Mansor v. United States Citizenship & Immigration Servs.

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FAYEZ MANSOR, et al., Plaintiffs, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.

No. C23-0347JLR

United States District Court, W.D. Washington, Seattle

August 25, 2023

ORDER

JAMES L. ROBART United States District Judge

I. INTRODUCTION

Before the court is Plaintiffs Fayez Mansor, Cabdi Ibrahim Xareed and Shukria Zafari's (collectively “Plaintiffs”) motion for class certification. (Mot. (Dkt. # 2); Reply (Dkt. # 38).) Defendants United States Citizenship and Immigration Services (“USCIS”), Secretary of the Department of Homeland Security Alejandro Mayorkas, and USCIS Director Ur Jaddou's (collectively, “Defendants”) oppose the motion. (Resp. (Dkt. # 36).)

The court has reviewed the parties' submissions, the balance of the record, and applicable law. Being fully advised,^[1]the court GRANTS in part Plaintiffs' motion.

II. BACKGROUND

Below, the court reviews the statutory and regulatory as well as factual and procedural backgrounds relevant to Plaintiffs' motion for class certification.

A. Statutory and Regulatory Background

The Immigration and Nationality Act (the “INA”) authorizes the Secretary of Homeland Security to award Temporary Protected Status (“TPS”) to noncitizens^[2]from countries with certain emergent conditions. See 8 U.S.C. § 1254a(b)(1) (allowing the Secretary to designate for TPS countries where there is an ongoing armed conflict, an environmental disaster, or epidemic). A noncitizen from a designated country is eligible for TPS if they: (1) have been “continually present in the United States since the effective date of the most recent designation” of their country of origin; (2) have “continuously resided in the United States” since the designation date; and (3) are “admissible as an immigrant.” Id. § 1254a(c)(1)(A)(i)-(iii). USCIS must deny TPS to certain classes of noncitizens, such as those involved in terrorist activities, convicted of a felony or at least two misdemeanors in the United States, or “if there are reasonable grounds for regarding the [noncitizen] as a danger to [U.S.] security.” Id. §§ 1254a(c)(2)(B), 1158(b)(2)(A).

TPS temporarily protects noncitizens from deportation or removal from the United States and grants them work authorization. Id. § 1254a(a)(1). Specifically, the statute provides that the government “shall authorize the [noncitizen] to engage in employment in the United States and provide the [noncitizen] with an ‘employment authorized' endorsement or other appropriate work permit.” Id. § 1254a(a)(1)(B). The statute further provides that, “[i]n the case of [a noncitizen] who establishes a prima facie case of eligibility for [TPS] benefits . . . until a final determination with respect to the [noncitizen's] eligibility for such benefits . . . has been made, the [noncitizen] shall be provided such benefits.” Id. § 1254a(a)(4)(B); see also 8 C.F.R. § 244.5(b) (“Upon the filing of an application for [TPS], the [noncitizen] shall be afforded temporary treatment benefits, if the application establishes the [noncitizen's] prima facie eligibility for [TPS].”). The statute's implementing regulations define “prima facie” as “eligibility established with the filing of a completed application for [TPS] containing factual information that if unrebutted will establish a claim for eligibility” under the statute. 8 C.F.R. § 244.1. The temporary treatment benefits are protection from deportation and employment authorization. See 8 U.S.C. § 1254a(a)(1); 8 C.F.R. § 244.10(e)(1). The regulation further provides that “[t]emporary treatment benefits shall be evidenced by the issuance of an employment authorization document” (“EAD”) and that “temporary treatment benefits shall remain in effect until a final decision has been made on the application for [TPS].” 8 C.F.R. § 244.10(e)(1), (2).

To apply for TPS, a noncitizen from a country designated for TPS must submit a completed Form I-821 (“TPS application”) during the designated registration period. See generally Instructions for Application for Temporary Protected Status, USCIS, https://www.uscis.gov/sites/default/files/document/forms/i-821instr.pdf (last visited Aug. 1, 2023)). According to USCIS, an electronically filed TPS application is reviewed through an automated “logic system” to ensure the fields are completed. (Orise Decl. (Dkt. # 37-1) ¶ 6.) TPS applications submitted by mail are reviewed for completeness by a contractor-operated “USCIS Lockbox.” (Id. ¶¶ 7-9.) According to USCIS, no eligibility determination is made in either of these “completeness” review processes. (Id. ¶¶ 6, 8.^[3]) If the TPS application is “complete” and the applicant has either submitted the application fee or a fee waiver, USCIS then sends a receipt notice acknowledging the completed application. See 8 C.F.R. § 103.2(a)(7)(i); (see Compl. (Dkt. # 1) ¶ 52; Maltese Decl. (Dkt. # 4) ¶ 3, Ex. A at 2 (“Mansor Receipt”), id. ¶ 4, Ex. B at 2 (“Zafari Receipt”)).

Next, both mailed and electronically filed applications are, if complete, placed in an electronic queue with other TPS applications from the same country for review in the order they were filed. (Orise Decl. ¶¶ 6-7, 13 & n.4.) USCIS then schedules a biometric appointment for the applicant. (Id. ¶ 11.) Finally, after the biometric data is collected and processed, an Immigration Service Officer (“ISO”) begins the “initial review” to determine whether the applicant is eligible. (Id. ¶ 13.) USCIS acknowledges that “is required to assess TPS eligibility factors in both the prima facie determination and the final adjudication processes.” (Id. ¶ 14 (emphasis removed).) According to USCIS, “to be more efficient, USCIS simultaneously assesses the prima facie determination and approvability during the ISO's initial review of the file.” (Id. (describing this as “processing and completing adjudication in one touch”).) USCIS states that if the applicant is prima facie eligible, but the ISO cannot approve the TPS application, the ISO will issue a prima facie eligibility determination and either request additional evidence or issue a Notice of Intent to Deny the TPS application. (Id. ¶¶ 14-15.) If, on the other hand, the ISO can approve the TPS application at this stage, it will do so without having ever issued temporary treatment benefits. (Id. ¶ 14.)

Under USCIS's current processes, the TPS application receipt does not contain an “employment authorized” endorsement, and TPS applicants must separately apply for an EAD using Form I-765. (Compl. ¶ 28); see also A.A. v. U.S. Citizenship & Immigr. Servs., Case No. C15-0813JLR, 2018 WL 1811352, at *1 (W.D. Wash. April 17, 2018) (discussing the Form I-765 application).^[4]

B. Factual Background

Plaintiffs are noncitizens from countries designated for TPS. (See Compl. ¶¶ 15-18.) Each of the Plaintiffs has applied for TPS and employment authorization and, with one exception, received receipt notices from USCIS confirming their submission of complete applications. (See id. ¶¶ 15-18, 72-73, 75, 78-79, 81, 83, 85, 87, 91-92, 94.) Plaintiffs assert that they meet the prima facie eligibility criteria for TPS but, as of the filing of the complaint,^[5]had yet to receive temporary employment authorization incident to their TPS applications. (See id. ¶¶ 74, 80, 86, 93.)

Afghanistan is currently designated for TPS. (Id. ¶¶ 59-60.) Plaintiff Fayez Mansor is a noncitizen from Afghanistan who applied for TPS on February 21, 2023. (Id. ¶¶ 72-73; Mansor Receipt.) Mr. Mansor has resided in the United States since he first entered the country with parole and applied for TPS and employment authorization on February 21, 2023. (Id. ¶¶ 73-74.) Mr. Mansor has temporary employment authorization through his parole status, which is not associated with his TPS application and is set to expire on October 3, 2023. (Id. ¶ 76.) Mr. Mansor alleges that losing his work authorization will cause him “significant harm” because he will lose his job and be unable to pay for basic expenses. (Id. ¶ 77.) Plaintiff Shukria Zafari is a noncitizen from Afghanistan who has resided in the United States since she first entered the country on parole on September 8, 2021, after being evacuated from Afghanistan. (Id. ¶¶ 91, 93.) Ms. Zafari applied for TPS and employment authorization on January 3, 2023. (Id. ¶¶ 91-92; Zafari Receipt.)

Ms. Zafari also has temporary employment authorization through her parole status, which is not associated with her TPS application and will expire in September 2023. (Id. ¶ 95.) Ms. Zafari also alleges she will endure “significant harm” if she loses her employment authorization and will be unable to support herself and two of her three children who live with her in the United States. (Id. ¶ 96.)

Somalia is currently designated for TPS. (Id. ¶¶ 59, 65.) Plaintiff Cabdi Ibrahim Xareed is a noncitizen from Somalia who has resided in the United States since he first entered the country without authorization on September 23, 2022, seeking asylum. (Id. ¶ 83.) Mr. Xareed is in removal proceedings. (Id. ¶ 84.) Mr. Xareed applied for TPS and employment authorization on February 23, 2023. (Id. ¶ 85.) Mr. Xareed has not received receipt notices from USCIS for his applications or temporary employment authorization. (Id. ¶¶ 86-87.) Mr. Xareed alleges that “[e]mployment authorization is critical” for him because he does not have family in the United States to support him and he needs financial resources to find his wife and daughter in Somalia. (Id. ¶¶ 88-89.)

C. Procedural Background

Plaintiffs filed this proposed class action, asserting claims under the Declaratory Judgment Act, 28 U.S.C. § 2201, the Administrative Procedure Act, 5 U.S.C. § 701, et seq., and the Fifth Amendment's Due Process Clause U.S. Const. amend. V. (See Compl. ¶¶ 105-25.) On August 2, 2023,...