LORETTA C. BIGGS, District Judge.
Plaintiffs challenge the U.S. Citizenship and Immigration Services' ("USCIS") issuance of an August 9, 2018 Policy Memorandum, PM-602-1060.1, titled "Accrual of Unlawful Presence and F, J, and M Nonimmigrants" (the "August 2018 PM"). (ECF No. 14.) On May 3, 2019, this Court preliminarily enjoined the August 2018 PM, having concluded that it was likely promulgated in violation of the Administrative Procedure Act (the "APA"), 5 U.S.C. §§ 551 et seq. (ECF No. 45.) The parties now cross-move for summary judgment. (ECF Nos. 60; 62.) For the reasons that follow, the Court grants Plaintiffs' motion, denies the Government's motion, and permanently enjoins the August 2018 PM nationwide.
In 1996, Congress amended the Immigration and Nationality Act ("INA") to introduce a new concept called "unlawful presence." See 8 U.S.C. § 1182(a)(9)(B). A nonimmigrant
For people admitted to the United States for a fixed period—for instance, a tourist whose visa has a firm expiration date—the determination of when "unlawful presence" time begins to accrue is straightforward. However, some nonimmigrant visa holders are not given precise dates upon which their authorized "period[s] of stay" expire. For example, an international student studying at an American university may be admitted for the "time during which [the] student is pursuing a full course of study at an [approved] educational institution . . . or engaging in authorized practical training following completion of studies." See 8 C.F.R. § 214.2(f)(5). Such visas, including F, M, and J visas,
Until recently, the unlawful-presence `clock' would not begin to run against an F, M, or J visa holder until a government official—either an immigration judge or a USCIS adjudicator—formally identified an immigration status violation. (See ECF Nos. 57-1 at 66; 61-3 at 2-3.) However, in 2018, USCIS changed course. In a May 10, 2018 Policy Memorandum, the agency announced that, in order "[t]o reduce the number of [visa] overstays and to improve how USCIS implements the unlawful presence ground of inadmissibility under [the] INA," it would be "changing its policy on how to calculate unlawful presence." (ECF No. 57-1 at 30.) Under this new policy, which was memorialized in the August 2018 PM, unlawful presence starts to accrue not at the time an individual is formally found to be out of status, but from the time an adjudicator determines the status violation first occurred. (See id. at 19.)
According to Plaintiffs, this policy change could cause otherwise "unintentional errors" to result in "life-altering consequences." (ECF No. 61 at 8.) Because "unlawful presence" time begins to accrue under the August 2018 PM "[t]he day after [an F, J, or M visa holder] engages in an unauthorized activity," (ECF No. 57-1 at 19), minor violations—like failing to update an address, or working a single extra hour in a week—could result in a three- or ten-year reentry bar "with no opportunity to cure," (ECF No. 61 at 8-9).
Plaintiffs thus initiated this action on October 23, 2018 seeking to halt implementation of the August 2018 PM. (See ECF Nos. 1; 14.) Their complaint contains four related claims: (1) that in issuing the August 2018 PM, USCIS failed to observe rulemaking procedures required by the APA; (2) that the August 2018 PM is "substantively arbitrary and capricious"; (3) that the August 2018 PM conflicts with the statutory text of the INA; and (4) that the August 2018 PM violates the Due Process Clause of the Fifth Amendment. (See ECF No. 14 ¶¶ 185-221.) This Court issued a preliminary injunction on May 3, 2019; however, in the absence of a certified administrative record, which at that time had not yet been filed, it declined to rule on Plaintiffs' request for partial summary judgment. (See ECF No. 45 at 27-29.) That record has since been made available, (ECF Nos. 57-1; 57-2), and the Court now considers the parties' cross-motions for summary judgment.
Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "This rubric has a special twist in the administrative law context," see Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997), where summary judgment "serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." See Air Transp. Ass'n of Am. v. U.S. Dep't of Agric., 303 F.Supp.3d 28, 38 (D.D.C. 2018) (quotation omitted); see also All. for Legal Action v. U.S. Army Corps of Eng'rs, 314 F.Supp.2d 534, 541 (M.D.N.C. 2004).
Under the APA, courts must "hold unlawful and set aside" those agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right," id. § 706(2)(C), or undertaken "without observance of procedure required by law." id. § 706(2)(D). "Review under this standard is highly deferential, with a presumption in favor of finding the agency action valid." Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009). Nevertheless, the standard is not meant to "reduce judicial review to a `rubber-stamp' of agency action." Id. (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir. 1976)). Rather, the court must engage in a "searching and careful" inquiry of the record in order to understand "the evidence relied upon and the evidence discarded; the questions addressed by the agency and those bypassed; [and] the choices open to the agency and those made." Id. at 192-93 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971); Ethyl Corp., 541 F.2d at 36).
Before addressing the merits, a brief discussion of jurisdiction is necessary. In its preliminary injunction Order, this Court ruled that Plaintiffs had standing to challenge the August 2018 PM and that this matter was ripe for judicial review. (See ECF No. 45 at 5-13.) The Government urges the Court to "reject that preliminary ruling," (ECF No. 63 at 10), despite the fact that Plaintiffs' burden to demonstrate jurisdiction is the same now as it was then, see Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011) (explaining that the burdens to demonstrate standing at the preliminary injunction and summary judgment stages are normally equivalent). While federal courts are always under "an obligation to assure ourselves" of jurisdiction, see DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006), this Court, having already determined that it has jurisdiction, is hesitant to rehash its prior analysis. However, given the attention devoted to standing and timeliness in the parties' briefing, the Court will reaffirm its conclusions here.
While numerous Plaintiffs bring this suit, "the presence of one party with standing is sufficient to satisfy Article III's case-or-controversy requirement." Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014) (quoting Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006)). The two individual plaintiffs in this case, Jia Ye and Sen Li ("Individual Plaintiffs"), clearly have standing. (See ECF No. 45 at 6-8.) Both are foreign nationals who, after entering the United States on F-1 student visas, subsequently graduated or withdrew from school. (ECF Nos. 16-1 ¶¶ 2, 4, 10; 16-2 ¶¶ 2, 4, 10.) Both were then recruited by the U.S. Army via the Military Accessions Vital to National Interest ("MANVI") program, signed enlistment contracts, and were advised to remain in the country as they await orders to report to Basic Training. (ECF Nos. 16-1 ¶¶ 6-9; 16-2 ¶¶ 6-9.) However, under the August 2018 PM's unlawful-presence calculation methodology, Ye and Li also began accruing unlawful-presence time as soon as they concluded their studies and fell out of status. Thus, USCIS' policy puts the Individual Plaintiffs in an untenable position—if they stay to honor their enlistment contracts, they face a substantial likelihood of a reentry bar in the future; if they leave to avoid accruing more unlawful-presence time, they risk losing their chance to serve and earn U.S. citizenship. See Nat'l Venture Capital Ass'n v. Duke, 291 F.Supp.3d 5, 13 (D.D.C. 2017) (recognizing that the "lost opportunity to obtain. . . status" qualifies as a "cognizable injury in the immigration context"). This injury in fact—the accrual of "unlawful presence" time in the here and now—is traceable to the August 2018 PM and will likely be redressed by the relief Plaintiffs seek. (See ECF No. 45 at 8.) That, in short, is enough to establish standing.
In its summary judgment briefing, the Government reiterates two previously rejected timing arguments: first, that because Ye and Li's personalized "administrative processes" are "ongoing," this case remains unripe, (ECF No. 63 at 14-15); and second, that the August 2018 PM does not "constitute a discrete, final agency action" reviewable under the APA, (id. at 13). Neither is persuasive. Plaintiffs do not challenge any individual unlawful-presence determinations; rather, Plaintiffs challenge the "decision, embodied in the August 2018 memorandum, to establish new, binding, detrimental rules" for such determinations.
The Court now turns to the merits. Plaintiffs seek summary judgment on just two of their four claims: that the August 2018 PM was improperly issued without notice and comment (first cause of action); and that the August 2018 PM conflicts with the language of the INA (third cause of action). (ECF Nos. 14 ¶¶ 185-192, 202-211; 60 at 1.) The Government, for its part, moves for summary judgment on all claims.
As a general matter, "[t]he APA requires that all `rules' be issued through a statutorily prescribed notice-and-comment process." Children's Hosp. of the King's Daughters, Inc. v. Azar, 896 F.3d 615, 619 (4th Cir. 2018) (citing 5 U.S.C. § 553(a)-(c)). However, there are exceptions. Unless required by another statute, the APA's notice-and-comment regime "does not apply" to (1) "interpretative rules,"
Proper notice-and-comment rulemaking has three steps. Id. First, the agency must publish a "[g]eneral notice of proposed rule making" in the Federal Register.
Plaintiffs point out—and the Government does not contest—that, in issuing the August 2018 PM, USCIS failed to adhere to the notice-and-comment process. (See ECF No. 61 at 9.) "It is undisputed," for example, "that neither the May 2018 preliminary memorandum nor the August 2018 final memorandum was published in the Federal Register." Id. However, the Government submits that notice-and-comment procedures are irrelevant here because, as "a reasonable interpretive rule," the August 2018 PM is "exempt from the APA's notice-and-comment requirement."
It has been said that the distinction between legislative and interpretive rules is "enshrouded in considerable smog." See Gen. Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984); see also Perez, 575 U.S. at 96 (declining to "wade into" the ongoing debate over what constitutes an "interpretative rule"). However, caselaw provides some helpful guideposts. According to the Supreme Court, the "critical feature of interpretive rules is that they are issued. . . to advise the public of the agency's construction of the statutes and the rules which it administers." Perez, 575 U.S. at 97 (internal quotations omitted). The D.C. Circuit has echoed that interpretive rules "describe[ ] the agency's view of the meaning of an existing statute or regulation," without going so far as to "effect[ ] a substantive regulatory change." See Mendoza v. Perez, 754 F.3d 1002, 1021 (D.C. Cir. 2014). Likewise, the Fourth Circuit has recognized that, in general, interpretive rules "simply state what the administrative agency thinks the statute means." Children's Hosp., 896 F.3d at 620 (citing Jerri's Ceramic Arts, Inc. v. Consumer Prod. Safety Comm'n, 874 F.2d 205, 207 (4th Cir. 1989)).
"Somewhere along a spectrum," however, "a rule transitions from being interpretive to being legislative." N.H. Hosp. Ass'n, 887 F.3d at 70; see Children's Hosp., 896 F.3d at 620-21. A key indicator is whether a rule represents an agency's effort to "implement [a] statute," rather than merely opine on its meaning. See Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1340 (4th Cir. 1995) (emphasis added). Put another way, rules that aim to do more than "simply clarify or explain a regulatory term" tend to be legislative. See Mendoza, 754 F.3d at 1021. Thus, in deciding whether a rule is interpretive or legislative, courts should consider the agency's "intent in authoring it, as ascertained by an examination of the provision's language, its context, and any available extrinsic evidence." Jerri's Ceramic Arts, 874 F.2d at 208 (quoting Doe v. Hampton, 566 F.2d 265, 281 (D.C. Cir. 1977)). The bottom line is that a rule is legislative, and not interpretive, "if it supplements a statute, adopts a new position inconsistent with existing regulations, or otherwise effects a substantive change in existing law or policy." Children's Hosp., 896 F.3d at 620 (quoting Mendoza, 754 F.3d at 1021) (emphasis added); see also Ass'n of Flight Attendants-CWA, AFL-CIO v. Huerta, 785 F.3d 710, 717 (D.C. Cir. 2015) (explaining that a rule's "most important" distinguishing feature is its "actual legal effect (or lack thereof)").
Here, the express language of the August 2018 PM is instructive. The memorandum states that its purpose is to "reduce the number of overstays and improve how USCIS implements the unlawful presence ground of inadmissibility under [the] INA." (See ECF No. 57-1 at 18 (emphasis added).) The memo goes on to explain that, in pursuit of those goals, "USCIS is now changing its policy on how to calculate unlawful presence." (Id. (emphasis added).) This language, which evinces a desire to achieve a substantive policy outcome, strongly suggests "that more is involved than mere `interpretation.'" Jerri's Ceramic Arts, 874 F.2d at 208. Simply put, the August 2018 PM "endeavor[s] to implement the [INA]," rather than merely interpret it, which is "the effect of a legislative rule." Mendoza 754 F.3d at 1023 (quoting Chamber of Commerce v. OSHA, 636 F.2d 464, 469 (D.C. Cir. 1980)).
By its own terms, the August 2018 PM purports to be "intended solely for the guidance of USCIS personnel" and cautions that it should "not be relied upon" as the source of any benefits or rights, whether substantive or procedural. (See ECF No 57-1 at 28.) However, when determining whether a rule is legislative or interpretive, "a disclaimer by an agency about what its statements do and do not constitute as a legal matter [is] not dispositive." See Regents of the Univ. of Cal. v. U.S. Dep't of Homeland Sec., 908 F.3d 476, 516 (9th Cir. 2018); Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000) (rejecting a "boilerplate" statement similar to the agency's here). The Government also tries to minimize the August 2018 PM's substantive tenor by suggesting that it is the INA, rather than the memorandum, which "creates deterrence for accruing unlawful presence." (ECF No. 67 at 13.) However, as compared to the agency's former policy, the deterrent effect of unlawful-presence time is enhanced significantly by the August 2018 PM. Because unlawful presence accrues sooner and more frequently under the memorandum, we can expect it to coerce nonimmigrants to depart the country more readily in order to avoid a reentry bar. This is a significant change from past practice; one which, as evidenced by the plain language, USCIS clearly intends to effectuate through the August 2018 PM. The Court thus takes the text of the memorandum itself as compelling evidence that the August 2018 PM is a legislative rule.
Equally telling is the memorandum's complete lack of interpretive effort. "Had [USCIS] merely been interpreting the governing statute and regulation," then we would at least "expect that the agency's justification for the rule would rely on an interpretive methodology." See N.H. Hosp. Ass'n, 887 F.3d at 71-72; accord Gen. Motors, 742 F.2d at 1565 ("[Agency's] entire justification for the rule [was] comprised of reasoned statutory interpretation, with reference to the language, purpose and legislative history."). However, the August 2018 PM never so much as quotes the language of the statute it supposedly deciphers. In contrast, the 1997 memorandum setting out the former policy on unlawful presence—which, as discussed below, may or may not have been an interpretive rule itself—at least claimed to have been "interpret[ing]" the statute. (See ECF No. 61-3 at 2); see also Equity in Athletics, Inc. v. Dep't of Educ., 639 F.3d 91, 105-06 (4th Cir. 2011) (giving weight to an agency's characterization of an action as its "interpretation" of the governing statute). Absent any sign of interpretive methodology, the objectives stated in the August 2018 PM—changing the way "unlawful presence" is calculated so as to reduce the number of overstays—point even more clearly toward the legislative end of the "spectrum."
As further evidence of its legislative character, the August 2018 PM establishes a "binding norm" on agency adjudicators which curtails their ability to "exercise their discretion." See Chen Zhou Chai, 48 F.3d at 1341; Ass'n of Flight Attendants, 785 F.3d at 717 (explaining that agency action which "imposes new obligations on regulated parties or narrowly limits administrative discretion. . . constitutes a legislative rule"). Under the terms of the memorandum, unlawful presence must be calculated from the date a status violation occurs. (See ECF No. 57-1 at 18 (stating unequivocally that "F, J, and M nonimmigrants. . . start accruing unlawful presence as outlined [herein]").) The Government contends that the August 2018 PM is merely "guidance" which "directs adjudicators to consider a number of flexible factors when determining whether or how much `unlawful presence' a former F, J, or M nonimmigrant has accrued." (ECF No. 63 at 21.) However, it is difficult to read this "guidance" as anything other than a mandate. See Ass'n of Flight Attendants, 785 F.3d at 717 ("[A] document that reads like an edict is likely to be binding, while one riddled with caveats is not."). Moreover, USCIS has incorporated the August 2018 PM into its Adjudicator's Field Manual (the "AFM") as "policy material."
As the final step in its legislative-versus-interpretive analysis, the Court considers the relationship between the August 2018 PM and USCIS' past actions on "unlawful presence." The Government argues that, in addition to the August 2018 PM itself being an interpretive rule, USCIS' longstanding prior policy was also issued in the form of an interpretive rule. (See ECF No. 63 at 17-18.) This matters, according to the Government, because agencies are free under the APA to reverse even well-established interpretations without going through the notice-and-comment process. (See ECF No. 65 at 12-13.) On this point, the Government displays a correct understanding of the Supreme Court's decision in Perez, which confirmed that "[b]ecause an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures when it amends or repeals that interpretive rule." See 575 U.S. at 101. However, the holding in Perez becomes inapposite if either action—the prior policy or the August 2018 PM—is, in fact, legislative in nature.
Like the August 2018 PM, it appears that the sources of the agency's prior position— agency memoranda from 1997 and 2009—were not issued through the notice-and-comment process. (See ECF Nos. 63 at 19; 64 at 17 n.2.) The Government suggests that this consistent lack of adherence to notice-and-comment procedure demonstrates that the agency has always issued its unlawful-presence policy through interpretive rules.
In sum, the Court concludes that the August 2018 PM is a legislative rule which could not have been properly issued without notice and comment. Because USCIS failed to abide by APA procedure, the Court must grant summary judgment for Plaintiffs, hold the August 2018 PM unlawful, and set it aside. See 5 U.S.C. § 706(2).
In their third cause of action, Plaintiffs further assert that the August 2018 PM is "unlawful" because it was issued "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." (See ECF No. 14 ¶ 203 (quoting 5 U.S.C. § 706(2).) The Fourth Circuit recently acknowledged that "there is no bright-line rule as to whether a court that has decided to vacate an agency action on procedural grounds should nonetheless address a substantive claim." Children's Hosp., 896 F.3d at 624. Thus, it does not appear that courts are prohibited from addressing an alternative claim when doing so would foster judicial and administrative economy. See, e.g., Nat. Res. Def. Council v. EPA, 643 F.3d 311, 322 (D.C. Cir. 2011); Ala. Power Co. v. FERC, 160 F.3d 7, 11 (D.C. Cir. 1998). In this case, the Court runs the special risk of prolonging Plaintiffs' paralyzing uncertainty if it side-steps their statutory-conflict claim. As detailed below, the August 2018 PM's construction of "unlawful presence" runs afoul of the INA's plain text, and it would be a disservice to all parties if the Court did not articulate why.
In reviewing whether an agency has acted "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right," 5 U.S.C. § 706, a court is confronted with two questions: "First, applying the ordinary tools of statutory construction, the court must determine `whether Congress has directly spoken to the precise question at issue.'" City of Arlington v. FCC, 569 U.S. 290, 296 (2013) (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)). If the statute is clear, "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. However, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id.
Here, the Court need not guess as to what Congress meant when it employed the term "unlawful presence," as the concept is defined right in the text of the INA:
8 U.S.C. § 1182(a)(9)(B)(ii). The vital phrase in this definition is "after the expiration of the period of stay authorized." Id. (emphasis added). If a nonimmigrant is in the United States on a visa with a set end date, the "period of stay authorized" obviously "expires" on that date, for the ordinary meaning of "expire" is "to become null at a time fixed beforehand." See Expire, Black's Law Dictionary (11th ed. 2019). However, under F, M, and J visas, which are issued for "duration of status," there is no express expiration date. Rather, "duration of status" roughly equals the timeframe during which a nonimmigrant is pursuing an authorized course of study, or practical training following its completion, in the United States. See, e.g. 8 C.F.R. 214.2(f)(5)(i) (defining "duration of status" for F-1 visa holders). For example, Plaintiff Ye entered the United States on an F-1 visa for "duration of status," obtained a master's degree, worked in a related practical training program, and then attended classes at a community college. (ECF No. 16-2 ¶¶ 4-5, 10.)
Under its prior policy, USCIS resolved the issue of when a duration-of-status visa "expired" by beginning the accrual of unlawful presence only after an adjudicator made a formal finding of a status violation. (See ECF No. 57-1 at 66.) This construction tracked the plain language of the INA: once an adjudicator had declared a nonimmigrant to be in violation of his status, it could no longer be said that his "period of stay" was "authorized by the Attorney General." This is not to say that the agency's prior policy was the only permissible option for the agency; rather, it was one such option. However, as explained below, the position taken by USCIS in the August 2018 PM stretches the statutory text beyond its limits.
When Congress drafted the unlawful-presence provision, it had at its disposal several similar concepts already included in the INA.
It is a bedrock principle of statutory interpretation that "differences in language. . . convey differences in meaning." Henson v. Santander Consumer USA Inc., 137 S.Ct. 1718, 1723 (2017). Even when terms are closely related, the Court "must assume that Congress made a deliberate choice to use" the words it did. See Cunningham v. Scibana, 259 F.3d 303, 308 (4th Cir. 2001). Thus, the choice to carve out a separate definition for "unlawful presence"—one which hinges on the "expiration of the period of stay authorized by the Attorney General" rather than a violation of "lawful status"—deserves respect.
Ignoring that choice, USCIS casts the INA's particularized definition aside in favor of its preferred rule. Under the August 2018 PM, a nonimmigrant "start[s] accruing unlawful presence. . . the day after he or she engages in an unauthorized activity."
The Government raises several arguments in support of its contention that the August 2018 PM is, in fact, consistent with the INA's text. None are persuasive. The first is a broad-brush assertion that Congress has, in other sections of the INA, "statutorily affirmed" a general intent "that the Executive branch must carefully scrutinize F, J, and M nonimmigrants." (See ECF No. 65 at 21.) "But the agency cannot rewrite a statute just to serve a perceived statutory `spirit.'" Landstar Express Am., Inc. v. Fed. Mar. Comm'n, 569 F.3d 493, 500 (D.C. Cir. 2009). Likewise, recent technological improvements that enhance the agency's ability to monitor nonimmigrants cannot, as the Government argues, justify the August 2018 PM's deviation from the text of the INA. (See ECF Nos. 57-1 at 17; 65 at 21-22.) USCIS has to abide by the statute, no matter how accurately they can "scrutinize" visa holders.
Finally, the Government insists that it "does not go against either the statutory language or purpose for an adjudicator to assess `unlawful presence' by taking someone's unlawful status into account." (ECF No. 65 at 23.) However, there is an important difference—indeed, the difference at the heart of this case—between using a finding of "unlawful status" to start the unlawful-presence clock and using "unlawful status" to backdate accrual. The former method causes a duration-of-status visa holder's "period of stay authorized" to "expire"; the latter method does not.
For these reasons, the Court concludes that the August 2018 PM impermissibly conflicts with the text of the INA, pursuant to which a nonimmigrant is not "deemed to be unlawfully present" until "after the expiration of the period of stay authorized by the Attorney General." 8 U.S.C. § 1182(a)(9)(B)(ii). Accordingly, Plaintiffs are entitled to summary judgment on their claim that the August 2018 PM was issued "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2)(C).
Having concluded that USCIS violated the APA by promulgating the August 2018 PM, the Court must now determine the appropriate relief. Though "their powers are not boundless," it is well established that "district courts have broad discretion when fashioning injunctive relief." Ostergren v. Cuccinelli, 615 F.3d 263, 288 (4th Cir. 2010). An injunction "should be carefully addressed to the circumstances of the case" and be "no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs." See Va. Soc'y for Human Life, Inc. v. FEC, 263 F.3d 379, 393 (4th Cir. 2001) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)). However, "the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class." Califano, 442 U.S. at 702. Accordingly, "[c]ourts may issue nationwide injunctions consistent with these principles." Int'l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir. 2017), vacated on other grounds, 138 S.Ct. 353 (2017).
Plaintiffs seek a remedy that applies not just anywhere, but to anyone who would otherwise be subject to the policy implemented by the August 2018 PM. (See ECF Nos. 14 ¶ 19; 66 at 13-15.) Rightly so. When a reviewing court determines that an agency action violates the APA, as here, "the ordinary result is that the rule[ ] [is] vacated—not that [its] application to the individual petitioners is proscribed."
Nevertheless, the Government insists that the scope of any relief should be limited to the named Plaintiffs in this case, as a remedy affecting the rights of nonparties would be "grossly overbroad. . . and. . . interfere with other courts' ability to decide similar issues or cases." (ECF No. 65 at 27.) Jurists and scholars alike have cautioned that nationwide injunctions may impede the `percolation' of legal issues through the court system, depriving higher courts of the benefit of additional voices and fact patterns. See, e.g., Dep't of Homeland Sec. v. New York, No. 19A785, 2020 WL 413786, at *2 (S. Ct. Jan. 27, 2020) (Gorsuch, J., concurring in grant of stay); Trump v. Hawaii, 138 S.Ct. 2392, 2425 (2018) (Thomas, J., concurring); Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 418, 461 (2017). However, that concern is less pressing here, as Plaintiffs' challenge "presents purely. . . narrow issue[s] of law" which are "not fact-dependent and will not vary from one locality to another." See City of Chi. v. Sessions, 888 F.3d 272, 290-91 (7th Cir. 2018) ("There are some legal issues which benefit from consideration in multiple courts. . . . But a determination as to the plain meaning of a sentence in a statute is not such an issue.").
Moreover, under the circumstances of this case, the only practicable method of providing Plaintiffs with the relief to which they are entitled is to vacate the August 2018 PM and permanently enjoin its application. See North Carolina v. Covington, 137 S.Ct. 1624, 1625 (2017) (reminding us that, in fashioning injunctive relief, courts must balance "what is necessary, what is fair, and what is workable"). First, the various individual, institutional, and associational Plaintiffs in this case are "dispersed throughout the United States." Int'l Refugee Assistance Project, 857 F.3d at 605; (see ECF Nos. 16-1 through 16-7 (demonstrating that Plaintiffs and, where applicable, their members, reside throughout the country)). A geographically piecemeal injunction would therefore be insufficient to remedy their injuries. Second, an injunction which does not extend beyond the named Plaintiffs to reach similarly situated individuals could result in the uneven application of immigration policy. As the Fourth Circuit has explained, "nationwide injunctions are especially appropriate in the immigration context, as Congress has made clear that `the immigration laws of the United States should be enforced vigorously and uniformly.'" Int'l Refugee Assistance Project, 857 F.3d at 605 (quoting Texas v. United States, 809 F.3d 134, 187-88 (5th Cir. 2015)); see also Regents of the Univ. of Cal., 908 F.3d at 511 (concluding that "[a]llowing uneven application of nationwide immigration policy flies in the face of" the "need for uniformity"). Finally, the Court cannot ignore the likelihood that the August 2018 PM, if left in effect, could alter the unlawful-presence clocks for thousands, if not millions of nonimmigrant visa holders who are incapable of quickly bringing their individual cases and avoiding reentry bars. See generally Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065, 1095 (2018) (extolling the utility of nationwide injunctions when obtaining class certification is prohibitively difficult); (ECF No. 57-1 at 17 (identifying nearly 1.5 million F, J, and M nonimmigrant visa holders who were "either expected to change status or depart the United States" in 2016 alone).
In sum, because the August 2018 PM was promulgated in violation of the APA's notice-and-comment requirements, the Court will "hold it unlawful and set it aside"—not just for the named Plaintiffs, but for all those subject to its terms. Furthermore, because the unlawful-presence policy embodied in the August 2018 PM conflicts with clear statutory text, no amount of adherence to procedure can rectify the memorandum's defects unless and until Congress amends the INA. Accordingly, the Court will vacate the August 2018 PM and permanently enjoin its application nationwide.
For the reasons stated herein, the Court enters the following:
IT IS THEREFORE ORDERED that Plaintiffs' Motion for Partial Summary Judgment, (ECF No. 60), is GRANTED. The United States Citizenship and Immigration Services' August 9, 2018 memorandum entitled "Accrual of Unlawful Presence and F, J, and M Nonimmigrants" (PM-602-1060.1), as well as the corresponding memorandum with the same title issued on May 10, 2018 (PM-602-1060), are hereby declared invalid, set aside, and enjoined nationwide in all applications.
IT IS FURTHER ORDERED that the Government's Motion for Summary Judgment, (ECF No. 62), is DENIED.
A Judgment terminating this case will be filed contemporaneously with this Memorandum and Order.
