Centro Legal De La Raza v. Exec. Office for Immigration Review, Case No. 21-cv-00463-SI

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtSUSAN ILLSTON, United States District Judge
Citation524 F.Supp.3d 919
Parties CENTRO LEGAL DE LA RAZA, et al., Plaintiffs, v. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al., Defendants.
Docket NumberCase No. 21-cv-00463-SI
Decision Date10 March 2021

Naomi Ariel Igra, Irene Inkyu Yang, Scott T. Nonaka, Stephen Chang, Sidley Austin LLP, Anoop Prasad, Jingni (Jenny) Zhao, Glenn Michael Katon, Asian Americans Advancing Justice - Asian Law Caucus, San Francisco, CA, Amalia Margarete Wille, Judah Ben Lakin, Lakin & Wille LLP, Oakland, CA, Michael O. McGuinness, Pro Hac Vice, Seferina Young Berch, Pro Hac Vice, Sidley Austin LLP, New York, NY, for Plaintiffs.

Adrienne Zack, United States Attorney's Office, San Francsico, CA, Christina P. Greer, United States Department of Justice, Washington, DC, for Defendants.


Re: Dkt. No. 24

SUSAN ILLSTON, United States District Judge


On December 16, 2020, the Department of Justice and the Executive Office of Immigration Review, an agency within DOJ, issued a final rule that made sweeping changes to the procedures and regulations governing immigration courts in this country. Appellate Procedure and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 Fed. Reg. 81,588 (Dec. 16, 2020) ("the Rule"). In the Rule, EOIR stated that it was implementing "multiple changes to the processing of appeals to ensure the consistency, efficiency, and quality of its adjudications." Id. at 81,588. The Rule was one of many affecting the immigration system that were proposed and finalized during 2020, and in particular during the final months of the Trump administration.

Plaintiffs are four non-profit legal services agencies and organizations that represent immigrants and refugees before the immigration courts. Plaintiffs contend that the Rule strips away critical procedural protections for immigrants, impermissibly departs from long-standing practices by restricting the authority of immigration judges to grant relief to noncitizens in removal proceedings, and generally obstructs the ability of noncitizens and refugees to pursue relief from deportation, including humanitarian relief that Congress has explicitly provided for by statute, such as humanitarian visas for survivors of domestic violence and human trafficking. Plaintiffs also contend that the changes implemented by the Rule will impede rather than promote efficiency.

Plaintiffs assert a number of claims under the Administrative Procedure Act and the Due Process Clause of the United States Constitution. Plaintiffs contend that the agencies did not provide the public with sufficient time to comment on a rule of such magnitude, and that the Rule was the result of arbitrary and capricious decision-making. Plaintiffs seek a preliminary injunction to enjoin the Rule from being implemented nationwide.

For the reasons that follow, the Court will GRANT plaintiffsmotion for a preliminary injunction enjoining defendants from implementing and enforcing the Rule. Although technical and procedural in nature, the Rule imposed extensive changes with profound implications for noncitizens in removal proceedings before immigration courts and for the legal service providers who represent them. Under these circumstances, the Court finds that plaintiffs have shown that they are likely to succeed on their claim that the 30 day public comment period provided for the Rule was inadequate under the APA, particularly in the context of the global COVID-19 pandemic and the numerous other concurrent regulatory changes to the immigration system, many of which directly intersect with the Rule at issue here. Further, the Court finds that plaintiffs have shown they are likely to succeed on their claim that the agencies did not engage in reasoned decision-making when formulating the Rule by "fail[ing] to consider an important aspect of the problem," Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), including that the changes implemented by the Rule will foreclose noncitizens from seeking humanitarian relief to which they may be entitled and will result in the deportation of noncitizens who have meritorious claims for relief.

I. Relevant Legal Framework for Removal Proceedings
A. Applicable Law

To understand how the Rule challenged in this case changes immigration practice and procedure, it is necessary first to provide an overview of the legal and regulatory framework that applies to noncitizens in removal proceedings. The Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. , is a comprehensive statutory scheme governing removal proceedings against noncitizens and creates a process through the immigration courts and the Board of Immigration Appeals ("BIA") to adjudicate charges of removability and to allow people to present defenses to removal and certain claims for relief. Noncitizens can be placed in removal proceedings for a variety of reasons, including by violating status requirements or entry conditions or committing certain criminal violations. See generally id. at § 1227 ("Classes of deportable aliens").

"[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Zadvydas v. Davis , 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). "[D]ue process requires that [removal] hearings be fundamentally fair." Rosales v. Bureau of Immigration and Customs Enforcement , 426 F.3d 733, 736 (5th Cir. 2005) ; Oshodi v. Holder , 729 F.3d 883, 889 (9th Cir. 2013) (en banc) ("It is well established that the Fifth Amendment guarantees non-citizens due process in removal proceedings."). Removal is a "particularly severe penalty" that can be imposed only after a "full and fair hearing." Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 1213, 200 L.Ed.2d 549 (2018) (internal citation omitted).

The INA incorporates the United States’ treaty obligations to refugees by providing that "the Attorney General may not remove an alien to a country if the Attorney General decides that 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." 8 U.S.C. § 1231(b)(3)(A) ; see also generally I.N.S. v. Cardoza-Fonseca , 480 U.S. 421, 427-29, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (discussing Refugee Act of 1980). Noncitizens in removal proceedings can assert eligibility for asylum as a defense to removal, and noncitizens may also seek asylum affirmatively by filing an application with United States Citizenship and Immigration Services. See 8 C.F.R. §§ 208.2, 1208.2 ; see also O.A. v. Trump , 404 F. Supp. 3d 109, 121 (D.D.C. 2019) (discussing affirmative and defensive applications for asylum).

B. Immigration Court Proceedings and BIA Appeals

The Executive Office for Immigration Review ("EOIR") is an agency within the U.S. Department of Justice ("DOJ") that oversees the immigration courts and the BIA. See 8 C.F.R. § 1003; see also https://justice.gov/eoir/about-office. There are approximately 460 immigration judges ("IJs") in 67 immigration courts nationwide, as well as 23 Appellate IJs who lead the BIA. See Opp'n at 1 (Dkt. No. 47). A separate agency, the United States Citizenship and Immigration Services ("USCIS"), is part of the Department of Homeland Security ("DHS") and is responsible for administering asylum applications through its asylum officers, as well as having exclusive jurisdiction to adjudicate various types of applications for visas and adjustments of status. See 6 U.S.C. § 271(b).

The INA requires an IJ presiding over a removal proceeding to "administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses." 8 U.S.C. § 1229a(b)(1). "The determination of the immigration judge shall be based only on the evidence produced at the hearing." Id. at § 1229a(c)(1)(A). The INA also provides,

(4) Alien's rights in proceeding
In proceedings under this section, under regulations of the Attorney General
(A) the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien's choosing who is authorized to practice in such proceedings,
(B) the alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien's own behalf, and to cross-examine witnesses presented by the Government but these rights shall not entitle the alien to examine such national security information as the Government may proffer in opposition to the alien's admission to the United States or to an application by the alien for discretionary relief under this chapter, and
(C) a complete record shall be kept of all testimony and evidence produced at the proceeding.

Id. at § 1229a(b)(4). An order of removal issued by an IJ is not final until the BIA has affirmed the order or the time to appeal has expired. Id. at § 1101(a)(47)(B).

Because the INA specifies that noncitizens may be represented (at no expense to the government) by counsel of their choosing, the EOIR maintains a List of Pro Bono Legal Service Providers that "shall be provided to individuals in removal proceedings before an immigration court." Id. § 1229(b)(2); 8 C.F.R. § 1003.61(b).1 In fiscal year 2020, noncitizens were pro se in 69.6% of cases before IJs (135,161 cases out of a total of 194,108). See https://trac.syr.edu/phptools/immigration/nta/about_data.html.

The specific procedures and practices for administering removal proceedings are set forth in regulations. See generally 8 C.F.R. § 1003 et seq. Parties have 30 days to file a notice of appeal with the BIA from an adverse decision by an IJ; both the noncitizen and the government may appeal an IJ's decision to the BIA. Id. at § 1003.3(a)(1) (2021). The 30 day clock begins to run from the time...

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