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A.A. v. United States Citizenship and Immigration Services

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

April 17, 2018

A.A., et al., Plaintiffs,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.

          ORDER ON CROSS-MOTIONS TO SUPPLEMENT THE ADMINISTRATIVE RECORD

          JAMES L. ROBART UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         There are two motions before the court: (1) a motion to supplement the administrative record filed by Defendants United States Citizenship and Immigration Services (“USCIS”); United States Department of Homeland Security (“DHS”), which oversees USCIS; James McCament, Acting Director of USCIS, in his official capacity; and John Kelly, Secretary of DHS, in his official capacity (collectively, “Defendants”); and (2) a cross-motion to supplement the administrative record filed by Plaintiffs A.A., Antonio Machic Yac, and W.H. (collectively, “Plaintiffs”).[1] (Defs. Mot. (Dkt. # 103); Pls. Mot. (Dkt. # 104).) Being fully advised, [2] the court GRANTS in part and DENIES in part Defendants' motion to supplement the administrative record and GRANTS in part and DENIES in part Plaintiffs' cross-motion to supplement the administrative record.

         II. BACKGROUND

         Through this injunctive class action, Plaintiffs seek to compel USCIS to abide by regulatory deadlines for adjudicating applications for employment authorization documents (“EADs”) filed by asylum applicants. (See generally Am. Compl. (Dkt. # 58).) Plaintiffs claim that Defendants have failed to adjudicate EADs within the regulatory timeframe, which constitutes “unlawfully withheld or unreasonably delayed” agency action. See 5 U.S.C. § 706(1).

         A. Regulatory Structure

         For an alien to be eligible to work in the United States, the alien must file Form I-765 with DHS in order to obtain an EAD.[3] (Am. Compl. ¶¶ 3-4.) USCIS is responsible for adjudicating I-765 forms. (Id. ¶ 4.) A separate regulation governs asylum seekers applying for an EAD for the first time. See 8 C.F.R. §§ 208.7(a)(1), 274a.12(c)(8), 274.13(d); see also Carballo v. Meissner, No. C00-2145, 2000 WL 174198, at *2 (N.D. Cal. Nov. 17, 2000) (describing the process for an asylum applicant seeking an EAD). Section 274a.13(a)(2) mandates that USCIS adjudicate initial asylum EAD applications “in accordance with [Section] 208.7.” 8 C.F.R. § 274a.13(a)(2). Section 208.7 provides that after filing an application for asylum, an individual must typically wait 150 days before filing an initial EAD application. Id. § 208.7(a)(1). But there are exceptions to this rule. Id. For instance, if asylum is granted within 150 days, the asylee may apply for an EAD immediately thereafter. Id. Additionally, if asylum is denied at any point, the applicant becomes ineligible for an EAD. Id.

         Assuming an application remains pending for at least 150 days without delay caused by the applicant, the applicant may apply for an EAD. Id. §§ 208.7(a)(1)-(2), (4). USCIS “shall have 30 days from the date of filing of the request [sic] employment authorization to grant or deny that application, ” except that USCIS may not in any event grant the EAD prior to 180 days after the noncitizen files her asylum application. Id. § 208.7(a)(1).

         B. Procedural History

         Plaintiffs filed this putative class action on May 22, 2015, because Defendants failed to adjudicate I-765 forms within the regulatory deadline. (Compl. (Dkt. # 1).) On November 4, 2016, Plaintiffs filed a third motion for class certification (3d MCC (Dkt. # 82)), and Defendants subsequently filed a third motion to dismiss (3d MTD (Dkt. # 88)). The court denied and dismissed Plaintiffs' proposed “90-Day” subclass, but // certified Plaintiffs' “30-Day” subclass. (7/18/17 Order (Dkt. # 95)). The “30-Day” class is defined as:

Noncitizens who have filed or will file applications for employment authorization that were not or will not be adjudicated within . . . 30 days . . . and who have not or will not be granted interim employment authorization. [This class] consists of only those applicants for whom 30 days has accrued or will accrue under the applicable regulations, 8 C.F.R. §§ 103.2(b)(10)(i), 208.7(a)(2), (a)(4).

(Id. at 26-27.) The court appointed A.A., Mr. Machic Yac, and W.H. as class representatives. (Id. at 27.) The current administrative record consists of documents related to individual EAD applications within the “30-Day” subclass. (See AR-I (Dkt. # 67); AR-II (Dkt. # 67-6); AR-III (Dkt. # 38) at 41-51.) The parties filed their motions to supplement the administrative record following class certification. (Defs. Mot; Pls. Mot.)

         Defendants seek to add six documents to the administrative record. (Defs. Mot., Ex. A (“Ex. A”) (Dkt. # 103-1); id., Ex. B (“Ex. B”) (Dkt. # 103-2); id., Ex. C (“Ex. C”) (Dkt. # 103-3); id., Ex. D (“Ex. D”) (Dkt. # 103-4); id., Ex. E (“Ex. E”) (Dkt. # 103-5); id., Ex. F (“Neufeld Decl.”) (Dkt. # 103-4)). These documents describe the I-765 adjudication and asylum application procedures. (Ex. A; Ex. B; Ex. C; Ex. D; Ex. E; Neufeld Decl.) Three of the documents are data sheets showing “various factors and considerations” as to why USCIS is unable to comply with the 30-day regulatory deadline. (See Defs. Mot. at 3; Ex. B; Ex. C; Ex. D.) Defendants argue the documents provide key background information and historical context relevant to USCIS's inaction on EAD applications. (Defs. Mot. at 3.)

         Plaintiffs seek to supplement the administrative record with a March 31, 2017 Memorandum entitled, “Jurisdiction and EAD Clock Procedures for Unaccompanied Alien Children (UACs).” (Pls. Mot. at 10.) Plaintiffs also request to supplement the administrative record with materials already submitted to the court, such as declarations and exhibits. (Id. at 11.) ...


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