United States District Court, W.D. Washington, Seattle
Honorable Richard A. Jones United States District Judge
matter comes before the Court on Plaintiffs Northwest
Immigrant Rights Project's (“NWIRP”) and Yuk
Man Maggie Cheng's Motion for Preliminary
Injunction.Dkt. # 37. The Government opposes the
Motion. 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
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
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
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).
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 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.
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.
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.
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.
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.
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).
“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).