Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 1 of 54 1 2 3 4 5 6 7 MAYER BROWN LLP Lee H. Rubin (CA. Bar No. 141331) Two Palo Alto Square, Suite 300 Palo Alto, California 94306 Telephone: (650) 331-2037 Facsimile: (650) 331-4537 lrubin@mayerbrown.com Attorney for Plaintiffs (Additional counsel listed on signature page) 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 14 THE CITY OF SEATTLE, IMMIGRANT LEGAL RESOURCE CENTER, CATHOLIC LEGAL IMMIGRATION NETWORK, INC., SELF-HELP FOR THE ELDERLY, ONEAMERICA, AND CENTRAL AMERICAN RESOURCE CENTER OF CALIFORNIA. 15 Plaintiffs, 11 12 13 16 17 18 19 20 21 Case No. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ADMINISTRATIVE PROCEDURE ACT CASE vs. DEPARTMENT OF HOMELAND SECURITY, KEVIN MCALEENAN, KENNETH CUCCINELLI, AND UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendants. 22 23 24 25 26 27 28 COMPLAINT, CASE NO. Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 2 of 54 1 TABLE OF CONTENTS 2 Page 3 COMPLAINT ................................................................................................................................. 1 4 INTRODUCTION .......................................................................................................................... 1 5 PARTIES ........................................................................................................................................ 6 6 I. PLAINTIFFS ...................................................................................................................... 6 7 II. DEFENDANTS .................................................................................................................. 8 8 9 JURISDICTION AND VENUE ..................................................................................................... 9 10 FACTUAL ALLEGATIONS.......................................................................................................... 9 11 I. NATURALIZATION ......................................................................................................... 9 12 A. The Benefits of Naturalization ...................................................................................... 9 13 14 B. The Administration’s Anti-Naturalization Efforts ...................................................... 11 C. The Naturalization Application Process ..................................................................... 14 15 16 17 D. Naturalization Application Fees and Fee Waivers ..................................................... 15 E. The 2010 Notice and 2011 Policy Memorandum Regarding Fee Waivers ................ 17 18 III. THE 2019 RULE .............................................................................................................. 20 19 A. Removal of Eligibility Based on Means-Tested Benefits ........................................... 20 20 1. The Federal Poverty Guidelines do not adequately measure “ability to pay” .... 21 21 22 23 24 2. Proving income is extremely burdensome.......................................................... 23 3. Proving financial hardship is extremely burdensome......................................... 24 4. Processing times for naturalization applications will increase ........................... 25 25 26 B. Requirement to Submit Tax Transcripts Instead of Tax Returns ............................... 26 27 C. Requirement to Use Revised Form I-912 ................................................................... 27 28 IV. PROMULGATION OF THE 2019 RULE ....................................................................... 28 COMPLAINT, CASE NO. Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 3 of 54 1 A. Defendants’ Notices Regarding the 2019 Rule........................................................... 28 2 B. The Administrative Procedure Act’s Notice-and-Comment Rulemaking 3 Procedures ......................................................................................................................... 31 4 C. Defendants Did Not Comply with the APA’s Notice-and-Comment Rulemaking 5 6 Procedures ......................................................................................................................... 32 D. Defendants Had to Comply with the APA’s Notice-and-Comment Rulemaking 7 8 9 Procedures ......................................................................................................................... 33 1. The 2019 Rule effects a substantive rule change, and thus required APA 10 rulemaking ................................................................................................................ 34 11 2. The 2019 Rule was a not a general statement of policy or rule of agency 12 organization, procedure, or practice, and thus required APA rulemaking ............... 35 13 14 15 16 17 3. The 2019 Rule was an unfair surprise ................................................................ 37 V. PLAINTIFFS ARE HARMED BY DEFENDANTS’ 2019 RULE.................................. 37 A. Naturalization Workshops .......................................................................................... 37 B. Effective Naturalization Workshops are Not Possible with the 2019 Rule ................ 39 18 19 20 C. The 2019 Rule Will Make it Impossible for Plaintiffs to Employ Naturalization Workshops, Draining Their Resources ............................................................................. 41 21 1. The 2019 Rule will fundamentally undermine Plaintiffs’ mission..................... 41 22 2. The 2019 Rule jeopardizes Plaintiffs’ funding. .................................................. 42 23 24 25 3. The 2019 Rule will force Plaintiffs to expend significant resources reorganizing and retraining. ........................................................................................................... 43 26 D. The 2019 Rule Additionally Harms Plaintiff Seattle Because it Creates a Barrier 27 to Naturalization for Low-Income Seattle Residents ........................................................ 43 28 CAUSES OF ACTION ................................................................................................................. 44 COMPLAINT, CASE NO. Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 4 of 54 1 FIRST CAUSE OF ACTION (Defendants Failed to Comply with Procedures Required by 2 Law) ........................................................................................................................................ 44 3 SECOND CAUSE OF ACTION (The 2019 Rule is Substantively Arbitrary and Capricious 4 and Otherwise Not in Accordance with the Law in Violation of the Administrative Procedure 5 6 Act).......................................................................................................................................... 46 REQUEST FOR RELIEF ............................................................................................................. 48 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT, CASE NO. Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 5 of 54 COMPLAINT 1 2 3 4 5 6 7 8 Plaintiffs the City of Seattle; the Immigrant Legal Resource Center; Catholic Legal Immigration Network, Inc.; Self-Help for the Elderly; OneAmerica; and the Central American Resource Center of California bring this Complaint against Defendants Kevin McAleenan, in his official capacity as Acting Secretary of Homeland Security; the U.S. Department of Homeland Security (“DHS”); Kenneth Cuccinelli, in his official capacity as Acting Director of U.S. Citizenship and Immigration Services; and U.S. Citizenship and Immigration Services (“USCIS”). Plaintiffs allege as follows: INTRODUCTION 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. The United States is proudly described as “a nation of immigrants.” Foley v. Connelie, 435 U.S. 291, 294 (1978). Naturalization—the process by which immigrants become American citizens—marks the final step for immigrants to become full members of the American community. To be eligible for naturalization, immigrants must typically be Lawful Permanent Residents (“LPRs”), also known as “green card” holders, which means that they already have deep roots in their communities. 2. This case challenges an unlawful measure taken by Defendants that severely limits the ability of low-income LPRs to apply for naturalization. Current policy dictates that naturalization applicants must pay a $725 fee, which is waived automatically for LPRs who receive a means-tested benefit from another government agency. Now, USCIS has announced that it will no longer consider an applicant’s use of public benefits as evidence of qualification for a fee waiver. This change effectively creates a wealth test for citizenship and will block large numbers of low-income LPRs from becoming citizens, despite the fact that they are already part of the fabric of—and make enormous contributions to—our country. 3. To be eligible to naturalize, immigrants must meet criteria that Congress has determined demonstrate their commitment to this country: good moral character; years of lawful permanent residence and physical presence; English language ability (in most cases); and an understanding of the nation’s history, its government, and its political system. In exchange for that commitment, naturalized immigrants—new citizens—are granted numerous benefits for which -1COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 6 of 54 1 they were previously ineligible. They have the right to participate fully in American life, including 2 the opportunity to vote, serve on a jury, travel without restrictions, and run for political office. They 3 have access to better economic opportunities, including government jobs and certain job-related 4 security clearances, to the ultimate benefit of their communities and the United States as a whole. 5 They can strengthen their family units by obtaining citizenship for children born abroad and 6 bringing other family members to the United States. And after years of lawful residence in the 7 United States, naturalized immigrants enjoy a deeper sense of permanence in their communities as 8 fully integrated American citizens. Millions of immigrants are eligible to naturalize each year. 9 4. Democracy is strengthened when a larger share of the population is eligible to and 10 does participate in the political process. Political participation reinforces individuals’ beliefs that 11 their own well-beings are tied to that of the country, and leads them to act in the national interest. 12 See Alexis de Tocqueville, Democracy in America vol. I, ch. XIV (1835). Access to naturalization 13 also ensures that all who have made a permanent commitment to the country have the opportunity 14 to have their voices heard in our elections. When some are denied that opportunity, government 15 policy is likely to overlook the full needs of their communities. 16 5. On October 25, 2019, Defendants announced a sudden and unlawful policy change 17 that will make it impossible for many low-income immigrants to naturalize, jeopardizing their 18 access to this important right. 19 6. To cover the costs of processing naturalization applications, USCIS charges an 20 application fee. Today, the total fee is $725. Federal law contemplates the existence of a fee waiver 21 for immigration services, see 8 U.S.C. § 1356(m), and USCIS has the authority to waive fees in 22 certain circumstances. DHS regulations specifically permit USCIS to waive the $725 naturalization 23 application fee if the applicant can show an “inability to pay.” 8 C.F.R. § 103.7(c). 24 7. In 2010 and 2011, after extensive collaboration with stakeholders, USCIS adopted 25 a new form (Form I-912) and accompanying policy memorandum (the “2011 Policy 26 Memorandum”) governing fee waivers. The guidance replaced numerous prior memos that 27 contained contradictory instructions on fee waivers; the new form, for the first time, allowed 28 applicants a uniform way of applying for a fee waiver. -2COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 7 of 54 1 8. The version of Form I-912 adopted in 2010 allowed naturalization applicants to 2 obtain a fee waiver if they showed that they (1) received a means-tested benefit, such as Medicaid, 3 Supplemental Security Income (“SSI”), Supplemental Nutrition Assistance Program (“SNAP,” 4 formerly known as food stamps), or Temporary Assistance for Needy Families; (2) were at or below 5 150 percent of the Federal Poverty Guidelines; or (3) were suffering a “financial hardship” evinced 6 by extraordinary circumstances such as job loss or medical expenses. Further, because Form I-912 7 is not required by the underlying regulations, naturalization applicants could submit an 8 “applicant-generated” fee waiver request—a letter or similar document that simply described “the 9 person’s belief that he or she is entitled to or deserving of the benefit requested, the reasons for his 10 11 or her inability to pay, and evidence to support the reasons indicated.” 8 C.F.R. § 103.7(c)(2). 9. This fee waiver program has allowed hundreds of thousands of immigrants to begin 12 the naturalization process despite limited financial resources. In 2017, nearly 40 percent of all 13 naturalization applications were submitted with a fee waiver. U.S. Citizenship and Immigration 14 Services Ombudsman, Annual Report 2018, Department of Homeland Security, 27 (June 28, 15 2018). Studies show that fees are a substantial barrier to naturalization, and that fee waivers lead to 16 an increase in the number of naturalized citizens. 17 10. On October 24, 2019, USCIS published a new Form I-912 (the “Revised Form 18 I-912”) and announced changes to the fee waiver process (the “2019 Rule”) that will go into effect 19 on December 2, 2019. 20 naturalization process, and, with it, their opportunity to become American citizens. 21 significantly, the 2019 Rule changes a substantive eligibility requirement for fee waivers, blocking 22 thousands of low-income LPRs from embarking on the naturalization process. It also amends Form 23 I-912 in a number of other ways that, taken separately or together, substantially increase the burden 24 on fee waiver applicants. 25 11. These changes will cripple the ability of immigrants to begin the Most First, the 2019 Rule removes an applicant’s ability to obtain a fee waiver based upon 26 receipt of a means-tested benefit—by far the most utilized and straightforward method of 27 demonstrating an inability to pay. Applicants who were eligible for a fee waiver based only on 28 receipt of a means-tested benefit are no longer able to apply. And other applicants must now try to -3COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 8 of 54 1 prove eligibility for a fee waiver through significantly more burdensome and hard-to-prove 2 methods: by establishing that they are at or below 150 percent of the Federal Poverty Guidelines, 3 or are suffering a financial hardship. By arbitrarily changing the requirements for a fee waiver in 4 this way, USCIS unduly burdens applicants as well as service providers and sponsors of 5 naturalization services, such as Plaintiffs, and significantly restricts access to naturalization for 6 low-income immigrants. 7 12. Second, Revised Form I-912 now requires applicants to secure a tax transcript from 8 the Internal Revenue Service (“IRS”) to prove their income, rather than submitting copies of tax 9 returns. Tax transcripts—stripped-down summaries of tax returns that are available only from the 10 IRS—can be extremely onerous for low-income LPRs to obtain. And the President himself has 11 argued that tax transcripts “are notoriously inaccurate” and “would not be able to provide a 12 reasonable picture of any taxpayer’s return.” Russ Buettner & Susanne Craig, Decade in the Red: 13 Trump Tax Figures Show Over $1 Billion in Business Losses, N.Y. Times, May 8, 2019. 14 13. Third, the 2019 Rule now mandates for the first time that applicants use Revised 15 Form I-912 to apply for fee waivers, preventing the use of applicant-generated written requests, 16 which have been a valuable alternative for those applicants that do not have the resources or skills 17 to complete the form. 18 14. At a minimum, these changes create a significantly more burdensome process for 19 fee waiver applicants. And they will block a large number of LPRs from even applying for fee 20 waivers, and in turn, naturalization. 21 15. Viewed alongside other obstacles faced by lawful immigrants and applicants for 22 naturalization, such as significant delays in processing naturalization applications and the 23 announcement of a denaturalization “task force,” these changes reveal the Trump administration’s 24 effort to withhold citizenship rights from individuals who are, in most respects, already fully 25 integrated into American society. See, e.g., Tal Kopan, Trump Admin Creates New Office to Target 26 Citizenship Fraud, CNN (June 13, 2018), https://www.cnn.com/2018/06/13/politics/citizenship- 27 fraud-office/index.html. Immigrants who are eligible to complete the naturalization process are, by 28 definition, individuals who have been found by the government to be eligible for permanent -4COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 9 of 54 1 resident status, have shown a deep commitment to and love for this country, and already have deep 2 roots in our communities. That is what it means to be a Lawful Permanent Resident. 3 16. Plaintiffs share a mission to facilitate access to naturalization for eligible 4 immigrants. 5 low-income immigrants with the naturalization process in Washington State, California, and across 6 the country. Their programs will be dramatically harmed by the changes to the fee waiver process, 7 to the detriment of the Plaintiffs and the individuals and communities they serve. Together, they provide or support programs which assist many thousands of 8 17. The 2019 Rule is unlawful for three principal reasons. 9 18. First, despite issuing substantive rule changes that affect the rights of individuals, 10 Defendants failed to follow the notice-and-comment procedures required under the Administrative 11 Procedure Act (“APA”). Instead, Defendants followed the rubric of the Paperwork Reduction Act 12 (“PRA”), casting this substantive impediment to naturalization as a mere matter of data collection. 13 As a result, Defendants failed to undertake the required Regulatory Flexibility Act analysis and to 14 comply with other requirements imposed by the APA. 15 19. Second, the 2019 Rule violates the APA because the Administration’s changes are 16 arbitrary and capricious. In its initial notice announcing the rule changes, USCIS claimed that 17 removing means-tested benefit-based applications would resolve inconsistencies in the application 18 process—specifically, supposed inconsistencies in the income levels used by states and localities 19 to determine eligibility for means-tested benefits and thus, by extension, fee waiver eligibility. But 20 USCIS has provided no evidence or data to support this assertion. Nor has it established that the 21 alleged inconsistency has anything to do with an applicant’s “inability to pay” under the governing 22 regulations. Moreover, USCIS has failed to provide any justification for requiring applicants to 23 use tax transcripts and Revised Form I-912. 24 25 26 27 28 20. Third, the 2019 Rule eliminates applicant-generated requests,1 mandating that 1 As explained further below, fee waiver requests made without the use of Form I-912 were known as “applicant-generated” requests. An applicant-generated request required only a statement giving “the person’s belief that he or she is entitled to or deserving of the benefit requested, the reasons for his or her inability to pay, and evidence to support the reasons indicated.” 8 C.F.R § 103.7(c). Thus, applicants were free to apply for a fee waiver without using Form I-912, and could substitute a written reason and supporting evidence tailored to the applicant’s individual circumstances. -5COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 10 of 54 1 naturalization applicants submit Revised Form I-912 in order to obtain a fee waiver. But 8 C.F.R. 2 § 103.7(c)(2) does not require an individual to use a form; USCIS’s about-face violates the plain 3 language of the regulation. 4 5 21. For these reasons and others, the Court should vacate the 2019 Rule, declare it unlawful, and enjoin Defendants from applying it. 6 7 8 PARTIES I. PLAINTIFFS 22. Plaintiff the City of Seattle is Washington State’s largest city and the seat of King 9 County. Seattle created its Office of Immigrant and Refugee Affairs (“OIRA”) in 2012 to improve 10 the lives of its immigrant families. As a part of this goal, OIRA funds and coordinates two 11 naturalization programs, the New Citizen Campaign (“NCC”) and the New Citizen Program 12 (“NCP”)—both aimed at helping the estimated 75,000 Seattle-area LPRs become U.S. citizens. A 13 significant portion of Seattleites served through these programs request a fee waiver, and almost 14 all of them do so through the means-tested benefits approach. 15 23. Plaintiff Immigrant Legal Resource Center (“ILRC”) is a 501(c)(3) nonprofit 16 organization headquartered in San Francisco, California. Its mission is to work with and educate 17 immigrants, community organizations, and the legal sector to continue to build a democratic society 18 that values diversity and the rights of all people. As a key part of that mission, ILRC serves as the 19 lead agency for the New Americans Campaign (“NAC”), a national campaign aimed at increasing 20 the number of new Americans by providing legal services and resources related to the naturalization 21 process. The NAC brings together a coalition of foundation funders, leading national immigration 22 and service organizations, and more than 200 local service providers across more than 20 different 23 regions to help prospective Americans apply for American citizenship. It was founded in 2011, but 24 naturalization has been central to ILRC’s work for decades. As a result, ILRC has extensive 25 experience with fee waivers and through the NAC has helped hundreds of thousands of LPRs with 26 the naturalization process. 27 28 24. Plaintiff Catholic Legal Immigration Network, Inc. (“CLINIC”) is a 501(c)(3) nonprofit organization based in Silver Spring, Maryland. CLINIC is the nation’s largest network -6COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 11 of 54 1 of nonprofit legal immigration services programs. CLINIC’s mission is to provide immigration 2 legal services to low-income and vulnerable populations. The network includes approximately 370 3 affiliated immigration programs, which operate out of more than 400 offices in 49 states and the 4 District of Columbia. CLINIC’s network employs more than 1,500 attorneys and accredited 5 representatives, who serve hundreds of thousands of low-income immigrants each year. CLINIC, 6 which is a national partner in NAC, provides materials, training, education, best practices, and, in 7 some cases, funding, to members of this network, known as “affiliates.” CLINIC also offers 8 technical assistance to the staff of affiliates regarding individual cases, including regarding 9 naturalization cases. CLINIC also provides funding, technical assistance, training, and resources, 10 including regarding the fee waiver process, to local organizations to increase naturalization 11 applications. In 2010 and 2011, CLINIC received grant funding through USCIS’s Citizenship and 12 Integration Grant Program (“CIGP”), which is funded, in part, by USCIS fee receipts. 13 25. Plaintiff OneAmerica, a 501(c)(3) nonprofit organization headquartered in Seattle, 14 is the largest immigrant and refugee advocacy organization in Washington. Its mission is to 15 advance the fundamental principles of democracy and justice at the local, state, and national levels 16 by building power within immigrant communities. As a part of its mission, OneAmerica focuses 17 on helping eligible immigrants apply for citizenship and become civically engaged citizens. 18 OneAmerica has served as the sole contracting agency for the Washington New Americans 19 program (WNA), a state-funded program that since 2008 has connected eligible immigrants and 20 refugees in Washington to the information and legal services needed to successfully naturalize and 21 exercise their civic voices. OneAmerica is also a partner of the NAC. One America received CIGP 22 funds from USCIS in 2009. 23 26. Plaintiff Self-Help for the Elderly (“Self-Help”) is a 501(c)(3) nonprofit 24 organization headquartered in San Francisco, California. Originally founded to serve the elderly 25 in San Francisco’s Chinatown, Self-Help’s mission is to provide assistance and support for seniors 26 throughout the San Francisco area. As a part of this mission, Self-Help serves as the lead agency 27 for SF Pathways to Citizenship, a partnership between the City of San Francisco and six legal and 28 social services providers. Self-Help receives funding from the city that has been earmarked for -7COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 12 of 54 1 naturalization services, and is contractually obligated to hold large naturalization workshops and 2 file naturalization applications with fee waivers. In addition, Self-Help partners directly with the 3 city of San Francisco to specifically identify and serve LPRs who receive means-tested benefits. 4 As the lead agency for SF Pathways to Citizenship over the last six years, Self-Help has been 5 responsible for more than 8,900 applications, over 60 percent of which were filed with fee waivers. 6 Self-Help is also a NAC partner. 7 27. Plaintiff Central American Resource Center of California (“CARECEN”), a 8 501(c)(3) nonprofit organization headquartered in Los Angeles, California, is the largest Central 9 American immigrant-rights organization in the country. Its mission is to empower Central 10 Americans and all immigrants by defending human and civil rights, working for social and 11 economic justice, and promoting cultural diversity. As part of this mission, CARECEN offers free 12 legal assistance to naturalization-eligible immigrants in order to help them apply for citizenship 13 and become civically engaged citizens. CARECEN is also a NAC partner. CARECEN received 14 CIGP grant funding in 2009, 2012, and 2015. 15 II. 16 DEFENDANTS 28. Defendant Kevin McAleenan is the Acting Secretary of Homeland Security and 17 therefore the “head” of that agency. See 6 U.S.C. § 112(a)(2). Under the Immigration and 18 Nationality Act, he is charged with administering and enforcing the federal immigration and 19 nationality laws. 8 U.S.C. § 1103(a)(1). He is being sued in his official capacity. 20 29. Defendant the Department of Homeland Security (“DHS”) is the executive 21 department charged with authority over federal immigration law, see 6 U.S.C. § 251, and an 22 “agency” within the meaning of the APA, see 5 U.S.C. § 551(1). 23 30. Defendant Kenneth Cuccinelli is the Acting Director of U.S. Citizenship and 24 Immigration Services and therefore the “head” of that agency. See 6 U.S.C. § 271(a)(2). He is 25 being sued in his official capacity. 26 31. Defendant United States Citizenship and Immigration Services (“USCIS”) is a 27 component of DHS, see 6 U.S.C. § 271, and an “agency” within the meaning of the APA, see 5 28 U.S.C. § 551(1). USCIS is permitted to charge fees for naturalization services and to provide -8COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 13 of 54 1 certain related services “without charge.” 8 U.S.C. § 1356(m). USCIS is the arm of DHS that 2 issued the 2019 Rule and Revised Form I-912. 3 JURISDICTION AND VENUE 4 5 32. This Court has federal question jurisdiction under 28 U.S.C. § 1331 because this action arises under the APA. 6 33. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b) and (e)(1). 7 8 FACTUAL ALLEGATIONS I. NATURALIZATION 9 A. The Benefits of Naturalization 10 34. The Constitution recognizes two pathways to citizenship: by birth and by 11 naturalization. U.S. Const. amend. XIV, § 1. Recognizing the importance of having a clear process 12 for immigrants to become citizens, the First United States Congress passed the country’s first 13 Naturalization Act in 1790, just a year after the Constitution went into effect. 1 Stat. 103. 14 35. Since that time, the United States has always maintained a process by which 15 immigrants who have made a permanent commitment to the United States can formalize that 16 relationship by becoming citizens. The United States has historically “exhibit[ed] extraordinary 17 hospitality to those who come to our country,” with “[o]ne indication of this attitude [being] 18 Congress’ determination to make it relatively easy for immigrants to become naturalized citizens.” 19 Foley, 435 U.S. 294 & n.2. Among the chief benefits of citizenship are the right to vote, apply for 20 government jobs, serve in the military, run for elected office, and obtain certain federal benefits. 21 36. To be eligible to naturalize under current law, most immigrants must (1) have been 22 a Lawful Permanent Resident (“LPR”), also known as a “green card” holder, for five years; (2) be 23 able to read, write, and speak basic English; (3) have a basic understanding of United States history 24 and government; (4) be a person of good moral character; and (5) demonstrate an attachment to the 25 principles and ideals of the United States Constitution. 8 U.S.C. §§ 1423, 1424, 1427. 26 37. In addition, most applicants must be able to show, among other requirements, 27 (1) three months’ residence in the state from which they are applying, (2) continuous residence in 28 the United States for five years prior to applying for naturalization, and (3) physical presence in the -9COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 14 of 54 1 United States for at least 30 months out of the five years before applying for citizenship. 8 U.S.C. 2 § 1427. 3 4 38. Study after study has established that naturalization brings substantial benefits to naturalized citizens, their families, their communities, and the country as a whole. 5 39. Many naturalized citizens report—and one need only attend a naturalization 6 ceremony to observe—an enormous sense of pride, dignity, belonging, and patriotism associated 7 with swearing an oath of allegiance to the United States and becoming an American citizen. As 8 former President George W. Bush said at a recent naturalization ceremony at the George W. Bush 9 Presidential Center in Dallas, Texas, “Across the world, good men and women still dream of 10 starting life anew in America—people who bring energy, and talent, and faith in the future. Often 11 they bring a special love of freedom, because they have seen how life works without it.” Remarks 12 by President George W. Bush and Mrs. Laura Bush at a Naturalization Ceremony, George W. Bush 13 Presidential Center (Mar. 18, 2019), https://www.bushcenter.org/about-the-center/newsroom/pre 14 ss-releases/2019/remarks-presidentbush-mrsbush-naturalization-ceremony.html. 15 40. Naturalization also brings more tangible benefits. Naturalized citizens are eligible 16 to vote, serve on juries, and run for public office, and thus can fully participate in our democracy. 17 While LPRs face restrictions on international travel, naturalized citizens do not, and can travel 18 internationally with U.S. passports. Unlike LPRs, naturalized citizens cannot be deported. And 19 naturalized citizens are eligible for state and federal government benefits that are not available to 20 LPRs. 21 41. Naturalization is associated with substantial improvements in economic and 22 professional opportunities, including access to jobs requiring high-level security clearance. On 23 average, naturalized citizens see their earnings increase by eight to eleven percent. Naturalization 24 alone may result in a wage premium of at least five percent, even when controlling for education, 25 language skills, work experience, and other factors that might otherwise explain a wage gap. 26 Similarly, naturalized citizens earn higher wages and experience lower levels of poverty, even after 27 controlling for other factors. And naturalized citizens are more likely to own their own homes and 28 build assets. - 10 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 15 of 54 1 42. The economic benefits of naturalization are attributable, at least in part, to the fact 2 that a naturalized citizen is better able to find the right job—including a highly skilled job—and to 3 switch jobs if necessary. Naturalized citizens also have access to certain government jobs, and jobs 4 in licensed professions that are not open to noncitizens. And naturalized citizens experience less 5 employment discrimination than noncitizens. 6 43. The benefits of naturalization extend to the families of naturalized citizens. LPRs 7 under the age of 18 automatically become citizens once their parents naturalize. Naturalized 8 citizens, unlike LPRs, can also file immigration petitions to reunite with certain family members, 9 such as parents, siblings, and married sons and daughters. 8 U.S.C. §§ 1153 (a)(1), (3). 10 44. The benefits of naturalization accrue not only to naturalized citizens and their 11 families, but also to their communities and the country as a whole. Economic gains by naturalized 12 citizens result in a larger tax base and growth in the Gross Domestic Product (“GDP”). According 13 to one estimate, if half of the naturalization-eligible LPRs were actually naturalized, aggregate 14 earnings across the United States would increase by $21 billion to $45 billion over 10 years—a 15 figure that likely understates the actual impact on GDP. 16 45. Our democracy itself is stronger when a larger share of the population is eligible to 17 and does participate in the political process. When more individuals are eligible to and do 18 participate in the political process, the government tends to enact policies that more fully reflect 19 the needs of the entire populace. By opening the door to political participation, naturalization helps 20 to ensure that our representative government is truly representative. 21 B. The Administration’s Anti-Naturalization Efforts 22 46. Despite the many benefits that naturalization confers on immigrants and their 23 communities, the Trump administration has pursued what this Court has termed “anti-immigrant 24 policies” that obstruct the naturalization process and prevent otherwise-eligible candidates from 25 becoming citizens. S.A. v. Trump, No. 18-CV-03539-LB, 2019 WL 990680, at *9 (N.D. Cal. Mar. 26 1, 2019). 27 28 47. For example, on August 14, 2019, DHS issued the “Public Charge Rule,” a barrier designed to target low-income immigrants who use or may use public benefits. The Public Charge - 11 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 16 of 54 1 Rule, which has now been enjoined nationwide, expands immigration officials’ ability to deny visas 2 and lawful permanent residency to any individual who uses or who they predict may use in the 3 future a vast array of federal, local, and tribal public benefits—whether or not the individual 4 actually ends up using them. 5 48. Other restrictive policy changes have helped double the wait times for naturalization 6 since the beginning of the Trump administration. The wait times for naturalization applications for 7 fiscal years 2015 and 2016 were 5.8 months and 5.6 months, respectively. As of August 31, 2019, 8 the average wait time for naturalization nationwide is now 10 months. In Las Vegas, where the 9 backlog is particularly large, applicants have faced delays of up to 31 months. The average 10 completion rate of USCIS’s naturalization application backlog for fiscal years 2009 through 2016 11 was approximately 70 percent. As of the end of fiscal year 2018, the completion rate of USCIS’s 12 backlog was 58 percent. 13 49. In Washington State, meanwhile, naturalization cases are being transferred away 14 from Seattle, the largest urban center, to USCIS offices in Yakima and Portland—meaning 15 applicants may have to drive up to three hours for their appointments and any follow-ups. 16 50. USCIS is currently reviewing its fee schedule and anticipates an increase of at least 17 10% in filing fees. Despite this, USCIS has diverted staff from conducting naturalization interviews 18 and has proposed to transfer more than $200 million of its fee revenue to Immigration and Customs 19 Enforcement—suggesting a priority of preventing, rather than facilitating, immigration and 20 naturalization. 21 51. Even the status of naturalized immigrants is no longer secure. The administration 22 has taken unprecedented steps to destabilize the status of already naturalized Americans by 23 pursuing a dramatically higher number of denaturalization cases. Prior to this administration, 24 denaturalization—the process for stripping naturalized citizens of their citizenship—was reserved 25 for individuals who committed extremely serious crimes, such as war crimes. In the past two years, 26 denaturalization filings have doubled. In 2018, USCIS announced plans to hire lawyers to staff a 27 new denaturalization “task force,” tasked with reviewing up to one million naturalization cases for 28 potential denaturalization. The Department of Justice has used press releases and public statements - 12 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 17 of 54 1 about these cases to suggest, without specific evidence, that the naturalization process is rife with 2 fraud. 3 52. When Congress adopted our current, family-based immigration system in 1965, it 4 rejected discriminatory national origin quotas, thereby opening the U.S. to immigrants from all over 5 the world and increasing the racial, ethnic, and religious diversity of the U.S. But the Trump 6 administration has erected barriers, including the 2019 Rule, that seem more in line with the 7 restrictive immigration and naturalization policies of the early 20th century. 8 9 53. President Trump has long expressed concern about immigrants from certain nations entering the United States and joining American society. As this Court has previously commented: 10 11 12 13 14 15 16 17 President Trump has allegedly expressed animus toward “non-white, non-European people,” including by labeling Mexican immigrants as criminals and rapists, “compar[ing] immigrants to snakes who will bite and kill anyone foolish enough to take them in,” complaining that 40,000 Nigerians in the United States “would never ‘go back to their huts’ in Africa,” and “disseminat[ing] a debunked story about celebrations of the September 11, 2001, attacks [by Arabs living in New Jersey].” President Trump also specifically made derogatory comments about Haitians, including that the 15,000 admitted to the United States “all have AIDS.” One week before TPS was terminated, President Trump asked aloud regarding Latin American and African countries, including Haiti and El Salvador, “Why are we having all these people from shithole countries come here?” He expressed a preference instead for Norwegians, who are overwhelmingly white. The President also asked “Why do we need more Haitians?” and insisted they be removed from an immigration deal. 18 19 20 21 22 23 24 25 26 27 28 Ramos v. Nielsen, 321 F. Supp. 3d 1083, 1131 (N.D. Cal. 2018). Defendant Cuccinelli, similarly, strongly suggested that low-income immigrants do not belong and are not welcome in America when he rephrased the famous poem on the Statue of Liberty to read “Give me your tired and your poor who can stand on their own two feet and who will not become a public charge.” Sasha Ingber and Rachel Martin, Immigration Chief: “Give Me Your Tired, Your Poor Who Can Stand On Their Own 2 Feet”, NPR (Aug. 13 2019), https://www.npr.org/2019/08/13/750726795/immigrationchief-give-me-your-tired-your-poor-who-can-stand-on-their-own-2-feet. 54. During past periods of rising anti-immigrant sentiment, naturalization policy has been used as a tool to prevent certain immigrant groups from full membership in the American polity. In the late nineteenth century, amidst rising xenophobia directed against Chinese migrant - 13 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 18 of 54 1 workers, Congress passed the Chinese Exclusion Act, which barred lawful immigrants of Chinese 2 origin from becoming U.S. citizens. Subsequent legislation extended this to all Asian immigrants, 3 leaving hundreds of thousands of long-term U.S. residents with no path to citizenship for decades. 4 55. The 2019 Rule risks a return to this era, creating the possibility that thousands of 5 aspiring new citizens who otherwise meet the requirements for naturalization will be prevented 6 from doing so, and thereby from becoming full members of the American polity. 7 C. The Naturalization Application Process 8 56. For LPRs seeking to become U.S. citizens, naturalization marks the final step in a 9 10 long journey. 57. USCIS recommends that to prepare for the application process, prospective 11 applicants read A Guide to Naturalization (a 58-page primer outlining the process) and fill out the 12 Naturalization Eligibility Worksheet to confirm their eligibility for citizenship. U.S. Citizenship 13 and Immigr. Servs., A Guide to Naturalization, 31–32 (rev. Nov. 2016), https://www.uscis.gov/ 14 sites/default/files/files/article/M-476.pdf. While more than 90 percent of applicants base their 15 eligibility on having been a permanent resident for at least five years, special rules exist for certain 16 narrow groups, such as spouses of U.S. citizens and combat veterans who are not yet permanent 17 residents. 18 58. An LPR begins the application process by filling out USCIS Form N-400, the 19 naturalization application. This 20-page form requests detailed information, including information 20 about the applicant’s residence, parents, marital history, children, employment and education, and 21 travel outside the United States. It also asks more than 40 questions about the applicant’s moral 22 character and commitment to the United States; many of the questions have legal implications and 23 are written at an advanced English level. 24 59. After completing the form, an applicant must collect required documents. 25 Depending on an applicant’s reason for eligibility, these can include, inter alia, a Permanent 26 Resident Card, birth certificate, marriage certificate, and proof of termination of all prior marriages. 27 The applicant must mail these documents, together with the application form and fee, to a USCIS 28 “Lockbox Facility.” - 14 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 19 of 54 1 60. After the application is processed, applicants under 75 years old are sent a letter with 2 a date and location for a biometrics appointment. When the date comes, the applicant travels to the 3 location to be fingerprinted, and may have to also provide photographs and a signature. Afterward, 4 the applicant waits to hear about their status, and may be required to provide additional documents, 5 or to be fingerprinted again. 6 61. Once the documents and biometrics are in order, USCIS schedules an interview for 7 the applicant, at which a USCIS officer asks detailed questions about the applicant’s background, 8 residence, moral character, and allegiance to the United States. The officer also administers an 9 English test (unless the applicant qualifies for a narrow exemption) and a civics exam with 10 11 questions about American politics and history. 62. After the interview, the applicant waits to receive a decision. The application is 12 either denied, continued (in which case a second interview is scheduled or more documents are 13 requested), or approved. Approved applicants are given an oath ceremony date; there, they become 14 American citizens after confirming that they are still eligible to naturalize and taking an oath to 15 “support and defend the Constitution and laws of the United States of America.” Id. At 28, 38. 16 D. Naturalization Application Fees and Fee Waivers 17 63. Congress has authorized USCIS to collect fees to cover the costs of its operations, 18 including any costs associated with processing immigration applications. 8 U.S.C. § 1356(m). 19 Pursuant to that authority, USCIS has set the filing fee for naturalization applications at $640, plus 20 an $85 biometric fee, for a total of $725. 21 22 23 64. This fee represents an 800 percent increase in real terms since 1985, when the naturalization fee was $35 (or $80.25 in today’s dollars). 65. For many low-income permanent residents, the application fee is a major barrier to 24 applying for naturalization. 25 application fee can preclude eligible LPRs from applying for citizenship. In 2018, 28 percent of 26 OneAmerica’s workshop attendees who successfully completed their naturalization applications, 27 but ultimately did not submit them to USCIS, did so because they did not qualify for a fee waiver 28 and still could not afford the fee. Without access to a fee waiver, many otherwise-eligible LPRs Research, and Plaintiffs’ own experience, demonstrate that the - 15 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 20 of 54 1 2 will be priced out of citizenship. 66. Because of the significant expense associated with naturalization, Congress has 3 enacted a way for USCIS to provide services “without charge” to certain immigrants. 8 U.S.C. 4 § 1356(m). Pursuant to that authority, the agency promulgated 8 C.F.R. § 103.7(c), setting out the 5 parameters of the fee waiver program. It states that to be eligible for a fee waiver, applicants for 6 naturalization must be “unable to pay the prescribed fee.” Id. at § 103.7(c)(1)(i). Additionally, 10 To request a fee waiver, a person requesting an immigration benefit must submit a written request for permission to have their request processed without payment of a fee with their benefit request. The request must state the person’s belief that he or she is entitled to or deserving of the benefit requested, the reasons for his or her inability to pay, and evidence to support the reasons indicated. There is no appeal of the denial of a fee waiver request. 11 Id. at § 103.7(c)(2). Separately, the Director of USCIS can “approve and suspend exemptions from 12 any fee” or “provide that the fee may be waived for a case . . . that is not otherwise provided,” if 13 the Director “determines that such action would be in the public interest and the action is consistent 14 with other applicable law.” Id. at § 103.7(d). A fee waiver form has not always been required, and 15 before 2010, USCIS considered fee waiver requests based on “the totality of all factors, 16 circumstances, and evidence the applicant supplies . . ., as well as other factors associated with each 17 specific case.” 18 Guidelines as Established by the Final Rule of the Immigration and Naturalization Benefit 19 Application and Petition Fee Schedule (July 20, 2007), https://www.uscis.gov/sites/default/files/ 20 USCIS/Laws%20and%20Regulations/Memoranda/July%202007/FeeWaiver072007.pdf. 7 8 9 21 67. Interoffice Memorandum, U.S. Citizenship and Immigr. Servs., Fee Waiver Since the fee waiver program’s implementation, fee waivers have played an 22 important role in making naturalization accessible to many eligible permanent residents. According 23 to researchers from the University of Southern California, approximately 32 percent of all 24 naturalization-eligible adults qualify for a fee waiver based on income alone. Consistent with that 25 statistic, almost 40 percent of naturalization applications filed in 2017 were accompanied by a fee 26 waiver request. 27 28 68. Many service organizations, including several funded by or in partnership with plaintiffs by Plaintiffs, report an even higher percentage of fee waiver requests. Organizations - 16 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 21 of 54 1 funded by ILRC’s NAC in Arizona,2 for example, submit 83 percent of their applications with a 2 fee waiver request. NAC-funded organizations in San Francisco generate 82 percent of their 3 applications with fee waiver requests. And 64 percent of applications submitted by New York 4 NAC-funded organizations were submitted with fee waiver requests. In fact, many nonprofit 5 service providers (particularly those organizations whose funding is contingent on the provision of 6 services to low-income clients) may disproportionately work with low-income naturalization 7 applicants who require fee waivers, including because of funding restrictions. 8 E. The 2010 Notice and 2011 Policy Memorandum Regarding Fee Waivers 9 69. In June 2010, USCIS published a notice to the Federal Register (the “2010 Notice”), 10 attached as Exhibit (“Ex.”) A, proposing changes to USCIS’s fee waiver regulation for 11 naturalization applications, 8 C.F.R. § 103.7(c). See USCIS Fee Schedule, 75 Fed. Reg. 33,446 12 (June 11, 2010). Among other things, USCIS restructured the section “to list fees that can be 13 waived, rather than those that cannot be waived,” and removed a requirement for an “unsworn 14 declaration,” deeming it “overly technical for an individual who may qualify for a fee waiver.” 75 15 Fed. Reg. 33,478. 16 70. In publishing the 2010 Notice, USCIS followed traditional APA 17 notice-and-comment procedures. 18 comprehensive fee study and refined its cost accounting process” and “examined the impact of this 19 rule on small entities.” Id.; see also USCIS Fee Schedule, 75 Fed. Reg. 58,962 (Sept. 24, 2010). 20 71. For example, USCIS stated that it had “conducted a In connection with the 2010 Notice, USCIS also created a form that naturalization 21 applicants could use to request a fee waiver. The form, known as Form I-912, attached as Ex. B, 22 was designed to “bring clarity and consistency to the fee-waiver process.” 23 72. In 2011, the agency issued policy guidance (the “2011 Policy Memorandum”), 24 attached as Ex. C, clarifying how it would decide future fee waiver requests. The 2011 Policy 25 Memorandum set out three main routes by which a naturalization applicant could prove eligibility 26 for a fee waiver. 27 28 73. 2 First, individuals could submit proof that they were receiving a means-tested benefit, Excluding the city of Phoenix. - 17 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 22 of 54 1 such as Medicaid, SSI, SNAP, or Temporary Assistance for Needy Families. These and other 2 means-tested benefits are offered to low-income individuals and families in order to ensure that 3 they have access to the basic necessities of daily living; receipt of a means-tested benefit was 4 therefore determined to be a good indicator that an individual would not be able to pay the 5 naturalization fee (which at the time totaled $680 with the biometrics fee, less than the current fee 6 total of $725). Receipt of means-tested benefits could be proven by means of a letter, notice, or 7 other official document from the benefit-granting agency. Once an individual proved that they 8 were receiving a means-tested benefit, “the fee waiver w[ould] normally be approved, and no 9 further information w[ould] be required.” Ex. C at 5. 10 74. Second, if an individual could not show proof of a means-tested benefit, they could 11 still receive a fee waiver by proving that their income was at or below 150 percent of the Federal 12 Poverty Guidelines. To do that, the form asked requested evidence of the applicant’s wages, other 13 sources of income, and, if available, federal tax returns. Ex. C at 6. 14 75. Third, if an individual did not receive a means-tested benefit and could not prove 15 that their income was at or below 150 percent of the poverty guidelines, they could still demonstrate 16 eligibility for a fee waiver by showing “financial hardship, due to extraordinary expenses or other 17 circumstances, that renders [the individual] unable to pay the fee,” such as significant uninsured 18 medical bills. Ex. C at 7. USCIS guidance directed employees evaluating financial hardship to 19 consider proof of the applicant’s overall assets, liabilities, and expenses. 20 76. As USCIS noted when it issued the 2011 Policy Memorandum, “the use of a 21 USCIS-published fee-waiver request form is not mandated by regulation.” Ex. C at 2. Fee waiver 22 requests made without the use of Form I-912 were known as “applicant-generated” requests. 23 77. An applicant-generated request required only a statement giving “the person’s belief 24 that he or she is entitled to or deserving of the benefit requested, the reasons for their inability to 25 pay, and evidence to support the reasons indicated.” 8 C.F.R § 103.7(c). Thus, applicants were 26 free to apply for a fee waiver without using Form I-912, and could substitute a written reason and 27 supporting evidence tailored to the applicant’s individual circumstances. 28 78. Since 2010, the vast majority of the fee waiver requests submitted through - 18 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 23 of 54 1 naturalization programs hosted or sponsored by Plaintiffs have been based on the applicant’s receipt 2 of a means-tested benefit. For example, 90 to 95 percent of the naturalization applicants who 3 participate in Self-Help for the Elderly’s naturalization workshops use this method. The vast 4 majority of ILRC-funded programs report that at least half of the fee waiver applications they 5 prepare are based on means-tested benefits, and nearly a quarter report that they use proof of public 6 benefits as the basis of eligibility for over 90 percent of the I-912 forms that they complete on 7 behalf of naturalization applicants. About half of One America’s fee waiver requests rely on proof 8 of a means-tested benefit to establish eligibility. 9 79. The simplification and standardization of fee waiver applications after 2010 have 10 had a significantly positive impact on rates of naturalization among poor LPRs, non-English- 11 speaking LPRs, and LPRs with lower education levels. Analyzing federal immigration and census 12 data, Stanford University researchers recently found that the introduction of Form I-912 increased 13 the naturalization rate by about 1.5 percent. Vasil Yasenov et al., Standardizing the Fee Waiver 14 Application Increased Naturalization Rates of Low-Income Immigrants, 116(34) Proceedings of 15 the Nat’l Academy of Sci. 16768-72, 6 (Aug. 20, 2019) (pincites reflect pagination of online 16 version). This represents a huge number of LPRs who, without easy access to a fee waiver, would 17 not have applied to become citizens: roughly 75,318 in 2013 alone. This accounts for about 10 18 percent of all naturalization applications filed in just that year alone. 19 80. Ease of access to a fee waiver has had the greatest impact on “precisely those LPR 20 groups who are most likely to be deterred by burdensome, complicated application processes”— 21 including households without an English speaker, immigrants in the lowest income brackets, and 22 individuals with lower education levels. Id. at 7. 23 81. Permanent residents from Mexico, Central and South America, and Africa who are 24 eligible to naturalize were disproportionately likely to qualify for a fee waiver before the 2019 Rule. 25 Approximately 16 percent of eligible-to-naturalize permanent residents of Mexican origin have 26 incomes between 150 and 200 percent of the Federal Poverty Guidelines, compared to just 8 percent 27 of European-origin permanent residents who are eligible to naturalize. Before the 2019 Rule, 28 individuals in this group would have been eligible for a fee waiver if they also received means- 19 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 24 of 54 1 tested benefits. 2 82. Moreover—and most critically for Plaintiffs—researchers believe that higher rates 3 of naturalization are driven by the improved efficiency with which immigration service providers 4 are able to navigate the administrative process of determining and documenting prospective 5 applicants’ fee waiver eligibility. In fact, service provider assistance “is by far the most important 6 predictor of fee waiver use.” Id. at 7-8. This new, detailed research only underlines what Plaintiffs 7 have learned from years of experience: if their ability to effectively serve clients is curtailed, the 8 number of naturalization applicants will decrease—to the detriment of eligible LPRs and Plaintiffs. 9 III. 10 THE 2019 RULE 83. On October 24, 2019, USCIS published the Revised Form I-912 (see Ex. D) for 11 applicants to use when making naturalization application fee waiver requests. USCIS, USCIS 12 Updates Fee Waiver Requirements, (Oct. 25, 2019), https://www.uscis.gov/news/news- 13 releases/uscis-updates-fee-waiver-requirements. On the following day, October 25, 2019, USCIS 14 officially announced changes to the fee waiver process and eligibility criteria for applicants seeking 15 naturalization and other immigration benefits. These announcements included a new policy alert, 16 attached as Ex. E, and revisions to USCIS’s policy manual, attached as Ex. F, which provides 17 guidance on the Revised Form I-912. 18 84. Together, the Revised Form I-912, the policy alert, and revisions to the policy 19 manual (collectively, the “2019 Rule”) change the fee waiver process in a manner that will 20 substantially reduce naturalization rates among the fee-waiver-eligible population. The effective 21 date for the 2019 Rule is December 2, 2019. 22 85. The 2019 Rule makes three major changes to the naturalization application fee 23 waiver process, all of which reduce access to naturalization for low-income immigrants: (i) it 24 eliminates fee waiver eligibility based on means-tested benefits; (ii) it requires tax transcripts in 25 lieu of tax returns to prove an applicant’s income; and (iii) it eliminates applicant-generated fee 26 waiver requests. 27 A. Removal of Eligibility Based on Means-Tested Benefits 28 86. The 2019 Rule eliminates the receipt of means-tested benefits as a way to establish - 20 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 25 of 54 1 eligibility for a fee waiver. Even though states and localities have already determined that 2 individuals receiving means-tested benefits require financial assistance to meet their basic needs, 3 applicants will be able to establish their eligibility for a waiver only by proving that their income 4 is at or below 150 percent of the Federal Poverty Guidelines or by independently showing a 5 “financial hardship.” Ex. E. 6 87. This change will eliminate access to a fee waiver for those applicants who receive 7 means-tested benefits, have an income greater than 150% of the Federal Poverty Guideline, are not 8 suffering (or cannot prove they are suffering) other financial hardships, and still cannot afford the 9 naturalization application fee. In addition, as explained below, applicants who may still qualify for 10 a fee waiver will be subject to a significant burden in attempting to prove their eligibility by other 11 means. 12 1. pay.” 13 14 15 16 88. The Federal Poverty Guidelines do not adequately measure “ability to The Federal Poverty Guidelines provide an inaccurate and overly narrow basis for determining “inability to pay” as required by the regulations. 89. The Federal Poverty Guidelines are uniform for the 48 contiguous states, and 17 attempt to determine individual or family poverty based on income. Critically, these Guidelines do 18 not account for the cost of living of any particular state or locality, despite drastic differences in the 19 cost of living across the country. This means that the Poverty Guidelines do not reflect the reality 20 on the ground for many U.S. residents and the stark disparities among naturalization applicants’ 21 actual ability to pay fees depending on where they live. 22 90. This is illustrated in part through the Census Bureau’s Supplemental Poverty 23 Measure (“SPM”), which takes into account the cost of living in different states. In 2017, the most 24 recent year for which data is available, the District of Columbia and 16 high-cost states had higher 25 poverty rates under the SPM than they did under the Federal Poverty Guidelines: California, 26 Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maryland, Massachusetts, Nevada, 27 New Hampshire, New Jersey, New York, Oregon, Texas, and Virginia. Eighteen lower-cost states 28 actually had lower poverty rates under the SPM: Alabama, Arkansas, Idaho, Kansas, Kentucky, - 21 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 26 of 54 1 Louisiana, Maine, Michigan, Mississippi, Montana, New Mexico, Ohio, Oklahoma, Rhode Island, 2 South Carolina, South Dakota, West Virginia, and Wisconsin. 3 91. The SPM data is consistent with other federal government data. According to the 4 U.S. Department of Housing and Urban Development (HUD), the median income for a family of 5 four in the Seattle metropolitan area in 2019 is $108,600. Based on this median income, HUD 6 (which does not rely on the Poverty Guidelines) considers a family of four earning less than $88,250 7 to be “low income” and potentially eligible for rent assistance. But according to the Federal Poverty 8 Guidelines, that family is not poor, because its income is more than 300% of the Federal Poverty 9 Guidelines and significantly more than the national median income. Of course, the fact that the 10 income of a family living in a high-cost area is more than the static Federal Poverty Guidelines 11 does not mean that family can afford housing where they live—a fact HUD recognizes and adjusts 12 for. 13 92. The federal government has recognized that these discrepancies limit the usefulness 14 of the Poverty Guidelines in certain states and localities, and has allowed states and federal agencies 15 to use different measures of an applicant’s “inability to pay” in administering federally funded 16 means-tested benefit programs. For example, Washington State’s SNAP program is available to 17 anyone earning up to 200% of the Federal Poverty Guideline, reflecting the higher cost of living in 18 that state. This means a family of four may be eligible for nutrition assistance if it earns less than 19 $51,000—even though the family would not be “poor” under the Federal Poverty Guidelines. 20 93. Reliance on the Federal Poverty Guidelines is particularly harmful to the “working 21 poor,” whose incomes may exceed the Federal Poverty Guidelines but whose expenses—including 22 the cost of the childcare necessary to allow parents to work—are particularly high. 23 94. States have long recognized the disconnect between the Federal Poverty Guidelines’ 24 definition of poverty and the reality on the ground. For example, California’s SNAP program, 25 CalFresh, takes these additional expenses into account. CalFresh’s gross income threshold is 200% 26 of the Federal Poverty Guidelines, higher than the standard gross income test for SNAP. California 27 also considers a family’s actual expenses (for child care, unusually high housing costs, and medical 28 expenses, among other things) and deducts them from the “gross income” to generate the family’s - 22 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 27 of 54 1 “net income,” a much more accurate measure of that family’s available cash to spend on food; if it 2 is less than 100% of the Poverty Guidelines, the family will be eligible for CalFresh. 3 95. The State of New York, where both ILRC and CLINIC support partner 4 organizations offering naturalization services, similarly offers means-tested benefits pegged to 5 higher income thresholds than the Federal Poverty Guidelines. Federal law generally limits 6 Medicaid benefits for adults to those households earning less than 138% of the Poverty Guidelines. 7 New York has created a supplemental health benefit, the Essential Plan, that offers benefits on a 8 sliding scale to families who are ineligible for Medicaid. Under this plan, a family of four earning 9 up to $48,500—close to 200% of the Poverty Guidelines, but below HUD’s “very low” income 10 limit for the New York City metro area—would qualify for benefits under the Essential Plan. This 11 reflects New York’s judgment that the Federal Poverty Guidelines are an inadequate measure of its 12 residents’ ability to afford basic health care in an exceptionally high-cost-of-living state. 13 96. For this reason, the Federal Poverty Guidelines, taken alone, are an inadequate and 14 outmoded measure of an individual’s ability to pay the naturalization fee. Preventing USCIS 15 adjudicators from considering receipt of means-tested benefits, and requiring them to look only at 16 the Federal Poverty Guidelines and evidence of acute financial hardship, blinds the agency to 17 significant differences in cost of living that the federal government itself considers and 18 accommodates in countless other settings. It is also inefficient; by latching itself to the Federal 19 Poverty Guidelines, USCIS is failing to take adequate account of individuals’ contextual 20 socioeconomic circumstances. 21 2. 22 23 24 97. Proving income is extremely burdensome. At the same time, it is much more burdensome for applicants to demonstrate income at or below 150% of the Federal Poverty Guidelines or a “financial hardship.” 98. Proving income level is very difficult for many fee waiver-eligible LPRs. Based on 25 Plaintiffs’ experience as providers of naturalization services, low-income residents are likely to 26 have difficulty proving their inability to pay to the satisfaction of USCIS. Many low-income 27 permanent residents engage in irregular or seasonal work, hold informal employment (such as 28 house cleaning or babysitting), or have multiple part-time jobs. These individuals have a difficult - 23 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 28 of 54 1 time demonstrating their income for the purposes of the fee waiver, and are often dissuaded from 2 applying for it due to the burdensome nature of such an application. 3 99. Individuals with seasonal employment, elderly adults who do not work and have not 4 filed recent tax returns, and domestic violence survivors—all people who are likely to need fee 5 waivers—are particularly likely to lack the paperwork to demonstrate their income history. 6 100. Language barriers also provide a serious obstacle to gathering and understanding 7 the requisite records from employers, banks, or the IRS. Many of Plaintiffs’ clients require 8 translators, and at least one Plaintiff, Self-Help, focuses its services on elderly LPRs who may be 9 exempt from the English-language naturalization requirements. 10 101. In addition, some individuals who receive a means-tested benefit, such as SSI 11 recipients, have disabilities that make administrative or logistical tasks difficult without significant 12 assistance. 13 102. The 2019 Rule also requires applicants who are unemployed to produce a letter of 14 termination from their previous employer if they are not receiving unemployment benefits. This 15 requirement is not realistic, particularly for individuals who are employed temporarily or 16 seasonally. In agriculture and other industries, where human resources personnel are not likely to 17 be present at the worksite, a former worker may have no way of reaching their previous employer 18 to obtain such a letter. 19 103. For the last decade, receipt of a means-tested benefit has been the most 20 straightforward way to prove eligibility for a fee waiver. A single letter from a state agency 21 confirming an individual’s receipt of a means-tested benefit has been sufficient to establish the need 22 for a fee waiver. Eliminating this option, as the 2019 Rule does, will substantially increase the 23 burden on applicants completing a fee waiver request by requiring them to re-prove their income 24 and supply tax records, if only to prove why tax returns were not filed or why or how a person has 25 no income. As a result, a great number of fee waiver-eligible LPRs will not be able to comply with 26 the new evidence requirements. 27 3. 28 104. Proving financial hardship is extremely burdensome. The “financial hardship” option for fee waiver eligibility is not an adequate - 24 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 29 of 54 1 substitute for the means-tested benefit process. In Plaintiffs’ experience, hardship-based fee 2 waivers are rarely granted. The instructions for the Revised Form I-912 state that a basic inability 3 to meet one’s expenses is not a sufficient basis for a hardship-based fee waiver; this ground for a 4 waiver is available only in “special circumstances,” such as “medical expenses of family members, 5 unemployment, eviction, victimization, [and] homelessness.” 6 912, Request for Fee Waiver, 8 (Oct. 24, 2019), https://www.uscis.gov/system/files_force/ 7 files/form/i-912instr.pdf?download=1. Proving such a hardship is an extremely burdensome 8 process. Applicants have to show evidence of their income, which, as explained above, is likely to 9 be difficult for low-income immigrants. In addition, the financial hardship section of the Revised 10 Form I-912 asks for proof of assets and an itemized list of the applicant’s average monthly expenses 11 and liabilities. 12 105. USCIS, Instructions for Form I- The 2019 Rule thus increases the evidentiary requirements for an applicant who will 13 now have to submit a hardship-based application: the number of documents the applicant must 14 submit to prove financial hardship is much higher than the single document needed to prove receipt 15 of a means-tested benefit. 16 106. Because the burden of filling out financial hardship-based fee waiver forms is so 17 great, Plaintiffs lack the resources and capacity to assist clients with these applications and rarely, 18 if ever, do so. 19 107. The 2019 Rule also requires members of a single household to submit separate fee 20 waiver requests when they are applying for immigration benefits at the same time, even though 21 their fee waiver eligibility is judged on a household-wide basis. This will force applicants to 22 repeatedly produce the same paperwork to the agency, and will increase the burden on USCIS to 23 process separate fee waiver requests for each person. 24 25 26 27 28 4. 108. Processing times for naturalization applications will increase. The removal of means-tested benefits as a basis for a fee waiver will ultimately increase the documentation required, and is likely to lead to longer review times for USCIS. 109. It is also unsurprising that processing backlogs for naturalization applications are longest in USCIS offices where Plaintiffs, who often assist low-income LPRs, are present. For - 25 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 30 of 54 1 example, during the first three months of 2019, the processing time for naturalization applications 2 filed in the Washington, D.C. area fluctuated, with projections ranging from nine months to as long 3 as 22.5 months. As of October 2019, the estimated processing times for the naturalization 4 application is 16 to 20 months in Seattle; 15 to 17 months in San Francisco; 12.5 to 14.5 months in 5 Los Angeles; and 8.5 to 15.5 months in Washington, D.C. As of October 2019, other areas with 6 lengthy processing times included Atlanta (10.5–23.5 months); New York City (13.5–25.5 7 months); Las Vegas (14.5–18 months); Phoenix (14–17 months); and Dallas, Minneapolis-Saint 8 Paul, Miami, and Houston, where processing times ranged from 11 to 25.5 months. 9 10 B. Requirement to Submit Tax Transcripts Instead of Tax Returns 110. The revised fee waiver form requires applicants to prove their income using tax 11 transcripts obtained from the IRS rather than by submitting copies of the tax returns they submitted 12 to the IRS. Although tax transcripts themselves are free, actually obtaining a tax transcript can be 13 cumbersome, particularly for taxpayers who lack financial resources. 14 111. A tax transcript is issued by the IRS and summarizes certain information from a 15 federal tax return, including Adjusted Gross Income. Tax transcripts are available for the most 16 current tax year after the IRS has processed the tax return. Individuals can also obtain tax 17 transcripts for the prior three years. 18 112. Using the IRS’s online tax transcript service requires (1) information from past tax 19 records, (2) an email address, (3) a personal account number for a credit card, mortgage, home 20 equity loan, home equity line of credit, or car loan, and (4) a mobile phone with the taxpayer’s 21 name on the account. 22 113. In Plaintiffs’ experience as long-time providers of naturalization services, it is 23 unusual for low-income LPRs to have a mortgage, home loan, car loan, or credit card. Many do 24 not have a billable cell phone service, relying instead on prepaid SIM cards, and many do not 25 regularly use email. 26 114. Under the new rules, if any one of those pieces of information is not available, a fee 27 waiver applicant will have to file a transcript request by mail and wait to receive a mailed response, 28 which typically takes one to two weeks. But if the applicant moved since filing their last tax return, - 26 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 31 of 54 1 they will first have to file a change of address form and wait four to six weeks for that to be 2 processed. Only then will they be able to file a transcript request, for a total processing time of up 3 to eight weeks. 4 5 6 115. Moreover, tax transcripts are generally unavailable between April 15 and June 15, while the IRS is processing the prior year’s tax return. 116. Finally, the IRS website is only available in five languages other than English, 7 imposing additional barriers for people who do not speak or read those languages well enough to 8 navigate complex administrative processes. While basic English is required for most non-elderly 9 permanent residents to naturalize, understanding the IRS website is likely to exceed the English 10 abilities of many qualified immigrants. (Indeed, Plaintiffs often provide in-language assistance 11 during naturalization workshops. See infra ¶¶ 175, 185. Seattle, through its New Citizen Program, 12 also provides citizenship instruction, tutoring, and interview preparation in multiple languages for 13 LPRs preparing to naturalize.) 14 117. Under the prior version of the form, applicants could prove their income by 15 providing copies of their own tax returns (with proof of filing), which are uniform documents that 16 most tax-filing individuals keep on hand. Tax returns include the same information as an IRS tax 17 transcript but do not require an additional burdensome administrative process, much less the 18 establishment of major lines of credit. 19 C. Requirement to Use Revised Form I-912 20 118. The Revised Form I-912 specifies that fee waiver applicants must use the form when 21 seeking a fee waiver. Ex. E. Previously, USCIS accepted “applicant-generated” fee waiver 22 requests as well as those submitted on Form I-912. 23 119. The regulations require only that applicants seeking a fee waiver submit “a written 24 request for permission to have their request processed without payment of a fee,” and include 25 “evidence to support the reasons” for an inability to pay. 8 C.F.R. § 103.7(c)(2). 26 27 28 120. USCIS has even acknowledged that “the use of a USCIS published fee-waiver request form is not mandated by regulation.” Ex. C at 2. 121. Accordingly, USCIS has historically reviewed written requests for fee waivers - 27 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 32 of 54 1 without regard to whether Form I-912 was used. For instance, applicants could write a letter 2 explaining why they could not afford the fee and attach evidence to support that request. In fact, 3 all fee waiver requests prior to 2010, when the Form I-912 was originally issued, were submitted 4 in this manner. 5 122. Eliminating the applicant-generated fee waiver request places an unnecessary 6 burden on applicants to locate, translate (if needed), complete, and submit Revised Form I-912, 7 even though a self-generated request can easily accomplish the same goal. 8 9 10 123. USCIS has successfully processed applicant-generated fee waiver requests for decades. USCIS has offered no evidence that processing those requests unduly burdens the agency. IV. PROMULGATION OF THE 2019 RULE 11 A. Defendants’ Notices Regarding the 2019 Rule 12 124. USCIS issued three public notices in advance of publishing the 2019 Rule. Those 13 notices were published in the Federal Register on September 28, 2018 (the “September 2018 14 Notice”), April 5, 2019 (the “April 2019 Notice”), and June 6, 2019 (the “June 2019 Notice”) 15 (collectively, “the Notices”). See 83 Fed. Reg. 49120; 84 Fed. Reg. 13687; ; 84 Fed. Reg. 26137. 16 Shortly after publishing the September 2018 Notice, USCIS also published a proposed new Form 17 I-912. 18 125. The September 2018 Notice and the April 2019 Notice stated that “[t]he proposed 19 revision would reduce the evidence required for [Form I–912] to only a person’s household income 20 and would no longer require proof of whether or not an individual receives a means-tested benefit.” 21 83 Fed. Reg. 49121; 84 Fed. Reg. 13687. Although the September 2018 Notice and the April 2019 22 Notice stated that evidence of a means-tested benefit would no longer be “required,” the true effect 23 is to no longer permit such evidence. 24 25 26 126. The Notices do not address the other changes to the fee waiver process and Form I- 912 that are detailed at Paragraphs 110 to 123 supra. 127. In the Notices, USCIS described its rationale for the proposed change to the 27 means-tested benefit eligibility criteria as follows: “USCIS has found that the various income 28 levels used in states to grant a means-tested benefit result in inconsistent income levels being used - 28 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 33 of 54 1 to determine eligibility for a fee waiver.” 83 Fed. Reg. 49120; 84 Fed. Reg. 13687; 84 Fed. Reg. 2 26139. USCIS provided no data to support this assertion, nor did it provide any explanation as to 3 why the use of means-tested benefits was incompatible with the standard, set forth in the regulation, 4 that fee waivers should be awarded based on an applicant’s “inability to pay.” 5 128. Public comments on the September 2018 Notice were open for 60 days, until 6 November 27, 2018. Individuals and organizations submitted 1,198 comments during this time. 7 Comments submitted by immigrant rights groups and legal services organizations—including 8 Plaintiffs CARECEN, the City of Seattle, CLINIC, ILRC, and OneAmerica—emphasized the 9 devastating effect the rule change would have. Overall, most of the comments opposed the rule. 10 11 12 129. In April 2019, USCIS published eight pages of responses to these 1,198 comments (the “First Response”), attached as Ex. G. 130. In its First Response, USCIS did not indicate that it would make any changes to its 13 proposed rule and Form I-912 in response to the comments it had received from numerous 14 individuals and organizations. 15 131. Instead of providing any evidence of the alleged inconsistencies, USCIS noted that 16 it is “primarily funded by application and petition fees,” and that the “cost associated with 17 applications and petitions that have been fee waived is shifted to other applications and petitions,” 18 meaning that “other applicants must cover the cost of fee-waived applications.” It then pointed to 19 the fee waiver approval rate of 86% for fiscal year 2017. Ex. G, Response to Comment 4. But the 20 agency failed to establish any connection between the percentage of applications approved and the 21 alleged “inconsistencies” in assessing applicants’ ability to pay. Id. 22 132. In its First Response, USCIS also claimed that the proposed changes would ease the 23 burden on fee-paying applicants, who cover the cost of fee-waived applications and petitions. 24 Specifically—and circularly—the agency said that applying “more consistent standards of income 25 and financial hardship for the purposes of determining inability to pay a fee,” would increase 26 “consistency in the shifting of the cost of fee waivers to those who pay fees.” Id. This was not 27 responsive to the objections raised by commenters, who emphasized the burden the rule change 28 places on applicants and organizations such as Plaintiffs. This response is also unrelated to the fee - 29 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 34 of 54 1 waiver regulation, which authorizes fees to be waived for applicants who can prove an “inability to 2 pay,” without regard to the impact such a waiver will have on fee-paying applicants. Nor did the 3 First Response suggest that the naturalization fee would be adjusted to reflect the presumably 4 reduced number of fee waivers that will be issued. 5 133. Around the same time that it issued its First Response, USCIS published the 6 near-identical April 2019 Notice in the Federal Register, initiating a second 30-day comment 7 period. 84 Fed. Reg. 13687. This time, USCIS solicited comments by email only, and did not 8 publish them online. The April 2019 Notice did not revise USCIS’s proposed rule changes. 9 134. The 30-day comment period for the April 2019 Notice ended on May 6, 2019. 10 Individuals and organizations submitted comments during this time, again outlining the devastating 11 impacts of the rule change. USCIS responded to comments received during this second 30-day 12 comment period (“Second Response”), attached as Ex. H, when it submitted the proposed changes 13 to the Office of Management and Budget (“OMB”). 14 135. The Second Response did not provide any additional data or context to support the 15 agency’s assertion that its decision to eliminate means-tested benefit verification letters as a basis 16 for a fee waiver was prompted by “inconsistencies” in the assessment of applicants’ ability to pay. 17 Ex. H at rows 9, 10, 15, 26. Nor did USCIS explain how the Federal Poverty Guidelines could 18 resolve alleged inconsistencies if they ignore the fact that “two people with the exact same income 19 who live in two different states [have] totally different costs of living.” Id at row 70. Further, 20 USCIS acknowledged that the new rule would “increase” the burden on applicants, but asserted 21 that the increase would not be “excessive.” Id. at row 5. USCIS also suggested, without providing 22 evidence, that the means-tested benefit option has resulted in fee waivers becoming “excessively 23 obtainable.” Id. at rows 8, 10. 24 136. A month later, USCIS published the June 2019 Notice in the Federal Register, 25 initiating a third 30-day comment period. 84 Fed. Reg. 26137. In the June 2019 Notice, USCIS 26 did not revise its proposed rule changes for the naturalization application fee waiver process in any 27 way. 28 137. In the June 2019 Notice, USCIS acknowledged that “as a result of this change there - 30 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 35 of 54 1 are some applicants who would be able to receive free adjudication now who will not be able to 2 after this policy change.” Id. at 26139. USCIS claimed, however, that “an applicant is unlikely to 3 have incurred costs or been harmed based on relying on USCIS continuing that policy.” Id. The 4 June 2019 Notice did not address any of the comments received in the previous comment period. 5 It did, however, offer a brand new justification: that it needed to “curtail[]” the growing use of fee 6 waivers in order “to reduce annual forgone revenue from fee waivers.” Id. 7 138. The 30-day comment period for the June 2019 Notice ended on July 5, 2019. 8 Individuals and organizations once again submitted comments outlining the devastating impacts of 9 the rule change and responding to USCIS’s statements in the June 2019 Notice. USCIS responded 10 to comments received during this third 30-day comment period (“Third Response”) when it 11 submitted the proposed changes to OMB, attached as Ex. I. USCIS’s Third Response was largely 12 duplicative of its Second Response, and reiterated, without providing additional information, that 13 the 2019 Rule was meant to address alleged “inconsistencies” created by the means-tested benefit 14 criteria. See, e.g., Ex. I at rows 8, 9, 14. The Third Response did not address service providers’ 15 detailed comments regarding the impact on their programs. 16 17 18 139. released a final copy of the form and associated documents on October 25, 2019. B. The Administrative Procedure Act’s Notice-and-Comment Rulemaking Procedures 140. The APA requires an agency to follow a specific set of procedures before 19 20 OMB approved the Revised Form I-912 on October 24, 2019, and USCIS publicly 21 implementing a new or revised rule. These procedures include an initial regulatory flexibility 22 analysis, a proposed rule, a comment period, and a final rule. 23 141. First, notice-and-comment procedures require that “[g]eneral notice of proposed 24 rulemaking shall be published in the Federal Register.” 5 U.S.C. § 553(b). The initial notice must 25 include “an initial regulatory flexibility analysis” outlining the impact of the rule. Id. at § 603(a). 26 142. An initial regulatory flexibility analysis must include, among other things: (1) a 27 description of the reasons for the action under consideration; (2) a succinct statement of the 28 objectives of, and legal basis for, the proposed rule; and (3) a description of any significant - 31 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 36 of 54 1 alternatives to the proposed rule that would accomplish the same objectives and minimize increases 2 in cost to small entities impacted by the rule. See 5 U.S.C. § 603(b)–(c). 3 143. Next, the agency must institute a comment period that “give[s] interested persons 4 an opportunity to participate in the rule making through submission of written data, views, or 5 arguments.” Id. at § 553(c). At the end of the comment period, the agency “must consider and 6 respond to significant comments received during the period for public comment,” Perez v. Mortg. 7 Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015), and publish a final rule that includes a “concise 8 general statement of the[ rule’s] basis and purpose.” 5 U.S.C. § 553(c). 9 C. Defendants Did Not Comply with the APA’s Notice-and-Comment Rulemaking Procedures 144. Defendants did not undertake the required APA notice-and-comment rulemaking 10 11 12 13 procedures in connection with the 2019 Rule. 145. First, Defendants failed to comply with the APA because they did not prepare or 14 provide an initial regulatory flexibility analysis for any of the Notices. This type of analysis is 15 required by APA notice-and-comment rulemaking procedures and must be included in the Federal 16 Register along with the notice of the proposed change. 17 146. An initial regulatory flexibility analysis typically informs the public’s comments 18 and consideration of the rule. It does this by offering “a description of the reasons why . . . [the 19 rule] is being considered,” stating the “objectives of, and legal basis for, the proposed rule,” and 20 describing “any significant alternatives to the proposed rule which accomplish the stated objectives 21 of applicable statutes and which minimize any significant economic impact of the proposed rule.” 22 5 U.S.C. § 603(b)–(c). The absence of such an analysis restricted the public’s opportunity to fully 23 consider and comment on the impact of eliminating means-tested benefits as eligibility criteria for 24 fee waiver requests. 25 147. And while USCIS explicitly solicited feedback on “the validity of the methodology 26 and assumptions used” for its estimates “of the burden of the proposed collection of information” 27 (as required by the PRA), it published neither the methodology nor the assumptions. 83 Fed. Reg. 28 49121; 84 Fed. Reg. 13687. - 32 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 37 of 54 1 148. Second, Defendants failed to comply with the APA because, despite the fact that 2 more than one thousand comments were submitted in the first comment period, Defendants’ 3 response to those comments was notably deficient. In response to Plaintiffs’ and others’ concerns 4 about the removal of means-tested benefits as the basis for a fee waiver, Defendants simply repeated 5 their stance that “various income levels used in states to grant a means-tested benefit result in 6 inconsistent income levels being used to determine eligibility for a fee waiver,” and that the costs 7 associated with the fee waivers are then shifted to fee-paying applicants. Ex. G, Response to 8 Comment 4. 9 149. Defendants likewise failed to substantively respond to comments highlighting the 10 specific difficulties of obtaining tax transcripts for low-income individuals who cannot use the 11 IRS’s online tool, and they failed to address comments challenging the requirement to use Revised 12 Form I-912 to request a fee waiver. 13 150. Defendants also failed to substantively address how LPRs with limited English 14 proficiency would overcome barriers to obtaining a fee waiver once means-tested benefits were 15 removed as a basis for qualification. Obtaining appropriate documents, including tax transcripts, 16 to establish one’s income or demonstrate financial hardship, requires understanding complex 17 financial terms. 18 151. Third, despite the overwhelming opposition to the 2019 Rule expressed through 19 comments, Defendants made minimal revisions to their proposal, leaving unaddressed the burdens 20 imposed by (1) removing eligibility based on means-tested benefits, (2) requiring tax transcripts, 21 or (3) requiring the use of Revised Form I-912 for all fee waiver requests. 22 D. Defendants Had to Comply with the APA’s Notice-and-Comment Rulemaking Procedures 152. Instead of complying with the APA, Defendants took the position that the 2019 Rule 23 24 25 was not subject to the APA’s notice-and-comment rulemaking procedures at all.3 153. 26 Defendants issued the Notices using the more informal, and less rigorous, 27 28 3 See, e.g., Ex. G, Response to Comment 3; Ex. H at rows 32, 42, 44; Ex. I at rows 23, 36, 38. - 33 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 38 of 54 1 Paperwork Reduction Act procedures. As USCIS admits, “PRA notices do not rise to the level of 2 notice and comment rulemaking.” Id. 3 154. But the PRA was designed to “minimize the paperwork burden for individuals, small 4 businesses, educational and nonprofit institutions, Federal contractors, State, local and tribal 5 governments, and other persons resulting from the collection of information by or for the Federal 6 Government.” 44 U.S.C. § 3501(1). As discussed above (supra ¶¶ 102–105, 107), the 2019 Rule 7 does not minimize the paperwork burden for individuals seeking naturalization; to the contrary, it 8 creates more paperwork for applicants by requiring them to go through the burdensome process of 9 obtaining tax transcripts and gathering income-verification documentation they would otherwise 10 11 never have to gather. 155. By terming the 2019 Rule a mere “information collection activity” and invoking the 12 PRA procedures, USCIS sought to avoid the more rigorous requirements of APA 13 notice-and-comment rulemaking. 14 “information collection activity”; it substantively changes the standards by which the agency 15 determines eligibility for a fee waiver. 16 156. But the 2019 Rule is much more than a revision to an All rules must go through APA notice-and-comment rulemaking, absent those that 17 fit into one of three narrow exceptions: for “interpretative rules, general statements of policy, 18 or rules of agency organization, procedure, or practice.” 8 U.S.C. § 553(b)(A). Likewise, rules that 19 would create an “unfair surprise” must go through APA rulemaking, whether or not they fit into 20 one of the three exceptions. Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 156 (2012) 21 1. 22 23 24 25 26 27 28 157. The 2019 Rule effects a substantive rule change, and thus required APA rulemaking. In contrast to an interpretative rule, a “substantive” rule affects “individual rights and obligations,” and must go through APA notice-and-comment rulemaking. See Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979). This includes regulations that are “binding on the individuals to whom they apply in the same way statutes are” or that “are prescriptive, forward-looking, and of general applicability.” Save Our Valley v. Sound Transit, 335 F.3d 932, 954–55 (9th Cir. 2003). 158. The 2019 Rule effects substantive changes regarding fee waiver applications that - 34 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 39 of 54 1 affect individual rights and obligations. In fact, its primary impact is to the rights and obligations 2 of individuals: it alters their right to submit applications for fee waivers and, in turn, to have their 3 fees waived. 4 159. The 2019 Rule is generally applicable, forward looking, and prescriptive. It binds 5 all future permanent residents who will request a fee waiver with their naturalization application, 6 proscribing them from using receipt of a means-tested benefit as part of their request. 7 160. The 2019 Rule does not reflect mere interpretive guidance; it does not engage in 8 interpretation of the underlying statute. Rather, it changed and restricted the substantive rules that 9 already existed regarding naturalization application fee waivers prior to the 2019 Rule. 10 161. 8 C.F.R. § 103.7(c)(2)—the DHS regulation that permits USCIS to waive 11 naturalization application fees upon an applicant’s “written request” that “state[s] the [applicant]’s 12 belief that he or she is entitled to or deserving of the benefit requested, the reasons for his or her 13 inability to pay, and evidence to support the reasons indicated”—was promulgated through notice- 14 and-comment rulemaking procedures under the APA and provides each individual applicant with 15 the discretion to choose how to demonstrate an inability to pay and what evidence to present. 16 USCIS has acknowledged that “the use of a USCIS-published fee-waiver request form is not 17 mandated by regulation.” Ex. C at 2. Form I-912 was provided as one way in which an applicant 18 could prove an inability to pay the application fee, but the applicant was still empowered to choose 19 the best and most effective way to set out the request. 20 162. The 2019 Rule inverts 8 C.F.R. § 103.7(c)(2), removing valuable options that were 21 previously available to applicants in their presentation of a request and supporting evidence for a 22 fee waiver application. Now, under the 2019 Rule, USCIS is the sole arbiter of how best an 23 individual’s income may be proven. 24 163. The 2019 Rule has turned Form I-912 from optional guidance into a binding 25 requirement; it has the force of law. It has changed the heart of the legislative rule, 8 C.F.R. 26 § 103.7(c)(2), and is therefore a substantive, not interpretative, rule. 27 28 2. The 2019 Rule was a not a general statement of policy or rule of agency organization, procedure, or practice, and thus required APA - 35 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 40 of 54 rulemaking. 1 164. 2 3 procedure, or practice. APA rulemaking was thus required. 165. 4 5 6 7 8 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “The critical factor to determine whether a directive announcing a new policy constitutes a rule or a general statement of policy is the extent to which the challenged [directive] leaves the agency, or its implementing official, free to exercise discretion to follow, or not to follow, the [announced] policy in an individual case.” Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987) (alterations in original) (quotation marks omitted). 166. 9 10 Nor is the 2019 Rule a general statement of policy, or rule of agency organization, The 2019 Rule removes discretion from USCIS officers’ evaluations of fee waiver requests. USCIS has explained that “USCIS is abrogating the means[-]tested benefit prong for fee waiver eligibility” (Ex. G, Response to Comment 3), and that evidence of means-tested benefits will no longer be “acceptable” (83 Fed. Reg. 49121; 84 Fed. Reg. 13687). But there is nothing discretionary about USCIS’s statement that “USCIS is abrogating the means[-]tested benefit prong for fee waiver eligibility” (Ex. G, Response to Comment 3), or that “the revised form will not permit a fee waiver based on receipt of a means- tested [sic] benefit” (83 Fed. Reg. 49121) (emphasis added). 167. Even if officers remained free to exercise personal discretion—which by all accounts they are not—they would only be free, as USCIS says, to “evaluate all . . . evidence supplied in support of a fee waiver request.” 83 Fed. Reg. 49121 (emphasis added); 84 Fed. Reg. 13688 (emphasis added). By the terms of the Revised Form I-912 itself, evidence of means-tested benefits can no longer be supplied in support of a fee waiver request, so there is literally no opportunity for officers to exercise discretion over such evidence. Similarly, certain evidence must now be submitted for consideration (and thus evaluated), such as a tax transcript. 168. The 2019 Rule is not a mere procedural or internal housekeeping matter: it puts a lock on the front door. It is a limitation on what information applicants can send USCIS, not a procedure for how USCIS will handle that information when it arrives. The change makes it significantly harder for some individuals to apply for a fee waiver; for others, it eviscerates their ability to do so altogether. - 36 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 41 of 54 1 3. 2 169. The 2019 Rule was an unfair surprise. The 2019 Rule was also an unfair surprise. The change followed nearly a decade in 3 which proof of receipt of a means-tested benefit was sufficient to waive application fees, and in 4 which individuals understood that how to prove their need was up to them. Although USCIS has 5 claimed that the change is not an unfair surprise, because “fee waivers are at the discretion of 6 USCIS” (Ex. G, Response to Comment 2), this is unconvincing. Plaintiffs, along with other service 7 providers and city governments, relied on this policy for nearly a decade in designing their 8 naturalization programs, and USCIS implemented the 2010 policy smoothly and with excellent 9 results. 10 11 V. PLAINTIFFS ARE HARMED BY DEFENDANTS’ 2019 RULE 170. Plaintiffs all provide and/or sponsor legal programs to assist low-income immigrants 12 who are eligible to naturalize and would not otherwise be able to afford an attorney. For years, 13 Plaintiffs have designed and administered programs to assist applicants to complete fee waiver 14 paperwork along with their naturalization applications—complex tasks for which legal assistance 15 is often required. The 2019 Rule has caused and will continue to cause multiple harms to Plaintiffs. 16 In particular, the 2019 Rule will significantly impair each Plaintiff’s ability to achieve its mission 17 and require diversion of resources, and, in the case of Seattle, impair economic development and 18 tax revenue by reducing the overall level of naturalization in the city. 19 A. Naturalization Workshops 20 171. The majority of naturalization applications for which Plaintiffs are responsible are 21 generated through naturalization workshops. These workshops are typically highly streamlined, 22 one-day events that serve as a one-stop shop for completing and submitting naturalization 23 applications for eligible LPRs. Participants are asked to bring all documentation required to 24 complete their naturalization application, including documentation—typically a letter proving 25 receipt of a means-tested benefit—supporting a fee waiver, if one is needed. Workshops are staffed 26 by a combination of staff (including attorneys), Department of Justice-accredited representatives, 27 legal assistants, interpreters, and volunteers. 28 172. Plaintiffs ILRC and CLINIC lead large networks of naturalization service providers. - 37 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 42 of 54 1 They are responsible for training workshop staff and volunteers, creating and promulgating 2 workshop best practices, providing materials and research necessary to effectively advise clients at 3 workshops, and, in some cases, funding workshops. 4 5 6 173. Plaintiffs Self-Help, OneAmerica, CARECEN, and Seattle all host or assist in hosting naturalization workshops. 174. Workshops generate large numbers of naturalization applications. For example, 7 Plaintiff ILRC, through the New Americans Campaign, has been directly responsible for about 8 30,000 naturalization applications per year for each of the last few years. 60% of these applications 9 were completed through a workshop. CARECEN assists with about 1,000 naturalization 10 applications a year, the majority of which come through bimonthly workshops. Seattle’s New 11 Citizens Campaign has served more than 1,900 Seattle LPRs through workshops, about 30 percent 12 of whom needed a fee waiver. 13 175. Through naturalization workshops, Plaintiffs serve anywhere from a few to as many 14 as 1,000 eligible LPRs in one day. Many of them are elderly, have limited English proficiency, or 15 live in rural areas with limited access to legal services. 16 176. Despite these barriers, naturalization workshops are incredibly successful at 17 generating completed naturalization applications. At the end of most workshops, for instance, 18 Plaintiff Self-Help has completed, ready-to-mail applications for about 60 percent of attendees, and 19 another 15 percent of attendees will be able to complete an application with minimal follow-up. 20 177. A significant percentage of the applications submitted through Plaintiffs’ 21 naturalization workshops include a fee waiver. 22 applications completed at naturalization workshops run or sponsored by Plaintiffs have been based 23 on receipt of a means-tested benefit. 24 178. Of those, the vast majority of fee waiver Approximately 30 percent of Plaintiff Seattle’s workshop attendees qualify for a fee 25 waiver, and the vast majority of those residents establish their eligibility using a means-tested 26 benefit. About 60 to 70 percent of the applications completed by CARECEN include a fee waiver, 27 the majority of which rely on a means-tested benefit. 90 to 95 percent of the fee waiver applications 28 completed by Self-Help are based on receipt of a means-tested benefit; half of OneAmerica’s fee - 38 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 43 of 54 1 waiver clients rely on the same. And over 90 percent of the fee waiver applications completed by 2 ILRC’s local partners rely on a means-tested benefit. 3 179. In Plaintiffs’ experience, fee waiver applications based on receipt of means-tested 4 benefits are the least subjective, most straightforward, and most frequently granted means of 5 proving one’s qualification for a waiver. In a workshop setting, means-tested benefit-based fee 6 waiver applications take just minutes to complete. This is especially true at workshops run by 7 Self-Help, where many clients arrive with means-tested benefit verification letters mailed to them 8 by the City of San Francisco. 9 10 B. Effective Naturalization Workshops are Not Possible with the 2019 Rule 180. Naturalization workshop participants who need a fee waiver but cannot use a 11 means-tested benefit verification letter to prove eligibility are generally unable to complete their 12 applications at a naturalization workshop, because the other methods for proving eligibility require 13 working closely with an advocate to ensure that sufficient evidence has been collected and properly 14 compiled. Most of the Plaintiffs do not offer help with income- or hardship-based fee waivers at 15 their workshops at all. 16 181. While some Plaintiffs are able to refer these clients to one-on-one services, many do 17 not have capacity to provide the detailed follow-up that these clients require. Plaintiff OneAmerica 18 does not take on hardship-based fee waiver cases even on a one-on-one basis because of the 19 significant time and resource burden of those cases. And all Plaintiffs—at a threat to both their 20 missions, and their abilities to meet funding-required targets—will inevitably see a reduction in the 21 number of individuals they are able to assist in naturalizing if the 2019 Rule is permitted to go into 22 effect. 23 182. Moreover, Plaintiffs’ hundreds (and collectively, thousands) of workshop 24 volunteers are not sufficiently trained to assist participants in complying with complex evidentiary 25 requirements for income- or hardship-based fee waiver applications. 26 183. The 2019 Rule makes the fee waiver application process more difficult, and 27 substantially increases the burden and cost to individual naturalization applicants and naturalization 28 service providers, including Plaintiffs. The new requirements make naturalization workshops - 39 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 44 of 54 1 2 exceedingly difficult to administer—and for some Plaintiffs, effectively impossible. 184. For example, if clients cannot use a simple and easily accessible means-tested 3 benefit verification letter to prove eligibility for a waiver, additional time will be spent explaining 4 the required documentation, helping the client gather that documentation, carefully checking all 5 calculations, determining whether there are additional ways to explain the client’s income, and 6 writing a detailed cover letter to clearly explain the basis of the client’s eligibility for a fee waiver. 7 This process has to be replicated for each adult family member contributing to an applicant’s 8 household, where they exist—not an uncommon living situation for low-income permanent 9 residents, particularly the elderly. These steps cannot be accomplished in a workshop setting. 10 185. The difficulty of completing these additional steps is further exacerbated when 11 assistance is needed in a language other than English, which is the case for many applicants. 12 Thirty-four percent of OneAmerica’s clients require interpretation, for example. Interpretation is 13 especially important in this context, because there is no appeal from the denial of a fee waiver. 14 186. The tax transcript requirement alone will cause a significant drain on Plaintiffs’ 15 resources. In order to continue serving clients who need fee waivers, Plaintiffs will have to directly 16 assist clients with obtaining their tax transcripts during naturalization workshops, or train others to 17 do so. To request a tax transcript online, clients need to gather certain financial information, open 18 an email account, and compile other documentation. Many of Plaintiffs’ clients do not have a credit 19 card, car loan, mortgage, home equity loan, or line of credit they could use to verify their identity; 20 some do not even have access to personal checks. Many of Plaintiffs’ clients use pay-as-you-go 21 phones and do not have cell phone plans in their own name. In fact, many clients lack all of the 22 required financial products they must have in order to make an online request. Assisting with these 23 things—some combination of which is required to request tax transcripts—is an onerous, and 24 sometimes impossible, task for Plaintiffs. 25 26 27 28 187. There is no effective way to navigate requesting a tax transcript in a one-day workshop setting. 188. As a consequence of the increased amount of time and effort required to complete a single fee waiver application, as well as the increased drain on Plaintiffs’ resources as a result of - 40 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 45 of 54 1 the 2019 Rule, the feasibility of Plaintiffs’ naturalization application workshops will evaporate, and 2 the number of naturalization applications Plaintiffs are able to complete will drastically decrease. 3 Plaintiffs will be forced to divert extensive staff time and resources to creating new educational and 4 training materials; re-training staff, volunteers, and immigrant communities about the new changes; 5 translating materials into other languages; and, most notably, attempting to design a new service 6 model to accommodate more naturalization applications that will undoubtedly be longer, more 7 complex, and less uniform. 8 C. The 2019 Rule Will Make it Impossible for Plaintiffs to Employ Naturalization Workshops, Draining Their Resources 189. The 2019 Rule’s effect on the naturalization workshop model has myriad negative 9 10 11 effects on Plaintiffs, all of which depend on workshops as their core service model. 1. 12 13 190. The 2019 Rule will fundamentally undermine Plaintiffs’ mission. First, Plaintiffs are harmed because the number of clients they can serve will 14 plummet under the 2019 Rule. This will fundamentally undermine, or outright defeat, Plaintiffs’ 15 mission of providing access to legal services for people who cannot afford attorneys to guide them 16 through the complex and legally fraught process of naturalization. 17 191. The changes to the fee waiver form significantly increase the time and resources that 18 are needed to complete a single naturalization application with a fee waiver. It takes workshop 19 service providers just minutes—and certainly under an hour—to prepare a fee waiver application 20 based on a client’s receipt of public benefits. In contrast, fee waiver applications based on income 21 or hardship usually take upwards of two hours to complete, and many take much longer, particularly 22 if USCIS rejects an initial request which must then be started anew and resubmitted. 23 192. The difference is substantial as a practical matter. Last year Plaintiff Seattle’s NCP 24 community partners spent approximately 200 to 300 hours assisting LPRs in filing 549 25 public-benefits-based Form I-912 applications. The constraints imposed by the 2019 Rule would 26 have required an additional 137 to 412 staff hours for the same number of applications—and likely 27 a lower rate of success. 28 193. Moreover, the more appointments it takes to complete a service, the less likely it is - 41 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 46 of 54 1 that the client will make it through the process. Income- and hardship-based fee waiver applications 2 have always required more time and resources from Plaintiffs. Under the 2019 Rule, Plaintiffs that 3 provide direct services will have to help most or all clients who need a fee waiver through 4 one-on-one services that they expect will require more than one appointment and the expense of 5 additional staffing. This will further reduce the number of completed applications in a given time 6 period and means that Plaintiffs are investing time in applications that are never ultimately filed. 7 194. No (or greatly reduced) naturalization workshops, and more time per client, mean 8 fewer clients served overall. For example, Self-Help expects to be able to assist between 70 and 9 80 percent fewer clients under the new rules. CARECEN and OneAmerica expect that the number 10 of clients served in its naturalization programs will drop by as much as a third under the 2019 Rule. 11 Because so many rely on service-provider assistance to complete their applications, including 12 waivers, Plaintiffs expect the change to lead to fewer clients applying for naturalization at all.4 13 2. 14 195. The 2019 Rule jeopardizes Plaintiffs’ funding. Second, Plaintiffs ILRC, CLINIC, OneAmerica, Self-Help, and CARECEN are 15 harmed because the 2019 Rule will immediately jeopardize their funding. Each of these Plaintiffs 16 receives funding that is tied directly to the number of naturalization applications they submit; when 17 that number goes down as a result of the 2019 Rule, they are likely to lose that funding. 18 196. For instance, Plaintiff ILRC’s naturalization program funding is contingent on ILRC 19 increasing the total number of naturalization applications generated through its NAC program every 20 year. Numerical goals are embedded in ILRC’s agreements with some of its NAC funders. These 21 requirements cannot be met without the use of naturalization workshops run by ILRC’s local and 22 national partners and the means-tested benefit fee waiver process. 23 197. Similarly, Plaintiff Self-Help is the lead agency for SF Pathways to Citizenship, a 24 naturalization program funded entirely by the City of San Francisco. Self-Help’s contract with San 25 Francisco requires it to complete 1,400 naturalization applications every year, including at least 26 4 27 28 This is confirmed by recent research on the impact of the introduction of the I-912 and associated policy changes in 2010, which likely increased the number of naturalization applications filed each year by about 10%. See Lifting Barriers to Citizenship, supra n.Error! Bookmark not defined.. - 42 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 47 of 54 1 500 that include fee waiver applications. Self-Help is also contractually required to hold at least 2 five large naturalization workshops every year. Without naturalization workshops, Self-Help will 3 not be able to meet San Francisco’s requirements; without that funding, Self-Help’s entire 4 naturalization program may be shut down, frustrating its mission. 5 198. CLINIC, OneAmerica, and CARECEN also each receive funding contingent on 6 their ability to provide a certain volume of naturalization services; if they cannot meet that volume, 7 they risk losing funding. Additionally, due to the increased burden on applicants under the 2019 8 Rule, Plaintiffs will have to divert resources by adjusting staffing or providing fewer services to 9 their client populations—especially in rural or otherwise underserved areas—frustrating their 10 mission to increase naturalization. 11 3. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 199. The 2019 Rule will force Plaintiffs to expend significant resources reorganizing and retraining. Third, Plaintiffs are harmed because they will be forced to spend valuable staff time and organizational resources re-tooling, editing, and updating materials; creating new materials and resources; re-training hundreds of service providers and thousands of volunteers on the new rules and how to meet them; and responding to an anticipated significant increase in requests for legal advice and assistance. Plaintiffs will suffer a massive reallocation of resources, in the immediate term, as a result of the 2019 Rule. None of it would be necessary absent the 2019 Rule. It is an extreme burden on the time, resources, and capacity of all Plaintiffs, all of which would otherwise be devoted to fulfilling their missions through direct client services, programming, teaching, training and technical assistance, and research. D. The 2019 Rule Additionally Harms Plaintiff Seattle Because it Creates a Barrier to Naturalization for Low-Income Seattle Residents 200. In addition to the harms to naturalization workshops described above, Seattle will be directly harmed by the reduction in the overall naturalization rate that will follow the 2019 Rule. 201. Seattle benefits directly from the economic gains its residents experience after naturalization. According to data provided to the city by Plaintiff OneAmerica, if even 94 Washington State residents were to fail to naturalize as a result of the 2019 Rule, the state would 28 - 43 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 48 of 54 1 lose more than $1 million in future spending and revenue. Naturalized citizens experience income 2 growth and a higher employment rate than naturalization-eligible LPRs, and Seattle obtains 3 concrete benefits from these gains. As individuals earn more and spend more on goods and 4 services, Seattle’s GDP increases, and that spending propels economic growth. Seattle reaps the 5 benefits through greater sales-tax revenue, which it invests in government services and 6 infrastructure. 7 202. By making it harder to obtain a fee waiver, the 2019 Rule will deter, and in some 8 cases prevent, low-income Seattle residents from naturalizing—even when they are otherwise 9 eligible and aware of the fee waiver program. 10 11 203. Thus, the 2019 Rule denies Seattle the cascading economic benefits from naturalization that accrue to communities where naturalized citizens live, work, and spend. 12 CAUSES OF ACTION 13 FIRST CAUSE OF ACTION 14 (Defendants Failed to Comply with Procedures Required by Law) 15 204. Plaintiffs repeat and incorporate by reference the preceding allegations. 16 205. USCIS is subject to the APA. See 5 U.S.C. § 703. 17 206. The APA was “adopted to provide, inter alia, that administrative policies affecting 18 individual rights and obligations be promulgated pursuant to certain stated procedures so as to avoid 19 the inherently arbitrary nature of unpublished ad hoc determinations.” Morton v. Ruiz, 415 U.S. 20 199, 232 (1974). Indeed, 21 [The] agency power to make rules that affect substantial individual rights and obligations carries with it the responsibility not only to remain consistent with the governing legislation, but also to employ procedures that conform to the law. No matter how rational . . . a particular decision might be, the determination of eligibility cannot be made on an ad hoc basis by the dispenser of the funds. 22 23 24 25 Id. All rules that are “substantive” and affect “individual rights and obligations”—that is, 26 regulations that are “binding on the individuals to whom they apply in the same way statutes are” 27 or that “are prescriptive, forward-looking, and of general applicability,” Save Our Valley v. Sound 28 - 44 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 49 of 54 1 Transit, 335 F.3d 932, 954–55 (9th Cir. 2003)—must go through APA notice-and-comment 2 rulemaking. See Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979). 3 207. Notice-and-comment rulemaking procedures under the APA require (1) that 4 “[g]eneral notice of proposed rulemaking shall be published in the Federal Register,” 5 U.S.C. 5 § 553(b); (2) that “the agency . . . give interested persons an opportunity to participate in the rule 6 making through submission of written data, views, or arguments,” id. at § 553(c); (3) that the 7 agency “consider and respond to significant comments received during the period for public 8 comment,” Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015); and, (4) that, pursuant to 9 the Regulatory Flexibility Act, the agency include within its initial notice in the Federal Register 10 11 “an initial regulatory flexibility analysis” outlining the impact of the rule. 5 U.S.C. § 603(a). 208. Following the submission of comments, the agency must then respond to those 12 comments. “[I]nextricably intertwined with . . . 5 U.S.C. § 553(c) is the agency’s need to respond, 13 in a reasoned manner, to any comments received by the agency that raise significant issues with 14 respect to a proposed rule.” Mid Continent Nail Corp. v. United States, 846 F.3d 1364, 1379 n.11 15 (Fed. Cir. 2017). “[C]onsideration of comments as a matter of grace is not enough. It must be 16 made with a mind that is open to persuasion.” Advocates for Highway & Auto Safety v. Fed. 17 Highway Admin., 28 F.3d 1288, 1292 (D.C. Cir. 1994) (citation and alteration omitted). 18 209. The 2019 Rule was substantive and affected individual rights and obligations. 19 210. Defendants admit that “PRA notices do not rise to the level of notice and comment 20 21 22 rulemaking.” Ex. G, Response to Comment 3. 211. Defendants did not undertake APA-compliant notice-and-comment rulemaking prior to issuing the 2019 Rule. 23 212. Defendants prepared no initial regulatory flexibility analysis. 24 213. Accordingly, the 2019 Rule was issued “without observance of procedure required 25 by law” and is invalid under 5 U.S.C. § 706(2)(D). 26 27 28 - 45 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 50 of 54 SECOND CAUSE OF ACTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (The 2019 Rule is Substantively Arbitrary and Capricious and Otherwise Not in Accordance with the Law in Violation of the Administrative Procedure Act) 214. Plaintiffs repeat and incorporate by reference the preceding allegations of this Complaint. 215. The 2019 Rule is a final agency action subject to judicial review because it “marks the consummation of the agency’s decision-making process” and is “one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154 (1997). 216. An agency action is arbitrary and capricious where an agency failed to “give adequate reasons for its decisions,” “explain the evidence which is available,” “examine the relevant data,” or “offer a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 52 (1983); Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). 217. The 2019 Rule is arbitrary and capricious and violates the APA for several reasons. 218. Defendants have failed to “cogently explain why [they have] exercised [their] discretion in a given manner.” State Farm, 463 U.S. 29 at 48–49. Specifically, the purported rationale for the 2019 Rule is not supported by any evidence. 219. Defendants assert, as a basis for the 2019 Rule, that permitting fee waivers based on the receipt of a means-tested benefit leads to inconsistent results because of “the various income levels used by states to grant a means-tested benefit.” But Defendants provided no documentation, data, or analysis to support this assertion. 220. Defendants failed to provide any data to indicate that there are applicants who receive means-tested benefits who are able to pay the naturalization application fee. 221. Defendants failed to take into account factors such as cost of living that could inform differing qualifying income levels for means-tested benefits, as well as actual ability to pay. 222. Defendants did not explain why the revised standard—to require identical income levels for fee waiver eligibility—is a fair or adequate measure of an applicant’s “inability to pay.” 28 - 46 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 51 of 54 1 223. In fact, the pretextual goal of eliminating inconsistency will actually have the 2 opposite effect. Requiring proof of income below 150 percent of the Federal Poverty Guidelines, 3 as opposed to allowing applicants to demonstrate receipt of a means-tested benefit, creates 4 inconsistency given the variable cost of living across the country. 5 224. Defendants assert that the proposed changes will ease the burden on fee-paying 6 applicants, who are responsible for the cost of fee-waived applications. Defendants claim that the 7 use of consistent standards to determine fee waiver eligibility will “increase the consistency in the 8 shifting of the cost of fee waivers to those who pay fees.” Ex. G, Response to Comment 4. But 9 Defendants have provided no data or evidence to support this assertion, nor did they take into 10 consideration the increased burden that will be placed on other applicants, legal-service providers, 11 city and regional governments, and even the agency itself. Moreover, this justification is untethered 12 to the regulation under which it was promulgated, which provides that the standard for fee waivers 13 is the applicant’s “inability to pay.” Finally, the question of how to allocate fees between different 14 categories of applicants is properly considered as part of the biannual assessment of fees and fee 15 study, not as part of the revision of a single form. 16 225. As such, Defendants failed to establish a nexus between the alleged problem— 17 inconsistencies in the use of means-tested benefits to prove fee waiver eligibility—and the 2019 18 Rule. 19 226. Defendants’ stated rationale is an unsubstantiated and pretextual justification that 20 conceals the agency’s true purpose, which is to limit access to naturalization and thereby deprive 21 those eligible for naturalization of political rights, including the right to vote. 22 227. The proposed revisions also require applicants to procure new documents, including 23 federal tax transcripts, to prove income. Defendants have failed to provide a rationale for the 24 rejection of tax returns as proof of income. 25 228. Defendants provided no explanation for why a tax transcript is preferred over a tax 26 return, nor did they identify any change in facts or circumstances that justify this new requirement 27 or the significant burden it places on applicants and service providers. 28 229. The 2019 Rule is not in accordance with the law because its bar on - 47 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 52 of 54 1 applicant-generated fee waiver requests is contrary to (i) the plain language of 8 C.F.R. § 2 103.7(c)(2) and (ii) the agency’s intent with respect to 8 C.F.R. § 103.7(c)(2). 3 230. 8 C.F.R. § 103.7(c)(2) is unambiguous. It plainly states: “a person requesting an 4 immigration benefit [through a fee waiver] must submit a written request.” The regulation does 5 not contemplate, let alone require, that applicants seeking a fee waiver do so through the use of a 6 government-generated form. 7 8 9 231. Defendants’ 2019 Rule contradicts the plain language of 8 C.F.R. § 103.7(c)(2), which simply requires that fee waiver requests be submitted in writing. 232. Defendants’ bar on applicant-generated fee waiver requests contradicts the agency’s 10 prior stated intent: In its 2011 Policy Memorandum, Defendants determined that since “use of a 11 USCIS-published fee-waiver request form is not mandated by regulation, USCIS will continue to 12 consider applicant-generated fee-waiver requests (i.e., those not submitted on Form I-912 that 13 comply with 8 C.F.R. § 103.7(c)).” 14 233. Accordingly, the revisions to the Form I-912 by the 2019 Rule are “arbitrary, 15 capricious, an abuse of discretion, or otherwise not in accordance with law” and are invalid under 16 5 U.S.C. § 706(2)(A). 17 REQUEST FOR RELIEF 18 For the foregoing reasons, Plaintiffs request that the Court: 19 a) declare that the 2019 Rule is unlawful; 20 b) vacate the 2019 Rule; 21 c) enjoin Defendants from enforcing or applying any aspect of the 2019 Rule; 22 d) grant Plaintiffs their costs in this action, including reasonable attorneys’ fees 23 24 incurred; and e) award other relief that the Court deems just and proper. 25 26 27 28 - 48 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 53 of 54 1 2 3 4 5 Dated: October 29, 2019 MAYER BROWN LLP By: /s/ Lee H. Rubin Lee H. Rubin (CA. Bar No. 141331) lrubin@mayerbrown.com Two Palo Alto Square, Suite 300 Palo Alto, California 94306 Telephone: (650) 331-2037 Facsimile: (650) 331-4537 6 12 Matthew D. Ingber* Lauren R. Goldman* Niketa K. Patel* Nicolas E. Rodriguez* Luc W. M. Mitchell* mingber@mayerbrown.com lgoldman@mayerbrown.com npatel@mayerbrown.com nerodriguez@mayerbrown.com lmitchell@mayerbrown.com 1221 Avenue of the Americas New York, New York 10020-1001 Telephone: (212) 506-2500 13 PROTECT DEMOCRACY PROJECT 14 By: /s/ Jessica Marsden Jessica Marsden* 510 Meadowmont Village Circle, No. 328 Chapel Hill, NC 27517 Telephone: (202) 579-4582 Facsimile: (929) 777-8428 jess.marsden@protectdemocracy.org 7 8 9 10 11 15 16 17 18 Jamila Benkato* 2020 Pennsylvania Avenue, Suite 163 Washington, D.C. 20006 Telephone: (202) 579-4582 Facsimile: (929) 777-8428 jamila.benkato@protectdemocracy.org 19 20 21 22 ASIAN AMERICANS ADVANCING JUSTICE 23 24 25 26 27 28 By: /s/ Niyati Shah Niyati Shah*º Marita Etcubanez* nshah@advancingjustice-aajc.org metcubanez@advancingjustice-aajc.org 1620 L Street, NW, Suite 1050 Washington, DC 20036 Phone: (202) 815-1098 Facsimile: (202) 296-2318 - 49 COMPLAINT Case 3:19-cv-07151 Document 1 Filed 10/29/19 Page 54 of 54 1 OFFICE OF THE SEATTLE CITY ATTORNEY 2 3 4 5 6 7 By: /s/ Peter S. Holmes Peter S. Holmes, Seattle City Attorney* Erica R. Franklin, Assistant City Attorney* peter.holmes@seattle.gov erica.franklin@seattle.gov Seattle City Attorney’s Office 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 Phone: (206) 684-8200 Facsimile: (206) 684-8284 8 Attorneys for Plaintiffs 9 º Admitted in New Jersey and New York only. DC practice limited to federal courts. *Pending pro hac vice Admission 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 50 - COMPLAINT