UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ZHERONG KANG, et al., ) ) Plaintiffs, ) ) v. ) Civil Case No. 21-2944 (RJL) ) DEPARTMENT OF HOMELAND ) SECURITY, et al., ) ) Defendants. )

MEMORANDUM OPINION (September 23, 2022) [Dkts. #8, 15]

On behalf of a purported class, ninety-five individuals (“plaintiffs”) alleging

processing delays in their applications for employment authorization documents (“EADs”)

filed this suit for declaratory and injunctive relief under the Administrative Procedure Act

(“APA”),

et seq., against the Department of Homeland Security (“DHS”),

its Secretary, U.S. Citizenship and Immigration Services (“USCIS”), and its Director

(collectively, “defendants”). See generally Amended Complaint (“Am. Compl.”) [Dkt.

#4]. Since plaintiffs filed their Complaint and prior to this Court’s consideration of

plaintiffs’ motion for class certification, defendants have adjudicated the employment

application of each named plaintiff. See Defendants’ Notices of Administrative Action

[Dkts. #17, 18].

Because plaintiffs’ claims are now moot and no exception to mootness applies, their

suit must be DISMISSED for lack of subject-matter jurisdiction.

1 BACKGROUND

A. Legal Background

Under the Immigration and Nationality Act (“INA”),

et seq., and

its accompanying regulations, certain aliens admitted to the United States may be

eligible for employment authorization. Although some aliens are authorized to be

employed incident to their status, individuals in a variety of classes specified under 8

C.F.R. § 274a.12(c) must apply for work authorization by filing an application with

USCIS. See 8 C.F.R. § 274a.13(a). Among those who must apply for work authorization

are “alien[s] who ha[ve] filed an application for adjustment of status to lawful permanent

resident.” Id. § 274a.12(c)(9); see also

(a).

Although DHS previously directed USCIS to adjudicate employment authorization

applications within 90 days of filing, DHS eliminated that regulatory requirement in 2016.

See Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements

Affecting High-Skilled Nonimmigrant Workers,

, 82455 (Nov. 18,

2016). If USCIS approves an application, the EAD is “valid for a specific period.” 8

C.F.R. § 274a.13(b). Previously, “the validity period of an expiring [EAD] … [and] the

attendant employment authorization[] [was] automatically extended for an additional

period not to exceed 180 days from the date of … expiration if a request for renewal” is

timely filed. Id. § 274a.13(d). However, in May 2022, DHS increased the extension period

to a maximum of up to 540 days from the expiration of the EAD. See Temporary Increase

of the Automatic Extension Period of Employment Authorization and Documentation for

Certain Renewal Applicants,

(May 4, 2022).

2 B. Factual and Procedural Background

Plaintiffs are ninety-five individuals who each fall into the class of nonimmigrants

who must apply for employment authorization because they “ha[ve] filed an application

for adjustment of status to lawful permanent resident.” 8 C.F.R. § 274a.12(c)(9); Am.

Compl. ¶ 15. They filed their applications between June 2020 (apart from one filed in July

2019) and October 2021. See Am. Compl. ¶ 15. Plaintiffs allege that their applications

have been “unreasonably delayed for over six months, and some for over one year.” Am.

Compl. ¶ 15. As of February 16, 2022, defendants have adjudicated all named plaintiffs’

applications. See Defendants’ Notices of Administrative Action [Dkts. #17, 18].

In November 2021, named plaintiffs filed this suit for declaratory and injunctive

relief “on behalf of themselves” and a purported class of “similarly [situated] persons

affected by Defendants’ actions with respect to EAD adjudications since the abandonment

of the 90-day processing deadline, including the inexcusable and unreasonable delays in

processing of applications.” Am. Compl. ¶ 60. Their proposed class identifies both

individuals submitting an initial application for an employment authorization document

and individuals requesting an extension for employment authorization. Id. The suit alleges

defendants (1) “arbitrarily, capriciously, and irrationally departed from their commitment

to 90-day processing times for” employment authorization applications; (2) failed to

adjudicate plaintiffs’ applications within a reasonable time and thus unlawfully withheld

or unreasonably delayed agency action; and (3) “arbitrarily, capriciously, and unlawfully

implemented the adjudicatory process for EAD applications.” Id. at ¶¶ 71–107; see also

(1)–(2).

3 Defendants moved to dismiss plaintiffs’ Amended Complaint under Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6), or, alternatively, to transfer venue under Rule

12(b)(3). See Defendants’ Memorandum in Support of Motion to Dismiss (“Defs.’ MTD”)

[Dkt. #8-1]. After the parties completed briefing on defendants’ motion to dismiss,

defendants filed a motion to stay briefing on class certification under Rule 23(c)(1) pending

this Court’s resolution of their motion to dismiss, which plaintiffs opposed. See

Defendants’ Motion to Stay Briefing on Class Certification Under Federal Rule of Civil

Procedure 23(c)(1) and Local Rule of Civil Procedure 23.1(b) [Dkt. #13]; Plaintiffs’

Opposition to Defendants’ Motion to Stay Briefing on Class Certification (“Stay Opp.”)

[Dkt. #19]. Moreover, plaintiffs filed their motion for class certification. See Plaintiffs’

Motion to Certify Class [Dkt. #15]. I stayed briefing on class certification pending

resolution of the motion to dismiss. See Minute Order of March 2, 2022. 1 Since the filing

of the Amended Complaint, defendants have notified the Court that that they have

adjudicated the employment application of each named plaintiff. See Defendants’ Notices

of Administrative Action [Dkts. #17, 18]. Because this development followed the parties’

motion-to-dismiss briefing, I ordered supplemental briefing from the parties on whether

the action is moot and, if so, whether any exception to mootness applies. See Minute Order

of May 19, 2022. The parties submitted their supplemental briefing on June 28, 2022. See

Defendants’ Supplemental Brief Addressing Mootness (“Defs.’ Supp. Br.”) [Dkt. #23];

Plaintiffs’ Supplemental Brief Addressing Mootness (“Pls.’ Supp. Br.”) [Dkt. #24].

1 Because Defendants’ Motion to Dismiss [Dkt. #8] is GRANTED and plaintiffs’ claims are DISMISSED for lack of subject-matter jurisdiction for all the reasons set forth herein, the Motion to Certify Class [Dkt. #15] is hereby DENIED as moot. 4 LEGAL STANDARD

“When considering a motion to dismiss under Rule 12(b)(1), the court must accept

as true all uncontroverted material factual allegations contained in the complaint and

‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be

derived from the facts alleged and upon such facts determine jurisdictional questions.’”

Albra v. Bd. of Trs.,

(D.D.C. 2018) (quoting Am. Nat’l Ins. Co.

v. FDIC,

(D.C. Cir. 2011)). “[T]he court may consider the complaint

supplemented by undisputed facts evidenced in the record, or the complaint supplemented

by undisputed facts plus the court's resolution of disputed facts.” Coal. for Underground

Expansion v. Mineta,

(D.C. Cir. 2003) (citations omitted).

ANALYSIS

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) “presents a

threshold challenge to the court’s jurisdiction.” Haase v. Sessions,

(D.C.

Cir. 1987). Notwithstanding defendants’ motion to dismiss for lack of subject-matter

jurisdiction, this Court is “obligated to consider sua sponte issues” that “go[] to subject-

matter jurisdiction,” which “can never be waived or forfeited.” Gonzalez v. Thaler,

(2012). Defendants argue that plaintiffs’ claims should be dismissed because

they are moot and no exception to mootness applies. See Defs.’ Supp. Br. at 2–3; see also

Defs.’ MTD at 10. 2 Because USCIS has adjudicated plaintiffs’ applications, the dispute

2 In their Motion to Dismiss, defendants argued that only certain plaintiffs’ claims were moot because not all the named plaintiffs’ applications had been adjudicated at that time. Defs.’ MTD at 10. Given defendants’ notices to the Court that all named plaintiffs’ applications have been adjudicated and this Court’s obligation to consider subject-matter jurisdiction issues sua sponte, I must determine whether each plaintiff’s claim is moot—not only those explicitly raised by defendants in their motion to dismiss. 5 seeking to compel USCIS to adjudicate them is now moot. Id. at 3. Although plaintiffs

previously indicated that they “agree[d] that those with EAD applications that have now

been adjudicated can be dismissed,” and that they “intend[ed] to file a notice of voluntary

dismissal for selected plaintiffs,” no such notice has been filed as to any of the named

plaintiffs. Plaintiffs’ Opposition to Defendants’ Motion to Dismiss (“Pls.’ Opp.”) [Dkt.

#9] at 9 n.7. Instead, plaintiffs disagree that the claims are moot, arguing that their “claims

for declaratory and injunctive relief remain live despite the intervening agency action.”

Pls.’ Supp. Br. at 1. And, they continue, several exceptions to mootness apply. Id. at 4.

Unfortunately for plaintiffs, I agree with defendants that the claims are moot and must be

dismissed. How so?

A. Mootness

“Article III of the Constitution limits federal courts’ jurisdiction to certain ‘Cases’

and ‘Controversies.’” Clapper v. Amnesty Int’l U.S.A.,

(2013). In other

words, “Article III denies federal courts the power to decide questions that cannot affect

the rights of litigants in the case before them, and confines them to resolving real and

substantive controversies admitting of specific relief through a decree of a conclusive

character.” Lewis v. Cont’l Bank Corp.,

(1990) (quotation marks and

citations omitted). Mootness is one element of Article III’s limitation. See id.; Reid v.

Hurwitz,

(D.C. Cir. 2019). “The party seeking jurisdictional dismissal

must establish mootness, while the opposing party has the burden to prove that a mootness

exception applies.” Reid,

. A claim “is moot when the issues presented are

no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” City of

6 Erie v. Pap’s A.M.,

(2000) (quotation marks and citation omitted).

The adjudication of a named plaintiff’s employment authorization application is an

“intervening event[] mak[ing] it impossible to grant the prevailing party effective relief.”

Lemon v. Geren,

(D.C. Cir. 2008) (citation omitted). Because

defendants have adjudicated the application of each named plaintiff, an order declaring that

defendants have violated the APA and that “[d]efendants have unreasonably delayed or

unlawfully withheld the adjudication” of the applications and compelling “[d]efendants to

immediately adjudicate [p]laintiffs’ [employment authorization] applications without

further delay” and to “return to and maintain 90-day processing”—plaintiffs’ requested

relief—would have no effect on plaintiffs. Am. Compl. at 29; see Transwestern Pipeline

Co. v. FERC,

, 575 (D.C. Cir. 1990). Accordingly, plaintiffs’ claims are moot.

See generally Penn v. Blinken,

, at *3 (D.D.C. Mar. 29, 2022).

Plaintiffs argue that not all their claims are moot because the adjudication of their

applications “did not provide all the relief [p]laintiffs seek in the Complaint,” including

declaratory and injunctive relief. Pls.’ Supp. Br. at 1. “[A] plaintiff’s challenge will not

be moot where it seeks declaratory relief as to an ongoing policy.” Del Monte Fresh

Produce Co. v. United States,

(D.C. Cir. 2009). But a plaintiff who

“challeng[es] an ongoing policy must demonstrate ‘standing to bring such a forward-

looking challenge and [that] the request for declaratory relief is ripe.’”

(quoting City of

Houston v. Dep’t of Housing & Urban Dev.,

(D.C. Cir. 1994)). “The

‘irreducible constitutional minimum of standing contains three elements’: injury in fact,

causation, and redressability.” Arpaio v. Obama,

(D.C. Cir. 2015) (quoting

7 Lujan v. Defenders of Wildlife,

, 560–61 (1992)). To establish an injury in

fact, a plaintiff must demonstrate the “invasion of a legally protected interest which is

(a) concrete and particularized … and (b) ‘actual or imminent, not “conjectural” or

“hypothetical.”’” Lujan,

(citation omitted). Where a plaintiff “seek[s]

declaratory and injunctive relief, past injuries alone are insufficient to establish standing.

Rather, [the plaintiff] must show he is suffering an ongoing injury or faces an immediate

threat of injury.” Dearth v. Holder,

(D.C. Cir. 2011).

Plaintiffs here do not have standing to bring a forward-looking challenge because

they cannot demonstrate an imminent injury. All the named plaintiffs have received a

decision on their application, and their employment authorizations are subject to automatic

renewal should the authorizations expire before any renewal applications are processed.

And, because plaintiffs only require employment authorization while their underlying

adjustment-of-status applications are pending, most plaintiffs are unlikely to have to file

for a renewal—or, if they do, to be left without authorization given the auto-extension

period. Whether plaintiffs will be subject to the policy again is thus speculative; that

plaintiffs “might be” subject to the challenged policy in the future is insufficient to establish

standing. See Haase,

; see also Alvarez v. Smith,

(2009).

Plaintiffs’ claims are moot.

B. Exceptions to Mootness

In response, plaintiffs invoke several exceptions to mootness. See Stay Opp. at 2;

Pls.’ Supp. Br. at 4–8. Unfortunately for plaintiffs, none of the exceptions applies.

8 1. Capable of Repetition, Yet Evading Review. First, plaintiffs invoke the

exception to mootness for claims that are capable of repetition, yet evading review. Stay

Opp. at 2. This exception “applies only in exceptional situations,” City of Los Angeles v.

Lyons,

(1983), where the plaintiff demonstrates that “(1) the challenged

action is in its duration too short to be fully litigated prior to its cessation or expiration, and

(2) there [is] a reasonable expectation that the same complaining party would be subjected

to the same action again,” Clarke v. United States,

(D.C. Cir. 1990) (en

banc). Even if plaintiffs satisfied the first prong, they cannot succeed on the second.

Claims are not “capable of repetition” if they are “highly fact-specific.” PETA v. Gittens,

, 424 (D.C. Cir. 2005). Here, as noted above, plaintiffs are unlikely to have

to file for renewal of employment authorization and, if they do, the particular harm suffered

is unlikely to recur given the highly fact-specific context in which they experienced delay

previously—a context affected by the COVID-19 pandemic and a hiring freeze. See Defs.’

Supp. Br. at 5; Tony N. v. USCIS,

, at *1 (N.D. Cal. Mar. 2, 2022).

2. Inherently Transitory. Second, plaintiffs invoke an exception to mootness that

exists in the class action context. “For every claim, at least one named plaintiff must keep

her individual dispute live until certification, or else the class action based on that claim

generally becomes moot.” J.D. v. Azar,

(D.C. Cir. 2019) (citing

United States v. Sanchez-Gomez,

(2018)). However, “[w]here a

named plaintiff’s claim is ‘inherently transitory,’ and becomes moot prior to certification,

a motion for certification may ‘relate back’ to the filing of the complaint.” Genesis

Healthcare Corp. v. Symczyk,

, 71 n.2 (2013) (citing Cty. of Riverside v.

9 McLaughlin,

, 51–52 (1991)). “The Supreme Court crafted the exception in

injunctive class actions challenging criminal and immigration detention procedures.” J.D.,

(citing Gerstein v. Pugh,

, 110 n.11 (1975)). In our Circuit,

“the ‘inherently transitory’ exception to mootness requires [courts] to determine

(i) whether the individual claim might end before the district court has a reasonable amount

of time to decide class certification, and (ii) whether some class members will retain a live

claim at every stage of litigation. An affirmative answer to both questions ordinarily will

suffice to trigger relation back.” J.D.,

. “[T]his doctrine has invariably

focused on the fleeting nature of the challenged conduct giving rise to the claim.” Genesis,

569 U.S. at 76–77.

Plaintiffs have failed to meet their burden to show that the inherently transitory

exception applies. To start, plaintiffs’ claim of unreasonable delay is fundamentally at

odds with the application of the exception: on the one hand, plaintiffs claim that defendants

are acting too slowly; on the other, they argue that the plaintiffs’ claims do not last long

enough. Moreover, the present context—agency adjudication of applications for

employment authorization—is distinguishable from the criminal and immigration

detention contexts in which the exception was created. Cf. Mons v. McAleenan,

, at *6 (D.D.C. Sept. 5, 2019). Plaintiffs cite to no case—nor has the Court found

a case—in which our Circuit Court applied the exception to the immigration application

context.

3. Pick-Off Doctrine. The pick-off exception to mootness “applies when ‘a

defendant picks off named plaintiffs in a class action before the class is certified’ by

10 ‘strategically mooting named plaintiffs’ claims in an attempt to avoid class action.’”

Gomez v. Trump,

, at *10 (D.D.C. June 23, 2020) (quoting Wilson v.

Gordon,

(6th Cir. 2016)). Our Circuit Court has not yet considered this

exception. See

Even if our Circuit Court were to recognize the exception, plaintiffs

have not met their burden to establish its application here. Plaintiffs claim that the timing

of the adjudication of plaintiffs’ applications “is highly suggestive of the agency’s pick-off

motive.” Pls.’ Supp. Br. at 7. Other than this bare allegation that defendants picked-off

the named plaintiffs, plaintiffs have offered no evidence or support for their position. And,

as plaintiffs explained previously, “at the time of suit, [p]laintiffs will, presumably, be close

to the front of the line for the adjudication of their” applications for employment

authorization. See Stay Opp. at 2. Plaintiffs have failed to show that the exception applies.

4. Voluntary Cessation. “As a general rule, a defendant’s voluntary cessation of

allegedly illegal conduct does not deprive [a court] of power to hear and determine the

case.” Cierco v. Mnuchin,

, 414–15 (D.C. Cir. 2017) (internal quotation

marks and citation omitted). Voluntary cessation moots a claim only if “(1) it can be said

with reassurance that there is no reasonable expectation … that the alleged violation will

recur, and (2) interim relief or events have completely and irrevocably eradicated the

effects of the alleged violation.” Coal. of Airline Pilots Ass’ns v. FAA,

(D.C. Cir. 2004) (quoting County of Los Angeles v. Davis,

(1979)).

Because defendants have adjudicated each named plaintiff’s application for employment,

plaintiffs are no longer affected by the defendants’ conduct of which they complain. And

there is no indication that defendants will rescind their determinations on any of plaintiffs’

11 adjudicated applications. See Xiaobing Liu v. Blinken,

, 9 (D.D.C. 2021).

More generally, the voluntary cessation exception does not neatly apply here: plaintiffs do

not claim that defendants have changed their policies or otherwise ceased engaging in the

allegedly illegal conduct; rather, defendants simply adjudicated the applications in the

course of their processes. Plaintiffs’ claims are therefore moot.

CONCLUSION

For all the foregoing reasons, defendants’ Motion to Dismiss [Dkt. #8] is hereby

GRANTED and this case shall be DISMISSED for lack of subject-matter jurisdiction. It

is further ORDERED that plaintiffs’ Motion to Certify Class [Dkt. #15] is hereby DENIED

as moot. An order consistent with this decision accompanies this Memorandum Opinion.

/s/ Richard J. Leon ________________________________ RICHARD J. LEON United States District Judge

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