Balde v. Duke

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ARACELY, R., et al., :
:
Plaintiffs, : Civil Action No.: 17-1976 (RC)
:
v. : Re Document Nos.: 38, 55, 61, 75, 79,
: 89, 90
KIRSTJEN NIELSEN, :
SECRETARY, UNITED STATES :
DEPARTMENT OF :
HOMELAND SECURITY, et al., :
:
Defendants. :
MEMORANDUM OPINION
DENYING DEFENDANTS’ MOTION TO TRANSFER VENUE; GRANTING PLAINTIFFS’ MOTIONS TO
SUPPLEMENT THEIR PRELIMINARY INJUNCTION APPLICATION AND EXHIBITS; AND GRANTING
IN PART PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
I. INTRODUCTION
Every day, individuals fleeing persecution and violence in their home countries seek
asylum within our borders. And every day, United States immigration officials must determine
whether to admit these individuals or reject them. This case concerns what happens to these
individuals while their requests for asylum are considered. Plaintiffs undertook perilous
journeys to reach our borders, submitted asylum petitions, and were detained in what they claim
to be prison-like conditions for an extended period of time while their petitions were evaluated.
They contend that their detention without access to a bond hearing before an immigration judge
violated their constitutional rights. They also contend that immigration officials routinely and
systematically failed to abide by a binding, official agency directive governing parole
determinations, and instead applied an unwritten, unconstitutional policy promulgated by top
1
policy makers. In the absence of this unwritten policy, Plaintiffs argue, they would have been
conditionally paroled into the United States.
Presently before the Court are two preliminary motions. First, Defendants seek to
transfer this litigation’s venue from the District of Columbia to the Southern District of Texas.
Second, Plaintiffs seek preliminary injunctive relief granting them bond hearings before
immigration judges, and compelling Defendants to comply with the official directive and halt the
alleged unwritten policy. For the reasons explained below, the Court denies Defendants’
motion, and grants Plaintiffs’ motion in part.
II. BACKGROUND
A. Statutory and Regulatory Framework
This case concerns statutes and regulations within the scope of the Immigration and
Nationality Act (“INA”). See 8 U.S.C. § 1101 et seq. The INA sets forth the conditions under
which a foreign national may be admitted to and remain in the United States, and it grants the
Department of Homeland Security (“DHS”) the discretion to initiate removal proceedings. See,
e.g., id. §§ 1181–1182, 1184, 1225, 1227–1229, 1306, 1324–25. Within DHS, Immigration and
Customs Enforcement (“ICE”) is the department that is primarily charged with administering the
INA. See 6 U.S.C. §§ 111, 251, 291. The interactions relevant to this action involved ICE
officials.
Plaintiffs are “arriving aliens” from outside of the United States who surrendered to ICE
at United States ports of entry, sought asylum (“POE asylum seekers”), and were detained
pursuant to 8 U.S.C. §§ 1158(a)(1) and 1225(b). 1 Section 1225(b) provides that if a non-citizen
1
“Arriving alien means an applicant for admission coming or attempting to come into the
United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-
2
“who is arriving in the United States” indicates an intention to apply for asylum or expresses a
fear of persecution or torture, the individual must be interviewed to determine whether he or she
has a “fear of persecution.” 2 8 U.S.C. § 1225(b)(1)(A)(ii). If the individual is determined to
have a credible fear of persecution, he or she “shall be detained for further consideration of the
application for asylum.” Id. § 1225(b)(1)(B)(ii). ICE officials determined that each Plaintiff had
a credible fear of persecution, so Plaintiffs’ detentions were governed by § 1225(b)(1)(B)(ii).
An individual detained under § 1225(b)(1)(B)(ii) can be paroled “into the United States
temporarily” by the Attorney General “in his discretion.” Id. § 1182(d)(5)(A). 3 Agency
regulations provide that the Secretary of Homeland Security “may invoke” this parole authority
for an individual who is “neither a security risk nor a risk of absconding” and meets one or more
of a series of conditions, one of which is that “continued detention is not in the public interest.” 8
C.F.R. § 212.5(a), (b)(5). 4 Plaintiffs contend that they met, and continue to meet, this condition.
entry, or an alien interdicted in international or United States waters and brought into the United
States by any means, whether or not to a designated port-of-entry, and regardless of the means of
transport. An arriving alien remains an arriving alien even if paroled pursuant to section
212(d)(5) of the Act, and even after any such parole is terminated or revoked.” 8 C.F.R. § 1.2.
2
A credible fear of persecution is defined as follows: “there is a significant possibility,
taking into account the credibility of the statements made by the alien in support of the alien's
claim and such other facts as are known to the officer, that the alien could establish eligibility for
asylum under [8 U.S.C. § 1158].” 8 U.S.C. § 1225(b)(1)(B)(v).
3
Plaintiff Sadat I. was initially detained under § 1225(b) and denied parole, but an
immigration judge subsequently rejected his asylum petition. He is currently seeking to re-open
his petition, at which point he will be eligible for discretionary release under 8 C.F.R. § 241.4.
Plaintiffs claim that ICE’s release determinations under this provision “have been equally
impacted by Defendants’ new policy of heavily weighing immigration deterrence.” Pls.’ Am.
Mem. at 7 n.13. That claim is discussed below.
4
Section 212.5(b) governs parole of the following subgroups of POE asylum seekers:
(1) aliens who have serious medical conditions, where continued detention would not be
appropriate; (2) women who have been medically certified as pregnant; (3) certain juveniles;
(4) aliens who will be witnesses in proceedings being, or to be, conducted by judicial,
administrative, or legislative bodies in the United States; or (5) aliens whose continued detention
3
Parole under § 212.5, however, “shall not be regarded as an admission of the alien.” 8
U.S.C. § 1182(d)(5)(A). Instead, when the purpose of the parole has been served, “the alien shall
forthwith return or be returned to the custody from which he was paroled and thereafter his case
shall continue to be dealt with in the same manner as that of any other applicant for admission to
the United States.” Id. Further, immigration judges do not have authority under §
1225(b)(1)(B)(ii) to review ICE’s parole decisions for POE Asylum Seekers. See 8 C.F.R. §
1003.19(h)(2)(i)(B). In other words, a POE asylum seeker may be paroled into the United States
after passing a credible fear interview, but that individual is still considered an “arriving alien”
under the law, ICE may revoke the parole at any time, and ICE’s parole determination is not
subject to review by an immigration judge.
A 2009 directive issued by ICE sets forth certain procedures that must be utilized and
factors that, according to Plaintiffs, must be considered when evaluating parole requests under 8
C.F.R. § 212.5. ICE Directive No. 11002.1: Parole of Arriving Aliens Found to Have a Credible
Fear of Persecution or Torture (“Morton Directive” or the “Directive) (Dec. 8, 2009), Pls. Am.
Mem. P. & A. Supp. Mot. Prelim. Inj. (“Pls.’ Am. Mem.”) Ex. 13, ECF No. 74-16. More
specifically, the Morton Directive explains how the term “public interest” in § 212.5(b)(5) is to
be interpreted. According to the Directive, when an arriving alien found to have a credible fear
of persecution establishes, to the satisfaction of ICE, his or her identity and that he or she
presents neither a flight risk nor a danger to the community, “[ICE] should, absent additional
is not in the public interest. Because of a severe bone infection that Plaintiffs claim was not
properly treated during her detention, Plaintiff Aracely I. was ultimately paroled under §
212.5(b)(1). She may, however, be re-detained at any point under § 1182(d)(5)(A).
4
factors . . . parole the alien on the basis that his or her continued detention is not in the public
interest.” Id. ¶ 8.3.
B. Factual Background and Procedural History
Plaintiffs are three aliens—Mikailu J., Aracely R., and Sadat I.—who came to the United
States seeking asylum. The following is a brief description of each Plaintiff’s journey to this
country.
Aracely R.
Aracely R. fled Guatemala by car in 2016 with her eight-year old daughter. Decl. of
Celinda Aracely R. (“Aracely Decl.”) ¶ 2, Pls.’ Am. Mem. Ex. 1, ECF No. 74-2. While driving
through Mexico on the way to the United States, their car overturned, killing Aracely’s daughter
and severely injuring Aracely’s leg. Id. Aracely ultimately reached Hidalgo, Texas, requested
asylum at the border, passed her credible fear interview, and was detained under §
1225(b)(1)(B)(ii). Id. ¶ 6. According to Aracely, she submitted to ICE officials two sponsorship
letters from family members, and a copy of her national identification card in support of her
request for parole. Id. She was detained for nearly a year, despite requesting parole at least
once. Id.; Decl. of Deborah Achim (“Achim Decl.”) ¶ 6, Defs.’ Opp’n Pls.’ Mot. Prelim. Inj.
(“Defs.’ Opp’n”), ECF No. 63-1. In early 2018 her injured leg required emergency surgery, so
she was paroled and permitted to travel to California to receive treatment. Pls.’ Am. Mem. at 2
n.4, ECF No. 74-1.
Mikailu J.
Mikailu J. fled Sierra Leone in early 2017. Decl. of Mikailu J. (“Mikailu Decl.”) ¶ 4,
Pls.’ Am. Mem. Ex. 4, ECF No. 74-6. He requested asylum at the Brownsville, Texas port of
entry, passed his credible fear interview, and was detained pursuant to § 1225(b)(1)(B)(ii). Id. ¶¶
5
5–7. According to Mikailu, he submitted to ICE officials copies of his national identification
card, his press card, his school identification card, and a letter from a relative offering him full
sponsorship in the United States in support of his requests for parole. Id. ¶ 8. He has been
denied parole three times, and is currently detained in the Laredo, Texas Detention Center. Id.
¶¶ 8–9; Achim Decl. ¶ 8.
Sadat I.
Sadat I. fled Ghana in late 2015. Decl. of Sadat I. (“Sadat Decl.”) ¶ 4, Pls.’ Am. Mem.
Ex. 3, ECF No. 74-5. After an arduous journey, Sadat requested asylum at the San Diego,
California port of entry, passed his credible fear interview, and was detained pursuant to §
1225(b)(1)(B)(ii). Id. ¶¶ 5–7. According to Sadat, he submitted to ICE officials his national
identification card, a copy of his passport, a criminal background check, and sponsorship letters
from his uncle and a non-governmental organization in Texas in support of his request for parole.
Id. ¶ 8. Although he requested parole, he never received it. Id. ¶¶ 7–8. Plaintiffs do not clearly
explain his current status, but it appears that his petition for asylum was denied in 2016, and he
remains detained pending a motion in the Eleventh Circuit to re-open his petition. Id. ¶ 11; Pls.’
Am. Mem. at 7 n.13. If this is true, his detention is pursuant to § 1231(a)(6) rather than §
1225(b), and his parole is governed by 8 C.F.R. § 241.4 rather than § 212.5. Id.
Former Plaintiffs
In addition to these three individuals, Plaintiffs have submitted declarations from two
former plaintiffs, Hatim B. and Junior M., who also requested asylum at a port of entry, passed
their credible fear interviews, and were detained without parole. Hatim B. was granted asylum in
early 2018 and has been fully released into the United States. See Pls.’ Am. Mem. at 9 n.14.
Junior M. returned to his home country of Honduras. Id. at 3.
6
Plaintiffs claim that they were denied parole because of a de facto immigration policy
promulgated by high-level officials in Washington D.C. Pls.’ Updated Mem. Opp’n Defs.’ Mot.
Transfer Venue at 4, ECF No. 64. Specifically, Plaintiffs claim that DHS responded to a surge in
asylum seekers beginning in 2014 by instituting policies designed to “serve as a deterrent to
asylum seekers by forcing them to either endure prolonged detention or risk the grave perils
involved in unlawful entries.” Third Am. Compl. (“TAC”) ¶¶ 42–44, 62, ECF No. 73. Plaintiffs
further contend that “to achieve this result, Defendants initiated an unwritten practice and policy,
ordering local officials to heavily weight immigration deterrence in deciding parole and similar
forms of release.” Id. ¶ 52. For instance, and as described in more detail below, Plaintiffs cite
data compiled by a non-profit human rights organization, Human Rights First, 5 indicating that
the parole release rate of the asylum seekers who crossed a U.S. Port of Entry was 80 percent in
2012, but dropped to 47 percent in 2015. Id. ¶ 56 (citing Human Rights First, Lifeline on
Lockdown at 13 (July 2016)). Plaintiffs argue that “[s]uch planned, systematic denials of parole
to eligible POE seekers constitute an official agency policy.” TAC ¶ 59. They also suggest that
Defendants re-emphasized this policy after the 2016 Presidential election. See Pls.’ Am. Mem.
at 17–18.
Plaintiffs argue that their parole requests should have been granted under both
international and domestic laws. Id. ¶¶ 27, 31. In particular, Plaintiffs cite that the United States
adopted Article 2−34 of the 1951 United Nations Convention Relating to the Status of Refugees
(“Refugee Convention”) and promulgated the Refugee Act of 1980, “which required the United
5
According to its webpage, “Human Rights First is a non-profit, nonpartisan
international human rights organization based in New York, Washington D.C., Houston, and Los
Angeles.” Human Rights First, https://www.humanrightsfirst.org/about (last visited March 9,
2018).
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States to establish procedures for noncitizens physically present . . . at a port of entry to apply for
asylum.” 6 Id. ¶¶ 27−28. Article 31 of the Refugee Convention provides that “states shall not
impose penalties on refugees for illegal entry or presence.” Id. ¶ 26
Defendants are government officials who implemented or enforced the alleged
immigration deterrence policy. 7 Id. ¶ 83. The Secretary of Homeland Security and certain ICE
officials, including those who “established, developed and promoted the current binding policy”
reside in Washington D.C. Defs’ Suppl. Brief Mot. Transfer Venue (“Defs. Suppl. Br.”) at 6,
ECF No. 67. But, some ICE officials, including those who evaluated Plaintiffs’ specific parole
requests, reside in Texas. Id. at 7.
Plaintiffs filed this suit in late 2017, alleging that (1) ICE’s parole denials based on the
nation-wide, de facto immigration deterrence policy violates Plaintiffs’ First and Fifth
Amendment rights under the United States Constitution and is arbitrary and capricious in
violation of the Administrative Procedure Act (“APA”); and (2) they are constitutionally entitled
to bond hearings before immigration judges. See generally Compl., ECF No. 1 They have since
amended their complaint on three occasions due to their changing personal circumstances and
6
The complaint also cites other treaties ratified by the United States, including the
International Covenant on Civil and Political Rights and the Convention against Torture and
Other Cruel, Degrading or Inhuman Punishment. TAC ¶ 29.
7
Named Defendants include: Kirstjen Nielsen, Secretary of Homeland Security; Thomas
Homan, Acting Director of ICE; Matthew Albence, ICE Executive Associate Director of
Enforcement and Removal Operations; Phillip Miller, ICE Deputy Executive Assistant Director
of Enforcement and Removal Operations; Nathalie Asher, ICE Assistant Director of Field
Operations for Enforcement and Removal Operations; Tae Johnson, ICE Assistant Director for
Custody Management for Enforcement and Removal Operations; Daniel Bible, ICE Field Office
Director for Enforcement and Removal Operations; Janie Bennet, ICE Assistant Field Office
Director, Port Isabel Detention Center; Fnu Aguirre, ICE officer; William Oestreich, ICE officer;
Andrew Huron, ICE Assistant Field Office Director, South Texas Detention Center; Fnu Groll,
ICE Officer; Robert Cerna, ICE Assistant Field Office Director, Laredo Detention Center; Fnu
Gamez, ICE Officer; John Doe, ICE Headquarters Post Order Detention Unit; and Health Simon,
ICE Headquarters Post Order Detention Unit.
8
the shifting legal landscape, but their core allegations and relief sought have not changed. See
generally Am. Compl., ECF No. 7; Second Am. Compl., ECF No. 56; TAC. Shortly after the
complaint was filed, Defendants moved to change the litigation’s venue to the Southern District
of Texas. See generally Mot. Transfer Venue, ECF No. 38. Plaintiffs moved for a preliminary
injunction in early February 2018, and they amended that motion in March. See generally Mot.
Prelim. Injunction, ECF No. 54; Pls.’ First Am. Appl. Prelim. Inj., ECF No. 74. Finally,
Plaintiffs moved to amend their preliminary injunction for a third time in late April 2018. See
generally Mot. Supp. Appl. Prelim. Injunction, ECF No. 79. Now ripe for the Court’s
consideration are (1) Defendants’ motion to change venue; (2) Plaintiffs’ motion to amend their
application for a preliminary injunction and update their exhibits in support of that application;
and (3) Plaintiffs’ motion for a preliminary injunction.
III. LEGAL STANDARDS
A. Venue Transfer
Even when venue is properly laid in a given judicial district, “[f]or the convenience of
parties and witnesses, in the interest of justice, a district court may transfer any civil action to
any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). “The idea
behind § 1404(a) is that where a ‘civil action’ to vindicate a wrong—however brought in a
court—presents issues and requires witnesses that make one District Court more convenient than
another, the trial judge can, after findings, transfer the whole action to the more convenient
court.” Vasser v. McDonald, 72 F. Supp. 3d 269, 281 (D.D.C. 2014) (citing Continental Grain
Co. v. Barge F.B.L. 585, 364 U.S. 19, 26 (1960)). “[T]he main purpose of section 1404(a) is to
afford defendants protection where maintenance of the action in the plaintiff’s choice of forum
9
will make litigation oppressively expensive, inconvenient, difficult or harassing to defend.”
Starnes v. McGuire, 512 F.2d 918, 927 (D.C. Cir. 1974) (en banc).
B. Preliminary Injunction
“[A] preliminary injunction is an injunction to protect [the movant] from irreparable
injury and to preserve the court’s power to render a meaningful decision after a trial on the
merits.” Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 954 (D.C. Cir. 2005) (quoting
11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedures
§ 2947 (2d ed. 1992)). “[T]he decision to grant injunctive relief is a discretionary exercise of the
district court’s equitable powers.” John Doe Co. v. CFPB, 235 F. Supp. 3d 194, 201 (D.D.C.
2017) (quoting Sea Containers Ltd. v. Stena AB, 890 F.2d 1205, 1209 (D.C. Cir. 1989)). A
preliminary injunction is an “extraordinary remedy,” and one that is “never awarded as of right.”
Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 9 (2008).
To warrant preliminary injunctive relief, the moving party “must establish that he is
likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of the equities tips in his favor, and that an injunction is in the
public interest.” Id. at 20. Of these factors, likelihood of success on the merits and irreparable
harm are particularly crucial. See Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011)
(reading Winter “to suggest if not to hold ‘that a likelihood of success is an independent, free-
standing requirement for a preliminary injunction’”); Chaplaincy of Full Gospel Churches v.
England, 454 F.3d 290, 297 (D.C. Cir. 2006) (“[A] movant must demonstrate at least some
injury for a preliminary injunction to issue, for the basis of injunctive relief in federal courts has
always been irreparable harm.” (internal citations and quotation marks omitted)).
10
Furthermore, “if the requested relief ‘would alter, not preserve, the status quo,’ the court
must subject the plaintiff's claim to a somewhat higher standard.” Paleteria La Michoacana, Inc
v. Productos Lacteos Tocumba S.A. de C.V., 901 F. Supp. 2d 54, 56 (D.D.C. 2012) (quoting
Veitch v. Danzig, 135 F. Supp. 2d 32, 35 (D.D.C. 2001)); see also Singh v. Carter, 185 F. Supp.
3d 11, 17 n.3 (D.D.C 2016); Columbia Hosp. for Women Found., Inc. v. Bank of Tokyo–
Mitsubishi Ltd., 15 F. Supp. 2d 1, 4 (D.D.C. 1997). Because Plaintiffs seek to alter—not
preserve—the status quo, the Court will exercise extreme caution in assessing Plaintiffs’
invitation to invoke the court's extraordinary equitable powers. See Allina Health Servs. v.
Sebelius, 756 F. Supp. 2d 61, 70 n.5 (D.D.C. 2010).
C. Administrative Procedure Act
The APA governs the conduct of federal administrative agencies. 5 U.S.C. §§ 101–913.
It permits a court to “compel agency action unlawfully withheld or unreasonably delayed,” and
to “hold unlawful and set aside agency action, findings and conclusions found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706. The
APA provides for judicial review of all “final agency action for which there is no other adequate
remedy in court,” id. § 704, except when “statutes preclude judicial review” or the “agency
action is committed to agency discretion by law,” id. § 701(a).
IV. VENUE TRANSFER ANALYSIS
The Court first considers Defendants’ motion under 28 U.S.C. § 1404(a) to transfer the
action to the Southern District of Texas, and their related argument that Plaintiffs’ claims may
only be raised through a habeas corpus petition. The Court is unpersuaded by both arguments.
11
A. Habeas Corpus
The Court first considers whether, as asserted by Defendants during the March 2, 2018
motion hearing and in many of their briefs, Plaintiffs must bring their claims through a habeas
petition. Generally, jurisdiction for a core habeas petition challenging present physical
confinement lies only in the district of confinement. Rumsfeld v. Padilla, 542 U.S. 426, 443
(2004). Thus, if Defendants are correct that Plaintiffs may only seek relief by way of a habeas
petition, this Court would likely lack jurisdiction because none of the Plaintiffs are confined in
this District.
However, Plaintiffs have not brought their claims by way of a habeas petition, nor are
they required to do so. Indeed, “a federal prisoner need bring his claim in habeas only if success
on the merits will ‘necessarily imply the invalidity of confinement or shorten its duration.’”
Davis v. U.S. Sentencing Comm’n, 716 F.3d 660, 666 (D.C. Cir. 2013) (quoting Wilkinson v.
Dotson, 544 U.S. 74, 82 (2005)). “Otherwise, he may bring his claim through a variety of causes
of action.” Id. Here, Plaintiffs challenge (1) what they claim is a de facto policy of denying
parole to asylum seekers, in violation of the APA; and (2) their detention without access to a
bond hearing by an immigration judge, in violation of the Constitution. If Plaintiffs are
successful and this Court enjoins Defendants from adhering to any such policy and requires that
Plaintiffs be given bond hearings, that ruling would not necessarily imply that their confinement
is invalid or otherwise should be shorter, because their parole could still be denied for other
legitimate reasons.
Indeed, other courts in this jurisdiction facing challenges to similar nation-wide
immigration policies have rejected the notion that detainees must proceed through a habeas
petition. See R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 186 (D.D.C. 2015) (“although Congress
12
has expressly limited APA review over individual deportation and exclusion orders, see 8 U.S.C.
§ 1252(a)(5), it has never manifested an intent to require those challenging an unlawful,
nationwide detention policy to seek relief through habeas rather than the APA.”). Although, as
Defendants regularly note, many of the relevant cases challenging the government’s treatment of
asylum seekers lie in habeas, those cases do not stand for the proposition that they could only
have been brought as habeas petitions. See Davis, 716 F.3d at 666 (holding that a federal
prisoner need not bring an equal protection challenge to his sentence by means of a habeas
petition because “[s]uccess would do no more than allow him to seek a sentence reduction,
which the district court retains the discretion to deny”). Accordingly, Plaintiffs may proceed on
their claims under the APA and the Constitution, and jurisdiction is proper in the District of
Columbia.
B. Venue
The Court now turns to its venue analysis. Defendant moves to transfer this case to the
Southern District of Texas pursuant to 28 U.S.C. § 1404(a). Section 1404(a) “vests ‘discretion in
the district court to adjudicate motions for transfer according to an individualized, case-by-case
consideration of convenience and fairness.’” Reiffin v. Microsoft Corp., 104 F. Supp. 2d 48, 50
(D.D.C. 2000) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). When venue
is properly laid in this jurisdiction, “[t]ransfer elsewhere under Section 1404(a) must . . . be
justified by particular circumstances that render [this] forum inappropriate by reference to the
considerations specified in that statute. Absent such circumstances, transfer in derogation of
properly laid venue is unwarranted.” Starnes, 512 F.2d at 925–26.
The statute “directs a district court to take account of factors other than those that bear
solely on the parties’ private ordering of their affairs. The district court also must weigh in the
13
balance the convenience of the witnesses and those public-interest factors of systemic integrity
and fairness that, in addition to private concerns, come under the heading of ‘the interest of
justice.’” Stewart Org., 487 U.S. at 30. However, the precise “standards to be considered in
determining whether to grant or deny a section 1404(a) motion to transfer are generally . . . left
to the discretion of the trial court,” SEC v. Page Airways, Inc., 464 F. Supp. 461, 463 (D.D.C.
1978), which is “broad” but “not untrammeled,” Fine v. McGuire, 433 F.2d 499, 501 (D.C. Cir.
1970) (per curiam) (noting that the trial court must “give consideration to the traditional [forum
non conveniens] factors, including the plaintiff's choice of forum”).
Ultimately, the burden is on the moving party to establish that transfer under § 1404(a) is
proper. Montgomery v. STG Int’l, Inc., 532 F. Supp. 2d 29, 32 (D.D.C. 2008); Trout Unlimited
v. U.S. Dep’t of Ag., 944 F. Supp. 13, 16 (D.D.C. 1996). Accordingly, Defendants must make
two showings to justify transfer. First, Defendants must establish that Plaintiffs could have
brought the action in the proposed transferee district. Van Dusen v. Barrack, 376 U.S. 612, 616
(1964). Second, Defendants must demonstrate that considerations of convenience and the
interest of justice weigh in favor of transfer to that district. Trout Unlimited, 944 F. Supp. at 16.
In evaluating a motion to transfer, a court should weigh several private- and public-interest
factors. Sheffer v. Novartis Pharm. Corp., 873 F. Supp. 2d 371, 375 (D.D.C. 2012) (citing Trout
Unlimited, 944 F. Supp. at 16).
Although the threshold inquiry under the statute is whether the action could have been
brought in the proposed transferee district, Blackhawk Consulting LLC v. Fed. Nat’l Mortg.
Ass’n, 975 F. Supp. 2d 57, 60 (D.D.C. 2013) (citing 28 U.S.C. § 1404(a)), in this case, Plaintiffs
do not dispute that the action could have been brought in the Southern District of Texas. See
Pls.’ Mem. P. & A. Opp’n Defs.’ Mot. Transfer Venue (“Pls.’ Opp’n”) at 8, ECF No. 41. Thus,
14
“this Court’s only task is to determine whether the private and public interest factors weigh in
favor of or against transfer.” Pls.’ Opp’n at 8; see Sheffer, 873 F. Supp. 2d at 375. For the
reasons stated below, the Court finds that Defendants have failed to demonstrate that these
factors weigh in favor of venue transfer. Accordingly, this Court denies Defendants’ motion.
1. Private Interest Considerations
To resolve Defendants’ motion, the Court must first consider certain “private-interest
factors.” Sheffer, 873 F. Supp. 2d at 375. These factors roughly break down into three
categories: (1) the preferred forum of the parties, (2) the location where the claim arose, and (3)
factors of convenience. 8 Id.
a. The Preferred Forum of Each Party
In this case, neither of the parties’ forum preferences are entitled to significant weight.
Ordinarily, a plaintiff’s choice of forum is afforded “considerable deference.” S. Utah
Wilderness Alliance v. Norton, 315 F. Supp. 2d 82, 86 (D.D.C. 2004). However, that choice is
“conferred less deference by the court when [it] is not the plaintiff’s home forum.” Shawnee
Tribe v. United States, 298 F. Supp. 2d 21, 24 (D.D.C. 2002) (citing Piper Aircraft Co. v. Reyno,
454 U.S. 235 (1981). Here, two of the three Plaintiffs are currently detained in Texas, and the
third is currently located in California. See TAC ¶¶ 76, 79, 80. Plaintiffs claim no specific
personal connection to the District of Columbia, nor do they make any argument that it should be
considered their home. See Pls. Opp’n at 10. Thus, Plaintiffs’ choice of forum does not weigh
as strongly against transfer as it would if they resided in the District, and their preference is
8
The private-interest considerations are typically described as including: (1) the
plaintiff's choice of forum; (2) the defendant's preferred forum; (3) the location where the claim
arose; (4) the convenience of the parties; (5) the convenience of the witnesses; and (6) ease of
access to sources of proof. Sheffer, 873 F. Supp. 2d at 375.
15
partly balanced against Defendant’s preference for the Southern District of Texas. The parties’
respective forum preferences, on balance, weigh only slightly against transfer. See Foote v. Chu,
858 F. Supp. 2d 116, 121 (D.D.C. 2012) (where the plaintiffs and defendants resided outside of
the District, holding that “the parties' respective forum preferences weigh against transferring the
case, although not as strongly as it would if Plaintiff resided in this District.”)
b. Location Where the Claims Arose
The parties strongly dispute whether Plaintiffs’ claims arose primarily in the District of
Columbia or in the Southern District of Texas. The D.C. Circuit has cautioned that “[c]ourts in
this circuit must examine challenges to . . . venue carefully to guard against the danger that a
plaintiff might manufacture venue in the District of Columbia.” Cameron v. Thornburgh, 983
F.2d 253, 256 (D.C. Cir. 1993). However, when a plaintiff directly challenges a policy
promulgated in the District of Columbia, “the interests of justice could well favor venue [in this
District].” Aishat v. DHS, 288 F. Supp. 3d 261, 270 (D.D.C. 2018). For example, in Ravulapalli
v. Napolitano, a court in this jurisdiction held that the claims in that case arose primarily in the
District of Columbia when “officials at the United States Citizen and Immigration Services
(“USCIS”) Texas Service Center denied Plaintiff’s I-485 applications based on policy guidance
issued from USCIS headquarters in the District of Columbia.” 773 F. Supp. 2d 41, 56 (D.D.C.
2011).
This principle is supported, rather than undercut, by Defendants’ case law. Defendants
filed a Notice of Supplemental Authority directing the Court to Aishat, which they characterized
as a recent case in which the District “granted a motion to transfer venue . . . with factual
circumstances that are analogous to this case.” Def.’s Notice Supplemental Auth. at 1, ECF No.
70. But rather than support Defendants’ argument, Aishat suggests that venue is proper in this
16
District. In Aishat, the plaintiff sued DHS, USCIS, and agency employees in both Washington
D.C. and Texas seeking to compel USCIS to resolve his naturalization application after years of
delays by its Dallas Field Office. 288 F. Supp. 3d at 264–65. In his briefing, but importantly not
in his complaint, the plaintiff argued that USCIS had implemented an agency-wide policy
mandating denial or delay of applications from Middle Eastern or South Asian individuals, a
group including the plaintiff. Id. at 269–70. The court noted that “[w]ere [the plaintiff] directly
challenging [the policy], the [c]ourt agrees that the interests of justice could well favor venue
here . . . [p]erhaps even challenging the Dallas Field Office's application of [the policy] to him
would suffice.” Id. at 269 (citing Ravulapalli, 773 F. Supp. 2d at 56). But because the plaintiff
did not raise those challenges in his complaint, they were not entitled to sufficient weight to
sustain venue in the District when the plaintiff’s core allegations related to his individualized
naturalization decision made in Texas. Id.Here, Plaintiffs emphasize that “[they] are not seeking review of ICE’s exercise of
discretion in reaching their individualized parole decision.” Pls. Opp’n at 8. Rather, Plaintiffs
claim that Texas-based Defendants improperly denied parole requests “in compliance with the
official policies promulgated by the D.C. based Defendants.” Id.; TAC ¶¶ 52, 96. Plaintiffs
argue that their “cause of action therefore arises from this national policy, not the low-level
decisions of individual officers who were bound by such policy.” Id. at 9. Thus, as discussed in
Ravulapalli and Aishat, because Plaintiffs in this case are challenging the application of a
purported policy that supposedly emanated from an agency located in the District of Columbia,
the Court finds that this factor weighs in favor of retaining venue.
17
c. Convenience Factors
Next, the Court must consider certain convenience factors. Specifically, the Court
considers the convenience of the parties, convenience of witnesses, and ease of access to sources
of proof. Here, these factors are in equipoise. Plaintiffs are detained or reside in Texas and
California, and Defendants reside in Texas and the District of Columbia. 9 Defs.’ Mot. Transfer
Venue (“Defs. Motion”) at 12, EFC No. 38-1; Pls.’ Opp’n at 13. Likewise, it is very likely that
important witnesses and documents will likely be found in both Texas and the District of
Columbia. Indeed, ICE field officers who participated in Plaintiffs’ parole determinations and
documents relating to those detentions will likely be located in Texas. Defs. Mot. at 12−13. On
the other hand, the government officials who allegedly established, developed, and promoted the
policy at the heart of this case, and the documents relating thereto, will likely be found, if at all,
in the District of Columbia. Defs. Suppl. Mot. at 6. Therefore, the convenience factors weigh
neither in favor of nor against transfer. 10
2. Public Interest Considerations
The Court next considers certain public-interest considerations. Specifically, it considers
(1) the transferee district’s familiarity with the governing law; (2) the relative congestion of the
9
Given that Plaintiffs lodge APA claims against the District of Columbia-based
individual Defendants in their official capacities, related to an alleged national policy, it is
unclear that it was necessary for them to name the Texas-based individual Defendants in this
action.
10
The Court finds it somewhat ironic that Plaintiffs’ Texas-based attorneys seek to
litigate this case in the District of Columbia, while Defendants’ District of Columbia-based
attorneys seek to litigate this case in Texas. Regardless, “the location of counsel ‘carries little, if
any, weight in an analysis under § 1404(a).’” Reiffin v. Microsoft Corp., 104 F. Supp. 2d 48, 52
n.7 (D.D.C. 2000) (quoting Vencor Nursing Centers, L.P. v. Shalala, 63 F. Supp. 2d 1, 6 n. 4
(D.D.C. 1999)).
18
courts of the transferor and potential transferee; and (3) the local interest in deciding local
controversies at home. Onyeneho v. Allstate Ins. Co., 466 F. Supp. 2d 1, 3 (D.D.C. 2006).
Because this case involves only federal law claims, the first factor does not weigh either
for or against transfer because all federal courts are equally competent to resolve such matters.
See, e.g., Nat'l Wildlife Fed'n v. Harvey, 437 F. Supp. 2d 42, 49 (D.D.C. 2006) (holding that
“both courts are competent to interpret the federal statutes involved[,] . . . there is no reason to
transfer or not transfer based on this factor”).
The parties each cite favorable statistical evidence regarding the second factor, but
Defendants’ statistics are slightly more persuasive. Plaintiffs maintain that “the Southern
District of Texas is far more congested than that of the District of Columbia.” Pls. Opp’n at 16.
Plaintiffs present statistics showing that, as of September 2017, there were 12,497 pending cases
in the Southern District of Texas, averaging 658 pending cases per judge, while there were 3,942
cases pending in the District of Columbia, averaging 263 pending cases per judge. Id.Defendants, however, argue that “the chart for 2016 suggests the docket is relatively less
congested in the Southern District of Texas,” and they present statistics showing that “median
length for a civil case that goes to trial in the District of Columbia is 31 months, and in the
Southern District of Texas is 24 months.” Defs. Mot. at 15. Given the statistics, the Court
considers the District of Columbia to be slightly more congested because cases appear to move
more slowly in this District. “Those raw statistics, however, may overstate the difference, as
they ‘provide, at best, only a rough measure of the relative congestion of the dockets in the two
districts.’” Aishat v. U.S. Dep’t of Homeland Sec., 288 F. Supp. 3d 261, 271 (D.D.C. 2018)
(citing United States v. H & R Block, Inc., 789 F. Supp. 2d 74, 84–85 (D.D.C. 2011).
19
Accordingly, this factor weighs only slightly in favor of transfer, and on balance it does not
overcome the factors weighing against transfer.
Finally, the potential national significance of this dispute dictates that the third public-
interest factor weighs against transferring the case to satisfy a local interest. Defendants argue
that “there is a strong local interest for the courts in the Southern District of Texas in deciding
[this dispute],” Defs. Mot. at 15−16, because Plaintiffs are or were detained in Texas and most of
the discretionary parole determinations were made by federal officials there. But, in determining
whether a controversy is local, courts have often considered a variety of different factors other
than where Plaintiffs are located or where the challenged decision was made. These other factors
include, “whether the decision directly affected the citizens of the transferee state; the location of
the controversy, whether the issue involved federal constitutional issues rather than local
property laws or statutes; whether the controversy involved issues of state law, whether the
controversy has some national significance; and whether there was personal involvement by a
District of Columbia official.” Otay Mesa Prop. L.P. v. U.S. Dep’t of Interior, 584 F. Supp. 2d
122, 126 (D.D.C. 2008) (citing Nat'l Wildlife Fed'n, 437 F. Supp. 2d at 49; Sierra Club, 276 F.
Supp. 2d at 70).
Plaintiffs have been clear that their challenge is not based on the specific decisions made
by federal officials in Texas, but rather upon an alleged national policy promulgated by DHS,
which carries with it nationwide significance. Thus, the Court concludes that the Southern
District of Texas has no particular localized interest in this litigation. Ravulapalli, 773 F. Supp.
2d at 56 (holding that transferee forum had no localized interest where “plaintiffs’ claims focus
primarily on the policies issued from [D.C.] headquarters that apply to all [regional] offices”
(citing Otay Mesa Prop. L.P., 584 F. Supp. 2d at 126−27)).
20
* * *
After weighing the relevant private and public interest considerations, the Court
concludes that, on balance, those considerations favor retaining venue in this District, albeit
slightly. Because the injuries perceived by Plaintiffs allegedly stem from policies that were
conceived, promoted, and implemented by government officials in the District of Columbia, their
claims hold a close connection to this forum. While many of the factors discussed above,
including factors of convenience, do not clearly favor one forum over the other, on balance they
do not weigh in favor of transfer. Accordingly, the Court concludes that the Defendants have
failed to meet their burden to show that considerations of convenience and the interest of justice
favor transferring this matter to the Southern District of Texas.
V. ANALYSIS OF PLAINTIFFS’ MOTION TO SUPPLEMENT THEIR
PRELIMINARY INJUNCTION APPLICATION
The Court next considers whether Plaintiffs may supplement their preliminary injunction
application for a second time. In their first amended application, Plaintiffs asked the court to:
1. Enjoin the application of 8 C.F.R. § 1003.19(h)(2)(i)(B) against Plaintiffs, which
would deprive them of a bond hearing before an immigration judge;
2. Enjoin Defendants from considering the deterrence of immigration in evaluating
Plaintiffs’ requests for parole; and
3. Enjoin Defendants from violating ICE Policy Directive 11002.1 in evaluating
Plaintiffs’ requests for parole.
Pls.’First Am. Appl. Prelim. Inj. at 1–4. In their second amended application (“SAA”),
Plaintiffs ask the court to:
21
1. Enjoin any further detention of the Plaintiffs in the absence of a custody hearing
before an immigration judge “which results in a finding that that detention is
necessary to prevent flight or serious danger to the community”;
2. Enjoin the application of 8 C.F.R. § 1003.19(h)(2)(i)(B), and any related rules
which would deprive Plaintiffs of a bond hearing before an immigration judge,
against Plaintiffs;
3. Enjoin Defendants from considering immigration deterrence in evaluating
Plaintiffs’ requests for parole; and
4. Enjoin Defendants from violating ICE Policy Directive 11002.1 in evaluating
Plaintiffs’ requests for parole.
Pls.’ Second Am. Appl. Prelim. Inj. at 2, ECF No. 79-1.
Plaintiffs claim that the SAA is necessary to crystallize the relief sought because
“Defendants still would not grant a bond hearing before an immigration judge even if the
exclusion clause in 8 C.F.R. § 1003.19(h) were enjoined from application to the Plaintiffs.” Pls.’
Mot. Suppl. Prayer Relief (“Pls.’ Mot. Supp.”) ¶ 2 n.1, ECF No. 79. The SAA is therefore
intended to “provide for more flexible relief, and thereby prevent continued disputes,” by
expanding the relief sought with respect to bond hearings. Id. ¶ 3. In support of the SAA,
Plaintiffs have adopted in full their previously filed Amended Memorandum in Support of their
Application for Preliminary Injunction. Id. ¶ 6.
Defendants assert five reasons why the Court should not grant Plaintiffs’ motion. First,
“Plaintiffs improperly rely on Federal Rule of Civil Procedure 15” in support of their motion.
Def.’s Mot. Opp’n Pls.’ Mot. Supp. Prayer Relief (“Def.’s Opp’n Supp.”) at 4–5, ECF No. 86.
Second, Plaintiffs fail to properly support the SAA with law and facts. Id. at 5–6. Third, the
22
SAA is “a litigation strategy to forestall this Court’s consideration of the venue motion.” Id. at
6–7. Fourth, the SAA seeks the ultimate relief sought in this case. Id. at 7–8. And fifth, the
SAA “is seeking habeas relief, which this Court cannot provide.” Id. at 8.
The Court need only address whether Plaintiffs have legal authority to supplement their
preliminary injunction application, because Defendants’ other four reasons may be swiftly
disposed of. While Plaintiffs have not filed a new memorandum of law and facts in support of
the SAA, they clearly state that they rely on their previously filed, and fully briefed,
memorandum to support it. Pls.’ Mot. Supp. ¶ 6. If that memorandum does not justify the
requested relief, the Court will deny it. Further, the SAA has had no impact on the timing of the
Court’s determination of whether the case should be transferred, which should be clear from the
fact that the Court is disposing of both motions simultaneously. Next, Defendants’ argument that
the SAA seeks the ultimate relief sought in this case will be addressed in the Courts’ evaluation
of the SAA’s merits. Finally, as discussed above, Plaintiffs need not bring their claims by way
of habeas.
The Court now turns to Defendants’ contention that Plaintiffs do not have authority to
supplement their preliminary injunction application. Defendants correctly note that a motion is
not, under normal circumstances, considered a pleading, which means that Federal Rule 15,
addressing pleading amendments, is inapplicable here. Def.’s Opp’n Supp. at 4–5; see Marsh v.
Johnson, 263 F. Supp. 2d 49, 53–54 (D.D.C. 2003). That is not fatal to the SAA, however,
because the Court need not rely on a Federal Rule when exercising its discretion.
The Supreme Court has long recognized that “a district court possesses inherent powers
that are ‘governed not by rule or statute but by the control necessarily vested in courts to manage
their own affairs so as to achieve the orderly and expeditious disposition of cases.’” Dietz v.
23
Bouldin, 136 S.Ct. 1885, 1891 (2016) (quoting Link v. Wabash R. Co., 370 U.S. 626, 630–631
(1962)). Accordingly, the Court has broad discretion to allow a party to amend a motion to
“ensure that the case is adjudicated fairly and justly,” particularly when “the adverse parties will
not be prejudiced by the amendment.” 5 C. Wright, A. Miller, & M. Kane, Federal Practice and
Procedure § 1194 (3d ed. 2018). Defendants vaguely assert that the SAA “does not meet this
standard,” but they provide no support for that assertion. Def.’s Opp’n Supp. at 5. The SAA has
not delayed the Court’s resolution of Plaintiffs’ motion for a preliminary injunction and
Defendants’ motion to transfer venue, nor does it meaningfully alter the issues argued in the
parties’ preliminary injunction briefing. The SAA merely repeats the relief sought in Plaintiffs’
previous application, Pls.’ First Am. Appl. Prelim. Inj. at 1–2, and clarifies that Plaintiffs seek to
enjoin their detention in the absence of a bond hearing before an immigration judge. Pls.’
Second Am. Appl. Prelim. Inj. at 2. This clarity will assist the court in ensuring that the case is
adjudicated fairly and justly.
Furthermore, “[c]rafting a preliminary injunction is an exercise of discretion and
judgment,” and in exercising its judgment a court “need not grant the total relief sought by the
applicant but may mold its decree to meet the exigencies of the particular case.” Trump v. Int’l
Refugee Assistance Project, 137 S.Ct. 2080, 2087 (2017) (quoting 11A C. Wright, A. Miller, &
M. Kane, Federal Practice and Procedure § 2947 at 115 (3d ed. 2013)) (internal quotation marks
omitted). This Court’s discretion in granting preliminary injunctive relief is therefore not
constrained by the relief Plaintiffs explicitly seek, and the SAA does not allow the Court to
impose relief that it could not already impose under Plaintiffs’ previous application. In light of
the Court’s discretion, it is unclear how Defendants would be prejudiced by allowing Plaintiffs to
refine their request for relief.
24
* * *
For the reasons stated above, the Court grants Plaintiffs’ motion to supplement the prayer
for relief in their application for a preliminary injunction. For the same reasons, the Court also
exercises its discretion to grant Plaintiffs’ recent motion to update their preliminary injunction
exhibits. The Court will now address Plaintiffs’ motion for a preliminary injunction.
VI. PRELIMINARY INJUNCTION ANALYSIS
Plaintiffs assert (1) that their detention without access to bond hearings before
immigration judges violates their Constitutional rights; and (2) that pursuant to a nationwide,
unwritten policy, ICE improperly considered immigration deterrence as a factor in evaluating
whether they should be paroled under 8 U.S.C. § 1182(d)(5)(A). Plaintiffs seek preliminary
injunctive relief in the form of an order (1) requiring that they be provided bond hearings before
immigration judges if their detention continues; (2) enjoining ICE officials from considering
deterrence as a factor in their parole decisions going forward; and (3) mandating that ICE
officials follow the Morton Directive in their parole decisions. See generally Pls.’ Second Am.
Appl. Prelim. Inj. Defendants argue that even if Plaintiffs’ motion overcomes certain threshold
obstacles, they have not shown that they are entitled to preliminary injunctive relief. The Court
first considers Defendants’ justiciability and jurisdictional arguments, then it addresses
Plaintiffs’ merits arguments. As explained below, the Court concludes that it may review the
merits of Plaintiffs’ arguments, and it holds that Plaintiffs have met their burden of establishing
that, as a preliminary matter, they are entitled to parole determinations in compliance with the
Morton Directive, but not that they are entitled to bond hearings before immigration judges.
25
A. Threshold Issues
Defendants lodge two general threshold objections to this Court’s review, and two
threshold objections specific to Plaintiffs’ APA claims. With respect to the entirety of Plaintiffs’
motion, Defendants argue that (1) the Court is statutorily barred from reviewing what Defendants
characterize as discretionary decisions by ICE officials; and (2) this suit is moot, because
Plaintiffs have already received the relief that they seek under the Morton Directive. 11 Defs.’
Opp’n at 2–3. With respect to Plaintiffs’ APA claims, Defendants argue that (1) Defendants’
alleged policy is not a final agency action subject to APA review; and (2) habeas is an adequate
alternate remedy to the APA, such that APA review is improper. Id. The Court disagrees with
each objection.
1. The Court’s Jurisdiction
Defendants’ first challenge to the justiciability of Plaintiffs’ suit rests on 8 U.S.C.
§ 1252(a)(2)(B)(ii), which bars judicial review of discretionary decisions made under the INA.
Defendants assert that the Court lacks jurisdiction to consider Plaintiffs’ claims because the
statutory bar covers judicial review of “the decision to grant or deny parole and the underlying
11
Defendants raise one additional standing argument, based on their claim that “Plaintiffs
seek a court order compelling the Executive to release them into the United States,” among other
relief. Defs.’ Opp’n at 26. They argue that “[t]o the extent Plaintiffs are seeking release or a
hearing before an immigration judge that will functionally result in release, Plaintiffs lack
standing to seek such relief.” Id. at 22. While it may be true that this Court cannot order
Plaintiffs released into the United States, the Court does not read Plaintiffs’ complaint or
application for a preliminary injunction to seek such relief. And Plaintiffs explicitly deny that
they seek release. See Pls.’ Reply Defs.’ Opp’n (“Pls.’ Reply”) at 11, ECF No. 72 (“[S]uccess
for the Plaintiffs in this case will not necessarily mean immediate release from detention or a
shorter stay in detention.”). Also if, as Defendants claim, ICE officials adhere strictly to the
Morton Directive and do not apply deterrence as a factor in making parole determinations, it is
unclear why additional review would “functionally result in release” for Plaintiffs. Defs.’ Opp’n
at 22 Regardless, the Court will not interpret Plaintiffs’ action to seek relief that it does not
clearly seek. Cf. Caterpillar Inc. v. Williams, 482 U.S. 386, 394–95 (1987) (noting that plaintiffs
are “masters of the complaint,” free to choose the relief they seek).
26
determinations made by ICE in arriving at parole decisions.” Defs.’ Opp’n at 17. Plaintiffs do
not contest that § 1252(a)(2)(B)(ii) bars judicial review of individual parole determinations, and
they concede that they “do not ask the Court to interfere with the ultimate parole determination
in each of their cases.” Pls.’ Reply at 12. Rather, they argue that the statutory bar does not
prevent the Court from evaluating “Defendants’ failure to follow procedures set out in the
[Morton Directive] and their unlawful consideration of deterrence as a heavily weighted criterion
when evaluating requests for parole.” Id. The Court is persuaded by Plaintiffs’ interpretation of
the provision.
Under § 1252(a)(2)(B)(ii), “no court shall have jurisdiction to review . . . any other
decision or action of the Attorney General or the Secretary of Homeland Security the authority
for which is specified under this subchapter to be in the discretion of the Attorney General or the
Secretary of Homeland Security,” with the exception of determinations regarding eligibility to
apply for asylum under § 1158(a). “[T]his subchapter” includes § 1182(d)(5)(A), which
provides the Secretary of Homeland Security with authority to parole aliens “in his discretion . . .
temporarily under such conditions as he may prescribe.” See also 8 C.F.R. § 212.5(a), (b). In
other words, the parole decisions from which this action arises are discretionary, and are
therefore not reviewable by this Court pursuant to § 1252(a)(2)(B)(ii).
While § 1252(a)(2)(B)(ii) undoubtedly bars judicial review of individual parole
decisions, courts have declined to apply it to claims challenging the legality of policies and
processes governing discretionary decisions under the INA. For instance, in Zadvydas v. Davis,
which involved statutory and Constitutional challenges to the legality of the plaintiffs’ detention
pending removal from the United States, the Supreme Court held that § 1252(a)(2)(B)(ii) did not
bar judicial review because the plaintiffs challenged “the extent of the Attorney General's
27
authority under the post-removal-period detention statute . . . the extent of that authority is not a
matter of discretion.” 533 U.S. 678, 688 (2001). Similarly, in Hernandez v. Sessions, the Ninth
Circuit held that § 1252(a)(2)(B)(ii) did not bar judicial review of a Constitutional challenge to
immigration judges’ bond determinations, because the plaintiffs claimed “that the discretionary
process itself was constitutionally flawed at their initial bond determinations.” 872 F.3d 976,
988 (9th Cir. 2017). Finally, in Jafarzadeh v. Duke, another court in this jurisdiction held that §
1252 did not bar judicial review of APA and Constitutional challenges to USCIS’s
administration of a “secret” nationwide policy for processing certain immigration-related
applications, because the provision did “not encompass plaintiffs' challenge to the process
USCIS used to adjudicate [a plaintiff's] application.” 270 F. Supp. 3d 296, 308–10 (D.D.C.
2017).
The Western District of New York recently applied this principle in Abdi v. Duke, in
which the plaintiffs claimed that the same deterrence policy challenged here violated the APA
and their Constitutional rights. 280 F. Supp. 3d 373, 381 (W.D.N.Y. 2017). The defendants
argued in Abdi that § 1252(a)(2)(B)(ii) barred the court from considering plaintiffs’ claims and,
as is the case here, the plaintiffs claimed that the statutory bar was inapplicable because their
challenges related to ICE’s procedures in administering parole, rather than the discretionary
parole decisions themselves. Id. at 383. Rejecting the defendants’ jurisdictional argument, the
Abdi court held that review of “the ultimate decision regarding parole . . . would plainly fall
outside [the] Court’s jurisdiction,” but “[the plaintiffs] are asking that this Court ensure that [the
28
defendants] comply with certain policies and procedures in making that parole decision—issues
that are beyond the jurisdictional bar.” Id. at 384. 12
Here, as in the cases above, Plaintiffs raise Constitutional and statutory challenges to the
process by which they were detained, including the policies under which Defendants make
parole determinations and the framework by which Plaintiffs are deprived of bond hearings
before immigration judges. See generally TAC. And they have made explicitly clear that they
are not seeking review of their individual parole determinations, nor are they seeking release
from detention. See Pls.’ Am. Mem. at 20 (“Plaintiffs challenge the Defendants’ deterrence
policy, not the individual decisions reached in their parole cases.”); Pls.’ Reply at 12. The Court
is thus persuaded that § 1252(a)(2)(B)(ii) does not bar Plaintiffs’ claims. See Damus v. Nielsen,
No. 18-578, 2018 WL 3232515, at *5 (D.D.C. July 2, 2018).
Nearly all of the cases cited by Defendants in support of their argument are inapposite
because they involve challenges to the types of individual discretionary decisions which clearly
fall within the scope of § 1252(a)(2)(B)(ii), and which are not at issue here. In most of the cited
cases, the plaintiff sought to override an individual custody determination made by an agency
official. See Altagracia v. Sessions, No. 16-6647, 2017 WL 908211, at *2 (W.D.N.Y. Mar. 7,
12
Defendants argue that this Court should not accord Abdi any weight because in that
case the defendants argued that the Morton Directive was not legally enforceable, while here
Defendants claim that they have been complying with the Directive. Defs.’ Opp’n at 21–22.
This argument fails for multiple reasons. First, as Plaintiffs note, § 1252(a)(2)(B)(ii)’s
jurisdictional bar is triggered by the type of challenge raised, not the arguments raised in defense.
Pls.’ Reply at 13 n.5. Second, contrary to Defendants’ argument, the Abdi court noted that the
defendants had claimed to be following the Morton Directive in similar litigation, and it relied in
part on that fact in holding that the jurisdictional bar did not apply. Abdi, 280 F. Supp. 3d at
384–85 (“Petitioners allege that Respondents have violated and continue to violate the Morton
Directive that they claim to be following.”). And third, an important predicate of Plaintiffs’
action is that ICE is bound by the Morton Directive. Defendants’ claim that the Directive is
“binding” and zealously followed, rather than unenforceable, undercuts their argument that
compliance is discretionary for purposes of § 1252(a)(2)(B)(ii). Defs.’ Opp’n at 2.
29
2017); Milardo v. Kerilikowske, No. 16-MC-99, 2016 WL 1305120, at *6, 9 (D. Conn. Apr. 1,
2016); United States v. Bush, No. 12-92, 2015 WL 7444640, at *1 (W.D. Pa. Nov. 23, 2015);
Dugdale v. U.S. Customs and Border Protection, No. 14-1175, 2015 WL 2124937, at *1 (D.D.C
May 6, 2015); Naul v. Gonzales, No. 05-4627, 2007 WL 1217987, at *2 (D.N.J. Apr. 23, 2007).
Giammarco v. Kerlikowske did not involve a direct challenge to an individual custody
determination, but the plaintiff sought authorization for temporary reentry to the United States,
which would functionally reverse his individual custody determination. 665 Fed. App’x 24, 25–
26 (2d. Cir. 2016).
Defendants do, however, cite one case that is factually similar to this action. In that case,
Gebhardt v. Nielsen, the Ninth Circuit held that it lacked jurisdiction to hear the plaintiff’s
challenge to an agency’s standards for evaluating Legal Permanent Residence applications. 879
F.3d 980, 987 (9th Cir. 2018). However, the Gebhardt plaintiff did not claim that the standards
at issue were inconsistent with other binding agency policies, as Plaintiffs do here, and the Ninth
Circuit acknowledged that it has jurisdiction over challenges to “pattern and practice” claims and
30
Constitutional challenges related to discretionary decisions. Id. 13 The Court is unpersuaded by
Defendants’ cited authorities. 14
2. Mootness
Defendants next assert that Plaintiffs lack standing to bring their claims because they
“have in fact already received the relief they seek: a parole determination consistent with the
[Morton Directive].” Defs.’ Opp’n at 16. Defendants neglect to address that Plaintiffs also seek
bond hearings before immigration judges, TAC ¶¶ 114–115, and the fact that Plaintiffs have not
obtained that relief is alone sufficient to keep this case alive. See, e.g., Schnitzler v. United
States, 761 F.3d 33, 37–38 (D.C. Cir. 2014) (reversing a district court’s dismissal of a pro se
complaint because, among other things, the district court had adopted too narrow a construction
of the relief sought and failed to recognize that plaintiff had not received full relief); Singh v.
Carter, 185 F. Supp. 3d 11, 19 (D.D.C. 2016) (concluding that an offer of a “long-term religious
accommodation” did not render moot plaintiff’s request for a “permanent religious
13
Defendants also rely upon Loa-Herrera v. Trominski in support of their argument that
the Court lacks jurisdiction to hear Plaintiffs’ challenges. In that case, the Fifth Circuit vacated
portions of the district court’s order related to the Constitutionality of the Immigration and
Naturalization Service’s (ICE’s predecessor) parole determinations, stating that “the manner in
which [the agency’s] discretionary judgment is exercised, and whether the procedural apparatus
supplied satisfies regulatory, statutory, and constitutional constraints—is not . . . subject to
review.” 231 F.3d 984, 991 (5th Cir. 2000) As Plaintiffs note, Pls.’ Reply at 14 n.6, that case
involved a different INA jurisdictional bar, 8 U.S.C. 1226(e). Loa-Herrera, 231 F.3d at 991.
Further, another court in this jurisdiction has declined to follow Loa-Herrera, noting that it
provides “little explanation of its reasoning,” and that it cuts against the weight of the case law.
See R.I.L-R, 80 F. Supp. 3d at177. For those reasons, this Court also declines to follow Loa-
Herrera.
14
Defendants also argue that § 1182(d)(5)(A) establishes that parole determinations are
“committed to agency discretion by law,” and thus unreviewable under the APA. Defs.’ Opp’n
at 37 (citing Oryszak v. Sullivan, 576 F.3d 522, 525–26 (D.C. Cir. 2009); see 5 U.S.C. §
701(a)(2). Again, Defendants are correct that this Court may not second guess ICE officials’
individual parole determinations. It may, however, review whether ICE has allegedly
implemented an unconstitutional, unwritten policy that contradicts existing, binding policy.
31
accommodation” because defendant had not given plaintiff the entire relief sought). Regardless,
the Court disagrees that the record provides a basis for a finding of mootness.
Article III of the Constitution permits federal courts to adjudicate only “actual, ongoing
controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988). This limitation gives rise to the
doctrine of mootness. See Campbell–Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016). “A case
is moot when a party has already obtained all the relief that it has sought.” Schnitzler, 761 F.3d
at 37 (internal citations and quotation marks omitted). Under such circumstances, a case should
be dismissed when “events have so transpired that the decision [of the court] will neither
presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in
the future.” Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 631 (D.C. Cir. 2002) (internal
citation omitted).
“As long as the parties have a concrete interest, however small, in the outcome of the
litigation, the case is not moot.” Campbell–Ewald Co., 136 S. Ct. at 669 (quoting Chafin v.
Chafin, 568 U.S. 165, 172 (2013)); see also Knox v. Serv. Emps. Int’l Union, Local 1000, 567
U.S. 298, 307 (2012) (“A case becomes moot only when it is impossible for a court to grant ‘any
effectual relief whatever’ to the prevailing party.”) (quoting Erie v. Pap’s A.M., 529 U.S. 277,
287 (2000)). Furthermore, a “party’s prospects of success on a claim are not pertinent to the
mootness inquiry.” Looks Filmproduktionen GmbH v. CIA, 199 F. Supp. 3d 153, 179 (D.D.C.
2016) (alterations and internal quotation marks omitted) (quoting Schnitzler, 761 F.3d at 39).
With regard to Plaintiffs’ demand for parole determinations in accordance with the
Morton Directive, Defendants conflate merits questions about whether they have properly
followed the Directive—a subject of the parties’ dispute—with mootness questions about
whether this Court can offer meaningful relief. Both the Supreme Court and the D.C. Circuit
32
have cautioned that “prospects of success” on a claim “are not pertinent to the mootness
inquiry.” Schnitzler, 761 F.3d at 39 n.8 (quoting Chafin, 568 U.S. at 174 (internal quotation
marks omitted)). Indeed, the Circuit has explained that “[i]n considering possible mootness[,
courts] assume that the plaintiffs would be successful on the merits.” Judicial Watch, Inc. v.
Kerry, 844 F.3d 952, 955 (D.C. Cir. 2016). Here, a decision that this case is moot based on a
finding that Defendants provided lawful parole determinations would run afoul of this principle.
Cf. Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1106 (D.C. Cir. 2008) (“[W]hether a statute
has been violated ‘is a question that goes to the merits . . . and not to constitutional standing.’”)
(quoting La. Energy & Power Auth. v. FERC, 141 F.3d 364, 367–68 (D.C. Cir. 1998)).
Defendants’ self-serving declaration that ICE officials complied with its Directive does not
suffice to divest this Court of jurisdiction to determine whether it did so. See, e.g., Schnitzler,
761 F.3d at 39 (explaining that “whether or not the government’s policy explanations are
reasonable under the [APA] is a merits question, not a question of the court’s jurisdiction”);
Ramirez v. ICE, No. 18-0508, 2018 WL 1882861, at *7 (D.D.C. Apr. 18, 2018) (holding that
“there was no mootness barrier” to the plaintiffs’ suit where ICE claimed that it had already
complied with the statutory provision that the plaintiffs argued had been disregarded).
In any event, as explained in detail below, the Court disagrees that the evidence on record
shows that Defendants complied with the Morton Directive. Thus, even if this Court could
consider the merits of Plaintiffs’ claims in assessing whether this case is moot, it would not side
with Defendants. The record indicates that Defendants considered factors inconsistent with the
Morton Directive in determining whether Plaintiffs were entitled to parole. Accordingly, this
Court concludes that there is no mootness barrier to Plaintiffs’ suit.
33
3. Final Agency Action
Defendants next assert that “Plaintiffs cannot invoke the APA as a basis to challenge their
ongoing detention because they do not allege any cognizable final agency action promulgating or
effecting their alleged deterrence policy that is reviewable under the APA.” Defs.’ Opp’n at 34.
They claim that Plaintiffs’ failure to identify a “regulation, letter, memorandum, or other form of
written material that comprises [ICE’s deterrence policy] . . . is fatal to Plaintiffs’ claims.” Id.The Court rejects this argument, too.
Agency actions are reviewable by a court under the APA only if they are final. See 5
U.S.C. § 704 (establishing reviewability of “final agency action”). Courts take a pragmatic
approach to finality. U.S. Army Corps of Eng’rs v. Hawkes Co., Inc., 136 S. Ct. 1807, 1815
(2016). As the Supreme Court established in Bennett v. Spear, a court will find that an agency
action is final if two conditions are met: “First, the action must mark the consummation of the
agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. . .
second, the action must be one by which rights or obligations have been determined, or from
which legal consequences will flow.” 520 U.S. 154, 177–78 (1997). Where there is no final
agency action, a plaintiff has no cause of action under the APA.
Despite Defendants’ assertions to the contrary, agency action need not be in writing to be
judicially reviewable as a final action. See Venetian Casino Resort LLC v. EEOC, 530 F.3d 925,
929 (D.C. Cir. 2008) (entertaining an APA challenge to the agency’s “decision . . . to adopt [an
unwritten] policy of disclosing confidential information without notice” because such a policy is
“surely a consummation of the agency’s decisionmaking process” and it impacted the plaintiff’s
rights); R.I.L-R, 80 F. Supp. 3d at 184 (holding that ICE’s deterrence policy is a final agency
action subject to APA review, despite the lack of a writing memorializing the policy); Ramirez,
34
2018 WL 1882861, at *8 (holding that ICE’s consistent failure to apply certain factors in making
individual custody decisions was a final agency action subject to APA review). A contrary rule
“would allow an agency to shield its decisions from judicial review simply by refusing to put
those decisions in writing.” Grand Canyon Tr. v. Pub. Serv. Co. of N.M., 283 F. Supp. 2d 1249,
1252 (D.N.M. 2003). “Denying review of agency action that is essentially conceded but
ostensibly unwritten would fly in the face of the Supreme Court's instruction that finality be
interpreted ‘pragmatic[ally].’” R.I.L-R, 80 F. Supp. 3d at 184 (quoting FTC v. Standard Oil Co.
of Cal., 449 U.S. 232, 239 (1980)). Here, Plaintiffs allege that the deterrence policy has been in
effect for years, and that it has had “profound and immediate consequences” for Plaintiffs whose
parole was declined due to its consideration. Id.Furthermore, Defendants seem to ignore that Plaintiffs also seek relief for the agency’s
consideration of deterrence in making their individual parole decisions. See TAC ¶ 137. An
agency action is reviewable “to the extent that, specific ‘final agency action’ has an actual or
immediately threatened effect.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 894 (1990). Here,
Plaintiffs allege that Defendants took specific, discrete steps when evaluating their parole status
and that those steps have harmed them. The rejections of Plaintiffs’ parole requests—
purportedly upon consideration of an improper factor—are agency actions that have actual or
immediately threatened effects. Cf. Bark v. U.S. Forest Serv., 37 F. Supp. 3d 41, 50–51 (D.D.C.
2014) (rejecting challenge to “a generalized, unwritten administrative ‘policy,’” but permitting
challenge to five specific purported applications of that alleged policy); RCM Techs., Inc. v.
DHS, 614 F. Supp. 2d 39, 43–46 (D.D.C. 2009) (finding no agency action in a challenge to
DHS’s purported policy of requiring foreign occupational and physical therapists to have
master’s degrees in order to obtain H–1B visas, but intimating that the specific denial of a visa
35
application made pursuant to the alleged policy would be justiciable). The Court concludes that
Defendants’ alleged deterrence policy is susceptible to APA review as a “final agency action.”
4. Adequate Remedy
Finally, Defendants assert that Plaintiffs may not bring their APA claims in this court
because they have another adequate remedy in the form of a habeas petition. See Defs.’ Opp’n at
37–39 (citing 5 U.S.C. § 704, which exempts from judicial review an agency action for which
there is an “adequate remedy in a court”). They claim that “because a habeas claim could
provide Plaintiffs the relief requested, another adequate remedy exists, precluding Plaintiffs’
APA claims.” Id. at 39. The Court agrees that Plaintiffs could have brought a habeas claim, but
it disagrees that the possibility of habeas relief precludes Plaintiffs’ APA claims.
“Section 704 reflects Congress’ judgment that ‘the general grant of review in the APA’
ought not ‘duplicate existing procedures for review of agency action’ or ‘provide additional
judicial remedies in situations where Congress has provided special and adequate review
procedures.’” Citizens for Responsibility & Ethics in Wash. (“CREW”) v. DOJ, 846 F.3d 1235,
1244 (D.C. Cir. 2017) (quoting Bowen v. Massachusetts, 487 U.S. 879, 903 (1988)). However,
the Supreme Court has explained that “[t]he exception that was intended to avoid such
duplication should not be construed to defeat the central purpose of providing a broad spectrum
of judicial review of agency action.” Bowen, 487 U.S. at 903. “When considering whether an
alternative remedy is ‘adequate’ and therefore preclusive of APA review, [courts] look for ‘clear
and convincing evidence’ of ‘legislative intent’ to create a special, alternative remedy and
thereby bar APA review.” CREW, 846 F.3d at 1244 (quoting Garcia v. Vilsack, 563 F.3d 519,
523 (D.C. Cir. 2009)).
36
In R.I.L-R, a court in this jurisdiction addressing a very similar action held that habeas
was not an adequate remedy foreclosing an APA challenge. 80 F. Supp. 3d at 185. The
plaintiffs challenged ICE’s deterrence policy—the same policy Plaintiffs challenge here—under
the APA, claiming that it was contrary to law when used as a factor in custody determinations
because it violated the INA. Id. at 174. The defendants argued that the plaintiffs failed to state a
claim under the APA because habeas was an “adequate remedy” available to them apart from
APA review. Id. at 185. In rejecting the defendants’ argument, the court held that “although
Congress has expressly limited APA review over individual deportation and exclusion
orders, see 8 U.S.C. § 1252(a)(5), it has never manifested an intent to require those challenging
an unlawful, nationwide detention policy to seek relief through habeas rather than the APA.” Id.
at 186.
The Court is persuaded by this reasoning, and Defendants have not identified a
compelling reason why APA and habeas review may not coexist. They have not put forth “clear
and convincing evidence of legislative intent to create a special, alternative remedy and thereby
bar APA review” in lieu of habeas. CREW, 846 F.3d at 1244 (internal quotation marks omitted).
Plaintiffs’ case, therefore, may proceed under the APA.
B. Merits
Having determined that there are no justiciability, jurisdictional, or APA threshold
barriers to considering Plaintiffs’ motion for preliminary injunctive relief, the Court next
assesses the merits of that motion. As detailed above, a preliminary injunction is “an
extraordinary remedy that may only be awarded upon a clear showing that the [movant] is
entitled to such relief.” Winter, 555 U.S. at 22. The movant “must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary
37
relief, that the balance of the equities tips in his favor, and that an injunction is in the public
interest.” Id. at 20.
Plaintiffs seek a preliminary injunction requiring Defendants to (1) stop detaining
Plaintiffs in the absence of bond hearings before immigration judges; (2) stop applying any rules
and regulations that would deprive Plaintiffs of such bond hearings; (3) stop considering
immigration deterrence as a factor in evaluating Plaintiffs’ parole requests; and (4) comply with
the Morton Directive in evaluating Plaintiffs’ parole requests. See Second Am. Appl. Prelim.
Inj. at 2. Having considered the governing legal principles, the Court concludes that Plaintiffs
are not likely to succeed on the merits of their demand for bond hearings before immigration
judges, and it therefore denies Plaintiffs’ motion for preliminary injunctive relief requiring such
hearings. However, the Court concludes that Plaintiffs’ evidence of an unwritten deterrence
policy contradicting the Morton Directive outweighs Defendants’ self-serving declaration to the
contrary; that Plaintiffs have suffered and are suffering irreparable harm as a result of the policy;
that Plaintiffs’ harm outweighs any potential harm to the government caused by preliminary
injunctive relief; and that such relief is in the public interest. Finding that Plaintiffs have carried
their burden as to all four preliminary injunction factors, the Court thus grants Plaintiffs’ motion
for preliminary injunctive relief regarding ICE’s consideration of their parole requests.
1. Likelihood of Success on the Merits 15
a. Detention Without a Bond Hearing
The first core component of Plaintiffs’ suit is their argument that, despite their status as
arriving aliens, they have a constitutional right to bond hearings before immigration judges.
15
Along with the arguments evaluated below, Plaintiffs appear to directly challenge their
detention in “prison-like conditions,” by way of freestanding First and Fifth Amendment claims.
38
Defendants raise a series of constitutional and statutory arguments for why Plaintiffs are not
entitled to such bond hearings. Based on the current state of the law—which is rapidly
changing—the Court concludes that while Plaintiffs are entitled to a certain degree of
Constitutional protection, detention pursuant to 8 U.S.C. § 1225(b) is sufficiently finite that
Plaintiffs are not likely to succeed on the merits of this issue.
Plaintiffs’ current access to bond hearings
Both parties agree that the INA and its implementing regulations, on their face, do not
provide Plaintiffs with access to bond hearings before immigration judges. Pls.’ Am. Mem. at 6;
Defs.’ Resp. Opp’n Pls.’ Am. Mem. (“Defs.’ Am. Opp’n”) at 7, ECF No. 77. As explained
above, Plaintiffs are, in the case of Mikailu J., or were, in the case of Aracely R. and Sadat I.,
“arriving aliens” who sought asylum under 8 U.S.C. § 1225(b)(1)(A)(ii), passed their credible
fear interviews conducted pursuant to § 1225(b)(1)(B)(i), and submitted asylum petitions. Defs.’
Am. Opp’n at 7. Under the INA, an arriving alien who passes a credible fear interview and
submits an asylum petition “shall be detained for further consideration of the application for
asylum” (emphasis added). 8 U.S.C. § 1225(b)(1)(B)(ii). The statutory text does not authorize a
bond hearing before an immigration judge. Moreover, 8 C.F.R. § 1003.19(h)(2)(i) states that “an
immigration judge may not redetermine conditions of custody imposed by the Service with
respect to . . . [a]rriving aliens in removal proceedings, including aliens paroled after arrival
pursuant to section 212(d)(5) of the Act,” which governs the parole at issue here. Accordingly,
in order to grant Plaintiffs’ request for bond hearings, the Court must either read such a
See TAC ¶ 123. As Defendants note, it is unclear whether POE asylum seekers have sufficient
connections to the United States to entitle them to First Amendment protections. Defs.’ Opp’n at
32 n.6; see United States v. Verdugo-Urquidex, 494 U.S. 259, 265–66 (1990). Regardless, the
Court need not address these claims now, given the relief it is granting.
39
requirement into 8 U.S.C. § 1225(b), as courts in other jurisdictions have done, or find § 1225(b)
unconstitutional insofar as it deprives a certain class of individuals of bond hearings before
immigration judges. As explained below, courts no longer have the power to read a bond
hearing requirement into § 1225(b), and, under the current legal landscape, Plaintiffs are unlikely
to successfully argue that the statute is unconstitutional.
Development of due process rights for arriving aliens
The Court first considers the amount of due process to which arriving aliens, such as
Plaintiffs, are entitled. The Supreme Court has issued a series of opinions on this issue. Under
this line of cases, it is clear that arriving aliens are not afforded the same Constitutional rights as
individuals who are already present in the United States—including individuals who are present
illegally—but they are afforded some rights.
Defendants urge the Court to follow a 1953 decision, Shaughnessy v. United States ex rel.
Mezei, because they argue it describes “the standard framework for understanding rights of aliens
under the Constitution.” Defs.’ Opp’n at 28. Mezei involved a once-lawfully admitted alien who
left the United States, returned after a trip abroad, was refused admission, and was indefinitely
detained on Ellis Island because the Government could not find another country to accept him.
345 U.S. 206, 208–09 (1953). The Court held that the plaintiff's indefinite detention did not
violate the Constitution because he was “treated,” for constitutional purposes, “as if stopped at
the border.” Id. at 215–16. As an alien with no right to be in the United States, the Court held
that the plaintiff was not entitled to constitutional protections that could have granted him release
into the country. Id. at 216.
Plaintiffs, on the other hand, urge the Court to more closely follow Zadvydas, in which
the Court contemplated how to apply Mezei’s principles to the rights of aliens under the INA.
40
Pls.’ Am. Mem. at 34–38. In Zadvydas, the Court considered the due process protections owed
to an alien who is found to be unlawfully present in the United States, who is subject to a final
order of removal, and who cannot be removed within the 90-day statutory “removal period”
during which time the alien normally is held in custody. 533 U.S. at 682. After the statutory
removal period has expired, 8 U.S.C. § 1231(a)(6) states that certain categories of aliens “may be
detained beyond the removal period and, if released, shall be subject to [certain] terms of
supervision.” 16 Id. The Court noted that § 1231(a)(6) does not set a limit on the length of time
beyond the statutory removal period that an alien may be detained, and it concluded that such a
provision “permitting indefinite detention of an alien would raise a serious constitutional
problem,” particularly when the provision authorizes civil, rather than criminal detention. Id. at
688–90. Applying the Constitutional avoidance doctrine, the Court interpreted § 1231(a)(6) to
require that aliens detained within its scope are entitled to bond hearings every six months before
immigration judges, during which the government must demonstrate that continued detention is
necessary. Id. at 701–02. 17
In Zadvydas, the Court was careful to note, however, that § 1231(a)(6) covers aliens who
have entered the United States, sometimes lawfully, and then are removed, rather than aliens
who are considered to have never entered the country. Id. at 693. It explained:
16
The categories include inadmissible aliens, criminal aliens, aliens who have violated
their nonimmigrant status conditions, and aliens removable for certain national security or
foreign relations reasons, as well as any alien “who has been determined by the Attorney General
to be a risk to the community or unlikely to comply with the order of removal.” 8 U.S.C. §
1231(a)(6); see also 8 C.F.R. § 241.4(a).
17
Plaintiffs suggest that Sadat I. is currently detained under § 1231(a)(6) and has been
denied the bond hearing required by Zadvydas. Pls.’ Am. Mem. at 6 n.12. However, this claim
is not included in Plaintiffs’ complaint, so it is beyond the scope of the Court’s ability to grant
relief here. See Fares v. Smith, 249 F. Supp. 3d 115, 125 (D.D.C. 2017) (“[I]t is axiomatic that
Plaintiffs cannot amend their Complaint via their briefs.”).
41
The distinction between an alien who has effected an entry into the United States
and one who has never entered runs throughout immigration law. It is well
established that certain constitutional protections available to persons inside the
United States are unavailable to aliens outside of our geographic borders. But once
an alien enters the country, the legal circumstance changes, for the Due Process
Clause applies to all “persons” within the United States, including aliens, whether
their presence here is lawful, unlawful, temporary, or permanent.
Id. 18
The Court further refined the due process rights afforded to aliens detained under the
INA, in Demore v. Kim. In that case, the respondent—a resident alien—was undergoing removal
proceedings under another provision of the INA, § 1226(c), and had not yet been issued a final
order of removal. 538 U.S. 510, 513 (2003). Because the respondent had been convicted of
certain crimes, he was subject to mandatory pre-removal detention without an individualized
determination that “he posed either a danger to society or a flight risk.” Id. at 514–15 (citing §
1226(c)).
In holding that the detention period mandated by § 1226(c) was constitutional, the Court
found it significant that the plaintiff had been convicted of a crime, but it also relied heavily on
the brevity of the alien's detention, repeatedly framing the issue as one involving the alien's
detention for the “limited” or “brief” period of his removal proceedings. Demore, 538 U.S. at
511, 523, 526, 531; see id. at 511 (“The INS detention of respondent, a criminal alien who has
conceded that he is deportable, for the limited period of his removal proceedings, is governed by
these cases.” (emphasis added)). It noted that detention under § 1226(c) “lasts roughly a month
18
In a related case cited by Plaintiffs, Clark v. Martinez, the Supreme Court
extended Zadvydas to inadmissible aliens subject to removal under § 1231(a)(6). 543 U.S. 371,
378 (2005). However, the Court’s holding was based on statutory interpretation, rather than
Constitutional principles. Id. (holding that the statute applies to both inadmissible and
removable aliens and cannot be interpreted to apply differently to these different categories of
aliens).
42
and a half in the vast majority of cases in which it is invoked, and about five months in the
minority of cases in which an alien chooses to appeal.” Id. at 530. And it relied on the
detention’s brevity in distinguishing the case from Zadvydas. Id. at 528 (“While the period of
detention at issue in Zadvydas was ‘indefinite’ and ‘potentially permanent,’ the detention here is
of a much shorter duration.” (citations omitted)).
Finally, in February 2018, the Court applied this line of cases to arriving aliens detained
under § 1225(b), the provision at issue here. In Jennings v. Rodriguez, the Supreme Court
addressed a Ninth Circuit decision interpreting § 1225(b) to limit detention of arriving aliens to
six-month periods, after which they are entitled to bond hearings. 138 S. Ct. 830, 839 (2018).
The Court found that the Ninth Circuit misapplied the canon of constitutional avoidance, because
its reading of § 1225(b) was implausible. 138 S. Ct. at 842. It explained that “[r]ead most
naturally, §§ 1225(b)(1) and (b)(2) mandate detention of applicants for admission until certain
proceedings have concluded.” Id. It also rejected the argument that those provisions contain an
implicit six-month limit on the length of detention, observing that “nothing in the statutory text
imposes any limit on the length of detention” or “even hints that those provisions restrict
detention after six months.” Id. at 842, 843. As to the canon of constitutional avoidance, the
Court held that “[s]potting a constitutional issue does not give a court the authority to rewrite a
statute as it pleases . . . [i]nstead, the canon permits a court to ‘choos[e] between competing
plausible interpretations of a statutory text.’” Id. at 843. The Court remanded the action to the
Ninth Circuit for a determination of whether 1225(b) is constitutional on its face. Id. at 851.
When read together, these opinions delineate a basic framework for evaluating INA’s
various detention provisions. Under the framework, a detention provision is more likely to be
constitutionally problematic if it has the following characteristics: (1) it authorizes indefinite
43
detention, with no clearly defined end point; (2) it applies to aliens who are considered under the
law to have entered the United States, whether legally or illegally; and (3) it applies to aliens
who may not have been accused or convicted of a crime. Plaintiffs note that, applying this
framework, courts in other jurisdictions have interpreted 1225(b) to authorize detention for what
they view as a constitutionally reasonable amount of time, after which the government must
make an individualized inquiry into whether detention is still necessary. See Abdi, 280 F. Supp.
3d at 391–93 (collecting cases); Ahad v. Lowe, 235 F. Supp. 3d 676, 688 (M.D. Pa. 2017)
(holding that the plaintiff POE asylum seeker, detained under 1225(b) for 20 months, was
entitled to a bond hearing); Maldonado v. Macias, 150 F. Supp. 3d 788, 812 (W.D. Tex. 2015)
(granting habeas relief to § 1225(b) detainee after two years' detention). The Court will apply
this framework to Plaintiffs here.
Plaintiffs are unlikely to succeed on their request for bond hearings
Having considered the legal principles laid out above, the Court is not persuaded that
Plaintiffs are likely to successfully argue that they have a due process right to individualized
bond hearings before immigration judges. Unlike the class of aliens considered in Zadvydas,
who could have legally resided in the United States before being detained, Plaintiffs are arriving
aliens, considered under the law to have never entered the United States. 19 See 8 U.S.C. §
1225(b). Furthermore, unlike the statute evaluated in Zadvydas, which authorized potentially
indefinite detention, § 1225(b)(1)(B)(ii), under which Plaintiffs are or were detained, authorizes
detention only until an asylum seeker’s asylum petition is approved or denied. According to
19
This includes Aracely R., even though she was paroled into the United States. See 8
U.S.C. § 1182(d)(5)(A).
44
Defendants, Mikailu J.’s asylum petition was denied within a year of arriving at the border, 20
Defs.’ Opp’n at 10, as was Sadat I.’s, id. at 11. Their circumstances suggest a more abbreviated
detention period than the period faced by the Zadvydas plaintiffs, and Plaintiffs have not
provided data on the average length of detention under § 1225(b)(1)(B)(ii). These factual
differences render Plaintiffs’ detention less constitutionally problematic than the plaintiffs’
detention in Zadvydas.
Further, after Jennings, courts may no longer read a bond hearing requirement into §
1225(b), as the courts did in the cases cited by Plaintiffs. Jennings, 138 S. Ct. at 851. While
Mezei may be under siege, it is still good law, and it dictates that for an alien who has not
effected an entry into the United States, “[w]hatever the procedure authorized by Congress is, it
is due process as far as an alien denied entry is concerned.” Mezei, 345 U.S. at 212 (internal
quotation marks omitted). Under the high threshold established when a party seeks preliminary
injunctive relief that alters the status quo, and considering the current legal landscape, the Court
concludes that Plaintiffs have not sufficiently demonstrated that they are likely to succeed on the
merits of this issue.
b. Alleged Improper Deterrence Policy
The second core component of Plaintiffs’ suit is that ICE has adopted an unwritten,
unlawful parole policy aimed at deterring immigration. In Plaintiffs’ amended complaint, this
claim finds voice in three distinct theories under the APA: (1) the policy contradicts the Morton
Directive, rendering it arbitrary and capricious, TAC ¶ 137(D); (2) the policy “impacts
substantive rights but has not passed through any required rule-making procedures,” also
20
Mikailu J. remains detained under § 1225(b)(1)(B)(ii) pending an appeal of his asylum
petition denial. Pls.’ Am. Reply at 7.
45
rendering it arbitrary and capricious, TAC ¶ 137(A); and (3) the policy violates the INA and the
Constitution, and is thus contrary to law, TAC ¶¶ 137(B)–(C). Plaintiffs also challenge the
policy by way of a freestanding Fifth Amendment claim. TAC ¶ 115. Because the Court
concludes that Plaintiffs’ first APA theory, standing alone, warrants preliminary injunctive relief
with respect to Plaintiffs’ parole determinations, it need not reach Plaintiffs’ other theories. The
Court will begin with a discussion of the alleged deterrence policy’s existence. It will then
analyze Plaintiffs’ likelihood of success on their APA claims arising from the policy.
Existence of a Policy
Plaintiffs maintain that Defendants developed and implemented an unwritten policy
directing ICE officials to consider immigration deterrence as a factor in evaluating individual
POE asylum seekers’ parole requests. Pls.’ Am. Mem. at 17–20. They also argue that they were
repeatedly denied parole because of this policy, despite their clear eligibility under the Morton
Directive. Id. at 21. And they argue that this policy was applied with renewed vigor after the
2016 Presidential election. Pls.’ Am. Mem. at 17–18. Defendants deny that any such policy
exists. Defs.’ Am. Opp’n at 20–22. Plaintiffs’ assertions, however, find support in the record.
First, Plaintiffs’ briefs and exhibits reference government policy statements and orders
that they claim tend to suggest a deterrence policy. For instance, in 2014, then-Secretary of
Homeland Security Jeh Johnson announced before Congress the implementation of an
“aggressive deterrence strategy” aimed at discouraging migration to the United States. Human
Rights First, Lifeline on Lockdown, Pls.’ Am. Mem. Ex. 16 at 9, ECF No. 74-19 (citing a July 10,
2014 statement by Secretary Johnson before the Senate Appropriations Committee). Also in
2014, Secretary Johnson issued a policy memorandum establishing that individuals detained at
ports of entry, among other categories of immigrants, should be considered a “category 1
46
enforcement priority,” which mandated increased focus on their detention. Decl. of Eleanor
Acer (“Acer Decl.”) ¶ 16, Pls.’ Am. Mem. Ex. 11, ECF No. 74-14; Lifeline on Lockdown at 10.
Similarly, in early 2017, President Trump issued Executive Order No. 13767, entitled “Border
Security and Immigration Enforcement Improvements,” which instructs the Secretary of
Homeland Security to construct additional detention facilities, “end the abuse of parole and
asylum provisions currently used to prevent the lawful removal of removable aliens,” and issue
new policy guidance “including the termination of the practice commonly known as ‘catch and
release.’” See generally Pls.’ Am. Mem. Ex. 14, ECF No. 74-17. And in then-Secretary of
Homeland Security John Kelly’s memorandum implementing that Executive Order, Secretary
Kelly stated that “[t]he practice of granting parole to certain aliens in pre-designated categories .
. . created an incentive for additional illegal immigration.” Pls.’ Am. Mem. Ex. 15 at 9, ECF No.
74-18. In urging ICE to attack this incentive by re-examining its parole determinations,
Secretary Kelly was in effect urging ICE to deter immigration.
Second, Plaintiffs’ submissions reference public statements by high level government
officials, and news articles quoting government sources, indicating the existence of a deterrence
policy influencing all aspects of DHS’s administration of the INA. For instance, Plaintiffs’
recent Motion to Present Three Exhibit Updates includes an interview with former Secretary
Kelly, who is now the White House Chief of Staff, in which Mr. Kelly stated that “a big name of
the game is deterrence” when it comes to prosecutorial discretion in enforcing the INA.
Proposed Ex. 26 at 4, ECF No. 89-1. 21
21
Moreover, several recent news articles allege that the current presidential
administration has sought to deter immigration—both legal and illegal—through the enforcement
of INA provisions unrelated to parole determinations. See Julia Ainsley, Trump Admin
Discussed Separating Moms, Kids to Deter Asylum-Seekers in Feb. 2017, NBC News (June 18,
47
Third, Plaintiffs note that the government has referenced a deterrence policy in other
litigations. See R.I.L-R, 80 F. Supp. 3d at 175 (noting that the government has claimed that “ICE
officials are required to follow the binding precedent contained in Matter of D---J---, 23 I. & N.
Dec. 572 (2003), in which then-Attorney General John Ashcroft held that deterrence of mass
migration should be considered in making custody determinations under [a different INA
provision]”). While Defendants have not admitted to a deterrence policy here, as they did in
their R.I.L-R briefing, id., they do not contest that the government has referenced such a policy
before other courts.
Fourth, Plaintiffs have provided declarations and reports from immigration lawyers, non-
governmental organizations, and other experts who claim that the alleged deterrence policy
causes ICE officials to deny parole to POE asylum seekers who would otherwise qualify for
2018, 3:43 PM), https://www.nbcnews.com/politics/immigration/trump-admin-discussed-
separating-moms-kids-deter-asylum-seekers-feb-n884371 (discussing notes from a “town hall”
held for ICE asylum officers in February 2017 in which the agency’s asylum chief allegedly
“laid out a number of policies specifically intended to lower the number of immigrants claiming
asylum”); John Haltiwanger, John Kelly Proposed Separating Children From Their Parents to
Deter Illegal Immigration Last Year, and Now the Trump Administration Can’t Get Its Story
Straight, Business Insider, (June 18, 2018, 1:04 PM), http://www.businessinsider.com/kelly-
proposed-family-separation-to-deter-illegal-immigration-in-2017-2018-6 (discussing the
administration’s “inconsistent justifications” for its recent shift towards “zero tolerance”
immigration law enforcement, and quoting former Secretary Kelly as stating that he “would do
almost anything to deter the people from Central America to getting on this very, very dangerous
network that brings them up through Mexico into the United States.”); Tal Kopan, Exclusive:
Trump Admin Thought Family Separations Would Deter Immigrants. They Haven’t., CNN
Politics, (June 18, 2018, 12:25 PM), https://www.cnn.com/2018/06/18/politics/family-
separation-deterrence-dhs/index.html (describing “internal [DHS] documents obtained by CNN”
evaluating a “Prosecution Initiative” designed to deter immigration by referring all adults caught
illegally crossing the border to the Department of Justice for prosecution); John Burnett, To Curb
Illegal Immigration, DHS Separating Families at the Border, NPR (Feb. 27, 2018, 7:41 AM),
https://www.npr.org/2018/02/27/589079243/activists-outraged-that-u-s-border-agents-separate-
immigrant-families (quoting an ICE executive associate director as stating that “[w]e need to
realize that stopping this flow [of asylum seekers] and preventing these crossings is the best
thing that we can do right now”).
48
parole under the Morton Directive. For instance, Eleanor Acer, the Senior Director for Refugee
Protection at Human Rights First, stated that:
“[t]hese practices of preventing release or severely restricting options for release of
individuals who meet the criteria for parole, despite the clear directions provided in
the 2009 asylum parole directive, are part of a policy to deter individuals from
coming to the United States to seek asylum, and to in effect punish those who
already have done so.”
Acer Decl. ¶ 1, 23. Similarly, Bethany Carson, an immigration researcher at Grassroots
Leadership, stated that she has observed a trend “that the majority of detained individuals who . .
. came through ports of entry are not assigned a bond by ICE and are not paroled.” Decl. of
Bethany Carson (“Carson Decl.”) ¶ 1, 22, Pls.’ Am. Mem. Ex. 8, ECF No. 74-11. And in a
Human Rights First survey of immigration attorneys who had been in the field for more than ten
years, 90 percent stated that “ICE denied parole despite asylum seekers providing ample
evidence to establish their identities and prove that they did not pose a flight risk or security
risk.” Acer Decl. ¶ 18. In a similar survey, nearly half of the participants agreed that Secretary
Johnson’s 2014 policy memorandum caused an increase in parole denials. Lifeline on Lockdown
at 20. According to Human Rights First, the research indicates that “many asylum seekers have
been denied parole even when they meet [the Morton Directive] criteria.” Id. at 13. Finally,
according to a different Human Rights First report, ICE “largely refused to release asylum
seekers from detention on parole” in the first eight months following the issuance of President
Trump’s 2017 Executive Order. Human Rights First, Judge and Jailer: Asylum Seekers Denied
Parole in Wake of Trump Executive Order, Pls.’ Am. Mem. Ex. 17 at 1, ECF No. 74-20.
Fifth, Plaintiffs provide data that they claim suggests an abrupt decline in the percentage
of successful parole requests by POE asylum seekers in the years since the Morton Directive was
implemented. A Human Rights First report indicates that in 2010, ICE detained, without parole,
49 percent of asylum seekers with positive credible fear determinations, while in 2014 ICE
49
detained 84 percent of these individuals. Acer Decl. ¶ 19. Eunice Lee, the Co-Legal Director of
the Center for Gender & Refugee Studies at the University of California Hastings College of
Law, provided more detailed statistics indicating a marked drop in the parole grant rate of certain
ICE detention centers from 2016 to 2017. Decl. of Eunice Lee (“Lee Decl.”) ¶ 1, 5–6, Pls.’ Am.
Mem. Ex. 10, ECF No. 74-13. For instance, according to her research, the parole grant rate for
the Port Isabel, Texas Detention Center was approximately 35% in 2016, and approximately 9%
in 2017. Id. ¶¶ 5–6. Similarly, the parole grant rate for the South Texas Detention Center was
approximately 50% in 2016, and approximately 26% in 2017. Id. Anne Daher, a Staff Attorney
at the Center for Gender & Refugee Studies, stated that the combined parole denial rate for the
Detroit, El Paso, Los Angeles, Newark, and Philadelphia ICE Field Offices from January 2011
through December 2013 was 8%, while the combined parole denial rate for those Field Offices in
February 2017 was over 96%. Pls.’ Mot. Present Three Ex. Updates, Proposed Ex. 27 at 11–13,
ECF No. 89-2. 22
Finally, Plaintiffs have described their own experiences with the alleged policy.
According to Sadat I., when he was first detained at a United States port of entry, the guards told
him and the other detainees that they were being punished for entering the United States
“without legal documents.” Sadat I. Decl. ¶ 6. He also claims to have been held in a cold cell
called the “Ice Box” as a form of punishment because—he was allegedly told by the guards—the
detainees should not have come to the United States, and the Ice Box experience would convince
them to tell their friends not to come. Id. And he claims that at one point he was told that he
would be released on parole, but in November 2017 he was abruptly told that this was no longer
22
Because this Proposed Exhibit contains multiple declarations with overlapping
paragraph numbers, the Court cites to the page numbers automatically generated by ECF.
50
possible because of “[the] election.” Id. ¶ 11. Finally, ICE officials allegedly initially
determined that Aracely R. was deemed eligible for parole, but this determination was abruptly
cancelled and her parole request was denied, purportedly because of the deterrence policy. See
Pls.’ Am. Mem. at 18 n.19; see also Ex. 23, ECF No. 74-22.
Defendants put forth three rebuttal arguments. First, they provide the declaration of
Deborah Achim, the Deputy Field Office Director in ICE’s San Antonio Field Office, who states,
without elaborating, that “ICE does not have a policy of relying on deterrence as a factor in
parole determinations.” Achim Decl. ¶ 1, 4. Second, they argue that the fact that Plaintiff Hatim
B. was granted asylum and Plaintiff Aracely R. was granted parole “is significant evidence that
there is no policy of deterrence.” Defs.’ Am. Opp’n at 21. Third, they point out that Plaintiffs
assert that the alleged deterrence policy was formulated in 2014, but the data they rely upon
shows a decline in parole grant rates beginning as far back as 2010, before the alleged policy was
hatched. Id. They argue that “Plaintiffs’ faulty timeline cuts into the essential inference
undergirding the entire case.” Id. None of these arguments is sufficient to rebut Plaintiffs’
evidence.
First, Ms. Achim’s self-serving declaration is not sufficient to discredit Plaintiffs’
substantial volume of evidence indicating the existence of a deterrence policy outside the scope
of the Morton Directive influencing parole determinations. Her conclusory denial of a policy,
without elaboration, fails to acknowledge that Defendants have conceded that a deterrence policy
existed in the past. See R.I.L-R, 80 F. Supp. 3d at 175. Defendants fail to explain when such a
policy ceased to exist and why, despite the policy’s alleged discontinuation, parole numbers
continue to plummet. While it is true that Plaintiffs have not supplied a statement from an
individual with firsthand knowledge of the alleged policy, they have supplied sufficient
51
circumstantial evidence to suggest that they are likely to establish the existence of a deterrence
policy as the litigation progresses.
Second, the changed circumstances of Hatim B. and Aracely R., if anything, support
rather than discredit Plaintiffs’ contentions because they were repeatedly denied parole under 8
C.F.R. § 212.5(b)(5), despite apparently falling within the Morton Directive’s scope. Hatim B.
requested asylum in early 2017, he presented affidavits and a birth certificate, he presented a
letter of sponsorship from a local shelter for asylum seekers, he presented a background check
indicating no criminal history, and he was still denied parole twice before his asylum was
granted by an immigration judge. Decl. of Hatim B. (“Hatim Decl.”) ¶¶ 5–6, Pls.’ Am. Mem.
Ex. 2, ECF No. 74-4; Achim Decl. ¶ 5. Aracely R. was denied parole under § 212.5(b)(5) until
her medical condition became so severe that she required emergency surgery, warranting parole
under § 212.5(b)(1). See Aracely Decl. ¶ 6; Decl. of Dr. Marsha Griffin, Pls.’ Am. Mem. Ex. 6,
ECF No. 74-9; Decl. of Dr. Mike Krosin, Pls.’ Am. Mem. Ex. 12, ECF No. 74-15. Their
circumstances suggest that ICE denied their parole pursuant to the alleged deterrence policy until
it was forced to release them.
Third, the mere fact that ICE officials may have been disregarding the Morton Directive
before Plaintiffs can pinpoint evidence of a deterrence policy, in 2014, does not undercut
Plaintiffs’ argument that such a policy existed. The fact that a policy was “openly announced
and recognized” in 2014 does not establish that it did not exist before then. TAC ¶ 43.
Furthermore, Plaintiffs have put forth evidence that the alleged policy was re-emphasized after
the 2016 Presidential election, resulting in an additional drop in the parole grant rate. As the
litigation progresses, Plaintiffs will have the opportunity to further refine the period during which
Defendants’ alleged deterrence policy has been in place, and Defendants will have the
52
opportunity to rebut Plaintiffs’ evidence. At this stage, Plaintiffs’ unrebutted statistical evidence
of a significant decline in parole grants is sufficient to outweigh Defendants’ weak challenge.
See Damus, 2018 WL 3232515, at *15.
Having considered the evidence presented by both parties, the Court is satisfied that
Plaintiffs are likely to show that Defendants have implemented a policy of taking immigration
deterrence into account when making individual parole determinations for POE asylum seekers,
and that this policy likely played a significant role in the repeated denials of Plaintiffs’ parole
requests. Discovery may show otherwise, but Plaintiffs have met the threshold required to obtain
a preliminary injunction.
Likelihood of Success
Having determined that Plaintiffs are likely to show that ICE officials considered
immigration deterrence when making parole determinations, the Court will determine whether
Plaintiffs are likely to successfully challenge that policy under the APA. Plaintiffs assert that the
policy is inconsistent with the parole factors established by the Morton Directive, and is
therefore arbitrary and capricious under the APA. Pls.’ Am. Mem. at 29–32. Defendants, on the
other hand, argue that “[b]ecause the [Morton Directive] is not a regulation, it lacks the force of
law and cannot sustain either a constitutional claim or claim based on a question of law.” Defs.’
Am. Opp’n at 20. The Court is unconvinced by Defendants’ arguments. It concludes that
Plaintiffs have demonstrated that they are likely to succeed in showing that Defendants’ failure
to comply with the Morton Directive in declining their parole requests was arbitrary and
capricious, in violation of the APA.
An agency is bound to adhere to its own regulations. This principle was first established
by the Supreme Court in U.S. ex rel. Accardi v. Shaughnessy. See 347 U.S. 260 (1954). In that
53
case, an alien challenged the U.S. Board of Immigration Appeals’ decision to deny his
application to suspend deportation, arguing that the Attorney General prejudiced the Board’s
decision in contravention of regulations directing the Board to exercise its own discretion. 347
U.S. at 261–62. Agreeing with the alien, the Court ordered a new Board hearing because of “the
Board’s alleged failure to exercise its own discretion, contrary to existing valid regulations.” Id.
at 268 (emphasis in original). 23
The Supreme Court expanded this principle to cover internal agency policies in Morton v.
Ruiz, which involved a dispute over whether Native Americans were eligible for certain federal
benefits. See 415 U.S. 199, 204–06 (1974). An internal agency manual dictated that the
eligibility requirements should have been published in the Federal Register by the agency
administering the benefits program, but the agency had not published them. Id. at 234–35. The
Court held that the agency’s failure to comply with its internal manual was arbitrary and
capricious under the APA because “[w]here the rights of individuals are affected, it is incumbent
upon agencies to follow their own procedures . . . even where the internal procedures are
possibly more rigorous than otherwise would be required.” Id. at 235.
These principles dictate that agency actions may be arbitrary and capricious when they do
not comply with binding internal policies governing the rights of individuals. For instance, in
Doe v. Hampton, the physically disabled plaintiff challenged her termination because the
defendant agency failed to comply with an internal manual dictating that the agency should
23
In this jurisdiction, there is one line of cases based on the “Accardi” doctrine, and
another line of cases under the APA concerning whether agencies must abide by their policy
statements and other internal documents. See Wilkinson v. Legal Servs. Corp., 27 F. Supp. 2d
32, 65 (D.D.C. 1998) (describing the Accardi doctrine and its intersection with the APA).
However, “the coexistence” of the two doctrines “has been for the most part benign,” because
“under either theory, enforceable rules are those to which the agency intends to be bound.” Id.54
reassign the plaintiff or grant her leave without pay before terminating her. See 566 F.2d 265,
280 (D.C. Cir. 1977). In directing the district court to resolve whether the agency was bound to
its manual, the D.C. Circuit noted that “some unpublished provisions may be binding [on the
agency] if so intended [by the agency] . . . as ascertained by an examination of the provision’s
language, its context, and any available extrinsic evidence.” Id. at 281. 24 Similarly, in Abdi, a
case Plaintiffs rely upon heavily, the court held that the plaintiffs could successfully challenge
ICE’s failure to comply with the Morton Directive because “the [Morton Directive]—like the
procedure at issue in Morton—affects the rights of individuals.” 280 F. Supp. 3d at 388–89; see
also INS v. Yang, 519 U.S. 26, 31–32 (1996) (“Though the agency’s discretion is unfettered at
the outset, if it announces and follows—by rule or by settled course of adjudication—a general
policy by which its exercise of discretion will be governed, an irrational departure from that
policy (as opposed to an avowed alteration of it) could constitute action that must be overturned
as ‘arbitrary, capricious, [or] an abuse of discretion’”); Lopez v. FAA, 318 F.3d 242, 246–48
(D.C. Cir. 2003) (“[A]gencies cannot ‘relax or modify’ regulations that provide the only
safeguard individuals have against unlimited agency discretion in hiring and termination.”);
Ravulapalli v. Napolitano, 773 F. Supp. 2d 41, 53–54 (D.D.C. 2011) (holding that the plaintiff
stated an APA claim based on the allegation that the defendant failed to follow internal policy
guidelines directing its review of the plaintiff’s visa petition); Damus, 2018 WL 3232515, at *14.
The Morton Directive’s provisions make clear that it governs the rights of POE asylum
seekers requesting parole, and therefore that it can support an APA claim under Morton. See 415
U.S. at 235. The Directive lays out specific factors to be applied when making individual parole
24
The Doe court did not address an APA challenge, but the Court finds its reasoning
instructive for evaluating whether an internal agency policy may support such a challenge.
55
determinations, and it establishes procedural rights for asylum seekers in connection with the
parole process. The Directive states that its purpose is to “ensure transparent, consistent, and
considered ICE parole determinations for arriving aliens seeking asylum in the United States.”
Morton Directive ¶ 1. More specifically, it purports to explain “how [8 C.F.R. § 212.5(b)(5)] is
to be interpreted by DRO when it decides whether to parole arriving aliens determined to have a
credible fear.” Id. ¶ 4.4. 25
The Directive states that “when an arriving alien . . . establishes to the satisfaction of
DRO his or her identity and that he or she presents neither a flight risk nor danger to the
community, DRO should, absent additional factors . . . parole the alien on the basis that his or
her continued detention is not in the public interest.” Id. ¶ 6.2. The Directive proceeds to
explain how a parole applicant may establish his or her identity and prove that he or she is not a
flight risk or a danger to the community. Id. ¶ 8.3. It also explains that the “additional factors”
that may be considered include “serious adverse foreign policy consequences that may result if
the alien is released or overriding law enforcement interests.” Id. ¶ 8.3(4). In addition, the
Directive establishes a serious of procedural requirements for ICE officials making parole
determinations. Id. ¶¶ 6.1, 6.2, 6.5–6.7. By its text, the Directive imposes procedural and
substantive obligations under which “its exercise of discretion will be governed,” and the rights
of parole seekers will be impacted. Yang, 519 U.S. at 31–32.
25
As a reminder for the reader, 8 C.F.R. § 212.5(b) governs parole of the following
subgroups of POE asylum seekers: (1) aliens who have serious medical conditions, where
continued detention would not be appropriate; (2) women who have been medically certified as
pregnant; (3) certain juveniles; (4) aliens who will be witnesses in proceedings being, or to be,
conducted by judicial, administrative, or legislative bodies in the United States; or (5) aliens
whose continued detention is not in the public interest. § 212.5(b)(1)–(b)(5). Plaintiffs believe
that, pursuant to the Morton Directive, they fall within subgroup (5).
56
Further, Plaintiffs persuasively contend that Defendants have indicated an intent to be
bound by the Morton Directive. First, the Morton Directive itself indicates that ICE officials
must comply with its guidance. It establishes a quality assurance procedure, including
nationwide monthly compliance analyses, and it states that “[a]ny significant or recurring
deficiencies identified during this monthly analysis should be explained to the affected Field
Office, which will take appropriate corrective action.” Morton Directive ¶ 8.11. Second, the
government represented to the Supreme Court in February 2017, in support of its position that
bond hearings are not required for detained POE asylum seekers, that “the existing framework
provides more than sufficient process” because the Morton Directive “provides for notice to the
alien, an interview, the opportunity to respond and present evidence, a custody determination . . .
supervisory review, and further parole consideration based upon changed circumstances or new
evidence.” Supplemental Reply Brief for Petitioners at 6–7, Jennings v. Rodriguez, No. 15–1204
(brief filed Feb. 21, 2017). Third, in his 2017 memorandum implementing Executive Order No.
13767, described above, Secretary Kelly stated that “the Ice [Directive] . . . shall remain in full
force and effect,” and that it “shall be implemented in a manner consistent with its plain
language.” Pls.’ Am. Mem. Ex. 15 at 9–10. Fourth, in declining a public interest group’s
request for rulemaking regarding POE asylum seekers’ custody determinations, ICE’s General
Counsel stated that “DHS’s parole decisions are governed by [the Morton Directive], which
establish extensive procedural safeguards.” Pls.’ Am. Mem. Ex. 24 at 8, ECF No. 74-23.
Finally, Defendants refer to the Morton Directive as “very binding, written guidance” in their
briefing. Defs.’ Opp’n at 2. Defendants cannot have their cake and eat it too by claiming that
the Morton Directive provides sufficient procedural protection to avoid Constitutional concerns,
57
while also claiming that ICE officials are not obligated to follow its mandates. See Hampton,
566 F.2d at 281.
Defendants urge the Court to weigh heavily the Directive’s disclaimer that it “is not
intended to, shall not be construed to, may not be relied upon to, and does not create, any rights,
privileges, or benefits, substantive or procedural, enforceable by any party against the United
States.” Morton Directive ¶ 10. They argue that this language insulates the Directive from
forming the basis of Plaintiffs’ APA claims. Defs.’ Opp’n at 7 n.2. The Court is not convinced
that an agency can avoid challenges based on a policy that appears to be binding and that impacts
the rights of individuals, simply by including a boilerplate disclaimer. See Damus, 2018 WL
3232515, at *14.
In support of their contention, Defendants rely on a 1981 Supreme Court decision,
Schweiker v. Hansen. Defs.’ Am. Opp’n at 20. In Schweiker, the Court held that a government
employee’s “minor breach” of an agency’s internal agency guidelines did not justify the Court
estopping the agency’s denial of certain benefits to the plaintiff, where that denial likely would
not have occurred without the breach. 450 U.S. 785, 789–90 (1981), superseded by statute on
other grounds, Budget Reconciliation Act of 1989, Pub. L. No. 101-239, § 10302, 103 Stat.
2481.. The Court relied heavily on the manual’s internal nature, stating that if a “minor breach of
such a manual suffices to estop petitioner, then the Government is put at risk that every alleged
failure by an agent to follow instructions to the last detail in one of a thousand cases will deprive
it of the benefit of the written application requirement.” Id. (citation and internal quotation
marks omitted). Similarly, in a case not cited by Defendants, the D.C. Circuit held that U.S.
Department of Justice’s internal guidelines for issuing subpoenas to news media were not
binding on the government because the guidelines had very similar disclaimer language to the
58
Morton Directive and they related to prosecutorial discretion. In re Grand Jury Subpoena,
Judith Miller, 438 F.3d 1141, 1152 (D.C. Cir. 2006). The Court noted that “[g]iven the nature of
the guidelines themselves, and the function they govern, we conclude that the guidelines provide
no enforceable rights to any individuals, but merely guide the discretion of the prosecutors.” Id.
at 1153.
These cases are factually distinguishable. The internal manual provision at issue in
Schweiker merely dictated that employees should advise individuals about certain benefits when
those individuals made oral inquiries—it did not mandate specific rights or procedures. See 450
U.S. at 789–90. The Supreme Court noted that “at worst, [the agency employee’s] conduct did
not cause respondent to take action, or fail to take action, that respondent could not correct at any
time.” Id. (internal citations omitted). Here, however, the Morton Directive identifies specific
factors and procedural requirements governing the deprivation of Plaintiffs’ liberty, a decision
over which they have very little control. And in both Schweiker and Judith Miller, there was no
evidence that the agency relied upon the relevant internal guidelines in litigation, nor that it
otherwise intended to be bound by them. See Abdi, 280 F. Supp. 3d at 389 (“In short,
Respondents cite no case law that would compel the conclusion that agencies can avoid
application of Accardi by simply disclaiming any binding effect in the directive itself.”). The
Court therefore declines to follow those cases here. 26
26
Defendants also correctly note that agency officials are entitled to a presumption that
they have properly discharged their duties. Defs.’ Opp’n at 35; see United States v. Chem.
Found., Inc., 272 U.S. 1, 14–15 (1926) (citations omitted). However, the presumption may be
rebutted by clear evidence to the contrary. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106,
1117 (D.C. Cir. 2007) (citations omitted). As discussed above, the Court concludes that
Plaintiffs have put forth sufficient evidence that ICE officials failed to properly apply the Morton
Directive when making parole determinations, and that they applied an improper factor.
Defendants are therefore not entitled to the “presumption of regularity.” Chem. Found., 272 U.S.
at 14–15.
59
Having determined that the Morton Directive is binding on Defendants, the Court
concludes that Defendants’ deterrence policy does not align with the Directive’s parole decision
factors. The Directive mandates that an alien’s “continued detention is not in the public
interest,” and therefore that the alien should be paroled if the alien’s identity can be established
and he or she presents “neither a flight risk nor danger to the community.” Morton Directive ¶
6.2. Immigration deterrence, which is directed at third parties that have not yet travelled to this
country, does not relate to an individual parole applicant’s flight risk or danger to the
community. And while the Directive allows officials to consider “exceptional, overriding
factors,” including “serious adverse foreign policy consequences that may result if the alien is
released or overriding law enforcement interests,” Id. ¶ 8.3(4), Defendants have not characterized
their denial of Plaintiffs’ parole requests as addressing a “serious foreign policy consequence” or
an “overriding law enforcement interest.” In considering deterrence as a factor in parole
determinations, ICE officials are therefore circumventing the factors laid out in the binding
Directive. 27 Because Plaintiffs have demonstrated the incompatibility of the deterrence policy
and the Directive, they have met their burden of showing a likelihood of success on the merits of
their APA challenge to Defendants’ deterrence policy. 28 See Venetian Casino Resort, 530 F.3d
27While Plaintiffs focus on Defendants’ alleged failure to apply the parole factors laid
out in the Morton Directive, there is evidence in the record that Defendants also failed to adhere
to the Directive’s procedural requirements. For instance, the Directive requires that an ICE
official conduct a parole interview “no later than seven days following a finding that an arriving
alien has a credible fear,” Morton Directive ¶ 8.2, but some Plaintiffs claim to have not received
an interview. See Aracely Decl. ¶ 6; Hatim Decl. ¶ 5. Similarly, the Directive requires that if
ICE denies parole to a POE asylum seeker, it must provide that individual with a letter that
includes “a brief explanation of the reasons for denying parole.” Morton Directive ¶ 8.2.
However, certain of Plaintiffs’ parole rejection letters contain boilerplate language that does not
sufficiently explain why parole was denied. See generally Pls.’ Am. Mem. Ex. 23.
28
As noted above, Plaintiff Sadat I.’s status is unclear. The Morton Directive is binding
only as to 8 C.F.R. § 212.5(b)(5). To the extent Sadat I. is eligible for parole under a different
60
at 934–35 (“To maintain two irreconcilable policies, one of which . . . apparently enables the
agency . . . to circumvent the other . . . is arbitrary and capricious agency action.”) (citation
omitted). 29
2. Irreparable Harm
The Court next considers whether Plaintiffs have met their burden of showing irreparable
harm. The parties agree that Plaintiff Mikailu J.’s current detention is covered by the Morton
Directive, and that Plaintiffs Sadat I. and Arcely R. were at one time detained under 8 U.S.C. §
1182(d)(5)(A), and therefore could have been paroled under the Directive. Plaintiffs argue that
(1) their alleged constitutional injuries are per se irreparable; and (2) they have suffered—and
will continue to suffer—negative physical and mental effects of detention, subpar medical and
psychiatric care, and economic burdens imposed on them and their families as a result of their
detentions. See Pls.’ Am. Mem. at 8–13. Defendants disagree, arguing that preliminary
injunctive relief is inappropriate because (1) Plaintiffs seek an injunction that would require the
regulation, Plaintiffs have not presented sufficient evidence for the Court to conclude that they
are likely to succeed in challenging that regulation.
29
The Court notes that Defendants’ deterrence policy also raises Constitutional questions,
insofar as it is used to justify Plaintiffs’ civil detention. Civil detention is justified “in certain
special and narrow nonpunitive circumstances, where a special justification, such as harm-
threatening mental illness, outweighs the individual’s constitutionally protected interest in
avoiding physical restraint.” Zadvydas, 533 U.S. at 690 (citations and internal quotation marks
omitted). The Supreme Court has held that detention of noncitizens awaiting immigration
proceedings may be justified to (1) prevent their flight; or (2) protect the community from aliens
found to be especially dangerous. See id. Civilly detaining Plaintiffs because it may deter
immigration “appears out of line with analogous Supreme Court decisions.” R.I.L-R, 80 F. Supp.
3d at 188–89 (enjoining ICE’s deterrence policy when used to justify the detention of a different
class of asylum seekers than Plaintiffs; noting that “[t]he justifications for detention previously
contemplated by the Court relate wholly to characteristics inherent in the alien himself or in the
category of aliens being detained . . . . The Government here advances an entirely different sort
of interest”). In light of the uncertainty regarding the due process rights of aliens considered to
have never entered the United States, and because Plaintiffs are entitled to preliminary injunctive
relief on the basis of their APA claims alone, the Court declines to address the policy’s
Constitutionality here.
61
Court to provide the same relief as Plaintiffs’ complaint requests; and (2) Plaintiffs “waited
months before filing for relief from detention.” Defs.’ Opp’n at 40–43. Plaintiffs’ argument
carries the day.
“The concept of irreparable harm does not readily lend itself to definition.” Judicial
Watch, Inc. v. DHS, 514 F. Supp. 2d 7, 10 (D.D.C. 2007). Nonetheless, the D.C. Circuit has laid
out “several well known and indisputable principles” that should underlie a court’s analysis.
Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam). First, the party seeking
preliminary injunctive relief must demonstrate that the claimed injury is “both certain and great”
and “actual and not theoretical.” Id. Second, the movant “must show that ‘the injury
complained of [is] of such imminence that there is a ‘clear and present’ need for equitable relief
to prevent irreparable harm.’” Id. (alterations in original) (quoting Ashland Oil, Inc. v. FTC, 409
F. Supp. 297, 307 (D.D.C. 1976)). Finally, the injury must be “beyond remediation.”
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006).
In light of these legal principles, the Court concludes that Plaintiffs have met their burden
of showing irreparable harm. Plaintiffs allege various physical and psychological impairments
that have resulted from or worsened due to their prolonged detention. For instance, Plaintiffs
describe symptoms of increasing mental distress. See generally Aracely Decl. ¶ 19 (“I must
admit that my depression is very bad now”); Sadat Decl. ¶ 27 (“Some days I am so despondent
and without hope that I do not want to do anything at all”); Decl. of Andrea Northwood ¶¶ 5, 8–
22, Pls.’ Am. Mem Ex. 7, ECF No. 74-10 (describing the impact “of prolonged detention on the
mental health of asylum seekers who have experienced significant and repeated trauma”).
Plaintiffs also describe symptoms of increasing physical distress. See generally Aracely Decl. ¶
15 (describing an infection due to poor sanitation); Hatim Decl. ¶ 11 (describing “debilitating”
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stomach problems due to poor diet); Sadat Decl. ¶ 19; Mikailu Decl. ¶ 22 (describing “stabbing
chest pains” and vomiting); see generally Carson Decl.; Decl. of Clara Long, Pls.’ Am. Mem.
Ex. 9, ECF No. 74-12. Plaintiff Sadat I. further claims that the privacy and safety restrictions
imposed during his detention impaired his ability to fully prepare his asylum petition. Sadat
Decl. ¶ 10.
Courts in this and other jurisdictions have found that deprivations of physical liberty of
the type suffered by Plaintiffs are the sort of actual and imminent injuries that constitute
irreparable harm. See Abdi, 280 F. Supp. 3d at 405–06 (collecting cases); Seretse–Khama v.
Ashcroft, 215 F. Supp. 2d 37, 53 n.20 (D.D.C. 2002) (same); Damus, 2018 WL 3232515, at *17.
Courts have likewise recognized that the “major hardship posed by needless prolonged
detention” is a form of irreparable harm. R.I.L–R, 80 F. Supp. 3d at 191 (quoting Rodriguez v.
Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013)). And, where a plaintiff requests injunctive relief
mandating that an agency comply with a process that, if completed could secure the plaintiff’s
freedom or could alleviate harsh conditions of confinement, the harm from detention surely
cannot be remediated after the fact. See id.Defendants’ arguments to the contrary are unavailing. Defendants first complain that
Plaintiffs’ request for a preliminary injunction overlaps substantially with the complete relief
requested in this case. See Defs.’ Opp’n at 41–43. Defendants do not explain, however, why
this might lessen the harm associated with each additional day Plaintiffs endure purportedly
inappropriate detention. See id. The Court fails to see why it should deny relief on the basis that
Plaintiffs might eventually secure release after this Court addresses all facets of their complaint.
See Ramirez, 2018 WL 1882861, at *18.
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As for Defendants’ argument that Plaintiffs’ delay in filing the motion for a preliminary
injunction cuts against their contention that they have suffered irreparable harm, see Defs.’
Opp’n at 42, the Court also finds this ground insufficient to justify denying Plaintiffs’ motion.
The record shows that Plaintiffs filed their initial motion for a preliminary injunction
approximately four months after they filed the complaint. The rapidly changing legal landscape
governing the rights of asylum seekers has dictated multiple rounds of additional briefing and
amendments to Plaintiffs’ complaint, which delayed resolution of Plaintiffs’ application. The
Court does not believe that the delay “substantially undermines Plaintiffs’ contentions that
continued detention would harm them.” Ramirez, 2018 WL 1882861, at *18.
3. Balancing of the Equities and Public Interest
Finally, Plaintiffs contend that their irreparable harm in the absence of a preliminary
injunction outweighs any harm claimed by Defendants should the injunction be granted. Pls.’
Am. Mem. at 43–44. According to Plaintiffs, they have significant liberty interests at stake, and
continued detention without proper parole determinations would result in mental and emotional
harm and “a waste of taxpayer funding.” Id. On the other hand, in support of their argument that
the balance of equities weighs against granting a preliminary injunction, Defendants cite (1) the
fact that an injunction would alter, rather than preserve, the status quo; and (2) the public’s
interest in enforcement of the United States’ immigration laws. See Defs.’ Opp’n at 43–44. The
Court concludes that the balance of the hardships and public interest considerations favor
Plaintiffs.
In determining whether to grant a preliminary injunction “courts must balance the
competing claims of injury and must consider the effect on each party of the granting or
withholding of the requested relief.” Winter, 555 U.S. at 24 (internal quotation marks omitted)
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(quoting Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987)). “In exercising their sound
discretion, courts . . . should [also] pay particular regard for the public consequences in
employing the extraordinary remedy of injunction.” Id. (quoting Weinberger v. Romero–
Barcelo, 456 U.S. 305, 312 (1982)). These considerations merge into one factor when the
government is the non-movant. See Nken v. Holder, 556 U.S. 418, 435 (2009).
It is unclear to the Court how the relief requested will negatively impact Defendants,
because it is relatively minor. If granted, Defendants must only apply the Morton Directive in
evaluating Plaintiffs’ parole requests, without considering immigration deterrence as a factor
weighing in favor of denial. Defendants need not grant parole unless warranted by the
evaluation. If, as Defendants claim, the Morton Directive is already consistently applied and
there is no policy of deterrence, the new parole determinations can pose no harm to them. See
Ramirez, 2018 WL 1882861, at *18 (holding that the balance of equities favored the plaintiffs
where the defendants were not required to offer a “change in placement, unless warranted by [the
court’s required assessment],” and noting that “while [the defendants] are constrained by
Congress’s mandate, they have quite a bit of discretion in determining how to weigh the factors
and whether to provide a less restrictive setting”).
By contrast, denying the opportunity for parole determinations that comply with binding
ICE policy denies Plaintiffs an avenue through which to secure their liberty, even if only
temporarily. As courts in this jurisdiction have recognized, “[t]he public interest is served when
administrative agencies comply with their obligations under the APA.” R.I.L-R, 80 F. Supp. 3d
at 191 (citing N. Mariana Islands v. United States, 686 F. Supp. 2d 7, 21 (D.D.C. 2009));
Klayman v. Obama, 957 F. Supp. 2d 1, 43 (D.D.C. 2013)); Damus, 2018 WL 3232515, at *17.
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Defendants’ arguments to the contrary are unpersuasive. First, it is true that some district
courts in this Circuit apply a rule under which “where an injunction is mandatory—that is, where
its terms would alter, rather than preserve, the status quo by commanding some positive act—the
moving party must meet a higher standard than in the ordinary case by showing clearly that he or
she is entitled to relief or that extreme or very serious damage will result from the denial of the
injunction.” Columbia Hosp., 15 F. Supp. 2d at 4 (citation and internal quotation marks
omitted). Assuming such a rule applies, in this Court’s estimation, Plaintiffs have carried their
burden. Continued detention, where Plaintiffs might otherwise be eligible for conditional parole,
constitutes serious potential damage that merits an injunction.
Second, Defendants correctly state that the public has an interest in the enforcement of
immigration laws, but that interest does not favor denying Plaintiffs’ motion. While DHS surely
has substantial discretion in the area of immigration, cf. Arizona v. United States, 567 U.S. 387,
396, 408 (2012) (“A principal feature of the removal system is the broad discretion exercised by
immigration officials.”), Plaintiffs have identified a specific, binding agency policy constraining
ICE’s discretion. The public interest surely does not cut in favor of permitting an agency to fail
to comply with its own binding policies impacting the rights of individuals. See Jacksonville
Port Auth. v. Adams, 556 F.2d 52, 58–59 (D.C. Cir. 1977) (recognizing that “there is an
overriding public interest . . . in the general importance of an agency’s faithful adherence to its
statutory mandate”). Accordingly, the balance of interests weighs in favor of granting
preliminary injunctive relief to Plaintiffs.
* * *
In sum, the Court concludes that Plaintiffs have met their burden of showing that
preliminary injunctive relief is warranted. Plaintiffs have shown that it is likely that they will
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succeed on the merits of their claims because they have supplied evidence tending to show that
Defendants have considered immigration deterrence when making parole determinations, in
contravention of binding agency policy. Plaintiffs have also shown that they would suffer
irreparable harm in the absence of a preliminary injunction, and that a balancing of the equities
and public interest considerations favor granting their requested relief. Accordingly, the Court
orders Defendants to re-evaluate Plaintiff Mikailu J. for parole in strict compliance with the
Morton Directive, including its procedural requirements, and without considering immigration
deterrence, within two weeks of the date of the order accompanying this Opinion. Should
Plaintiff Aracely R.’s parole be revoked, Defendants shall similarly re-evaluate her parole
request.
VII. CONCLUSION
For the forgoing reasons, the Court hereby ORDERS:
1. Defendants’ Motion to Transfer Venue (ECF No. 38) is DENIED.
2. Plaintiffs’ Motion to Supplement the Prayer for Relief in their Application for a
Preliminary Injunction (ECF No. 79) is GRANTED.
3. Plaintiffs’ Motion to Present Three Exhibit Updates (ECF No. 89) is GRANTED.
4. Plaintiffs’ Application for a Preliminary Injunction (ECF No. 79-1) is GRANTED IN
PART. Defendants shall re-evaluate Plaintiff Mikailu J. for parole in strict
compliance with the Morton Directive, including its procedural requirements, and
without considering immigration deterrence, within two weeks of the date of the order
accompanying this Opinion. Should Plaintiff Aracely R.’s parole be revoked,
Defendants shall similarly re-evaluate her parole request.
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5. Plaintiffs’ Sealed Motions for Leave to File Documents Under Seal (ECF Nos. 55, 75,
and 90) are GRANTED.
6. Defendants’ Motion to Hold in Abeyance Briefing on Preliminary Injunction (ECF
No. 61) is DENIED AS MOOT.
Dated: July 3, 2018 RUDOLPH CONTRERAS
United States District Judge
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