Northwest Immigrant Rights Project et al v. Sessions, III et al

Filing 33

ORDER granting Plaintiffs' 2 Motion for a Temporary Restraining Order, by Judge Richard A Jones. (PM)

THE HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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NORTHWEST IMMIGRANT RIGHTS
PROJECT (“NWIRP”), a nonprofit
Washington public benefit corporation; and
YUK MAN MAGGIE CHENG, an
individual,

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ORDER

Plaintiffs,

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No. 2:17-cv-00716

v.
JEFFERSON B. SESSIONS III, in his
official capacity as Attorney General of the
United States; UNITED STATES
DEPARTMENT OF JUSTICE;
EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; JUAN
OSUNA, in his official capacity as Director
of the Executive Office for Immigration
Review; and JENNIFER BARNES, in her
official capacity as Disciplinary Counsel for
the Executive Office for Immigration
Review,

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Defendants.
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This matter comes before the Court on Plaintiffs Northwest Immigrant Rights

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Project (“NWIRP”) and Yuk Man Maggie Cheng’s Motion for a Temporary Restraining

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Order (“TRO”). 1 Dkt. # 2. The Government opposes the motion. 2 Dkt. # 14. The

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The Court refers to the Plaintiffs collectively as “NWIRP” or “Plaintiffs.”
The Court refers to the Defendants collectively as “EOIR” or “the Government.”

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Court heard oral argument on May 17, 2017. For the reasons stated below, the Court

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GRANTS the motion and enters a TRO with terms as stated at the conclusion of this

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order.

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I.

BACKGROUND

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Washington nonprofit Northwest Immigrant Rights Project (“NWIRP”) provides

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free and low-cost legal services to thousands of immigrants each year. Dkt. # 1. The

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Executive Office for Immigration Review (“EOIR”), an office within the Department of

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Justice (“DOJ”), oversees the adjudication of immigration cases. Id. at ¶ 1.5. In

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seeking to improve immigrants’ access to legal information and counseling, EOIR

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provides an electronic list of pro bono legal services providers. With regard to

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Washington, EOIR’s entire list of recognized pro bono organizations includes one

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group—the NWIRP. Dkt. ## 2 at 17, 3 (Warden-Hertz Decl.) at ¶ 4.

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In December 2008, EOIR published new rules regulating the professional

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conduct of attorneys who appear in immigration proceedings. Specifically, EOIR

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reserved the right to “impose disciplinary sanctions against any practitioner who . . .

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[f]ails to submit a signed and completed Notice of Entry of Appearance as Attorney or

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Representative . . . when the practitioner has engaged in practice or preparation as those

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terms are defined in §§ 1001.1(i) and (k) . . . .” 8 C.F.R. § 1003.102(t). The purpose of

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these amendments was to protect individuals in immigration proceedings by disciplining

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attorneys when it is within “the public interest; namely, when a practitioner has engaged

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in criminal, unethical, or unprofessional conduct or frivolous behavior.” Professional

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Conduct for Practitioners—Rules and Procedures, and Representation and Appearances,

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73 Fed. Reg. 76914-01, at *76915 (Dec. 18, 2008). With these new rules, EOIR sought

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“to preserve the fairness and integrity of immigration proceedings, and increase the

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level of protection afforded to aliens in those proceedings . . . .” Id.

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NWIRP recognizes the importance of attorney accountability, especially in the

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immigration context. Indeed, NWIRP became an ally to EOIR in its efforts to combat
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“notario fraud.” Dkt. # 1 (Complaint) at ¶ 3.12. However, NWIRP also recognizes that

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section 1003.102(t) has harmful consequences because NWIRP does not have the

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resources to undertake full representation of each potential client. Id. at ¶¶ 3.5, 3.21-

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3.23. Accordingly, NWIRP alleges that it “met with the local immigration court

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administrator to discuss” the rule’s impact and “agreed that it would notify the court

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when it assisted with any pro se motion or brief by including a subscript or other clear

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indication in the document that NWIRP had prepared or assisted in preparing the

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motion or application.” Id. at ¶ 3.11.

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Nearly nine years after promulgating the rule, EOIR sent a cease and desist letter

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to NWIRP asking the nonprofit to stop “representing aliens unless and until the

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appropriate Notice of Entry of Appearance form is filed with each client that NWIRP

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represents.” Id. at ¶ 3.14. EOIR’s letter acknowledged that the disputed forms on

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which NWIRP assisted “contained a notation that NWIRP assisted in the preparation of

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the pro se motion.” Dkt. # 1-1.

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NWIRP filed suit against EOIR, among others, seeking injunctive relief from the

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enforcement of section 1003.102(t). See, generally, Dkt. # 1 (Complaint). In moving

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for a temporary restraining order, NWIRP seeks to maintain the status quo until the

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parties can be heard on a motion for preliminary injunction. Dkt. # 21; see also Granny

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Goose Foods, Inc. v. Bhd. Of Teamsters & Auto Truck Drivers Local No. 70 of Alameda

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Cty, 415 U.S. 423, 439 (1974). EOIR responds by denying that it has violated any

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constitutional rights by promulgating and enforcing its own rules. See, generally, Dkt. #

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14. EOIR opposes the issuance of any injunctive relief. Id.

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II.

LEGAL STANDARD

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To obtain preliminary injunctive relief, NWIRP must “establish that [it] is likely

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to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of

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preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is

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in the public interest.” Winter v. Natural Resources Defense Council, Inc., 55 U.S. 7,
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20 (2008). The standard for a temporary restraining order is substantially the same.

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Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001)

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(noting that preliminary injunction and temporary restraining order standards are

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“substantially identical”).

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The Ninth Circuit employs a “sliding scale” approach to preliminary injunctions,

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according to which the four elements are balanced, “so that a stronger showing of one

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element may offset a weaker showing of another.” All. for the Wild Rockies v. Cottrell,

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632 F.3d 1127, 1131 (9th Cir. 2011). Within this “sliding scale” approach lays the

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“serious question” test: “a preliminary injunction could issue where the likelihood of

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success is such that ‘serious questions going to the merits were raised and the balance of

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hardships tips sharply in [plaintiff's] favor.’” Id. at 1131 (citations omitted). However,

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to succeed under the “serious question” test, a plaintiff must show that it is likely to

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suffer irreparable harm and an injunction is in the public interest. Id. at 1132.

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Regardless of the test used, the burden is on the moving party to show that such
extraordinary relief is warranted. Winter, 555 U.S. at 22.

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III.

DISCUSSION

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The Court finds that NWIRP has satisfied the standards described above—both

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those outlined in Winter and in the “serious question” test—and this Court should issue

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a TRO. NWIRP has shown that it is likely to succeed on the claims that entitle it to

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relief; NWIRP has already suffered and is likely to continue suffering irreparable harm

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in the absence of temporary injunctive relief; the balance of the equities tips in

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NWIRP’s favor; and granting this TRO is in the public interest. Alternatively, NWIRP

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has at least presented serious questions that go to the merits of its claims, and, as the

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Court previously noted, NWIRP satisfies the remaining Winter elements.

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The Court finds that NWIRP met its burden to show that it is immediately and

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irreparably harmed, and will continue to be so harmed, as a result of EOIR’s

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enforcement of 8 C.F.R. § 1003.102(t) against NWIRP attorneys. NWIRP’s
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constitutional rights are violated by EOIR’s potentially targeted enforcement of section

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1003.102(t). These harms are significant and ongoing, and the Court therefore finds

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that entering this TRO against the Government is necessary to maintain the status quo

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until such time as the Court may hear and decide the matter of a preliminary injunction.

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IV.

TEMPORARY RESTRAINING ORDER

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1.

Plaintiffs’ Motion for a Temporary Restraining Order (Dkt. # 2) is

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GRANTED.
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Defendants Jefferson B. Sessions III, the United States Department of

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Justice, the Executive Office for Immigration Review, Juan Osuna, and Jennifer Barnes,

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and all of their officers, agents, servants, employees, attorneys, successors, assigns, and

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persons acting in concert or participation with them are hereby ENJOINED and

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RESTRAINED from
(a) Enforcing the cease-and-desist letter, dated April 5, 2017, from Defendant

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Barnes and EOIR’s Office of General Counsel to NWIRP; and

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(b) Enforcing or threatening to enforce 8 C.F.R. § 1003.102(t) against

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Plaintiffs and all other attorneys under their supervision or control, or who

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are otherwise associated with them.

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3.

Counsel for the Government represented during the hearing on the TRO

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that it desired to continue issuing cease and desist letters to non-profit organizations

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providing legal services to immigrants. As such, the Court grants this TRO on a

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nationwide basis. Therefore, the Court prohibits the enforcement of 8 C.F.R. §

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1003.102(t) during the pendency of this TRO on a nationwide basis.

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4.

No security bond is required under Federal Rule of Civil Procedure 65(c).

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The parties shall, within 2 days of this Order, propose a briefing schedule

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and noting date with respect to Plaintiffs’ forthcoming motion for a preliminary

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injunction. At that time, the Court may schedule a hearing on Plaintiffs’ motion for a

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preliminary injunction, if necessary, following receipt of the parties’ briefing.
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This temporary restraining order shall remain in effect until the Court

rules on Plaintiffs’ motion for a preliminary injunction.

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V.

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For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion for a

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CONCLUSION

Temporary Restraining Order. Dkt. # 2.

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Dated this 17th day of May, 2017.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER-6