U.S. District Court District of Maryland (Greenbelt) CIVIL DOCKET FOR CASE #: 8:19-cv-01944-GJH

J.O.P., et al v. U.S. Department of Homeland Security, et al Assigned to: Judge George Jarrod Hazel Case in other court: USCA, 21-01187 Cause: 05:706 Judicial Review of Agency Action

Date Filed: 07/01/2019 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff
J.O.P. on behalf of themselves as individuals and on behalf of others similarly situated.

represented by Brian Burgess Goodwin Procter LLp 1900 N Street, NW Washington, DC 20036 2023464000 Fax: 2023464444 Email: bburgess@goodwinprocter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elaine Blais Goodwin Procter LLP 100 Northern Ave. Boston, MA 02210 6175701205 Fax: 6173214371 Email: eblais@goodwinlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin J DeJong Goodwin Procter LLP 100 Northern Ave. Boston, MA 02210 6175701000 Fax: 6175231231 Email: kdejong@goodwinlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Kristen M Jackson Public Counsel 610 South Ardmore Ave. Los Angeles, CA 90005 2133852977 Fax: 2132014727 Email: kjackson@publiccounsel.org PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Tanagho Ross Public Counsel 610 South Ardmore Ave. Los Angeles, CA 90005 2133852977 Fax: 2132014727 Email: mross@publiccounsel.org PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle N Mendez Catholic Legal Immigration Network, Inc 8757 Georgia Avenue Suite 850 (CLINIC) Silver Spring, MD 20910 5409071761 Fax: 3015654824 Email: mmendez@cliniclegal.org ATTORNEY TO BE NOTICED
Rebecca Scholtz Catholic Legal Immigration Network Inc. 30 S. 10th St. Minneapolis, MN 55403 6514624833 Fax: 3015654824 Email: rscholtz@cliniclegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah K Frederick Goodwin Procter LLP 100 Northern Ave.

Plaintiff
M.A.L.C. on behalf of themselves as individuals and on behalf of others similarly situated.

Boston, MA 02210 6175701845 Fax: 6173214771 Email: sfrederick@goodwinlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Shuchart Kids in Need of Defense (KIND) 1201 L St. NW Washington, DC 20005 2023180595 Fax: 2028240702 Email: sshuchart@supportkind.org PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Shaw Goodwin Procter LLP 901 New York Ave. NW Washington, DC 20001 2023464000 Fax: 2023464444 Email: sshaw@goodwinlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy Wylegala Kids in Need of Defense (KIND) 1251 Ave. of the Americas New York, NY 10020 8269262069 Fax: 2028240702 Email: wwylegala@supportkind.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Brian Burgess (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elaine Blais (See above for address) PRO HAC VICE

ATTORNEY TO BE NOTICED
Kevin J DeJong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristen M Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Tanagho Ross (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle N Mendez (See above for address) ATTORNEY TO BE NOTICED
Rebecca Scholtz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah K Frederick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Shuchart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Shaw (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy Wylegala (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
M.E.R.E. on behalf of themselves as individuals and on behalf of others similarly situated.

represented by Brian Burgess (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elaine Blais (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J DeJong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristen M Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Tanagho Ross (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle N Mendez (See above for address) ATTORNEY TO BE NOTICED
Rebecca Scholtz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah K Frederick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Shuchart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Shaw

Plaintiff
K.A.R.C. on behalf of themselves as individuals and on behalf of others similarly situated.

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy Wylegala (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Brian Burgess (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elaine Blais (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J DeJong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristen M Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Tanagho Ross (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle N Mendez (See above for address) ATTORNEY TO BE NOTICED
Rebecca Scholtz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah K Frederick (See above for address)

Plaintiff E.D.G. on behalf of themselves as individuals and on behalf of others similarly situated.
Plaintiff L.M.Z.
V. Defendant U.S. Department of Homeland Security

PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Shuchart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Shaw (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy Wylegala (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Brian Burgess (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Burgess (See above for address) ATTORNEY TO BE NOTICED
represented by Allen F Loucks Office of the United States Attorney 36 S Charles St Fourth Fl Baltimore, MD 21201 14102094800 Fax: 14109620693 Email: allen.loucks@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vickie LeDuc US Attorney Office

Defendant U.S. Citizenship & Immigration Services
Defendant Kenneth Cuccinelli in his official capacity as Acting Director of U.S. Citizenship & Immigration Services

36 S Charles St Fourth Floor Baltimore, MD 21201 4102094912 Fax: 4109622310 Email: vickie.leduc@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew A Haven U.S. Attorney's Office District of Maryland 36 S. Charles Street Suite 400 Baltimore, MD 21201 410-209-4955 Email: matthew.haven@usdoj.gov ATTORNEY TO BE NOTICED
represented by Allen F Loucks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vickie LeDuc (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew A Haven (See above for address) ATTORNEY TO BE NOTICED
represented by Allen F Loucks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vickie LeDuc (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew A Haven

Defendant Chad Wolf (in his official capacity as Acting Secretary of Homeland Security)
Defendant U.S. Immigration and Customs Enforcement
Defendant Matthew T. Albence (in his official capacity as Acting Director of U.S. Inmmigration & Customs Enforcement) TERMINATED: 01/12/2021
Defendant Jonathan Fahey in his official capacity as Senior Official performing the Duties of the Director of U.S. Immigration & Customs Enforcement

(See above for address) ATTORNEY TO BE NOTICED
represented by Allen F Loucks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vickie LeDuc (See above for address) ATTORNEY TO BE NOTICED
represented by Allen F Loucks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vickie LeDuc (See above for address) ATTORNEY TO BE NOTICED
represented by Allen F Loucks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vickie LeDuc (See above for address) ATTORNEY TO BE NOTICED
represented by Allen F Loucks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vickie LeDuc (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/01/2019 07/01/2019 07/01/2019
07/01/2019
07/01/2019 07/01/2019 07/01/2019 07/01/2019 07/01/2019 07/01/2019 07/01/2019 07/01/2019

# Docket Text
1 COMPLAINT J.O.P. et al. against All Defendants ( Filing fee $ 400 receipt number 0416-8101981.), filed by K.A.R.C., M.A.L.C., M.E.R.E., J.O.P..(Burgess, Brian) (Entered: 07/01/2019)
2 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. re 1 Complaint Civil Cover Sheet (Burgess, Brian) (Entered: 07/01/2019)
3 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. re 1 Complaint Exhibits 1 through 8 (Attachments: # 1 Exhibit Exhibit 2, # 2 Exhibit Exhibit 3, # 3 Exhibit Exhibit 4, # 4 Exhibit Exhibit 5, # 5 Exhibit Exhibit 6, # 6 Exhibit Exhibit 7, # 7 Exhibit Exhibit 8)(Burgess, Brian) (Entered: 07/01/2019)
4 -SEALED - NOTICE of Filing Under Seal Plaintiffs' Sealed Complaint by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 Attachment SEALED COMPLAINT)(Burgess, Brian) (Entered: 07/01/2019)
5 MOTION to Seal Plaintiffs' Unredacted Complaint by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 Text of Proposed Order Proposed Order)(Burgess, Brian) (Entered: 07/01/2019)
6 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. Proposed Summons of Kenneth T. Cuccinelli (Burgess, Brian) (Entered: 07/01/2019)
7 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. Proposed Summons DHS (Burgess, Brian) (Entered: 07/01/2019)
8 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. Proposed Summons Kevin K. McAleenan (Burgess, Brian) (Entered: 07/01/2019)
9 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. Proposed Summons Robert K. Hur (Burgess, Brian) (Entered: 07/01/2019)
10 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. Proposed Summons William Barr (Burgess, Brian) (Entered: 07/01/2019)
11 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. Proposed Summons USCIS (Burgess, Brian) (Entered: 07/01/2019)
12 MOTION for Other Relief Permission to Proceed Under Pseudonym by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 Memorandum in Support Memorandum in Support, # 2 Text of Proposed Order Proposed Order)(Burgess, Brian) (Entered: 07/01/2019)

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07/01/2019 07/01/2019 07/01/2019 07/01/2019 07/01/2019 07/02/2019

13 (FILED IN ERROR - PER COUNSEL) MOTION for Temporary Restraining Order by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 Memorandum in Support Memorandum in Support, # 2 Text of Proposed Order Proposed Order)(Burgess, Brian) Modified on 7/2/2019 (jf3s, Deputy Clerk). (Entered: 07/01/2019)
14 MOTION for Temporary Restraining Order by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 Memorandum in Support Memorandum in Support, # 2 Supplement Proposed Order)(Burgess, Brian) (Entered: 07/01/2019)
15 NOTICE re 14 Motion for TRO by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. Declaration of Brian Burgess (Attachments: # 1 Appendix Appendix of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 9, # 11 Exhibit Exhibit 10, # 12 Exhibit Exhibit 11, # 13 Exhibit Exhibit 12, # 14 Exhibit Exhibit 13, # 15 Exhibit Exhibit 14)(Burgess, Brian) Modified on 7/2/2019 (jf3s, Deputy Clerk). (Entered: 07/01/2019)
16 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. re 14 MOTION for Temporary Restraining Order J.O.P. Declaration (Burgess, Brian) (Entered: 07/01/2019)
17 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. re 14 MOTION for Temporary Restraining Order E Lopez Declaration (Burgess, Brian) (Entered: 07/01/2019)
18 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. re 14 MOTION for Temporary Restraining Order KRC Declaration (Burgess, Brian) (Entered: 07/01/2019)
19 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. re 14 MOTION for Temporary Restraining Order MALC Declaration (Burgess, Brian) (Entered: 07/01/2019)
20 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. re 14 MOTION for Temporary Restraining Order MERE Declaration (Burgess, Brian) (Entered: 07/01/2019)
21 Summons Issued 60 days as to Kenneth Cuccinelli, Kevin McAleenan, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(jf3s, Deputy Clerk) (Entered: 07/02/2019)

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22 Supplemental to 14 MOTION for Temporary Restraining Order filed by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. Corrected Memorandum (Burgess, Brian) (Entered: 07/02/2019)
23 Supplemental to 12 MOTION for Other Relief Permission to Proceed Under Pseudonym filed by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. Corrected Memorandum (Burgess, Brian) (Entered: 07/02/2019)
24 AFFIDAVIT of Service for All Case Initiating Documents, Summonses, Pleadings, Motions, Memoranda, and Proposed Orders served on United States Attorney Robert K. Hur, U.S. Attorney General William Barr, and All Named Defendants on July 3, 2019, filed by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E..(Burgess, Brian) (Entered: 07/03/2019)
25 MOTION to Appear Pro Hac Vice for Kevin J. DeJong (Filing fee $100, receipt number 0416-8110362.) by J.O.P.(Burgess, Brian) (Entered: 07/08/2019)
26 MOTION to Appear Pro Hac Vice for Sarah K. Frederick (Filing fee $100, receipt number 0416-8110422.) by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.(Burgess, Brian) (Entered: 07/08/2019)
27 MOTION to Appear Pro Hac Vice for Kristen Jackson (Filing fee $100, receipt number 0416-8110431.) by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.(Burgess, Brian) (Entered: 07/08/2019)
28 MOTION to Appear Pro Hac Vice for Mary Tanagho Ross (Filing fee $100, receipt number 0416-8110440.) by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.(Burgess, Brian) (Entered: 07/08/2019)
29 MOTION to Appear Pro Hac Vice for Rebecca Scholtz (Filing fee $100, receipt number 0416-8110451.) by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.(Burgess, Brian) (Entered: 07/08/2019)
30 MOTION to Appear Pro Hac Vice for Scott Shuchart (Filing fee $100, receipt number 0416-8110483.) by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.(Burgess, Brian) (Entered: 07/08/2019)
31 MOTION to Appear Pro Hac Vice for Wendy Wylegala (Filing fee $100, receipt number 0416-8110504.) by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.(Burgess, Brian) (Entered: 07/08/2019)
32 PAPERLESS ORDER granting 25 Motion to Appear Pro Hac Vice on behalf of Kevin Dejong. Directing attorney Kevin Dejong to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-

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filing-registration. Signed by Clerk on 7/12/2019. (srd, Deputy Clerk) (Entered: 07/12/2019)
33 PAPERLESS ORDER granting 26 Motion to Appear Pro Hac Vice on behalf of Sarah K Frederick. Attorney Sarah K Frederick will receive a separate email with the previously issued CM/ECF login and password. Signed by Clerk on 7/12/2019. (srd, Deputy Clerk) (Entered: 07/12/2019)
34 PAPERLESS ORDER granting 27 Motion to Appear Pro Hac Vice on behalf of Kristen Jackson. Directing attorney Kristen Jackson to register online for CM/ECF at http://www.mdd.uscourts.gov/electroniccase-filing-registration. Signed by Clerk on 7/12/2019. (srd, Deputy Clerk) (Entered: 07/12/2019)
35 PAPERLESS ORDER granting 28 Motion to Appear Pro Hac Vice on behalf of Mary Tanagho Ross. Directing attorney Mary Tanagho Ross to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 7/12/2019. (srd, Deputy Clerk) (Entered: 07/12/2019)
36 PAPERLESS ORDER granting 29 Motion to Appear Pro Hac Vice on behalf of Rebecca Scholtz. Directing attorney Rebecca Scholtz to register online for CM/ECF at http://www.mdd.uscourts.gov/electroniccase-filing-registration. Signed by Clerk on 7/12/2019. (srd, Deputy Clerk) (Entered: 07/12/2019)
37 PAPERLESS ORDER granting 30 Motion to Appear Pro Hac Vice on behalf of Scott Schuchart. Directing attorney Scott Schuchart to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-casefiling-registration. Signed by Clerk on 7/12/2019. (srd, Deputy Clerk) (Entered: 07/12/2019)
38 PAPERLESS ORDER granting 31 Motion to Appear Pro Hac Vice on behalf of Wendy Wylegala. Directing attorney Wendy Wylegala to register online for CM/ECF at http://www.mdd.uscourts.gov/electroniccase-filing-registration. Signed by Clerk on 7/12/2019. (srd, Deputy Clerk) (Entered: 07/12/2019)
39 SUMMONS Returned Executed by M.E.R.E., K.A.R.C., J.O.P., M.A.L.C.. All Defendants.(DeJong, Kevin) (Entered: 07/17/2019)
40 NOTICE of Appearance by Vickie LeDuc on behalf of All Defendants (LeDuc, Vickie) (Entered: 07/18/2019)
41 Correspondence re: hearing (LeDuc, Vickie) (Entered: 07/18/2019)

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07/31/2019
08/01/2019 08/01/2019

42 NOTICE of Appearance by Allen F Loucks on behalf of Kenneth Cuccinelli, Kevin McAleenan, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security (Loucks, Allen) (Entered: 07/18/2019)
43 Motion Hearing held on 7/19/2019 before Judge George Jarrod Hazel. re 14 MOTION for Temporary Restraining Order. (Court Reporter: Cindy Davis/4A) (ds2s, Deputy Clerk) (Entered: 07/19/2019)
44 Correspondence re: Hearing on Temporary Restraining Order (Burgess, Brian) (Entered: 07/21/2019)
45 Substantive legal issues - addressing (LeDuc, Vickie) (Entered: 07/22/2019)
46 MOTION to Appear Pro Hac Vice for Stephen Shaw (Filing fee $100, receipt number 0416-8141998.) by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.(Burgess, Brian) (Entered: 07/24/2019)
47 MOTION to Appear Pro Hac Vice for Elaine H. Blais (Filing fee $100, receipt number 0416-8142017.) by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.(Burgess, Brian) (Entered: 07/24/2019)
48 NOTICE of Appearance by Michelle N Mendez on behalf of All Plaintiffs (Mendez, Michelle) (Entered: 07/26/2019)
49 Supplemental Correspondence re: Hearing on Temporary Restraining Order (Attachments: # 1 Exhibit A)(Burgess, Brian) (Entered: 07/30/2019)
50 PAPERLESS ORDER granting 46 Motion to Appear Pro Hac Vice on behalf of Stephen Shaw. Directing attorney Stephen Shaw to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-casefiling-registration. Signed by Clerk on 7/31/2019. (srd, Deputy Clerk) (Entered: 07/31/2019)
51 PAPERLESS ORDER granting 47 Motion to Appear Pro Hac Vice on behalf of Elaine Blais. Directing attorney Elaine Blais to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 7/31/2019. (srd, Deputy Clerk) (Entered: 07/31/2019)
52 NOTICE of Appearance by Scott Shuchart on behalf of All Plaintiffs (Shuchart, Scott) (Entered: 08/01/2019)
53 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings (Motions Hearing for a TRO) held on July 19, 2019, before Judge

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George J. Hazel. Court Reporter Cindy Davis, Telephone number (301) 344-3228. Total number of pages filed: 86. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 8/22/2019. Redacted Transcript Deadline set for 9/3/2019. Release of Transcript Restriction set for 10/30/2019.(cd, Court Reporter) (Entered: 08/01/2019)
54 MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 8/2/2019. (kns, Deputy Clerk) (Entered: 08/02/2019)
55 ORDER granting 14 Plaintiffs' Motion for Temporary Restraining Order; granting 12 Plaintiffs' Motion to Proceed under Pseudonym and granting 46 & 47 Motions to Appear Pro Hac Vice. Signed by Judge George Jarrod Hazel on 8/2/2019. (kns, Deputy Clerk) (Entered: 08/02/2019)
56 PAPERLESS CORRESPONDENCE Scheduling a conference call for August 13, 2019 at 9:30AM. Dial in instructions will be provided via email. (jw2s, Deputy Clerk) (Entered: 08/06/2019)
57 MOTION for Extension of Time to Comply with Court Order by Kenneth Cuccinelli, Kevin McAleenan, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security (Attachments: # 1 Exhibit 1)(Haven, Matthew) (Entered: 08/09/2019)
58 RESPONSE in Opposition re 57 MOTION for Extension of Time to Comply with Court Order filed by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.. (Attachments: # 1 Exhibit A)(Burgess, Brian) (Entered: 08/12/2019)
59 Telephone Conference held on 8/13/2019 before Judge George Jarrod Hazel. (jw2s, Deputy Clerk) (Entered: 08/13/2019)
60 ORDER extending the Temporary Restraining Order issued at 55 until September 3, 2019. Signed by Judge George Jarrod Hazel on 8/13/2019. (jf3s, Deputy Clerk) (Entered: 08/13/2019)
61 NOTICE of Appearance by Wendy Wylegala on behalf of All Plaintiffs (Wylegala, Wendy) (Entered: 08/26/2019)
62 MOTION Extension of Temporary Restraining Order re 14 MOTION for Temporary Restraining Order by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.(Burgess, Brian) (Entered: 08/28/2019)

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63 PAPERLESS ORDER granting 62 MOTION Extension of Temporary Restraining Order. Signed by Judge George Jarrod Hazel on 8/28/2019. (jw2s, Deputy Clerk) (Entered: 08/28/2019)
64 Consent MOTION for Extension of Time to File Answer by Kenneth Cuccinelli, Kevin McAleenan, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security(Loucks, Allen) (Entered: 09/19/2019)
65 MOTION Extension of Temporary Restraining Order re 14 MOTION for Temporary Restraining Order by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.(Burgess, Brian) (Entered: 09/20/2019)
66 ORDER granting 65 Extension of Temporary Restraining Order re 14 MOTION for Temporary Restraining Order. Signed by Judge George Jarrod Hazel on 9/23/2019. (jf3s, Deputy Clerk) (Entered: 09/24/2019)
67 MOTION for Extension of Time by Kenneth Cuccinelli, Kevin McAleenan, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security (Attachments: # 1 Text of Proposed Order)(Loucks, Allen) (Entered: 10/01/2019)
68 Amended MOTION for Extension of Time by Kenneth Cuccinelli, Kevin McAleenan, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security(Loucks, Allen) (Entered: 10/01/2019)
69 ORDER granting 67 Defendant's Motion for Extension of Time. Signed by Judge George Jarrod Hazel on 10/4/2019. (jf3s, Deputy Clerk) (Entered: 10/08/2019)
70 MOTION for Preliminary Injunction by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.(Burgess, Brian) (Entered: 10/09/2019)
71 ORDER Granting 70 Motion for Preliminary Injunction. Signed by Judge George Jarrod Hazel on 10/15/2019. (heps, Deputy Clerk) (Entered: 10/16/2019)
72 MOTION for Extension of Time by Kenneth Cuccinelli, Kevin McAleenan, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security(Loucks, Allen) (Entered: 11/08/2019)
73 MOTION to Dismiss or, in the Alternative, for Summary Judgment by Kenneth Cuccinelli, Kevin McAleenan, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security

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(Attachments: # 1 Memorandum in Support)(Loucks, Allen) (Entered: 11/13/2019)
74 MOTION for Extension of Time to Respond to Defendants' Motion to Dismiss, and to File an Amended Complaint (Unopposed) by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 Text of Proposed Order)(Burgess, Brian) (Entered: 11/21/2019)
75 MOTION to Enforce Judgment by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 Text of Proposed Order)(Burgess, Brian) (Entered: 11/22/2019)
76 Memorandum re 75 MOTION to Enforce Judgment filed by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E..(Burgess, Brian) (Entered: 11/22/2019)
77 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. re 75 MOTION to Enforce Judgment Declaration of Kevin J. DeJong (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Burgess, Brian) (Entered: 11/22/2019)
78 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. re 75 MOTION to Enforce Judgment Declaration of Hector Vega (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Burgess, Brian) (Entered: 11/22/2019)
79 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. re 75 MOTION to Enforce Judgment Declaration of Jack Ross (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Burgess, Brian) (Entered: 11/22/2019)
80 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. re 75 MOTION to Enforce Judgment Declaration of Miguel Mariscal (Attachments: # 1 Exhibit A)(Burgess, Brian) (Entered: 11/22/2019)
81 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. re 75 MOTION to Enforce Judgment Declaration of Lauren Esterle (Burgess, Brian) (Entered: 11/22/2019)
82 NOTICE by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. re 75 MOTION to Enforce Judgment Declaration of Jennifer Bibby-Girth (Burgess, Brian) (Entered: 11/22/2019)
PAPERLESS ORDER granting 72 Motion for Extension of Time. Signed by Judge George Jarrod Hazel on 11/26/2019. (jw2s, Chambers) (Entered: 11/26/2019)
83 NOTICE of Change of Address by Brian Burgess (Burgess, Brian) (Entered: 12/05/2019)

12/06/2019 12/06/2019 12/11/2019 12/19/2019 12/19/2019 12/19/2019 12/19/2019 12/20/2019
12/20/2019 12/20/2019

84 Joint MOTION for Extension of Time to File by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 Text of Proposed Order)(Burgess, Brian) (Entered: 12/06/2019)
85 Paperless ORDER granting 84 Motion for Extension of Time to File Document. Signed by Judge George Jarrod Hazel on 12/6/2019. (jw2s, Chambers) (Entered: 12/06/2019)
86 Joint MOTION for Extension of Time (Corrected) by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 Text of Proposed Order)(Burgess, Brian) (Entered: 12/11/2019)
87 Consent MOTION to Seal by Kenneth Cuccinelli, Kevin McAleenan, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security (Attachments: # 1 Text of Proposed Order)(Loucks, Allen) (Entered: 12/19/2019)
88 RESPONSE in Opposition re 75 MOTION to Enforce Judgment filed by Kenneth Cuccinelli, Kevin McAleenan, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security. (Attachments: # 1 Affidavit)(Loucks, Allen) (Entered: 12/19/2019)
89 PAPERLESS ORDER granting 86 Motion for Extension of Time. Signed by Judge George Jarrod Hazel on 12/19/2019. (jw2s, Chambers) (Entered: 12/19/2019)
90 PAPERLESS ORDER granting 87 Motion to Seal. Signed by Judge George Jarrod Hazel on 12/19/2019. (jw2s, Chambers) (Entered: 12/19/2019)
91 AMENDED COMPLAINT against Kenneth Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, Chad Wolf, U.S. Immigration and Customs Enforcement, Matthew T. Albence, filed by M.E.R.E., K.A.R.C., J.O.P., M.A.L.C., E.D.G.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Burgess, Brian) (Entered: 12/20/2019)
92 MOTION for Other Relief (Motion for Permission to Proceed Under Pseudonym and Omit Address) by E.D.G. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Burgess, Brian) (Entered: 12/20/2019)
93 MOTION to Seal by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 Text of Proposed Order)(Burgess, Brian) (Entered: 12/20/2019)

12/20/2019

94 -SEALED - NOTICE of Filing Under Seal Plaintiffs' First Amended Complaint by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 First Amended Complaint for Declaratory and Injunctive Relief)(Burgess, Brian) (Entered: 12/20/2019)

12/20/2019

95 RESPONSE in Opposition re 73 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E..(Burgess, Brian) (Entered: 12/20/2019)

12/20/2019

96 RESPONSE re 73 MOTION to Dismiss or, in the Alternative, for Summary Judgment (Declaration of Kevin J. DeJong in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss) filed by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(DeJong, Kevin) (Entered: 12/20/2019)

12/26/2019

97 NOTICE by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. Plaintiffs' Notice of Filing Proposed Summonses (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Burgess, Brian) (Entered: 12/26/2019)

12/31/2019 98 Summons Issued 60 days as to Matthew T. Albence, U.S. Immigration and Customs Enforcement.(heps, Deputy Clerk) (Entered: 12/31/2019)

01/02/2020

99 Supplemental to 91 Amended Complaint, filed by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (First Amended Complaint - Public Redline Version) (Burgess, Brian) (Entered: 01/02/2020)

01/02/2020

100 -SEALED - NOTICE of Filing Under Seal [SEALED] [REDLINE VERSION] First Amended Complaint by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 [SEALED] [REDLINE VERSION] First Amended Complaint)(Burgess, Brian) (Entered: 01/02/2020)

01/03/2020

101 MOTION to Dismiss The Amended Complaint by Matthew T. Albence, Kenneth Cuccinelli, Kevin McAleenan, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad Wolf (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Unredacted Exhibit, # 4 Text of Proposed Order)(Loucks, Allen) Modified on 7/29/2020 (kns, Deputy Clerk). (Entered: 01/03/2020)

01/09/2020

102 Joint MOTION for Extension of Time by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 Text of Proposed Order)(Burgess, Brian) (Entered: 01/09/2020)

01/09/2020 103 AFFIDAVIT of Service for Summonses, First Amended Complaint, Motions, Memoranda, and Proposed Orders served on Matthew T.

Albence and U.S. Immigration and Customs Enforcement on 01/02/2020, filed by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E..(Burgess, Brian) (Entered: 01/09/2020)

01/10/2020

104 REPLY to Response to Motion re 73 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by Matthew T. Albence, Kenneth Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad Wolf.(Haven, Matthew) (Entered: 01/10/2020)

01/15/2020 105 PAPERLESS ORDER granting 102 Motion for Extension of Time. Signed by Judge George Jarrod Hazel on 1/15/2020. (jw2s, Chambers) (Entered: 01/15/2020)

01/15/2020 106 NOTICE of Change of Address by Wendy Wylegala (Wylegala, Wendy) (Entered: 01/15/2020)

01/24/2020

107 REPLY to Response to Motion re 75 MOTION to Enforce Judgment filed by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.. (Attachments: # 1 Affidavit Supplemental Declaration of Lauren Esterle In Support of Plaintiffs' Motion to Enforce the Preliminary Injunction)(Burgess, Brian) (Entered: 01/24/2020)

01/24/2020

108 NOTICE by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. re 75 MOTION to Enforce Judgment Declaration of Kevin J. DeJong (Attachments: # 1 Exhibit 6, # 2 Exhibit 7, # 3 Exhibit 8, # 4 Exhibit 9)(Burgess, Brian) (Entered: 01/24/2020)

01/24/2020

109 RESPONSE in Opposition re 101 MOTION to Dismiss The Amended Complaint filed by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E..(Burgess, Brian) (Entered: 01/24/2020)

02/03/2020 110 Request for Hearing re 75 MOTION to Enforce Judgment (Burgess, Brian) (Entered: 02/03/2020)

02/10/2020

111 RESPONSE in Support re 101 MOTION to Dismiss The Amended Complaint filed by Matthew T. Albence, Kenneth Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad Wolf.(Haven, Matthew) (Entered: 02/10/2020)

02/28/2020

112 NOTICE by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. re 75 MOTION to Enforce Judgment of Supplemental Authority (Burgess, Brian) (Entered: 02/28/2020)

03/02/2020 113 Supplemental to 112 Notice (Other) filed by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Burgess, Brian) (Entered: 03/02/2020)

03/31/2020 114 ORDER denying as moot 57 Motion for Extension of Time; granting 5 Motion to Seal. Signed by Judge George Jarrod Hazel on 3/31/2020. (jf3s, Deputy Clerk) (Entered: 04/01/2020)

06/03/2020 115 MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 6/3/2020. (heps, Deputy Clerk) (Entered: 06/03/2020)

06/03/2020

116 ORDER Denying 73 Motion to Dismiss; Granting 74 Motion for Extension of Time; Denying 75 Motion to Enforce preliminary injunction; Granting 92 ; Plaintiff E.D.G.s Motion for Permission to Proceed Under Pseudonym and to Omit HisAddress from the Caption in the First Amended Complaint; Granting 93 Motion to Seal; Denying 101 Motion to Dismiss. Signed by Judge George Jarrod Hazel on 6/3/2020. (heps, Deputy Clerk) (Additional attachment(s) added on 6/3/2020: # 1 CORRECTED Main Document) (heps, Deputy Clerk). (Entered: 06/03/2020)

06/15/2020

117 MOTION to Certify Class , MOTION to Appoint Counsel by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Appendix, # 4 Exhibit Declaration of J.O.P., # 5 Exhibit Declaration of M.A.L.C., # 6 Exhibit Declaration of M.E.R.E., # 7 Exhibit Declaration of K.A.R.C., # 8 Exhibit Declaration of E.D.G., # 9 Exhibit Declaration of Brian T. Burgess, # 10 Exhibit Biography of Brian T. Burgess, # 11 Exhibit Biography of Elaine Herrmann Blais, # 12 Exhibit Biography of Kevin J. DeJong, # 13 Exhibit Biography of Stephen R. Shaw, # 14 Exhibit Declaration of Scott Shuchart, # 15 Exhibit Declaration of Kristen Jackson, # 16 Exhibit Declaration of Michelle Mendez)(Burgess, Brian) (Entered: 06/15/2020)

06/17/2020

118 ANSWER to 91 Amended Complaint, by Matthew T. Albence, Kenneth Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad Wolf.(LeDuc, Vickie) (Entered: 06/17/2020)

06/19/2020 119 Joint MOTION for Other Relief (Scheduling Order) by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 Text of Proposed Order)(Burgess, Brian) (Entered: 06/19/2020)

06/22/2020

120 Corrected MOTION (Joint Motion for Scheduling Order) by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 Text of Proposed Order)(Burgess, Brian) (Entered: 06/22/2020)

06/23/2020 121 ORDER granting 119 Joint MOTION for Other Relief (Scheduling Order). Signed by Judge George Jarrod Hazel on 6/22/2020. (dg3s, Deputy Clerk) (Entered: 06/23/2020)

06/29/2020 122 PAPERLESS ORDER granting 120 Amended Joint Motion for Scheduling Order. Signed by Judge George Jarrod Hazel on 6/29/2020. (jw2s, Chambers) (Entered: 06/29/2020)

06/29/2020

123 MOTION for Extension of Time to Respond to Plaintiffs Motion for Class Certification and Appointment of Class Counsel by Matthew T. Albence, Kenneth Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad Wolf(Loucks, Allen) (Entered: 06/29/2020)

07/07/2020

124 MOTION to Amend/Correct by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Declaration of Miguel Mariscal, # 4 Mariscal Ex. A, # 5 Declaration of Derek Elder, # 6 Elder Ex. A, # 7 Elder Ex. B, # 8 Elder Ex. C, # 9 Declaration of Casey Frank, # 10 Frank Ex. A, # 11 Frank Ex.B, # 12 Frank Ex. C, # 13 Declaration of Silvia Serrano)(Burgess, Brian) (Entered: 07/07/2020)

07/07/2020

125 Correspondence re: Declaration of Kevin DeJong in Support of Plaintiffs Motion to Amend the Preliminary Injunction (Attachments: # 1 DeJong Ex. A, # 2 DeJong Ex. B, # 3 DeJong Ex. C, # 4 DeJong Ex. D, # 5 DeJong Ex. E, # 6 DeJong Ex. F)(Burgess, Brian) (Entered: 07/07/2020)

07/13/2020

126 RESPONSE in Opposition re 117 MOTION to Certify Class MOTION to Appoint Counsel by Matthew T. Albence, Kenneth Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad Wolf. (Attachments: # 1 Exhibit, # 2 Exhibit)(Loucks, Allen) (Entered: 07/13/2020)

07/21/2020

127 RESPONSE in Opposition re 124 MOTION to Amend/Correct filed by Matthew T. Albence, Kenneth Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad Wolf.(Loucks, Allen) (Entered: 07/21/2020)

07/24/2020

128 NOTICE of filing Administrative Record by U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad Wolf (Attachments: # 1 Attachment Index of Administrative Record, # 2 Attachment Document 1, # 3 Attachment Document 2, # 4 Attachment Document 3, # 5 Attachment Document 4, # 6 Attachment Document 6, # 7 Attachment Document 7, # 8 Attachment Document 8, # 9 Attachment Document 9, # 10 Attachment Document 10, # 11 Attachment Document 11, # 12 Attachment Document 12, # 13 Attachment Document 13, # 14 Attachment Document 14,

# 15 Attachment Document 15, # 16 Attachment Document 16, # 17 Attachment Document 17, # 18 Attachment Document 18, # 19 Attachment Document 19, # 20 Attachment Dcoument 20, # 21 Attachment Document 21, # 22 Attachment Unredacted Document 22, # 23 Attachment Document 23, # 24 Attachment Document 24, # 25 Attachment Document 25, # 26 Attachment Document 26, # 27 Attachment Document 27, # 28 Attachment Document 28, # 29 Attachment Document 29, # 30 Attachment Document 30, # 31 Attachment Document 31, # 32 Attachment Document 32)(Loucks, Allen) Modified on 7/29/2020 (kns, Deputy Clerk). (Entered: 07/24/2020)

07/27/2020

129 NOTICE by Matthew T. Albence, Kenneth Cuccinelli, U.S. Citizenship & Immigration Services re 128 Notice Administrative Record,,,, (Attachments: # 1 Attachment Document 5)(Loucks, Allen) (Entered: 07/27/2020)

07/27/2020

130 REPLY to Response to Motion re 117 MOTION to Certify Class MOTION to Appoint Counsel filed by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Burgess, Brian) (Entered: 07/27/2020)

08/03/2020

131 Supplemental to 128 Notice Administrative Record,,,,, filed by Matthew T. Albence, Kenneth Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad Wolf (Loucks, Allen) (Entered: 08/03/2020)

08/03/2020

132 NOTICE by Matthew T. Albence, Kenneth Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad Wolf re 128 Notice Administrative Record,,,,, (Attachments: # 1 Attachment Amended Index, # 2 Attachment Document 33)(Loucks, Allen) (Entered: 08/03/2020)

08/03/2020 133 Supplemental to 101 Motion to Dismiss the Amended Complaint (Loucks, Allen) Modified on 8/3/2020 (jf3s, Deputy Clerk). (Entered: 08/03/2020)

08/04/2020

134 REPLY to Response to Motion re 124 MOTION to Amend/Correct filed by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.. (Attachments: # 1 Declaration of Kevin J. DeJong in Support of Plaintiff's Reply Brief)(Burgess, Brian) (Entered: 08/04/2020)

08/10/2020

135 Joint MOTION to Stay Summary Judgment Schedule by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 Text of Proposed Order)(Burgess, Brian) (Entered: 08/10/2020)

08/25/2020 136 Joint MOTION for Protective Order by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E. (Attachments: # 1 Exhibit 1)(Burgess, Brian) (Entered: 08/25/2020)

09/10/2020 137 STATUS REPORT (Joint) by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.(Burgess, Brian) (Entered: 09/10/2020)

10/02/2020

138 NOTICE of filing Administrative Record by Matthew T. Albence, Kenneth Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad Wolf (Attachments: # 1 Attachment Index of Amended Administrative Record, # 2 Attachment Document 1, # 3 Attachment Document 2, # 4 Attachment Document 3, # 5 Attachment Document 4, # 6 Attachment Document 5, # 7 Attachment Document 6, # 8 Attachment Document 7, # 9 Attachment Document 8, # 10 Attachment Document 9, # 11 Attachment Document 10, # 12 Attachment Document 11, # 13 Attachment Document 12, # 14 Attachment Document 13, # 15 Attachment Document 14, # 16 Attachment Document 15, # 17 Attachment Document 16, # 18 Attachment Document 17, # 19 Attachment Document 18, # 20 Attachment Document 19, # 21 Attachment Document 20, # 22 Attachment Document 21, # 23 Attachment Document 22, # 24 Attachment Document 23, # 25 Attachment Document 24, # 26 Attachment Document 25, # 27 Attachment Document 26, # 28 Attachment Document 27, # 29 Attachment Document 28, # 30 Attachment Document 29, # 31 Attachment Document 30, # 32 Attachment Document 31, # 33 Attachment Document 32, # 34 Attachment Document 33, # 35 Attachment Document 34, # 36 Attachment Document 35, # 37 Attachment Document 36)(Loucks, Allen) (Entered: 10/02/2020)

10/09/2020 139 STATUS REPORT (Joint) by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.(Burgess, Brian) (Entered: 10/09/2020)

11/06/2020 140 STATUS REPORT (Joint) by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.(Burgess, Brian) (Entered: 11/06/2020)

12/04/2020 141 STATUS REPORT by E.D.G., J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.(Burgess, Brian) (Entered: 12/04/2020)

12/07/2020

142 STATUS REPORT by Matthew T. Albence, Kenneth Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad Wolf(Loucks, Allen) (Entered: 12/07/2020)

12/21/2020 143 MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 12/21/2020. (jf3s, Deputy Clerk) (Entered: 12/21/2020)

12/21/2020

144 ORDER granting 117 Motion for Class Certification and Appointment of Class Counsel ; granting 123 Motion for Extension of Time; granting in part and denying in part 124 Motion to Amend the Preliminary Injunction; granting 134-15 Plaintiff's request to file a Second Amended Complaint; granting Plaintiff's 21 days to file Amended Complaint; granting 135 Joint Motion to Stay Summary Judgment Schedule; granting 136 Joint Motion for Protective Order. Signed by Judge George Jarrod Hazel on 12/21/2020. (jf3s, Deputy Clerk) (Entered: 12/21/2020)

01/11/2021

145 AMENDED COMPLAINT against Matthew T. Albence, Kenneth Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad Wolf, filed by M.E.R.E., K.A.R.C., J.O.P., E.D.G., M.A.L.C., L.M.Z.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Attachment Public Redline)(Burgess, Brian) (Entered: 01/11/2021)

01/11/2021

146 -SEALED- AMENDED COMPLAINT against Matthew T. Albence, Kenneth Cuccinelli, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad Wolf, filed by M.E.R.E., K.A.R.C., J.O.P., E.D.G., L.M.Z., M.A.L.C.. (Attachments: # 1 Attachment Sealed Redline)(Burgess, Brian) (Entered: 01/11/2021)

01/11/2021

147 MOTION to Seal the Second Amended Complaint by E.D.G., J.O.P., K.A.R.C., L.M.Z., M.A.L.C., M.E.R.E. (Attachments: # 1 Text of Proposed Order)(Burgess, Brian) (Entered: 01/11/2021)

01/11/2021 148 MOTION for Permission to Proceed Under Pseudonym and to Omit Address by L.M.Z. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Burgess, Brian) (Entered: 01/11/2021)

01/22/2021

149 MOTION for Extension of Time to File Response/Reply as to 145 Amended Complaint, by Matthew T. Albence, Kenneth Cuccinelli, Jonathan Fahey, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad Wolf (Attachments: # 1 Text of Proposed Order)(Loucks, Allen) (Entered: 01/22/2021)

01/25/2021

150 RESPONSE in Opposition re 149 MOTION for Extension of Time to File Response/Reply as to 145 Amended Complaint, filed by E.D.G., J.O.P., K.A.R.C., L.M.Z., M.A.L.C., M.E.R.E..(Burgess, Brian) (Entered: 01/25/2021)

02/16/2021 151 ANSWER to 145 Amended Complaint, by Matthew T. Albence, Kenneth Cuccinelli, Jonathan Fahey, U.S. Citizenship & Immigration

Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad Wolf.(Loucks, Allen) (Entered: 02/16/2021)

02/18/2021

152 NOTICE OF APPEAL as to 144 Order on Motion to Certify Class,,, Order on Motion to Appoint Counsel,,, Order on Motion for Extension of Time,,, Order on Motion to Amend/Correct,,, Order on Motion to Stay,,, Order on Motion for Protective Order,, 143 Memorandum Opinion by Matthew T. Albence, Kenneth Cuccinelli, Jonathan Fahey, U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Chad Wolf. (Loucks, Allen) (Entered: 02/18/2021)

02/19/2021

153 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 152 Notice of Appeal,. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(nus, Deputy Clerk) (Entered: 02/19/2021)

02/22/2021

154 USCA Case Number 21-1187 for 152 Notice of Appeal, filed by Jonathan Fahey, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Matthew T. Albence, Kenneth Cuccinelli, U.S. Citizenship & Immigration Services, Chad Wolf. Case Manager - Kirsten Hancock (nus, Deputy Clerk) (Entered: 02/22/2021)

02/23/2021 155 MOTION to Withdraw as Attorney Sarah K. Frederick by J.O.P., K.A.R.C., M.A.L.C., M.E.R.E.(Frederick, Sarah) (Entered: 02/23/2021)

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 Case 8:19-cv-01944-GJH Document 54 Filed 08/02/19 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

J.O.P, et al.

*

Plaintiffs,

*

v. *
U.S. DEPARTMENT OF HOMELAND SECURITY et al.,
* Defendants.
* * * * * * * * *

Case No.: GJH-19-1944 * * * * *

MEMORANDUM OPINION

Plaintiffs J.O.P. (by and through next friend, G.C.P.), M.A.L.C., M.E.R.E., and

K.A.R.C.,1 on behalf of themselves and other similarly situated individuals seeking asylum, filed

a class action complaint against Defendants U.S. Department of Homeland Security (DHS),

Kevin McAleenan in his official capacity as Acting Secretary of DHS, U.S. Citizenship and

Immigration Services (USCIS) and Kenneth Cuccinelli in his official capacity as Acting Director

of USCIS. ECF No. 1. Plaintiffs challenge a new policy that changes the rights held by

unaccompanied children who are now seeking asylum. Id. Pending before the Court is Plaintiffs’

Motion for a Temporary Restraining Order, which requests that the Defendants’ previous

policies for unaccompanied children seeking asylum be maintained until the Court may consider

the new policy’s validity. ECF No. 14. A hearing was held on July 19, 2019. ECF No. 43. For

the following reasons, Plaintiffs’ motion will be granted.

1 The Court will grant Plaintiffs’ unopposed motion seeking permission to proceed under pseudonyms. ECF No. 12.
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I. BACKGROUND In 2008, Congress enacted the William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 (TVPRA or the Act). TVPRA, Pub. L. No. 110-457 § 235(d), 122 Stat. 5044, 5074, codified at 8 U.S.C. §§ 1158, 1232(d). The Act extended legal protections to children who entered the United States without a parent or other legal guardian and were determined to be “unaccompanied alien children” (UACs). A UAC is a child who:
(A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom—(i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody. 6 U.S.C. § 279(g)(2). The TVPRA requires that after an unaccompanied child is discovered by federal government officers (often U.S. Customs and Border Protection (CBP) or U.S. Immigration and Customs Enforcement (ICE) officers), she must be transferred to the custody of the Office of Refugee Resettlement within the Department of Health and Human Services, typically within a 72-hour period, for care and further screening. Unlike the agencies whose mission is to enforce immigration laws, the Department of Health and Human Services has social workers trained to work with children. 8 U.S.C. § 1232(a)(3). The TVPRA also provides that USCIS, not an immigration court, has initial jurisdiction over a UAC’s asylum application. 8 U.S.C. § 1158(b)(3)(c). The USCIS asylum process is a less adversarial system more sensitive to the special needs of children who do not know how to navigate an immigration system designed for adults, and who likely sought safety in the United States without understanding their legal options. ECF No. 1 ¶ 5. Instead of having to be crossexamined in an adversarial courtroom by trained government lawyers, unaccompanied children engage with USCIS officers trained to conduct non-adversarial interviews and to apply child-
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sensitive and trauma-informed interview techniques. Id. ¶¶ 11, 49. The TVPRA also directs USCIS to help make counsel available to these children. 8 U.S.C. § 1232(c)(5). Additionally, while asylum applicants generally must file their asylum applications within one year of entering the United States, id. § 1158(a)(2)(B), the TVPRA exempts unaccompanied children from this one-year filing deadline, id. § 1158(a)(2)(E).
The TVPRA delegates authority to federal agencies to enact “regulations which take into account the specialized needs of unaccompanied alien children and which address both procedural and substantive aspects of handling unaccompanied alien children’s cases.” Id. § 1232(d)(8). The Act neither directs USCIS to redetermine an individual’s UAC status at the time of an application for asylum when a federal agency has initially determined the child meets the UAC definition nor expressly prohibits the agency from making a redetermination at that time. See id. §§ 1158, 1232. Similarly, the TRVPA neither expressly authorizes nor expressly prohibits USCIS from rescinding an earlier UAC determination. Id. However, in a memorandum authored by Asylum Chief Ted Kim in May 2013 (Kim Memo), USCIS implemented a policy of accepting jurisdiction of asylum applications filed by individuals previously determined to be UACs without having asylum officers make redeterminations regarding the children’s status. ECF No. 15-6.
The Kim Memo came shortly after a 2012 report by the Citizenship and Immigration Services Ombudsman recommended that USCIS implement the policy of not rescinding UAC determinations. ECF No. 15-5. In an independent analysis of problems encountered by unaccompanied children seeking asylum in the United States, the Ombudsman started from the understanding that when a child is placed in removal proceedings, the apprehending entity,
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whether ICE or CBP “must make a finding that the child is unaccompanied.” Id. at 7.2 Prior to the 2012 Ombudsman Report, USCIS had been performing redeterminations of a child’s UAC status upon receipt of an asylum application and again during the asylum interview. Id. at 5–6. The Ombudsman outlined several problems with re-determining UAC status, including difficulty rescheduling UAC interviews, and inadequate methods and approaches to adjudication. Id. The Ombudsman was concerned that instead of “facilitating expedited, non-adversarial interviews envisioned by Congress,” the USCIS policy of undertaking a redetermination of UAC status at every asylum interview created “delay and confusion.” Id. at 6.
In the Ombudsman’s view, “TVPRA’s procedural and substantive protections were designed to remain available to UACs throughout removal proceedings, housing placement, and the pursuit of any available relief,” and “[s]ubjecting a child seeking asylum to multiple UAC determinations as [was] required by USCIS’ temporary guidance appears at odds with the TVPRA’s express purpose, namely, to provide timely, appropriate relief for vulnerable children.” Id. Further, the Ombudsman acknowledged that “Congress did not provide language indicating that the filing of an asylum application should trigger a new or successive UAC determinations that could eliminate statutory protections or remove the UAC from [removal] proceedings.” Id. at 7. The Ombudsman concluded that “[e]liminating the practice of USCIS redetermining UAC status during the asylum interview would also restore a level of fairness that comes from having a predictable and uniform process.” Id. at 8.
Under the policy adopted by the Kim Memo, which was consistent with the Ombudsman report’s recommendations, asylum officers were required to accept determinations by CBP and ICE regarding UAC status even if an individual had turned eighteen or been reunited with a
2 Pin cites to documents filed on the Court’s electronic filing system (CM/ECF) refer to the page numbers generated by that system.
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parent or guardian by the time he applied for asylum. ECF No. 15-6 at 3. As recently as May 20, 2019, USCIS confirmed that the asylum policy set forth in the 2013 Kim Memo remained in effect. ECF No. 15-8 at 4. But on June 14, 2019, USCIS published a memorandum on its website that changed the rules for determining whether a child is eligible for TVPRA protections. ECF No. 15-2. The 2019 Redetermination Memo is dated May 31 2019, but was not made available on the USCIS website until June 14, 2019. Id.; ECF No. 1 ¶ 8. The policy set forth in the Redetermination Memo became effective on June 30, 2019. Id.
Pursuant to the Redetermination Memo, all asylum officers are now required to “mak[e] independent factual inquiries in all cases in order to determine whether the individual met the UAC definition on the date of first filing the asylum application.” ECF No. 15-2 at 3. The Redetermination Memo states that the “updated procedures” “apply to any USCIS decision issued on or after the effective date” of the memorandum. Id. at 2 (emphasis in original). Under the new rules, an individual originally designated as a UAC who, perhaps relying on the former policy, applied for asylum after reaching the age of eighteen or after being reunited with a parent or guardian, will arrive at an asylum interview to find that USCIS must now decline jurisdiction because of a redetermination that the applicant was not a UAC at the time he filed an application. See id. Under the prior rule, individuals determined to be UACs by CBP or ICE had two opportunities to present their claims on the merits: first through the USCIS process and again, if necessary, in an immigration court. ECF No. 1 ¶ 81. But under the new policy, some individuals will no longer be eligible to participate in the first half of this process because by the time they applied for asylum they had attained the age of eighteen or had been reunited with a parent or guardian. Id. ¶ 9. Further, under the new rules, an individual who had previously been determined to be a UAC and who applied for asylum outside of the one-year filing deadline
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could lose all right to asylum due to the imposition of the one-year bar from which he believed he was exempt. Id. ¶ 81.
According to a leaked internal memorandum from 2017, unknown members of the administration considered rescinding the 2013 Kim Memo as one of a number of proposed “Policy Options to Respond to Border Surge of Illegal Immigration.” ECF No. 15-3 at 2. However, a comment on the memo, also by an unknown author, noted that “DOJ allows immigration judges to make independent determinations as to when a minor is a UAC” and “it would be good for DHS to have the same policy.” ECF No. 15-3 at 2. Consistent with this comment, the Redetermination Memo explained that USCIS decided to change course from the 2013 policy to ensure that the agency is making “jurisdictional determinations in a manner consistent with Immigration Judge determinations.” ECF No. 15-2 at 3. Under Board of Immigration Appeals precedent, Immigration Judges also have initial jurisdiction over asylum applications filed by individuals previously determined to be UACs who have turned eighteen before filing their application. Id. (citing Matter of M-A-C-O-, 27 I&N Dec. 477 (BIA 2018)). Thus, both USCIS and immigration judges have initial jurisdiction over UAC asylum applications. Id. However, where USCIS officers were not making redeterminations about previously granted UAC status pursuant to the 2013 policy, immigration judges were making such redeterminations. Id. The new policy eliminated that distinction.
The Redetermination Memo did not address whether the facts and circumstances that underlay the agency’s prior policy (and that were described in detail in the 2012 Ombudsmen’s report) had changed. See id. The Redetermination Memo also did not address whether USCIS had taken into account any interests of those individuals who had been relying on the prior policy to make decisions about when to file an asylum application. See id.
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Plaintiffs came to the United States as children to escape violence, abuse, or persecution in their home countries. ECF No. 16 ¶¶ 2, 5, 6; ECF No. 18 ¶ 5; ECF No. 19 at 4; ECF No. 20 ¶ 4. They each arrived in the United States as children without a parent or guardian to care for them and the government determined them to be UACs. See ECF No. 1 ¶¶ 15–36. Since arriving in the United States, Plaintiffs have each either turned eighteen or been reunited with a parent or guardian. ECF No. 16 ¶¶ 8, 10; ECF No. 18 ¶¶ 5, 8; ECF No. 19 ¶ 5; ECF No. 20 ¶¶ 7, 9. However, because they were relying on USCIS’s former policy of not rescinding UAC status, Plaintiffs did not file asylum applications until after they had either been reunited with a parent or guardian or attained the age of eighteen. Id.
Plaintiffs filed a Complaint challenging the implementation of USCIS’s redetermination policy as violating the Administrative Procedure Act (APA) and the Due Process Clause of the Fifth Amendment of the United State Constitution on July 1, 2019. ECF No. 1. On that date, they also moved for a Temporary Restraining Order. ECF No. 14. The Court held a hearing on July 19, 2019 at which both parties had an opportunity to be heard. ECF No. 43. At the hearing, Defendants conceded that Plaintiffs are entitled to at least a limited temporary restraining order ordering Defendants to apply the policies outlined in the 2013 Kim Memo to the four named Plaintiffs and to avoid re-determining their UAC status. II. STANDARD OF REVIEW
Plaintiffs seek temporary injunctive relief prohibiting Defendants from implementing the May 31, 2019 policy memo until the Court has an opportunity to consider the policy’s validity. The purpose of a temporary restraining order (TRO) or a preliminary injunction is to “protect the status quo and to prevent irreparable harm during the pendency of a lawsuit, ultimately to preserve the court’s ability to render a meaningful judgment on the merits.” In re Microsoft
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Case 8:19-cv-01944-GJH Document 54 Filed 08/02/19 Page 8 of 16
Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003). The substantive requirements for a TRO and a preliminary injunction are identical. See U.S. Dept. of Labor v. Wolf Run Mining Co., Inc., 452 F.3d 275, 281 n. 1 (4th Cir. 2006). Specifically, parties moving for a TRO or preliminary injunction must show: (1) they are likely to succeed on the merits; (2) they will suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) maintaining the status quo is in the public interest. Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008)). The final two factors generally “merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). III. DISCUSSION
Plaintiffs argue that the Redetermination Memo did not go through the required noticeand-comment procedure for agency rulemaking in violation of the APA, is inconsistent with the TVPRA, is arbitrary and capricious in violation of the APA, and violates Plaintiffs’ due process rights. As described in more detail below, the Court finds that Plaintiffs and those similarly situated to them are likely to succeed on their claim that the redetermination policy violates the APA because the agency failed to go through required notice-and-comment procedures and failed to consider reliance interests created by the 2013 Kim Memo. The Court also concludes that Plaintiffs and those similarly situated to them are likely to experience irreparable harm if the redetermination policy is not enjoined and the balance of harms favors temporary injunctive relief.
Because the Defendants consent to the named Plaintiffs’ requested temporary relief as to their due process claims based on the issue of retroactive application of the policy to those Plaintiffs, the Court briefly addresses whether Plaintiffs’ request for a temporary restraining order is moot or whether Plaintiffs can still achieve broader injunctive relief. Given that the
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remedy Congress provides for unlawful agency action is setting aside that agency action, not simply prohibiting the application of that action to individuals, Plaintiffs’ request for broader injunctive relief still presents a live controversy. 5 U.S.C. §§ 706(2)(A)–(D); See also Guilford Coll. v. McAleenan, No. 1:18cv891, — F.Supp.3d —, 2019 WL 1980132, at *11 (M.D.N.C. May 3, 2019) (granting an injunction setting aside a different unlawful USCIS policy in its entirety because that injunction had the “breadth . . . necessary to give the prevailing parties the relief to which they are entitled.”) (quoting Bresgal v. Brock, 843 F.2d 1163, 1170–71 (9th Cir. 1987))). Further, courts may enter class-wide injunctive relief before certification of a class. Rodriguez v. Providence Community Corrections, 155 F. Supp. 3d 758, 766 (M.D. Tenn. 2015); Newberg on Class Actions § 4:30 (5th ed. 2013) (“[A] court may issue a preliminary injunction in class suits prior to a ruling on the merits.”); see also Mullins v. Cole, 218 F. Supp. 3d 488 (S.D.W. Va. 2016) (considering harms to putative class as a whole in awarding preliminary injunction prior to class certification).
Because, as described below, the Court finds Plaintiffs are likely to succeed on the merits of some of their APA claims—claims relevant to potential class members—Plaintiffs’ request for a broader injunction than the relief consented to by Defendants is not moot. There remains a controversy regarding whether the redetermination policy should ultimately be set aside as violating the APA—a remedy that would resolve not only the named Plaintiffs’ claims but also the claims of those similarly situated who Plaintiffs seek to represent through a class action. In this context, Plaintiffs’ request for preliminary injunctive relief beyond that consented to by Defendants is still proper. Having resolved these threshold concerns, the Court turns to Plaintiffs’ likelihood of success on their specific claims.
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A. Likelihood of Success on the Merits i. Notice and Comment
Plaintiffs are likely to succeed on the claim that USCIS failed to engage in the required notice-and-comment procedure for rulemaking. Under the APA, legislative rules must go through notice-and-comment rulemaking before they become effective. See 5 U.S.C. § 553(a)– (c); Children’s Hosp. of the King’s Daughters, Inc. v. Azar, 896 F.3d 615, 619–20 (4th Cir. 2018). This requirement does not apply to interpretive rules. Children’s Hosp, 896 F.3d at 620. A rule is “legislative,” rather than “interpretive,” if it “effects a substantive change in existing law or policy.” Id. When a rule affects “individual rights and obligations” it is “a substantive rule—or a ‘legislative-type rule.’” Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979) (internal citation omitted) (quoting Morton v. Ruiz, 415 U.S. 199, 232, 236 (1974)). Additionally, legislative rules “are rules issued by agencies pursuant to statutory authority and which implement the statute.” Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1340 (4th Cir. 1995). Because the new policy did not go through a notice-and-comment procedure, the question for the Court is whether it is a legislative or interpretive rule.
Plaintiffs are likely to succeed in demonstrating that the redetermination policy is legislative in nature because the policy is inconsistent with prior agency policy, thus affecting a “substantive change in existing law or policy.” Children’s Hosp, 896 F.3d at 620. Pursuant to the new policy, which is binding on “any USCIS decision” regarding jurisdiction over an asylum case, ECF No. 15-2 at 2 (emphasis in original), USCIS officers must now determine whether an individual met the UAC definition on the date the individual filed an asylum application rather than adopting the UAC status determination made by another federal agency. Thus, under the new policy, if Plaintiffs or similar individuals wanted USCIS to accept jurisdiction over their
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asylum applications, they were obligated to file those applications before they attained the age of eighteen or before they were reunited with a parent or guardian. Additionally, the new policy retroactively affects the rights of Plaintiffs and those similarly situated to Plaintiffs by taking away their exemption to the one-year filing deadline, meaning some will lose their opportunity to seek asylum.
Beyond the ways in which the redetermination policy affects substantive rights and obligations, the rule is also legislative in nature because USCIS issued it pursuant to the agency’s statutory authority under the TVPRA to implement the Act. Chen Zhou Chai, 48 F.3d at 1340 (legislative rules “are rules issued by agencies pursuant to statutory authority and which implement the statute.”). When Congress directs an agency to implement key statutory provisions through regulation, courts “should lean toward finding” that an agency’s attempt to exercise delegated policymaking responsibility under the statute “requires notice and comment.” N.H. Hosp. Ass’n v. Azar, 887 F.3d 62, 71 (1st Cir. 2018). That is the situation here where Congress has delegated authority through the TVPRA to USCIS to enact “regulations which take into account the specialized needs of unaccompanied alien children and which address both procedural and substantive aspects of handling unaccompanied alien children’s cases.” 8 U.S.C. § 1232(d)(8). The Redetermination Memo skirts this instruction from Congress that USCIS issue regulations to implement procedures related to UAC’s asylum applications.3
In sum, even though the redetermination policy is likely a legislative rule, Defendants did not engage in the notice-and-comment process, which would violate the APA.
3 The fact that the Kim Memo did not go through notice-and-comment does not impact whether the policy should have since the Kim Memo was not challenged on this basis.
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ii. Arbitrary and Capricious Review Plaintiffs are also likely to succeed on their claim that the redetermination policy is arbitrary and capricious in violation of the APA because the USCIS failed to consider serious reliance interests engendered by the agency’s longstanding prior policy. The APA “sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.” Franklin v. Massachusetts, 505 U.S. 788, 796 (1922). Section 706(2) provides that, in a suit challenging agency action, “[t]he reviewing court shall . . . hold unlawful and set aside agency action” found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [or] without observance of procedure required by law.” 5 U.S.C. §§ 706(2)(A)–(D). Section 706(2) review is to be “thorough, probing, [and] in-depth.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971); see id. at 416. Agency action is arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 43 (1983). While agencies may change their policies, they must provide “a reasoned explanation” for the shift. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515–16 (2009). Moreover, the agency must “provide a reasoned explanation” for a change in instances where the agency’s “prior policy has engendered serious reliance interests that must be taken into account.” Id. at 515–16. In other words, while an agency is free to change its policies, it must address the “facts and circumstances
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that underlay or were engendered by the prior policy.” Id. at 516. If an agency ignores such reliance interests it may have “entirely failed to consider an important aspect of the problem,” rendering the agency’s action arbitrary and capricious. See id.; State Farm, 463 U.S. at 43.
Here, Defendants entirely failed to consider reliance interests in the decision memorandum outlining the agency’s new policy. See ECF No. 15-2. While USCIS may be justified in changing course to create consistency between the jurisdictional determinations made by USCIS and immigration judges, id. at 3, it needs to at least provide a “reasoned explanation” for why it is disregarding the facts that underlay the earlier policy as well as the serious reliance interests engendered by the prior rules. Given the agency’s failure to do so, Plaintiffs are likely to succeed on their claim that the redetermination policy is arbitrary and capricious in violation of the APA.
iii. TVPRA While Plaintiffs are likely to succeed on some of their claims, the Court is not convinced that Plaintiffs remaining claims will be meritorious. Plaintiffs’ argument that the USCIS acted in excess of statutory authority because the redetermination policy is inconsistent with the TVPRA is likely without merit. The TVPRA neither expressly authorizes nor expressly prohibits USCIS from rescinding a determination that a child is a UAC. 8 U.S.C. § 1232(d)(8). And although the Act discusses the “[s]pecialized needs of unaccompanied alien children” under the heading “Permanent protection for certain at-risk children,” it never expressly addresses the rights of individuals who no longer qualify as UACs. Id.
iv. Pretext Plaintiffs’ claim that the agency’s justification for its policy change was pretextual in violation of the APA also likely fails. To the extent that the Court can draw any conclusions from
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the “leaked internal memorandum” of unknown authorship that Plaintiffs point to as evidence of pretext, the Court finds that at least one of the reasons provided is consistent with the justification given in the Redetermination Memo. Specifically, according to the Redetermination Memo, USCIS decided to change course from the 2013 policy to ensure that USCIS is making “jurisdictional determinations in a manner consistent with Immigration Judge determinations.” ECF No. 15-2 at 3. Consistent with this justification, the leaked internal memo indicates that administration officials were considering ordering USCIS to make changes to the 2013 policy in part because “DOJ allows immigration judges to make independent determinations as to when a minor is a UAC” and “it would be good for DHS to have the same policy.” ECF No. 15-3 at 2.
Although agencies must “examine the relevant data and articulate a satisfactory explanation for its action,” there is no rule prohibiting an agency from supporting its action with several explanations so long as there is a “rational connection between the facts found and the choice made.” See State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). Therefore, even to the extent that the reasons articulated in the Redetermination Memo do not match the primary explanation for the action offered in the “leaked internal memorandum” (i.e., responding to a surge in illegal border crossings), that at least one of the reasons provided in that memo is consistent with the justifications given in the Redetermination Memo indicates that the agency’s reasoning is not pretextual.
Ultimately, though, Plaintiffs need only demonstrate that they are likely to succeed on the merits of some of their claims, and they have done so here.
B. Irreparable Harm and Balance of the Equities Plaintiffs have also met their burden to demonstrate that the redetermination policy will cause irreparable harm if the status quo is not maintained. As previously discussed, individuals
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who relied on USCIS’s longstanding policy of not rescinding UAC status may miss their opportunity to file for asylum all together if the one-year filing deadline from which they would have otherwise been exempt is now imposed. Similarly, under the redetermination policy, individuals who, relying on USCIS’s policy of adopting earlier UAC determinations, did not file for asylum until after they had aged out of UAC status or until after they had been reunited with a parent or guardian will be forced to proceed before an adversarial system where they will be subject to cross-examination by trained government lawyers even though they believed that they would be able to proceed before an asylum officer trained in trauma-informed interviewing.
Finally, analysis of the last two factors—the balance of the equities and the public interest—merge here because the Government is a party, and they favor maintaining the status quo. Defendants have conceded that Plaintiffs are likely to succeed on the merits of their constitutional claims and “upholding the Constitution undeniably promotes the public interest.” Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 604 (4th Cir. 2017). Defendants’ argument that a more fully developed record will show that prioritizing consistency between jurisdictional determinations by USCIS officers and immigration judges will benefit UACs does not change the Court’s conclusion that on the existing record the balance of equities tips in Plaintiffs’ favor. There is no evidence in the existing record that either Defendants or children applying for asylum will be harmed by pressing pause on enforcing the redetermination policy, but Plaintiffs have shown that the new policy will cause them harm. Thus, at this time, the balance of the harms favors temporary injunctive relief.
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IV. CONCLUSION For the foregoing reasons, Plaintiffs’ Motion for a Temporary Restraining Order will be
granted. A separate Order shall issue.

Date: August 2, 2019

_/s/_________________________ GEORGE J. HAZEL United States District Judge

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 Case 8:19-cv-01944-GJH Document 91 Filed 12/20/19 Page 1 of 43

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, SOUTHERN DIVISION

J.O.P., M.A.L.C., M.E.R.E., K.A.R.C., and E.D.G. on behalf of themselves as individuals
and on behalf of others similarly situated,
,

Plaintiffs,

Civil Action No. 8:19-CV-01944-GJH

v.
U.S. DEPARTMENT OF HOMELAND SECURITY, CHAD WOLF (in his official capacity as Acting Secretary of Homeland Security), U.S. CITIZENSHIP & IMMIGRATION SERVICES, KENNETH CUCCINELLI (in his official capacity as Acting Director of U.S. Citizenship & Immigration Services), U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, and MATTHEW T. ALBENCE (in his official capacity as Acting Director of U.S. Immigration & Customs Enforcement),

FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
PUBLIC VERSION

Defendants.

FIRST AMENDED COMPLAINT Plaintiffs J.O.P., M.A.L.C., M.E.R.E., K.A.R.C., and E.D.G., on behalf of themselves and other similarly situated children seeking asylum, bring this class action complaint against Defendants U.S. Department of Homeland Security (“DHS”); Chad Wolf, in his official capacity as Acting Secretary of DHS; U.S. Citizenship and Immigration Services (“USCIS”); Kenneth Cuccinelli, in his official capacity as Acting Director of USCIS; U.S. Immigration and Customs
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Enforcement (“ICE”); and Matthew T. Albence, in his official capacity as Acting Director of ICE. Plaintiffs allege as follows:
INTRODUCTION 1. Plaintiffs are among thousands of unaccompanied immigrant children who have made the long and perilous journey to the United States to seek protection, fleeing violence and persecution in their countries of origin. This class action challenges a federal agency’s sudden shift in policy that retroactively strips Plaintiffs of critical, statutory asylum protections. 2. Recognizing the vulnerability and special needs of unaccompanied immigrant children, Congress has enacted laws specifically designed to protect them. In 2008, Congress enacted the William Wilberforce Trafficking Victims Protection Reauthorization Act (“TVPRA”). The TVPRA provides multiple protections to unaccompanied immigrant children, who are often vulnerable to trafficking, persecution, trauma, and other harms en route to or while in the United States. 3. The TVPRA draws on a prior statutory definition according to which an “unaccompanied alien child” (“UAC”) is one whom the federal government determines to be without lawful immigration status, under the age of 18, and without a parent or legal guardian in the United States available to provide care and physical custody. 6 U.S.C. § 279(g)(2). 4. Defendant DHS apprehended each Plaintiff upon entering the United States and determined that each Plaintiff satisfied this definition. At or about the same time, Defendant DHS prepared legal documents to initiate proceedings in a United States immigration court pursuant to Section 240 of the Immigration and Nationality Act (“INA”) against each Plaintiff to determine whether each Plaintiff should be removed from the United States (“removal proceedings”). Such removal proceedings are conducted by immigration judges within the
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Executive Office for Immigration Review (“EOIR”), an agency of the U.S. Department of Justice.
5. The TVPRA relieves unaccompanied immigrant children of two procedural hurdles to accessing the asylum system, providing a more child-appropriate way for the government to process their claims to protection under U.S. and international law fairly.
6. First, the TVPRA creates an exception to the general requirement that asylum applicants facing removal proceedings present their asylum claims in an adversarial setting before the immigration court. Instead, through a grant of initial jurisdiction over their asylum claims to USCIS, the TVPRA allows unaccompanied immigrant children to pursue asylum in the first instance through a non-adversarial administrative interview with a trained asylum officer within USCIS, a process more appropriate for traumatized young applicants.
7. Second, the TVPRA exempts unaccompanied immigrant children from a one-year filing deadline that otherwise applies to asylum applicants. Without that TVPRA exemption, asylum applicants filing later than one year after entering the United States are ineligible for asylum unless they can establish that they merit an exception to the one-year filing deadline.
8. Under a policy USCIS adopted effective June 2013 to implement these TVPRA asylum protections, Plaintiffs, and all other unaccompanied immigrant children seeking asylum in the United States, were entitled to access the TVPRA asylum process once they had been determined to be a UAC upon their initial apprehension by DHS, as long as that determination remained in place when the child initially applied for asylum. Under this 2013 policy, USCIS exercised initial jurisdiction over an unaccompanied immigrant child’s asylum claim even if the applicant had turned 18 or had been reunited with a parent or appointed a legal guardian before applying for asylum.
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9. This rule was subject to a limited exception where the UAC determination had been terminated before the child filed for asylum, by an intervening “affirmative act” of the Department of Health and Human Services (“HHS”), or by the DHS component agencies ICE or U.S. Customs and Border Protection (“CBP”).
10. Moreover, under the 2013 policy, USCIS exercised its initial jurisdiction regardless of whether EOIR had made findings or determinations with respect to the statutory UAC definition or the merits of the asylum claim.
11. In 2019, DHS unlawfully curtailed the permanent protections enacted by Congress in the TVPRA. On June 14, 2019, Defendant USCIS posted a memorandum dated May 31, 2019 (the “2019 Redetermination Memo”) to its website announcing significant changes to USCIS’s implementation of the TVPRA, effective June 30, 2019.1
12. USCIS did not publish the 2019 Redetermination Memo in the Federal Register, and the agency did not invite public comment on any of the new directives set forth in the memorandum.
13. The 2019 Redetermination Memo mandated that, beginning on June 30, 2019, an asylum officer must make an independent factual inquiry to redetermine whether an applicant met the statutory definition of a UAC on their filing date—even if that filing date was years ago, when the prior policy was in effect. Under the 2019 Redetermination Memo, if USCIS determined that the individual no longer satisfied the definition on the date the individual applied for asylum, USCIS would decline jurisdiction over the asylum application. Moreover, based on
1 Ex. 1, U.S. Citizenship and Immigration Services, Updated Procedures for Asylum Applications Filed by Unaccompanied Alien Children (May 31, 2019), https://www.uscis.gov/humanitarian/refugees-asylum/asylum/minor-children-applying-asylumthemselves.
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the same determination, USCIS was also directed to conclude that an applicant was not entitled to the related protection that exempts UACs from the one-year deadline for filing asylum applications.
14. The 2019 Redetermination Memo also required that, if EOIR had explicitly determined that USCIS did not have jurisdiction over an asylum application because it was not one filed by a UAC, the asylum officer would defer to that determination.
15. The 2019 Redetermination Memo thus called for USCIS to defer to intervening determinations by EOIR, abdicating USCIS’s initial jurisdiction over a UAC asylum claim if an immigration court concluded, based on its own factual finding, that USCIS lacks jurisdiction over a child’s case. In this way, the 2019 Redetermination Memo purported to authorize EOIR to preempt the statutory grant to USCIS of initial jurisdiction over an asylum application based solely on EOIR’s own determination of jurisdictional factors and allow EOIR to adjudicate the merits of an asylum claim simply by reaching it more quickly than USCIS. The policy thus undermined the core purpose of the TVPRA to provide procedural protections to vulnerable children seeking asylum.
16. By its terms, the 2019 Redetermination Memo applied to any USCIS decision issued on or after its effective date of June 30, 2019. Thus, the policy was to be implemented retroactively—applying to individuals who already had asylum applications pending before USCIS, even those whom USCIS already interviewed as of June 30, 2019, as well as to others who have relied upon USCIS’s 2013 policy.
17. The 2019 Redetermination Memo marked a drastic change in USCIS policy and a departure from the protections in the TVPRA that profoundly undermines Plaintiffs’ rights, and the rights of other unaccompanied immigrant children who have filed for or plan to file for
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asylum in the United States. Under the policy in place since 2013, Plaintiffs were entitled to seek asylum before USCIS, regardless of any EOIR determination to the contrary, and were relieved from the requirement to show that they either had filed within one year or qualified for an exception to that general deadline. Under the 2019 Redetermination Memo, they will be deprived of their right to seek asylum before USCIS, and they will face an adversarial process in which an ICE prosecutor subjects them to cross examination and advocates for their deportation. Further, Plaintiffs may lose their eligibility to seek asylum entirely by retroactive imposition of a filing deadline that was inapplicable to their applications at the time they were filed.
18. The 2019 policy, in calling for USCIS to defer to EOIR’s jurisdictional determinations, results in EOIR taking action on a case where USCIS holds initial jurisdiction. Defendants have acted to ensure precisely this result: ICE, in its role as prosecutor in immigration court, frequently advocates for EOIR to assert and/or exercise its jurisdiction in these cases so as to deprive USCIS of the opportunity to exercise initial jurisdiction.
19. Following the filing of the initial Complaint in this action on July 1, 2019 and in response to Plaintiffs’ motion for a temporary restraining order (“TRO”) filed the same day, Defendants conceded during the July 19, 2019 hearing in this litigation that the policy set forth in the 2019 Redetermination Memo was unconstitutionally retroactive, offering entry of an order that would “take the retroactivity part of the case off the table.” 7/19/19 Hearing Tr. at p. 6.
20. The Court recognized Plaintiffs’ likelihood of success on the merits of both the retroactivity and procedural claims, and entered a TRO on August 2, 2019 (extended multiple times) and then, on Plaintiffs’ unopposed motion, a preliminary injunction (“PI”) on October 15, 2019, all requiring Defendants to continue to adjudicate UAC asylum cases pursuant to the 2013 policy.
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21. Despite the Court’s TRO and PI, Defendants continued to attempt to displace USCIS’s statutory initial jurisdiction over UAC asylum claims with determinations by the immigration courts.
22. On information and belief, Defendant ICE has a policy or practice of advocating for immigration judges to conclude, contrary to the 2013 policy and despite the TRO and the PI, that applicants who have turned 18 or reunited with a parent before applying for asylum are not within USCIS’s jurisdiction. In so doing, ICE furthers USCIS’s unlawful abdication of jurisdiction over those cases.
23. In making these significant and harmful policy changes that undermine the purpose of and are inconsistent with the TVPRA, without providing notice or opportunity to comment, and by announcing their intent to apply the new policy retroactively, Defendants have violated the TVPRA itself, the Administrative Procedures Act (“APA”), and the constitutional due process rights of children who seek to access the statutory asylum system in the United States.
24. Plaintiffs seek the Court’s intervention so that they and others similarly situated may exercise their right to seek asylum before USCIS and maintain their statutory exemption from the general one-year filing deadline. Defendants’ actions have caused and, unless fully enjoined, will continue to cause serious and irreparable harm to Plaintiffs and to the proposed class. Plaintiffs therefore seek declaratory and injunctive relief from this Court to end these violations and harms.

25. mother at

PLAINTIFFS Plaintiff J.O.P. is an 18-year-old from Guatemala, who currently resides with his
, College Park, Maryland (located in Prince George’s County).

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26. J.O.P. fled Guatemala and came to the United States after witnessing a murder and receiving violent threats.
27. J.O.P. is currently in removal proceedings under 8 U.S.C. § 1229a, INA § 240. 28. On or about November 25, 2015, agents for Defendant Department of Homeland Security determined that J.O.P. is a UAC. 29. J.O.P. subsequently was reunified with his mother. 30. On February 20, 2018, J.O.P. filed his asylum application with USCIS, exercising his right to seek asylum before USCIS based on the policy that has been in place since 2013. He has yet to obtain an interview from USCIS for his asylum application. 31. Plaintiff M.A.L.C. is a 21-year-old from Guatemala, who currently resides at
, Los Angeles, California. 32. M.A.L.C.’s parents were murdered in Guatemala, and thereafter, he continued to experience repeated threats of violence and extortion in Guatemala. M.A.L.C. fled to the United States in August 2016. 33. M.A.L.C. is currently in removal proceedings under 8 U.S.C. § 1229a, INA § 240. 34. In August 2016, agents for Defendant Department of Homeland Security determined that M.A.L.C. is a UAC. 35. On February 14, 2018, when he was 19 years old, M.A.L.C. filed his asylum application with USCIS, exercising his right to seek asylum before USCIS based on the policy in place since June 2013. M.A.L.C. has yet to be interviewed by USCIS on his asylum application. 36. Plaintiff M.E.R.E. is a 20-year-old from El Salvador, who currently resides at
, Temple Hills, Maryland (located in Prince George’s County).
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37. M.E.R.E. fled El Salvador because of abuse, discrimination, and persecution that he experienced based on his sexual orientation.
38. M.E.R.E. is currently in removal proceedings under 8 U.S.C. § 1229a, INA § 240. 39. On or about November 15, 2014, agents for Defendant Department of Homeland Security determined that M.E.R.E. is a UAC. 40. M.E.R.E. subsequently was reunified with his mother. 41. On March 30, 2018, when he was 18 years old, M.E.R.E. filed his asylum application with USCIS, exercising his right to seek asylum before USCIS based on the policy that has been in place since 2013. USCIS has not yet scheduled M.E.R.E. for an asylum interview. 42. Plaintiff K.A.R.C. is a 20-year-old from El Salvador, who currently resides at
d, Gaithersburg, Maryland (located in Montgomery County). 43. K.A.R.C. fled El Salvador because of abuse, discrimination, and persecution that he experienced based on his perceived sexual orientation. 44. K.A.R.C. is currently in removal proceedings under 8 U.S.C. § 1229a, INA § 240. 45. Around May 2016, agents for Defendant Department of Homeland Security determined that K.A.R.C. is a UAC. 46. In the fall of 2017, when K.A.R.C. was 18 years old, he filed his asylum application with USCIS, exercising his right to seek asylum before USCIS based on the policy in place since June 2013. In November 2017, USCIS conducted the asylum interview with K.A.R.C. USCIS has not yet issued a decision in K.A.R.C.’s case. 47. Plaintiff E.D.G. is a 20-year-old from Honduras, who current resides at
, Kansas City, Missouri.
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48. E.D.G. fled Honduras after years of being sexually, physically, and emotionally abused—as well as being targeted by a gang for recruitment and being grievously harmed by that gang for refusing to join.
49. On or about July 4, 2016, agents for Defendant Department of Homeland Security determined that E.D.G. is a UAC.
50. E.D.G. was placed into removal proceedings under 8 U.S.C. § 1229a, INA § 240 on July 5, 2016.
51. In late 2017, when E.D.G. was 18 years old, he filed his asylum application with USCIS, exercising his right to seek asylum before USCIS based on the policy in place since June 2013. On March 6, 2018, USCIS conducted the asylum interview with E.D.G.
52. Before USCIS issued a decision on E.D.G.’s asylum claim, an immigration judge ordered E.D.G. removed on October 10, 2018, after concluding that it had jurisdiction over E.D.G.’s asylum application and denying it on the merits. E.D.G.’s removal order is on appeal before the Board of Immigration Appeals (“BIA”).
53. On July 25, 2019, USCIS rejected jurisdiction over E.D.G.’s asylum application under the 2019 Redetermination Memo because he had not established that he was under 18 years old at the time he filed it. On August 5, 2019, USCIS reopened E.D.G.’s case in compliance with this Court’s TRO.
54. On September 30, 2019, while the Court’s TRO remained in effect, USCIS again rejected jurisdiction over E.D.G.’s asylum application relying on the 2019 Redetermination Memo. USCIS issued a Notice of Lack of Jurisdiction on grounds that the “Immigration Judge made an affirmative act to terminate UAC status on October 10, 2018.”
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55. On November 22, 2019, Plaintiffs’ counsel filed a motion to enforce the preliminary injunction now in effect, seeking an order requiring Defendants to retract USCIS’s September 30, 2019 jurisdictional rejection in E.D.G.’s case and to adjudicate his case under the 2013 policy.
DEFENDANTS 56. Defendant U.S. Department of Homeland Security (“DHS”) is a federal cabinet department responsible for implementing and enforcing the Immigration and Nationality Act (“INA”) (see 8 U.S.C. § 1103) and an “agency” within the meaning of the APA (5 U.S.C. § 551(1)). 57. Defendant Chad Wolf is the Acting Secretary of Homeland Security and therefore the “head” of the Department of Homeland Security. 6 U.S.C. § 112(a)(2). He is charged with administering and enforcing the federal immigration and nationality laws. 8 U.S.C. § 1103(a)(1), (3). He is sued in his official capacity. 58. Defendant U.S. Citizenship and Immigration Services (“USCIS”) is a bureau within DHS (6 U.S.C. § 271) and an “agency” within the meaning of the APA (5 U.S.C. § 551(1)). USCIS is the “agency” that issued the 2019 Redetermination Memo. 59. Defendant Kenneth T. Cuccinelli is the Acting Director of U.S. Citizenship and Immigration Services and therefore the “head” of that agency (6 U.S.C. §§ 113(a)(1)(E) & 271(a)(2)). He is sued in his official capacity. 60. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is a bureau within DHS (6 U.S.C. § 252) and an “agency” within the meaning of the APA (5 U.S.C. § 551(1)). ICE attorneys act as prosecutors before the immigration courts, advocating for the government’s position with respect to, inter alia, an immigration judge’s jurisdiction, the removability of respondents in removal proceedings, and whether a continuance or other
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postponement of the immigration court case is warranted to allow USCIS to adjudicate an application pending before that agency. 6 U.S.C. § 252(c).2
61. Defendant Matthew T. Albence is the Acting Director of U.S. Immigration and Customs Enforcement and is therefore the “head” of that agency (6 U.S.C. §§ 113(a)(1)(G) & 252(a)(2)). He is sued in his official capacity.
JURISDICTION AND VENUE 62. This Court has federal question jurisdiction over Plaintiffs’ complaint under 28 U.S.C. § 1331. It has the authority to issue declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201, 2202; 5 U.S.C. §§ 705, 706(1), 706(2)(A)-(D); and its general equitable powers. 63. The APA provides a cause of action for parties adversely affected by final agency action when “there is no other adequate remedy in a court.” 5 U.S.C. § 704. That condition is met in this case because the 2019 Redetermination Memo is a “final agency action” within the meaning of the statute, as is the declining or preemption of USCIS’s initial jurisdiction over asylum in a particular UAC’s case, and there is no other adequate remedy available in any other court. 64. Venue is proper in this district under 28 U.S.C. § 1391(e)(1) because Defendants are officers or agencies of the United States and one or more Plaintiffs reside in the district within the meaning of 28 U.S.C. § 1391(d). 65. This case is properly assigned to the Southern Division of the District of Maryland because the majority of Plaintiffs reside in that Division. See Local Rule 501.
2 Defendants ICE and Mr. Albence are added in this First Amended Complaint for clarity of pleading and in an abundance of caution, in light of the additional allegations regarding ICE’s role in furthering the unlawful policy of the 2019 Redetermination Memo. Because ICE is an instrumentality of original Defendant DHS, under the control and acting at the direction of original Defendant Acting Secretary of DHS, it would be bound by this Court’s interim orders and final judgment whether or not it and its acting director were separately named.
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FACTUAL BACKGROUND Passage of the TVPRA in 2008 66. Before 2002, the care and placement of unaccompanied immigrant children in the United States was the responsibility of the Office of Juvenile Affairs in the former Immigration and Naturalization Service (“INS”). In 2002, Congress enacted the Homeland Security Act (“HSA”). Pub. L. No. 107-296, 116 Stat. 2153. The HSA created DHS and transferred most immigration functions formerly performed by INS to the newly formed DHS and its components, including USCIS, CBP, and ICE. 67. The HSA defined an “unaccompanied alien child” as a child who: “(A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom—(i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.” HSA 462(g)(2); 6 U.S.C. § 279(g)(2). Congress transferred to the Office of Refugee Resettlement (“ORR”), within HHS, the responsibility for the care of UACs “who are in Federal custody by reason of their immigration status.” HSA 462(a), (b)(1)(A); 6 U.S.C. § 279(a), (b)(1)(A). 68. Six years later, Congress passed the TVPRA, which was signed into law on December 23, 2008 and took effect in March 2009. In addition to measures to combat international and domestic human trafficking, including trafficking of children, the TVPRA recognized the vulnerability of children fleeing their countries of origin to seek protection in the United States, and responded with multiple provisions addressing safe custody and childappropriate procedures for unaccompanied immigrant children. 69. In structuring the TVPRA, Congress placed legal protections for UACs, including provisions on asylum, in a section of the statute titled “Permanent protection for certain at-risk children.” TVPRA § 235(d); see 8 U.S.C. § 1232(d).
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70. Among other safeguards, the TVPRA provides that USCIS has “initial jurisdiction” over a UAC’s asylum application, even where the UAC is in removal proceedings—a deviation from the ordinary rule that “affirmative” asylum before USCIS is only available to those who are not in removal proceedings. TVPRA § 235(d)(7); 8 U.S.C. § 1158(b)(3)(C). Conferring initial jurisdiction on USCIS instead of an immigration judge provides a non-adversarial system more sensitive to the special needs of child immigrants who lack understanding of how to navigate an immigration system designed for adults. Instead of having to be cross-examined in an adversarial courtroom by trained government lawyers (without the right to appointed counsel), a UAC applicant is seen by USCIS asylum officers trained to conduct non-adversarial interviews and apply child-sensitive and trauma-informed interview techniques.
71. Generally, asylum applicants must file their asylum application within one year after entering the United States unless they can prove that they fall within one of two limited exceptions. 8 U.S.C. § 1158(a)(2)(B). Recognizing that children were forced to struggle through a system designed for adults, even though they lack the capacity to understand nuanced legal principles, let alone courtroom and administrative procedures, the second TVPRA protection at issue here makes the one-year filing deadline inapplicable to UACs. TVPRA § 235(d)(7); 8 U.S.C. § 1158(a)(2)(E). Accordingly, a UAC who was unable to file within one year will not be required to demonstrate changed or extraordinary circumstances relating to the delay in filing the application, and that the application was nonetheless filed in a reasonable time. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(5).
72. The TVPRA also requires that federal officials who discover a UAC must transfer the UAC to the custody of HHS within a 72-hour period (absent exceptional circumstances), for
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care and custody. TVPRA § 235(b)(3); 8 U.S.C. § 1232(b)(3). This requirement places UACs under the care of an agency set up to provide for their safety and welfare, rather than an agency whose mission is to enforce immigration laws. For example, HHS contracts with agencies who have social workers on staff who are trained to work with children.
73. Nothing in the TVPRA directs or authorizes any government agency to rescind a determination that a child is a UAC, or to abrogate the asylum procedures that apply to a child determined to be a UAC.
74. In the words of Senator Dianne Feinstein, a co-author of the TVPRA provisions, their purpose was “to ensure that unaccompanied children receive humane and appropriate treatment while in the custody of the U.S. Government”3 and to “give unaccompanied minors access to pro bono legal counsel and someone to look after their best interest.” 154 Cong. Rec. S10886 (daily ed. Dec. 10, 2008). Senator Feinstein explained that:
I believe we have a special obligation to ensure that these children are treated humanely and fairly. Unfortunately, without this legislation, there would be no procedure to make sure that happens. Currently, when a child is apprehended by immigration authorities, that child usually knows nothing about U.S. courts or immigration policies and frequently does not speak English. Id. 75. Congress instructed USCIS, in order to properly administer the TVPRA, to enact “regulations which take into account the specialized needs of unaccompanied alien children and which address both procedural and substantive aspects of handling unaccompanied alien children’s cases.” TVPRA § 235(d)(8); 8 U.S.C. § 1232(d)(8). USCIS has failed to enact any such regulations in the ten years since Congress passed the TVPRA.
3 July 31, 2008 Press Release, available at https://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=7b292e44-b306-86d0a0b4-981389abaf5d.
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Initial Implementation of the TVPRA and the September 2012 Office of the Citizenship and Immigration Services Ombudsman’s Report
76. In 2009, USCIS issued a memorandum instructing asylum officers on the rules to follow for evaluation of asylum applications filed by UACs in removal proceedings. Ex. 2 (March 25, 2009 Memorandum re: Implementation of Statutory Change Providing USCIS with Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children). The memorandum instructs asylum officers that they must make an initial determination as to USCIS’s jurisdiction for all asylum applications filed by UACs in removal proceedings. Id. at 4. Further, according to the 2009 memorandum, asylum officers are to determine whether, at the time of filing, the child was under 18 years of age and unaccompanied. Id. at 4-5. The 2009 memorandum states that “[f]ederal regulations will ultimately be promulgated in order to reflect the procedures established for USCIS initial jurisdiction.” Id. at 1.
77. The procedures set forth in the 2009 memorandum were contrary to the TVPRA, as acknowledged by the Citizenship and Immigration Services Ombudsman (“Ombudsman”).4 On September 20, 2012, the Ombudsman issued a report, titled Ensuring a Fair and Efficient Asylum Process for Unaccompanied Minor Children (the “2012 Ombudsman Report”) (Ex. 3), providing an independent analysis of problems encountered by UACs seeking asylum in the United States, and recommendations to improve the process. The Ombudsman recognized that USCIS had failed to implement the “statutorily required regulations” for UACs seeking asylum.
4 The Citizenship and Immigration Services Ombudsman, established by the Homeland Security Act of 2002, provides independent analysis of problems encountered by individuals interacting with U.S. Citizenship and Immigration Services, and proposes changes to mitigate those problems. See 6 U.S.C. § 272.
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Instead, USCIS had “developed and implemented certain temporary policies and procedures for UAC asylum-seekers.” Id. at 3.
78. To complete its review, the Ombudsman “interviewed USCIS Asylum Division manager and staff at Headquarters and seven of the eight Asylum Offices, EOIR officials, and stakeholders throughout the country.” Ex. 3 at 2. The Ombudsman “also studied case assistance requests and reported incidents submitted directly to [its] office by stakeholders.” Id.
79. According to the Ombudsman, “Congress did not provide language indicating that the filing of an asylum application should trigger a new or successive UAC determinations that could eliminate statutory protections or remove the UAC from [removal] proceedings.” Id. at 5.
80. The Ombudsman also recognized that the “TVPRA’s procedural and substantive protections were designed to remain available to UACs throughout removal proceedings, housing placement, and the pursuit of any available relief. Subjecting a child seeking asylum to multiple UAC determinations as is required by USCIS’ temporary guidance appears at odds with the TVPRA’s express purpose, namely, to provide timely, appropriate relief for vulnerable children.” Id.
81. The Ombudsman recognized that, when a child is placed in removal proceedings, the apprehending entity, whether ICE or CBP, “must make a finding that the child is unaccompanied.” Id. at 5. However, in the period between enactment of the TVPRA and promulgation of the 2013 policy, USCIS routinely revisited determinations that a child was a UAC, inquiring into whether the applicant was a UAC at the date of filing an asylum application and at the date of the asylum interview. Id. at 3-4. Based on such redeterminations, USCIS declined to exercise its initial jurisdiction over some children who had filed applications with USCIS pursuant to the TVPRA provisions. Id. at 6.
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82. In the 2012 Ombudsman Report, the Ombudsman outlined numerous problems that flowed from redetermining UAC status at asylum interviews, including inefficiencies attendant upon scheduling and conducting interviews only to disclaim jurisdiction in nearly half the cases (id. at 6); officers assessing complex parent-child relationships without specialized training (id. at 7); and undermining predictability and uniformity in the handling of children’s cases (id. at 6). The Ombudsman explained that instead of “facilitating expedited, nonadversarial interviews envisioned by Congress,” the USCIS policy of undertaking a redetermination of UAC status at every asylum interview created “delay and confusion.” Id. at 4.
83. Recognizing the deficiencies in this process, the Ombudsman made a number of recommendations “[t]o address confusion related to UAC redeterminations, facilitate improved interview techniques and adjudications, and reduce post-interview processing delays.” Id. at 1-2. As the Ombudsman noted:
A child’s living circumstances or relationship with his or her family may be dynamic, so the child may fall both within and without of the UAC definition while present in the United States. Given this fluidity, as well as inconsistencies in practice by DHS and EOIR, legal advocates believe that the UAC definition itself is too vague and impractical, and that the status, once attached, should remain with a child through the pendency of his or her case. Id. at 4.5 84. The Ombudsman recommended that USCIS accept jurisdiction of an asylum application filed by a child whom a federal agency had previously determined to be a UAC. Id. at 4-5.
5 The Ombudsman’s report quotes an article from the American Immigration Lawyers Association, Immigration Practice Pointers 2011- 2012 Edition, “The ABCs of Representing Unaccompanied Children,” (June 2011) at p. 588.
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85. As the Ombudsman correctly concluded based on its extensive assessment, “[e]liminating the practice of USCIS redetermining UAC status during the asylum interview would also restore a level of fairness that comes from having a predictable and uniform process.” Id. at 6. According to the Ombudsman, the practice of “adopt[ing a] UAC determination made for custody purposes by CBP and ICE . . . will positively affect all minors apprehended and placed into federal custody with the HHS, helping to ensure a consistent process for scores of children who seek asylum in the United States.”6
USCIS Response to the Ombudsman’s Report and the 2013 Kim Memorandum 86. On April 11, 2013, USCIS responded to the Ombudsman’s Report, thanking the Ombudsman “for the opportunity to respond to [the Ombudsman’s recommendation] to ensure a fair and effective asylum process.” Ex. 7 at 1. USCIS recognized that “there is room to improve,” and agreed with the Ombudsman’s recommendation that USCIS should accept jurisdiction of asylum applications filed by children DHS previously determined to be UACs. Id. at 2-3. 87. On May 28, 2013, USCIS issued a memorandum authored by Ted Kim, Acting Chief, Asylum Division, regarding “Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children” (the “2013 Kim Memorandum”) (Ex. 4). The 2013 Kim Memorandum provides procedures for “determining jurisdiction in applications for asylum filed by unaccompanied alien children (UACs) under the initial jurisdiction provision of the [TVPRA].” Ex. 4 at 1.
6 Ex. 5, Annual Report 2013, Citizenship and Immigration Services Ombudsman (June 27, 2013).
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88. The 2013 Kim Memorandum implemented the Ombudsman’s recommendation that USCIS accept jurisdiction of the asylum applications of those children whom a federal agency had already determined met the statutory definition of a UAC. Id. at 2. Under the 2013 Kim Memorandum, “[i]n cases in which CBP or ICE has already determined that the applicant is a UAC, Asylum Offices will adopt that determination and take jurisdiction over the case.” Id. Further, if as of the date of initial filing of the asylum application, that UAC status determination was still in place—not having been terminated by an “affirmative act” of HHS, ICE, or CBP— “USCIS will take initial jurisdiction over the case, even if there appears to be evidence that the applicant may have turned 18 years of age or may have reunited with a parent or legal guardian since the CBP or ICE determination.” Id.
89. The 2013 Kim Memorandum does not refer to EOIR as an agency whose determination would be binding upon USCIS or even relevant to USCIS’s jurisdictional determination.
90. Under the 2013 Kim Memorandum, USCIS is not permitted to defer to an EOIR’s jurisdiction determination.
91. While the 2013 Kim Memorandum was in effect, USCIS asylum officers were not instructed that immigration judges had the authority to make any determinations about UAC status or to terminate UAC findings.
92. Just weeks before issuing the 2019 Redetermination Memo, on May 20, 2019, USCIS confirmed to public stakeholders that the asylum policy and procedures set forth in the 2013 Kim Memorandum remained in effect. Ex. 6 (USCIS Asylum Division Quarterly Meeting Agenda, May 20, 2019) at 3. This was the most recent reaffirmation in a series of public statements to stakeholders in which USCIS confirmed that “[t]he May 28, 2013 Memorandum on
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initial jurisdiction over asylum applications filed by UACs and the related June 2013 policy documents remain in effect.” Id.
93. In reliance on the rules set forth in the 2013 Kim Memorandum, Plaintiffs and other unaccompanied immigrant children similarly situated, filed asylum applications with USCIS prior to June 30, 2019. In anticipation of this Court’s order of injunctive relief, or pursuant to this Court’s TRO and PI, additional unaccompanied immigrant children amenable to USCIS jurisdiction under the 2013 Kim Memorandum filed asylum applications with USCIS on or after June 30, 2019.
The 2019 Redetermination Memo Issued by USCIS 94. On June 14, 2019, USCIS published a memorandum on its website that drastically changed the rules for determining whether a child is eligible to seek asylum before USCIS. The 2019 Redetermination Memo, dated May 31, 2019, is authored by John Lafferty (Chief, Asylum Division) and titled “Updated Procedures for Asylum Applications Filed by Unaccompanied Alien Children” (Ex. 1). Although the memorandum is dated May 31, 2019, USCIS did not publish this memorandum on its website until June 14, 2019. 95. The 2019 Redetermination Memo acknowledges that the asylum policy in place since 2013 allowed “asylum officers to adopt prior UAC determinations made by U.S. Customs and Border Protection (CBP) or U.S. Immigration and Customs Enforcement (ICE) without further factual inquiry, so long as those determinations were still in place on the date of filing the asylum application.” Ex. 1 at 2. 96. Reversing the 2013 policy, the 2019 Redetermination Memo directed that all asylum officers must “mak[e] independent factual inquiries in all cases in order to determine whether the individual met the UAC definition on the date of first filing the asylum application”
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which in turn determines whether USCIS will exercise jurisdiction, and “examine whether the individual was a UAC at the time of first filing for the purposes of determining whether the oneyear filing deadline applies.” Id. The 2019 Redetermination Memo also instructs that if EOIR has explicitly determined that USCIS does not have jurisdiction over an asylum application because it is not one filed by a UAC, the asylum officer is to defer to that determination. Id. at 4 n.5.
97. Under the policy set forth in the 2019 Redetermination Memo, an individual who was previously determined to be a UAC and who applied for asylum with USCIS after turning 18 or reunifying with a parent or legal guardian relying on existing USCIS policy would have their asylum application rejected by USCIS for lack of jurisdiction. The same is true if EOIR had determined that USCIS lacked jurisdiction over the asylum application because it was not filed by a UAC. That individual could also lose eligibility for asylum in any forum due to the retroactive application of the one-year bar on filing.
98. The 2019 Redetermination Memo states that its “updated procedures” “apply to any USCIS decision issued on or after the effective date” of the memorandum (emphasis in original). Id. at 1. The 2019 Redetermination Memo is dated May 31, 2019 and purported to take effect on June 30, 2019, which is 30 calendar days from the date of the memorandum.
99. Under the 2019 Redetermination Memo, an individual who was previously determined to be a UAC, and who applied for asylum relying on the procedures set forth in the 2013 Kim Memorandum, could arrive at an asylum interview to find that USCIS would decline jurisdiction because the asylum officer determined, based on an independent decision or in deference to an EOIR pronouncement, that the applicant was not a UAC at the time of application. Indeed, the 2019 Redetermination Memo called for the same retroactive
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jurisdictional denial in cases interviewed years ago and still awaiting decision when the 2019 Redetermination Memo took effect. In those and other postures, if an asylum officer determines that, at the time the application was filed, the child was over 18 or had a parent or legal guardian in the United States who the asylum officer determines was “available to provide care and physical custody,” or if the asylum officer is aware of an EOIR determination to that effect, then the asylum officer had to decline jurisdiction. For those unaccompanied immigrant children in removal proceedings who applied for asylum when they were 18 or older or after joining a parent or guardian, USCIS will, based on its redetermination, refer the children’s asylum claims to the immigration court where they will await an adversarial process. Moreover, as the CIS Ombudsman noted with reference to the initial 2009 policy, any record made in the USCIS interview is then transmitted to ICE, allowing an ICE attorney to use it to cross-examine the applicant in the adversarial immigration court process. The UAC applicant has no opportunity to challenge those USCIS notes, taken in the course of a process USCIS now claims not to have jurisdiction to conduct.
100. There are many reasons an unaccompanied child may have filed for asylum after one year, after turning 18, or after a parent or legal guardian in the United States became able to take custody of the child.
101. As Congress recognized in passing the TVPRA, unaccompanied immigrant children are particularly unable to access complex immigration systems without the aid of a legal representative, and it could take a child a substantial period of time to find legal representation— if she ever does. The TVPRA’s procedural protections allow a child additional time to find legal representation and access the asylum process. Many unaccompanied immigrant children,
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including one or more of Plaintiffs, find legal representation after turning 18 or more than one year after entry, and subsequently file for asylum before USCIS.
102. Other children may find legal representation, but then pursue a form of immigration relief or protection other than asylum first, knowing that that the TVPRA asylum process remains available. For example, many unaccompanied immigrant children suffered neglect, abandonment, or abuse by a parent that qualifies them for special immigrant juvenile status (“SIJS”) under 8 U.S.C. § 1101(a)(27)(J)—a form of protection that was substantially broadened by the TVPRA—or qualify for forms of relief such as T and U visas for victims of trafficking and other crimes. For many reasons, including speed of processing, ability to avoid revisiting trauma, and availability of visas, a UAC and his or her legal representative may decide to pursue SIJS or another form of potential relief prior to filing for asylum before USCIS.
103. In applying for one of these other forms of relief since 2013, a child applicant could rely on the opportunity to later file for asylum before USCIS, exempt from the one-year filing deadline, and still be entitled to the child-appropriate non-adversarial interview process in the first instance. Then, under the system Congress created, if the child were unsuccessful in the USCIS process, she would have the case referred back to immigration court, where she could again present her asylum evidence to the immigration judge in an adversarial procedure.
104. USCIS has during a period of many months delayed scheduling asylum interviews for unaccompanied child applicants, preventing them from securing relief under the established policy. Upon information and belief, USCIS delayed scheduling interviews in anticipation of the pronouncement of a new policy. Further, USCIS may have delayed interviews and adjudications in anticipation of an effective date such as that of the 2019
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Redetermination Memo, with the effect of applying the policy retroactively to bar otherwise qualified children from benefitting from the protections of the TVPRA.
105. USCIS asserted in the 2019 Redetermination Memo that USCIS adopted the new asylum policy in order to bring USCIS practice in line with a precedential Board of Immigration Appeals (“BIA”) decision regarding jurisdiction over asylum applications. According to USCIS, the 2019 Redetermination Memo was necessary “[t]o ensure USCIS is making these jurisdictional determinations in a manner consistent with Immigration Judge determinations on the same issue.” Ex. 1 at 2.
106. The BIA decision referenced in the 2019 Redetermination Memo, Matter of M-AC-O-, 27 I. & N. Dec. 477 (BIA 2018), does not divest USCIS of its authority to determine whether it has jurisdiction over an asylum application. Indeed, USCIS recognized this in the 2019 Redetermination Memo, stating “both the Immigration Judge and USCIS have authority to make this jurisdictional determination.” Ex. 1 at 2. USCIS also recognized in its May 20, 2019 report that the Matter of M-A-C-O- decision “does not address USCIS determinations about its own jurisdiction. USCIS continues to make its jurisdictional determinations under its own procedures.” Ex. 6 at 3. However, the 2019 Redetermination Memo does state that if EOIR has explicitly determined that USCIS does not have jurisdiction over an asylum application because it is not one filed by a UAC, the asylum officer will defer to that determination. Ex. 1 at 4 n.5.
107. The BIA decision does not mandate any changes to USCIS policy. It does not invalidate the asylum policy set forth in the 2013 Kim Memorandum or direct USCIS to implement new procedures.
108. Nonetheless, through ICE’s advocacy before the immigration courts, Defendants have implemented a policy that abdicates USCIS’s statutorily mandated role of determining and
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taking initial jurisdiction and instead permits EOIR to determine such cases on the merits despite initial jurisdiction lying with USCIS, thus denying UAC applicants the initial non-adversarial hearing to which the TVPRA entitles them. In the absence of affirmative steps by USCIS to give effect to its initial jurisdiction, and/or due to substantial delays in USCIS’s processing of these cases, ICE is regularly in a position to advocate that an immigration court act on a case notwithstanding a pending UAC asylum claim before USCIS. By affirmatively arguing that EOIR has jurisdiction and by opposing requests by applicants that EOIR stay its hand, ICE facilitates USCIS’s abdication of its exercise of initial jurisdiction.
109. Neither the BIA decision nor the 2019 Redetermination Memo undertake any examination of the reasons USCIS adopted the asylum policy set forth in the 2013 Kim Memorandum. Nor do they consider any of the legislative history or congressional intent in enacting the TVPRA.
110. The 2019 Redetermination Memo is a final agency action under 5 U.S.C. § 704. The action “mark[s] the ‘consummation’ of the agency’s decisionmaking process” and it is not “of a merely tentative or interlocutory nature.” Bennett v. Spear, 520 U.S. 154, 178 (1997). The memorandum marks the culmination of USCIS’s process for setting rules governing its jurisdiction and legal consequences will flow from it, as existing asylum applicants will lose the right to seek relief from the asylum office and, in some instances, will have their applications denied as time barred unless they can establish an exception to the bar.
111. For any particular Plaintiff or class member whose asylum application under the TVPRA is rejected by USCIS on jurisdictional grounds, that rejection is itself a final action of USCIS on the case.
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112. For any particular Plaintiff or class member in whose case ICE advocates for EOIR’s exercise of jurisdiction in derogation of USCIS’s initial jurisdiction, ICE acts to bring about the final action of foreclosing a hearing of the claim in a non-adversarial setting and effectively transferring initial jurisdiction of the case to EOIR.
113. The directives in the 2019 Redetermination Memo establish a binding norm and leave asylum officers with no discretion. Specifically, the 2019 Redetermination Memo states, “The asylum officer must evaluate whether the asylum application was filed by a UAC by making an independent factual inquiry as to whether the individual met the UAC definition at the time of first filing the asylum application.” Ex. 1 at 3 (emphasis added). Additionally, “[i]f EOIR has explicitly determined that USCIS does not have jurisdiction over an asylum application because it is not one filed by a UAC, the asylum officer will defer to that determination.” Ex. 1 at 4 n.5 (emphasis added).
114. The 2019 Redetermination Memo imposes new legal burdens on and alters the legal rights and interests of asylum seekers who have previously been determined to be UACs. Specifically, the 2019 Redetermination Memo provides, “As the party invoking USCIS jurisdiction, the individual filing for asylum bears the burden to establish that he or she met the UAC definition, which includes the applicant’s burden to establish his or her age, and that the applicant was unaccompanied, at the time of first filing the asylum application.” Ex. 1 at 3. It also specifically defers to EOIR’s determination that USCIS lacks jurisdiction because the asylum application is not one filed by a UAC. Ex. 1 at 4 n.5.
115. Defendants did not undertake notice-and-comment rulemaking prior to issuing the 2019 Redetermination Memo.
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116. The policy announced in the 2019 Redetermination Memo sets forth legislative rules and is thus not exempt from the APA’s requirements of notice and comment. The 2019 Redetermination Memo reflects a legislative policy judgment, not merely interpretative guidance. Defendants’ Failure to Promulgate Regulations Despite the TVPRA’s Mandate to Do So
117. The TVPRA expressly directs USCIS to promulgate regulations governing the handling of asylum claims by UACs: “Applications for asylum and other forms of relief from removal in which an unaccompanied alien child is the principal applicant shall be governed by regulations which take into account the specialized needs of unaccompanied alien children and which address both procedural and substantive aspects of handling unaccompanied children’s cases.” TVPRA § 235(d)(8); 8 U.S.C. § 1232(d)(8).
118. In the fall of 2011, DHS and USCIS included in the Unified Agenda a proposed rule titled “Application of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 to Unaccompanied Alien Children Seeking Asylum.” RIN 1615AB96.7 The notice indicated that the proposed “rule implements the provisions of the TVPRA” and acknowledged that “[t]he TVPRA mandated promulgation of regulations taking into account the specialized needs of unaccompanied alien children and addressing both procedural and substantive aspects of handling unaccompanied children’s cases.” The agencies did not publish the text of the proposed rule.
119. DHS and USCIS included the same notice in the Unified Agenda again in 2012, Spring 2013, Fall 2013, Spring 2014, Fall 2014, Spring 2015, Fall 2015, Spring 2016, Fall 2016,
7 Available at https://reginfo.gov/public/do/eAgendaViewRule?pubId=201110&RIN=1615AB96.
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Spring 2017, Fall 2017, Spring 2018, and Fall 2018. Yet in the eight years since first including this notice in the Unified Agenda, the agencies have not published a Notice of Proposed Rulemaking, and have made no progress toward promulgating regulations implementing the UAC provisions of the TVPRA.
Plaintiffs Relied on USCIS’s 2013 Policy and the TVPRA and Will Be Deprived of Their Right to Seek Asylum Before USCIS Under the New Policy and Will Be Severely Harmed
120. Plaintiff M.E.R.E. entered the United States when he was 15 years old. Upon apprehension, he was determined by DHS to be a UAC.
121. In reliance on the 2013 policy, M.E.R.E. first sought other forms of protection from removal, ultimately applying for asylum in March 2018 after reaching the age of 18. As of this filing, USCIS has not interviewed M.E.R.E. and his asylum application is still pending.
122. Under the new policy set forth in the 2019 Redetermination Memo, USCIS will decline jurisdiction over M.E.R.E.’s asylum application because he filed after turning 18. M.E.R.E. remains in removal proceedings before an immigration judge wherein an ICE prosecutor may advocate for EOIR jurisdiction and against USCIS jurisdiction. If the immigration judge makes a determination that USCIS does not have jurisdiction over M.E.R.E.’s asylum application, USCIS will reject jurisdiction over M.E.R.E.’s asylum application under the 2019 Redetermination Memo. M.E.R.E. will lose the protections associated with USCIS jurisdiction over his asylum application and instead will be subject to an adversarial process in immigration court where he will be cross-examined about the abuse and persecution he suffered as a child. This will further delay the already extended period of time M.E.R.E. has waited for his asylum application to be decided. The added delay will continue to prevent M.E.R.E. from pursuing his education.
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123. Because of the new policy set forth in the 2019 Redetermination Memo, the government may conclude that M.E.R.E. is ineligible for asylum since he filed his application more than one year after entering the United States.
124. Plaintiff M.A.L.C. entered the United States when he was 17 years old. Upon apprehension, he was determined by DHS to be a UAC.
125. In reliance on the 2013 policy, M.A.L.C. applied for asylum in February 2018, when he was 19 years old. As of this filing, USCIS has not interviewed M.A.L.C. and his asylum application is still pending.
126. Under the new policy set forth in the 2019 Redetermination Memo, USCIS will decline jurisdiction over M.A.L.C.’s asylum application because he filed after turning 18. M.A.L.C. remains in removal proceedings before an immigration judge wherein an ICE prosecutor may advocate for EOIR jurisdiction and against USCIS jurisdiction. If the immigration judge makes a determination that USCIS does not have jurisdiction over M.A.L.C.’s asylum application, USCIS will reject jurisdiction over M.A.L.C.’s asylum application under the 2019 Redetermination Memo. M.A.L.C. will lose the protections associated with USCIS jurisdiction over his asylum application and instead will be subject to an adversarial process in immigration court where he will be cross-examined about the abuse and persecution he suffered as a child. This will further delay the already extended period of time M.A.L.C. has waited for his asylum application to be decided.
127. Further, M.A.L.C. may be deemed ineligible for asylum at all because his application was filed more than one year after he entered the United States.
128. Plaintiff K.A.R.C. entered the United States when he was 17 years old. Upon apprehension, he was determined by DHS to be a UAC.
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129. In reliance on the 2013 policy, K.A.R.C. applied for asylum in the fall of 2017, when he was 18 years old. K.A.R.C. had an asylum interview in November 2017. As of this filing, K.A.R.C. has not received a decision on his asylum application.
130. Under the new rules set forth in the 2019 Redetermination Memo, USCIS will decline jurisdiction over K.A.R.C.’s asylum application because he filed after turning 18. K.A.R.C. remains in removal proceedings before an immigration judge wherein an ICE prosecutor may advocate for EOIR jurisdiction and against USCIS jurisdiction. If the immigration judge makes a determination that USCIS does not have jurisdiction over K.A.R.C.’s asylum application, USCIS will reject jurisdiction over K.A.R.C.’s asylum application under the 2019 Redetermination Memo. K.A.R.C. will lose the protections associated with USCIS jurisdiction over his asylum application and instead will be subject to an adversarial process in immigration court where he will be cross-examined about the physical abuse he suffered at the hands of his father and brother and the rape and threats of physical violence by gang members. This will further delay the already extended period of time K.A.R.C. has waited for his asylum application to be decided. The added delay will prevent K.A.R.C. from pursuing a college education.
131. Further, K.A.R.C. may be deemed ineligible for asylum at all because his application was filed more than one year after he entered the United States.
132. Plaintiff J.O.P. entered the United States when he was 15 years old. Upon apprehension, DHS determined him to be a UAC.
133. In reliance on the 2013 policy, J.O.P. applied for asylum in February 2018, still under the age of 18, but after being reunited with his mother in the United States. As of this filing, J.O.P. has not been scheduled for an asylum interview.
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134. Under the new policy set forth in the 2019 Redetermination Memo, USCIS will decline jurisdiction over J.O.P.’s asylum application because he filed after reuniting with his mother. J.O.P. remains in removal proceedings before an immigration judge wherein an ICE prosecutor may advocate for EOIR jurisdiction and against USCIS jurisdiction. If the immigration judge makes a determination that USCIS does not have jurisdiction over J.O.P.’s asylum application, USCIS will reject jurisdiction over J.O.P.’s asylum application under the 2019 Redetermination Memo. J.O.P. will lose the protections associated with USCIS jurisdiction over his asylum application and instead will be subject to an adversarial process in immigration court where he will be cross-examined about the murder he witnessed and threats he received in his home country. This will further delay the already extended period of time J.O.P. has waited for his asylum application to be decided.
135. Plaintiff E.D.G. entered the United States when he was 17 years old. Upon apprehension, he was determined by DHS to be a UAC.
136. In reliance on the 2013 policy, E.D.G. applied for asylum with USCIS in late 2017, when he was 18 years old. E.D.G. had an asylum interview with USCIS in March 2018. On October 10, 2018, before USCIS issued a decision on E.D.G.’s asylum claim, an immigration judge issued a decision concluding that it had jurisdiction over E.D.G.’s asylum application, denying it on the merits, and ordering E.D.G. removed. E.D.G. appealed his removal order to the BIA, and that appeal remains pending.
137. Under the new rules set forth in the 2019 Redetermination Memo, USCIS rejected jurisdiction over E.D.G.’s asylum application in July 2019 because he had not established that he was under 18 years old at the time he filed it. On August 5, 2019, USCIS reopened E.D.G.’s case in compliance with this Court’s TRO. On September 30, 2019, while the Court’s TRO
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remained in effect, USCIS again rejected jurisdiction over E.D.G.’s asylum application relying on the 2019 Redetermination Memo, this time deferring to the IJ’s October 10, 2018 determination that E.D.G. was not a UAC. Specifically, USCIS issued a Notice of Lack of Jurisdiction on grounds that the “Immigration Judge made an affirmative act to terminate UAC status on October 10, 2018.” On November 22, 2019, Plaintiffs’ counsel filed a motion to enforce the preliminary injunction now in effect, seeking an order requiring Defendants to retract USCIS’s September 30, 2019 jurisdictional rejection and to adjudicate E.D.G.’s case under the 2013 policy.
138. Because of the application of the new rules set forth in the 2019 Redetermination Memo, E.D.G. has lost the protections associated with USCIS jurisdiction over his asylum application. USCIS’s denial of jurisdiction over E.D.G.’s asylum application robs him of a basis upon which to move the BIA to remand his removal proceedings to the IJ to await USCIS’s decision on the asylum application. Had USCIS found jurisdiction over E.D.G.’s asylum application and granted E.D.G. asylum, E.D.G. could have moved the IJ or the BIA to terminate his removal proceedings. USCIS’s delay in adjudicating his asylum claim forced E.D.G. into the painful position of having to testify for the second time to traumatic events that included sexual abuse for years as a child, this time in an adversarial setting that involved cross-examination by a DHS attorney.
Defendants Have Continued to Delay or Obstruct USCIS Adjudication of Properly Filed Cases, Resulting in the Abdication of USCIS’s Exercise of Initial Jurisdiction Through
Delay or Deference to EOIR 139. This Court has issued a temporary restraining order (extended three times) and a preliminary injunction, each of which required Defendants to proceed with “consideration of such case[s] applying the 2013 UAC Memorandum.” Yet, Defendant USCIS has rejected
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jurisdiction over asylum applications where EOIR has wrongly asserted its own jurisdiction based on its own factual determination as to a child’s age or the availability of a parent or guardian prior to the application date.
140. ICE acts as the prosecuting entity in the immigration courts. Rather than acting in furtherance of longstanding USCIS policy regarding the scope of USCIS initial jurisdiction, ICE actively opposes unaccompanied immigrant children’s efforts to hold their asylum claims in removal proceedings in abeyance while those claims are properly before the USCIS asylum office. ICE is a component of Defendant DHS, and therefore subject to this Court’s Orders, yet ICE regularly takes the position in immigration court that EOIR, not USCIS, has jurisdiction over an asylum claim that was properly filed with USCIS, and regularly advocates for the scheduling of an adversarial hearing on that claim in immigration court, rather than agreeing to continuances or other postponement to allow USCIS time to exercise and act on its initial jurisdiction over the claim.
141. Defendants have maintained a policy and practice that erroneously deprives Plaintiffs and the putative class members of USCIS’s statutory initial jurisdiction over their asylum applications, including through USCIS’s failure to act upon pending cases, and in continuing to follow the instruction in the 2019 Redetermination Memo that USCIS defer to EOIR’s determinations of USCIS’s jurisdiction. ICE not only fails to contest such EOIR action but actively opposes immigration court postponements to allow USCIS to exercise its initial jurisdiction. These practices are inconsistent with the TVPRA’s conferral of “initial jurisdiction” to USCIS in those cases.
CLASS ALLEGATIONS 142. Plaintiffs incorporate by reference the preceding allegations of this Complaint.
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143. Plaintiffs bring this action under Federal Rule of Civil Procedure 23(b)(2) on behalf of themselves and a nationwide class of all other persons similarly situated.
144. Plaintiffs seek to represent the following nationwide class: All individuals nationwide who prior to the effective date of a lawfully promulgated policy prospectively altering the policy set forth in the 2013 Kim Memorandum (1) were determined to be an Unaccompanied Alien Child; and (2) who had filed an asylum application that was pending with United States Citizenship and Immigration Services (“USCIS”); and (3) on the date they filed their asylum application with USCIS, were 18 years of age or older, or had a parent or legal guardian in the United States who is available to provide care and physical custody; and (4) for whom USCIS has not adjudicated the individual’s asylum application on the merits. 145. Plaintiffs are each adequate representatives of the proposed class. 146. The proposed class satisfies the requirements of Rule 23(a)(1) because the class is so numerous that joinder of all members is impracticable. 147. On information and belief, there are thousands of individuals who fit within the class. 148. The class meets the commonality requirements of Rule 23(a)(2). The members of the class are all subject to the 2019 Redetermination Memo and will lose their right to proceed before USCIS on the basis of the new policy. This lawsuit raises questions of law common to all members of the class, including whether Defendants have violated the class members’ due process rights; whether the 2019 Redetermination Memo is arbitrary and capricious under the APA; and whether the 2019 Redetermination Memo is unlawful because it was not promulgated pursuant to notice-and-comment as required by the APA. 149. The proposed class meets the typicality requirements of Rule 23(a)(3), because the claims of the representative Plaintiffs are typical of the claims of the class. Plaintiffs and the proposed class share the same legal claims, which assert the same substantive and procedural rights under the due process clause, the APA, and the TVPRA.
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150. The proposed class meets the adequacy requirements of Rule 23(a)(4). The representative Plaintiffs seek the same relief as other members of the class and have identical interests to the class members in vigorously pursuing that relief. In defending their own rights, Plaintiffs will defend the rights of all proposed class members fairly and adequately.
151. The proposed class also satisfies Federal Rule of Civil Procedure 23(b)(2). Defendants have acted on grounds that are generally applicable to each class member. Injunctive and declaratory relief is thus appropriate with respect to the class as a whole.
COUNT I (Administrative Procedure Act – The 2019 Redetermination Memo is Arbitrary,
Capricious, or Otherwise Not in Accordance with Law) 152. Plaintiffs incorporate by reference the preceding allegations of this Complaint. 153. Title 5, U.S. Code § 706(2) authorizes a court to hold unlawful and set aside final agency action found to be arbitrary, capricious, an abuse of discretion (e.g., irrational), or otherwise not in accordance with law, or in excess of statutory jurisdiction or authority. 154. The asylum policy set forth in the 2019 Redetermination Memo is arbitrary, capricious, an abuse of discretion, not in accordance with law, and is inconsistent with the TVPRA, and therefore in violation of 5 U.S.C. § 706(2). 155. The 2019 Redetermination Memo violates the TVPRA because the asylum rules set forth therein are contrary to its plain language. The 2019 Redetermination Memo mandates that all asylum officers must evaluate, in all cases, whether an applicant met the statutory definition of a UAC at the time of filing the asylum application, and that all asylum officers must defer to EOIR’s determination that USCIS lacks jurisdiction over an asylum application because it is not one filed by a UAC. This mandate applies in all cases, even where an individual had previously been determined to be a UAC. These mandates are contrary to the structure and text
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of the TVPRA, which plainly establish that a child’s UAC status determination occurs upon the child’s initial contact with a federal government department or agency and is not subject to redetermination by USCIS, and that once filed, USCIS has initial jurisdiction over the application.
156. The 2019 Redetermination Memo is arbitrary and capricious because, for example, it does not address, nor acknowledge, any of the reasons for adopting the asylum policy in place since 2013 for UACs seeking asylum before USCIS. Defendants have failed to provide any explanation, much less a reasoned explanation, of how the 2019 Redetermination Memo addresses the issues leading to the adoption of the 2013 Kim Memorandum, or why consistency with Board of Immigration Appeals precedent relates to whether a UAC has subsequently been reunited with a parent or assigned a legal guardian.
157. The 2019 Redetermination Memo is also arbitrary and capricious because it fails to consider the reliance interests of children, including Plaintiffs, with pending asylum applications who had relied in good faith on the asylum policy in place since 2013.
158. Notwithstanding the Court’s preliminary injunction, Defendants have perpetuated this arbitrary and capricious policy by advocating for EOIR determinations of UAC status, by delaying USCIS determination of cases and thereby allowing EOIR adversarial merits hearings to go forward without any USCIS adjudication.
COUNT II (The 2019 Redetermination Memo Violates Due Process) 159. Plaintiffs incorporate by reference the preceding allegations of this Complaint. 160. Defendants violate Plaintiffs’ due process rights by retroactively applying the asylum rules set forth in the 2019 Redetermination Memo. Plaintiffs filed for asylum reasonably expecting to benefit from all the protections and rights accorded by the TVPRA to UACs, as
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outlined by the 2013 Kim Memorandum. Yet the 2019 Redetermination Memo will actually penalize the Plaintiffs’ past conduct taken in reliance on USCIS policy in place since 2013.
161. The asylum policy set forth in the 2019 Redetermination Memo changes the legal landscape for child asylum applicants by radically rewriting the terms under which applicants like the Plaintiffs, who have been determined to be UACs, can seek asylum. Pursuant to the asylum policy promulgated by the 2013 Kim Memorandum, USCIS had initial jurisdiction over each of the Plaintiffs’ asylum applications based on DHS’s prior determination that each Plaintiff was a UAC. Without any meaningful notice to the public, USCIS has changed the rules and stated unequivocally that it will apply its new jurisdictional requirements even to applications that were pending with the agency before the new policy’s effective date. Application of the new asylum policy will prevent USCIS from hearing the Plaintiffs’ asylum claims, thereby depriving them of the protections Congress provided for UACs in the TVPRA. By subjecting Plaintiffs to a one-year bar on filing an asylum applications, application of the new asylum policy will render Plaintiffs completely ineligible for asylum unless they are able to carry the burden of establishing one of two narrow exceptions to the bar in immigration court.
162. The 2019 Redetermination Memo violates the procedural protections of the Fifth Amendments’ Due Process Clause. The 2019 Redetermination Memo is therefore “contrary to constitutional right, power, privilege, or immunity” and invalid under 5 U.S.C. § 706(2)(B).
COUNT III (Failure to Follow APA Procedure with the 2019 Redetermination Memo)
163. Plaintiffs incorporate by reference the preceding allegations of this Complaint. 164. Under the Administrative Procedure Act, an agency must provide “[g]eneral notice of proposed rulemaking . . . published in the Federal Register” whenever the agency seeks to promulgate a rule. 5 U.S.C. § 553(b). Exempt from this requirement are “interpretive rules,
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general statements of policy, or rules of agency organization, procedure, or practice.” Id. After the agency has published the required notice, “the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” Id. § 553(c).
165. Defendants did not provide notice of proposed rulemaking, nor did they invite comments from interested persons before issuing the 2019 Redetermination Memo.
166. None of the statutory exceptions to the requirement of notice-and-comment rulemaking is applicable here. See 5 U.S.C. § 553(b).
167. The asylum rules set forth in the 2019 Redetermination Memo are legislative rules, not interpretive rules, because, for example, they effect a substantive change in existing law.
168. The 2019 Redetermination Memo is not a statement of policy that is exempt from public notice, including because it establishes binding rules on all asylum officers without leaving room for any exercise of discretion.
169. The asylum policy set forth in the 2019 Redetermination Memo does not constitute rules of agency organization, procedure, or practice.
170. The May 2019 Policy Memorandum was issued “without observance of procedure required by law” and is invalid under 5 U.S.C. § 706(2)(D).
COUNT IV (Administrative Procedure Act – Failure to Exercise Initial Jurisdiction is Arbitrary,
Capricious, and Otherwise Not in Accordance with Law 171. Plaintiffs incorporate by reference the preceding allegations of this Complaint.
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172. Title 5, U.S. Code § 706(2) authorizes a court to hold unlawful and set aside final agency action found to be arbitrary, capricious, an abuse of discretion (e.g., irrational), or otherwise not in accordance with law, or in excess of statutory jurisdiction or authority.
173. USCIS’s adoption of a policy to defer to an EOIR determination as to whether an asylum applicant is a UAC, as specifically announced in the 2019 Redetermination Memo, is arbitrary and capricious because it departs from the 2013 Kim Memorandum without acknowledgement or adequate explanation and is contrary to the TVPRA. Under the statutory grant of UAC asylum initial jurisdiction in the TVPRA, USCIS must make its own jurisdiction determinations and may not merely defer to another agency’s jurisdictional findings. Under the 2013 Kim Memorandum, UAC asylum applicants are entitled to seek asylum before USCIS, regardless of any EOIR determination to the contrary.
174. A USCIS policy to defer to an immigration judge’s determination as to whether an asylum applicant is a UAC is arbitrary and capricious because it fails to consider the serious reliance interests of asylum applicants who relied on the 2013 Kim Memorandum.
COUNT V (USCIS’s and DHS’s Acts Fail to Follow APA Procedure)
175. Plaintiffs incorporate by reference the preceding allegations of this Complaint. 176. Under the Administrative Procedure Act, an agency must provide “[g]eneral notice of proposed rulemaking . . . published in the Federal Register” whenever the agency seeks to promulgate a rule. 5 U.S.C. § 553(b). Exempt from this requirement are “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.” Id. After the agency has published the required notice, “the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” Id. § 553(c).
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177. USCIS did not provide notice of proposed rulemaking, and did not invite comments from interested persons, before engaging in a policy of deferring to an immigration judge as to whether an asylum applicant qualifies as a UAC, as it announced in the 2019 Redetermination Memo.
178. None of the statutory exceptions to the requirement of notice-and-comment rulemaking is applicable here. See 5 U.S.C. § 553(b).
179. USCIS’s policy was adopted “without observance of procedure required by law” and is invalid under 5 U.S.C. § 706(2)(D).
PRAYER FOR RELIEF For the foregoing reasons, Plaintiffs request that the Court:
a) Declare that the 2019 Redetermination Memorandum is unlawful; b) Vacate the 2019 Redetermination Memorandum; c) Enjoin Defendants DHS, USCIS, and the respective Acting Directors from enforcing or
applying any aspect of the 2019 Redetermination Memorandum; d) Order that Defendants are permanently enjoined and restrained from relying on the 2019
Redetermination Memorandum as a basis to decline jurisdiction over asylum applications, to subject an asylum applicant to the one-year time limit for filing described at 8 U.S.C. § 1158(a)(2)(B), or for any other purpose; e) Enjoin USCIS from deferring to EOIR determinations in assessing its jurisdiction over asylum applications filed by Plaintiffs and members of the proposed class; f) Order that, consistent with the terms of the 2013 Kim Memorandum, with respect to Plaintiffs and members of the proposed class, USCIS shall:
1. Exercise initial jurisdiction over such individuals’ asylum applications; 2. Adjudicate such applications on the merits regardless of whether EOIR has
asserted jurisdiction over the asylum claim; and 3. In conducting such merits adjudications, apply 8 U.S.C. § 1158(a)(2)(E) to
hold such applicants exempt from the one-year time limit for filing asylum applications;
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g) Enjoin Defendants ICE and Albence from ICE advocacy during the immigration court removal proceedings of any Plaintiff or member of the proposed class (including EOIR proceedings before immigration judges and members of the Board of Immigration Appeals) seeking any of the following where such individual’s asylum application is pending before USCIS: 1. Determinations of jurisdictional facts pertaining to age or unaccompanied status; 2. Denials of continuances or other postponements in order to await adjudication of an asylum application that has been or will be filed with USCIS; 3. EOIR exercise of jurisdiction over any asylum claim where USCIS has initial jurisdiction under the terms of the 2013 Kim Memorandum; or 4. Otherwise taking the position in such individual’s removal proceedings that USCIS does not have initial jurisdiction over the individual’s asylum application; and
h) Order that USCIS will retract any adverse decision already rendered in an individual case applying the 2019 Redetermination Memorandum and reinstate consideration of such case under the 2013 Kim Memorandum by a date certain;
i) Enjoin Defendants from taking adverse adjudicatory or enforcement action against Plaintiffs or members of the proposed class during the pendency of this litigation;
j) Grant Plaintiffs their costs in this action, including reasonable attorneys’ fees incurred pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and
k) Award other relief that the Court deems just and proper.
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Dated: December 20, 2019
Respectfully submitted,
/s/ Brian T. Burgess
Brian T. Burgess (Bar No. 19251) Stephen R. Shaw* Goodwin Procter LLP 901 New York Avenue, NW Washington, DC 20001-4432 Phone: 202-346-4000 Fax: 202-346-4444 BBurgess@goodwinlaw.com SShaw@goodwinlaw.com
Elaine Herrmann Blais* Sarah K. Frederick* Kevin J. DeJong* Goodwin Procter LLP 100 Northern Avenue Boston, MA 02210 Phone: 617-570-1000 Fax: 617-523-1231 EBlais@goodwinlaw.com SFrederick@goodwinlaw.com KDejong@goodwinlaw.com
Scott Shuchart* Kids in Need of Defense 1201 L Street, NW, Floor 2 Washington, DC 20005 Phone: 202-318-0595 Fax: 202-824-0702 sshuchart@supportkind.org
Wendy Wylegala* Kids in Need of Defense 1251 Avenue of the Americas (c/o Lowenstein Sandler LLP) New York, NY 10020 Phone: 862-926-2069 Fax: 202-824-0702 wwylegala@supportkind.org

Michelle N. Mendez (Bar No. 20062) Catholic Legal Immigration Network (CLINIC) 8757 Georgia Avenue, Suite 850 Silver Spring, MD 20910 Phone: 301-565-4824 Fax: 301-565-4824 mmendez@cliniclegal.org
Rebecca Scholtz* Catholic Legal Immigration Network (CLINIC) 30 S. 10th Street (c/o University of St. Thomas Legal Services Clinic) Minneapolis, MN 55403 Phone: 651-962-4833 Fax: 301-565-4824 rscholtz@cliniclegal.org
Kristen Jackson* Mary Tanagho Ross* Public Counsel 610 South Ardmore Avenue Los Angeles, CA 90005 Phone: 213-385-2977 Fax: 213-201-4727 kjackson@publicccounsel.org mross@publiccounsel.org
Attorneys for Plaintiffs
* admitted pro hac vice

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 Case 8:19-cv-01944-GJH Document 143 Filed 12/21/20 Page 1 of 55

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

J.O.P., et al.,
Plaintiffs, v.

*

*

*

Case No.: GJH-19-1944

U.S. DEPARTMENT OF

*

HOMELAND SECURITY, et al.,

*

Defendants.

*

* * * * * * * * * * * * *

MEMORANDUM OPINION

Pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. (“APA”), and the

Due Process Clause of the Fifth Amendment to the United States Constitution, a group of

undocumented immigrants who entered the United States as unaccompanied children

(“Plaintiffs”), on behalf of themselves and a class of all others similarly situated, brought this

action against the U.S. Department of Homeland Security (“DHS”) and several of its officials

and components (“Defendants”). Plaintiffs allege that the government unlawfully modified

policies governing treatment of asylum applications by unaccompanied immigrant children

(“UACs”) in a May 2019 Memorandum.

On August 2, 2019, the Court granted Plaintiffs’ Motion for Temporary Restraining

Order (“TRO”), enjoining enforcement of the May 2019 Memorandum, ECF Nos. 54, 55, and on

October 15, 2019, granted Plaintiffs’ consent motion, converting the Order into a preliminary

injunction. ECF Nos. 70, 71. Pending before the Court now is Plaintiffs’ Motion for Class

Certification and Appointment of Class Counsel, ECF No. 117, Plaintiffs’ Motion to Amend the

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Preliminary Injunction, ECF No. 124, a Joint Motion to Stay Summary Judgment Schedule, ECF No. 135, and a Joint Motion for Entry of Parties’ Proposed Protective Order, ECF No. 136.1 No hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). For the following reasons, Plaintiffs’ Motion for Class Certification is granted; Plaintiffs’ Motion to Amend is granted, in part, and denied, in part; the Joint Motion to Stay is granted; and the Joint Motion for Entry of Parties’ Proposed Protective Order is granted. I. BACKGROUND
Because of the complexity of this case and the number of motions now pending before the Court, the Court begins by outlining the procedural history before turning to the statutory and regulatory regime at issue and Plaintiffs’ specific allegations.
A. Procedural Background Plaintiffs J.O.P. (by and through next friend, G.C.P.), M.A.L.C., M.E.R.E., and K.A.R.C. filed a Complaint on July 1, 2019,2 against DHS, its then-Acting Secretary Kevin McAleenan, U.S. Citizenship and Immigration Services (“USCIS”), and USCIS’s Acting Director Kenneth Cuccinelli, alleging that a change in Defendants’ policy with respect to asylum applications filed by unaccompanied alien3 children violated the APA and the Due Process Clause of the Fifth Amendment of the U.S. Constitution. ECF No. 1. Plaintiffs simultaneously filed a Motion for TRO. ECF No. 14. The Court held a hearing on the Motion for TRO on July 19, 2019, ECF Nos. 43, 53, and
1 Also pending is Defendants’ Motion for Extension of Time to Respond to Plaintiffs’ Motion for Class Certification and Appointment of Class Counsel. ECF No. 123. This Motion is granted. 2 Plaintiffs filed motions to seal an unredacted version of their Complaint, ECF No. 5, and to proceed under pseudonyms, ECF No. 12, which the Court granted, ECF Nos. 55, 114. 3 The Court recognizes that “many consider ‘using the term ‘alien’ to refer to other human beings’ to be ‘offensive and demeaning.’ [The Court uses] . . . the term only where necessary ‘to be consistent with the statutory language’ that Congress has chosen and ‘to avoid any confusion in replacing a legal term of art with a more appropriate term.’” See Trump v. Hawaii, 138 S. Ct. 2392, 2443 n.7 (2018) (Sotomayor, J., dissenting) (quoting Flores v. U.S. Citizenship & Immigration Servs., 718 F.3d 548, 551–52 n.1 (6th Cir. 2013)).
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issued a Memorandum Opinion and Order granting the Motion on August 2, 2019, ECF Nos. 54, 55. In its Order, the Court:
a. enjoined and restrained [Defendants] from applying their new asylum eligibility policy, as set forth in USCIS’s May 31, 2019 memorandum, to bar individuals previously determined to be unaccompanied alien children (“UACs”) from seeking asylum before the agency; and b. enjoined and restrained [Defendants] from rejecting jurisdiction over the application of any UAC (as defined in the Homeland Security Act, 6 U.S.C. § 279(g)(2)) under the Trafficking Victims Protection Reauthorization Act (“TVPRA”) whose application would have been accepted under the USCIS policy predating the May 31, 2019 memorandum; . . . [and ordered Defendants to] retract any adverse decision already rendered in an individual case applying the 2019 UAC Memorandum . . . and reinstate consideration of such case applying the 2013 UAC Memorandum[.] ECF No. 55. On August 9, 2019, Defendants filed a Motion for Extension of Time to Comply with Court Order because of logistical challenges in reviewing decisions that may have been rendered under the May 2019 Memorandum. ECF No. 57. Following a teleconference, ECF No. 59, the Court extended the TRO to September 3, 2019, ECF No. 60, and accordingly denied Defendants’ Motion as moot, ECF No. 116. The Court extended the TRO two additional times at the parties’ joint request. ECF Nos. 63, 66. On October 9, 2019, Plaintiffs filed a consent motion to convert the TRO into a preliminary injunction, ECF No. 70, which the Court granted on October 15, 2019, ECF No. 71. Plaintiffs filed an unopposed Motion to File an Amended Complaint on November 21, 2019. ECF No. 74. A month later, on December 20, 2019, Plaintiffs filed the Amended Complaint, adding a new Plaintiff, E.D.G., replacing former Defendant McAleenan with new Acting DHS Secretary, Chad Wolf, and adding as Defendants U.S. Immigration and Customs Enforcement (“ICE”) and ICE’s Acting Director, Matthew T. Albence. ECF No. 91. As with the
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original Complaint, Plaintiffs filed a motion for permission for new Plaintiff E.D.G. to proceed under a pseudonym and omit his home address from the caption of the pleading, ECF No. 92, and a motion to seal a copy of the Amended Complaint containing that information, ECF No. 93. On June 3, 2020, this Court granted all three procedural motions, ECF Nos. 74, 92, 93, and held that Plaintiffs’ Amended Complaint, ECF No. 91, will be treated as the operative pleading for this action. ECF No. 115 at 2, 5;4 ECF No. 116.
On November 22, 2019, Plaintiffs filed a Motion to Enforce the Preliminary Injunction, asserting that Defendants were failing to fully comply with the Court’s Order by continuing to implement some portions of the May 2019 USCIS Memorandum—namely Footnote 5, which directs USCIS asylum officers to defer to Executive Office for Immigration Review (“EOIR”) determinations that an applicant was not an UAC at the time of filing. ECF Nos 75, 76. The Court issued a Memorandum Opinion and Order denying Plaintiffs’ Motion on June 3, 2020. ECF Nos. 115, 116. However, the Court denied Plaintiffs’ Motion without prejudice “to Plaintiffs’ right to move for emergency equitable relief to enjoin the enforcement of the [immigration judge (“IJ”)] deferral policy if Plaintiffs believe such enforcement threatens impending irreparable harm.” ECF No. 115 at 24–25.
Defendants filed a Motion to Dismiss the Amended Complaint on January 3, 2020. ECF No. 101. Through its June 3, 2020 Memorandum Opinion and Order, the Court denied that Motion as well. ECF Nos. 115, 116. Moreover, the Court ordered Defendants to produce an administrative record so that the Court could consider the record before the agency at the time the agency acted. ECF Nos. 115, 116.
Plaintiffs filed a Motion for Class Certification and Appointment of Class Counsel on
4 Pin cites to documents filed on the Court’s electronic filing system (CM/ECF) refer to the page numbers generated by that system.
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June 15, 2020, requesting that this Court certify the following class with named Plaintiffs as class representatives:5
All individuals nationwide who prior to the effective date of a lawfully promulgated policy prospectively altering the policy set forth in the 2013 Kim Memorandum (1) were determined to be an Unaccompanied Alien Child; and (2) who filed an asylum application that was pending with the United States Citizenship and Immigration Services (“USCIS”); and (3) on the date they filed their asylum application with USCIS, were 18 years of age or older, or had a parent or legal guardian in the United States who is available to provide care and physical custody; and (4) for whom USCIS has not adjudicated the individual’s asylum application on the merits. ECF No. 117. Defendants responded in Opposition on July 13, 2020. ECF No. 126. Plaintiffs replied in support of the Motion for Class Certification on July 27, 2020. ECF No. 130. Additionally, on July 7, 2020, Plaintiffs filed a Motion to Amend the Preliminary Injunction, requesting that the Court enjoin Defendants from engaging in three practices that allegedly threaten to irreparably harm prospective class members before the Court has the opportunity to rule on the merits in this case—(1) USCIS’s deferral to IJ determinations that an asylum application was not one filed by a UAC; (2) ICE’s advocacy in immigration courts for IJs to exercise jurisdiction over prospective class members despite the preliminary injunction in this case; and (3) USCIS’s alleged practice of treating agency records that indicate nothing more than that a UAC had turned 18 or been reunited with a parent or legal guardian as an “affirmative act.” ECF No. 124. Defendants responded in Opposition on July 21, 2020. ECF No. 127. Plaintiffs replied in support of the Motion to Amend the Preliminary Injunction on August 4, 2020. ECF No. 134. Finally, the parties have filed two Joint Motions: (1) a Joint Motion to Stay Summary
5 In light of named plaintiff K.A.R.C. being granted asylum, Plaintiffs request that the Court specifically identify remaining named plaintiffs as the class representatives. ECF No. 130 at 7 n.1. Plaintiffs’ revised proposed order reflects this request. ECF No. 130-3.
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Judgment Schedule, ECF No. 135, requesting that briefing on the parties’ motions for summary judgment be stayed pending the resolution of the parties’ disputes regarding the contents of the administrative record; and (2) a Joint Motion for Entry of Parties’ Proposed Protective Order, ECF No. 136. These motions were filed on August 10, 2020, and August 25, 2020, respectively. ECF Nos. 135, 136.
B. Statutory and Regulatory Framework, Initial Complaint, and Enjoined Policy
While the Court has described the statutory and regulatory regime at issue in this case in previous Memorandum Opinions, see, e.g., ECF Nos. 54, 115, it is useful to review it again here. In 2002, Congress enacted the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (“HSA”). Among other provisions, the HSA assigned the care of “unaccompanied alien children who are in Federal custody by reason of their immigration status” to the Director of the Office of Refugee Resettlement of the Department of Health and Human Services (“HHS”). See id. § 462(a), (b), codified at 6 U.S.C. § 279(a), (b). The statute defines “unaccompanied alien child” (“UAC”) as a child who: “(A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom-- (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.” Id. § 462(g), codified at 6 U.S.C. § 279(g).
In 2008, Congress enacted the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”). Pub. L. No. 110-457, 122 Stat. 5044. Among a variety of provisions establishing protections for at-risk immigrant children, the statute provides that any federal agency that apprehends or discovers a UAC must notify HHS within 48 hours and must transfer custody of the child to HHS within 72 hours. Id. § 235(b), codified at 8 U.S.C. § 1232(b)(2), (3). Importantly, the TVPRA also provides that USCIS asylum officers “shall have
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initial jurisdiction over any asylum application filed by an unaccompanied alien child.” Id. § 235(d)(7)(B), codified at 8 U.S.C. § 1158(b)(3)(C). Demonstrating the significance of this provision to the issues raised in this case requires a brief overview of the regime governing asylum claims.
There are two processes by which a UAC can apply for asylum: affirmative and defensive. The affirmative asylum process, overseen by USCIS, occurs when an immigrant, who is present in the U.S. and has been here for less than a year, affirmatively files an asylum application. See 8 U.S.C. § 1158. The application then appears before an asylum officer who conducts a private interview “in a nonadversarial manner.” 8 C.F.R. § 208.9(b). Asylum officers are specially trained by USCIS in “international human rights law, nonadversarial interview techniques, and other relevant national and international refugee laws and principles.” Id. § 208.1(b).
The second process begins when an individual is placed in section 240 removal proceedings in immigration court and raises their asylum claim as a defense to removal.6 Individuals enter section 240 proceedings after receiving a “notice to appear.” Id. § 1229(a). If the applicant has been served, IJs, not USCIS, “shall have exclusive jurisdiction” over the individual’s asylum application during the adversarial immigration court proceedings. 8 C.F.R. § 208.2(a), (b). Immigration courts are operated by EOIR, a DOJ component established by regulation. Id. §§ 1003.0, 1003.9, 1003.10.
UACs are unique among asylum applicants in that, under the TVPRA’s initial jurisdiction provision, USCIS has initial jurisdiction over their applications even when removal proceedings have been initiated. The statute also exempts UACs from the requirement that a
6 Section 240 of the Immigration and Nationality Act (“INA”) concerns “the inadmissibility or deportability of an alien.” 8 U.S.C. § 1229a(a)(1).
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potential asylee file an application within a year of arriving in the United States. See 8 U.S.C. § 1158(a)(2))(B), (E). Therefore, whether an applicant is considered a UAC can have a significant impact on his or her progression through the asylum process—this status determines whether the asylum application is adjudicated by USCIS after a non-adversarial interview or by an IJ in adversarial removal proceedings.
The TVPRA delegates authority to adopt regulations governing UAC asylum applications that “take into account the specialized needs of [UACs] and which address both procedural and substantive aspects of handling [UACs’] cases.” 8 U.S.C. § 1232(d)(8). The statute does not specify which agency should promulgate such rules, however, and to date no agency has done so, leaving the relationship between pre-TVPRA asylum regulations and the statute’s special provisions for UAC applicants somewhat unspecified. USCIS has partially filled this gap with a series of agency memoranda that have addressed, among other issues, if and how asylum officers should assess whether asylum applicants are UACs. The memoranda, as well as other USCIS publications, are included as exhibits and cited in Plaintiffs’ Amended Complaint. See ECF No. 91. The first memorandum, issued March 25, 2009 by USCIS Asylum Division Chief Joseph Langlois (“2009 Langlois Memo”), directed that the agency would assess, both when an asylum application was received and during the applicant’s interview, whether the applicant qualified as a UAC at the time of filing the application. Id. ¶ 76; see ECF No. 91-2 at 5. Such an inquiry was necessary, Chief Langlois explained, because USCIS lacks jurisdiction over applications filed by individuals in removal proceedings that are not UACs. ECF No. 91-2 at 5.
In September 2012, the Citizenship and Immigration Services Ombudsman, an oversight official within DHS, see 6 U.S.C. § 272, issued a report finding that “USCIS’ policy of redetermining UAC status creates delay and confusion.” ECF No. 91-3 at 6. The report used the
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term “redetermination” to describe USCIS’s practice under the 2009 Langlois Memo of reexamining whether each claimed UAC asylum applicant was in fact a UAC and disregarding the earlier UAC determination made by the DHS component that apprehended the applicant— either U.S. Customs and Border Patrol (“CPB”) or ICE—that enabled the individual to file an application with USCIS despite being in removal proceedings. See id. at 4, 7; see also ECF No. 91 ¶ 81. The report noted that USCIS’s redeterminations frequently resulted in the agency rejecting applications for lack of jurisdiction, producing unfairness and unpredictability for applicants, as well as a significant waste of time and resources. ECF No. 91-3 at 8. The Ombudsman further stated that “[s]ubjecting a child seeking asylum to multiple UAC determinations as is required by USCIS’ temporary guidance appears at odds with the TVPRA’s express purpose, namely, to provide timely, appropriate relief for vulnerable children.” Id. at 6. The report thus recommended that USCIS eliminate redeterminations and simply accept and adjudicate the applications of individuals previously determined to be UACs by ICE or CBP. Id. at 4–6; see ECF No. 91 ¶ 84.
USCIS adopted this recommendation in a May 28, 2013 memorandum by Acting Asylum Division Chief Ted Kim (“2013 Kim Memo”), which modified the procedures established in the 2009 Langlois Memo. ECF No. 91-4 at 2. Under the new policy, in cases in which CPB or ICE had already determined that an applicant was a UAC and that determination “was still in place on the date the asylum application was filed,” USCIS would adopt that determination without another factual inquiry. Id. at 2–3. The memorandum further clarified that “[u]nless there was an affirmative act by HHS, ICE or CBP to terminate the UAC finding before the applicant filed the initial application for asylum,” USCIS would adopt the previous determination that the applicant was a UAC “and take initial jurisdiction over the case.” Id. at 3. USCIS would follow this
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procedure and decline to “question the applicant regarding his or her age and whether he or she is accompanied by a parent or legal guardian . . . even if there appears to be evidence that the applicant may have turned 18 years of age or may have reunited with a parent or legal guardian since the CPB or ICE determination.” Id.; see ECF No. 91 ¶¶ 87–88.
Six years later, on June 14, 2019, USCIS published on its website the memorandum at issue in this case, which revised the procedures established in the 2013 Kim Memo. ECF No. 911 at 2. The memorandum (“2019 Redetermination Memo”), which was dated May 31, 2019, discussed a decision by the Board of Immigration Appeals (“BIA”), an appellate body within EOIR that, among other duties, reviews IJ decisions in section 240 proceedings, see 8 C.F.R. § 1003.1(a), (b)(1). ECF No. 91-1 at 3. The 2019 Redetermination Memo explained that in that BIA decision, Matter of M-A-C-O-, 27 I. & N. Dec. 477 (BIA 2018) (“MACO”), the BIA concluded that IJs have jurisdiction to determine whether an individual previously determined to be a UAC, but who turned 18 years old before filing an asylum application, no longer qualifies as a UAC. ECF No. 91-1 at 3 (citing MACO, 27 I. & N. Dec. at 478). If the IJ makes such a finding, the BIA held, the IJ should conclude that the TVPRA’s initial jurisdiction provision no longer applies and that jurisdiction over the application is held solely by the immigration court. Id. (citing MACO, 27 I. & N. Dec. at 478). The memorandum clarified, however, that MACO does not divest USCIS of its authority to determine whether an application was filed by a UAC, with the result that both IJs and USCIS have authority to determine whether USCIS has jurisdiction over a given application. Id.
The 2019 Redetermination Memo then stated the policy change it was implementing: To ensure that USCIS is making these jurisdictional determinations in a manner consistent with Immigration Judge determinations on the same issue under Matter of M-A-C-O-, USCIS is returning to making independent factual inquiries in all cases in order to determine whether the individual met the UAC definition on the
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date of filing the asylum application. This will help prevent incongruous results where USCIS would otherwise have deferred to a prior UAC determination that fails to take into consideration the age and other circumstances of the applicant at the time of filing the application. Id. at 3–4. The memorandum set forth the procedures that an asylum officer should apply when making a determination whether an applicant qualified as a UAC at the time of filing, stating that “[t]he asylum officer must evaluate whether the asylum application was filed by a UAC by making an independent factual inquiry.” Id. at 4. Additionally, citing MACO for the proposition that “EOIR has jurisdiction to determine its own jurisdiction,” the memorandum stated in a footnote (“Footnote 5”) that “[i]f EOIR has explicitly determined that USCIS does not have jurisdiction over an asylum application because it is not one filed by a UAC, the asylum officer will defer to that determination.” Id. at 5 n.5. Finally, the memorandum stated that it becomes effective 30 days from its issuance and that its new procedures apply to “any USCIS decision issued on or after the effective date.” Id. at 2 (emphasis in the original). In their initial Complaint and TRO Motion, Plaintiffs alleged that the 2019 Redetermination Memo’s requirement that USCIS reevaluate whether each claimed UAC asylum applicant was a UAC at the time of filing violated the APA, the TVPRA, and Plaintiffs’ due process rights. ECF No. 1 ¶¶ 123–25, 127–29, 132–37; ECF No. 14 at 2. As described previously, the Court, on August 2, 2019, granted the TRO and barred enforcement of the 2019 Redetermination Memo. ECF Nos. 54, 55. Specifically, the Court enjoined Defendants: (1) “from applying their new asylum eligibility policy, as set forth in USCIS’s May 31, 2019 memorandum, to bar individuals previously determined to be unaccompanied alien children (‘UACs’) from seeking asylum before the agency;” and (2) “from rejecting jurisdiction over the application of any UAC (as defined in the Homeland Security Act, 6 U.S.C. § 279(g)(2)) under the Trafficking Victims Protection Reauthorization Act (“TVPRA”) whose application would
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have been accepted under the USCIS policy predating the May 31, 2019 memorandum.” ECF No. 55 at 1.
The Court also ordered USCIS to “retract any adverse decision already rendered in an individual case applying the 2019 UAC Memorandum [2019 Redetermination Memo] within one week following entry of this Order and reinstate consideration of such case applying the 2013 UAC Memorandum.” Id.7 The basis of the Court’s ruling was the finding that Plaintiffs were likely to succeed on claims that Defendants violated the APA by failing to use notice-andcomment rulemaking to implement the policies in the 2019 Redetermination Memo and by failing to consider the reliance interests created by the 2013 Kim Memo. ECF No. 54 at 8.
C. Original Plaintiffs Plaintiffs in this action allege that they came to the United States as children to escape violence, abuse, and persecution in their home countries. See ECF No. 91 ¶¶ 25–26, 32, 37, 43, 48. Plaintiff J.O.P. is an 18-year-old from Guatemala currently residing with his mother in College Park, Maryland. Id. ¶ 25. J.O.P. fled his home country when he was 15 years old after witnessing a murder and receiving threats of violence. Id. ¶¶ 26, 132. DHS agents determined that he was a UAC on or about November 25, 2015, after which he was reunified with his mother. Id. ¶¶ 28–29. He filed an asylum application with USCIS on February 20, 2018, when he was 17 years old, but he has yet to obtain an interview and is currently in section 240 removal proceedings. Id. ¶¶ 27, 30, 133. Plaintiff M.A.L.C. is 21 years old and is also from Guatemala, where he experienced repeated threats of violence and extortion after his parents were murdered. Id. ¶¶ 31–32. He fled
7 The Court’s later Preliminary Injunction Order, which indefinitely extended the TRO, included the same language with minor immaterial modifications. ECF No. 71 at 1–2.
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to the United States in August 2016 when he was 17 years old and was determined to be a UAC by DHS agents at that time. Id. ¶¶ 32, 34, 124. On February 14, 2018, when he was 19 years old, he filed an asylum application with USCIS. Id. ¶ 35. Currently residing in Los Angeles, California, he has yet to obtain an asylum interview and is now in section 240 removal proceedings. Id. ¶¶ 31, 35.
Plaintiff M.E.R.E. is a 20-year-old currently residing in Temple Hills, Maryland. Id. ¶ 36. He fled his home country of El Salvador at 15 years old because of the abuse, discrimination, and persecution he experienced based on his sexual orientation. Id. ¶¶ 37, 120. On or about November 15, 2014, DHS agents determined that M.E.R.E. was a UAC, although he was subsequently reunified with his mother. Id. ¶¶ 39–40. On March 30, 2018, when he was 18 years old, M.E.R.E. filed an asylum application with USCIS. Id. ¶ 41. He has not yet been scheduled for an interview and is now in section 240 removal proceedings. Id. ¶¶ 38, 41, 122.
Plaintiff K.A.R.C. is 20 years old and currently resides in Gaithersburg, Maryland. Id. ¶ 42. K.A.R.C. is also from El Salvador and fled the country when he was 17 years old because of the abuse, discrimination, and persecution he experienced based on his perceived sexual orientation. Id. ¶¶ 43, 128, 130. In approximately May 2016, DHS agents determined that K.A.R.C. was a UAC. Id. ¶ 45. K.A.R.C. filed an asylum application with USCIS in the fall of 2017 when he was 18 years old and was interviewed in November 2017. Id. ¶¶ 46, 129. On July 1, 2020, USCIS issued a letter to K.A.R.C. granting him asylum. ECF No. 126 at 22 n.3; ECF No. 130 at 7 n.1.
D. Amended Complaint and Motion to Amend the Preliminary Injunction Plaintiff E.D.G. was added to this action in the Amended Complaint. ECF No. 91. E.D.G. is a 20-year-old from Honduras who currently resides in Kansas City, Missouri. ECF No. 91
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¶ 47. E.D.G. fled Honduras when he was 17 years old after years of sexual, physical, and emotional abuse and grievous harm inflicted by a gang whose recruitment efforts he had refused. Id. ¶¶ 48, 135. DHS agents determined that E.D.G. was a UAC on or about July 4, 2016, and he was placed in section 240 removal proceedings the following day. Id. ¶¶ 49–50. E.D.G. filed an asylum application with USCIS in late 2017, when he was 18 years old, and was interviewed on March 6, 2018. Id. ¶ 51. Before a decision was issued, however, an IJ ordered E.D.G. removed on October 10, 2018, after concluding that the immigration court had jurisdiction over E.D.G.’s asylum application and denying the application on the merits. Id. ¶ 52. E.D.G.’s appeal is currently pending before the BIA. Id. On July 25, 2019, in reliance on the 2019 Redetermination Memo, USCIS rejected jurisdiction over E.D.G.’s asylum application because he had not established that he was under 18 years old at the time he filed it. Id. ¶ 53.
The Court’s TRO, barring enforcement of the 2019 Redetermination Memo, was issued on August 2, 2019, ECF No. 55, and USCIS reopened E.D.G.’s case in compliance with the Order on August 5, 2019, ECF No. 91 ¶¶ 53, 137. On September 30, 2019, however, while the TRO remained in effect, USCIS again rejected jurisdiction over E.D.G.’s application. ECF No. 91 ¶ 54. The agency issued to E.D.G. a Notice of Lack of Jurisdiction stating that the “Immigration Judge made an affirmative act to terminate UAC status on October 10, 2018.” Id. ¶ 137. Plaintiffs allege that this decision was made pursuant to Footnote 5 of the 2019 Redetermination Memo, which directs USCIS to defer to EOIR determinations that USCIS lacks jurisdiction over an application because it was not filed by a UAC. Id. ¶¶ 15, 137. Plaintiffs allege in the Amended Complaint and in the Motion to Amend the Preliminary Injunction that Defendants’ deferral to IJ determinations—illustrated by Plaintiff E.D.G.’s experience—is in
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violation of the Due Process Clause and the APA and thus should be enjoined. ECF No. 91 at 159–62, 171–79; ECF No. 124-1 at 18–19.
Plaintiffs further allege in the Amended Complaint that “Defendants have maintained a policy and practice that erroneously deprives” Plaintiffs, and the class of similarly situated UAC asylum applicants that they seek to represent, “of USCIS’s statutory initial jurisdiction over their asylum applications[.]” Id. ¶ 141. Newly added Defendant ICE, Plaintiffs contend, contributes to this deprivation in its role as a prosecutor in immigration courts. Id. ¶¶ 18, 60, 140. According to Plaintiffs, ICE maintains a policy or practice of advocating for IJs to conclude that applicants who have turned 18 or reunified with a parent before applying for asylum are not within USCIS’s jurisdiction. Id. ¶ 22.
Specifically, Plaintiffs assert that ICE attorneys argue before IJs that EOIR should assert its jurisdiction in such cases in order to deprive USCIS of the opportunity to exercise initial jurisdiction, given the IJ deferral policy in the 2019 Redetermination Memo. Id. ¶¶ 18, 108. Further, Plaintiffs allege that ICE prosecutors actively oppose in removal proceedings efforts by UACs to delay IJ consideration of their asylum claims while USCIS considers them. Id. ¶ 140. Instead, ICE advocates for scheduling IJ hearings on the asylum claims and actively opposes continuances or postponements. Id. ¶¶ 140–41. Plaintiffs allege that this advocacy before IJs is directly related to USCIS’s decision to defer to IJ jurisdictional determinations, evidencing a concerted, cross-agency strategy of attempting to evade or minimize the impact of the TVPRA’s initial jurisdiction provision for UACs, and thus should be enjoined. Id. ¶¶ 18, 141; see also ECF No. 124-1 at 21–23.
Plaintiffs illustrate ICE’s alleged behavior by introducing proposed class member J.S.G.C. in the Motion to Amend the Preliminary Injunction. ECF No. 124-1 at 10. J.S.G.C. is an
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18-year-old from Mexico. Id.; ECF No. 124-5 ¶ 2. DHS classified J.S.G.C. as a UAC when he entered the United States on June 26, 2019, but later released J.S.G.C. to the care of his mother on his eighteenth birthday. ECF No. 124-1 at 10; ECF No. 124-5 ¶¶ 3–4. In August 2019, DHS served J.S.G.C. with a Notice to Appeal and placed him in removal proceedings. ECF No. 124-1 at 10; ECF No. 124-5 ¶ 5. On December 20, 2019, J.S.G.C.’s counsel filed an asylum application with USCIS on his behalf. ECF No. 124-1 at 10; ECF No. 124-5 ¶ 6. His application remains pending, but USCIS has not scheduled an asylum interview for J.S.G.C. yet. Id.
At a February 12, 2020, master calendar hearing in immigration court, J.S.G.C.’s counsel moved, in reliance on this Court’s preliminary injunction order, to hold J.S.G.C.’s removal proceedings in abeyance while USCIS adjudicated his asylum application. ECF No. 124-1 at 10; ECF No. 124-5 ¶¶ 8, 10. The ICE Assistant Chief Counsel filed an opposition to J.S.G.C.’s motion in April 2020, arguing that USCIS does not have initial jurisdiction over J.S.G.C.’s asylum application under MACO because J.S.G.C. filed his asylum application with USCIS after he turned 18 years old. ECF No. 124-1 at 10–11; ECF No. 124-5 ¶¶ 11–12. The ICE Assistant Chief Counsel dismissed J.S.G.C.’s counsel’s arguments regarding this Court’s preliminary injunction as reliance on “an internal USCIS memorandum[] and . . . district court decisions from other jurisdictions, none of which bind the Immigration Judge[.]” ECF No. 124-7 at 4. On April 16, 2020, the immigration judge denied J.S.G.C.’s motion, explicitly relying on ICE’s arguments against USCIS’s initial jurisdiction. ECF No. 124-1 at 11; ECF No. 124-5 ¶ 13; ECF No. 124-8 at 3.8
Finally, in the Motion to Amend the Preliminary Injunction, ECF No. 124, Plaintiffs
8 However, through further motion practice based on his pursuit of an additional form of relief (Special Immigrant Juvenile Status), on June 23, 2020, J.S.G.C.’s counsel persuaded the judge to place his case on the status docket. ECF No. 124-1 at 11; ECF No. 124-5 ¶ 15.
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allege additional problematic behavior by Defendants that is indicative of Defendants’ policy and practice of depriving Plaintiffs, and the proposed class of others similarly situated, of USCIS’s statutory initial jurisdiction over their asylum applications. Specifically, Plaintiffs claim that “Defendant USCIS has adopted a practice of treating agency records, indicating nothing more than that a UAC has turned 18 or been reunited with a parent or legal guardian, as an ‘affirmative act’ even though that interpretation is at odds with the 2013 Kim Memo and the asylum applicants are never made aware of any putative redetermination.” ECF No. 124-1 at 6. Plaintiffs claim that this behavior—like USCIS’s deferral to IJ determinations and ICE’s advocacy in immigration courts for IJs to exercise jurisdiction over prospective class members despite the preliminary injunction in this case—is a back door method of effectuating the policy goal outlined in the 2019 Redetermination Memo while maintaining that USCIS is now operating under this Court’s Order to revert to the 2013 Kim Memo.
Plaintiffs further illustrate Defendants’ actions through the introduction of a prospective class member, L.M.Z. ECF No. 124-1 at 11. L.M.Z. is a 9-year-old from Mexico who entered the United States on or about May 20, 2018. Id.; ECF No. 124-9 ¶¶ 2–3. Upon his entry, Defendant DHS determined that L.M.Z. was a UAC, issued him a Notice to Appear, and placed him in removal proceedings in immigration court. ECF No. 124-1 at 11; ECF No. 124-9 ¶¶ 3–4. HHS released L.M.Z. to the care of his mother on or about June 8, 2018. ECF No. 124-1 at 11; ECF No. 124-9 ¶ 5. On February 8, 2019, while his removal proceedings were pending in immigration court, L.M.Z. filed his asylum application with USCIS. ECF No. 124-1 at 12; ECF No. 124-9 ¶ 7.
On February 5, 2020, L.M.Z. appeared with counsel for his scheduled asylum interview with USCIS. ECF No. 124-1 at 12; ECF No. 124-9 ¶¶ 9–10; ECF No. 124-13 ¶ 7. The asylum
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officer did not ask any questions about the merits of L.M.Z.’s asylum claim, and, instead, asked a series of questions about the care provided by his mother. ECF No. 124-1 at 12; ECF No. 124-13 ¶¶ 7–8. The officer ended the interview following those questions, stating that she was making a final factual finding that L.M.Z. was not a UAC. ECF No. 124-1 at 12; ECF No. 124-13 ¶ 8. L.M.Z.’s counsel informed the officer that USCIS must exercise jurisdiction under the 2013 Kim Memo, as affirmed by this Court’s Preliminary Injunction Order, but the officer, after conferring with her supervisor, refused to complete the interview. ECF No. 124-1 at 12; ECF No. 124-13 ¶ 8.
On March 13, 2020, USCIS issued a “Notice of Lack of Jurisdiction (Non-UAC),” denying jurisdiction over L.M.Z.’s case. ECF No. 124-1 at 12; ECF No. 124-9 ¶ 12. In the asylum officer’s declaration, she stated that she “reviewed the comments tab in the ENFORCE Alien Removal Module (EARM) and determined that ICE had taken affirmative action on August 14, 2018 that terminated the prior UAC designation.” ECF No. 125-5 ¶ 6. On that date, an ICE agent entered a notation in the computer system that “[s]ubject is no longer designated a UAC under the TVPRA as of date of release to sponsor-mother- on 06/08/2018.” Id. Plaintiffs contend that such a notation is not an “affirmative act” as described in the 2013 Kim Memo, and USCIS’s “litigation-inspired reinterpretation . . . is substantively indistinguishable from the 2019 Redetermination Policy that the Court enjoined[.]” ECF No. 124-1 at 24. Thus, Plaintiffs argue that “Defendants’ practice of treating a mere recognition [in a government database] that UAC had turned 18 or been reunited with a parent or legal guardian” as an “affirmative act” violates the Due Process Clause and the APA and should thus be enjoined. ECF No. 124-1 at 24–27. II. DISCUSSION
The Court discusses the parties’ pending motions below separately and in the order they
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were filed for maximum clarity. A. Plaintiffs’ Motion for Class Certification and Appointment of Class Counsel A class action allows representative parties to prosecute not only their own claims, but
also the claims of other similarly situated individuals. Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 318 (4th Cir. 2006). “Chief among the justifications for this device is its efficiency[.]” Id. Adjudication of a properly-constituted class action “saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion.” Id. (alteration in original) (quoting Califano v. Yamasaki, 442 U.S. 682, 701 (1979)). “Class certification is strictly a procedural matter, and the merits of the case at stake are not to be considered when deciding whether to certify a class.” Hewlett v. Premier Salons Int’l, Inc., 185 F.R.D. 211, 214 (D. Md. 1997) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974)).
Class certification is governed by Fed. R. Civ. P. 23, which provides a two-step framework for certifying a class. First, the proposed class must satisfy the four prerequisites identified in Rule 23(a): (1) the class is so numerous that joinder of all members is impracticable (“numerosity”); (2) there are questions of law or fact common to the class (“commonality”); (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (“typicality”); and (4) the representative parties will fairly and adequately protect the interests of the class (“adequate representation”). Fed. R. Civ. P. 23(a). If those requirements are satisfied, the action must further qualify for one of the three categories of classes identified in Rule 23(b): (1) prosecuting separate actions would create a risk of inconsistent or varying adjudications or impair the ability of nonparties to protect their interests; (2) final injunctive or declaratory relief is appropriate; or (3) questions of law or fact common to all class members
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predominate over any questions affecting only individual members, and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b).
In addition to the two-step framework expressly laid out in Rule 23, the Fourth Circuit has “repeatedly recognized that Rule 23 contains an implicit threshold requirement that the members of a proposed class be ‘readily identifiable.’” EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014) (quoting Hammond v. Powell, 462 F.2d 1053, 1055 (4th Cir. 1972)). Other circuits have described this rule as an “ascertainability” requirement. Id. “However phrased, the requirement is the same. A class cannot be certified unless a court can readily identify the class members in reference to objective criteria.” Id.
1. Readily Identifiable Defendants contend that Plaintiffs’ class definition fails to meet the “ascertainability” requirement because “identifying who did not meet the UAC definition at the time of filing their asylum application—a pivotal element of Plaintiffs’ proposed class definition—entails substantial administrative difficulties[,]” and because “Plaintiffs’ class definition lacks sufficient clarity to even identify such relevant class.” ECF No. 126 at 11. Plaintiffs’ responding argument is twofold: (1) the ascertainability threshold does not apply to Rule 23(b)(2) classes; and (2) even if it did, the proposed class is ascertainable. ECF No. 130 at 7, 11. The Court addresses both arguments below.
a. The “Readily Identifiable” or “Ascertainability” Standard Applies to Class Certification under Fed. R. Civ. P. 23(b)(2) Under Fourth Circuit Precedent
The Fourth Circuit first adopted the threshold requirement that members of a proposed class be “readily identifiable” in Hammond, 462 F.2d at 1055. The Fourth Circuit, without discussion, concluded in Hammond that “the class [was] adequately delineated” and that “[a]t the
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time of judgment the individual members of the class [would] be readily identifiable.” Id. The Fourth Circuit later explained that this “readily identifiable” threshold requirement is implicit in Rule 23. In re A.H. Robins Co., Inc., 880 F.2d 709, 728 (4th Cir. 1989) (“Though not specified in the Rule, establishment of a class action implicitly requires . . . that there be an identifiable class”). It was not until EQT Production Co., 764 F.3d 347, however, that the Fourth Circuit expounded on the meaning of the “readily identifiable” requirement.
In EQT Production Co., the Fourth Circuit vacated the class certification decision of the district court and remanded the case for reconsideration of the ascertainability issues, concluding that the district court had previously “failed to rigorously analyze whether the administrative burden of identifying class members . . . would render class proceedings too onerous.” 764 F.3d at 358. The Fourth Circuit explained “[a] class cannot be certified unless a court can readily identify the class members in reference to objective criteria.” Id. (citing Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 593 (3d Cir. 2012); Crosby v. Soc. Sec. Admin. of U.S., 796 F.2d 576, 579–80 (1st Cir. 1986)). Specifically, although “plaintiffs need not be able to identify every class member at the time of certification[,] . . . ‘[i]f class members are impossible to identify without extensive and individualized fact-finding or ‘mini-trials,’ then a class action is inappropriate.” Id. (quoting Marcus, 687 F.3d at 593). EQT Production Co. has come to stand for the proposition that the goal of the “readily identifiable” requirement is “to define a class in such a way as to ensure that there will be some ‘administratively feasible [way] for the court to determine whether a particular individual is a member’ at some point.” Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 658 (4th Cir. 2019) (quoting EQT Prod. Co., 764 F.3d at 358). Moreover, opinions of this Court have further expounded that a “plaintiff cannot merely identify a mass of data which could aid the process of identifying class members[,] . . . the Plaintiff must also provide an efficient
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method of using this information.” Spotswood v. Hertz Corp., No. RDB-16-1200, 2019 WL 498822, at *6 (D. Md. Feb. 7, 2019).
While not all Circuits agree with the Fourth Circuit’s articulation of the ascertainability requirement, see, e.g., In re Petrobras Sec., 862 F.3d 250, 264 (2d Cir. 2017) (“conclud[ing] that a freestanding administrative feasibility requirement is neither compelled by precedent nor consistent with Rule 23”); Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1123 (9th Cir. 2017) (declining to interpret Rule 23 to require that class representatives “demonstrate that there is an ‘administratively feasible’ means of identifying absent class members”); Mullins v. Direct Digital, LLC, 795 F.3d 654, 672 (7th Cir. 2015) (“declin[ing] Direct Digital’s invitation to adopt a heightened ascertainability requirement” and instead holding that “[d]istrict courts should continue to insist that the class definition satisfy the established meaning of ascertainability by defining classes clearly and with objective criteria”), several Circuits have adopted a similar administrative feasibility interpretation of the threshold requirement, see, e.g., Cole v. City of Memphis, 839 F.3d 530, 541 (6th Cir. 2016) (“we adopted the ascertainability requirement noting that certification necessitated ‘a class description [that is] sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member’” (internal citations omitted)); Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015) (“The ascertainability inquiry is two-fold, requiring a plaintiff to show that: (1) the class is defined with reference to objective criteria; and (2) there is a reliable and administratively feasible mechanism for determining whether putative class member fall within the class definition.” (internal quotation marks omitted)); Karhu v. Vital Pharm., 621 F. App’x 945, 946 (11th Cir. 2015) (“a class is not ascertainable unless the class definition contains objective criteria that allow for class members to be identified in an administratively feasible way”); Crosby, 796 F.2d at 580
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(requiring that the “description of class . . . be sufficiently definite so that it is administratively feasible to determine whether a particular individual is a member”).
Yet, of the Circuits that have espoused a heightened ascertainability requirement similar to that of the Fourth Circuit’s, the First, Third and Sixth Circuits have said this administrative feasibility requirement does not apply in the context of certification under Fed. R. Civ. P. 23(b)(2). See, e.g., Cole, 839 F.3d at 542 (“a judicially created implied requirement of ascertainability—that the members of the class be capable of specific enumeration—is inappropriate for (b)(2) cases” (emphasis in original)); Shelton v. Bledsoe, 775 F.3d 554, 561 (3d Cir. 2015) (same); Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972), abrogated on other grounds by Gardner v. Westinghouse Broad. Co., 437 U.S. 478 (1978) (“Although notice to and therefore precise definition of the members of the suggested class are important to certification of a subdivision (b)(3) class, notice to the members of a (b)(2) class is not required and the actual membership of the class need not therefore be precisely delimited.”). In reaching this conclusion, these courts have observed that the purposes for which courts created the heightened ascertainability requirement are absent in (b)(2) actions. “[A]scertainability is a requirement tied almost exclusively to the practical need to notify absent class members and to allow those members a chance to opt-out[,]” however, unlike (b)(3) classes, (b)(2) class members are not entitled to such notice and opportunity to opt-out. Cole, 839 F.3d at 541 (citing Marcus, 687 F.3d at 593); see also Yaffe, 454 F.2d at 1366. Thus, “the practical efficiencies that come with knowing the precise membership of the class are nonexistent” in a (b)(2) action. Id.; see also Shelton, 775 F.3d at 560–61. These courts also have observed, in reaching their conclusion, that, “because a remedy obtained by one member [of a (b)(2) class] will naturally affect the others, the identities of individual class members are less critical in a (b)(2) action[.]” Shelton, 775 F.3d at
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561; see also Cole, 839 F.3d at 542. “If relief is granted . . . the defendants are legally obligated to comply, and it is usually unnecessary to define with precision the persons entitled to enforce compliance, since . . . the representative plaintiffs would be available to seek . . . relief if necessary.” Shelton, 775 F.3d at 561 (internal quotations omitted) (quoting Rice v. City of Phila, 6 F.R.D. 17, 19 (E.D. Pa. 1974)). Lastly, these courts support their conclusion by citing to an Advisory Committee note to Fed. R. Civ. P. 23 that lists as an example of a (b)(2) class “various actions . . . where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.” Id. (emphasis in original) (citing Fed. R. Civ. P. 23); see also Cole, 839 F.3d at 542; Yaffe, 454 F.2d at 1366. Such a class would undoubtedly fail an administrative feasibility requirement, and thus the courts conclude such a requirement must not apply to (b)(2) actions. Shelton, 775 F.3d at 561.
Plaintiffs now ask this Court to hold that the Fourth Circuit’s interpretation of the “readily identifiable” threshold requirement aligns with that of the First, Third, and Sixth Circuits and thus to hold that the heightened ascertainability requirement outlined in EQT Production Co. does not apply to Plaintiffs’ request to certify a class under Rule 23(b)(2). ECF No. 130 at 7–11. The problem with this request, however, is that it would not square with the Fourth Circuit’s statements on the issue.
It is fair to say that the Fourth Circuit has not explicitly discussed whether the requirement that plaintiffs identify an administratively feasible way to identify class members should apply with equal force regardless of whether plaintiffs are attempting certification under Rule 23(b)(1), (2), or (3). But EQT Production Co., 764 F.3d 347, at least suggests that it does. In EQT Production Co., the Fourth Circuit discussed ascertainability with respect to the plaintiffs’ “ownership classes” for which plaintiffs sought class certification under both Rules
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23(b)(2) and (3). See 764 F.3d at 357. Specifically, the classes that the Fourth Circuit ultimately ordered the district court to reconsider on ascertainability grounds sought “a declaration that the class members [were] true owners of CBM, as well as payment of the royalties they believe [defendants] have improperly escrowed or withheld.” Id. at 358 (emphasis added). The Fourth Circuit did not suggest a different analysis for each rule. Nor does the Fourth Circuit’s expressed fear that, without an ascertainable class, it will “have little conception . . . of who may be bound by a potential merits ruling[,]” id. at 359–60, distinguish between rulings that involve declaratory relief, covered by Rule 23(b)(2), and rulings rewarding royalties or other individualized relief.
Despite the lack of explicit guidance on this issue, it appears that the Fourth Circuit’s administrative feasibility interpretation of ascertainability applies equally to all classes regardless of the section of Rule 23(b) under which certification is pursued. While the Fourth Circuit may eventually decide to align with the reasoning of the First, Third, and Sixth Circuits and hold that the administrative feasibility requirement is inappropriate in the context of Rule 23(b)(2) because the purposes for which the requirement was created are absent; it has not yet done so. Based on the Court’s reading of EQT Production Co., the threshold requirement of ascertainability that is implicit in Rule 23 applies to Plaintiffs’ proposed class.
b. Plaintiffs’ Proposed Class is Readily Identifiable or Ascertainable
Although the ascertainability requirement applies to Plaintiffs’ proposed class under Fourth Circuit precedent, Plaintiffs’ class satisfies this requirement. Defendants present two arguments to the contrary: (a) “identifying who did not meet the UAC definition at the time of filing their asylum application . . . entails substantial administrative difficulties[,]” ECF No. 126 at 11; and (b) the class “definition is too vague to enable the court to identify a relevant class[,]” id. at 15. This Court will address each argument in turn.
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i. Administrative Difficulties Defendants first argue that Plaintiffs’ proposed class is not ascertainable because “identifying who did not meet the UAC definition at the time of filing their asylum application . . . entails substantial administrative difficulties.” ECF No. 126 at 11. However, Defendants’ argument ignores the circumstances of this case and the context in which class members would need to be identified. The implicit prerequisite in Rule 23 that a class must be ascertainable stems from the requirement that a class must exist. See 7A Charles Alan Wright, et al., Federal Practice and Procedure § 1760 (3d ed. 2020). “Whether a class exists is a question of fact that will be determined on the basis of the circumstances of each case.” Id. A court must analyze whether the members of a proposed class are readily identifiable in the context of the class proceedings at issue. See EQT Production Co., 764 F.3d at 358. The relevant inquiry is whether “the administrative burden of identifying class members in the [instant case] would render class proceedings too onerous.” Id. (emphasis added). The answer here is no. As discussed above, under Fourth Circuit precedent “[t]he goal [of the ascertainability requirement] is not to ‘identify every class member at the time of certification,’ but to define a class in such a way as to ensure that there will be some ‘administratively feasible [way] for the court to determine whether a particular individual is a member’ at some point.” Krakauer, 925 F.3d at 658. As Plaintiffs point out, “this assessment is not made for mere curiosity, but in order to ensure compliance with the Court’s orders.” ECF No. 130 at 11. In a “Rule 23(b)(2) action, notice is not required, and the requested relief (vacatur of the [2019 Redetermination Memorandum] and a declaration of its invalidity) will be the same for all class members[,]” decreasing the likelihood that any individualized assessment of precise class membership will be
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necessary. Planned Parenthood of Md., Inc. v. Azar, No. CV CCB-20-00361, 2020 WL 3893241, at *5 (D. Md. July 10, 2020) (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 362 (2011) (“The Rule provides no opportunity for (b)(1) or (b)(2) class members to opt out, and does not even oblige the District Court to afford them notice of the action.”)). Moreover, because the members of Plaintiffs’ proposed class do not seek any form of monetary damages, the probability that it will be necessary to identify particular individuals as class members is further reduced. Id. at *5 n.9.
Nevertheless, “[i]t is possible that the court might at some point need to decide whether a specific individual is a class member and bound by the court’s judgment or has the power to enforce non-compliance with the judgment.” Id. at *5. In this case, however, when that time comes, it will likely be in the context of one of four scenarios: (1) USCIS denies jurisdiction over an asylum applicant after determining that at the time of application the applicant did not qualify as a UAC; (2) USCIS defers to an IJ’s determination that an asylum applicant was not an UAC at the time of filing and thus denies jurisdiction over the asylum application; (3) ICE advocates that an IJ exercise jurisdiction over an asylum applicant because the applicant was not an UAC at the time of filing; or (4) USCIS denies jurisdiction over an asylum applicant that was previously determined to be a UAC after observing a notation in a government database indicating that the applicant was not an UAC at the time of filing. In all four of these scenarios, by the time the issue of class membership arises, Defendants will already have made, and documented in their records, the determinations which Defendants complain will involve “extremely complex factual issue[s]” and thus are not “administratively feasible[,]” ECF No. 126 at 13—i.e., whether the asylum applicant qualified as a UAC at the time of application..
The circumstances of this case are therefore unlike the situation in EQT Production Co.,
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764 F.3d 347, the case on which Defendants heavily rely. In EQT Production Co., the Fourth Circuit remanded the case for the district court to determine whether the proposed class—“(1) all persons or their successors, (2) whom [defendants] have identified as being the owners of the gas estate in a tract underlying a [coalbed methane gas (“CBM”)] drilling unit, (3) whose interest in the CBM is ‘in conflict’ because a different person owns the coal estate in the same tract”—was ascertainable. Id. at 355, 360. The district court had concluded that the court could identify class members in reference to ownership schedules listing all potential interest holders, but the Fourth Circuit noted that some of the ownership schedules were twenty years old and did not reflect changes in ownership such that ownership would have to be resolved based on land records, “a complicated and individualized process.” Id. at 353, 359. In contrast, here “[t]here is no need for ‘extensive and individualized fact-finding or ‘mini-trials’’ to determine who [met the definition of an UAC at the time of their asylum application].” Planned Parenthood of Md., Inc., 2020 WL 3893241 at *6 (quoting EQT Prod. Co., 764 F.3d at 358). Rather, by the time the inquiry occurs, the court need only to look to Defendants’ records. See id.
ii. Vagueness Defendants next argue the proposed class fails the threshold ascertainability requirement because the class “definition is too vague to enable the court to identify a relevant class.” ECF No. 126 at 15. This argument is broken into several parts, all of which are unavailing. Defendants first claim that Plaintiffs’ class is too vague to satisfy ascertainability because “Plaintiffs fail to identify by whom the UAC determination need be made, under what authority, and through which means of documentation in order to identify those individuals who ‘were determined to be a UAC.’” ECF No. 126 at 15. Plaintiff offers the following satisfactory response: “determination of UAC status for purpose this class action is clear. The 2013 Kim
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Memo, which this action seeks to restore and enforce, specifies that ‘[i]n cases in which CBP or ICE has already determined that the applicant is a UAC, Asylum Offices will adopt that determination and take jurisdiction over the case.’” ECF No. 130 at 13 (citation omitted). The only exception is if HHS, CBP, or ICE vacate that determination through an affirmative act. ECF No. 91-4 at 2–3. Thus, there is no ambiguity as to the meaning of “were determined to be an Unaccompanied Alien Child[,]” ECF No. 117. Rather, it is clear that CBP and ICE’s determinations in the first instance that an individual is a UAC and HHS, CBP, and ICE’s affirmative acts to vacate those determinations, ECF 91-4 at 2–3, are the designations on which this element of the class definition will rely.
Next Defendants argue that the class definition is vague because Plaintiffs failed to consider the impact of several different events on elements of the definition: (1) “how a USCIS determination that it did not have jurisdiction under the 2013 Memo” would affect the “pending” nature of the application; (2) how “an applicant’s change of UAC status would affect the ‘pending’ nature of the application[;]” and (3) “how filing with the EOIR would affect the operative filing date in determining whether an individual was an UAC ‘on the date they filed their asylum application with USCIS.’” ECF No. 126 at 15. However, Defendants fail to explain what problems they envision and how those events would affect the ascertainability of Plaintiffs’ proposed class.
Defendants’ final vagueness argument again centers on the term “pending” and whether Plaintiffs’ class definition uses the term in the same way that Defendants use it internally. Id. at 16–18. However, the Court agrees with Plaintiffs that “pending” should be given its ordinary meaning, which is sufficiently clear: “an application is pending during that period between submission and action taken by USCIS.” ECF No. 130 at 14. Thus, Plaintiffs’ class definition is
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not too vague to enable the court to readily identify members of the class. Therefore, Plaintiffs have satisfied their burden of demonstrating that their class
definition meets the threshold “readily identifiable” requirement implicit in Rule 23. See Thorn, 445 F.3d at 317 (“[P]laintiffs bear the burden . . . of demonstrating satisfaction of the Rule 23 requirements” (quoting Gariety v. Grant Thornton, LLP, 368 F.3d 356, 370 (4th Cir. 2004))).
2. Commonality “To establish commonality, the party seeking certification must ‘demonstrate that the class members have suffered the same injury’ and that their claims ‘depend upon a common contention.’” Boyd v. Coventry Health Care Inc., 299 F.R.D. 451, 458 (D. Md. 2014) (quoting Dukes, 564 U.S. at 350). “The inquiry is not whether common questions of law or fact predominate, but only whether such questions exist.” Hewlett, 185 F.R.D. at 216. “Minor differences in the underlying facts of individual class members’ cases do not defeat a showing of commonality where there are common questions of law.” Id. “Thus, the commonality requirement is not a high bar[.]” Minter v. Wells Fargo Bank, N.A., 274 F.R.D. 525, 533 (D. Md. 2011). Here, Plaintiffs seek adjudication of a single legal issue that is common to all class members: whether the 2019 Redetermination Memo is unlawful. ECF No. 91 at 41. This issue has several subsidiary questions: (i) whether the 2019 Redetermination Memo is arbitrary and capricious under the APA; (ii) whether the 2019 Redetermination Memo violates the TVPRA; (iii) whether the 2019 Redetermination Memo violates due process; (iv) whether Defendants failed to comply with notice-and-comment rulemaking, as required by the APA, by issuing the 2019 Redetermination Memo; (v) whether Defendants’ policy of deferring to an EOIR determination as to whether an asylum applicant is a UAC, as outlined in Footnote 5 of the 2019
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Redetermination Memo, is arbitrary and capricious; and (iv) whether Defendants’ adoption of the policy of deferral to EOIR determinations violated the APA. Id. ¶¶ 152–179. The 2019 Redetermination Memo and the policies that it outlines, including deference to EOIR determinations, govern USCIS’s consideration of all asylum applications filed by applicants formerly determined to be UACs, including applications filed by proposed class members. All proposed class members are subject to, and fear, the same result: USCIS denying jurisdiction over their application based on policies that deviate from the policies outlined in the 2013 Kim Memo, on which the class members had previously relied. All proposed class members seek the same relief: a declaration that those policies are unlawful and an order permanently enjoining Defendants from implementing them.
In contesting the commonality requirement, Defendants argue that: (1) the legality, in substance and in process, of the 2019 Redetermination Memo and its subsidiary questions are not common to the entire class because these “are not questions that currently affect any applicants who have filed with USCIS because USCIS had rescinded the 2019 Memo, retracted all its jurisdictional determinations under it, and has not applied it to any case since it was rescinded[,]” ECF no. 126 at 19; (2) “[w]hether USCIS may deny jurisdiction based on novel ‘affirmative acts’ such as EOIR jurisdictional determinations . . . is not a question common to all members of the proposed class because not all individuals so described have received EOIR jurisdictional determinations[,]” id.; (3) Plaintiffs’ proposed class does not satisfy commonality because “members of the proposed class are in a variety of procedural postures regarding their asylum applications[,]” id. at 20; and (4) the proposed class does not satisfy commonality because “a class action is not the appropriate method for resolving Plaintiffs’ alleged Due Process harms[,]” id. at 21. The Court disagrees.
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Defendants’ first commonality argument can easily be discarded. This Court has already held that—regarding Plaintiffs’ requests that the Court declare the 2019 Redetermination Memorandum unlawful, that it be vacated, and that Defendants be enjoined from “enforcing or applying any aspect of the 2019 Redetermination Memo[,]” ECF No. 91 at 41–4—“Plaintiffs ha[ve] not obtained all of the relief they [seek.]” ECF No. 115 at 33. This was true before Plaintiffs filed the Amended Complaint, and especially after. Id. While Defendants now assert that the 2019 Redetermination Memo has been rescinded, ECF No. 126 at 19, it is not clear that agreeing to the injunction and providing notice on the USCIS website that USCIS may not rely on the 2019 Redetermination Memo to reject jurisdiction over any asylum application filed by a UAC is tantamount to a formal rescission that carries the force of law. See ECF No. 126-2 ¶ 10. Moreover, proposed class members are all still subject to the same risk that, before USCIS reviews their applications on its merits, an IJ will make a finding that they were not a UAC at the time of filing their asylum application—perhaps as a result of ICE advocacy—and thus USCIS will deny jurisdiction over their application while still maintaining that USCIS no longer relies on the 2019 Redetermination Memo to accept or reject jurisdiction over an applicant.
Defendants’ second and third commonality arguments can be combined into a single argument that Plaintiffs’ lack commonality because they are “in a variety of procedural postures regarding their asylum applications.” ECF No. 126 at 20. That argument, too, is unavailing. “Commonality does not require class members to share all issues in the suit, but simply a single common issue,” and “[t]hus, factual differences among members’ cases will not preclude certification if the class members share the same legal theory.” Bullock v. Bd. of Educ. of Montgomery Cty., 210 F.R.D. 556, 560 (D. Md. 2002) (emphasis in original). Here, the purported differences among proposed class members are not determinative of the legal issues
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that Plaintiffs present in the case. Again, all members of the proposed class are subject to, and fear, the same result—denial of their asylum application based on policies that were not lawfully promulgated and that depart from those on which they relied—and seek the same relief. Class members do not ask the Court to determine whether their asylum applications should be approved by USCIS, an inquiry to which the purported differences could be relevant. Rather, they simply request the opportunity to have their asylum applications considered by USCIS under lawfully promulgated policies, and they ask the Court to determine that Defendants’ current variations from the policies outlined in the 2013 Kim Memo, on which proposed class members relied, are unlawful in process and in substance. Such an outcome would not entitle proposed class members to any specific outcome in their asylum applications, and the fact that some class members may have their applications rejected for other reasons does not impact the Court’s assessment of this common legal issue.
Defendants’ final commonality argument is that, under Supreme Court precedent as articulated in Jennings v. Rodriguez, 138 S. Ct. 830, 852 (2018), a class action is not the appropriate method for resolving Plaintiffs’ alleged due process harms because of the flexibility of the due process analysis combined with the proposed class’s inclusion of “UACs whose asylum applications USCIS would not have adjudicated on the merits even under the 2013 Memo[.]” ECF No. 126 at 21–22. Defendants argue that the dissimilarities in the Plaintiffs’ proposed class “would require the Court to engage in fact-intensive analyses of each putative class member.” Id. at 22. However, this argument also fails to convince the Court.
First, as Plaintiffs note, the Supreme Court in Jennings v. Rodriguez did not state a class action cannot be certified if it pursues a due process claim. ECF No. 130 at 19; see Jennings, 138 S. Ct. at 852. Rather, it merely suggested that “some members of the certified class may not be
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entitled to bond hearings[, i.e., the requested remedy,] as a constitutional matter.” Id. Moreover, the instant case is distinguishable. Here, regardless of whether all proposed class members would have had their asylum applications adjudicated on the merits under the 2013 Kim Memo, there is a single inquiry and a single relief requested; whether applying the 2019 Redetermination Memorandum and associated policies retroactively to asylum applicants who had already filed violates the Due Process clause, and, if so, whether the application of the Memorandum should be enjoined. This inquiry and relief does not “require the Court to engage in fact-intensive analyses of each putative class member.” ECF No. 126 at 22.
3. Typicality “Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct.” Hewlett, 185 F.R.D. at 217. “[T]he ‘plaintiff’s claim cannot be so different from the claims of absent class members that their claims will not be advanced by plaintiff’s proof of his own individual claim.’” Edmondson v. Eagle Nat’l Bank, 336 F.R.D. 108, 116 (D. Md. 2020) (quoting Dieter v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006)). A “claim may differ factually and still be ‘typical’ of the claims of class members if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members[.]” Bullock, 210 F.R.D. at 560 (internal quotation marks omitted); see Ealy v. Pinkerton Gov’t Servs., Inc., 514 F. App’x 299, 305 (4th Cir. 2013) (internal citations omitted) (“Although a representative’s claims and the claims of other members of the class need not be ‘perfectly identical or perfectly aligned,’ the representative’s pursuit of his own interests ‘must simultaneously tend to advance the interests of the absent class members.’”). As Defendants note, the inquiries under the typicality and commonality requirements of Rule 23(a) “tend to
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merge.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). Defendants argue that typicality has not been met because “jurisdiction has not yet been
determined for many of those described in the proposed class” and “[w]ithout jurisdictional decisions, the Plaintiffs cannot assert that the 2019 Memo has been applied to them.” ECF No. 126 at 22. Defendants further argue that because Defendants “have [allegedly] retracted decisions applying the 2019 Memo to decline USCIS jurisdiction for all of the named Plaintiffs as well as for all applications pending before it” and have instead “applied the 2013 Memo to all of these cases[,]” Plaintiffs cannot assert that the 2019 Memo has been applied to them. Id. at 22–23. Finally, Defendants argue that the different procedural postures of the proposed class members defeat typicality. Id. at 23. None of these arguments are persuasive.
As Plaintiffs point out, and as already analyzed in the Court’s commonality discussion, “[r]egardless of their individual differences, each prospective class member pursues the same claims for the same result[,]” ECF No. 130 at 20–21: a declaration that the 2019 Redetermination Memo and associated policies are unlawful, both in substance and in process, and an order enjoining the application of those policies. “Whether a prospective class member has already received a jurisdictional denial based on the 2019 Redetermination Memorandum or has a pending application but meets the criteria that would warrant denial under the 2019 Redetermination memorandum, each has the same unified interest in not having that policy applied to their asylum application.” ECF No. 130 at 21. This is true even if some proposed class members might eventually have their asylum applications denied for other reasons. Thus, typicality is met. See Edmondson, 336 F.R.D. at 1177 (finding typicality despite potential differences in class members’ claims, as “the kickback scheme described by Plaintiffs would be violative of RESPA (if proven), regardless of whether an individual class member had engaged
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in first-time financing or refinancing”).9 4. Other Factors
Although Defendants do not challenge numerosity, fair representation, or whether the class meets the requirements of Rule 23(b)(2), the court has an independent obligation to ensure that these prerequisites are met. Thorn, 445 F.3d at 318 (“district courts must conduct a rigorous analysis to ensure compliance with Rule 23, paying careful attention to the requirements of [that] Rule” (internal quotation marks and citations omitted)).
The proposed class meets the numerosity requirement. “To satisfy the numerosity requirement, the proposed class must be so numerous that ‘joinder of all members is impracticable.’” Amaya v. DGS Constr., LLC, 326 F.R.D. 439, 446 (D. Md. 2018) (quoting Fed. R. Civ. P. 23(a)(1)). The Fourth Circuit has said that 74 members is “well within the range appropriate for class certification,” Brady v. Thurston Motor Lines, 726 F.2d 136, 145 (4th Cir. 1984), and has upheld the certification of a class with as few as 18 members, Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass’n, 375 F.2d 648, 653 (4th Cir. 1967). USCIS records reflect that, at the end of March 2019, there were 27,106 pending asylum cases filed under the initial jurisdiction provision of the TVPRA while applicants were in removal proceedings, ECF No. 117-1 at 11 (citing U.S. Citizenship & Immigration Servs., MPA and PRL Report – Fiscal Year 2019 (2019), https://www.uscis.gov/outreach/asylum-division-quarterly-stakeholdermeeting-10; U.S. Citizenship & Immigration Servs., Asylum Statistics Key (2019), http://wwww.uscis.gov/outreach/asylum-division-quarterly-stakeholder-meeting-10), and, according to a public statement by USCIS, it is likely that a substantial portion of these
9 To the extent Defendants argue that Plaintiffs’ proposed class fails to meet the requirements of typicality for the reasons Defendants’ articulated regarding commonality, those arguments fail for the reasons discussed in the Commonality section. See ECF No. 126 at 22.
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applications involve UACs who have been placed with one or more parents. Id. (citing Memorandum from John Kelly, Secretary of the U.S. Dep’t of Homeland Sec. 10 (Feb. 20, 2017), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-thePresidents-Border-Security-Immigration-Enforcement-Improvement-Policies.pdf (“Approximately 60% of minors initially determined to be ‘unaccompanied alien children’ are placed in the care of one or more parents”)). The thousands of UACs who submitted these applications come from throughout the country and joinder of all members is impracticable.10
There is adequate representation under Fed. R. Civ. P. 23(a)(4). “Representation is adequate if: (1) the named plaintiffs’ interests are not opposed to those of other class members, and (2) the plaintiffs’ attorneys are qualified, experienced and able to conduct the litigation.” Planned Parenthood of Md., Inc., 2020 WL 3893241 at *7. Here, there does not appear to be any conflict between the named plaintiffs and the other class members, see ECF No. 117-4; ECF No. 117-5; ECF No. 117-6; ECF No. 117-8, and counsel is qualified and experienced, see ECF No. 117-9; ECF No. 117-10; ECF No. 117-11; ECF No. 117-12; ECF No. 117-13; ECF No. 117-14; ECF No. 117-15; ECF No. 117-16.
Finally, Rule 23(b)(2) is met. Rule 23(b)(2) provides that a class action may be maintained if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole . . . .” Fed. R. Civ. P. 23(b)(2). “The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class
10 At the very least, as of October 9, 2019, “[t]he Asylum Offices have identified 192 cases where the 2019 memo was applied.” ECF No. 77-2 at 4. Moreover, “[t]he A files [were] being retrieved still [and thus the Government acknowledged that the] 192 number may therefore rise a bit.” Id. These proposed class members alone would satisfy the requirements of numerosity.
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members or as to none of them.” Dukes, 564 U.S. at 360 (citation and internal quotation marks omitted); see also Fed. R. Civ. P. 23, Advisory Committee Note to 1966 Amendment of Subdivision (b)(2) (“Action or inaction is directed to a class within the meaning of [Rule 23(b)(2)] even if it has taken effect or is threatened only as to one or a few members of the class, provided it is based on ground which have general application to the class.”). Because the 2019 Redetermination Memo and associated policies apply generally to the class, and the requested relief—declaring the Memorandum and policy unlawful under the APA and/or the Due Process clause and preventing Defendants from applying those policies—“would provide the same relief to all class members[,]” Plaintiffs’ proposed class meets the requirements of Fed. R. Civ. P. 23(b)(2). Planned Parenthood of Md., Inc., 2020 WL 3893241 at *7 (quoting Healthy Futures of Texas v. Dep’t of Health & Human Servs., 326 F.R.D. 1, 8 (D.D.C. 2018)).
Plaintiffs’ proposed class meets the threshold “readily identifiable” requirement, satisfies all four parts of Rule 23(a), and satisfies Rule 23(b)(2), and thus this Court will grant Plaintiffs’ Motion for Class Certification and Appointment of Class Counsel.
B. Plaintiffs’ Motion to Amend the Preliminary Injunction Plaintiffs filed a Motion to Amend the Preliminary Injunction pursuant to Rule 54(b). ECF No. 124. Specifically, Plaintiffs request that the Court “enjoin Defendants from engaging in three practices that threaten to irreparably harm prospective class members before the Court has the opportunity to rule on the merits in this case[,]” ECF No. 124 at 1: (1) USCIS’s deference to IJ’s jurisdictional determinations, ECF No. 124-1 at 8–10; (2) ICE’s advocacy against USCIS jurisdiction in removal proceedings, ECF No. 124-1 at 10–11; and (3) USCIS’s treatment of a mere determination or notation that a child has been reunited with a parent as an “affirmative act,” ECF No. 124-1 at 11–13.
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Under Federal Rule of Civil Procedure 54(b), “any order . . . may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R. Civ. P 54(b). Accordingly, when appropriate, a district court retains the power to reconsider and modify its interlocutory judgments at any time before final judgment. Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514–15 (4th Cir. 2003). Resolution of the motion is “committed to the discretion of the district court,” id. at 515, and “the goal is to reach the correct judgment under law,” Lynn v. Monarch Recovery Mgmt., Inc., 953 F. Supp. 2d 612, 618 (D. Md. 2013) (citation and quotation marks omitted).
The Fourth Circuit has not articulated a standard for review of a Rule 54(b) motion. CytImmune Scis., Inc. v. Paciotti, No. PWG-16-1010, 2016 WL 6879942, at *1 (D. Md. Nov. 22, 2016). Nevertheless, this court frequently looks to the standard for Rule 59(e) when considering Rule 54(b) motions. Id. (citing Cezair v. JPMorgan Chase Bank, N.A., No. CIV.A. DKC-132928, 2014 WL 4955535, at *1 (D. Md. Sept. 30, 2014)); see also Harper v. Anchor Packing Co., No. CIV.A. GLR-12-460, 2014 WL 3828387, at *1 (D. Md. Aug. 1, 2014), aff’d sub nom. Hurley v. CBS Corp., 648 F. App’x 299 (4th Cir. 2016) (looking to Rule 59(e) standard); Potter v. Potter, 199 F.R.D. 550, 552 n.1 (D. Md. 2001) (applying Rule 59(e) standard). Aligning with the Rule 59(e) standard, this Court has held that granting a Rule 54(b) motion is appropriate if “(1) there has been an intervening change in controlling law; (2) there is additional evidence that was not previously available; or (3) the prior decision was based on clear error or would work a manifest injustice.” Scalia v. Peters, No. GLR-18-2933, 2020 WL 4734414, at *1 (D. Md. Aug. 14, 2020) (internal quotation marks and citation omitted); see also Potter, 199 F.R.D. at 552 n.1 (citations omitted). “Although there may be many valid reasons to reconsider an order, ‘a motion to reconsider is not a license to reargue the merits or present new evidence’ that was previously
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available to the movant.” Carrero v. Farrelly, No. CV JKB-16-3939, 2018 WL 1761957, at *2 (D. Md. Apr. 12, 2018) (internal citation omitted). “A motion to modify a preliminary injunction is meant only to relieve inequities that arise after the original order.” Brightview Grp., LP v. Teeters, No. CV SAG-19-2774, 2020 WL 4003168, at *5 (D. Md. July 15, 2020) (emphasis in original) (quoting Favia v. Indiana Univ. of Pa., 7 F.3d 332, 338 (3d Cir. 1993)). “[M]odification [of an injunction] is not warranted if the court determines that the moving party is relying upon events that actually were anticipated when the decree was entered.” 11A Charles Alan Wright, et al., Federal Practice and Procedure § 2961 (3d ed. 2010); see also Merrell-Nat’l Labs., Inc. v. Zenith Labs., Inc., 579 F.2d 786, 791–92 (3d Cir. 1978) (affirming a trial court’s denial of a motion to modify a preliminary injunction because the evidence presented “could have been produced on the original motion for an injunction”).
The purpose of a preliminary injunction is to “protect the status quo and to prevent irreparable harm during the pendency of a lawsuit[,] ultimately to preserve the court's ability to render a meaningful judgment on the merits.” In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003). The grant of a preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22, 129 S.Ct. 365, 376 (2008)) (internal quotation marks omitted). Thus, the burden placed upon Plaintiffs to state a claim for a preliminary injunction is high.
The Supreme Court and the Fourth Circuit recognize that, in order to receive a preliminary injunction, a plaintiff must establish:
[(1)] he is likely to succeed on the merits, [(2)] that he is likely to suffer irreparable harm in the absence of preliminary relief, [(3)] that the balance of equities tips in his favor, and [(4)] that an injunction is in the public interest. Dewhurst, 649 F.3d at 290. All four requirements must be met in order for a preliminary
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injunction to be granted. See id. However, the final two factors generally “merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009).
As discussed above, Plaintiffs have requested the Court essentially expand the current injunction to include three of Defendants’ alleged practices and policies. The Court will analyze each policy separately.
1. USCIS’s Deference to IJ’s Jurisdictional Determinations a. Reconsideration is Appropriate under Rule 54(b)
Plaintiffs argue that, under Rule 54(b), it is appropriate for this Court to amend its preliminary injunction order and enjoin defendants from deferring to IJs’ jurisdictional determinations because new evidence “indicates that more specific prohibitions are required to protect prospective class members while this case is still pending.” ECF No. 124-1 at 15. Additionally, Plaintiffs argue that—since this Court initially entered its injunction to “protect the status quo and to prevent irreparable harm during the pendency of a lawsuit, ultimately to preserve the court’s ability to render a meaningful judgment on the merits[,]” ECF No. 124-1 at 15 (quoting ECF No. 54 at 7)—it would be manifestly unjust for some proposed class members, “who would share in the relief afforded by a favorable resolution of the claims in the Amended Complaint, to be excluded from the preliminary injunction and thus potentially subject to removal before those claims could proceed to judgment.” ECF No. 124-1 at 15.
Defendants respond that, “[a]s a threshold matter, this motion . . . should be denied because no new evidence has become available since the preliminary injunction was entered[.]” ECF No. 127 at 14. According to Defendants, “the IJ deferral practice predated the 2019 Memo, [and thus] its application cannot be considered ‘new evidence’ making amendment to the preliminary injunction [in]appropriate before the resolution of this case on the merits.” ECF No.
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127 at 15. Rather, Defendants characterize Plaintiffs’ Motion as simply “repackage[ing] a request this Court has already denied[.]” Id. Defendants, however, do not address Plaintiffs’ argument that this Court should amend the preliminary injunction in order to prevent a manifest injustice.
First, the Court disagrees with Defendants that Plaintiffs’ motion is simply a repackaged Motion to Enforce. As Plaintiffs’ note, this Court denied Plaintiffs’ Motion to Enforce “without prejudice . . . to Plaintiffs’ right to move for emergency equitable relief to enjoin enforcement of the IJ deferral policy if Plaintiffs believe such enforcement threatens impending irreparable harm.” ECF No. 134 at 6 (quoting ECF No. 115 at 24–25). Moreover, this Court, in denying Plaintiffs’ Motion to Enforce, declined to decide whether the IJ deferral policy was consistent with the TVPRA, Defendants’ past practice, and the APA because it would “narrow [the] issues presented by the Amended Complaint without the benefit of the record and briefing that litigating the Amended Complaint would entail.” ECF No. 115 at 24. The current Motion elicits a different analysis; resolving Plaintiffs’ Motion to Amend the Preliminary Injunction only requires the Court to find that Plaintiffs are likely to succeed on the merits and that proposed class members are likely to suffer irreparable harm if Defendants’ policy is not enjoined. See Dewhurst, 649 F.3d at 290.
With respect to Plaintiffs’ two proposed bases for a Rule 54(b) Motion—the availability of new evidence and the need to prevent a manifest injustice—the Court finds that, to the extent Plaintiffs can satisfy each element of the preliminary injunction standard, amending the preliminary injunction to enjoin the Defendants’ policy of deference to IJs’ jurisdictional determinations is necessary to correct a manifest injustice. “The exception for manifest injustice appears to be concerned essentially with fairness in the administrative process[,]” Kasey v.
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Sullivan, 3 F.3d 75, 79 (4th Cir. 1993) (discussing the standard for Fed. R. Civ. P. 59(e), which this court has used to guide the analysis under Rule 54(b)), and this Court agrees with Plaintiffs that it would be manifestly unfair for some proposed class members, “who would share in the relief afforded by a favorable resolution of the claims in the Amended Complaint, to be excluded from the preliminary injunction and thus potentially subject to removal before those claims could proceed to judgment.”11 ECF No. 124-1 at 15. Because the Court finds that this Motion is properly brought under Rule 54(b) to prevent a manifest injustice, it is not necessary to address the parties’ dispute regarding whether there is “new evidence.”
b. Plaintiffs are Entitled to a Preliminary Injunction Despite this Court’s finding that a Rule 54(b) Motion is proper, to be entitled to the relief they request, Plaintiffs still must show that enjoining USCIS’s deferral policy is appropriate under the preliminary injunction standard. Plaintiffs must show they are likely to succeed on the merits—i.e., it is likely that USCIS’s deferral policy is unlawful—and that proposed class members are likely to suffer irreparable harm in the absence of an injunction.
i. Likelihood of Success on the Merits The grant of a preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Dewhurst, 649 F.3d at 290 (quoting Winter, 555 U.S. at 22). Thus, the burden placed upon Plaintiffs to show that each requirement of a preliminary injunction is met is high. Consequently, merely “providing sufficient factual allegations to meet the [Fed. R. Civ. P.] 12(b)(6) standard of Twombly and
11 In alignment with the legal authority, this inequity did not arise until after the initial preliminary injunction and it does not appear that Plaintiffs anticipated this result at the time of the original injunction. Brightview Grp., LP, 2020 WL 4003168 at *5; 11A Charles Alan Wright, et al., Federal Practice and Procedure § 2961. For example, USCIS reopened E.D.G.’s case based on this Court’s preliminary injunction on August 5, 2019, only for USCIS to again reject initial jurisdiction over E.D.G.’s asylum application “on the grounds that the ‘Immigration Judge made an affirmative act to terminate UAC status on October 10, 2018’ (almost 10 months after he filed the application with the USCIS).” ECF No. 124-1 at 9–10.
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Iqbal” does not show a likelihood of success on the merits. Allstate Ins. Co. v. Warns, No. CIV. CCB-11-1846, 2012 WL 681792, at *14 (D. Md. Feb. 29, 2012). Moreover, “[c]ourts have declined to issue a preliminary injunction when there are significant factual disputes.” Chattery Int’l, Inc. v. JoLida, Inc., No. CIV. WDQ-10-2236, 2011 WL 1230822, at *9 (D. Md. Mar. 28, 2011); see also Torres Advanced Enter. Sols., LLC v. Mid-Atl. Prof’ls Inc., No. PWG-12-3679, 2013 WL 531215, at *3 (D. Md. Feb. 8, 2013). Defendants articulate two arguments why Plaintiffs have not met this high bar: (1) Plaintiffs are unlikely to succeed on the merits because “the IJ deferral practice predated and arose separately from the 2019 Memo[,]” ECF No. 127 at 17; and (2) the BIA’s ruling in MACO dictated that “USCIS had no choice but to defer to an IJ assessment that a person was not a UAC on her filing date when an IJ made such an assessment[,]” id. at 17–18.
As to the first argument, while there is no disputing that the deferral policy was memorialized in Footnote 5 of the 2019 Redetermination Memo, the parties disagree as to when the policy first changed. Importantly, however, it is also undisputed that this deferral practice was binding on “any USCIS decision” regarding jurisdiction over an asylum case, ECF No. 91-1 at 2 (emphasis in original), and was adopted, at some juncture, without the benefit of notice-andcomment rulemaking.
As explained in this Court’s Memorandum Opinion granting Plaintiffs’ original Motion for a TRO, under the APA, legislative rules must go through notice-and-comment rulemaking before they become effective. See 5 U.S.C. § 553(a)–(c); Children’s Hosp. of the King’s Daughters, Inc. v. Azar, 896 F.3d 615, 619–20 (4th Cir. 2019). This requirement does not apply to interpretive rules. Children’s Hosp, 896 F.3d at 620. A rule is “legislative,” rather than “interpretive,” if it “effects a substantive change in existing law or policy.” Id. When a rule
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affects “individual rights and obligations” it is “a substantive rule—or a ‘legislative-type rule.’” Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979) (internal citation omitted) (quoting Morton v. Ruiz, 415 U.S. 199, 232, 236 (1974)). Additionally, legislative rules “are rules issued by agencies pursuant to statutory authority and which implement the statute[.]” Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1340 (4th Cir. 1995). Because Defendants’ policy of deferral, regardless of when it was adopted, did not go through the notice-and-comment procedure, the question for the Court is whether it is a legislative or interpretive rule.
Plaintiffs are likely to succeed in demonstrating the deferral policy is legislative in nature because the policy—regardless of whether it was adopted before the 2019 Redetermination Memo—is inconsistent with prior agency policy, as articulated in the 2013 Kim Memo, and thus caused a “substantive change in existing law or policy.” Children’s Hosp, 896 F.3d at 620. Pursuant to the deferral policy, USCIS officers must now defer to an IJ’s jurisdictional determination, if one exists, even if that determination was made after the UAC filed their asylum application with the USCIS. This appears to be inconsistent with the clear instructions in the 2013 Kim Memo that “[i]n cases in which CBP or ICE [have] already determined the applicant is a UAC” and there is not “an affirmative act by HHS, ICE or CBP to terminate the UAC finding before the applicant filed the initial application for asylum, Asylum Offices will adopt the previous DHS determination that the applicant was a UAC.” ECF No. 91-4 at 3 (emphasis added). Under the deferral policy, E.D.G. or similar individuals, who under the plain language of the 2013 Kim Memo would have had their asylum application considered by USCIS, where techniques and procedures sensitive to the needs and challenges of UACs are employed, ECF No. 54 at 2–3, are now at risk of USCIS denying jurisdiction in deference to an IJ determination. Thus, Plaintiffs will likely be able to establish that the USCIS’s policy of
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deferring to IJs’ jurisdictional determinations is a change in policy and should have gone through notice-and-comment.
Defendants’ argument that the BIA ruling in MACO requires deference is also unpersuasive. As Plaintiffs point out, this argument presents “an entirely new position that is contradicted by the 2019 Redetermination Memorandum itself and Defendants’ earlier positions in this litigation.” ECF No. 134 at 9. The 2019 Redetermination Memo explains: “The BIA’s decision [in MACO] . . . does not divest USCIS of its authority to determine whether an application before it was filed by a UAC, such that USCIS has jurisdiction over it. Rather, both the Immigration Judge and USCIS have authority to make this jurisdictional determination.” ECF No. 91-1 at 3; see also ECF No. 128-31 at US-000282 (agenda for May 2019 USCIS Asylum Division Quarterly Meeting, stating MACO “addresses immigration judge determinations as to whether an asylum application was filed by a UAC” but “does not address USCIS determinations about its own jurisdiction. USCIS continues to make its jurisdictional determinations under its own procedures.”). Thus, Defendants argument that MACO “is binding on USCIS and requires that, where an IJ has determined that the TVPRA’s jurisdictional provision . . . does not apply, USCIS must defer to that determination[,]” ECF No. 127 at 20, fails.12
ii. Irreparable Harm Plaintiffs have also met their burden to demonstrate that USCIS’s policy of deferring to IJs’ jurisdictional determinations will cause irreparable harm if this Court does not grant Plaintiffs’ Motion to Amend the Preliminary Injunction. Plaintiff E.D.G.’s precarious position is
12 Because Plaintiffs’ are likely to succeed on their claim that USCIS’s policy of deferring to IJs’ jurisdictional determinations violates the notice-and-comment requirements of the APA, it is unnecessary to consider whether Plaintiffs’ other claims that the deferral policy is unlawful are meritorious.
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demonstrative. “E.D.G.’s appeal of his asylum denial is pending before the BIA, and if the BIA dismisses his appeal, he will have a final, enforceable removal order[,]” and may be removed before this Court is able to rule on the merits of the parties’ cross-motions for summary judgment. ECF No. 124-1 at 19. Removal constitutes irreparable harm, see Sanchez v. McAleenan, No. GJH-19-1728, 2020 WL 607032, at *7 (D. Md. 2020); Tefel v. Reno, 972 F. Supp. 609, 619 (S.D. Fla. 1997), and, in the absence of preliminary injunctive relief, proposed class members similarly situated to E.D.G. will likely continue to be removed and will later have a difficult time returning to the United States even if Plaintiffs and the proposed class receive a favorable ruling. A preliminary injunction will therefore maintain the status quo and ensure that asylum applicants whose applications allegedly should have been reviewed on the merits by USCIS under the 2013 Kim Memo can actually benefit from any final ruling in their favor. Defendants’ insistence that “there is no immediate risk of removal[,]” ECF No. 127 at 7, does not convince the Court otherwise. Defendants fail to offer any timeline for how far E.D.G. might be from the conclusion of removal proceedings and do not contest the declaration of Miguel Mariscal, stating, “I anticipate that within weeks of the BIA decision ICE would issue a ‘bag and baggage’ letter requiring E.D.G. to report to ICE with his belongings for removal to Honduras[,]” ECF No. 124-3 ¶ 21; see also ECF No. 124-1 at 19–20. ECF No. 134 at 16–17.
In addition, Defendants do not dispute that some proposed class members, who delayed filing their asylum applications in reliance on Defendants’ 2013 Kim Memo, may lose their opportunity to pursue asylum entirely if USCIS defers to an IJ determination that the class member was not a UAC at the time of the application. As discussed in the background section of this Memorandum Opinion, UACs are exempted from the one-year bar for filing an asylum application. If an IJ determines a proposed class member was not a UAC at the time of filing his
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or her asylum application, accepts jurisdiction over the application, denies such application because the application was filed past the one year mark, and USCIS then defers to the IJ’s jurisdictional determination, that proposed class member will lose their opportunity to pursue asylum entirely.
iii. Balance of Equities Analysis of the last two factors—the balance of equities and the public interest—merge here because the Government is the opposing party. Nken, 556 U.S. at 435. Substantially identical to this Court’s conclusion in its Memorandum Opinion granting the original TRO, “[t]here is no evidence in the existing record that either Defendants or children applying for asylum will be harmed by pressing pause on enforcing [USCIS’s policy of deferral to IJ’s jurisdictional determination,] . . . but Plaintiffs have shown that the new policy will cause them harm.” ECF No. 54 at 15. Thus, at this time, the balance of the harms favors a preliminarily enjoining USCIS’s deferral policy. The Court grants Plaintiffs’ Motion to Amend the Preliminary Injunction to the extent they request that this Court enjoin USCIS’s policy of deferring to IJ jurisdictional determinations.
2. ICE’s Advocacy Against USCIS Jurisdiction in Removal Proceedings a. Reconsideration is Appropriate under Rule 54(b)
Plaintiffs’ Motion to Amend the Preliminary Injunction in order to enjoin ICE’s advocacy against USCIS jurisdiction in removal proceedings is also properly brought under Rule 54(b) because an amendment to this Court’s preliminary injunction will prevent a manifest injustice. See Scalia v. Peters, 2020 WL 4734414, at *1.
Plaintiffs argue ICE should not be able to implement policies that this Court has enjoined
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by advocating against USCIS jurisdiction in removal proceedings in circumstances where USCIS

should accept initial jurisdiction over the asylum application under the 2013 Kim Memo. This

Court agrees and finds that it would be manifestly unjust to require Plaintiffs and proposed class

members to defend their asylum application in an adversarial setting—rather than the non-

adversarial forum that the TVPRA promises them—because of ICE’s implementation of policies

that this Court has enjoined.

b. Plaintiffs are Entitled to a Preliminary Injunction

i.

Likelihood of Success on the Merits

Plaintiffs’ claim regarding ICE’s advocacy is intertwined with behavior by Defendants

that this Court has already enjoined. Thus—with regard to the success on the merits element of

the preliminary injunction standard—Plaintiffs’ request that the Court amend the preliminary

injunction to enjoin ICE from advocating in immigration court for IJs to exercise jurisdiction

over asylum applications filed by UACs cannot be analytically separated from Plaintiffs’

previously granted request that this Court enjoin USCIS’s implementation of the 2019

Redetermination Memo and Plaintiffs’ most recent request that this Court enjoin USCIS’s

deferral to IJ jurisdictional determinations. As this Court recognized in its Memorandum Opinion

denying Defendant’s Motion to Dismiss the Amended Complaint, “Plaintiffs have set forth an

APA claim against ICE and Acting Director Albence based on their implementation of those

policies[.]” ECF No. 115 at 39 (emphasis added). In short, Defendants should not advocate for

outcomes that are inconsistent with the Court’s injunction. Thus, if Plaintiffs are likely to

succeed on the merits as to their claims regarding USCIS’s application of the 2019

Redetermination Memo and the deferral policy, then Plaintiffs are likely to succeed on their

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claim against ICE as well.13 ii. Irreparable Harm
The Court finds convincing Plaintiffs’ argument that ICE’s advocacy against USCIS jurisdiction in removal proceedings will result in irreparable harm and Defendants provide no rebuttal. If an IJ accepts ICE’s arguments in immigration court, presented in opposition to the policy of its sister agency within DHS, and decides that it has jurisdiction to evaluate a UAC’s asylum application, the UAC must defend his asylum claim in immigration court, subject to cross-examination and without the benefit of USCIS’ child-sensitive and trauma-informed interview techniques. ECF No. 124-1 at 22–23. Even if the UAC later succeeds in bringing his asylum application before USCIS, the experience of reliving his trauma in the face of hostile interrogation cannot be erased. Accordingly, regardless of whether this Court orders USIC not to defer to IJ jurisdictional determinations—which it does here—ICE’s advocacy may still result in members of the proposed class suffering irreparable harm. Thus, Plaintiffs have satisfied the irreparable harm element as required by the preliminary injunction standard.
iii. Balance of Equities Again this Court’s reasoning in its Memorandum Opinion granting the TRO applies with equal force here: “[t]here is no evidence in the existing record that either Defendants or children applying for asylum will be harmed by pressing pause on [ICE’s advocacy against USCIS in removal proceedings,] . . . but Plaintiffs have shown that the new policy will cause them harm.” ECF No. 54 at 15. Thus, the balance of equities tips in favor of amending this Court’s
13 Defendants’ sole argument against this Court enjoining ICE’s advocacy against USCIS jurisdiction is that Plaintiffs are attempting to add a named plaintiff, J.S.C.G., without amending the Amended Complaint and that, regardless, the new Plaintiff does not have standing. ECF No. 127 at 12–14. However, J.S.C.G.’s circumstances are solely illustrative of allegations that are already explicitly pled in the Amended Complaint, ECF No. 91 ¶ 108, the dismissal of which this Court has already denied. ECF No. 115 at 38–40.
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preliminary injunction. The Court grants Plaintiffs Motion to Amend the Preliminary Injunction in so far as they
request the injunction of ICE’s advocacy against USCIS jurisdiction in removal proceedings. 3. USCIS’s Policy of Denying Jurisdiction over a Child’s Asylum Application Based on an Alleged “Affirmative Act” Involving a Mere Notation that the Child Has Been Reunited with a Parent or Legal Guardian or Has Turned 18 Years Old
The 2013 Kim Memo instructed USCIS asylum officers to accept initial jurisdiction over asylum applications filed by those previously determined to be a UAC, “[u]nless there was an affirmative act by HHS, ICE, or CBP to terminate the UAC finding before the applicant filed the initial application for asylum.” ECF No. 91-4 at 3 (emphasis added). In particular, “even if there appears to be evidence that the applicant may have turned 18 years of age or may have reunited with a parent or legal guardian since the CBP or ICE determination[,]” the 2013 Kim Memo directed asylum officers to accept initial jurisdiction. Id. The 2019 Redetermination Memo changed this policy by directing asylum officers to re-examine UAC status in all cases and to decline initial jurisdiction if they concluded that the asylum applicant had turned 18 or been reunited with a parent or legal guardian at the time they filed their asylum application. See ECF No. 91-1 at 4–5. This Court has since enjoined USCIS’s implementation of the 2019 Redetermination Memo. ECF No. 71.
However, Plaintiffs now argue that USCIS continues to reject jurisdiction over asylum applications based on a child’s reunification with a parent or legal guardian or attainment of 18 years of age, ECF No. 124-1 at 24, and does so on the theory that “an agent’s notation in a government record or database reflecting the child’s age or reunification constitutes an ‘affirmative act . . . to terminate the UAC finding before the applicant filed the initial application for asylum.’” Id. (quoting ECF No. 91-4 at 3). Plaintiffs’ request to enjoin this particular practice
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fails primarily because it asserts a claim not made in its Amended Complaint. In the Motion to Amend the Preliminary Injunction, Plaintiffs question whether
Defendants are violating the 2013 Kim Memo by treating documents where evidence of the UAC’s age or reunification with parents has been recorded as an “affirmative act.” ECF No. 1241 at 24. In essence, therefore, Plaintiffs disagree with USCIS’s construction of the 2013 Kim Memo, not the validity of the 2019 Redetermination Memo that is at issue in the Amended Complaint. The 2013 Kim Memo does, in fact, permit denial of jurisdiction by UCIS in the event of an affirmative act by HHS, ICE, or CBP to terminate the UAC finding. A notation made in the system may or may not qualify as such an act, but that is a separate question from whether the policy has changed as a result of the 2019 Redetermination Memo. Plaintiffs may not raise new claims through motions without amending their complaint. See Harris v. Reston Hosp. Ctr., LLC, 523 F. App’x 938, 946 (4th Cir. 2013); Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d 324, 336 (4th Cir. 2009); Doe v. Salisbury Univ., 123 F. Supp. 3d 748, 758 n.5 (D. Md. 2015).
Plaintiffs try to skirt the deficiency of their Amended Complaint by arguing that the practice at issue “is an application of the 2019 Redetermination Memorandum through a litigation-inspired reinterpretation of the 2013 Kim Memo’s narrow affirmative-act exception.” ECF No. 134 at 13 (emphasis in original). The Court is not convinced. Thus, this Court denies Plaintiffs’ Motion to Amend the Preliminary Injunction to the extent Plaintiffs request the Court to enjoin USCIS’s policy of denying jurisdiction over a child’s asylum application based on an alleged “affirmative act” involving a mere notation that the child has been reunited with a parent or legal guardian or has turned 18 years old. In anticipation of this result, Plaintiffs have requested “leave to amend [their complaint] to remove any doubt that USCIS’s dramatic
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expansion of the ‘affirmative act’ exception from the 2013 Kim memo is at issue here, as it effectively seeks to implement the same policy as the 2019 Redetermination memorandum in an equally unlawful manner.” ECF No. 134 at 15. The Court grants this request and Plaintiffs may file a second amended complaint within 14 days.
C. Joint Motion to Stay Summary Judgment Schedule Pursuant to the Court’s June 29, 2020 scheduling order, summary judgment briefing was scheduled to begin on August 21, 2020 and to be completed on October 16, 2020. ECF No. 135. In accordance with the June 29 scheduling order, Defendants produced the administrative record on July 24, 2020. Id. After reviewing the produced record, Plaintiffs raised issues with Defendants regarding what Plaintiffs believe to be deficiencies with the administrative record as produced. Id. The parties filed a Joint Motion to Stay Summary Judgment Schedule on August 10, 2020, requesting the Court to stay briefing on the parties’ motions for summary judgment pending resolution of the parties’ disputes regarding the contents of the administrative record. ECF No. 135-1. Defendants filed an amended administrative record with the Court on October 2, 2020. ECF No. 139 at 2. Plaintiffs, however, continue to believe that significant deficiencies remain. Id. The parties have not yet come to an agreement and believe that the Court’s involvement may be necessary. Id. The Court grants the parties’ Joint Motion to Summary Judgment Schedule pending the resolution of the parties’ disputes regarding the contents of the administrative record and instructs the parties to contact chambers to schedule a status call. D. Joint Motion for Entry of Parties’ Proposed Protective Order The parties filed a Joint Motion for Entry of Parties’ Proposed Protective Order on August 25, 2020. ECF No. 136. Having considered the parties’ motion and the attached
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Protective Order, the Court finds that the parties’ Proposed Protective Order, ECF No. 136-1, complies with the requirements of Loc. R. 104.13 (D. Md. 2018) and thus grants the parties’ joint motion and enters the parties’ Proposed Protective Order. III. CONCLUSION
For the foregoing reasons, this Court grants Plaintiffs’ Motion for Class Certification and Appointment of Class Counsel, ECF No. 117 and certifies the following class: All individuals nationwide who prior to the effective date of a lawfully promulgated policy prospectively altering the policy set forth in the 2013 Kim Memorandum (1) were determined to be an Unaccompanied Alien Child; and (2) who filed an asylum application that was pending with the United States Citizenship and Immigration Services (“USCIS”); and (3) on the date they filed their asylum application with USCIS, were 18 years of age or older, or had a parent or legal guardian in the United States who is available to provide care and physical custody; and (4) for whom USCIS has not adjudicated the individual’s asylum application on the merits. Plaintiff J.O.P., M.A.L.C., M.E.R.E., and E.D.G. are appointed as class representatives.
Additionally, this Court grants, in part, and denies, in part, Plaintiffs’ Motion to Amend the Preliminary Injunction, ECF No. 124, and accordingly amends the previous preliminary injunction, ECF No. 71, such that Defendants, during the pendency of this litigation and until further Order of this Court are: (1) enjoined and restrained from relying on the policies set forth in the 2019 Redetermination Memorandum as a basis to decline jurisdiction over asylum applications of individuals previously determined to be unaccompanied alien children (“UACs”), to subject an asylum applicant to the one-year time limit for filing described at 8 U.S.C. § 1158(a)(2)(B), or for any other purpose; (2) enjoined and restrained from rejecting jurisdiction over any asylum application filed by Plaintiffs and members of the class whose applications
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would have been accepted under the 2013 Kim Memorandum; (3) enjoined and restrained from deferring to EOIR determinations in assessing jurisdiction over asylum applications filed by Plaintiffs and members of the proposed class; and (4) enjoined and restrained during the removal proceedings of any Plaintiff or member of the class (including EOIR proceedings before immigration judges and members of the Board of Immigration appeals) from seeking denials of continuances or other postponements in order to await adjudication of an asylum application that has been filed with USCIS, from seeking EOIR exercise of jurisdiction over any asylum claim where USCIS has initial jurisdiction under the terms of the 2013 Kim Memorandum, or from otherwise taking a position in such individual’s removal proceedings that, inconsistent with the 2013 Kim Memorandum, USCIS does not have initial jurisdiction over the individual’s asylum application. Defendant USCIS will retract any adverse decision rendered on or after June 30, 2019 that is based in whole or in part on any of the actions enjoined and restrained by (1), (2), or (3) above.
Finally, the Court grants parties’ Joint Motion to Stay Summary Judgment Schedule, ECF No. 135, and grants parties’ Joint Motion for Entry of Parties’ Proposed Protective Order, ECF No. 136.
A separate Order shall issue.

Date: December 21, 2020

___/s/_______________________ GEORGE J. HAZEL United States District Judge

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