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National Association for Advancement of Colored People v. Trump

United States District Court, District of Columbia

April 24, 2018

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs,
v.
DONALD J. TRUMP, et al., Defendants. TRUSTEES OF PRINCETON UNIVERSITY, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          MEMORANDUM OPINION

          JOHN D. BATES, UNITED STATES DISTRICT JUDGE.

         These cases present an array of administrative and constitutional challenges to the Department of Homeland Security's (“DHS”) rescission of the Deferred Action for Childhood Arrivals (“DACA”) program. Though the government disputes these challenges on the merits, its primary defenses concern the Court's authority to hear the cases: the government contends that most plaintiffs lack standing, that the Immigration and Nationality Act (“INA”) deprives the Court of subject-matter jurisdiction, and that the Department's decision to rescind DACA is not subject to review under the Administrative Procedure Act (“APA”) because it was committed to agency discretion by law. The government has moved to dismiss the complaint in its entirety, and plaintiffs have moved for summary judgment only on their APA claims.

         These are just two of a series of challenges to the September 2017 rescission of DACA that have already been before several district courts, two circuit courts of appeals, and the Supreme Court on two occasions. At this time, two preliminary injunctions are in place that require DHS to accept applications for the renewal of DACA benefits, but not to accept new DACA applications. Here, through their pending motions, plaintiffs seek permanent injunctive relief, although only on their APA claims. And the relief they seek would reach new as well as renewal DACA applications.

         For the reasons that follow, the Court concludes that it has both jurisdiction and statutory authority to hear plaintiffs' APA and constitutional claims. The Court further concludes that, under the APA, DACA's rescission was arbitrary and capricious because the Department failed adequately to explain its conclusion that the program was unlawful. Neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program. Thus, plaintiffs' motion for summary judgment will be granted in part, and the decision to rescind DACA will be vacated and remanded to DHS. Vacatur of DACA's rescission will mean that DHS must accept and process new as well as renewal DACA applications. The Court will stay its order of vacatur for ninety days, however, to allow the agency an opportunity to better explain its rescission decision.

         BACKGROUND

         I. The Implementation and Rescission of DACA

         A. Deferred Action for Childhood Arrivals

         In 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum establishing the DACA program, which allowed certain undocumented aliens[1] who had been brought to the United States as children to be treated as low priorities for removal under the federal immigration laws. See AR 1.[2] According to the Secretary's memorandum (the “DACA Memo”), these young people generally “lacked the intent to violate the law” when they entered the United States as children and, in many cases, “kn[e]w only this country as home” and had “contributed to [the] country in significant ways.” AR 1-2. DACA was therefore undertaken as “an exercise of . . . prosecutorial discretion” to “ensure that our enforcement resources are not expended on these low priority cases.” AR 1.

         DACA was available to any undocumented alien who: (1) came to the United States when she was under the age of sixteen; (2) had lived in the United States continuously since at least June 15, 2007; (3) was enrolled in school or had graduated from high school or been honorably discharged from the military; (4) had not been convicted of certain criminal offenses and posed no threat to national security or public safety; and (5) was under the age of thirty. AR 1. Aliens who met these criteria were eligible for renewable, two-year grants of “deferred action” on their removal from the United States. AR 2-3; see 8 C.F.R. § 274a.12(c)(14) (defining deferred action as “an act of administrative convenience to the government which gives some [removal] cases lower priority”). As the DACA Memo was careful to point out, however, the program “confer[red] no substantive right, immigration status or pathway to citizenship, ” as “[o]nly the Congress, acting through its legislative authority, can confer these rights.” AR 3.

         Individuals who received deferred action under DACA were also eligible for a host of other benefits under preexisting statutes and DHS regulations. These benefits included work authorization, 8 C.F.R. § 274a.12(a)(11), social security numbers, id. § 1.3(a)(4)(vi), advance parole (i.e., preauthorization to travel to the United States without a visa), id. § 212.5, and a limited class of public assistance, such as state and federal aid for medical emergencies, 8 U.S.C. §§ 1611(b)(1), 1621(b)(1). Benefits like these allowed DACA recipients to work, travel abroad, access credit, and otherwise lead productive lives during their periods of deferred action.

         To be considered for deferred action under DACA, an applicant had to provide DHS with certain identifying information, including her name, mailing address, and contact information. See Decl. of Maria De La Cruz Perales Sanchez (“Perales Decl.”) [ECF No. 28-8] ¶ 11; see also Form I-821D, U.S. Citizenship and Immigration Servs., Consideration for Deferred Action for Childhood Arrivals, https://www.uscis.gov/i-821d. Although many applicants feared that this information would later be used to initiate removal proceedings against them, see Perales Decl. ¶¶ 10, 24, the Department assured applicants that their information would in most cases be “protected from disclosure to [U.S. Immigration and Customs Enforcement (“ICE”)] and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings.” See U.S. Citizenship and Immigration Servs., Instructions for Consideration of Deferred Action for Childhood Arrivals, https://www.uscis.gov/i-821d. Relying on these representations, hundreds of thousands of undocumented aliens applied for and received deferred action under the DACA program. See, e.g., Perales Decl. ¶ 10; Decl. of John Doe #1 ¶ 6; Decl. of John Doe #2 ¶ 5. By late 2017, nearly 800, 000 individuals had been granted deferred action under DACA. AR 242.

         B. Deferred Action for Parents of Americans

         Two years after DACA's implementation, DHS issued a second memorandum, this time purporting to establish a deferred-action program called Deferred Action for Parents of Americans (“DAPA”). AR 37-41. As its name suggests, DAPA would have offered deferred action to parents of U.S. citizens or lawful permanent residents who were themselves unlawfully present in the United States.[3] AR 40-41. The DAPA memorandum also purported to expand the DACA program in certain respects: it would have removed the thirty-year age cap, made the deferred-action grants last for three years instead of two, and required that an alien need only have been present in the United States since January 1, 2010 to be eligible. AR 39-40.

         Before DAPA took effect, a coalition of states, led by Texas, sued to block its implementation on grounds that it violated both the APA and the Take Care Clause of the Constitution. See Texas, 86 F.Supp.3d at 604 & n.1, 607 (citing U.S. Const. art. II, § 3). The district court granted the states' motion for a preliminary injunction, concluding that they were likely to succeed on their procedural APA claim that DAPA (including its expansion of DACA) should have been promulgated using notice and comment. Id. at 671-72; see 5 U.S.C. § 553. In part, this was because the Department's implementation of DACA suggested that DAPA would not “genuinely leave[] the agency and its employees free to exercise discretion.” Texas, 86 F.Supp.3d at 604 at 670 (emphasis, alterations, and internal quotation marks omitted). The district court found that only about 5% of all DACA applications had been denied, and the government could not say how many of those had been denied for discretionary reasons. Id. at 609. This led the court to conclude that the DAPA Memo's suggestion that immigration officers could exercise case-by-case discretion was “merely pretext.” Id. at 669 n. 101; see Texas, 809 F.3d at 173 (agreeing that although “[t]he DACA and DAPA Memos purport to grant discretion, . . . there was evidence from DACA's implementation that DAPA's discretionary language was pretextual”).

         The Fifth Circuit affirmed, holding that the states had demonstrated a likelihood of success on the merits not only of their procedural APA claim, but also on their substantive APA claim, because DAPA seemed to conflict with the INA's “intricate process for illegal aliens to derive a lawful immigration classification from their children's immigration status.”[4] Texas, 809 F.3d at 179. But the court expressly declined to address the states' constitutional challenges. See id. at 146 n.3 (finding it “unnecessary” to address those claims “at this early stage of the proceedings”). It also rejected the government's threshold arguments-similar to the ones offered here-that the states lacked standing, see id. at 150-63, that the INA deprived the court of subject-matter jurisdiction, see id. at 164-65, and that DAPA's implementation was unreviewable under the APA, see id. at 165-72.[5] The government petitioned for certiorari, and in June 2016, an eight-Justice Supreme Court affirmed the Fifth Circuit's judgment by an equally divided vote. See United States v. Texas, 136 S.Ct. 2271 (2016) (mem).

         On January 20, 2017, President Donald J. Trump was sworn into office, and his nominee for Secretary of Homeland Security, John F. Kelly, was confirmed that same day. Six months later, Secretary Kelly issued a memorandum rescinding DAPA, including its expansion of DACA, but leaving the original DACA program in place. AR 235-236. The Texas plaintiffs voluntarily dismissed their challenge to DAPA a few months later. See Pls.' Stipulation of Voluntary Dismissal, Texas v. United States, No. 14-CV-254 (S.D. Tex. Sep. 12, 2017), ECF No. 473.

         C. The Rescission of DACA

         On September 5, 2017, three months after DAPA's rescission, then-Acting Secretary of Homeland Security Elaine C. Duke issued a five-page memorandum rescinding DACA (the “Rescission Memo”).[6] See AR 252-56. The Rescission Memo began by canvassing the procedural history of the Texas litigation, and then noted that “[a]lthough the original DACA policy was not challenged in [that] lawsuit, both the district and appellate court decisions relied on factual findings about the implementation of the 2012 DACA memorandum.” AR 253. Specifically, the memorandum noted that “[t]he Fifth Circuit agreed with the lower court that DACA decisions were not truly discretionary, ” and that “[b]oth the district court and the Fifth Circuit concluded that implementation of the program did not comply with the [APA] because the Department did not implement it through notice-and-comment rulemaking.” AR 253-54.

         The memorandum also stated that in June 2017, after DAPA had been rescinded but before the Texas litigation was voluntarily dismissed, Texas and the other state plaintiffs in that case had sent a letter to Attorney General Jeff Sessions threatening to challenge DACA in court unless he rescinded the program by September 5, 2017. AR 254; see AR 238-240 (Texas's demand letter). Attorney General Sessions then sent a one-page letter to Acting Secretary Duke (the “Sessions Letter”) instructing her to rescind DACA. AR 251. The Sessions Letter explained that the program had been “effectuated by the previous administration through executive action, without proper statutory authority and . . . after Congress' repeated rejection of proposed legislation that would have accomplished a similar result, ” and that “[s]uch an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” Id. The letter also noted that because DACA suffered from “the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Id. The letter instructed Acting Secretary Duke to “consider” implementing “an orderly and efficient wind-down process” for the program. Id.

         In light of the Texas litigation and the Sessions Letter, the Rescission Memo concluded, “it is clear that the . . . DACA program should be terminated.” AR 255. Given “the complexities associated with winding down the program, ” however, the Department decided to “provide a limited window in which it will adjudicate certain requests for DACA and associated applications.” Id. Thus, the Department would adjudicate any properly filed DACA applications that were pending as of September 5, 2017, as well as any new applications for the renewal of DACA benefits that were filed on or before October 5, 2017 by persons whose benefits were set to expire on or before March 5, 2018. It would also honor (in most cases) existing grants of deferred action, work authorization, and advance parole. But it would reject all other DACA applications, including any initial applications filed after September 5, 2017, and all pending and future applications for advance parole under the DACA program. Effectively, then, DACA benefits were made unavailable to any alien who had not already applied, and existing DACA grants would be allowed to expire permanently beginning in March 2018. Finally, like the earlier DACA and DAPA memorandums, the Rescission Memo stated that it “is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.” AR 256.

         II. Legal Challenges to DACA's Rescission

         Since September 2017, legal challenges to DACA's rescission have been filed in federal district courts throughout the country. Two of these challenges have made their way to the federal courts of appeals, and one has been to the Supreme Court. Because these challenges generally involve similar administrative and constitutional claims, the Court will not address the plaintiffs' assertions in each case in detail. Nevertheless, a brief overview of this pending litigation landscape will be useful to understand the state of DACA's rescission today.[7]

         A. Regents of the University of California v. DHS

         The first set of challenges to DACA's rescission was filed in September 2017 in federal district court in California. See Regents of the Univ. of Cal. v. U.S. Dep't of Homeland Sec., 279 F.Supp.3d 1011, 1026 (N.D. Cal. 2018). The plaintiffs in those cases are the University of California, the State of California and several other states, a group of individual DACA recipients, two California municipalities, and a labor union. See id. Though not formally consolidated, the cases were all assigned to U.S. District Judge William H. Alsup. See Case Management Scheduling Order, Regents, No. 17-5211 (N.D. Cal. Sept 22, 2017), ECF No. 49.

         Shortly after the actions were filed, the government filed an administrative record consisting of “fourteen documents comprising 256 pages of which 187 consisted of published opinions from the DAPA litigation.” Regents, 279 F.Supp.3d at 1028. “All non-public materials, some eighty-four documents, actually reviewed by the Acting Secretary remained withheld as privileged.” Id. (citation omitted). The district court ordered the government to complete the record, denying many of the government's claims of privilege. Id. at 1028-29. The government petitioned the Ninth Circuit for a writ of mandamus, but the court of appeals denied the petition. See In re United States, 875 F.3d 1200 (9th Cir. 2017). The government then sought the same relief from the Supreme Court, which construed the government's mandamus petition as a petition for a writ of certiorari, granted it, vacated the Ninth Circuit's order, and directed the district court to “first resolve[] the Government's threshold arguments, ” since those arguments, “if accepted, likely would eliminate the need for the District Court to examine a complete administrative record.” In re United States, 138 S.Ct. 443, 444-45 (2017) (per curiam).

         While the litigation over the administrative record was pending, the plaintiffs filed a motion for preliminary injunctive relief, and the government moved to dismiss the plaintiffs' complaints both for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6). See Regents, 279 F.Supp.3d at 1029. Then, following the Supreme Court's instruction to first address the government's threshold arguments, the district court denied the government's Rule 12(b)(1) motion and granted the plaintiffs' motion for a preliminary injunction. Id. at 1036-37. The injunction directed DHS to resume accepting applications for the renewal of DACA benefits, although it did not require the agency to accept new DACA applications or to afford current DACA beneficiaries advance parole. See id. at 1048-49.

         In a separate order entered a few days later, the district court denied the government's Rule 12(b)(6) motion except as to the plaintiffs' notice-and-comment and Regulatory Flexibility Act claims. See Regents of the Univ. of Cal. v. U.S. Dep't of Homeland Sec., No. 17-CV-05211, 2018 WL 401177, at *2 (N.D. Cal. Jan. 12, 2018). The government appealed both orders, and the Ninth Circuit set an expedited briefing schedule. See Order, Regents of the Univ. of Cal. v. U.S. Dep't of Homeland Sec., No. 18-15068 (9th Cir. Jan. 17, 2018), ECF No. 2. The government also petitioned the Supreme Court for a writ of certiorari before judgment, but the Supreme Court denied the petition. See Order, Dep't of Homeland Sec. v. Regents of the Univ. of Cal., No. 17-1003 (U.S. Feb. 26, 2018). The government's appeal is currently pending before the Ninth Circuit.

         B. Batalla Vidal v. Duke

         The second challenge also came about in September 2017 when Martin Batalla Vidal, an individual DACA beneficiary who was already engaged in litigation with the Department over the revocation of his employment authorization, amended his complaint to assert a challenge to DACA's rescission. See Batalla Vidal v. Duke, No. 16-CV-4756, 2017 WL 5201116, at *4 (E.D.N.Y. Nov. 9, 2017). His challenge was later consolidated with two others before Judge Nicholas G. Garaufis of the U.S. District Court for the Eastern District of New York. Id. The plaintiffs in the three cases include Mr. Batalla Vidal, the State of New York, fourteen other states and the District of Columbia, and Make the Road New York, a nonprofit. See id. at *4 & n.5.

         Shortly after the consolidation of the three actions, another dispute arose regarding the scope of the administrative record. The district court ordered the government to produce certain documents, see id. at *6-7, and, on the government's petition for mandamus, the Second Circuit stayed discovery pending the district court's resolution of “issues of jurisdiction and justiciability.” Id. at *8. The government then filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6). Id.

         The district court denied the government's Rule 12(b)(1) motion (except as to some plaintiffs that the court found lacked standing), see id. at *20, but it later certified its decision for an interlocutory appeal, see Batalla Vidal v. Nielsen, 16-CV-4756, 2018 WL 333515, at *1 (E.D.N.Y. Jan. 8, 2018). The Second Circuit then held the government's petition for leave to file an interlocutory appeal in abeyance pending the district court's resolution of the government's Rule 12(b)(6) motion and the plaintiffs' motion for a preliminary injunction, which the plaintiffs had filed while issues related to the interlocutory appeal were being litigated. See Certified Order, Nielsen v. Vidal, No. 18-122 (2d Cir. Jan. 31, 2018), ECF No. 46.

         A few weeks later, the district court granted the plaintiffs' motion for a preliminary injunction. See Batalla Vidal v. Nielsen, 279 F.Supp. 401, 437-38 (E.D.N.Y. 2018). The scope of the court's injunction was the same as in Regents: it required the Department to resume consideration of renewal applications but did not require the consideration of initial applications or applications for advance parole. Id. at 437-38. The government took an interlocutory appeal, and the next day, the Second Circuit denied the mandamus petition that it had previously held in abeyance and vacated its earlier discovery stay. See Certified Order, In re Nielson, No. 17-3345 (2d Cir. Feb. 21, 2018), ECF No. 181. The Second Circuit thereafter granted the government's motion to expedite the appeal, which is pending at this time. See Certified Order, Vidal v. Nielsen, No. 18-485 (2d Cir. Mar. 8, 2018), ECF No. 62.

         While the expedited appeal was pending, the district court granted in part and denied in part the government's pending 12(b)(6) motion.[8] See Batalla Vidal v. Nielsen, No. 16-cv-4756, 2018 WL 1532370, at *1 (E.D.N.Y. Mar. 29, 2018). The court denied the motion as to plaintiffs' substantive APA claims for substantially the same reasons that it had previously found a substantial likelihood of success on the merits of those claims, id. at *3, but granted the motion as to their procedural APA and Regulatory Flexibility Act (“RFA”) claims. Id. at *5-6. The court also denied the motion as to the plaintiffs' equal protection claims, id. at *6-10, although it granted the motion as to their information-sharing claim, concluding that the plaintiffs had “not plausibly alleged that DHS actually changed its information-sharing policy, ” id. at *11. Finally, the court granted the motion as to plaintiffs' procedural due process claim, except as to certain plaintiffs who alleged that their renewal applications had been improperly rejected as untimely or were erroneously deemed to contain minor clerical errors. Id. at *14.

         C. Casa de Maryland v. DHS

         The plaintiffs in the third case, CASA de Maryland v. U.S. Dep't of Homeland Security, 284 F.Supp.3d 758 (D. Md. 2018), are individual DACA recipients and several nonprofit organizations. In March 2018, the district court (Judge Roger W. Titus) ruled that although DACA's rescission was reviewable, it did not violate the APA or the Equal Protection or Due Process Clauses. See id. at 770, 773-77, 779. The district court summarized its decision to depart from the Regents and Batalla Vidal courts on the substantive APA claim as follows:

The decisions to date by courts in California and New York are premised on the legal conclusion that DACA is lawful, and therefore, a decision to rescind DACA on the basis of unlawfulness is necessarily arbitrary and capricious. Respectfully, this Court disagrees. Regardless of the lawfulness of DACA, the appropriate inquiry is whether or not DHS made a reasoned decision to rescind DACA based on the Administrative Record . . . . Given the fate of DAPA, the legal advice provided by the Attorney General, and the threat of imminent litigation, it was reasonable for DHS to have concluded-right or wrong-that DACA was unlawful and should be wound down in an orderly manner. Therefore, its decision to rescind DACA cannot be arbitrary and capricious.

Id. at 767-768 (citation omitted). However, the district court did grant one form of relief not granted by the courts in Regents or Batalla Vidal: it enjoined DHS from “using information provided by Dreamers through the DACA program for enforcement purposes, ” explaining that so doing would violate applicable principles of equitable estoppel. Id. at 779. As of the date of this decision, neither party has appealed the district court's order, although the time in which to do so has not yet expired. See Fed. R. App. P. 4 (a)(1)(B).

         III. The Present Challenges to DACA's Rescission

         The cases currently before this Court, NAACP v. Trump and Princeton v. United States, were filed in September and November 2017, respectively, and have been consolidated for purposes of the dispositive motions pending in each. The plaintiffs in the Princeton action are Princeton University, Microsoft Corporation, and Maria de la Cruz Perales Sanchez, a DACA beneficiary and Princeton undergraduate. See Compl. (“Princeton Compl.”) [ECF No. 1] at 12. The plaintiffs in the NAACP action are the National Association for the Advancement of Colored People (“NAACP”), the American Federation of Teachers (“AFT”), and the United Food and Commercial Workers International Union (“UFCW”). See First Amended Complaint at 3-5, NAACP, No. 17-cv-1907 (D.D.C. Oct. 24, 2017), ECF No. 10 (“NAACP FAC”). Both sets of plaintiffs challenge DACA's rescission on various administrative and constitutional grounds, including that it was arbitrary and capricious, see Pls.' Mem. in Supp. of Pls.' Mot. for Summ. J. (“Princeton MSJ”) at 11-38; that it should have undergone notice-and-comment procedures, see id. at 38-41; that its effects on “small entities” should have been analyzed pursuant to the RFA, 5 U.S.C. §§ 601-12, see NAACP FAC 16-17; and that it violates the Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments, see Princeton Compl. at 35-40.

         The government has filed motions to dismiss in both actions. It argues: (1) that plaintiffs' APA claims should be dismissed because DACA's rescission was “committed to agency discretion by law” and is therefore unreviewable under 5 U.S.C. § 701(a)(2), see Mem. of Law in Supp. of Defs.' Mot. to Dismiss (“Princeton MTD”) [ECF No. 8] at 14-21; (2) that a provision of the INA, 8 U.S.C. § 1252(g), deprives the Court of subject-matter jurisdiction, see id. at 21-24; (3) that all plaintiffs but Ms. Perales Sanchez lack Article III and prudential standing, see id. at 24-25; Mem. in Supp. of Defs.' Mot. to Dismiss, No. 17-cv-1907 (D.D.C. Nov. 8, 2018) (“NAACP MTD”) at 14-18; and (4) that plaintiffs have failed to state a claim under the APA, the RFA, and the Constitution, Princeton MTD at 27-44.

         Plaintiffs have moved for summary judgment only on their APA claims, or alternatively, for preliminary injunctive relief “[t]o the extent the Court wishes to see [the discovery] issues [in Regents and Batalla Vidal] litigated before granting final judgment to the Plaintiffs.” Princeton MSJ at 3 & n.1. Unlike the plaintiffs in Regents and Batalla Vidal, however, plaintiffs here have not challenged the completeness of the administrative record, see 5 U.S.C. § 706 (providing that, in reviewing agency action, “the court shall review the whole record or those parts of it cited by a party” (emphasis added)), and the government urges the Court to decide the pending motions on the current record, see Princeton MTD at 3 (“[T]he Court should either uphold the Rescission Policy and grant this motion if it agrees that the record supports Defendants' position, or set aside the Rescission Policy if it disagrees.”). Finally, plaintiffs have also moved for a preliminary injunction preventing DHS from sharing or otherwise using DACA beneficiaries' personal information for immigration enforcement purposes. See Princeton MSJ at 48-53.

         The Court initially set a motions hearing in this case for February 2018, but the hearing was continued at the parties' request pending the government's petition for certiorari before judgment in the Regents case. See January 26, 2018 Min. Order. That petition was denied in late February, and the Court held a motions hearing in mid-March. The parties' motions are now ripe for decision.

         DISCUSSION

         I. Subject-Matter Jurisdiction

         A. The Immigration and Nationality Act

         The government argues that the Court lacks jurisdiction over all of plaintiffs' claims- administrative and constitutional-under 8 U.S.C. § 1252(g), a provision of the INA that states that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” On its face, that language removes jurisdiction only as to the three listed actions of the Attorney General. The government argues that “[t]he denial of deferred action is a step toward the commencement of removal proceedings against an alien” and that “the INA's careful scheme for [removal] proceedings” suggests that such denials may be challenged only through individual removal proceedings, and hence § 1252(g) strips the Court of jurisdiction over plaintiffs' challenge here. Defs.' Reply in Supp. of their Mot. to Dismiss (“Defs.' Reply”) [ECF No. 56] at 10.

         The government's position contradicts not only the plain language of § 1252(g) but also the Supreme Court's interpretation of that language in Reno v. American-Arab AntiDiscrimination Committee (“AAADC”), where the Court specifically rejected the argument that “the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings.” 525 U.S. 471, 482 (1999). Rather, the Court explained, § 1252(g) applies “only to three discrete actions that the Attorney General may take: her ‘decision or action' to ‘commence proceedings, adjudicate cases, or execute removal orders.'” Id. (listing “part[s] of the deportation process” that fall outside of § 1252(g)'s scope, including “decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order”). Because the rescission of DACA is neither the commencement of a proceeding, the adjudication of a case, nor the execution of a removal order, § 1252(g) is inapplicable here pursuant to the provision's plain language.

         The government's only response is that DACA's rescission is a “step toward” the removal of specific aliens. See Defs.' Reply at 10; but see id. at 2 (stressing elsewhere that rescission “does not, in itself, exert the agency's coercive power over any individual”). True, the Supreme Court said in AAADC that § 1252(g) was “specifically directed at the deconstruction, fragmentation, and hence prolongation of removal proceedings.” 525 U.S. at 487. But there is no allegation here that removal proceedings have yet been initiated against any DACA beneficiary, so there are no pending removal proceedings with which plaintiffs' challenge might interfere. Cf. id. (concluding that § 1252(g) stripped jurisdiction over selective deportation claims brought by six aliens who were then in removal proceedings). Thus, the government's reliance on AAADC is misplaced, and § 1252(g) does not bar review here. Accord Regents, 279 F.Supp.3d at 1031-1033 (rejecting the government's § 1252(g) argument); Batalla Vidal, 2017 WL 5201116, at *12-13 (same).

         B. Article III Standing

         The government also asks the Court to dismiss the claims brought by Princeton and Microsoft, Princeton MTD at 24-25, and by all plaintiffs in the NAACP action, see NAACP MTD at 14-17, for lack of Article III standing. In so moving, the government urges the Court to conduct a “claim-by-claim analysis” of each plaintiff's standing as to each claim. Defs.' Reply 11.

         Such a detailed analysis is unnecessary, however, at least in Princeton. The government does not dispute that the individual plaintiff, Ms. Perales Sanchez, has Article III standing to assert each claim in the complaint.[9] See Princeton MTD 24-25 (seeking dismissal only as to the “[n]on-[i]ndividual [p]laintiffs”); Princeton Compl. 30-38 (listing Ms. Perales Sanchez as a plaintiff on each count). And as the Supreme Court has recently reaffirmed, Article III requires only that “[a]t least one plaintiff . . . have standing to seek each form of relief requested in the complaint.” Town of Chester v. Laroe Estates, Inc., 137 S.Ct. 1645, 1651 (2017). In Princeton, that “one plaintiff” is Ms. Perales Sanchez, and no further analysis of any other plaintiff's standing is necessary.

         In NAACP, however, there is no individual plaintiff. The organizational plaintiffs-the NAACP and two labor unions-therefore must rely on their own standing to survive the government's motion to dismiss. These plaintiffs assert that they have “associational standing, ” which requires each of them to plead that “(1) at least one of its members would have standing to sue in his or her own right; (2) the interests it seeks to protect are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the participation of an individual member of the organization in the suit.” AARP v. EEOC, 226 F.Supp.3d 7, ...


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