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(CN) — A federal judge on Wednesday ordered U.S. Citizenship and Immigration Services to resume processing I-765 employment authorizations for noncitizens after the federal government earlier this year had frozen all such applications for people who are from 39 “high risk” countries.
U.S. Magistrate Judge Virginia DiMarchi in San Jose, California partially granted a request for a preliminary injunction in the lawsuit brought by 137 foreign nationals from 15 countries, including Afghanistan, Iran, Nigeria and Venezuela.
They claim timely adjudication of their I-765 applications is essential to their ability to work, maintain their non-immigrant statuses and sustain their livelihood in the U.S.
The judge rejected the government’s arguments that the policy memoranda freezing the applications are shielded from judicial review under the Immigration and Nationality Act.
DiMarchi disagreed the policy memoranda don’t amount to final agency actions that can be challenged under the Administrative Procedure Act, which governs how federal agencies make and implement significant policy decisions.
“This very issue of jurisdiction has been well-vetted by other courts in similar litigation in this district and across the country,” DiMarchi said. “The court agrees with the reasoning of those courts that find that USCIS has a non-discretionary duty to adjudicate immigrant benefit applications within a reasonable period of time; that courts have jurisdiction to review USCIS’s failure to do so; and that the policy memoranda are sufficiently ‘final’ for purposes of APA review.”
The work authorizations in question are typically needed by foreign students at U.S. universities, asylum seekers, green card applicants and spouses of foreigners who have a visa to work in the U.S.
The ruling follows a decision last month by a Rhode Island federal judge who vacated four USCIS policies that had halted applications for asylum, work permits, green cards, and citizenship by nationals from the 39 countries in Africa, Asia, the Middle East and Latin America.
Chief U.S. District Judge John McConnell Jr., a Barack Obama appointee, in that decision scolded USCIS for violating the very immigration laws that Congress had charged it with administering.
“In enacting its latest immigration policies, USCIS: claims statutory and regulatory authority that it does not possess; makes decisions without the reasoned explanations that it must provide; acts without regard for the reliance interests of applicants that it must consider; and justifies its actions with pretextual concerns of ’national security’ that mask anti-immigrant sentiments that it is forbidden from letting influence its decision-making,” McConnell Jr. said in a 135-page decision.
While the ruling in Dorcas International Institute of Rhode Island vs. USCIS effectively meant that the applications for I-765 are no longer frozen, DiMarchi denied the government’s request to stay the litigation before while it appeals the Rhode Island decision.
“The judge was right to grant this injunction — our law firm’s fifth or sixth victory against the holds,” Curtis Lee Morrison, an attorney with Red Eagle Law who represents the plaintiffs in the San Jose case, said in an email. “The government’s position that they’ll likely prevail on the appeal of Dorcas’ vacatur clearly undermines any argument for not granting relief here or in other challenges to the holds.”
Representatives of the U.S. Justice Department didn’t immediately respond to a request for comment on the ruling.
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