Pangea Legal Services v. U.S. Department of Homeland Security

Background

Pangea Legal Services and the plaintiffs in a related action brought by Immigration Equality challenged a final rule issued by the Department of Homeland Security (DHS) and the Department of Justice (DOJ). The rule, titled Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, was scheduled to take effect on January 11, 2021. The plaintiffs moved for a temporary restraining order and preliminary injunction to prevent implementation of the rule.

The opinion described several changes the rule would make to the asylum system, including expanding the circumstances in which an applicant could be barred from asylum based on time spent in a third country, creating an effective presumption against some gender-based persecution claims, expanding the definition and consequences of a frivolous application, and creating a procedure allowing an immigration law judge to reject an asylum application without a hearing if the applicant failed to make an initial showing for relief.

The plaintiffs alleged that Chad F. Wolf was not lawfully serving as Acting Secretary of Homeland Security and therefore lacked authority to approve the rulemaking. They also alleged that the rule was arbitrary, capricious, unlawful, and procedurally improper under the Administrative Procedure Act. The government opposed the injunction motions.

Discussion

A preliminary injunction requires consideration of the plaintiffs’ likelihood of success on the merits, likely irreparable harm without relief, the balance of hardships, and the public interest. The court focused on whether Wolf had authority to approve the rulemaking.

The court concluded that the plaintiffs were likely to succeed on that issue. It agreed with an earlier federal court’s analysis that Secretary Kirstjen Nielsen’s April 2019 order changed the succession order for disasters or emergencies, not for resignations or other vacancies. The court said the existing succession order should have placed Christopher Krebs in charge after Nielsen’s departure, rather than Kevin McAleenan. Because McAleenan therefore had not validly become Acting Secretary, his effort to change the succession order and designate Wolf had no legal effect.

The court also rejected the government’s alternative argument under the Federal Vacancies Reform Act. At the hearing, the government’s counsel stated that Peter Gaynor had never been Acting Secretary of Homeland Security. The court concluded that Gaynor therefore lacked authority to change the succession order or designate Wolf, and that Gaynor could not retroactively validate Wolf’s actions.

The court held that the plaintiffs had shown a likelihood that the rulemaking was conducted without legal authority. It did not decide the plaintiffs’ other arguments that the rule’s specific changes violated the Administrative Procedure Act; the court said those issues would be addressed at a later proceeding. The court also concluded that Attorney General William P. Barr’s participation did not cure the lack of DHS authority because the DHS and DOJ regulations were closely connected and the substantive rulemaking authority rested with DHS.

The court found likely irreparable harm because the plaintiffs provide legal services and other assistance to people seeking asylum and similar protections. The plaintiffs presented evidence that the rule could harm their clients and require the organizations to devote more time to cases, limiting the number of asylum seekers they could represent. They also presented evidence that changes making asylum harder to obtain could reduce the number of applications they filed and affect their revenue and funding.

The court determined that the balance of hardships and public interest favored an injunction. It cited the public interests in complying with the Administrative Procedure Act, protecting asylum seekers from wrongful removal or death, and maintaining a stable immigration system.

Relief Granted

The court granted a preliminary injunction on a nationwide basis. It barred DHS, DOJ, the Executive Office for Immigration Review, U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, U.S. Customs and Border Protection, the named officials, and covered persons acting with them or at their direction from implementing, enforcing, or applying the challenged rule or related policies and procedures.

The injunction remains in place pending further order of the court. The plaintiffs were excused from posting a bond under Federal Rule of Civil Procedure 65(c). The parties were directed to propose a date for further argument on the merits and to inform the court of policy changes or other developments likely to materially affect the proceedings.