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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
CASA DE MARYLAND, INC., et al
Plaintiffs,
v. Civil No. 20-2118-PX
Mayorkas, et al
Defendant.
______
OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON THEIR HOMELAND SECURITY ACT CLAIM AS TO THE BROADER EAD RULE AND TO MODIFY THE PRELIMINARY INJUNCTION
______
June 3, 2021 JONATHAN F. LENZNER Acting United States Attorney
Jane E. Andersen (Bar No. 802834) Assistant United States Attorney 6500 Cherrywood Lane, Suite 200 Greenbelt, Maryland 20770 301-344-4433 [email protected] Counsel for Defendants
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TABLE OF CONTENTS
TABLE OF CONTENTS ...... i INTRODUCTION ...... 1 ARGUMENT IN OPPOSITION ...... 1 I. ARGUMENT IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON THE BROADER EAD RULE ...... 1 A. Standard of Review ...... 1 B. Plaintiffs Have Failed to Establish Standing With Sufficient Evidence to Challenge the Broader EAD Rule ...... 2 i. The Plaintiff Organizations Have Not Demonstrated a Cognizable Injury in Fact Due to the Promulgation of the Broader EAD Rule ...... 2 ii. CASA and ASAP Have Not Supported Their Motions With Sufficient Evidence to Support Standing on Behalf of Their Membership ...... 4 C. Chad Wolf Served as Acting Secretary of Homeland Security Pursuant to the Homeland Security Act ...... 7 i. Order of Succession Prior to Section 113(g)(2) of the Homeland Security Act ...... 8 ii. Section 113(g)(2) of the Homeland Security Act ...... 9 iii. Ms. Nielsen’s § 113(g)(2) Order Controlled When She Resigned ...... 10 II. ARGUMENT IN OPPOSITION TO PLAINTIFFS’ MOTION FOR MODIFICATION OF THE PRELIMINARY INJUNCTION...... 14 A. Legal Standard ...... 14 B. Circumstances Have Not Significantly Changed to Warrant a Modification of the Preliminary Injunction ...... 15 i. Vacatur of CASA v. Trump Does Not Require a Modification of the Preliminary Injunction ...... 15 ii. A Nationwide Injunction of the Timeline Repeal Rule Would Not Improve Processing Times for CASA and ASAP Members ...... 17 C. A Modification is Otherwise Unwarranted Under the Winter Factors ...... 20 i. The Timeline Repeal Rule Should Not be Expanded in Scope ...... 21 ii. Additional Provisions in the Broader EAD Rule Should Not be Enjoined ...... 24 iii. Additional Factors Warrant the Court Exercise Its Discretion to Deny Plaintiffs’ Motion ...... 26 CONCLUSION ...... 26
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INTRODUCTION
Plaintiffs CASA de Maryland, Asylum Seeker Advocacy Project, Centro Legal de la Raza, Oasis
Legal Services, and Pangea Legal Services seek summary judgment on their Homeland Security Act claim related to “Asylum Application, Interview, and Employment Authorization for Applicants,” 85
Fed. Reg. 38,532-38,628 (June 26, 2020) (“Broader EAD Rule”) arguing that all named Plaintiffs have established standing and that Chad Wolf’s tenure as Acting Secretary violated the Homeland Security
Act. (ECF No. 107 as modified by ECF No. 118). Plaintiffs also seek to modify the preliminary injunction with respect to the “Removal of 30-Day Processing Provision for Asylum Applicant-
Related Form I–765 Employment Authorization Applications,” 85 Fed. Reg. 37,502-37,546 (June 22,
2020) (“Timeline Repeal Rule”) so that the rule is enjoined not just to CASA and ASAP members, but is enjoined nationwide. (ECF No. 107 as modified by ECF No. 118). Defendants now submit this opposition to Plaintiffs’ motions and respectfully request that the motions be denied for the reasons addressed below.
ARGUMENT IN OPPOSITION
I. ARGUMENT IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON THE BROADER EAD RULE
A. Standard of Review
Summary judgment shall only be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro.
56(a); Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003). A party must support a factual assertion by, inter alia, citing to particular parts of materials in the record, including affidavits or declarations.
Fed. R. Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). While this Court has made preliminary findings in this case, these findings do not constitute law of the case and does not
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“preclude the parties from litigating the merits.” Metro. Reg'l Info. Sys. v. Am. Home Realty Network, Inc.,
948 F. Supp. 2d 538, 551 (D. Md. 2013) (compiling cases). Similarly, the law of the case doctrine will
generally not be applied “where the prior holdings were made on a different standard of review.” Id.
B. Plaintiffs Have Failed to Establish Standing With Sufficient Evidence to Challenge the Broader EAD Rule
Under Article III, a plaintiff must “demonstrate standing for each claim he seeks to press and
for each form of relief that is sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017).
Standing “is determined by considering the relevant facts as they existed at the time the action was
commenced.” Republic Bank & Tr. Co. v. Kucan, 245 F. App’x 308, 310 (4th Cir. 2007) (citing Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180 (2000)). Additionally, “an actual controversy
must be extant at all stages of review, not merely at the time of the complaint is filed.” Carter v. Fleming,
879 F.3d 132, 137 (4th Cir. 2018).
The Plaintiff organizations now ask the Court to hold that they have established standing with
respect to the Broader EAD Rule based upon 1) a purported change of controlling case law; and 2)
additional declarations submitted in support of this motion. Neither provides a basis for this Court to
alter its prior ruling. This Court also found preliminarily that CASA and ASAP had alleged sufficient facts to establish standing on behalf of their members. Now at the summary judgment stage, however, both CASA and ASAP have failed to support their motion with sufficient facts to permit this Court to find standing on this basis.
i. The Plaintiff Organizations Have Not Demonstrated a Cognizable Injury in Fact Due to the Promulgation of the Broader EAD Rule
For an organization to have Article III standing on its own behalf (rather than on behalf of its
members), the organization must satisfy the same Article III standing requirements that apply to
individuals. Havens Realty Corp. v. Coleman, 455 U.S. 363, 378–79 (1982). Standing “requires an injury
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in fact that is caused by the challenged conduct and is likely to be redressed by a favorable decision.”
6th Cong. Dist. Republican Comm. v. Alcorn, 913 F.3d 393, 405 (4th Cir. 2019). Plaintiffs must also show that their purported injury is “fairly traceable to the challenged action of the defendant[s], and not the result of the independent action of some third party not before the court.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (alterations and citations omitted). Standing may not be had when the harm alleged
is based upon voluntary decisions made by an organization as to how to allocate their own resources.
Lane v. Holder, 703 F.3d 668, 675 (4th Cir. 2012).
This Court made a preliminary finding that the Plaintiff organizations lacked standing to bring
this action on their own, holding that “financial strain” does not constitute a cognizable injury.” (ECF
No.69 at 20). Plaintiffs ask the Court to find standing based upon a change in controlling case law.
Specifically, on August 5, 2020, the Fourth Circuit issued a panel decision in CASA v. Trump, 971 F.3d
220 (4th Cir. 2020) (“CASA v. Trump”), which this Court relied upon, in part, when issuing the
preliminary injunction. On December 3, 2020, the Fourth Circuit granted en banc review of the panel’s
decision. CASA de Md. v. Trump, 981 F.3d 311 (4th Cir. 2020). By effect of the Local Rules, as soon
as en banc review was granted, the panel decision is deemed vacated.1 See Fourth Circuit L.R.A.P. 35(c)
(Dec. 9, 2019). Thus, Plaintiffs argue that the vacatur of this decision “removed limitations on what
constitutes a cognizable injury for Havens standing purposes.” (ECF No. 107-1 at 24). But Havens Realty
Corp. v. Coleman 455 U.S. 363 (1982), was binding precedent both before and after the preliminary
injunction was entered. And this Court previously rejected Plaintiffs’ argument that “they have
suffered the same type of direct injury that conferred standing in Havens Realty Corp. v. Coleman.” See
ECF No. 69 at 20. In doing so, the Court relied on Lane v. Holder, 703 F.3d 668, 674 (4th Cir. 2012),
1 The appeal was ultimately voluntarily dismissed. 3
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in holding that “financial strain…does not constitute a cognizable injury” in this context. Id. at 20-21.
Indeed, “[t]o determine that an organization that decides to spend its money on educating members, responding to member inquiries, or undertaking litigation in response to legislation suffers a cognizable injury would be to imply…that any sincere plaintiff could bootstrap standing by expending its resources in response to actions of another.” (ECF No. 69 at 21 citing Lane, 703 F.3d at 675). The
Court’s only reliance on CASA v. Trump with respect to the issue of organizational standing was when
the Court stated that “[a]ny potential doubt as to the proper reading or scope of Lane is extinguished
by the Fourth Circuit’s recent decision in CASA.” Id. at 21. Thus, because this Court relied principally
on the binding precedent of Havens and Lane, which remains good law, the Court should reject
Plaintiffs’ suggestion that the vacatur of CASA v Trump requires the Court to come to a different
conclusion than it did at the preliminary injunction stage.
Additionally, Plaintiffs seek to rely on the declarations previously provided to support standing
see ECF No. 24-4 ¶¶ 29-30; ECF No. 24-5 ¶ 35; ECF No. 24-6 ¶¶ 20-23; ECF No. 24-7 ¶ 36; ECF
No. 24-8 ¶ 25, as well as the declaration submitted in connection with this motion. ECF No. 107-4,
107-5, 107-6, and 107-7. For the same reasons that the Court found these allegations insufficient at
the preliminary injunction stage, so too should the Court find the allegations set forth in the
declarations filed in support of this motion insufficient.
ii. CASA and ASAP Have Not Supported Their Motions With Sufficient Evidence to Support Standing on Behalf of Their Membership
Before an organization may bring a lawsuit on behalf of its members, it first must establish
that it is a “traditional voluntary membership organization or the functional equivalent.” Hunt v. Wash.
State Apple Advert. Comm’n, 432 U.S. 333, 344 (1977). To establish indicia of membership, an
organization may show that its purported members: (i) elect the organization’s leadership; (ii) serve as
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the organization's leadership; and (iii) finance the organization’s activities, including the costs of
litigation. Id. at 344-45; Sorenson Communs., LLC v. FCC, 897 F.3d 214, 225 (D.C. Cir. 2018) (standing
was not found where the organization, inter alia, failed to disclose it was not funded by its members and “offered only conclusory and general assertions about the nature of the association.”).
A membership organization must show that (1) its members would otherwise have standing
to sue in their own right; (2) the interests at stake are germane to the organization’s purpose, and (3)
neither the claim asserted nor the relief requested requires participation of individual members in the
lawsuit. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). The
membership organization must also identify the specific applications of the challenged rules “that
threatens imminent and concrete harm to the interests of their members.” Summers v. Earth Island Inst.,
555 U.S. 488, 495 (2009). The Court may not rely upon the “organizations’ self-descriptions of their
membership” even where the harm appears likely. Id. at 499 (“Without individual affidavits, how is
the court to assure itself that the Sierra Club, for example, has ‘thousands of members’ who ‘use and
enjoy the Sequoia National Forest’?”); see also S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand
at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013).
The Court found at the preliminary injunction stage that Plaintiffs CASA and ASAP have
demonstrated representational standing vis-à-vis their individual members “[o]n the current
record…when construing the facts alleged most favorably to the Plaintiffs” with respect to the
Broader EAD Rule. (ECF No. 69 at 22). But the standard of proof required at the preliminary
injunction stage differs greatly from the standard that is now applied on summary judgment. Indeed,
while at the preliminary motion stage the Court was required to accept Plaintiffs’ allegations as true,
Plaintiffs now must support their allegations with actual evidence. Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992). Here, CASA and ASAP fail to do so.
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ASAP asserts it has had over 4,000 members since its establishment and that it adds an average
of 70 new members per month. (ECF No. 24-5 at ¶¶ 5, 8). ASAP asserts that it provides daily support
to its members who are in various stages of their immigration proceedings. (ECF No. 24-5 at ¶¶ 9,
10). And ASAP asserts that its “members set the priorities and goals for our systemic reform and
advocacy work” and that ASAP staff “facilitates discussions among members about what advocacy
goals are important to them and should be a priority for ASAP.” (ECF No. 24-5 at ¶¶ 9, 10). ASAP
does not claim, however, that any of its “members” pay any fees, elect the organization’s leadership,
or have any voting rights. As such, ASAP has failed to meet its burden to establish that it is a true
membership-based organization or a functional equivalent of one as required by Hunt 432 U.S. at 344.
CASA alleges that “[s]ome members of CASA have seats on the organization’s board and participate in the organization’s Leadership Council and other committees” where members “provide ongoing input on, establish, and approve the organization’s long-term strategic priorities and polices.”
(ECF No. 24-4 at ¶ 7). CASA also alleged that its members pay a $35-$40 membership fee which gives
them access to free legal services, language classes, and vocational training. (ECF No. 24-4 at ¶ 8).
These facts are still insufficient to meet CASA’s burden of proof. CASA does not include a copy of
its bylaws, for example, in support of its motion, and does not demonstrate that any of its members
who are on the organization’s board have been impacted by the Broader EAD Rule. There is no
indication that the $35-$40 membership fee contributes in any way to CASA’s litigation efforts, as
opposed to just the classes it offers to its members.
Moreover, even assuming that CASA is a traditional membership organization, CASA has not
identified any members that have been, or will be, impacted by the Broader EAD Rule. Indeed, at the
preliminary injunction stage, CASA relied on the identification of two “members” H.V. and M.C.
(ECF No. 24-4 at ¶ ¶ 13, 25). Now at the summary judgment stage, however, CASA provides no
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further information about these two individuals, nor does it identify any additional members that would have standing to challenge the Broader EAD Rule. For example, it is unknown whether “H.V.” or “M.C.” have filed an asylum application, and if so, when. As such, it cannot be determined on the current record whether there is a current case or controversy with respect to these two members.
Indeed, both CASA and ASAP must establish that they have standing to bring this lawsuit on behalf of their “members” at the time the action was commenced, Republic Bank & Tr. Co. 245 F. App’x at
310, and that subsequent events have not rendered these claim moot. Carter 879 F.3d at 137. The evidence submitted by CASA and ASAP is insufficient to permit the Court to conclude that any of its identified members were a member at the time the lawsuit commenced and that any of these identified members have been injured, or likely will be impacted by the Broader EAD Rule in the future.
C. Chad Wolf Served as Acting Secretary of Homeland Security Pursuant to the Homeland Security Act Plaintiffs move for summary judgment on Count II of their Complaint with respect to the Broader EAD Rule asserting that Chad Wolf never properly served as Acting Secretary of Homeland Security pursuant to § 113 of the Homeland Security Act. (ECF No. 107-1 at 16-19). Plaintiffs rely on this Court’s preliminary finding that ASAP and CASA were likely to prevail on this claim, along with four out of district court judges who made similar findings. No appellate court has addressed this claim. Defendants now renew their argument that Chad Wolf was unlawfully serving as Acting Secretary at the time the Broader EAD rule was promulgated and respectfully request that this Court reconsider it prior finding. As addressed more fully below, it is respectfully submitted that this Court’s preliminary finding was flawed because it focuses on the wrong document—Revision 08.5 to DHS Delegation No. 106 instead of the Order signed by Secretary Nielsen. See ECF No. 69 at 40 (“But Delegation Order 00106 is plain, and the Government provides no support for this Court to look beyond the Order itself.”).
When then-Secretary Johnson signed Delegation No. 106 on December 16, 2016, Congress had not
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yet given the Secretary the power to designate an order of succession that would apply
“[n]otwithstanding” the FVRA. See National Defense Authorization Act for Fiscal Year 2017 Pub. L. No. 114-328, § 1903, 130 Stat. 2000 (2016) (codified at 6 U.S.C. § 113(g) (Dec. 23, 2016)). Thus, prior to April 9, 2019, Delegation No. 106 did not set an order of succession—it only served to delegate authority (something the Secretary did have power to do) and referenced the President’s designation under the Federal Vacancies Reform Act (“FVRA”). Thus, the moment Secretary Nielsen signed the Order on April 9, 2019, she, for the first time, set an order of succession under the Homeland Security Act. Similarly, Plaintiffs incorrectly state as a purported undisputed fact that “[o]n April 10, 2019, then-Secretary of Homeland Security Kirstjen Nielsen purported to amend the existing order of succession for the Office of the Secretary, Delegation No. 106, issued in 2016 by then-Secretary of Homeland Security Jeh Johnson. (ECF No. 107-3 at ¶ 9). This is factually and legally incorrect. Instead, Chad Wolf was lawfully serving as Acting Secretary when the Broader EAD Rule was promulgated. For an accurate statement of the authority supporting Chad Wolf’s appointment as Acting Secretary of Homeland Security, the Court is referred to the Declarations of Juliana Blackwell, Deputy Executive Secretary, within the Office of the Executive Secretary, DHS (Blackwell Decl.), and Neal J. Swartz, Associate General Counsel for DHS (Swartz Decl), previously filed at ECF Nos. 41-
1, 41-2. Additionally, a copy of DHS Orders of Succession and Delegations of Authorities for Named Positions, DHS Delegation No. 106, Revision No. 082 (Dec. 15, 2016) (“Revision 8”) is annexed hereto as Exhibit A and a copy of the Letter from Neal J. Swartz, Associate General Counsel for General Law, DHS, to Hon. Michael R. Pence, President of the Senate (Apr. 11, 2019) is annexed hereto as Exhibit B. i. Order of Succession Prior to Section 113(g)(2) of the Homeland Security Act
In 1998, Congress enacted the FVRA, 5 U.S.C. §§ 3345-3349d, to govern the designation of
acting officials to perform the duties of a Senate-confirmed executive office when the incumbent
2 Previously, the Court was provided only with Revision Numbers 8.5 and 8.6. 8
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officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” Id. §
3345(a). On December 9, 2016, the President issued an executive order under the FVRA that
prescribed an order of succession for the office of Secretary of Homeland Security. See Executive
Order 13753, 81 Fed. Reg. 90667 (Dec. 9, 2016) (EO 13753). At that time, the Secretary did not have
any authority to designate who could serve as Acting Secretary in the event of a vacancy. The Secretary
did have (and still has), however, the distinct authority to “delegate any of the Secretary’s functions”
to other persons in the Department. 6 U.S.C. § 112(b)(1).
Six days later, then-Secretary Jeh Johnson signed a document the agency uses to compile
orders of succession and delegations of authority for various positions in DHS. See Ex. A (signed at
page 3). Part II.A of that revised document states that “[i]n case of the Secretary’s death, resignation,
or inability to perform the functions of the Office, the orderly succession of officials is governed by
[EO] 13753.” Id. at 1, pt. II.A. Importantly, this paragraph is not an Order of the Secretary because the
Secretary had no authority to prescribe an order of succession on that date. Instead, the document only accurately reflects that the President’s list in EO 13753 would control the order of succession. In
Part II.B, however, Mr. Johnson exercised his delegation authority under 6 U.S.C. § 112(b)(1), “hereby delegat[ing]” to enumerated officials “[his] authority. . . in the event [he is] unavailable to act during a disaster or catastrophic emergency.” Id. at 1, pt. II.B. The list of officials to whom Mr. Johnson delegated his authority was set out in Annex A to Delegation 106. Id. at A-1.
ii. Section 113(g)(2) of the Homeland Security Act The FVRA is generally the “exclusive means for temporarily authorizing an acting officer to
perform the functions and duties” of a Senate-confirmed office. 5 U.S.C. § 3347(a). But the FVRA recognizes an exception for statutory provisions that “expressly . . . authorize[] . . . the head of an Executive department[] to designate an officer or employee to perform the functions and duties of a
specified office temporarily in an acting capacity.” Id. § 3347(a)(1)(A). In the National Defense 9
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Authorization Act for Fiscal Year 2017, Congress added section 113(g)(2) to the Homeland Security Act (title 6 United States Code), which states, “Notwithstanding chapter 33 of Title 5, the Secretary may designate such other officers of the Department in further order of succession to serve as Acting Secretary.” The HSA authorizes the Secretary to designate an order of succession for the Secretary’s office that applies when the Secretary, Deputy Secretary, and Under Secretary for Management are unavailable. See 6 U.S.C. § 113(g)(1)–(2). These provisions apply “[n]otwithstanding” the FVRA. Id. Congress added § 113(g)(2)’s designation authority on December 23, 2016. See Pub. L. No. 114-328, § 1903, 130 Stat. 2000, 2672.
iii. Ms. Nielsen’s § 113(g)(2) Order Controlled When She Resigned As addressed above, the HSA gives the Secretary separate authority to designate an order of succession in the event that his office becomes vacant (§ 113(g)(2)) and to designate an order of delegation of functions of his office (§ 112(b)(1)).
Ms. Nielsen resigned on April 10, 2019. See Blackwell Decl. ¶ 6 (ECF Nos. 41-1). On April 9, she issued an order titled “Amending the Order of Succession in the Department of Homeland
Security.” See Blackwell Decl. at Ex. 3 (ECF Nos. 41-1 at 69-70), Designation of an Order of Succession for the Secretary (Apr. 9, 2019) (“April 2019 Order”). The document that then-Secretary Nielsen signed explains no fewer than five times that she was designating a new “order of succession.”
Id. The order states:
By the authority vested in me as Secretary of Homeland Security, including the Homeland Security Act of 2002, 6 U.S.C. § 113(g)(2), I hereby designate the order of succession for the Secretary of Homeland Security as follows:
Annex A . . . of Delegation No. 00106 is hereby amended by striking the text of such Annex in its entirety and inserting the following in lieu thereof:
Annex A. Order for Delegation of Authority by the Secretary of the Department of Homeland Security.
[A numbered list of 18 officials appears here].
No individual who is serving in an office herein listed in an acting capacity, by virtue of so serving, shall act as Secretary pursuant to this designation. 10
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Id. at 2. By its terms, the April 2019 Order “designate[s] the order of succession for the Secretary”
under 6 U.S.C. § 113(g)(2), the provision that authorizes the Secretary to designate an order of
succession for her office. It designates the order of succession by revising the list of officials in Annex
A, which previously had applied only to delegations of authority under § 112(b)(1) and by using the
revised list as the new order of succession. Importantly, the April 2019 Order superseded the order of
succession previously prescribed by EO 13753. It did not amend any prior order of succession issued by former Secretary Johnson because he had no authority to issue an order of succession. Thus, Mr.
McAleenan, the Senate-confirmed Customs and Border Protection Commissioner, became Acting
Secretary under Ms. Nielsen’s order.3
This Court, and other district courts4, have mistakenly relied on the wrong document, Revision
8.5 to DHS Delegation 106, to hold that Mr. McAleenan unlawfully assumed the position of Acting
Secretary primarily. See ECF No. 69 at 40. But Ms. Nielsen—the first agency official with the authority
to designate an order of succession, see 6 U.S.C. § 113(g)(2)—never signed Revision 8.5 (or any other revision) to DHS Delegation 106. Ms. Nielsen’s signed order, not Revision 8.5, is the controlling
document.
First, even if Revision 8.5 were relevant, it would not support Plaintiffs’ claim. DHS Delegation
3 The first two positions in Ms. Nielsen’s order—the Deputy Secretary and Under Secretary for Management—were at the time and still are vacant.
4 Immigrant Legal Res. Ctr. v. Wolf, No. 20-cv-05883-JSW, 2020 WL 5798269, at *7–8 (N.D. Cal. Sept. 29, 2020) (“ILRC”); Batalla Vidal v. Wolf, Nos. 16-CV-4756 (NGG) (VMS), 17-CV-5228 (NGG) (RER), 2020 WL 6695076, at *8–9 (E.D.N.Y. Nov. 14, 2020); La Clinica de la Raza v. Trump, No. 19- CV-04980-PJH, 2020 WL 7053313, at *6–7 (N.D. Cal. Nov. 25, 2020); Pangea Legal Servs. v. DHS, Nos. 20-cv-09253-JD, 20-cv-09258-JD, at *4 (N.D. Cal. Jan. 8, 2021). See also Nw. Immigrant Rts. Project v. USCIS, No. CV 19-3283 (RDM), 2020 WL 5995206, at *14 (D.D.C. Oct. 8, 2020) (“assum[ing], without deciding,” the same). 11
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No. 106 was last signed by then-Secretary Johnson on December 16, 2016. See Revision 8 at 3. The day after Ms. Nielsen designated her order of succession, the agency updated DHS Delegation 106 and issued Revision 8.5. See Revision 8.5 at 1; Swartz Decl. ¶ 4 (ECF Nos. 41-2). The update did not accurately capture Ms. Nielsen’s order: it did not change Part II.A, which still said that EO 13753 would govern the order of succession if a Secretary resigned. Id. at 1, pt. II.A. That Part II.A was not correctly updated as an administrative matter to reflect that Ms. Nielsen’s order superseded EO 13753 does not change the legal effect of her signed order. Indeed, modifications to an order of succession
are effective immediately upon the Secretary’s approval and signature, and not when those decisions
are transposed into DHS Delegation No. 106 at a later time. See Swartz Decl. ¶ 4 (ECF Nos. 41-2).
Second, this Court (like other courts) overlooked that Part II.A of DHS Delegation No. 106
did not itself prescribe the order of succession; it merely identified the document (EO 13753) that did
so. See Exhibit A. There was thus no need for Ms. Nielsen to amend the text of Part II.A.5 By
designating an order of succession under 6 U.S.C. § 113(g)(2), Ms. Nielsen’s order superseded EO
13753 as a matter of law. Nothing more was required.
Third, this and other courts concluded that Ms. Nielsen’s order applied only when the Secretary
was temporarily unavailable because of a disaster or emergency because the April 2019 Order merely
revised Annex A of Delegation No. 106—but such a holding conflates orders of succession and
delegations of authority. Prior to when Ms. Nielsen issued her order, Annex A listed the officials to
whom the Secretary had temporarily delegated authority under § 112(b)(1) during times of unavailability
5 When Mr. McAleenan later issued a new order of succession on November 8, 2019, his order amended the text of Part II.A of Delegation No. 106. See Blackwell Decl. ¶ 5, Ex. 4 (ECF No. 41-1 at 71), Amendment to the Order of Succession for the Secretary (Nov. 8, 2019) (“November 2019 Order”). The amending language merely provided additional clarity about the operative order of succession; it did not (and could not) change the prior legal effect of Secretary Nielsen’s order.
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due to disaster or catastrophic emergency. See Ex. A at II.B. But Ms. Nielsen’s order put the list of officials in Annex A to an additional use under a different statutory authority that Mr. Johnson did not possess. The April 2019 Order expressly made the revised Annex A the order of succession under
§ 113(g)(2), which applies in cases of “absence, disability, or vacancy in office,” 6 U.S.C. § 113(g)(1).
It is submitted that focusing solely on the language of the order that amends Annex A while ignoring the order’s critical language is incorrect as a matter of law. See, e.g., April 2019 Order at 2 (“By the authority vested in me as Secretary of Homeland Security, including . . . 6 U.S.C. § 113(g)(2), I hereby designate the order of succession for the Secretary of Homeland Security as follows . . . .” (emphases added)); id. (noting the order is a “designation” of who “shall act as Secretary”).
In sum, Ms. Nielsen’s April 2019 Order governed the order of succession when she resigned.
DHS’s contemporaneous official actions confirm that understanding of the order. Ms. Nielsen personally swore in Mr. McAleenan as Acting Secretary under her order,6 and DHS treated Mr.
McAleenan as the Acting Secretary and identified § 113(g)(2) as the authority for the acting designation in its official notice of his acting service. See Ex. B. Thus even if the order’s terms were ambiguous, which they are not, that contemporaneous understanding would be entitled to significant weight. Cf.
Kisor v. Wilkie, 139 S. Ct. 2400, 2415–18 (2019).
As the lawfully serving Acting Secretary, then-Acting Secretary McAleenan designated a new order of succession on November 8, 2019, pursuant to his authority under 6 U.S.C. § 113(g)(2).
Blackwell Decl. at Ex. 4 (ECF No. 41-1 at 71). This placed the Under Secretary for Strategy, Policy,
6 CBP Commissioner Kevin McAleenan sworn-in as the Acting DHS Secretary; Opens New DHS Headquarters, Border Observer, https://theborderobserver.wordpress.com/2019/04/11/cbp-comm issioner-kevin-mcaleenan-sworn-in-as-the-acting-dhs-secretary/ (last visited June 3, 2021); Farewell Message from Secretary Kirstjen M. Nielsen (Apr. 10, 2019), https://www.dhs.gov/news/2019/04/ 10/farewell-message-secretary-kirstjen-m-nielsen (last visited June 3, 2021) (Ms. Nielsen’s farewell message to DHS noting that Mr. McAleenan “will now lead DHS as your Acting Secretary”).
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and Plans next in the order of succession for Acting Secretary, after the positions of the Deputy
Secretary, Under Secretary for Management, and CBP Commissioner. Id. On November 13, 2019, then-Acting Secretary McAleenan resigned from the Department. Mr. Chad Wolf, the Senate-
confirmed Under Secretary for Strategy, Policy, and Plans, became Acting Secretary, because the
Deputy Secretary, Under Secretary for Management, and Commissioner of CBP positions were
vacant. As such, Acting Secretary Wolf was lawfully serving in that position as of November 13, 2019.7
II. ARGUMENT IN OPPOSITION TO PLAINTIFFS’ MOTION FOR MODIFICATION OF THE PRELIMINARY INJUNCTION
A. Legal Standard
Reconsideration8 of a judgment “is an extraordinary remedy which should be used sparingly.”
Ross v. Early, 899 F. Supp. 2d 415, 420-421 (D. Md. 2012) (quoting Pac. Ins. Co. v. Am. Nat'l Fire Ins.
Co., 148 F.3d 396, 403 (4th Cir. 1998)). A district court may amend a prior decision (1) to accommodate
an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3)
to correct a clear error of law or prevent manifest injustice. Mayfield v. Nat’l Ass’n for Stock Car Auto
Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012); United States ex rel. Becker v. Westinghouse Savannah River
Co., 305 F.3d 284, 290 (4th Cir. 2002). “Mere disagreement” with a decision does not support a motion
7 The Defendants notes that on November 16, 2020, Acting Secretary Wolf “ratif[ied] any and all actions involving delegable duties that [he had] taken from November 13, 2019, through November 14, 2020.” Ratification of Department Actions, 85 Fed. Reg. 75223 (Nov. 16, 2020). For the purposes of this motion only, however, this argument is not being advanced here.
8 As plaintiffs note, the Fourth Circuit has not articulated what rule governs a motion to modify a preliminary injunction. Where a party seeks to modify an order or judgment, and, where plaintiffs’ motion would otherwise be untimely under Rule 54(b) or 59(e), here, it would be appropriate to consider the motion as one made pursuant to Rule 60(b). Favia v. Ind. Univ., 7 F.3d 332, 338 (3d Cir. 1993). Regardless, the standard for such motions made pursuant to Rule 54(b), 59(e), or 60(b) are the same. Brightview Grp., LP v. Teeters, No. CV SAG-19-2774, 2020 WL 4003168, at *2 (D. Md. July 15, 2020).
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for reconsideration. United States ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th
Cir. 2002) (citing Hutchinson v. Staton, 994 F.2d 1076, 1082 (4th Cir. 1993); J.O.P. v. United States Dep't
of Homeland Sec., No. GJH-19-1944, 2020 U.S. Dist. LEXIS 239695, at *61 (D. Md. Dec. 21, 2020)
(“A motion to modify a preliminary injunction is meant only to relieve inequities that arise after the
original order.”).
Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear showing
that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).
To obtain (or modify) a preliminary injunction, moving parties must establish that (1) they are likely
to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary
relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Id. at
20. “[C]ourts considering whether to impose preliminary injunctions must separately consider each
Winter factor.” Pashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013).
B. Circumstances Have Not Significantly Changed to Warrant a Modification of the Preliminary Injunction
Plaintiffs seek modification of the preliminary injunction entered on September 11, 2020, based upon purported “changed circumstances.” First, Plaintiffs rely upon the vacatur of CASA v.
Trump, 971 F.3d 220 (4th Cir. 2020), as addressed above. Second, Plaintiffs argue that the preliminary injunction as implemented has “proven insufficient to prevent irreparable harm to Plaintiffs.” For the reasons addressed below, neither of these reasons provide a sufficient basis for the Court to modify the preliminary injunction, and additional factors support denying Plaintiffs’ request.
i. Vacatur of CASA v. Trump Does Not Require a Modification of the Preliminary Injunction
First, Plaintiffs ask this Court to reconsider its prior ruling with respect to whether the Plaintiff
organizations have standing. For the same reasons set forth in Section I(B) above, this Court already
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rejected Plaintiffs’ argument that “they have suffered the same type of direct injury that conferred
standing in Havens Realty Corp. v. Coleman.” See ECF No. 69 at 20. Even if the Court finds that the
Plaintiff organizations have standing on their own behalf, such a finding would not support a
modification of the preliminary injunction with respect to the Timeline Repeal Rule. The preliminary
injunction already applies to all CASA and ASAP members—including individuals who become
“members” after the commencement of this lawsuit. Also, Plaintiffs Centro Legal de la Raza, Oasis
Legal Services, and Pangea Legal Services have failed to allege, let alone prove, that their organization
would suffer irreparable harm absent an expansion of the preliminary injunction with respect to the
Timeline Repeal Rule. Instead, the declarations submitted in support of their motion relate only to purported harms the organizations face because of the promulgation of the Broader EAD rule.
Second, Plaintiffs argue that the vacatur of CASA v. Trump justifies this Court to broaden the scope of the preliminary injunction into a nationwide injunction. In contrast to this Court’s holding on organizational standing, this Court did find itself bound by CASA v. Trump related to the scope of the preliminary injunction. (ECF No. 69 at 64-65). Additionally, the Fourth Circuit recently issued a panel decision on January 8, 2021, holding that “[a] district court may issue a nationwide injunction so long as the court ‘mold[s] its decree to meet the exigencies of the particular case.’” HIAS, Inc. v.
Trump, 985 F.3d 309, 326 (4th Cir. 2021). Thus, while Fourth Circuit precedent permits a district court to issue a nationwide injunction in some circumstance, it is not required and is within the discretion of the district court.
Indeed, relying on South Carolina v. United States, 907 F.3d 742, 753 (4th Cir. 2018), Va. Soc’y for
Human Life, Inc. v. FEC, 263 F.3d 379, 393 (4th Cir. 2001), and Madsen v. Women’s Health Ctr., Inc., 512
U.S. 753, 765 (1994), this Court had determined, independently from CASA v. Trump, that while it had discretion to fashion the scope of the relief sought, it was also required to carefully address the
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circumstances of the case and should be no more burdensome than necessary. (ECF No. 69 at 62).
This is because even before CASA v. Trump, equitable principles required an injunction to “be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994). And the fact that this is an APA case does not require the Court to issue a nation-wide injunction. Virginia Soc’y for Human Life v. FEC, 263 F.3d 379,
393 (4th Cir. 2001) (“Nothing in the language of the APA ... requires us to exercise such far-reaching
power.”). Thus, while CASA v. Trump may have been vacated by virtue of the local rules, the principles
of equity, standing, and the scope of preliminary injunctions have not changed. Accordingly, although
this Court may have discretion to issue a nationwide injunction in some cases, this change does not
justify a modification to the preliminary injunction for the reasons discussed below.
ii. A Nationwide Injunction of the Timeline Repeal Rule Would Not Improve Processing Times for CASA and ASAP Members
Plaintiffs also argue that “the preliminary injunction, as implemented, is not affording even
Plaintiffs’ members the relief from irreparable harm that was the Court’s objective” and thus a
modification is warranted. (ECF No. 107-1 at 26). What Plaintiffs are referring to is a report filed in
Rosario v. USCIS, No. 1500818-JLR (W.D. Wash.), in which USCIS acknowledged that the processing
times for Rosario class members’ initial I-765 applications had increased since August 21, 2020. (ECF
No. 108.3). Plaintiffs argument does not, however, justify a modification of the preliminary injunction
in this case because it is outside the scope of this action and a modification would not otherwise
resolve Plaintiffs’ concerns.
For context, on July 16, 2018, an injunction was entered in Rosario v. USCIS, No. 1500818-
JLR (W.D. Wash.), requiring that USCIS adjudicate initial applications for asylum-related
authorization documents within 30-days, as set forth by prior 8 C.F.R. § 208.7(a)(1). While this portion
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of 8 C.F.R. § 208.7(a)(1) was amended effective August 21, 2020, this Court enjoined the amendment
as to CASA and ASAP members. Accordingly, USCIS now considers individual CASA and ASAP
members who filed an asylum-based initial Form I-765 Application for Employment Authorization
on or after August 21, 2020 to be potential class members in the Rosario litigation whose applications
must be adjudicated within the 30-day timeline. Further, the Court in Rosario adopted an
Implementation Plan which includes a dispute resolution mechanism for “individual cases that remain pending beyond 30-days.” (ECF No. 108.4 at 5).
Accordingly, any issues concerning processing delays regarding initial I-765 applications filed
by CASA and ASAP members are outside the scope of this lawsuit. This lawsuit was filed to determine
whether the amendment to 8 C.F.R. § 208.7(a)(1) was properly promulgated, not how USCIS was
administering the rule. See J.O.P. v. United States Dep’t of Homeland Sec., No. GJH-19-1944, 2020 U.S.
Dist. LEXIS 239695, at *80 (D. Md. Dec. 21, 2020) (“Plaintiffs may not raise new claims through
motions without amending their complaint.”). Instead, compliance with the 30-day processing
deadline is specifically addressed in the Rosario litigation. Indeed, on March 25, 2021 counsel for Rosario
class members filed a motion for contempt and sanctions (ECF No. 171). The parties submitted a joint status report on May 27, 2021 to provide updates to the Court. A copy of the May 27, 2021 status report is annexed hereto as Exhibit C. In the joint status report, USCIS reported that its efforts to reduce the backlog of initial (C)(8) applications filed by CASA and ASAP members has continued to reflect progress but has not yet fully eliminated the backlog. See Ex. C at 1. By order dated May 28,
2021, the Rosario Court denied without prejudice the motion for civil contempt. A copy of the May
28, 2021 Order is annexed hereto as Exhibit D. The Rosario plaintiffs are permitted to renew their
motion “if Defendants do not reach substantial compliance with the court’s permanent injunction
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within 120 days….” Ex. D at ¶ 1. Thus, the proper forum for addressing processing delays is with the Rosario Court.
Further, expanding the scope of the preliminary injunction would not improve processing times for CASA and ASAP members. Plaintiffs appear to believe that a nationwide injunction would accelerate processing times based upon the fact that the Agency has had to manually review9 all initial
applications that have not paid the biometrics fee to determine evidence of membership. (107-1 at
26). While it is disputed that this manual review now delays the adjudication of the applications in any
significant way, this argument has been rendered moot. This is because USCIS developed an
automated utility to examine electronic evidence filed with an application, which increases efficiency
by reducing the time it takes for cases to move from intake to adjudication-readiness and reducing
manual tracking and complexity in tasking out case assignments. See Nolan Declaration dated June 3,
2021 at ¶ 20, annexed hereto as Exhibit E and Exhibit C at 2. Thus, the manual review process is not
a sufficient basis to justify a modification of a preliminary injunction. Moreover, other measures have
9 Notably, the reason that USCIS had to incorporate this manual review when this Court issued the preliminary injunction is that Plaintiff Organizations CASA and ASAP—despite filing this lawsuit on behalf of all their members—stated that they have no way of identifying all of their members who may submit a C8 I-765 application (ECF No. 76). Thus, USCIS implemented operational changes to its intake system so that applicants could submit proof of membership and USCIS could identify members on its own. (ECF No. 76). Moreover, while it is true that this manual review process was more time consuming than processing prior to this Court’s injunction—this is only one of the challenges USCIS faces. Other reasons for the processing delays have included the agency’s financial challenges, the COVID-19 pandemic, and processing changes related to technological updates, as explained in detail to the Rosario Court. (ECF No. 108-4). As described by Ernest DeStefano in a declaration submitted to the Rosario Court, applicants mail their C8 applications to the Dallas Lockbox, whereby a contracted servicer opens and processes the mailings within three business days. (ECF No. 108-5 at 3). Once processed, USCIS’s Office of Intake and Document Production (OIDP) manually reviews each initial C8 application submitted without a biometrics fee for membership in CASA or ASAP. As of April 12, 2021, this process—from receipt to completion of manual review—takes approximately six business days. (ECF No. 108-5 at 3). As such, while the manual review process has contributed to the processing times, it does not currently add a significant amount of time.
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been put in place to improve the adjudication times of C8 applications from CASA/ASAP members.
For example, in addition to the automated utility technology addressed above, the task of scanning
certain physical photographs submitted as part of an application, which is a labor-intensive task, was
manually completed on an as needed basis at the Texas Service Center, but will now be conducted by
USCIS’s Office of Intake and Document Production (OIDP) on all applications, allowing for further
efficiency. See Ex. E at ¶ 19. And recently, trained officers from the Nebraska Service Center (NSC)
were assigned to adjudicate some initial C8 applications from the Texas Service Center’s queue. See
Ex. E ¶ 14.
Finally, if the Court requires the Agency to adjudicate C8 applications from all initial filers,
instead of those just submitted by CASA/ASAP members, within 30 days, this would necessarily
expand the number of applications it must adjudication within 30 days with the same limited resources
as addressed below. For example, over the last 24 months, USCIS has received on average
approximately 18,700 initial C8 applications per month. See Ex. E ¶ 12. As such, an expansion of the preliminary injunction would not provide CASA and ASAP members additional relief, and may actually create additional challenges for the agency to provide relief to CASA and ASAP members.
C. A Modification is Otherwise Unwarranted Under the Winter Factors
Should this Court find that circumstances have sufficiently changed to permit this Court to
consider modifications, Defendants respectfully ask the Court to exercise its discretion, after
consideration of the Winter facts, and deny Plaintiffs’ motion to broaden the scope of the preliminary
injunction. Injunctions should be “no more burdensome to the defendant than necessary to provide
complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994). And
before granting injunctive relief, “courts ‘must balance the competing claims of injury and must
consider the effect on each party of the granting or withholding of the requested relief’” and “should
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pay particular regard for the public consequences in employing the extraordinary remedy of
injunction.” Winter v. NRDC, Inc., 555 U.S. 7, 24, 129 S. Ct. 365, 376-77 (2008) (citations omitted)
(“the District Court and the Ninth Circuit significantly understated the burden the preliminary
injunction would impose on the Navy’s ability to conduct realistic training exercises, and the
injunction’s consequent adverse impact on the public interest in national defense.”). When the
Government is a party, the balance of equities and the public interest should be considered together.
Nken v. Holder, 556 U.S. 418, 435 (2009). Here, Defendants submit that the balance of the equities
among Plaintiffs, any members of Plaintiffs’ organizations, the Agency, and the public suggest that
the Court should exercise its discretion and deny Plaintiffs’ request, and instead, permit the parties to
proceed on their anticipated cross-motions for summary judgment, which will be fully briefed on July
27, 2021. (ECF Nos. 119, 120).
i. The Timeline Repeal Rule Should Not be Expanded in Scope
Here, the Timeline Repeal Rule has already been enjoined as to all CASA and ASAP
members—including those who became members after the commencement of this action. Notably,
CASA had previously represented to the Court that it provides services to members in “Maryland,
Virginia, and Pennsylvania” who pay a $35-$40 membership fee. (ECF No. 24-4 at ¶ 8); see also CASA
Who we are, https://wearecasa.org/who-we-are/ (last visited June 3, 2021)(“We are a group of passionate, community-conscious people working to organize, advocate for, and expand opportunities for Latino and immigrant people in the state of Maryland, Pennsylvania, and Virginia.”). After the preliminary injunction was entered, however, it appears that CASA has now created a “national membership” option, which permits anyone to become a CASA “member” regardless of where they live, and without any requirement to pay a fee. Compare CASA National Membership, https://wearecasa.org/national-membership (last visited June 3, 2021), CASA Local Membership,
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https://wearecasa.org/local-membership (last visited June 3, 2021), and CASA Membership (August
14, 2020, Retrieved from Internet Archive Way Back Machine10,
https://web.archive.org/web/20200814115506/https://wearecasa.org/membership/ (August 14,
2020) (last visited June 3, 2021). As such, as addressed above, issuing a nationwide injunction as to the
Timeline Repeal Rule would not provide any relief to CASA, ASAP, or its members. And Plaintiffs
Centro Legal de la Raza, Oasis Legal Services, and Pangea Legal Services have failed to allege, let alone prove, that their organization would suffer irreparable harm absent an expansion of the preliminary injunction with respect to the Timeline Repeal Rule. This alone supports a denial of Plaintiffs’ motion.
In addition to the lack of “irreparable harm” absent a modification of the preliminary injunction, the balance of the equities otherwise favors against a modification. As detailed in the Nolan
Declaration annexed hereto as Exhibit E, USCIS and other applicants within the immigration system will certainly be adversely impacted if the preliminary injunction is modified.
First, as of May 31, 2021, there are approximately 47,409 initial C8 applications pending with
USCIS that were filed by nonmembers, which are currently not required to be proceeded within 30 days. Ex. E at 11. If the Court were to expand the preliminary injunction to require USCIS to adjudicate these pending applications within 30 days, USCIS would be unable to immediately comply with such an order. Alternatively, if the Court were to expand the preliminary injunction to apply only to newly filed initial C8 applications, there would be nothing to prevent all 47,409 pending applicants
from immediately resubmitting their initial C8 application, which would create a similar application
backlog that would prevent USCIS from immediately complying. Thus, a reasonable implementation
10 This Court may take judicial notice of web pages available through the WayBack Machine. See OptoLum, Inc. v. Cree, Inc., 490 F. Supp. 3d 916, 938 (M.D.N.C. 2020).
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plan would necessarily be required. Given these operational realities—and the fact that the parties have agreed to a summary judgment briefing schedule—the Court should exercise its discretion to deny Plaintiffs’ request to expand the scope of the preliminary injunction with respect to the Timeline
Repeal Rule.
Second, should this Court expand the scope of the preliminary injunction, USCIS would need to further divert limited agency resources in such a way that would have an adverse impact on other individuals with pending applications and petitions within the immigration system. Texas Service
Center adjudicators assigned to process initial C8 EAD applications are dedicating 100% of their adjudicative time to this workload. Ex. E at 16. This allocation of officer time occurs at the expense
of other immigration benefit form types which these officers ordinarily adjudicate. This finite pool of
adjudicators is also normally responsible for the following product lines: Form I-765 (employment
authorization other than the C8 category) with approximately 60,000 applications pending; Form I-
131 Application for Travel Document with over 52,000 applications pending; and Form I-821 Application
for Temporary Protected Status with approximately 2,000 applications pending. Id. Also, TSC typically
receives approximately 5,000 Form I-821D, Consideration of Deferred Action for Childhood Arrivals (DACA)
applications per year. Id. An expansion of the preliminary injunction to encompass all initial C8 EAD
applications would cause further significant delays in these other USCIS adjudication product lines
and harm individuals who are waiting for their adversely impacted applications to be adjudicated. Id.
Indeed, the agency is currently involved in litigation related to delays related to other types of
immigrant-based applications. Ex. E at ¶ 15. This factor weighs against expanding the preliminary
injunction. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312–13 (1982) (holding courts must “pay
particular regard for the public consequences in employing the extraordinary remedy of injunction.”).
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Finally, USCIS was required to operate under a hiring freeze from May 1, 2020 through March
31, 2021. Ex. E at¶ 13. During this time, the TSC has not been able to replace staff who have retired,
transferred, or otherwise moved on from their positions. Id. This employee attrition reduced the
number of available adjudicators. Id. Even with the hiring freeze recently lifted, the process of
announcing open positions (which may not rise to replacement level of prior staffing), interviewing,
and selecting new employees for onboarding, conducting background checks for selectees, and
training new hires means that it can take at least six months for new employees to be onboarded and
fully trained. Training for I-765 C8 adjudication, which generally takes over 60 days, includes formal
instruction, mentoring with an experienced officer, and supervisory review. Id. As such, it is not
possible, in the short term, for USCIS to hire and train new adjudicators in order to meet the demand
that would be required if the preliminary injunction is expanded. This too factors against expanding
the scope of the preliminary injunction.
ii. Additional Provisions in the Broader EAD Rule Should Not be Enjoined
For the same reasons the Court should deny Plaintiffs’ motion for summary judgment on the
Broader EAD Rule, the Court should similarly deny Plaintiffs’ motion to broaden the scope of the
preliminary injunction with respect to the Broader EAD Rule. This Court previously held that “the
scope of the relief is limited to the rules for which Plaintiffs have standing,” and that “any challenges
are limited to those rules for which the Plaintiffs have standing and otherwise meet the Winter
factors.”(ECF No. 69 at 66). Accordingly, the Court enjoined five provisions contained within the
Broader EAD rule and rejected Plaintiffs’ argument that the provisions are not severable. (ECF No.
69 at 68 (“Plaintiffs have not shown how the ‘whole structure’ of the Broader EAD Rules would be
undermined were the Court to enjoin only those rules for which Plaintiffs have demonstrated standing
and success on the merits”)).
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ASAP now identifies additional purported members who have been, or potentially may be, impacted by provisions of the un-enjoined Broader EAD Rules. (ECF No. 107-7 at ¶ ¶ 12-33). To establish irreparable harm, however, Plaintiffs must show more than the “possibility” of irreparable harm, but instead must show that irreparable harm is “likely” absent an injunction. Winter v. NRDC,
Inc., 555 U.S. 7, 22, (2008). “Bare allegations of what is likely to occur are of no value” because the district court must make the determination of “whether the harm will in fact occur.” Wisconsin Gas, 758
F.2d at 674 (emphasis original). Irreparable harm must be “both certain and great; it must be actual
and not theoretical,” and “the movant must show that the alleged harm will directly result from the
action which the movant seeks to enjoin.” Wisconsin Gas, 758 F.2d at 674.
Many of the allegations are based on hearsay and speculation. For example, Plaintiffs seek to
enjoin a provision making asylum seekers ineligible for EADs if they are convicted of a “particularly
serious crime” by citing to one member who has pending charges for driving under the influence and
is reported to be concerned that this charge, if she is convicted, will render her ineligible for an EAD.
(ECF No. 107-7 at ¶ 29). But the individual has not yet been convicted of anything. Winter, 555 U.S.
at 22 (holding the court may not issue “a preliminary injunction based only on a possibility of irreparable
harm … [since] injunctive relief [i]s an extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief.”). And to challenge the “recommended approval”
provision, Plaintiffs rely on an individual who has had his asylum application granted, and thus requires
no relief from this Court. (ECF No. 107-7 at ¶¶ 31-32). These claims fail to meet the requirement of demonstrating the likelihood of actual harm if the preliminary injunction is not expanded. USCIS further incorporates by reference its prior arguments as to why these un-enjoined provisions are unlikely to provide irreparable harm.
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iii. Additional Factors Warrant the Court Exercise Its Discretion to Deny Plaintiffs’ Motion
Finally, weighing against injunctive relief, the Government asks the Court to consider the fact that the challenged rules went into effect over eight months ago, see Sun Microsystems, Inc. v. Microsoft
Corp. (In re Microsoft Corp. Antitrust Litig.), 333 F.3d 517, 525 (4th Cir. 2003) (“Our application of this
exacting standard of review is even more searching when the preliminary injunctive relief ordered by
the district court is mandatory rather than prohibitory in nature”) and the fact that DHS plans to
engage in rulemaking related to the two rules at issue in this case consistent with section 3(b) of
Executive Order 14,012, “Restoring Faith in Our Legal Immigration Systems and Strengthening
Integration and Inclusion Efforts for New Americans,” 86 Fed. Reg. 8,277 (Feb. 2, 2021); (ECF No.
116). Moreover, the parties have agreed upon a briefing scheduled for cross-motions for summary judgment with respect to the Timeline Repeal Rule. These factors permit the Court to exercise its discretion to limit the relief sought by Plaintiffs. Indeed, Courts “need not grant the total relief sought by the applicant but may mold [their] decree to meet the exigencies of the particular case.” Trump v.
Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017).
CONCLUSION
For the forgoing reasons, Defendants request that the Court deny Plaintiffs’ motions in their
entirety. To the extent that the Court disagrees and expands the scope of the prelmianry injunction
with respect to the Timeline Rule, Defendants request the opportunity to submit a reasonable
implementation plan for the reasons set forth in the Nolan Declaration. See Ex. E.
Respectfully submitted,
Jonathan F. Lenzner Acting United States Attorney
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___/s/______Jane E. Andersen (Bar No. 802834) Assistant United States Attorney 6500 Cherrywood Lane, Suite 200 Greenbelt, Maryland 20770 301-344-4433 [email protected] Counsel for Defendants
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Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 1 of 35 EXHIBIT A Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 2 of 35
Department of Homeland Security DHS Delegation Number: 0106 Revision Number: 08 Issue Date: 12/15/2016 DHS ORDERS OF SUCCESSION AND DELEGATIONS OF AUTHORITIES FOR NAMED POSITIONS
I. Purpose
This is a succession order for named positions and a delegation of authority for the continuity of essential functions of officials at the Department of Homeland Security (DHS) in case of absence, the inability of the incumbent to act during disasters or catastrophic emergencies, or vacancies in offices. II. Succession Order/Delegation
A. In case of the Secretary’s death, resignation, or inability to perform the functions of the Office, the orderly succession of officials is governed by Executive Order 13753, amended on December 9, 2016.
B. I hereby delegate to the officials occupying the identified positions in the order listed (Annex A), my authority to exercise the powers and perform the functions and duties of my office, to the extent not otherwise prohibited by law, in the event I am unavailable to act during a disaster or catastrophic emergency.
C. The order of succession for the named positions, other than the Office of the Secretary, are provided in Annexes B through AD.
D. I hereby delegate authority to the officials occupying the identified positions in the orders listed in Annexes B through AD to exercise the powers and perform the functions and duties of the named positions in case of death, resignation, inability to perform, absence, or inability to act during a disaster or catastrophic emergency until that condition ceases.
1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 3 of 35
E. In terms of named positions in which appointment is required to be made by the President, by and with the advice and consent of the Senate (PAS), if positions are vacant as that term is used in the Federal Vacancies Reform Act of 1998, the First Assistant shall act as the incumbent until a successor is appointed, unless otherwise designated by the President. The individual serving in the position identified as the first to succeed is designated the “First Assistant” for the purposes of the Federal Vacancies Reform Act of 1998. If the First Assistant position is vacant, the next designated official in the order of succession may exercise all the powers, duties, authorities, rights, and functions authorized by law to be exercised by the incumbent, but may not perform any function or duty required by law to be performed exclusively by the office holder.
F. For all other positions that are not subject to the Federal Vacancies Reform Act of 1998, any official in the order provided for in the succession order may exercise all the powers, duties, authorities, rights, and functions authorized to be performed by the incumbent, to the extent not otherwise limited by law.
G. Only officials specifically designated in the order of succession for each of the named positions in Annexes B through AD are eligible, subject to modification in accordance with Section II.I. Unless formally appointed by the Secretary, persons appointed on an acting basis, or on some other temporary basis, are ineligible to serve as a successor; therefore, the order of succession would fall to the next designated official in the approved order of succession.
H. The prohibition on any re-delegation of powers, authorities, functions, and duties contained in Departmental Delegations, Directives, Management Directives, Instructions, Manuals, or similar internal documents is not applicable to restrict the authority of any individual who is exercising the authority of a vacant position under this Delegation. Such an individual shall, however, be bound by such Departmental Delegations, Directives, Management Directives, Instructions, Manuals, or similar internal documents, and shall not further re- delegate powers to any individual.
I. Each Annex may be updated separately. A Component head seeks modification of his/her order of succession by forwarding a proposed updated Annex to the Office of Operations Coordination (OPS), Continuity Division and the Office of the Under Secretary for Management (MGMT), Program Manager, Delegations and Directives; Annexes are processed by MGMT, in consultation with the Office of the General Counsel (OGC), for approval of the Secretary. At a minimum, the Annex is coordinated with OGC and the White House Liaison. Where possible, Component orders of succession should be at least three positions deep and geographically dispersed.
J. The Office of the Executive Secretary, MGMT, and OPS are responsible for maintaining a current list of incumbents holding all positions identified in Annexes B through AD. 2 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 4 of 35
K. Nothing in this delegation is intended to limit my discretion as Secretary to depart from this delegation. III. Authorities
A. Title 5, United States Code (U.S.C.) §§ 3345-49 (Federal Vacancies Reform Act of 1998, as amended)
B. Title 6, U.S.C., § 112 (Secretary; functions) IV. Office of Primary Interest
OPS and MGMT is the office of primary interest for maintaining and updating the Annexes to this Delegation.
Legend Career C Limited Term Appointment L Military Officer M Non-Career in the Senior Executive Service or Schedule C N Presidential Appointee P Presidential Appointee with Senate Confirmation S Scientific Professional T First Assistant pursuant to the Federal Vacancies Reform Act *
3 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 5 of 35 ATTACHMENT 1
DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Annex Title Issue Date Annex A Order For Delegation of Authority by the Revision 06, 12/15/2016 Secretary of the Department of Homeland Security Annex B Deputy Secretary, Office of the Revision 06, 09/14/2016 Annex C Citizenship and Immigration Service Ombudsman Revision 06, 09/14/2016 Annex D Citizenship and Immigration Services, United Revision 06, 09/14/2016 States Annex E Civil Rights and Civil Liberties, Office for Revision 06, 09/14/2016 Annex F Coast Guard, United States Revision 06, 09/14/2016 Annex G Customs and Border Protection, United States Revision 06, 09/14/2016 Annex H Domestic Nuclear Detection Office Revision 06, 09/14/2016 Annex I Executive Secretariat Revision 06, 09/14/2016 Annex J Federal Emergency Management Agency Revision 06, 09/14/2016 Annex K Federal Law Enforcement Training Center Revision 06, 09/14/2016 Annex L General Counsel, Office of the Revision 06, 09/14/2016 Annex M Health Affairs, Office of Revision 06, 09/14/2016 Annex N Immigration and Customs Enforcement, United Revision 06, 09/14/2016 States Annex O Inspector General, Office of Revision 06, 09/14/2016 Annex P Intelligence and Analysis, Office of Revision 06, 09/14/2016 Annex Q Legislative Affairs, Office of Revision 06, 09/14/2016 Annex R Management Directorate Revision 06, 09/14/2016 Annex S National Protection and Programs Directorate Revision 08, 07/11/2017 Annex T Operations Coordination, Office of Revision 06, 09/14/2016 Annex U Partnership and Engagement, Office of Revision 06, 09/14/2016 Annex V Policy, Office of Revision 06, 09/14/2016 Annex W Privacy Office, Chief Revision 06, 09/14/2016 Annex X Public Affairs, Officeof Revision 06, 09/14/2016 Annex Y Science and Technology Revision 07, 01/19/2017 Annex Z Secret Service, United States Revision 06, 09/14/2016 Annex AA Transportation Security Administration Revision 08, 07/11/2017 Annex AB Chief Financial Officer (DHS) Revision 06, 09/14/2016 Annex AC Deputy Administrator, Federal Emergency Revision 06, 09/14/2016 Management Agency (FEMA) Annex AD Protection and National Preparedness (FEMA) Revision 06, 09/14/2016
1-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 6 of 35 ANNEX A
ORDER FOR DELEGATION OF AUTHORITY BY THE SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY Pursuant to Executive Order 13753 (December 9, 2016)
1. Deputy Secretary of Homeland Security 2. Under Secretary for Management 3. Administrator of the Federal Emergency Management Agency 4. Under Secretary for National Protection and Programs 5. Under Secretary for Science and Technology 6. Under Secretary for Intelligence and Analysis 7. Commissioner of U.S. Customs and Border Protection 8. Administrator of the Transportation Security Administration 9. Director of U.S. Immigration and Customs Enforcement 10. Director of U.S. Citizenship and Immigration Services 11. Assistant Secretary for Policy 12. General Counsel 13. Deputy Under Secretary for Management 14. Deputy Commissioner of U.S. Customs and Border Protection 15. Deputy Administrator of the Transportation Security Administration 16. Deputy Director of U.S. Immigration and Customs Enforcement 17. Deputy Director of U.S. Citizenship and Immigration Services 18. Director of the Federal Law Enforcement Training Center
A-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 7 of 35 ANNEX B ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status Deputy Secretary, Office of the 1Deputy Secretary S 2 Under SecretaryforManagement* S 3 Administrator, Federal Emergency Management Agency S 4 Under Secretary, National Programs and Protection Directorate S 5 Under Secretary, Science and Technology S 6 Under Secretary, Intelligence and Analysis S 7 Commissioner, U.S. Customs and Border Protection S 8 Assistant Secretary/Administrator, Transportation Security Administration S 9 Assistant Secretary, U.S. Immigration and Customs Enforcement S 10 Director, U.S. Citizenship and Immigration Services S 11 Assistant Secretary, Office of Policy S 12General Counsel S 13 Deputy Under Secretary for Management C 14 Deputy Commissioner, U.S. Customs and Border Protection C 15 Deputy Administrator, Transportation Security Administration C 16 Deputy Director, U.S. Immigration and Customs Enforcement C 17 Deputy Director, U.S. Citizenship and Immigration Services C 18 Director, Federal Law Enforcement Training Center C
B-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 8 of 35 ANNEX C ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status Citizenship and Immigration Services Ombudsman 1Ombudsman N 2Deputy Director C 3Senior Advisor L 4Chief of Staff C 5 Director of Operations C 6 Chief of Casework C
C-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 9 of 35 ANNEX D ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status
Citizenship and Immigration Services, United States 1Director S 2Deputy Director* C 3 Associate Director, Management Directorate C 4 Associate Director, Refugee Asylum and International Operations Directorate C 5 Associate Director, Service Center Operations Directorate C 6 Associate Director, Field Operations Directorate C 7 Director, National Benefits Center C
D-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 10 of 35 ANNEX E ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status Civil Rights and Civil Liberties, Office for 1 Civil Rights and Civil Liberties Officer P 2 Deputy Officer, Programs and Compliance C 3 Deputy Officer, Equal Employment Opportunity Programs C 4 Executive Officer C
E-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 11 of 35 ANNEX F ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status
Coast Guard, United States 1Commandant M 2Vice Commandant M Deputy Commandant for Mission Support or Deputy Commandant for Operations 3-4 in precedence of their grade M 5-6 Other Vice Admirals in precedence of their grade M
F-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 12 of 35 ANNEX G ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status
Customs and Border Protection, United States 1Commissioner S 2 Deputy Commissioner* C 3 Executive Assistant Commissioner, Office of Field Operations C 4 Chief, U.S. Border Patrol C 5 Executive Assistant Commissioner, Air and MarineOperations C 6 Executive Assistant Commissioner, Trade C 7 Executive Assistant Commissioner, Operations Support C 8 Executive Assistant Commissioner, Enterprise Services C
G-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 13 of 35 ANNEX H ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status
Domestic Nuclear Detection Office 1Director P 2Deputy Director C 3 Assistant Director, Assessments Directorate C 4 Assistant Director, Operations Support Directorate C 5Chief of Staff C 6 Assistant Director, Transformational and Applied Research C
H-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 14 of 35 ANNEX I ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status
Executive Secretariat 1 Executive Secretary N 2 Deputy Executive Secretary C 3 Assistant Executive Secretary, Briefing Books/Interagency Coordination C
I-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 15 of 35 ANNEX J ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status
Federal Emergency Management Agency 1Administrator S 2 Deputy Administrator* S 3 Deputy Administrator, Protection and National Preparedness S 4 Associate Administrator, Response and Recovery N 5 FEMA Region IXAdministrator C 6 FEMA Region VIAdministrator C
J-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 16 of 35 ANNEX K ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status
Federal Law Enforcement Training Center 1Director C 2 Deputy Directorfor Training C 3 Deputy Director for Management C 4 Assistant Director, Mission and Readiness Support C 5 Assistant Director, Regional and International Training C 6 Assistant Director, Chief Financial Officer C 7 Assistant Director, Glynco Training C 8 Assistant Director, Centralized Training Management C 8 Assistant Director, Washington Operations C 9 Assistant Director, Chief Information Officer C 10Chief ofStaff C
K-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 17 of 35 ANNEX L ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status General Counsel, Office of the 1General Counsel S 2 Principal Deputy General Counsel* C 3 Deputy General Counsel [Senior ranking by time in position and in DHS] 1 N 4 Deputy General Counsel [Senior ranking by time in position and in DHS] N 5 Deputy General Counsel [Senior ranking by time in position and in DHS] N 6Chief of Staff C 7 Associate General Counsel, Operations and Enforcement C 8 Associate General Counsel, General Law C 9 Chief Counsel, Transportation Security Administration C 10 Chief Counsel, Federal Law Enforcement Training Center C
1 For the Deputy General Counsel positions identified in lines 3-5, seniority is determined by length of time in the position. In the event more than one Deputy General Counsel has the same appointment date, time in service in the Department is the second determining factor for seniority. L-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 18 of 35 ANNEX M ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status Health Affairs, Office of 1 Assistant Secretary for Health Affairs and Chief Medical Officer P 2 Principal Deputy Assistant Secretary and Deputy Chief Medical Officer C Associate Chief Medical Officer and Division Director, Workforce Health and 3 Medical Support C 4 Deputy Assistant Secretary and Division Director, Health Threats Resilience C
M-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 19 of 35 ANNEX N ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status
Immigration and Customs Enforcement, United States 1 Assistant Secretary S 2Deputy Director* C 3 Executive Associate Director, Homeland Security Investigations C 4 Executive Associate Director, Enforcement and Removal Operations C 5 Executive Associate Director, Managementand Administration C 6 Principal Legal Advisor N 7 Special Agent in Charge –Denver C 8 Field Officer Director –San Antonio C
N-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 20 of 35 ANNEX O ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status
Inspector General, Office of 1 Inspector General S 2 Deputy Inspector General* C 3 Counsel to the Inspector General C 4 Assistant Inspector General, Audits C 5 Assistant Inspector General, Inspections C 6 Assistant Inspector General, Emergency Management Oversight C
O-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 21 of 35 ANNEX P ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status
Intelligence and Analysis, Office of 1 Under Secretary for Intelligence and Analysis/DHS Chief Intelligence Officer S 2 Principal Deputy Under Secretary for Intelligence and Analysis* C 3 Deputy Under Secretary for Intelligence Operations C 4 Deputy Under Secretary for Mission Support C 5 Associate Deputy Director, El Paso Intelligence Center/ Strategic Analysis Section C
P-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 22 of 35 ANNEX Q ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status Legislative Affairs, Office of 1 Assistant Secretary for Legislative Affairs P 2 Deputy Assistant Secretary (Senate) N 3 Deputy Assistant Secretary (House) N 4Chief of Staff C 5 Director, Management Team C 6 Director, FEMA Team C 7 Director, Borders and Immigration C
Q-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 23 of 35 ANNEX R ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status Management Directorate 1 Under Secretaryfor Management S 2 Deputy Under Secretaryfor Management* C 3 Chief Financial Officer S 4 Chief Information Officer P 5 Chief Human Capital Officer C 6 Chief Procurement Officer C 7 Chief Readiness Support Officer C 8 Chief Security Officer C 9Chief of Staff C 10 Deputy Director, Federal Law Enforcement Training Center C
R-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 24 of 35 ANNEX S ISSUE DATE: 07/11/2017 APPROVAL: 07/11/2017 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status National Protection and Programs Directorate 1Under Secretary S 2 Deputy Under Secretary for NPPD* N 3 Assistant Secretary, Office of Infrastructure Protection P 4 Assistant Secretary, Office of Cybersecurity and Communications N 5 Deputy Assistant Secretary, Office of Infrastructure Protection C 6 Deputy Assistant Secretary, Office of Cybersecurity and Communications C 7 Director, Management C 8 Office of Infrastructure Protection, Regional Director for Region 8 C
S-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 25 of 35 ANNEX T ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status
Operations Coordination, Office of 1Director C 2Deputy Director C 3 Director, Current Operations Division C 4 Director, National Operations Center C 5Chief of Staff C
T-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 26 of 35 ANNEX U ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status
Partnership and Engagement, Office of 1 Assistant Secretary N 2 Assistant Secretary for State and Local Law Enforcement N 3 Deputy Assistant Secretary, Intergovernmental Affairs C 4 Deputy Assistant Secretary, Private Sector Office N 5 Director of Local Affairs C
U-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 27 of 35 ANNEX V ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status
Policy, Office of 1 Assistant Secretary S 2 Assistant Secretary for International Affairs and Chief Diplomatic Officer* N 3 Principal Deputy AssistantSecretary N 4 Assistant Secretary for Threat Prevention and Security Policy N 5 Assistant Secretary for Border, Immigration, and Trade N 6 Assistant Secretary for Cyber, Infrastructure, andResilience N 7 Assistant Secretary for Strategy, Plans, Analysis, and Risk C 8 Deputy Assistant Secretary for Screening Coordination Office C 9 Deputy Assistant Secretary for International Affairs C
V-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 28 of 35 ANNEX W ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status
Privacy Officer, Chief 1 Chief Privacy Officer N 2 Deputy Chief Privacy Officer C 3 Deputy Chief FOIA Officer C 4 Senior Director, Privacy Compliance C 5Chief of Staff C
W-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 29 of 35 ANNEX X ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status Public Affairs, Office of 1 Assistant Secretary P 2 Principal Deputy Assistant Secretary C 3 Deputy Assistant Secretary for Media Operations/Press Secretary N 4 Deputy Assistant Secretary for Strategic Communications N 5 Director of Communications N 6Chief of Staff C 7 Director, Incident Communications C
X-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 30 of 35 ANNEX Y ISSUE DATE: 1/19/2017 APPROVAL: 1/19/2017 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status
Science and Technology 1Under Secretary S 2 Deputy Under Secretary* C 3Chief of Staff C 4 Director, Homeland Security Advanced Research Projects Agency C Director, Office of Support to the Homeland Security Enterprise and First 5 Responders Division C 6 Director, Capability Development Support Division C 7 Director, Research and Development Partnerships C 8 Director, Finance and Budget Division C 9 Director, Administrative Support Division C
Y-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 31 of 35 ANNEX Z ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016 DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status
Secret Service, United States 1 Director P 2 Deputy Director C 3 Chief Operating Officer C 4 Assistant Director - Protective Operations C 5 Assistant Director - Investigations C 6 Assistant Director - Government and Public Affairs C 7 Assistant Director - Human Resources C 8 Assistant Director - Professional Responsibility C 9 Assistant Director - Strategic Intelligence and Information C 10 Assistant Director - Training C 11 Chief - Uniformed Division C 12 Chief Counsel C 13 Chief Technology Officer C 14 Chief Financial Officer C 15 Chief - Strategic Planning and Policy C 16 Deputy Assistant Director(s) - Protective Operations C 17 Deputy Assistant Director(s) - Investigations C 18 Deputy Assistant Director(s) - Government and Public Affairs C 19 Deputy Assistant Director(s) - Human Resources C 20 Deputy Assistant Director(s) - Professional Responsibility C 21 Deputy Assistant Director(s) - Strategic Intelligence and Information C 22 Deputy Assistant Director(s) - Training C 23 Deputy Assistant Director(s) - Technical Development and Mission Support C 24 Deputy Assistant Director(s) - Strategic Planning and Policy C 25 Special Agent in Charge - Washington C 26 Special Agent in Charge - New York C 27 Special Agent in Charge - Miami C 28 Special Agent in Charge - Los Angeles C
Z-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 32 of 35 ANNEX AA ISSUE DATE: 07/11/2017 APPROVAL: 07/11/2017
DHS ORDERS OF SUCCESSION AND ORDERS FOR DELEGATIONS OF AUTHORITIES
Position Career Status Transportation Security Administration 1 Assistant Secretary/Administrator S 2 Deputy Administrator* C 3Chief of Staff C 4 Chief of Operations C 5 Assistant Administrator, Office of Security Operations C 6 Assistant Administrator, Office of Law Enforcement/Federal Air Marshal Service C 7 Assistant Administrator, Office of Global Strategies C 8 Regional Director, Atlanta, Office of Security Operations C 9 Regional Director, Dallas, Office of Security Operations C 10 Federal Security Director, Denver International Airport C 11 Federal Air Marshal/Supervisory Air Marshal in Charge, Los Angeles C
AA-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 33 of 35 ANNEX AB ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016
DESIGNATION OF FIRST ASSISTANTS FOR NON-COMPONENT HEAD PRESIDENTIAL APPOINTEES WITH SENATE CONFIRMATION POSITIONS Position Career Status Chief Financial Officer (DHS) 1 Chief Financial Officer S 2 Deputy Chief Financial Officer* C
AB-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 34 of 35 ANNEX AC ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016
DESIGNATION OF FIRST ASSISTANTS FOR NON-COMPONENT HEAD PRESIDENTIAL APPOINTEES WITH SENATE CONFIRMATION POSITIONS Position Career Status Deputy Administrator, Federal Emergency Management Agency (FEMA) 1 Deputy Administrator, FEMA S 2 Deputy Administrator, Protection and National Preparedness* S 3 Associate Administrator, Mission Support C 4 Deputy Associate Administrator, Office of Policy and Program Analysis C 5 Region IX Administrator C 6 Region VI Administrator C
AC-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-1 Filed 06/03/21 Page 35 of 35 ANNEX AD ISSUE DATE: 9/14/2016 APPROVAL: 9/14/2016
DESIGNATION OF FIRST ASSISTANTS FOR NON-COMPONENT HEAD PRESIDENTIAL APPOINTEES WITH SENATE CONFIRMATION POSITIONS Position Career Status Protection and National Preparedness (FEMA) 1 Deputy Administrator, Protection and National Preparedness S 2 Assistant Administrator, National Preparedness Directorate* C 3 Assistant Administrator, Grant Programs P 4 Assistant Administrator, National Continuity Programs N
AD-1 Delegation # 0106 Revision # 08 Case 8:20-cv-02118-PX Document 121-2 Filed 06/03/21 Page 1 of 3 EXHIBIT B Case 8:20-cv-02118-PX Document 121-2 Filed 06/03/21 Page 2 of 3 Case 8:20-cv-02118-PX Document 121-2 Filed 06/03/21 Page 3 of 3 Case 8:20-cv-02118-PX Document 121-3 Filed 06/03/21 Page 1 of 6 EXHIBIT C Case 2:15-cv-00813-JLR Document 182 Filed 05/26/21 Page 1 of 5 Case 8:20-cv-02118-PX Document 121-3 Filed 06/03/21 Page 2 of 6
1 The Honorable James L. Robart 2
3
4
5
6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8
9 NORTHWEST IMMIGRANT RIGHTS Case No. 2:15-cv-00813-JLR PROJECT, et al., 10 JOINT SUBMISSION Plaintiffs, 11
12 v.
13 UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., 14 Defendants. 15
16 Pursuant to the Court’s Minute Order dated May 19, 2021, ECF No. 181, the parties state
17 as follows in response to each of the Court’s inquiries:
18 1. The current status of Defendant United States Citizenship and Immigration
19 Services’ (“USCIS”) processing of the backlog of class member employment authorization
20 document (“EAD”) applications;
21 Government’s Position: U.S. Citizenship and Immigration Services’ (“USCIS”) efforts
22 to reduce the backlog of initial applications for asylum-related employment authorization
23 documents (“C8 applications”), described in its response brief, ECF No. 179, have continued to
24 reflect progress, but have not fully eliminated the backlog. As of May 21, 2021, there were 2,270
25 C8 applications that have been pending for more than 30 days, reflecting USCIS’s reduction of
Joint Submission U.S. DEPARTMENT OF JUSTICE 18-655-JLR - 1 P.O. BOX 868, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 532-4107 Case 2:15-cv-00813-JLR Document 182 Filed 05/26/21 Page 2 of 5 Case 8:20-cv-02118-PX Document 121-3 Filed 06/03/21 Page 3 of 6
1 the backlog such that currently 79.2% of cases have been pending for 30 days or less, and 95.9%
2 of cases have been pending for 60 days or less. See Exhibit 1, Table 2.
3 Plaintiffs’ Position: Plaintiffs maintain that Defendants’ failure to eliminate the backlog
4 over the course of almost eight months (measured from October 9, 2020, when Defendants
5 created their plan for implementing the CASA de Maryland order) is evidence that Court-ordered
6 sanctions are necessary. 7 2. USCIS’s current rate of compliance with the court’s order requiring it to process
8 class members’ EAD applications within 30 days (see 7/26/18 Order (Dkt. # 127) at 12);
9 Government’s Position: USCIS advises that, as of May 21, 2021, 60.8% of cases were
10 completed within 30 days, and 95.9% of cases were completed within 60 days, which reflects
11 substantial improvement from prior months. See Exhibit 1, Table 1.
12 Plaintiffs’ Position: Plaintiffs wish to clarify that, of the applications USCIS actually
13 adjudicated in May 2021, 60.8% were completed within 30 days. USCIS currently has 2,270
14 class member applications that have been pending for more than 30 days. See Exhibit 1, Table 2.
15 While Defendants’ monthly compliance rates have fluctuated, thus far in FY 2021, of the class
16 member applications adjudicated, USCIS has adjudicated only 35.8% within the mandatory 30
17 days. See Exhibit 1, Table 1.
18 3. Any efforts that the parties have made since March 25, 2021, to address the
19 issues raised in Plaintiffs’ motion;
20 Government’s Position: USCIS previously described in its declarations, ECF Nos. 170-
21 2, 179-5, and 179-7, its efforts to comply with this Court’s injunction. USCIS further advises
22 that, since April, it has implemented additional process improvements to transition photo
23 scanning from the Texas Service Center to Lockbox personnel, which will improve efficiency
24 with regard to intake processing. Moreover, USCIS has recently developed a procedure to
25 electronically scan for evidence of membership in CASA or ASAP, which USCIS further
Joint Submission U.S. DEPARTMENT OF JUSTICE 18-655-JLR - 2 P.O. BOX 868, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 532-4107
Case 2:15-cv-00813-JLR Document 182 Filed 05/26/21 Page 3 of 5 Case 8:20-cv-02118-PX Document 121-3 Filed 06/03/21 Page 4 of 6
1 anticipates will streamline workflow. Relatedly, although the majority of the I-765 C08 initial
2 cases are still adjudicated at the Texas Service Center (“TSC”), USCIS has begun, on a
3 temporary basis, to use officers trained for this adjudication from the Nebraska Service Center to
4 further address the current backlog. Again, the cases will still be centralized at the TSC, with no
5 changes in filing location for applicants.
6 Plaintiffs’ Position: Plaintiffs have no additional information to share. 7 4. Any other matters that the parties agree the court should consider when deciding
8 Plaintiffs’ motion.
9 Government’s Position: USCIS has nothing further to add at this time.
10 Plaintiffs’ Position: Plaintiffs note that the court in CASA de Maryland is presently
11 considering permanent injunctive relief which could significantly expand the number of class
12 members.
13 DATED May 26, 2021 BRIAN M. BOYNTON 14 Acting Assistant Attorney General Civil Division 15
16 WILLIAM C. PEACHEY Director 17 Office of Immigration Litigation District Court Section 18 19 JEFFREY S. ROBINS Deputy Director 20 By: s/ Aaron S. Goldsmith 21 Aaron S. Goldsmith Senior Litigation Counsel 22 United States Department of Justice 23 Civil Division Office of Immigration Litigation 24 District Court Section Washington, D.C. 20044 25 Tel.: (202) 532-4107
Joint Submission U.S. DEPARTMENT OF JUSTICE 18-655-JLR - 3 P.O. BOX 868, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 532-4107
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Email: [email protected] 1 Counsel for Defendants 2
3 By: s/ Emma C. Winger Emma C. Winger (pro hac vice) 4 American Immigration Council 1331 G Street, NW, Suite 200 5 Washington, DC 20005 6 (617) 505-5375 7 Matt Adams, WSBA No. 28287 Northwest Immigrant Rights Project 8 615 Second Avenue, Suite 400 Seattle, WA 98104 9 (206) 957-8611 10 Devin Theriot-Orr, WSBA 33995 11 Open Sky Law, PLLC 20415 72nd Ave. S., Ste. 110 12 Kent, WA 98032 (206) 962-5052 13 14 Marc Van Der Hout (pro hac vice) Van Der Hout, LLP 15 180 Sutter Street, Suite 500 San Francisco, CA 94104 16 (415) 981-3000
17 Robert H. Gibbs, WSBA 5932 18 Robert Pauw, WSBA 13613 Gibbs Houston Pauw 19 1000 Second Avenue, Suite 1600 Seattle, WA 98104-1003 20 (206) 682-1080
21 Scott D. Pollock (pro hac vice) 22 Scott D. Pollock & Associates, P.C. 105 W. Madison, Suite 2200 23 Chicago, IL 60602 (312) 444-1940 24 Counsel for Plaintiffs 25
Joint Submission U.S. DEPARTMENT OF JUSTICE 18-655-JLR - 4 P.O. BOX 868, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 532-4107
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CERTIFICATE OF SERVICE 1 I hereby certify that on May 26, 2021, I electronically filed the foregoing with the Clerk 2 of the Court using the CM/ECF system, which will send notification of such filing to those 3 attorneys of record registered on the CM/ECF system. 4 By: s/ Aaron S. Goldsmith 5 Aaron S. Goldsmith 6 Senior Litigation Counsel United States Department of Justice 7
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Joint Submission U.S. DEPARTMENT OF JUSTICE 18-655-JLR - 5 P.O. BOX 868, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 532-4107
Case 8:20-cv-02118-PX Document 121-4 Filed 06/03/21 Page 1 of 4 EXHIBIT D Case 2:15-cv-00813-JLR Document 184 Filed 05/28/21 Page 1 of 3 Case 8:20-cv-02118-PX Document 121-4 Filed 06/03/21 Page 2 of 4
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7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
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10 WILMAN GONZALEZ ROSARIO, CASE NO. C15-0813JLR et al., 11 ORDER ON PLAINTIFFS’ Plaintiffs, MOTION FOR CIVIL 12 v. CONTEMPT
13 UNITED STATES CITIZENSHIP 14 AND IMMIGRATION SERVICES, et al., 15 Defendants. 16
Before the court is Plaintiffs’ motion for civil contempt and to enforce the 17 permanent injunction issued by this court on July 26, 2018. (Mot. (Dkt. # 171); 7/26/18 18 Order (Dkt. # 127); see also Reply (Dkt. # 180).) In that order, the court found that 19 Defendants were in violation of a regulatory deadline requiring Defendant United States 20 Citizenship and Immigration Services (“USCIS”) to adjudicate asylum-seekers’ 21 applications for employment authorization documents (“EADs”) within 30 days of 22
ORDER - 1 Case 2:15-cv-00813-JLR Document 184 Filed 05/28/21 Page 2 of 3 Case 8:20-cv-02118-PX Document 121-4 Filed 06/03/21 Page 3 of 4
1 receipt and enjoined Defendants from further failing to adhere to that deadline. (7/26/18
2 Order at 12.) Defendants oppose Plaintiffs’ motion for contempt. (Resp. (Dkt. # 179).)
3 The parties filed a supplemental joint submission on May 26, 2021, regarding the status
4 of Defendants’ efforts to comply with the court’s injunction. (See J. Sub. (Dkt. # 182);
5 5/18/21 Min. Order (Dkt. # 181).) The court heard telephonic oral argument on May 28,
6 2021. (See 5/28/21 Min. Entry (Dkt. # 183).)
7 The court has considered the motion, all submissions filed in support of and in
8 opposition to the motion, the relevant portions of the record, the parties’ arguments, and
9 the applicable law. Being fully advised, the court ORDERS as follows:
10 1. The court DENIES without prejudice Plaintiffs’ motion for civil contempt
11 (Dkt. # 171). Plaintiffs may renew their motion if Defendants do not reach substantial
12 compliance with the court’s permanent injunction within 120 days of the filing date of
13 this order;
14 2. The court ORDERS Defendants to file monthly status reports for the
15 months of May, June, July, and August 2021, regarding Defendants’ rate of compliance
16 with the 30-day timeline to adjudicate class members’ EAD applications. These status
17 reports shall be filed no later than five (5) days after the end of each month;
18 3. The court DIRECTS the parties to continue conferring regarding USCIS’s
19 processes for accepting, receipting, and dispute resolution; and
20 4. The court DIRECTS the parties to file a joint status report within ten (10)
21 days of the district court’s issuance of its order on the pending motion for permanent
22 injunction in CASA de Maryland, Inc. v. Mayorkas, No. 8:20-cv-02118-PX (D. Md.).
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1 This joint status report shall address the impact, if any, of the CASA de Maryland court’s
2 order on the proceedings in this court.
3 Dated this 28th day of May, 2021.
4 5 A 6 JAMES L. ROBART United States District Judge 7
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ORDER - 3 Case 8:20-cv-02118-PX Document 121-5 Filed 06/03/21 Page 1 of 9 EXHIBIT E Case 8:20-cv-02118-PX Document 121-5 Filed 06/03/21 Page 2 of 9
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
CASA DE MARYLAND, INC., et al.,
Plaintiffs, CASE NO. 20-2118-PX v. DECLARATION OF CONNIE Mayorkas, et al. NOLAN
Defendants.
I, Connie Nolan, declare and say:
1) I am the Acting Associate Director of Service Center Operation (SCOPS) Directorate,
U.S. Citizenship and Immigration Services (“USCIS”), Department of Homeland Security
(“DHS”). I have held this position since January 2021. Prior to that, I was the Deputy Associate
Director of SCOPS since June 2019 and occupied this same position in an acting capacity from
January to April 2019.
2) In my position, I oversee policy, planning, management, and execution functions of
SCOPS. In this, I assist in overseeing a workforce of more than 7,100 government and contract employees at five USCIS Service Centers located in California, Nebraska, Texas, Vermont, and
Virginia. These five service centers adjudicate approximately five to six million immigration- related applications, petitions, and requests annually, including applications for employment authorization.
3) On July 26, 2018 in the case Rosario, et al., v. USCIS, et. al., 15-813 (W.D.Wash), the court granted summary judgment against the government, finding that the government had violated 8 C.F.R. § 208.7(a)(1) by failing to adhere to the regulatory 30-day processing timeline
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for adjudicating initial Form I-765 applications for employment authorization submitted by asylum seekers, whose eligibility for employment authorization is governed by 8 C.F.R. §
274a.12(c)(8) (hereinafter also, “C8 EAD applicants”).
4) On June 22, 2020, the Department of Homeland Security (DHS) amended 8 C.F.R. §
208.7(a)(1), to eliminate the 30-day processing rule. See Removal of 30-Day Processing
Provision for Asylum Applicant- Related Form I–765 Employment Authorization Applications,
85 Fed. Reg. 37,502 (June 22, 2020) (“Timeline Repeal Rule”). The change to 8 C.F.R. §
208.7(a)(1) became effective on August 21, 2020.
5) I understand that in the case Casa De Maryland, Inc., v. Mayorkas, the court imposed a preliminary injunction on September 11, 2020 requiring that USCIS not apply the Timeline
Repeal Rule to members of Casa De Maryland, Inc. (CASA), and the Asylum Seeker Advocacy
Project (ASAP).
6) I also understand that on April 20, 2021 plaintiffs in Casa De Maryland, Inc., v.
Mayorkas filed a motion requesting, in part, that the court expand the preliminary injunction such that it will fully enjoin the Timeline Repeal Rule nationwide, and without being limited to members of CASA and ASAP.
7) Because the changes to 8 C.F.R. § 208.7(a)(1) were enjoined as to CASA and ASAP members, USCIS considers individual CASA and ASAP members who filed an asylum-based initial Form I-765 Application for Employment Authorization on or after August 21, 2020 to be potential class members in the Rosario litigation.
8) Any individual who filed an initial C8 EAD application prior to August 21, 2020, and whose application had not yet been adjudicated on that date, is also a potential Rosario class
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member. All other initial C8 EAD applicants are processed under the Timeline Repeal Rule and are not considered potential Rosario class members.
9) I am submitting this declaration to provide additional information regarding the operational challenges on USCIS if the injunction were expanded and the impact that an expansion of the injunction would have on applicants submitting other immigration benefit form types.
10) If the preliminary injunction of the Timeline Repeal Rule is expanded to apply nationwide—and not just to individual members of CASA and ASAP—USCIS would face significant challenges to compliance and would be unable to comply with the 30-day processing timeline immediately.
11) First, as of May 31, 2021, there were a total of 47,409 initial C8 applications pending with USCIS from non-potential Rosario class members. While the statistics regarding applications received by USCIS vary on any given day, based on volume USCIS estimates that in 2021, 40-45% of initial applications were filed by non-potential Rosario class members, and
55-60% were filed by potential Rosario class members. Those non-potential Rosario class member initial C8 EAD applications are not currently prioritized in the same manner as potential
Rosario class member cases because they are not subject to the 30-day processing requirement imposed by the court in Rosario. If the Casa De Maryland, Inc., v. Mayorkas preliminary injunction were expanded to apply to all initial C8 EAD applications, the majority of the pending initial C8 applications would already be beyond the regulatory 30-day processing timeline required under the prior version of 8 C.F.R. § 208.8(a)(1). By expanding the Casa De Maryland,
Inc., v. Mayorkas preliminary injunction, I understand that all initial C8 EAD application filers
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after such an expansion would thereafter be potential Rosario class members, subject to the
summary judgment order in that case.
12) If USCIS were ordered to adjudicate all 47,409 pending initial C8 applications today, it would
take TSC approximately 5 months to complete with all officers working all adjudicative hours
solely on initial C8 EAD applications. This is because USCIS has a finite number of adjudicators
currently trained to process C8 EAD applications. Currently, as a consequence of higher rates of
attrition than normal in 2020, there are 53 full time employees assigned to the initial C8 EAD
workload at the Texas Service Center (TSC). Under normal conditions, TSC’s capacity to
adjudicate initial C8 EADs would be approximately 11,000 per month with 53 full time
employees. On average, an officer has approximately 140 adjudicative hours available per month
at an approximate completion per hour rate of 1.5. This estimate does not account for additional
factors such as employee attrition, temporary assignments, and leave, which reduce total possible
output and increases the time needed to address the existing backlog. Additionally, over the last
24 months, USCIS has received on average approximately 18,700 initial C8 applications per
month. While the number of future initial C8 filings is dependent on multiple external factors in
asylum processing at both USCIS and the Executive Office of Immigration Review (EOIR),
USCIS would generally anticipate this number of filings on a monthly basis in the near term, in
addition to those currently pending as of today.
13) From May 1, 2020 through March 31, 2021, USCIS had a hiring freeze. During this time, the
TSC has not been able to replace staff who have retired, transferred, or otherwise moved on from
their positions. This employee attrition reduced the number of available adjudicators who could
not be replaced during the hiring freeze. Even with the hiring freeze lifted, the process of
announcing open positions (which may not result in USCIS staffing at prior staffing levels),
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interviewing, and selecting new employees for onboarding, conducting background checks for
selectees, and training new hires means that it can take at least six months for new employees to
be onboarded and fully trained. Training for I-765 C8 adjudication, which generally takes over
60 days, includes formal instruction, mentoring with an experienced officer, and supervisory
review.
14) In addition to the steps outlined in my declaration dated March 10, 2021 submitted to the
Rosario court, USCIS is diverting resources from other product lines to address shortfalls in
adjudication to come into compliance with the Rosario court’s order. To assist TSC in the short
term in its efforts to improve compliance, in mid-May 2021, SCOPS assigned trained officers
from the Nebraska Service Center (NSC) to adjudicate some initial C8 applications from TSC’s
queue through SCOPS’s electronic adjudications system, ELIS, which now provides the ability
to permit officers from one service center to adjudicate cases that are pending in another center’s
queue. This function gives the flexibility to provide additional resources to a particular workload
without transferring cases between jurisdictions.
15) USCIS has numerous competing priorities and prioritizing one product line directly impacts
other product lines. For example, the agency is currently involved in litigation related to: delays
in Form I-765 processing for students seeking optional practical training (Li v. USCIS, 21-cv-677
(S.D. Ohio)), delays involving H-4 and L-2 nonimmigrant status and EAD applications
(Edakunni v. Mayorkas, 21-cv-00393 (WDWA) and delays in processing Form I-918 for
individuals seeking U nonimmigrant status in N-N v. Mayorkas, 19-CV-5295(EK) (E.D.N.Y.
May. 18, 2021). SCOPS is also impacted by numerous individual and multi-plaintiff cases across
the country on an array of issues.
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16) Further, TSC adjudicators assigned to process initial C8 EAD applications are dedicating 100%
of their adjudicative time to this workload. This allocation of officer time occurs at the expense
of other immigration benefit form types which these officers ordinarily adjudicate. This finite
pool of adjudicators is also normally responsible for the following product lines: Form I-765
(employment authorization other than the C8 category) with approximately 60,000 applications
pending; Form I-131, Application for Travel Document, with over 52,000 applications
pending; and Form I-821, Application for Temporary Protected Status, with approximately 2,000
applications pending. Also, TSC typically receives approximately 5,000 Form I-821D,
Consideration of Deferred Action for Childhood Arrivals applications per year. If the court
expands the preliminary injunction to encompass all initial C8 EAD applications, this would
further adversely impact these other USCIS product lines and the individuals who are waiting for
their adversely impacted applications to be adjudicated.
17) The Rosario partial implementation agreement of the court’s order specifies that initial C8 EAD
applications will be centralized at the TSC. At the time the agreement was negotiated,
centralization served to minimize delays by allowing physical C8 EAD applications to be driven
from the Dallas Lockbox facility to the TSC, eliminating the time needed to mail new receipts.
Since the Rosario partial implementation agreement was reached, SCOPS has moved C8 EAD
adjudications to ELIS, the electronic case management system. This system enables new
applications to be scanned and transmitted to the service center electronically. Officers at two
others centers currently adjudicate C8 renewals and replacement applications, and as noted
previously, USCIS has recently dedicated additional officers from the NSC to assist, on an ad
hoc basis, TSC improve compliance with the Rosario court order. If the PI were to expand
significantly, SCOPS would be forced to dedicate significant additional officer resources to
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initial C8 applications at other centers to the detriment of other adjudications at those service
centers.
18) USCIS has faced a number of challenges implementing the PI. At the time the PI was issued,
there was no systematic way to identify CASA and ASAP members other than reliance on
whether or not the biometrics fee was paid (for non-members) or the application was submitted
without a fee (for members, as providing by instructions on the USCIS website for filing under
the CASA PI). Implementing the PI required USCIS’s Office of Intake and Document
Production (OIDP) and its contractors at the Dallas Lockbox facility to manually review and
track filings by CASA and ASAP members. In turn, these filings had to be manually tracked by
SCOPS for case assignment and expedited processing, because existing systems were not built to
electronically track cases based on criteria such as membership in a particular organization, as
required by the CASA PI. These manual processes added delays to the adjudication process.
Additionally, SCOPS’s transition to the ELIS case management system for Forms I-765 occurred
around the same time as the EAD rules took effect. Development was underway long before
regulatory changes were published. Unfortunately, the ELIS launch revealed some system issues
that were not identified until the system was being used in full-scale production for C8 EAD
adjudication, which contributed to delayed adjudication.
19) As part of the agency’s ongoing efforts to improve case processing and compliance with the
CASA PI, SCOPS has worked with the Office of Intake and Document Production (OIDP) and
the Office of Information Technology (OIT) to address challenges associated with processing
cases impacted by the PI. To this end, SCOPS is in the process of transitioning to OIDP the task
of scanning all physical photographs submitted as part of an application. Previously, this labor-
intensive task was manually completed on an as needed basis at the TSC, leading to delays in
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certain adjudications. Photos are necessary for card production when a photo is not available
from a previous biometrics’ appointment.
20) Additionally, USCIS developed an automated utility to examine electronic evidence filed
with an application. The utility detects and classifies documents to identify evidence of
CASA/ASAP membership. Once CASA/ASAP membership evidence is identified, a flag is
created on the applicant’s case, which is then used to prioritize and assign CASA/ASAP
membership cases. This capability has helped TSC streamline processing by creating a distinct,
electronic workflow in ELIS for CASA and ASAP member applications. Electronically
identifying and tagging CASA and ASAP member applications increases efficiency by reducing
the time it takes for cases to move from intake to adjudication-readiness and reducing manual
tracking and complexity in tasking out case assignments. It also improves SCOPS’ ability to
accurately track and report on CASA and ASAP case processing. Despite these improvements,
SCOPS continue to face difficulty in meeting the 30-day adjudication timeframe for initial C8
EADs for CASA and ASAP applicants.
21) In light of these factors, if the court deems it appropriate to expand or modify the existing
preliminary injunction, USCIS would request that it be afforded the opportunity to present the
court with an operationally feasible implementation plan.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this ___3rd____ day of June, 2021, at Camp Springs, Maryland.
CONNIE L CONNIE L NOLAN 2021.06.03 16:24:16 -04'00' NOLAN 2020.013.20064 ______Connie Nolan Acting Associate Director, SCOPS U.S. Citizenship and Immigration Services Washington, DC
DECLARATION OF Connie Nolan 8 (Case No. 20-2118)