Pangea Legal Servs. v. U.S. Dep't of Homeland Sec.

512 F.Supp.3d 966

PANGEA LEGAL SERVICES, et al., Plaintiffs,

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

Immigration Equality, et al., Plaintiffs,

v.U.S. Department of Homeland Security, et al., Defendants.

Case No. 20-cv-09253-JD

Case No. 20-cv-09258-JD

United States District Court, N.D. California.

Signed January 8, 2021

Jennifer Carol Pizer, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, Aaron M. Frankel, Chase Henry Mechanick, Jason M. Moff, Jeffrey S. Trachtman, Kramer Levin Naftalis & Frankel LLP, Omar Gonzalez-Pagan, Lambda Legal, Richard Saenz, Lambda Legal Defense and Education Fund, Inc., New York, NY, Bridget A. Crawford, Immigration Equality, Brooklyn, NY, Austin W. Manes, Kramer Levin Naftalis & Frankel, LLP, Menlo Park, CA, for Plaintiffs Immigration Equality, Oasis Legal Services, Black LGBTQIA Migrant Project.

Jennifer Carol Pizer, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, Aaron M. Frankel, Kramer Levin Naftalis & Frankel LLP, Omar Gonzalez-Pagan, Lambda Legal, Richard Saenz, Lambda Legal Defense and Education Fund, Inc., New York, NY, Bridget A. Crawford, Immigration Equality, Brooklyn, NY, Austin W. Manes, Kramer Levin Naftalis & Frankel, LLP, Menlo Park, CA, for Plaintiffs The Translatin Coalition, Transgender Law Center.

Christina P. Greer, August Flentje, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER RE PRELIMINARY INJUNCTION

Re: Dkt. No. 27

Re: Dkt. No. 13

JAMES DONATO, United States District Judge

In these two related actions, plaintiff immigration and asylum services organizations sue to block the implementation of a final rule that was issued last month by the Department of Homeland Security (DHS) and the Department of Justice (DOJ). The rule, titled Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review , 85 Fed. Reg. 80274, 8 C.F.R. parts 208, 235, 1003, 1208, 1235 (Dec. 11, 2020) (Rule), would make sweeping changes to the United States’ asylum system and is scheduled to go into effect on January 11, 2021. Plaintiffs have moved for a preliminary injunction to suspend the operation of the rule pending further proceedings. Pangea Dkt. No. 27, Immigration Equality Dkt. No. 13.¹ An injunction is granted.

BACKGROUND

The United States asylum system has a long and complicated history, and an enormous body of statutory and case law. A few main components bear highlighting here by way of background. Section 208 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1158, makes asylum available to any alien who is determined to be a "refugee" by the Secretary of Homeland Security or the Attorney General, regardless of the alien's immigration status. See 8 U.S.C. § 1158(a)(1), (b)(1)(A). A "refugee" generally includes anyone who cannot return to their home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion," 8 U.S.C. § 1101(a)(42), and once granted asylum, an alien may avoid removal, seek employment, and travel from and return to the United States. See 8 U.S.C. § 1158(c)(1). Section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), provides for withholding of an alien's removal from the United States to a country where "the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), opened for signature Dec. 10, 1984, 1465 U.N.T.S. 85, to which the United States is a signatory, provides that no treaty party "shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." 1464 U.N.T.S. at 114. The Secretary of Homeland Security and the Attorney General have general regulatory authority over asylum-related practices. See, e.g. , 8 U.S.C. §§ 1103(a)(1), (a)(3), (g), 1158(d)(1), 1231(b)(3)(A).

On June 15, 2020, the DHS and the DOJ (through its Executive Office of Immigration Review (EOIR)) published a notice of proposed rulemaking for the Rule. See Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review , 85 Fed. Reg. 36264-01 (June 15, 2020) (NPRM). The NPRM was 43 pages long in the Federal Register's format of three columns per page. The stated goals of the NPRM were to adopt "streamlined proceedings" for adjudicating applications for asylum, withholding of removal, and CAT protection, and "to specify what standard of review applies in such streamlined proceedings." NPRM at 36264. To those ends, the NPRM proposed a broad revision of current asylum practices in favor of "expedited" proceedings, which would entail a massive reworking of DHS's and DOJ's existing asylum regulations. Despite the breadth and scope of this undertaking, the NPRM provided just 30 days for public comments. See id. ("comments on the notice of proposed rulemaking must be submitted on or before July 15, 2020"). The government did not say in the rulemaking process why such a truncated comment period was warranted, and counsel for the government at the injunction hearing could not provide one. Even so, over 87,000 comments were submitted, and they overwhelmingly opposed the proposed rule, often with detailed reasoning and analysis. See Rule at 80284. These included 311 comments from "non-government organizations, legal advocacy groups, non-profit organizations, religious organizations, unions, congressional committees, and groups of members of Congress." Id.

The tidal wave of responses barely made an impact on the government. The final Rule published on December 11, 2020, was "substantially the same as the NPRM." Rule at 80274, 80276. The Rule significantly expands the circumstances under which an alien may be barred from asylum because he or she spent significant time in a third country before arriving in the United States, and effectively establishes a presumption against asylum claims that are rooted in gender-based persecution, among other changes. Id. at 80281-82. It also broadens the definition of a "frivolous" application to include applications "foreclosed by applicable law," as well as the circumstances under which an alien may be found to have "knowingly" filed a frivolous application, which then makes the alien permanently ineligible for asylum. Id. at 80279 (citing 8 U.S.C. § 1158(d)(6) ). Additionally, the Rule creates a new "pretermission" procedure under which an immigration law judge (ILJ) may reject an asylum application without a hearing if the ILJ determines that the applicant has failed to make a "prima facie case" for relief under existing regulations or other law, either sua sponte or in response to a motion by the DHS. Id. at 80280.

The Rule was signed by Attorney General William P. Barr and Chad R. Mizelle, the "Senior Official Performing the Duties of the General Counsel" for DHS. Id. at 80401. The Rule states that Chad F. Wolf, as the Acting Secretary of Homeland Security, "reviewed and approved" both the proposed rule and the final Rule, and "delegated" his signature authority to Mizelle. Id. at 80381, 80385. The Rule is scheduled to be implemented on January 11, 2020. Id. at 80274.

On December 21, 2020, ten days after the final Rule was published, plaintiffs sued to set it aside. Pangea Dkt. No. 1; Immigration Equality Dkt. No. 1. As alleged in the complaints, plaintiffs in the Pangea action are organizations that provide legal and other services to asylum seekers and immigrant communities. The Immigration Equality plaintiffs are organizations that provide services to lesbian, gay, bisexual, transgender, queer, and HIV-positive refugees. Both complaints allege that the Rule should be invalidated because Wolf was not a lawful Acting Secretary of Homeland Security with authority to sign off on the rulemaking, and that the Rule's many changes to the asylum system are arbitrary, capricious, unlawful, and procedurally improper under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq.

On December 22 and 23, 2020, both plaintiff groups filed applications for a temporary restraining order and preliminary injunction enjoining the Rule from going into effect on January 11, 2021. Pangea Dkt. No. 27; Immigration Equality Dkt. No. 13. In light of the circumstances, the Court ordered an accelerated briefing and hearing schedule, and the government opposed both motions on December 31, 2020. Pangea Dkt. Nos. 29, 48; Immigration Equality Dkt. Nos. 16, 20 37.² Plaintiffs filed replies on January 5, 2021, Pangea Dkt. No. 64; Immigration Equality Dkt. No. 52, and oral argument on the applications was heard by videoconference on January 7, 2021, Pangea Dkt. No. 65; Immigration Equality Dkt. No. 54.

DISCUSSION

I. LEGAL STANDARDS

Plaintiffs’ applications seek a temporary restraining order and a preliminary injunction. Where, as here, notice has been given to the adverse party, the legal standard is the same for both types of relief. See Fang v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , No. 16-cv-06071-JD, 2016 WL 9275454, at *1 (N.D. Cal. Nov. 10, 2016), aff'd , 694 F. App'x 561 (9th Cir. 2017) (citation omitted). Not only did the government receive notice, it filed two separate oppositions to the plaintiffs’ motions and it fully participated in oral argument at the motion hearing held on January 7, 2021. The Court consequently focuses on plaintiffs’ requests for a preliminary injunction. See Fed. R. Civ. P. 65(a)(1) (court may issue a preliminary injunction "on notice to the adverse party").

As the Supreme Court has emphasized, injunctive relief is "an extraordinary remedy never awarded as of right." Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). "A plaintiff...