Ali v. Barr

Background

Nows hin Ali, Sonia Monir, Ron Cerreta, UnLocal, Inc., and Catholic Migration Services sued William Barr, the Attorney General of the United States, and James McHenry, the Director of the Executive Office of Immigration Review. The plaintiffs challenged the operation of the New York City Immigration Courts in non-detained removal proceedings during the COVID-19 pandemic.

They sought a preliminary injunction, which is a temporary court order issued before final judgment. The requested order would have barred the defendants from enforcing filing deadlines or taking adverse action based on missed deadlines until 45 days after all New York State and New York City stay-at-home and social-distancing orders were lifted.

Before the pandemic, the Immigration Court Practice Manual generally advised non-detained parties to file submissions 15 days before a hearing, while allowing the immigration judge to set different deadlines. Beginning in March 2020, the Executive Office of Immigration Review postponed hearings in non-detained cases. It also created temporary email accounts for electronic filings. The New York Immigration Courts later limited electronic filings to cases with hearings within three months and generally limited documentary or evidentiary submissions to 50 pages, while allowing larger or more distant filings to be sent by mail. A May 8, 2020 standing order adjourned deadlines for hearings postponed because of COVID-19, unless the presiding immigration judge set a different deadline.

Ali and Monir were individuals in removal proceedings. Ali’s hearing was postponed from May 2020 to December 2021, and Monir’s hearing was postponed from May 2020 to June 2022. Cerreta was an attorney representing clients in removal proceedings. One client’s June 2020 hearing had been postponed, while another client had an August 2020 hearing and a July 2020 filing deadline. UnLocal and Catholic Migration Services were nonprofit organizations representing clients in New York removal proceedings. They said that working from home created difficulties, including limited technology and problems communicating with clients. They had filed some motions to continue hearings, but none had been denied.

Legal standard

A party seeking a preliminary injunction generally must show a likelihood of success on the merits, a likely irreparable injury without the injunction, that the balance of hardships favors the party seeking relief, and that the public interest would not be harmed. Because the requested injunction would have changed existing procedures rather than merely preserved them, the court said the plaintiffs faced a higher burden and had to make a clear or substantial showing of entitlement to relief.

Subject-matter jurisdiction

The court first considered whether it had subject-matter jurisdiction, meaning legal authority to hear the claims. It held that the preliminary-injunction request itself did not create jurisdiction and concluded that it lacked jurisdiction over the individual plaintiffs’ claims and lacked authority to issue the requested injunction for the organizational plaintiffs.

Ali and Monir

The court dismissed all claims asserted by Ali and Monir. First, it held that their claims were moot because their hearings and related filing deadlines had been postponed to 2021 and 2022. The court stated that they alleged no injury other than the difficulty of meeting the deadlines for their original hearing dates.

Second, the court held that the Immigration and Nationality Act deprived the district court of jurisdiction over their claims. The court relied on provisions requiring challenges arising from removal proceedings to be reviewed through a petition to a court of appeals after a final removal order. It concluded that enforcement of filing deadlines was part of the process for deciding removability, rather than an issue separate from the removal proceedings.

Cerreta

The court dismissed all claims asserted by Cerreta for lack of subject-matter jurisdiction because he lacked standing. Standing requires a concrete and actual or imminent injury that is fairly connected to the defendants’ conduct and likely to be remedied by a court order.

The court found that Cerreta had not shown an injury in fact. He could electronically file a motion to continue the August 2020 hearing, and he had not claimed that he was unable to do so. Finding an injury would have required assuming that the immigration judge would deny a motion that Cerreta had not yet filed. The court considered that injury hypothetical rather than actual or imminent.

UnLocal and Catholic Migration Services

As to the organizational plaintiffs, the court held that the Immigration and Nationality Act barred it from issuing the requested preliminary injunction. The court interpreted the statute as preventing a district court from issuing an injunction of general applicability that would interfere with the operation of specified immigration-law provisions, except for relief directed to an individual alien in a particular proceeding.

The plaintiffs had initially sought broad relief covering non-detained New York City Immigration Court cases. In their reply, they narrowed the request to the clients represented by the organizational plaintiffs and Cerreta. The court held that this change did not make the relief individualized; the proposed injunction remained classwide in character. The court also rejected reliance on the All Writs Act because that statute could not supply jurisdiction that the immigration statute had removed.

Alternative analysis assuming jurisdiction

The court stated that, even if it had jurisdiction, it would deny the requested injunction. It characterized the proposed order as mandatory because it would replace case-by-case decisions on motions to continue and ordinary filing deadlines with an across-the-board stay lasting until 45 days after state and local pandemic restrictions ended.

The court also found the requested relief impermissibly vague because the end of social-distancing restrictions was uncertain and outside the defendants’ control. It raised, without deciding as a separate jurisdictional holding, a federalism concern about tying the operation of a federal immigration tribunal to state and municipal orders.

The court further held that the plaintiffs had not shown irreparable injury. Clients could file motions to continue, and the plaintiffs acknowledged that none of their filed motions had been denied. The court concluded that the plaintiffs’ belief that future motions might be denied was speculation. It also found the requested injunction unnecessary in light of the postponed hearings and the May 8 standing order adjusting related filing deadlines.

Finally, because the injunction was sought against the government, the court treated the balance of hardships and public-interest considerations together. It agreed that the government had adopted policies addressing COVID-19 while continuing to administer immigration laws, and that the public interest did not favor an injunction requiring the court to replace those policies.

Disposition

The court dismissed the individual plaintiffs’ claims in their entirety for lack of subject-matter jurisdiction. It also dismissed the organizational plaintiffs’ claims insofar as they sought a permanent injunction as described in the complaint. As to the requested preliminary injunction for the organizational plaintiffs, the court denied the motion. The court noted that it was uncertain whether any viable claim remained and requested submissions from the parties on that issue.