Case: Northwest Immigrant Rights Project (NWIRP) v. Sessions

2:17-cv-00716 | U.S. District Court for the Western District of Washington

Filed Date: May 8, 2017

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Case Summary

On May 8, 2017, the Northwest Immigrant Rights Project (NWIRP) filed this lawsuit against the Department of Justice (DOJ) and the Executive Office for Immigration Review (EOIR) in the U.S. District Court for the Western District of Washington. NWIRP challenged the “cease and desist” letter it had received from DOJ five weeks prior. The letter instructed NWIRP to stop assisting unrepresented immigrants in deportation proceedings. Specifically, EOIR chose to interpret its rule governing attorney misconduct to require that NWIRP either commit to full legal representation of every immigrant in removal proceedings it presently assists, or refrain from providing them any form of legal assistance (including brief consultations). NWIRP stated that this would deprive thousands of immigrants of the chance to consult with a lawyer. In addition to claiming that DOJ’s order violated the First and Tenth Amendments and seeking declarative and injunctive relief, NWIRP also filed a motion for a temporary restraining order (TRO). NWIRP alleged that the DOJ order infringed on the free speech of NWIRP lawyers by prohibiting their ability to screen, consult with, advise, or otherwise assist immigrants in need of legal services without taking each one on as a client. The case was assigned to Judge Richard A. Jones.

After hearing oral arguments, Judge Jones granted NWIRP’s motion for a TRO on May 17, 2017, and temporarily restrained DOJ from enforcing—or threatening to enforce—sanctions against NWIRP lawyers who consult with or offer limited services to pro se immigrants in deportation proceedings. Judge Jones further granted the TRO on a nationwide basis, precluding DOJ from issuing cease-and-desist letters to other non-profit organizations providing legal services to immigrants. The TRO was set to remain in effect until the Court ruled on NWIRP’s planned motion for a preliminary injunction.

NWIRP moved for a preliminary injunction on June 8, arguing that the TRO should be extended until there was a full trial on the merits. A hearing on the motion was held on July 24, and Judge Jones granted the preliminary injunction on July 27. The order stated that NWIRP was likely to succeed on the merits of its First Amendment claim because the government's regulation failed to meet strict and intermediate scrutiny. The Court wrote that "the Government may not regulate in a way that chills the ability of non-profit organizations to obtain meaningful access to the courts, especially when that access is sought to advance civil-rights objectives. In this context, the Government may regulate 'only with narrow specificity'... The Government has not done so in this instance." Further, the Court stated that "the Government has failed to advance any substantial regulatory interest, in the form of substantive evils flowing from NWIRP’s activities, which can justify the broad prohibitions which it has imposed."

DOJ filed a motion to dismiss on Aug. 4, arguing that the six-year statute of limitations for civil actions against the United States barred NWIRP's claims. DOJ further argued that NWIRP's First Amendment claim failed because "the immigration courts...are a nonpublic forum where the government is permitted to regulate speech in a reasonable and viewpoint-neutral manner." Finally, DOJ argued that the NWIRP's Tenth Amendment claim failed because EOIR rules prevail if they come in conflict with state rules "so that the agency can consistently regulate practice across the nation." DOJ also filed a motion to stay discovery pending the Court's review of its motion to dismiss, but the Court denied a stay on Sept. 18.

On Dec. 19, the Court granted and denied in part DOJ's motion to dismiss. The Court denied DOJ's statute of limitations claim, holding that the statute of limitations does not apply to a facial challenge of a law under the First Amendment nor was NWIRP outside of the statute of limitations on its Tenth Amendment claim. The court denied DOJ's request to dismiss NWIRP's First Amendment claim, finding that NWIRP successfully alleged its as-applied and facial challenges. The court dismissed NWIRP's Tenth Amendment claim. 2017 WL 6492703.

On Jan. 16, 2018, Judge Jones scheduled a bench trial starting Nov. 13, 2018. However, on Aug. 14, 2018, the Court granted the parties' stipulated motion to appoint a magistrate judge for mediation and to stay proceedings. The Court continued to stay proceedings as the parties negotiated, and finally, on March 28, 2019, the parties reached a tentative settlement agreement. The parties filed their settlement agreement with the Court on April 17.

As part of the settlement, the defendants will undertake a rulemaking process to amend the regulation at issue in this case. The parties also agreed to jointly seek a stay from the Court, which will then retain jurisdiction of this case during the rulemaking process. NWIRP agreed to dismiss their lawsuit if the defendants issue a final rule that is consistent with their requests to permit attorneys to consult with or offer limited services to pro se immigrants. The defendants also agreed to pay $380,000 in attorneys' fees and costs to the plaintiffs.

On April 18, the Court extended the stay in the case pending rulemaking until Jan. 17, 2020, at which time the parties will provide a status report to determine whether an additional stay is necessary.

On January 16, 2020, the Court extended the stay in the case until March 2, 2020 to facilitate the conclusion of the DOJ rulemaking process. The Court continued to stay the case throughout 2020 pending rulemaking. The next status report is due February 27, 2021.

	Document
2:17-cv-00716	Docket [PACER] Northwest Immigrant Rights Project v. Sessions, III	April 18, 2019	April 18, 2019 Docket
1 2:17-cv-00716	Complaint for Declaratory and Injunctive Relief NWIRP v. Sessions	May 8, 2017	May 8, 2017 Complaint
2 2:17-cv-00716	Motion for Temporary Restraining Order NWIRP v. Sessions	May 8, 2017	May 8, 2017 Pleading / Motion / Brief
2:17-cv-00716	Press Release NWIRP v. Sessions No Court	May 8, 2017	May 8, 2017 Press Release
14 2:17-cv-00716	Defendants' Opposition to Plaintiffs' Motion for Temporary Restraining Order Northwest Immigrant Rights Project v. Jefferson B. Sessions, III	May 11, 2017	May 11, 2017 Pleading / Motion / Brief
21 2:17-cv-00716	Plaintiffs' Reply in Further Support of Motion for Temporary Restraining Order Northwest Immigrant Rights Project v. Jefferson B. Sessions, III	May 12, 2017	May 12, 2017 Pleading / Motion / Brief
33 2:17-cv-00716	Order [granting TRO] Northwest Immigrant Rights Project v. Jefferson B. Sessions, III	May 17, 2017	May 17, 2017 Order/Opinion 2017 U.S.Dist.LEXIS 75433
38 2:17-cv-00716	Declaration of Jorge L. Baron in Support of NWIRP's Motion for Preliminary Injunction Northwest Immigrants Rights Project (NWIRP) v. Sessions	June 8, 2017	June 8, 2017 Pleading / Motion / Brief
37 2:17-cv-00716	Motion for Preliminary Injunction Northwest Immigrants Rights Project (NWIRP) v. Sessions	June 8, 2017	June 8, 2017 Pleading / Motion / Brief
39 2:17-cv-00716	Declaration of Jamie Drozd Allen In Support of Plaintiffs' Motion for Preliminary Injunction Northwest Immigrants Rights Project (NWIRP) v. Sessions	June 8, 2017	June 8, 2017 Pleading / Motion / Brief

Title		External URL Date / External URL
Executive Order 13768: Enhancing Public Safety in the Interior of the United States President Donald Trump	Jan. 25, 2017	Jan. 25, 2017 https://www.gpo.gov/...
Re: Enforcement of the Immigration Laws to Serve the National Interest (Final, 2/20/2017) DHS Secretary John Kelly	Feb. 20, 2017	Feb. 20, 2017 https://www.dhs.gov/...
Executive Order 13767: Border Security and Immigration Enforcement Improvements President Donald Trump	Jan. 27, 2017	Jan. 27, 2017 https://www.govinfo.gov/...

ECF Number	Description	Date	Link Date / Link
	Add and Terminate Judges	May 8, 2017	May 8, 2017 PACER
1	COMPLAINT for Declaratory and Injunctive Relief against All Defendants (Receipt # 0981-4869102), filed by Northwest Immigrant Rights Project. (Attachments: # 1 Exhibit 1, # 2 Civil Cover Sheet, # 3 Summons Sessions, # 4 Summons DOJ, # 5 Summons EOIR, # 6 Summons EOIR Barnes, # 7 Summons EOIR Osuna)(Corning, James) Modified on 5/9/2017 to seal exhibit per direction of filer; redacted version to be filed separately (RS). (Entered: 05/08/2017) 2 Civil Cover Sheet View on PACER 3 Summons Sessions View on PACER 4 Summons DOJ View on PACER 5 Summons EOIR View on PACER 6 Summons EOIR Barnes View on PACER 7 Summons EOIR Osuna View on PACER	May 8, 2017	May 8, 2017 Clearinghouse
2	MOTION for Temporary Restraining Order, filed by Plaintiff Northwest Immigrant Rights Project. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 5/8/2017, (Corning, James) (Entered: 05/08/2017) 1 Proposed Order View on PACER	May 8, 2017	May 8, 2017 Clearinghouse
3	DECLARATION of Timothy Warden-Hertz filed by Plaintiff Northwest Immigrant Rights Project re 2 MOTION for Temporary Restraining Order (Corning, James) (Entered: 05/08/2017)	May 8, 2017	May 8, 2017 PACER
4	DECLARATION of Yuk Man Maggie Cheng filed by Plaintiff Northwest Immigrant Rights Project re 2 MOTION for Temporary Restraining Order (Corning, James) (Entered: 05/08/2017)	May 8, 2017	May 8, 2017 PACER
	Set/Reset Hearings	May 9, 2017	May 9, 2017 PACER
5	Summons electronically issued as to defendant(s) Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(ST) (Entered: 05/09/2017) 1 Summons View on PACER 2 Summons View on PACER 3 Summons View on PACER 4 Summons View on PACER	May 9, 2017	May 9, 2017 PACER
6	STANDING ORDER for Civil Cases Assigned to Judge Richard A. Jones. (VE) (Entered: 05/09/2017)	May 9, 2017	May 9, 2017 PACER
7	NOTICE of Appearance by attorney Gladys M. Steffens Guzman on behalf of Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice. (Steffens Guzman, Gladys) (Entered: 05/09/2017)	May 9, 2017	May 9, 2017 PACER
8	PRAECIPE to attach document Redacted Exhibit re 1 Complaint, by Plaintiff Northwest Immigrant Rights Project (Attachments: # 1 Exhibit 1)(Corning, James) (Entered: 05/09/2017) 1 Exhibit 1 View on PACER	May 9, 2017	May 9, 2017 PACER
9	NOTICE Pursuant to Local Rulde 65(b) re 2 MOTION for Temporary Restraining Order ; filed by Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice. (Steffens Guzman, Gladys) (Entered: 05/09/2017)	May 9, 2017	May 9, 2017 PACER
10	AFFIDAVIT of Mailing of Summons and Complaint to all named Defendants, U.S. Attorney General, and U.S. Attorney's Office Civil Process Unit Western District of Washington on 5/9/2017, filed by Plaintiff Northwest Immigrant Rights Project. (Corning, James) (Entered: 05/10/2017)	May 10, 2017	May 10, 2017 PACER
11	MINUTE ENTRY for proceedings held before Judge Richard A. Jones - Dep Clerk: Victoria Ericksen; Pla Counsel: Jaime Allen, James Corning, Matt Adams; Def Counsel: Victor Mercado Santana, Gladys Steffens Guzman; CR: Debbie Zurn, Andrea Ramirez; TELEPHONE CONFERENCE held on 5/10/2017. The Court hears from counsel and recesses the telephone conference to 2:45 p.m. After reconvening at 2:45 p.m., based upon the parties' agreement, the Court sets the following briefing schedule on Plaintiff's 2 MOTION for Temporary Restraining Order: Defendants' Opposition is due 5/11/2017 by 4:30 p.m., Plaintiff's Reply is due 5/12/2017 by 4:30 p.m. ORAL ARGUMENT set for 5/17/2017 at 9:00 a.m., before the Hon. Richard A. Jones. (VE) (Entered: 05/10/2017)	May 10, 2017	May 10, 2017 PACER
12	NOTICE of Appearance by attorney Victor M. Mercado-Santana on behalf of Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice. (Mercado-Santana, Victor) (Entered: 05/11/2017)	May 11, 2017	May 11, 2017 PACER
13	NOTICE of Appearance by attorney Carlton Frederick Sheffield on behalf of Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice. (Sheffield, Carlton) (Entered: 05/11/2017)	May 11, 2017	May 11, 2017 PACER
14	RESPONSE, by Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice, to 2 MOTION for Temporary Restraining Order . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Certificate of Service)(Mercado-Santana, Victor) (Entered: 05/11/2017) 1 Exhibit A View on PACER 2 Exhibit B View on PACER 3 Exhibit C View on PACER 4 Exhibit D View on PACER 5 Exhibit E View on PACER 6 Certificate of Service View on PACER	May 11, 2017	May 11, 2017 Clearinghouse
	Add and Terminate Parties	May 12, 2017	May 12, 2017 PACER
15	MOTION for Leave to File Brief as Amicus Curiae, filed by Amicus Immigrant Legal Rights Organizations. (Attachments: # 1 Exhibit A - Proposed Amicus Brief, # 2 Proposed Order) Noting Date 5/12/2017, (Anderson, Heidi) (Entered: 05/12/2017) 1 Exhibit A - Proposed Amicus Brief View on PACER 2 Proposed Order View on PACER	May 12, 2017	May 12, 2017 PACER
16	APPLICATION OF ATTORNEY John Connolly FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Immigrant Legal Rights Organizations (Fee Paid) Receipt No. 0981-4875104 (Anderson, Heidi) (Entered: 05/12/2017)	May 12, 2017	May 12, 2017 PACER
17	APPLICATION OF ATTORNEY Rachel F. Cotton FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Immigrant Legal Rights Organizations (Fee Paid) Receipt No. 0981-4875123 (Anderson, Heidi) (Entered: 05/12/2017)	May 12, 2017	May 12, 2017 PACER
18	MOTION for Leave to File Amicus Brief in Support of Plaintiffs' Motion for Temporary Restraining Order, filed by Amicus Attorney General of Washington. (Attachments: # 1 Amicus Brief, # 2 Proposed Order) Noting Date 5/15/2017, (Marquez, Patricio) (Entered: 05/12/2017) 1 Amicus Brief View on PACER 2 Proposed Order View on PACER	May 12, 2017	May 12, 2017 PACER
19	NOTICE of Appearance by attorney Michael J Ewart on behalf of Amicus American Civil Liberties Union of Washington (ACLU). (Ewart, Michael) (Entered: 05/12/2017)	May 12, 2017	May 12, 2017 PACER
20	MOTION for Leave to File Brief of Amicus Curiae, filed by Amicus American Civil Liberties Union of Washington (ACLU). (Attachments: # 1 Exhibit A, # 2 Proposed Order) Noting Date 5/12/2017, (Ewart, Michael) (Entered: 05/12/2017) 1 Exhibit A View on PACER 2 Proposed Order View on PACER	May 12, 2017	May 12, 2017 PACER
21	REPLY, filed by Plaintiff Northwest Immigrant Rights Project, TO RESPONSE to 2 MOTION for Temporary Restraining Order (Allen, Jaime) (Entered: 05/12/2017)	May 12, 2017	May 12, 2017 Clearinghouse
22	ORDER granting Amicus Attorney General of Washington's 18 Motion for Expedited Leave to File Amicus Brief, by Judge Richard A Jones.(SWT) (Entered: 05/12/2017)	May 12, 2017	May 12, 2017 RECAP
23	ORDER denying Amicus Immigrant Legal Rights Organizations' 15 Motion for Leave to File Brief as Amicus Curiae, by Judge Richard A Jones.(SWT) (cc counsel Anderson and Walder via USPS) (Entered: 05/12/2017)	May 12, 2017	May 12, 2017 RECAP
24	ORDER granting American Civil Liberties Union of Washington's 20 Motion for Leave to File Brief of Amicus Curiae, by Judge Richard A Jones. (SWT) (Entered: 05/12/2017)	May 12, 2017	May 12, 2017 RECAP
25	MINUTE ORDER entered upon the authority of Judge Richard A. Jones. The Court directs counsel to deliver to chambers no later than noon on Monday, 5/15/2017, a binder containing all cases listed in the Table of Authorities in Plaintiffs' 2 Motion for Temporary Restraining Order and Defendants' 14 Response to Plaintiffs' Motion for Temporary Restraining Order. (VE) (Entered: 05/12/2017)	May 12, 2017	May 12, 2017 PACER
26	Application For Leave to Appear PHV 16 withdrawn, Court DENIED Amicus 23 . Directed Finance Division to refund PHV fee to Local Counsel. ORDER re 16 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney John J Connolly for Amicus Immigrant Legal Rights Organizations, by Clerk William M McCool. No document associated with this docket entry, text only.NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) Modified on 5/15/2017 (DS). (Entered: 05/15/2017)	May 15, 2017	May 15, 2017 PACER
27	Application For Leave to Appear PHV 17 withdrawn, Court DENIED Amicus 23 . Directed Finance Division to refund PHV fee to Local Counsel. ORDER re 17 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Rachel F. Cotton for Amicus Immigrant Legal Rights Organizations, by Clerk William M McCool. No document associated with this docket entry, text only.NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) Modified on 5/15/2017 (DS). (Entered: 05/15/2017)	May 15, 2017	May 15, 2017 PACER
	Add and Terminate Attorneys	May 16, 2017	May 16, 2017 PACER
28	Unopposed MOTION for Leave to File Amicus Brief in Support of Motion for Temporary Restraining Order, filed by Amicus Legal Voice f/k/a Northwest Women's Law Center. (Attachments: # 1 Exhibit) Noting Date 5/16/2017, (Clinton, Laura) (Entered: 05/16/2017) 1 Exhibit View on PACER	May 16, 2017	May 16, 2017 PACER
29	NOTICE of Appearance by attorney Laura K Clinton on behalf of Amicus Legal Voice f/k/a Northwest Women's Law Center. (Clinton, Laura) (Entered: 05/16/2017)	May 16, 2017	May 16, 2017 PACER
30	NOTICE of Appearance by attorney Gisela A Westwater on behalf of Amicus Attorney General of Washington, Defendants Jennifer Barnes, Executive Office for Immigration Review, Juan Osuna, Jefferson B Sessions, III, United States Department of Justice. (Attachments: # 1 Certificate of Service)(Westwater, Gisela) Modified text on 5/19/2017 (RS). (Entered: 05/16/2017) 1 Certificate of Service View on PACER	May 16, 2017	May 16, 2017 PACER
31	MINUTE ENTRY for proceedings held before Judge Richard A. Jones - Dep Clerk: Victoria Ericksen; Pla Counsel: James Corning, Jaime Allen, Matt Adams; Def Counsel: Victor Mercado-Santana, Gladys Steffens Guzman, Gisela Westwater; CR: Nickie Drury; TEMPORARY RESTRAINING ORDER HEARING held on 5/17/2017. The Court hears argument of counsel. For the reasons stated on the record, the Court GRANTS Plaintiffs' 2 MOTION for Temporary Restraining Order. Written order memorializing the Court's oral ruling to be entered. (VE) (Entered: 05/17/2017)	May 17, 2017	May 17, 2017 PACER
32	TRANSCRIPT REQUEST by Plaintiff Northwest Immigrant Rights Project for proceedings held on 05/17/2017, Requesting Attorney: James Harlan Corning. (Corning, James) (Entered: 05/17/2017)	May 17, 2017	May 17, 2017 PACER
33	ORDER granting Plaintiffs' 2 Motion for a Temporary Restraining Order, by Judge Richard A Jones. (PM) (Entered: 05/17/2017)	May 17, 2017	May 17, 2017 Clearinghouse
34	ORDER denying non party organizations' 28 Motion for Leave to File Amici Curiae Brief by Judge Richard A Jones.(RS) (Entered: 05/19/2017)	May 19, 2017	May 19, 2017 RECAP
35	STIPULATION AND PROPOSED ORDER regarding briefing schedule for Plaintiffs' Motion for Preliminary Injunction by parties re 33 Order on Motion for TRO (Attachments: # 1 Proposed Order)(Allen, Jaime) (Entered: 05/19/2017) 1 Proposed Order View on PACER	May 19, 2017	May 19, 2017 PACER
	Set/Reset Deadlines	May 22, 2017	May 22, 2017 PACER

Case: Northwest Immigrant Rights Project (NWIRP) v. Sessions

2:17-cv-00716 | U.S. District Court for the Western District of Washington

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