United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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.
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
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).
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.
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 ...