Mansor v. United States Citizenship and Immigration Services

Opinion

1 2

3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 10 FAYEZ MANSOR, et al., CASE NO. C23-0347JLR 11 Plaintiffs, ORDER v. 12 UNITED STATES CITIZENSHIP 13 AND IMMIGRATION SERVICES, et al., 14 15 Defendants. I. INTRODUCTION 16 Before the court is Defendants United States Citizenship and Immigration Services 17 (“USCIS”), Secretary of the Department of Homeland Security Alejandro Mayorkas, and 18 USCIS Director Ur Jaddou’s (collectively, “Defendants”) motion to dismiss for lack of 19 subject matter jurisdiction and for failure to state a claim. (MTD (Dkt. # 42); Reply (Dkt. 20 # 47); Supp. Reply (Dkt. # 49).) Plaintiffs Fayez Mansor, Eclesiaste Coissy, Cabdi 21 Ibrahim Xareed, and Shukria Zafari (collectively, “Plaintiffs”) oppose the motion. (Resp. 22 1 (Dkt. # 46); Supp. Resp. (Dkt. # 50).) The court has reviewed the parties’ submissions, 2 the balance of the record, and applicable law. Being fully advised,1 the court GRANTS

3 in part and DENIES in part Defendants’ motion. 5 The court reviews the statutory and regulatory background as well as the factual 6 and procedural background relevant to Defendants’ motion. 7 A. Statutory and Regulatory Background 8 The Immigration and Nationality Act (the “INA”) authorizes the Secretary of

9 Homeland Security to award Temporary Protected Status (“TPS”) to noncitizens2 from 10 countries with certain emergent conditions. See 8 U.S.C. § 1254a(b)(1) (allowing the 11 Secretary to designate for TPS countries where there is an ongoing armed conflict, an 12 environmental disaster, or epidemic). A noncitizen from a designated country is eligible 13 for TPS if they: (1) have been “continually present in the United States since the

14 effective date of the most recent designation” of their country of origin; (2) have 15 “continuously resided in the United States” since the designation date; and (3) are 16 “admissible as an immigrant.” Id. § 1254a(c)(1)(A)(i)-(iii). USCIS must deny TPS to 17 certain classes of noncitizens, such as those involved in terrorist activities, convicted of a 18

19 1 Plaintiffs request oral argument. (See Resp. at 1.) However, the court has determined oral argument would not be helpful to its disposition of the motion. See Local Rules W.D. 20 Wash. LCR 7(b)(4).

2 The TPS statute and its implementing regulations refer to “aliens,” see generally 21 8 U.S.C. § 1254a, but the parties generally use the word “noncitizens” to refer to foreign nationals who apply for TPS (see generally MTD, Resp.). The court adopts the parties’ 22 phrasing. 1 felony or at least two misdemeanors in the United States, or “if there are reasonable 2 grounds for regarding the [noncitizen] as a danger to [U.S.] security.” Id.

3 §§ 1254a(c)(2)(B), 1158(b)(2)(A). 4 TPS temporarily protects noncitizens from deportation or removal from the United 5 States and grants them work authorization. Id. § 1254a(a)(1). Specifically, the statute 6 provides that the government “shall authorize the [noncitizen] to engage in employment 7 in the United States and provide the [noncitizen] with an ‘employment authorized’ 8 endorsement or other appropriate work permit.” Id. § 1254a(a)(1)(B). The statute further

9 provides that, “[i]n the case of [a noncitizen] who establishes a prima facie case of 10 eligibility for [TPS] benefits . . . until a final determination with respect to the 11 [noncitizen’s] eligibility for such benefits . . . has been made, the [noncitizen] shall be 12 provided such benefits.” 8 U.S.C. § 1254a(a)(4)(B); see also 8 C.F.R. § 244.5(b) (“Upon 13 the filing of an application for [TPS], the [noncitizen] shall be afforded temporary

14 treatment benefits, if the application establishes the [noncitizen’s] prima facie eligibility 15 for [TPS].”). The statute’s implementing regulations define “prima facie” as “eligibility 16 established with the filing of a completed application for [TPS] containing factual 17 information that if unrebutted will establish a claim for eligibility” under the statute. 18 8 C.F.R. § 244.1. The temporary treatment benefits are protection from deportation and

19 employment authorization. See 8 U.S.C. § 1254a(a)(1); 8 C.F.R. § 244.10(e)(1). The 20 regulation further provides that “Temporary treatment benefits shall be evidenced by the 21 issuance of an employment authorization document,” and that “temporary treatment 22 1 benefits shall remain in effect until a final decision has been made on the application for 2 [TPS].” 8 C.F.R. § 244.10(e)(1), (2).

3 To apply for TPS, a noncitizen from a country designated for TPS must submit a 4 completed Form I-821 during the designated registration period. See generally USCIS, 5 Instructions for Application for Temporary Protected Status, 6 https://www.uscis.gov/sites/default/files/document/forms/i-821instr.pdf, (last accessed 7 Aug. 1, 2023); (see Compl. (Dkt. # 1) ¶ 28 (describing this process)). USCIS then sends 8 a receipt acknowledging the completed application and begins processing it, but under

9 USCIS’s current processes, this receipt does not contain an “employment authorized” 10 endorsement. (See Compl. ¶ 52; Maltese Decl. (Dkt. # 4) ¶ 3, Ex. A (the “Mansor 11 Receipt”) at 2, id. ¶ 4, Ex. B (the “Zafari Receipt”) at 2.) According to Plaintiffs, USCIS 12 guidance “prohibits the presentation of a TPS application receipt notice as evidence of 13 the noncitizen’s authorization to work.” (Compl. ¶ 54.) Rather, even noncitizens whose

14 TPS applications have been granted must separately apply for an Employment 15 Authorization Document (“EAD”) using Form I-765. (Id.); see also A.A. v. United States 16 Citizenship and Immigration Servs., Case No. C15-0813JLR, 2018 WL 1811352, at *1 17 (W.D. Wash. April 17, 2018) (discussing I-765 application). But USCIS instructs that 18 only TPS holders, and not TPS applicants, may submit a Form I-765. See USCIS,

19 Temporary Protected Status (TPS) - Questions and Answers, 20 https://www.uscis.gov/sites/default/files/document/questions-and-answers/Temporary_Pr 21 otected_Status_TPS_Webinar_Questions_and_Answers.pdf (last accessed August 1, 22 2023) at 4 (instructing TPS applicants that the correct eligibility code for an EAD is the 1 code for TPS holders, not those whose TPS applications are currently pending). (See 2 Compl. ¶¶ 48-50; see also MTD (not refuting this allegation).)

3 On June 9, 2023, USCIS introduced a new program allowing Afghan nationals in 4 the United States to apply for re-parole3 and, if USCIS accepts the application, renew 5 their work authorization incident to parole. See USCIS, Applicants for Re-Parole and 6 Work Authorization Renewal are Fee-Exempt for Certain Afghan Nationals, 7 https://www.uscis.gov/newsroom/alerts/applications-for-re-parole-and-work-authorizatio 8 n-renewal-are-fee-exempt-for-certain-afghan (last accessed August 1, 2023).

9 B. Factual and Procedural Background 10 Plaintiffs are noncitizens from countries designated for TPS. (See Compl. 11 ¶¶ 15-18.) Each of the Plaintiffs has applied for TPS and an EAD, and, with one 12 exception, received receipt notices from USCIS confirming their submission of complete 13 applications. (See id. ¶¶ 15-18, 72-73, 75, 78-79, 81, 83, 85, 87, 91-92, 94.) Plaintiffs

14 assert that they meet the prima facie eligibility criteria for TPS but, as of the filing of the 15 complaint, had yet to receive temporary employment authorization incident to their TPS 16 applications. (See id. ¶¶ 74, 80, 86, 93.) 17 // 18

19 3 Certain noncitizens who are otherwise subject to removal may be “paroled,” or allowed to stay in the United States, while they apply for lawful admission into the United States. See, 20 e.g., Vazquez Romero v. Garland, 999 F.3d 656, 660-61 (9th Cir. 2021). Parole status is often time-limited; “re-parole” is the process by which one seeks reissuance of his or her parole. See USCIS, Applicants for Re-Parole and Work Authorization Renewal are Fee-Exempt for Certain 21 Afghan Nationals, https://www.uscis.gov/newsroom/alerts/applications-for-re-parole-and-work-authorization-renew 22 al-are-fee-exempt-for-certain-afghan (last accessed August 1, 2023). 1 Afghanistan is currently designated for TPS. (Compl. ¶¶ 59-60.) Plaintiff Fayez 2 Mansor is a noncitizen from Afghanistan who applied for TPS on February 21, 2023. (Id.

3 ¶¶ 72-73; Mansor Receipt at 2.) Mr. Mansor has resided in the United States since he 4 first entered the country with parole and applied for TPS and an EAD on February 21, 5 2023. (Id. ¶¶ 73-74.) Mr. Mansor has temporary employment authorization through his 6 parole status, which is not associated with his TPS application and is set to expire on 7 October 3, 2023. (Id. ¶ 76.) Mr. Mansor alleges that losing his work authorization will 8 cause him “significant harm” because he will lose his job and be unable to pay for basic

9 expenses. (Id. ¶ 77.) Plaintiff Shukria Zafari is a noncitizen from Afghanistan who has 10 resided in the United States since she first entered the country on parole on September 8, 11 2021, after being evacuated from Afghanistan. (Id. ¶ 91, 93.) Ms. Zafari applied for TPS 12 and employment authorization on January 3, 2023. (Id. ¶¶ 91-92; Zafari Receipt at 2.) 13 Ms. Zafari also has temporary employment authorization through her parole status, which

14 is not associated with her TPS application and will expire in September 2023. (Id. ¶ 95.) 15 Ms. Zafari also alleges she will endure “significant harm” if she loses her employment 16 authorization and will be unable to support herself and two of her three children who live 17 with her in the United States. (Id. ¶ 96.) 18 Somalia is currently designated for TPS. (Id. ¶¶ 59, 65.) Plaintiff Cabdi Ibrahim

19 Xareed is a noncitizen from Somalia who has resided in the United States since he first 20 entered the country without authorization on September 23, 2022, seeking asylum. (Id. 21 ¶ 83.) Mr. Xareed is in removal proceedings. (Id. ¶ 84.) Mr. Xareed applied for TPS 22 and employment authorization on February 23, 2023. (Id. ¶ 85.) Mr. Xareed has not 1 received receipt notices from USCIS for his applications or temporary employment 2 authorization. (Id. ¶¶ 86-87.) Mr. Xareed alleges that “[e]mployment authorization is

3 critical” for him because he does not have family in the United States to support him and 4 he needs financial resources to find his wife and daughter in Somalia. (Id. ¶¶ 88-89.) 5 Plaintiff Eclesiaste Coissy, a noncitizen from Haiti, was awarded TPS on March 6 15, 2023 and with it, employment authorization. (See Coissy Approval Not. (Dkt. 7 # 36-2).) 8 Plaintiffs filed this proposed class action on March 15, 2023, on behalf of

9 themselves and all others similarly situated, seeking declaratory and injunctive relief. 10 (See generally Compl.) Plaintiffs assert claims under the Declaratory Judgment Act 11 (“DJA”), the Administrative Procedure Act (“APA”), and the Fifth Amendment’s Due 12 Process Clause. (See id. ¶¶ 105-125.) Plaintiffs simultaneously filed motions for class 13 certification (Mot. for Class Cert. (Dkt. # 2)) and for a preliminary injunction that would

14 require Defendants to issue temporary employment authorization to Plaintiffs (Mot. for 15 Prelim. Injunct. (Dkt. # 3)).4 Defendants opposed both motions and filed the instant 16 motion to dismiss. (See Dkt.) The court ordered supplemental briefing regarding the 17 impact, if any, of USCIS’s new initiative waiving fees for Afghan nationals’ re-parole 18 and work authorization renewals on Mr. Mansor and Ms. Zafari’s standing. (See 6/30/23

19 Min Order (Dkt. # 48); Supp. Resp.; Supp. Reply.) 20 // 21

22 4 The court will address these motions in forthcoming orders. 2 The court first reviews the standards for granting a motion to dismiss under

3 Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) before turning to Defendants’ 4 motion. 5 A. Legal Standards 6 Defendants seek dismissal under both Rule 12(b)(1) and Rule 12(b)(6). (MTD at 7 12-25.) The court reviews each standard. 8 1. Rule 12(b)(1)

9 Federal Rule of Civil Procedure 12(b)(1) allows a party to seek dismissal of an 10 action for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Subject matter 11 jurisdiction is a threshold issue that goes to the court’s power to hear a case. Steel Co. v. 12 Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998). When subject matter jurisdiction 13 is challenged, the party asserting that jurisdiction exists bears the burden of proof. Vacek

14 v. United States Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006); see also Benitec 15 Austl., Ltd. v. Nucleonics, Inc., 495 F.3d 1340, 1344 (Fed. Cir. 2007) (“The burden is on 16 the party claiming declaratory judgment jurisdiction to establish that such jurisdiction 17 existed at the time the claim for declaratory relief was filed and that it has continued 18 since.”). The court must accept all factual allegations in the complaint as true and draw

19 all reasonable inferences in Plaintiffs’ favor. Pride v. Correa, 719 F.3d 1130, 1133 (9th 20 Cir. 2013). 21 // 22 1 2. Rule 12(b)(6) 2 Federal Rule of Civil Procedure 12(b)(6) provides for dismissal when a complaint

3 “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). 4 Under this standard, the court construes the claim in the light most favorable to the 5 nonmoving party, Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 6 (9th Cir. 2005), and asks whether the claim contains “sufficient factual matter, accepted 7 as true, to ‘state a claim to relief that is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S. 8 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The

9 court need not accept as true legal conclusions or “formulaic recitation[s] of the legal 10 elements of a cause of action.” Chavez v. United States, 683 F.3d 1102, 1008 (9th Cir. 11 2012). “A claim has facial plausibility when the plaintiff pleads factual content that 12 allows the court to draw the reasonable inference that the defendant is liable for the 13 misconduct alleged.” Iqbal, 556 U.S. at 678.

14 B. Whether Mr. Coissy, Mr. Mansor, and Ms. Zafari have Standing 15 Defendants move to dismiss Mr. Coissy, Mr. Mansor, and Ms. Zafari for lack of 16 subject matter jurisdiction under Rule 12(b)(1) on the basis that these Plaintiffs lack 17 standing. (MTD at 7-9.) To establish Article III standing, a plaintiff must show that 18 (1) he or she has suffered an actual or imminent injury in fact, which is concrete and

19 particularized; (2) there is a causal connection between the injury and conduct 20 complained of; and (3) it is likely that a favorable decision in the case will redress the 21 injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). To survive a motion to 22 dismiss, a plaintiff must allege “specific facts plausibly explaining” each of the standing 1 requirements. Barnum Timber Co. v. United States Environmental Protection Agency, 2 633 F.3d 894, 899 (9th Cir. 2011) (noting that Lujan was a summary judgment case and

3 the plaintiff’s burden is lower at the pleading stage). 4 Defendants argue that the court lacks subject matter jurisdiction over Mr. Coissy, 5 Mr. Mansor, and Ms. Zafari’s claims because they have either received TPS or have and 6 may maintain temporary employment authorization incident to their parole status, and 7 therefore lack standing. (MTD at 7-9; Reply at 7-8 & n.1; Supp. Reply.) Plaintiffs 8 respond that they all have standing. (Supp. Resp at 3-5; Resp. at 7.)

9 1. Whether Mr. Coissy’s Claims are Moot. 10 Defendants argue that because USCIS approved Mr. Coissy’s TPS application and 11 he now has the employment authorization he seeks, his claims are moot. (Id. at 8 (citing 12 Coissy Approval Not.).) “[A] case is moot when the issues presented are no longer ‘live’ 13 or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack,

14 395 U.S. 486, 496 (1969). “In general, when an administrative agency has performed the 15 action sought by a plaintiff in litigation, a federal court ‘lacks the ability to grant effective 16 relief,’ and the claim is moot.” Rosemere Neighborhood Ass’n v. U.S. Env’t Prot. 17 Agency, 581 F.3d 1169, 1173 (9th Cir. 2009) (quoting Pub. Util. Comm’n v. FERC, 100 18 F.3d 1451, 1458 (9th Cir. 1996)). A plaintiff who lacks standing may be dismissed. See,

19 e.g., Coble v. De Rosia, 823 F. Supp. 2d 1048, 1051 (E.D. Cal. 2011). 20 Plaintiffs argue that following class certification, Mr. Coissy’s claims will relate 21 back to the filing of the complaint because the proposed class’s claims are inherently 22 transitory and therefore not moot. (Resp. at 7.) The court concludes that Mr. Coissy’s 1 claims became moot when USCIS granted his TPS application, depriving the court of its 2 ability to grant effective relief. See id. Plaintiffs’ argument that the “inherently

3 transitory” mootness exception saves Mr. Coissy’s claim is inapt, because Defendants do 4 not seek to dismiss the entire action based on the mootness of Mr. Coissy’s individual 5 claims. See, e.g., Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (noting that 6 the court may invoke the relation back doctrine upon class certification “to preserve the 7 merits of the case for judicial resolution.”).5 Accordingly, the court GRANTS 8 Defendants’ motion to dismiss Mr. Coissy and DISMISSES Mr. Coissy from this action.

9 2. Whether Mr. Mansor and Ms. Zafari have Standing. 10 Defendants argue that Mr. Mansor and Ms. Zafari lack standing because they each 11 have EADs through parole. (See MTD at 8.) Defendants acknowledge that Mr. 12 Mansor’s and Ms. Zafari’s employment authorizations will expire this fall, but argue 13 (1) their TPS applications will likely be approved before their current EADs expire in

14 October and (2) the new program allowing Afghan nationals in the United States to apply 15 for re-parole makes any potential lapse in employment authorization “conjectural or 16 hypothetical.” (Id.; Supp. Reply at 4.) Plaintiffs respond that Mr. Mansor and Ms. Zafari 17 have standing because (1) USCIS’s own guidance indicates that it is unlikely to issue Mr. 18 Mansor and Ms. Zafari EADs pursuant to their TPS applications before their current

19 EADs expire and (2) the new re-parole program for Afghan nationals is discretionary, 20

21 5 Nothing in this order precludes the court from determining whether the “inherently transitory” exception applies at a later date. See Belgau v. Inslee, 975 F.3d 940, 949 (9th Cir. 22 2020) (defining “inherently transitory”). 1 such that USCIS could deny their applications and allow their employment authorization 2 to lapse. (Resp. at 6-7 & nn.2 & 3 (citing USCIS websites estimating lengthy processing

3 times for TPS applications and warning applicants that processing times may be longer 4 than estimated); Supp. Resp. at 4; see also Supp. Reply at 2 (acknowledging that “the 5 new program is discretionary”).) 6 The court concludes that although Mr. Mansor and Ms. Zafari currently have 7 temporary employment authorization, they have plausibly alleged “imminent” injuries, 8 see Lujan, 504 U.S. at 560-61, by establishing that their EADs are likely to expire before

9 USCIS adjudicates their TPS applications, (see Compl. ¶¶ 76, 95). The fact that Mr. 10 Mansor’s and Ms. Zafari’s current employment authorizations have not yet expired is no 11 bar to standing where expiration is imminent. See, e.g., Pennsylvania v. West Virginia, 12 262 U.S. 553, 593 (1923) (explaining that a plaintiff does “not have to await the 13 consummation of threatened injury to obtain preventative relief. If the injury is certainly

14 impending, that is enough.”). Additionally, the new program for Afghan nationals does 15 not redress Mr. Mansor and Ms. Zafari’s harms because, as Defendants acknowledge, 16 USCIS retains discretion with respect to whether to approve re-parole and thus, whether 17 to maintain applicants’ employment authorization. Finally, Mr. Mansor and Ms. Zafari 18 have plausibly alleged that their pending loss of employment authorization is due to

19 USCIS’s conduct and would be redressed by a favorable decision here. See Lujan, 504 20 U.S. at 560-61. Therefore, the court DENIES Defendants’ motion with respect to their 21 argument that Mr. Mansor and Ms. Zafari lack standing. 22 1 C. Whether Plaintiffs’ Complaint is Time-Barred 2 Defendants also assert that dismissal is appropriate because Plaintiffs’ claims are

3 barred by the applicable statute of limitations. (Mot. at 9-11). “A statute-of-limitations 4 defense, if ‘apparent from the face of the complaint,’ may properly be raised in a motion 5 to dismiss.” Seven Arts Filmed Ent. Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 6 1254 (9th Cir. 2013) (quoting Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119 7 (9th Cir. 1980)). The APA provides Plaintiffs a six-year limitations period in which to 8 sue federal agencies. See 28 U.S.C. § 2401(a) (providing that, “every civil action

9 commenced against the United States shall be barred unless the complaint is filed within 10 six years after the right of action first accrues”)6; Wind River Min. Corp. v. U.S., 946 F.2d 11 710, 712 (9th Cir. 1991) (applying § 2401(a)’s statute of limitations to APA claims). 12 Under the APA, the cause of action accrues when the contested final agency action 13 occurs. See Wind River, 946 F.2d at 712. A policy-based, facial claim contesting the

14 validity of an agency rule or a claim challenging the procedures used in adopting the rule 15 must be brought within six years of the rule’s adoption. Id. at 715. A claim that an 16 agency decision exceeds statutory or constitutional authority “must be brought within six 17 years of the agency’s application of the disputed decision to the challenger.” Id. at 18 715-16.

19 // 20

6 Section 2401(a) is not jurisdictional. See Cedars-Sinai Med. Ctr. v. Shalala, 125 F.3d 21 765, 770 (9th Cr. 1997). Accordingly, the court assesses Defendants’ statute-of-limitations argument as a Rule 12(b)(6) motion to dismiss standard, and not as a Rule 12(b)(1) motion to 22 dismiss for lack of subject matter jurisdiction. See generally Fed. R. Civ. P. 12(b). 1 Therefore, the court must determine whether, in challenging Defendants’ failure to 2 provide temporary employment authorization when noncitizens file TPS applications that

3 establish prima facie eligibility for TPS, Plaintiffs bring (1) a policy-based, facial 4 challenge to USCIS’s7 adoption of the rule defining “prima facie” eligibility or (2) a 5 claim that USCIS exceeds its statutory authority by withholding temporary employment 6 authorization. See id.8 Defendants argue the former, asserting that the complaint is really 7 a facial challenge to the absence of a deadline in the rule for determining TPS applicants’ 8 prima facie eligibility. (See MTD at 9-11.) Defendants note that during rulemaking,

9 USCIS rejected suggestions to include deadlines or provide that the submission of a 10 completed TPS application establishes prima facie eligibility. (Id. at 9-10 (citing 11 Temporary Protected Status, 56 Fed. Reg. 23491, 23492 (May 22, 1991)); Reply at 4-6.) 12 Thus, Defendants argue, the deficiency Plaintiffs identify was evident when USCIS 13 promulgated the regulation in 1991 and should have been challenged within six years of

14 the rule’s adoption. (See MTD at 9-10; Reply at 4-5 (quoting Wind River, 946 F.2d at 15 715).) Plaintiffs contend that their cause of action accrued when they submitted 16 completed TPS applications with factual allegations that, if unrebutted, would establish 17 their eligibility for TPS, and did not receive temporary employment authorization. (Resp. 18 7 The INA first charged Immigration and Nationality Services (“INS”) with administering 19 TPS, but in 2003, Congress eliminated INS and delegated the administration of TPS to USCIS. (See MTD at 1 n.1); 6 U.S.C. § 111. For simplicity, the court refers to USCIS when discussing 20 actions by either INS or USCIS.

8 In the absence of any discussion by the parties, the court assumes without deciding that 21 USCIS’s failure to issue temporary employment authorization incident to Plaintiffs’ TPS applications is a “final agency action” reviewable under the APA. See 5 U.S.C. § 704; Bennett v. 22 Spear, 520 U.S. 154, 175 (1997); (see MTD; Resp.; Reply). 1 at 9-10.) Plaintiffs argue that they challenge USCIS’s application of the rule to them as 2 exceeding agency authority, and not the rule itself. (Id.)

3 The court concludes that Plaintiffs’ complaint challenges USCIS’s authority to 4 withhold temporary employment authorization once Plaintiffs have established their 5 prima facie eligibility for TPS. (See Compl. ¶¶ 32-56; see also id. ¶ 119 (“Defendants 6 have unlawfully withheld employment authorization documentation from Plaintiffs. The 7 INA and implementing regulations state that Defendants have a mandatory duty to 8 provide Plaintiffs with work authorization, but Defendants do not do so.”).) Without

9 reaching the merits of Plaintiffs’ claims, the court concludes that the agency action at 10 issue is USCIS’s refusal or failure to issue temporary employment authorization while 11 Plaintiffs’ TPS applications are pending. See Calif. Sea Urchin Comm’n v. Bean, 828 12 F.3d 1046, 1049 (9th Cir. 2016) (“Although Plaintiffs cannot now challenge the 1987 13 Final Rule, they can challenge its application in the 2012 program termination as

14 exceeding the agency’s statutory authority.”). Therefore, Plaintiffs’ claims are timely if 15 they were filed within six years after Plaintiffs established their prima facie eligibility for 16 TPS. See Wind River, 12 F.2d at 715-16. Plaintiffs filed applications that allegedly 17 established their prima facie eligibility for TPS in January and February 2023 (Compl. 18 ¶¶ 73, 85, 92) and filed this action on March 9, 2023 (see id. at 22), well within the

19 20 21 22 1 APA’s six-year window, see 28 U.S.C. § 2401(a). Therefore, Plaintiffs’ claims are 2 timely.9

3 The text of the rule does not support Defendants’ argument that Plaintiffs’ injuries 4 would have been apparent in 1991, when USCIS adopted the rule. (See MTD at 10-11; 5 Reply at 5.) Defendants’ practice of not issuing a prima facie eligibility determination 6 upon receipt of a completed TPS application that includes facts showing the applicant 7 meets TPS eligibility criteria is not inevitable from the language of the rule itself. See 8 8 C.F.R. § 244.1. Regardless, “[a] plaintiff cannot be expected to anticipate all possible

9 future challenges to a rule and bring them within six years of the rule’s promulgation, 10 before a later agency action applying the earlier rule leads to an injury.” Calif. Sea 11 Urchin, 838 F.3d at 1049-50. 12 Defendants rely heavily on USCIS’s rejection of certain language during the 13 rulemaking process for their position that Plaintiffs’ complaint is in fact a facial,

14 policy-based challenge to the regulation. (See MTD at 9-10 (“INS rejected two suggested 15 changes to the definition of prima facie eligibility that would have allowed a TPS 16 applicant to establish prima facie eligibility by filing a completed application.” (emphasis 17 omitted)); Reply at 4.) But Plaintiffs do not challenge USCIS’s rejection of any proposed 18 language and argue instead that USCIS violates the regulation itself. (See Compl. ¶ 108

19 (“Federal regulations also mandate that Plaintiffs ‘shall be afforded’ [TPS] benefits.”).) 20

21 9 In resolving the instant motion to dismiss, the court takes no position on whether the submission of a completed application, without more, establishes the TPS applicant’s prima facie 22 eligibility for TPS. (See Compl. ¶ 37, MTD at 9-10.) 1 Moreover, Defendants cite no authority for the position that merely because an agency 2 declined to write a rule in a way that may have prevented a person’s injury, that person

3 may only redress her injury in a facial challenge to the rule. (See MTD; Reply.) This 4 argument is especially flawed where, as here, a subsequent agency action caused the 5 injury. See Calif. Sea Urchin, 828 F.3d at 1051 (concluding that although the rule itself 6 conferred the authority on which the agency later acted to cause the injury, “it is the 7 recent action, not the earlier rule, that caused Plaintiffs’ injury.”).10 The court declines to 8 reach such a conclusion here and DENIES Defendants’ motion to dismiss as time-barred.

9 D. Whether Plaintiffs’ APA Claims Should be Dismissed 10 Plaintiffs bring challenges under the APA, arguing USCIS’s “policy or practice” 11 of refusing to provide temporary employment authorization upon the filing of a 12 completed TPS application is arbitrary and capricious (Compl. ¶¶ 112-16 (citing 5 U.S.C. 13 § 706(2)(A),(C))), “an agency action unlawfully withheld,” (id. ¶¶ 118-120 (quoting 5

14 U.S.C. § 706(1))), and procedurally deficient (id. ¶¶ 123-24 (quoting 5 U.S.C. 15 § 706(2)(D))). Defendants’ motion to dismiss Plaintiffs’ APA claims is predicated 16 entirely on its argument that Plaintiffs bring a facial, policy-based challenge to 8 C.F.R. 17

18 10 The only case Defendants cite in support of their argument, Wind River Mining Corp. v. U.S., does not help them. (See MTD at 9-11; Reply at 4-5 (citing 12 F.2d 710).) There, Wind 19 River, a mining company, challenged as ultra vires the Bureau of Land Management’s (BLM) designation of certain parcels of land as Wilderness Study Areas (WSAs) where mining activity 20 was prohibited. Wind River, 12 F.2d at 711. In 1979, BLM designated one such parcel as a WSA in which Wind River acquired mining stakes several years later. Id. at 711. But when Wind River sued in 1989, the Ninth Circuit determined that the final agency action was BLM’s 21 1987 refusal to invalidate its WSA designation as ultra vires. Id. at 715-16 (finding Wind River’s complaint timely). Under Defendants’ logic, Wind River’s claim was also untimely, but 22 the Wind River Court concluded the opposite. Id. at 716. 1 § 244.1. (See MTD at 18-23 (arguing that the court must defer to USCIS’s decisions as 2 reasonable interpretations of an ambiguous statute) (citing Chevron, U.S.A., Inc. v. Nat.

3 Res. Defense Council, Inc., 467 U.S. 837 (1984)).) But the court has already determined 4 that Defendants mischaracterize Plaintiffs’ claims and concludes that Plaintiffs do not 5 challenge USCIS’s interpretation of the phrase “prima facie eligibility,” or any other 6 regulation subject to Chevron deference. (See supra § III.C; see Chevron, 467 U.S. at 7 844 (directing courts to give an agency’s interpretation of an ambiguous statute that the 8 agency administers “controlling weight unless they are arbitrary, capricious, or

9 manifestly contrary to the statute.”). Because Defendants’ arguments are inapplicable to 10 Plaintiffs’ claims, the court need not address them and DENIES Defendants’ motion to 11 dismiss Plaintiffs’ APA claims. 12 E. Whether Plaintiffs Plausibly Allege a Constitutionally Protected Interest 13 The Fifth Amendment’s Due Process Clause provides that no person shall “be

14 deprived of life, liberty, or property without due process of law.” U.S. Const. amend. V. 15 To bring a procedural or substantive due process claim, a plaintiff must carefully describe 16 the asserted right. Reno v. Flores, 507 U.S. 292, 302 (1993). The Fifth Amendment 17 protects a due process right to a government benefit if the plaintiff has “an entitlement to 18 it,” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972), but “a benefit is not

19 a protected entitlement if government officials may grant or deny it in their discretion,” 20 Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005). Thus, a plaintiff has “a 21 reasonable expectation of entitlement” protected by substantive due process if the statute 22 conferring the benefit is nondiscretionary and “couch[es the entitlement] in mandatory 1 terms.” Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994). 2 “Determinations that require application of law to factual determinations are

3 nondiscretionary.” Hernandez v. Ashcroft, 345 F.3d 824, 833-34 (9th Cir. 2003) (cleaned 4 up). 5 Plaintiffs allege that the INA guarantees them employment authorization incident 6 to their pending TPS applications; that they therefore have a due process right to the 7 “implementation of a process or procedure to afford them evidence of the employment 8 authorization guaranteed to them by statute and regulation”; and that Defendants have

9 failed to implement such a process. (Compl. ¶¶ 122-24.) Defendants assert that Plaintiffs 10 fail to adequately allege any cognizable due process interest in or fundamental right to 11 temporary employment authorization incident to their TPS applications. (MTD at 17-18.) 12 Defendants argue that Plaintiffs “have not yet established that they are prima facie 13 eligible for TPS,” and are therefore not yet guaranteed temporary employment

14 authorization. (Id.) Defendants argue further that Plaintiffs’ interest in employment 15 authorization is not cognizable because USCIS retains discretion with respect to when it 16 must issue a prima facie eligibility decision. (Reply at 11-12.) 17 The court must therefore determine whether the statutory and regulatory 18 provisions at issue here are sufficiently mandatory to confer an entitlement protected by

19 the Fifth Amendment’s Due Process Clause. See Wedges/Ledges, 24 F.3d at 62. First, 20 Defendants do not argue that TPS eligibility criteria are discretionary (see generally 21 MTD; Resp.), and the court independently concludes that they are not, see 8 U.S.C. 22 § 1254a(c) (setting forth clear eligibility criteria and specific, mandatory exceptions); (see 1 also supra § II.A (discussing the same)). See also Ching v. Mayorkas, 725 F.3d 1149, 2 1155 (9th Cir. 2013) (finding a property interest in approval of an I-130 visa petition

3 because approval process requiring application of law to factual determinations was 4 nondiscretionary). Second, the TPS statute unambiguously entitles a prima facie eligible 5 TPS applicant to temporary employment authorization. See 8 U.S.C. § 1254a(a)(4)(B) 6 (“In the case of a[ noncitizen] who establishes a prima facie case of eligibility for [TPS] 7 benefits . . . , until a final determination with respect to the [noncitizen’s] eligibility for 8 such benefits . . . has been made, the [noncitizen] shall be provided such benefits.”)

9 (emphasis added). Therefore, a prima facie eligible TPS applicant has a property interest 10 in temporary employment authorization subject to due process protections. 11 The only remaining question is whether 8 C.F.R. § 244.1 is sufficiently mandatory 12 to entitle an applicant to a determination of prima facie eligibility, and with it, temporary 13 employment authorization. See Wedges/Ledges, 24 F.3d at 62. The court concludes that

14 it does. Ching v. Mayorkas is instructive: there, the Ninth Circuit determined that a 15 provision of the INA setting forth the procedures for approving a I-130 visa petition was 16 sufficiently “couched in mandatory terms” to confer a property interest. Ching, 725 F.3d 17 at 1155-56. The statute at issue provided, in relevant part, “After an investigation into the 18 facts in each case, . . . the [Secretary] shall, if he determines that the facts stated in the

19 petition are true . . . approve the petition.” 8 U.S.C. § 1154(b). The Ching Court 20 concluded that because the statute required the application of law to factual 21 determinations, it was nondiscretionary and therefore conferred a property interest in the 22 visa. Ching, 725 F.3d at 1155 (quoting Hernandez, 345 F.3d at 833-34). Similarly, 8 1 C.F.R. § 244.1 provides that a TPS applicant is prima facie eligible if the facts in his 2 application are true and establish eligibility for TPS.11 Compare 8 U.S.C. § 1154(b), with

3 8 C.F.R. § 244.1 (“Prima facie means eligibility established with the filing of a completed 4 application for [TPS] containing factual information that if unrebutted will establish a 5 claim of eligibility under [8 U.S.C. § 1254a].”). If the applicant meets these criteria, 6 USCIS must grant temporary employment authorization. See 8 U.S.C. § 1254a(a)(4)(B). 7 Defendants argue that because USCIS retains discretion with respect to when to 8 determine prima facie eligibility, “Plaintiffs lack any present ‘legitimate expectation of

9 entitlement’ to receiving employment authorization now.” (See Reply at 12 (quoting 10 Allen v. Beverly Hills, 911 F.2d 367, 370 (9th Cir. 1990)).) But the question of whether 11 Plaintiffs have already established their eligibility for a mandatory benefit is irrelevant to 12 whether they have a protected property interest in the benefit itself. See Roth, 408 U.S. at 13 577 (noting that Supreme Court had previously determined that welfare recipients had a

14 property interest in continued welfare benefits before they had established eligibility for 15 such benefits) (citing Goldberg v. Kelly, 397 U.S. 254 (1970)). In other words, even if 16 USCIS retains discretion with respect to when to issue a prima facie eligibility 17 determination, it does not retain discretion with respect to whether to issue such a 18 determination; only the latter is material to whether Plaintiffs have articulated a

19 20 11 The court need not and does not determine which party correctly interprets 8 C.F.R. § 244.1. At the pleading stage, the court determines only that the language of 8 C.F.R. § 244.1 21 and 8 U.S.C. § 1254a do not foreclose Plaintiffs’ interpretations and attendant theories of liability. See, e.g., San Miguel, 317 F. Supp. 3d at 1087-88 (denying motion to dismiss claim 22 based on disputed but plausible interpretation of statute). 1 “cognizable interest” in the benefit. See Gonzales, 545 U.S. at 756. Thus, because 2 8 C.F.R. § 244.1 restricts USCIS’s discretion to reject or deny a prima facie eligibility

3 determination, it confers a property interest subject to procedural due process protections. 4 See id.; Wedges/Ledges, 24 F.3d at 62. Accordingly, the court DENIES Defendants’ 5 motion to dismiss Plaintiffs’ due process claims. 6 F. Whether Plaintiffs’ Declaratory Judgment Act Claim Should be Dismissed 7 Under the DJA, a federal court “may declare the rights and other legal relations of 8 any interested party seeking such declaration, whether or not further relief is or could be

9 sought,” but only “[i]n a case of actual controversy.” 28 U.S.C. § 2201(a). Declaratory 10 relief is appropriate “(1) when the judgment will serve a useful purpose in clarifying and 11 settling the legal relations in issue, and (2) when it will terminate and afford relief from 12 the uncertainty, insecurity, and controversy giving rise to the proceeding.” See Eureka 13 Fed. Sav. and Loan Ass’n v. Am. Cas. Co. of Reading, Pa., 873 F.2d 229, 231 (9th Cir.

14 1989). Plaintiffs ask the court to declare that “8 U.S.C. § 1254a requires Defendants to 15 provide employment authorization documentation while Plaintiffs’ applications for TPS 16 are pending.” (Compl. ¶ 107.) 17 Defendants first ask the court to dismiss Plaintiffs’ DJA claim because the statute 18 does not confer subject matter jurisdiction on its own, but relies on a predicate cause of

19 action establishing an “independent basis for federal jurisdiction.” (MTD at 18 (quoting 20 Nationwide Mut. Ins. Co. v. Liberator, 408 F.3d 1158, 1161 (9th Cir. 2005)).) 21 Defendants rely on their arguments that the court lacks subject matter jurisdiction 22 because the Plaintiffs lack standing or because their claims are time-barred. (Id.) 1 Because the court has already rejected these arguments (see supra § III.B-C; id. n.6 2 (noting § 2401(a) is not jurisdictional)), Defendants’ first attack on Plaintiffs’ DJA claim

3 fails. 4 Second, Defendants argue the court should exercise its discretion to dismiss 5 Plaintiffs’ DJA claim as duplicative of their APA claims, which, if successful, would 6 offer the same relief. (MTD at 19 (citing Mangindin v. Wash. Mut. Bank, 637 F. Supp. 7 2d 700, 707 (N.D. Cal. 2009) (noting “a claim for declaratory relief is unnecessary where 8 an adequate remedy exists under some other cause of action.”)); Reply at 12.)12 Plaintiffs

9 counter that any relief they may obtain under the APA would only address Defendants’ 10 current policy, whereas a declaratory judgment could affirmatively establish their rights. 11 (Resp. at 19-20 (citing McGraw-Edison Co. v. Performed Line Prods. Co., 362 F.2d 339, 12 343 (9th Cir. 1966)). The court concludes that Plaintiffs’ DJA claim is not duplicative of 13 their APA claims, because a judgment in their favor could, for example, set aside

14 Defendants’ “policy and practice” as ultra vires without necessarily clarifying Plaintiffs’ 15 affirmative rights under the statute, if any. Therefore, the court DENIES Defendants’ 16 motion to dismiss Plaintiffs’ DJA claim. 18 For the foregoing reasons, the court GRANTS in part and DENIES in part

19 Defendants’ motion to dismiss (Dkt. # 42). The court GRANTS Defendants’ motion 20

12 Defendants also argue that Plaintiffs’ APA claims lack merit, and their “duplicative” 21 DJA claim should therefore be dismissed on that basis as well. (MTD at 18.) Because the court already rejected Defendants’ arguments that Plaintiffs’ APA claims lack merit, the court rejects 22 this argument as well. (See supra § III.D.) 1 with respect to their argument that Plaintiff Eclesiaste Coissy lacks standing, 2 DISMISSES Mr. Coissy’s claims, and DENIES their motion in all other respects.

3 Dated this 2nd day of August, 2023. 4 A 5 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18

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