. Directing clerk to filed this order under seal, statements re sealing of this order due within 14 days. Clerk directed to unseal documents 34 35 43 by Judge James L. Robart.(RS)cc all counsel by email Modified on 2/22/2016 to unseal per Order (RS). (Entered: 02/10/2016)
56 NOTICE (JOINT) REGARDING ORDER PRELIMINARILY FILED UNDER SEAL re 55 Sealed Order, Terminate Motions,,,, ; filed by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Attachments: # 1 Proposed Order)(Robins, Jeffrey) (Entered: 02/19/2016)
57 ORDER unsealing the Court's Order 55 without redaction by Judge James L. Robart. (RS) (Entered: 02/22/2016)

03/10/2016 03/11/2016
03/11/2016 03/14/2016 03/18/2016
03/21/2016 03/23/2016

58 AMENDED COMPLAINT , CLASS ACTION against defendant(s) All Plaintiffs, filed by Marvella Arcos-Perez, Carmen Osorio-Ballesteros, W. H., Northwest Immigrant Rights Project, The Advocates for Human Rights. (Attachments: # 1 Certificate of Service)(Strawn, Christopher) (Entered: 03/10/2016)
59 MOTION to Certify Class by Plaintiffs A. A., Marvella Arcos-Perez, Karla Diaz Marin, Wilman Gonzalez Rosario, W. H., Antonio Machic Yac, Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros, L. S., Faridy Salmon, Jaimin Shah, K. T., The Advocates for Human Rights. Oral Argument Requested. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Certificate of Service) Noting Date 4/8/2016, (Theriot-Orr, Devin) (Entered: 03/11/2016)
60 NOTICE of Withdrawal of Additional Counsel for Defendants ; filed by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Maloney, Sarah) (Entered: 03/11/2016)
Attorney Sarah Maloney terminated for defendants U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, Leon Rodriguez, and Jeh Johnson; per 60 Notice of Withdrawal (CDA) (Entered: 03/14/2016)
61 Unopposed MOTION for Protective Order To Redact Names by Plaintiffs A. A., Marvella Arcos-Perez, Karla Diaz Marin, Wilman Gonzalez Rosario, W. H., Antonio Machic Yac, Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros, L. S., Faridy Salmon, Jaimin Shah, K. T., The Advocates for Human Rights. (Attachments: # 1 Proposed Order proposed order, # 2 Exhibit Dec of LS, # 3 Exhibit Dec of KT, # 4 Exhibit Dec of AA, # 5 Exhibit Bo Cooper memo, # 6 Exhibit AOBT extract, # 7 Exhibit Imm Ct. Prac Manual, # 8 Exhibit BIA Prct Manual, # 9 Exhibit Langlois memo) Noting Date 4/1/2016, (Gibbs, Robert) (Entered: 03/18/2016)
62 ORDER granting plaintiffs' 61 Motion for Protective Order permitting plaintiffs L.S., K.T. and A.A. to proceed in this action using only the first initials of their first and last names, by Judge James L. Robart. (AD) (Entered: 03/21/2016)
63 STIPULATION AND PROPOSED ORDER EXTENDING DEADLINE TO RESPOND TO AMENDED COMPLAINT, MOTION FOR CLASS CERTIFICATION, AND NOTING DATE by parties re 59 MOTION to

03/23/2016 04/18/2016 04/18/2016 04/18/2016 04/18/2016 04/18/2016
04/21/2016

Certify Class , 58 Amended Complaint, (Robins, Jeffrey) (Entered: 03/23/2016)
64 ORDER Extending Deadline to Respond to Amended Complaint, Motion for Class Certification and Noting Date by Judge James L. Robart. Plaintiff's 59 motion for class certification is renoted to 5/13/2016; Defendant's answer or dispositive motion in response to the Amended Complaint due by 4/18/2016. (AD) (Entered: 03/23/2016)
65 NOTICE of Appearance by attorney Adrienne Zack on behalf of Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Zack, Adrienne) (Entered: 04/18/2016)
66 Unopposed MOTION to Seal Administrative Records by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Attachments: # 1 Proposed Order) Noting Date 5/13/2016, (Zack, Adrienne) (Entered: 04/18/2016)
67 SEALED DOCUMENT Administrative Records by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security re 66 Unopposed MOTION to Seal Administrative Records (Attachments: # 1 1, # 2 2, # 3 3, # 4 4, # 5 5, # 6 6, # 7 7, # 8 8)(Zack, Adrienne) (Entered: 04/18/2016)
68 MOTION to Seal Motion to Dismiss and Opposition to Renewed Motion for Class Certification by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Attachments: # 1 Proposed Order) Noting Date 5/13/2016, (Zack, Adrienne) (Entered: 04/18/2016)
69 SEALED MOTION to Dismiss; re 68 MOTION to Seal Motion to Dismiss and Opposition to Renewed Motion for Class Certification ; by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. Oral Argument Requested. (Attachments: # 1 Exhibit 1- Form I-765 Instructions, # 2 Proposed Order) Noting Date 5/13/2016, (Zack, Adrienne) Modified on 4/25/2016 motion unsealed as motion to seal was withdrawn, at the direction of chambers (AD). (Entered: 04/18/2016)
70 NOTICE of Appearance by attorney John Joseph William Inkeles on behalf of Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Inkeles, John) (Entered: 04/21/2016)

04/25/2016 04/25/2016 04/25/2016 05/09/2016
05/13/2016 05/13/2016 07/13/2016
08/25/2016

71 NOTICE to Withdraw Pending Motion re 68 MOTION to Seal Motion to Dismiss and Opposition to Renewed Motion for Class Certification ; by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Zack, Adrienne) (Entered: 04/25/2016)
NOTICE of Docket Text Modification re 69 SEALED MOTION to Dismiss: motion unsealed, as the 68 motion to seal the motion to dismiss was withdraw, per the 71 Notice to Withdraw Pending motion and at the direction of chambers. (AD) (Entered: 04/25/2016)
72 RESPONSE, by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security, to 59 MOTION to Certify Class . Oral Argument Requested. (Inkeles, John) (Entered: 04/25/2016)
73 RESPONSE, by Plaintiffs A. A., Marvella Arcos-Perez, Karla Diaz Marin, Wilman Gonzalez Rosario, W. H., Antonio Machic Yac, Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros, L. S., Faridy Salmon, Jaimin Shah, K. T., The Advocates for Human Rights, to 69 SEALED MOTION to Dismiss; re 68 MOTION to Seal Motion to Dismiss and Opposition to Renewed Motion for Class Certification ;. Oral Argument Requested. (Theriot-Orr, Devin) (Entered: 05/09/2016)
74 REPLY, filed by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security, TO RESPONSE to 69 SEALED MOTION to Dismiss; re 68 MOTION to Seal Motion to Dismiss and Opposition to Renewed Motion for Class Certification ; (Zack, Adrienne) (Entered: 05/13/2016)
75 REPLY, filed by Plaintiff Northwest Immigrant Rights Project, TO RESPONSE to 59 MOTION to Certify Class (Strawn, Christopher) (Entered: 05/13/2016)
76 SUPPLEMENT re 59 MOTION to Certify Class , 73 Response to Motion, Excerpts from CIS Ombudsman's 2016 Report by Plaintiffs A. A., Marvella Arcos-Perez, Karla Diaz Marin, Wilman Gonzalez Rosario, W. H., Antonio Machic Yac, Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros, L. S., Faridy Salmon, Jaimin Shah, K. T., The Advocates for Human Rights (Attachments: # 1 Exhibit A)(Theriot-Orr, Devin) (Entered: 07/13/2016)
Set/Reset Hearings: Oral argument on the motion for class certification (Dkt. #59) and the motion to dismiss (Dkt. #69) is scheduled Wednesday, September 7, 2016 at 2:00 p.m. in Courtroom 14106 before Judge James L. Robart. (CC) (Entered: 08/25/2016)

08/31/2016 09/07/2016
09/21/2016 10/05/2016 10/19/2016 11/04/2016
11/23/2016 11/25/2016 11/28/2016

77 ORDER by Judge James L. Robart granting Defendants' 66 Motion to File Administrative Records under Seal. (PM) (Entered: 08/31/2016)
78 MINUTE ENTRY for proceedings held before Judge James L. RobartDep Clerk: Casey Condon; Pla Counsel: Christopher Strawn, Devin Theriot-Orr; Def Counsel: Adrienne Zack, Jeffrey Robins, John Inkeles; CR: Andrea Ramirez; Motion Hearing held on 9/7/2016. The court hears argument from counsel on the pending motions. Counsel advise the court there are on-going settlement negotiations. The court takes the matter under advisement.(CC) (Entered: 09/07/2016)
79 Joint STATUS REPORT by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security (Robins, Jeffrey) (Entered: 09/21/2016)
80 ORDER by Judge James L. Robart GRANTING in part and DENYING in part Defendants' 69 Motion to dismiss; DENYING without prejudice Individual Plaintiffs' 59 Motion for class certification and GRANTING Individual Plaintiffs leave to renew their motion for class certification within 30 days of the date of this order. (PM) (Entered: 10/05/2016)
81 RESPONSE by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security re 58 Amended Complaint, Answer (Zack, Adrienne) (Entered: 10/19/2016)
82 Third MOTION to Certify Class by Plaintiffs A. A., Karla Diaz Marin, Wilman Gonzalez Rosario, W. H., Antonio Machic Yac, L. S., Faridy Salmon, Jaimin Shah, K. T.. Oral Argument Requested. (Attachments: # 1 Declaration of Betsy Lawrence, # 2 Exhibits to Declaration of Betsy Lawrence) Noting Date 12/2/2016, (Theriot-Orr, Devin) (Entered: 11/04/2016)
83 STIPULATION AND PROPOSED ORDER Renoting and Modifying Response Deadline by parties re 82 Third MOTION to Certify Class (Attachments: # 1 Proposed Order)(Zack, Adrienne) (Entered: 11/23/2016)
84 ORDER renoting Plaintiffs' 82 Third MOTION for Class Certification for 1/13/2017; Defendant's response due 12/19/2016 by Judge James L. Robart. (PM) (Entered: 11/25/2016)
85 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Craig Andrew Defoe for Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Zack, Adrienne) (Entered: 11/28/2016)

12/19/2016 01/13/2017 03/02/2017 03/17/2017 03/17/2017 04/03/2017
04/21/2017 06/27/2017 07/10/2017

86 RESPONSE, by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security, to 82 Third MOTION to Certify Class . Oral Argument Requested. (Zack, Adrienne) (Entered: 12/19/2016)
87 REPLY, filed by Plaintiffs A. A., Marvella Arcos-Perez, Karla Diaz Marin, Wilman Gonzalez Rosario, W. H., Antonio Machic Yac, Carmen Osorio-Ballesteros, L. S., Faridy Salmon, Jaimin Shah, K. T., TO RESPONSE to 82 Third MOTION to Certify Class (Attachments: # 1 Citation)(Theriot-Orr, Devin) (Entered: 01/13/2017)
88 MOTION to Dismiss in Part, filed by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 3/24/2017, (Zack, Adrienne) (Entered: 03/02/2017)
89 STIPULATION AND PROPOSED ORDER to extend deadline and renote motion by parties re 88 MOTION to Dismiss in Part (Strawn, Christopher) (Entered: 03/17/2017)
90 ORDER renoting Defendants' 88 MOTION to Dismiss in Part to 4/21/2017; Response due 4/3/2017; Reply due 4/21/2017. Signed by Judge James L. Robart. (PM) (Entered: 03/17/2017)
91 RESPONSE, by Plaintiff Wilman Gonzalez Rosario, to 88 MOTION to Dismiss in Part. Oral Argument Requested. (Attachments: # 1 Exhibit 1 - Diaz Marin Dec., # 2 Exhibit 2 - Oskouian Dec., # 3 Exhibit 3 Brenes Dec., # 4 Exhibit 4 - Dobrin Dec., # 5 Exhibit 5 - Cooper memo, # 6 Exhibit 6 - Neufeld memo excerpts)(Strawn, Christopher) (Entered: 04/03/2017)
92 REPLY, filed by Defendants Jeh Johnson, Leon Rodriguez, United States Citizenship and Immigration Services, United States Department of Homeland Security, TO RESPONSE to 88 MOTION to Dismiss in Part (Zack, Adrienne) (Entered: 04/21/2017)
Set Oral Argument on Plaintiffs' Third Motion to Certify Class (Dkt. # 82 ) and Defendants' Motion to Dismiss in Part (Dkt. 88 ). Oral argument set for Thursday, July 13, 2017 at 10:00 a.m. in Courtroom 14106 before Judge James L. Robart. (AD) (Entered: 06/27/2017)
93 MINUTE ORDER directing counsel to be prepared to address topics identified in this minute order at the oral argument set for 7/13/2017 at 10:00 a.m. re Plaintiff's 82 motion for class certification and Defendants' 88 partial motion to dismiss. Authorized by Judge James L. Robart. (PM) (Entered: 07/10/2017)

07/13/2017

94 MINUTE ENTRY for proceedings held before Judge James L. Robart Dep Clerk: Ashleigh Drecktrah; Pla Counsel: Christpher Strawn, Devin Theriot-Orr; Def Counsel: Adrienne Zack; CR: Andrea Ramirez; Motion Hearing held on 7/13/2017. The court hears from counsel re: Plaintiffs' Third Motion for Class Certification (Dkt. # 82 ) and Defendants' Motion to Dismiss in Part Plaintiffs' Amended Complaint (Dkt. # 88 ). The matter is taken under submission. (AD) (Entered: 07/13/2017)

07/18/2017

95 ORDER signed by Judge James L. Robart. The court GRANTS Defendants' motion to dismiss the 90-Day Plaintiffs' and 90-Day Subclass's claims (Dkt. # 88 ), DISMISSES those claims as moot, and GRANTS in part and DENIES in part 30-Day Plaintiffs' motion for class certification (Dkt. # 82 ). The court APPOINTS A.A., Mr. Machic Yac, and W.H. as class representatives and DIRECTS the parties to review Rule 23(g), meet and confer, and brief the appointment of class counsel in the manner described above. Finally, the court DIRECTS the Clerk to update the docket to reflect substitution of government officials sued in their official capacities. (PM) (Entered: 07/18/2017)

07/18/2017

Defendants James McCament and John Kelly substituted for Leon Rodriguez and Jeh Johnson per 95 Order; Plaintiffs Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros, The Advocates for Human Rights, Marvella Arcos-Perez terminated per 80 Order. (PM) (Entered: 07/18/2017)

07/27/2017

96 Stipulated MOTION and Proposed Order Appointing Class Counsel, filed by Plaintiffs A. A., Wilman Gonzalez Rosario, W. H.. Noting Date 7/27/2017, (Theriot-Orr, Devin) (Entered: 07/27/2017)

07/28/2017 97 ORDER granting 96 Stipulated Motion to Appoint Class Counsel signed by Judge James L. Robart. (PM) (Entered: 07/28/2017)

08/03/2017

98 ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT by Judge James L. Robart. Joint Status Report due by 9/7/2017, FRCP 26f Conference Deadline is 8/17/2017, Initial Disclosure Deadline is 8/31/2017. (AD) (Entered: 08/03/2017)

08/29/2017

99 STIPULATION AND PROPOSED ORDER Requesting Extension of Time to File Combined Joint Status Report and Discovery Plan and Exchange Initial Disclosures by parties re 98 Joint Status Report Order Form for District Judges (Attachments: # 1 Proposed Order)(Zack, Adrienne) (Entered: 08/29/2017)

08/30/2017

100 STIPULATION AND ORDER Extending Time to File Combined Joint Status Report and Discovery Plan and Exchange Initial Disclosures. Initial Disclosure Deadline is 9/20/2017, Joint Status Report and

Discovery Plan due by 9/28/2017, signed by Judge James L. Robart. (TH) (Entered: 08/30/2017)

09/28/2017

101 JOINT STATUS REPORT signed by all parties estimated Trial Days: 0. Filed by Defendants John Kelly, James McCament, United States Citizenship and Immigration Services, United States Department of Homeland Security.(Zack, Adrienne) (Entered: 09/28/2017)

10/17/2017

102 SCHEDULING ORDER by Judge James L. Robart. Defendants' Motion to Supplement the Record due 10/20/2017; Plaintiffs' Opposition and any Cross-Motion due 11/24/2017; Defendants' Reply and any Opposition to the Cross-Motion due 12/8/2017; Plaintiffs' Reply in Support of the Cross-Motion, if any, due 12/22/2017; Discovery completed by 4/2/2018; Any Motion for Summary Judgment is due 30 days after discovery is completed, and no later than 5/1/2018; Any Opposition to the Motion for Summary Judgment due 6/1/2018; Any optional Reply due 6/15/2018. (PM) (Entered: 10/17/2017)

10/20/2017

103 MOTION to Supplement the Administrative Record , filed by Defendants John Kelly, James McCament, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F) Noting Date 12/22/2017, (Zack, Adrienne) (Entered: 10/20/2017)

11/22/2017

104 RESPONSE, by Plaintiffs A. A., W. H., Antonio Machic Yac, to 103 MOTION to Supplement the Administrative Record . (TheriotOrr, Devin) (Entered: 11/22/2017)

11/22/2017

105 DECLARATION of Walter Ewing filed by Plaintiffs A. A., W. H., Antonio Machic Yac re 103 MOTION to Supplement the Administrative Record (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Theriot-Orr, Devin) (Entered: 11/22/2017)

12/08/2017

106 REPLY, filed by Defendants John Kelly, James McCament, United States Citizenship and Immigration Services, United States Department of Homeland Security, TO RESPONSE to 103 MOTION to Supplement the Administrative Record (Zack, Adrienne) (Entered: 12/08/2017)

12/20/2017

107 REPLY, filed by Plaintiffs A. A., Karla Diaz Marin, Wilman Gonzalez Rosario, W. H., Antonio Machic Yac, L. S., Faridy Salmon, Jaimin Shah, K. T., TO RESPONSE to 103 MOTION to Supplement the Administrative Record (Attachments: # 1 Exhibit I-765 Instructions (rev. 08/11/2001))(Theriot-Orr, Devin) (Entered: 12/20/2017)

02/06/2018

108 APPLICATION OF ATTORNEY Trina Realmuto FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs A. A., Karla Diaz Marin, Wilman Gonzalez Rosario, W. H., Antonio Machic Yac, L. S., Faridy Salmon, Jaimin Shah, K. T. (Fee Paid) Receipt No. 0981-5190289 (Theriot-Orr, Devin) (Entered: 02/06/2018)

02/06/2018

109 ORDER re 108 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney Trina Realmuto for Plaintiffs A. A., Karla Diaz Marin, Wilman Gonzalez Rosario, W. H., Antonio Machic Yac, L. S.,Trina Realmuto for Faridy Salmon, Jaimin Shah, and for K. T., by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 02/06/2018)

02/09/2018

110 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Melissa Crow for Plaintiffs A. A., Marvella Arcos-Perez, Karla Diaz Marin, Wilman Gonzalez Rosario, W. H., Antonio Machic Yac, Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros, L. S., Faridy Salmon, Jaimin Shah, K. T., The Advocates for Human Rights. (Crow, Melissa) (Entered: 02/09/2018)

02/23/2018

111 Stipulated MOTION to Modify Order Appointing Class Counsel, filed by Plaintiffs A. A., Karla Diaz Marin, Wilman Gonzalez Rosario, W. H., Antonio Machic Yac, L. S., Faridy Salmon, Jaimin Shah, K. T.. (Attachments: # 1 Declaration of Trina Realmuto) Noting Date 2/23/2018, (Theriot-Orr, Devin) (Entered: 02/23/2018)

02/23/2018

112 ORDER MODIFYING ORDER APPOINTING CLASS COUNSEL re: 111 Stipulated Motion. The Court hereby appoints Trina Realmuto as class counsel and substitutes her appointment for that of Melissa Crow, who has withdrawn from this case. Signed by Judge James L. Robart. (PM) (Entered: 02/23/2018)

04/17/2018

113 ORDER granting in part and denying in part Defendants' 103 Motion to supplement the administrative record; granting in part and denying in part Plaintiffs' 104 Cross Motion to supplement the administrative record. Clerk is directed to substitute L. Francis Cissna for former Acting Director of USCIS James McCament and Kirstjen Nielsen for former Secretary of DHS John Kelly. Signed by Judge James L. Robart. (PM) (Entered: 04/17/2018)

04/17/2018

L. Francis Cissna and Kirstjen Nielsen are substituted for Defendants John Kelly (Secretary of DHS) and James McCament (Director, U.S.

Citizenship and Immigration Services) per 113 Order. (PM) (Entered: 04/17/2018)

04/19/2018

114 STIPULATION AND PROPOSED ORDER Requesting Amendment of Scheduling Order by parties re 102 Order,,, Set Deadlines,, (Attachments: # 1 Proposed Order)(Zack, Adrienne) (Entered: 04/19/2018)

04/19/2018

115 STIPULATION AND ORDER Amending Scheduling Order re parties 114 Stipulation. Any motion for summary judgment is due May 17, 2018; Any opposition to a motion for summary judgment is due June 18, 2018; Any optional reply is due July 2, 2018. Signed by Judge James L. Robart. (TH) (Entered: 04/19/2018)

05/09/2018

116 NOTICE of Filing Supplemental Administrative Record in Paper or Physical Form with the Clerk's Office by Defendants L. Francis Cissna, Kirstjen Nielsen, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Zack, Adrienne) (Entered: 05/09/2018)

05/09/2018

117 RECEIPT of Supplemental Administrative Record re Defendant's 116 Notice of Filing Paper or Physical Materials. (Placed in 1 expando folder in Seattle's filing shelf.) (TH) (Entered: 05/10/2018)

05/17/2018

118 MOTION for Summary Judgment , filed by Plaintiff Wilman Gonzalez Rosario. (Attachments: # 1 Proposed Order) Noting Date 7/2/2018, (Strawn, Christopher) (Entered: 05/17/2018)

05/17/2018

119 MOTION for Summary Judgment , filed by Defendants L. Francis Cissna, Kirstjen Nielsen, United States Citizenship and Immigration Services, United States Department of Homeland Security. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 7/2/2018, (Zack, Adrienne) (Entered: 05/17/2018)

06/14/2018

120 Stipulated MOTION for Extension of Summary Judgment Briefing Schedule, filed by Plaintiffs A. A., Karla Diaz Marin, Wilman Gonzalez Rosario, W. H., Antonio Machic Yac, L. S., Faridy Salmon, Jaimin Shah, K. T.. Noting Date 6/14/2018, (Theriot-Orr, Devin) (Entered: 06/14/2018)

06/15/2018

121 STIPULATION AND ORDER re: parties' 120 Stipulated Motion Modifying Summary Judgment Briefing Schedule. Any Opposition to the 118 119 Motions for Summary Judgment due 7/2/2018; Replies due 7/16/2018. Signed by Judge James L. Robart. (PM) (Entered: 06/15/2018)

07/02/2018

122 RESPONSE, by Defendants L. Francis Cissna, Kirstjen Nielsen, United States Citizenship and Immigration Services, United States Department of Homeland Security, to 118 MOTION for Summary Judgment . (Zack, Adrienne) (Entered: 07/02/2018)

07/02/2018

123 RESPONSE, by Plaintiff Wilman Gonzalez Rosario, Karla Diaz Marin, W.H., Antonio Machic Yac, L.S., K.T., A. A., Faridy Salmon, Jaimin Shah to 119 MOTION for Summary Judgment . (Strawn, Christopher) Modified on 7/3/2018 to add additional names of filers (PM). (Entered: 07/02/2018)

07/03/2018

NOTICE of Docket Text Modification re 123 Response to Motion: added additional names of filers (plaintiffs). (PM) (Entered: 07/03/2018)

07/16/2018

124 REPLY, filed by Plaintiffs A. A., W. H., Antonio Machic Yac, TO RESPONSE to 118 MOTION for Summary Judgment (Strawn, Christopher) (Entered: 07/16/2018)

07/16/2018

125 REPLY, filed by Defendants L. Francis Cissna, Kirstjen Nielsen, United States Citizenship and Immigration Services, United States Department of Homeland Security, TO RESPONSE to 119 MOTION for Summary Judgment (Zack, Adrienne) (Entered: 07/16/2018)

07/20/2018

Set Oral Argument on cross-motions for summary judgment (Dkt. ## 118 , 119 ): Motion Hearing set for Tuesday, 7/24/2018 at 10:00 AM in Courtroom 14106 before Judge James L. Robart. (AD) (Entered: 07/20/2018)

07/20/2018

Reset Set Oral Argument on cross-motions for summary judgment (Dkt. ## 118 , 119 ): Motion Hearing is reset for Thursday, 7/26/2018 at 09:00 AM in Courtroom 14106 before Judge James L. Robart. (AD) (Entered: 07/20/2018)

07/26/2018

126 MINUTE ENTRY for proceedings held before Judge James L. Robart Dep Clerk: Ashleigh Drecktrah; Pla Counsel: Christopher Strawn; Def Counsel: Adrienne Zack; CR: Nancy Bauer; Motion Hearing held on 7/26/2018. The court hears from counsel re: the parties' cross-motions for summary judgment (Dkt. ## 118 and 119 ). The court takes the matter under submission; written order to be issued. (AD) (Entered: 07/26/2018)

07/26/2018

127 ORDER granting Plaintiffs' 118 MOTION for Summary Judgment; denying Defendants' 119 MOTION for Summary Judgment. The court ORDERS Defendants to submit status reports every six (6) months regarding the rate of compliance with the 30-day timeline. Clerk directed to provisionally file this order under seal and ORDERS the

parties to meet and confer regarding the need for redaction. Parties to jointly file a statement within ten (10) days of the date of this order to indicate any need for redaction. Signed by Judge James L. Robart. (PM) (cc: order emailed to counsel of record) Modified on 8/6/2018 to unseal per the direction of chambers (TH). (Entered: 07/26/2018)

07/26/2018

128 JUDGMENT BY COURT. Plaintiffs' motion for summary judgment is GRANTED and Defendants' cross-motion for summary judgment is DENIED. (Order (Dkt. # 127 ).) (TH) (Entered: 07/26/2018)

08/06/2018

129 STATEMENT re 127 Sealed Order,,, Terminate Motions,, Joint Statement Regarding Redaction by Plaintiffs A. A., Wilman Gonzalez Rosario, W. H., Antonio Machic Yac (Strawn, Christopher) (Entered: 08/06/2018)

08/06/2018

127 Order granting Plaintiffs' 118 Motion for Summary Judgment and Denying Defendant's 119 Motion for Summary Judgment is unsealed per parties' 129 Joint Statement on Redaction of Order and per the direction of chambers. (TH) (Entered: 08/06/2018)

08/17/2018

130 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Adrienne Zack for Defendants L. Francis Cissna, Kirstjen Nielsen, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Zack, Adrienne) (Entered: 08/17/2018)

08/27/2018

131 STATEMENT re 129 Statement Joint statement of parties regarding implementation plan by Plaintiffs A. A., Wilman Gonzalez Rosario, W. H., Antonio Machic Yac (Strawn, Christopher) (Entered: 08/27/2018)

09/07/2018

132 STATEMENT re Docket Annotation Joint statement of parties regarding implementation plan by Plaintiffs A. A., Karla Diaz Marin, Wilman Gonzalez Rosario, W. H., Antonio Machic Yac (Strawn, Christopher) (Entered: 09/07/2018)

09/10/2018

133 MINUTE ORDER re parties' 132 Joint Statement. The court ORDERS the parties to jointly file a statement in accordance with Court's order of July 26, 2018 (Dkt. No. 127 ) by Friday, September 14, 2018. Signed by Judge James L. Robart. (TH) (Entered: 09/10/2018)

09/14/2018

134 Stipulated MOTION and Joint Statement of the Parties Regarding Implementation Plan, filed by Plaintiffs A. A., Wilman Gonzalez Rosario, W. H., Antonio Machic Yac. (Attachments: # 1 Exhibit Agreed Implementation Plan) Noting Date 9/14/2018, (Strawn, Christopher) (Entered: 09/14/2018)

09/21/2018 135 NOTICE OF APPEAL to Ninth Circuit (18-35806) re 128 Judgment by Court, 127 Sealed Order,,, Terminate Motions,, by Defendants L.

Francis Cissna, Kirstjen Nielsen, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Robins, Jeffrey) Modified on 9/27/2018 to add CCA # (CDA). (Entered: 09/21/2018)

09/27/2018

136 TIME SCHEDULE ORDER (18-35806) as to 135 Notice of Appeal, filed by L. Francis Cissna, United States Citizenship and Immigration Services, Kirstjen Nielsen, United States Department of Homeland Security : (CDA) (Entered: 09/27/2018)

10/03/2018

137 STIPULATED ORDER re: parties' 134 Stipulated Motion. The parties are directed to file three-page letter briefs on their positions regarding: (1) whether the Court should specify specific rates of compliance for employment authorization document (EAD) adjudication as part of an implementation order and what those rates should be; (2) the appropriate venue for filing any Federal District Court action where an EAD application is not adjudicated in compliance with this Court's order, after the individual has complied withthe steps set forth in the implementation plan. The letter briefs of the parties are due within 7 days after the date of this order. Signed by Judge James L. Robart. (PM) (Entered: 10/03/2018)

10/10/2018

138 LETTER BRIEF re 137 Order on Stipulated Motion,, by Plaintiffs A. A., W. H., Antonio Machic Yac (Attachments: # 1 Exhibit Attachment A)(Strawn, Christopher) (Entered: 10/10/2018)

10/10/2018

139 Letter BRIEF re 137 Order on Stipulated Motion,, by Defendants L. Francis Cissna, Kirstjen Nielsen, United States Citizenship and Immigration Services, United States Department of Homeland Security (Attachments: # 1 Exhibit)(Robins, Jeffrey) (Entered: 10/10/2018)

11/15/2018

140 ORDER Directing the Parties to File Responsive Letter Briefs. The parties shall file their responsive letter briefs no later than Tuesday, November 27, 2018. Signed by Judge James L. Robart. (TH) (Entered: 11/15/2018)

11/27/2018

141 RESPONSIVE BRIEF BY PLAINTIFFS re 140 Order by Plaintiffs A. A., W. H., Antonio Machic Yac. (Strawn, Christopher) (Entered: 11/27/2018)

11/27/2018

142 RESPONSIVE BRIEF re 138 Brief by Defendants Lee Francis Cissna, Kirstjen M Nielsen, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Robins, Jeffrey) (Entered: 11/27/2018)

01/03/2019

143 NOTICE of Change of Address/Change of Name of Attorney Trina Realmuto. Filed by Plaintiffs A. A., W. H., Antonio Machic Yac. (Realmuto, Trina) (Entered: 01/03/2019)

01/25/2019

144 STATUS REPORT by Defendants L Francis Cissna, Kirstjen M Nielsen, US Citizenship and Immigration Services, United States Department of Homeland Security (Attachments: # 1 Exhibit)(Robins, Jeffrey) (Entered: 01/25/2019)

03/20/2019

145 ORDER concerning parties' letter briefs (Dkts. 137 , 138 ). The court (1) declines to require full compliance with its injunction by a date certain, and (2) declines to require individuals who seek to compel Defendants to adjudicate a specific EAD application to file their action in this court. Signed by Judge James L. Robart. (SWT) (Entered: 03/20/2019)

08/06/2019

146 STATUS REPORT by Defendants L Francis Cissna, Kirstjen M Nielsen, US Citizenship and Immigration Services, United States Department of Homeland Security (Attachments: # 1 Exhibit)(Robins, Jeffrey) (Entered: 08/06/2019)

02/06/2020

147 ORDER OF USCA (18-35806) as to 135 Notice of Appeal, filed by Kirstjen M Nielsen, L Francis Cissna, US Citizenship and Immigration Services, United States Department of Homeland Security. (GT) (Entered: 02/06/2020)

02/21/2020

148 Third STATUS REPORT by Defendants Kirstjen M Nielsen, US Citizenship and Immigration Services, United States Department of Homeland Security (Attachments: # 1 Exhibit Compliance Report)(Goldsmith, Aaron) (Entered: 02/21/2020)

02/21/2020

149 NOTICE of Appearance by attorney Aaron S Goldsmith on behalf of Defendants US Citizenship and Immigration Services, United States Department of Homeland Security. (Goldsmith, Aaron) (Entered: 02/21/2020)

05/05/2020

150 MANDATE OF USCA (18-35806) as to 135 Notice of Appeal, filed by Kirstjen M Nielsen, L Francis Cissna, US Citizenship and Immigration Services, United States Department of Homeland Security. Defendants-Appellants motion to voluntarily dismissal their appeal pursuant to Federal Rule of Appellate Procedure 42(b) is hereby GRANTED. (Dkt. No. 47.) Because Plaintiffs-Appellees have not applied for attorneys fees and expenses in this court, DefendantsAppellants request to have the district court decide the issue is DENIED without prejudice to their ability to make the request at a later point. This order constitutes the mandate of this court. DISMISSED (CDA) (Entered: 05/06/2020)

06/01/2020

151 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Trina Realmuto for Plaintiffs A.A., Marvella Arcos-Perez, Karla Diaz Marin, Wilman Gonzalez Rosario, W. H., Antonio Machic Yac, Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros, L. S., Faridy Salmon, Jaimin Shah, K. T., The Advocates for Human Rights. (Realmuto, Trina) (Entered: 06/01/2020)

06/01/2020

152 Stipulated MOTION to file Skeletal EAJA motion, filed by Plaintiffs A.A., W. H., Antonio Machic Yac. (Attachments: # 1 Exhibit Exh. A Ortega order) Noting Date 6/1/2020, (Strawn, Christopher) (Entered: 06/01/2020)

06/01/2020

153 APPLICATION OF ATTORNEY Emma Winger FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs A.A., W. H., Antonio Machic Yac (Fee Paid) Receipt No. AWAWDC-6372414 (Strawn, Christopher) (Entered: 06/01/2020)

06/01/2020

154 ORDER re 153 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Emma Curtis Winger for Plaintiffs A.A., W. H., and Antonio Machic Yac, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 06/01/2020)

06/02/2020

155 MOTION for Attorney Fees - skeletal - under EAJA, filed by Plaintiffs A.A., W. H., Antonio Machic Yac. (Attachments: # 1 Exhibit Ex. A A-A- decl., # 2 Exhibit Ex. B - W-H- decl., # 3 Exhibit Ex. C - Machic Yac decl., # 4 Exhibit Ex. D - AIC fee decl., # 5 Exhibit Ex. E - Strawn fee decl., # 6 Exhibit Ex. F - Van der Hout fee decl., # 7 Exhibit Ex. G Theriot Orr fee decl., # 8 Exhibit Ex. H - Pollock fee decl., # 9 Exhibit Ex. I - GHP fee decl., # 10 Exhibit Ex. J - Fee request summary, # 11 Exhibit Ex. K - Laffey matrix, # 12 Proposed Order Proposed order) Noting Date 9/11/2020, (Strawn, Christopher) (Entered: 06/02/2020)

06/03/2020

156 ORDER granting the Parties' 152 Stipulated Motion to File a Skeletal Motion for Attorneys' Fees and Costs. Should the parties not settle the matter, Plaintiffs may file a renewed motion with full argument and supporting documentation by September 2, 2020. Signed by Judge James L. Robart.(PM) (Entered: 06/03/2020)

06/29/2020

157 NOTICE of Appearance by attorney Matt Adams on behalf of Plaintiffs A.A., Marvella Arcos-Perez, Karla Diaz Marin, Wilman Gonzalez Rosario, W. H., Antonio Machic Yac, Northwest Immigrant Rights

Project, Carmen Osorio-Ballesteros, L. S., Faridy Salmon, Jaimin Shah, K. T., The Advocates for Human Rights. (Adams, Matt) (Entered: 06/29/2020)

07/01/2020

158 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Christopher Strawn for Plaintiffs A.A., Marvella Arcos-Perez, Karla Diaz Marin, Wilman Gonzalez Rosario, W. H., Antonio Machic Yac, Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros, L. S., Faridy Salmon, Jaimin Shah, K. T., The Advocates for Human Rights. (Strawn, Christopher) (Entered: 07/01/2020)

07/07/2020

159 Stipulated MOTION to Modify Order Appointing Class Counsel, filed by Plaintiffs A.A., Marvella Arcos-Perez, Karla Diaz Marin, Wilman Gonzalez Rosario, W. H., Antonio Machic Yac, Northwest Immigrant Rights Project, Carmen Osorio-Ballesteros, L. S., Faridy Salmon, Jaimin Shah, K. T., The Advocates for Human Rights. (Attachments: # 1 Proposed Order, # 2 Exhibit Adams Declaration) Noting Date 7/7/2020, (Adams, Matt) (Entered: 07/07/2020)

07/13/2020

160 ORDER granting Parties' 159 Stipulated Motion to Modify Order Appointing Class Counsel. The Court hereby appoints Matt Adams of the Northwest Immigrant Rights Project as class counsel and substitute his appointment for that of Christopher Strawn, who has withdrawn from this case. Signed by Judge James L. Robart.(LH) (Entered: 07/13/2020)

07/28/2020

161 MOTION to Vacate this Court's Injunction Due to a Material Change in the Law, filed by Defendants L Francis Cissna, Jeh Johnson, John Kelly, James McCament, Kirstjen M Nielsen, Leon Rodriguez, US Citizenship and Immigration Services, United States Department of Homeland Security. (Attachments: # 1 Proposed Order) Noting Date 8/21/2020, (Goldsmith, Aaron) (Entered: 07/28/2020)