SEATTLE (CN) – Immigration officials struggled Tuesday to convince the Ninth Circuit to overturn an injunction requiring 30-day adjudication of work permits for asylum seekers, conceding mediation with representatives for a class of affected immigrants might instead be appropriate.
The Northwest Immigrant Rights Project filed the nationwide class action in 2015, challenging the U.S. Citizenship and Immigration Services routine violation of its own deadline for approving or denying interim employment within 30 days.
Immigrants are in a precarious position, unable to work legally and at risk of losing their jobs, related benefits and in some states their driver’s licenses without the employment authorization documents, according to the complaint.
In 2018, U.S. District Judge James Robart granted class status, found the government in violation of governing regulations and the Administrative Procedure Act and ordered an injunction requiring a 30-day decision on asylum seekers’ work permits.
Immigration officials met the 30-day deadline in only 22% of cases, Robart found.
Today, 99% of work permit decisions are made within the required time, government and immigrants’ attorneys both told a three-judge appellate panel.
“Is it moot?” U.S. Circuit Judge Daniel Bress, a Donald Trump appointee asked, referring to the government’s request to lift the injunction.
Justice Department attorney Aaron Goldsmith argued the 30-day rule should not be mandatory because the quick turnaround placed a financial burden on the agency, as there was no extra funding for speedy processing and no fees are collected for the permit applications.
“Is that a reason for not complying with the rule?” U.S. Circuit Judge Milan Smith Jr., a George W. Bush appointee, asked. “If the regulation says 30 days, how could the district court enter an injunction that says 60 days?”
U.S. Circuit Judge N. Randy Smith said he was also having trouble with the government’s position.
“It’s not clear what you want us to do,” the George W. Bush appointee said.
Bress weighed in, saying if the court had ordered officials to comply in 24 hours that would be unreasonable and reviewable. But here, he said, the injunction simply required the agency to conform to the law.
Goldsmith did not dispute immigration rules require a decision on work permits for asylum seekers within 30 days, but he said the agency can’t be forced by the court to adhere to that deadline.
“We disagree that an injunction should be entered,” he said.
Goldsmith told the panel that new rules governing the work permits are being hammered out now that will possibly extend the permit deadline, but he didn’t have an estimate on when they will be implemented.
Christopher Strawn, representing the Northwest Immigrant Rights Project, asked the panel to keep the injunction in place. He said the dramatic increase in the deadline compliance rate was due to the court order.
“We still have individuals benefitting” from the injunction, he said.
Strawn disputed the government’s claim that a court could not force compliance with the deadline and said it was the court’s job to enforce the Administrative Procedure Act.
“When there is a regulation, an agency can be compelled to follow that regulation,” he said.
Immigration officials implemented a plan, including a checklist of requirements, to help speed up the work permit approval process as part of the suit, Strawn said. Immigration officials submit status reports every six months regarding the rate of compliance with the 30-day timeline, according to Robart’s final order.
The injunction could be modified if officials agree to continue following the plan, but the injunction should not be lifted, Strawn argued.
Judge Milan Smith asked Goldsmith and Strawn if mediation would be appropriate, rather than a ruling on the injunction.
“You risk an opinion that goes entirely against you,” he told Goldsmith, urging him to consult the government about mediation.
Goldsmith said he would consider it.
“Some type of mediation can be appropriate,” he said.
Strawn also said the Northwest Immigrant Rights Project might agree to mediation.
Judge Milan Smith recommended both sides meet soon and let the panel know their decision on mediation, otherwise a ruling on the injunction will come soon.
“We work fast,” he said.
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