Kang v. Department of Homeland Security

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”), 5 U.S.C. § 701 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”), 8 U.S.C. § 1101 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 8 U.S.C. § 1255(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, 81 Fed. Reg. 82398, 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, 87 Fed. Reg. 26614 (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 …

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