UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

GRACE, et al., 

Plaintiffs, 

v. 

MATTHEW G. WHITAKER, Acting 

Attorney General of the United 

States, et al., 

Defendants. 

)

)

)

)

)

)

) 

)

)

)

)

)

Civil Action No. 18-1853 

 

MEMORANDUM OPINION AND ORDER 

On December 19, 2018, the Court issued an Order vacating 

several policies promulgated by the Attorney General in Matter 

of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), a precedential 

immigration decision, and subsequent guidance issued by the 

Department of Homeland Security. See Order, ECF No. 105. The 

vacated policies related to the expedited removal process and 

credible fear determinations made by asylum officers. The Court 

held that these policies violated the Administrative Procedure 

Act and the immigration laws. Accordingly, the Court vacated the 

unlawful policies and permanently enjoined the government from 

applying the policies in future cases. 

The government now requests a stay, pending appeal of the 

Court’s Order, to enable the unlawful policies to continue to 

apply in all expedited removal cases, except the plaintiffs. For 

the following reasons, defendants' motion for stay is DENIED. 
2 

I. Legal Standard 

A court's decision to stay its final judgment pending 

appeal is an extraordinary remedy that is an “intrusion into the 

ordinary process of . . . judicial review.” Nken v. Holder, 556 

U.S. 418, 428 (2009); see also Cuomo v. U.S. Nuclear Regulatory 

Comm'n, 772 F.2d 972, 978 (D.C. Cir. 1985). The issuance of a 

stay is a matter of judicial discretion, not a matter of right, 

and the “party requesting a stay bears the burden of showing 

that the circumstances justify an exercise of that discretion.” 

Nken, 556 U.S. at 433-34. In exercising its discretion, a court 

considers the following four factors: 

(1) the likelihood that the party seeking the stay 

will prevail on the merits of the appeal; (2) the 

likelihood that the moving party will be 

irreparably harmed absent a stay; (3) the prospect 

that others will be harmed if the court grants the 

stay; and (4) the public interest in granting the 

stay. 

Cuomo, 772 F.2d at 974. It is “the movant’s obligation to 

justify the court’s exercise of such an extraordinary remedy.” 

Id. at 978. 

II. Discussion 

 The Court begins with a discussion of general guidance from 

the Supreme Court about the four stay factors. “The first two 

factors of the traditional standard are the most critical. It is 

not enough that the chance of success on the merits be ‘better 

than negligible.’” Nken, 556 U.S. at 434 (citation omitted). “By 
3 

the same token, simply showing some ‘possibility of irreparable 

injury,’ fails to satisfy the second factor.” Id. at 434–35

(internal citation omitted). “Once an applicant satisfies the 

first two factors, the traditional stay inquiry calls for 

assessing the harm to the opposing party and weighing the public 

interest. These factors merge when the Government is the 

opposing party.” Id. at 435. In the context of removal 

proceedings, courts must be mindful that the “Government's role 

as the respondent in every removal proceeding does not make the 

public interest in each individual one negligible.” Id.

(citations omitted). With these principles in mind, the Court 

now turns to the four stay factors. 

A. Likelihood of Success on the Merits 

In determining whether a stay should be granted, a 

“critical” factor is whether the moving party is likely to 

succeed on the merits. Id. at 434. 

The government confines its arguments to the claim that the 

Court has no authority to enjoin the operation of any expedited 

removal policies beyond that policies’ application to the 

plaintiffs. See Defs.’ Mot. to Stay, ECF No. 107. The government 

makes three principal arguments to support its position. First, 

the government points to section 1252(e)(3), the provision under 

which the plaintiffs have brought this case. See 8 U.S.C. 

§ 1252(e)(3). Next, the government looks to the legislative 
4 

history of the 1996 amendments to the Immigration and 

Nationality Act (“INA”). Finally, the government argues 

precedent in this Circuit “indicates” that its position is 

correct. The Court considers each argument in turn. 

 i. Section 1252(e)(3) 

 The government first argues that the Congressional scheme 

precludes any injunctive relief that is not limited to the 

plaintiffs in this case. Defs.’ Mot. to Stay, ECF No. 107 at 2–

4. The Court has already rejected the various arguments made on 

this point in its Memorandum Opinion. ECF No. 106 at 98–101. 

Undaunted, the government now points to section 1252(e)(3) which 

grants the Court authority for “judicial review of 

determinations under section 1225(b) and its implementation.” 

Defs.’ Mot. to Stay, ECF No. 107 at 3. The government argues 

that such determinations may only be made individually and 

therefore the Court only had authority to review, and provide a 

remedy for, the plaintiffs’ individual determinations. Id. The 

government further argues that its position is supported by a 

provision that prohibits a court from certifying a class action 

in any action for which judicial review is authorized under 

1252(e). See 8 U.S.C. § 1252(e)(1)(B). 

 The Court is no more persuaded by the government’s 

arguments here than it was when the government made nearly 

identical arguments in its motion for summary judgment. See, 
5 

e.g., Memorandum Opinion, ECF No. 106 at 100 n.30 (rejecting 

argument that an injunction in this case is tantamount to classwide relief). As the Court explained in its Memorandum Opinion, 

the government’s argument requires the Court to ignore the fact 

that section 1252(e)(3) authorizes a systemic legal challenge to 

a new expedited removal written policy directive issued under 

the authority of the Attorney General and contains no limitation 

on relief once a court makes a determination that a policy 

directive is unlawful. See 8 U.S.C. § 1252(e)(3). 

Furthermore, the provision itself explicitly states that 

when a plaintiff brings a claim under section 1252(e)(3), the 

Court is “limited to determinations of . . . whether . . . a 

written policy directive . . . is not consistent with applicable 

provisions of this subchapter or is otherwise in violation of 

law.” 8 U.S.C. § 1252(e)(3)(A)(ii). There is no statutory 

requirement, as the government argues, to declare a policy in 

violation of the law only as applied to the individual 

plaintiffs. Cf. 8 U.S.C. § 1252(f)(limiting injunctive relief to 

only the plaintiff when a plaintiff challenges the legality of a 

provision of the Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996 (“IIRIRA”)). To accept the 

government’s position would require the Court to ignore the 

systemic nature of this action. It also would require the Court 

to ignore the general rule that “[w]hen a reviewing court 
6 

determines that agency regulations are unlawful, the ordinary 

result is that the rules are vacated—not that their application 

to the individual petitioners is proscribed.” Nat’l Min. Ass'n 

v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 

1998)(citation omitted). 

 As to the prohibition on class actions, as the Court stated 

in its Memorandum Opinion, class-wide relief in this case would 

entail an order requiring new credible fear interviews for all 

immigrants who applied for asylum from June 11, 2018, the date 

of the Attorney General’s decision, and for the government to 

return to the United States every deported individual who was 

affected by the policies at issue in this case. Memorandum 

Opinion, ECF No. 106 at 100 n.30. The Court has ordered no such 

relief in this case. 

 ii. Legislative History 

 The government next points to the legislative history of 

the 1996 amendments to the INA. Defs.’ Mot. to Stay, ECF No. 107 

at 4 (citing H.R. REP. No. 104-469(I)). Noting that this Court 

relied extensively on the legislative history of the immigration 

law, the government argues the history demonstrates Congress’ 

intent to allow policies declared to be unlawful by a court to 

remain in place. Id. The government selectively quotes the 

legislative history to bolster its unpersuasive argument. The 

relevant section, however, states as follows: 
7 

Section 306 also limits the authority of Federal 

courts other than the Supreme Court to enjoin the 

operation of the new removal procedures established 

in this legislation. These limitations do not 

preclude challenges to the new procedures, but the 

procedures will remain in force while such lawsuits 

are pending. In addition, courts may issue 

injunctive relief pertaining to the case of an 

individual alien, and thus protect against any 

immediate violation of rights. However, single 

district courts or courts of appeal do not have 

authority to enjoin procedures established by 

Congress to reform the process of removing illegal 

aliens from the U.S. 

H.R. REP. No. 104-469(I) at 161 (emphasis added). This argument 

is a repackaging of the government’s argument in its motion for 

summary judgment that section 1252(f) precludes the court’s 

injunction. See Memorandum Opinion, ECF No. 106 at 98. Again, 

the Court agrees with the government that the Court would not 

have the authority to enjoin, other than as to the plaintiffs, 

“new removal procedures established” by the 1996 Amendments to 

the INA, nor would it have “authority to enjoin procedures 

established by Congress to reform the process of removing 

illegal aliens from the U.S.” See H.R. REP. No. 104-469(I) at 

161. The problem for the government is that this case does not 

concern “procedures established by Congress” or a challenge to 

the INA itself. See id. Rather, the plaintiffs have challenged 

“written policy directive[s] [and] written policy guideline[s]” 

established by the Attorney General. See 8 U.S.C. § 

1252(e)(3)(A)(ii). 
8 

American Immigration Lawyers Ass'n v. Reno (“AILA”), 199 

F.3d 1352, 1358 (D.C. Cir. 2000), is instructive. In AILA the 

plaintiffs challenged several provisions of IIRIRA, an Act of 

Congress, which established the expedited removal provisions 

enacted by the legislative branch. Id. In such a case, the Court 

would have been able to enjoin any unlawful provisions as to the 

plaintiffs in the case only because the plaintiffs challenged 

“removal procedures established by Congress.” See H.R. REP. No. 

104-469(I) at 161. 

 In contrast, the plaintiffs here have challenged the 

action of the Attorney General, not legislation passed by 

Congress. Moreover, the plaintiffs requested that the Attorney 

General conform the policies to the immigration laws. See

Memorandum Opinion, ECF No. 106 at 101 (explaining the 

plaintiffs do not challenge the statute but rather seek to 

enjoin the government from violating the statute). The unlawful 

policies in this case were not the result of action by the 

legislature, but rather a policy directive issued by the 

executive branch. Again, it is the will of Congress--not the 

whims of the executive--that determines the standard for 

expedited removal. And when there is an inconsistency, the 

latter must accede to the former. 
9 

 iii. AILA and 8 U.S.C. Section 1252(f) 

The government, citing AILA, argues that the Court of 

Appeals for the District of Columbia Circuit (“D.C. Circuit”) 

has “indicated” that relief in cases brought under section 

1252(e)(3) should be limited to the parties before the Court, 

and only those parties. Defs.’ Mot. to Stay, ECF No. 107 at 5. 

AILA concerned the doctrine of third-party standing, and the 

organizational plaintiffs in that case sought to litigate the 

rights of aliens who were not parties to the suit. 199 F.3d at 

1357. As the D.C. Circuit explained, the organizational 

plaintiffs alleged that the new statutory scheme "violated not 

their rights or the rights of their members, but the [rights] of 

unnamed aliens who were or might be subject to the statute and 

regulations." Id. Because the organizational plaintiffs did not 

have standing, the D.C. Circuit had no occasion to discuss the 

limits of an appropriate remedy. Id. at 1364 (holding “plaintiff 

organizations do not have standing to raise claims, whether 

statutory or constitutional, on behalf of aliens subjected to 

IIRIRA's expedited removal system”). The D.C. Circuit simply 

noted that the statutory scheme supported its view that 

litigants could not assert the rights of others in a 1252(e)(3) 

action. Id. at 1359. In support of this view, the Court pointed 

to two provisions relevant to this case: section 1252(e)(1)(B) 

which prohibits class actions; and section 1252(f)(1) which only 
10 

authorizes injunctive relief for the parties to a case when the 

parties challenge the legality of an immigration statute. Id.

As explained in this Court’s Memorandum opinion, section 

1252(f)(1) only applies when a party is challenging the legality 

of a statute, and not when a party argues that the defendant’s 

actions violate the statute. ECF No. 106 at 101. In AILA, the 

organizational plaintiffs argued that the statute itself was 

unconstitutional, not that defendants were not complying with 

the statute, therefore the D.C. Circuit’s analysis of 1252(f) is 

wholly consistent with this Court’s Memorandum Opinion. As for 

the bar on class certification, the Court has already ruled that 

the injunction is not tantamount to class-wide relief. See supra

at 6. In any event, AILA was an analysis of third-party 

standing, and the D.C. Circuit did not address what relief would 

be appropriate when a plaintiff that was subject to the 

expedited removal process successfully challenges a policy that 

violates the immigration laws. The government’s reliance on AILA

is therefore misplaced. 

In light of the foregoing analysis, the Court is not 

persuaded that the government is likely to prevail on appeal. 

 B. Irreparable Injury 

The Court next considers if the government has shown it 

will be “irreparably injured absent a stay.” Nken, 556 U.S. at 

434. (citation omitted). The claimed irreparable injury must be 
11 

likely to occur; “simply showing some ‘possibility of 

irreparable injury’” is insufficient. Id. (citation omitted). 

The government briefly states it will be irreparably 

harmed, arguing that “[a]n[] order that enjoins a governmental 

entity from enforcing actions taken pursuant to statutes enacted 

by the duly elected representatives of the people constitutes an 

irreparable injury.” Defs.’ Mot. to Stay, ECF No. 107 at 7. 

There are several problems with this argument. As stated above, 

and at length in the Memorandum Opinion, the plaintiffs have not 

challenged any action taken pursuant to statutes enacted by 

elected representatives. Rather, the challenged action at issue 

in this case was taken contrary to the immigration laws. The 

plaintiffs have invoked those immigration laws and the Court has 

found that several of the policies violate those laws. Moreover, 

this was not an action by the legislature, but rather a policy 

directive issued by the executive. 

The government, therefore, has not shown that a stay of the 

Court’s order is necessary to avoid a likely irreparable injury 

in this case. 

C. Substantial Injury to Other Parties and the Public 

Interest 

The Court next addresses the second two factors, which 

“merge when the Government is the opposing party.” Nken, 556 

U.S. at 434. The government briefly argues that no party will be 
12 

harmed if the Court grants the stay because the policies are 

enjoined as to all the plaintiffs in this case. Defs.’ Mot. to 

Stay, ECF No. 107 at 6. However, the government fails to 

acknowledge that the Court considers harm to non-parties. See 

Loving v. I.R.S., 920 F. Supp. 2d 108, 111 (D.D.C. 2013) 

(considering harm to non-parties if the Court granted the stay). 

In light of the Court’s finding that the heightened standard 

imposed by the policies is unlawful, it is clear that immigrants 

who allege credible fears of domestic or gang-related violence 

will be harmed by those policies. 

 The government does not appear to address the last factor, 

i.e., whether the stay is in the public interest. The Court 

recognizes that the public has an interest “in efficient 

administration of the immigration laws at the border.” Landon v. 

Plasencia, 459 U.S. 21, 34 (1982). However, "there is a public 

interest in preventing aliens from being wrongfully removed, 

particularly to countries where they are likely to face 

substantial harm," Nken, 556 U.S. at 436, as well as an interest 

in “ensuring that ‘statutes enacted by [their] representatives’ 

are not imperiled by executive fiat.” East Bay Sanctuary 

Covenant v. Trump, 909 F.3d 1219, 1255 (9th Cir. 2018)(citation 

omitted). 

The Court is also mindful that the Supreme Court has 

cautioned against overbroad injunctions because, in certain 
13 

circumstances, they “may have a detrimental effect by 

foreclosing adjudication by a number of different courts and 

judges.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Other 

courts have highlighted concerns such as depriving non-parties 

the right of litigating in other forums; and the potential for 

forum shopping “which hinders the equitable administration of 

laws.” See California v. Azar, 911 F.3d 558, 583 (9th Cir. 

2018). However, because of the unique statutory scheme for 

systemic challenges under section 1252(e)(3), none of these 

concerns are relevant here. Jurisdiction to review new written 

policy directives that implement the fair credibility 

determination process is limited to the United States District 

Court for the District of Columbia. 8 U.S.C. § 1252(e)(3)(A). 

Accordingly, the concern that an injunction in this case will 

foreclose adjudication by other courts, or encourage forum 

shopping for these types of claims, simply is not present. 

Similarly, there is no concern that the Court’s injunction will 

deprive non-parties “the right to litigate in other forums,” 

Azar, 911 F.3d at 583, since the District of Columbia is the 

only forum authorized by the statute. 

Having considered the stay factors, the Court concludes 

that the government has failed to meet its burden to justify the 

Court’s exercise of the extraordinary remedy of staying its 

final judgment pending appeal. See Cuomo, 772 F.2d at 974. 
14 

III. Conclusion 

For the foregoing reasons, the Court ORDERS that 

defendants’ motion to stay the Court’s final judgment pending 

appeal is DENIED. 

SO ORDERED 

Signed: Emmet G. Sullivan 

United States District Judge 

January 25, 2019