United States District Court, W.D. Washington
NORTHWEST IMMIGRANT RIGHTS PROJECT “NWIRP”, a nonprofit Washington public benefit corporation; and YUK MAN MAGGIE CHENG, an individual, Plaintiffs,
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, Defendants.
Honorable Richard A. Jones United States District Judge.
matter comes before the Court on Plaintiffs Northwest
Immigrant Rights Project (“NWIRP”) and Yuk Man
Maggie Cheng's Motion for a Temporary Restraining Order
(“TRO”). Dkt. # 2. The Government opposes the
motion. Dkt. # 14. The Court heard oral argument
on May 17, 2017. For the reasons stated below, the Court
GRANTS the motion and enters a TRO with terms as stated at
the conclusion of this order.
nonprofit Northwest Immigrant Rights Project
(“NWIRP”) provides free and low-cost legal
services to thousands of immigrants each year. Dkt. # 1. The
Executive Office for Immigration Review (“EOIR”),
an office within the Department of Justice
(“DOJ”), oversees the adjudication of immigration
cases. Id. at ¶ 1.5. In seeking to improve
immigrants' access to legal information and counseling,
EOIR provides an electronic list of pro bono legal services
providers. With regard to Washington, EOIR's entire list
of recognized pro bono organizations includes one group-the
NWIRP. Dkt. ## 2 at 17, 3 (Warden-Hertz Decl.) at ¶ 4.
December 2008, EOIR published new rules regulating the
professional conduct of attorneys who appear in immigration
proceedings. Specifically, EOIR reserved the right to
“impose disciplinary sanctions against any practitioner
who . . . [f]ails to submit a signed and completed Notice of
Entry of Appearance as Attorney or Representative . . . when
the practitioner has engaged in practice or preparation as
those terms are defined in §§ 1001.1(i) and (k) . .
. .” 8 C.F.R. § 1003.102(t). The purpose of these
amendments was to protect individuals in immigration
proceedings by disciplining attorneys when it is within
“the public interest; namely, when a practitioner has
engaged in criminal, unethical, or unprofessional conduct or
frivolous behavior.” Professional Conduct for
Practitioners-Rules and Procedures, and Representation and
Appearances, 73 Fed. Reg. 76914-01, at *76915 (Dec. 18,
2008). With these new rules, EOIR sought “to preserve
the fairness and integrity of immigration proceedings, and
increase the level of protection afforded to aliens in those
proceedings . . . .” Id.
recognizes the importance of attorney accountability,
especially in the immigration context. Indeed, NWIRP became
an ally to EOIR in its efforts to combat “notario
fraud.” Dkt. # 1 (Complaint) at ¶ 3.12. However,
NWIRP also recognizes that section 1003.102(t) has harmful
consequences because NWIRP does not have the resources to
undertake full representation of each potential client.
Id. at ¶¶ 3.5, 3.21-3.23. Accordingly,
NWIRP alleges that it “met with the local immigration
court administrator to discuss” the rule's impact
and “agreed that it would notify the court when it
assisted with any pro se motion or brief by including a
subscript or other clear indication in the document that
NWIRP had prepared or assisted in preparing the motion or
application.” Id. at ¶ 3.11.
nine years after promulgating the rule, EOIR sent a cease and
desist letter to NWIRP asking the nonprofit to stop
“representing aliens unless and until the appropriate
Notice of Entry of Appearance form is filed with each client
that NWIRP represents.” Id. at ¶ 3.14.
EOIR's letter acknowledged that the disputed forms on
which NWIRP assisted “contained a notation that NWIRP
assisted in the preparation of the pro se
motion.” Dkt. # 1-1.
filed suit against EOIR, among others, seeking injunctive
relief from the enforcement of section 1003.102(t). See,
generally, Dkt. # 1 (Complaint). In moving for a
temporary restraining order, NWIRP seeks to maintain the
status quo until the parties can be heard on a motion for
preliminary injunction. Dkt. # 21; see also Granny Goose
Foods, Inc. v. Bhd. Of Teamsters & Auto Truck Drivers
Local No. 70 of Alameda Cty, 415 U.S. 423, 439 (1974).
EOIR responds by denying that it has violated any
constitutional rights by promulgating and enforcing its own
rules. See, generally, Dkt. # 14. EOIR opposes the
issuance of any injunctive relief. Id.
obtain preliminary injunctive relief, NWIRP must
“establish that [it] is likely to succeed on the
merits, that [it] is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities
tips in [its] favor, and that an injunction is in the public
interest.” Winter v. Natural Resources Defense
Council, Inc., 55 U.S. 7, 20 (2008). The standard for a
temporary restraining order is substantially the same.
Stuhlbarg Int'l Sales Co. v. John D. Brush &
Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (noting that
preliminary injunction and temporary restraining order
standards are “substantially identical”).
Ninth Circuit employs a “sliding scale” approach
to preliminary injunctions, according to which the four
elements are balanced, “so that a stronger showing of
one element may offset a weaker showing of another.”
All. for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1131 (9th Cir. 2011). Within this “sliding
scale” approach lays the “serious question”
test: “a preliminary injunction could issue where the
likelihood of success is such that ‘serious questions
going to the merits were raised and the balance of hardships
tips sharply in [plaintiff's] favor.'”
Id. at 1131 (citations omitted). However, to succeed
under the “serious question” test, a plaintiff
must show that it is likely to suffer irreparable harm and an
injunction is in the public interest. Id. at 1132.
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.
Court finds that NWIRP has satisfied the standards described
above-both those outlined in Winter and in the
“serious question” test-and this Court should
issue a TRO. NWIRP has shown that it is likely to succeed on
the claims that entitle it to relief; NWIRP has already
suffered and is likely to continue suffering irreparable harm
in the absence of temporary injunctive relief; the balance of
the equities tips in NWIRP's favor; and granting this TRO
is in the public interest. Alternatively, NWIRP has at least