DocketNumber: Case No. 18-cv-04914-NC
Citation Numbers: 341 F. Supp. 3d 1048
Filed Date: 10/24/2018
Status: Precedential
Modified Date: 7/25/2022
Even if the Court accepts USCIS's characterization of its guidance as a "clarification" with no substantive effect, "an agency's duty to explain cogently the bases of its decisions is not limited to circumstances in which the agency departs directly from an earlier path." Humane Soc'y ,
Accordingly, the Court finds that Plaintiffs have shown a likelihood of success on the merits with regards to their claim that USCIS failed to provide a reasoned explanation.
c. Whether USCIS Was Required to Provide Adequate Notice
Finally, Plaintiffs contend that USCIS was required to follow the APA's procedural requirements. See Dkt. No. 6 at 16. USCIS argues that it was not required to follow the APA's notice and comment procedures because its new policy is not a substantive rule. Rather, the new policy is an interpretive rule that preserves USCIS officers' ability to make individualized determinations. See Dkt. No. 34 at 15-16.
The APA requires a federal agency to follow prescribed notice and comment procedures before promulgating substantive rules. See
In Colwell v. Department of Health and Human Services ,
The critical factor to determine whether a directive announcing a new policy constitutes a rule or a general statement of policy is "the extent to which the challenged *1065[directive] leaves the agency, or its implementing official free to exercise discretion to follow, or not to follow, the [announced] policy in an individual case ....
To the extent that the directive merely provides guidance to agency officials in exercising their discretionary power while preserving their flexibility and their opportunity to make "individualized determination[s]," it constitutes a general statement of policy .... In contrast, to the extent that the directive "narrowly limits administrative discretion" or establishes a "binding norm" that "so fills out the statutory scheme that upon application one need only determine whether a given case is within the rule's criterion," it effectively replaces agency discretion with a new "binding rule of substantial law."
Colwell ,
Here, some of the language used in the CHAP is couched in terms that appear to suggest that the policy is not mandatory and preserves USCIS officers' discretion. See, e.g. , CHAP at 7 ("it may be appropriate to deny [the petition] on the basis that the evidence does not establish eligibility ....") (emphasis added);
However, the CHAP also contains language that effectively nullifies the discretionary language quoted above. For example, the CHAP states that petitioners can submit supplemental evidence such as "a copy of the petition with state law citations, excerpts from relevant state statutes considered by the state court prior to issuing the order" and "evidence [showing] that the court actually relied on those laws when making its findings." CHAP at 7-8. But the CHAP also states that:
California civil procedures were updated to provide jurisdiction to all Superior courts in California to make "the factual findings" required by 8 USC 1101(a)(27)(J)(i). See CA Civ. Pro. Section 155. However, USCIS views the required findings as legal conclusions on matters of child welfare that must be made by courts of competent jurisdiction. The change in California law does not appear to provide the courts with the power and legal authority to make decisions about a parent's ability to have custody of an individual over 18.
USCIS's actions reinforce the conclusion that its new policy is a mandatory substantive rule. In support of her SIJ petition, J.L. submitted a juvenile court order with SIJ findings from the California Superior Court for the County of Los Angeles. See Dkt. No. 17, Ex. E at 70. In that order, the Superior Court stated that "[t]his Court is a juvenile court with authority to make decisions about the care and custody of minors. See Cal. Code Civ. Pro. § 155(a)(1)...." Id. at 72. The Superior Court also stated that it "has the authority to determine that reunification with [J.L.'s] parents is not viable ...." Id. at 73 (citing *1066
Accordingly, the Court finds that Plaintiffs have shown a likelihood of success on their claim that USCIS was required and failed to follow the notice and comment procedures of the APA.
2. Final Agency Action
Despite the foregoing reasons, USCIS argues that Plaintiffs nonetheless fail to show a likelihood of success or raise serious questions on the merits because three of the four named plaintiffs do not have judicially reviewable "final agency actions."
Judicial review of agency actions is allowed "so long as the decision challenged represents a 'final agency action for which there is no other adequate remedy in court.' " W. Radio Serv. Co. v. U.S. Forest Serv. ,
An agency action is final if (1) it "marks the consummation of the agency's decision-making process-it must not be of a merely tentative or interlocutory nature" and (2) is "one by which rights or obligations have been determined, or from which legal consequences will flow." Bennett v. Spear ,
Here, USCIS attempts to characterize the relevant agency action as its denials (or, in the case of M.V.B., M.D.G.B., and J.B.A., its non-denials) of SIJ status. USCIS argues that because it has not issued final decisions on M.V.B., M.D.G.B., and J.B.A.'s SIJ petitions, Plaintiffs' motion should be denied as to those plaintiffs for lack of a judicially reviewable final action. See Dkt. No. 34 at 13. As to J.L.'s claims, USCIS argues that the REAL ID Act of 2005,
USCIS's arguments are not persuasive. Plaintiffs' lawsuit is not directly concerned with USCIS's specific denials of their SIJ petitions. Rather, the instant action seeks to curb USCIS's adoption of a dubious legal theory to justify a blanket policy of denying SIJ petitions for immigrant juveniles between the ages of 18-20. Specifically, Plaintiffs challenge USCIS's requirement that SIJ findings must be made by a state juvenile court with the power to actually *1067reunify petitioners with their biological parents. Although USCIS's adoption of this legal theory may result in denials of SIJ status for specific SIJ petitions, it is USCIS's adoption of that theory, not the specific SIJ adjudications that may follow, that is at issue in this case.
Under the Bennett test, USCIS's new policy is a reviewable final agency action. First, USCIS's new policy was the "consummation of the agency's decision-making process." Bennett ,
Rosenstock's declaration provides a similar and more detailed account of USCIS's decision-making process. In October 26, 2016, USCIS issued "new chapters" in its policy manual guidance regarding SIJ classification. Rosenstock Decl. ¶ 9. The guidance clarified that "a valid juvenile court order requires the state to have jurisdiction over the petitioner's care and custody under state law."
A recent Ninth Circuit decision reinforces this conclusion. In Navajo Nation v. United States Dept. of Interior ,
Similarly, in Alaska v. United States E.P.A. ,
In this case, USCIS made a legal determination that SIJ petitioners must produce evidence that the state court providing SIJ findings had the power to compel *1068family reunification. USCIS has acted pursuant to that guidance by revising the CHAP and denying SIJ petitions pursuant to the new guidance. USCIS's internal publication marks the consummation of the USCIS's decision-making process. It is clear from USCIS's conduct that there "would be no further agency decisionmaking" regarding their interpretation of the SIJ statute and the first Bennett requirement is satisfied. Navajo Nation ,
The second Bennett requirement is also met because "legal consequences will flow" from USCIS's adoption of the OCC's new legal theory. Bennett ,
USCIS's relies on Reiter v. Cooper ,
In sum, USCIS's adoption of the OCC's new interpretation of the SIJ statute constitutes final agency action that is appropriate for judicial review. Because Plaintiffs have demonstrated that they are likely to succeed on their APA claim in general, the first Winter factor weighs heavily in favor of granting the preliminary injunction.
B. Irreparable Harm
"Irreparable harm is traditionally defined as harm for which there is no adequate legal remedy, such as an award of damages." Ariz. Dream Act Coalition v. Brewer (Ariz. I) ,
If USCIS is permitted to continue to rely on its interpretation of the SIJ statute, Plaintiffs suffer irreparable harm by losing eligibility for SIJ status and all attendant benefits. For example, SIJ designees are exempt from a variety of grounds for removal, such as "being found to be a 'public charge,' lacking a 'valid entry document,' or having 'misrepresented a material fact'-while seeking admission into the United States." Osorio-Martinez v. Attorney General U.S.A. ,
In addition, the Ninth Circuit has recognized that losing professional opportunities constitutes irreparable harm. Ariz. I ,
USCIS argues that Plaintiffs will not be injured absent a preliminary injunction because their inability to obtain work authorization and lack of SIJ status is merely "a continuation of their status quo as aliens without legal status ...." Dkt. No. 34 at 22. This argument is not persuasive. The relevant injury is not Plaintiffs' current inability to work; it is the lost eligibility for SIJ status and their continued inability to obtain work authorization that follows as a result. Put differently, if USCIS is enjoined from implementing their purportedly unlawful policy, Plaintiffs can use California juvenile court orders to obtain SIJ status and enjoy its associated benefits. Absent a preliminary injunction, Plaintiffs will lose that opportunity and it is that lost opportunity which constitutes their irreparable injury. Cf. Ariz. I ,
Plaintiffs are also likely to suffer irreparable harm in the form of removal proceedings. USCIS does not dispute that being deported constitutes irreparable harm under Winter . Rather, USCIS argues that such harm is too speculative. The Court disagrees.
On January 25, 2017, the President issued an Executive Order directing federal agencies "to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens." Executive Order 13768,
*1070Thus, the Court finds that Plaintiffs have shown that they are likely to suffer irreparable harm in the absence of a preliminary injunction. The second Winter factor weighs in favor of granting an injunction.
C. Balance of Hardships and the Public Interest
The balance of hardships and public interest factor merge when the government is the opposing party. Nken v. Holder ,
Because Plaintiffs have satisfied the first and second Winter factors, the balance of hardship and public interest factors are also met. Because all four Winter factors weigh in favor of granting a preliminary injunction, the Court GRANTS Plaintiffs' motion for preliminary injunction.
D. Bond and the Scope of Relief
Federal Rule of Civil Procedure 65(c) permits preliminary injunctions "only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained." Despite the mandatory language, " Rule 65(c) invests the district court with discretion as to the amount of security required, if any." Johnson v. Couturier ,
Preliminary injunctive relief is generally "limited to apply only to named plaintiffs where there is no class certification" unless extending injunctive relief to an absent class is necessary "to give prevailing parties the relief to which they are entitled." Easyriders Freedom F.I.G.H.T. v. Hannigan ,
Although a class has not yet been certified, California-wide preliminary injunctive relief is necessary to preserve the status quo and to prevent irreparable harm for all Plaintiffs and the putative class. See Price v. City of Stockton ,
IV. Conclusion
Plaintiffs' motion for preliminary injunction is GRANTED. During the pendency of this action:
1. It is hereby ORDERED that Director Lee Francis Cissna, Secretary Kirstjen M. Nielsen, Director Robert Cowan, the United States Department of Homeland Security, and the United States Citizenship *1071and Immigration Services, their officers, agents, employees, representatives, and all persons acting in concert or participating with them are ENJOINED AND RESTRAINED;
2. From denying Special Immigrant Juvenile Status pursuant to8 U.S.C. § 1101 (a)(27)(J) on the ground that a California Probate Court does not have jurisdiction or authority to "reunify" an 18- to 20-year-old immigrant with his or her parents;
3. From initiating removal proceedings against or removing any Special Immigrant Juvenile Status petitioner who was appointed a guardian pursuant to § 1510.1(a) of the California Probate Code and whose Special Immigrant Juvenile Status petition has been denied on the grounds that the California Probate Court did not have jurisdiction or authority to "reunify" an 18- to 20-year-old immigrant with his or her parents; and
4. To provide no less than 14 days notice to Plaintiffs' counsel before Defendants take any adverse adjudicatory or enforcement action against any of the individual Plaintiffs or members of the Proposed Class.
Within 28 days of this Order, Plaintiffs must move for class certification pursuant to Federal Rule of Civil Procedure 23.
Within 14 days of this Order, Defendants must serve and file a declaration verifying that they have complied with this Order and detailing what steps, if any, they have taken to do so. The parties also must meet and confer within 14 days from the date of this Order and file an initial Rule 26(f) Report and Case Management Statement.
IT IS SO ORDERED.
Because the Court concludes that Plaintiffs are likely to succeed on their APA claim, it declines to address the viability of their Due Process claims at this time.
Plaintiffs also claim that a member of their proposed class, J.A.L., was placed in removal proceedings after being denied SIJ status. See Dkt. No. 6 at 22. To substantiate their claim, Plaintiffs attached a declaration by J.A.L.'s attorney with redacted documentation. See Dkt. No. 17-4. Because USCIS does not know J.A.L.'s identity, it is unable to verify Plaintiffs' claims. In the interest of fairness, the Court will not rely on Plaintiffs' claims regarding J.A.L. at this time.