Galvez v. Jaddou

• Docket Number: 20-36052
• Decision Date: 03 November 2022
• Citation: 52 F.4th 821
• Parties: Leobardo Moreno GALVEZ; Jose Luis Vicente Ramos; Angel De Jesus Munoz Olivera, on behalf of themselves as individuals and others similarly situated, Plaintiffs-Appellees, v. Ur M. JADDOU, Director, United States Citizenship and Immigration Services ; Alejandro N. Mayorkas, Secretary, United States Department of Homeland Security; Robert Cowan, Director, National Benefits Center ; U.S. Department of Homeland Security; United States Citizenship and Immigration Services, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

52 F.4th 821

Leobardo Moreno GALVEZ; Jose Luis Vicente Ramos; Angel De Jesus Munoz Olivera, on behalf of themselves as individuals and others similarly situated, Plaintiffs-Appellees,

v.Ur M. JADDOU^* , Director, United States Citizenship and Immigration Services ; Alejandro N. Mayorkas, Secretary, United States Department of Homeland Security; Robert Cowan, Director, National Benefits Center ; U.S. Department of Homeland Security; United States Citizenship and Immigration Services, Defendants-Appellants.

No. 20-36052

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 2022 Portland, Oregon

FILED NOVEMBER 3, 2022

Matt Adams (argued), Aaron Korthuis, Leila Kang, and Margot M. Adams, Northwest Immigrant Rights Project, Seattle, Washington; Tim Warden-Hertz, Meghan E. Casey, and Olivia Saldaña-Schulman, Northwest Immigrant Rights Project, Tacoma, Washington; for Plaintiffs-Appellees.

Katelyn Massetta-Alvarez (argued) and Elizabeth R. Veit, Trial Attorneys; William C. Silvis, Assistant Director; William C. Peachey, Office of Immigration Litigation Director, District Court Section; Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division; Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C.; Matt Waldrop, Assistant U.S. Attorney, Office of the United States Attorney, Seattle, Washington; for Defendants-Appellants.

Catherin Weiss, Tracy Buffer, Amanda K. Cipriano, and Maxine Peskens, Lowenstein Sandler LLP, Roseland, New Jersey, for Amici Curiae Catholic Legal Immigration Network Inc. (Clinic), Diocesan Migrant & Refugee Services Inc., The Door, Florence Immigrant & Refugee Rights Project, Immigrant Justice Corps, Kids in Need of Defense (KIND), Lawyers' Committee for Civil Rights of the San Francisco Bay Area, The Legal Aid Society, New Jersey Consortium for Immigrant Children, Political Asylum/Immigration Representation Project (PAIR), Public Counsel, Safe Passage Project, and Young Center for Immigrant Children's Rights.

Before: Susan P. Graber and Carlos T. Bea, Circuit Judges, and Christina Reiss,^** District Judge.

Opinion by Judge Bea ;

Partial Dissent by Judge Graber

OPINION

BEA, Circuit Judge:

United States Citizenship and Immigration Services ("USCIS") administers the Special Immigrant Juveniles ("SIJ") program, which provides certain immigrant juveniles a pathway to lawful permanent residence status. Federal law requires the "[e]xpeditious adjudication" of SIJ petitions: "[a]ll applications for special immigrant status ... shall be adjudicated by the Secretary of Homeland Security not later than 180 days after the date on which the application is filed." 8 U.S.C. § 1232(d)(2). But the Secretary has not always met this deadline. In fact, as of September 24, 2018, USCIS had a backlog of 32,518 SIJ petitions, 23,589 of which had been pending for more than 180 days.

This case does not require us to decide whether USCIS violated § 1232(d)(2) by delaying the adjudication of SIJ petitions. The district court held that USCIS's delays were unlawful, and the Government does not challenge that holding on appeal. At issue is only whether the district court erred, after granting summary judgment to the plaintiffs, by issuing a permanent injunction and in crafting its terms and scope. The injunction holds USCIS strictly to the 180-day deadline but permits SIJ petitioners in certain circumstances to "toll" the deadline to respond to a request for evidence or a notice of intention to deny sent by USCIS. We affirm the district court's issuance of the permanent injunction and, in part, affirm the injunction's scope and terms. But because the injunction's tolling provision is not narrowly tailored to remedying irreparable harm, does not contemplate USCIS's relevant regulations, and reflects a failure to measure the parties' proposed tolling provisions each by the same standard, we vacate the tolling provision and remand to the district court for further proceedings consistent with this opinion.

I.

Plaintiffs—three SIJ petitioners who now represent a certified class of some current and future SIJ petitioners from Washington State—filed suit in the district court against the Director of USCIS, the Secretary of Homeland Security, the director of the USCIS National Benefits Center ("NBS"), the Department of Homeland Security ("DHS"), and USCIS (collectively, "Defendants" or the "Government"), seeking declaratory and injunctive relief. The complaint alleged that Defendants "have an unlawful practice of delaying the adjudication of [SIJ] petitions filed by proposed class members beyond the 180-day statutory deadline" in violation of 8 U.S.C. § 1232(d)(2), 5 U.S.C. § 555(b), and 5 U.S.C. § 706(1). The complaint also alleged that USCIS violated the Immigration and Nationality Act ("INA") and the Administrative Procedure Act ("APA") by adopting legal guidance in 2018 ("2018 Legal Guidance") that caused many juveniles who were at least eighteen but younger than twenty-one to become ineligible for SIJ status. Because Plaintiffs' claim about the 2018 Legal Guidance is no longer at issue in this case, we do not describe it in detail.¹

On July 17, 2019, the district court granted Plaintiffs' motion for class certification² and Plaintiffs' motion for a preliminary injunction. As relevant now, the preliminary injunction ordered USCIS to:

adjudicate all outstanding [SIJ] petitions based on a Washington state court order within thirty days of the date of this Order if more than 150 days have already passed since the petition was filed ... [or otherwise] within the 180-day period set forth in the statute in the absence of an affirmative showing that the petition raises novel or complex issues which cannot be resolved within the allotted time.

The district court denied Defendants' motion for reconsideration of the preliminary injunction.

While subject to the preliminary injunction, USCIS adjudicated or re-adjudicated the SIJ petitions of the three named Plaintiffs and "made efforts to identify absent class members" and adjudicate their SIJ petitions. The SIJ petitions of the three named Plaintiffs were all approved. As of October 5, 2020, the parties stated that they were not aware of any more outstanding petitions from any class member.

In October 2019, USCIS effectively rescinded its 2018 Legal Guidance.³ Separately, USCIS re-opened the public comment period for a proposed rule that was initially published in September 2011, setting forth the agency's interpretation of and intent regarding the expeditious adjudication provision of 8 U.S.C. § 1232(d)(2) :

USCIS intends to adhere to the 180-day benchmark, taking into account general USCIS regulations pertaining to receipting of petitions, evidence and processing, and assuming the completeness of the petition and supporting evidence. Proposed 8 CFR 204.11(h) ; 8 CFR 103.2. The 180-day timeframe begins when the SIJ petition is receipted, as reflected in the receipt notice sent to the SIJ petitioner. 8 CFR 103.2(a)(7). If USCIS sends a request for initial evidence, the 180-day timeframe will start over from the date of receipt of the required initial evidence. 8 CFR 103.2(b)(10)(i). If USCIS sends a request for additional evidence, the 180-day timeframe will stop as of the date USCIS sends the request, and will resume once USCIS receives a response from the SIJ petitioner. 8 CFR 103.2(b)(10)(i). USCIS will not count delay attributable to the petitioner or his or her representative within the 180-day timeframe.

76 Fed. Reg. at 54983 (hereinafter "Proposed Rule").⁴

On October 5, 2020, the district court granted Plaintiffs' motion for summary judgment on all counts, denied Defendants' motion for summary judgment, and entered a permanent injunction against Defendants.

In granting summary judgment to Plaintiffs, the district court held that "USCIS's delayed consideration of SIJ petitions for periods well past the 180 days specified in the governing statute is ... unlawful." The district court rejected Defendants' argument "that USCIS is authorized to extend the deadline at any point by asking the petitioner for additional information" on the theory that, "by tying the running of the 180-day period to the date an SIJ application is filed, Congress has provided USCIS with discretion to toll that 180-day deadline in situations where the agency seeks new or additional evidence or information from the SIJ petitioner." The district court reasoned that "Congress unambiguously intended the adjudication to be expeditious, providing a clear and mandatory deadline" and, while "[u]nder governing case law, that deadline is not absolute, ... it [nevertheless] provides the frame of reference for determining what is reasonable." Noting that all the named Plaintiffs in this case "waited far more than 180 days for a determination of their petitions with no indication that their cases raised novel or complex issues" and that "[t]wo of the named plaintiffs waited three or four times the number of days Congress allowed before receiving an agency determination," the district court held that Defendants' "adjudications were not expeditious and the delays were not reasonable in light of the time frame chosen by Congress."⁵

The district court then balanced the traditional equitable factors of irreparable injury, inadequate remedies at law, and the balance of hardships between the parties and the public interest, and determined that it should issue a permanent injunction. Plaintiffs filed proposed terms for the permanent injunction. Defendants proposed in briefing that the court " ‘adopt the tolling approach set out in the agency's [Proposed Rule]’ so that the deadline resets or is tolled if the agency requests additional information." The district court entered a permanent injunction that, consistent with Plaintiffs' proposed terms, requires Defendants to adjudicate SIJ applications based on Washington state court orders within Congress's 180-day-from-filing deadline,...