Nw. Immigrant Rights Project v. U.S. Citizenship & Immigration Servs., CASE NO. C15-0813JLR

• Decision Date: 05 October 2016
• Docket Number: CASE NO. C15-0813JLR
• Court: U.S. District Court — Western District of Washington
• Parties: NORTHWEST IMMIGRANT RIGHTS PROJECT, et al., Plaintiffs, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.

NORTHWEST IMMIGRANT RIGHTS PROJECT, et al., Plaintiffs, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.

CASE NO. C15-0813JLR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

October 5, 2016

ORDER

I. INTRODUCTION

This matter comes before the court on two motions: (1) a motion to dismiss (MTD (Dkt. # 69)) by Defendants United States Citizenship and Immigration Services ("USCIS"); the Department of Homeland Security ("DHS"), which oversees USCIS; Leon Rodriguez, the Director of USCIS, in his official capacity; and Jeh Johnson, the Secretary of DHS, in his official capacity; and (2) a motion for class certification by Plaintiffs Wilman Gonzalez Rosario, L.S., K.T., A.A., Karla Diaz Marin, Antonio Machic Yac, Faridy Salmon, Jaimin Shah, Marvella Arcos-Perez, Carmen Osorio Ballesteros, and W.H. (collectively, "Individual Plaintiffs") (MCC (Dkt. # 59)).¹ Two non-profit organizations that serve putative class members, Plaintiffs Northwest Immigrant Rights Project ("NWIRP") and The Advocates for Human Rights ("the Advocates") (collectively, "Organizational Plaintiffs"), and Individual Plaintiffs oppose the motion to dismiss. (MTD Resp. (Dkt. # 73).) Defendants oppose Individual Plaintiffs' motion for class certification. (MCC Resp. (Dkt. # 72).)

Having considered the submissions of the parties, the appropriate portions of the record, the relevant law, and having held oral argument on September 7, 2016, the court GRANTS in part and DENIES in part Defendants' motion to dismiss, DENIES Plaintiffs' motion for class certification without prejudice, and GRANTS Plaintiffs leave to renew their motion for class certification within 30 days of the date of this order.

II. BACKGROUND

Through this putative injunctive class action, Plaintiffs seek to compel USCIS to abide by regulatory deadlines for adjudicating applications for employment authorization documents ("EADs") filed by noncitizens. (See generally Am. Compl. (Dkt. # 58).)

A. Regulatory Structure

For an alien to be eligible to work in the United States, the alien must file Form I-765 with DHS and obtain an EAD. (Am. Compl. ¶¶ 3-4; Instructions for I-765 ("I-765 Instructions"), U.S. Customs and Immigration Services (Nov. 4, 2015), available at https://www.uscis.gov/sites/default/files/files/form/ i-765instr.pdf.² USCIS, an agency within DHS, is responsible for adjudicating Form I-765. (Am. Compl. ¶ 4.) Federal regulations provide a timeline for USCIS to adjudicate EADs; that timeline is different for individuals seeking an initial EAD based on an underlying asylum application. See 8 C.F.R. §§ 274a.13(d) (excluding from the 90-day deadline "initial application[s] for employment authorization under 8 CFR 274a.12(c)(8)"), 274a.12(c)(8) (covering aliens who have "filed a complete application for asylum or withholding of deportation or removal pursuant to 8 CFR part 208"), 208.7(a)(1) (providing a timeline for adjudicating asylum-based EAD applications).

The regulations confer unfettered discretion on USCIS to approve or deny EAD applications unless they are filed by an applicant for asylum. 8 C.F.R. § 274a. 13(a)(1); see also Guevara v. Holder, 649 F.3d 1086, 1091-92 (9th Cir. 2011) ("[T]he authorization for such employment is not mandated."); Kaddoura v. Gonzales, No. C06-1402RSL, 2007 WL 1521218, at *5 (W.D. Wash. May 21, 2007) ("While plaintiff is correct that as an 'alien who has filed an application for adjustment of status' he is within the class of aliens 'eligible' for an EAD, under the plain language 8 C.F.R. §§ 274a.12and 274a.13, his eligibility for an EAD resides within the discretion of USCIS and there is no appeal from the denial of the application."). However, the same regulations use mandatory language when discussing the timeline for adjudicating such applications:

USCIS will adjudicate the application within 90 days from the date of receipt of the application. . . . Failure to complete the adjudication within 90 days will result in the grant of an employment authorization document for a period not to exceed 240 days. Such authorization will be subject to any conditions noted on the employment authorization document. However, if USCIS adjudicates the application prior to the expiration date of the interim employment authorization and denies the individual's employment authorization application, the interim employment authorization granted under this section will automatically terminate as of the date of the adjudication and denial.

8 C.F.R. § 274a.13(d). In sum, if USCIS has not adjudicated an EAD application within 90 days of receipt, the regulation requires USCIS to issue one or more interim EADs for 240 days or until USCIS adjudicates the EAD application, whichever comes first.

The regulations provide a different procedure for an asylum seeker applying for an initial EAD, which the court will refer to as an initial asylum EAD applicant. See 8 C.F.R. §§ 208.7(a)(1), 274a.12(c)(8), 274a.13(d); see also Carballo v. Meissner, No. C00-2145, 2000 WL 1741948, at *2 (N.D. Cal. Nov. 17, 2000) (describing the process for an asylum applicant seeking an EAD). Section 274a.13(a)(2) mandates that initial asylum EAD applications "shall be adjudicated in accordance with [Section] 208.7." 8 C.F.R. § 274a.13(a)(2). After filing an application for asylum, an individual typically must wait 150 days before filing an initial EAD application. Id. § 208.7(a)(1). But there are exceptions to this rule. For instance, if asylum is granted within 150 days, the asylee may apply for an EAD immediately thereafter. Id. Additionally, if asylum is denied atany point, the applicant becomes ineligible for an EAD. Id. However, assuming an individual's "asylum clock" runs for at least 150 days without delay caused by the applicant, she may apply for an EAD while her asylum application pends. Id. §§ 208.7(a)(1)-(2), (4). USCIS "shall have 30 days from the date of filing of the request [sic] employment authorization to grant or deny that application," except that in no event may USCIS grant the EAD prior to 180 days after the noncitizen files her asylum application. Id. § 208.7(a)(1); see also 8 U.S.C. § 1158(d)(2). Section 208.7 is silent about whether there is any consequence if USCIS fails to meet this 30-day adjudication deadline. See 8 C.F.R. § 208.7(a)(1); cf. id. § 274a.13(d) (providing for interim EADs for other EAD applicants if USCIS has not decided their EAD applications within 90 days).

Plaintiffs contest the manner in which USCIS applies these adjudication deadlines. The instructions accompanying Form I-765, which USCIS provides, allow applicants who "have not received a decision within 90 days," or "within 30 days of a properly filed initial EAD application based on an asylum application," to "request interim work authorization." (See I-765 Instructions at 11.) Plaintiffs contend this interpretation impermissibly construes the regulatory timeline to be hortatory rather than mandatory. (See, e.g., Compl. ¶ 11.) Applicants who have requested to qualify for the Deferred Action for Childhood Arrivals program ("DACA")³ also experience delay becauseUSCIS interprets the 90-day clock to begin only after DHS adjudicates an applicant's DACA application. (See I-765 Instructions at 1, 6, 11.) Similarly, USCIS tolls the asylum clock when an asylum applicant accepts deferred prosecution in deportation proceedings, which postpones indefinitely the date on which that individual becomes eligible to apply for an asylum-based EAD. See Memorandum from the Principal Legal Advisor ("11/17/11 Memo"), U.S. Immigrations and Customs Enf't, Case-by-Case Review of Incoming and Certain Pending Cases (Nov. 17, 2011) at 3 n.5, available at http://www.ice.gov/doclib/foia/prosecutorial-discretion/case-by-case-review-incoming-certain-pending-cases-memorandum.pdf.⁴

B. Factual Allegations

Based on this regulatory structure, Individual Plaintiffs seek to certify a nationwide class consisting of three subclasses. Each Individual Plaintiff seeks to serve as a class representative of one of the three putative subclasses. (See Am. Compl. ¶¶ 89-91; MCC at 2.) The three subclasses are:

Noncitizens who have filed or will file applications for employment authorization that were not or will not be adjudicated within the required regulatory timeframe, comprising those who:

1. Have filed or will file applications for employment authorization under 8 C.F.R. § 274a.13, excluding initial applications based on pending asylum applications or requests to renew Deferred Action for Childhood Arrivals, but who have not received or will not receive a grant or denial of their EAD applications within 90 days of filing, and who are entitled or will be entitled to interim employment authorization under 8 C.F.R. § 274a.13(d), but who have not received or will not receive interim employment authorization. Applications for employment authorization based on Deferred Action for Childhood Arrivals, U or T visa applications, and self-petitions under the Violence Against Women Act are excluded until USCIS has determined eligibility for the underlying immigration benefit or granted deferred action (the "90-Day Subclass"); or

2. Are asylum applicants who have filed or will file initial applications for employment authorization under 8 C.F.R. § 208.7, but who, absent any applicant-caused delay, have not received or will not receive a grant or denial of their EAD applications within 30 days of filing, and who have not received or will not receive interim employment authorization (the "30-Day Subclass"); or

3. Have filed or will file applications for employment authorization under 8 C.F.R. § 274a.13 on the basis of requests to renew Deferred Action for Childhood Arrivals, but who have not received or will not receive a grant or denial of their EAD applications within 90 days of filing, and who are entitled or will be entitled to interim employment authorization under 8 C.F.R. § 274a.13(d), but who have not received

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