Grace v. Sessions ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
GRACE, et al., )
)
Plaintiffs, )
v. )
) Civil Action No. 18-1853
)
MATTHEW G. WHITAKER, Acting )
Attorney General of the United )
States, et al., )
)
Defendants. )
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.
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
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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
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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,
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e.g., Memorandum Opinion, ECF No. 106 at 100 n.30 (rejecting
argument that an injunction in this case is tantamount to class-
wide 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
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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:
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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).
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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.
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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
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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
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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
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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
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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.
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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
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