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Northwest Immigrant Rights Project v. Sessions

United States District Court, W.D. Washington, Seattle

July 27, 2017

NORTHWEST IMMIGRANT RIGHTS PROJECT, et al., Plaintiffs,
v.
JEFFERSON B SESSIONS, III, et al., Defendants.

          ORDER

          Honorable Richard A. Jones United States District Judge

         I. INTRODUCTION

         This matter comes before the Court on Plaintiffs Northwest Immigrant Rights Project's (“NWIRP”) and Yuk Man Maggie Cheng's Motion for Preliminary Injunction.[1]Dkt. # 37. The Government opposes the Motion.[2] Dkt. # 47. On July 24, 2017, the Court heard oral arguments on the matter. Dkt. # 64. For the reasons set forth below, the Court GRANTS Plaintiffs' Motion and converts the temporary restraining order into a preliminary injunction pursuant to the terms stated below.

         II. BACKGROUND

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

         In 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) (hereinafter, “the Regulation”). EOIR defines “practice” and “preparation” as follows:

The term practice means the act or acts of any person appearing in any case, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with DHS, or any immigration judge, or the Board [of Immigration Appeals].
The term preparation, constituting practice, means the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers, but does not include the lawful functions of a notary public or service consisting solely of assistance in the completion of blank spaces on printed Service forms by one whose remuneration, if any, is nominal and who does not hold himself out as qualified in legal matters or in immigration and naturalization procedure.

8 C.F.R. § 1001.1(i), (k).

         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.

         NWIRP 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.”[3] Dkt. # 1 (Complaint) at ¶ 3.12. However, NWIRP also recognizes that the Regulation poses challenges because NWIRP does not have the resources to undertake full representation of each potential client. Id. at ¶¶ 3.5, 3.21-3.23. To address these challenges, NWIRP alleges that it “met with the local immigration court administrator” soon after the Regulation was adopted to discuss the Regulation'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; see also Dkt. # 38 (Baron Decl.) at ¶ 5.

         Nearly nine years after promulgating the Regulation, 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.” Dkt. # 1 (Complaint) ¶ 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.

         NWIRP filed suit against EOIR and others seeking injunctive relief from the enforcement of the Regulation. See generally Dkt. # 1 (Complaint). In moving for a temporary restraining order (“TRO”), NWIRP sought to maintain the status quo until the parties could be heard on a motion for preliminary injunction. Dkt. # 21.

         On May 17, 2017, the Court heard oral arguments on the TRO. Dkt. # 31. The Court questioned the parties and discovered, among other things, that the Government had no evidence that NWIRP had engaged in substandard legal representation. Dkt. # 36 (Transcript of TRO Hearing) at 39.

         Finding that Plaintiffs met their burden under the TRO standard, the Court granted the TRO. Dkt. # 33. The parties are now before the Court to argue whether the Court should convert the TRO into a preliminary injunction.

         III. LEGAL STANDARD

         Plaintiffs seek a preliminary injunction enjoining the Government from enforcing the notice of appearance regulation codified at 8 C.F.R. § 1003.102(t)(1). “A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right . . . .” Munaf v. Geren, 553 U.S. 674, 689 (2008) (citation and internal quotation marks omitted). To obtain a preliminary injunction, the moving party must establish that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

         Alternatively, “serious questions going to the merits” and a balance of hardships that tips sharply towards the plaintiffs can support issuance of a preliminary injunction, so long as plaintiffs also show that there is a likelihood of irreparable injury and that the injunction is in the public interest. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).

         IV. ...


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