                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA

                                     )
 GRACE, et al.,                      )
                                     )
                   Plaintiffs,       )
         v.                          )
                                     ) Civil Action No. 18-1853
                                     )
 MATTHEW G. WHITAKER, Acting         )
 Attorney General of the United      )
 States, et al.,                     )
                                     )
                   Defendants.       )

                  MEMORANDUM OPINION AND ORDER

     On December 19, 2018, the Court issued an Order vacating

several policies promulgated by the Attorney General in Matter

of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), a precedential

immigration decision, and subsequent guidance issued by the

Department of Homeland Security. See Order, ECF No. 105. The

vacated policies related to the expedited removal process and

credible fear determinations made by asylum officers. The Court

held that these policies violated the Administrative Procedure

Act and the immigration laws. Accordingly, the Court vacated the

unlawful policies and permanently enjoined the government from

applying the policies in future cases.

     The government now requests a stay, pending appeal of the

Court’s Order, to enable the unlawful policies to continue to

apply in all expedited removal cases, except the plaintiffs. For

the following reasons, defendants' motion for stay is DENIED.
I. Legal Standard

     A court's decision to stay its final judgment pending

appeal is an extraordinary remedy that is an “intrusion into the

ordinary process of . . . judicial review.” Nken v. Holder, 556

U.S. 418, 428 (2009); see also Cuomo v. U.S. Nuclear Regulatory

Comm'n, 772 F.2d 972, 978 (D.C. Cir. 1985). The issuance of a

stay is a matter of judicial discretion, not a matter of right,

and the “party requesting a stay bears the burden of showing

that the circumstances justify an exercise of that discretion.”

Nken, 556 U.S. at 433-34. In exercising its discretion, a court

considers the following four factors:

     (1) the likelihood that the party seeking the stay
     will prevail on the merits of the appeal; (2) the
     likelihood   that  the   moving   party  will   be
     irreparably harmed absent a stay; (3) the prospect
     that others will be harmed if the court grants the
     stay; and (4) the public interest in granting the
     stay.

Cuomo, 772 F.2d at 974. It is “the movant’s obligation to

justify the court’s exercise of such an extraordinary remedy.”

Id. at 978.

II. Discussion

     The Court begins with a discussion of general guidance from

the Supreme Court about the four stay factors. “The first two

factors of the traditional standard are the most critical. It is

not enough that the chance of success on the merits be ‘better

than negligible.’” Nken, 556 U.S. at 434 (citation omitted). “By

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the same token, simply showing some ‘possibility of irreparable

injury,’ fails to satisfy the second factor.” Id. at 434–35

(internal citation omitted). “Once an applicant satisfies the

first two factors, the traditional stay inquiry calls for

assessing the harm to the opposing party and weighing the public

interest. These factors merge when the Government is the

opposing party.” Id. at 435. In the context of removal

proceedings, courts must be mindful that the “Government's role

as the respondent in every removal proceeding does not make the

public interest in each individual one negligible.” Id.

(citations omitted). With these principles in mind, the Court

now turns to the four stay factors.

     A. Likelihood of Success on the Merits

     In determining whether a stay should be granted, a

“critical” factor is whether the moving party is likely to

succeed on the merits. Id. at 434.

     The government confines its arguments to the claim that the

Court has no authority to enjoin the operation of any expedited

removal policies beyond that policies’ application to the

plaintiffs. See Defs.’ Mot. to Stay, ECF No. 107. The government

makes three principal arguments to support its position. First,

the government points to section 1252(e)(3), the provision under

which the plaintiffs have brought this case. See 8 U.S.C.

§ 1252(e)(3). Next, the government looks to the legislative

                                3
history of the 1996 amendments to the Immigration and

Nationality Act (“INA”). Finally, the government argues

precedent in this Circuit “indicates” that its position is

correct. The Court considers each argument in turn.

          i. Section 1252(e)(3)

      The government first argues that the Congressional scheme

precludes any injunctive relief that is not limited to the

plaintiffs in this case. Defs.’ Mot. to Stay, ECF No. 107 at 2–

4. The Court has already rejected the various arguments made on

this point in its Memorandum Opinion. ECF No. 106 at 98–101.

Undaunted, the government now points to section 1252(e)(3) which

grants the Court authority for “judicial review of

determinations under section 1225(b) and its implementation.”

Defs.’ Mot. to Stay, ECF No. 107 at 3. The government argues

that such determinations may only be made individually and

therefore the Court only had authority to review, and provide a

remedy for, the plaintiffs’ individual determinations. Id. The

government further argues that its position is supported by a

provision that prohibits a court from certifying a class action

in any action for which judicial review is authorized under

1252(e). See 8 U.S.C. § 1252(e)(1)(B).

     The Court is no more persuaded by the government’s

arguments here than it was when the government made nearly

identical arguments in its motion for summary judgment. See,

                                  4
e.g., Memorandum Opinion, ECF No. 106 at 100 n.30 (rejecting

argument that an injunction in this case is tantamount to class-

wide relief). As the Court explained in its Memorandum Opinion,

the government’s argument requires the Court to ignore the fact

that section 1252(e)(3) authorizes a systemic legal challenge to

a new expedited removal written policy directive issued under

the authority of the Attorney General and contains no limitation

on relief once a court makes a determination that a policy

directive is unlawful. See 8 U.S.C. § 1252(e)(3).

     Furthermore, the provision itself explicitly states that

when a plaintiff brings a claim under section 1252(e)(3), the

Court is “limited to determinations of . . . whether . . . a

written policy directive . . . is not consistent with applicable

provisions of this subchapter or is otherwise in violation of

law.” 8 U.S.C. § 1252(e)(3)(A)(ii). There is no statutory

requirement, as the government argues, to declare a policy in

violation of the law only as applied to the individual

plaintiffs. Cf. 8 U.S.C. § 1252(f)(limiting injunctive relief to

only the plaintiff when a plaintiff challenges the legality of a

provision of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”)). To accept the

government’s position would require the Court to ignore the

systemic nature of this action. It also would require the Court

to ignore the general rule that “[w]hen a reviewing court

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determines that agency regulations are unlawful, the ordinary

result is that the rules are vacated—not that their application

to the individual petitioners is proscribed.” Nat’l Min. Ass'n

v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir.

1998)(citation omitted).

     As to the prohibition on class actions, as the Court stated

in its Memorandum Opinion, class-wide relief in this case would

entail an order requiring new credible fear interviews for all

immigrants who applied for asylum from June 11, 2018, the date

of the Attorney General’s decision, and for the government to

return to the United States every deported individual who was

affected by the policies at issue in this case. Memorandum

Opinion, ECF No. 106 at 100 n.30. The Court has ordered no such

relief in this case.

          ii. Legislative History

     The government next points to the legislative history of

the 1996 amendments to the INA. Defs.’ Mot. to Stay, ECF No. 107

at 4 (citing H.R. REP. No. 104-469(I)). Noting that this Court

relied extensively on the legislative history of the immigration

law, the government argues the history demonstrates Congress’

intent to allow policies declared to be unlawful by a court to

remain in place. Id. The government selectively quotes the

legislative history to bolster its unpersuasive argument. The

relevant section, however, states as follows:

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       Section 306 also limits the authority of Federal
       courts other than the Supreme Court to enjoin the
       operation of the new removal procedures established
       in this legislation. These limitations do not
       preclude challenges to the new procedures, but the
       procedures will remain in force while such lawsuits
       are pending. In addition, courts may issue
       injunctive relief pertaining to the case of an
       individual alien, and thus protect against any
       immediate violation of rights. However, single
       district courts or courts of appeal do not have
       authority to enjoin procedures established by
       Congress to reform the process of removing illegal
       aliens from the U.S.

H.R. REP. No. 104-469(I) at 161 (emphasis added). This argument

is a repackaging of the government’s argument in its motion for

summary judgment that section 1252(f) precludes the court’s

injunction. See Memorandum Opinion, ECF No. 106 at 98. Again,

the Court agrees with the government that the Court would not

have the authority to enjoin, other than as to the plaintiffs,

“new removal procedures established” by the 1996 Amendments to

the INA, nor would it have “authority to enjoin procedures

established by Congress to reform the process of removing

illegal aliens from the U.S.” See H.R. REP. No. 104-469(I) at

161.    The problem for the government is that this case does not

concern “procedures established by Congress” or a challenge to

the INA itself. See id. Rather, the plaintiffs have challenged

“written policy directive[s] [and] written policy guideline[s]”

established by the Attorney General. See 8 U.S.C. §

1252(e)(3)(A)(ii).


                                  7
     American Immigration Lawyers Ass'n v. Reno (“AILA”), 199

F.3d 1352, 1358 (D.C. Cir. 2000), is instructive. In AILA the

plaintiffs challenged several provisions of IIRIRA, an Act of

Congress, which established the expedited removal provisions

enacted by the legislative branch. Id. In such a case, the Court

would have been able to enjoin any unlawful provisions as to the

plaintiffs in the case only because the plaintiffs challenged

“removal procedures established by Congress.”   See H.R. REP. No.

104-469(I) at 161.

      In contrast, the plaintiffs here have challenged the

action of the Attorney General, not legislation passed by

Congress. Moreover, the plaintiffs requested that the Attorney

General conform the policies to the immigration laws. See

Memorandum Opinion, ECF No. 106 at 101 (explaining the

plaintiffs do not challenge the statute but rather seek to

enjoin the government from violating the statute). The unlawful

policies in this case were not the result of action by the

legislature, but rather a policy directive issued by the

executive branch. Again, it is the will of Congress--not the

whims of the executive--that determines the standard for

expedited removal. And when there is an inconsistency, the

latter must accede to the former.




                                8
          iii. AILA and 8 U.S.C. Section 1252(f)

     The government, citing AILA, argues that the Court of

Appeals for the District of Columbia Circuit (“D.C. Circuit”)

has “indicated” that relief in cases brought under section

1252(e)(3) should be limited to the parties before the Court,

and only those parties. Defs.’ Mot. to Stay, ECF No. 107 at 5.

AILA concerned the doctrine of third-party standing, and the

organizational plaintiffs in that case sought to litigate the

rights of aliens who were not parties to the suit. 199 F.3d at

1357. As the D.C. Circuit explained, the organizational

plaintiffs alleged that the new statutory scheme "violated not

their rights or the rights of their members, but the [rights] of

unnamed aliens who were or might be subject to the statute and

regulations." Id. Because the organizational plaintiffs did not

have standing, the D.C. Circuit had no occasion to discuss the

limits of an appropriate remedy. Id. at 1364 (holding “plaintiff

organizations do not have standing to raise claims, whether

statutory or constitutional, on behalf of aliens subjected to

IIRIRA's expedited removal system”). The D.C. Circuit simply

noted that the statutory scheme supported its view that

litigants could not assert the rights of others in a 1252(e)(3)

action. Id. at 1359. In support of this view, the Court pointed

to two provisions relevant to this case: section 1252(e)(1)(B)

which prohibits class actions; and section 1252(f)(1) which only

                                9
authorizes injunctive relief for the parties to a case when the

parties challenge the legality of an immigration statute. Id.

     As explained in this Court’s Memorandum opinion, section

1252(f)(1) only applies when a party is challenging the legality

of a statute, and not when a party argues that the defendant’s

actions violate the statute. ECF No. 106 at 101. In AILA, the

organizational plaintiffs argued that the statute itself was

unconstitutional, not that defendants were not complying with

the statute, therefore the D.C. Circuit’s analysis of 1252(f) is

wholly consistent with this Court’s Memorandum Opinion. As for

the bar on class certification, the Court has already ruled that

the injunction is not tantamount to class-wide relief. See supra

at 6. In any event, AILA was an analysis of third-party

standing, and the D.C. Circuit did not address what relief would

be appropriate when a plaintiff that was subject to the

expedited removal process successfully challenges a policy that

violates the immigration laws. The government’s reliance on AILA

is therefore misplaced.

     In light of the foregoing analysis, the Court is not

persuaded that the government is likely to prevail on appeal.

     B. Irreparable Injury

     The Court next considers if the government has shown it

will be “irreparably injured absent a stay.” Nken, 556 U.S. at

434. (citation omitted). The claimed irreparable injury must be

                               10
likely to occur; “simply showing some ‘possibility of

irreparable injury’” is insufficient. Id. (citation omitted).

     The government briefly states it will be irreparably

harmed, arguing that “[a]n[] order that enjoins a governmental

entity from enforcing actions taken pursuant to statutes enacted

by the duly elected representatives of the people constitutes an

irreparable injury.” Defs.’ Mot. to Stay, ECF No. 107 at 7.

There are several problems with this argument. As stated above,

and at length in the Memorandum Opinion, the plaintiffs have not

challenged any action taken pursuant to statutes enacted by

elected representatives. Rather, the challenged action at issue

in this case was taken contrary to the immigration laws. The

plaintiffs have invoked those immigration laws and the Court has

found that several of the policies violate those laws. Moreover,

this was not an action by the legislature, but rather a policy

directive issued by the executive.

     The government, therefore, has not shown that a stay of the

Court’s order is necessary to avoid a likely irreparable injury

in this case.

     C. Substantial Injury to Other Parties and the Public
        Interest

     The Court next addresses the second two factors, which

“merge when the Government is the opposing party.” Nken, 556

U.S. at 434. The government briefly argues that no party will be


                               11
harmed if the Court grants the stay because the policies are

enjoined as to all the plaintiffs in this case. Defs.’ Mot. to

Stay, ECF No. 107 at 6. However, the government fails to

acknowledge that the Court considers harm to non-parties. See

Loving v. I.R.S., 920 F. Supp. 2d 108, 111 (D.D.C. 2013)

(considering harm to non-parties if the Court granted the stay).

In light of the Court’s finding that the heightened standard

imposed by the policies is unlawful, it is clear that immigrants

who allege credible fears of domestic or gang-related violence

will be harmed by those policies.

     The government does not appear to address the last factor,

i.e., whether the stay is in the public interest. The Court

recognizes that the public has an interest “in efficient

administration of the immigration laws at the border.” Landon v.

Plasencia, 459 U.S. 21, 34 (1982). However, "there is a public

interest in preventing aliens from being wrongfully removed,

particularly to countries where they are likely to face

substantial harm," Nken, 556 U.S. at 436, as well as an interest

in “ensuring that ‘statutes enacted by [their] representatives’

are not imperiled by executive fiat.” East Bay Sanctuary

Covenant v. Trump, 909 F.3d 1219, 1255 (9th Cir. 2018)(citation

omitted).

     The Court is also mindful that the Supreme Court has

cautioned against overbroad injunctions because, in certain

                               12
circumstances, they “may have a detrimental effect by

foreclosing adjudication by a number of different courts and

judges.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Other

courts have highlighted concerns such as depriving non-parties

the right of litigating in other forums; and the potential for

forum shopping “which hinders the equitable administration of

laws.” See California v. Azar, 911 F.3d 558, 583 (9th Cir.

2018). However, because of the unique statutory scheme for

systemic challenges under section 1252(e)(3), none of these

concerns are relevant here. Jurisdiction to review new written

policy directives that implement the fair credibility

determination process is limited to the United States District

Court for the District of Columbia. 8 U.S.C. § 1252(e)(3)(A).

Accordingly, the concern that an injunction in this case will

foreclose adjudication by other courts, or encourage forum

shopping for these types of claims, simply is not present.

Similarly, there is no concern that the Court’s injunction will

deprive non-parties “the right to litigate in other forums,”

Azar, 911 F.3d at 583, since the District of Columbia is the

only forum authorized by the statute.

     Having considered the stay factors, the Court concludes

that the government has failed to meet its burden to justify the

Court’s exercise of the extraordinary remedy of staying its

final judgment pending appeal. See Cuomo, 772 F.2d at 974.

                               13
III. Conclusion

     For the foregoing reasons, the Court ORDERS that

defendants’ motion to stay the Court’s final judgment pending

appeal is DENIED.

SO ORDERED

Signed:   Emmet G. Sullivan
          United States District Judge
          January 25, 2019




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