Case 2:18-cv-00928-MJP Document 72 Filed 09/28/18 Page 1 of 15

The Honorable Marsha J. Pechman

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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YOLANY PADILLA, et al.,
Case No. 2:18-cv-00928-MJP
Plaintiffs-Petitioners,
v.
PLAINTIFFS’ REPLY IN SUPPORT
U.S. IMMIGRATION AND CUSTOMS OF AMENDED MOTION FOR CLASS
ENFORCEMENT, et al.,
CERTIFICATION

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Defendants-Respondents.
NOTE ON MOTION CALENDAR:
September 28, 2018

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ORAL ARGUMENT REQUESTED

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CLASS CERT REPLY
Case No. 2:18-cv-00928-MJP

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615 Second Avenue, Suite 400
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Tel. (206) 957-8611

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I.

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INTRODUCTION

Defendants do not challenge numerosity or adequacy of Class Counsel. They challenge
the commonality of the claims and the adequacy of Plaintiffs as class representatives of the
proposed Credible Fear Interview (CFI) and Bond Hearing (BH) Classes by attempting to
distract the Court from the fact that the policies being challenged apply equally to Plaintiffs and
proposed class members. Defendants also point to subsequent developments in Plaintiffs’
individual cases, ignoring that the inherently transitory nature of their claims requires this Court
to look to Plaintiffs’ standing at the time the claims were filed. Plaintiffs have satisfied the
requirements under Federal Rules of Civil Procedure 23(a) and 23(b)(2).
A.

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II.
ARGUMENT
This Court Has Jurisdiction to Certify the Proposed Classes.
Defendants’ effort to challenge certification based on jurisdictional claims is duplicative

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of the arguments set forth in their motion to dismiss, Dkt. 36 at 6-8, 23-24. For the reasons set

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forth in Plaintiffs’ opposition to that motion, Dkt. 69 at 2-7, 23-24, which Plaintiffs incorporate

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herein by reference, none of Defendants’ arguments have merit.

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B.

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The Proposed Classes Have Common Claims Capable of Uniform Resolution.
1.
Plaintiffs’ APA Delay Claims

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Defendants suggest that class certification is not available for unreasonable delay claims

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assessed under the factors set forth in Telecommunications Research Action Center v. F.C.C.,

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750 F.2d 70, 80 (D.C. Cir. 1984) (TRAC). However, courts, including in this district, have

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applied the TRAC factors to class-wide delay claims in the immigration context. See Rosario v.

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USCIS, No. C15-0813JLR, *9-12 (W.D. Wash. Jul. 26, 2018) (finding delay unreasonable and

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granting class-wide injunctive relief even though the court accepted that the fourth TRAC factor,

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regarding competing priorities favored the government); Santillan v. Gonzales, 388 F. Supp. 2d

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1065, 1083-84 (N.D. Cal. 2005) (finding APA violation after class-wide application of TRAC

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factors to individuals challenging application delays); cf. Roshandel v. Chertoff, No. C07-

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AM. CLASS CERT. MOT.
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1739MJP, 2008 U.S. Dist. LEXIS 90899, *20 n.6 (W.D. Wash. May 5, 2008) (“[C]ourts have

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analyzed whether agency delay is reasonable under the APA even in the absence of a statutory

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timetable for agency action.”). In fact, courts have found that unreasonable delay claims meet the

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commonality requirement even while acknowledging that factual variations among class

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members’ claims may later become relevant. See, e.g., Garcia v. Johnson, No. 14-cv-01775-

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YGR, 2014 U.S. Dist. LEXIS 164454, *41-42, *46 (N.D. Cal. Nov. 21, 2014) (certifying class

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with unreasonable delay claim and suggesting that evaluation of TRAC factors is generally
appropriate on summary judgment); Roshandel v. Chertoff, 554 F. Supp. 2d 1194, 1203-04
(W.D. Wash. 2008); Santillan v. Ashcroft, No. C 04-2686 MHP, 2004 U.S. Dist. LEXIS 20824,
*35-36 (N.D. Cal. Oct. 12, 2004).

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Here, Plaintiffs present common questions: whether Defendants’ practices of conducting
credible fear interviews (CFIs) more than 10 days after a request for asylum, absent the
noncitizen’s request for a delayed interview, and of conducting bond hearings more than 7 days
after a request necessarily amount to unreasonably delayed action under the APA. These
questions affect all proposed class members, because a uniform time limit is necessary to ensure
that detention is not needlessly protracted, regardless of the variables for delay that Defendants
allege in certain courts.1 Indeed, Defendants set forth reasons for delays that are wholly

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irrelevant to this case, since Plaintiffs’ credible fear delay claims challenge delays of more than

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10 days absent a request for more time from a detained asylum seeker. See, e.g., Dkt. 64 ¶8

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(describing, inter alia, delays based on requests by asylum seekers or their attorneys, due to

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asylum seekers’ need for medical attention, and in non-detained cases). That Defendants’

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staffing and detention decisions placed more asylum seekers in facilities unfit to meet their needs

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Defendants also suggest reasons for delays in bond hearings are “unique to the immigration court” where
the hearing takes place but provide two declarations identifying nearly identical considerations at the Tacoma and
Adelanto courts. Compare Dkt. 66 ¶¶13-14 with Dkt. 67 ¶13-14 (providing the same information, aside from hours
per week devoted to bond hearings).
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does not relieve Defendants of their obligation to act expeditiously. See, e.g., Yong Tang v.

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Chertoff, 493 F. Supp. 2d 148, 158 (D. Mass. 2007) (declining to find delay reasonable where

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“delays in adjudication are due to a high volume of applications and scarce resources”); cf. Lopez

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v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983) (“Society’s interest lies on the side of affording

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fair procedures to all persons, even though the expenditure of governmental funds is required.”).

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2.

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Constitutional Claims

Defendants claim that each proposed class member requires an individualized due
process and harmless error analysis. See Dkt. 68 at 14-15. However, courts regularly resolve
procedural due process claims on a class-wide basis when addressing the constitutionality of
immigration agencies’ policies and practices. See, e.g., Hernandez v. Sessions, 872 F.3d 976,
993-94 (9th Cir. 2017); Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998); Mendez Rojas v.
Johnson, 305 F. Supp. 3d 1176, 1183-87 (W.D. Wash. 2018); Saravia v. Sessions, 280 F. Supp.
3d 1168, 1194-1200 (N.D. Cal. 2017). Defendants allege an array of reasons for delays in CFIs
and bond hearings, but none affect Plaintiffs’ claims: Defendants’ practices of delaying CFIs
more than 10 days after Plaintiffs express fear, and bond hearings more than 7 days after the
bond hearing is requested, unnecessarily deprive Plaintiffs of their liberty in violation of their
due process rights. See infra § II.C.2.b; see also Dkt. 45 at 20-23 (describing harm to Plaintiffs
and class members due to these constitutional violations).
That some class members have not yet had bond hearings also fails to defeat

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commonality. While Defendants discuss the possibility that individual class members will be

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released from detention, Dkt. 68 at 15, Plaintiffs’ bond claims relate to Defendants’ policies:

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placing the burden of proof on noncitizens, failing to require recording or transcription, and

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failing to require contemporaneous written decisions with particularized findings.2 There is no

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Even those proposed class members to whom IJs grant release face harm based on the lack of procedural
protections—IJs may set higher bond amounts based on how well they met the burden of proof, leaving class
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dispute that Defendants apply these policies to each and every proposed class member. Because

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Plaintiffs’ claims relate to the constitutionality of these policies, not their application in any

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particular case, they can be resolved in a “single stroke,” Parsons v. Ryan, 754 F.3d 657, 679

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(9th Cir. 2014), and Plaintiffs satisfy the commonality requirement. See Rivera v. Holder, 307

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F.R.D. 539, 550 (W.D. Wash. 2015) (finding commonality requirement met where “[c]lass

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members share common questions of law and fact []concerning whether they received or will

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receive a bond hearing that does not comply with the law”).
Plaintiffs can demonstrate commonality even where some proposed class members may
have received one of the protections at issue. See, e.g., Mendez Rojas v. Johnson, No. C161024RSM, 2017 U.S. Dist. LEXIS 73262, *16-17 (W.D. Wash. Jan. 10, 2017) (finding
commonality in case seeking recognition of asylum seekers’ right to receive notice of a filing
deadline where some asylum seekers had received some form of notice). Defendants point out
that the bond hearings of Plaintiffs Orantes and Vasquez were recorded and claim, without
evidence, that “many” class members may be in the same position. Dkt. 68 at 15. Notably, they
do not allege that the courts which conducted those hearings—or any immigration courts—have
a policy of mandating that IJs record bond hearings. The record in fact suggests that, for the
named Plaintiffs in this case, Defendants only recorded the bond hearings that took place after

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the filing of the First Amended Complaint adding claims related to delayed bond hearings.

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Compare Dkt. 66 ¶20 (bond hearing on July 16 recorded); Dkt. 67 ¶18 (bond hearing on August

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20 recorded) with Dkt. 66 ¶¶18-19 (not mentioning recording of bond hearings); cf. Walters, 145

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F.3d at 1046 (declining to allow an “agency to avoid nationwide litigation that challenges the

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constitutionality of its general practices simply by pointing to minor variations in procedure . . . ,

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particularly because the variations were designed to avoid the precise constitutional

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members to decide whether to appeal and seek a lower bond amount without the benefit of a particularized written
decision or recording.
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inadequacies” at issue in the case).

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3.

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For the reasons discussed above, Plaintiffs also establish commonality as to their claims

Asylum Claim

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under asylum law. Contrary to Defendants’ contention, Dkt. 68 at 15-16, Plaintiffs’ motion

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alleges that Defendants policies violate Congress’s intent to “create a ‘uniform procedure’ for

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consideration of asylum claims.” Dkt. 37 at 11 (citing Orantes-Hernandez, v. Thornburgh, 919

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F.2d 549, 552 (9th Cir. 1990) (citation omitted)); see also Dkt. 37 at 17, 19. Thus, this Court can
resolve Plaintiffs’ asylum claims on a class-wide basis.

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C.

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In challenging Plaintiffs’ adequacy, Defendants fault them for failing to satisfy

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Plaintiffs Are Adequate Representatives with Claims Typical of Those of Members
of the Proposed Classes.
1.
Adequacy

requirements Defendants have manufactured. See Dkt. 68 at 17-18. Plaintiffs are not required to

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submit declarations expressly affirming their interest, willingness, and capacity to serve as class

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representatives. Courts, including in this district, routinely appoint plaintiffs as class

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representatives without affidavits or declarations from them. See, e.g., Mendez Rojas, 2017 WL

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1397749, at *6; Rivera, 307 F.R.D. at 550; Khoury v. Asher, 3 F. Supp. 3d 877, 891 (W.D.

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Wash. 2014), aff'd, 667 F. App’x 966 (9th Cir. 2016); Gonzales v. U.S. Dep't of Homeland Sec.,

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239 F.R.D. 620, 628 (W.D. Wash. 2006), vacated and remanded sub nom. Gonzales v. Dep't of

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Homeland Sec., 508 F.3d 1227 (9th Cir. 2007). 3 Moreover, Defendants err in asserting that

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Plaintiffs “have not submitted a single sworn statement from any proposed representatives.” Dkt.

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68 at 17. But see Dkt. 57 (Plaintiff Orantes Decl.); Dkt. 61 (Plaintiff Vasquez Decl.).

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Here, Plaintiffs’ vigorous advocacy on behalf of themselves and the proposed classes is

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well documented. See Dkts. 8, 26, 37, 45. Plaintiffs’ “involvement in the case shows that [they

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Plaintiffs nevertheless submit additional declarations concurrently herewith for the Court’s consideration.

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are] not merely a pawn of the class lawyers,” In re AEP ERISA Litig., No. C2-03-67, 2008 U.S.

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Dist. LEXIS 77165, at *6 (S.D. Ohio Sept. 8, 2008) (remarking also that “the threshold for

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establishing adequacy is quite low”), and easily distinguishes them from the negligent and

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disinterested plaintiffs in the cases Defendants cite, see Spinelli v. Capital One Bank, 265 F.R.D.

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598, 613-14 (M.D. Fla. 2009) (plaintiff failed to appear for her deposition and had not made

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herself subsequently available); In re AEP ERISA Litig., 2008 U.S. Dist. LEXIS 77165 at *11

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(plaintiff had not, inter alia, had any contact or interest in the litigation in the three years
preceding his deposition); Byes v. Telecheck Recovery Servs., Inc., 173 F.R.D. 421, 427 (E.D.
La. 1997) (plaintiff was unaware she had “any duties as a class representative or what those
duties might entail” and class counsel’s adequacy and candor to the court called into question).
Given their demonstrated commitment, there is no reason to seek “confirmation” of
Plaintiffs’ commitment to this litigation. Dkt. 68 at 18. Moreover, no developments in this case
or in Plaintiffs’ individual cases conflict with their commitment to vindicate the rights of
similarly-situated asylum seekers—a commitment that satisfies adequacy requirements, for it is
shared with putative class members. See Dkt. 37 at 19-20. Plaintiffs’ ultimate release from
detention does not undermine certification (or adequacy), see Dkt. 68 at 17, because the nature of
immigration detention makes those claims “inherently transitory.” See Dkt. 69 at 9, 21-22;

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Rivera v. Holder, 307 F.R.D. at 548. As their claims would otherwise “evade review,” the

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certification analysis should “relate back” to the filing of the complaint. Sosna v. Iowa, 419 U.S.

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393, 402 n.11 (1975); Haro v. Sebelius, 747 F.3d 1099, 1110 (9th Cir. 2014); Rivera, 307 F.R.D.

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at 548. No plaintiff had received a credible fear interview or a bond hearing at the time they filed

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suit. See Dkt. 1 ¶¶71, 86, 103; Dkt. 8 ¶¶112, 126-127. Contrary to Defendants’ arguments, Dkt.

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68 at 17 n.1, the relation back doctrine is equally applicable to the bond procedures claims, for,

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when Plaintiffs Orantes and Vasquez initially brought this action, see Dkt. 8, they faced the

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prospect of deficient bond hearings and now “similarly-situated class members would have the

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same complaint.” Rivera, 307 F.R.D. at 548; see also Southern Utah Wilderness Alliance v.

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Palma, 707 F.3d 1143, 1152-53 (10th Cir. 2013); Schreiber Foods, Inc. v. Beatrice Cheese, Inc.,

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402 F.3d 1198, 1202 n.3 (Fed. Cir. 2005); Lynch v. Leis, 382 F.3d 642, 647 (6th Cir. 2004).

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Defendants do not dispute the policies challenged by Plaintiffs and proposed BH Class members

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with respect to the burden of proof, requiring recording or transcription, and contemporaneous

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decisions with particularized findings. Accordingly, “there is a constantly changing putative
class that will become subject to these allegedly unconstitutional conditions.” Lyon v. U.S.
Immigration and Customs Enforcement, 300 F.R.D. 628, 639 (N.D. Cal. 2014), modified sub
nom. Lyon v. U.S. Immigration and Customs Enforcement, 308 F.R.D. 203 (N.D. Cal. 2015)
(citation omitted). Accordingly, this Court should reject Defendants’ request to delay class
certification by first allowing Defendants to interrogate Plaintiffs as to their “suitability” to serve
as class representatives. Dkt. 68 at 18.
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Plaintiffs’ claims are typical of proposed class members’ claims

Plaintiffs’ claims are typical of those of the class members they seek to represent. See
Dkt. 37 at 17-19. While some features and background circumstances surrounding Plaintiffs’
credible fear hearings and detention may vary, the actions at issue here form part of the typical

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CFI and bond hearing delays and baseline deficiencies in the bond hearings, as demonstrated by

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the considerable testimony of immigration practitioners confirming that Defendants’ delays and

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bond-hearing due process violations are not “unique,” Dkt. 68 at 19, to this time period. See Dkt.

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39 ¶¶4-5; Dkt. 40 ¶¶3-5; Dkt. 41 ¶¶3-4; Dkt. 70-1 ¶¶4-6; Dkt. 43 ¶3-4; Dkt. 44 ¶¶3-5. Notably,

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Defendants do not refute or account for these declarations. The delay, deficient procedures, harm

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to Plaintiffs and their resulting legal claims are typical of those of the putative class members.

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Defendants erroneously argue that Plaintiffs’ claims are not typical of the CFI Class

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because of individual factors that are irrelevant to the credible fear process. Despite Defendants’

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allegations, Dkt. 68 at 19, whether Plaintiffs or proposed class members were “subject to

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criminal prosecution” for entering without inspection does not render their claims atypical of

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those who presented themselves at ports of entry. All individuals, regardless of manner of entry,

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are entitled to a timely credible fear determination. But to be clear, just as Plaintiffs do not seek

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to impose deadlines where delays are at the request of the applicant, they do not seek to require

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CFIs prior to a district court’s disposition of a pending criminal charge.4 Thereafter, they all go

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through the same credible fear process. Even for Plaintiffs subject to criminal prosecution, their
CFIs were weeks after the criminal prosecution was completed. Dkt. 26 ¶¶80, 100-03. Notably,
the regulation governing the timing of reasonable fear interviews does not contemplate a
different application for asylum seekers subject to criminal prosecution based on entry without
inspection. See 8 C.F.R. § 208.31(b). Nor do “processing and transfer times,” ECF No. 68 at 19,
affect the analysis of the issues at stake. See supra § II.B.
Plaintiffs Orantes and Vasquez assert claims that are typical of the BH Class. They, like

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all proposed class members, were not provided bond hearing within 7 days of requesting a
hearing. The delays that Plaintiffs Orantes and Vasquez experienced are not attributable to an
“influx” of detainees that caused ICE to house noncitizens at BOP facilities. Dkt. 68 at 19.

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Rather, such delays are customary for noncitizens in ICE custody throughout the

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country. See Dkt. 37 at 13-14 (citing practitioner declarations); Dkt. 45 at 5 (same). Both

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Plaintiffs Orantes and Vasquez suffered injury resulting from the delay in receiving a bond

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hearing—an injury that is typical of all proposed BH Class members.
Defendants also err in asserting that Plaintiffs Orantes and Vasquez are required to first

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Notably, Defendants did not bring criminal charges against all Plaintiffs. Moreover, that the federal
government turns away noncitizens who attempt to seek asylum at ports of entry, see generally Al Otro Lado, Inc. v.
Nielsen, No. 17-cv-02366-BAS-KSC, 2018 U.S. Dist. LEXIS 141025 (S.D. Cal. Aug. 20, 2018), necessarily leading
some to enter the country without inspection, makes the prosecution of these asylum seekers especially troubling.
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file administrative appeals of their bond decisions in order to challenge procedural deficiencies

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on behalf of class members. The court in Leonardo v. Crawford dismissed an individual habeas

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claim for failure to exhaust administrative remedies because the petitioner did not “demonstrate[]

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grounds for excusing the exhaustion requirement.” 646 F.3d 1157, 1161 (9th Cir. 2011).

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However, courts generally waive the exhaustion requirement when it “would be a futile attempt

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to challenge a fixed agency position.” Am.-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d

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1045, 1058 (9th Cir. 1995); see also Rivera, 307 F.R.D. at 551-52 (discussing factors warranting
waiver of prudential exhaustion requirement). Here, it would be futile to require exhaustion
because Defendants have fixed policies with respect to the relevant procedures challenged by
proposed BH Class members. See Dkt. 37 at 16-17; Dkt. 45 at 4-5.
Defendants further assert that Plaintiffs Orantes and Vasquez’s bond hearings were
recorded, Dkt. 68 at 21, but as noted this occurred before the first amended complaint was filed.
See supra § II.B.2. Defendants do not assert they have a policy or practice of recording bond
hearings, and they did not advise Plaintiffs of the availability of recordings at the time of their
bond hearings. Moreover, both were still denied a bond hearing in which the government bears
the burden of proof and the IJ provides contemporaneous particularized findings. Both plaintiffs
thus suffered a violation of their right to procedural due process—an injury that is typical of all

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proposed BH Class members. Defendants further err in asserting that Plaintiff Orantes suffered

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no prejudice because she was eventually released, Dkt. 68 at 20, but only as a result of the

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nationwide injunction issued in Ms. L v. ICE, 310 F. Supp. 3d 1133 (S.D. Cal. 2018). Unlike the

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petitioner in Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008), Plaintiff Orantes was

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prejudiced by having to bear the burden of proof: the IJ found her to be a flight risk, denied

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bond, and caused her to be detained for 8 additional days, during which she also suffered

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significant emotional harm. Dkt. 57 ¶¶14-17. The bond amount and condition Plaintiff Vasquez

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stipulated to were impacted by these procedures. See Dkt. 69 at 23 n.6; cf. Dkt. 61 ¶¶10-11.

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Nationwide Class Certification is Appropriate and Warranted.
The proposed classes consist of asylum seekers who are subject to Defendants’ unlawful

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policies and practices of delaying CFIs and bond hearings without procedural safeguards. The

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vast majority do not possess the resources or capacity to litigate these purely legal issues, even if

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they could do so while attempting to prepare asylum applications and evidence from inside a
detention facility, often without the assistance of counsel. See Dkt. 49 ¶¶9-20; Dkt. 50 ¶¶10-15.
Many class members are traumatized from the persecution they fled and face mental and
physical health challenges, which also interfere with their ability to litigate. See Dkt. 45 at 21
(citing declarations); Dkt. 49 ¶¶3-8. Moreover, proposed class members are transferred across
the country as they pass through this process. See, e.g., Dkt. 37 at 11; Dkt. 50 ¶9; Dkt. 57 ¶¶4, 6,
10, 16; Dkt. 61 ¶¶2-3, 6. Thus, nationwide certification is particularly appropriate in this case.
Defendants rely on Califano v. Yamasaki, 442 U.S. 682 (1979) to suggest that nationwide
certification is inappropriate, Dkt. 68 at 21, 22, but that decision supports Plaintiffs’ motion.
Indeed, the Court explained that a nationwide class is not “inconsistent with principles of equity
jurisprudence, since the scope of injunctive relief is dictated by the extent of the violation
established, not by the geographical extent of the plaintiff class,” and expressly “decline[d] to

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adopt the extreme position that such a class may never be certified.” 442 U.S. at 702-03.

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Califano affirmed in relevant part an order consolidating and affirming two district court

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decisions, one of which, Buffington v. Weinberger, No. 734-73C2 (W.D. Wash. Oct. 22, 1974),

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was a nationally certified class. Id. at 689. Here, irrespective of geographical location, the

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proposed CF and BH class members face delayed credible fear interviews and bond hearings

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without procedural protections, respectively, and all stand to benefit from the same relief this

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Court can afford notwithstanding the differing factual circumstances that may affect the outcome

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of those interviews and hearings.

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Defendants’ concerns about “intercircuit comity,” “issues of local importance,” and

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interference “with courts already assessing overlapping issues,” Dkt. 68 at 21-22, ring hollow.

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See Hamama v. Aducci, No. 17-cv-11910, 2018 U.S. Dist. LEXIS 162410, *28-29 (E.D. Mich.

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Sept. 24, 2018) (rejecting as “too narrow” the government’s contention “that certifying a

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nationwide class would violate principles of inter-circuit comity and strip other courts of

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jurisdiction over claims pending before them”). Plaintiffs are unaware of—and Defendants do
not cite—any case involving proposed class members raising the legal claims presented in this
case, let alone a case poised to resolve them.5 Defendants’ claim that “the constitutionality of
placing the burden on the [noncitizen],” Dkt. 68 at 22, is play in Rodriguez v. Jennings, 887 F.3d
954, 956 (9th Cir. 2018), is inaccurate. That case may only implicate the burden with respect to
prolonged detention, i.e., where persons have been detained at least six months.
Defendants also claim Brevil v. Jones, No. 1:17-cv-01529-LTS-GTW (S.D.N.Y.) is an

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example of competing litigation. See Dkt. 68 at 22. Although the case is sealed, it appears to
involve a pro se habeas petition filed in February 2017 by a man who waited four months for a
bond hearing after DHS placed him in removal proceedings (not through the credible fear
process). See Brevil v. Jones, 283 F. Supp. 3d 205, 208-09, 211 (S.D.N.Y. 2018). After the

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government objected to the Magistrate Judge’s recommendation of Mr. Brevil’s release, the

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District Court Judge appointed counsel, and eventually ordered briefing on a burden of proof

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issue. See Brevil, No. 1:17-cv-01529-LTS-GTW, Dkt. 26 (Feb. 16, 2018), Dkt. 28 (Mar. 1,

22

2018), Dkt. 34 (Apr. 3, 2018), Dkt. 47 (Aug. 8, 2018). If anything, Brevil weighs in Plaintiffs’

23

favor as it demonstrates that detained pro se noncitizens filing habeas petitions require the

24

assistance of counsel and that habeas petitions may pend for years. It is also instructive that the

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5

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If any such case exists, the proposed class in this case could exclude individuals with pending cases that
raise the same legal issues presented here, as in Buffington. See Califano, 442 U.S. at 689.
AM. CLASS CERT. MOT.
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NORTHWEST IMMIGRANT RIGHTS PROJECT
615 Second Avenue, Suite 400
Seattle, WA 98104
Tel. (206) 957-8611

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government points to only one district court case raising a tangentially related issue for a

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differently-situated individual. Indeed, Brevil undermines Defendants’ assertion that class

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certification “may well impede [proposed BH class members’] access to speedier and/or

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particularized adjudication of their detention,” Dkt. 68 at 24, as Mr. Bevil’s pending habeas

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petition already has been pending for 18 months.

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The government’s “apparent preference for litigating a single issue in multiple circuits
does not outweigh the factors here that favor certification of a nationwide class.” Clark v. Astrue,
274 F.R.D. 462, 470-71 (S.D.N.Y. 2011) (certifying nationwide class despite contention that
class “would foreclose litigation of the issue presented . . . in other circuits”). As Defendant
Sessions explained, there is a “specific mechanism that the law provides for large numbers of
similarly situated persons to pursue relief efficiently: the class action system.” Memorandum
from Jefferson B. Sessions, Att’y Gen., Litigation Guidelines for Cases Presenting the Possibility
of Nationwide Injunctions at 5 (Aug. 28, 2018), https://tinyurl.com/y7lbf4hw (marshalling
arguments against nationwide injunctions issued in individual cases and noting safeguards in
class action rules). Here, these safeguards are both critical and necessary: most proposed class
members do not have the resources to litigate these claims. Moreover, given the inherently
transitory nature of the claims, the government will inevitably try to defeat adjudication of

19

individual claims by arguing mootness, as they have done here. See Dkt. 36 at 13, 21.

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Finally, certification of nationwide class actions is common in civil rights and

21

immigration cases, in part because of Congress’ interest in a uniform application of immigration

22

law. See Dkt. 37 at 9-12. Plaintiffs have established commonality, see id. at 15-17; supra § II.B,

23

and, as such, there are no barriers to nationwide resolution.

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26

III.
CONCLUSION
The Court should certify the proposed classes and enter the proposed certification order.
RESPECTFULLY SUBMITTED this 28th day of September, 2018.
AM. CLASS CERT. MOT.
Case No. 2:18-CV-00928-MJP - 12

NORTHWEST IMMIGRANT RIGHTS PROJECT
615 Second Avenue, Suite 400
Seattle, WA 98104
Tel. (206) 957-8611

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s/ Matt Adams
Matt Adams, WSBA No. 28287
Email: matt@nwirp.org

s/ Trina Realmuto
Trina Realmuto*
Email: trealmuto@immcouncil.org

s/ Glenda M. Aldana Madrid
Glenda M. Aldana Madrid, WSBA No. 46987
Email: glenda@nwirp.org

s/ Kristin Macleod-Ball
Kristin Macleod-Ball*
Email: kmacleod-ball@immcouncil.org

s/ Leila Kang
Leila Kang, WSBA No. 48048
Email: leila@nwirp.org

AMERICAN IMMIGRATION COUNCIL
100 Summer Street, 23rd Floor
Boston, MA 02110
Telephone: (857) 305-3600

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NORTHWEST
IMMIGRANT RIGHTS
Attorneys
for Plaintiffs-Petitioners
*Admitted pro hac vice
PROJECT
615 Second Avenue, Suite 400
Seattle, WA 98104
Telephone: (206) 957-8611
Facsimile: (206) 587-4025
Attorneys for Plaintiffs-Petitioners

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AM. CLASS CERT. MOT.
Case No. 2:18-CV-00928-MJP - 13

NORTHWEST IMMIGRANT RIGHTS PROJECT
615 Second Avenue, Suite 400
Seattle, WA 98104
Tel. (206) 957-8611

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CERTIFICATE OF SERVICE

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2

I hereby certify that on September 28, 2018, I filed the foregoing motion for class

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certification as well as the accompanying supporting declarations with the Clerk of the Court

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using the CM/ECF system, which will send notification of such filing to those attorneys of

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record registered on the CM/ECF system. All other parties shall be served in accordance with the
Federal Rules of Civil Procedure.

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DATED this 28th day of September, 2018.
s/ Matt Adams
Matt Adams
NORTHWEST IMMIGRANT RIGHTS PROJECT
615 Second Avenue, Suite 400
Seattle, WA 98104
Telephone: (206) 957-8611
Facsimile: (206) 587-4025
E-mail: matt@nwirp.org

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AM. CLASS CERT. MOT.
Case No. 2:18-CV-00928-MJP - 14

NORTHWEST IMMIGRANT RIGHTS PROJECT
615 Second Avenue, Suite 400
Seattle, WA 98104
Tel. (206) 957-8611

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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WILMAN GONZALEZ ROSARIO,
et al.,

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Plaintiffs,
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CASE NO. C15-0813JLR
ORDER ON CROSS MOTIONS
FOR SUMMARY JUDGMENT

v.
UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES,
et al.,

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Defendants.
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I.

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INTRODUCTION

Before the court are (1) named Plaintiffs A.A., Antonio Machic Yac, and W.H.
and class members’ (collectively, “Plaintiffs”) motion for summary judgment (Pls. MSJ
(Dkt. # 118)); and (2) Defendants United States Citizenship and Immigration Services
(“USCIS”), United States Department of Homeland Security (“DHS”), Director of
USCIS L. Francis Cissna, and Secretary of DHS Kirstjen Nielsen’s (collectively,

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“Defendants”) motion for summary judgment (Defs. MSJ (Dkt. # 119)). Each party

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opposes the other’s motion. (See Pls. Resp. (Dkt. # 123); Defs. Resp. (Dkt. # 122).) The

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court has considered the motions, the parties’ submissions in support of and in opposition

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to the motions, the administrative record, and the applicable law. The court also heard

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oral argument from parties on July 26, 2018. (See Min. Order (Dkt. # 126).) Being fully

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advised, the court GRANTS Plaintiffs’ motion and DENIES Defendants’ motion.

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II.

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9

BACKGROUND

Plaintiffs seek to compel USCIS to abide by regulatory deadlines for adjudicating
noncitizens’ applications for employment authorization documents (“EADs”). (See

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generally Am. Compl. (Dkt. # 58).) The court reviews the regulatory structure governing

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the EAD application process before turning to the factual and procedural background of

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this case.1

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A.

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Regulatory Structure
Asylum seekers can obtain an employment authorization prior to adjudication of

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their asylum applications. See 8 C.F.R. §§ 208.7(a)(1), 274a.12(c)(8), 274a.13(d); see

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also Carballo v. Meissner, No. C00-2145, 2000 WL 1741948, at *2 (N.D. Cal. Nov. 17,

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2000). To do so, an individual must file Form I-765 with DHS and obtain an EAD,

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which is evidence that the holder is authorized to work in the United States. (Supp.

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Admin. Rec. (“SAR”) (Dkt. ## 103-1, 103-2, 103-3, 103-4, 103-5) at 2-3.) Generally, an

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//

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The court has previously detailed at length the background of this case. (See 2/10/16
Order (Dkt. # 55); 10/5/16 Order (Dkt. # 80); 7/18/17 Order (Dkt. # 95); 4/17/18 Order (Dkt.
# 113).) Thus, here, the court recounts only the information pertinent to the instant motions.

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individual must wait 150 days after filing an asylum application to file an initial EAD

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application. 8 C.F.R. § 208.7(a)(1). Upon receiving the initial EAD application, the

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regulation states that USCIS:

4

shall have 30 days from the date of filing of the request [for] employment
authorization to grant or deny that application, except that no employment
authorization shall be issued to an asylum applicant prior to the expiration of
the 180-day period following the filing of the asylum application filed on or
after April 1, 1997.

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Id. § 208.7(a)(1); see also 8 U.S.C. § 1158(d)(2).

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B.

Factual Background

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A.A., Mr. Machic Yac, and W.H. are initial asylum EAD applicants who allege

10

that Defendants failed to adjudicate their EAD applications within the required 30-day

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period. (Am. Compl. ¶¶ 21, 23, 28, 57, 62, 81; see also Machic Yac AR (Dkt. # 67-6) at

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3 (EAD application received on December 31, 2015, and adjudicated March 31, 2016);

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A.A. AR (Dkt. # 67) at 3 (EAD application submitted around January 12, 2016, and

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adjudicated March 16, 2016); W.H. AR (Dkt. # 38) at 42-50 (EAD application received

15

on December 15, 2014, and adjudicated June 16, 2015).) There is no dispute that USCIS

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failed to meet its 30-day deadline, both for the named Plaintiffs and more broadly for

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class members. (See Defs. MSJ at 7 (“USCIS was not able to adjudicate 100 percent of

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initial asylum EADs within 30 days.”).) Defendants’ data reveals that from 2010 to

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2017, USCIS met its 30-day deadline in only 22% of cases—that is, out of 698,096 total

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applications, USCIS resolved only 154,629 applications on time. (See SAR at 89-90.) In

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2017, USCIS timely resolved only 28% of applications. (See id. at 90.)

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//

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USCIS made some changes in response to the need to more quickly adjudicate

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EAD applications. First, USCIS increased the validity period of an initial asylum EAD

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from one year to two years. USCIS Increases Validity of Work Permits to Two Years for

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Asylum Applicants, U.S. Citizenship and Immigration Services (Oct. 6, 2016),

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https://www.uscis.gov/news/alerts/uscis-increases-validity-work-permits-two-years-

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asylum-applicants. Second, USCIS provided checklists on its websites to assist

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applicants who are submitting applications. Form M-1162, Optional Checklist for Form

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I-765(c)(8) Filings Asylum Applications (With a Pending Asylum Application) Who Filed

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for Asylum on or after January 4, 1995, U.S. Citizenship and Immigration Services (July

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17, 2017), https://www.uscis.gov/system/files_force/files/form/m01162.pdf.

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C.

Procedural Background

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Plaintiffs brought a putative class action on May 22, 2015. (See Compl. (Dkt.

13

# 1).) On August 10, 2015, Defendants moved to dismiss the suit and argued that the

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“30-day regulatory deadline is discretionary.” (2/10/16 Order at 21; see MTD (Dkt. # 34)

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at 10-13.) The court disagreed and held that not only did the “plain language of the

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regulation favor[] a mandatory interpretation,” but “[r]eading the 30-day timeline as

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mandatory also comports with the regulation’s overall goals and related regulations.”

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(2/10/16 Order at 24; see also id. at 24-26.)

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On July 18, 2017, the court granted Plaintiffs’ motion for class certification and
certified the following class:
Noncitizens who have filed or will file applications for employment
authorization that were not or will not be adjudicated within . . . 30 days . . .
and who have not or will not be granted interim employment authorization.

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[This class] consists of only those applicants for whom 30 days has accrued
or will accrue under the applicable regulations, 8 C.F.R. §§ 103.2(b)(10)(i),
208.7(a)(2), (a)(4).

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(7/18/17 Order at 26-27.) The court additionally reiterated that the regulatory 30-day

4

deadline is “mandatory” and found “no reason to differentiate those mandatory regulatory

5

deadlines from the mandatory statutory deadlines in [Ninth Circuit precedent].” (Id. at

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21.) The court explicitly rejected Defendants’ argument that the regulations only created

7

a mandatory duty to act and not a mandatory timeline to follow, stating that it will not

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entertain “Defendants’ effort to relitigate whether the 30-day deadline is directory or

9

mandatory.” (Id. at 21 n.10.)

10

Subsequently, both parties sought to supplement the administrative record. (Defs.

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Mot. to Supp. (Dkt. # 103); Pls. Mot. to Supp. (Dkt. # 104).) The court granted in part

12

and denied in part both motions (4/17/18 Order at 13-14), and parties accordingly filed a

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supplemental administrative record (see Not. of SAR (Dkt. # 116)).

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Both parties then moved for summary judgment. (See Pls. MSJ; Defs. MSJ.) The
court now addresses both motions.

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III.

ANALYSIS

The parties agree that USCIS has a duty to adjudicate initial EAD applications

18

within 30 days. (See Pls. Reply (Dkt. # 124) at 1; Defs. MSJ at 9 (acknowledging that the

19

court “has previously held that Defendants have a mandatory duty to adjudicate initial

20

EAD applications within 30 days”).) The parties further agree that USCIS violates this

21

duty. (See Pls. Reply at 1-2; Defs. MSJ at 9 (acknowledging that “they are unable to

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meet that [30-day] requirement for every application”).) Thus, the sole remaining

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question is what remedy is proper. (See Pls. Resp. at 2; Defs. MSJ at 9 (stating “a

2

question for this [c]ourt remains: what remedy is appropriate?”).)

3

Plaintiffs request (1) a declaration that USCIS has violated the mandatory

4

deadline, and (2) an injunction compelling Defendants to comply with the regulation.

5

(Pls. MSJ at 11.) Defendants do not dispute the declaratory relief Plaintiffs request.2

6

(See Defs. MSJ; Defs. Resp.) Instead, Defendants focus their arguments on the

7

impropriety of injunctive relief. (See Defs. MSJ at 9-15.) The court disagrees and finds

8

that an injunction compelling agency action is appropriate here.
The Administrative Procedure Act (“APA”) provides that a court may compel

9
10

“agency action unlawfully withheld or unreasonably delayed.”3 5 U.S.C. § 706(1). A

11

court may compel agency action when “an injunction is necessary to effectuate the

12

congressional purpose behind the statute.” Badgley, 309 F.3d at 1177 (citing TVA v. Hill,

13

437 U.S. 153, 194 (1978)). In Badgley, the Ninth Circuit considered whether an

14

injunction should issue for an agency’s failure to comply with a deadline laid out in the

15

//

16
In reply, Defendants argue for the first time that a declaratory judgment “is not
appropriate in this case.” (Defs. Reply (Dkt. # 125) at 1 (bolding removed).) As a preliminary
matter, the court “need not consider arguments raised for the first time in a reply brief.” Zamani
v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). But even if the court considered Defendants’
argument, Defendants merely purport that a declaratory judgment “alone would not be
sufficient” but provide no support that this alleged insufficiency should prevent a declaratory
judgment from issuing. (See Defs. Reply at 2.) Indeed, the court finds that the parties are
“immersed in a substantial controversy regarding the proper interpretation of” the regulations at
issue and thus, the court has the authority to issue a declaratory judgment regarding the rights of
Plaintiffs. See Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1172-73 (9th Cir. 2002).
2

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3

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Both parties recognize that an injunction pursuant to the APA is identical to mandamus
relief under 28 U.S.C. § 1361. (See Pls. MSJ at 6-7; Defs. MSJ at 8.)

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Endangered Species Act (the “ESA”). See id. at 1176-78. Because the clear purpose of

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the ESA was to assure adequate protection for endangered species, and violation of the

3

ESA deadlines impeded that purpose, the court held that the ESA “removed the

4

traditional discretion of courts in balancing the equities before awarding injunctive

5

relief.” Id. at 1177. In other words, because the statute was “abundantly clear that the

6

balance [of equities] has been struck in favor of affording endangered species the highest

7

of priorities,” it removed the usual discretion a court exercises in determining whether an

8

injunction should issue and compelled the court to grant injunctive relief. Id. at 1177-78

9

(internal quotation marks omitted) (quoting TVA, 437 U.S. at 194).

10

As the court has previously found (see 2/10/16 Order at 24), one of the “chief

11

purposes” of the 30-day deadline, as part of the larger regulatory amendments issued in

12

January 1995, was “to ensure that bona fide asylees are eligible to obtain employment

13

authorization as quickly as possible,” 62 Fed. Reg. at 10,318 (1997). The focus on

14

expediency is reinforced by how the agency described the proposed rule: “The INS will

15

adjudicate these applications for work authorization within 30 days of receipt, regardless

16

of the merits of the underlying asylum claim.” 50 Fed. Reg. at 14,780 (1994). This

17

elevation of the 30-day deadline above the merits of the underlying asylum claim reflects,

18

as in Badgley, that the balance of equities has been struck in favor of adhering to the

19

deadline so that applicants can obtain employment authorization. See 309 F.3d at 1177.

20

The goal of timely employment authorization is further evidenced by the reason

21

why the 30-day deadline was implemented. The January 1995 amendments imposed a

22

150-day waiting period before an asylum seeker may submit an initial EAD application.

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50 Fed. Reg. at 14,780. But even though the agency imposed a waiting period, it made

2

clear that “[i]deally . . . few applicants would ever reach the 150-day point.” Id. Indeed,

3

the INS selected 150 days because it was a period “beyond which it would not be

4

appropriate to deny work authorization to a person whose claim has not been

5

adjudicated.” Id. Thus, the purpose of promulgating the 30-day deadline on top of that

6

150-day waiting period was to cabin what was already—in the agency’s view—an

7

extraordinary amount of time to wait for work authorization. See id. This context further

8

elucidates that the 30-day deadline was instituted to promote timeliness.

9

In light of the plain language and clear objectives behind the regulation at issue,

10

the court concludes that, as in Badgley, it is “abundantly clear that the balance [of

11

equities] has been struck in favor” of expedient adjudication of initial EAD applications

12

so that asylum seekers may obtain work authorization when waiting—often for years—to

13

have their asylum applications resolved. See 309 F.3d at 1177; (see SAR at 93-95

14

(showing that asylum applicants wait at least two years, and sometimes, up to four years,

15

for an asylum interview).) Thus, much like Badgley, the court is compelled to issue

16

injunctive relief. See 309 F.3d at 1177.

17

Defendants attempt to distinguish Badgley on the basis that Badgley involved a

18

deadline set by a congressional statute rather than an agency regulation. (Defs. MSJ at

19

11-12.) But it is settled law that “properly enacted regulations have the force of law and

20

are binding on the government until properly repealed.” Flores v. Bowen, 790 F.2d 740,

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742 (9th Cir. 1986). And nothing in Badgley expressly limits its reasoning to statutes

22

enacted by Congress. See 309 F.3d at 1176-78. Moreover, Defendants provide no

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authority interpreting Badgley in the way they propose, either in their briefing or at oral

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argument. (See Defs. MSJ at 11-12.) Indeed, Congress, in its statutory directive, defers

3

to the agency regulations to govern the process of granting work authorization. See 8

4

U.S.C. § 1158(d)(2) (“[S]uch authorization may be provided under regulation.”). Thus,

5

the court discerns no reason to differentiate the mandatory regulatory deadlines at issue

6

here from the mandatory statutory deadlines in Badgley.

7

Badgley also forecloses Defendant’s argument that the court should apply the

8

six-factor reasonableness analysis from Telecommunications Research & Action Center

9

v. F.C.C. (“TRAC”), 750 F.2d 70, 80 (D.C. Cir. 1984). (See Defs. MSJ at 12-13 (urging

10

the court to apply the TRAC factors).) As the court previously concluded (see 7/18/17

11

Order at 20-21), Badgley rejected the TRAC analysis when the law “specifically

12

provide[s] a deadline for performance,” see 309 F.3d at 1177 n.11; see also Garcia v.

13

Johnson, No. 14-cv-01775-YGR, 2014 WL 6657591, at *12 (N.D. Cal. Nov. 21, 2014).

14

Here, there is undisputedly a deadline established by regulation. See 8 C.F.R.

15

§ 208.7(a)(1). Thus, the court rejects the Defendants’ contention that the TRAC factors

16

should be applied.

17

But even if Defendants are correct that the TRAC factors apply, they weigh in

18

favor of granting injunctive relief. The TRAC factors measure whether the agency has

19

unreasonably delayed action, as is required to issue injunctive relief under the APA. 750

20

F.2d at 79-80; see 5 U.S.C. § 706(1); Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 190

21

(D.C. Cir. 2016) (applying TRAC factors in the mandamus context to determine whether

22

mandamus should issue). The factors include:

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(1) the time agencies take to make decisions must be governed by a “rule of
reason,” (2) where Congress has provided a timetable or other indication of
the speed with which it expects the agency to proceed in the enabling statute,
that statutory scheme may supply content for this rule of reason, (3) delays
that might be reasonable in the sphere of economic regulation are less
tolerable when human health and welfare are at stake, (4) the court should
consider the effect of expediting delayed action on agency activities of a
higher or competing priority, (5) the court should also take into account the
nature and extent of the interests prejudiced by the delay, and (6) the court
need not “find any impropriety lurking behind agency lassitude in order to
hold that agency action is unreasonably delayed.”

7

TRAC, 750 F.2d at 80 (internal citations omitted). Defendants discuss only their current

8

efforts to meet the 30-day timeline and the reasons why they cannot achieve 100%

9

compliance, both of which fall within the fourth TRAC factor.4 (See Defs. MSJ at 13-15.)

10

Specifically, Defendants cite “resource and logistical constraints in the face of an

11

astronomical increase in both asylum applications and subsequent [EAD] applications”

12

and the two changes they have made in an effort to comply: (1) extending the validity of

13

initial asylum EADs; and (2) preparing a checklist for initial EAD applicants so that

14

applications are properly filled out.5 (Id. at 13-14.)

15
16

Even accepting Defendants’ assertions on their face and assuming that the fourth
TRAC factor weighs against an injunction, that factor is outweighed by the remaining

17
4

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21
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Although the Defendants urge the court to apply the TRAC factors, their briefing does
not explicitly make arguments under each factor; instead, they raise general practical concerns
involving their resources. (See Defs. MSJ at 12-15.) At oral argument, Defendants identified the
fourth TRAC factor as the one most likely to encompass resource concerns, and in its own review
of the factors, the court agrees that these practical concerns best fit into the fourth TRAC factor.
5

Defendants also indicate that they are in the process of amending the regulations to
eliminate the 30-day deadline. (Defs. MSJ at 8; Defs. Resp. at 3.) But the current regulation
remains binding until it is properly repealed. See Flores, 790 F.2d at 742. Moreover, the status
of the amendment is unclear, and its outcome is equally unclear. Thus, the court declines to rely
on a potential amendment in its consideration of the instant motions.

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factors. Most importantly, the overlapping third and fifth TRAC factors, both of which

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assess the impact of the agency’s delay on the public welfare, strongly weigh in favor of

3

an injunction. See TRAC, 750 F.2d at 80. As TRAC recognizes, delays are “less tolerable

4

when human health and welfare are at stake.” Id. And that is exactly what is at stake

5

here: Asylum seekers are unable to obtain work when their EAD applications are

6

delayed and consequently, are unable to financially support themselves or their loved

7

ones. (See SAR at 3 (noting that asylum seekers “are not authorized to work unless they

8

are specifically granted [EADs]”).) This negative impact on human welfare is further

9

compounded by the length of the USCIS’s delay. For example, in 2017, 10,103

10

applications took over 121 days to adjudicate, on top of the 150 days those applicants

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already had to wait, unable to work, after filing their asylum application. (SAR at 90.)

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The first and second TRAC factors additionally suggest that Defendants’ delay is

13

unreasonable. Although Congress has not included a timetable specific to EAD

14

applications, it has stated that the final adjudication of the asylum application “shall be

15

completed within 180 days after the date an application is filed.” 8 U.S.C.

16

§ 1158(d)(5)(A)(iii). This timetable syncs up with the regulatory requirements—that

17

after the asylum application has been pending for 150 days, the EAD application should

18

be resolved in 30 days. See 8 C.F.R. § 208.7(a)(1). Yet, the agency is taking far longer

19

than 30 days. (See Machic Yac AR at 3 (91 days); A.A. AR at 3 (about 64 days); W.H.

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AR at 42-50 (183 days).)

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Considered in combination with the third and fifth factors, the court concludes that
the totality of the TRAC factors indicates that Defendants’ delay in resolving EAD

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applications is unreasonable in these circumstances.6 Accordingly, the court grants an

2

injunction compelling Defendants to adhere to the 30-day deadline as laid out in 8 C.F.R.

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§ 208.7(a)(1).

4
5

IV.

CONCLUSION

For the foregoing reasons, the court GRANTS Plaintiffs’ motion for summary

6

judgment (Dkt. # 118) and DENIES Defendants’ motion for summary judgment (Dkt.

7

# 119). The court FINDS that Defendants are in violation of 8 C.F.R. § 208.7(a)(1) and

8

ENJOINS Defendants from further failing to adhere to the 30-day deadline for

9

adjudicating EAD applications, as set forth in 8 C.F.R. § 208.7(a)(1). The court

10

ORDERS Defendants to submit status reports every six (6) months regarding the rate of

11

compliance with the 30-day timeline.

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The court DIRECTS the Clerk to provisionally file this order under seal and

13

ORDERS the parties to meet and confer regarding the need for redaction. The court

14

further ORDERS the parties to jointly file a statement within ten (10) days of the date of

15

this order to indicate any need for redaction.

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Dated this 26th day of July, 2018.

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18

A

19

JAMES L. ROBART
United States District Judge

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21
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6

To the extent Defendants rely on resource constraints as a standalone argument, that
argument is unavailing. The Supreme Court recently rejected a similar argument from an agency
citing “a number of practical concerns.” Pereira v. Sessions, --- U.S. ---, 138 S. Ct. 2105, 2118
(2018). The Court found these “meritless” considerations “do not justify departing from the
[law’s] clear text.” Id. The court concludes the same here.

ORDER - 12