Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 1 of 22 1 2 3 4 5 6 7 8 9 10 MAYER BROWN LLP Lauren R. Goldman (N.Y. Bar No. 2952422) Matthew D. Ingber (N.Y. Bar No. 2964666) Niketa K. Patel (N.Y. Bar No. 5314380) 1221 Avenue of the Americas New York, New York 10020 Telephone: (212) 506-2500 Facsimile: (212) 849-5973 lgoldman@mayerbrown.com mingber@mayerbrown.com npatel@mayerbrown.com Attorneys for Plaintiffs (Additional counsel listed on signature page) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 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. Plaintiffs, 17 18 19 PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION Hearing Date: December 9, 2019 Hearing Time: 9 a.m. vs. 21 DEPARTMENT OF HOMELAND SECURITY, CHAD WOLF, KENNETH CUCCINELLI, AND UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, 22 Defendants. 20 Case No. 3:19-cv-07151-MMC 23 24 25 26 27 28 PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 2 of 22 TABLE OF CONTENTS 1 Page 2 3 4 INTRODUCTION ...................................................................................................................................... 1 ARGUMENT .............................................................................................................................................. 1 I. PLAINTIFFS HAVE STANDING. ................................................................................................ 1 5 A. Plaintiffs Will Suffer “Concrete and Particularized” Injury Due To The 2019 Rule. ........ 2 6 B. Plaintiffs’ Injuries Are Fairly Traceable To The 2019 Rule ............................................... 5 7 II. PLAINTIFFS ARE WITHIN THE INA’S ZONE OF INTERESTS. ........................................... 6 III. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. ................................................ 7 8 A. Defendant Cuccinelli Was Not Lawfully Serving As The Acting Director Of USCIS When the 2019 Rule Became Final, And It Therefore Has No Force or Effect. ................ 7 B. The 2019 Rule Is Procedurally Invalid. ............................................................................ 10 9 10 11 1. The 2019 Rule Is Not A Procedural Rule. .............................................................10 2. The 2019 Rule Is Not An Interpretative Rule. .......................................................11 12 C. The 2019 Rule Is Arbitrary And Capricious. .................................................................... 12 13 D. The 2019 Rule Is Inconsistent With 8 C.F.R. § 103.7(c) and Past Agency Practice. ....... 13 IV. PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT INJUNCTIVE RELIEF. ....................................................................................................................................... 13 V. THE BALANCE OF EQUITIES STRONGLY FAVORS PLAINTIFFS. .................................. 14 16 VI. THE COURT SHOULD ENTER A NATIONWIDE INJUNCTION. ......................................... 15 17 CONCLUSION ......................................................................................................................................... 15 14 15 18 19 20 21 22 23 24 25 26 27 28 -iPLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 3 of 22 1 TABLE OF AUTHORITIES 2 Page(s) 3 4 Cases 5 Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987) ...........................................................................................................11 6 7 8 9 10 Ass’n of Pub. Agency Customers v. Bonneville Power Admin., 733 F.3d 939 (9th Cir. 2013) .................................................................................................................6 Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296 (2017) ...........................................................................................................................7 Bennett v. Spear, 520 U.S. 154 (1997) .............................................................................................................................10 11 12 13 14 15 Brill v. Chevron Corp., 2017 WL 76894 (N.D. Cal. Jan. 9, 2017) ..............................................................................................6 Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962) .......................................................................................................................10, 12 Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936 (9th Cir. 2010) ...............................................................................................................12 16 17 18 19 20 21 22 23 24 25 26 27 Campos v. INS, 70 F. Supp. 2d 1296 (S.D. Fla. 1998) ..................................................................................................15 Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .............................................................................................................................10 City of Sausalito v. O’Neill, 386 F.3d 1186 (9th Cir. 2004) ...............................................................................................................6 E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026 (9th Cir. 2019) .............................................................................................................15 E. Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094 (N.D. Cal 2018) ................................................................................................14 E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742 (9th Cir. 2018) ....................................................................................................... passim Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1 (D.C. Cir. 2011) .................................................................................................................10 28 - ii PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 4 of 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) .........................................................................................................................13 Foley v. Connelie, 435 U.S. 291 (1978) ...............................................................................................................................1 In re Google, Inc. Privacy Policy Litig, 58 F. Supp. 3d 968 (N.D. Cal. 2014) .....................................................................................................5 Hemp Indus. Ass’n v. DEA, 333 F.3d 1082 (9th Cir. 2003) .............................................................................................................11 Hooks v. Kitsap Tenant Support Servs., 816 F.3d 550 (9th Cir. 2016) .................................................................................................................8 INS v. Legalization Assistance Project of L.A. Cty. Fed’n of Labor, 510 U.S. 1301 (1993) .............................................................................................................................7 James V. Hurson Assocs. v. Glickman, 229 F.3d 277 (D.C. Cir. 2000) .............................................................................................................10 JEM Broad. Co. v. FCC, 22 F.3d 320 (D.C. Cir. 1994) ...............................................................................................................10 Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) ...........................................................................................................................6, 7 Mora-Meraz v. Thomas, 601 F.3d 933 (9th Cir. 2010) ...............................................................................................................11 17 18 19 20 21 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins., 463 U.S. 29 (1983) ...............................................................................................................................12 Nat’l Council of La Raza v. Cegavske, 800 F.3d 1032 (9th Cir. 2015) .......................................................................................................3, 4, 5 NLRB. v. SW Gen., Inc., 137 S. Ct. 929 (2017) .............................................................................................................................9 22 23 24 25 26 Olympic Fed. Sav. & Loan Ass’n v. Dir., Office of Thrift Supervision, 732 F. Supp. 1183 (D.D.C. 1990) ..........................................................................................................8 Ramos v Nielsen, 336 F. Supp. 3d 1075 (N.D. Cal. 2018) ...............................................................................................14 Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476 (9th Cir. 2018) ...............................................................................................................15 27 28 Save Our Valley v. Sound Transit, 335 F.3d 932 (9th Cir. 2003) ...............................................................................................................10 - iii PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 5 of 22 1 2 3 4 5 6 7 8 Serv. Women’s Action Network v. Mattis, 352 F. Supp. 3d 977 (N.D. Cal. 2018) ...................................................................................................3 SurvJustice Inc. v. DeVos, 2018 WL 4770741 (N.D. Cal. Oct. 1, 2018)..........................................................................................3 United States v. Gonzales & Gonzales Bonds & Ins. Agency, 728 F. Supp. 2d 1077 (N.D. Cal. 2010) .....................................................................................7, 10, 11 Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ...............................................................................................................1 Statutes 9 44 U.S.C.A. § 3506(a)(1) .............................................................................................................................9 10 5 U.S.C. § 3345 ........................................................................................................................................8, 9 11 5 U.S.C. § 3348 ............................................................................................................................................9 12 6 U.S.C. § 271(a)(3)(A) ...............................................................................................................................9 13 8 U.S.C. § 1356 ............................................................................................................................................7 14 8 U.S.C. § 1443(h) .......................................................................................................................................7 15 16 Other Authorities 8 C.F.R. § 103.7 ...................................................................................................................................11, 13 17 18 19 20 21 22 23 24 25 26 27 28 - iv PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 6 of 22 1 INTRODUCTION 2 The United States is “a nation of immigrants,” Foley v. Connelie, 435 U.S. 291, 294 (1978), and 3 for more than two centuries, Congress has provided a path by which immigrants become citizens: 4 naturalization. 5 advantage of that opportunity. Recognizing that application costs can be an insurmountable barrier to 6 naturalization for low-income LPRs, USCIS has historically provided for waivers of the naturalization 7 fee. But Defendants’ recent changes to the fee waiver process will upend access to naturalization for 8 LPRs. Although Defendants characterize these changes as merely technical, that characterization is belied 9 by their significance, and the serious impact that they will have on Plaintiffs and those they serve. Indeed, 10 the government admits that the 2019 Rule will drastically reduce the number of fee waiver applications, 11 and that this is its purpose. As a consequence, it will destroy Plaintiffs’ service model, frustrate their 12 missions, force them to divert resources, and threaten their funding (and, indeed, their very existence). Plaintiffs assist eligible low-income lawful permanent residents (“LPRs”) to take 13 The 2019 Rule is unlawful. As a threshold matter, it was issued under the authority of an illegally 14 acting agency head and is void as a result. It also violates the APA’s procedural and substantive 15 requirements. Defendants’ response ignores or mischaracterizes the relevant authorities and largely fails 16 to address Plaintiffs’ documentation of the immediate and irreparable harms that Plaintiffs will suffer 17 absent a nationwide injunction enjoining the 2019 Rule—harms that are precisely the type of imminent 18 injury that courts have regularly held to be sufficient for both Article III standing and a preliminary 19 injunction. For the reasons set forth below, Plaintiffs are entitled to immediate relief. 20 21 ARGUMENT I. PLAINTIFFS HAVE STANDING. 22 “To demonstrate Article III standing, a plaintiff must show a ‘concrete and particularized’ injury 23 that is ‘fairly traceable’ to the defendant’s conduct and ‘that is likely to be redressed by a favorable judicial 24 decision.’” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 763 (9th Cir. 2018) (quoting Spokeo, Inc. 25 v. Robins, 136 S. Ct. 1540, 1547 (2016)).1 At best, the 2019 Rule will make it much more difficult for the 26 Plaintiffs to serve their clients, compel them to completely change how they deliver services, and require 27 28 1 At this “preliminary stage of the litigation,” Plaintiffs’ standing can rest on “allegations in their [c]omplaint and whatever other evidence they submitted in support of their [] motion.” Washington v. Trump, 847 F.3d 1151, 1159 & n.3 (9th Cir. 2017). -1- PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 7 of 22 1 the expenditure of additional resources to meet their clients’ needs. At worst, it will threaten their 2 programs’ very existence. Defendants are wrong to contend that Plaintiffs fail to establish standing; they 3 have shown both injury and traceability. 4 A. 5 Organizations can demonstrate injury by showing (1) that the challenged policy “frustrates the 6 organization’s goals [i.e., mission] and requires the organization ‘to expend resources in representing 7 clients they otherwise would spend in other ways,’”; or (2) by demonstrating that the policy “will cause 8 them to lose a substantial amount of funding,” for which “a loss of even a small amount” is sufficient. E. 9 Bay Sanctuary Covenant, 932 F.3d at 765–67 (quoting Comite de Jornaleros de Redondo Beach v. City 10 of Redondo Beach, 657 F.3d 936, 943 (9th Cir. 2011)). Defendants do not dispute that Plaintiffs meet the 11 second prong—they argue only that such loss is not traceable to Defendants. Plaintiffs Will Suffer “Concrete and Particularized” Injury Due To The 2019 Rule. 12 With respect to the first prong, the 2019 Rule will cause Plaintiffs to experience frustration of 13 mission and diversion of resources because of its impact on their naturalization workshops, which are 14 one-day, one-stop events where Plaintiffs’ staff and volunteers assist low-income LPRs with completing 15 and submitting naturalization applications. Mot. 9. Applications submitted through these workshops are 16 the primary vehicle for Plaintiffs to meet contractually specified funding targets. See, e.g., Rodgers Decl.2 17 ¶¶ 42–45; Stolz Decl. ¶¶ 44–49. Plaintiffs’ ability to hold these workshops depends in large part on the 18 applicants’ ability to obtain a fee waiver and, specifically, a fee waiver based upon receipt of a 19 means-tested benefit. Mot. 8. This is because means-tested benefit-based fee waivers require minimal 20 documentation, which can typically be obtained before or during a workshop. Mot. 9–10. By contrast, 21 the two other grounds on which an applicant can request a fee waiver require extensive documentation 22 and follow-up, making them ill-suited for naturalization workshops. Id. at 10–11. 23 The 2019 Rule will cause Plaintiffs to divert considerable staff time and resources to continue this 24 work, and these expenditures are not “ordinary program costs.” Opp. 7. Each Plaintiff will be required 25 to use staff time and money previously dedicated for other projects to overhaul their existing programs 26 and training materials. See, e.g., Rodgers Supp. Decl. ¶¶ 9–11; Chenoweth Supp. Decl. ¶ 3. For example, 27 28 2 “Decl.” refers to the declarations submitted in support of Plaintiffs’ Motion for Preliminary Injunction and Memorandum of Points and Authorities (Dkt. 25), dated November 6, 2019. “Supp. Decl.” refers to the declarations submitted in support of this reply memorandum. -2- PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 8 of 22 1 Self-Help’s partnership with San Francisco’s Human Services Agency, which was premised solely on 2 reaching means-tested benefit recipients, will become obsolete, and Self-Help will need to rebuild its 3 entire outreach database from scratch. Chung Supp. Decl. ¶ 9. ILRC has already shifted resources from 4 other citizenship promotion efforts, and will need to continue doing so to create additional community 5 alert materials, as well as new educational materials for LPRs. Rodgers Decl. ¶¶ 29–30. The New Citizen 6 Program (“NCP”) and the New Citizens Campaign (“NCC”) partners, which are funded by Seattle’s 7 Office of Immigrant and Refugee Affairs (“OIRA”), expect to devote time to “consulting with tax experts 8 for questions about income verification and how to obtain tax transcripts,” even as OIRA itself expends 9 additional resources to update materials and provide technical assistance to NCC and NCP about the 2019 10 Rule. Kelly-Stallings Decl. ¶¶ 35-39; Kelly-Stallings Supp. Decl. ¶ 7-8. But for the enactment of the 11 2019 Rule, Plaintiffs would spend this money “on some other aspect of their organizational purpose.” 12 Nat’l Council of La Raza v. Cegavske, 800 F.3d 1032, 1040 (9th Cir. 2015). This is precisely the type of 13 harm that gives organizational plaintiffs standing. Serv. Women’s Action Network v. Mattis, 352 F. Supp. 14 3d 977, 985 (N.D. Cal. 2018) (citing Cegavske, 800 F.3d at 1040) (“[T]he Ninth Circuit has specifically 15 found diversion of resources for ‘outreach campaigns’ and educating the public . . . sufficient to establish 16 organizational standing.”); see also SurvJustice Inc. v. DeVos, 2018 WL 4770741, at *7 (N.D. Cal. Oct. 17 1, 2018) (organizational standing established where plaintiff diverted staff time to, among other things, 18 “review[] and understand[]” the challenged policy). 19 Defendants seek to minimize these harms by noting that some of the Plaintiffs already help with 20 income- and hardship-based applications. That argument does not address the fact that Self-Help does 21 not handle such applications at their workshops. Chung Decl. ¶ 13. And even for those organizations that 22 do process some such applications, those applications make up a tiny fraction of the total submitted, 23 because they are so difficult and time-consuming to complete. Mot. 10–11. The 2019 Rule will make 24 income- and hardship-based applications the sole avenue for fee waivers, causing an increase in these 25 types of applications, and forcing Plaintiffs to expend their resources in drastically different ways. Id. at 26 9-11. 27 Defendants’ suggestion that it is significant that “only one Plaintiff alleges it has already diverted 28 any resources to prepare for the revisions” is beside the point. Opp. 8 (emphasis added). There is no such -3- PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 9 of 22 1 requirement for standing at this stage. See E. Bay. Sanctuary Covenant, 932 F.3d at 764 (“[Plaintiffs] 2 need only establish a risk or threat of injury to satisfy the actual injury requirement.”). Moreover, it makes 3 perfect sense that Plaintiffs would avoid expending precious resources until the 2019 Rule was finalized, 4 announced, and effective, lest it undergo substantive changes before publication or be abandoned. 5 The 2019 Rule will also frustrate Plaintiffs’ ability to achieve their missions. A plaintiff satisfies 6 the frustration-of-mission element if it shows that the challenged policy will reduce or “discourage[] a 7 large number of . . . individuals from seeking [its services].” E. Bay Sanctuary Covenant, 932 F.3d 766. 8 Defendants acknowledge that the 2019 Rule will cause the number of fee waiver applications to drop from 9 594,000 to 350,000, a more than 40 percent decrease. AR 458. The 2019 Rule will effectively block 10 LPRs who receive means-tested benefits, but who have incomes over 150 percent of the federal poverty 11 guidelines (“FPG”), from ever applying to naturalize. Wong Decl. ¶ 24. The heightened evidentiary 12 requirements imposed by the 2019 Rule will discourage many more still-eligible applicants from ever 13 applying for naturalization. Mot. 7–8. Plaintiffs separately satisfy the frustration-of-mission element 14 because “[b]ut for defendants’ [conduct], Plaintiffs would be able to allocate substantial resources to other 15 activities central to their missions.” Cegavske, 800 F.3d at 1040 (quotation marks omitted). Plaintiffs 16 share broad missions to help individuals obtain a variety of immigration benefits. Mot. 11. Because of 17 the 2019 Rule, scarce resources Plaintiffs would have allocated elsewhere to carry out their missions will 18 instead be spent responding to the dramatic changes effected by the 2019 Rule. See supra pp. 2–5; see 19 also Rodgers Supp. Decl. ¶ 11 (NAC staff members have had to “postpone or set aside other work . . . to 20 accommodate individual appointments”); Chung Supp. Decl. ¶ 5 (Self-Help has diverted resources from 21 other “routine work such as passport renewals, green card renewals, family-based petitions, and 22 citizenship test preparation”). Even with this diversion of resources, the complexities added by the 2019 23 Rule reduce the number of clients Plaintiffs can serve. See, e.g., Mot. 8–9. 24 In response to this showing, Defendants offer an array of meritless arguments. First, they blithely 25 assert that “under Plaintiffs’ own theories, the revised Form makes their services more valuable to those 26 they serve.” Opp. 9. But the fact that Plaintiffs’ services are more necessary does not change the fact that 27 the 2019 Rule will make it far more challenging for Plaintiffs to provide them. Next, Defendants assert 28 that Plaintiffs’ showing of harm is “speculative” because each Plaintiff has its own estimate of the time-4- PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 10 of 22 1 burden associated with the new requirements imposed by the 2019 Rule. Id. This argument is frivolous: 2 the Organizational Plaintiffs vary in size, structure, and resources; it is hardly surprising that they expect 3 to bear different burdens. More fundamentally, Defendants do not deny that all Plaintiffs will be forced 4 to devote significantly increased staff time and resources to comply with the 2019 Rule. This is what 5 matters for standing purposes. See, e.g., Cegavske, 800 F.3d at 1040. Defendants next claim that Plaintiffs 6 can reduce “the time spent on an applicant,” which ignores the realities of the 2019 Rule. Opp. 9. For 7 example, Defendants posit that Plaintiffs can refer more cases to one-on-one services. But one-on-one 8 services are more time-intensive, not less, and some Plaintiffs have never provided them. See Rodgers 9 Decl. ¶¶ 42–45; Núñez Decl. ¶¶ 40–43; Chenoweth Decl. ¶¶ 41–44; Stolz Decl. ¶¶ 44–49; Chung Decl. 10 ¶¶ 40–41. Finally, Defendants argue that Plaintiffs have failed to identify an existing or prospective client 11 harmed by the 2019 Rule and that “a material number of clients must be . . . affected,” Opp. 9, despite the 12 fact that plaintiffs “need only establish a risk or threat of injury to satisfy the actual injury requirement.” 13 E. Bay. Sanctuary Covenant, 932 F.3d at 764. In any event, there is no doubt that the 2019 Rule will make 14 some LPRs entirely ineligible for a fee waiver, since Defendants estimate that the number of fee waiver 15 applications will fall by nearly 40 percent. AR 458. 16 B. 17 Each of the injuries described above is solely attributable to the 2019 Rule: but for the rule change, 18 Plaintiffs would not lose funding, divert resources, or experience frustration of their missions. See, e.g., 19 In re Google, Inc. Privacy Policy Litig, 58 F. Supp. 3d 968, 979 (N.D. Cal. 2014) (injuries fairly traceable 20 on but-for causation theory). Defendants acknowledge that Plaintiffs stand to lose funding but contend 21 that the loss is not traceable to the 2019 Rule.3 First, they suggest that nothing on the face of the 2019 22 Rule suggests that Plaintiffs will suffer a reduction in the number of clients they are able to serve, ignoring 23 their own concession: the purpose and effect of the 2019 Rule will be to significantly reduce the number 24 of fee waiver applicants. Second, they argue that, because third parties dictate the contractual terms of 25 Plaintiffs’ funding arrangements, a loss of funding cannot be caused by government action. The fact that 26 Plaintiffs’ funders could choose to offer funding on different terms in the future does not change the fact 27 that, if the 2019 Rule goes into effect, they will lose funding that they are currently assured under existing 28 3 Plaintiffs’ Injuries Are Fairly Traceable To The 2019 Rule. Defendants do not dispute traceability for diversion of resources and frustration of mission. -5- PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 11 of 22 1 grants. Ass’n of Pub. Agency Customers v. Bonneville Power Admin., 733 F.3d 939, 953 (9th Cir. 2013) 2 (“[Simply because] contractual obligations may provide the basis for [] economic [injury] . . . hardly 3 means that the [regulation] itself is not the direct cause of that [injury].” (citation and quotation marks 4 omitted)); see also Brill v. Chevron Corp., 2017 WL 76894, at *3 (N.D. Cal. Jan. 9, 2017) (defendants’ 5 actions need not be “the very last step in the chain of causation” (quoting Bennett v. Spear, 520 U.S. 154, 6 168–69 (1997)). Further, the Ninth Circuit foreclosed this argument in E. Bay Sanctuary Covenant, in 7 which the organizational plaintiffs, whose funding from third parties depended on the number of asylum 8 applications they submitted, challenged changes to asylum policy. 932 F.3d at 754, 766–67. The 9 challenged policy did not, on its face, render plaintiffs’ clients “categorically ineligible for asylum.” See 10 id. at 767. But the plaintiffs alleged that a majority of the organizations’ clients would in practice be 11 barred by the rule, and the Ninth Circuit found that the likely reduction in the number of their clients, and 12 the loss of third-party funding that would result from such a reduction, was sufficient to confer standing. 13 Id. at 767. The 2019 Rule will affect Plaintiffs in the same manner by reducing the number of clients they 14 can effectively serve.4 15 II. PLAINTIFFS ARE WITHIN THE INA’S ZONE OF INTERESTS. 16 Defendants wrongly contend that Plaintiffs are outside the zone of interests of the Immigration 17 and Nationality Act (“INA”) and that Plaintiffs’ economic interests are not even “marginally related” to 18 the 2019 Rule. Opp. 12. 19 Although the class of plaintiffs within a statute’s zone of interests is limited, “the test is not 20 especially demanding” under the APA, where “the benefit of any doubt goes to the plaintiff.” Lexmark 21 Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129–30 (2014) (quotation marks omitted). 22 The zone of interests test “forecloses suit only when a plaintiff’s interests are so marginally related to or 23 24 25 26 27 28 4 Defendants contend that Seattle cannot assert standing based on loss of tax revenue caused by the 2019 Rule because (1) Seattle only alleges that Washington State’s tax revenue will be affected, and (2) the causal link between the 2019 Rule and Seattle’s lost tax revenue is too attenuated. Opp. at 12 n.7. But a municipality has standing “to protect its own proprietary interests,” including “ero[sion of] its tax revenue.” City of Sausalito v. O’Neill, 386 F.3d 1186, 1197–99 (9th Cir. 2004). Contrary to Defendants’ assertion, higher rates of naturalization have a tangible impact on Seattle’s economic interests, including through higher rates of homeownership and sales tax revenue. See Am. Compl. ¶ 229; Kelly-Stallings Decl. ¶¶ 41–49. It is thus “reasonably probable” that these economic interests will be harmed by the reduction in number of naturalized Seattle residents caused by the 2019 Rule. See City of Sausalito, 386 F.3d at 1199. See also Kelly-Stallings Supp. Decl. ¶ 10–11. -6- PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 12 of 22 1 inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress 2 authorized that plaintiff to sue.” Id. (quotation marks omitted). Plaintiffs, in contrast, serve the individuals 3 who are most directly impacted by the 2019 Rule, and their ability to continue to do so will be significantly 4 impeded by the Rule. These interests are hardly “marginal” or “inconsistent” with the purposes of the 5 INA. Furthermore, the INA envisions Plaintiffs’ roles; funds them; and requires the government to work 6 with them in order to “promote the opportunities and responsibilities of United States citizenship.” 8 7 U.S.C. § 1443(h). In fact, fees collected pursuant to 8 U.S.C. § 1356, the very section Defendants cite as 8 authorizing the 2019 Rule (AR 492), are used to fund local governments and nonprofit naturalization 9 service providers through USCIS’s Citizenship and Assimilation (formerly Integration) Grant Program.5 10 Several Plaintiffs are past and current recipients of these grants.6 11 Although Defendants rely (at Opp. 13) on an opinion in INS v. Legalization Assistance Project of 12 L.A. Cty. Fed’n of Labor, the Ninth Circuit in E. Bay Sanctuary Covenant rejected that opinion as 13 “non-binding” and “speculative,” and found that “the interest asserted by the organization in [INS]— 14 conserving organizational resources to better serve nonimmigrants—is markedly different from the 15 interest in aiding immigrants asserted here.” 932 F.3d at 769 n. 10 (emphasis in original). So too, here. 16 Finally, Seattle’s financial interest in the naturalization of its residents, see Kelly-Stallings Decl. 17 ¶¶ 41–49, further places it within the zone of interests. See Bank of Am. Corp. v. City of Miami, 137 S. 18 Ct. 1296, 1304 (2017) (holding that Miami’s financial injuries were within the zone of interests of the Fair 19 Housing Act when discriminatory lending “reduced property values, diminishing the City’s property-tax 20 revenue and increasing demand for municipal services”). 21 III. 22 PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. A. Defendant Cuccinelli Was Not Lawfully Serving As The Acting Director Of USCIS 23 24 25 26 27 28 5 Dep’t. of Homeland Security, U.S. Citizenship & Immigration Services, FY 2016/2017 Immigration Examinations Fee Account Fee Review Supporting Documentation Addendum, at 17 (Oct. 2016), https://bit.ly/2XMVqsg; see also https://bit.ly/2KSncP6 for eligibility information. 6 For example, CARECEN received this funding (in 2009, 2012, 2015, and 2017), as has OneAmerica (2009), and CLINIC (2010, 2011). See https://bit.ly/35xa8X3. And several of Seattle’s partner organizations in its two naturalization programs are current and past recipients of USCIS grants. Kelly-Stallings Supp. Decl. ¶ 4. -7- PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 13 of 22 1 When the 2019 Rule Became Final, And It Therefore Has No Force or Effect. 2 Defendants do not seriously contest that Defendant Cuccinelli’s purported service as Acting 3 Director of USCIS violates the Federal Vacancies Reform Act (FVRA). Instead, they seek to avoid the 4 import of that illegality by making the demonstrably false claim that USCIS took no action on the 2019 5 Rule under Cuccinelli. They contend that Cuccinelli had not yet been placed in the Acting Director role 6 on June 5, 2019, when USCIS published its third and final public notice regarding the rule,7 and that 7 USCIS “had no further substantive role to play in effecting the Form revisions” after that date. Opp. 22. 8 The administrative record belies that assertion. Cuccinelli purported to be the Acting Director on 9 September 6, when USCIS submitted a table of changes to Form I-912 to OMB, AR 407; on October 7, 10 when USCIS submitted its supporting statement, AR 450, see n.15; on October 16, when USCIS 11 completed its submission to OIRA, AR 461 (“OMB has taken action on your request received on 12 10/16/2019”); and on October 25, when USCIS published the final form and announced the Policy Alert 13 and Policy Manual revisions, AR 484. 14 On each of those dates, Cuccinelli’s service as Acting Director of USCIS was unlawful, and his 15 actions ultra vires. Under the FVRA, when an official vacates a role requiring Senate confirmation under 16 the Appointments Clause, “the first assistant to the office of such officer shall” become the acting official, 17 5 U.S.C. § 3345(a)(1), unless the President “override[s] the automatic operation of (a)(1)” by selecting a 18 different individual with leadership experience in the federal government. Hooks v. Kitsap Tenant Support 19 Servs., 816 F.3d 550, 557 (9th Cir. 2016). The (a)(1) “automatic” succession provision refers exclusively 20 to the individual serving as the first assistant at the time the vacancy occurs—here, Mark Koumans, not 21 Ken Cuccinelli. 144 CONG. REC. S11037 (daily ed. Sept. 28, 1998) (statement of Senator Lieberman) 22 (“[B]y the terms of the bill, a first assistant apparently can take over only if he or she was the first assistant 23 at the time of the vacancy.”). If the maneuver that ostensibly placed Cuccinelli in the role of Acting 24 Director were legal, the FVRA would have failed to ensure that an acting official have any government 25 experience at all, because literally anyone could be placed in the first assistant position after the fact. Cf. 26 27 28 7 Defendants suggest that USCIS actually submitted the rule to OIRA on June 5, Opp. 5, but the Administrative Record documents the submission date as October 16. AR 461. Three documents submitted by USCIS to OIRA after June 5 are conspicuously undated in the Index. Dkt. 48-2 at 2–3. -8- PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 14 of 22 1 Hooks, 816 F.3d at 564 (legislative history “suggests that the FVRA was motivated by a desire to reassert 2 the Senate’s confirmation power in the face of what was seen as executive overreach”); Olympic Fed. Sav. 3 & Loan Ass’n v. Dir., Office of Thrift Supervision, 732 F. Supp. 1183, 1198 (D.D.C. 1990) (vacancies 4 laws “strictly and narrowly interpreted”). 5 In its brief footnote on the merits of this argument, Defendants claim that because Section 6 3345(a)(3) includes a tenure requirement for an individual placed in the acting role pursuant to that 7 provision, the absence of a tenure requirement in (a)(1) demonstrates that none exists. Opp. 22 n.12. The 8 better reading, however, is that Congress did not include a tenure requirement in (a)(1) because it did not 9 anticipate that any selection at all could occur under (a)(1)—as the only relevant first assistant would be 10 the one serving at the time of the vacancy. The other argument at which Defendants gesture has been 11 foreclosed by the Supreme Court’s decision in NLRB. v. SW Gen., Inc., 137 S. Ct. 929 (2017), which 12 makes clear that there is no conflict between interpreting (a)(1) to apply only to the first assistant serving 13 at the time the vacancy begins and the text of § 3345(b)(1). Because (b)(1) applies not only to first 14 assistants acting through (a)(1), but also to acting officials selected by the President through (a)(2) or 15 (a)(3), the category of acting officials who “did not serve in the position of first assistant to the office of 16 such officer,” 5 U.S.C. § 3345(b)(1)(A)(i), is not superfluous. 17 Given that Cuccinelli’s appointment was unlawful, any actions that he takes while in office— 18 including the 2019 Rule—“shall have no force or effect.” 19 Government’s protestations, the 2019 Rule was an “action” taken by Cuccinelli while performing a 20 “function or duty” of the USCIS head. Id. at 5 U.S.C. § 3348(a)(2). That “function or duty” is established 21 by statute, see § 3348(a)(2)(A), in two ways. First, the USCIS Director “shall establish the policies for 22 performing” functions including “[a]djudications of naturalization petitions,” 6 U.S.C. § 271(a)(3)(A); 23 (b)(2). Second, the Paperwork Reduction Act mandates that the “head of each agency shall be responsible 24 for . . . complying with [its] requirements.” 44 U.S.C.A. § 3506(a)(1). 5 U.S.C. § 3348(d)(1). Despite the 25 Moreover, because the FVRA’s definition of “agency action” is coextensive with the APA’s, 26 compare 5 U.S.C. § 3348(a)(1) with id. § 701(b)(2) (both referencing id. § 551(13)), Defendants’ claim 27 that the action was complete on June 5 rests on the premise that USCIS’s June 5 submission to OMB was 28 the “final agency action” reviewable under the APA, id. § 704. But the June 5 submission neither -9- PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 15 of 22 1 “mark[ed] the consummation of the agency's decisionmaking process” nor was it an action “by which 2 rights or obligations have been determined, or from which legal consequences will flow”—two conditions 3 which the Supreme Court has articulated for a final agency action. Bennett v. Spear, 520 U.S. 154, 177– 4 78 (1997) (quotation marks omitted). 5 B. 6 After spending the last year proclaiming that the 2019 Rule was a way to “stem the tide” of 7 fee-waived applications by cutting them nearly in half, Opp. 1 and AR 458, Defendants—in an attempt to 8 demonstrate that the 2019 Rule is not subject to the APA’s procedural requirements—restyle the rule as a 9 “technical” measure that is “procedural” or, barring that, “interpretative.” Opp. 14–17. The rebranding 10 is too late,8 and in any event, it misses the point: rules of procedure and interpretation may absolve a 11 failure to comply with the APA only when a rule does not affect “individual rights and obligations,” 12 Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979), is not “binding on the individuals to whom [it] 13 appl[ies] in the same way statutes are,” and is not “prescriptive, forward-looking, and of general 14 applicability.” Save Our Valley v. Sound Transit, 335 F.3d 932, 954–55 (9th Cir. 2003). 15 The 2019 Rule Is Procedurally Invalid. 1. The 2019 Rule Is Not A Procedural Rule. 16 Procedural rules cover only “housekeeping” matters, Chrysler Corp., 441 U.S. at 283, that do not 17 “impose new substantive burdens.” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1, 18 5 (D.C. Cir. 2011). The 2019 Rule is far more than just a change to “the manner in which parties present 19 themselves or their viewpoints to the agency,” as would be characteristic of a procedural rule. United 20 States v. Gonzales & Gonzales Bonds & Ins. Agency, 728 F. Supp. 2d 1077, 1084 (N.D. Cal. 2010). 21 Instead, consistent with USCIS’s stated intent, it will make some applicants completely ineligible for a 22 fee waiver, thereby altering their “underlying rights or interests.” Id. 23 Defendants’ cases are not to the contrary. In quoting JEM Broad. Co. v. FCC, 22 F.3d 320, 327 24 (D.C. Cir. 1994), Defendants use an ellipsis to omit key language—that “financial qualifications” are the 25 type of changes to “substantive standards” that take a rule change outside “the realm of the procedural.”9 26 27 28 8 As the Supreme Court has counseled, a court should not credit “post hoc rationalizations for agency action.” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962). 9 Defendants omit the same language when they cite James V. Hurson Assocs. v. Glickman, 229 F.3d 277, 280 (D.C. Cir. 2000). - 10 - PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 16 of 22 1 (quotation marks omitted). Compare Opp. 15 with JEM Broad., 22 F.3d at 327. The heart of the 2019 2 Rule is a change to the financial qualifications for fee waivers; it thus cannot be procedural. Next, 3 Defendants rely on Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1055 (D.C. Cir. 1987), claiming that so 4 long as the “standard of review” remains the same, the “focus and timing of review are matters for agency 5 discretion.” Opp. 15; but see Bowen, 834 F.2d at 1051 (“[w]ere [the agency] to have inserted a 6 presumption of invalidity when reviewing certain operations, its measures would surely require [APA] 7 notice and comment.”). By establishing a per se rule that evidence of a means-tested benefit cannot 8 establish fee waiver eligibility, the 2019 Rule changes the substantive standard of review, not just the 9 agency’s “focus” and “timing.” Finally, Defendants seek support in United States v. Gonzales & 10 Gonzales, 728 F. Supp. 2d 1077. But that case concerned only which particular body heard agency 11 appeals—exactly the type of “internal organization” for which procedural rules are used. Id. at 1085. 12 2. The 2019 Rule Is Not An Interpretative Rule. 13 Defendants argue in the alternative that if the 2019 Rule is not procedural, it is interpretative. Opp. 14 16–17. Not so; the 2019 Rule effectively adds to and amends 8 C.F.R. § 103.7(c), a legislative rule; it 15 does not interpret that provision. Hemp Indus. Ass’n v. DEA, 333 F.3d 1082, 1087–88 (9th Cir. 2003) (an 16 interpretative rule may not “add to” or “amend” a legislative rule). Section 103.7(c) provides that fee 17 waivers may be granted when “[t]he party requesting the benefit is unable to pay the prescribed fee,” 8 18 C.F.R. § 103.7(c)(1)(i), and specifies the procedure that applicants are to follow: (1) submit a written 19 request for a waiver, (2) state the reasons for inability to pay, and (3) provide evidence to support the 20 reasons, id. § 103.7(c)(2). The 2019 Rule adds to the regulation in two substantial respects. First, it 21 heightens procedural requirements by requiring use of the I-912 form and hard-to-obtain IRS tax 22 transcripts. AR 503–09. Second, it replaces the flexible “inability to pay” standard with a rigid income 23 threshold that disqualifies many applicants who satisfy the terms of the legislative rule. 24 Mora-Meraz v. Thomas, 601 F.3d 933, 940 (9th Cir. 2010), is not to the contrary. There, the court 25 found that a regulation requiring a “verifiable documented drug abuse problem” for admission to a drug- 26 abuse program was interpreted, not amended, by a Bureau of Prisons rule requiring a showing of drug use 27 within the preceding year. Id. at 940. However, the underlying legislative rule at issue in Mora-Meraz 28 was silent as to how prisoners were to prove the existence (let alone time period) of a “drug abuse - 11 - PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 17 of 22 1 problem,” leaving a clear gap for the agency to fill. In contrast, 8 C.F.R. § 103.7 sets forth a flexible 2 procedure for applicants to follow in proving their eligibility for a fee waiver; the agency is not free to 3 further restrict those procedures without going through notice-and-comment rulemaking once more. 4 C. 5 The 2019 Rule should be set aside as arbitrary and capricious because Defendants have failed to 6 “cogently explain why [they have] exercised [their] discretion in a given manner.” Motor Vehicle Mfrs. 7 Ass’n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 48–49 (1983). Defendants point to cursory statements 8 of the agency’s reasons proffered in the final public notice. Opp. 18–21. But as Defendants acknowledge, 9 agency reasoning is not entitled to deference when the agency has “entirely failed to consider an important 10 aspect of the problem [or] offered an explanation for its decision that runs counter to the evidence before 11 the agency.” Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936, 945 (9th Cir. 2010). Here, 12 Plaintiffs and other public commentators introduced evidence into the administrative record to show that 13 (1) the FPG is not an adequate measure of ability to pay, see, e.g., AR 5305–06; (2) the additional burden 14 of proving income will deter many eligible applicants from applying and devastate Plaintiffs’ efforts to 15 help them do so, see, e.g., AR 3242–57; and (3) obtaining tax transcripts is extremely difficult for low- 16 income LPRs, see, e.g., AR 4367–68. Defendants failed to meaningfully grapple with this evidence. The 2019 Rule Is Arbitrary And Capricious. 17 First, Defendants fail to respond to Plaintiffs’ argument that the agency did not “take into 18 consideration the increased burden that will be placed on other applicants, legal-service providers, and 19 even the agency” by its new rule, Mot. 15, and the likely consequence that eligible, needy immigrants will 20 be prevented from applying for naturalization at all. Merely stating and restating countervailing concerns 21 about revenue and inconsistency, Opp. 18–19, does not show that the agency actually considered concerns 22 about access to naturalization. 23 Second, Defendants identify nothing in the administrative record to justify their choice, in the face 24 of numerous dissenting public comments, to rely primarily on the FPG in assessing “ability to pay.” Opp. 25 20. They now argue that the Guidelines must be a reasonable measure of ability to pay because that is the 26 FPG’s “primary purpose,” and the federal government should not be required to rely on state-administered 27 programs. Id. This Court should not credit these “post hoc rationalizations for agency action.” Burlington 28 Truck Lines, 371 U.S. at 168–69. Defendants further claim that a challenge to the agency’s reliance on - 12 - PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 18 of 22 1 the FPG is time-barred. Opp. 19. That argument is frivolous: Plaintiffs do not challenge USCIS’s 2 long-standing acceptance of evidence that an individual earns less than 150% of the FPG; rather, they 3 challenge USCIS’s 2019 decision to increase its reliance on the FPG to the exclusion of other evidence. 4 Third, the agency has not offered a plausible reason for requiring applicants to undertake the highly 5 burdensome process of obtaining tax transcripts to prove their incomes. While some unspecified number 6 of individuals may have submitted incomplete copies of tax returns under the prior rule, Opp. 20–21, there 7 is no persuasive reason, and certainly none articulated by USCIS, why eligible applicants should bear the 8 burden of those incorrect submissions. If anything, it beggars belief that Defendants would claim they are 9 trying to avoid rejecting fee waiver applications, when they have previously admitted that income-based 10 applications are the most likely to be rejected.10 And there is no persuasive reason why tax transcripts— 11 hard-to-obtain, stripped-down summaries of tax returns, which the President has called “notoriously 12 inaccurate”—would do a better job of demonstrating an individual’s income. Am. Compl. ¶ 12. 13 D. 14 Defendants claim that 8 C.F.R. § 103.7(c) affords them wide latitude in reviewing fee waiver 15 requests and sets forth a demanding procedure for applicants. Opp. 21. Yet the regulation requires only 16 that each request (1) be in writing, (2) “state the person’s belief that he or she is entitled to or deserving 17 of the benefit requested,” (3) state “the reasons for his or her inability to pay,” and (4) provide “evidence 18 to support the reasons indicated.” 8 C.F.R. § 103.7(c)(2). Notably absent from this list is a requirement 19 that the applicant use a specific form such as Form I-912, or that the evidence provided fit into one of two 20 categories: income as measured by the FPG, or extraordinary hardship. And USCIS recognized as recently 21 as 2018 that “the use of a USCIS-published fee-waiver request form is not mandated by regulation” and, 22 as a result, applicants need not use Form I-912. AR 44, 149. Defendants’ about-face is unsupported by 23 any “reasoned explanation,” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016), and in any 24 event it is, by their own previous admission, inconsistent with the regulation. 25 IV. The 2019 Rule Is Inconsistent With 8 C.F.R. § 103.7(c) and Past Agency Practice. PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT INJUNCTIVE RELIEF. 26 As discussed above, see supra pp. 2–5, the 2019 Rule will cause Plaintiffs to divert substantial 27 resources, experience a frustration of their missions, and lose funding. Absent a preliminary injunction, 28 10 2016 USCIS Ombudsman Ann. Rep., at 72, https://bit.ly/2KUkIzF. - 13 - PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 19 of 22 1 these injuries will materialize immediately, causing irreparable harm to Plaintiffs. For example, Plaintiffs 2 will need to, among other things, immediately (i) shift financial and staffing resources from other 3 immigration projects to conduct additional one-on-one naturalization appointments, (ii) draft guidance 4 advising clients and stakeholders of the changes to the fee waiver process, and (iii) in response to funding 5 losses, diminish or cut positions related to naturalization work. Rodgers Supp. Decl. ¶ 8; Chenoweth Decl. 6 ¶ 32; Chenoweth Supp. Decl. ¶ 6; Kelly-Stallings Decl. ¶¶ 7-10. By Defendants’ own admission, these 7 harms are not speculative and are directly caused by the 2019 Rule: they concede the additional 8 time-burden the 2019 Rule adds to naturalization applications, and they acknowledge that the 2019 Rule 9 will have the effect of lowering the number of fee waiver requests that are submitted (and by extension, 10 naturalization applications) by nearly 40 percent. AR 458. 11 By contrast, if the 2019 Rule is preliminarily enjoined, Plaintiffs’ workshops will continue in their 12 current form. Further, an entire swath of fee waiver applicants who make up large portions of Plaintiffs’ 13 clients—that is, applicants seeking fee waivers based on receipt of a means-tested benefit—will continue 14 to submit applications. This would eliminate, at least for the time being, the likelihood that Plaintiffs will 15 lose substantial funding. Moreover, “the general rule that economic harm is not normally considered 16 irreparable does not apply where there is no adequate remedy to recover those damages, such as in APA 17 cases.” E. Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094, 1116 (N.D. Cal 2018) (alteration 18 and quotation marks omitted). 19 V. THE BALANCE OF EQUITIES STRONGLY FAVORS PLAINTIFFS. 20 The “balance of equities” and the public interest both favor the Plaintiffs, who will suffer 21 irreparable harm (see supra Section IV) if the 2019 Rule stays in effect, impairing their ability to provide 22 naturalization services across the United States. 23 Defendants argue that preserving the status quo would require USCIS to “forgo requiring evidence 24 that is most likely to identify applicants in need of a fee waiver.” Opp. 24. But Defendants’ own 25 justifications for the 2019 Rule belie this argument: they “revised the criteria” to eliminate key evidence 26 (receipt of a means-tested benefit) that is most likely to identify applicants in need of a fee waiver in order 27 to “curtail[] the rising costs of fee waivers.” Id. at 4, 19 (alteration in original). Preserving the status quo 28 will mean that USCIS will continue to follow the same fee waiver process that has been in place since - 14 - PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 20 of 22 1 2010—an outcome expressly endorsed by this district. See Ramos v Nielsen, 336 F. Supp. 3d 1075, 1080 2 (N.D. Cal. 2018) (preliminary injunction was appropriate to preserve the status quo where the 3 “government [] failed to establish any real harm were the status quo . . . maintained”). Defendants also 4 contend that Plaintiffs’ services are not “legally necessary,” (Opp. 24), to applicants. As a practical matter, 5 just as in Campos v. INS, 70 F. Supp. 2d 1296 (S.D. Fla. 1998), Plaintiffs’ services are indispensable to 6 applicants who rely on, for instance, Plaintiffs’ provision of translators at their events,11 regardless of 7 whether some applicants would be able to complete the process without Plaintiffs’ legal services. 8 VI. THE COURT SHOULD ENTER A NATIONWIDE INJUNCTION. 9 Defendants argue that the Court “should be limited to redressing only any established injuries to 10 Plaintiffs.” Opp. 25. But Plaintiffs have established that they will suffer nationwide injuries absent 11 nationwide relief. Two of the plaintiffs, ILRC and CLINIC, serve clients located throughout the United 12 States and provide naturalization application clinics and workshops nationally. Rodgers Decl. ¶¶ 3–5; 13 Chenoweth Decl. ¶¶ 4–9. Any relief limited to certain cities and/or states would be insufficient to remedy 14 the formidable and irreparable, nationwide harms that will befall these organizations. 15 Furthermore, varied implementation of the 2019 Rule across the United States would result in 16 disparate treatment of LPRs across the United States—an outcome expressly contemplated and rejected 17 by the Ninth Circuit. See Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 511 (9th 18 Cir. 2018). A nationwide preliminary injunction is the standard remedy for the enjoinment under the APA 19 of agency regulations that will echo nationally. Id. at 512 (nationwide injunctions “commonplace”). 20 Defendants point (Opp. 25) to a recent stay of a nationwide injunction in E. Bay Sanctuary Covenant v. 21 Barr, 934 F.3d 1026, 1029 (9th Cir. 2019), in support of a more “narrowly tailored” injunction. But East 22 Bay concerned asylum applications from immigrants entering the United States through a small number 23 of states at the southern border, making a narrowly tailored injunction appropriate. The 2019 Rule will 24 apply to all applicants for naturalization across the United States, and a nationwide remedy is necessary. 25 CONCLUSION 26 27 28 For the foregoing reasons, and for the reasons stated in Plaintiffs’ Motion (Dkt. 25), Defendants’ 2019 Rule should be preliminarily enjoined nationwide. 11 See Am. Compl. ¶¶ 59, 101; Kelly-Stallings Decl. ¶ 22. - 15 - PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 21 of 22 1 Dated: November 25, 2019 ___________________________________ MAYER BROWN LLP 2 By: /s/ Lauren R. Goldman Lauren R. Goldman (pro hac vice) Matthew D. Ingber (pro hac vice) Niketa K. Patel (pro hac vice) Maura K. McDevitt* Nicolas E. Rodriguez (pro hac vice) Luc W. M. Mitchell (pro hac vice) mingber@mayerbrown.com lgoldman@mayerbrown.com npatel@mayerbrown.com mmcdevitt@mayerbrown.com nerodriguez@mayerbrown.com lmitchell@mayerbrown.com 1221 Avenue of the Americas New York, New York 10020-1001 Telephone: (212) 506-2500 Facsimile: (212) 849-5973 3 4 5 6 7 8 9 10 11 14 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 15 PROTECT DEMOCRACY PROJECT 16 By: /s/ Jessica Marsden Jessica Marsden (pro hac vice) jess.marsden@protectdemocracy.org 510 Meadowmont Village Circle, No. 328 Chapel Hill, North Carolina 27517 Telephone: (202) 579-4582 Facsimile: (929) 777-8428 12 13 17 18 19 20 Jamila Benkato (CA Bar No. 313646) jamila.benkato@protectdemocracy.org 2020 Pennsylvania Avenue, Suite 163 Washington, D.C. 20006 Telephone: (202) 579-4582 Facsimile: (929) 777-8428 21 22 23 Benjamin Berwick* ben.berwick@protectdemocracy.org 15 Main St., Suite 312 Watertown, Massachusetts 02472 Telephone: (202) 579-4582 Facsimile: (929) 777-8428 24 25 26 27 Rachel Goodman* rachel.goodman@protectdemocracy.org 115 Broadway, 5th Floor 28 - 16 - PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC Case 3:19-cv-07151-MMC Document 52 Filed 11/25/19 Page 22 of 22 New York, New York 10006 Telephone: (202) 579-4582 Facsimile: (929) 777-8428 1 2 ASIAN AMERICANS ADVANCING JUSTICE AAJC 3 4 By: /s/ Niyati Shah Niyati Shah (pro hac vice) Marita Etcubanez* nshah@advancingjustice-aajc.org metcubanez@advancingjustice-aajc.org 1620 L Street, NW, Suite 1050 Washington, D.C. 20036 Telephone: (202) 815-1098 Facsimile: (202) 296-2318 5 6 7 8 9 PETER S. HOLMES Seattle City Attorney 10 By: /s/ Erica R. Franklin Erica R. Franklin* Assistant City Attorney Peter S. Holmes* Seattle City Attorney erica.franklin@seattle.gov peter.holmes@seattle.gov Seattle City Attorney’s Office 701 Fifth Avenue, Suite 2050 Seattle, Washington 98104 Telephone: (206) 684-8200 Facsimile: (206) 684-8284 11 12 13 14 15 16 17 18 Attorneys for Plaintiffs 19 * Pending pro hac vice admission 20 21 22 23 24 25 26 27 28 - 17 - PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION, CASE NO. 3:19-CV-07151-MMC