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Damus v. Nielsen

United States District Court, District of Columbia

February 28, 2019

ANSLEY DAMUS, et al., Plaintiffs,
KIRSTJEN M. NIELSEN, et al., Defendants.



         Does the Department of Homeland Security have a policy or practice of detaining asylum-seekers in violation of its own guidance or regulations? The Court issued an Opinion on July 2, 2018, finding a likelihood that Defendants do have such a policy, leading it to enter a preliminary injunction. The Opinion did not, however, rule on DHS's Motion to Dismiss, which was filed amid briefing on preliminary relief. The parties now ask the Court to resolve that Motion.

         As the Government has acknowledged, most of its arguments in favor of dismissal of Plaintiffs' Administrative Procedure Act claims are foreclosed by the prior Opinion. The question that remains is whether Defendants' actions also violate the Due Process Clause. The Court, however, need not weigh in on this thorny constitutional issue. The “cardinal principle of judicial restraint” is that “if it is not necessary to decide more, it is necessary not to decide more.” PDK Labs., Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (concurring opinion of Roberts, J.). Since a decision on the extent of the asylum-seekers' due-process rights will not at this point affect the outcome of this case, avoidance is the proper course. The Court will, accordingly, deny the Motion to Dismiss this count, but it will do so without prejudice; as a result, in the event the constitutional claim ultimately becomes germane to adjudicating the rights of the parties, the Court may revisit it. Separately, the Court will grant DHS's Motion to Dismiss two individual Defendants from this case.

         I. Background

         The circumstances underlying this litigation were recounted at length in the Court's prior Opinion. See Damus v. Nielsen, 313 F.Supp.3d 317 (D.D.C. 2018). Only a short summary is thus needed to set the stage. The Court begins with a refresher on the legal landscape and then turns to the procedural history of this case.

         Under the Immigration and Nationality Act, non-citizens who seek asylum upon their arrival in the United States are referred to interviews to determine whether they have a credible fear of persecution or torture in their home countries. See 8 U.S.C. § 1225(b)(1)(A)(ii). If the interviewing officer finds that such a fear exists, the individual “shall be detained for further consideration of the application for asylum.” Id. § 1225(b)(1)(B)(ii). This detention authority, however, is not “entirely inflexible.” Damus, 313 F.Supp.3d at 323. Instead, asylum-seekers who are not security or flight risks can be paroled into the United States “for urgent humanitarian reasons or significant public benefit.” 8 C.F.R. § 212.5(b). In a 2009 Directive, Immigration and Customs Enforcement explained that parole would be appropriate under these provisions when an asylum-seeker establishes his identity and demonstrates that he is neither a flight risk nor a danger to the public. See ECF No. 22-1 (ICE Directive 11002.1), ¶ 6.2. This Directive also requires individualized assessments, written notices of the process, and explanations of decisions denying parole. Id., ¶¶ 6.1, 6.5.

         In March 2018, nine asylum-seekers who were detained after being denied parole filed this suit. See ECF No. 3 (Compl.), ¶¶ 1-2. On behalf of a class of similarly situated Plaintiffs, they asserted that five particular ICE Field Offices were not providing the individualized determinations required by the 2009 Directive. Id., ¶¶ 14-17. In support, they pointed to parole-denial rates at those offices nearing 100%, an almost complete reversal from the minimal denial rates maintained in the previous administration. Id., ¶¶ 37-39. Plaintiffs alleged that these actions violated the Administrative Procedure Act and the Due Process Clause. Id., ¶¶ 66-80. Soon thereafter, they filed motions for provisional class certification and for a preliminary injunction, which the Government opposed. See ECF Nos. 11 & 17. The Government also filed a Motion to Dismiss. See ECF No. 22 (MTD). Granting the asylum-seekers' motions, the Court entered an Order enjoining DHS from “denying parole to any provisional class members absent an individualized determination, through the parole process, that such provisional class member presents a flight risk or a danger to the community.” ECF No. 33 (PI Order) at 1. DHS's Motion, meanwhile, was held in abeyance. See Minute Order of July 10, 2019. After subsequent proceedings in which Plaintiffs were granted limited discovery related to the Government's compliance with the injunction, see ECF Nos. 41 & 52, the parties now ask the Court to rule on Defendants' Motion.

         II. Legal Standard

         In evaluating their Motion to Dismiss, the Court must “treat the complaint's factual allegations as true . . . and must grant [P]laintiff[s] ‘the benefit of all inferences that can be derived from the facts alleged.'” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005). The Court need not accept as true, however, “a legal conclusion couched as a factual allegation, ” nor an inference unsupported by the facts set forth in the Complaint. See Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

         Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a complaint fails “to state a claim upon which relief can be granted.” Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted). For a plaintiff to survive a 12(b)(6) motion, the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

         III. Analysis

         The Court first addresses the Government's arguments in favor of dismissing the A P A claims, all of which were addressed by the prior Opinion. It then moves on to the due-process count and two individual Defendants.

         A. APA Claims

         There is no need to linger on the APA claims, since DHS's objections on that score were squarely rejected in the Court's Opinion granting the motion for a preliminary injunction. Defendants contend that these causes of action should be dismissed because (1) the Court lacks jurisdiction under the INA to grant Plaintiffs relief; and (2) the claims are unsupported by sufficient factual allegations. See MTD at 10-15. As to the first, the Court previously concluded that the “alleged jurisdictional hurdles [we]re easily cleared by the asylum-seekers, and that their claims [could] therefore proceed.” Damus, 313 F.Supp.3d at 327. With regard to the second, the Court found, based on the “drastic decline in parole-grant rates at the five ICE Field Offices, and the affidavits by the named Plaintiffs and their counsel regarding the processing of their parole applications, ” that “Plaintiffs have demonstrated a likelihood of success on the merits of their [] claim ...

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