United States District Court, D. Columbia.
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For Joseph M. Arpaio, Plaintiff: Larry E. Klayman , LAW OFFICES OF LARRY KLAYMAN, Washington, DC, USA.
For Barack Obama, Jeh Charles Johnson, Leon Rodriquez, Eric Holder, Jr., Defendants: Adam D. Kirschner, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA; Kathleen Roberta Hartnett, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, Civil Division, Washington, DC USA.
BERYL A. HOWELL, United States District Judge.
The plaintiff, the elected Sheriff of Maricopa County, brings suit against the President of the United States, and other Federal officials, alleging that certain immigration policies announced by the President in a nationwide address on November 20, 2014 are unconstitutional, otherwise illegal, and should be stopped from going into effect. See Pl.'s Mot. Prelim. Inj. (" Pl.'s Mot." ), ECF No. 7. The plaintiff's suit raises important questions regarding the nation's immigration policies, which affect the lives of millions
of individuals and their families. The wisdom and legality of these policies deserve careful and reasoned consideration. As the Supreme Court recently explained: " [T]he sound exercise of national power over immigration depends on the [Nation] meeting its responsibility to base its law on a political will informed by searching, thoughtful, rational civic discourse." Arizona v. United States, 132 S.Ct. 2492, 2510, 183 L.Ed.2d 351 (2012).
The key question in this case, however, concerns the appropriate forum for where this national conversation should occur. The doctrine of standing, in both its constitutional and prudential formulations, concerns itself with " 'the proper--and properly limited--role of the courts in a democratic society.'" Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). Standing " ensures that [courts] act as judges, and do not engage in policymaking properly left to elected representatives." Hollingsworth v. Perry, 133 S.Ct. 2652, 2659, 186 L.Ed.2d 768 (2013).
The refusal to adjudicate a claim should not be confused with abdicating the responsibility of judicial review. " Proper regard for the complex nature of our constitutional structure requires neither that the Judicial Branch shrink from a confrontation with the other two coequal branches of the Federal Government, nor that it hospitably accept for adjudication claims of constitutional violation by other branches of government where the claimant has not suffered cognizable injury." Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 474, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). A court must refrain " 'from passing upon the constitutionality of an act [of the representative branches], unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.'" Id. (quoting Blair v. United States, 250 U.S. 273, 279, 39 S.Ct. 468, 63 L.Ed. 979 (1919)) (alteration in original). Ultimately, " [i]t is the role of courts to provide relief to claimants . . . who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution." Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996).
Concerns over the judicial role are heightened when the issue before the court involves, as here, enforcement of the immigration laws. This subject raises the stakes of, among other factors, " immediate human concerns" and " policy choices that bear on this Nation's international relations." Arizona v. United States, 132 S.Ct. at 2499. " [O]ur Constitution places such sensitive immigration and economic judgments squarely in the hands of the Political Branches, not the courts." Fogo de Chao (Holdings) Inc. v. U.S. Dep't of Homeland Sec., 769 F.3d 1127, 1151 n.10 (D.C. Cir. 2014); see also United States v. Valenzuela-Bernal, 458 U.S. 858, 864, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982) (" The power to regulate immigration--an attribute of sovereignty essential to the preservation of any nation--has been entrusted by the Constitution to the political branches of the Federal Government." ).
The role of the Judiciary is to resolve cases and controversies properly brought by parties with a concrete and particularized injury-- not to engage in policymaking better left to the political branches. The plaintiff's case raises important
questions regarding the impact of illegal immigration on this Nation, but the questions amount to generalized grievances which are not proper for the Judiciary to address. For the reasons explained in more detail below, the plaintiff lacks standing to bring this challenge to the constitutionality and legality of the immigration policies at issue. Accordingly, the plaintiff's motion for a preliminary injunction, ECF No. 7, is denied and the defendants' motion to dismiss for lack of subject matter jurisdiction, ECF Nos. 13, 15, is granted.
A. Executive Enforcement of Immigration Laws
The Immigration and Nationality Act (" INA" ), codified as amended at 8 U.S.C. § 1101 et seq., establishes a comprehensive statutory scheme that governs immigration and naturalization. The INA establishes categories of immigrants who are inadmissible to the United States in the first instance, see 8 U.S.C. § 1182, and immigrants who are subject to removal from the United States once here, see 8 U.S.C. § 1227. Under the INA, " [a]liens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law." Arizona, 132 S.Ct. at 2499 (citing 8 U.S.C. § 1227).
The Secretary of the Department of Homeland Security (" DHS" ) is " charged with the administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens." 8 U.S.C. § 1103(a)(1). Although charged with enforcement of the statutory scheme, " [a]n agency generally cannot act against each technical violation of the statute it is charged with enforcing," Heckler v. Chaney, 470 U.S. 821, 831-32, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), and indeed " [a] principal feature of the removal system is the broad discretion exercised by immigration officials." Arizona, 132 S.Ct. at 2499. Thus, to enable the " proper ordering of its priorities," Heckler, 470 U.S. at 832, and the marshalling of extant resources to address those priorities, the INA provides the Secretary of DHS with the authority to " establish such regulations; . . . issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under [the INA]." 8 U.S.C. § 1103(a)(3). Further, the Secretary of DHS is specifically charged with " establishing national immigration enforcement policies and priorities," 6 U.S.C. § 202(5), to ensure that DHS's limited resources are expended in pursuit of its highest priorities in national security, border security, and public safety.
The context in which the immigration laws are enforced bears out the need for such prioritization. DHS estimates that approximately 11.3 million undocumented immigrants residing in the United States are potentially eligible for removal. Pl.'s Mot., Ex. B (Karl Thompson, Memorandum Opinion for the Sec'y of Homeland Security and the Counsel to the President: DHS's Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others at 1, (Nov. 19, 2014) (" OLC Opinion" ))
at 1, ECF No. 7-2. Of those, DHS estimates that the agency has the resources to remove fewer than 400,000 undocumented immigrants. Id. In addition, DHS faces additional challenges including: demographic shifts resulting in increased costs for managing and deterring unauthorized border crossings; increased complexity in removing aliens; congressional directives to prioritize recent border crossers and serious criminals; and the humanitarian and social consequences of separating families. See OLC Opinion at 11; Defs.' Mem. Opp. Pl.'s Mot. Prelim. Inj. (" Defs.' Mem." ), Ex. 21 ( Challenges at the Border: Examining the Causes, Consequences, and Responses to the Rise in Apprehensions at the Southern Border: Hearing Before the S. Comm. on Homeland Security and Governmental Affairs, 113th Cong. (2014) (statement of Craig Fugate, Administrator, Federal Emergency Management Agency, et al.)), ECF No. 13-21; see also Defs.' Mem. at 1.
To confront these challenges, the executive branch has long used an enforcement tool known as " deferred action" to implement enforcement policies and priorities, as authorized by statute. See 6 U.S.C. § 202(5). Deferred action is simply a decision by an enforcement agency not to seek enforcement of a given statutory or regulatory violation for a limited period of time. In the context of the immigration laws, deferred action represents a decision by DHS not to seek the removal of an alien for a set period of time. In this sense, eligibility for deferred action represents an acknowledgment that those qualifying individuals are the lowest priority for enforcement. Under long-existing regulations, undocumented immigrants granted deferred action may apply for authorization to work in the United States. See 8 C.F.R. § 274a.12(c)(14). These regulations were promulgated pursuant to the Immigration Reform and Control Act of 1986 and have been in effect, as amended, since 1987. See Control of Employment of Aliens, 52 Fed. Reg. 16216 (1987). Deferred action does not confer any immigration or citizenship status or establish any enforceable legal right to remain in the United States and, consequently, may be canceled at any time. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (" At each stage, the Executive has discretion to abandon the endeavor . . . ." ).
For almost twenty years, the use of deferred action programs has been a staple of immigration enforcement. The executive branch has previously implemented deferred action programs for certain limited categories of aliens, including: certain victims of domestic abuse committed by United States citizens and Lawful Permanent Residents;  victims of human trafficking and certain other crimes;  students affected by Hurricane Katrina; 
widows and widowers of U.S. citizens;  and certain aliens brought to the United States as children. Programs similar to deferred action have been used extensively by the executive branch for an even longer period of time.
Congress has acquiesced to, and even endorsed the use of, deferred action on removal of undocumented immigrants by the executive branch on multiple occasions. For example, in 2000, Congress expanded the deferred action program for certain victims of domestic abuse, permitting children over the age of twenty-one to be " eligible for deferred action and work authorization." 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV). Similarly, in 2008, Congress authorized the DHS to " grant . . . an administrative stay of a final order of removal" to individuals who could make an initial showing that they were eligible for a visa as victims of human trafficking and certain other crimes. See 8 U.S.C. § 1227(d)(1). Congress specifically noted that " [t]he denial of a request for an administrative stay of removal . . . shall not preclude the alien from applying for . . . deferred action." See 8 U.S.C. § 1227(d)(2). In Division B to the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, known by its short title of the REAL ID Act of 2005, Congress provided that state-issued driver's licenses were acceptable for federal purposes only if the state verifies that an applicant maintains evidence of lawful status, which includes evidence of " approved deferred action status." See Pub. L. No. 109-13, div. B, 119 Stat. 231, 302 (2005) (codified at 49 U.S.C. § 30301 note).
B. Challenged Immigration Programs
Against this lengthy historical record of the use of deferred action as a tool to carry out " national immigration enforcement policies and priorities," 6 U.S.C. § 202(5), the executive branch has more recently employed this tool in three programs, which the plaintiff challenges as unconstitutional or otherwise in violation of the Administrative Procedure Act. Specifically, the plaintiff challenges a June 15, 2012 program--known as Deferred Action
for Childhood Arrivals (" DACA" )--whose guidance is outlined in a memorandum by the former DHS Secretary entitled " Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children." DACA permits, on a case-by-case basis, deferred action on removal for a period of two years for undocumented immigrants that: (1) are under the age of 31 as of June 15, 2012; (2) were under the age of 16 at the time of arrival in the United States; (3) have continuously resided in the United States for at least five years immediately preceding June 15, 2012; (4) were present in the United States on June 15, 2012; (5) are in school, have graduated from high school, have obtained a general education development certificate, or have been honorably discharged from the Coast Guard or the Armed Forces of the United States; and (6) have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose no threat to the national security or public safety. See Pl.'s Mot., Ex. A (Memorandum from Janet Napolitano, Secretary, Department of Homeland Security, to David V. Aguilar, Acting Commissioner, U.S. Customs and Border Protection, et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012)), at 1-2 , ECF No. 7-1.
The other two programs challenged by the plaintiff are outlined in a memorandum by the current DHS Secretary entitled " Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents." The memorandum revised the DACA program (" 2014 DACA Revisions" ) and also created a new program that established guidelines for the request of deferred action by the parents of U.S. Citizens or Lawful Permanent Residents (" DAPA" ). See Pl.'s Mot., Ex. D (Memorandum from Jeh Charles Johnson, Secretary, Department of Homeland Security, to Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (November 20, 2014) (" 2014 Guidance Memorandum" )), ECF No. 7-4.
The principal features of the 2014 DACA Revisions include: (1) removal of the age cap of 31 so that individuals may request deferred action under DACA regardless of their current age, as long as they entered the United States before the age of 16; (2) extension of the period of deferred action from two years to three years; and (3) adjustment of the relevant date by which an individual must have been in the United States from June 15, 2007 to January 1, 2010. See 2014 Guidance Memorandum at 3-4.
DAPA permits, on a case-by-case basis, deferred action on removal for a period of three years for illegal aliens who are parents of U.S. citizens and Lawful Permanent Residents. To be considered for deferred action under DAPA, an individual must meet the following guidelines: (1) have, as of November 20, 2014, a son or daughter who is a U.S. citizen or Lawful Permanent Resident; (2) have continuously resided in the United States since before January 1, 2010; (3) have been physically present in the United States on November 20, 2014 and at the time of making a request for deferred action with U.S. Citizenship and Immigration Services; (4) have no lawful status as of November 20, 2014; (5) not fall within one of the categories of enforcement priorities
set forth in additional agency guidelines;  and (6) present no other factors that, in the exercise of discretion, make the grant of ...