Guilford Coll. v. Wolf
| Decision Date | 06 February 2020 |
| Docket Number | 1:18CV891 |
| Parties | GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, THE NEW SCHOOL, FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, HAVERFORD COLLEGE, THE AMERICAN FEDERATION OF TEACHERS, JIA YE, and SEN LI, Plaintiffs, v. CHAD WOLF, U.S. DEPARTMENT OF HOMELAND SECURITY, KEN CUCCINELLI, and U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants. |
| Court | U.S. District Court — Middle District of North Carolina |
Plaintiffs challenge the U.S. Citizenship and Immigration Services' ("USCIS") issuance of an August 9, 2018 Policy Memorandum, PM-602-1060.1, titled "Accrual of Unlawful Presence and F, J, and M Nonimmigrants" (the "August 2018 PM"). (ECF No. 14.) On May 3, 2019, this Court preliminarily enjoined the August 2018 PM, having concluded that it was likely promulgated in violation of the Administrative Procedure Act (the "APA"), 5 U.S.C. §§ 551 et seq. (ECF No. 45.) The parties now cross-move for summary judgment. (ECF Nos.60; 62.) For the reasons that follow, the Court grants Plaintiffs' motion, denies the Government's motion, and permanently enjoins the August 2018 PM nationwide.
In 1996, Congress amended the Immigration and Nationality Act ("INA") to introduce a new concept called "unlawful presence." See 8 U.S.C. § 1182(a)(9)(B). A nonimmigrant2 person is deemed to be "unlawfully present" if that person is "present in the United States after the expiration of the period of stay authorized by the Attorney General." Id. The accrual of unlawful presence time can result in a penalty: Individuals who leave the United States after having been "unlawfully present" for more than 180 days are barred from reentering the country for three years. Id. § 1182(a)(9)(B)(i). Those who accumulate more than 365 days of unlawful-presence time may not return for ten years. Id.
For people admitted to the United States for a fixed period—for instance, a tourist whose visa has a firm expiration date—the determination of when "unlawful presence" time begins to accrue is straightforward. However, some nonimmigrant visa holders are not given precise dates upon which their authorized "period[s] of stay" expire. For example, an international student studying at an American university may be admitted for the "time during which [the] student is pursuing a full course of study at an [approved] educational institution . . . or engaging in authorized practical training following completion of studies." See 8 C.F.R.§ 214.2(f)(5). Such visas, including F, M, and J visas,3 are considered valid for "duration of status." Id.
Until recently, the unlawful-presence 'clock' would not begin to run against an F, M, or J visa holder until a government official—either an immigration judge or a USCIS adjudicator—formally identified an immigration status violation. (See ECF Nos. 57-1 at 66; 61-3 at 2-3.) However, in 2018, USCIS changed course. In a May 10, 2018 Policy Memorandum, the agency announced that, in order "[t]o reduce the number of [visa] overstays and to improve how USCIS implements the unlawful presence ground of inadmissibility under [the] INA," it would be "changing its policy on how to calculate unlawful presence." (ECF No. 57-1 at 30.) Under this new policy, which was memorialized in the August 2018 PM, unlawful presence starts to accrue not at the time an individual is formally found to be out of status, but from the time an adjudicator determines the status violation first occurred. (See id. at 19.)
According to Plaintiffs, this policy change could cause otherwise "unintentional errors" to result in "life-altering consequences." (ECF No. 61 at 8.) Because "unlawful presence" time begins to accrue under the August 2018 PM "[t]he day after [an F, J, or M visa holder] engages in an unauthorized activity," (ECF No. 57-1 at 19), minor violations—like failing to update an address, or working a single extra hour in a week—could result in a three- or ten-year reentry bar "with no opportunity to cure," (ECF No. 61 at 8-9).
Plaintiffs thus initiated this action on October 23, 2018 seeking to halt implementation of the August 2018 PM. (See ECF Nos. 1; 14.) Their complaint contains four related claims: (1) that in issuing the August 2018 PM, USCIS failed to observe rulemaking procedures required by the APA; (2) that the August 2018 PM is "substantively arbitrary and capricious"; (3) that the August 2018 PM conflicts with the statutory text of the INA; and (4) that the August 2018 PM violates the Due Process Clause of the Fifth Amendment. (See ECF No. 14 ¶¶ 185-221.) This Court issued a preliminary injunction on May 3, 2019; however, in the absence of a certified administrative record, which at that time had not yet been filed, it declined to rule on Plaintiffs' request for partial summary judgment. (See ECF No. 45 at 27-29.) That record has since been made available, (ECF Nos. 57-1; 57-2), and the Court now considers the parties' cross-motions for summary judgment.
Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "This rubric has a special twist in the administrative law context," see Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997), where summary judgment "serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." See Air Transp. Ass'n of Am. v. U.S. Dep't of Agric., 303 F. Supp. 3d 28, 38 (D.D.C. 2018) (quotation omitted); see also All. for Legal Action v. U.S. Army Corps of Eng'rs, 314 F. Supp. 2d 534, 541 (M.D.N.C. 2004).
Under the APA, courts must "hold unlawful and set aside" those agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5U.S.C. § 706(2)(A), "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right," id. § 706(2)(C), or undertaken "without observance of procedure required by law." id. § 706(2)(D). "Review under this standard is highly deferential, with a presumption in favor of finding the agency action valid." Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009). Nevertheless, the standard is not meant to "reduce judicial review to a 'rubber-stamp' of agency action." Id. (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir. 1976)). Rather, the court must engage in a "searching and careful" inquiry of the record in order to understand "the evidence relied upon and the evidence discarded; the questions addressed by the agency and those bypassed; [and] the choices open to the agency and those made." Id. at 192-93 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971); Ethyl Corp., 541 F.2d at 36).
Before addressing the merits, a brief discussion of jurisdiction is necessary. In its preliminary injunction Order, this Court ruled that Plaintiffs had standing to challenge the August 2018 PM and that this matter was ripe for judicial review. (See ECF No. 45 at 5-13.) The Government urges the Court to "reject that preliminary ruling," (ECF No. 63 at 10), despite the fact that Plaintiffs' burden to demonstrate jurisdiction is the same now as it was then, see Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011) (). While federal courts are always under "an obligation to assure ourselves" of jurisdiction, see DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006), this Court, having already determined that it has jurisdiction, is hesitant to rehash its prior analysis. However,given the attention devoted to standing and timeliness in the parties' briefing, the Court will reaffirm its conclusions here.4
While numerous Plaintiffs bring this suit, "the presence of one party with standing is sufficient to satisfy Article III's case-or-controversy requirement." Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014) (quoting Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006)). The two individual plaintiffs in this case, Jia Ye and Sen Li ("Individual Plaintiffs"), clearly have standing. (See ECF No. 45 at 6-8.) Both are foreign nationals who, after entering the United States on F-1 student visas, subsequently graduated or withdrew from school. (ECF Nos. 16-1 ¶¶ 2, 4, 10; 16-2 ¶¶ 2, 4, 10.) Both were then recruited by the U.S. Army via the Military Accessions Vital to National Interest ("MANVI") program, signed enlistment contracts, and were advised to remain in the country as they await orders to report to Basic Training. (ECF Nos. 16-1 ¶¶ 6-9; 16-2 ¶¶ 6-9.) However, under the August 2018 PM's unlawful-presence calculation methodology, Ye and Li also began accruing unlawful-presence time as soon as they concluded their studies and fell out of status. Thus, USCIS' policy puts the Individual Plaintiffs in an untenable position—if they stay to honor their enlistment contracts, they face a substantial likelihood of a reentry bar in the future; if they leave to avoid accruing more unlawful-presence time, they risk losing their chance to serve and earn U.S. citizenship. See Nat'l Venture Capital Ass'n v. Duke, 291 F. Supp. 3d 5, 13 (D.D.C. 2017) (). This injury in fact—the accrual of "unlawful presence"time in the here and now—is traceable to the August 2018 PM and will likely be redressed by the relief Plaintiffs seek. (See ECF No. 45 at 8.) That, in short, is enough to establish standing.
In its summary judgment briefing, the Government reiterates two previously rejected timing arguments: first, that...
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