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Casa De Maryland v. U.S. Department of Homeland Security

United States District Court, D. Maryland

March 5, 2018

CASA DE MARYLAND, et al. Plaintiffs
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al. Defendants

          MEMORANDUM OPINION

          ROGER W. TITUS, UNITED STATES DISTRICT JUDGE.

         On October 5, 2017, Plaintiffs filed a Complaint seeking to enjoin rescission of a program known as Deferred Action for Childhood Arrivals (“DACA”), asserting a variety of claims as to why the rescission was unlawful. See ECF No. 1. Plaintiffs are a number of individual participants in that program known as “Dreamers, ” as well as a series of special interest organizations that deal with immigration policy issues and work directly with immigrants in the community. Id. at 11-21. Defendants are President Donald Trump, Attorney General Jeff Sessions, and a series of government agencies-the Department of Homeland Security (“DHS”), U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”), U.S. Customs and Border Protection (“CBP”)-as well as each agency's acting leader (secretary, director, or commissioner). Defendants collectively will be referred to as the “Government.” Each individual defendant is being sued in his or her official capacity. Id. at 21-22.

         Plaintiffs' Complaint alleges a number of causes of action-both administrative and constitutional-which they believe are proper grounds for relief. Plaintiffs assert that rescission of the DACA program was unlawful under the Administrative Procedure Act (“APA”) both (1) as an arbitrary and capricious decision and (2) for failure to follow notice-and-comment procedures. Id. at 54-58. Plaintiffs further allege that the DACA rescission was a violation of the Fifth Amendment on the grounds of procedural due process, substantive due process, and equal protection. Id. at 49-54. Plaintiffs seek injunctive relief on the basis of equitable estoppel both as to the DACA rescission itself and its information sharing policy. Id. at 58-59. Lastly, Plaintiffs seek declaratory relief that the DACA program is lawful. Id. at 59-60.

         On November 1, 2017, the Court held an in-person status conference in order to resolve the scheduling and logistical issues of this case. ECF No. 19. Thereafter on November 15, 2017, the Government filed a Motion to Dismiss or, in the Alternative, for Summary Judgment. ECF No. 27. On November 28, 2017, Plaintiffs responded in opposition, ECF No. 29, and on December 5, 2017, the Government replied in support of its Motion, ECF No. 30. The Court issued an Order on December 11, 2017 giving notice to the parties in accordance with Rule 56(f) that it may grant summary judgment for the non-moving party. See ECF No. 31. On December 15, 2017, the Court held a hearing on the Motion. ECF No. 34.

         I. BACKGROUND

         “Can we all get along?” - Rodney King [1]

         In recent years, many Americans have found themselves sharing Mr. King's sentiment. This Court previously noted, albeit in the context of congressional gerrymandering, that “[n]ever before has the United States seen such deep political divisions as exist today, and while the courts are struggling in their efforts to find a standard [for the adjudication of gerrymandering claims], the fires of excessive partisanship are burning and our national government is encountering deadlock as never before.” Fletcher v. Lamone, 831 F.Supp.2d 887, 905 (D. Md. 2011) (Titus, J., concurring), aff'd, 567 U.S. 930 (2012). Unfortunately, that 2011 observation still holds true today-perhaps even more so.

         This case is yet another example of the damaging fallout that results from excessive political partisanship. The highly politicized debate surrounding the DACA program has thus far produced only rancor and accusations. During the recent debate over the rescission of DACA, the program even turned into a bargaining chip that resulted in a brief shutdown of the entire federal government earlier this year.[2] In order to adequately resolve the legal issues of this case, it is important to step back from the heated rhetoric and understand the context under which DACA was promulgated and rescinded.

         The Dream Act-a Lengthy History of Failed Legislation

         The Constitution reserves the power to enact immigration policy to the legislative branch. U.S. Const. art. I, § 8 (“[T]o establish a uniform rule of naturalization”). However, the “supervision of the admission of aliens into the United States may be intrusted by [C]ongress” to the executive branch. Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892). For over a decade at the start of the 21st century, Congress quarreled over policies regarding illegal aliens who entered the country as children, and who may have no memory or connection with their country of origin. Would the world's beacon of freedom-a nation founded by immigrants- cast out an immigrant population that was likely brought here without choice and who likely now knows no other home? While “no” would seem to be the obvious answer, ordinary logic has eluded our Congress.

         “Dreamers” are neither constitutionally nor statutorily defined. Rather, the concept of protection for “Dreamers” arises from repeated congressional failures to act, and presidential action taken in their wake. A series of congressional sessions marked by bitter strife and inaction left the country without any protections for persons brought here illegally as children. The first attempt at a Development, Relief, and Education for Alien Minors (“DREAM”) Act came in 2001, and although it took on many names in subsequent years, the repeated attempts to pass this legislation were filibustered, abandoned, or defeated on the floor.[3] As illustrated by the frequency of bills proposed, Dreamer legislation reached its zenith during late 2010 in the 111thSession of Congress. On December 8, 2010, the House of Representatives actually passed the DREAM Act.[4] However, like all other iterations of this controversial legislation, its fate was doomed-this time, less than two weeks later on the Senate floor.[5]

         DACA-an Act of Desperation Born of Frustration with a Paralyzed Congress

         President Obama's administration, faced with the reality that Congress could do little more than squabble regarding the Dreamers, decided to take action on its own. On June 15, 2012, then-Secretary of Homeland Security, Janet Napolitano, issued a memorandum promulgating by executive action what is now known as DACA (“DACA Memo”).[6] DACA protections were afforded to the same class of immigrants foreseen by the various failed iterations of Dreamer legislation. The primary qualifications for DACA protections were that an individual must (1) have come to the U.S. before the age of sixteen, (2) meet various education or military service requirements, (3) not have a criminal record, and (4) register prior to the age of thirty.[7]

         DACA was issued under a theory of “prosecutorial discretion” and “deferred action” and essentially permitted otherwise illegal aliens to remain in the United States without fear of deportation.[8] While some heralded DACA as a victory, others decried it as executive overreach-usurping the powers of Congress to promulgate immigration policy.[9] Over the course of the next five years, approximately 800, 000 Dreamers registered for DACA protections.

         Phase II: DAPA

         Soon thereafter, the executive branch sought to expand its use of deferred action beyond the Dreamers. On November 20, 2014, then-Secretary of Homeland Security, Jeh Charles Johnson, issued a pair of memoranda in an attempt to promulgate what is now known as Deferred Action for Parents of Americans (“DAPA”), as well as a series of minor expansions for DACA.[10]

         Less than a month later, DAPA was met with a legal challenge when Texas and twenty-five other states sued to enjoin implementation of the program. See generally Texas v. United States, 86 F.Supp.3d 591 (S.D. Tex. 2015). In that case, DAPA was struck down by the district court, see id., and a divided Fifth Circuit panel affirmed the decision, see 809 F.3d 134 (5th Cir. 2015). In June 2016, an equally divided Supreme Court affirmed the decision. See United States v. Texas, 136 S.Ct. 2271, 2272 (2016). In addition to finding DAPA and the expansions of DACA unlawful, the judicial decisions throughout the DAPA litigation illustrate two key realities: (1) challenges to DAPA or analogous immigration programs promulgated by DHS without approval by Congress are justiciable; and (2) reasonable legal minds may differ regarding their lawfulness.

         Aside from the classes of immigrants to which each applies, DACA and DAPA are largely similar programs addressing different classes or subcategories of immigrants. While DACA affects a population of approximately 800, 000 otherwise illegal aliens, DAPA would have affected nearly half of the 11, 000, 000 immigrants currently in the United States unlawfully. See Texas v. United States, 787 F.3d 733, 745 (5th Cir. 2015). DAPA was challenged and defeated before the program was ever successfully promulgated, while DACA has run for approximately half of a decade before the threat of any litigation.

         A Change in Administration and a Corresponding Change in Immigration Philosophy

         The 2016 presidential election brought a change in leadership of the executive branch and, with it, significant changes in immigration views and philosophies.[11] In June of 2017, and with the defeat of DAPA directly in the rear-view mirror, Texas and other state plaintiffs sent a letter threatening to challenge DACA if it were not rescinded by September 6, 2017.[12] Attorney General Jeff Sessions advised the Acting Secretary of Homeland Security, Elaine Duke, that DACA was likely unlawful and headed for another legal battle.[13] On September 5, 2017, Acting Secretary Duke issued a memorandum (“DACA Rescission Memo”) outlining a six-month wind down of DACA to expire March 5, 2018.[14]

         According to the Administrative Record, the basis for the decision to rescind DACA was its presumed unlawfulness in the wake of the DAPA litigation and the threat of imminent legal challenge. The agency's reasoning is substantiated by the legal advice of the Attorney General and the fact that the memorandum was issued the day before the state parties had threatened to act. A six-month wind down period was provided to avoid the potential for chaos if a court decision resulted in immediate termination, and the President urged Congress to pass Dreamer-protection legislation.[15]

         Complicating the picture for some observers is the unfortunate and often inflammatory rhetoric used by President Trump during the campaign, as well as his Twitter pronouncements, both before and after his election. Thoughtful and careful judicial review is not aided when the President lobs verbal hand grenades at the federal courts, the Department of Justice, and anyone else with whom he disagrees.

         As disheartening or inappropriate as the President's occasionally disparaging remarks may be, they are not relevant to the larger issues governing the DACA rescission. The DACA Rescission Memo is clear as to its purpose and reasoning, and its decision is rationally supported by the Administrative Record. See generally Kleindienst v. Mandel, 408 U.S. 753, 770 (1972) (“[W]hen the Executive exercises [a congressionally delegated power of immigration policies and rules for the exclusion of aliens] negatively on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion.”); Hamdan v. Rumsfeld, 548 U.S. 557, 623-24 n.52 (2006) (“We have not heretofore, in evaluating the legality of executive action, deferred to comments made by such officials to the media.”).[16]

         The executive branch may have the authority to exercise or not exercise prosecutorial discretion as it sees fit, and an agency certainly may refrain from action it reasonably believes to be unlawful. Under the Constitution, it is the responsibility of Congress to determine immigration policy, and the executive branch must only act within its constitutional and delegated legislative authority. Although Congress has repeatedly failed to pass Dreamer legislation in the past, the ball is again in its court. And with 87 percent of Americans favoring some sort of DACA-esque protections, the elected members of Congress should understandably feel the pressure now that the President has deferred to them-in short, Congress needs to get the job done now that their authority has been recognized by court decisions and the President.[17]

         Other DACA Litigation

         Various plaintiffs have filed lawsuits seeking to enjoin the DACA rescission throughout the country-specifically in this Court, the Eastern District of New York, the Northern District of California, and the District of the District of Columbia. These cases are at various stages, but preliminary injunctions have already been granted by the Eastern District of New York and the Northern District of California.[18] With regard to the California case, the Government attempted to bypass the Ninth Circuit and directly petitioned the Supreme Court for a writ of certiorari before judgment.[19] On February 26, 2018, the Supreme Court denied the petition without prejudice, and noted that “[i]t is assumed that the Court of Appeals [for the Ninth Circuit] will proceed expeditiously to decide this case.”[20]

         All courts reviewing the DACA rescission would benefit from a prior generation's wisdom regarding the separation of powers: “A sturdy judiciary should not be swayed by the unpleasantness or unpopularity of necessary executive action, but must independently determine for itself whether the President was acting, as required by the Constitution, to ‘take Care that the Laws be faithfully executed.'” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 709 (1952).[21]

         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. Any alternative inquiry would impermissibly require a court to “substitute its judgment for that of the agency.” See Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 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.

         II. STANDARD OF REVIEW

         Motion to Dismiss.

         The purpose of a motion to dismiss under Rule 12(b)(6) is “to test the sufficiency of a complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The Supreme Court has further articulated the standard applicable to Rule 12(b)(6) motions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Rule 8 “requires a ‘showing, ' rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 556 n.3. To survive a motion to dismiss, a complaint must put forth “plausible claim[s] for relief.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         Motion for Summary Judgment.

         Summary judgment is proper under Fed.R.Civ.P. Rule 56(a) if there is no genuine dispute over any material facts, and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir. 2006). A material fact is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A dispute of material fact is genuine if the evidence would allow the trier of fact to return a verdict for the nonmoving party. Id. When considering a summary judgment motion, the court has “an affirmative obligation . . . to prevent ‘factually unsupported claims or defenses' from proceeding to trial.” Felty v. Grave-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (citing Celotex, 477 U.S. at 323-24). Thus, the court may only rely on facts supported in the record, not assertions made in the pleading. Id. Moreover, the court must view all facts and make all reasonable inferences in the light most favorable to the nonmoving party. Matsuhita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party must present more than a “mere scintilla” of evidence to demonstrate a genuine issue of material fact that would preclude summary judgment. Anderson, 477 U.S. at 252.

         III. ANALYSIS

         a. Justiciability

         “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.” See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). Congress has the authority to expand or limit federal district court jurisdiction by statute. However, federal courts possess an inherent jurisdiction (under Article III and the fundamental principles of due process) over certain cases relating to the enforcement of the Constitution that cannot be limited by Congress. See, e.g., Webster v. Doe, 486 U.S. 592, 603 (1988) (permitting federal district court jurisdiction when necessary “to avoid the serious constitutional question that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.”).

         The Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. However, federal courts may only review “cases and controversies” if they are justiciable. See generally Flast v. Cohen, 392 U.S. 83, 94-99 (1968) (discussing the doctrine of justiciability as “a blend of constitutional requirements and policy considerations”). A case may lack justiciability when it involves a political question and implicates concerns regarding the separation of powers between the judiciary and one of the other branches of government. See, e.g., Baker v. Carr, 369 U.S. 186, 210-11 (1962) (“Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed . . . is a responsibility of this Court as ultimate interpreter of the Constitution.”). While executive actions may often involve otherwise unreviewable political questions, federal courts always retain the power to review matters of constitutional violations. See Id. Accordingly, the Court need not reach back to Marbury v. Madison, 5 U.S. 137 (1803), to support the conclusion that Plaintiffs' constitutional claims are justiciable.

         Turning to Plaintiffs' remaining claims, the Court is required to determine if judicial review has been limited by Congress under the APA. The plain language of the APA- specifically, 5 U.S.C. §§ 701, 702-indicates a presumption for judicial review, at least to the procedures surrounding agency decision-making (but not necessarily to the substance of those decisions). See generally Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967) (restating “the basic presumption of judicial review” for APA claims “so long as no statute precludes such relief or the action is not one committed by law to agency discretion”).[22] Under 5 U.S.C. § 701(a), the only two exceptions are when: “(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.”

         The Government argues both exceptions-that 8 U.S.C. § 1252(g) precludes judicial review, and that the DACA rescission is “committed to agency discretion” because it is a matter of prosecutorial discretion, see United States v. Armstrong, 517 U.S. 456, 464 (1996), immigration enforcement, see Arizona v. United States, 567 U.S. 387, 396-97 (2012), and deferred action generally, see Reno v. Am.-Arab Anti-Discrimination Comm. (AADC), 525 U.S. 471, 485 (1999). See ECF No. 27-1 at 29-30.

         However, the notion that 8 U.S.C. § 1252(g) precludes judicial review has been rejected repeatedly. See, e.g., AADC, 525 U.S. at 482 (explicitly rejecting that § 1252(g) serves as a zipper clause that functions to prohibit all judicial review). Furthermore, while DHS possesses specified delegated authority over immigration enforcement, Congress never explicitly granted DHS a blanket authority to disparately enforce policies.

         Plaintiffs' APA claims are justiciable because they relate to the procedures followed by DHS-not to the substance of its policy or its decision of a specific case. The Court may review whether the repeal of DACA followed the correct APA procedures. Furthermore, it is important to note that the Government's explanation for rescinding DACA was the Secretary's belief that the program was unlawful and would face lengthy legal challenges. The similarities between DACA and DAPA support justiciability in this case because review of DAPA was also found to be justiciable. See Texas v. United States, 809 F.3d 134, 155-64 (5th Cir. 2015) (“Congress has expressly limited or precluded judicial review of many immigration decisions . . . but DAPA is not one of them.”), aff'd, 136 S.Ct. 2271 (2016).[23]

         Accordingly, the Court finds all claims in Plaintiffs' Complaint are justiciable.

         b. ...


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