The opinion of the court was delivered by: John D. Bates, United States District Judge
Plaintiffs Capital Area Immigrants' Rights Coalition ("CAIR") and American Immigration Lawyers Association ("AILA"), both non-profit immigrant rights advocacy organizations, have asserted a broad challenge under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., to regulations issued by the Department of Justice ("Department" or "DOJ") establishing procedural reforms for the Board of Immigration Appeals ("BIA" or "Board"). See 67 Fed. Reg. 54878 (August 26, 2002). Defendants, the Department of Justice, the Executive Office for Immigration Review, and the Attorney General, have moved to dismiss plaintiffs' complaint for lack of standing, mootness, unreviewability under the APA, and failure to state a claim. The parties have also cross-moved for summary judgment.
Under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., Congress delegated authority to the Attorney General for administration and enforcement of laws relating to the immigration and naturalization of aliens, and authorized the Attorney General to promulgate regulations and rules for carrying out this responsibility. See 8 U.S.C. § 1103(a)(1)-(3). In 1983, in an effort to consolidate the adjudicatory framework for immigration matters, the Attorney General established the Executive Office for Immigration Review ("EOIR"), an administrative division within the Department of Justice under the direction of the Attorney General. See 52 Fed. Reg. 2931 (Jan. 29, 1987); 8 C.F.R. § 1003; 28 C.F.R. § 0.115.*fn1 Since 1940, Attorneys General have delegated their authority to the BIA to resolve administrative appeals from immigration judges who adjudicate immigration matters. See 8 C.F.R. § 1003.1(d); see also Accardi v. Shaughnessy, 347 U.S. 260, 266 (1954). The Board consists of several administrative judges and is charged with interpreting and applying the nation's immigration laws and providing precedent for immigration judges. "The mission of the Board of Immigration Appeals is to provide fair and timely immigration adjudications and authoritative guidance and uniformity in the interpretation of the immigration laws." 64 Fed. Reg. 56135, 56136 (Oct. 18, 1999). Because Board decisions can only be challenged in federal court in limited circumstances, the Board is often the final authority for adjudicating appeals from rulings of immigration judges and officers of the Immigration and Naturalization Service ("INS"). The Board decides critical immigration matters such as deportation, exclusion, removal and asylum, as well as matters arising under the United Nation's Convention Against Torture.
Since 1990, the Board has experienced an unprecedented increase in the number of immigration cases. In 1984, for example, the Board received fewer than 3,000 appeals, but by 1992 the number had grown to almost 13,000, and by 2000 it had increased to nearly 30,000 appeals annually. Administrative Record ("A.R.") 425, 690. There were only 69 immigration judges in 1990, but by the end of the decade the number had swollen to 200. A.R. 679. Compounding the dramatic increase in immigration cases, Congress made "[f]requent and significant changes in the complex immigration laws" over the last several years. 64 Fed. Reg. at 56136. Indeed, since 1986, there have been several major overhauls in the immigration laws, severely challenging the Board's ability to resolve appeals in a timely manner and provide guidance and precedent for immigration judges.*fn2 To help the Board cope with this growing caseload, the Attorney General steadily increased the Board's size from 5 members to 12 members in 1995, to 15 members in 1998, to 19 members in 1999, and to 23 members by 2001. See A.R. 690; see also 64 Fed. Reg. at 56139. Due to unfilled vacancies and reassignment, there were 19 Board members when plaintiffs filed their complaint. A.R. 690. Prior to 1999, the Attorney General had authorized the Board chairman to divide the Board into three-member panels (like federal appellate courts) that decide cases by majority vote and issue written opinions. See 8 C.F.R. § 1003.1(a)(1) (1998).
Despite these repeated increases in size, however, the pending caseload of the Board outpaced the addition of new members to the Board. In 1992, the Board had just over 18,000 pending appeals, but by 2001, despite a four-fold increase in the number of Board members, the caseload had grown to more than 57,000 pending cases. 67 Fed. Reg. at 54878.
Given the dramatic rise in the Board's pending caseload, DOJ promulgated a new regulation in 1999 to "streamline" the Board's appellate review procedures by limiting the use of three-member panels to cases "where there is a reasonable possibility of reversible error in the result below." 64 Fed. Reg. 56136. This streamlining regulation authorized a single Board member to summarily affirm, without a written opinion, cases in which (1) the result below was correct; (2) any errors below were harmless or nonmaterial; or (3) either the issue on appeal was squarely controlled by existing Board or court precedent and did not involve a novel fact situation, or the factual and legal questions on appeal were so insubstantial as not to warrant a three-member panel. 8 C.F.R. § 1003.1(a)(7)(ii). If an appeal fell within any of these categories, a single Board member could issue a short statement affirming the result of the decision below. Id. at § 1003.1(a)(7)(iii). The intent was to enable the Board to render decisions in a more timely manner, while concentrating its resources primarily on cases in which there is a reasonable possibility that the result was incorrect, or where new or significant issues are presented.*fn3
In 2001, the Department of Justice commissioned an external audit by Arthur Anderson to evaluate the effectiveness of the 1999 streamlining regulation. A.R. 516-611. Arthur Anderson issued its Assessment Report on December 13, 2001, finding that streamlining contributed to an overall 53 percent increase in the number of cases resolved by the Board. A.R. 523.*fn4 The report concluded that "[t]he overwhelming weight of both `objective' and `subjective' evidence gathered during the conduct of this study indicates that the Streamlining Pilot Project has been an unqualified success." A.R. 539. At the same time, Anderson cautioned that "[s]treamlining has not been implemented long enough to provide a sufficient amount of historical data to objectively evaluate its effect upon the quality of decisions rendered." A.R. 528.
Citing the success of the 1999 streamlining regulation, DOJ proposed a more sweeping streamlining regulation on February 19, 2002. See 67 Fed. Reg. 7309. The proposed 2002 streamlining regulation expanded the number of cases referred to a single Board member, with the result that most Board appeals would be resolved by summary affirmance without opinion, and only a limited category of cases would qualify for review by a three-member panel. A.R. 7. DOJ also proposed to reduce the number of Board members from 23 to 11 within six months of the regulation taking effect. 67 Fed. Reg. at 7310. Similarly, the regulation proposed to address the Board's massive backlog of pending cases within a six-month transition period. Id. at 7312.
The proposed 2002 streamlining regulation was intended to reduce appeal delays, enable the Board to better manage its growing caseload, and resolve the Board's existing backlog of cases — in turn giving the Board more time to focus its attention on significant cases:
Under its current structure and procedures, the Board
has been unable to adjudicate incoming cases quickly
enough to eliminate the unacceptable backlog that has
existed for several years. . . . Since 1995, the
problem of the mounting backlog of cases has been
addressed by incremental increases in the size of the
Board. However, in retrospect, it is now clear that
the addition of new Board members has not appreciably
reduced the backlog of cases. The problem is not one
of personnel. Rather, the problem is rooted in the
structure and procedures of the Board, which make it
nearly impossible for Board members to accomplish
their mission. The devotion of the Board's time and
resources to cases that present no colorable grounds
for appeal has made it extremely difficult to address
in a timely manner those cases that most need the
67 Fed. Reg. at 7310. DOJ concluded that "[t]he one change in the Board's procedures that has produced positive results in recent years is the streamlining initiative." Id. DOJ listed four overlapping objectives for the proposed 2002 streamlining regulation: (1) eliminate the current backlog of cases pending before the Board; (2) eliminate unwarranted delays in the adjudication of administrative appeals; (3) utilize the resources of the Board more efficiently; and (4) allow more resources to be allocated to the resolution of cases that present difficult or controversial legal questions. Id. The proposed regulation was submitted for a 30-day comment period, during which 68 submissions were received, including comments from non-governmental organizations, members of Congress, and private attorneys, as well as plaintiffs CAIR and AILA. See 67 Fed. Reg. at 54879. The proposed 2002 streamlining regulation would amend and supercede the 1999 streamlining regulation.
After considering the comments to the proposed regulation, DOJ published its final regulation on August 26, 2002, leaving the provisions of the proposed regulation largely unchanged, including expanded use of a streamlining process in which single-member review is the predominant method of adjudication for most cases — cases that "do not present novel or complex issues." 67 Fed. Reg. at 54880. The regulation streamlines cases unless review by a three-member panel is needed for one of six reasons: (1) to settle inconsistencies among immigration judges; (2) to establish precedent construing laws or regulations; (3) to review a legally erroneous decision; (4) to resolve a case of national import; (5) to review a factual determination that is erroneous; or (6) to reverse a decision. 8 C.F.R. § 1003.1(e)(6). If an appeal falls within one of these categories, the final regulation authorizes a single Board member to refer the case for review to a three-member panel. Id. The final regulation explains that "[t]his process will resolve simple cases efficiently while reserving the Board's limited resources for more complex cases and the development of precedent to guide the immigration judges, the [INS], attorneys and accredited representatives." 67 Fed. Reg. at 54880.
If a case does not qualify for one of these six exceptions, a single Board member reviewing the case may summarily affirm the decision without a written opinion. 8 C.F.R. § 1003.1(e)(4)(i). If the decision below is not appropriate for summary affirmance, the Board member is required to issue a brief order affirming, modifying, reversing, or remanding the decision under review. Id. at § 1003.1(e)(5). The final regulation also requires the Attorney General to reduce the size of the Board to 11 members. Id. at § 1003.1(a)(1).*fn5
The regulation became effective on September 25, 2002, and plaintiffs filed their complaint on October 24, 2002. Plaintiffs contend that the regulation was issued in violation of the APA. They allege that defendants, in deciding to promulgate these rules, failed to employ reasoned decision-making, failed adequately to respond to comments and adverse evidence cited in comments to the proposed rule, departed from previous practices and findings, and supported their result with inconsistent and contradictory reasoning. Compl. ¶ 81. Plaintiffs seek a declaration that the final rule is arbitrary and capricious under the APA, and that the issuance of three internal agency memoranda by the Board chairman in early 2002 also violated the APA. Plaintiffs request vacatur of the regulation and of the three challenged agency memoranda.*fn6
Defendants contend that neither CAIR nor AILA have established that they have standing to bring their claims. The Court concludes, however, that CAIR has associational standing to assert claims on behalf of its members who are immigrants with cases pending before the Board. The Supreme Court has recognized "that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977); see also United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 551-52 (1996).
There is no dispute that CAIR satisfies the second and third prongs of the associational standing test. The interests CAIR seeks to protect are certainly germane to the organization's purpose. This second prong "raises an assurance that the association's litigators will themselves have a stake in the resolution of the dispute, and thus be in a position to serve as the defendant's natural adversary." United Food, 517 U.S. at 555-56. CAIR's executive director has explained that "the CAIR Coalition combines the efforts of more than one hundred advocates, community organizations, immigrants and other individuals working together to meet the legal needs and promote the civil rights of immigrants in the Washington, D.C. metropolitan area." Sanders Aff. ¶ 3. As an advocate for local immigrants with cases before the BIA, CAIR thus easily satisfies the requirements of this prong. Moreover, the claims asserted and the relief requested do not require the participation of individual members of CAIR in this challenge to the regulation. The declaratory and injunctive remedies sought by CAIR do not require "individualized proof . . . [and] thus are properly resolved in the group context." Hunt, 432 U.S. at 344. Hence, the third prong of the test is met as well.
This leaves only the first prong of the associational standing test. "Standing of an association as a representative of members requires that at least some of the members would have standing to sue in their own right." Fed'n for American Immigration Reform v. Reno, 93 F.3d 897, 899 (D.C. Cir. 1996); see also United Food, 517 U.S. at 555 (the first element of associational standing test "require[s] an organization suing" to have "at least one member with standing to present, in his or her own right, the claim"); Nat'l Wildlife Fed. v. Buford, 835 F.2d 305, 311 (D.C. Cir. 1987) ("[A]n organization must allege facts showing that one or more of its members is among the persons injured by the challenged agency action."); Am. Immigration Lawyers Ass'n v. Reno, 18 F. Supp.2d 38, 50 (D.D.C. 1998), aff'd, 199 F.3d 1352 (D.C. Cir. 2000).
CAIR has submitted affidavits from two immigration lawyers who represent individual CAIR members having immigration appeals before the Board. Theodore Cox explained that he represents 44 CAIR members who are nationals from the People's Republic of China seeking asylum under the Convention Against Torture, and who have had appeals decided before and after the effective date of the regulation. See Cox Aff. ¶ 5. Cox states that "the Final BIA Regulations, especially the provisions for review by single board members and summary affirmance without opinion, will prevent my clients from receiving a just appeal at the BIA, . . . [and] prevent these individuals from receiving proper consideration of their appeals before the BIA." Id. at ¶ 7. Cox identified 15 CAIR members by name, and identified the dates of the dispositions of their appeals. Id. He has submitted the declaration on their behalf "because of the impracticability of obtaining separate declarations from each member," many of whom do not speak English, and because some clients "have requested anonymity because of concerns that participation in this litigation could adversely affect their individual cases." Id. at ¶ 4. Similarly, Thomas Hutchins, who also represents immigrants who belong to CAIR and have appeals before the BIA, submitted an affidavit identifying six CAIR members who "have been or may in the future be adversely affected by the final BIA restructuring rules." Hutchins Aff. at ¶ 3.
When it brought this lawsuit, CAIR "had approximately fifty individual members who had or currently have appeals pending at the BIA." Sanders Aff. at ¶ 7. CAIR asserts that the regulation will injure immigrants who are CAIR members:
The appeals of some of our individual members have
been summarily affirmed by single Board members under
the Memoranda and the new Final BIA Regulations. These
single-member summary affirmances have denied our
members a full and fair hearing of their cases by the
[Board of Immigration Appeals]. As a result they may
be unfairly denied the relief sought and are subject
to removal from the United States.
Id. It is thus clear that immigrants with pending Board appeals belong to CAIR and may be adversely affected by the new regulation. While the affidavits were submitted by counsel on behalf of the immigrants, they nonetheless contain the requisite information that satisfies the first prong for associational standing. The Court therefore finds that CAIR has met its burden of establishing associational standing to assert the claims of its individual members.*fn7
The Department contends that its final regulation is not reviewable under the APA, which provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. The APA carves out an exception to judicial review "to the extent that . . . agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). The Department contends that the INA delegated the administration and enforcement of immigration laws to the Attorney General and therefore commits the procedures and regulations for adjudicating immigration appeals to the Attorney General's discretion.
"As the Supreme Court has instructed, `we begin with the strong presumption that Congress intends judicial review of administrative action.'" INOVA Alexandria Hospital v. Shalala, 244 F.3d 342, 346 (4th Cir. 2001) (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986)); see also Dunlop v. Bachowski, 421 U.S. 560, 567 (1975) (government bears "heavy burden of overcoming the strong presumption" in favor of judicial review). This presumption of judicial review is overcome by "clear and convincing evidence of a contrary congressional intent." Bd. of Governors Fed. Reserve Sys. v. Mcorp Fin., Inc., 502 U.S. 32, 44 (1991). Accordingly, the APA's exception to judicial review is a "very narrow exception," reserved for "those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (citation omitted).
The Supreme Court has carved out certain categories of agency action that are exempt from judicial review under the APA because they are committed to agency discretion. "Over the years, we have read § 701(a)(2) to preclude judicial review of certain categories of administrative decisions that courts traditionally have regarded as `committed to agency discretion.'" Lincoln v. Vigil, 508 U.S. 182, 191 (1993). Categories of actions committed to agency discretion include: (1) agency decisions to institute enforcement proceedings; (2) an agency's refusal to grant reconsideration of an action; (3) a decision by the CIA to terminate an employee in the interests of national security; and 4) an agency's allocation of funds from a lump-sum appropriation. Id. at 191-92 (citations omitted). In Heckler v. Chaney, 470 U.S. 821 (1985), the Court stated that the "committed to agency discretion" exception to APA judicial review applies where "the statute is drawn so that a court would have no meaningful standard against which to ...