United States District Court, District of Columbia
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, ...