Catholic Legal Immigration Network, Inc. v. Executive Office for Immigration Review

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

_________________________________________
)
CATHOLIC LEGAL IMMIGRATION )
NETWORK, INC. et al., )
)
Plaintiffs, )
)
v. ) Case No. 20-cv-03812 (APM)
)
EXECUTIVE OFFICE FOR IMMIGRATION )
REVIEW et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

The Executive Office for Immigration Review (“EOIR”) is an agency within the

U.S. Department of Justice that oversees and conducts immigration court proceedings,

administrative hearings, and appellate reviews before the Board of Immigration Appeals (“BIA”)

as part of the country’s system of immigration adjudications. EOIR charges fees for various types

of motions, applications, and appeals filed in these adjudications. Since 1986, the maximum fee

for any such filing has been $110. EOIR now intends to raise those fees. On December 18, 2020,

EOIR promulgated a final rule that increases filing fees by between 32 and 886 percent (“Final

Rule”). Most dramatically, the filing fee for a notice of appeal of an immigration judge’s decision

to the BIA will increase from $110 to $975. These fee increases are set to go into effect on

January 19, 2021.

Plaintiffs are non-profit organizations that provide legal and other assistance for

immigrants. They seek to stay the effective date of the Final Rule or, alternatively, to enjoin it
from going into effect. They raise a host of challenges to the Final Rule under the Administrative

Procedure Act.

For the reasons that follow, the court grants in part and denies in part Plaintiffs’ motion to

stay the effective date of the Final Rule or, in the alternative, for a preliminary injunction. The

court holds that EOIR acted arbitrarily and capriciously by disregarding the Final Rule’s impact

on legal service providers and their capacity to provide legal services to persons subject to removal

proceedings. EOIR was obligated to address these concerns as part of the notice-and-comment

process but it failed to do so. In short, EOIR “entirely failed to consider an important aspect of

the problem.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. (State Farm),

463 U.S. 29, 43 (1983). The court also finds that, absent equitable relief, Plaintiffs will suffer

irreparable harm, and that the balance of the equities and the public interest favor staying the

effective date of a portion of the Final Rule.

Accordingly, the court will stay the effective date of the Final Rule, and enjoin its

implementation, insofar as it imposes increased fees for (1) Form EOIR-26 for filing an appeal

from a decision of an immigration judge; (2) Form EOIR-29 for filing an appeal from a decision

of an officer of the Department of Homeland Security (“DHS”); (3) filing a motion to reopen or to

reconsider before the BIA; (4) Form EOIR-40 for an application for suspension of deportation;

(5) Form EOIR-42A for an application for cancellation of removal for certain permanent residents;

and (6) Form EOIR-42B for an application for cancellation of removal and adjustment of status

for certain nonpermanent residents. The fee increases for (1) Form EOIR-45 for filing an appeal

from a decision of an adjudicating official in a practitioner disciplinary case and (2) a motion to

reopen or reconsider in the Office of the Chief Immigration Judge may go into effect.

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II. BACKGROUND

A. Factual Background

1. Current Fee Structure

Many of the filing fees that are the subject of the challenged rule were last updated in 1986

(the “1986 Rule”). See Powers and Duties of Service Officers; Availability of Services Records,

51 Fed. Reg. 39,993 (Nov. 4, 1986). The Immigration and Naturalization Service (“INS”) and

EOIR jointly promulgated the 1986 Rule, citing a statutory mandate for “Federal agencies to

establish a fee system in which a benefit or service provided to or for any person be self-sustaining

to the fullest extent.” Id. at 39,993 (citing 31 U.S.C. § 9701 and OMB Circular A-25). As the

agencies explained, the fees were “neither intended to replace nor to be influenced by the budgetary

process and related considerations, but instead, to be governed by the total cost to the agency to

provide the service.” Id. In determining the appropriate fee amounts, the agencies considered the

availability of fee waivers for applicants who would be unable to pay the fees and set “several fees

for administrative appeal processes and for filing naturalization petitions . . . at less than full cost

recovery recognizing long-standing public policy and the interest served by these processes.” Id.

The 1986 Rule was challenged as exceeding the statutory authority of INS and EOIR but ultimately

was upheld by the D.C. Circuit as a valid exercise of power under the Independent Offices

Appropriations Act, 31 U.S.C. § 9701. See Ayuda, Inc. v. Att’y Gen., 848 F.2d 1297, 1298 (D.C.

Cir. 1988).

The fees from the 1986 Rule and other fees that are currently in place for EOIR filings are

as follows:

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 Table 1: Filing Fees Before 2021 Final Rule

Form Description of Filing 2020 Fee
EOIR-40 Suspension of Deportation $100
EOIR-42A Application for Cancellation of Removal for Certain $100
Permanent Residents
EOIR-42B Application for Cancellation of Removal and $100
Adjustment of Status for Certain Nonpermanent
Residents
N/A Motion to Reopen or Reconsider Before Immigration $110
Judge
EOIR-26 Notice of Appeal from a Decision of an Immigration $110
Judge
EOIR-29 Notice of Appeal to the BIA from a Decision of a $110
DHS Officer
EOIR-45 Notice of Appeal from a Decision of an Adjudicating $110
Official in a Practitioner Disciplinary Case
N/A Motion to Reopen or Reconsider Before BIA $110

See Executive Office for Immigration Review; Fee Review, 85 Fed. Reg. 11,866, 11,867–68

(Feb. 28, 2020).

2. Notice of Proposed Rulemaking

The foregoing fees remained unchanged for over thirty years. Then, on February 28, 2020,

EOIR announced that it intended to increase the filing fees, in some cases quite dramatically.

EOIR issued a Notice of Proposed Rulemaking that proposed to “increase the fees for [certain]

EOIR applications, appeals, and motions that are subject to an EOIR-determined fee, based on a

fee review conducted by EOIR.” Id. at 11,866. EOIR explained that, as the agency “ha[d] rarely

taken any actions related to its fees in the intervening 33 years” since the 1986 Rule, it “determined

that it was necessary to conduct an updated assessment of the costs for processing the forms and

motions for which EOIR sets the applicable fees.” Id. at 11,868.

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 To do so, “[i]n the spring of 2018, EOIR conducted a comprehensive study using activity-

based costing to determine the cost to EOIR for each type of application, appeal, and motion for

which EOIR levies a fee.” Id. at 11,869. The 2018 study proceeded in three stages. In stage one,

EOIR collected survey data and discussed with staff in both the Office of the Chief Immigration

Judge (“OCIJ”) and the BIA the staffing levels and “time required to process and adjudicate each”

EOIR filing, while also gathering data on the “average salary rates for applicable staff levels.” Id.

In stage two, “EOIR developed step-by-step process maps, with assigned times and staff levels,

for how each application, appeal, or motion is processed in the OCIJ and the BIA,” and OCIJ and

BIA staff later validated those maps. Id. Finally, in stage three, “EOIR allocated the salary costs”

to each step in the process maps, “based on the time the step takes, the average salary of the

responsible staff, and the percentage of total cases in which the step occurs.” Id. EOIR also

determined that its estimates should “not include overhead costs, cost of non-salary benefits, or

costs that stem from processing corresponding applications or documents that may be filed in

conjunction with those items for which EOIR charges a fee.” Id. EOIR excluded such costs for

various reasons, including that there is a “public interest in having non-parties bear some of the

cost burden for filing documents associated with proper application of the law as it pertains to the

statutory right to appeal or apply for certain forms of relief.” See id.

EOIR did not release the data underlying its study. It did, however, include tables showing

the “average processing cost” for each filing. See id. at 11,870. It also supplied tables showing

the cost attributable to each staff member involved in adjudicating a filing (immigration judge,

judicial law clerk, legal assistant, interpreter), as well as tables setting forth the cost associated

with each component task of adjudicating a filing (administrative, preparation time, in-court time,

and written decisions). See id. at 11,872–73. According to EOIR, “these estimated costs calculated

5
from the study demonstrate that EOIR’s processing costs exceed the currently assessed fees for

every fee-based form or motion processed by EOIR.” Id. at 11,873–74.

All told, EOIR proposed the following fee increases:

Table 2: Filing Fees After 2021 Final Rule

Form Description of Filing 2020 Fee 2021 Fee
EOIR-40 Application for Suspension of Deportation $100 $305
EOIR-42A Application for Cancellation of Removal for Certain $100 $305
Permanent Residents
EOIR-42B Application for Cancellation of Removal and $100 $360
Adjustment of Status for Certain Nonpermanent
Residents
N/A Motion to Reopen or Reconsider Before Immigration $110 $145
Judge
EOIR-26 Notice of Appeal from a Decision of an Immigration $110 $975
Judge
EOIR-29 Notice of Appeal to the BIA from a Decision of a $110 $705
DHS Officer
EOIR-45 Notice of Appeal from a Decision of an Adjudicating $110 $675
Official in a Practitioner Disciplinary Case
N/A Motion to Reopen or Reconsider Before BIA $110 $895

See id. at 11,871, 11,875.

In addition, the Notice of Proposed Rulemaking noted that, under an existing policy by

which EOIR collected fees set by DHS when using DHS forms, EOIR planned to incorporate

DHS’s $50 filing fee associated with Form I-589 for seeking asylum. Id. at 11,871–72. A person

subject to removal can assert qualification for asylum as a defense to avoid removal. According

to EOIR, “in proceedings before an immigration judge a [$]50 fee would apply to a Form I-589 if

the applicant seeks asylum,” unless the applicant sought asylum “for the sole purpose of applying

for withholding of removal under the [Immigration and Nationality Act] or protection under the

[Convention Against Torture].” Id. at 11,872 (citing USCIS Fee Schedule and Changes to Certain
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Other Immigration Benefit Request Requirements, 84 Fed. Reg. 62,280, 62,360–61 (Nov.

14, 2019)). 1

The Notice of Proposed Rulemaking called for comments to be submitted on or before

March 30, 2020, creating a comment period of approximately 30 days. 85 Fed. Reg. at 11,866.

Less than two weeks after the Notice of Proposed Rulemaking issued, the president declared a

national state of emergency dating back to March 1, 2020, due to the COVID-19 pandemic.

See Presidential Proclamation 9994, 85 Fed. Reg. 15,337, 15,337 (Mar. 13, 2020). On March 5,

2020, approximately 90 interested organizations signed a request to extend the comment period

from 30 days to 60 days. See Pls.’ Mot. for a Stay of Effective Dates, ECF No. 19 [hereinafter

Pls.’ Mot.], Decl. of Michelle N. Mendez [hereinafter Mendez Decl.], ECF No. 19-5, Ex. A;

Mendez Decl. ¶ 17. EOIR did not respond to the request. Mendez Decl. ¶ 17. On March 23, 2020,

as the gravity of the COVID-19 pandemic became clearer, 108 organizations requested that EOIR

“freeze the comment deadline . . . until the federal government has lifted the national emergency

related to the COVID-19 pandemic.” Mendez Decl., Ex. B; see also Mendez Decl. ¶ 17. The

agency did not respond to this request either. Mendez Decl. ¶ 17.

3. Final Rule

After refusing to extend the comment period, EOIR promulgated “Executive Office for

Immigration Review; Fee Review” on December 18, 2020. 85 Fed. Reg. 82,750. The Final Rule

adopted the proposed fee schedule from the Notice of Proposed Rulemaking. See id. at 82,784

(“The final rule adopts the fee amounts set out in the proposed rule as final . . . .”).

1
Defendants’ counsel further clarified at oral argument that EOIR follows a policy of collecting the fees set by DHS
when a DHS form is used in proceedings that fall within EOIR’s jurisdiction, that Form I-589 for asylum is a DHS
form, and that neither the Notice of Proposed Rulemaking nor the Final Rule establishes an independent fee for asylum
applications. See Hr’g Tr. (draft), Jan. 15, 2021, at 64–65; see also 8 C.F.R. § 1103.7(b)(4)(ii) (codifying this policy).
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 The Notice of Proposed Rulemaking garnered 601 comments. Id. at 82,752. While many

of the comments are not relevant to the grounds on which this court rests its decision, the court

briefly recounts several of the themes in the comments and EOIR’s responses.

a. The amount by which the fees increased

EOIR received comments “object[ing] to the amount of [the] fee increases, stating that the

fee increases were too high,” that EOIR did not consider applicants’ ability to pay the increased

fees, and that the fees were not set “at a rate that most aliens would be able to pay.” Id.

at 82,754–56. The agency defended the significant fee increases as necessary “to ensure that U.S.

taxpayers do not bear a disproportionate burden in funding the immigration system.” Id. at 82,755.

EOIR also rejected the idea that the fees were prohibitive for applicants. The agency responded

that, although it generally did not “have an alien’s financial records at its disposal for review,” the

information it did possess—information regarding “the ability of an alien to retain representation

or the ability of an alien to pay application fees set by DHS”—suggested “that most aliens would

be able to afford [the] proposed fees.” Id. at 82,756. EOIR also repeatedly lodged its disagreement

that the increased fees “would deter individuals from pursuing meritorious claims” and dismissed

such claims as “not supported by any evidence.” Id. at 82,772.

EOIR’s most frequent response to such comments was that the availability of fee waivers

ameliorated any depressive effect the increased fees might have on an applicant’s decision to file

for immigration relief. See, e.g., id. at 82,761 (noting that “[a]lthough the rule changes the amount

that would be charged for filing an appeal, the Department has been careful through the entire

process to ensure that it does not affect the availability of a fee waiver”); id. at 82,762 (“As stated

in the [Notice of Proposed Rulemaking], this rule does not foreclose or limit the ability of aliens

to seek a fee waiver for the appeal fee.”); id. at 82,763 (“[T]he Department again emphasizes that

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a fee waiver remains available for a cancellation applicant . . . who is unable to pay the fee.”); id.

at 82,764 (“Consistent with longstanding practice, a fee waiver remains available for motions to

reopen and motions to reconsider.”). Several commenters pointed out that fee waivers are

“discretionary” and are “inconsistent[ly]” granted, id. at 82,758, but EOIR responded that it had

“no evidence or data, and none was provided by commenters, regarding the specific adjudications

of fee waivers that would support such statements,” id. at 82,760. The agency noted that it “expects

its adjudicators to issue fee waiver determinations in a fair manner and consistent with the

regulations” and credited “the fee waiver process [a]s a proper, viable solution for aliens who may

be unable to pay updated fees.” Id.

b. The study data

Other commenters took specific issue with the 2018 study that EOIR relied upon to support

the fee increases, and EOIR received “numerous comment requests” seeking the study’s

underlying data. Id. at 82,754–55. EOIR disputed commenters’ complaints that the agency “did

not adequately explain its methodology or justification for increasing costs,” but belatedly agreed

to “publish[] the data collected in its spring 2018 study.” Id. at 82,755. Of course, by the time

EOIR released the study on December 18, 2020, the opportunity for interested parties to comment

on it had long since passed. See id. at 82,752 (noting the comment period closed on March

30, 2020).

c. Impact on legal service providers

EOIR also received “numerous” comments “express[ing] concerns that the rule would

negatively affect legal service providers.” Id. at 82,774. Commenters noted that, due to the sharp

increases, “legal aid organizations, small firms, and attorneys providing pro bono services would

be unable to routinely pay the fees for their clients.” Id. Organizations that use their funds to pay

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their clients’ fees would, according to commenters, need to forgo key “programmatic elements”

of the organization’s agenda, and the fee hikes would cause such organizations to “assist fewer

aliens, especially indigent aliens and children,” “reduc[ing] the availability of pro bono counsel

generally.” Id. Moreover, “[s]everal commenters noted that attorneys would be forced to spend

more time on fee waiver applications rather than substantive issues, which could relatedly cause

them to turn away clients for lack of time and resources to represent them.” Id. In addition to

straining organizations’ resources, “commenters expressed concern that the increased fees would

place aliens in a position of choosing between paying the fee or obtaining counsel.” Id.

EOIR responded that, “[o]verall,” it found such “general concerns about possible negative

effects too speculative to warrant changes to the” Notice of Proposed Rulemaking and “disagree[d]

with commenters’ concerns about the rule’s extensive negative impact.” Id. The Final Rule, EOIR

said, “was not proposed to . . . increase aliens’ access to counsel,” and the agency expressly

“decline[d] to respond to commenters’ speculative concerns regarding . . . aliens’ ability to obtain

counsel, including effects on legal service providers.” Id. at 82,775. EOIR added that

“commenters’ assertions concerning the burden of increased fees on organizations and the private

bar fall[] outside the limited scope of this rulemaking.” Id.

The Final Rule is set to go into effect on January 19, 2021. Id. at 82,750.

B. Procedural Background

1. The Parties

Plaintiffs in this action are four non-profit organizations that assist immigrants in

navigating proceedings before the immigration courts and the BIA. See Pls.’ Mot., Pls.’ Mem. of

P. & A. in Supp. of Pls.’ Mot. for a Stay of Effective Dates, ECF No. 19-10 [hereinafter Pls.’ Br.],

at 5.

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 Catholic Legal Immigration Network, Inc., or CLINIC, is a non-profit organization whose

mission is to “provid[e] services and benefits to immigrants,” thereby “promot[ing] the dignity,

and protecting the rights, of immigrants.” Compl., ECF No. 1 [hereinafter Compl.], ¶ 22. CLINIC

both supports “a network of approximately 400 dedicated affiliate organizations” and “provides

legal representation directly and in partnership with pro bono attorneys to vulnerable adults,

children, and families in proceedings in Immigration Courts and before the BIA.” Id. ¶ 15.

CLINIC also provides affiliate organizations with training and support for representing immigrants

and prepares “practice advisory materials on removal defense, asylum appeals, and other topics to

assist affiliate staff.” Id. ¶ 18.

Community Legal Services in East Palo Alto, or CLSEPA, works “to provide legal services

that are transformative in nature, enabling diverse communities in and around East Palo Alto to

achieve a secure and thriving future.” Id. ¶ 26. CLSEPA “provides direct legal services to

individuals in its target communities,” including advising and representing immigrants in removal

proceedings. Id. ¶ 28. In addition, CLSEPA “operates a pro bono program” and “trains and

supports community members . . . and attorneys at other not-for-profit organizations” on

immigration matters. Id. ¶¶ 29–30.

Kids in Need of Defense, or KIND, “advocates throughout the United States for the rights

of unaccompanied migrant and refugee children.” Id. ¶ 33. The organization provides free direct

“legal representation for unaccompanied migrant children,” runs “programs that educate

unaccompanied minors about their rights,” and “provides mental health and social services for its

clients.” Id. ¶¶ 34–36. KIND also advocates for refugee and migrant children and operates a pro

bono program, through which it supports and trains attorneys representing children pro bono. Id.

¶¶ 36, 38.

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 Lastly, Coalition for Humane Immigrant Rights, or CHIR, seeks “to ensure that immigrant

communities are fully integrated into society with full rights and access to resources.” Id. ¶ 42.

CHIR’s members are typically “low-income immigrants in mixed status families, in which one or

more members are undocumented.” Id. ¶ 45. CHIR engages in grassroots organizing and

advocacy to secure policies that benefit its members and runs “a legal services program that

provides representation to clients, which includes members of CHIR[] and others in proceedings

before EOIR and [U.S. Citizenship and Immigration Services (‘USCIS’)].” Id. ¶ 43.

The lead defendant is EOIR, an agency within the Department of Justice that heads both

the BIA and OCIJ. See id. ¶¶ 48–50. Defendant James McHenry is the director of EOIR; he

reports directly to the deputy attorney general, who in turn reports to the acting Attorney General,

who is also a Defendant in this suit. See id. ¶¶ 52, 57–58. EOIR is funded by congressional

appropriations. For Fiscal Year 2021, Congress allocated $734 million to EOIR, just $4 million

of which is to be derived from fees. See Consolidated Appropriations Act, 2021, Pub. L. No. 116-

260, 134 Stat. 1182, 1246 (“For expenses necessary for the administration of immigration-related

activities of the Executive Office for Immigration Review, $734,000,000, of which $4,000,000

shall be derived by transfer from the Executive Office for Immigration Review fees deposited in

the ‘Immigration Examinations Fee’ account . . . .”).

2. Plaintiffs’ Suit

On December 23, 2020, Plaintiffs filed their Complaint. Compl. The Complaint asserts

six counts: Counts I, II, and III allege that EOIR’s rulemaking violates the Administrative

Procedure Act (“APA”), Compl. ¶¶ 362–387; Count IV asserts that the Final Rule violates the

Regulatory Flexibility Act, id. ¶¶ 388–405; and Counts V and VI claim that the Final Rule violates

12
the Due Process Clause and the Equal Protection Clause of the Fifth Amendment, respectively, id.

¶¶ 406–423.

On December 30, 2020, Plaintiffs filed the instant Motion for a Stay of Effective Dates

Under 5 U.S.C. § 705 or, in the Alternative, Preliminary Injunction, ECF No. 19. The motion

advocates for relief with respect to only their administrative law claims (Counts I through IV);

Plaintiffs do not seek preliminary relief as to their constitutional claims (Counts V and VI). See

Pls.’ Br. at 2 n.2. Following expedited briefing, the court heard oral argument on January 14,

2021. See Minute Entry, Jan. 14, 2021.

III. LEGAL STANDARD

Whether Plaintiffs’ motion is treated as one to stay the effective date under 5 U.S.C. § 705

or for a preliminary injunction, the court “applie[s] the four-part test used to evaluate requests for”

a preliminary injunction. Sierra Club v. Jackson, 833 F. Supp. 2d 11, 30 (D.D.C. 2012) (internal

quotation marks omitted). “A plaintiff seeking a preliminary injunction must establish that he is

likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the

public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Prior to Winter,

courts in this Circuit had employed a sliding scale analysis in which “a strong showing on one

factor could make up for a weaker showing on another.” Sherley v. Sebelius, 644 F.3d 388, 392–93

(D.C. Cir. 2011). Winter arguably casts some doubt on that approach. See id. At a minimum, the

D.C. Circuit has explained, Winter means that a plaintiff must demonstrate “a likelihood of success

[a]s an independent, free-standing requirement” to secure a stay or preliminary injunction. See id.

at 393. And, of course, equitable relief is warranted only upon a showing that irreparable injury

is likely absent an injunction. See Winter, 555 U.S. at 22. Therefore, although the court must

13
apply the sliding scale here, because neither the Supreme Court nor the D.C. Circuit has expressly

overruled that approach, the court must be satisfied that Plaintiffs have established both a

likelihood of success and irreparable harm to award injunctive relief.

IV. DISCUSSION

A. Jurisdiction

The court begins with its jurisdiction to hear this matter. Defendants argue that jurisdiction

is lacking over Plaintiffs’ claims because the Immigration and Nationality Act (“INA”) contains a

“zipper” clause that channels through the courts of appeals judicial review of “‘all questions of

law and fact, including interpretation and application of constitutional and statutory provisions,

arising from any action taken or proceeding brought to remove an alien.’” See Defs.’ Mem. in

Opp’n to Pls.’ Mot., ECF No. 30 [hereinafter Defs.’ Br.], at 11 (quoting 8 U.S.C. § 1252(b)(9)).

Defendants construe Plaintiffs’ arguments that the Final Rule’s increased fees will preclude some

individuals from accessing proceedings as a challenge to “the process by which their members’

removability will be determined.” Id. at 12 (cleaned up). Plaintiffs respond that they have not

sought “review of any final order of removal” and that their “APA challenge does not arise from

any such [removal] action or proceeding”; therefore, they argue, the court retains jurisdiction.

See Pls.’ Reply Mem. of P. & A. in Further Supp. of Pls.’ Mot., ECF No. 33 [hereinafter Pls.’

Reply], at 1–2.

Defendants rely on two provisions of the INA to advance their jurisdiction-stripping

argument. First, Defendants cite section 1252(a)(5), which makes “a petition for review filed with

an appropriate court of appeals . . . the sole and exclusive means for judicial review of an order of

removal,” 8 U.S.C. § 1252(a)(5). Defs.’ Br. at 11. Second, Defendants point to section 1252(b)(9),

which channels “[j]udicial review of all questions of law and fact, including interpretation and

14
application of constitutional law and statutory provisions, arising from any action taken or

proceeding brought to remove an alien from the United States” into the “judicial review of a final

order under this section,” 8 U.S.C. § 1252(b)(9). Defs.’ Br. at 11. Together, these two provisions

“fold[] all precedent challenges arising from the removal proceeding or action taken to remove the

alien into review of the final order of removal” before a court of appeals. O.A. v. Trump,

404 F. Supp. 3d 109, 130 (D.D.C. 2019) (cleaned up). This court must therefore determine

whether Plaintiffs’ APA challenge is a question of law or fact “arising from” a removal proceeding.

See 8 U.S.C. § 1252(b)(9).

On that score, courts have uniformly read “arising from” to delineate between claims that

“directly regard[] the removal hearing and collateral issues.” S. Poverty Law Ctr. v. U.S. Dep’t of

Homeland Sec., No. 18-cv-760, 2020 WL 3265533, at *15 (D.D.C. June 17, 2020), appeal filed,

No. 20-5257 (D.C. Cir. Aug. 26, 2020); see also Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018)

(plurality) (finding section 1252(b)(9) did “not present a jurisdictional bar” where question

presented did not directly regard removal). The Supreme Court in Jennings v. Rodriguez

considered the scope of legal questions that “‘aris[e] from’ the actions taken to remove . . . aliens.”

Jennings, 138 S. Ct. at 840. Justice Alito, writing for a plurality of the Court, 2 assumed without

deciding that “detention” could be considered an “action taken to remove an alien.” Id. at 841 n.3

(internal quotation marks omitted). But, he explained, “[t]he question is not whether detention is

an action taken to remove an alien but whether the legal questions in this case arise from such an

action.” Id. Looking to the origin of the legal questions before the Court, section 1252(b)(9) could

2
While Jennings was a plurality decision, because Justice Breyer, joined by Justices Ginsburg and Sotomayor in
dissent, “would have read section 1252(b)(9) even more narrowly[,] . . . [a]t least five Justices . . . agreed that section
1252(b)(9) does not clearly bar challenges collateral to the removal proceeding.” S. Poverty Law Ctr., 2020 WL
3265533, at *15.
15
not serve as a jurisdictional bar: “respondents [we]re not asking for review of an order of removal;

they [we]re not challenging the decision to detain them in the first place or to seek removal; and

they [we]re not even challenging any part of the process by which their removability w[ould] be

determined.” Id. at 841; see also Nielsen v. Preap, 139 S. Ct. 954, 962 (2019) (plurality)

(reiterating the reasoning in Jennings).

Courts in this Circuit, interpreting Jennings, consistently have concluded that section

1252(b)(9)’s zipper clause is inapplicable when a rule of general applicability is challenged outside

the context of a removal proceeding. See O.A., 404 F. Supp. 3d at 132; Nat’l Immigr. Project of

the Nat’l Lawyers Guild v. Exec. Office of Immigr. Review, 456 F. Supp. 3d 16, 29 (D.D.C. 2020).

In O.A. v. Trump, for instance, the court concluded that the APA challenge before it did not arise

from removal proceedings but instead required the court to “consider a series of questions of law

‘arising from’ a rulemaking of general applicability.” 404 F. Supp. 3d at 133. The court

emphasized that “[t]he question is not whether an issue could be raised in removal proceedings,

but rather whether it arises from those proceedings,” and the plaintiffs’ APA challenge, the O.A.

court decided, did not arise from removal proceedings. Id. (cleaned up). In National Immigration

Project of the National Lawyers Guild, upon which Defendants rely, the court likewise recognized

the “exception” articulated in O.A. that a plaintiff’s challenge to “the validity of a regulation of

general applicability based on the administrative record generated in rulemaking” was not zippered

into review of a final order of removal. 456 F. Supp. 3d at 29 (internal quotation marks omitted).

Similarly, the court in Southern Poverty Law Center drew on Jennings to hold that claims “alleging

punitive conditions of confinement” were also “not barred by section 1252(b)(9).” S. Poverty Law

Ctr., 2020 WL 3265533, at *16. The court found the confinement issues to be collateral to removal

16
proceedings and agreed with Jennings that “cramming judicial review of those questions into the

review of final removal orders would be absurd.” Id. (internal quotation marks omitted).

Defendants’ contention that “[t]he questions of law underlying [Plaintiffs’] Complaint arise

from removal proceedings,” Defs.’ Br. at 12, is incompatible with these authorities. While the

fees in the Final Rule may be associated with filings that occur because of removal proceedings,

the questions presented to the court do not “arise from” removal proceedings. See Jennings, 138

S. Ct. at 841 n.3. Rather, Plaintiffs’ legal challenges to the Final Rule originate in an entirely

separate agency action: a “rulemaking of general applicability.” O.A., 404 F. Supp. 3d at 133.

Such questions are not subject to section 1252(b)(9)’s zippering clause.

Defendants’ citations to Ninth Circuit case law do not alter the court’s conclusion. 3 First,

Defendants rely on J.E.F.M. v. Lynch, which considered claims of immigrant children who had

been unable to obtain counsel for removal proceedings. 837 F.3d 1026, 1030 (9th Cir. 2016). The

Ninth Circuit concluded that the minors’ due process and statutory claims regarding the right to

appointed counsel were “inextricably intertwined with” the administrative process of removal. Id.

at 1033 (internal quotation marks omitted). That is, the claims arose because the children were in

removal proceedings, during which they lacked counsel. The same cannot be said here. Plaintiffs

do not challenge the validity of removal proceedings or claim that any procedures leading to

removal are unfair. Rather, they challenge whether the agency used reasoned decisionmaking to

increase existing fees, in some cases, by more than eight-fold. These claims are “collateral to, or

independent of, the removal process” and thus beyond the reach of section 1252(b)(9). See id.

at 1032.

3
Indeed, the court in Southern Poverty Law Center appears to have rejected the very same playbook Defendants
follow here. See 2020 WL 3265533, at *17.
17
 Defendants’ reliance on Martinez v. Napolitano, 704 F.3d 620 (9th Cir. 2012), is equally

unpersuasive. There, the plaintiff was seeking “a full and fair hearing to adjudicate his withholding

and [Convention Against Torture] claims” and brought claims that the agency violated “the APA

based on the denial of his withholding and [Convention Against Torture] claims based on arbitrary,

capricious, and ultra vires criteria” and “on the [BIA’s] failure to give [him] a full and fair hearing

to adjudicate his asylum claim.” Id. at 621. In determining whether Martinez’s claims were

subject to the zipper clause, the Ninth Circuit explained that “the distinction between an

independent claim” under the APA and an “indirect challenge” to the plaintiff’s adverse

immigration decision “‘turn[ed] on the substance of the relief’” that the plaintiff requested. Id.

at 622 (quoting Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011)). The court found

Martinez’s claims were subject to section 1252(b)(9) because they challenged the validity of the

BIA’s decision, and “[i]f Martinez had prevailed on any one of them, the BIA would not have

affirmed the removal order.” Id. at 623. In contrast, none of the claims here seek to overturn an

order of removal or any aspect of an existing removal proceeding. Thus, under both J.E.F.M. and

Martinez, the court concludes that Plaintiffs’ claims are collateral to any removal proceedings, and

it therefore retains federal question jurisdiction over Plaintiffs’ suit.

B. Standing

The court next turns to standing. Defendants do not challenge Plaintiffs’ constitutional

standing under Article III but do contest whether Plaintiffs satisfy considerations of prudential

standing, namely, whether they fall in the INA’s zone of interests. See Defs.’ Br. at 13–14.

Notwithstanding Defendants’ silence as to constitutional standing, the court briefly discusses it

below before addressing Defendants’ prudential standing argument. See Summers v. Earth Island

18
Inst., 555 U.S. 488, 499 (2009) (stating that the court “has an independent obligation to assure that

standing exists, regardless of whether it is challenged by any of the parties”).

1. Article III Standing

Plaintiffs assert both organizational standing and associational standing. See Pls.’ Br. at 18.

Because the court is satisfied that Plaintiffs have established a substantial likelihood of

organizational standing, the court need not reach the question of associational standing. See Food

& Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (“[A] party who seeks a

preliminary injunction must show a substantial likelihood of standing.”).

If an organization “claims standing only on its own behalf, . . . it must make the same

showing required of individuals: an actual or threatened injury in fact that is fairly traceable to the

defendant’s allegedly unlawful conduct and likely to be redressed by a favorable court decision.”

Am. Soc’y for the Prevention of Cruelty to Animals v. Feld Ent., Inc. (ASPCA), 659 F.3d 13, 24

(D.C. Cir. 2011). With respect to the requisite injury in fact, “if the defendant’s alleged action

prompts an organization to increase the resources it must devote to programs independent of its

suit against the defendant, the organization has shown an injury in fact.” Equal Rts. Ctr. v. Post

Props., Inc., 633 F.3d 1136, 1139 (D.C. Cir. 2011) (cleaned up). There are two important

limitations to this principle. First, the organization “must show a ‘direct conflict between the

defendant’s conduct and the organization’s mission.’” ASPCA, 659 F.3d at 25 (emphasis omitted)

(quoting Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996)).

“Second, an organization may not ‘manufacture the injury necessary to maintain a suit from its

expenditure of resources on that very suit.’” Id. (quoting Spann v. Colonial Vill., Inc., 899 F.2d

24, 27 (D.C. Cir. 1990)). Accordingly, the court begins its inquiry into organizational standing

“by asking whether the defendant’s allegedly unlawful activities injured the plaintiff’s interest in

19
promoting its mission,” and, if so, proceeds to determine “whether the plaintiff used its resources

to counteract the injury.” Id.

Plaintiffs have provided numerous declarations that demonstrate that the Final Rule’s fee

increases directly conflict with the organizations’ missions. For example, relying on the

declaration of Michelle Mendez, director of its Defending Vulnerable Populations program,

CLINIC has averred that its “mission is to provide immigration legal services to low income and

vulnerable populations.” Mendez Decl. ¶ 3. CLINIC fulfills this mission by supplying training

and support for a network of affiliated programs that offer pro bono or low-cost immigration legal

services and by providing direct representation, as well as pro bono referrals. Id. ¶¶ 5, 8. Mendez

explains that the fees imposed by the Final Rule will frustrate CLINIC’s mission by reducing pro

bono participation and thus the organization’s capacity to represent immigrants in three ways. Id.

¶¶ 34, 39. First, it will harm CLINIC’s ability to place indigent clients with pro bono partners

because (1) pro bono partners will no longer be able to afford their historical practice of fronting

filing fees, potentially forcing them to decline clients, id. ¶ 34; and (2) pro bono partners will be

forced to take on additional fee-waiver-application work, which will make pro bono representation

more burdensome to counsel, reducing the maximum case load pro bono counsel can shoulder, id.

¶ 39. Second, Mendez explains that the Final Rule is likely to decrease CLINIC’s and its affiliates’

client bases because clients will need to use their modest financial resources to pay EOIR fees

rather than to pay even the low-cost rates that some of CLINIC’s affiliates charge. Id. ¶ 58.

CLINIC anticipates that this will in turn reduce client volume, which itself will leave some

affiliates “who rely in part on the low fees they charge clients to fund their operations” unable to

pay CLINIC’s membership fee. Id. Third, Mendez avers that CLINIC will need to significantly

divert its resources from its core mission toward assisting and performing work related to fees,

20
educating affiliates and immigrants about the new fees, and revising training materials. E.g., id.

¶¶ 35, 38, 41, 43. As a consequence, CLINIC will be hampered in “provid[ing] immigration legal

services to low income and vulnerable populations.” Id. ¶¶ 3, 28. These “concrete drains on

[CLINIC’s] time and resources,” Spann, 899 F.2d at 29, “are the type of substantial, tangible costs

that are cognizable for purposes of organizational standing,” Nw. Immigrant Rts. Project v. USCIS,

No. 19-cv-3282, 2020 WL 5995206, at *7 (D.D.C. Oct. 8, 2020) (internal quotation marks

omitted).

In addition, CLINIC has explained that it will be forced to use its resources to advise clients

and affiliates on how to manage the increased fees and to revise training materials regarding fees

and fee waivers. See e.g., Mendez Decl. ¶¶ 35, 38, 41, 43; see also Nw. Immigrant Rts. Project,

2020 WL 5995206, at *7 (finding plaintiffs would “use their resources to counteract their injuries”

where they explained “they will need to spend greater time helping clients meet the Rule’s

demands” (cleaned up)). CLINIC thus has suffered an injury in fact. See Ayuda, 848 F.2d at 1298

n.3 (holding that organizational plaintiffs who challenged EOIR’s fee increase in 1986 had

standing because they had alleged that “imposition of the increased fees would thwart their

organizational purposes and subject them to additional financial burdens”). 4

The other two elements of standing are easily satisfied. Regarding causation, CLINIC has

adequately established that the Final Rule will cause fewer of its clients to be able to afford fees,

thereby forcing CLINIC to divert its resources and adapt its operations to meet an increased need

for fee waivers and training materials related to the new fees. Nw. Immigrant Rts. Project, 2020

4
Declarations supplied by other Plaintiffs similarly assert that their missions are in conflict with the Final Rule, see
Pls.’ Mot., Decl. of Cristina dos Santos, ECF No. 19-9 [hereinafter dos Santos Decl.], ¶ 3 (CLSEPA); Pls.’ Mot., Decl.
of Maria Odom, ECF No. 19-6 [hereinafter Odom Decl.], ¶ 5 (KIND); Pls.’ Mot., Decl. of Angelica Salas, ECF
No. 19-8 [hereinafter Salas Decl.], ¶ 3 (CHIR), and that they also will suffer drains on their resources, see dos Santos
Decl. ¶¶ 17–18, 32–34, 36–38, 40–42, 43–49; Odom Decl. ¶¶ 25–30; Salas Decl. ¶¶ 17, 35–47.
21
WL 5995206, at *9 (finding causation where the rule at issue would “increase the costs of seeking

the immigration benefits,” making “it more difficult for low-income individuals (including

Plaintiffs’ clients and members) to qualify for those benefits, and Plaintiffs’ asserted injuries

[would be] the product of those changes”). Finally, CLINIC’s injury is redressable because if the

Final Rule does not go into effect—even temporarily—CLINIC will not have to adapt its

operations to adjust for increased fees. Id. As one plaintiff has established Article III standing to

assert APA claims, the court need not evaluate the constitutional standing of any other Plaintiff.

See Carpenters Indus. Council v. Zinke, 854 F.3d 1, 9 (D.C. Cir. 2017).

2. Zone of Interests

The prudential standing, zone-of-interests inquiry also presents no impediment to Plaintiffs

proceeding with their APA claims. A plaintiff’s interests must “fall within the zone of interests

protected by the law invoked.” Lexmark Int’l, Inc. v. Static Ctrl. Components, Inc., 572 U.S. 118,

129 (2014) (internal quotation marks omitted). The test for whether a plaintiff’s interests fall

within that zone “is not meant to be especially demanding” and “forecloses suit only when a

plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the

statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Match-E-

Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (internal

quotation marks omitted).

Plaintiffs readily surpass that low bar. Congress plainly had as an objective under the INA

to optimize the availability of pro bono or low-cost counsel to persons subject to removal. First,

the INA establishes a right to counsel in removal proceedings. See 8 U.S.C. § 1229a(b)(4)(A)

(stating that “the alien shall have the privilege of being represented, at no expense to the

Government, by counsel of the alien’s choosing who is authorized to practice in such

22
proceedings”). A person subject to removal must be notified in writing that they “may be

represented by counsel,” id. § 1229(a)(1)(E), and the INA expressly bars the setting of a hearing

earlier than “10 days after the service of the notice to appear” “[i]n order that an alien be permitted

the opportunity to secure counsel before the first hearing date,” id. § 1229(b)(1). Second, to

effectuate that right to representation, Congress has directed the Attorney General to maintain and

regularly update a list of “persons who have indicated their availability to represent pro bono aliens

in [removal] proceedings” and to provide this current list to the alien upon written notice of

removal. Id. §§ 1229(a)(1)(E), 1229(b)(2). Plaintiffs CLSEPA, KIND, and CHIR all appear on

the list of pro bono legal service providers, and CLINIC’s affiliate organizations are also included

on the list. 5 Accordingly, because “Plaintiffs’ daily work is governed by the INA and the fee

provisions at issue here,” and because “the INA contemplates an important role for organizations

like Plaintiffs,” the court has no trouble concluding that Plaintiffs are within the INA’s zone of

interests. Nw. Immigrant Rts. Project, 2020 WL 5995206, at *10.

C. The Injunction Factors

1. Likelihood of Success

The court now reaches the merits. Plaintiffs’ primary challenges to the Final Rule arise

under the APA. 6 The APA requires the court to “hold unlawful and set aside agency action,

findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with the law.” 5 U.S.C. § 706(2)(A). An agency’s decision is arbitrary and

capricious if the agency relies “on factors which Congress has not intended it to consider, entirely

5
See Dep’t of Justice, List of Pro Bono Legal Service Providers, http://www.justice.gov/eoir/list-pro-bono-legal-
service-providers (last updated Jan. 2021); Mendez Decl. ¶ 15 (listing CLINIC’s affiliates on Department of Justice’s
pro bono list).
6
Plaintiffs also challenge the Final Rule under the Regulatory Flexibility Act, see Pls.’ Br. at 36–38, but, as explained
below, the court finds the Final Rule invalid under the APA and therefore does not reach that argument.
23
fail[s] to consider an important aspect of the problem, offer[s] an explanation for its decision that

runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to

a difference in view or the product of agency expertise.” State Farm, 463 U.S. at 43. “Although

the arbitrary and capricious standard of review is deferential, the court will intervene to ensure that

the agency has examined the relevant data and articulated a satisfactory explanation for its action.”

BellSouth Corp. v. FCC, 162 F.3d 1215, 1221–22 (D.C. Cir. 1999) (cleaned up).

Plaintiffs have identified a raft of alleged deficiencies with the Final Rule. Among them

are that the Final Rule is arbitrary and capricious because EOIR (1) disregarded evidence that the

higher fees will be prohibitively expensive, (2) failed to demonstrate that the availability of fee

waivers will mitigate any negative effects of fee increases, and (3) ignored the adverse impact that

fee increases would have on legal service providers and their ability to provide pro bono or low-

cost legal services. See Pls.’ Br. at 22–25. Plaintiffs also challenge (4) the agency’s legal authority

for increasing fees, (5) its policy justification for doing so, and (6) its departure from its decades-

long imposition of more modest fees. See id. at 25–30. Plaintiffs additionally complain of APA

violations stemming from (7) EOIR’s failure to enlarge the comment period beyond 30 days and

(8) its refusal to disclose, prior to publication of the Final Rule, the data underlying the

“comprehensive study” that led to the fee increases. See id. at 30–35.

The court does not grapple with all of these claims and arguments. For present purposes,

Plaintiffs need show that they are likely to succeed on only one of their claims to justify a stay of

the Final Rule’s effective date or preliminary injunction. Having carefully considered all claims

and arguments asserted under the APA, the court finds that Plaintiffs are likely to succeed in

showing that the Final Rule is arbitrary and capricious because Defendants failed to consider “the

Final Rule’s impact on legal service providers,” see id. at 24–25; Pls.’ Reply at 11–12.

24
 The Final Rule observes that “[n]umerous commenters expressed concerns that the rule

would negatively affect legal service providers.” 85 Fed. Reg. at 82,774. Commenters identified

four major categories of harm that would accrue to legal service providers, each of which is

animated by the concern that the Final Rule will lead to fewer applicants obtaining representation

in immigration proceedings. First, commenters explained that the Final Rule would effectively

reduce representation because the higher fees would force individuals to choose “between paying

the fee or obtaining counsel.” Id. Second, they noted that “legal aid organizations, small firms,

and attorneys providing pro bono services would be unable to routinely pay the fees for their

clients,” as they typically had in the past. Id. Because these organizations would be able to afford

fees for fewer clients under the Final Rule, “they would be forced to assist fewer aliens, especially

indigent aliens and children, which would . . . reduce the availability of pro bono counsel

generally.” Id. Third, legal service providers “expressed concerns that the funds used to pay their

clients’ fees would come at the expense of other programmatic elements of their budget” and they

would therefore “be less able to provide comprehensive services to aliens.” Id. Fourth and finally,

commenters explained that the Final Rule would drain their resources, as “the higher fees and

resulting fee waivers would increase the time that an attorney spends on a case.” Id. This would

“cause them to turn away clients for lack of time and resources to represent them.” Id.

EOIR largely disregarded these concerns. EOIR “decline[d] to respond” to what it deemed

“speculative concerns regarding . . . aliens’ ability to obtain counsel, including effects on legal

service providers.” Id. at 82,775. EOIR supported its declination by stating that “access to counsel

[is] affected by a number of factors beyond the cost of applications and appeals” and that “such

concerns” were “mere speculation.” Id. EOIR also responded that the “commenters’ assertions

concerning the burden of increased fees on organizations and the private bar fall[] outside the

25
limited scope of this rulemaking.” Id. Defendants reassert those same rationales in these

proceedings. Defs.’ Br. at 24–25 (arguing that “Plaintiffs’ argument is both irrelevant and

inaccurate”).

It is black letter law that an agency acts arbitrarily and capriciously when it “entirely fails

to consider an important aspect of the problem.” State Farm, 463 U.S. at 43; Michigan v. EPA,

576 U.S. 743, 753 (2015) (noting agencies are required to “pay[] attention to the advantages and

the disadvantages of agency decisions”); see also Physicians for Soc. Resp. v. Wheeler, 956 F.3d

634, 647 (D.C. Cir. 2020) (finding policy arbitrary and capricious where it failed to consider how

the policy affected certain statutory mandates). An agency also must respond to “relevant” and

“significant” public comments. Home Box Office, Inc. v. FCC (HBO), 567 F.2d 9, 35 & n.58 (D.C.

Cir. 1977). “[N]either requirement is particularly demanding.” Pub. Citizen, Inc. v. FAA, 988 F.2d

186, 197 (D.C. Cir. 1993). In this case, EOIR utterly failed to consider an important aspect of the

problem, and to respond to relevant and significant public comments, when it ignored the impact

that the Final Rule would have on legal service providers and their capacity to provide

representation. Their concerns were neither irrelevant nor speculative.

Congress’s concern for the availability of pro bono and low-cost legal services in removal

proceedings is evident on the face of the INA. As already discussed, the INA not only entitles a

person to counsel in removal proceedings, but it also mandates that written notice of that right be

provided, and that the Attorney General maintain a current list of pro bono legal service providers

and make that list available to a person subject to removal. See supra section IV.B.2. Additionally,

an initial removal hearing cannot be scheduled until 10 days after service, specifically to afford a

person time to secure counsel. See supra section IV.B.2. These provisions of the INA make clear

that Congress was concerned not merely about the right to counsel in removal proceedings, but

26
with actual access to counsel for persons who Congress anticipated might not be able to afford to

hire private lawyers. So, when multiple legal service providers raised the alarm that increased

filing fees would adversely impact their organizations and would depress their capacities to

provide pro bono and low-cost legal services, the APA required EOIR to acknowledge those

concerns and respond to them in a meaningful way, not blithely dismiss them as “outside the

limited scope of this rulemaking,” 85 Fed. Reg. at 82,775. EOIR therefore ignored “an important

aspect of the problem.” State Farm, 463 U.S. at 43.

Defendants also cannot escape their obligation by dismissing the legal service providers’

comments as “speculative.” See 85 Fed. Reg. at 82,775; see also Defs.’ Br. at 24. To be sure, an

agency need not respond to “comments which themselves are purely speculative and do not

disclose [a] factual or policy basis . . . . There must be some basis for thinking a position taken in

opposition to the agency is true.” HBO, 567 F.2d at 35 n.58. Here, the legal services providers

offered ample basis for the truth of their positions: their extensive knowledge and experience with

the immigration system. Who else would have a better understanding of how substantial fee

increases would impact the delivery of legal services than the legal service providers themselves?

They have firsthand knowledge of how their practices operate and the role of fees in their practices.

They are intimately familiar with their budgets and resources and therefore have a unique capacity

to estimate how the Final Rule’s significant increase in fees would upend their normal practices

and would affect the number of clients they can serve. Their comments were thus the product of

their deep institutional knowledge and experience, not mere conjecture, as EOIR claimed.

In these proceedings, Defendants echo EOIR’s position in the Final Rule that the

commenters’ concerns were speculative because “‘access to counsel [is] affected by a number of

factors beyond the cost of applications and appeal, and commenters provided no factual or policy

27
bases for the Department to consider’” on these points. Defs.’ Br. at 25 (quoting 85 Fed. Reg.

at 82,775). By way of illustration, Defendants suggested at oral argument that the impacts on legal

service providers were speculative because Plaintiffs had not shown that their funders woud not

increase their grants or donations to account for the increased fees; therefore, the organizations

could not predict how the increased fees would affect them. Hr’g Tr. (draft), Jan. 15, 2021,

at 41–42. But that is not how notice and comment works. It was the agency’s burden to consider

the impact of the Final Rule on legal service providers, not the providers’ burden to prove to the

agency that they could not affirmatively mitigate that impact. See Stewart v. Azar, 313 F. Supp.

3d 237, 268–70 (D.D.C. 2018) (finding agency “must . . . evaluate the effect of” its actions on

interests protected by statute). Moreover, in referencing potential increases in Plaintiffs’ outside

funding, Defendants’ argument implicitly concedes that the Final Rule may squeeze the budgets

of legal service providers and that, rather than speculation, the legal service providers’ concerns

about lacking the funds and resources to meet the additional fees are very much grounded in reality.

EOIR was required to consider the impact of the Final Rule on legal service providers and “provide

the court an explanation sufficient to allow” it to review the agency’s consideration of that impact.

See Getty v. Fed. Sav. & Loan Ins., 805 F.2d 1050, 1055 (D.C. Cir. 1986). Because it did not do

so, Plaintiffs are likely to succeed in establishing that the Final Rule is arbitrary and capricious.

2. Irreparable Harm

Having shown that they are likely to succeed on the merits of one of their claims, Plaintiffs

must next “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter,

555 U.S. at 22 (emphasis omitted); S. Poverty Law Ctr., 2020 WL 3265533, at *32. To

demonstrate irreparable harm, plaintiffs must show both (1) that the harm is “certain and great,

actual and not theoretical, and so imminent that there is a clear and present need for equitable relief

28
to prevent irreparable harm” and (2) that the harm is “beyond remediation.” League of Women

Voters of U.S. v. Newby, 838 F.3d 1, 7–8 (D.C. Cir. 2016) (cleaned up).

Another judge in this District has previously found irreparable harm based on evidence

showing that proposed fee increases for immigrant services “will interfere with the[] ability [of

legal service providers] to provide essential services to their clients and/or members—in some

cases irretrievably so.” Nw. Immigrant Rts. Project, 2020 WL 5995206, at *30, *32. The harms

documented in Plaintiffs’ numerous declarations mirror the harms established in Northwest

Immigrant Rights Project. CLINIC, for example, has submitted a declaration attesting that there

will be “a significant decrease in the number of cases that CLINIC and its pro bono partners can

take on due to the increased work load from preparing and verifying fee waiver requests and the

“virtual[] impossib[ility]” that CLINIC and its pro bono partners will be able to front filing fees

for indigent clients. Mendez Decl. ¶¶ 33–35. KIND too avers that it will face those same resource

strains and “has already diverted resources from [its] other work to prepare training materials and

provide technical assistance to [its] staff and pro bono partners on the forthcoming changes to the

fee rule.” Odom Decl. ¶¶ 26–29. In addition, KIND “plans to divert time and resources to

fundraising efforts to cover clients’” fees. Id. ¶ 29. These efforts, KIND declares, consume “time

and resources that KIND attorneys would otherwise spend on additional client matters,” reducing

the number of new clients the organization will be able to take on. Id. ¶ 30. CLSEPA has identified

similar harms from the Final Rule. It attests that “[t]he Final Rule is already setting in motion

some of the very harms [it] feared,” including the “frustrat[ion]” of CLSEPA’s “mission by

increasing the amount of work required per case[,] therefore limiting [the organization’s]

transformative impact by decreasing the number of individuals [it] can serve.” dos Santos Decl.

¶¶ 31, 45; see also id. ¶¶ 31–33, 36–37, 40, 44–46, 48–49 (describing harms inflicted by Final

29
Rule, ultimately leading to decreased capacity for additional cases). And finally, CHIR asserts

that it “has already had to divert resources” to adapting to the new fees and that it “will necessarily

need to assist [clients] in preparing fee waiver applications, which will again add to the staff’s

workload and limit the time available for existing cases and the new cases [it is] obligated to take

on to maintain funding levels.” Salas Decl. ¶¶ 38, 43; see also id. ¶¶ 38–39, 44–47.

Collectively, these declarations show that the Final Rule will have an “immediate effect

on” Plaintiffs’ “ability to serve their [existing] clients” and take on new clients. Nw. Immigrant

Rts. Project, 2020 WL 5995206, at *31. The cumulative impact of the Final Rule will lead to

decreased representation of applicants in immigration proceedings. Such harm is irreparable to

both Plaintiffs and the immigrant populations they represent.

Defendants push back on Plaintiffs’ showing of irreparable harm in two ways. First, they

argue that Plaintiffs have not “presented . . . any evidence demonstrating that any substantial

decrease in immigration filings would occur as a result of these fee increases.” Defs.’ Br. at 35–36.

This argument misses the mark. Plaintiffs assert that they will be able to represent fewer

applicants, not that there will be fewer applicants for immigration relief overall. Second,

Defendants maintain that Plaintiffs have not established that they would lose funding “immediately

and before this Court can consider the merits” of Plaintiffs’ challenge to the Final Rule. Id. at 36.

Again, this argument misconstrues Plaintiffs’ injuries. Regardless of when any financial harm may

befall them, absent an injunction, Plaintiffs will be irreparably harmed by the damage to their core

missions—providing free or low-cost representation to persons needing counsel in removal

proceedings—defusing any concerns about the timing of their loss of funding. Indeed, many

organizations have already diverted resources away from representing clients toward adapting to

the Final Rule. See Odom Decl. ¶ 27; dos Santos Decl. ¶ 31; Salas Decl. ¶ 38.

30
 D. Balance of the Equities and Public Interest

Having concluded Plaintiffs will suffer irreparable harm absent a preliminary injunction,

the court turns to the balance of the equities and the public interest. These factors merge when, as

here, the government is the defendant. See Nken v. Holder, 556 U.S. 418, 435 (2009). Plaintiffs

argue that the balance of the equities and the public interest weigh in favor of injunctive relief

because such relief would maintain the status quo, the public’s interests are served by the

government following the law, and Defendants have identified no urgent fiscal need for the fee

increases to go into effect. Pls.’ Br. at 43. Defendants, on the other hand, argue that the public’s

interest in the government following the law is best served by not enjoining the Final Rule so that

EOIR can work toward self-sustenance. Defs.’ Br. at 38.

The court concludes that the balance of the equities tips decidedly in Plaintiffs’ favor. First,

as to the public’s interest in the government following the law, the court has already ruled that

Plaintiffs are likely to succeed on their claim that the Final Rule is arbitrary and capricious. “There

is generally no public interest in the perpetuation of unlawful agency action.” League of Women

Voters, 838 F.3d at 12; Nw. Immigrant Rts. Project, 2020 WL 5995206, at *32. Second,

Defendants will suffer little, if any, harm from a delay in achieving a self-sustaining fee model;

they have conceded that EOIR is not “dependen[t] on fee collections to operate,” Defs.’ Br. at 7,

and Congress has already appropriated $734 million to EOIR for Fiscal Year 2021, Pub. L.

No. 116-260, 134 Stat. at 1246. In contrast, Plaintiffs have already begun to suffer harm to their

organizational missions, see supra Section IV.C.2, and they have presented evidence that some of

Plaintiff CHIR’s indigent members have already been forced to cut spending on their basic needs

to save money in anticipation of affording the new fees, see Salas Decl. ¶¶ 57–61; see also 85 Fed.

Reg. at 82,763 (suggesting that “[a]n alien who is concerned that he or she may wish to appeal the

31
immigration judge’s decision should, accordingly, use that time between the initiation of the

proceeding and the immigration judge’s issuance of a final decision to begin arranging funds for

the future payment of the appeal”). Third and finally, as the court in Northwest Immigrant Rights

Project noted, it is “far from clear that Defendants would benefit from a decision that would permit

the Rule to take effect, only to be set aside months from now.” 2020 WL 5995206, at *32. The

equities and public interest therefore favor entry of injunctive relief.

E. Scope of Injunction

The court concludes by defining the scope of the remedy. “Crafting a preliminary

injunction is an exercise of discretion and judgment,” and “a court need not grant the total relief

sought by the applicant but may mold its decree to meet the exigencies of the particular case.”

Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (internal quotation marks

omitted); see also Winter, 555 U.S. at 24 (noting “courts must balance the competing claims of

injury and must consider the effect on each party of the granting or withholding of the requested

relief” (internal quotation marks omitted)). It is well settled “that an injunction must be narrowly

tailored to remedy the specific harm shown.” Neb. Dep’t of Health & Human Servs v. Dep’t of

Health & Human Servs., 435 F.3d 326, 330 (D.C. Cir. 2006) (cleaned up). Here, the court

confronts two questions in tailoring the preliminary injunction: whether the effective date of each

of the fee increases promulgated in the Final Rule must be stayed and whether the injunctive relief

should issue nationwide.

Plaintiffs have requested that the court “stay the effective date of the Final Rule in its

entirety.” Pls.’ Br. at 44. But as counsel for Defendants pointed out at oral argument, there are

three fees that Plaintiffs have not shown will result in irreparable harm. See Hr’g Tr. (draft),

Jan. 14, 2021, at 34–37. First, Plaintiffs conceded at oral argument that they do not seek an

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injunction of the $675 fee attached to Form EOIR-45 “[f]or filing an appeal from a decision of an

adjudicating official in a practitioner disciplinary case,” 85 Fed. Reg. at 82,794. Hr’g Tr. (draft),

Jan. 15, 2021, at 71–72. Accordingly, the court will not stay the fee increase for Form EOIR-45.

Second, Plaintiffs have not sufficiently established that the $35 fee increase for filing a

motion to reopen or reconsider in OCIJ, see 85 Fed. Reg. at 82,751, 82,794, will cause irreparable

harm. An increase of this fee from $110 to $145 is too minimal to inflict the harms that Plaintiffs

complain of, and Plaintiffs have not made any showing to the contrary.

Third, and finally, at oral argument counsel for Defendants clarified that the Final Rule

does not impose a $50 fee for defensive asylum applications. Instead, according to counsel, there

is a pre-existing EOIR policy to apply DHS’s fees to forms that DHS drafts, including the form

for seeking asylum. Hr’g Tr. (draft), Jan. 15, 2021, at 64–65. Plaintiffs have not challenged that

policy, and, given that the DHS fee is subject to not one but two nationwide injunctions, see

Nw. Immigrant Rts. Project, 2020 WL 5995206; Immigrant Legal Res. Ctr. v. Wolf, No. 20-cv-

5883, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020), the court sees no pressing need to enjoin

it here.

The court concludes that the remaining fee increases—which impose increases of between

$205 and $865 per type of filing—are likely to cause Plaintiffs irreparable harm and enjoins those

increases in their entirety. Specifically, the court enjoins:

(1) The $975 fee attached to Form EOIR-26 for filing an appeal
from a decision of an immigration judge;
(2) The $705 fee attached to Form EOIR-29 for filing an appeal
from a decision of an officer of DHS;
(3) The $895 fee for filing a motion to reopen or to reconsider
before the BIA;
(4) The $305 fee attached to Form EOIR-40 for an application
for suspension of deportation;

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 (5) The $305 fee attached to Form EOIR-42A for an application
for cancellation of removal for certain permanent residents;
and
(6) The $360 fee attached to Form EOIR-42B for an application
for cancellation of removal and adjustment of status for
certain nonpermanent residents.

See 85 Fed. Reg. at 82,793–94. EOIR may continue to charge the fees already in effect for these

filings.

Finally, Plaintiffs have requested that the court’s preliminary injunction issue nationwide.

See Pls.’ Br. at 44–45. The court agrees that a nationwide injunction is proper here because the

court finds that the Final Rule is substantially likely to violate the APA and the injunction concerns

the nation’s immigration policies. The D.C. Circuit has held “that ‘when a reviewing court

determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—

not that their application to the individual petitioners is proscribed.’” Nat’l Mining Ass’n v. U.S.

Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (alteration omitted) (quoting Harmon

v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989)). Accordingly, courts in this Circuit have

“confirm[ed] the propriety of nationwide injunctions in APA cases where the challenged policy is

found to be arbitrary and capricious or otherwise facially unlawful.” Whitman-Walker Clinic, Inc.

v. U.S. Dep’t of Health & Human Servs., No. 20-1630(JEB), 2020 WL 5232076, at *43 (D.D.C.

Sept. 2, 2020), appeal filed, No. 20-5331 (D.C. Cir. Nov. 9, 2020). The court finds additional

support for a nationwide injunction in the Supreme Court’s recognition of the government’s

interest in establishing a “uniform Rule of Naturalization.” Arizona v. United States, 567 U.S.

387, 394 (2012) (internal quotation marks omitted) (quoting U.S. Const. Art. I, § 8, cl.4).

Defendants also have not asked the court to refrain from issuing a nationwide injunction, as they

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have done in other cases. Accordingly, the court will stay the effective date of and preliminarily

enjoin the aforementioned provisions of the Final Rule nationwide.

V. CONCLUSION AND ORDER

For the foregoing reasons, the court grants in part and denies in part Plaintiffs’ Motion for

a Stay of Effective Dates Under 5 U.S.C. § 705 or, in the Alternative, Preliminary Injunction, ECF

No. 19. The court stays the effective date of the final rule, Executive Office for Immigration

Review; Fee Review, 85 Fed. Reg. 82,750 (Dec. 18, 2020), as to the following fees pending final

adjudication of this action:

(1) The $975 fee attached to Form EOIR-26 for filing an appeal
from a decision of an immigration judge;
(2) The $705 fee attached to Form EOIR-29 for filing an appeal
from a decision of an officer of DHS;
(3) The $895 fee for filing a motion to reopen or to reconsider
before the BIA;
(4) The $305 fee attached to Form EOIR-40 for an application
for suspension of deportation;
(5) The $305 fee attached to Form EOIR-42A for an application
for cancellation of removal for certain permanent residents;
and
(6) The $360 fee attached to Form EOIR-42B for an application
for cancellation of removal and adjustment of status for
certain nonpermanent residents.

Defendants are hereby enjoined from implementing or enforcing the above fees pending final

adjudication of this action. The parties shall meet and confer and, by January 27, 2021, file a Joint

Status Report proposing a schedule for further proceedings in this matter.

Dated: January 18, 2021 Amit P. Mehta
United States District Court Judge

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