Case: 3:18-cv-3539 As of: 05/05/2020 11:47 AM PDT 1 of 18
ADRMOP,CLOSED,CONSENT
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:18−cv−03539−LB

S.A. et al v. Trump et al Assigned to: Magistrate Judge Laurel Beeler Cause: 05:551 Administrative Procedure Act
Plaintiff S.A.

Date Filed: 06/13/2018 Date Terminated: 05/17/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Daniel B. Asimow Arnold & Porter Kaye Scholer LLP Three Embarcadero Center, 10th Floor San Francisco, CA 94111−4024 415−471−3100 Fax: 415−471−3400 Email: daniel.asimow@arnoldporter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John A. Freedman Arnold and Porter Kaye Scholer LLP 601 Massachusetts Ave., NW Washington, DC 20001−3743 (202) 942−5316 Fax: (202) 942−5999 Email: john.freedman@arnoldporter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Jonathan Weiner Arnold & Porter Kaye Scholer LLP 601 Massachusetts Ave., NW Washington, DC 20001−3743 202−942−5000 Fax: 202−942−5999 Email: david.weiner@arnoldporter.com ATTORNEY TO BE NOTICED
Justin Bryan Cox National Immigration Law Center P.O. Box 170208 Atlanta, GA 30317 516−701−4233 Fax: 929−999−8119 Email: jcox@refugeerights.org ATTORNEY TO BE NOTICED
Kathryn Claire Meyer International Refugee Assistance Project One Battery Park Plaza 4th Floor New York, NY 10004 United Sta 516−838−1975 Fax: 929−999−8119 Email: kmeyer@refugeerights.org ATTORNEY TO BE NOTICED
Linda Evarts International Refugee Assistance Project

Case: 3:18-cv-3539 As of: 05/05/2020 11:47 AM PDT 2 of 18

Plaintiff J.A.
Plaintiff A.B.

One Battery Park Plaza 4th Floor New York, NY 10004 516−838−1655 Fax: 929−999−8119 Email: levarts@refugeerights.org ATTORNEY TO BE NOTICED
Mariko Hirose International Refugee Assistance Project One Battery Park Plaza 4th Floor New York, NY 10004 516.701.4620 Fax: 929−999−8119 Email: mhirose@refugeerights.org ATTORNEY TO BE NOTICED
Matthew Harrison Fine Arnold & Porter Kaye Scholer LLP Three Embarcadero Center, 10th Floor San Francisco, CA 94111 415−471−3120 Fax: 415−471−3400 TERMINATED: 02/15/2019
represented by Daniel B. Asimow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Jonathan Weiner (See above for address) ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) ATTORNEY TO BE NOTICED
Kathryn Claire Meyer (See above for address) ATTORNEY TO BE NOTICED
Linda Evarts (See above for address) ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) ATTORNEY TO BE NOTICED
Matthew Harrison Fine (See above for address) TERMINATED: 02/15/2019
represented by Daniel B. Asimow (See above for address)

Case: 3:18-cv-3539 As of: 05/05/2020 11:47 AM PDT 3 of 18

Plaintiff R.C. on behalf of himself and as Guardian Ad Litem for J.C., a minor child
Plaintiff

LEAD ATTORNEY ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Jonathan Weiner (See above for address) ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) ATTORNEY TO BE NOTICED
Kathryn Claire Meyer (See above for address) ATTORNEY TO BE NOTICED
Linda Evarts (See above for address) ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Jonathan Weiner (See above for address) ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) ATTORNEY TO BE NOTICED
Kathryn Claire Meyer (See above for address) ATTORNEY TO BE NOTICED
Linda Evarts (See above for address) ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) ATTORNEY TO BE NOTICED
Matthew Harrison Fine (See above for address) TERMINATED: 02/15/2019

Case: 3:18-cv-3539 As of: 05/05/2020 11:47 AM PDT 4 of 18

M.C.
Plaintiff D.D.

represented by Daniel B. Asimow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Jonathan Weiner (See above for address) ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) ATTORNEY TO BE NOTICED
Kathryn Claire Meyer (See above for address) ATTORNEY TO BE NOTICED
Linda Evarts (See above for address) ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) ATTORNEY TO BE NOTICED
Matthew Harrison Fine (See above for address) TERMINATED: 02/15/2019
represented by Daniel B. Asimow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Jonathan Weiner (See above for address) ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) ATTORNEY TO BE NOTICED
Kathryn Claire Meyer (See above for address) ATTORNEY TO BE NOTICED
Linda Evarts (See above for address) ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) ATTORNEY TO BE NOTICED

Case: 3:18-cv-3539 As of: 05/05/2020 11:47 AM PDT 5 of 18

Plaintiff G.E. on behalf of himself and as Guardian Ad Litem for B.E., a minor child
Plaintiff J.F. on behalf of himself and as Guardian Ad Litem for H.F. and A.F., minor children, on behalf of themselves and on behalf of a class of all similarly situated individuals

Matthew Harrison Fine (See above for address) TERMINATED: 02/15/2019
represented by Daniel B. Asimow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Jonathan Weiner (See above for address) ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) ATTORNEY TO BE NOTICED
Kathryn Claire Meyer (See above for address) ATTORNEY TO BE NOTICED
Linda Evarts (See above for address) ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) ATTORNEY TO BE NOTICED
Matthew Harrison Fine (See above for address) TERMINATED: 02/15/2019
represented by Daniel B. Asimow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Jonathan Weiner (See above for address) ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) ATTORNEY TO BE NOTICED
Kathryn Claire Meyer (See above for address) ATTORNEY TO BE NOTICED
Linda Evarts

Case: 3:18-cv-3539 As of: 05/05/2020 11:47 AM PDT 6 of 18

Plaintiff CASA

(See above for address) ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) ATTORNEY TO BE NOTICED
Matthew Harrison Fine (See above for address) TERMINATED: 02/15/2019
represented by Daniel B. Asimow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Jonathan Weiner (See above for address) ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) ATTORNEY TO BE NOTICED
Kathryn Claire Meyer (See above for address) ATTORNEY TO BE NOTICED
Linda Evarts (See above for address) ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Donald J. Trump in his official capacity as President of the United States

represented by Wendy M. Garbers United States Attorney's Office Northern District of California 450 Golden Gate Ave., 9th Floor San Francisco, CA 94102 (415) 436−6475 Email: wendy.garbers@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison E. Daw United States Attorney's Office Northern District of California 150 Almaden Blvd Suite 900 San Jose, CA 95113 408−535−5082 Fax: 408−535−5081

Case: 3:18-cv-3539 As of: 05/05/2020 11:47 AM PDT 7 of 18

Defendant U.S. Department of Homeland Security
Defendant U.S. Citizenship and Immigration Services
Defendant Kirstjen Nielsen in her official capacity as Secretary of Homeland Security
Defendant Michael R. Pompeo in his official capacity as Secretary of State
Defendant L. Francis Cissna in his official capacity as Director of U.S. Citizenship and Immigration Services
Defendant United States of America

Email: alison.daw@usdoj.gov ATTORNEY TO BE NOTICED
represented by Wendy M. Garbers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison E. Daw US Attorney's Office 450 Golden Gate Ave Box 36055 San Francisco, CA 94102−3495 415−436−7073 Fax: 415−436−6748 Email: alison.daw@usdoj.gov ATTORNEY TO BE NOTICED
represented by Wendy M. Garbers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison E. Daw (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy M. Garbers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison E. Daw (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy M. Garbers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison E. Daw (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy M. Garbers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison E. Daw (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 3:18-cv-3539 As of: 05/05/2020 11:47 AM PDT 8 of 18

Defendant U.S. Department of State

Wendy M. Garbers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison E. Daw (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy M. Garbers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison E. Daw (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/13/2018
06/14/2018
06/14/2018 06/14/2018 06/14/2018 06/14/2018 06/14/2018

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, United States of America ( Filing fee $ 400, receipt number 0971−12434246.). Filed byG.E., J.A., S.A., D.D., A.B., CASA, J.F., R.C., M.C.. (Attachments: # 1 Civil Cover Sheet)(Asimow, Daniel) (Filed on 6/13/2018) (Entered: 06/13/2018)
2 Case assigned to Magistrate Judge Laurel Beeler.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 6/28/2018. (haS, COURT STAFF) (Filed on 6/14/2018) (Entered: 06/14/2018)
3 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 9/6/2018. Initial Case Management Conference set for 9/13/2018 11:00 AM. (mclS, COURT STAFF) (Filed on 6/14/2018) (Entered: 06/14/2018)
Electronic filing error. U.S. Department of State has been added as a party as listed in the Complaint. Corrected by Clerk's Office. No further action is necessary. Re: 1 Complaint, filed by J.A., CASA, M.C., R.C., S.A., G.E., A.B., J.F., D.D. (mclS, COURT STAFF) (Entered: 06/14/2018)
4 Certificate of Interested Entities by A.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A. (Asimow, Daniel) (Filed on 6/14/2018) (Entered: 06/14/2018)
5 Proposed Summons. (Asimow, Daniel) (Filed on 6/14/2018) (Entered: 06/14/2018)
6 ADMINISTRATIVE MOTION Leave to Proceed Under Pseudonyms and Memorandum of Points and Authorities in Support filed by A.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. Responses due by 6/18/2018. (Attachments: # 1 Declaration of Daniel B. Asimow, # 2 Exhibit 1 to Asimow Declaration, # 3 Exhibit 2 to Asimow Declaration, # 4 Exhibit 3 to Asimow Declaration, # 5 Exhibit 4 to Asimow Declaration, # 6 Exhibit 5 to Asimow Declaration, # 7 Exhibit 6 to Asimow Declaration, # 8 Exhibit 7 to Asimow Declaration, # 9 Declaration of J.F., # 10 Declaration of D.D., # 11 Declaration of R.C., # 12 Declaration of S.A., # 13

Case: 3:18-cv-3539 As of: 05/05/2020 11:47 AM PDT 9 of 18

06/15/2018 06/15/2018 06/15/2018 06/15/2018 06/15/2018 06/18/2018 06/18/2018 06/18/2018 06/18/2018 06/18/2018 06/18/2018 06/19/2018 06/19/2018
06/20/2018

Declaration of J.A., # 14 Declaration of A.B., # 15 Declaration of M.C., # 16 Declaration of B.E., # 17 Declaration of J.C., # 18 Declaration of G.E., # 19 Proposed Order)(Asimow, Daniel) (Filed on 6/14/2018) (Entered: 06/14/2018)
7 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12439233.) filed by A.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. (Hirose, Mariko) (Filed on 6/15/2018) (Entered: 06/15/2018)
8 Summons Issued as to L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America, U.S. Attorney and the Attorney General. (mclS, COURT STAFF) (Entered: 06/15/2018)
9 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12439986.) filed by A.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. (Meyer, Kathryn) (Filed on 6/15/2018) (Entered: 06/15/2018)
10 Order by Magistrate Judge Laurel Beeler granting 7 Motion for Pro Hac Vice. Attorney Mariko Hirose representing Plaintiffs. (ejkS, COURT STAFF) (Filed on 6/15/2018) (Entered: 06/15/2018)
11 Order by Magistrate Judge Laurel Beeler granting 9 Motion for Pro Hac Vice. Attorney Kathryn Claire Meyer representing Plaintiffs. (ejkS, COURT STAFF) (Filed on 6/15/2018) (Entered: 06/15/2018)
12 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12442174.) filed by A.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. (Evarts, Linda) (Filed on 6/18/2018) (Entered: 06/18/2018)
13 MOTION to Appoint Guardian ad Litem − J.F. as Guardian ad Litem for A.F. filed by J.F.. (Attachments: # 1 Proposed Order)(Asimow, Daniel) (Filed on 6/18/2018) (Entered: 06/18/2018)
14 MOTION to Appoint Guardian ad Litem − J.F. as Guardian ad Litem for H.F. filed by J.F.. (Attachments: # 1 Proposed Order)(Asimow, Daniel) (Filed on 6/18/2018) (Entered: 06/18/2018)
15 MOTION to Appoint Guardian ad Litem − G.E. as Guardian ad Litem for B.E. filed by G.E.. (Attachments: # 1 Proposed Order)(Asimow, Daniel) (Filed on 6/18/2018) (Entered: 06/18/2018)
16 MOTION to Appoint Guardian ad Litem − R.C. as Guardian ad Litem for J.C. filed by R.C.. (Attachments: # 1 Proposed Order)(Asimow, Daniel) (Filed on 6/18/2018) (Entered: 06/18/2018)
17 Order by Magistrate Judge Laurel Beeler granting 12 Motion for Pro Hac Vice. Attorney Linda Evarts representing Plaintiffs. (ejkS, COURT STAFF) (Filed on 6/18/2018) (Entered: 06/18/2018)
18 ORDER by Judge Laurel Beeler provisionally granting 6 Administrative Motion for Leave to Proceed Under Pseudonyms. This order is without prejudice to the government's right to file an opposition to the plaintiffs' motion once it is served in this case. (lblc1S, COURT STAFF) (Filed on 6/19/2018) (Entered: 06/19/2018)
19 ORDER by Judge Laurel Beeler granting 13 Motion to Appoint Guardian ad Litem; granting 14 Motion to Appoint Guardian ad Litem; granting 15 Motion to Appoint Guardian ad Litem; granting 16 Motion to Appoint Guardian ad Litem.
As set forth in the attached order, the court grants the petitions and appoints J.F. as guardian ad litem for A.F. and H.F., G.E. as guardian ad litem for B.E., and R.C. as guardian ad litem for J.C. (lblc1S, COURT STAFF) (Filed on 6/19/2018) (Entered: 06/19/2018)
20 CERTIFICATE OF SERVICE by A.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A. of Summons and Complaint for Declaratory and Injunctive Relief (Asimow, Daniel) (Filed on 6/20/2018) (Entered: 06/20/2018)

Case: 3:18-cv-3539 As of: 05/05/2020 11:47 AM PDT 10 of 18

06/25/2018 06/27/2018 06/28/2018 07/12/2018
07/12/2018
07/24/2018 07/25/2018 07/25/2018 07/25/2018 07/25/2018

21 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12461861.) filed by A.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. (Freedman, John) (Filed on 6/25/2018) (Entered: 06/25/2018)
22 Order by Magistrate Judge Laurel Beeler granting 21 Motion for Pro Hac Vice. Attorney John A. Freedman representing Plaintiffs. (ejkS, COURT STAFF) (Filed on 6/27/2018) (Entered: 06/27/2018)
23 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by A.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A... (Meyer, Kathryn) (Filed on 6/28/2018) (Entered: 06/28/2018)
24 MOTION for Preliminary Injunction filed by A.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. Motion Hearing set for 8/16/2018 09:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Laurel Beeler. Responses due by 7/26/2018. Replies due by 8/2/2018. (Attachments: # 1 Declaration of Linda B. Evarts, # 2 Declaration of George Escobar, # 3 Declaration of John Feeley, # 4 Declaration of Lawrence Yungk, # 5 Declaration of M.C., # 6 Declaration of S.F., # 7 Declaration of A.D., # 8 Proposed Order, # 9 Certificate/Proof of Service)(Asimow, Daniel) (Filed on 7/12/2018) (Entered: 07/12/2018)
25 Declaration of Daniel B. Asimow in Support of 24 MOTION for Preliminary Injunction filed byA.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5a, # 6 Exhibit 5b, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17a, # 19 Exhibit 17b, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23a, # 26 Exhibit 23b, # 27 Exhibit 24, # 28 Exhibit 25, # 29 Exhibit 26, # 30 Exhibit 27, # 31 Exhibit 28, # 32 Exhibit 29, # 33 Exhibit 30a, # 34 Exhibit 30b, # 35 Exhibit 30c, # 36 Exhibit 30d, # 37 Exhibit 31, # 38 Exhibit 32, # 39 Exhibit 33, # 40 Exhibit 34, # 41 Exhibit 35, # 42 Exhibit 36, # 43 Exhibit 37, # 44 Exhibit 38, # 45 Exhibit 39, # 46 Exhibit 40, # 47 Exhibit 41, # 48 Exhibit 42, # 49 Exhibit 43, # 50 Exhibit 44, # 51 Exhibit 45, # 52 Exhibit 46, # 53 Exhibit 47, # 54 Exhibit 48, # 55 Exhibit 49, # 56 Certificate/Proof of Service)(Related document(s) 24 ) (Asimow, Daniel) (Filed on 7/12/2018) (Entered: 07/12/2018)
26 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America.. (Garbers, Wendy) (Filed on 7/24/2018) (Entered: 07/24/2018)
27 STIPULATION WITH PROPOSED ORDER Re Preliminary Injunction and Motion to Dismiss Schedule filed by L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Garbers, Wendy) (Filed on 7/25/2018) (Entered: 07/25/2018)
28 ORDER by Judge Laurel Beeler granting as modified 27 Stipulation re Briefing Schedule.
The parties' stipulated briefing schedule is so ordered. The hearing on the motions is set for 10/11/2018 at 9:30 a.m. (lblc1S, COURT STAFF) (Filed on 7/25/2018) (Entered: 07/25/2018)
Set/Reset Deadlines as to 24 MOTION for Preliminary Injunction . Responses due by 8/24/2018. Replies due by 9/17/2018. Motion Hearing set for 10/11/2018 09:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Laurel Beeler. (lblc1S, COURT STAFF) (Filed on 7/25/2018) (Entered: 07/25/2018)
29 CLERK'S NOTICE RESETTING CASE MANAGEMENT CONFERENCE: The court continues the CMC set for 9/13/2018 to 11/15/2018 at 11:00 a.m. in San Francisco, Courtroom C, 15th Floor. Case Management Statement due by 11/8/2018. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lblc1S, COURT STAFF) (Filed on 7/25/2018) (Entered: 07/25/2018)

Case: 3:18-cv-3539 As of: 05/05/2020 11:47 AM PDT 11 of 18

08/22/2018 08/24/2018 08/24/2018 08/24/2018
09/17/2018 09/17/2018 09/26/2018 09/26/2018 09/27/2018 10/02/2018

30 NOTICE of Appearance by Alison E. Daw (Daw, Alison) (Filed on 8/22/2018) (Entered: 08/22/2018)
31 MOTION to Dismiss filed by L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America. Motion Hearing set for 10/11/2018 09:30 AM in San Francisco, Courtroom C, 15th Floor before Magistrate Judge Laurel Beeler. Responses due by 9/17/2018. Replies due by 9/27/2018. (Garbers, Wendy) (Filed on 8/24/2018) (Entered: 08/24/2018)
32 Brief re 24 MOTION for Preliminary Injunction , 31 MOTION to Dismiss filed byL. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Related document(s) 24 , 31 ) (Garbers, Wendy) (Filed on 8/24/2018) (Entered: 08/24/2018)
33 NOTICE by L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America Administrative Record (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Errata 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61, # 62 Exhibit 62)(Garbers, Wendy) (Filed on 8/24/2018) (Entered: 08/24/2018)
34 OPPOSITION/RESPONSE (re 31 MOTION to Dismiss ) filed byA.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. (Asimow, Daniel) (Filed on 9/17/2018) (Entered: 09/17/2018)
35 REPLY (re 24 MOTION for Preliminary Injunction ) Plaintiffs' Reply to Defendants' Opposition to Motion for Preliminary Injunction filed byA.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. (Attachments: # 1 Declaration of Daniel B. Asimow, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Asimow, Daniel) (Filed on 9/17/2018) (Entered: 09/17/2018)
36 STIPULATION WITH PROPOSED ORDER Re Substitution of Documents filed by L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Attachments: # 1 Exhibit 34−1, # 2 Exhibit 35−1, # 3 Exhibit 36−1, # 4 Exhibit 37−1, # 5 Exhibit 39−1)(Garbers, Wendy) (Filed on 9/26/2018) (Entered: 09/26/2018)
37 ORDER by Judge Laurel Beeler granting 36 Stipulation re Substitution of Documents. (lblc1S, COURT STAFF) (Filed on 9/26/2018) (Entered: 09/26/2018)
38 REPLY (re 31 MOTION to Dismiss ) filed byL. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Garbers, Wendy) (Filed on 9/27/2018) (Entered: 09/27/2018)
39 CLERK'S NOTICE Continuing Motion Hearing. The court apologizes for the inconvenience, but it has an unexpected conflict with the 10/11/2018 hearing and needs to reschedule the hearing to 11/1/2018 at 9:30 a.m. If this date poses any inconvenience to the parties, they may email lbpo@cand.uscourts.gov, and the court will try to work out a specially set date during the period before 11/1/2018. The parties also may stipulate to move the hearing to any subsequent Thursday at 9:30 a.m.

Motion Hearing 24 MOTION for Preliminary Injunction and 31 MOTION to Dismiss reset to 11/1/2018 at 9:30 AM in San Francisco, Courtroom B, 15th Floor before

Case: 3:18-cv-3539 As of: 05/05/2020 11:47 AM PDT 12 of 18

10/03/2018 10/12/2018 10/17/2018 10/24/2018 10/24/2018
10/30/2018
10/30/2018 11/09/2018 12/05/2018

Magistrate Judge Laurel Beeler.
(This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 10/2/2018) (Entered: 10/02/2018)
40 CLERK'S NOTICE Continuing Motion Hearing. Motion Hearing 24 MOTION for Preliminary Injunction and 31 MOTION to Dismiss is reset to 10/30/2018 at 09:00 AM in San Francisco, Courtroom B, 15th Floor before Magistrate Judge Laurel Beeler. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 10/3/2018) (Entered: 10/03/2018)
41 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d Relevant to Motion for Preliminary Injunction filed byA.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. (Attachments: # 1 Exhibit A)(Related document(s) 24 , 34 ) (Asimow, Daniel) (Filed on 10/12/2018) (Entered: 10/12/2018)
42 CLERK'S NOTICE Resetting Motion Hearing Time: Motions Hearing set for 10/30/2018 at 9:00 AM is reset to 11:00 AM in San Francisco, Courtroom B, 15th Floor before Magistrate Judge Laurel Beeler. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 10/17/2018) (Entered: 10/17/2018)
43 STIPULATION WITH PROPOSED ORDER re 29 Clerk's Notice,, Set Motion and Deadlines/Hearings, filed by L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Garbers, Wendy) (Filed on 10/24/2018) (Entered: 10/24/2018)
44 Order by Magistrate Judge Laurel Beeler granting 43 Stipulation to Continue Case Management Conference.
Initial Case Management Conference previously set for 11/15/2018 is reset to 1/24/2019 at 11:00 AM in San Francisco, Courtroom B, 15th Floor. Case Management Statement due by 1/17/2019. (ejkS, COURT STAFF) (Filed on 10/24/2018) (Entered: 10/24/2018)
45 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Motions Hearing held on 10/30/2018 re 24 Motion for Preliminary Injunction and 31 Motion to Dismiss. Matter is taken under submission. Court will issue a written order. (FTR Time: 10:59−12:51)
Plaintiffs' Attorneys: Daniel Asimow, Linda Evarts, Mariko Hirose and Kathryn Meyer. Defendants' Attorneys: Wendy Garbers and Alison Daw. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 10/30/2018) Modified on 1/23/2019: Matter transcribed by Leo Mankiewicz. (rjdS, COURT STAFF). (Entered: 10/30/2018)
46 PDF with attached Audio File. Court Date & Time [ 10/30/2018 10:59:33 AM ]. File Size [ 53864 KB ]. Run Time [ 01:52:13 ]. (courtspeak). (Entered: 10/30/2018)
47 Statement re 24 MOTION for Preliminary Injunction : Plaintiffs' Statement of Recent Decision Relevant to Motion for Preliminary Injunction by A.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. (Attachments: # 1 Exhibit A)(Asimow, Daniel) (Filed on 11/9/2018) (Entered: 11/09/2018)
48 CLERK'S NOTICE RESETTING CASE MANAGEMENT CONFERENCE: The court resets the CMC from 1/24/2019 to 1/17/2019 to accommodate an all−day hearing in another case.
Initial Case Management Conference set for 1/17/2019 at 11:00 AM in San Francisco, Courtroom B, 15th Floor. Case Management Statement due by 1/10/2019. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 12/5/2018) (Entered: 12/05/2018)

Case: 3:18-cv-3539 As of: 05/05/2020 11:47 AM PDT 13 of 18

12/07/2018 12/10/2018
12/10/2018

49 STIPULATION WITH PROPOSED ORDER Rescheduling Case Management Conference filed by A.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. (Asimow, Daniel) (Filed on 12/7/2018) (Entered: 12/07/2018)
50 Order by Magistrate Judge Laurel Beeler granting 49 Stipulation to Reschedule Case Management Conference.
Initial Case Management Conference previously set for 1/17/2019 is reset to 1/31/2019 at 11:00 AM in San Francisco, Courtroom B, 15th Floor. Case Management Statement due by 1/24/2019. (ejkS, COURT STAFF) (Filed on 12/10/2018) (Entered: 12/10/2018)
51 ORDER by Judge Laurel Beeler granting in part and denying in part 31 Motion to Dismiss.

12/10/2018

As set forth in the attached order, the court denies the defendants' motion to dismiss the plaintiffs' Administrative Procedure Act claims as they relate to the government's mass−rescinding conditional approvals of parole made under the Central American Minors Parole Program. In all other respects, the court grants the defendants' motion to dismiss. The court will address the plaintiffs' motion for a preliminary injunction in a separate order. (lblc1S, COURT STAFF) (Filed on 12/10/2018) (Entered: 12/10/2018)
52 ORDER by Judge Laurel Beeler addressing 24 Motion for Preliminary Injunction.

12/17/2018 12/18/2018 01/02/2019 01/02/2019
01/08/2019 01/08/2019 01/10/2019

As set forth in the attached order, the court directs the parties to meet and confer about whether they want to submit supplemental briefing on the plaintiffs' preliminary−injunction motion and whether the plaintiffs want to amend their complaint, and submit their views to the court within one week. (lblc1S, COURT STAFF) (Filed on 12/10/2018) (Entered: 12/10/2018)
53 Statement re 52 Order on Motion for Preliminary Injunction, (Joint) by L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Garbers, Wendy) (Filed on 12/17/2018) (Entered: 12/17/2018)
54 ORDER re 53 Joint Response to Order Addressing Plaintiffs' Motion for Preliminary Injunction. Signed by Judge Laurel Beeler on 12/18/2018. (ejkS, COURT STAFF) (Filed on 12/18/2018) (Entered: 12/18/2018)
55 STIPULATION WITH PROPOSED ORDER Extending Briefing Deadlines filed by A.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. (Asimow, Daniel) (Filed on 1/2/2019) (Entered: 01/02/2019)
56 ORDER by Judge Laurel Beeler granting 55 Stipulation Extending Briefing Deadlines. Plaintiffs' opening brief is due 1/8/2019. Defendants' response is due 1/22/2019. Plaintiffs' optional reply is due 1/29/2019.
In light of these dates, the court continues the case−management conference currently set for 1/31/2019 to 3/21/2019. The parties' joint case−management statement is due 3/14/2019. (lblc1S, COURT STAFF) (Filed on 1/2/2019) (Entered: 01/02/2019)
57 ADMINISTRATIVE MOTION Stay filed by L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State. Responses due by 1/8/2019. (Attachments: # 1 Proposed Order)(Garbers, Wendy) (Filed on 1/8/2019) (Entered: 01/08/2019)
58 Supplemental Brief re 54 Order Dated December 18, 2018 filed byA.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. (Attachments: # 1 Proposed Order)(Related document(s) 54 ) (Asimow, Daniel) (Filed on 1/8/2019) (Entered: 01/08/2019)
59 OPPOSITION/RESPONSE (re 57 ADMINISTRATIVE MOTION Stay ) in Light of Lapse of Appropriations filed byA.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. (Asimow, Daniel) (Filed on 1/10/2019) (Entered: 01/10/2019)

Case: 3:18-cv-3539 As of: 05/05/2020 11:47 AM PDT 14 of 18

01/11/2019 01/22/2019
01/23/2019 01/23/2019 01/23/2019 01/23/2019 01/25/2019
01/29/2019 01/30/2019
02/06/2019

60 ORDER by Judge Laurel Beeler denying 57 Administrative Motion to Stay Case. As set forth in the attached order, the court denies the defendants' motion to stay the case. The parties should continue to meet and confer in good faith regarding the briefing schedule and other matters in this case as necessary and appropriate. (lblc1S, COURT STAFF) (Filed on 1/11/2019) (Entered: 01/11/2019)
61 Supplemental Brief re 52 Order on Motion for Preliminary Injunction, 33 Notice (Other),,,,, 38 Reply to Opposition/Response, 32 Brief, filed byL. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Attachments: # 1 Declaration Ron M. Rosenberg)(Related document(s) 52 , 33 , 38 , 32 ) (Daw, Alison) (Filed on 1/22/2019) (Entered: 01/22/2019)
62 TRANSCRIPT ORDER for proceedings held on 10/30/2018 before Magistrate Judge Laurel Beeler by A.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A., for Court Reporter FTR − San Francisco. (Asimow, Daniel) (Filed on 1/23/2019) (Entered: 01/23/2019)
63 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13026083.) filed by A.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. (Attachments: # 1 Appendix Certificate of Good Standing)(Cox, Justin) (Filed on 1/23/2019) (Entered: 01/23/2019)
64 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13026083.) Filing fee previously paid on 01/23/2019 filed by A.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. (Attachments: # 1 Appendix Certificate of Good Standing)(Cox, Justin) (Filed on 1/23/2019) (Entered: 01/23/2019)
65 Order by Magistrate Judge Laurel Beeler granting 63 Motion for Pro Hac Vice. Attorney Justin B. Cox representing Plaintiffs. (ejkS, COURT STAFF) (Filed on 1/23/2019) (Entered: 01/23/2019)
66 Transcript of Proceedings held on 10/30/2018, before Magistrate Judge Laurel Beeler. Court Reporter/Transcriber Leo T. Mankiewicz, CSR, RMR, CRR, telephone number (415) 722−7045; email: leomank@gmail.com. FTR 10:59 a.m − 12:51 p.m. = 112 minutes. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 62 Transcript Order ) Redaction Request due 2/15/2019. Redacted Transcript Deadline set for 2/25/2019. Release of Transcript Restriction set for 4/25/2019. (Related documents(s) 62 ) (Mankiewicz, Leo) (Filed on 1/25/2019) (Entered: 01/25/2019)
67 Supplemental Brief re 54 Order dated December 18, 2018 − Plaintiffs' Supplemental Reply filed byA.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. (Related document(s) 54 ) (Asimow, Daniel) (Filed on 1/29/2019) (Entered: 01/29/2019)
68 CLERK'S NOTICE. The court sets a hearing for 2/14/2019 at 9:30 a.m. on the plaintiffs' motion for a preliminary injunction. If this date is not convenient for the parties, they should meet and confer and propose another Thursday at 9:30 a.m. (or, if both sides agree, they may forgo the hearing, in which case the court will decide the motion on the papers and on the prior hearing). (This is a text−only entry generated by the court. There is no document associated with this entry.) (lblc1S, COURT STAFF) (Filed on 1/30/2019) (Entered: 01/30/2019)
69 REQUEST FOR SUPPLEMENTAL BRIEFING re 24 MOTION for Preliminary Injunction filed by J.A., CASA, M.C., R.C., S.A., G.E., A.B., J.F., D.D.

As set forth in the attached, the court asks the parties for additional supplemental briefing on the issue of "sufficient causal connection" between the alleged irreparable harm and the activity to be enjoined. The court asks the parties to submit briefs of no more than five pages addressing this issue by February 11, 2019 at 2:00 p.m. (Alternatively, if the parties would like more time, they may stipulate to continuing the February 14, 2019 hearing to February 21, 2019 at 9:30 a.m. or to any subsequent Thursday at 9:30 a.m.)

Case: 3:18-cv-3539 As of: 05/05/2020 11:47 AM PDT 15 of 18

02/11/2019 02/11/2019 02/14/2019
02/14/2019 02/15/2019 02/21/2019
02/27/2019 03/01/2019

Signed by Judge Laurel Beeler on February 6, 2019. (lblc1S, COURT STAFF) (Filed on 2/6/2019) (Entered: 02/06/2019)
70 Brief re 69 Order,,, filed byU.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Related document(s) 69 ) (Daw, Alison) (Filed on 2/11/2019) (Entered: 02/11/2019)
71 Supplemental Brief re 69 Order,,, filed byA.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A.. (Related document(s) 69 ) (Asimow, Daniel) (Filed on 2/11/2019) (Entered: 02/11/2019)
72 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Motion Hearing held on 2/14/2019. Matter is taken under submission.
FTR Time: 10:38−11:00. Plaintiffs' Attorneys: Daniel Asimow, Linda Evarts and Mariko Hirose. Defendants' Attorney: Alison Daw. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 2/14/2019) Modified on 2/14/2019: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 02/14/2019)
73 TRANSCRIPT ORDER for proceedings held on 02/14/2019 before Magistrate Judge Laurel Beeler by A.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A., for Court Reporter FTR − San Francisco. (Asimow, Daniel) (Filed on 2/14/2019) (Entered: 02/14/2019)
74 NOTICE by A.B., CASA, D.D., G.E., J.A., J.F., M.C., R.C., S.A. of Withdrawal of Counsel for Plaintiffs (Fine, Matthew) (Filed on 2/15/2019) (Entered: 02/15/2019)
75 Transcript of Proceedings held on February 14, 2019, before Judge Laurel Beeler. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 73 Transcript Order ) Redaction Request due 3/14/2019. Redacted Transcript Deadline set for 3/25/2019. Release of Transcript Restriction set for 5/22/2019. (Related documents(s) 73 ) (Columbini, Joan) (Filed on 2/21/2019) (Entered: 02/21/2019)
76 NOTICE by L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America of Agency Action (Attachments: # 1 Declaration of L. Francis Cissna)(Garbers, Wendy) (Filed on 2/27/2019) (Entered: 02/27/2019)
77 ORDER GRANTING IN PART AND DENYING IN PART 24 MOTION for Preliminary Injunction filed by J.A., CASA, M.C., R.C., S.A., G.E., A.B., J.F., D.D..
As set forth in the attached order, the court grants in part and denies in part the plaintiffs' motion for a preliminary injunction. The court denies the plaintiffs' motion to enjoin DHS from terminating the CAM Parole Program going forward. The court grants the motion to require DHS to continue to process the 2,714 conditionally approved beneficiaries under the procedures that it had in place for processing the beneficiaries before it terminated the Program and orders the following: (1) DHS's decision to mass−rescind conditional approvals for the 2,714 beneficiaries conditionally approved for parole but who had not traveled to the United States is vacated, (2) DHS must continue the post−conditional−approval processing for the 2,714 beneficiaries under the policies and procedures for processing beneficiaries that it had in place before January 2017, and is preliminarily enjoined from adopting any policy, procedure, or practice to not process the beneficiaries or to place their processing on hold en masse, and (3) by March 21, 2019, DHS must submit to the court and counsel its plan for processing these 2,714 beneficiaries with benchmarks for assessing compliance. Signed by Judge Laurel Beeler on March 1, 2019. (lblc1S, COURT STAFF) (Filed on 3/1/2019) (Entered: 03/01/2019)

Case: 3:18-cv-3539 As of: 05/05/2020 11:47 AM PDT 16 of 18

03/01/2019
03/19/2019 03/21/2019 03/21/2019 03/21/2019 03/26/2019 04/02/2019
04/03/2019 04/03/2019 04/03/2019 04/11/2019 04/11/2019

78 CLERK'S NOTICE. In light of the court's order directing DHS to submit its plan for processing conditionally approved beneficiaries by March 21, 2019, the court continues the deadline for the parties to submit a joint case−management statement from March 14 to March 28, 2019 and continues the case−management conference from March 21 to April 4, 2019 at 11:00 a.m. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lblc1S, COURT STAFF) (Filed on 3/1/2019) (Entered: 03/01/2019)
79 CLERK'S NOTICE RESETTING CASE MANAGEMENT CONFERENCE TIME: Initial Case Management Conference set for 4/4/2019 at 11:00 AM is reset to 9:30 AM in San Francisco, Courtroom B, 15th Floor. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 3/19/2019) (Entered: 03/19/2019)
80 NOTICE of Change of Address by Linda Evarts (Evarts, Linda) (Filed on 3/21/2019) (Entered: 03/21/2019)
81 STIPULATION WITH PROPOSED ORDER Re Settlement Discussions and Deadlines filed by L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Garbers, Wendy) (Filed on 3/21/2019) (Entered: 03/21/2019)
82 ORDER by Judge Laurel Beeler granting 81 Stipulation. The deadline for the defendants to submit a compliance plan is extended to April 4, 2019. The April 4 case−management conference is reset to April 18, 2019 at 11:00 a.m., with the parties' case−management statement due on April 11, 2019. (lblc1S, COURT STAFF) (Filed on 3/21/2019) (Entered: 03/21/2019)
83 CLERK'S NOTICE RESETTING CASE MANAGEMENT CONFERENCE TIME: Further Case Management Conference set for 4/18/2019 at 11:00 AM is reset to 9:30 AM in San Francisco, Courtroom B, 15th Floor. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 3/26/2019) (Entered: 03/26/2019)
84 CLERK'S NOTICE RESETTING CASE MANAGEMENT CONFERENCE: The court has a scheduling conflict and resets the further CMC from 4/18/2019 to 4/25/2019 at 11:00 AM in San Francisco, Courtroom B, 15th Floor. Case Management Statement due by 4/18/2019. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 4/2/2019) (Entered: 04/02/2019)
85 CLERK'S NOTICE RESETTING CASE MANAGEMENT CONFERENCE TIME: Further Case Management Conference set for 4/25/2019 at 11:00 AM is reset to 9:30 AM in San Francisco, Courtroom B, 15th Floor. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 4/3/2019) (Entered: 04/03/2019)
86 STIPULATION WITH PROPOSED ORDER filed by L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Garbers, Wendy) (Filed on 4/3/2019) (Entered: 04/03/2019)
87 ORDER by Judge Laurel Beeler granting 86 Stipulation. The deadline for the defendants to submit a compliance plan is extended to April 11, 2019. (lblc1S, COURT STAFF) (Filed on 4/3/2019) (Entered: 04/03/2019)
88 STIPULATION WITH PROPOSED ORDER Re Settlement Discussions and Deadlines filed by L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Garbers, Wendy) (Filed on 4/11/2019) (Entered: 04/11/2019)
89 ORDER by Judge Laurel Beeler granting 88 Stipulation. The deadline for the defendants to submit a compliance plan is extended to April 18, 2019. (lblc1S, COURT STAFF) (Filed on 4/11/2019) (Entered: 04/11/2019)

Case: 3:18-cv-3539 As of: 05/05/2020 11:47 AM PDT 17 of 18

04/12/2019 04/12/2019 04/12/2019
04/18/2019 04/19/2019 04/25/2019 04/25/2019
05/13/2019 05/16/2019 05/17/2019 05/17/2019

90 STIPULATION WITH PROPOSED ORDER (Binding Memorandum of Agreement) filed by L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Garbers, Wendy) (Filed on 4/12/2019) (Entered: 04/12/2019)
91 Order by Magistrate Judge Laurel Beeler granting 90 Stipulation re Binding Memorandum of Agreement. (ejkS, COURT STAFF) (Filed on 4/12/2019) (Entered: 04/12/2019)
92 CLERK'S NOTICE. In light of the fact that the defendants' deadline to submit a compliance plan was extended to 4/18/2019, the court continues the deadline for the parties to submit a joint case−management statement from 4/18/2019 to 4/25/2019 and continues the case−management conference to 5/2/2019 at 11:00 a.m. The parties may further continue these dates by stipulation if they need more time. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lblc1S, COURT STAFF) (Filed on 4/12/2019) (Entered: 04/12/2019)
93 NOTICE by L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America re 89 Order on Stipulation, 77 Order,,,,, OF DEFENDANTS' SUBMISSION OF USCIS COMPLIANCE PLAN (Attachments: # 1 Exhibit Compliance Plan)(Daw, Alison) (Filed on 4/18/2019) (Entered: 04/18/2019)
94 CLERK'S NOTICE ADVANCING CMC: Further Case Management Conference previously set for 5/2/2019 11:00 AM is rescheduled to 5/2/2019 10:00 AM in San Francisco, Courtroom B, 15th Floor. (This is a text−only entry generated by the court. There is no document associated with this entry.) (tlhS, COURT STAFF) (Filed on 4/19/2019) (Entered: 04/19/2019)
95 CASE MANAGEMENT STATEMENT and [Proposed] Order filed by Kirstjen Nielsen, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Garbers, Wendy) (Filed on 4/25/2019) (Entered: 04/25/2019)
96 CLERK'S NOTICE. Per the parties' request, the court vacates the 5/2/2019 case−management conference and will look forward to the parties' 5/16/2019 proposed order. As a calendaring device, the court sets a case−management conference for 5/23/2019 at 11:00 a.m. (The parties may request that CMC be continued or vacated as appropriate.) (This is a text−only entry generated by the court. There is no document associated with this entry.) (lblc1S, COURT STAFF) (Filed on 4/25/2019) (Entered: 04/25/2019)
97 CLERK'S NOTICE RESETTING CASE MANAGEMENT CONFERENCE TIME: Initial Case Management Conference set for 5/23/2019 at 11:00 AM is reset to 9:30 AM in San Francisco, Courtroom B, 15th Floor. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 5/13/2019) (Entered: 05/13/2019)
98 STIPULATION WITH PROPOSED ORDER Re Final Judgment and Order for Permanent Injunction filed by L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America and Plaintiffs. (Garbers, Wendy) (Filed on 5/16/2019) Modified on 5/17/2019 (amgS, COURT STAFF). (Entered: 05/16/2019)
99 Order by Magistrate Judge Laurel Beeler granting 98 Stipulated Final Judgment and Order for Permanent Injunction. (ejkS, COURT STAFF) (Filed on 5/17/2019) (Entered: 05/17/2019)
100 CLERK'S NOTICE. Having entered the parties' stipulated final judgment and order for permanent injunction, the court vacates the 5/23/2019 case−management conference. (This is a text−only entry generated by the court. There is no document associated with this entry.), Set/Reset Deadlines as to (lblc1S, COURT STAFF) (Filed on 5/17/2019) (Entered: 05/17/2019)

Case: 3:18-cv-3539 As of: 05/05/2020 11:47 AM PDT 18 of 18

06/28/2019
10/01/2019 12/27/2019 03/31/2020

101 NOTICE by L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America re 99 Order on Stipulation, 91 Order on Stipulation OF DEFENDANTS' SUBMISSION OF FIRST QUARTERLY REPORT FOR CAM PAROLE PROGRAM (Attachments: # 1 Exhibit First Quarterly Report for CAM Parole Program)(Daw, Alison) (Filed on 6/28/2019) (Entered: 06/28/2019)
102 STATUS REPORT by Michael R. Pompeo, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Garbers, Wendy) (Filed on 10/1/2019) (Entered: 10/01/2019)
103 STATUS REPORT −−Third Quarterly Report by L. Francis Cissna, Kirstjen Nielsen, Michael R. Pompeo, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Garbers, Wendy) (Filed on 12/27/2019) (Entered: 12/27/2019)
104 STATUS REPORT by Kirstjen Nielsen, Michael R. Pompeo, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Garbers, Wendy) (Filed on 3/31/2020) (Entered: 03/31/2020)

 
 Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 1 of 46

1 DANIEL B. ASIMOW (SBN 165661)

LINDA EVARTS*

daniel.asimow@arnoldporter.com

levarts@refugeerights.org

2 MATTHEW H. FINE (SBN 300808)

KATHRYN C. MEYER*

matthew.fine@arnoldporter.com

kmeyer@refugeerights.org

3 ARNOLD & PORTER KAYE SCHOLER LLP MARIKO HIROSE*

Three Embarcadero Center, 10th Floor

mhirose@refugeerights.org

4 San Francisco, California 94111

INTERNATIONAL REFUGEE ASSISTANCE

Telephone: 415.471.3100 5 Facsimile: 415.471.3400

PROJECT 40 Rector Street, 9th Floor

6 JOHN A. FREEDMAN*

New York, NY 10006 Telephone: 646.459.3057

7

john.freedman@arnoldporter.com GAELA K. GEHRING FLORES*

Facsimile: 212.533.4598

8

gaela.gehringflores@arnoldporter.com DAVID J. WEINER (CA SBN 219753)

PHILLIP A. GERACI* phillip.geraci@arnoldporter.com

9

david.weiner@arnoldporter.com DANA O. CAMPOS*

SUSAN S. HU* susan.hu@arnoldporter.com

10 dana.campos@arnoldporter.com MATEO MORRIS*

ARNOLD & PORTER KAYE SCHOLER LLP 250 West 55th Street

11 mateo.morris@arnoldporter.com

New York, NY 10019-9710

ARNOLD & PORTER KAYE SCHOLER LLP Telephone: 212.836.8000

12 601 Massachusetts Ave., NW Washington, DC 20001-3743

Facsimile: 212.836.8689

13 Telephone: 202.942.5000

Facsimile: 202.942.5999

14

Attorneys for Plaintiffs

15 *Pro Hac Vice motion forthcoming

16

17

UNITED STATES DISTRICT COURT

18

FOR THE NORTHERN DISTRICT OF CALIFORNIA

19

20 S.A.; J.A.; A.B.; R.C., on behalf of himself and Case No.

as Guardian Ad Litem for J.C., a minor child;

21 M.C.; D.D.; G.E., on behalf of himself and as

CLASS ACTION COMPLAINT FOR

Guardian Ad Litem for B.E., a minor child; J.F., DECLARATORY AND INJUNCTIVE 22 on behalf of himself and as Guardian Ad Litem RELIEF

for H.F. and A.F., minor children, on behalf of 23 themselves and on behalf of a class of all

24 similarly situated individuals, and CASA,

25

Plaintiffs,

26

v.

27

DONALD J. TRUMP, in his official capacity as President of the United States; U.S.

28

DEPARTMENT OF HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 2 of 46
1 SERVICES; U.S. DEPARTMENT OF STATE; KIRSTJEN NIELSEN, in her official capacity as
2 Secretary of Homeland Security; MICHAEL R. POMPEO, in his official capacity as Secretary of
3 State; L. FRANCIS CISSNA, in his official capacity as Director of U.S. Citizenship and
4 Immigration Services; UNITED STATES OF AMERICA,
5 Defendants.
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1

INTRODUCTION

2

1. This lawsuit challenges the Trump Administration’s termination of the parole portion

3 of the Central American Minors (“CAM”) program—a program established in 2014 in response to

4 the humanitarian crisis presented by thousands of unaccompanied minors fleeing danger in El

5 Salvador, Guatemala, and Honduras and arriving at the Southern Border. Over the years, the CAM

6 Program enabled thousands of Central American parents lawfully residing in the United States to

7 safely and legally bring their children to the United States as refugees or parolees through an

8 orderly process in which eligibility determinations were made in the minors’ home countries.

9

2. This Administration’s highly erratic and unexplained termination of the CAM Parole

10 program, which began with secretly shutting down its operations immediately after inauguration

11 and culminated with the mass rescission of conditional approval for parole status for nearly 3,000

12 children in August 2017, can only be understood as another one of this Administration’s cruel and

13 xenophobic policies against people it has publicly labeled “animals.”

14

3. The termination of the CAM Parole program pulled the rug out from under Plaintiffs

15 and proposed class members—thousands of families who had spent years and thousands of dollars

16 in reliance on the availability of this safe pathway to family reunification, and thousands of whom

17 had attained conditional approval for parole status and believed they would imminently travel.

18 Plaintiffs include U.S.-based parents and their children in Central America who completed every

19 step of the application process, including paying for plane tickets to come to the United States.

20 They include a teenage girl who was forced to drop out of high school a few months shy of her

21 graduation because an MS-13 gang member was trying to forcibly “date” her and she feared being

22 raped or killed. They include a teenage boy who was beaten so badly by the MS-13 after he refused

23 to join the gang that he needed emergency surgery and still has trouble walking and bathing himself.

24 They include a teenage boy whose uncle was shot and killed by the MS-13 right outside the boy’s

25 home, and now the gang has repeatedly threatened to do the same to him. They include Central

26 American parents who have lived lawfully in the United States for decades, including in Northern

27 California, are raising U.S. citizen children, have earned state professional licenses, and have spent

28 years and sometimes decades at jobs in the U.S. as teacher’s assistants, butchers, and mechanics.

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1

4. Meanwhile, the life-threatening conditions in the Central American countries that led

2 to the creation of the CAM Program have not abated. Honduras, El Salvador, and Guatemala—

3 sometimes called “the Northern Triangle”—are among the countries with the highest child

4 homicide rates in the world. Just in the past month, a refugee “caravan,” including children from

5 these countries fleeing violence and seeking asylum, arrived at the Southern border of the United

6 States. The caravan was organized to raise awareness of the conditions in the Northern Triangle

7 countries and to protect the migrants from the dangers they would otherwise face on the journey to

8 the U.S. border—a journey that the CAM Program had made unnecessary for thousands of children.

9

5. Having shut down the CAM Program’s pathway to safety for Central Americans, the

10 Trump Administration is now turning away Central Americans seeking to apply for asylum at ports

11 of entry and prosecuting those who desperately attempt to enter the border illegally. In short,

12 President Trump has acted on his promise to get Central Americans out of the United States by

13 trying to shut down every possible avenue for relief for people, often children, fleeing the

14 humanitarian crisis in their home countries.

15

6. When the CAM Parole program was terminated, the Trump Administration told

16 many of the named Plaintiffs and the proposed class members that they could request review of the

17 denial of their refugee applications under the CAM Program. But with only a few months left to

18 this fiscal year, many who have requested review of their denials have not yet received a response—

19 raising the prospect and the fear that this final opportunity to safely reach the United States will also

20 be foreclosed.

21

7. The termination of the CAM Parole program violated, among other things, the

22 Administrative Procedure Act and the Fifth Amendment guarantees of Due Process and Equal

23 Protection. Individual Plaintiffs, along with CASA, request that the Court set aside the termination

24 of the CAM Parole program and the mass rescission of conditional approval for parole, and thereby

25 restore the important, historic American tradition of protecting and aiding the most vulnerable

26 people fleeing perilous circumstances abroad.

27 //

28 //

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Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 5 of 46

1

PARTIES

2

8. Plaintiffs S.A. and J.A. are a family. Plaintiff S.A. is a national of El Salvador and a

3 lawful resident of Concord, California, where she has worked for the same small business for 12

4 years. S.A. was eligible to apply for the CAM Program and in August 2015 submitted an

5 application on behalf of her biological daughter, J.A., who was then 20 years old, and her

6 daughter’s baby son, who was then a year old. J.A. and her son are both nationals and residents of

7 El Salvador. They were conditionally approved for parole and progressed through every stage of

8 the CAM application process, including paying thousands of dollars for plane tickets. They never

9 traveled, however, because their conditional approval for parole was rescinded when the CAM

10 Parole program was publicly terminated in August 2017. Soon after learning that her family would

11 not be able to reunite with her, S.A. was diagnosed with breast cancer and has gone through surgery

12 and multiple rounds of radiation without the support and assistance of her daughter.

13

9. Plaintiff A.B. is a national of El Salvador and a lawful resident of San Jose,

14 California, where he is raising a U.S. citizen child and has been working as a cashier at a local

15 Safeway for 15 years. A.B. was eligible to apply for the CAM Program and in November 2015

16 submitted an application on behalf of his biological son who is a national and resident of El

17 Salvador and who was 20 years old at the time of application. After President Trump’s

18 inauguration, A.B.’s son’s application process ground to a halt, and a year later, he was denied

19 refugee status and not considered for parole status because the CAM Parole program had been

20 terminated. A.B.’s son has been repeatedly threatened and robbed by members of the MS-13,

21 which is very active in his community.

22

10. Plaintiffs R.C., M.C., and J.C. are a family. Plaintiff R.C. is a national of El

23 Salvador and a lawful resident of Oxnard, California, where he is raising three U.S. citizen children

24 and has been working for the same company as a celery packer for ten years. R.C. was eligible to

25 apply for the CAM Program and in May 2016 submitted applications on behalf of his three

26 biological children who are nationals and residents of El Salvador, including M.C., who at the time

27 was 17 years old, and J.C., who at the time was 14 years old. The three children were conditionally

28 approved for parole and had progressed through every stage of the CAM application process,

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Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 6 of 46

1 including receiving a travel date of February 20 after R.C. paid thousands of dollars for their plane

2 tickets. They never traveled, however, because their conditional approval for parole was rescinded

3 when the CAM Parole program was publicly terminated. Around the time that the family learned

4 about the rescission of their conditional approval, J.C. was brutally attacked by MS-13 gang

5 members and required emergency surgery. M.C. has been aggressively pursued by an MS-13 gang

6 member demanding that she “date” him, and she has been forced to drop out of school.

7

11. Plaintiff D.D. is a national of El Salvador and a lawful resident of Hyattsville,

8 Maryland, where she is raising a U.S. citizen son and has been working as a licensed teacher’s

9 assistant at a day care. She was eligible to apply for the CAM Program and in May 2015 submitted

10 an application on behalf of her biological daughter who is a national and resident of El Salvador and

11 who at the time was 15 years old. D.D.’s daughter was conditionally approved for parole and

12 progressed through every stage of the CAM application process, including receiving a travel date of

13 February 13, 2017 after D.D. paid more than a thousand dollars for her plane ticket. D.D.’s

14 daughter never traveled, however, because her conditional approval for parole was revoked when

15 the CAM Parole program was publicly terminated. D.D.’s daughter remains in El Salvador and

16 remains at risk.

17

12. Plaintiffs G.E. and B.E. are a family. G.E. is a national of El Salvador and a lawful

18 resident of Montgomery Village, Maryland, where he is raising two U.S. citizen children and has

19 been working as a mechanic at the same car shop for more than six years. He was eligible to apply

20 for the CAM Program and in December 2015 submitted an application on behalf of his biological

21 son who is a national and resident of El Salvador and who at the time was 15 years old. B.E. was

22 conditionally approved for parole and was waiting for his medical exam—which G.E. paid for—to

23 be scheduled when President Trump was inaugurated and processing on his application stopped.

24 B.E.’s conditional approval for parole was revoked when the CAM Parole program was publicly

25 terminated. B.E. has been repeatedly threatened by MS-13 gang members and leaves his home as

26 little as possible.

27

13. Plaintiffs J.F., H.F., and A.F. are a family. J.F. is a national of Honduras and a

28 lawful resident of Jamaica, New York where he has been working at the same restaurant for two

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Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 7 of 46

1 decades. He was eligible to apply for the CAM Program and in June 2016 submitted an application

2 on behalf of his biological daughters, H.F. and A.F., and his wife—their biological mother—who

3 are nationals and residents of Honduras. At the time of application, H.F. was 4 years old, and A.F.

4 was an infant. After President Trump was inaugurated, J.F.’s family waited almost a year for a

5 decision on their applications, and then they were deemed ineligible for refugee resettlement and

6 not considered for parole. While waiting for the decision on their applications, MS-13 gang

7 members threatened J.F.’s wife at her job.

8

14. Plaintiff CASA is a nonprofit advocacy and assistance organization headquartered in

9 Langley Park, Maryland, with offices in Maryland, Virginia, and Pennsylvania. Founded in 1985,

10 CASA is the largest membership-based immigrant rights organization in the mid-Atlantic region,

11 with more than 90,000 members. Its mission is to create a more just society by building power and

12 improving the quality of life in low-income immigrant communities. Seeing in the CAM Program

13 the opportunity to advance its mission by lawfully uniting its members with their children living in

14 the Northern Triangle, CASA helped 235 of its members to apply for CAM. Through its

15 investment of significant staff and volunteer time and resources to assist its members, CASA

16 developed substantial expertise in the CAM Program. CASA continued to expend staff and

17 volunteer time assisting members with the CAM Program following the unannounced shutdown of

18 the CAM Program. Following the announcement of the termination of the program and mass

19 rescission of conditional approval for parole, CASA had to expend further staff and volunteer time

20 and resources counseling CAM applicants on their options, and had to redirect staff and resources

21 elsewhere. At least two of CASA’s members submitted CAM applications for their family

22 members, the family members were conditionally approved for parole, and their parole was

23 rescinded by Defendants. Moreover, CASA suffered reputational harm due to the CAM termination

24 and mass rescission; CAM applicants frustrated that their time and money was wasted directed their

25 anger at CASA. As a result of the termination of the CAM Program and the mass rescission of

26 conditional approval for parole status, CASA suffered in a way sufficient to establish organizational

27 standing and associational standing on behalf of its members.

28

15. Defendant Donald J. Trump is the President of the United States. He is sued in his

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Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 8 of 46

1 official capacity.

2

16. Defendant United States Department of Homeland Security (“DHS”) is a

3 Department of the Executive Branch of the United States Government and is an agency within the

4 meaning of 5 U.S.C. § 552(f)(l). Along with Defendant United States Department of State

5 (“DOS”), it is jointly responsible for administering the CAM Program.

6

17. Defendant United States Citizenship and Immigration Services (“USCIS”) is an

7 Operational and Support Component agency within DHS. USCIS is the DHS sub-agency

8 responsible for making determinations on CAM applications and for processing cases in the CAM

9 Program generally and in the CAM Parole program.

10

18. Defendant DOS is a Department of the Executive Branch of the United States

11 Government and is an agency within the meaning of 5 U.S.C. § 552(f)(l). Along with Defendant

12 DHS, it is jointly responsible for administering the CAM Program. DOS has contracted the

13 International Organization for Migration (“IOM”) to run the United States Government’s

14 Resettlement Support Center in Latin America, which is responsible for processing CAM

15 applications.

16

19. Defendant Kirstjen Nielsen is the Secretary of Homeland Security. She oversees

17 DHS. She is sued in her official capacity.

18

20. Defendant Michael R. Pompeo is the Secretary of State. He oversees DOS. He is

19 sued in his official capacity.

20

21. Defendant L. Francis Cissna is the Acting Director of U.S. Citizenship and

21 Immigration Services. He oversees USCIS. He is sued in his official capacity.

22

22. Defendant United States of America includes all government agencies and

23 departments responsible for the termination of the CAM Parole program and mass rescission of

24 conditional approval for parole.

25

JURISDICTION AND VENUE

26

23. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 because this action arises

27 under the Constitution and laws of the United States. This Court has additional remedial authority

28 under the Declaratory Judgment Act, see 28 U.S.C. § 2201 et seq., and the Administrative

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Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 9 of 46

1 Procedure Act, 5 U.S.C. §§ 701-706.

2

24. The federal government has waived its sovereign immunity and permitted judicial

3 review of agency action pursuant to 5 U.S.C. § 702. See Presbyterian Church (U.S.A.) v. United

4 States, 870 F.2d 518, 525 (9th Cir. 1989). Sovereign immunity does not bar claims against federal

5 officials which seek only to prevent future violations of federal law, rather than monetary relief.

6 See, e.g., Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 697-99 & nn. 18-19

7 (1949); Shields v. Utah Idaho Cent. R. Co., 305 U.S. 177, 183-84 (1938).

8

25. Venue is proper in the Northern District of California pursuant to 28 U.S.C.

9 § 1391(e)(1) because at least one plaintiff resides in this judicial district and each defendant is an

10 agency of the United States or an officer of the United States sued in his or her official capacity.

11

INTRADISTRICT ASSIGNMENT

12

26. A substantial part of the events or omissions which give rise to the claim occurred in

13 each of Santa Clara County and Contra Costa County, given that at least one of the plaintiffs resides

14 in each such county. Accordingly, for purposes of Civil Local Rule 3-2(c) and 3-5(b), this case may

15 be assigned to the San Francisco, Oakland, or San Jose Division.

16

FACTUAL ALLEGATIONS

17

THE CAM PROGRAM WAS CREATED

18

TO RESPOND TO A HUMANITARIAN CRISIS FOR CHILDREN

19

27. DOS and DHS proposed and implemented the CAM Program in 2014 as part of a

20 multi-prong effort to respond to a humanitarian crisis for children in the Americas and an

21 unprecedented rise in the number of unaccompanied Central American children crossing the border

22 between Mexico and the United States.

23

28. Beginning in 2012, the number of unaccompanied children from the Northern

24 Triangle countries attempting to cross the southern U.S. border rose exponentially. In the years

25 preceding 2012, approximately 4,000 unaccompanied children from Northern Triangle countries

26 were apprehended at the southern border each year. In 2012, that number more than doubled, and

27 by 2014, more than 50,000 unaccompanied children from the Northern Triangle countries were

28 stopped at the border. Many of these children were younger than 12. A significant portion of these

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Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 10 of 46

1 children were seeking to reunify with parents or other family members present in the United States.

2

29. The overland journey from Central America through Mexico and into the United

3 States is extremely dangerous. While some immigrant smugglers, or “coyotes,” deliver migrants to

4 their destinations, others rob, exploit, enslave, or abandon them. Among the reported stories:

5

a) Many migrants of all ages have been raped or sexually assaulted, extorted, or

abducted by drug cartels and other criminal groups. Indeed, the likelihood of rape is

6

so high that girls and women obtain prophylactic shots of the contraceptive Depo-

Provera before setting out to avoid pregnancy.

7

b) Children are regularly crushed to death or lose limbs under the tracks of “La Bestia,”

8

the freight train that runs south to north through Mexico, where many migrants hitch

a ride.

9

c) In 2017, at least 85 migrants died on the journey through Mexico—many of them hit

10

or run over while attempting to hitch a ride on trains and trucks, and another 415

migrants drowned or died of exposure while attempting to cross the Southern Border.

11

12

30. As then-DHS Secretary Jeh Johnson acknowledged on July 10, 2014—two months

13 before DHS, DOS, and the Department of Justice (“DOJ”) proposed the CAM Program—“the long

14 journey for a child, in the custody of a criminal smuggling organization, from Central America to

15 the United States is dangerous. Many of the children are exploited, abused and hurt.”

16

31. Despite the dangers of the journey, unaccompanied children from the Northern

17 Triangle countries risked their lives on this passage in record numbers because of increased

18 violence in their home countries, particularly targeting young people. In these countries, gangs like

19 the MS-13 and Barrio 18—gangs originally formed in the United States that extended to Central

20 America after their members were deported—have created a confederation of semi-autonomous

21 mini-states within each country that coordinate more closely than the national governments.

22 Attacks on buses, abductions and gang rapes, and shootings in broad daylight occur daily in many

23 neighborhoods in the Northern Triangle, along with omnipresent efforts to recruit even small

24 children as gang members or sex slaves. Children are executed by gang members for refusing to

25 join a gang or to have sex or to pay extortion money, or simply because they are in the wrong place

26 at the wrong time. In one city in Honduras, morgue technicians have regularly received corpses of

27 children under 10, and sometimes as young as two. In 2014, the collapse of a “truce” agreement

28 between the MS-13 and the government of El Salvador led to an explosion in violence in that

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Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 11 of 46

1 country. The Northern Triangle countries have some of the highest homicide rates in the world for

2 children under 18 years old, with a 2014 United Nations (“UN”) report identifying El Salvador and

3 Guatemala as the two countries with the highest child homicide rates.

4

32. Nearly 60 percent of Central American children interviewed in U.S. custody by the

5 U.N. High Commissioner for Refugees in 2013 said they had suffered, been threatened, or feared

6 serious harm—of the sort that would make them likely eligible for international protection as

7 refugees. By comparison, only 13 percent of children identified such concerns in similar interviews

8 in 2006.

9

33. Then-DHS Secretary Jeh C. Johnson determined that the situation at the border was a

10 “humanitarian crisis.” In the face of this crisis, the United States struggled to meet its legal

11 obligations to the children streaming across its border. Federal law—passed with overwhelming

12 bipartisan support in the last months of the George W. Bush Administration—requires the

13 government to provide unaccompanied Central American children with an opportunity for an

14 immigration hearing prior to removal. 8 U.S.C. § 1232(a)(5)(D). It also requires the Department of

15 Health and Human Services to place the child “in the least restrictive setting that is in the best

16 interest of the child” and to attempt to reunite children with their family members in the United

17 States. See 8 U.S.C. § 1232(c)(2)(A). The U.S. government opened emergency shelters on an Air

18 Force base in order to house the young arrivals, and later enlisted the Federal Emergency

19 Management Agency to manage the relief effort.

20

34. To address the refugee crisis, the U.S. government proceeded along multiple tracks

21 to attempt to reduce the number of dangerous border crossings by unaccompanied Central American

22 children. Among other things, it:

23

a) Worked with Mexico to secure its borders.

24

b) Put in place a public messaging campaign in Central America emphasizing the

dangers of the journey through Mexico to the United States.

25

c) Delivered $750 million in aid to the Northern Triangle countries.

26

27

35. And the U.S. government implemented the Central American Minors program to

28 allow children from the Northern Triangle countries to apply for refugee resettlement or parole

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Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 12 of 46

1 status while still in their home countries, in order to be reunified with their parents lawfully residing

2 in the United States.

3

THE CAM PROGRAM SUCCEEDED IN PROVIDING CHILDREN A

4

LEGAL PATHWAY TO SAFETY AND FAMILY REUNIFICATION

5

36. The Obama Administration first proposed the CAM Program on September 18, 2014

6 as part of the President’s annual recommendations to Congress on the proposed refugee admissions

7 for the following fiscal year, pursuant to 8 U.S.C. §§ 1157(d) & (e). The annual Presidential

8 Determination on Refugee Admissions incorporated these recommendations, identifying people in

9 El Salvador, Honduras, and Guatemala as being of special humanitarian concern. From the start,

10 the Administration trumpeted the CAM Program as a “safe, legal, and orderly alternative to the 11 dangerous journey that some children are taking to reach the United States.”1

12

37. Like many prior programs created by the U.S. government to address humanitarian

13 crises in particular countries, CAM was structured as a dual refugee/parole program. Under the

14 CAM Refugee program, Central American parents lawfully living in the United States could apply

15 for their minor children and qualifying family members in the Northern Triangle countries to be

16 considered for refugee resettlement while still in their home countries. This type of in-country

17 refugee processing takes place only after DOS, in consultation with DHS/USCIS, NGOs, UNHCR,

18 and other experts, identifies a specific group as being in need of resettlement. The children and

19 qualifying family members were accepted as refugees if they could establish that they qualified for

20 resettlement under U.S. law—by demonstrating a well-founded fear of persecution based on

21 religion, race, nationality, political opinion, or membership in a particular group.

22

38. But significantly for CAM participants, even if the children and qualifying family

23 members did not meet the specific eligibility criteria for refugee admission, they were automatically

24

25 1U.S. Dep’t of State, Central American Minors (CAM) Program,
http://web.archive.org/web/20170806132845/https://www.state.gov/j/prm/ra/cam/index.htm (version from Aug. 6, 2017
26 accessed via Wayback); U.S. Dep’t of State, Expansion of the Central American Minors (CAM) Program, Fact Sheet
(Jan. 20, 2017), available at https://www.state.gov/j/prm/releases/factsheets/2017/266363.htm (last accessed on Apr.
27 17, 2018); USCIS, In-Country Refugee/Parole Processing for Minors in Honduras, El Salvador and Guatemala
(Central American Minors – CAM), http://web.archive.org/web/20170806014805/https://www.uscis.gov/CAM (version
28 from August 6, 2017 accessed via Wayback).

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1 considered on a case-by-case basis for parole pursuant to 8 U.S.C. § 1182(d)(5) under the CAM

2 Parole program. USCIS promised participants that if they were eligible for the CAM Program but

3 deemed ineligible for refugee status, they “will then be considered on a case-by-case basis for

4 parole into the United States” and that “[a] separate application for this parole process is not 5 required if the individual already has access to the CAM program” (emphasis added).2 Children

6 and qualifying family members were eligible for parole to join their family members in the United

7 States if USCIS determined that: (1) they were “at risk of harm”; (2) they “clear[ed] all background

8 vetting”; (3) USCIS had received “no serious derogatory information”; and (4) a third party had 9 committed to financially support them in the United States.3

10

39. The CAM Program continued a long tradition by the United States of adopting

11 mixed refugee/parole programs to address specific regional crises.4 For example, for more than

12 two decades beginning in 1988, the United States considered applicants fleeing religious

13 persecution in the former Soviet Union for refugee resettlement, and if they did not qualify, for 14 extended parole status in the United States.5 Similarly, for a decade beginning in 1989, Vietnamese

15 nationals who were denied refugee status were considered for admission to the United States as

16 parolees under a program established to provide a safe and legal alternative to leaving Vietnam by 17 boat.6

18

40. To qualify as a CAM applicant, a U.S.-based parent had to be at least 18 years old

19 and be lawfully present in the United States as a Legal Permanent Resident, Temporary Protected

20 Status recipient, Parolee, or Deferred Action Recipient. In order to be eligible, Parolees and

21 Deferred Action Recipients had to have held that status for at least one year at the time of

22
2 USCIS, Central American Minors (CAM) Refugee/Parole Program: Information for Conditionally Approved

23 Applicants (from June 2, 2017—accessed using Wayback).
3 U.S. Dep’t of State, In-Country Refugee/Parole Program for Minors in El Salvador, Guatemala, and Honduras with

24 Parents Lawfully Present in the United States, 2009-2017 Archive for the U.S. Dep’t of State (Nov. 14,

2014), https://2009-2017.state.gov/j/prm/releases/factsheets/2014/234067.htm, supra n.1.

25 4 USCIS Ombudsman, Recommendation on the Central American Minors (CAM) Refugee/Parole Program (Dec. 21,

2016) at 13-14, available at

26 https://www.dhs.gov/sites/default/files/publications/Citizenship%20and%20Immigration%20Service%20Ombudsman.p

df.

27

5 Id. at 14. 6 GAO, Report to the Chairman, Subcommittee on Immigration, Refugees, and International Law, Committee on the

28

Judiciary, House of Representatives: Refugee Program – The Orderly Departure Program From Vietnam (Apr. 1990), available at http://archive.gao.gov/t2pbat10/141353.pdf.

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1 application.

2

41. To qualify as a CAM beneficiary, a child had to be under 21 years old; unmarried; a

3 national of El Salvador, Guatemala, or Honduras, and the genetic, step- or legally adopted- child of

4 a qualifying parent. The CAM Program also allowed close family members of qualifying children

5 to participate as beneficiaries under certain conditions. In mid-2016, the Obama Administration

6 expanded the program to allow additional immediate family members of the children to apply as

7 “derivative” beneficiaries.

8

42. The lengthy CAM application process had many components, which included the

9 extensive screening and vetting process accompanying the U.S. Refugee Admissions Program. The

10 CAM application process included the following steps:

11

(a) First, a qualifying parent filed an application with assistance of a

12

“resettlement agency” in the United States—a non-profit organization that is

13

partially funded by the government to welcome refugees into the country.

14

The parent had to provide proof of identity, proof of legal status in the United

15

States, and a passport size photo of the child. Defendant DOS reviewed

16

applications and forwarded eligible applications to the International

17

Organization for Migration (“IOM”)—the inter-governmental organization

18

DOS contracts to run its Resettlement Support Center7 in Latin America.

19

(b) Second, IOM contacted the child in the Northern Triangle country and

20

invited them to a pre-screening interview in the capital city of their country.

21

There, IOM interviewed the child, took their biometric data and background

22

information, prepared their case file, and initiated security checks—following

23

the standards for processing applicants to the U.S. Refugee Admissions

24

Program.

25

(c) Third, USCIS verified the relationship between the parent and child and

26

27 7 DOS funds and manages nine Resettlement Support Centers around the world to process refugee applications for U.S.
resettlement consideration. DOS contracts international and nongovernmental organizations, such as IOM, to operate
28 these centers.

-12CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 15 of 46

1

performed security checks. Part of the verification required the parent and

2

child to take DNA tests at the parent’s expense. After the parent paid for

3

testing, the child had to travel to the capital city of their country to provide

4

the test sample. Where the testing confirmed the relationship, parents were

5

subsequently reimbursed for the DNA tests. USCIS’s Refugee Access

6

Verification Unit also verified the relationship using documentary evidence.

7

If the relationship was not confirmed, USCIS rejected the application.

8

(d) Fourth, after confirming the relationship, USCIS scheduled and conducted

9

an interview with the child in the capital city. The U.S. Embassy in

10

Honduras told CAM applicants that after they submitted an application,

11

“DHS officials will interview eligible family members to determine who will

12

be admitted as a refugee or offered parole to the U.S.”8

13

(e) Fifth, after confirming security check results and DNA test results, USCIS

14

made a determination on the refugee application. CAM beneficiaries either

15

received a decision letter or a phone call informing them of the

16

determination. For those who received letters, if refugee status was denied,

17

the letter checked one of several boxes to explain the reason for the denial

18

and outlined the process to request a review of the refugee determination.

19

The letter then indicated whether the child was eligible for the CAM Parole

20

program. Where USCIS had approved the child for the CAM Parole

21

program, the letter said:

22

You have been conditionally approved for parole into

the United States. Final approval is conditioned upon

23

successful completion of any remaining clearances that

are required in the screening process. These clearances

24

include medical examination by a U.S. approved panel

physician, completion of security clearance

25

procedures, and verification of family relationships.

Please see attached information sheet for next steps

26

27 8 U.S. Embassy in Honduras, In-Country Refugee/Parole Processing for Minors in Honduras, El Salvador, and
Guatemala (Central American Minors – CAM): Frequently Asked Questions, available at https://hn.usembassy.gov/wp-
28 content/uploads/sites/109/2016/07/visas_camprogram-faqs.pdf (last viewed on April 18, 2018).

-13CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 16 of 46

1

that must be completed for you to be paroled into the

United States.

2

3

(f) Sixth, after a child was conditionally approved for parole, they had to

4

undergo a medical examination at the parent’s expense. USCIS told

5

applicants that if they were conditionally approved, “IOM will contact your

6

relative in the United States to collect payment for the medical exam,” and

7

“[a]fter receiving payment, IOM will contact you to arrange your exam.”9

8

The child was required to travel to the capital city for the exam.10 If the child

9

cleared the exam, they would receive a medical clearance valid for six

10

months.11

11

(g) Seventh, USCIS told applicants that “[i]f the medical exam results clear,

12

IOM will contact your relatives in the United States to arrange for your

13

flight,” and “[a]fter IOM receives payment for your travel, they will submit

14

the travel itinerary to USCIS.”12

15

(h) Eighth, USCIS told applicants that after receiving the travel itinerary from

16

IOM, USCIS “will . . . [p]erform final security checks, [e]nsure the medical

17

exam results remain valid until date of travel, and [v]erify that your relative

18

still has a qualifying legal presence in the United States.”13 USCIS further

19

represented to applicants that “[i]f we decide that you have met all

20

requirements for parole under this program, we will issue Form I-512L,

21

Authorization for Parole of an Alien Into the United States,” and “IOM will

22

give you this document and your plane ticket the day you fly to the United

23

States.”14 Under DHS regulations, “when parole is authorized,” “the alien

24

25 9 USCIS, Central American Minors (CAM) Refugee/Parole Program: Information for Conditionally Approved

Applicants (from June 2, 2017—accessed using Wayback), supra n.2.

26

10 Id. 11 Id. If the child suffered from Class “A” TB, Class “B” 1 TB, or HIV, the medical exam was valid for only three

27

months. Id. 12 Id.

28

13 Id. 14 Id.

-14CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 17 of 46

1

shall be issued an appropriate document authorizing travel” to the United

2

States by DHS. 8 C.F.R. § 212.5(f) (emphasis added).

3

(i) Finally, the child traveled to a U.S. port of entry, where DHS Customs and

4

Border Protection could authorize parole for a period of up to two years and

5

would issue Form I-94, Arrival/Departure Record. USCIS told applicants

6

that “[w]e will consider CAM parole extension requests for the duration of

7

the program.”15

8

43. The CAM application process was designed to proceed quickly, particularly after an

9 applicant was conditionally approved for parole. The required medical examination results were 10 valid for only six months (and only three months for beneficiaries with certain medical diagnoses),16

11 and needed to be repeated—and paid for again—if they expired. Similarly, security checks were

12 valid for only a limited period of time. Accordingly, USCIS advised applicants “to book the travel

13 [to the United States] within the time period suggested by IOM to avoid additional processing 14 delays and costs if the medical exam or security checks expire.”17 Anticipating that conditionally

15 approved parolee cases would be quickly processed, USCIS also advised applicants that if they

16 needed additional time to pay for medical exams or flights to the United States to notify IOM or

17 USCIS so their cases could be administratively closed and reopened when they had collected the 18 necessary funds.18

19

44. The CAM Program began accepting applications on December 1, 2014, and during

20 the approximately two and a half years it was in operation, more than 13,000 people applied.

21 Because of the program, at least 1,627 individuals were able to resettle in the United States as

22 refugees and 1,465 people were able to reunite with their families in the United States as parolees.

23 //

24 //

25 //

26

27

15 Id. 16 Id.

28

17 Id. 18 Id.

-15CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 18 of 46

1

THE TRUMP ADMINISTRATION,

MOTIVATED BY RACIAL ANIMUS TOWARD LATINOS,

2

SHUT DOWN THE CAM PAROLE PROGRAM

3

The Trump Administration Campaigned on Anti-Latino Animus.

4

45. President Trump launched his 2016 presidential campaign with the xenophobic claim

5 that Latin America was “not sending their best” people to the United States: “They’re sending

6 people that have lots of problems, and they’re bringing those problems with us. They’re bringing

7 drugs. They’re bringing crime. They’re rapists. . . . It’s coming from all over . . . Latin America.”

8

46. Candidate Trump continued to categorize all Latinos as gang members, killers, and

9 rapists in promising to deport and exclude Latinos from the country, at one point even suggesting

10 that violence against Latinos was justified for people who “love this country and want this country

11 to be great again.” For example:

12

a) On August 21, 2015, when asked to respond to a report that two of his supporters

had urinated on a sleeping Latino man and then beat him with a metal pole, Trump

13

responded, “people who are following me are passionate. They love this country and

want this country to be great again. They are passionate.”

14

b) In May 2016, then-candidate Trump referred to anti-Trump protestors who carried

15

the Mexican flag on Twitter as “criminals” and “thugs.”

16

c) In June 2016, then-candidate Trump stated that Judge Gonzalo Curiel could not be

fair in presiding over a lawsuit because he was “Hispanic.”

17

d) In October 2016, during a presidential debate, then-candidate Trump responded to a

18

question about immigration by referring to Latino immigrants as “bad hombres” and

promising that “we’re going to get them out.”

19

e) In December 2016, Trump referred to an article about a recent crime wave on Long

20

Island and said “They come from Central America. They’re tougher than any people

you’ve ever met.... They’re killing and raping everybody out there. They’re illegal.

21

And they are finished.”

22

The Trump Administration Shut Down the CAM Parole Program

23

Immediately After Inauguration, Without Notifying the Public.

24

47. Within days of President Trump’s inauguration, the Administration set to work to

25 keep Central Americans from entering the United States, in part by shutting down the CAM Parole

26 program. But, the Trump Administration did so secretly, without informing the public or the CAM

27 participants of what it was doing.

28

48. For example, without any public announcement, the Administration stopped USCIS

-16CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 19 of 46

1 interviews of CAM beneficiaries, thereby blocking all CAM applications at that stage from being

2 processed. Emails recently released in response to a Freedom of Information Act request show that

3 within the first seven days of the Trump Presidency, USCIS cancelled more than 2,000 CAM

4 interviews already scheduled to take place in January, February, and March 2017. The interviews

5 were cancelled in anticipation of an Executive Order suspending the U.S. Refugee Admissions

6 Program—what would later become Executive Order 13,769, Protecting the Nation from Foreign

7 Terrorist Entry into the United States (“EO-1”). Although EO-1 was immediately enjoined

8 nationwide on February 3, 2017 by Washington v. Trump, 2017 WL 462040 (W.D. Wash. Feb. 3,

9 2017), aff’d, 847 F.3d 1151 (9th Cir. 2017), USCIS did not reinstate the interviews; rather, USCIS

10 confirmed on February 3, 2017 that all USCIS interviews in the Northern Triangle countries

11 through the end of March 2017 were cancelled.

12

49. The Trump Administration, without notifying the public, stopped issuing decisions

13 post-interview to applicants who were likely candidates for parole. For example, Plaintiff J.F.’s two

14 young children, Plaintiffs H.F. and A.F., were interviewed in November 2016, but did not receive

15 decisions on their applications for more than a year (when they were denied refugee resettlement

16 and not considered for parole).

17

50. With regard to children who prior to President Trump’s inauguration had been

18 conditionally approved for parole, the Trump Administration stopped scheduling the medical

19 examinations that were required before conditionally approved parolees could travel to the United

20 States. Once again, the Administration did so secretly, without informing the public or the CAM

21 participants of what it was doing. And notwithstanding its secret shutdown of the CAM Program,

22 the Trump Administration continued to solicit and accept funds from applicants, leading them to

23 believe the program was still operational.

24

51. For example, Plaintiff B.E. was conditionally approved for parole in November

25 2016, and on January 30, 2017, IOM contacted his father, Plaintiff G.E., requesting advance

26 payment for B.E.’s medical exam by February 15, 2017. G.E. paid for the exam before February

27 15, but B.E.’s medical exam was never scheduled.

28

52. With respect to conditionally approved parolees who had cleared their medical

-17CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 20 of 46

1 examinations, completed every step of the application process, and whose parents had paid for their

2 plane tickets to come to the United States, the Trump Administration—again without notifying the

3 public—blocked their travel.

4

53. For example, days after President Trump’s inauguration—on or about January 22,

5 2017—Plaintiff D.D., who had already paid for her daughter’s plane ticket on or about December 8,

6 2016, sought information about when her daughter would fly to the United States. An IOM

7 employee told D.D. that IOM had received new orders and all the CAM cases were frozen for 120

8 days—the same length of suspension called for in EO-1 for refugee admissions—although her

9 daughter’s case was in the Parole program. The IOM employee told D.D. that her daughter had

10 been scheduled to fly to the United States on February 13, 2017, but that she could not travel at that

11 time and had to wait. Finally, the IOM employee said that none of the CAM cases could be

12 processed because the new government had changed its position, and IOM had to wait for orders

13 from the new Administration. The employee told D.D. that IOM would call her in 120 days. D.D.

14 was never called by IOM again.

15

54. Similarly, Plaintiff R.C. paid approximately $3,875 for his three children’s plane

16 tickets to the United States in January 2017. R.C., who packs produce for a living, took a loan from

17 friends and managed to send the money to IOM within three days as instructed. IOM told his

18 family that the children would travel on February 20, 2018 and would receive a follow up call with

19 more information. The children, including Plaintiffs M.C. and J.C., never received a call.

20

55. Notwithstanding the secret shutdown of the program, the Trump Administration

21 continued to solicit and accept payments for plane tickets from applicants, thus leading applicants to

22 believe that the program was still operational. For example, on February 1, 2017, Plaintiff S.A.

23 received an email from IOM saying that it had received “the payment information for the Flight

24 Reservation” for her daughter, Plaintiff J.A., and baby grandson, and she needed to send IOM over

25 $2,500 “no later than FEB 25, 2017.” S.A. sent the funds within days, and IOM confirmed receipt

26 on February 9, 2017. IOM told S.A. that her daughter and grandson would be able to travel to the

27 United States approximately two weeks after her payment was received, but they never received

28 flight information and never traveled. When J.A. called IOM for an update in approximately April

-18CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 21 of 46

1 2017, she was told that all the CAM parole cases were frozen.

2

56. Despite shutting down the CAM Parole program and stopping USCIS interviews of

3 all CAM applicants in January 2017, Defendants failed to notify the public of what they were doing

4 or to provide any explanation, much less a reasoned one, for why they were shutting down the

5 program. Instead, Defendants continued to publicly misrepresent—for 7 months—that the CAM

6 Parole program was functioning normally and continued to solicit and accept payments from

7 applicants for various steps of the program, including DNA testing and medical tests.

8

57. Notably, even after the Administration secretly shut down the CAM Parole program,

9 the USCIS program webpage for CAM applicants conditionally approved for parole, which

10 discussed USCIS’s and IOM’s obligations vis-à-vis those applicants, remained active. This website

11 and another USCIS website specifically disclaimed any plan to terminate the CAM Parole program, 12 saying “[c]urrently there is no planned end date for the CAM parole program,”19 and “[t]here is 13 currently no filing deadline for this program.”20

14

58. Similarly, following the secret shutdown of the CAM Parole program, the USCIS

15 program webpage for conditionally approved CAM applicants continued to recommend that

16 applicants not delay in paying for plane tickets—the single largest CAM-related expense—to avoid

17 delayed processing: “We encourage your relative to book the travel within the time period

18 suggested by IOM to avoid additional processing delays and costs if the medical exam or security 19 checks expire.”21 USCIS estimated that the cost of a single plane ticket for a child or adult ranged 20 from $1,110 to $1,401.22

21

59. And following the secret shutdown of the CAM Parole program, a DOS webpage

22 discussing the CAM Program expansion continued to represent that applications for newly-eligible

23 derivative beneficiaries would be processed if they were filed before September 30, 2017:

24

For a temporary period of time, the expansion of the CAM program will apply

retroactively in certain cases. A qualifying, lawfully present parent who filed a

25

26

19 Id. (emphasis added). 20 USCIS, In-Country Refugee/Parole Processing for Minors in Honduras, El Salvador and Guatemala (Central

27

American Minors – CAM), http://web.archive.org/web/20170806014805/https://www.uscis.gov/CAM (version from Aug. 6, 2017 accessed via Wayback).

28

21 Id. 22 Id.

-19CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 22 of 46

1

CAM AOR from December 1, 2014, through November 30, 2016, and wishes to

request access for expanded category relatives will need to file an amended DS-7699

2

prior to September 30, 2017. . . . An amended AOR form filed on or before this date

will be processed regardless of where the qualifying child is in the process as long as

3

the relationships of the expanded category relatives can be verified through DNA

testing.23

4

5

60. Moreover, for months following the secret shutdown of the CAM Parole program, in

6 no fewer than five webpages controlled by USCIS, DOS, and the U.S. Embassies in El Salvador

7 and Honduras, Defendants represented well into the summer of 2017 that the CAM Program

8 continued to offer:

9

a) “a legal means of family reunification for qualified individuals,”24

10

b) “a safe, legal, and orderly alternative to the dangerous journey that some children are

currently undertaking to the United States,”25 and

11

c) “protect[ion for] Central Americans at risk by allowing lawfully present parents in

12

the United States to request refugee status for their children in El Salvador,

Honduras, and Guatemala via the U.S. Refugee Admissions Program.”26

13

The Trump Administration Waited Until August 2017

14

to Publicly Announce the Termination of CAM.

15

61. President Trump and his Administration officials had ample opportunity to publicly

16 acknowledge that they had shut down the CAM Parole program—and indeed they issued repeated

17 announcements about the use of parole authority—but they specifically failed to mention any

18 changes to the CAM Parole program.

19

20
23 U.S. Dep’t of State, Expansion of the Central American Minors (CAM) Program, Fact Sheet (Jan. 20, 2017),

21 https://www.state.gov/j/prm/releases/factsheets/2017/266363.htm (emphasis added). The U.S. Embassy in El Salvador
has an identical and still-active webpage about the expansion of the CAM program. U.S. Embassy in El Salvador,

22

Expansion of the Central American Minors (CAM) Program, available at https://sv.usembassy.gov/expansion-centralamerican-minors-cam-program/ (last viewed on April 18, 2018) (emphasis added).

24 U.S. Embassy in Honduras, In-Country Refugee/Parole Processing for Minors in Honduras, El Salvador, and

23 Guatemala (Central American Minors – CAM): Frequently Asked Questions, available at https://hn.usembassy.gov/wp-

content/uploads/sites/109/2016/07/visas_camprogram-faqs.pdf (last viewed on April 18, 2018).
24 25 USCIS, In-Country Refugee/Parole Processing for Minors in Honduras, El Salvador and Guatemala (Central

American Minors – CAM), http://web.archive.org/web/20170806014805/https://www.uscis.gov/CAM (version from

25 August 6, 2017 accessed via Wayback); U.S. Embassy in El Salvador, Expansion of the Central American Minors

(CAM) Program, available at https://sv.usembassy.gov/expansion-central-american-minors-cam-program/ (last viewed

26 on April 18, 2018); U.S. Dep’t of State, Expansion of the Central American Minors (CAM) Program, Fact Sheet (Jan.

20, 2017), available at https://www.state.gov/j/prm/releases/factsheets/2017/266363.htm.

27

26 U.S. Dep’t of State, Expansion of the Central American Minors (CAM) Program, Fact Sheet (Jan. 20, 2017), available at https://www.state.gov/j/prm/releases/factsheets/2017/266363.htm; U.S. Embassy in El Salvador, Expansion

28

of the Central American Minors (CAM) Program, available at https://sv.usembassy.gov/expansion-central-americanminors-cam-program/ (last viewed on April 18, 2018).

-20CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 23 of 46

1

62. For example, President Trump issued Executive Order 13,767 (“the Parole EO”), 82

2 Fed. Reg. 8,793, on January 25, 2017, in which he ordered the Homeland Security Secretary to take

3 “appropriate action” to ensure that his statutory parole authority was exercised “only on a case-by-

4 case basis” and “only when an individual demonstrates urgent humanitarian reasons or a significant

5 public benefit derived from such parole.” The Parole EO made no mention of the CAM Program.

6

63. Similarly, on February 20, 2017, then-Homeland Security Secretary John Kelly

7 issued a memorandum purporting to implement the Parole EO, and said that in his judgment,

8 statutory parole authority “should be exercised sparingly.” Without any explanation, he asserted

9 that “[t]he practice of granting parole to certain aliens in pre-designated categories in order to create

10 immigration programs not established by Congress, has contributed to a border security crisis,

11 undermined the integrity of the immigration laws and the parole process, and created an incentive

12 for additional illegal immigration.” He ordered the Director of USCIS to “ensure that . . .

13 appropriate written policy guidance and training is provided to employees . . . so that such

14 employees are familiar with the proper exercise of parole . . . and exercise such parole authority

15 only on a case-by-case basis,” pending the issuance of final regulations on the use of parole.

16 Secretary Kelly omitted any mention of the CAM Program.

17

64. Not until August 16, 2017 did Defendants finally publicly announce the termination

18 of the CAM Parole program by publishing a notice in the Federal Register. 82 Fed. Reg. 38,926

19 (Aug. 16, 2017).

20

65. In the August Federal Register notice, then-Acting Secretary of Homeland Security

21 Elaine Duke announced that, effective immediately, USCIS was no longer considering or

22 authorizing parole under the CAM Parole program. In the same notice, DHS rescinded conditional

23 approval for parole en masse for all CAM beneficiaries whom USCIS had granted this status but

24 had not yet traveled to the United States.

25

66. Notably, DHS’s Federal Register notice did not provide any explanation for the

26 termination of the CAM Parole program or for the mass rescission of conditional approval for

27 parole. Furthermore, the notice failed to acknowledge that in fact the program had been shut down

28 without any explanation since January 2017.

-21CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 24 of 46

1

67. Nor did DHS’s Federal Register notice claim that conditions in the Northern

2 Triangle counties had improved from the conditions in 2014 that led to the establishment of the

3 CAM Program. Indeed, they have not, even according to the U.S. government. For example:

4

a) In March 2017, DOS issued a report on El Salvador’s human rights practices. This

report described rampant human rights abuses throughout El Salvador that “stem[]

5

from . . . widespread extortion and other crime,” “widespread corruption,” “weak

rule of law, which contributed to high levels of impunity and government abuse,

6

including unlawful killings by security forces,” “widespread” violence against

women and girls, and the commercial sexual exploitation of women and children.

7

b) On January 10, 2018, DOS issued a Level Three travel advisory for El Salvador that

8

warns travelers to “[r]econsider travel” to the country “due to crime.” The advisory

states that “[v]iolent crime, such as murder, assault, rape, and armed robbery, is

9

common,” and that “[g]ang activity, such as extortion, violent street crime, and

narcotics and arms trafficking, is widespread.”

10

c) According to DOS, nearly one out of every five persons in El Salvador has been a

11

victim of violent crime. Approximately ten women per day experience violence or

sexual assault in El Salvador, and 7 of every 10 victims of sexual violence are under

12

the age of 20.

13

d) In a report published in August 2017, the U.N. World Food Program identified the

violence in El Salvador as “a humanitarian emergency” that “has significantly

14

impeded development” in the country.

15

e) DOS’s 2017 Human Rights Report for El Salvador stated that over 48,000 students

dropped out of school in 2015 due to gang threats, crime, or forced displacement due

16

to gang activity. In 2017, the Internal Displacement Monitoring Centre estimated

that nearly 220,000 people were forced to flee violence in El Salvador in 2016 alone.

17

The U.S. Conference of Catholic Bishops Delegation noted that the estimated

number of displaced persons in El Salvador could be as high as 400,000.

18

f) El Salvador has one of the world’s highest homicide rates. In 2017, the homicide

19

rate was nearly twelve people per day.

20

g) In January 2018, Human Rights Watch reported that Honduras continues to have the

highest murder rate in the world.

21

h) On January 10, 2018, DOS issued a Level 3 Travel Advisory for Honduras, noting

22

that homicide and armed robbery are “common” and that “[v]iolent gang activity,”

including rape, violent street crime, and human trafficking, is “widespread.” The

23

advisory further notes that “[l]ocal police and emergency services lack the resources

to respond effectively to serious crime.”

24

i) DOS’s 2017 Human Rights Report for Honduras identified widespread human rights

25

violations including arbitrary killings and arrests, killings of journalists, and

widespread corruption, as well as “murder, extortion, kidnapping, torture, human

26

trafficking,” and other forms of violence by “local and transnational gangs and

narcotics traffickers.” It stated “that the judiciary was “subject to intimidation,

27

corruption, politicization, and patronage,” and that “organized criminal groups . . .

exercised influence on the outcomes of some court proceedings.”

28

-22CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 25 of 46

1

j) Honduras has a femicide rate of 14.6 per 100,0000, and in 2016, 463 women were

murdered in Honduras. Authorities only investigated 15 of those cases.

2

k) On January 10, 2018, DOS issued a Level 3 Travel Advisory for Guatemala, asking

3

that U.S. citizens “[r]econsider travel” to the country. The Advisory noted that

“sexual assault, carjacking, armed robbery, and murder” are “common” and that

4

“gang activity,” including “extortion, violent street crime, and narcotics trafficking,

is widespread.”

5

l) DOS’s 2017 Human Rights Report for Guatemala says that government officials

6

“frequently engaged in corrupt practices with impunity.” The report cited major

crimes committed with stunning flagrancy, including an MS-13 attack on a large

7

public hospital that killed five civilians and freed a fellow gang member.

8

m) Violence against women remained at epidemic levels. DOS’s 2017 report mentions

that “[p]olice had minimal training or capacity to investigate sexual crimes or assist

9

survivors of such crimes, and the government did not enforce the law effectively.”

10

n) DOS’s 2017 report mentions rampant abuse of children, including “children engaged

in the worst forms of child labor.” It reported that 683 minors had been violently

11

killed in the country between January 2017 and August 2017. It also noted that in

2016, 41 girls at a government-run shelter for adolescents died after a fire started in

12

the room where the shelter had locked them.

13

68. The Federal Register notice was silent about the grave risks to the life and safety of

14 unaccompanied minors that motivated the original creation of the CAM Program. It did not suggest

15 that those risks had abated or would be addressed by other approaches.

16

69. The August 16, 2017 Federal Register notice stated that the CAM Refugee program

17 would be left in place, but the reprieve for the CAM Refugee program was short-lived. On

18 November 8, 2017, DOS announced that it would stop accepting CAM applications the following

19 day, and soon thereafter it announced that it would stop interviews in January 2018. Since January

20 31, 2018, children with pending CAM applications who had not been interviewed have been

21 receiving communications denying their applications and advising them to seek assistance at child

22 welfare agencies in their countries of origin. On information and belief, the Administration plans to

23 deny the nearly 4,000 CAM applicants who were not interviewed by January 31, 2018.

24

70. After the Administration formally terminated the CAM Parole program, IOM told

25 applicants whose conditional approval for parole was rescinded—all of whom had previously been

26 deemed ineligible for refugee resettlement under the CAM Refugee program—that they could file a

27 Request for Review (“RFR”) of the denial of refugee status within 90 days of notice of the

28 rescission.

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1

71. Many of the CAM applicants affected by the mass rescission relied upon

2 Defendants’ representations and filed RFRs, including Plaintiffs H.F., A.F., and B.E.

3

72. Nonetheless, upon information and belief, while RFRs are often adjudicated within

4 two to four months of filing, many CAM applicants who filed RFRs have not yet received decisions

5 for RFRs filed in 2017 or early 2018. Fiscal Year 2018 is drawing to a close, and the Fiscal Year

6 2019 Presidential Determination on refugee admissions may further limit refugee admissions from

7 Central America or end in-country processing, and thereby prevent even people deemed eligible for

8 refugee resettlement from entering the United States.

9

73. The termination of the CAM Parole program—its secret termination, the mass

10 rescission of conditional approval of parole status for nearly 3,000 people, and failure to consider

11 parole eligibility for people already in the pipeline in August 2017—was unprecedented. The

12 United States has created or maintained many refugee/parole programs in the past, but it has never

13 before secretly and abruptly terminated one in this fashion. For example:

14

a) When the Lautenberg parole program27 was publicly terminated in 2011, USCIS

gave applicants conditionally approved for parole who had not yet traveled 90 days

15

to complete their processing and enter the United States. The vast majority of parole

applicants travelled to the United States before the deadline, and USCIS later

16

extended the deadline to give another chance to those who missed the window.

17

b) When the Vietnamese Public Interest Parole program was ended in 1999, applicants

who were already conditionally approved for parole were allowed to travel to the

18

United States after the termination.

19

c) When a program considering Cuban medical professionals for parole ended in the

early days of 2017, USCIS announced that it would process all pending applications

20

and parolees would be given six months to submit applications on behalf of

derivative family members.

21

22

74. The termination of the CAM Program—specifically, shutting it down first before

23 officially announcing its permanent termination—does, however, follow the Trump

24 Administration’s modus operandi in its various attempts to ban immigrants and refugees from this

25 country. For example, in the context of immigrant and non-immigrant visas, President Trump

26 issued successive Executive Orders purporting to temporarily suspend Muslim travelers from six

27

28

27 The Lautenberg Amendment, first enacted in 1990 and subsequently expanded, lowered the standard for proving refugee status for persecuted religious minorities in the former Soviet Union and later in other countries.

-24CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 27 of 46

1 countries from entering the United States—allegedly, to enable a security review—before issuing an

2 order that permanently subjected nearly the same group of Muslim travelers to nearly an identical

3 ban. See Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017); Exec. Order No. 13,780, 82

4 Fed. Reg. 13,209; Presidential Proclamation 9,645 (Sept. 24, 2017).

5

75. Similarly, in the refugee context, President Trump issued successive Executive

6 Orders purporting to temporarily suspend the U.S. Refugee Admissions Program—again, allegedly,

7 to enable successive security reviews. See Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Feb. 1,

8 2017); Exec. Order No. 13,780, 82 Fed. Reg. 13,209. On the day the second “temporary”

9 suspension was slated to end, the Trump Administration publicly purported to resume refugee

10 admissions, but the Secretary of Homeland Security, the Secretary of State, and the Director of

11 National Intelligence released a memorandum which further suspended admissions of all refugees

12 from nine Muslim-majority countries. See Exec. Order No., 13,815, 82 Fed. Reg. 50,055, 50,057,

13 and its accompanying memorandum. To this day, only a handful of refugees from those nine

14 Muslim-majority countries have been admitted to the United States this fiscal year.

15

The CAM Termination Is Part and Parcel of Trump Administration Policies

16

Motivated by Racial Animus Against Latinos.

17

76. This unprecedented, unexplained, and unsupported termination of the CAM Parole

18 program can only be understood as one of this Administration’s many policies fueled by anti-Latino

19 animus. For example, since coming to office, the Administration has announced the termination of

20 Temporary Protected Status (“TPS”) for Salvadorans, Nicaraguans, and Hondurans, many of whom

21 had lived in the United States for decades. The Administration forged ahead with these TPS

22 terminations in deliberate disregard of the advice of senior career diplomats with regional expertise

23 to the contrary.

24

77. Moreover, recently disclosed USCIS emails further call into question whether the

25 Administration’s decision to end these and other TPS programs were made in good faith and

26 whether the stated reasons for TPS terminations were pretextual. The emails demonstrate that

27 Administration officials sought negative details about Haitian TPS holders before terminating TPS

28 for Haiti—despite the fact that such details were irrelevant to the Administration’s purported reason

-25CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 28 of 46

1 for termination: that there was no longer any humanitarian need for the program.

2

78. Nearly 200,000 Salvadorans, 60,000 Hondurans, and 5,000 Nicaraguans will lose

3 legal status in the United States as a result. The TPS terminations have been challenged as

4 discriminatory and based on unconstitutional animus. See Ramos v. Nielsen, 3:18-cv-01554, Class

5 Action Compl. (N.D. Cal. filed Mar. 12, 2018); Centro Presente v. Trump, 1:18-cv-10340, First

6 Amended Compl. (D. Mass. filed May, 9, 2018); CASA de Maryland v. Trump, 8:18-cv-00845,

7 Compl. (D. Md. filed Mar. 23, 2018).

8

79. Similarly, the Trump Administration has ended other programs and reversed policies

9 affecting unaccompanied minors, primarily from El Salvador, Guatemala, and Honduras, in an

10 effort to facilitate their deportation. Within days of his inauguration, President Trump ordered

11 federal officials to take policy actions relating to the treatment of unaccompanied minors from

12 Central America, and in response, the DOJ issued memoranda making it easier to strip

13 unaccompanied minors of their legal rights and protections. DOJ has also removed guidelines—in

14 place since the George W. Bush Administration—on child-sensitive questioning techniques, and

15 declined to renew funding for a program providing legal services to 7,000 unaccompanied minors.

16

80. The Trump Administration has also embraced a widely criticized policy of

17 separating migrant parents from their children by prosecuting any adult who illegally crosses the

18 border. Administration officials say the goal is to discourage Central American families from

19 traveling to the border and applying for asylum—indeed, the very goal that the CAM Program was

20 designed to, and did, address. The separation policy has been challenged as unconstitutional and

21 unlawful, and a federal judge recently denied the government’s motion to dismiss a case involving

22 such a challenge, finding that the alleged behavior shocks the conscience and violates the migrant

23 parents’ and children’s constitutional right to family integrity. Ms. L. v. U.S. Immig.t and Customs

24 Enforcement, 3:18-cv-00428, Order on Motion to Dismiss (S.D. Cal. June 6, 2018).

25

81. And most notoriously, the Trump Administration illegally terminated the Deferred

26 Action for Childhood Arrivals (“DACA”) program through which approximately one million

27 immigrants who had illegally come to the United States as children applied for and received

28 deferred action allowing them to legally work, study, and drive in this country. The majority of the

-26CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 29 of 46

1 people affected by the termination are Latino, and in response to legal challenges, three courts have

2 issued nationwide injunctions of the termination. NAACP v. Trump, 1:17-cv-02325-JDB (D.C. Cir.

3 Apr. 24, 2018); Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011,

4 1026 (N.D. Cal. 2018); Batalla Vidal v. Nielsen, 279 F. Supp. 401, 437–38 (E.D.N.Y. 2018). One

5 court held that plaintiffs were likely to succeed on their constitutional claim that the DACA

6 termination was the result of animus toward Latinos. Batalla Vidal, 279 F. Supp. at 437–38.

7

82. Even as the Trump Administration has been accused of promoting and implementing

8 these and other anti-Latino policies motivated by racial animus, President Trump has persisted in

9 labeling all Latinos as gang members and drug traffickers and calling Central Americans as a group

10 “true animals” and “bad people.” For example:

11

a) On January 25, 2017, shortly after signing executive orders calling for immediate

construction of a wall along the southern U.S. border and withholding federal funds

12

from “sanctuary” cities, President Trump condemned the “unprecedented surge” of

migrants from Central America for eroding safety in the United States, claiming that

13

these two orders “will save thousands of lives.”

14

b) On January 27, 2017, newly-inaugurated President Trump and Mexico’s President

Peña Nieto discussed President Trump’s proposal for a border wall over the phone.

15

During that transcribed conversation, President Trump once again referred to

Mexicans as “tough hombres.”

16

c) On February 3, 2017, during a visit to the Customs and Border Protection training

17

center, President Trump said “You know they’re bad. They’re pouring in from El

Salvador, Guatemala, Honduras, Mexico, all over. They’re just pouring into our

18

country!”

19

d) In February 2017, President Trump said “What has been allowed to come into our

country, when you see gang violence that you've read about like never before, and all

20

of the things—much of that is people that are here illegally . . . They’re rough and

they’re tough . . . So we're getting them out.”

21

e) On June 21, 2017, President Trump implied that thousands of immigrants are

22

members of the Central American gang MS-13. He said “These are true animals.

We are moving them out of the country by the thousands, by the thousands.”

23

f) Similarly, on June 28, 2017, President Trump suggested that the MS-13 gang had

24

taken over swaths of U.S. territory, and said: “They are bad people. And we’ve

gotten many of them out already. . . We’re actually liberating towns, if you can

25

believe that we have to do that in the United States of America. But we’re doing it,

and we’re doing it fast.”

26

g) On August 25, 2017, President Trump pardoned former Maricopa County Sheriff Joe

27

Arpaio, who was to be sentenced for criminal contempt for failing to comply with a

federal judge’s order to stop racially profiling Latinos. Before issuing the pardon,

28

President Trump asked rhetorically, “Was Sheriff Joe convicted for doing his job?”

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Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 30 of 46

1

After issuing the pardon, President Trump sent a tweet calling Mr. Arpaio “an

American patriot.”

2

h) On September 5, 2017, in conjunction with the Administration’s announcement of

3

the termination of the DACA program, President Trump issued a statement decrying

“the massive surge of unaccompanied minors from Central America including, in

4

some cases, young people who would become members of violent gangs throughout

our country, such as MS-13.”

5

i) On January 11, 2018, President Trump infamously referred to El Salvador as a

6

“shithole country” during a meeting with lawmakers about immigration, asking

“Why are we having all these people from shithole countries come here?” He then

7

suggested that the United States should bring more people from countries such as

Norway, which has an overwhelmingly white population.

8

j) In February 2018, President Trump claimed that immigrants from El Salvador,

9

Guatemala, Honduras, and Mexico are “just pouring into our country . . . . These

countries are not our friends, you know. We think they’re our friends, and we send

10

them massive aid . . . and they’re pouring drugs into our country and they’re

laughing at us”—returning to his common refrain that Central Americans are

11

somehow gaming the U.S. immigration system.

12

k) In May 2018, President Trump said of people crossing the Mexican border into the

United States: “You wouldn’t believe how bad these people are. These aren’t

13

people. These are animals.”

14

THE CAM PAROLE PROGRAM TERMINATION AND MASS RESCISSION

15

HAVE BEEN DEVASTATING AND ARE CONTINUING TO HARM

PARENTS AND THEIR CHILDREN SEEKING TO REUNITE

16

IN THE UNITED STATES AWAY FROM DANGER

17

83. The CAM Parole program termination and mass rescission devastated thousands of

18 families in the United States and the Northern Triangle countries. The termination meant that

19 thousands of children and family members who had applied for CAM in reliance on the possibility

20 of parole under that program—including nearly 3,000 children and family members who had been

21 conditionally approved for parole and who relied on Defendants’ representation that if they met all

22 the requirements for parole under the CAM Program, they would travel to the United States—were

23 deprived of the opportunity to reunite with their loved ones in the safety of the United States.

24

84. Moreover, the families who had applied for CAM prior to its termination had

25 reasonably relied on Defendants’ representations about the availability of the CAM Parole program

26 in applying for CAM in the first place and in proceeding with their applications during the first

27 seven months of President Trump’s Administration, even though the Administration had secretly

28 shut down the program. During that time, Defendants continued to publicly promise parents that

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Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 31 of 46

1 their children, including children who had been denied refugee status but had been conditionally

2 approved for parole, had a legal pathway to the United States, and Defendants continued to solicit

3 and accept parents’ money to process the applications. Defendants’ misrepresentations led families

4 to continue to expend significant financial resources and to put their lives in danger in order to

5 pursue the false promise of parole.

6

85. The CAM application process required applicant parents to pay a significant amount

7 of money, particularly for individuals who often must support themselves, their families in the

8 United States, and their families living in danger in Central America. Parents had to pay

9 approximately $400 per parent-child pair for DNA tests, which was required to be reimbursed if the

10 tests confirmed a biological relationship.

11

86. After a child was conditionally approved for parole, parents had to pay

12 approximately $100 for their required medical exam, and sometimes additional money for a follow-

13 up exam. Then, parents had to pay approximately $1,400 for each child’s plane ticket to the United

14 States. The Trump Administration continued to solicit and accept these fees from January to

15 August 15, 2017, even after they secretly shut down the CAM Parole program.

16

87. Parents whose children had already completed their medical exam, such as Plaintiffs

17 D.D., R.C., S.A., and G.E., were not reimbursed when their children’s conditional approval for

18 parole was revoked en masse.

19

88. Moreover, even when parents were eventually reimbursed the thousands of dollars

20 they paid for their children’s plane tickets, they incurred additional expenses that were not

21 reimbursed and suffered hardships that could not be remedied. For example, Plaintiff R.C. had to

22 take out loans from friends in order to pay about $4,000 for his three children’s plane tickets within

23 the three-day deadline IOM gave him, and he was not reimbursed the $200 interest he paid.

24 Plaintiff S.A. was not able to travel to El Salvador to visit her family because she used her limited

25 income to pay approximately $2,500 for her daughter and grandson’s plane tickets to the United

26 States and didn’t receive a refund until nine months later.

27

89. In addition to these costs specifically required by the CAM Program, parents and

28 children by necessity incurred other application-related costs. Each step of the application

-29CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 32 of 46

1 process—prescreening, DNA testing, USCIS interviews, medical examinations, and dropping off

2 and receiving required documentation—took place in San Salvador, Tegucigalpa, or Guatemala

3 City. Many of the children, including Plaintiffs A.F., H.F., M.C., J.C., B.E., and J.A., lived hours

4 outside of their respective capital cities and repeatedly had to travel long distances for each step of

5 the process. Because road travel in the Northern Triangle countries is extremely unsafe and public

6 transportation is especially dangerous—gangs routinely attack buses, rob or abduct passengers, and

7 murder bus drivers (driving a bus in Guatemala has been characterized as the most dangerous job on

8 the planet)—Plaintiff children regularly drove in private cars to and from their CAM appointments.

9 Plaintiff parents thus had to pay for gasoline, tolls, and food for the trip, and frequently had to

10 reimburse the family member or friend who drove the child for a day’s lost wages. Plaintiffs R.C.,

11 S.A., D.D., J.F., G.E., and A.B. sent their children one hundred dollars or more for each of their

12 long trips to and from capital cities for their CAM appointments.

13

90. And, even private transportation did not fully mitigate the risk of being stopped on

14 the highway by gangs, particularly when driving in the dark. Plaintiff J.C., for example, worried

15 about being stopped or harassed on the road every time he and his siblings traveled to San Salvador

16 for their CAM appointments. Nevertheless, the CAM families continued to take these risks and

17 incur these costs because they reasonably relied on Defendants’ representations that the program

18 was still operating in the first seven months of the Trump Administration.

19

91. Moreover, Plaintiff parents—particularly those whose children had been

20 conditionally approved for parole and expected their children to travel to the United States

21 imminently—incurred significant expenses in preparing their homes and buying clothes, furniture,

22 and luggage in anticipation of the promised arrival of their children. For example, Plaintiff R.C.

23 spent more than $2,000 to buy new furniture and clothes for his three children after he paid for their

24 plane tickets and believed they would arrive at his California home within weeks.

25

92. The U.S. Government was well aware of the financial burden and safety risks CAM

26 families faced in proceeding with their CAM applications. The USCIS Ombudsman stated in a

27 December 2016 report that the CAM Program imposed “significant financial hardships” on the

28 families of applicants. She noted that some families “require[d] extended time to gather the funds

-30CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 33 of 46

1 necessary to pay DNA testing costs or, in the case of parolees, to cover the costs of travel to the

2 United States,” and that the upfront cost for DNA testing in particular was “prohibitive for some

3 families.” Defendants, specifically DOS, have recognized the danger associated with travel to

4 capital cities in El Salvador, Honduras, and Guatemala, identifying each as a “critical-threat

5 location.”

6 Plaintiff family S.A. and J.A.

7

93. Twenty-three year old Plaintiff J.A. remains in El Salvador with her four-year-old

8 son. She is harassed daily by gang members who congregate outside her house. They threaten to

9 kidnap her, demand that she “date” them, and extort her. J.A. remains at risk, and at one point in

10 2017, she became so fearful when a gang member aggressively demanded to “date” her that she

11 temporarily fled with her son to San Salvador for their safety.

12

94. J.A. and her son were conditionally approved for parole, and had progressed through

13 every step of the process. S.A. had purchased plane tickets for her daughter and grandson, and they

14 expected to travel to the United States two weeks later. To reach this stage of the process, J.A. had

15 to make approximately eight trips to San Salvador, a four-hour drive each way from where she

16 lives, often with her baby son in tow. Then, inexplicably, processing of her and her son’s

17 applications ground to a halt. After about eight months of waiting desperately for news, the family

18 learned that J.A. and her son’s conditional approval for parole had been rescinded and they would

19 not travel to the United States.

20

95. S.A. and J.A. lost the opportunity to reunite in the United States—and S.A. to protect

21 her daughter from the dangers she faces in El Salvador. S.A. has not lived with her daughter since

22 she was just a baby—when S.A. fled the violence of El Salvador’s civil war and an abusive ex-

23 husband. S.A. is deeply aware of all the events, big and small, in her daughter’s life that she has

24 missed and had been filled with hope at the possibility of sharing their lives together.

25

96. Soon after her family members’ conditional approval for parole was rescinded, S.A.

26 was diagnosed with breast cancer. S.A. missed the opportunity to have her daughter care for her

27 during her recovery from surgery and her chemotherapy.

28

97. S.A. lost the money she spent on her daughter’s and grandson’s applications and

-31CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 34 of 46

1 associated expenses, including $196 and $137 she spent on two medical exams, $250 she spent on

2 suitcases and clothing, and approximately $800 total for her daughter’s trips to San Salvador for

3 CAM appointments.

4 Plaintiff A.B.

5

98. Plaintiff A.B. worries every day about the safety of his 23-year-old son who lives in

6 a neighborhood in El Salvador where the MS-13 is very active. The MS-13 killed A.B.’s nephew in

7 the community several years ago. MS-13 members have robbed A.B.’s son multiple times and

8 violently attacked a bus he was traveling in, injuring some of the passengers. Recently, the MS-13

9 murdered a young man and his family in the son’s community.

10

99. A.B.’s son, a university graduate with a degree in computer systems, has struggled to

11 find work in El Salvador, and recently felt compelled to take the only job he could find—collecting

12 interest on loans—which requires him to travel to dangerous neighborhoods in his community.

13 A.B. tried to convince not to take the job, but recognizes that his son has little choice, given that

14 coming to the United States is no longer a possibility.

15

100. A.B. filed a CAM application for his son in 2015, and his son had completed the

16 initial steps of the CAM process. He was waiting for USCIS to schedule an interview with him

17 when processing of his application inexplicably ground to a halt. About a year later in January

18 2018, he was finally interviewed. Weeks later, he was denied refugee status and not considered for

19 parole—even though he had applied to the CAM Program more than a year and a half before the

20 parole program was publicly terminated, and his life is in grave danger. A.B.’s son submitted an

21 RFR in approximately March 2018, but has not received a decision to date.

22

101. The CAM Parole program termination deprived A.B. of the opportunity to reunite

23 with his son, his first child. A.B. has not been able to live with his son since he left El Salvador

24 when his son was a baby, but he has stayed in close touch with him, and was deeply looking

25 forward to having a life together in the United States.

26

102. In addition to the program fees, A.B. spent approximately $100 for each of four trips

27 his son had to make to San Salvador for CAM-related appointments.

28 //

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Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 35 of 46

1 Plaintiff family R.C., M.C., and J.C.

2

103. Plaintiffs M.C. and J.C. remain in El Salvador and are at grave risk. In Fall 2017,

3 while playing soccer outside, J.C. was beaten by MS-13 members to the point where he lost

4 consciousness and required emergency surgery. He now requires a cane to walk and he struggles to

5 bathe himself. He is terrified to leave his house, and he dropped out of school to minimize the time

6 he must spend outside.

7

104. M.C. has been stalked by a known gang member and rapist in her community and

8 became so afraid that she dropped out of school just a few months short of graduation. She would

9 have been the first person in her family to graduate from high school. She, too, has become a

10 prisoner in her own home.

11

105. R.C. fears for the safety of M.C., J.C., and his younger son. He submitted CAM

12 applications on behalf of all three children, and they were conditionally approved for parole and

13 completed every step of processing, including payment for plane tickets. The siblings were so far

14 along in the CAM parole process that they had packed all of their belongings, M.C.’s friends threw

15 her a goodbye party, and the children were waiting for IOM to contact them with confirmation

16 details for their flight to the United States. The rescission of the children’s conditional approval for

17 parole and the lost opportunity to live together in the United States was very upsetting for R.C.,

18 M.C., and J.C., as well as the rest of their family.

19

106. R.C. spent thousands of dollars on his children’s CAM applications and associated

20 expenses, relying on Defendants’ representations about the program. R.C. is an agricultural worker

21 who works long days packing celery, and it was no small feat for him to pay these expenses, while

22 also supporting his three children in the United States and his family in El Salvador. Each time

23 R.C.’s children traveled to San Salvador in connection with their CAM application—a total of six

24 trips—R.C. sent them approximately $300 in order to hire a private driver and reimburse their aunt

25 for chaperoning them, as well as pay for gas and food. He also spent $450 on their medical

26 examinations, and sent them $280 to help them buy suitcases for their trip. Finally, R.C. spent

27 $1,200 to prepare his home for their arrival by purchasing beds and blankets, and spent a further

28 $1,000 to purchase clothing and shoes for his children to use on arrival.

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Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 36 of 46

1

107. After IOM gave R.C. a three-day deadline to pay $3,875 for his children’s flights to

2 the United States, he had to take out a loan from friends, with interest, to pay the fee on time. Even

3 though R.C.’s children never traveled to the United States, IOM did not reimburse him for almost a

4 year.

5 Plaintiff D.D.

6

108. Plaintiff D.D. and her eight-year-old U.S. citizen son were heartbroken when D.D.’s

7 daughter’s conditional approval for parole was rescinded after the family had completed every step

8 of the application process. D.D. has not lived with her daughter since her daughter was a baby. The

9 family had hoped to celebrate Christmas together for the first time, and D.D. had prepared a room

10 for her daughter and bought winter clothes for her. D.D. also planned to buy a puppy for her

11 daughter and son to take care of together. After learning that his older sister would not be coming

12 to United States through CAM, D.D.’s young son cried for days.

13

109. D.D. had struggled to pay for all the costs associated with the CAM Program on her

14 teacher’s aide salary, but did so happily—in reliance on the opportunity to reunite with her

15 daughter. Each of her daughter’s approximately six CAM appointments were in San Salvador—

16 about a three-hour drive from D.D.’s daughter’s home—and each time, D.D. sent her daughter $100

17 to cover the cost of gas, food, and to repay her sister for taking the whole day off work to drive her

18 daughter back and forth.

19

110. D.D. paid additional fees in connection with the CAM Program: $1,551 for her

20 daughter’s flight to the United States; $100 for the required medical examination; and $800 for

21 DNA testing (which was later reimbursed). D.D. had to take out a loan in order to pay for her

22 daughter’s flight by IOM’s quick deadline, and while she was ultimately reimbursed for the flight

23 about a year after paying for it, she had to pay interest on the loan.

24 Plaintiff family G.E. and B.E.

25

111. Seventeen-year-old Plaintiff B.E. continues to live in the house in El Salvador where

26 he heard the gun shots that killed his uncle. MS-13 gang members murdered B.E.’s uncle in 2014,

27 and his grandfather testified against them at the trial for their crime. Ever since, the gang has

28 sought to make the family, and particularly B.E., pay. MS-13 members have repeatedly pursued

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Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 37 of 46

1 B.E., harassed him, and threatened to kill him. Terrified to leave the house, B.E. has become

2 essentially a prisoner in his own home, and avoids leaving without an adult by his side.

3

112. Plaintiff G.E. lives in fear that his son will be attacked or killed by the MS-13. He is

4 particularly fearful because his brother’s killers will be released from prison in a year.

5

113. G.E. struggled to pay the fees and expenses associated with his son’s CAM

6 application. G.E. sent his son approximately $100 each time he had to travel to San Salvador for a

7 CAM appointment—a journey B.E. made approximately six times. This money paid for the cost of

8 a private driver, gasoline, and food. It was also intended to reimburse the lost wages of B.E.’s

9 grandfather who accompanied him on his trips. G.E. paid approximately $223 for his son’s medical

10 exam, which was never scheduled. IOM finally refunded this fee more than a year after G.E. paid

11 it. G.E. also spent approximately $500 to purchase a new bed for his son, among other costs to

12 prepare his home for his son’s expected arrival.

13

114. After B.E.’s conditional approval for parole was rescinded, B.E. filed an RFR. To

14 date, he has not received a decision.

15 Plaintiff family J.F., H.F. and A.F.

16

115. Plaintiff J.F. felt desperate after processing of the CAM applications for his young

17 daughters, H.F. and A.F., and his wife inexplicably stopped for the first eight months of 2017.

18 Then, soon after his family was interviewed in Fall 2017, they were denied refugee status and not

19 considered for parole. After being filled with hope at the prospect of being reunited with his family,

20 J.F. now feels afraid and uncertain about his future because he believes that President Trump is

21 trying to harm Central Americans like them. He has lived and worked in the United States for two

22 decades and has never had an opportunity to share a home with his wife and daughters.

23

116. J.F.’s eight-year-old daughter, H.F., does not understand why her family cannot join

24 her father in the United States. She became very angry after their CAM applications were denied

25 and blames her father for their situation.

26

117. H.F., A.F., and their mother remain in Honduras, where J.F.’s wife has been

27 threatened by MS-13 gang members at the school where she works as a kindergarten teacher. J.F.’s

28 wife knows of other female heads of household in her area who have been raped and killed, and she

-35CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 38 of 46

1 fears for her safety and the safety of her daughters

2

118. J.F. lost money in connection with his family’s CAM applications. Each time H.F.,

3 A.F., and their mother traveled to Tegucigalpa in connection with CAM—a nearly four-hour trip

4 that required them to leave their house around 3:00 AM—J.F. sent them $200 to cover the costs of

5 the trip, including tolls, gas, and food.

6

CLASS ACTION ALLEGATIONS

7

119. Plaintiffs D.D., J.F., H.F., A.F., R.C., M.C., J.C., G.E., B.E., S.A., J.A., and A.B.

8 bring this action as a class action pursuant to Federal Rule of Civil Procedure 23(b)(1) and (b)(2),

9 on behalf of themselves and all other similarly situated persons who applied for the CAM Program

10 as applicants or as beneficiaries prior to August 16, 2017, who were denied refugee status under the

11 CAM Refugee program, and who were denied parole under the CAM Parole program as a result of

12 its termination. This class includes but is not limited to all CAM applicants and beneficiaries who

13 were conditionally approved for parole prior to August 16, 2017, and whose conditional approval

14 was rescinded en masse by the August 16, 2017 Federal Register notice.

15

120. The Plaintiff Class is so numerous that joinder is impracticable. On information and

16 belief, the Plaintiff Class consists of over 5,000 putative class members. Conditional approval for

17 parole was mass rescinded for approximately 2,714 in-country family members. An estimated

18 several hundred in-country family members were beneficiaries of CAM applications filed before

19 August 16, 2017 and were interviewed by USCIS, but were never considered for the CAM Parole

20 program. Each of these beneficiaries has a family member lawfully present in the United States

21 who applied for CAM on his or her behalf.

22

121. The claims of the Plaintiff Class members share common issues of law, including but

23 not limited to:

24

a) Whether the termination of the CAM Parole program violated the

Administrative Procedure Act (“APA”) and the Fifth Amendment to the U.S.

25

Constitution;

26

b) Whether the mass rescission of conditional approval for parole violated the

APA and the Fifth Amendment to the U.S. Constitution;

27

c) Whether the decision in January 2017 to secretly terminate the CAM

28

Program violated the APA and the Fifth Amendment to the U.S. Constitution;

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Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 39 of 46

1

d) Whether the Defendants’ failure to issue travel documentation to individuals

who had received parole violated the APA and the Fifth Amendment to the

2

U.S. Constitution; and

3

e) Whether the Defendants’ ongoing acceptance of payments from CAM

applicants following the secret shutdown of the CAM Parole program

4

requires that they be equitably estopped from benefitting from their

affirmative misconduct.

5

6

122. The claims of the Plaintiff Class members share common issues of fact, including

7 but not limited to:

8

a) Whether the Defendants secretly shut down the CAM Parole program in

January 2017;

9

b) Whether, following the secret shutdown of the CAM Parole program, the

10

Defendants continued to accept payments from CAM applicants;

11

c) Whether, following the secret shutdown of the CAM Parole program, the

Defendants continued to represent to the public that the CAM Parole program

12

was still operational;

13

d) Whether, following the secret shutdown of the CAM Parole program, the

Defendants failed to issue travel documentation to individuals who had

14

received parole;

15

e) Whether, at the time the CAM Parole program was formally terminated, the

Defendants rescinded en masse all conditional approval for parole without

16

providing individualized process;

17

f) Whether the Defendants provided a legally sufficient justification for

terminating the CAM Parole program; and

18

g) Whether the Defendants’ termination of the CAM Parole program was

19

motivated by animus against persons of a certain race or national origin.

20

123. The claims or defenses of the named Plaintiffs are typical of the claims or defenses

21 of the members of the Plaintiff Class.

22

124. The named Plaintiffs will fairly and adequately protect the interests of the Plaintiff

23 Class. The named Plaintiffs have no interest that is now or may be potentially antagonistic to the

24 interests of the Plaintiff Class.

25

125. The attorneys representing the named Plaintiffs include experienced attorneys who

26 are considered able practitioners in federal civil litigation, including civil rights litigation. These

27 attorneys should be appointed as class counsel.

28

126. Defendants have acted, have threatened to act, and will act on grounds generally

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Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 40 of 46

1 applicable to the Plaintiff Class, thereby making final injunctive and declaratory relief appropriate

2 to the class as a whole. The Plaintiff Class may therefore be properly certified under Federal Rule

3 of Civil Procedure 23(b)(2).

4

127. Prosecution of separate actions by individual members of the Plaintiff Class would

5 create the risk of inconsistent or varying adjudications and would establish incompatible standards

6 of conduct for individual members of the Plaintiff Class. The Plaintiff Class may therefore be

7 properly certified under Federal Rule of Civil Procedure 23(b)(1).

8

CAUSES OF ACTION

9

COUNT ONE

ADMINISTRATIVE PROCEDURE ACT — ARBITRARY & CAPRICIOUS

10

On Behalf of All Plaintiffs, Including the Class,

11

Against All Defendants Except President Trump

12

128. The shutdown of the CAM Parole program in January 2017 with no notice to

13 applicants and while holding out the program as operational constitutes a final agency action that is

14 “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §

15 706(2)(A).

16

129. In addition, Defendants’ failure to provide notice of the termination violated 5

17 U.S.C. § 552(a)(1)(E).

18

130. The official termination of the CAM Parole program in August 2017 without any

19 explanation and without identifying any change in circumstances to justify the termination of a

20 policy upon which thousands of people had relied to their detriment constitutes a final agency action

21 that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

22 5 U.S.C. § 706(2)(A).

23

131. The mass rescission of conditional approval for parole without any explanation,

24 without any individualized process, and without identifying any change in circumstances to justify

25 the rescission of a status upon which thousands of people relied to their detriment constitutes a final

26 agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

27 with law.” 5 U.S.C. § 706(2)(A).

28

132. The final agency actions should therefore be set aside pursuant to 5 U.S.C. § 702 and

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Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 41 of 46

1 5 U.S.C. § 706(2).

2

3

COUNT TWO

ADMINISTRATIVE PROCEDURE ACT — ACCARDI

4

On Behalf of All Plaintiffs, Including the Class,

5

Against All Defendants Except President Trump

6

133. The termination of the CAM Parole program and mass rescission of conditional

7 approval for parole are final agency actions that violate agency procedures, including those

8 identified on USCIS and DOS public webpages directed at CAM applicants and beneficiaries.

9 These agency procedures include:

10

a) “Once a DS-7699 form has been filed, . . . IOM will contact the applicants in their

country of origin, and will conduct pre-screening interviews for the qualifying child

11

and family members and support processing as the case proceeds through DNA

testing, Department of Homeland Security interview, and all medical and security

12

checks.”

13

b) “After form DS-7699 is submitted, . . . DHS officials will interview eligible family

members to determine who will be admitted as a refugee or offered parole to the

14

U.S.”

15

c) “A separate application for this parole process is not required if the individual

already has access to the CAM program.”

16

d) “If refugee status is denied, your decision letter will state whether you have been

17

conditionally approved for parole into the United States.”

18

e) “If you are a conditionally approved CAM applicant, IOM will contact your relative

in the United States to collect payment for the medical examination.”

19

f) “After receiving payment [for the medical examination], IOM will contact you to

20

arrange your exam.”

21

g) “If the medical exam results clear, IOM will contact your relative in the United

States to arrange for your flight.”

22

h) “After IOM receives payment for your travel, they will submit the travel itinerary to

23

USCIS.”

24

i) After receiving the travel itinerary from IOM, USCIS “will:

1) [p]erform final security checks,

25

2) [e]nsure the medical exam results remain valid until date of travel, and

3) [v]erify that your relative still has a qualifying legal presence in the United

26

States.”

27

j) “If [USCIS] decide[s] that you have met all requirements for parole under this

program, [USCIS] will issue Form I-512L, Authorization for Parole of an Alien Into

28

the United States.”

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Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 42 of 46

1

k) “IOM will give you [Form I-512L] and your plane ticket the day you fly to the

United States.”

2

l) With respect to certain CAM derivative beneficiaries eligible only after the 2016

3

program expansion, a DS-7699 form “filed on or before [September 30, 2017] will

be processed regardless of where the qualifying child is in the process as long as the

4

relationships of the expanded category relatives can be verified through DNA

testing.”

5

6

134. The mass rescission of conditional approval for parole for individuals for whom

7 parole was authorized violated 8 U.S.C. § 212.5(f).

8

135. The termination of the CAM Parole program and the mass rescission of conditional

9 approval for parole should therefore be set aside under the principle articulated in United States ex.

10 rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).

11

136. In addition, Defendants’ failure to comply with their own procedures and regulations

12 render the termination of the CAM Parole program and the mass rescission of conditional approval

13 for parole “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5

14 U.S.C. § 706(2)(A). The termination of the CAM Parole program and the mass rescission should

15 therefore be set aside pursuant to 5 U.S.C. §§ 702 and 706(2).

16

COUNT THREE

FIFTH AMENDMENT — DUE PROCESS

17

On Behalf of All Plaintiffs in the U.S., Including the Class Members in the U.S.,

18

Against All Defendants

19

137. Plaintiff parents, who are lawfully present in the United States, have constitutionally

20 protected liberty interests in the companionship and society of their family members who are

21 stranded in Central America.

22

138. The Due Process Clause protects Plaintiffs against arbitrary or irrational deprivations

23 of their constitutionally protected interests, as well as from deprivations that are outside the normal

24 manner prescribed by law. The government’s burden is greater where, as here, the liberty interests

25 at stake derive from well-established and significant reliance interests.

26

139. Defendants’ unprecedented, unexplained, and unsupported secret shutdown of the

27 CAM Parole program, their August 16, 2017 termination of the CAM Parole program, and their

28 mass rescission of conditional approval for parole violated U.S.-based Plaintiffs’ right to due

-40CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 43 of 46

1 process because Defendants’ actions were arbitrary, irrational, and outside the manner prescribed by

2 law.

3

140. Defendants’ failure to provide notice of the secret shutdown violated 5 U.S.C.

4 § 552(a)(1)(E).

5

141. Moreover, Defendants’ deprivation of U.S.-based Plaintiffs’ liberty interests served

6 no rational purpose other than to “disrespect and subordinate” Latinos. Denying a fundamental

7 right based on such discriminatory intent is “so directly subversive of the principle of equality at the

8 heart of the [Due Process Clause]” that it “deprive[s these persons] of liberty without due process of

9 law.” Loving v. Virginia, 388 U.S. 1, 12 (1967); see Obergefell v. Hodges, —— U.S. ——, 135 S.

10 Ct. 2584, 2603-05 (2015).

11

142. Defendants’ conduct violates the substantive and procedural due process rights

12 protected by the Fifth Amendment of the Constitution.

13

COUNT FOUR

FIFTH AMENDMENT — EQUAL PROTECTION

14

On Behalf of Plaintiffs in the U.S., Including Class Members in the U.S.,

15

Against All Defendants

16

143. The Due Process Clause of the Fifth Amendment contains a guarantee of equal

17 protection.

18

144. Defendants’ decisions to terminate the CAM Parole program and implement mass

19 rescission of conditional approval for parole violate the equal protection guarantee because they

20 were substantially motivated by discriminatory intent on the basis of race, ethnicity, and national

21 origin. The conclusion that the secret shutdown, official termination, and mass rescission were

22 substantially motivated by discriminatory intent is inescapable in light of the Trump

23 Administration’s unprecedented departures from normal procedure, the lack of any explanation for

24 the termination and rescission, the continuing nature of the humanitarian crisis that the program was

25 intended to address, President Trump’s long history of racial slurs and epithets toward Latinos, and

26 the Trump Administration’s targeting of Latinos for disfavored treatment.

27

145. Defendants have thus violated the equal protection guarantee of the Fifth

28 Amendment by engaging in intentional discrimination based on race, ethnicity, and national origin.

-41CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 44 of 46

1

COUNT FIVE

EQUITABLE ESTOPPEL

2

On Behalf of All Plaintiffs, Including the Class,

3

Against All Defendants

4

146. Defendants engaged in affirmative misconduct by falsely representing that the CAM

5 Parole program remained in effect between January and August 2017 and by actively soliciting

6 money from CAM applicants during that time period and encouraging CAM applicants to expend

7 resources in connection with their applications. Defendants failed to comply with 5 U.S.C.

8 § 552(a)(1)(E) and failed to notify the public of the secret shutdown of the CAM Parole program.

9

147. In fact, Defendants knew the truth that the CAM Parole program had been secretly

10 shut down in January 2017, and that USCIS had stopped conducting interviews for the CAM

11 Program, IOM had stopped arranging medical exams, and IOM and USCIS had stopped making

12 arrangements for people to travel to the United States through the CAM Parole program. They

13 nevertheless intended through their misconduct to induce CAM applicants and beneficiaries to

14 continue to make payments and expend resources to advance their applications.

15

148. Plaintiffs were ignorant of the truth that the CAM Parole program had been shut

16 down, and they detrimentally relied on Defendants’ misconduct.

17

149. Defendants’ misconduct caused a serious injustice to U.S.-based parent Plaintiffs,

18 who reasonably relied on Defendants’ misrepresentations in paying fees required by the program,

19 paying expenses associated with repeated trips to capital cities required by the program, paying for

20 home remodeling, furniture, clothes, and other supplies for family members they reasonably

21 expected to join them in the United States. Defendants’ wrongful acts also caused a serious

22 injustice to in-country children and family member Plaintiffs, who put their lives at risk to travel

23 long distances to participate in CAM processing in capital cities.

24

150. Defendants shall therefore be equitably estopped from terminating the CAM Parole

25 program and mass rescinding conditional approval for parole.

26

PRAYER FOR RELIEF

27

WHEREFORE, Plaintiffs respectfully request that this Court:

28

A. Declare that Defendants’ termination of the CAM Parole program and mass

-42CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 45 of 46

1 rescission of conditional approval for parole were unlawful under the APA, the Fifth Amendment,

2 and principles of equitable estoppel;

3

B. Set aside Defendants’ unlawful termination of the CAM Parole program and

4 unlawful mass rescission of conditional approval for parole;

5

C. Enjoin and restrain all Defendants, and their officers, agents, servants, employees,

6 attorneys, and all persons who are in active concert or participation with any of them, from

7 implementing or enforcing the decisions to terminate the CAM Parole program and mass rescind

8 conditional approval for parole status;

9

D. Direct Defendants to reinstate conditional approval for parole status for all

10 beneficiaries for whom they rescinded it en masse, and process those applications to completion in

11 the manner in which Defendants publicly represented they would.

12

E. Direct Defendants to complete processing of all cases conditionally approved for

13 parole and to organize flights to ports of entry in the United States for individuals granted parole

14 within a reasonable time, not to exceed six months, or to provide this Court with case-by-case

15 explanations for delay;

16

F. Certify this case as a class action lawsuit as proposed herein, appoint Individual

17 Plaintiffs D.D., J.F., H.F., A.F., R.C., M.C., J.C., G.E., B.E., S.A., J.A., and A.B. as class

18 representatives of the class and the undersigned counsel as class counsel;

19

G. Award Plaintiffs reasonable attorney’s fees and costs for this action; and

20

H. Grant any other and further relief that this Court may deem just and proper.

21

22 DATED: June 13, 2018.

23

Respectfully submitted,

24 DANIEL B. ASIMOW

LINDA EVARTS*

MATTHEW H. FINE

KATHRYN C. MEYER*

25 ARNOLD & PORTER KAYE SCHOLER LLP MARIKO HIROSE*

Three Embarcadero Center, 10th Floor

INTERNATIONAL REFUGEE ASSISTANCE

26 San Francisco, California 94111

PROJECT

40 Rector Street, 9th Floor

27 JOHN A. FREEDMAN*

New York, NY 10006

DAVID J. WEINER

28 GAELA K. GEHRING FLORES*

DANA O. CAMPOS*

-43CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-03539-LB Document 1 Filed 06/13/18 Page 46 of 46

1 MATEO MORRIS* ARNOLD & PORTER KAYE SCHOLER LLP
2 601 Massachusetts Ave., NW Washington, DC 20001-3743
3 PHILLIP A. GERACI*
4 SUSAN S. HU* ARNOLD & PORTER KAYE SCHOLER LLP
5 250 West 55th Street New York, NY 10019-9710
6 *Pro Hac Vice motion forthcoming
7

8

By:

/s/ Daniel B. Asimow

DANIEL B. ASIMOW

9

Attorneys for Plaintiffs

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-44CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

 
 Case 3:18-cv-03539-LB Document 19 Filed 06/19/18 Page 1 of 3

United States District Court Northern District of California

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

San Francisco Division

11 S.A., et al.,

12

Plaintiffs,

13

v.

14 DONALD J. TRUMP, et al.,

15

Defendants.

Case No. 18-cv-03539-LB
ORDER GRANTING MOTIONS FOR APPOINTMENTS OF GUARDIANS AD LITEM Re: ECF Nos. 13–16

16

17

INTRODUCTION

18

This case arises from the Trump Administration’s termination of the parole portion of the

19 Central American Minors program, which provided for a process by which Central American

20 parents lawfully residing in the United States could apply to bring their children to the United 21 States.1 The plaintiffs include J.F., an adult national of Honduras lawfully residing in the United

22 States, and his daughters A.F., age 2, and H.F., age 8; G.E., an adult national of El Salvador

23 lawfully residing in the United States, and his son B.E., age 17; and R.C., an adult national of El 24 Salvador lawfully residing in the United States, and his son J.C., age 16.2 The plaintiffs have filed

25

26 1 See generally Compl. – ECF No. 1. Citations refer to material in the Electronic Case File (“ECF”); 27 pinpoint citations are to the ECF-generated page numbers at the top of documents.
2 Id. at 5–7 (¶¶ 10, 12–13). 28

ORDER – No. 18-cv-03539-LB

Case 3:18-cv-03539-LB Document 19 Filed 06/19/18 Page 2 of 3

United States District Court Northern District of California

1 petitions to appoint J.F. as guardian ad litem for A.F. and H.F., G.E. as guardian ad litem for B.E., 2 and R.C. as guardian ad litem for J.C.3

3

4

ANALYSIS

5 1. Governing Law

6

“A minor or an incompetent person who does not have a duly appointed representative may

7 sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem — or

8 issue another appropriate order — to protect a minor or incompetent person who is unrepresented

9 in an action.” Fed. R. Civ. P. 17(c)(2). An individual’s capacity to sue is determined by the law of

10 the individual’s domicile. Fed. R. Civ. P. 17(b). Under California law, an individual under the age

11 of eighteen is a minor. Cal. Fam. Code § 6500. A minor may bring suit as long as a guardian

12 conducts the proceedings and the court may appoint a guardian ad litem to protect the minor’s

13 interests in the litigation. Cal. Fam. Code § 6601; Cal. Civ. Proc. Code § 372(a); Williams v.

14 Super. Ct., 147 Cal. App. 4th 36, 46–47 (2007).

15

The court “has broad discretion in ruling on a guardian ad litem application.” Williams, 147

16 Cal. App. 4th at 47. In the case of parent representatives, “‘[w]hen there is a potential conflict

17 between a perceived parental responsibility and an obligation to assist the court in achieving a just

18 and speedy determination of the action,’ a court has the right to select a guardian ad litem who is

19 not a parent if that guardian would best protect the child’s interests.” Id. at 49 (quoting M.S. v.

20 Wermers, 557 F.2d 170, 175 (8th Cir. 1977)). Thus, “if the parent has an actual or potential

21 conflict of interest with his [or her] child, the parent has no right to control or influence the child’s

22 litigation.” Id. at 50. If, on the other hand, “a parent brings an action on behalf of a child, and it is

23 evident that the interests of each are the same, no need exists for someone other than the parent to

24 represent the child’s interests under Rule 17(c).” J.M. v. Liberty Union High Sch. Dist., No. 16-cv-

25 05225-LB, 2016 WL 4942999, at *1 (N.D. Cal. Sept. 16, 2016) (citing cases). “‘In the absence of

26

27 3 Pets. for Appointment of Guardian Ad Litem – ECF Nos. 13–16.
28

ORDER – No. 18-cv-03539-LB

2

Case 3:18-cv-03539-LB Document 19 Filed 06/19/18 Page 3 of 3

United States District Court Northern District of California

1 a conflict of interest, the appointment is usually made on application only and involves little

2 exercise of discretion.’” Williams, 147 Cal. App. 4th at 47 (internal ellipsis omitted) (quoting In re

3 Marriage of Caballero, 27 Cal. App. 4th 1139, 1149 (1994)).

4

5 2. Application

6

A.F., H.F., B.E., and J.C. are all under eighteen years old and therefore are minors under

7 California law. Their ability to sue is contingent on appointments of guardians ad litem. A parent

8 may serve as guardian ad litem if the parent does not have an adverse interest.

9

A.F., H.F., B.E., and J.C. ask to appoint their respective fathers as guardian ad litem. The

10 fathers — J.F., G.E., and R.C. — are all plaintiffs in this action, and the fathers’ and children’s

11 interests are the same. The court finds no conflicts in their claims. The guardian ad litem

12 appointments are therefore appropriate. See J.M., 2016 WL 4942999, at *2 (“Generally, when a

13 minor is represented by a parent who is a party to the lawsuit and who has the same interests as the

14 child there is no inherent conflict of interest.”) (quoting Burke v. Smith, 252 F.3d 1260, 1264 (11th

15 Cir. 2001)).

16

17

CONCLUSION

18

The court grants the petitions and appoints J.F. as guardian ad litem for A.F. and H.F., G.E. as

19 guardian ad litem for B.E., and R.C. as guardian ad litem for J.C.

20

21

IT IS SO ORDERED.

22

Dated: June 19, 2018

23

______________________________________

24

LAUREL BEELER United States Magistrate Judge

25

26

27

28

ORDER – No. 18-cv-03539-LB

3

 
 FOR IMMEDIATE RELEASE
June 14, 2018
PRESS CONTACTS
Sarah Blume, IRAP, sblume@refugeerights.org, 646-602-5654 Nicole Houston, Arnold & Porter, Nicole.Houston@arnoldporter.com, 202-942-6418
GROUPS FILE CLASS ACTION CHALLENGE TO TRUMP ADMINISTRATION’S TERMINATION OF HUMANITARIAN PAROLE PROGRAM FOR CENTRAL AMERICAN CHILDREN
San Francisco, C.A. – Yesterday, applicants and beneficiaries of the Central American Minors (CAM) Parole program filed a class action challenge to the Trump Administration’s termination of this life-saving humanitarian assistance for Central American children, including the revocation of conditional parole for nearly 3,000 children. The complaint, filed in the U.S. District Court for the Northern District of California, asks the Court to strike down the Administration’s discriminatory attempt to deny vulnerable Central American children the possibility to safely reunite with their family members in the United States.
In 2014, the Departments of Homeland Security and State set up the CAM program as a dual refugee/parole program, in response to the humanitarian crisis for children in the “Northern Triangle” countries of El Salvador, Honduras, and Guatemala. That crisis persists today, with children from these countries desperately trying to reach the southern U.S. border to apply for asylum. Rather than keeping in place a program that processed children’s applications in an orderly manner while they were still in Central America, and that helped thousands of children come to safety in the United States, the Trump Administration shut it down without any explanation.
Shortly after President Trump’s inauguration, the Trump Administration secretly shut down the CAM Parole program and stopped processing applications, even as it continued to collect fees from applicants. Seven months later, it publicly terminated the CAM Parole program, including by revoking grants of conditional parole for almost 3,000 children who had been told they would travel to the United States as long as they completed all the application steps. The Trump Administration revoked their status en masse without explanation and for no reason. Some of the children had already completed every step of the process, including paying thousands of dollars for plane tickets, and had travel dates, when their status was revoked.
40 Rector St., 9th Floor, New York, NY 10006 T 646.602.5600  refugeerights.org • twitter.com/RefugeeAssist • facebook.com/RefugeeAssist

This case is brought just as the Trump Administration is turning away migrants seeking asylum at the southern U.S. border and tearing apart Central American families who enter the country-claiming these actions are necessary to protect law and order. It is the height of hypocrisy that this same Administration shut down an existing, lawful program that allowed thousands of children to be processed for humanitarian parole in their home countries and to come to the U.S. through an orderly, legal process.
The plaintiff class includes about 3,000 children and family members who were conditionally approved for parole before August 16, 2017. The individual plaintiffs, along with CASA, are represented by the International Refugee Assistance Project (IRAP) at the Urban Justice Center and Arnold & Porter.
J.F., Plaintiff who has lived in the U.S. for 20 years and applied to CAM on behalf of his 8-yearold and 2-year-old daughters and his wife, said: “I think that the President is trying to hurt Central Americans like me and my family. I am afraid and feel a lot of uncertainty about what’s going to happen to me here. . . . I miss the warmth and love of my family. . . . I worry about my wife and daughters day and night, constantly.”
D.D., Plaintiff whose daughter finished every step of the process, including paying for plane tickets to the U.S. and had a travel date, said: “I never doubted that my daughter would travel to the United States. . . . Her process was over. I never thought she would be affected by the termination after going through the whole process, after we did everything that was asked of us.”
Linda Evarts, Staff Attorney for IRAP, said: “It is unconscionable that, in the middle of a humanitarian crisis, the Administration blocked parents lawfully in the United States from reuniting with their children escaping the dangerous conditions of their home countries. We hope the Court recognizes the humanitarian importance of the CAM parole program and reaffirms this country’s commitment to helping the most vulnerable.”
John A. Freedman, Partner Arnold & Porter, said: “CAM was a critical humanitarian program which was illegally shut down because the beneficiaries were Latino. In taking these secret but shameful actions, the Administration acted in a remarkably cruel manner that betrayed the expectations of thousands of families that hoped to reunite in safety in the United States.”
To view the complaint, click here.
###
40 Rector St., 9th Floor, New York, NY 10006 T 646.602.5600  refugeerights.org • twitter.com/RefugeeAssist • facebook.com/RefugeeAssist

 
 Case 3:18-cv-03539-LB Document 51 Filed 12/10/18 Page 1 of 64

United States District Court Northern District of California

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

San Francisco Division

11 S.A., et al.,

12

Plaintiffs,

13

v.

14 DONALD J. TRUMP, et al.,

15

Defendants.

Case No. 18-cv-03539-LB
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS Re: ECF Nos. 31, 32

16

17

TABLE OF CONTENTS

18 INTRODUCTION............................................................................................................................. 3

19 STATEMENT ................................................................................................................................... 6

20 1. The Immigration and Nationality Act and Parole Generally ...................................................... 6

21 2. The Complaint............................................................................................................................. 6

22

2.1 September–December 2014: The Creation of the CAM Parole Program ......................... 6

23

2.2 2014–2016: The Operation of the CAM Program............................................................. 8

24

2.3 2015–Present: Donald Trump’s Statements Regarding Latinos ..................................... 11

25

2.4 January 2017: Executive Order 13,767 ........................................................................... 14

26

2.5 January 2017: The Alleged “Secret Shutdown” of the CAM Program ........................... 15

27

2.6 February 2017: The Kelly Memorandum........................................................................ 17

28

2.7 August 2017: Termination of the CAM Parole Program ................................................ 19

ORDER – No. 18-cv-03539-LB

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United States District Court Northern District of California

1 3. The Administrative Record ....................................................................................................... 20

2

3.1 2014–2016: The Record Regarding the Operation of the CAM Parole Program ........... 20

3

3.2 August 2017: The Record Regarding the Termination of the CAM Parole Program ..... 27

4 STANDARD OF REVIEW ............................................................................................................ 31

5 1. Administrative Procedure Act Claims....................................................................................... 31

6 2. Other Claims ............................................................................................................................. 33

7 ANALYSIS ..................................................................................................................................... 34

8 1. Standing..................................................................................................................................... 34

9 2. Administrative Procedure Act ................................................................................................... 36

10

2.1 Termination of the CAM Parole Program Going Forward ............................................. 36

11

2.1.1 Whether termination violated the APA for failure to articulate a “satisfactory

explanation”........................................................................................................... 37 12

2.1.2 Whether termination violated the APA for failure to provide explanations in

13

the Federal Register ............................................................................................... 46

14

2.1.3 Whether termination violated the APA for failure to take into account

“serious reliance interests” .................................................................................... 47 15

2.1.4 Whether termination violated the APA for failure to “consider an important

16

aspect of the problem” ........................................................................................... 51

17

2.1.5 Whether DHS’s decision to stop processing CAM Program applications from

January 2017 to August 2017 was a “secret shutdown” of the Program that

18

violated the APA ................................................................................................... 52

19

2.2 Rescinding Conditional Approvals of Parole .................................................................. 53

20 3. Due Process ............................................................................................................................... 56

21 4. Equal Protection ........................................................................................................................ 59

22 5. Equitable Estoppel..................................................................................................................... 63

23 CONCLUSION ............................................................................................................................... 64

24

25

26

27

28

ORDER – No. 18-cv-03539-LB

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Case 3:18-cv-03539-LB Document 51 Filed 12/10/18 Page 3 of 64

United States District Court Northern District of California

1

INTRODUCTION

2

Under the Immigration and Nationality Act (“INA”), the Secretary of Homeland Security has

3 discretion to parole foreign nationals into the United States “temporarily” and “only on a case-by-

4 case basis for urgent humanitarian reasons or significant public benefit[.]” 8 U.S.C.

5 § 1182(d)(5)(A). Parole does not constitute admission in a valid immigration or nonimmigrant

6 status, but it allows a foreign national to enter and physically be present in the United States.

7

In 2014, the government instituted a program called the Central American Minors (“CAM”)

8 Program, which allowed parents who were lawfully present in the United States to apply to bring

9 their children and other qualifying family members in three countries — Honduras, Guatemala,

10 and El Salvador, collectively known as the “Northern Triangle” — to reunite with them in the

11 United States. A goal of the Program was to discourage children from making the long and

12 dangerous journey from the Northern Triangle to the United States to try to reunite with their

13 parents; the Program sought to achieve this goal by allowing applicant parents to apply for their

14 beneficiary children while their children remained in their original countries.1

15

The CAM Program had two components: a refugee component and a parole component. U.S.

16 Citizenship and Immigration Services (“USCIS”), an agency within the U.S. Department of

17 Homeland Security (“DHS”), first evaluated beneficiaries to see if they qualified for refugee status

18 (which, among other things, requires persecution or a well-founded fear of persecution “on

19 account of race, religion, nationality, membership in a particular social group, or political

20 opinion”). If the beneficiaries qualified, USCIS referred them for approval as refugees under the

21 CAM Refugee Program. If they did not qualify, USCIS automatically considered them for parole

22 into the United States under the CAM Parole Program.

23

24

25 1 Some documents related to the CAM Program use the term “applicant” to refer to the parents present
26 in the United States, while others use it to refer to the children or qualifying family members in the
Northern Triangle countries. This order uses “applicant” to refer to the parents present in the United 27 States, “beneficiary” to refer to the children or qualifying family members in the Northern Triangle
countries, and “participant” to refer to applicants and beneficiaries. 28

ORDER – No. 18-cv-03539-LB

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United States District Court Northern District of California

1

By the end of 2016, USCIS had interviewed over 5,500 beneficiaries. It approved 99% for

2 either refugee resettlement or parole under the CAM Program: it approved approximately 30%

3 interviewed beneficiaries as refugees and approximately 99% of the remaining beneficiaries (69%

4 out of 70%) for parole. Over 1,335 beneficiaries arrived in the United States.

5

In January 2017, following a change in presidential administrations, incoming president

6 Donald Trump issued an Executive Order that (among other things) directed the Secretary of

7 Homeland Security to “take all appropriate action” to ensure that DHS exercised its parole

8 authority “only on a case-by-case basis” and “only when an individual demonstrates urgent

9 humanitarian reasons or a significant public benefit derived from such parole.” DHS stopped

10 processing CAM Program applications — including the applications for beneficiaries who had

11 been conditionally approved for parole and were awaiting processing to finalize their

12 arrangements to travel to the United States — and began a review of the CAM Parole Program. In

13 August 2017, DHS announced that it was terminating the CAM Parole Program. It also announced

14 that it was rescinding parole for the approximately 2,700 beneficiaries who had been conditionally

15 approved for parole but who had not yet traveled to the United States.2 It stated that those

16 individuals, and other individuals who wanted to apply for parole, could still do so independent of

17 the CAM Parole Program but that it would no longer award parole through the Program.

18

The plaintiffs in this case — applicant parents lawfully residing in the United States who

19 applied to the CAM Program, their beneficiary children in Northern Triangle countries, and the

20 nonprofit immigrant-rights organization CASA — filed this putative class-action lawsuit against

21 President Trump, DHS, USCIS, the Secretary of Homeland Security, the Director of USCIS, the

22 State Department, the Secretary of State, and the United States, alleging that the government’s

23 termination of the CAM Parole Program and its rescinding of conditional approvals of parole were

24 unlawful. The plaintiffs bring the following four categories of claims:

25

26

27 2 DHS did not rescind parole for any beneficiary who had entered the United States before the time it
terminated the CAM Parole Program. 28

ORDER – No. 18-cv-03539-LB

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United States District Court Northern District of California

1

1. claims under the Administrative Procedure Act (“APA”), arguing that the

2

government’s termination of the CAM Parole Program and rescinding of conditional

3

approvals for parole were arbitrary and capricious,

4

2. a claim under the Due Process Clause, arguing that the applicant-parent plaintiffs have

5

a constitutionally protected liberty interest in the companionship and society of their

6

family members in Central America, and that the government deprived them of this

7

liberty interest without due process by terminating the CAM Parole Program in an

8

arbitrary, irrational, and unlawful manner,

9

3. a claim under the equal-protection component of the Due Process Clause, arguing that

10

the government’s termination of the CAM Parole Program was substantially motivated

11

by discriminatory animus by President Trump and the Trump Administration toward

12

Latinos, and

13

4. a claim for equitable estoppel, arguing that the government engaged in affirmative

14

misconduct by publicly representing between January 2017 and August 2017 that the

15

CAM Parole Program was still in operation, when it actually had been secretly

16

terminated.

17

The putative class is all applicants and beneficiaries who applied for the CAM Program before

18 August 16, 2017, who were denied refugee status under the CAM Refugee Program, and who then

19 were denied parole under the CAM Parole Program due to its termination.3

20

The plaintiffs moved for a preliminary injunction (1) enjoining the government from

21 terminating the CAM Parole Program and (2) requiring the government to reinstate the conditional

22 approvals of parole that were rescinded pursuant to that termination. The defendants moved to

23 dismiss the complaint.

24

25

26 3 The plaintiffs do not bring any claims with respect to the refugee portion of the CAM Program or any
government actions regarding that portion. They bring claims only regarding the parole portion. See 27 Compl. – ECF No. 3 (¶ 3), 40–44 (¶¶ 128–50). Record citations refer to material in the Electronic Case
File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 28

ORDER – No. 18-cv-03539-LB

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United States District Court Northern District of California

1

This order addresses the defendants’ motion to dismiss. (The court will address the plaintiffs’

2 motion for a preliminary injunction in a separate order.) The court denies the motion to dismiss the

3 plaintiffs’ APA claims as they relate to the government’s mass-rescinding conditional approvals of

4 parole made under the CAM Parole Program. In all other respects, the court grants the defendants’

5 motion to dismiss.

6

7

STATEMENT

8 1. The Immigration and Nationality Act and Parole Generally

9

The INA provides that the Secretary of Homeland Security “may, [subject to certain

10 exceptions], in [her] discretion parole into the United States temporarily under such conditions as

11 [s]he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant

12 public benefit any alien applying for admission to the United States[.]”4 8 U.S.C. § 1182(d)(5)(A).

13 The INA also provides that “such parole of such alien shall not be regarded as an admission of the

14 alien[.]” Id. The INA further provides that “when the purposes of such parole shall, in the opinion

15 of the [Secretary], have been served[,] the alien shall forthwith return or be returned to the custody

16 from which he was paroled and thereafter his case shall continue to be dealt with in the same

17 manner as that of any other applicant for admission to the United States.” Id. The Secretary’s

18 parole authority is in turn delegated to various DHS officials. 8 C.F.R. § 212.5(a).

19

20 2. The Complaint

21

2.1 September–December 2014: The Creation of the CAM Parole Program

22

The government first proposed the CAM Program on September 18, 2014, as part of the

23 President’s annual recommendations to Congress on proposed refugee admissions for the

24 following year, pursuant to 8 U.S.C. § 1157(d) and (e).5 The annual Presidential Determination on

25

26

4 Section 1182(d)(5)(A) refers to the Attorney General, but pursuant to 6 U.S.C. § 557, that authority has now been transferred to the Secretary of Homeland Security. See, e.g., In re Arrabally, 25 I. & N.

27 Dec. 771, 777 n.5 (B.I.A. 2012).

5 Compl. – ECF No. 1 at 12 (¶ 36).

28

ORDER – No. 18-cv-03539-LB

6

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United States District Court Northern District of California

1 Refugee Admissions incorporated these recommendations and provided that people in Honduras,

2 Guatemala, and El Salvador “may, if otherwise qualified, be considered refugees for the purpose

3 of admission to the United States within their countries of nationality or habitual residence.”

4 Presidential Determination on Refugee Admissions for Fiscal Year 2015, 79 Fed. Reg. 69,753,

5 69,753–54 (Sept. 30, 2014).

6

The CAM Program was structured as a dual refugee/parole program.6 Under the CAM

7 Refugee Program, certain Central American parents lawfully living in the United States could

8 apply for their minor children and qualifying family members to be considered for refugee

9 resettlement while the family members were still in in Honduras, Guatemala, and El Salvador.7

10 Minor children and qualifying family members could be accepted as refugees if they could

11 establish that they qualified for resettlement under U.S. law, that is, by demonstrating that they

12 had a well-founded fear of persecution based on race, religion, nationality, membership in a

13 particular social group, or political opinion.8 Under the CAM Parole Program, minors and

14 qualifying family members who were considered under the CAM Refugee Program but did not

15 meet the specific eligibility criteria for refugee admission were automatically considered for parole

16 pursuant to 8 U.S.C. § 1182(d)(5).9

17

In November 2014, the Departments of State and Homeland Security released a fact sheet

18 regarding the program (the “November 2014 Fact Sheet”).10 The fact sheet stated in part:

19

20 6 Id. (¶ 37).
21 7 Id.
22 8 Id.; accord 8 U.S.C. § 1101(a)(42) (defining “refugee” as requiring, among other things, persecution or a well-founded fear of persecution “on account of race, religion, nationality, membership in a
23 particular social group, or political opinion”).
24 9 Compl. – ECF No. 1 at 12–13 (¶ 38). 10 Fact Sheet, Bureau of Population, Refugees, and Migration, U.S. Dep’t of State and U.S. Dep’t of
25 Homeland Sec., In-Country Refugee/Parole Program for Minors in El Salvador, Guatemala, and Honduras With Parents Lawfully Present in the United States (Nov. 14, 2014), available at
26 https://2009-2017.state.gov/j/prm/releases/factsheets/2014/234067.htm (last visited Dec. 10, 2018) (November 2014 Fact Sheet) (cited by Compl. – ECF No. 1 at 13 (¶ 38)). The court may take notice of
27 the fact sheet under the incorporation-by-reference doctrine. Knievel v. ESPN, 393 F.3d 1068, 1076–77 (9th Cir. 2005).
28

ORDER – No. 18-cv-03539-LB

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United States District Court Northern District of California

1

Beginning in December 2014, a parent lawfully present in the United States will be

able to file Department of State form DS-7699 requesting a refugee resettlement

2

interview for unmarried children under 21 in El Salvador, Guatemala, or Honduras.

3

Under certain circumstances, if the second parent resides with the child in the home country and is currently married to the lawfully present parent in the United States,

4

the second parent may be added to the child’s petition and considered for refugee

status, and if denied refugee status, for parole. . . .

5

. . . .

6

DHS will conduct interviews with each child to determine whether he or she is

7

eligible for refugee status and admissible to the United States. . . .

Applicants found by DHS to be ineligible for refugee status in the United States

8

will be considered on a case-by-case basis for parole, which is a mechanism to

9

allow someone who is otherwise inadmissible to come to the United States for urgent humanitarian reasons or significant public benefit. An individual considered

10

for parole may be eligible for parole if DHS finds that the individual is at risk of

harm, he/she clears all background vetting, there is no serious derogatory

11

information, and someone has committed to financially support the individual

while he/she is in the United States. . . . Parole is temporary and does not confer

12

any permanent legal immigration status or path to permanent legal immigration

13

status in the United States.11

14

The CAM Program began accepting applications on December 1, 2014.12 In mid-2016, the

15 government expanded the CAM Program to allow additional immediate family members of

16 qualifying minor children to apply as “derivative” beneficiaries.13

17

2.2 2014–2016: The Operation of the CAM Program

18

Individuals had to apply to the CAM Refugee Program before they could be considered for the

19 CAM Parole Program. The process was as follows.

20

21

22 11 November 2014 Fact Sheet. The complaint characterizes the fact sheet as stating that children and
23 qualifying family members “were” eligible for parole if they were at risk of harm, cleared background
vetting, had no serious derogatory information, and had someone committed to financially supporting 24 them. Compl. – ECF No. 1 at 13 (¶ 38). The actual fact sheet states that individuals who met those
requirements “may be” eligible for parole. See Johnson v. Fed. Home Loan Mortg. Corp., 793 F.3d 25 1005, 1008 (9th Cir. 2015) (“‘[W]e need not accept as true allegations contradicting documents that
are referenced in the complaint.’”) (quoting Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 26 2008)).
27 12 Compl. – ECF No. 1 at 17 (¶ 44). 13 Id. at 14 (¶ 41).
28

ORDER – No. 18-cv-03539-LB

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United States District Court Northern District of California

1

First, a parent lawfully residing in the United States had to file an application with the

2 assistance of a “resettlement agency” (a nonprofit organization partially funded by the government

3 to welcome refugees into the country) and provide proof of identity, proof of legal status in the

4 United States, and a passport photo of the beneficiary child.14 Second, the International

5 Organization for Migration (“IOM”) — the intergovernmental organization that the State

6 Department contracted to run its Resettlement Support Center in Latin America — invited the

7 child to come to the capital of the country where the child was located so that IOM could

8 interview the child, take the child’s biometric data and background information, prepare a case

9 file, and initiate security checks.15 Third, USCIS verified the relationship between parent and child

10 through documentary evidence and DNA tests.16 (The parent had to pay for DNA testing, but

11 USCIS reimbursed the parent if the testing confirmed a parent-child relationship.17) Fourth,

12 USCIS conducted an interview with the child in the country capital.18 Fifth, after confirming

13 security-check results and DNA-test results, USCIS made a determination on the refugee

14 application and notified beneficiaries of that determination by either a decision letter or a phone

15 call.19 For beneficiaries who received letters, if refugee status was denied, the letter checked one of

16 several boxes to explain the reason for the denial and outlined the process to request a review of

17 the refugee determination.20 The letter then indicated whether the child was eligible for the CAM

18 Parole Program.21

19

20

21

22 14 Id. (¶ 42(a)).
23 15 Id. (¶ 42(b)).
24 16 Id. at 14–15 (¶ 42(c)). 17 Id. at 15 (¶ 42(c)).
25 18 Id. (¶ 42(d)).
26 19 Id.
27 20 Id. 21 Id.
28

ORDER – No. 18-cv-03539-LB

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United States District Court Northern District of California

1

If USCIS approved a beneficiary for the CAM Parole Program, the letter said:

2

You have been conditionally approved for parole into the United States. Final

approval is conditioned upon successful completion of any remaining clearances

3

that are required in the screening process. These clearances include medical

4

examination by a U.S. approved panel physician, completion of security clearance procedures, and verification of family relationships. Please see attached

5

information sheet for next steps that must be completed for you to be paroled into

the United States.22

6

7

If USCIS conditionally approved a beneficiary for parole, the beneficiary had to undergo a

8 medical examination in the country capital at the parent’s expense.23 USCIS told the beneficiary

9 that “IOM will contact your relative in the United States to collect payment for the medical exam”

10 and that “[a]fter receiving payment, IOM will contact you to arrange your exam.”24 If the

11 beneficiary cleared the examination, he or she received a medical clearance valid for six months.25

12

Next, USCIS told the beneficiary that “[i]f the medical results clear, IOM will contact your

13 relatives in the United States to arrange for your flight” and that “[a]fter IOM receives payment for

14 your travel, [it] will submit the travel itinerary to USCIS.”26 After receiving the travel-itinerary

15 form from IOM, USCIS “will . . . [p]erform final security checks, [e]nsure the medical exam

16 results remain valid until date of travel, and [v]erify that your relative still has a qualifying legal

17 presence in the United States.”27 “[I]f we decide that you have met all requirements for parole

18 under this program, we will issue Form I-512L, Authorization for Parole of an Alien Into the

19 United States” and that “IOM will give you this document and your plane ticket the day you fly to

20 the United States.”28

21

22

23 22 Id. at 15–16 (¶ 42(e)).
24 23 Id. at 16 (¶ 42(f)). 24 Id.
25 25 Id.
26 26 Id. (¶ 42(g)).
27 27 Id. (¶ 42(h)). 28 Id. (emphasis removed).
28

ORDER – No. 18-cv-03539-LB

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1

Finally, after travel arrangements were made, the beneficiary traveled to a U.S. port of entry,

2 where DHS Customs and Border Protection could authorize parole for a period of up to two

3 years.29 USCIS told the beneficiary that it “will consider CAM parole extension requests for the

4 duration of the program.”30

5

During the approximately two-and-a-half years that the CAM Program was in operation, more

6 than 13,000 people applied, at least 1,627 individuals were able to settle in the United States as

7 refugees, and an additional 1,465 people were able to enter the United States as parolees.31

8

2.3 2015–Present: Donald Trump’s Statements Regarding Latinos

9

Donald Trump launched his 2016 presidential campaign with the claim that Latin America was

10 “not sending their best” people to the United States: “They’re sending people that have lots of

11 problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing

12 crime. They’re rapists.... It’s coming from all over ... Latin America.”32 Candidate Trump

13 continued to categorize Latinos as gang members, killers, and rapists in promising to deport and

14 exclude Latinos from the country.33

15

The complaint lists five examples of statements by Candidate Trump or President-Elect Trump

16 before his inauguration:

17

1. “On August 21, 2015, when asked to respond to a report that two of his supporters had

18

urinated on a sleeping Latino man and then beat him with a metal pole, Candidate

19

Trump responded, ‘people who are following me are passionate. They love this country

20

and want this country to be great again. They are passionate.’”

21

2. “In May 2016, Candidate Trump referred to anti-Trump protestors who carried the

22

Mexican flag on Twitter as ‘criminals’ and ‘thugs.’”

23

24 29 Id. at 17 (¶ 42(i)).
25 30 Id.
26 31 Id. (¶ 44).
27 32 Id. at 18 (¶ 45) (ellipses in original). 33 Id. (¶ 46).
28

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1

3. “In June 2016, Candidate Trump stated that Judge Gonzalo Curiel [of the Southern

2

District of California] could not be fair in presiding over a lawsuit because he was

3

‘Hispanic.’”

4

4. “In October 2016, during a presidential debate, then-candidate Trump responded to a

5

question about immigration by referring to Latino immigrants as ‘bad hombres’ and

6

promising that ‘we’re going to get them out.’”

7

5. “In December 2016, President-Elect Trump referred to an article about a recent crime

8

wave on Long Island and said ‘They come from Central America. They’re tougher than

9

any people you’ve ever met.... They’re killing and raping everybody out there. They’re

10

illegal. And they are finished.’”34

11

The complaint lists eleven examples of statements by President Trump after his inauguration:

12

1. “On January 25, 2017, shortly after signing executive orders calling for immediate

13

construction of a wall along the southern U.S. border and withholding federal funds

14

from ‘sanctuary’ cities, President Trump condemned the ‘unprecedented surge’ of

15

migrants from Central America for eroding safety in the United States, claiming that

16

these two orders ‘will save thousands of lives.’”

17

2. “On January 27, 2017, newly-inaugurated President Trump and Mexico’s President

18

Peña Nieto discussed President Trump’s proposal for a border wall over the phone.

19

During that transcribed conversation, President Trump once again referred to Mexicans

20

as ‘tough hombres.’”

21

3. “On February 3, 2017, during a visit to the Customs and Border Protection training

22

center, President Trump said ‘You know they’re bad. They’re pouring in from El

23

Salvador, Guatemala, Honduras, Mexico, all over. They’re just pouring into our

24

country!’”

25

26

27
34 Id. (ellipsis in original). 28

ORDER – No. 18-cv-03539-LB

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1

4. “In February 2017, President Trump said ‘What has been allowed to come into our

2

country, when you see gang violence that you’ve read about like never before, and all

3

of the things — much of that is people that are here illegally ... They’re rough and

4

they’re tough ... So we’re getting them out.’”

5

5. “On June 21, 2017, President Trump implied that thousands of immigrants are

6

members of the Central American gang MS-13. He said ‘These are true animals. We

7

are moving them out of the country by the thousands, by the thousands.’”

8

6. “Similarly, on June 28, 2017, President Trump suggested that the MS-13 gang had

9

taken over swaths of U.S. territory, and said: ‘They are bad people. And we’ve gotten

10

many of them out already... We’re actually liberating towns, if you can believe that we

11

have to do that in the United States of America. But we’re doing it, and we’re doing it

12

fast.’”

13

7. “On August 25, 2017, President Trump pardoned former Maricopa County Sheriff Joe

14

Arpaio, who was to be sentenced for criminal contempt for failing to comply with a

15

federal judge’s order to stop racially profiling Latinos. Before issuing the pardon,

16

President Trump asked rhetorically, ‘Was Sheriff Joe convicted for doing his job?’

17

After issuing the pardon, President Trump sent a tweet calling Mr. Arpaio ‘an

18

American patriot.’”

19

8. “On September 5, 2017, in conjunction with the Administration’s announcement of the

20

termination of the DACA [Deferred Action for Childhood Arrivals] program, President

21

Trump issued a statement decrying ‘the massive surge of unaccompanied minors from

22

Central America including, in some cases, young people who would become members

23

of violent gangs throughout our country, such as MS-13.’”

24

9. “On January 11, 2018, President Trump infamously referred to El Salvador as a

25

‘shithole country’ during a meeting with lawmakers about immigration, asking ‘Why

26

are we having all these people from shithole countries come here?’ He then suggested

27

that the United States should bring more people from countries such as Norway, which

28

has an overwhelmingly white population.”

ORDER – No. 18-cv-03539-LB

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1

10. “In February 2018, President Trump claimed that immigrants from El Salvador,

2

Guatemala, Honduras, and Mexico are ‘just pouring into our country .... These

3

countries are not our friends, you know. We think they’re our friends, and we send

4

them massive aid ... and they’re pouring drugs into our country and they’re laughing at

5

us’ — returning to his common refrain that Central Americans are somehow gaming

6

the U.S. immigration system.”

7

11. “In May 2018, President Trump said of people crossing the Mexican border into the

8

United States: ‘You wouldn’t believe how bad these people are. These aren’t people.

9

These are animals.’”35

10

2.4 January 2017: Executive Order 13,767

11

On January 20, 2017, Donald Trump was inaugurated as president of the United States.

12

On January 25, 2017, President Trump issued Executive Order 13,767, entitled Border

13 Security and Immigration Enforcement Improvements. Exec. Order No. 13,767, 82 Fed. Reg.

14 8793 (2018).36 The Order stated in part:

15

Section 1. Purpose. Border security is critically important to the national

security of the United States. Aliens who illegally enter the United States without

16

inspection or admission present a significant threat to national security and public

17

safety. Such aliens have not been identified or inspected by Federal immigration officers to determine their admissibility to the United States. The recent surge of

18

illegal immigration at the southern border with Mexico has placed a significant

strain on Federal resources and overwhelmed agencies charged with border security

19

and immigration enforcement, as well as the local communities into which many of

the aliens are placed. 20

. . . .

21

Sec. 11. Parole, Asylum, and Removal. It is the policy of the executive branch

22

to end the abuse of parole and asylum provisions currently used to prevent the

lawful removal of removable aliens.

23

24

25 35 Id. at 29–30 (¶ 82) (ellipses in original).
26 36 Id. at 23 (¶ 62). The court can take judicial notice of the Executive Order under the incorporationby-reference doctrine because it is cited in the complaint, Knievel v. ESPN, 393 F.3d 1068, 1076–77
27 (9th Cir. 2005), and as a matter of public record, Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001).
28

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1

(a) The Secretary [of Homeland Security] shall immediately take all appropriate

action to ensure that the parole and asylum provisions of Federal immigration law

2

are not illegally exploited to prevent the removal of otherwise removable aliens.

3

. . . .

4

(d) The Secretary shall take appropriate action to ensure that parole authority

under section 212(d)(5) of the INA (8 U.S.C. 1182(d)(5)) is exercised only on a

5

case-by-case basis in accordance with the plain language of the statute, and in all

circumstances only when an individual demonstrates urgent humanitarian reasons

6

or a significant public benefit derived from such parole.

7 Id. at 8793, 8795–96.

8

2.5 January 2017: The Alleged “Secret Shutdown” of the CAM Program

9

Shortly after President Trump took office in January 2017, the government took the following

10 actions with respect to the CAM Program.

11

Interviews: USCIS stopped interviews of all CAM Program beneficiaries, thereby blocking all

12 CAM Program applications at the interview stage from being processed.37 Within the first seven

13 days of the Trump presidency, USCIS cancelled more than 2,000 CAM Program interviews that

14 were scheduled to take place in January, February, and March 2017.38 The interviews were

15 cancelled in anticipation of an Executive Order suspending the U.S. Refugee Admissions Program

16 — what would later become Executive Order 13,769, Protecting the Nation from Foreign Terrorist

17 Entry into the United States, issued on January 27, 2017.39 While the Order was enjoined in part

18 on February 3, 2017, USCIS did not reinstate CAM Program interviews.40 Instead, USCIS

19 confirmed on February 3, 2017, that all USCIS interviews in El Salvador, Honduras, and

20 Guatemala through the end of March 2017 were cancelled.41

21

22

23

24 37 Compl. – ECF No. 1 at 18–19 (¶ 48).
25 38 Id. at 19 (¶ 48).
26 39 Id.
27 40 Id. (citing Washington v. Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017)). 41 Id.
28

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1

Issuing determinations: The government stopped issuing decisions to CAM Program

2 beneficiaries who had been interviewed.42 The government did not notify the public that it was

3 doing so.43

4

Medical examinations: The government stopped scheduling medical examinations for CAM

5 Program beneficiaries who had been interviewed and received a determination before January

6 2017 that they were conditionally approved for parole.44 The government did not notify the public

7 or CAM Program participants that it was doing so.45 IOM continued to solicit and accept funds

8 from Program applicants during this time.46

9

Travel to the United States: The government blocked travel to the United States for CAM

10 Program beneficiaries who had been interviewed, received a determination that they were

11 conditionally approved for parole, and cleared their medical examinations.47 On or about January

12 22, 2017 (two days after President Trump took office), an IOM employee told one of the plaintiffs

13 in this case that IOM had received new orders that all CAM Program cases were frozen for 120

14 days and that no CAM Program case could be processed because the government had changed its

15 position and IOM had to wait for orders from the new administration.48 IOM continued to solicit

16 and accept payments for plane tickets from CAM Program applicants during this time.49

17

The government did not notify the public that it was shutting down the CAM Parole

18 Program.50 The USCIS program webpage for CAM Program participants stated that “[c]urrently

19 there is no planned end date for the CAM parole program” and “[t]here is currently no filing

20

21 42 Id. (¶ 49).
22 43 Id.
23 44 Id. (¶ 50).
24 45 Id. 46 See id. (¶¶ 50–51).
25 47 Id. at 19–20 (¶ 52).
26 48 Id. at 20 (¶ 53).
27 49 See id. (¶¶ 54–55). 50 Id. at 21 (¶ 56).
28

ORDER – No. 18-cv-03539-LB

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1 deadline for this program.”51 The USCIS program webpage for conditionally approved CAM

2 Program beneficiaries stated, “[w]e encourage your relative to book the travel within the time

3 period suggested by IOM to avoid additional processing delays and costs if the medical exam or

4 security checks expire.”52 A State Department website discussing the CAM Program expansion

5 stated that “[a] qualifying, lawfully present parent who filed a CAM AOR [affidavit of

6 relationship] from December 1, 2014, through November 30, 2016, and wishes to request access

7 for expanded category relatives will need to file an amended DS-7699 prior to September 30,

8 2017” and that “[a]n amended AOR form filed on or before this date will be processed regardless

9 of where the qualifying child is in the process as long as the relationships of the expanded

10 category relatives can be verified through DNA testing.”53 At least five webpages controlled by

11 USCIS, the State Department, and the U.S. embassies in El Salvador and Honduras represented

12 that the CAM Program continued to be in operation.54 IOM contacted at least one of the plaintiffs

13 in this case after the government allegedly “shut down” the CAM Parole Program to tell her that

14 she needed to send $2,500 for her daughter’s and grandson’s plane tickets and that they would be

15 able to travel to the United States after payment was received.55 IOM may have accepted payments

16 from other plaintiffs for plane tickets as well.56 These participants never received travel

17 arrangements to the United States.57

18

2.6 February 2017: The Kelly Memorandum

19

On February 17, 2017, then-Secretary of Homeland Security John Kelly issued a

20 memorandum (the “Kelly Memo”) to the Acting Commissioner of U.S. Customs and Border

21 Protection, the Acting Director of U.S. Immigration and Customs Enforcement, the Acting

22

23 51 Id. (¶ 57).
24 52 Id. (¶ 58). 53 Id. at 21–22 (¶ 59).
25 54 Id. at 22 (¶ 60).
26 55 Id. at 20 (¶ 55).
27 56 See id. (¶ 54). 57 Id. (¶¶ 54–55).
28

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1 Director of USCIS, the Acting General Counsel of DHS, the Acting Assistant Secretary for

2 International Affairs, and the Acting Undersecretary for Management.58 The memorandum stated

3 in part:

4

This memorandum implements the Executive Order entitled “Border Security

and Immigration Enforcement Improvements,” issued by the President on January

5

25, 2017, which establishes the President’s policy regarding effective border

6

security and immigration enforcement through faithful execution of the laws of the United States. It implements new policies designed to stem illegal immigration and

7

facilitate the detection, apprehension, detention, and removal of aliens who have no

lawful basis to enter or remain in the United States. It constitutes guidance to all

8

Department personnel, and supersedes all existing conflicting policy, directives,

memoranda, and other guidance regarding this subject matter, except as otherwise

9

expressly stated in this memorandum.

10

. . . .

11

K. Proper Use of Parole Authority Pursuant to Section 212(d)(5) of the INA

12

The authority to parole aliens into the United States is set forth in section 212(d)(5) of the INA [8 U.S.C. § 1182(d)(5)], which provides that the Secretary

13

may, in his discretion and on a case-by-case basis, temporarily parole into the

United States any alien who is an applicant for admission for urgent humanitarian

14

reasons or significant public benefit. Upon careful scrutiny, the statutory language

appears to strongly counsel in favor of using the parole authority sparingly and only

15

in individual cases where, after careful consideration of the circumstances, parole is

16

necessary because of demonstrated urgent humanitarian reasons or significant

public benefit.

17

The practice of granting parole to certain aliens in pre-designated categories in

18

order to create immigration programs not established by Congress, has contributed

to a border security crisis, undermined the integrity of the immigration laws and the

19

parole process, and created an incentive for additional illegal immigration.

20

Therefore, the Director of USCIS, the Commissioner of CBP, and the Director

of ICE shall ensure that, pending the issuance of final regulations clarifying the

21

appropriate use of the parole power, appropriate written policy guidance and

training is provided to employees within those agencies exercising parole authority,

22

including advance parole, so that such employees are familiar with the proper

23

exercise of parole under section 212(d)(5) of the INA and exercise such parole

24

25 58 Memorandum from John Kelly, Sec’y of Homeland Sec., to Kevin McAleenan, Acting Comm’r,
26 U.S. Customs and Border Prot., et al., Implementing the President’s Border Security and Immigration
Enforcement Improvement Policies (Feb. 17, 2017) (Kelly Memo) – ECF No. 33-5 (AR000022–34) 27 (cited by Compl. – ECF No. 1 at 23 (¶ 63)). The court can take judicial notice of the Executive Order
under the incorporation-by-reference doctrine. Knievel, 393 F.3d at 1076–77. 28

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1

authority only on a case-by-case basis, consistent with the law and written policy

guidance.59

2

3

2.7 August 2017: Termination of the CAM Parole Program

4

On August 16, 2017, the government publicly announced the termination of the CAM Parole

5 Program by publishing a notice in the Federal Register.60 The notice stated in part:

6

As of August 16, 2017, USCIS will no longer consider or authorize parole

under the CAM Parole Program. In addition, USCIS will notify individuals who

7

have been conditionally approved for parole under this program and who have not

8

yet traveled that the program has been terminated and their conditional approval for

parole has been rescinded. . . .

9

Although DHS is terminating the CAM Parole Program, individuals who have

10

been paroled into the United States under the CAM Parole program will maintain

parole until the expiration of that period of parole unless there are other grounds for

11

termination of parole under DHS regulations at 8 CFR 212.5(e).

12 Termination of the Central American Minors Parole Program, 82 Fed. Reg. 38,926, 38,927 (Aug.

13 16, 2017). The notice further stated:

14

This discretionary change in policy does not preclude such individuals from

applying for parole consideration independent of the CAM program by filing

15

USCIS Form I-131, Application for Travel Document, consistent with the

16

instructions for that form. Parole will only be issued on a case-by-case basis and only where the applicant demonstrates an urgent humanitarian or a significant

17

public benefit reason for parole and that applicant merits a favorable exercise of

discretion. Any alien may request parole to travel to the United States, but an alien

18

does not have a right to parole.

19

. . . . [Individuals who were conditionally approved for parole under the CAM

Parole Program] may apply for parole consideration independent of the CAM

20

program by filing USCIS Form I-131, Application for Travel Document, consistent

with the instructions for that form. 21

22 Id. (emphasis in original).

23

After this announcement, “IOM told CAM Parole Program beneficiaries whose conditional

24 approval for parole was rescinded — all of whom had been previously deemed ineligible for

25 refugee resettlement under the CAM Refugee Program — that they could file a request for review

26
27 59 Kelly Memo – ECF No. 33-5 at 2 (AR000022), 10 (AR000030). 60 Compl. – ECF No. 1 at 23 (¶ 64).
28

ORDER – No. 18-cv-03539-LB

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1 (‘RFR’) of the denial of refugee status within 90 days of the notice of the rescission.”61 Many

2 affected CAM Parole Program beneficiaries filed RFRs, including several of the plaintiffs here.62

3 Many of those who filed RFRs in 2017 or early 2018 have not yet received decisions on their

4 RFRs.63

5

6 3. The Administrative Record

7

In connection with their motion to dismiss the plaintiffs’ APA claims, the defendants filed the

8 administrative record pursuant to 5 U.S.C. § 706.64 Among other things, the administrative record

9 documents the following additional facts.

10

3.1 2014–2016: The Record Regarding the Operation of the CAM Parole Program

11

As noted above, the government began accepting applications for the CAM Program on

12 December 1, 2014.

13

On December 5, 2014, the State Department issued press guidance regarding the CAM

14 Program (the “December 2014 Guidance”).65 The guidance stated in part:

15

Key Messages:

16

• As part of the effort to address the underlying causes of this migration, the

Administration has launched an “in-country” refugee and parole processing

17

for certain minors in El Salvador, Guatemala, and Honduras. This program

will allow parents who are lawfully present in the United States to request

18

U.S. resettlement for children under the age of 21 who are still in one of

19

these three countries.

• We are establishing in-country processing in El Salvador, Guatemala, and

20

Honduras to provide a safe, legal, and orderly alternative to the dangerous

21

journey that some children are currently undertaking to join parents in the United States.

22

23 61 Id. at 25 (¶ 70).
24 62 Id. at 26 (¶ 71).
25 63 Id. (¶ 72).
26 64 Admin. Record – ECF No. 33. 65 Press Guidance, Bureau of Population, Refugees and Migration, U.S. Dep’t of State, In-Country
27 Processing for Children in El Salvador, Guatemala, and Honduras (Dec. 5, 2014) (December 2014 Guidance) – ECF No. 33-11 (AR000053–55).
28

ORDER – No. 18-cv-03539-LB

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1

• This program is part of the Administration’s integrated and

comprehensive approach to addressing the underlying economic and

2

security challenges facing Central American countries with increased

3

unlawful migration across the southwest U.S. border last summer.

• Our goal in the United States and in Central America is to extend protection

4

to those with legitimate humanitarian claims while providing an effective

5

deterrent for irregular migration driven by dangerous criminal smuggling networks.

6

• Taken together with the efforts of Central American leaders and other key

7

stakeholders to address the underlying causes of migration, this measure will help end the practice of sending children on this dangerous journey.66

8

. . . .

9

• This program is one of many measures the United States is putting in place

to help reduce the number of parents and others who are paying smugglers

10

to lead minors on the dangerous journey to the United States. It offers a real

11

alternative to children who may have legitimate claims to refugee status.

• The Departments of State and Homeland Security launched new public

12

information campaigns, in coordination with the Central American

13

governments, warning about the dangers of irregular migration and delivering the message that unaccompanied children are not given a

14

“permiso” or permit to stay in the United States upon arrival at the border,

and many will ultimately be returned to their country of origin.

15

16 In November 2015, the State Department issued additional press guidance regarding the CAM

17 Program (the “November 2015 Guidance”).67 The guidance stated in part:

18

Key Messages:

19

• The Central American Minors program provides a safe, legal, and orderly

alternative to the dangerous journey that some children have undertaken to

20

join their parents in the United States.

21

• While the program launched 11 months ago, most of the approximately

5,000 applications received so far have come in the last three to four

22

months.

23

. . . .

24

25
26 66 Id. at 2–4 (AR000053–55) (emphasis in original). 67 Press Guidance, Bureau of Population, Refugees and Migration, U.S. Dep’t of State, Central
27 American Minors Program (Nov. 5, 2015) (November 2015 Guidance) – ECF No. 33-12 (AR000056– 63).
28

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1

Q: What is the goal of the Central American Minors Program?

2

• We established the program in 2014 to provide a safe, legal, and orderly

alternative to the dangerous journey that some children are currently

3

undertaking to join their parents in the United States.

4

• Our goal is to protect families with legitimate humanitarian claims while

discouraging people from sending their children on the dangerous journey

5

to the United States.

6

. . . .

Q: What is the current status of application processing? 7

• The U.S. Department of Homeland Security recently completed its first

8

round of 90 interviews in Central America and has conditionally approved

approximately 12 percent for refugee admission; about 84 percent were

9

recommended for parole. Approximately 1 percent were denied and

10

approximately 2 percent are undergoing additional review.

. . . . 11

Q. Will the Administration consider ending this program, given the low

12

refugee approval rate?

13

• This program has just begun. No assumptions or conclusions should be

made about longer-term trends and outcomes based on the limited sample of

14

cases to date.

15

• We will continue the program in FY2016. This program was designed as a

hybrid refugee/parole program, and 96% of the first set of applicants were

16

approved for either refugee admission or parole.68

17

In November 2015, USCIS issued an information sheet regarding the CAM Parole Program.69

18 The info sheet stated in part:

19

Individuals who applied for, but were denied, refugee status under the in-

country refugee program in Guatemala, Honduras, or El Salvador, are considered

20

for parole into the United States under the CAM parole program. This Fact Sheet

21

describes key parts of the process of obtaining parole for conditionally approved

applicants.

22

General Parole Information

23

The Secretary of Homeland Security may, in his or her discretion, parole any

24

foreign national applying for admission to the United States into the United States temporarily for urgent humanitarian reasons or significant public benefit. (See

25

26 68 Id. at 2–4 (AR000056–58) (emphasis in original). 69 U.S. Citizenship & Immigration Servs., U.S. Dep’t of Homeland Sec., Central American Minors
27 (CAM) Parole Program: Information for Conditionally Approved Applicants (Nov. 23, 2015) – ECF
No. 33-48 (AR000462–66). 28

ORDER – No. 18-cv-03539-LB

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1

Immigration and Nationality Act (INA) Section 212(d)(5)). Parole allows an

individual, who may be inadmissible or otherwise ineligible for a visa or refugee

2

status, to come to and stay in the United States for a temporary period.

3

A person who has been paroled (“parolee”) is not admitted into the United

States for purposes of immigration law. Parole allows an individual to be lawfully

4

present in the United States temporarily and to apply for work authorization.

5

Although a parolee is lawfully present in the United States for the time period authorized, parole is by nature temporary and does not confer or lead to legal

6

immigration status in the United States.

7

. . . .

Parole Termination or Expiration 8
Your parole status may be terminated if:

9

• You depart the United States;

10

• You violate any laws of the United States; or

11

• The DHS Secretary in his discretion decides to terminate parole.70

12

In February 2016, the State Department issued additional press guidance regarding the CAM

13 Program (the “February 2016 Guidance”).71 The guidance stated in part:

14

Key Messages:

15

• The Central American Minors program provides a safe, legal, and orderly

alternative to the dangerous journey that some children have undertaken to

16

join their parents in the United States.

17

• While the program launched 13 months ago, most of the approximately

6,500 applications received so far have come in the last six months. To date,

18

the Department has performed its initial screening of nearly 3,000 of these

applicants, and DHS has completed more than 600 final interviews. 19

• Forty-eight individuals have arrived in the United States via the program so

20

far, 37 from El Salvador and 11 from Honduras.

21

. . . .

22

23

24
25 70 Id. at 2 (AR000462), 5 (AR000465). 71 Press Guidance, Bureau of Population, Refugees and Migration, U.S. Dep’t of State, Central
26 American Minors Program (Feb. 2, 2016) (February 2016 Guidance) – ECF No. 33-14 (AR000073– 76). The guidance is dated “February 2, 2015” as opposed to “2016,” but this appears to be a typo (the
27 guidance refers to the CAM Program’s having been launched “13 months ago,” which would place it in February 2016, not February 2015).
28

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1

Q: What is the goal of the Central American Minors Program?

2

• We established the program in 2014 with the goal to protect families with

legitimate humanitarian claims while discouraging people from sending

3

their children on the dangerous journey to the United States.

4

• Ensuring the safety of people in the region and deterring the exploitation of

undocumented migrants requires cooperation and partnership. Central

5

American governments must take the lead on creating better economic,

social, governance and security conditions in their countries, and we are

6

commit[t]ed to helping them, as evidenced by Congress’s FY 2016

7

appropriation of up to $750 million in foreign assistance.

Q. Will the Administration consider ending this program, given the low rates? 8
• We will continue the program in FY2016. No assumptions or conclusions

9

should be made about long-term outcomes based on the limited sample of

cases to date. 10
• This program was designed as a hybrid refugee/parole program, and 98

11

percent of applicants interviewed to date were approved for either refugee

admission or parole.72

12

13

In May 2016, the State Department issued additional press guidance regarding the CAM

14 Program (the “May 2016 Guidance”).73 The guidance stated in part:

15

Key Messages:

16

• The Central American Minors program provides a safe, legal, and orderly

alternative to the dangerous journey that some children have undertaken to

17

join their parents in the United States.

18

• While the program launched in December 2014, most of the approximately

8,500 applications received so far have come in the last nine months. To

19

date, the Department has performed its initial screening of more than 5,500

of these applicants, and DHS has completed more than 1,500 final

20

interviews. The number of final interviews will increase significantly over

21

the next six months.

• More than three hundred individuals have arrived in the United States via

22

the program so far.

23

. . . .

24
25 72 Id. at 2–4 (AR000073–75). 73 Press Guidance, Bureau of Population, Refugees and Migration, U.S. Dep’t of State, Central
26 American Minors Program (May 24, 2016) (May 2016 Guidance) – ECF No. 33-15 (AR000077–80). The guidance is dated “May 24, 2015” as opposed to “2016,” but this appears to be a typo (the
27 guidance refers to the fact that most applications have come “in the last nine months,” whereas May 2015 was less than nine months after the CAM Program was launched).
28

ORDER – No. 18-cv-03539-LB

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1

Q: What is the goal of the Central American Minors Program?

2

• We established the program in December 2014 with the goal to protect

families with legitimate humanitarian claims while discouraging people

3

from sending their children on the dangerous journey to the United States.

4

. . . .

Q. Will the Administration consider ending this program, given the low rates? 5

• The Central American Minors pro[g]ram is an important part of our efforts

6

to protect Central Americans at risk of harm and expand resettlement

opportunities in the region. We have no plans to end the program. 7

• Although the program took some time to get started, we continue to receive

8

a number of applications and more than 300 children have arrived to the

United States via the program so far. 9

• This program was designed as a hybrid refugee/parole program, and 98

10

percent of applicants interviewed to date were approved for either refugee

admission or parole.74 11

12

In July 2016, the State Department issued additional press guidance regarding the CAM

13 Program (the “July 2016 Guidance”).75 The guidance stated in part:

14

Q. What are the current statistics on CAM applications and arrivals?

15

• While the program launched in December 2014, most of the approximately

9,500 applications received so far have come in the last nine months.

16

• To date, the Department of State has performed its initial screening of more

17

than 6,800 of these applicants, and the Department of Homeland Security

has completed 2,900 final interviews and decisions.

18

• Out of these, 99% (2,884) have been approved either for refugee

19

resettlement or for parole. We expect that the number of final interviews

will increase significantly over the next six months.

20

• More than 600 individuals have arrived in the United States via the program

21

so far and we expect the pace of arrivals to increase as those approved to

come to the United States complete the necessary post-decision steps for

22

arrival.

23

24

25
26 74 Id. at 2–4 (AR000077–79). 75 Press Guidance, Bureau of Population, Refugees and Migration, U.S. Dep’t of State, Central
27 American Minors Program Expansion, Protection Transfer Agreement, and In-Country Referrals (July 28, 2016) (July 2016 Guidance) – ECF No. 33-16 (AR000081–96).
28

ORDER – No. 18-cv-03539-LB

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1

Q. How many individuals have qualified for refugee status under the existing

program compared to parole? 2
• 267 have entered the US as refugees and another 400 have entered under

3

parole.

4

. . . .

Q: What is the goal of the Central American Minors Program? 5

• We launched the program in December 2014 with the goal of protecting

6

children with legitimate humanitarian claims while discouraging people

from placing their children in the hands of smugglers for a dangerous

7

journey to the United States.

8

• We also believe it is critical for Central American governments to take the

lead on creating better economic, social, governance and security conditions

9

in their countries, and we are commi[t]ted to helping them, as evidenced by

10

Congress’s FY 2016 appropriation of up to $750 million in foreign

assistance to Central America, and our FY 2017 budget proposal.[]76

11

12

In November 2016, the State Department issued additional press guidance about the CAM

13 Program (the “November 2016 Guidance”).77 The guidance stated that 99% of CAM Program

14 participants that had been interviewed were approved for either refugee resettlement or parole:

15

Q. What are the current statistics on CAM applications and arrivals?

16

• The program launched in December 2014 and has received approximately

10,400 applications.

17

• To date, the Department of State has performed its initial screening of

18

nearly 9,000 of these applicants, and the Department of Homeland Security

has interviewed more than 5,500 individuals.

19

• Out of these, 99 percent have been approved either for refugee resettlement

20

or for parole.

• More than 1335 individuals have arrived in the United States via the

21

program so far.78

22 The guidance noted that there was no guarantee, and the State Department could not speculate,

23 about whether the CAM Program would continue after President-Elect Trump was inaugurated.79

24

25 76 Id. at 5–6 (AR000084–85).

26

77 Press Guidance, Bureau of Population, Refugees and Migration, U.S. Dep’t of State, Central American Minors Program Expansion (Nov. 15, 2016) (November 2016 Guidance) – ECF No. 33-17

27 (AR000097–105).

78 Id. at 8 (AR000103).

28

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1

3.2 August 2017: The Record Regarding the Termination of the CAM Parole Program

2

As noted above, the government announced the termination of the CAM Parole Program on

3 August 16, 2017.

4

On August 15, 2017, the USCIS issued leadership guidance regarding the termination of the

5 CAM Program (“2017 Leadership Guidance”).80 The guidance stated in part:

6

Termination of the Central American Minors (CAM) Parole Program

7

Effective Aug. 16, 2017, USCIS will no longer automatically consider or offer

parole for individuals in El Salvador, Guatemala, and Honduras under the Central

8

American Minor (CAM) Parole program. Individuals who have been conditionally

approved for parole under this program and have not yet traveled will be notified

9

that their conditional offer of parole has been rescinded. Refugee processing under

10

the CAM Refugee program continues. DHS parole regulations at 8 CFR § 212.5 continue to apply.

11

. . . .

12

Reason for Termination

13

In accordance with section 11 of President Trump’s Executive Order entitled

Border Security and Immigration Enforcement Improvements, Acting Secretary of

14

Homeland Security Elaine Duke has decided to rescind the program, which

automatically considered for parole all individuals found ineligible for refugee

15

status under the in-country refugee program in Guatemala, Honduras, or El

16

Salvador. The CAM Parole program was implemented as part of an integrated strategy to address factors contributing to increases in migration from Central

17

America to the United States. However, as indicated by the executive order, DHS is

pursuing a new strategy to secure the U.S. southern border.81

18

19

USCIS issued a contemporaneous document captioned “RTQ [response to queries]:

20 Termination of CAM Parole Program” (the “2017 RTQ”) setting out talking points for USCIS to

21 respond to inquiries about the end of the CAM Program.82 The RTQ stated in part:

22

23

79 Id. at 10 (AR000105).

24 80 Leadership Guidance, U.S. Citizenship & Immigration Servs., U.S. Dep’t of Homeland Sec. (Aug.

25 15, 2017) (2017 Leadership Guidance) – ECF No. 33-33 (AR000182).

81 Id. at 2 (AR000182).

26 82 Response to Queries, U.S. Citizenship & Immigration Servs., U.S. Dep’t of Homeland Sec.,

27

Termination of CAM Parole Program (2017 RTQ) – ECF No. 33-9 (AR000045–50). The document is undated, but it indicates on its face that it was contemporaneous with the termination of the CAM

28 Parole Program, see id. at 2 (AR000045) (“Effective immediately, USCIS will no longer consider or

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1

Talking points:

2

• Effective immediately, USCIS will no longer consider or offer parole under

the CAM Parole program.

3

. . . .

4

• USCIS will issue notices to individuals conditionally offered parole under

the CAM Parole program, who have not yet traveled, notifying them that

5

the CAM Parole program has been terminated and their conditional offer of

6

parole has been rescinded.

. . . . 7

If asked only:

8

Q1: Why did it take the government so long to notify these individuals that

9

their conditional offer of parole was rescinded?

10

A1: Executive Order 13767, issued on Jan. 25, 2017, instructed DHS to take appropriate action to ensure that its parole policies are not illegally exploited and

11

that parole is granted “only when an individual demonstrates urgent humanitarian

reasons or a significant public benefit derived from such parole.” Then-Secretary of

12

Homeland Security John Kelly issued an implementing memorandum on Feb. 20,

2017, directing DHS to undertake a review of its various parole policies. Since that

13

time, we conducted a careful review of the Central American Minors (CAM) Parole

14

program, and Acting Secretary of Homeland Security Elaine Duke decided to

terminate the program. As stated in the Federal Register notice, we are notifying

15

the affected public, including individuals who were conditionally approved for

parole but have not yet traveled or who have already been paroled into the United

16

States.

17

. . .

18

Q3: When did USCIS stop processing applications for parole?

A3: While the CAM program was under review, USCIS ceased considering or

19

offering parole or further processing individuals who had been conditionally

20

approved for parole under the program. The agency ceased these actions in

February 2017.

21

Q3a: Why did DHS wait until August to terminate the program if it stopped

22

processing individuals for the program back in February?

23

A3a: Following the issuance of the President’s Executive Order, then-Secretary of Homeland Security John Kelly issued an implementing memorandum on Feb. 20,

24

2017, directing DHS to undertake a review of its various parole policies. Since that

time, we conducted a careful review of the Central American Minors (CAM) Parole

25

26

27 offer parole under the CAM Parole program.”), and the government represented at the motion hearing
before the court that it was in fact a contemporaneous document. 28

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1

program, and Acting Secretary of Homeland Security Elaine Duke decided to

terminate the program upon completion of that review. 2
Q4: What happened to individuals who received notification that they were

3

conditionally approved for parole pending successful completion of

background and medical checks? Will the process continue for them? How

4

many people will this affect?

5

A4: All conditionally approved applicants for parole under the CAM Parole

program without confirmed travel arrangements to the United States will be sent

6

notices of the CAM Parole program’s termination, including notification that they

7

will not receive parole under the program. There are approximately 2,700 individuals currently conditionally approved. Any individual who received access

8

to the CAM Refugee/Parole program for whom a final parole determination had not

yet been issued is no longer being considered for parole under the program

9

Q5: Even though DHS is terminating the CAM Parole program, is parole still

10

available to affected individuals?

11

A5: Potentially. This termination of the CAM Parole program does not preclude such individuals from applying for parole consideration independent of the CAM

12

Parole program by filing USCIS Form I-131, Application for Travel Document,

consistent with the instructions for that form. Parole will only be issued on a case-

13

by-case basis and only where the applicant demonstrates an urgent humanitarian or

a significant public benefit reason for parole and that applicant merits a favorable

14

exercise of discretion. Any foreign national may request parole to travel to the

15

United States, but a foreign national does not have a right to parole.

Q6: Why is the program being terminated? 16

A6: Executive Order 13767, Border Security and Immigration Enforcement

17

Improvements, issued on Jan. 25, 2017, instructed DHS to take appropriate action

to ensure that parole is granted “only when an individual demonstrates urgent

18

humanitarian reasons or a significant public benefit derived from such parole.”

19

Former Secretary of Homeland Security John Kelly then issued an implementing

memorandum on Feb. 20, 2017, directing DHS to undertake a review of its parole

20

guidance. Since that time, DHS conducted a careful review of the Central American

Minors (CAM) Parole program and has decided to terminate the program. The

21

decision to terminate the program was made because the CAM Parole program

22

provided parole very broadly and not in accordance with the statu[t]e and the President’s Executive Order.

23

Q7: By eliminating this program, do you anticipate there will be an upswing in

24

the number of UACs [unaccompanied alien children] who attempt to enter the United States illegally?

25

A7: The CAM Refugee program is unaffected by the termination of the CAM

26

Parole program and will continue to provide a means through which vulnerable children in-country may be considered for resettlement to the United States. DHS

27

continues to work with other Executive Branch agencies and the governments of

the Northern Triangle countries and Mexico to discourage irregular migration and

28

secure the U.S. southern border.

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1

. . . .

2

Q10: What percentage of those approved under CAM were refugees vs

parolees?

3

A10: As of July 13, 2017, 7,306 CAM applicants had been interviewed by USCIS.

4

Of the cases that have been issued decisions, 30% have been approved as refugees,

69% have been recommended for parole, and 1% were denied for both refugee

5

status and parole.

6

. . . .

Q14: How does eliminating the CAM Parole program contribute to the

7

security and prosperity of the Northern Triangle? Or the United States?

8

A14: The decision to terminate the CAM Parole program was made by the Acting

Secretary of Homeland Security as a result of the program review undertaken

9

following issuance of Executive Order 13767, Border Security and Immigration

10

Enforcement Improvements. DHS recognizes the need to make progress on

economic and security priorities, and is currently working with U.S. interagency,

11

foreign, and non-government counterparts on next steps for engagement to advance

objectives and deliverables from the June 15–16 Conference on Prosperity and

12

Security in Central America.

13

Q15: Are there any other meaningful routes of relief for these individuals? Is

humanitarian parole a realistic option? 14
A15: The termination of CAM parole does not impact the CAM Refugee program,

15

which continues to assist vulnerable children in-country who qualify as refugees.

Additionally, the termination of the CAM Parole program does not preclude

16

individuals from applying for parole consideration by following the standard parole

17

application process. USCIS will still consider such applications for parole on a case-by-case basis and will authorize parole only where the applicant demonstrates

18

an urgent humanitarian or a significant public benefit reason for parole and merits a

favorable exercise of discretion.

19

Q16: For applicants who were conditionally approved, wasn’t it determined

20

that they are at significant risk? Does the United States believe that these

children are no longer in danger?

21

A16: The review and subsequent termination of the CAM Parole Program is

22

unrelated to the risk of harm that USCIS evaluates within each CAM Parole case.

Additionally, the termination of the CAM Parole program does not preclude

23

individuals from applying for parole consideration by following the standard parole

24

application process. USCIS will still consider such applications for parole on a case-by-case basis and will authorize parole only where the applicant demonstrates

25

an urgent humanitarian or a significant public benefit reason for parole and merits a

favorable exercise of discretion.83

26

27
83 Id. at 2–6 (AR000045–49). 28

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1

USCIS told CAM Program participants that the termination of the CAM Parole Program did

2 not preclude them from applying for parole independent of the Program by filing a USCIS Form

3 I-131.84 USCIS told participants that “[p]arole will only be issued on a case-by-case basis and only

4 where the applicant demonstrates by filing USCIS Form I-131, an urgent humanitarian or a

5 significant public benefit reason for parole and that the applicant merits a favorable exercise of

6 discretion.”85 USCIS additionally told participants that they could submit a Request for Review of

7 their denied refugee cases within 90 days of when their conditional offer of parole was rescinded,

8 even if their RFRs would have otherwise been untimely.86 USCIS additionally told participants

9 that it would refund them for any expenses they may have paid for travel arrangements or for

10 medical exams that had not been completed (but not for medical exams that had been

11 completed).87

12

13

STANDARD OF REVIEW

14 1. Administrative Procedure Act Claims

15

The APA provides that “[a] person suffering legal wrong because of agency action, or

16 adversely affected or aggrieved by agency action within the meaning of a relevant statute, is

17 entitled to judicial review thereof.” 5 U.S.C. § 702. The challenged agency action (if not made

18 reviewable by statute) must be a “final agency action for which there is no other adequate remedy

19 in a court[.]” 5 U.S.C. § 704; see Navajo Nation v. Dep’t of the Interior, 876 F.3d 1144, 1171 (9th

20 Cir. 2017) (“§ 704’s requirement that to proceed under the APA, agency action must be final or

21

22 84 U.S. Citizenship & Immigration Servs., U.S. Dep’t of Homeland Sec., Central American Minors

23

(CAM): Information for Parole Applicants (Aug. 16, 2017) (August 2017 Info Sheet) – ECF No. 33-6 at 2 (AR000036); Form Letter from U.S. Citizenship & Immigration Servs. to CAM Program

24 Beneficiaries (Rescission Form Letter) – ECF No. 33-46 at 2–3 (AR000454–55).

85 August 2017 Info Sheet – ECF No. 33-6 at 3 (AR000036); accord Rescission Form Letter – ECF

25 No. 33-46 at 2–3 (AR000454–55).

26

86 August 2017 Info Sheet – ECF No. 33-6 at 4 (AR000037); Rescission Form Letter – ECF No. 33-46 at 2 (AR000454).

27 87 August 2017 Info Sheet – ECF No. 33-6 at 4 (AR000037); Rescission Form Letter – ECF No. 33-46
at 2 (AR000454). 28

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1 otherwise reviewable by statute is an independent element without which courts may not

2 determine APA claims.”). To constitute a “final agency action,” two conditions must be met:

3 “‘first, the action must mark the consummation of the agency’s decision making process . . . it

4 must not be of a merely tentative or interlocutory nature. And second, the action must be one by

5 which rights or obligations have been determined, or from which legal consequences will flow.’”

6 Gallo Cattle Co. v. U.S. Dep't of Agric., 159 F.3d 1194, 1198–99 (9th Cir. 1998) (ellipsis in

7 original) (quoting W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1196 (9th Cir. 1997)).

8

The APA provides that “[t]he reviewing court shall . . . hold unlawful and set aside agency

9 action, findings, and conclusions found to be — (A) arbitrary, capricious, an abuse of discretion,

10 or otherwise not in accordance with law[.]” 5 U.S.C. § 706(2). “‘Review under the arbitrary and

11 capricious standard is deferential[.]’” Friends of the Santa Clara River v. U.S. Army Corps. of

12 Eng’rs, 887 F.3d 906, 920 (9th Cir. 2018) (quoting Nat’l Ass’n of Home Builders v. Defenders. of

13 Wildlife, 551 U.S. 644, 658 (2007)). “[A court’s] proper role is simply to ensure that the agency

14 made no ‘clear error of judgment’ that would render its action ‘arbitrary and capricious,’ and

15 [courts] require only ‘a rational connection between facts found and conclusions made’ by the

16 defendant agencies.” Id. (some internal quotation marks and internal brackets omitted) (quoting

17 Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008) (en banc), abrogated on other

18 grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008); Conservation Congress v.

19 Finley, 774 F.3d 611, 617 (9th Cir. 2014)). “Accordingly, [courts] will not vacate an agency’s

20 decision unless the agency ‘has relied on factors which Congress has not intended it to consider,

21 entirely failed to consider an important aspect of the problem, offered an explanation for its

22 decision that runs counter to the evidence before the agency, or is so implausible that it could not

23 be ascribed to a difference in view or the product of agency expertise.’” Id. at 921 (some internal

24 quotation marks and internal brackets omitted) (quoting Nat’l Ass’n of Home Builders, 551 U.S. at

25 658); accord Sierra Club v. Bosworth, 510 F.3d 1016, 1022 (9th Cir. 2007) (“[Courts] are ‘not

26 empowered to substitute [their] judgment for that of the agency.’”) (quoting Citizens to Preserve

27 Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on other grounds by California

28 v. Sanders, 430 U.S. 99 (1977)).

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1

“Nevertheless, to withstand review[,] ‘the agency must articulate a rational connection

2 between the facts found and the conclusions reached.’” Sierra Club, 510 F.3d at 1023 (internal

3 brackets omitted) (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156–57 (9th

4 Cir. 2006), abrogated on other grounds by Winter, 555 U.S. 7). “[Courts] will defer to an agency’s

5 decision only if it is ‘fully informed and well-considered,’ and [they] will disapprove of an

6 agency’s decision if it made ‘a clear error of judgment.’” Id. (some internal quotation marks

7 omitted) (quoting Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir. 1988); West v. Sec’y

8 of the Dep’t of Transp., 206 F.3d 920, 924 (9th Cir. 2000)). “Furthermore, when an agency has

9 taken action without observance of the procedure required by law, that action will be set aside.”

10 Id. (citing Idaho Sporting Cong., Inc. v. Alexander, 222 F.3d 562, 567–68 (9th Cir. 2000)).

11

“[W]ith respect to [an] APA claim, [a c]ourt may consider matters outside the pleadings

12 without converting [a m]otion to [d]ismiss to a motion for summary judgment.” Herguan Univ. v.

13 Immigration & Customs Enforcement, 258 F. Supp. 3d 1050, 1063 (N.D. Cal. 2017). “‘When a

14 party seeks review of agency action under the APA before a district court, the district judge sits as

15 an appellate tribunal.’” Id. (internal brackets omitted) (quoting Rempfer v. Sharfstein, 583 F.3d

16 860, 865 (D.C. Cir. 2009)). “In APA cases the administrative record is ‘the whole record,’ which

17 ‘consists of all documents and materials directly or indirectly considered by agency decision-

18 makers.’” Id. at 1063–64 (quoting Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir.

19 1989); Portland Audubon Soc’y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir.

20 1993)). “Accordingly, [a c]ourt may consider the [administrative record], without converting [a

21 motion to dismiss] to a motion for summary judgment.” Id.

22

23 2. Other Claims

24

In evaluating the defendants’ motion to dismiss the plaintiffs’ non-APA claims, the court is

25 limited to considering the complaint, documents incorporated into the complaint by reference, and

26 matters of which it may take judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.

27 308, 322 (2007) (citing 5B Wright & Miller, Federal Practice and Procedure § 1357 (3d ed. 2004

28 and supp. 2007)). The court must accept all well-pleaded factual allegations in the complaint as

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1 true. Id. (citing Leatherman v. Tarrant Cty. Narcotics Intelligence and Coordination Unit, 507

2 U.S. 163, 164 (1993)). The court need not accept as true conclusory allegations in the complaint.

3 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).

4

A complaint must contain a “short and plain statement of the claim showing that the pleader is

5 entitled to relief” to give the defendant “fair notice” of what the claims are and the grounds upon

6 which they rest. See Fed. R. Civ. P. 8(a)(2); Twombly, 550 U.S. at 555. A complaint does not need

7 detailed factual allegations, but “a plaintiff’s obligation to provide the ‘grounds’ of his

8 ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the

9 elements of a cause of action will not do. Factual allegations must be enough to raise a claim for

10 relief above the speculative level[.]” Twombly, 550 U.S. at 555 (citations omitted).

11

To survive a motion to dismiss, a complaint must contain sufficient factual allegations, which

12 when accepted as true, “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

13 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility

14 when the plaintiff pleads factual content that allows the court to draw the reasonable inference that

15 the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a

16 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

17 unlawfully.” Id. (quoting Twombly, 550 U.S. at 557). “Where a complaint pleads facts that are

18 merely consistent with a defendant’s liability, it stops short of the line between possibility and

19 plausibility of ‘entitlement to relief.’” Id. (some internal quotation marks omitted) (quoting

20 Twombly, 550 U.S. at 557).

21

22

ANALYSIS

23 1. Standing

24

Federal-court jurisdiction extends only to “cases” and “controversies.” Raines v. Byrd, 521

25 U.S. 811, 818 (1997). “Standing to sue is a doctrine rooted in the traditional understanding of a

26 case or controversy.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547, (2016). “The ‘irreducible

27 constitutional minimum’ of standing consists of three elements.” Id. (citing Lujan v. Defenders of

28 Wildlife, 504 U.S. 555, 560 (1992)). “The plaintiff must have (1) suffered an injury in fact, (2) that

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1 is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed

2 by a favorable judicial decision.” Id. (citing Lujan, 504 U.S. at 560–61; Friends of the Earth, Inc.

3 v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)). “The plaintiff, as the party

4 invoking federal jurisdiction, bears the burden of establishing these elements.” Id. (citing FW/PBS,

5 Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). “Where, as here, a case is at the pleading stage,

6 the plaintiff must ‘clearly allege facts demonstrating’ each element.” Id. (internal ellipsis omitted)

7 (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). “‘As a general rule, in an injunctive case [a]

8 court need not address standing of each plaintiff if it concludes that one plaintiff has standing.’”

9 Atay v. County of Maui, 842 F.3d 688, 695 (9th Cir. 2016) (quoting Nat’l Ass’n of Optometrists &

10 Opticians LensCrafters, Inc. v. Brown, 567 F.3d 521, 523 (9th Cir. 2009)).

11

The government argues that the beneficiary-children plaintiffs currently residing outside of the

12 United States lack standing.88 The government also argues that CASA lacks standing to pursue

13 relief on its own behalf.89 The government does not dispute that the applicant-parent plaintiffs

14 residing in the United States have standing based on their interests in being reunited with their

15 family members.90 Accord Trump v. Hawaii, 138 S. Ct. 2392, 2416 (2018) (“We agree that a

16 person’s interest in being united with his relatives is sufficiently concrete and particularized to

17 form the basis of an Article III injury in fact.”). As the applicant parents are plaintiffs with respect

18 to all of the claims in the complaint and all of the relief sought, their presence is sufficient to

19 render this case justiciable, and it is unnecessary to address at this juncture whether the

20 beneficiary-children plaintiffs or CASA independently have standing.

21

22

23

24

25 88 Defs. Mot. to Dismiss – ECF No. 32 at 29–30.
26 89 Id. at 30–31. The government does not challenge whether CASA has associational standing to
27 pursue relief on behalf of its members in the United States. Id. at 30. 90 See id. at 29–31.
28

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1 2. Administrative Procedure Act

2

DHS’s termination of the CAM Parole Program can be seen as two related but distinct agency

3 actions: (1) terminating the Program going forward for participants who had never been approved

4 for parole and (2) rescinding conditional approvals of parole that had been made under the

5 Program before its termination. Cf. Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279

6 F. Supp. 3d 1011, 1048–49 (N.D. Cal. 2018) (Regents I) (distinguishing, in case involving

7 government’s attempt to terminate DACA program, between individuals who had received DACA

8 benefits and those who had never obtained benefits), aff’d, 908 F.3d 476 (9th Cir. 2018) (Regents

9 III); Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 437 (E.D.N.Y. 2010) (Batalla Vidal II) (same).

10 The court addresses these agency actions separately. Cf. Catholic Soc. Serv. v. Shalala, 12 F.3d

11 1123, 1128 (D.C. Cir. 1994) (in an APA action challenging an agency rule that may have both

12 prospective and retrospective effects, the court can evaluate the prospective and retrospective

13 portions separately).

14

2.1 Termination of the CAM Parole Program Going Forward

15

The plaintiffs argue that government’s actions in terminating the CAM Parole Program

16 violated the APA for the following reasons:

17

1. the government failed to articulate a satisfactory explanation for its actions, including a

18

rational connection between the facts found and the choice made,91

19

2. the government failed to provide its reasons for its actions in the Federal Register,92

20

3. a failure by the government to take into account “serious reliance interests engendered

21

by longstanding policies” violates the APA, and the government failed to take into

22

account serious reliance interests in the CAM Parole Program,93

23

24

25 91 Pls. Mot. for Prelim. Injunction – ECF No. 24 at 17; see also Pls. Mot. to Dismiss Opp’n – ECF No.
26 34 at 14 (incorporating arguments raised in preliminary-injunction motion).
27 92 Pls. Mot. for Prelim. Injunction – ECF No. 24 at 17. 93 Id. at 17–18 (internal brackets and ellipses omitted).
28

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1

4. a failure by the government to consider “an important part of the problem” violates the

2

APA, and the government failed to consider “an important part of the problem” by

3

failing to consider the country conditions in Northern Triangle countries and the risk

4

that children from those countries face,94 and

5

5. the government’s decision in January or February 2017 to cease processing CAM

6

Parole Program applications, while not publicly announcing that it was terminating the

7

CAM Parole Program, was a “secret shutdown” that violated the APA.95

8

The court addresses each argument in turn.

9

2.1.1 Whether termination violated the APA for failure to articulate a “satisfactory

explanation”

10

11

The plaintiffs argue that an agency must “articulate a satisfactory explanation for its action

12 including a rational connection between the facts found and the choice made.”96

13

“The reviewing court should not attempt itself to make up for [agency] deficiencies.” Motor

14 Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

15 “[Courts] will, however, ‘uphold a decision of less than ideal clarity if the agency’s path may

16 reasonably be discerned.’” Id. (quoting Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419

17 U.S. 281, 286 (1975)). DHS’s reasons for terminating the CAM Parole Program are reasonably

18 discernable here.

19

From its inception, the CAM Program granted parole broadly. Throughout its operation, the

20 Program approved approximately 99% of beneficiaries who were interviewed and considered for

21 parole.97 The Program also was expanding geometrically and approving increasing numbers of

22 beneficiaries for parole.98

23

24 94 Id. at 18.

25 95 Id. at 19–23.
96 Id. at 17 (citing Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 26 U.S. 29, 43 (1983)).

27

97 Guidance issued throughout the life of the CAM Program consistently stated that 96–99% of beneficiaries who were interviewed were approved as refugees or for parole; the majority of

28 beneficiaries were denied refugee status but were approved for parole. November 2015 Guidance –

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1

Following the 2016 presidential election and the change in presidential administrations, the

2 government changed its policy views on parole. In January 2017, President Trump issued

3 Executive Order 13,767, which expressed a policy view that the parole provision in the INA had

4 been “abuse[d]” and that “[i]t is the policy of the executive branch to end the abuse of parole and

5 asylum provisions currently used to prevent the lawful removal of removable aliens.” Exec. Order

6 No. 13,767, 82 Fed. Reg. at 8795. President Trump directed then-Secretary of Homeland Security

7 John Kelly to “take appropriate action to ensure that parole authority under section 212(d)(5) of

8 the INA (8 U.S.C. 1182(d)(5)) is exercised only on a case-by-case basis in accordance with the

9 plain language of the statute[.]” Id. at 8796.

10

11

ECF No. 33-12 at 4 (AR000058) (96% of interviewed beneficiaries were approved as refugees or for 12 parole, 12% as refugees and 84% for parole); February 2016 Guidance – ECF No. 33-14 at 4

(AR000075) (98% of interviewed beneficiaries were approved as refugees or for parole); May 2016

13 Guidance – ECF No. 33-15 at 4 (AR000079) (98% of interviewed beneficiaries were approved as

refugees or for parole); July 2016 Guidance – ECF No. 33-16 at 5–6 (AR000084–85) (99% of 14 interviewed beneficiaries were approved as refugees or for parole, and 60% of beneficiaries who

entered the United States were approved for parole, as compared to 40% approved as refugees);

15 November 2016 Guidance – ECF No. 33-17 at 8 (AR000103) (99% of interviewed beneficiaries were

approved as refugees or for parole).

16

The November 2015 Guidance broke down the approval rates for refugee status versus parole. 12%

17

of interviewed beneficiaries were approved as refugees, November 2015 Guidance – ECF No. 33-12 at 4 (AR000058), and thus would not have been considered for parole. Of the remaining 88% of

18

interviewed beneficiaries who were considered for parole, 84% were approved, which results in a parole-approval rate of approximately 95% (84/88). Later guidance did not break down the approval

19

rates for refugee status versus parole. The 2017 RTQ broken down the approval rates for refugee status versus parole for the life of the CAM Program. 30% of interviewed beneficiaries were approved as

20

refugees, 2017 RTQ – ECF No. 33-9 at 5 (AR000048), and thus would not have been considered for parole. Of the remaining 70% of interviewed beneficiaries who were considered for parole, 69% were

21 approved, which results in a parole-approval rate of approximately 99% (69/70).

98 See November 2015 Guidance – ECF No. 33-12 at 2–4 (AR000056–58) (90 interviews had been 22 conducted, 96% were approved as refugees or for parole (12% as refugees, 84% for parole), and “most

of the approximately 5,000 applications received so far have come in the last three to four

23 months”) (emphasis in original); February 2016 Guidance – ECF No. 33-14 at 2–4 (AR000073–75)

(600 interviews had been conducted, 98% were approved as refugees or for parole, and “most of the 24 approximately 6,500 applications received so far have come in the last six months”); May 2016

Guidance – ECF No. 33-15 at 2–4 (AR000077–79) (1500 interviews had been conducted, 99% were

25 approved as refugees or for parole, and 300 beneficiaries had arrived in the United States, and “[t]he

number of final interviews will increase significantly over the next six months”); July 2016 Guidance 26 – ECF No. 33-16 at 5 (AR000084) (2900 interviews had been conducted, 99% were approved as

refugees or for parole, and “[w]e expect that the number of final interviews will increase significantly

27 over the next six months”); November 2016 Guidance – ECF No. 33-17 at 8 (AR000103) (5500

interviews had been conducted and 99% were approved as refugees or for parole). 28

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1

In February 2017, Secretary Kelly issued a memorandum directing that parole authority should

2 be used “sparingly and only in individual cases where, after careful consideration of the

3 circumstances, parole is necessary because of demonstrated urgent humanitarian reasons or

4 significant public benefit.”99 The Kelly Memo expressed a policy view that “[t]he practice of

5 granting parole to certain aliens in pre-designated categories in order to create immigration

6 programs not established by Congress, has contributed to a border security crisis, undermined the

7 integrity of the immigration laws and the parole process, and created an incentive for additional

8 illegal immigration.”100

9

Following the issuance of the Kelly Memo, DHS conducted a review of the CAM Parole

10 Program.101 DHS found that as of July 13, 2017, the CAM Program had approved 99% of the

11 beneficiaries who had been interviewed as refugees or recommended them for parole (30% as

12 refugees, 69% for parole) and that only 1% had been denied both refugee status and parole.102

13 DHS’s review determined that “the CAM Parole program provided parole very broadly and not in

14 accordance with the statu[t]e and the President’s Executive Order.”103

15

Following that review, DHS decided to terminate the CAM Parole Program and rescind

16 conditional parole approvals for beneficiaries who had not yet entered the United States.104 (It

17 allowed beneficiaries who already had entered the United States to remain for the duration of their

18 authorized parole and additionally allowed beneficiaries who had not entered the United States to

19 apply for parole independent of the CAM Parole Program by filing a Form I-131.105) It recognized

20 that the previous administration had implemented the CAM Parole Program “as part of an

21

22 99 Kelly Memo – ECF No. 33-5 at 10 (AR000030).
23 100 Id.
24 101 See 2017 RTQ – ECF No. 33-9 at 3–4 (AR000046–47).
25 102 Id. at 5 (AR000048). 103 Id. at 4 (AR000047).
26 104 Id. at 3–4 (AR000046–47). DHS continued to allow affected individuals to apply for parole 27 independent of the CAM Parole Program. Id.
105 2017 RTQ – ECF No. 33-9 at 4–5 (AR000047–48). 28

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1 integrated strategy to address factors contributing to increases in migration from Central America

2 to the United States,” but it noted that “as indicated by [President Trump’s] executive order, DHS

3 is pursuing a new strategy to secure the U.S. southern border.”106

4

There is “a rational connection between facts found and conclusions made” by DHS. Cf.

5 Friends of the Santa Clara River, 887 F.3d at 920 (“[Courts] require only ‘a rational connection

6 between facts found and conclusions made’ by the defendant agencies.”). The facts found were

7 that the CAM Parole Program was granting parole to virtually all beneficiaries who were

8 interviewed. The conclusion made was that doing so was not in keeping with the new

9 administration’s view of the parole statute and its policies on immigration. Whether the court

10 agrees or disagrees with the government’s conclusion, it is “not empowered to substitute [its]

11 judgment for that of the agency,” Sierra Club, 510 F.3d at 1022, and it cannot say that the

12 agency’s actions were arbitrary or capricious.

13

The plaintiffs cite to cases where courts have found that the government’s attempts to

14 terminate aspects of the Deferred Action for Childhood Arrivals (“DACA”) or the Temporary

15 Protected Status (“TPS”) programs were arbitrary and capricious under the APA and argue that the

16 termination of the CAM Parole Program similarly violates the APA. Those situations are distinct

17 and distinguishable.

18

Under the DACA program, DHS declined to pursue removal proceedings against

19 undocumented immigrants who came to the United States as children, have clean criminal records,

20 and meet various educational or military-service requirements. Regents III, 908 F.3d at 489–90. In

21 addition to the deferral of removal itself, the DACA program allowed deferred-action recipients to

22 apply for employment authorization, enabling them to work legally, pay taxes, and participate in

23 the mainstream economy. Id. at 490. DHS, under the Trump Administration, rescinded the DACA

24 program. Id. at 491–92. Critically, DHS did not claim it was rescinding the DACA program

25 because it disagreed with DACA on policy grounds. See id. Instead, it claimed that it was doing so

26

27
106 2017 Leadership Guidance – ECF No. 33-33 at 2 (AR000182). 28

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1 only because court decisions striking down a different program (the Deferred Action for Parents of

2 Americans program) had left it unable to legally defend DACA. Id. at 500–03 (“[T]he Acting

3 Secretary [of Homeland Security] based the rescission of DACA solely on a belief that DACA

4 was beyond the authority of DHS.”); accord Batalla Vidal v. Duke, 295 F. Supp. 3d 127, 148

5 (E.D.N.Y. 2017) (Batalla Vidal I) (“In deciding to rescind the DACA program, Defendants

6 expressly and exclusively relied on a legal determination that the program was unlawful and could

7 not be sustained in court.”); NAACP v. Trump, 298 F. Supp. 3d 209, 237 (D.D.C. 2018) (“[T]he

8 Department [of Homeland Security] never stated, and the government does not now contend, that

9 DACA’s rescission reflected a change in the agency’s immigration enforcement priorities.”),

10 appeal docketed, No. 18-5243 (D.C. Cir. filed Aug. 10, 2018).

11

By claiming that court decisions had left the DACA program legally unsupportable — instead

12 of saying that it disagreed with DACA based on its own policy choices — DHS tried to rescind

13 the program (which is popular and supported by a majority of Americans) without taking political

14 responsibility for doing so. The DACA courts that have held that DHS’s attempts to terminate

15 DACA were arbitrary and capricious did so in large part because DHS tried to blame the courts for

16 its decision instead of assuming responsibility and accountability itself. As the Ninth Circuit

17 explained:

18

[P]ublic accountability for agency action can only be achieved if the electorate

knows how to apportion the praise for good measures and the blame for bad ones.

19

Without knowing the true source of an objectionable agency action, “the public

20

cannot ‘determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.’” . . . .

21

. . . . When an agency justifies an action solely with an assertion that the law

22

prohibits any other course, it shifts responsibility for the outcome from the Executive Branch to Congress (for making the law in question) or the courts (for

23

construing it). If the Executive is correct in its interpretation of the law, then the

public is correct to blame the other two branches for any resulting problems. But if

24

the Executive is wrong, then it avoids democratic accountability for a choice that

25

was the agency’s to make all along. . . . “[A]n official cannot claim that the law ties her hands while at the same time denying the courts’ power to unbind her. She may

26

escape political accountability or judicial review, but not both.”

27

28

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1 Regents III, 908 F.3d at 498–99 (citations omitted); accord Batalla Vidal II, 279 F. Supp. 3d at

2 421 (“This rule . . . ensures that agencies are accountable for their decisions: If an agency makes a

3 decision on policy grounds, it must say so, not act as if courts have tied its hands.”).

4

Here, by contrast, the government and DHS are assuming accountability and responsibility for

5 terminating the CAM Parole Program on policy grounds. This is a crucial distinction. President

6 Trump announced his new policy on parole in Executive Order 13,767: “It is the policy of the

7 executive branch to end the abuse of parole and asylum provisions currently used to prevent the

8 lawful removal of removable aliens.” Exec. Order 13,767, 82 Fed. Reg. at 8795. Secretary Kelly

9 similarly memorialized that DHS policy’s views were that “[t]he practice of granting parole to

10 certain aliens in pre-designated categories in order to create immigration programs not established

11 by Congress, has contributed to a border security crisis, undermined the integrity of the

12 immigration laws and the parole process, and created an incentive for additional illegal

13 immigration.”107 The government recognized that it was changing policy qua policy.108 The issue

14 that was present in the DACA cases — trying to shift responsibility to the courts for the decision

15 to rescind a popular program instead of the agency itself claiming responsibility — is not present

16 in the same way here.

17

Another factor that distinguishes this case from the DACA cases is that (in the opinion of

18 many DACA courts), the government’s legal assessment and analyses of DACA were wrong as a

19 matter of law. Regents III, 908 F.3d at 510 (“[B]ecause the Acting Secretary [of Homeland

20 Security] was . . . incorrect in her belief that DACA was illegal and had to be rescinded, plaintiffs

21 are likely to succeed in demonstrating that the rescission must be set aside.”); Batalla Vidal II, 279

22 F. Supp. 3d at 420–27 (“To the extent the decision to end the DACA program was based on the

23 Attorney General’s determination that the program is unconstitutional, that determination was

24

25 107 Kelly Memo – ECF No. 33-5 at 10 (AR000030).
26 108 See 2017 Leadership Guidance – ECF No. 33-33 at 2 (AR000182) (“The CAM Parole program was implemented as part of an integrated strategy to address factors contributing to increases in migration
27 from Central America to the United States. However, as indicated by the executive order, DHS is pursuing a new strategy to secure the U.S. southern border.”).
28

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1 legally erroneous, and the decision was therefore arbitrary and capricious. . . . This conclusion was

2 also arbitrary and capricious because it is based on an obvious factual mistake.”); but see Casa de

3 Md. v. U.S. Dep’t of Homeland Sec., 284 F. Supp. 3d 758, 772–73 (D. Md. 2018) (holding that it

4 was not arbitrary and capricious for the government to rescind DACA based on the belief that

5 DACA was legally unsupportable in light of court decisions). By relying on legal analyses that

6 were wrong as a matter of law, the government’s decision to rescind DACA was necessarily

7 arbitrary and capricious. Regents III, 908 F.3d at 505 (“[I]t is black letter law that where an agency

8 purports to act solely on the basis that a certain result is legally required, and that legal premise

9 turns out to be incorrect, the action must be set aside, regardless of whether the action could have

10 been justified as an exercise of discretion.”) (emphasis in original); Batalla Vidal II, 279 F. Supp.

11 3d at 420 (“An agency decision that is based on an erroneous legal premise cannot withstand

12 arbitrary-and-capricious review.”). In this case, the plaintiffs have not identified a similarly fatally

13 flawed legal assessment or analysis by the government. DHS has expressed its view that the better

14 interpretation of the statutory language of the parole statute is that it “appears to strongly counsel

15 in favor of using the parole authority sparingly and only in individual cases where, after careful

16 consideration of the circumstances, parole is necessary because of demonstrated urgent

17 humanitarian reasons or significant public benefit.”109 That interpretation is not flawed in the same

18 way that — according to the DACA courts — DHS’s interpretation of the legality of DACA was

19 flawed. In construing a predecessor version of the parole statute (that did not include the “case-by-

20 case” requirement that the current version does), the Ninth Circuit held

21

The legislative history of the parole provision indicates that Congress intended that

temporary admission be granted infrequently. . . . [“]The parole provisions were

22

designed to authorize the Attorney General to act only in emergent, individual, and

23

isolated situations, such as the case of an alien who requires immediate medical attention, and not for the immigration of classes or groups outside of the limit of

24

the law.[”]

25

26

27
109 Kelly Memo – ECF No. 33-5 at 10 (AR000030). 28

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1 Mason v. Brooks, 862 F.2d 190, 194 (9th Cir. 1988) (quoting S. Rep. No. 748, 89th Cong., 1st

2 Sess. (1965), reprinted in 1965 U.S.C.C.A.N. 3328, 3335).110 Congress reemphasized this view of

3 parole when it amended the parole statute to restrict the government’s discretion to approve parole

4 “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” Illegal

5 Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, tit.

6 VI, subtit. A, § 602(a), 110 Stat. 3009, 3009-689 (1996) (amending 8 U.S.C. § 1182(d)(5)(A)).

7 According to the House Judiciary Committee, this change was made because

8

[t]he text of section 212(d)(5) [8 U.S.C. § 1182(d)(5)] is clear that the parole

authority was intended to be used on a case-by-case basis to meet specific needs,

9

and not as a supplement to Congressionally-established immigration policy. In

10

recent years, however, parole has been used increasingly to admit entire categories of aliens who do not qualify for admission under any other category in immigration

11

law, with the intent that they will remain permanently in the United States. This

contravenes the intent of section 212(d)(5), but also illustrates why further, specific

12

limitations on the Attorney General’s discretion are necessary.

13 H.R. Rep. No. 104-469, at 140 (1996). The court cannot say that DHS’s view — that the parole

14 statute counsels in favor of awarding parole sparingly — is legally erroneous, or that its decision

15 to terminate a program that awarded parole broadly was based on a flawed legal analysis in the

16 same way that its attempt to terminate DACA were.111

17

The plaintiffs analogize to the TPS cases, but those are distinguishable too. The TPS program

18 is a humanitarian program that authorizes DHS to temporarily permit nationals from certain

19 countries to live and work in the United States when an ongoing armed conflict, environmental

20 disaster, or other conditions prevent the safe return of those persons to their country of origin. See

21 8 U.S.C. § 1254a(b)(1)(A)–(C). Prior administrations (both Republican and Democratic) evaluated

22

23 110 The version of the parole statute in effect at the time that Mason was decided read, “[t]he Attorney

24

General may . . . in his discretion parole into the United States temporarily, under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien

25

applying for admission to the United States.” Mason, 862 F.2d at 194 (ellipsis in original) (quoting 8 U.S.C. § 1182(d)(5) (1988)).

26 111 The court expresses no opinion about whether the parole statute prohibits a program such as the
CAM Parole Program, which awarded parole broadly. It holds only that the Trump Administration’s 27 view — that programs that award parole broadly are not consistent with the Administration’s reading
of the parole statute and thus should be terminated — is not based on a legally erroneous analysis. 28

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1 whether to extend TPS status for countries beyond the period of their initial designation by

2 considering both the originating conditions that led to the countries’ initial designations and

3 subsequent intervening events that prevented safe return of the countries’ nationals. See Ramos v.

4 Nielsen, 321 F. Supp. 3d 1083, 1110–12 & nn.18–22 (N.D. Cal. 2018) (Ramos I). In a break from

5 past practice, in evaluating TPS designations, the Trump Administration allegedly shifted to

6 considering only whether the originating conditions had abated and stopped considering

7 subsequent intervening events. Id. at 1109–15. It then used that shift to de-designate four countries

8 (Sudan, Haiti, Nicaragua, and El Salvador) from TPS status. Id. Critically, DHS did not

9 acknowledge that it was changing how it was evaluating TPS status and gave no explanation for

10 the change. Id. at 1116. Courts have held that this could constitute an APA violation because

11 “[t]he APA constrains an agency’s ability to change its practices or policies without

12 acknowledging the change or providing an explanation.” Id. at 1108, 1116; Ramos v. Nielsen, __

13 F. Supp. 3d __, No. 18-cv-01554-EMC, 2018 WL 4778285, at *10 (N.D. Cal. Oct. 3, 2018)

14 (Ramos II) (finding that plaintiffs had pleaded an APA claim because “[t]he alleged changes in

15 policy — eliminating consideration of intervening conditions not directly related to the originating

16 condition — [are] substantive and highly consequential . . . . [but t]here is no dispute that DHS

17 never acknowledged any change in practice and thus has not provided any explanation for any

18 such change”), appeal docketed, No. 18-16981 (9th Cir. filed Oct. 12, 2018); accord Centro

19 Presente v. U.S. Dep’t of Homeland Sec., 332 F. Supp. 3d 393, 416–17 (D. Mass. 2018) (same).

20 Here, by contrast, DHS acknowledged that it was changing policy and explained why.112 The

21 challenges raised in the context of the TPS program do not apply in the same way here.

22

DHS’s termination of the CAM Parole Program does not violate the APA for lack of a

23 satisfactory explanation.

24

25

26

27 112 See Exec. Order No. 13,767, 82 Fed. Reg. at 8795–96; Kelly Memo – ECF No. 33-5 at 2
(AR000022), 10 (AR000030). 28

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1

2.1.2 Whether termination violated the APA for failure to provide explanations in

the Federal Register

2

3

The plaintiffs fault DHS for not providing its reasons for terminating the CAM Parole Program

4 in the Federal Register notice announcing the termination of the Program.113

5

In reviewing agency action to determine whether it is arbitrary or capricious, a court is not

6 limited to the Federal Register. The APA provides that courts must review “the whole record,”

7 5 U.S.C. § 706, which “‘consists of all documents and materials directly or indirectly considered

8 by agency decision-makers,’” Herguan Univ., 258 F. Supp. 3d at 1064 (quoting Thompson, 885

9 F.2d at 555); see Dist. Hosp. Partners, L.P. v. Sebelius, 794 F. Supp. 2d 162, 171 (D.D.C. 2011)

10 (rejecting suggestion to look solely to the Federal Register because “[t]o review an agency’s action

11 fairly, the Court should have before it neither more nor less information than did the agency when

12 it made its decision[,] and so the APA requires review of ‘the whole record’”) (emphasis in

13 original, internal brackets and ellipsis omitted) (quoting Walter O. Boswell Mem’l Hosp. v.

14 Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984)). DHS’s reasons for terminating the CAM Parole

15 Program are readily discernable from the whole record, and the plaintiffs cite no authorities to

16 support their argument that the government’s failure to list those reasons in its Federal Register

17 notice renders its decision arbitrary or capricious.

18

Agency rules that are subject to the notice-and-comment provisions of 5 U.S.C. § 553 are

19 subject to certain Federal Register reporting requirements. The notice-and-comment provisions do

20 not apply to the CAM Parole Program’s termination, however. First, the CAM Parole Program

21 was not created through notice and comment, which suggests that its termination does not require

22 notice and comment either. Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 273 (E.D.N.Y. 2018)

23 (Batalla Vidal III) (“Plaintiffs’ view that Defendants must use notice and comment to stop what

24 started without notice and comment is not only counterintuitive, but also at odds with the general

25 principle that the procedures needed to repeal or amend a rule as the same ones that were used to

26

27 113 Pls. Mot. for Prelim. Injunction – ECF No. 24 at 17; Pls. Mot. to Dismiss Opp’n – ECF No. 34 at
16–17. 28

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1 make the rule in the first place.”) (citing Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1206

2 (2015)); cf. Regents III, 908 F.3d at 513 (“The district court held that because DACA itself was a

3 general statement of policy that did not require notice and comment, it could also be rescinded

4 without those procedures. This proposition finds support in Mada-Luna, in which we concluded

5 that a deferred-action Operating Instruction constituted a general statement of policy, and thus

6 could be validly repealed and superseded without notice-and-comment proceedings.”) (internal

7 quotation marks and brackets omitted) (quoting Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1017

8 (9th Cir. 1987)). Second, the termination of the CAM Parole Program does not foreclose parole as

9 a general matter — individuals may apply for parole by filing a Form I-131, and the government

10 may continue to grant parole on a case-by-case basis — and the termination thus does not effect a

11 new binding rule of substantive law that would be subject to notice and comment. Cf. Regents III,

12 908 F.3d at 513–14 (a rescission of DACA that “leaves in place the background principle that

13 deferred action is available on a case-by-case basis. . . . is not a ‘new binding rule of substantive

14 law’” that requires notice-and-comment) (some internal quotation marks omitted) (citing Mada-

15 Luna, 813 F.2d at 1014).

16

DHS’s termination of the CAM Parole Program does not violate the APA for failure to provide

17 its explanations in the Federal Register.

18

2.1.3 Whether termination violated the APA for failure to take into account

“serious reliance interests” 19

20

The plaintiffs argue that agency action is arbitrary and capricious if the agency fails to take

21 into account the “serious reliance interests engendered by longstanding policies,” citing Encino

22 Motorcars LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016), and FCC v. Fox Television Studios,

23 Inc., 556 U.S. 502, 515 (2009).114 Neither side addresses what the standard is for determining what

24 reliance interests are “serious” or how much the agency must take them into account.115

25

26 114 Pl. Mot. for Prelim. Injunction – ECF No. 24 at 17 (internal brackets and ellipses omitted).

27

115 The D.C. Circuit addressed this issue in the context of an environmental permit where the regulated party and other interested parties submitted public comments to the agency (the EPA) in favor of or

28 against the permit. The D.C. Circuit held that “‘the extent to which an agency is obliged to address

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1

CAM Parole Program participants who had not been conditionally approved for parole (for

2 themselves, in the case of beneficiaries, or for their family members, in the case of applicants), and

3 individuals who never applied to the Program, do not have a “serious reliance interest” in being

4 approved for parole. Parole is at the discretion of DHS, 8 U.S.C. § 1182(d)(5)(A), and an

5 application for parole that has not been approved does not engender a reliance interest. See Wong

6 v. United States, 373 F.3d 952, 968 (9th Cir. 2004) (“The INA does not create any liberty interest

7 in temporary parole that is protected by the Fifth Amendment. Rather, the statute makes clear that

8 whether and for how long temporary parole is granted are matters entirely within the discretion of

9 the [Secretary of Homeland Security].”); Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland

10 Sec., 298 F. Supp. 3d 1304, 1310 (N.D. Cal. 2018) (Regents II) (“Our court of appeals has

11 accordingly held there is no protected interest in temporary parole, since such relief is ‘entirely

12 within the discretion of the [Secretary of Homeland Security].’”) (quoting Wong, 373 F.3d at 967–

13 68), aff’d, Regents III, 908 F.3d 476.

14

To the extent that the plaintiffs argue that parole may be discretionary in theory but that in

15 practice, the CAM Parole Program awarded parole (or refugee status) in 99% of cases and

16 participants therefore had a right to rely on an expectation that they would be awarded parole, their

17 argument fails. As the plaintiffs acknowledge, USCIS told participants that applications would be

18 considered for parole “on a case-by-case basis,”116 and nothing in the CAM Parole Program

19 materials suggested that parole was guaranteed. A liberal award of parole in the past under the

20 Program does not create a “serious reliance interest” in being approved for parole under the

21

22 reliance will be affected by the thoroughness of public comments it receives on the issue. An agency

23

cannot be faulted for failing to discuss at length matters only cursorily raised before it.’” Mingo Logan Coal Co. v. EPA, 829 F.3d 710, 722 (D.C. Cir. 2016) (internal brackets and ellipsis omitted) (quoting

24

Encino Motorcars, 136 S. Ct. at 2128 n.2 (Ginsburg, J., concurring)). It is not clear how to apply that standard here, where the agency action was not subject to public comment in the same way. The

25

standard suggests, however, that the “serious reliance interests” test operates on a sliding scale — the greater the reliance interests, the greater the agency’s obligation to take them into account, and the

26

lesser the reliance interests, the lesser the agency’s obligation — and further suggests that the agency should not be faulted for failing to raise and address sua sponte reliance interests that are less serious.

27 116 Compl. – ECF No. 1 at 13 (¶ 38); Pls. Mot. for Prelim. Injunction – ECF No. 24 at 11; Pls. Mot. to
Dismiss Opp’n – ECF No. 34 at 16, 24. 28

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1 Program that DHS had to take into account. See Regents II, 298 F. Supp. 3d at 1311 (“An

2 agency’s past practice of generally granting a government benefit is also insufficient to establish a

3 legal entitlement.”) (citing Gerhart v. Lake Cty., 637 F.3d 1013, 1020 (9th Cir. 2011)); Garcia-

4 Mir v. Meese, 788 F.2d 1446, 1451 (11th Cir. 1986) (fact that government may have generously

5 granted discretionary parole in the past does not give rise to an entitlement to parole); cf. Regents

6 III, 908 F.3d at 515 (“[A] 99% renewal rate under DACA provides no evidence that the

7 government shared an understanding that the DACA program would continue existing indefinitely

8 to provide such renewals.”).

9

To the extent that the plaintiffs argue that CAM Parole Program participants relied on the

10 opportunity to apply for parole (as opposed to a right to receive parole), the plaintiffs have not

11 pleaded why the termination of the Program implicates “serious reliance interests.” Participants

12 can still apply for parole by filing a Form I-131. The plaintiffs have not shown that a reliance

13 interest in the CAM Parole Program in particular (as opposed to other opportunities to apply for

14 parole) was a “serious reliance interest” that DHS had to take into account. Also, the plaintiffs do

15 not establish how DHS did not sufficiently take into account those reliance interests by allowing

16 participants to apply for parole through a different mechanism, a Form I-131. See Termination of

17 the Central American Minors Parole Program, 82 Fed. Reg. at 38,927.

18

To the extent that the plaintiffs argue that CAM Parole Program participants who did not

19 receive a decision on their applications had “serious reliance interests” because they paid costs to

20 participate in the Program, the court disagrees. There were no fees to apply to the CAM Parole

21 Program.117 Parents had to pay the cost of DNA testing, but USCIS refunded those costs if DNA

22

23 117 See Media Note, Office of the Spokesperson, U.S. Dep’t of State, Launch of In-Country Refugee/
24 Parole Program for Children in El Salvador, Guatemala, and Honduras with Parents Lawfully
Present in the United States (Dec. 3, 2014) (December 2014 Media Note) – ECF No. 33-10 25 (AR000051) (“Parents do not need to pay any fee to file [a CAM Program application] or for
assistance in completing and submitting the form, but they are expected to cover the initial costs of 26 DNA testing to confirm claimed biological parent-child relationships. Costs of DNA testing are
reimbursable under certain circumstances.”); Fact Sheet, Office of the Spokesperson, U.S. Dep’t of 27 State, Fact Sheet: Expansion of the Central American Minors (CAM) Program (Nov. 1, 2016) – ECF
No. 33-18 at 3 (AR000107) (“There are no fees to file a [CAM Program application].”). 28

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1 testing confirmed a familial relationship (and the plaintiffs do not allege that they were denied

2 refunds of DNA-testing costs).118 Participants incurred costs for medical exams and travel

3 arrangements only after USCIS conditionally approved beneficiaries for parole, so participants

4 who did not receive a decision did not incur those costs.119

5

Participants did incur costs for tolls, gas, and food to travel to their country capitals.120 While

6 these costs might be consequential for participants, the court concludes that they do not create a

7 “serious reliance interest” that DHS had to take into account. The costs were discrete, short-term

8 costs. If these isolated costs were “serious reliance interests,” then every agency action potentially

9 would be subject to an APA challenge on a theory that the agency failed to take into account some

10 cost that someone, somewhere, might have incurred because of an agency program. Cf. Encino

11 Motorcars, 136 S. Ct. at 2126 (discussing “serious reliance interests” in the context of

12 “longstanding policies” and, specifically, a labor-law regulatory interpretation that was in place for

13 over two decades; a chanced interpretation “could necessitate systemic, significant changes” to

14 employment agreements throughout an industry); Regents I, 279 F. Supp. 3d at 1046 (discussing

15 “serious reliance interests” in the context of DACA over the course of years); Batalla Vidal II, 279

16 F. Supp. 3d at 431 (same).

17

DHS’s termination of the CAM Parole Program going forward does not violate the APA for

18 failure to take into account “serious reliance interests.”

19

20

21

One plaintiff whose application was not conditionally approved for parole claimed that he paid

22

certain “program fees,” Compl. – ECF No. 34 (¶ 102), without further elaborating what those fees were. There is nothing in the complaint or the administrative record that indicates that DHS knew

23

about those fees, and DHS cannot be faulted for not addressing unknown reliance interests. See generally Mingo Logan Coal, 829 F.3d at 722.

24 118 Compl. – ECF No. 1 at 15 (¶ 42(c)).

25 119 See id. at 16 (¶ 42(f)–(g)). 120 Id. at 34 (¶ 102) (“A.B. spent approximately $100 for each of four trips his son had to make to San
26 Salvador for CAM-related appointments.”), 38 (¶ 118) (“Each time H.F., A.F., and their mother
traveled to Tegucigalpa in connection with CAM — a nearly four-hour trip that required them to leave 27 their house around 3:00 AM — J.F. sent them $200 to cover the costs of the trip, including tolls, gas,
and food.”). 28

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1

2.1.4 Whether termination violated the APA for failure to “consider an important

aspect of the problem”

2

3

The plaintiffs argue that agency action is arbitrary and capricious if the agency “entirely failed

4 to consider an important aspect of the problem.”121 Neither side addresses the standard for

5 determining “the problem” and its “important aspects.”

6

In the Ninth Circuit, “[w]hether an agency has overlooked ‘an important aspect of the

7 problem’ . . . turns on what a relevant substantive statute makes ‘important.’” Or. Nat. Res.

8 Council v. Thomas, 92 F.3d 792, 798 (9th Cir. 1996). As one court noted, citing the Ninth Circuit,

9 “[a]n ‘important aspect of the problem’ is not simply whatever plaintiffs would like the [agency]

10 to consider. . . . The court is not free to invent ‘important’ things out of thin air and require the

11 agency to consider them. It may only ensure that the agency’s decision is supported by reasoned

12 judgment and that the agency considered the factors it was required by law to consider.” N.C. Bus.

13 Enters. Program v. United States, 110 Fed. Cl. 354, 363 (2013) (citing Or. Nat. Res. Council, 92

14 F.3d at 798).

15

The plaintiffs argue that “important aspect[s] of the problem” are (1) reliance interests and

16 (2) conditions in the Northern Triangle countries.122 The court addressed the first issue in the

17 previous section. Regarding the second issue, the plaintiffs argue that “conditions in the Northern

18 Triangle that led to the inception of the CAM program have only worsened” and that “[t]hese

19 country conditions predictably result in Central American children undertaking the dangerous

20 journey by land to the United States and seeking relief at the border,” and the defendants failed to

21 consider these factors.123

22

The parole statute, 8 U.S.C. § 1182(d)(5)(A), vests the Secretary of Homeland Security with

23 discretion over parole decisions. It expressly limits the Secretary to granting parole “only on a

24

25 121 Pls. Mot. for Prelim. Injunction – ECF No. 24 at 17 (citing Motor Vehicle Mfrs., 463 U.S. at 42–
26 43).
27 122 Id. at 17–18. 123 Id. at 18; Pls. Mot. to Dismiss Opp’n – ECF No. 34 at 16.
28

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1 case-by-case basis” for urgent humanitarian reasons or significant public benefit. 8 U.S.C.

2 § 1182(d)(5)(A); see Pub. L. No. 104-208, div. C, tit. VI, subtit. A, § 602(a), 110 Stat. at 3009-689

3 (adding the “only on a case-by-case basis” requirement). It does not otherwise require the

4 Secretary to consider any particular factors or mandate how the Secretary must weigh competing

5 interests. Among other things, it does not require the Secretary to consider (1) the general country

6 conditions in the Northern Triangle or any other country or (2) whether Central American minors

7 would otherwise decide to journey by land to the United States — neither of which is a “case-by-

8 case basis” — in deciding what procedures she will establish or terminate for parole applications.

9 The previous administration might have weighed these considerations more heavily in establishing

10 the CAM Parole Program, but that does not obligate future administrations to consider and weigh

11 them similarly. Cf. Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 968 (9th Cir.

12 2015) (en banc) (“[Agency] was entitled in 2003 to give more weight to socioeconomic concerns

13 than it had in 2001, even on precisely the same record. . . . There was a change in presidential

14 administrations just days after the [] Rule was promulgated in 2001. Elections have policy

15 consequences.”).

16

DHS’s termination of the CAM Parole Program does not violate the APA for failure to

17 consider “important aspects of the problem.”

18

2.1.5 Whether DHS’s decision to stop processing CAM Program applications from

January 2017 to August 2017 was a “secret shutdown” of the Program that

19

violated the APA

20

DHS stopped processing CAM Program applications between January 2017 but did not

21 announce the termination of the CAM Parole Program until August 2017. The plaintiffs

22 characterize this as a “secret shutdown” of the Program that was arbitrary and capricious and

23 violated the notice requirements in 5 U.S.C. § 552. Even if this were the case, DHS’s subsequent

24 public termination of the CAM Parole Program in August 2017 moots that challenge, at least with

25 respect to DHS’s decision to terminate the Program going forward. See Util. Air Regulatory Grp.

26 v. EPA, 744 F.3d 741, 750 (D.C. Cir. 2014) (holding that challenges to agency’s failure to provide

27 notice of new rule were mooted by agency’s later re-promulgation of the rule with notice, even if

28 the two rules were identical) (citing Nat. Res. Def. Council, Inc. v. U.S. Nuclear Regulatory

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1 Comm’n, 680 F.2d 810, 813–14 (D.C. Cir. 1982)). The standard relief for an APA challenge is to

2 set aside the unlawful agency action. 5 U.S.C. § 706(2). Setting aside DHS’s “secret shutdown” of

3 the CAM Parole Program in January 2017 would afford the plaintiffs no relief in light of DHS’s

4 public termination of the Program in August 2017. The plaintiffs’ objections to the “secret

5 shutdown,” as they relate to the termination of CAM Parole Program going forward, are moot.

6

2.2 Rescinding Conditional Approvals of Parole

7

The analysis is different with respect to DHS’s decision to rescind all conditional approvals of

8 parole that it issued before it terminated the CAM Parole Program in August 2017. Program

9 participants who received conditional approvals of parole (and made arrangements based on those

10 approvals) had more serious reliance interests than individuals who never received approvals. The

11 court holds that DHS’s failure to take into account and address those more serious reliance

12 interests when it mass-rescinded parole for those participants was arbitrary and capricious.

13

The government first argues that those participants do not have reliance interests because their

14 parole approvals were only “conditional.”124 But as the plaintiffs plead in their complaint and as

15 the administrative record confirms, the only steps following conditional approval to travel to the

16 United States and be fully paroled were nondiscretionary ones: the completion of a medical exam,

17 final security checks, and making travel arrangements.125 (By contrast, participants who had never

18

19 124 Defs. Mot. to Dismiss – ECF No. 32 at 11; Defs. Mot. to Dismiss Reply – ECF No. 38 at 17.

20

125 Compl. – ECF No. 1 at 16–17 (¶ 42(f)–(i)); Form Letter, U.S. Citizenship & Immigration Servs., U.S. Dep’t of Homeland Sec., Central American Minors Program: Notice of Ineligibility for Refugee

21

Resettlement and Conditional Approval for Parole – ECF No. 33-44 at 4 (AR000448) (“You have been conditionally approved for parole into the United States. Final approval is conditioned upon

22

successful completion of any remaining clearances that are required in the screening process. These clearances include [a] medical examination by a U.S. approved panel physician, completion of security

23

clearance procedures, and verification of family relationships. Please see attached information sheet for next steps that must be completed for you to be paroled into the United States.”); U.S. Citizenship

24

& Immigration Servs., U.S. Dep’t of Homeland Sec., Central American Minors (CAM) Parole Program: Information for Conditionally Approved Applicants – ECF No. 33-48 at 2–3 (AR000462–

25

63) (“As explained in the letter denying your application for refugee status, you have been conditionally approved for parole into the United States, meaning that final approval of parole cannot

26

be granted until certain additional steps have been completed. These steps include: • Favorable results of background and security checks conducted by USCIS; • Favorable results of a medical examination,

27

conducted at your expense, and scheduled by International Office for Migration (IOM); • Coordination of travel arrangements, at your own expense, with IOM; • Verification of continued legal presence of

28 your relative in the United States by USCIS; • Travel within the validity period of the parole

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1 been approved were subject to discretionary decisions.) This distinction means that CAM Parole

2 Program participants with approved applications for parole had “serious reliance interests.” The

3 government argues that the Secretary of Homeland Security retained discretion to rescind parole

4 for participants who had conditionally approval.126 But that does not mean that participants with

5 approval had no reliance interests in their parole. Cf. Batalla Vidal II, 279 F. Supp. 3d at 432

6 (while DHS could in its discretion rescind DACA at any time, “it does not follow that

7 [beneficiaries] had no reliance interests therein, such that Defendants were free to end the DACA

8 program without considering such interests”) (emphasis in original) (citing Encino Motorcars, 136

9 S. Ct. at 2124–26).

10

The government next argues that it took reliance interests into account because it did not

11 rescind parole for beneficiaries who had arrived in the United States.127 The court cannot see how

12 this decision for beneficiaries in the United States takes into account the serious reliance interests

13 of participants with conditional approval who had not arrived or whose family members had not

14 arrived in the United States. The government also argues that it considered reliance interests when

15 it offered to refund fees that participants paid for medical examinations and plane tickets.128 This

16 does not address the participants’ reliance interests in the parole approvals. It also does not

17 adequately address the fees paid because the government offered refunds only for medical exams

18 that were not completed but did not offer refunds for exams that were completed.129

19

20
authorization letter (Form I-512). . . . IOM will contact your relative in the United States to collect 21 payment for your medical examination. . . . If your medical exam clears, IOM will contact your
relative in the United States to arrange your flight. . . After IOM receives payment for your travel to 22 the United States, IOM will submit your travel itinerary to USCIS. We will: • Perform final
security checks, • Ensure your medical exam results remain valid until date of travel, and • Verify 23 that your relative in the United States still has a qualifying legal presence in the United States. If
we decide that you have met all requirements for parole under this program, we will issue for you 24 a Form I-512L, Authorization for Parole of an Alien Into the United States.”).
25 126 Defs. Mot. to Dismiss – ECF No. 32 at 20. 127 Id.
26 128 Id.
27 129 August 2017 Info Sheet – ECF No. 33-6 at 4 (AR000037); Rescission Form Letter – ECF No. 33-46 at 2 (AR000454).
28

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1

The court holds that when DHS mass-rescinded the conditional parole approvals of CAM

2 Parole Program participants, it did not adequately take into account and address the participants’

3 serious reliance interests. Consequently, its actions in mass-rescinding approvals were arbitrary

4 and capricious and must be set aside under the APA.

5

The “serious reliance interests” requirement does not mean that DHS lacks the authority to

6 rescind conditional approvals of parole for CAM Parole Program participants, notwithstanding the

7 participants’ reliance on their approvals. DHS has that authority. It has the authority to rescind

8 parole even from Program beneficiaries who have arrived in the United States and similarly has

9 the authority to rescind conditional approvals of applications where the beneficiaries are still

10 outside the United States. See 8 U.S.C. § 1182(d)(5)(A). But DHS must recognize and

11 acknowledge that Program participants who were approved for parole had serious reliance

12 interests in that parole, take those reliance interests into account, and explain why it felt it

13 appropriate to nonetheless mass-rescind their parole in the face of that reliance. This ensures

14 transparency and accountability. If DHS thinks that Program participants’ reliance on their parole

15 is less important than its new policies in mass-rescinding that parole, it can make that choice, so

16 long as it explains its reasons so that it can be held accountable. Cf. NAACP, 298 F. Supp. 3d at

17 249 (the government must explain its actions so that “members of the public know how their

18 elected officials have used their enforcement powers, and they can hold those officials accountable

19 by speaking out, by petitioning their representatives, or ultimately at the ballot box”).

20

When it mass-rescinded conditional approvals, DHS failed to take into account and address the

21 serious reliance interests of CAM Parole Program participants whom it had approved. Its mass-

22 rescission was arbitrary and capricious in violation of the APA.130

23

* * *

24

25 130 Because the court finds that DHS’s mass-rescission of parole approvals was arbitrary and
26 capricious because DHS failed to take into account serious reliance interests, it is unnecessary to
address whether the mass-rescission was also arbitrary and capricious because it was impermissibly 27 retroactive or because it violated DHS’s own guidance and thus ran afoul of the doctrine in United
States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). 28

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1

For the foregoing reasons, the court denies the defendants’ motion to dismiss the plaintiffs’

2 APA claims as they relate to the government’s mass-rescinding of conditional approvals of parole.

3 The court otherwise grants the defendants’ motion to dismiss the plaintiffs’ APA claims.

4

5 3. Due Process

6

The plaintiffs bring a claim on behalf of the plaintiffs in the United States for violation of due

7 process.131

8

The Due Process Clause of the Fifth Amendment provides that no person may be “deprived of

9 life, liberty, or property, without due process of law[.]” U.S. Const. amend. V. “‘A threshold

10 requirement to a substantive or procedural due process claim is the plaintiff’s showing of a liberty

11 or property interest protected by the Constitution.’” Regents III, 908 F.3d at 514 (quoting Wedges/

12 Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994)). The applicant-parent

13 plaintiffs claim as their protected interest a general constitutional liberty interest in “the

14 companionship and society of their family members who are stranded in Central America.”132

15

In Gebhardt v. Nielsen, 879 F.3d 980 (9th Cir. 2018), the Ninth Circuit held that the general

16 right to familial companionship cannot form the basis of a due-process claim for a plaintiff in the

17 United States challenging a government decision not to admit non-citizen family members located

18 outside the United States. The plaintiff in Gebhardt was a U.S. citizen who filed legal-permanent-

19 resident petitions for his non-citizen wife and her three non-citizen children. Id. at 983. USCIS

20 approved the petitions initially but then revoked them based on the plaintiff’s criminal conviction

21 from years earlier. Id. at 983–84. The plaintiff challenged USCIS’s denials of his petition, arguing

22 that (among other things) “USCIS, by denying his petitions, denied him the fundamental right to

23 preserve the integrity of his family.” Id. at 988. The Ninth Circuit rejected that argument:

24

25

26 131 Compl. – ECF No. 1 at 42 (¶ 137). The plaintiffs do not bring a due-process claim on behalf of any
27 beneficiary children outside the United States. See id. 132 Id.
28

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1

Plaintiff’s theory is that he has a fundamental right to reside in the United States

with his non-citizen relatives. But that theory runs headlong into Congress’ plenary

2

power over immigration. We acknowledge, of course, that individuals have a

3

strong interest in living with their family members. But that interest cannot be so fundamental that it overrides Congress’ plenary power in this domain. As we have

4

said before, the generic right to live with family is “far removed” from the specific

right to reside in the United States with non-citizen family members. . . . We

5

therefore conclude that Plaintiff’s substantive due process claim is not colorable,

and we decline to consider it further. 6

7 Id. (citations omitted). So too here. The applicant-parent plaintiffs’ right to familial

8 companionship for their non-citizen children located outside the United States does not give rise to

9 a protected interest that can form the basis of a due-process claim.133

10

The plaintiffs’ authorities do not change this conclusion. The plaintiffs cite Justice Kennedy’s

11 concurring opinion in Kerry v. Din, 135 S. Ct. 2128 (2015), for the proposition that they have a

12 protected interest.134 In Din, the government denied an immigrant visa to the husband of a U.S.

13 citizen. Id. at 2131 (plurality op.). The husband was a citizen and resident of Afghanistan. Id. The

14 U.S.-citizen spouse challenged the denial because the government did not explain its reasons for

15 the denial. Id. at 2131–32. The Ninth Circuit reversed the district court’s order dismissing the case.

16 Id. The Supreme Court then reversed the Ninth Circuit. Id. at 2138. In his concurring opinion,

17 Justice Kennedy assumed for the sake of argument that the U.S. citizen plaintiff in the United

18 States had a protected interest in the visa application of her non-U.S. citizen spouse and concluded

19 that the government had provided her with sufficient due process in any event. Id. at 2139

20 (Kennedy, J., concurring). He expressly refrained from deciding the protected-interest issue,

21

22 133 Gebhardt addresses the issue of the constitutional right to familial companionship specifically in

23

the context of a plaintiff located in the United States and his non-citizen family members located outside the United States who were not separated due to any government action. The other cases that

24

the plaintiffs cite are inapposite because they address familial companionship in the context of families who were all originally present in the United States and were separated by the government’s actions.

25

Cf. Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1074–75, 1079–80 (9th Cir. 2011) (family members who were together in the United States were separated allegedly by the government’s actions); Kelson

26

v. City of Springfield, 767 F.2d 651, 653–55 (9th Cir. 1985) (same); Morrison v. Jones, 607 F.2d 1269, 1271–73, 1275 (9th Cir. 1979) (same).

27 134 The Ninth Circuit has adopted Justice Kennedy’s concurring opinion as the binding opinion in Din.
Cardenas v. United States, 826 F.3d 1164, 1171–72 (9th Cir. 2016). 28

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1 writing that “[t]oday’s disposition should not be interpreted as deciding whether a citizen has a

2 protected liberty interest in the visa application of her alien spouse.” Id. That opinion thus does not

3 bear on the issue here.

4

The plaintiffs also cite Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008), which involved

5 a U.S.-citizen wife who brought a due-process claim after the government denied her non-citizen

6 husband an immigrant visa. But the source of the protected interest at issue there was not a general

7 constitutional liberty interest in familial companionship. Instead, the protected interest was

8 statutory: a U.S. citizen’s statutorily created entitlement to an immigration visa for his or her

9 spouse. See Ching v. Mayorkas, 725 F.3d 1149, 1155–56 (9th Cir. 2013) (“[G]rant of an I-130

10 petition for immediate relative status is a nondiscretionary decision. Immediate relative status for

11 an alien spouse is a right to which citizen applicants are entitled as long as the petitioner and

12 spouse beneficiary meet the statutory and regulatory requirements for eligibility. This protected

13 interest is entitled to the protections of due process.”) (citing Bustamante, 531 F.3d at 1061–62,

14 and other authorities). Because the plaintiff in Bustamante satisfied the threshold requirement of

15 having a protected interest in a visa for her husband, the Ninth Circuit addressed the second

16 question: whether the government had deprived her of that interest without sufficient procedural

17 protections. Bustamante, 531 F.3d at 1062. Bustamante thus does not bear on the question here:

18 whether the applicant-parent plaintiffs have a protected interest.

19

By contrast to the spousal immigrant visas in Bustamante, there is no statutorily created

20 protected interest in parole. Wong, 373 F.3d at 968 (“The INA does not create any liberty interest

21 in temporary parole that is protected by the Fifth Amendment. Rather, the statute makes clear that

22 whether and for how long temporary parole is granted are matters entirely within the discretion of

23 the [Secretary of Homeland Security].”); Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003)

24 (“Since discretionary relief is a privilege created by Congress, denial of such relief cannot violate

25 a substantive interest protected by the Due Process Clause.”); Regents II, 298 F. Supp. 3d at 1310

26 (“Our court of appeals has accordingly held there is no protected interest in temporary parole,

27 since such relief is ‘entirely within the discretion of the [Secretary of Homeland Security].’ . . .

28 [This] foreclose[s] any argument that plaintiffs have a protected interest in . . . advance parole[.]”)

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1 (citing Wong, 373 F.3d at 967–68). And Gebhardt forecloses the argument that a general

2 constitutional right to familial companionship gives rise to a protected interest in this context.

3 Because the plaintiffs have not made a threshold showing that they have a protected liberty or

4 property interest, the court dismisses their due-process claim.

5

6 4. Equal Protection

7

The plaintiffs bring a claim on behalf of the plaintiffs in the United States for violation of

8 equal protection.135

9

The Due Process Clause of the Fifth Amendment incorporates a guarantee of equal protection

10 and prohibits unjustified discrimination by federal actors. United States v. Navarro, 800 F.3d

11 1104, 1112 n.6 (9th Cir. 2015) (citing Bolling v. Sharpe, 347 U.S. 497, 498–99 (1954)). Courts

12 assess equal-protection claims against federal actors under the Fifth Amendment in the same way

13 that they assess equal-protection claims against state actors under the Fourteenth Amendment. Id.

14 (citing Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975)). The plaintiffs argue that the

15 government’s termination of the CAM Parole Program and its mass-rescission of conditional

16 approvals of parole violate equal protection because the decisions were substantially motivated by

17 discriminatory intent and animus against Latinos, as evidenced by President Trump’s history of

18 purported slurs and epithets toward Latinos.136

19

The termination of the CAM Parole Program and the rescission of conditional approvals of

20 parole affect the admission of foreign nationals into the United States.137 As the Supreme Court

21 held in Trump v. Hawaii, “a circumscribed inquiry applies to any constitutional claim concerning

22 the entry of foreign nationals.” Trump, 138 S. Ct. at 2420 n.5.

23

24 135 Compl. – ECF No. 1 at 43 (Count IV header). The plaintiffs do not bring an equal-protection claim
25 on behalf of any beneficiary children outside the United States. See id.
26 136 Id. (¶¶ 144–45). 137 The government did not rescind parole for beneficiaries who were in the United States at the time it
27 terminated the CAM Parole Program. See Termination of the Central American Minors Parole Program, 82 Fed. Reg. at 38,927.
28

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1

The Trump case is instructive here. That case involved a challenge to the government’s so-

2 called “travel ban,” a presidential proclamation limiting entry by foreign nationals from eight

3 countries; most of the countries are predominately Muslim. Trump, 138 S. Ct. at 2405. The

4 plaintiffs there argued that the primary purpose of the proclamation was to discriminate against

5 Muslims. Id. at 2417. In support of their discrimination claims and as evidence of religious bias

6 against Muslims, the plaintiffs cited purportedly anti-Muslim statements that President Trump

7 made. Id.

8

In rejecting the plaintiffs’ challenge, the Supreme Court wrote that “[f]or more than a century,

9 this Court has recognized that the admission and exclusion of foreign nationals is a ‘fundamental

10 sovereign attribute exercised by the Government’s political departments largely immune from

11 judicial control.’” Trump, 138 S. Ct. at 2418 (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)).

12 The Court acknowledged that “although foreign nationals seeking admission have no

13 constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the

14 denial of a visa allegedly burdens the constitutional rights of a U.S. citizen.” Id. at 2419. “But [the

15 Court] limited [its] review to whether the Executive gave a ‘facially legitimate and bona fide’

16 reason for its action.” Id. (quoting Kleindienst v. Mandel, 408 U.S. 753, 769 (1972)). “Given the

17 authority of the political branches over admission, [the Court] held that ‘when the Executive

18 exercises this delegated power negatively on the basis of a facially legitimate and bona fide

19 reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing

20 its justification’ against the asserted constitutional interests of U.S. citizens.” Id. (internal brackets

21 omitted) (quoting Kleindienst, 408 U.S. at 770).

22

The test that the Supreme Court applied in evaluating the presidential proclamation was

23 whether “it is impossible to ‘discern a relationship to legitimate state interests’” and “the policy is

24 ‘inexplicable by anything but animus.’” Id. at 2420–21. The Court held that the proclamation was

25 premised on legitimate purposes, namely, “preventing entry of [foreign] nationals who cannot be

26 adequately vetted and inducing other nations to improve their practices.” Id. at 2421. The Court

27 upheld the proclamation as “a facially neutral policy denying certain foreign nationals the

28 privilege of admission.” Id. at 2423.

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1

While the Court considered President Trump’s statements about Muslims, see id. at 2420, it

2 declined to credit the plaintiffs’ argument that President Trump’s statements supported a

3 constitutional challenge to the proclamation:

4

The entry suspension is an act that is well within executive authority and could

have been taken by any other President — the only question is evaluating the

5

actions of this particular President in promulgating an otherwise valid

6

Proclamation. . . . [T]he Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness

7

of the policy. We simply hold today that plaintiffs have not demonstrated a

likelihood of success on the merits of their constitutional claim.

8

9 Id. at 2423.

10

The plaintiffs’ challenge here to the termination of the CAM Parole Program is analogous to

11 the Trump plaintiffs’ challenge to the presidential proclamation. In both cases, plaintiffs residing

12 in the United States challenge government policies that prevent their foreign relatives from

13 entering the United States.138 In both cases, “[i]t cannot be said that it is impossible to ‘discern a

14 relationship to legitimate state interests’ or that the policy is ‘inexplicable by anything but

15 animus.’” Cf. Trump, 138 S. Ct. at 2420–21. The government’s view is that parole should be used

16 “sparingly and only in individual cases” and that “[t]he practice of granting parole to certain aliens

17 in pre-designated categories in order to create immigration programs not established by Congress,

18 has contributed to a border security crisis, undermined the integrity of the immigration laws and

19 the parole process, and created an incentive for additional illegal immigration.”139 These are

20 facially legitimate and bona fide reasons for terminating the CAM Parole Program. Cf. Jeanty v.

21 Bulger, 204 F. Supp. 2d 1366, 1377–78, 1381 (S.D. Fla. 2002) (finding that discouraging mass

22 migration of Haitians to the United States by applying parole criteria in a more restrictive manner

23 was a “facially legitimate and bona fide reason[]” for changing from a policy of favoring parole

24

25

138 While the plaintiffs here are bringing an equal-protection claim under the Fifth Amendment, and the plaintiffs in Trump brought an Establishment Clause claim under the First Amendment, the

26

Supreme Court “ha[s] reaffirmed and applied its deferential standard of review across different contexts and constitutional claims.” Trump, 138 S. Ct. at 2419.

27 139 See Kelly Memo – ECF No. 33-5 at 10 (AR000030); accord Exec. Order 13,767, 82 Fed. Reg. at
8795–96. 28

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1 for certain low-risk Haitian nationals arriving in the United States to a policy of limiting parole),

2 aff’d sub nom. Moise v. Bulger, 321 F.3d 1336 (11th Cir. 2003). Because the government has

3 facially legitimate and bona fide reasons for terminating the CAM Parole Program, here, as in

4 Trump, the court cannot “look behind the exercise of that discretion, nor test it by balancing its

5 justification’ against the asserted [equal-protection] constitutional interests of [the plaintiffs].” Cf.

6 Trump, 138 S. Ct. at 2419 (quoting Kleindienst, 408 U.S. at 770).140

7

Citing cases that do not involve the admission of foreign nationals into the United States, the

8 plaintiffs argue that the court should infer from President Trump’s anti-Latino statements that the

9 government acted with discriminatory animus and thus violated their equal-protection rights. Their

10 arguments might carry more weight in the context of a program like the DACA or TPS programs

11 that involve only individuals located in the United States. Cf. Regents III, 908 F.3d at 518–20

12 (plaintiffs could plausibly plead an equal-protection that the government’s decision to terminate

13 the DACA program was based on racial animus based on President Trump’s anti-Latino

14 statements); Ramos I, 321 F. Supp. 3d at 1131–32 (same re the TPS program); Ramos II, __ F.

15 Supp. 3d __, 2018 WL 4778285, at *16–21 (same re the TPS program). But unlike the DACA or

16 TPS programs, the CAM Parole Program involves the admission of foreign nationals presently

17 outside the United States into the United States, and the court’s review of constitutional equal-

18 protection claims thus is circumscribed. Trump, 138 S. Ct. at 2418–20 & n.5; cf. Regents III, 908

19 F.3d at 520 (“[DACA] differs from [Trump v.] Hawaii in several potentially important respects,

20

21

140 The plaintiffs argue that these reasons do not match the government’s actions in terminating the CAM Parole Program because, they allege, the Program operated on a case-by-case basis. Pls. Mot. to

22

Dismiss Opp’n – ECF No. 34 at 24. But the plaintiffs do not plead that the Program granted parole “sparingly,” that it granted parole “only in individual cases,” or that it did not “grant[] parole to certain

23

aliens in pre-designated categories in order to create immigration programs not established by Congress.” Contrary to the plaintiffs’ claims, there is no mismatch between the government’s view

24

that parole should be granted sparingly and not used to create an immigration program not established by Congress and its decision to terminate the CAM Parole Program.

25 The plaintiffs also try to distinguish Trump by arguing that it was decided on a preliminary-injunction
motion, not a motion to dismiss. Pls. Mot. to Dismiss Opp’n – ECF No. 34 at 23–24. They cite no 26 authorities to support their argument that a court cannot decide the question of whether the government
has “facially legitimate and bona fide reasons” on a motion to dismiss. Cf., e.g., Bustamante, 531 F.3d 27 at 1062–63 (evaluating whether government had a “facially legitimate and bona fide reason” for
denying visa on a motion to dismiss). 28

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1 including the physical location of the plaintiffs within the geographic United States”) (citing

2 Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 781 (9th Cir. 2014) (en banc)); Ramos I, 321 F. Supp.

3 3d at 1129 (“the TPS-beneficiaries here, unlike those affected by the Proclamation in Trump, are

4 already in the United States” and hence “this case is unlike Trump; it does not implicate ‘the

5 admission and exclusion of foreign nationals,’ who have ‘no constitutional rights regarding [their]

6 application’ in light of the ‘sovereign prerogative’ ‘to admit or exclude aliens’”) (citing Trump,

7 138 S. Ct. at 2418; Landon v. Plasencia, 459 U.S. 21, 32 (1982)); Ramos II, __ F. Supp. 3d __,

8 2018 WL 4778285, at *21 (same). The plaintiffs’ general equal-protection cases are inapposite

9 here.

10

The government has facially legitimate and bona fide reasons for terminating the CAM Parole

11 Program. Because the court cannot test those reasons by balancing them against the plaintiffs’

12 constitutional interests, cf. Trump, 138 S. Ct. at 2419–21, the court dismisses the plaintiffs’ equal-

13 protection claim.

14

15 5. Equitable Estoppel

16

The parties dispute whether equitable estoppel can be pleaded as an affirmative claim or

17 whether it is only an affirmative defense.141 The court need not resolve this question because the

18 plaintiffs have not pleaded the elements of equitable estoppel as either a claim or defense.

19

Equitable estoppel requires that (among other things) the government engaged in “affirmative

20 misconduct,” which the Ninth Circuit has defined to mean a “deliberate lie” or “a pattern of false

21 promises.” Socop-Gonzalez v. INS, 272 F.3d 1176, 1184 (9th Cir. 2001) (en banc) (citing

22 Mukherjee v. INS, 793 F.2d 1006, 1008 (9th Cir. 1986)). “Negligently providing misinformation to

23 an alien does not meet this definition” and thus is insufficient to plead equitable estoppel. Id.

24

25 141 Compare Defs. Mot. to Dismiss – ECF No. 32 at 25 (“‘Equitable Estoppel is not an affirmative
26 claim, but rather an affirmative defense.’”) (quoting Johnson v. Mazza, No. 2:15-cv-09183-ODW(AS),
2016 WL 5842186, at *4 (C.D. Cal. Oct. 4, 2016)) with Pls. Mot. to Dismiss Opp’n – ECF No. 34 at 27 24 (“Ninth Circuit precedent recognizes an affirmative cause of action for equitable estoppel.”) (citing
Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989) (en banc)). 28

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1

The plaintiffs allege that during the time between January and August 2017, when the

2 government was purportedly engaged in a “secret shutdown” of the CAM Parole Program,

3 (1) government web pages continued to represent that the Program was active and that participants

4 should not delay in paying for plane tickets,142 and (2) IOM contacted participants to solicit and

5 accept payments for plane tickets.143 This does not plead a deliberate lie or a pattern of false

6 promises on the part of the government, as opposed to (for example) the government’s negligently

7 failing to update its websites and inform IOM of the purported shutdown (or IOM’s not getting the

8 message and inadvertently providing participants with incorrect information). The plaintiffs have

9 not pleaded that the government engaged in a deliberate lie or a pattern of false promises, and the

10 court thus dismisses their equitable-estoppel claim.

11

12

CONCLUSION

13

The court grants in part and denies in part the defendants’ motion to dismiss. The court denies

14 the motion to dismiss the plaintiffs’ APA claims as they relate to the government’s mass-

15 rescinding conditional approvals of parole made under the CAM Parole Program. In all other

16 respects, the court grants the defendants’ motion to dismiss.144

17

18

IT IS SO ORDERED.

19

Dated: December 10, 2018

20

______________________________________

21

LAUREL BEELER United States Magistrate Judge

22

23

24

25 142 Compl. – ECF No. 1 at 21–22 (¶¶ 57–60).
26 143 Id. at 20 (¶¶ 54–55). 144 Because the court grants the defendants’ motion to dismiss with respect to all claims other than a
27 portion of the APA claims and President Trump is not named as a defendant in the APA claims, the court does not address the defendants’ arguments regarding naming the president as a defendant.
28

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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

San Francisco Division

11 S.A., et al.,

12

Plaintiffs,

13

v.

14 DONALD J. TRUMP, et al.,

15

Defendants.

Case No. 18-cv-03539-LB
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Re: ECF No. 24

16

17

INTRODUCTION

18

Under the Immigration and Nationality Act (“INA”), the Secretary of Homeland Security has

19 discretion to parole foreign nationals into the United States “temporarily” and “only on a case-by-

20 case basis for urgent humanitarian reasons or significant public benefit[.]” 8 U.S.C. 21 § 1182(d)(5)(A).1 Parole does not constitute admission in a valid immigration or nonimmigrant

22 status, but it allows a foreign national to enter and physically be present in the United States.

23

In 2014, the government instituted a program called the Central American Minors (“CAM”)

24 Program, which allowed parents who were lawfully present in the United States to apply to bring

25

26 1 Section 1182(d)(5)(A) refers to the Attorney General, but pursuant to 6 U.S.C. § 557, that authority
27 has now been transferred to the Secretary of Homeland Security. See, e.g., In re Arrabally, 25 I. & N.
Dec. 771, 777 n.5 (B.I.A. 2012). 28

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1 their children and other qualifying family members in three countries — Honduras, Guatemala,

2 and El Salvador, collectively known as the “Northern Triangle” — into the United States. A

3 Program goal was to discourage children from making the long and dangerous journey from the

4 Northern Triangle to the United States to try to reunite with their parents. The Program sought to

5 achieve this goal by allowing applicant parents to apply for their beneficiary children while the 6 children remained in their original countries.2

7

The CAM Program had two components: a refugee component and a parole component. U.S.

8 Citizenship and Immigration Services (“USCIS”), an agency within the U.S. Department of

9 Homeland Security (“DHS”), first evaluated beneficiaries to see if they qualified for refugee status

10 (which, among other things, requires persecution or a well-founded fear of persecution “on

11 account of race, religion, nationality, membership in a particular social group, or political

12 opinion”). If the beneficiaries qualified, USCIS referred them for approval as refugees under the

13 CAM Refugee Program. If they did not qualify, USCIS automatically considered them for parole

14 into the United States under the CAM Parole Program.

15

In January 2017, following a change in presidential administrations, President Donald Trump

16 issued an Executive Order that (among other things) directed the Secretary of Homeland Security

17 to “take all appropriate action” to ensure that DHS exercised its parole authority “only on a case-

18 by-case basis” and “only when an individual demonstrates urgent humanitarian reasons or a

19 significant public benefit derived from such parole.” Exec. Order 13,767 § 11(d), 82 Fed. Reg.

20 8793, 8796 (2017). Beginning in January or February 2017, DHS stopped processing CAM

21 Program applications — including the applications for beneficiaries who had been conditionally

22 approved for parole and were awaiting processing to finalize their arrangements to travel to the

23 United States — and began a review of the CAM Parole Program. In August 2017, DHS

24

25 2 Some documents related to the CAM Program use the term “applicant” to refer to the parents present
26 in the United States, while others use it to refer to the children or qualifying family members in the
Northern Triangle countries. This order uses “applicant” to refer to the parents present in the United 27 States, “beneficiary” to refer to the children or qualifying family members in the Northern Triangle
countries, and “participant” to refer to applicants and beneficiaries. 28

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1 announced that it was terminating the CAM Parole Program. It also announced that it was

2 rescinding the decisions it had previously made under the Program for 2,714 beneficiaries whom it

3 had conditionally approved for parole but who had not yet traveled to the United States.

4

The plaintiffs in this case — applicant parents lawfully residing in the United States who

5 applied to the CAM Program, their beneficiary children in Northern Triangle countries, and the

6 nonprofit immigrant-rights organization CASA — filed this putative class-action lawsuit, bringing

7 claims under the Administrative Procedure Act (“APA”), the Due Process Clause, and the equal-

8 protection component of the Due Process Clause, and a claim for equitable estoppel. The claims

9 challenge as unlawful DHS’s termination of the CAM Parole Program and its decision to rescind

10 en masse its prior decisions to conditionally approve parole for the 2,714 beneficiaries (including

11 named beneficiary-children plaintiffs in this case).

12

The defendants moved to dismiss the plaintiffs’ claims. On December 10, 2018, the court

13 granted in part and denied in part the defendants’ motion to dismiss. S.A. v. Trump, __ F. Supp. 3d 14 __, No. 18-cv-03539-LB, 2018 WL 6470253 (N.D. Cal. Dec. 10, 2018).3 The court dismissed the

15 plaintiffs’ due-process, equal-protection, and equitable-estoppel claims and dismissed the APA

16 claims challenging DHS’s termination of the CAM Parole Program going forward. Id. The court

17 denied the defendants’ motion to dismiss the plaintiffs’ APA claims challenging DHS’s decision

18 to mass-rescind conditional approvals of parole that issued before DHS terminated the Program in

19 August 2017. Id. at *32–33. The court held that DHS acted arbitrarily and capriciously when it

20 failed to take into account and address the serious reliance interests of participants who were

21 conditionally approved for parole when it mass-rescinded those approvals. Id.

22

The plaintiffs moved for a preliminary injunction (1) enjoining DHS from terminating the

23 CAM Parole Program and (2) vacating DHS’s mass-rescission of conditional approvals of parole.

24 With respect to the second request, the plaintiffs do not seek an injunction mandating that DHS

25 admit any particular Program beneficiary into the United States. Instead, they seek only an order

26

27 3 Order – ECF No. 51. Record citations refer to material in the Electronic Case File (“ECF”); pinpoint
citations are to the ECF-generated page numbers at the top of documents. 28

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1 requiring DHS to continue to process the conditionally approved beneficiaries under the 2 procedures that it had in place for processing the beneficiaries before it terminated the Program.4

3

The court held two hearings on the plaintiffs’ motion: one on October 30, 2018 (a hearing on

4 the plaintiffs’ motion for a preliminary injunction and the defendants’ then-pending motion to

5 dismiss) and, following two rounds of supplemental briefing, a second hearing on February 14,

6 2019 on the plaintiffs’ preliminary-injunction motion.

7

The court now grants in part and denies in part the plaintiffs’ motion. Because the court

8 dismissed the plaintiffs’ claims challenging the termination of the CAM Parole Program going

9 forward, it also denies the plaintiffs’ motion to enjoin DHS from terminating the Program going

10 forward. The court grants the plaintiffs’ motion to enjoin DHS’s mass-rescission of conditional

11 approvals of parole, vacates the mass-rescission, and orders DHS to continue processing — under

12 the DHS policies and procedures in place for processing beneficiaries before January 2017 — the

13 2,714 beneficiaries conditionally approved for parole.

14

15

STATEMENT

16

The court’s first order summarized the facts and allegations regarding the CAM Parole

17 Program and the plaintiffs’ claims. S.A., __ F. Supp. 3d __, 2018 WL 6470253, at *3–19. The

18 following facts are relevant to the plaintiffs’ preliminary-injunction motion.

19

The CAM Program was structured as a dual refugee/parole program.5 Under the CAM

20 Refugee Program, certain Central American parents living lawfully in the United States could

21 apply for their minor children and qualifying family members to be considered for refugee 22 resettlement while the family members were still in in Honduras, Guatemala, and El Salvador.6

23 Minor children and qualifying family members were accepted as refugees if they established that

24

25 4 Pls. Suppl. Reply – ECF No. 67 at 3 (“Plaintiffs do not ask the Court to mandate a particular outcome in any given CAM application, but simply to require Defendants (including Border Patrol) to follow
26 their own procedures that were in place during the last uncontested status.”).
27 5 Compl. – ECF No. 1 at 12 (¶ 37). 6 Id.
28

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1 they qualified for resettlement under U.S. law, that is, by demonstrating that they had a well-

2 founded fear of persecution based on race, religion, nationality, membership in a particular social 3 group, or political opinion.7 If the minors and qualifying family members did not meet the

4 eligibility criteria for refugee admission under the CAM Refugee Program, then they were

5 automatically considered for parole under the CAM Parole Program pursuant to 8 U.S.C. 6 § 1182(d)(5).8

7

Individuals had to apply to the CAM Refugee Program before they could be considered for the

8 CAM Parole Program. The process was as follows.

9

First, a parent lawfully residing in the United States had to file an application with the

10 assistance of a “resettlement agency” (a nonprofit organization partially funded by the government

11 to welcome refugees into the country) and provide proof of identity, proof of legal status in the 12 United States, and a passport photo of the beneficiary child.9 Second, the International

13 Organization for Migration (“IOM”) — the intergovernmental organization that the State

14 Department contracted to run its Resettlement Support Center in Latin America — invited the

15 child to come to the capital of the country where the child was located so that IOM could

16 interview the child, take the child’s biometric data and background information, prepare a case 17 file, and initiate security checks.10 Third, USCIS verified the relationship between parent and child 18 through documentary evidence and DNA tests.11 (The parent had to pay for DNA testing, but 19 USCIS reimbursed the parent if the testing confirmed a parent-child relationship.12) Fourth, 20 USCIS conducted an interview with the child in the country capital.13 Fifth, after confirming

21

22 7 Id.; accord 8 U.S.C. § 1101(a)(42) (defining “refugee” as requiring, among other things, persecution or a well-founded fear of persecution “on account of race, religion, nationality, membership in a
23 particular social group, or political opinion”).
24 8 Compl. – ECF No. 1 at 12–13 (¶ 38). 9 Id. at 14 (¶ 42(a)).
25 10 Id. (¶ 42(b)).
26 11 Id. at 14–15 (¶ 42(c)).
27 12 Id. at 15 (¶ 42(c)). 13 Id. (¶ 42(d)).
28

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1 security-check results and DNA-test results, USCIS made a determination on the refugee

2 application and notified beneficiaries of that determination by either a decision letter or a phone 3 call.14 For beneficiaries who received letters, if refugee status was denied, the letter checked one of

4 several boxes to explain the reason for the denial and outlined the process to request a review of 5 the refugee determination.15 The letter then indicated whether the beneficiary was eligible for the 6 CAM Parole Program.16

7

If USCIS approved a beneficiary for the CAM Parole Program, the letter said:

8

You have been conditionally approved for parole into the United States. Final

approval is conditioned upon successful completion of any remaining clearances

9

that are required in the screening process. These clearances include medical

10

examination by a U.S. approved panel physician, completion of security clearance procedures, and verification of family relationships. Please see attached

11

information sheet for next steps that must be completed for you to be paroled into

the United States.17

12

13

If USCIS conditionally approved a beneficiary for parole, then the beneficiary had to undergo

14 a medical examination in the country capital at the parent’s expense.18 USCIS told the beneficiary

15 that “IOM will contact your relative in the United States to collect payment for the medical exam” 16 and “[a]fter receiving payment, IOM will contact you to arrange your exam.”19 If the beneficiary 17 cleared the examination, he or she received a medical clearance valid for six months.20

18

Next, USCIS told the beneficiary that “[i]f the medical results clear, IOM will contact your

19 relatives in the United States to arrange for your flight” and “[a]fter IOM receives payment for 20 your travel, [it] will submit the travel itinerary to USCIS.”21 After receiving the travel-itinerary

21

22 14 Id. (¶ 42(e)).
23 15 Id.
24 16 Id. 17 Id. at 15–16 (¶ 42(e)).
25 18 Id. at 16 (¶ 42(f)).
26 19 Id.
27 20 Id. 21 Id. (¶ 42(g)).
28

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1 form from IOM, USCIS “will . . . [p]erform final security checks, [e]nsure the medical exam

2 results remain valid until date of travel, and [v]erify that your relative still has a qualifying legal 3 presence in the United States.”22 “[I]f we decide that you have met all requirements for parole

4 under this program, we will issue Form I-512L, Authorization for Parole of an Alien Into the

5 United States,” and “IOM will give you this document and your plane ticket the day you fly to the 6 United States.”23

7

Finally, after travel arrangements were made, the beneficiary traveled to a U.S. port of entry,

8 where DHS Customs and Border Protection could authorize parole for a period of up to two 9 years.24 USCIS told the beneficiary that it “will consider CAM parole extension requests for the 10 duration of the program.”25

11

When DHS terminated the CAM Parole Program in August 2017, it mass-rescinded its

12 approvals of conditional parole for 2,714 children and family members who were still being

13 processed (meaning, they were completing the remaining post-approval clearances and had not yet 14 traveled to the United States).26

15

16 22 Id. (¶ 42(h)).

17 23 Id. (emphasis removed). 24 Id. at 17 (¶ 42(i)).
18 25 Id.

19 26 Id. at 30 (¶ 83), 38 (¶ 120); Response to Queries, U.S. Citizenship & Immigration Servs., U.S. Dep’t
of Homeland Sec., Termination of CAM Parole Program (2017 RTQ) – ECF No. 33-9 at 5 20 (AR000048).

21

The court makes a clarification to a footnote in its prior order. The court stated there that “30% of interviewed beneficiaries were approved as refugees, and thus would not have been considered for

22

parole. Of the remaining 70% of interviewed beneficiaries who were considered for parole, 69% were approved, which results in a parole-approval rate of approximately 99% (69/70).” Id. The court should

23

have said that “of the cases that have been issued decisions, 30% of interviewed beneficiaries were approved as refugees, and thus would not have been considered for parole. Of the remaining 70%,

24

69% were approved, which results in a parole-approval rate of approximately 99% (69/70).” 2017 RTQ – ECF No. 33-9 at 5 (AR000048). USCIS placed approximately 14% of interviewed

25

beneficiaries (or approximately 1,000 beneficiaries) on an apparent indefinite hold (in most cases so that USCIS headquarters could review the applicants’ known or suspected gang affiliations). Report to

26

Congressional Addressees, U.S. Gov’t Accountability Office, Refugees[:] Actions Needed by State Department and DHS to Further Strengthen Application Screening Process and Assess Fraud Risks

27

(July 2017) (2017 GAO Report) – ECF No. 25-12 at 75 (p. 68). Those beneficiaries would not have received a decision on their initial refugee applications (and thus would not have been considered for

28 parole under the CAM Parole Program in the first instance). Additionally, USCIS also rejected or

ORDER – No. 18-cv-03539-LB

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1

STANDARD OF REVIEW

2

“A party can obtain a preliminary injunction by showing that (1) it is ‘likely to succeed on the

3 merits,’ (2) it is ‘likely to suffer irreparable harm in the absence of preliminary relief,’ (3) ‘the

4 balance of equities tips in its favor,’ and (4) ‘an injunction is in the public interest.’” Disney

5 Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (internal brackets omitted)

6 (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “A preliminary injunction

7 may also be appropriate if a movant raises ‘serious questions going to the merits’ and the ‘balance

8 of hardships tips sharply towards’ it, as long as the second and third Winter factors are satisfied.”

9 Id. (internal ellipsis omitted) (quoting All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–

10 35 (9th Cir. 2011)). “‘[T]he elements of the preliminary injunction test are balanced, so that a

11 stronger showing of one element may offset a weaker showing of another.’” Hernandez v.

12 Sessions, 872 F.3d 976, 990 (9th Cir. 2017) (quoting Pimentel v. Dreyfus, 670 F.3d 1096, 1105

13 (9th Cir. 2012)).

14

15

ANALYSIS

16 1. Success on the Merits

17

1.1 Governing Law

18

“Likelihood of success on the merits ‘is the most important’ Winter factor; if a movant fails to

19 meet this ‘threshold inquiry,’ the court need not consider the other factors, in the absence of

20 ‘serious questions going to the merits.’” Disney, 869 F.3d at 856 (citing Garcia v. Google, Inc.,

21 786 F.3d 733, 740 (9th Cir. 2015) (en banc); All. for the Wild Rockies, 632 F.3d at 1134–35).

22 “However, ‘once the moving party has carried its burden of showing a likelihood of success on the

23

24 disqualified 5% of CAM Program beneficiaries at the DNA-testing stage before reaching the interview
25 stage. Id. at 74 (p. 67).
The court notes that “findings of fact and conclusions of law made by a court in granting a 26 preliminary injunction are not binding at trial on the merits.” Shell Offshore Inc. v. Greenpeace, Inc.,
815 F.3d 623, 631 n.5 (9th Cir. 2016) (citing Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981)). 27 If later developments in this case provide further clarity or updates regarding these numbers, then the
court will update its calculations accordingly. 28

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1 merits, the burden shifts to the non-moving party to show a likelihood that its affirmative defense

2 will succeed.’” Id. (quoting Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1158 (9th Cir.

3 2007)).

4

1.2 Application

5

The plaintiffs have shown a likelihood of success on the merits of their claims that DHS’s

6 decision to mass-rescind conditional approvals of parole violated the APA. As the order denying

7 the defendants’ motion to dismiss explained, the plaintiffs’ filings and the administrative record

8 show that DHS failed to take into account and address the serious reliance interests of those

9 conditionally approved participants before mass-rescinding their approvals, and its failure to do so

10 was arbitrary and capricious in violation of the APA. S.A., __ F. Supp. 3d __, 2018 WL 6470253, 11 at *32–33. The defendants have not shown a likelihood of success on an affirmative defense.27

12

The plaintiffs have satisfied the first preliminary-injunction factor.

13

14 2. Irreparable Harm

15

2.1 Governing Law

16

“A plaintiff seeking preliminary relief must ‘demonstrate that irreparable injury is likely in the

17 absence of an injunction.’” California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018) (quoting Winter,

18 555 U.S. at 22). “The analysis focuses on irreparability, ‘irrespective of the magnitude of the

19 injury.’” Id. (quoting Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir. 1999)). “There must

20 be a ‘sufficient causal connection’ between the alleged irreparable harm and the activity to be

21 enjoined, and showing that ‘the requested injunction would forestall’ the irreparable harm

22 qualifies as such a connection.” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 886 F.3d

23 803, 819 (9th Cir. 2018) (citing Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 981–82 (9th Cir.

24

25 27 See Defs. Suppl. Opp’n – ECF No. 61 (not arguing that the plaintiffs have not shown a likelihood of
26 success on the merits or that the defendants have shown a likelihood of success on an affirmative
defense). The defendants argue that DHS can cure the APA violation, id. at 4, but that is not the same 27 as arguing that there was no APA violation or that the plaintiffs have not shown a likelihood of success
on the merits. 28

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1 2011)). “However, a plaintiff ‘need not further show that the action sought to be enjoined is the

2 exclusive cause of the injury.’” Id. (quoting M.R. v. Dreyfus, 697 F.3d 706, 728 (9th Cir. 2012)).

3

2.2 Application

4

2.2.1 CAM Parole Program participants

5

2.2.1.1 Harm

6

The Ninth Circuit has recognized in the context of asylum, withholding-of-removal, and

7 Convention Against Torture cases that a plaintiff’s physical danger in his or her home country can

8 constitute irreparable harm. Leiva-Perez v. Holder, 640 F.3d 962, 969 (9th Cir. 2011).

9 Additionally, “‘other important irreparable harm factors include separation from family members,

10 medical needs, and potential economic hardship.’” Id. at 969–70 (internal brackets omitted)

11 (quoting Andreiu v. Ashcroft, 253 F.3d 477, 484 (9th Cir. 2001) (en banc)); accord Washington v.

12 Trump, 847 F.3d 1151, 1169 (9th Cir. 2017) (separation from family members is “a substantial

13 injur[y] and even irreparable harm[]”); Regents of the Univ. of Cal v. U.S. Dep’t of Homeland Sec.,

14 279 F. Supp. 3d 1011, 1046 (N.D. Cal. 2018) (Regents I) (same), aff’d, 908 F.3d 476 (9th Cir.

15 2018) (Regents II).

16

The plaintiffs submitted evidence that the CAM Parole Program participants are suffering

17 irreparable harm from prolonged family separation and, with respect to the beneficiary-children

18 plaintiffs, irreparable harm from the physical danger they face in their countries of residence. The

19 named applicant-parent and beneficiary-children plaintiffs submitted declarations attesting to

20 physical danger, as evinced by beatings, the murders of their relatives, and rape and murder threats

21 made against them. Named plaintiff D.D. (who lawfully resides in the United States) and her

22 daughter A.D. (who resides in El Salvador) submitted declarations discussing how gangs killed a

23 boy outside A.D.’s house and how A.D.’s father was shot and killed in broad daylight as he picked 24 up his children from school.28 Named plaintiff J.A. (who resides in El Salvador) and her mother

25 S.A. (who lawfully resides in the United States) submitted declarations that gang members

26

27 28 D.D. Decl. – ECF No. 6-10 at 9 (¶ 5); A.D. Decl. – ECF No. 24-7 at 8 (¶¶ 2–3).
28

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1 approached J.A., that one gang member threatened her to “date” him and if she refused, he would

2 take her by force, “bad things would happen to [her],” and“[her] family would never see [her]

3 again,” and that girls who refuse to “date” gang members are often kidnapped, raped, and 4 sometimes killed.29 Named plaintiffs M.C. and J.C. (who live in El Salvador) and their father R.C.

5 (who lawfully resides in the United States) submitted declarations that gang members killed a

6 neighbor of M.C.’s and J.C.’s, that a gang member who physically attacked and raped other girls

7 was harassing M.C. to be his “girlfriend” and threatened that “[she] was going to pay for it with

8 [her] family” if she refused, and that gang members demanded that J.C. join their gang and, after

9 he refused, beat him unconscious and sent him to the hospital, injuring him so badly that he had to 10 have emergency surgery to remove his spleen and remained bedridden for a month.30 Named

11 plaintiff B.E. (who resides in El Salvador) and his father G.E. (who lawfully resides in the United

12 States) submitted declarations that gang members murdered B.E.’s uncle (G.E.’s brother) right

13 outside of his house and, after B.E.’s grandfather testified at his uncle’s murder trial, were 14 threatening to kill B.E. in retaliation.31 The plaintiffs also submitted declarations discussing the

15 harm they have suffered from their familial separations, including missing important life events 16 and the opportunity to care for sick family members.32 This familial separation and risk of 17 physical danger constitutes irreparable harm. Cf. Leiva-Perez, 640 F.3d at 969–70.33

18

19

29 S.A. Decl. – ECF No. 6-12 at 10–11 (¶¶ 16–17); J.A. Decl. – ECF No. 6-13 at 9 (¶ 6), 12–13 (¶¶ 21– 24).

20 30 R.C. Decl. – ECF No. 6-11 at 11–12 (¶¶ 19–21); M.C. Decl. – ECF No. 6-15 at 10 (¶ 13), 11–12
(¶¶ 21–25); J.C. Decl. – ECF No. 6-17 at 6 (¶¶ 5–9), 8 (¶ 15). 21 31 B.E. Decl. – ECF No. 6-16 at 8–9 (¶¶ 5–10), 11 (¶ 21); G.E. Decl. – ECF No. 6-18 at 8 (¶¶ 6–7), 10
22 (¶¶ 20–21). 32 D.D. Decl. – ECF No. 6-10 at 12–13 (¶ 28); R.C. Decl. – ECF No. 6-11 at 9 (¶ 8); S.A. Decl. – ECF
23 No. 6-12 at 10 (¶¶ 14–15); J.A. Decl. – ECF No. 6-13 at 13 (¶ 25); M.C. Decl. – ECF No. 6-15 at 10
(¶ 12); B.E. Decl. – ECF No. 6-16 at 10 (¶ 18); J.C. Decl. – ECF No. 6-17 at 7 (¶ 13); G.E. Decl. – 24 ECF No. 6-18 at 9 (¶ 13).

25

33 The defendants do not meaningfully contest that the plaintiffs are suffering irreparable harm. See Defs. Opp’n – ECF No. 32 at 28 (arguing about the balance of harms but not contesting that CAM

26

Parole Program participant plaintiffs are suffering irreparable harm); Defs. Suppl. Opp’n – ECF No. 61 (not contesting that Program participant plaintiffs are suffering irreparable harm); Defs. Further Suppl.

27

Br – ECF No. 70 at 2 (same). The plaintiffs also note that DHS, in originally conditionally approving beneficiaries for parole in the first place (before mass-rescinding those conditional approvals),

28 necessarily made a determination that such beneficiaries were sufficiently at risk of harm in their home

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1

2.2.1.2 Causal connection

2

The defendants contend that they did not cause the harm to the plaintiffs of family separation

3 and danger in their country of residence and that the plaintiffs thus have not shown a sufficient 4 causal connection between the alleged irreparable harm and the activity to be enjoined. 34 The

5 court disagrees.

6

The Ninth Circuit’s and Supreme Court’s decisions on the so-called “travel ban” are

7 instructive on this point. Broadly speaking, the travel-ban cases involved presidential executive

8 orders limiting immigrant and non-immigrant entry into the United States from several

9 enumerated countries (most of which are predominately Muslim). In one line of cases, an

10 individual U.S. citizen of Egyptian descent, Ismail Elshikh (together with the State of Hawaii)

11 brought a suit to challenge the executive orders. Dr. Elshikh alleged that the second of these

12 executive orders (“EO-2”) prevented his mother-in-law, a Syrian national residing in Syria, from

13 obtaining a visa to travel to the United States to reunite with their shared family. Hawaii v. Trump,

14 859 F.3d 741, 762 (9th Cir. 2017) (Trump I), stay granted in part and denied in part, Trump v.

15 Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017) (Trump II), vacated as moot, Trump v.

16 Hawaii, 138 S. Ct. 377 (2017) (Trump III). Dr. Elshikh’s mother-in-law had not visited the United

17 States for over ten years (long before EO-2 was issued), and hence her separation from her family

18 members had not been directly caused by the executive order. See id. The Ninth Circuit

19

20 countries to warrant awarding them parole. See Fact Sheet, Bureau of Population, Refugees, and

21

Migration, U.S. Dep’t of State and U.S. Dep’t of Homeland Sec., In-Country Refugee/Parole Program for Minors in El Salvador, Guatemala, and Honduras With Parents Lawfully Present in the United

22

States (Nov. 14, 2014), available at https://2009-2017.state.gov/j/prm/releases/factsheets/2014/ 234067.htm (last visited Mar. 1, 2019) (“An individual considered for parole may be eligible for

23

parole if DHS finds that the individual is at risk of harm, he/she clears all background vetting, there is no serious derogatory information, and someone has committed to financially support the individual

24

while he/she is in the United States.”). The defendants do not meaningfully contest those DHS determinations either. See 2017 RTQ – ECF No. 33-9 at 6 (AR000049) (DHS expressly stating that in

25 terminating the CAM Parole Program, it was not determining that children were no longer in danger).

34 Defs. Further Suppl. Br. – ECF No. 70 at 2 (“The harm to these plaintiffs consists of continued

26 family separation and potential exposure to violence in their countries—situations that were not caused

by defendants. For the children-plaintiffs, living with the identified harms is the status quo. By

27 terminating the CAM program, the Trump Administration removed the helping hand that the Obama

Administration had extended, but it did not cause the underlying harm.”).

28

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1 nonetheless held that Dr. Elshikh’s showing of “prolonged separation from family members”

2 constituted irreparable harm warranting an injunction barring the government from enforcing the

3 travel ban. Id. at 782–83. The Ninth Circuit thus implicitly held that the causal-connection

4 requirement was satisfied in that case. On a petition for a writ of certiorari, the Supreme Court

5 considered the Ninth Circuit’s injunction and left it in place with respect to individuals in the 6 United States and family members abroad. Trump II, 137 S. Ct. at 2087.35 The Supreme Court did

7 not stay or set aside the Ninth Circuit’s injunction for failure to satisfy a causal-connection

8 requirement. See id.

9

The Supreme Court subsequently vacated the Ninth Circuit’s order as moot after the

10 government rescinded EO-2 and replaced it with a new executive order (“EO-3”). Trump III, 138

11 S. Ct. 377. On Dr. Elshikh’s (and Hawaii’s) renewed challenge to EO-3, the Ninth Circuit once

12 again held that Dr. Elshikh made a showing of irreparable harm warranting an injunction. Hawaii

13 v. Trump, 878 F.3d 662, 698–99 (9th Cir. 2017) (Trump IV), rev’d, Trump v. Hawaii, 138 S. Ct.

14 2392 (2018) (Trump V). The Ninth Circuit thus implicitly reaffirmed that the causal-connection

15 requirement was satisfied in that case. (The Supreme Court ultimately reversed Trump IV on the

16 issue of whether the plaintiffs had shown a likelihood of success on the merits, without addressing

17 the issue of irreparable harm or any causal-connection requirement. Trump V, 138 S. Ct. at 2423.)

18

While the Ninth Circuit’s decisions in Trump I and Trump IV were ultimately vacated or

19 reversed (on grounds unrelated to the irreparable-harm prong), the decisions nonetheless provide

20 insight into the application of the causal-connection requirement here. See generally Doe v.

21 Trump, 288 F. Supp. 3d 1045, 1069 n.15 (W.D. Wash. 2017) (Doe I) (“[Trump v.] Hawaii I . . .

22 remains persuasive authority despite the Supreme Court’s vacatur.”) (citing Orhorhaghe v. INS, 38

23 F.3d 488, 493 n.4 (9th Cir. 1994)), recons. denied, 284 F. Supp. 3d 1182 (W.D. Wash. 2018) (Doe

24 II). Like this case, those cases involved a U.S. resident plaintiff separated from family members

25

26 35 The Supreme Court stayed the injunction with respect to foreign nationals who did not have a
27 “credible claim” of a “bona fide relationship” with a person or entity in the United States. Trump II,
137 S. Ct. at 2088. 28

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1 living outside the United States. As in this case, in those cases the government was not the

2 immediate direct cause of the familial separation, which long predated the government’s actions.

3 The Ninth Circuit nonetheless affirmed injunctions in those cases, thereby implicitly holding that

4 there was a sufficient causal connection in those cases between the alleged irreparable harm

5 (prolonged familial separation) and the activity to be enjoined (the government’s travel ban

6 preventing family members from traveling to the United States) to warrant injunctive relief. The

7 court here similarly finds that there is a sufficient causal connection between alleged irreparable

8 harm (prolonged familial separation and physical danger to the beneficiary-children plaintiffs) and

9 the activity to be enjoined (the government’s mass-rescission of beneficiaries’ conditional parole

10 into the United States). Cf. Trump I, 859 F.3d at 782–83; Trump IV, 878 F.3d at 698–99; see Nat’l

11 Wildlife, 886 F.3d at 819 (“[A] plaintiff ‘need not further show that the action sought to be

12 enjoined is the exclusive cause of the injury.’ . . . Irreparable harm may be caused by activities

13 broader than those that plaintiffs seek to enjoin.”) (quoting M.R., 697 F.3d at 728).

14

The defendants also argue that even if the court were to vacate DHS’s mass-rescission of

15 conditional parole, DHS would retain discretion whether to ultimately grant or deny parole to any

16 conditionally approved beneficiary. Whether DHS retains discretion or whether CAM Parole

17 Program participants lack an enforceable “right” to parole in any individual case does not vitiate

18 the causal connection or render injunctive relief inappropriate. Cf. Kuang v. U.S. Dep’t of Def.,

19 340 F. Supp. 3d 873, 920–21 (N.D. Cal. 2018) (holding that “[d]elaying naturalization

20 applications after applicants have been promised an expedited path to citizenship constitutes

21 irreparable harm” and that “[w]hile Plaintiffs have no ‘right to naturalization,’ they can still suffer

22 irreparable harm from unjustified delays in the process”) (quoting Kirwa v. United States, 285 F.

23 Supp. 3d 21, 42 (D.D.C. 2017)), appeal docketed, No. 18-13781 (9th Cir. filed Dec. 17, 2018); see

24 also Doe I, 288 F. Supp. 3d at 1064–65 (executive order and agency memo that suspended certain

25 derivative refugees from being able to enter the United States inflicted harm even if derivative

26 refugees would be subject to additional requirements before they could enter the United States in

27 any event because “[w]hether [a derivate refugee] has other hurdles to cross . . . does not diminish

28 the fact that the [] provisions of the Agency Memo adds two more” and thus causes harm).

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1 Vacating DHS’s mass-rescission of conditional parole removes at least some of the hurdles, if not

2 all, to the beneficiary-children plaintiffs’ ability to travel to the United States and relieve the harm

3 they and their parents suffer. As the Ninth Circuit has recognized, “[i]t is not an abuse of

4 discretion for a court to issue an injunction that does not completely prevent the irreparable harm 5 that it identifies.” Nat’l Wildlife, 886 F.3d at 822.36

6

2.2.2 CASA

7

2.2.2.1 Harm

8

The Ninth Circuit has recognized that an organizational plaintiff’s suffering “ongoing harms to

9 [its] organizational missions” can constitute irreparable harm. Valle del Sol Inc. v. Whiting, 732

10 F.3d 1006, 1029 (9th Cir. 2013). Courts within this circuit have granted preliminary injunctions to

11 organizations on the basis of harm to the organizations’ missions, reputations, goodwill, and 12 funding.37 For example, in East Bay Sanctuary Covenant v. Trump, __ F. Supp. 3d __, No. 18-cv-

13 06810-JST, 2018 WL 6660080 (N.D. Cal. Dec. 19, 2018) (East Bay II), appeal docketed, No. 18-

14 17436 (9th Cir. filed Dec. 26, 2018), four legal and social-services immigration organizations

15

16 36 The court extended the defendants (and the plaintiffs) the opportunity to submit supplemental

briefing specifically on the causal-connection requirement. Req. for Suppl. Briefing – ECF No. 69.

17 The defendants did not cite any cases on point that establish that the causal-connection requirement

has not been satisfied here.

18

The defendants first cite Winter v. National Resources Defense Council, Inc., 555 U.S. 7 (2008). The

19

plaintiffs there sought to enjoin the Navy from conducting sonar exercises that the plaintiffs alleged harmed marine mammals. Id. at 16–17. The plaintiffs’ ultimate legal claims there, however, were that

20

the Navy had to prepare an environmental-impact statement (“EIS”), not that it had to stop conducting sonar exercises. Id. at 32. The portion of the Winter opinion that the defendants cite is dictum about

21

what the appropriate relief after a final judgment might be and how a permanent injunction barring sonar exercises (as opposed to an injunction tailored to the preparation of an EIS) might be an abuse of

22

discretion. Id. at 32–33. This case does not address the causal-connection requirement for irreparable harm on a preliminary injunction. The defendants also cite Fiallo v. Bell, 430 U.S. 787, 792 (1977), to

23

argue that the exclusion of aliens is a “fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control,” and Bruker v. City of New York, No.

24

93Civ.3848(MGC) (HBP), 2003 WL 256801, at *6 (S.D.N.Y. Feb. 4, 2003), and Gebhardt v. Nielsen, 879 F.3d 980, 988 (9th Cir. 2018), to argue that the plaintiffs have no due-process right to reunite with

25

their families. These arguments go to the merits of the plaintiffs’ claims, not the separate issue of irreparable harm and its attendant causal-connection requirement. Cf. Leiva-Perez, 640 F.3d at 969

26 (consideration of irreparable harm should be “determined apart from merits issues”).

37 While purely monetary harm is not normally considered “irreparable,” it may be irreparable in

27 certain contexts, including in APA cases because the APA does not permit recovery of monetary

damages. Azar, 911 F.3d at 581 (citing 5 U.S.C. § 702).

28

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1 argued that a government rule that makes anyone who crosses the U.S. southern border

2 somewhere other than at a designated point of entry ineligible for asylum, inflicted irreparable

3 harm on the organizations. Id. at *7–8. The court there held that “the Organizations ‘have

4 established a likelihood of irreparable harm’ based on their showing of serious ‘ongoing harms to

5 their organizational missions,’ including diversion of resources and the non-speculative loss of

6 substantial funding from other sources,” warranting a preliminary injunction. Id. at *13 (citing

7 Valle del Sol, 732 F.3d at 1029). Similarly, in Doe I, 288 F. Supp. 3d 1045, two organizations that

8 provide services to and help resettle refugees in the United States argued that an executive order

9 and agency memo suspending certain derivative refugees from entering the United States inflicted

10 irreparable harm on them because resources that the organizations had devoted to resettling

11 refugees would be wasted, and the organizations would have to divert resources to address fears

12 raised by the executive order and agency memo, cancel established programs, lose relationships

13 and goodwill with volunteers and community partners, and lay off employees. Id. at 1061–62,

14 1066. The court there held that “[i]n short, the Agency Memo threatens the organizational

15 Plaintiffs’ mission, services, and goodwill, and therefore causes them irreparable harm,”

16 warranting a preliminary injunction. Id. at 1082–83; accord Doe II, 284 F. Supp. 3d at 1185.

17

Named plaintiff CASA is an immigrant-rights organization whose mission is to improve the

18 quality of life in low-income immigrant communities, including by offering a wide variety of

19 social, health, job-training, employment, and legal services to immigrant communities, and 20 advocating for immigrant rights and social justice.38 CASA’s Chief of Programs and Services

21 submitted a declaration that CASA has devoted significant resources over the life of the CAM

22 Program to help members apply for the Program, to engage in a major education and outreach

23 campaign to inform members about the Program, and to seek out partnerships with refugee24 resettlement nonprofits who could submit Program applications on behalf of its members.39 A

25 significant number of CASA staff worked on the CAM Program (two managers, three paralegals,

26
27 38 Escobar Decl. – ECF No. 24-2 at 2 (¶¶ 3–5). 39 Id. at 3–4 (¶¶ 8–13).
28

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1 four organizers, and 25 volunteers) and invested approximately 6,000 staff hours (equivalent to

2 approximately $125,000 in salaries paid), a significant investment of CASA’s time and 3 resources.40 In the wake of DHS’s mass-rescinding conditional approvals of parole for Program

4 beneficiaries, CASA had to divert more resources to assist its members affected by the mass-

5 rescission in finding alternative legal options for their family members and was forced to redirect

6 resources, including altering staff and volunteer work plans and reassigning employees who had 7 assisted with the CAM Program and had built considerable expertise with the Program.41 CASA

8 also suffered damage to its reputation as a trusted provider to a vulnerable community, because

9 applicant families are frustrated because the CAM Program’s long application process in many

10 cases proved unfruitful, and many believe that CASA has placed them at risk of being targeted by

11 the government’s anti-immigrant policies as a result of their submitting significant private

12 information (including DNA, addresses, and other confidential details) to the government as part 13 of the Program’s application process.42 This impairment of CASA’s organizational mission, loss

14 of reputation and goodwill, and financial impairment constitutes irreparable harm. Cf. East Bay II,

15 __ F. Supp. 3d __, 2018 WL 6660080, at *13; Doe I, 288 F. Supp. 3d at 1082–83; Doe II, 284 F.

16 Supp. 3d at 1185.

17

2.2.2.2 Causal connection

18

The court finds a sufficient causal connection between the irreparable harm that CASA claims

19 that it suffers (impairment of its organizational mission, loss of reputation and goodwill, and

20 financial impairment) and the activity to be enjoined (the government’s mass-rescission of

21 conditional parole), for the same reasons that apply to the CAM Parole Program participants.

22

The defendants argue that CASA is not suffering irreparable harm that can be remedied by

23 injunctive relief because “[t]he harm [to CASA] has already occurred, is unlikely to recur, and is

24

25

26 40 Id. at 3 (¶ 9).
27 41 Id. at 5–6 (¶¶ 17–18). 42 Id. at 5–6 (¶ 18).
28

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1 unlikely to be remedied by a temporary stay.”43 The harms to CASA, however, are ongoing: for

2 example, CASA is devoting resources on an ongoing basis to assist members affected by the

3 mass-rescission in finding alternative legal options for their family members. Cf. East Bay II, __ F.

4 Supp. 3d __, 2018 WL 6660080, at *13 (issuing preliminary injunction based on showing of

5 ongoing harms to organizational missions, including ongoing diversion of resources to find

6 alternatives to asylum).

7

* * *

8

The plaintiffs have satisfied the second preliminary-injunction factor.

9

10 3. Balance of Harms and Public Interest

11

3.1 Governing Law

12

Where the government is the party opposing the preliminary injunction, the third and fourth

13 preliminary-injunction factors — assessing the harm to the opposing party and weighing the

14 public interest — merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014)

15 (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).

16

3.2 Application

17

The plaintiffs have submitted evidence that they will suffer irreparable harm in the absence of

18 injunctive relief. Additionally, the plaintiffs have shown a likelihood of success on the merits of

19 their APA claims, and “[t]he public interest is served by compliance with the APA: ‘[t]he APA

20 creates a statutory scheme for informal or notice-and-comment rulemaking reflecting a judgment

21 by Congress that the public interest is served by a careful and open review of proposed

22 administrative rules and regulations.’” Azar, 911 F.3d at 581 (quoting Alcaraz v. Block, 746 F.2d 23 593, 610 (9th Cir. 1984)).44

24

25 43 Defs. Suppl. Opp’n – ECF No. 61 at 3; accord Defs. Further Suppl. Br. – ECF No. 70 at 5–6.
26 44 The focus is not solely on the result, i.e., whether DHS, had it complied with the APA, nonetheless could have achieved the same result (mass-rescinding conditional approvals of parole) that the
27 plaintiffs challenge here. “[T]he public interest is served from proper process itself.” Azar, 911 F.3d at 581–82 (citing Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 976 (9th Cir. 2003)).
28

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1

In opposition, the defendants argue that “[a]ny order that enjoins a governmental agency from

2 enforcing statutes and executive orders promulgated by the duly-elected representatives of the

3 people constitutes an irreparable injury that weighs heavily against the entry of injunctive relief” 4 and that the balance of harms and public interest thus weigh in their favor.45 This argument

5 reaches too far. The APA is a statute promulgated by duly elected representatives too, and courts

6 may enjoin an agency when it violates the APA. Regents II, 908 F.3d at 512 (preliminary-

7 injunctive relief “is commonplace in APA cases”); see also Ramos v. Nielsen, 336 F. Supp. 3d

8 1075, 1088 (N.D. Cal. 2018) (“The risk of interference with governmental actions inheres in any

9 public injunction, but that does not categorically bar such injunctions. While courts must exercise

10 particular caution in issuing injunctions on matters that concern immigration given Congress and

11 the President’s extensive authority in this arena, it is beyond peradventure that governmental

12 decision[s], even those that concern [] immigration, are not immune from judicial review.”) (citing

13 Zadvydas v. Davis, 533 U.S. 678, 682 (2001); Osorio-Martinez v. Att’y Gen. U.S.A., 893 F.3d 153,

14 175 (3d Cir. 2018)). The defendants argue that the plaintiffs “seek[] to use the courts to undermine 15 the policy consequences of an election.”46 But while a new administration may change the policies

16 of its predecessor — “[e]lections have policy consequences,” S.A., __ F. Supp. 3d __, 2018 WL

17 6470253, at *31 (quoting Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 968 (9th

18 Cir. 2015) (en banc)) — it may not violate the APA when it does so. Organized Vill. of Kake, 795

19 F.3d at 968 (“even when reversing a policy after an election,” an agency must comply with the

20 APA).

21

The defendants have not put forth evidence of how a preliminary injunction might cause them

22 specific injury or harm in this case. The defendants do not point to any national-security threat

23 posed by the CAM Parole Program participants here. They have not established that DHS would 24 be unduly burdened if the court vacates its mass-rescission of conditional approvals of parole.47

25
26 45 Defs. Opp’n – ECF No. 32 at 28. 46 Id.
27 47 The defendants submitted a declaration from USCIS’s Chief of the International Operations 28 Division that discusses the work USCIS and USCIS’s third-party contractor, the International

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1 The defendants’ vague claims about burden generally are insufficient to establish that the balance

2 of harms or the public interest favor their position. Cf. Doe I, 288 F. Supp. 3d at 1083 (issuing

3 preliminary injunction where “Defendants have not put forth evidence of how a preliminary

4 injunction might cause specific injury or harm [to Defendants] in this instance”).

5

The plaintiffs have satisfied the third and fourth preliminary-injunction factors here.

6

7 4. Scope of the Injunction

8

4.1 Governing Law

9

“‘District courts have broad latitude in fashioning equitable relief when necessary to remedy

10 an established wrong.’” Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1024 (9th Cir. 2016)

11 (quoting Earth Island Inst. v. Carlton, 626 F.3d 462, 475 (9th Cir. 2010)). “The ‘purpose of a

12 preliminary injunction is to preserve the status quo ante litem pending a determination of the

13 action on the merits.’” Id. (quoting Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1023 (9th Cir.

14

15 Organization for Migration (“IOM”), did to process beneficiaries that DHS had conditionally approved
for parole. Rosenberg Decl. – ECF No. 61-1 at 2–3 (¶¶ 5–7). USCIS’s contract and budget with IOM 16 provided for two people in Honduras, one person in Guatemala, and two people in El Salvador (plus a
third person spending 50% of his time) working on CAM Program processing. Id. at 3 (¶ 7). This 17 included both post-approval processing for beneficiaries who were conditionally approved for parole
and pre-approval processing for beneficiaries who were applying for parole (and refugee) status. Hr’g 18 Tr. – ECF No. 75 at 6. Counsel for the defendants was not able to say how much time these spent
solely on post-approval (and not pre-approval) processing for beneficiaries conditionally approved for 19 parole (and not for refugee status), id. at 7, but logically it must be less than 100%.

20

USCIS’s contract with IOM for CAM Parole Program processing ended in 2017. Rosenberg Decl. – ECF No. 61-1 at 4 (¶ 8). The defendants do not claim that USCIS could not enter into a new contract

21

with IOM to process beneficiaries that DHS conditionally approved for parole, or, alternatively, that USCIS could not do that work itself or outsource it to another third party. The plaintiffs argue, and the

22

defendants do not dispute, that IOM continues to work with USCIS to process beneficiaries who were approved as refugees. See M.C. Decl. – ECF No. 24-5 at 12 (¶¶ 4–7) (IOM processing refugee

23

applications in June 2018); accord Hr’g Tr. – ECF No. 75 at 7–8 (plaintiffs’ asserting, and defendants’ not denying, that IOM is continuing to process refugee applications as late as January 2019). It thus

24

appears that USCIS can make arrangements to process beneficiaries who were conditionally approved for parole.

25 The court also notes that the defendants did not offer any evidence of burden in their initial
opposition to the plaintiffs’ preliminary-injunction motion. See Defs. Opp’n – ECF No. 32 at 28–29. 26 The court called for supplemental briefing and gave the defendants an opportunity to submit evidence
on the burdens that the government might have to bear if it had to restart processing conditionally 27 approved CAM Parole Program beneficiaries. Order – ECF No. 52 at 2. The defendants did not submit
any evidence on this issue other than the one USCIS declaration. Defs. Suppl. Opp’n – ECF No. 61. 28

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1 2009)). “The status quo ante litem refers not simply to any situation before the filing of a lawsuit,

2 . . . . [which c]ould lead to absurd situations, in which plaintiffs could never bring suit once

3 [unlawful] conduct had begun,” but “instead to ‘the last uncontested status which proceeded the

4 pending controversy.’” GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1210 (9th Cir. 2000)

5 (quoting Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir. 1963)); accord

6 Boardman, 822 F.3d at 1024 (quoting GoTo.com, 202 F.3d at 1210).

7

“‘The scope of injunctive relief is dictated by the extent of the violation established, not by the

8 geographical extent of the plaintiff.’” East Bay Sanctuary Covenant v. Trump, 909 F.3d 1219,

9 1255 (9th Cir. 2018) (East Bay I) (internal brackets omitted) (quoting Califano v. Yamasaki, 442

10 U.S. 682, 702 (1979)). “An injunction may extend ‘benefit or protection’ to nonparties ‘if such

11 breadth is necessary to give prevailing parties the relief to which they are entitled.’” Id. (quoting

12 Bresgal v. Brock, 843 F.2d 1163, 1170 (9th Cir. 1987)). “Equitable relief may ‘be no more

13 burdensome to the defendant than necessary to provide complete relief to the plaintiffs.’” Id.

14 (quoting Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994)).

15

“In immigration matters, [the Ninth Circuit] ha[s] consistently recognized the authority of

16 district courts to enjoin unlawful policies on a universal basis.” East Bay I, 909 F.3d at 1255

17 (citing Regents II, 908 F.3d at 511; Trump IV, 878 F.3d at 701; Washington, 847 F.3d at 1166–67).

18 “‘Such relief is commonplace in APA cases, promotes uniformity in immigration enforcement,

19 and is necessary to provide the plaintiffs here with complete redress.’” Id. (quoting Regents II, 908

20 F.3d at 512). While the Ninth Circuit has “recognize[d] a growing uncertainty about the propriety

21 of universal injunctions,” it recently reaffirmed that its cases affirming nationwide injunctions in

22 the context of immigration enforcement are an “uncontroverted line of precedent.” Id. at 1255–56.

23

The Ninth Circuit recently confronted issues regarding the scope of a preliminary injunction in

24 the context of the Deferred Action for Childhood Arrivals (“DACA”) program. Regents II, 908

25 F.3d 476. There, DHS made the decision to rescind DACA and announced that all DACA requests

26 and applications for employment authorization would be rejected. Regents I, 279 F. Supp. 3d at

27

28

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1 1026. The plaintiffs brought an APA challenge to DHS’s rescission decision and sought a 2 preliminary injunction.48 The district court enjoined DHS from rescinding DACA and ordered it

3 “to maintain the DACA program on a nationwide basis on the same terms and conditions as were

4 in effect before the rescission . . ., including allowing DACA enrollees to renew their enrollments,

5 with [certain] exceptions[.]” Id. at 1048; accord Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 409

6 (E.D.N.Y. 2018) (similarly enjoining DHS from rescinding the DACA program and ordering DHS

7 to “continue processing both initial DACA applications and DACA renewal requests under the

8 same terms and conditions that applied before September 5, 2017, subject to [certain]

9 limitations”). It also ordered DHS to “post reasonable public notice that it will resume receiving

10 DACA renewal applications and prescribe a process consistent with this order.” Regents I, 279 F.

11 Supp. 3d at 1048. It further ordered DHS to “keep records of its actions on all DACA-related

12 applications and provide summary reports to the Court (and counsel) on the first business day of

13 each quarter.” Id. On appeal, the Ninth Circuit affirmed the district court’s injunction, holding that

14 the district court had the authority to vacate DHS’s decision to rescind DACA on a nationwide

15 basis and rejecting the government’s arguments that the injunction should be narrowed. Regents II,

16 908 F.3d at 511–12.

17

4.2 Application

18

4.2.1 The court’s injunction

19

The court holds that an injunction similar to the one that the Regents district court issued and

20 the Ninth Circuit affirmed is appropriate here and is necessary to preserve the status quo ante litem

21 pending a final determination of the case on the merits.

22

The court first addresses the issue of what the status quo ante litem is (an issue disputed by the

23 parties). The plaintiffs challenge not just DHS’s formal announcement in August 2017 that it was

24 mass-rescinding conditional approvals of parole but also DHS’s decision in January or February

25

26 48 The plaintiffs there also brought due-process and equal-protection claims and a claim for equitable
estoppel, Regents I, 279 F. Supp. 3d at 1027–28, but the district court relied on only the APA claims in 27 issuing a preliminary injunction, see id. at 1037–46; accord Regents II, 908 F.3d at 511 (affirming
preliminary injunction on the basis of district court’s “APA merits holding”). 28

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1 2017 to stop processing beneficiaries conditionally approved for parole without announcing that it 2 was doing so (which the plaintiffs characterize as a “secret shutdown”).49 Given this context, the

3 status quo ante litem is the point before January or February 2017 when DHS was still processing 4 conditionally approved beneficiaries.50 Cf. GoTo.com, 202 F.3d at 1210 (“The status quo ante

5 litem refers not simply to any situation before the filing of a lawsuit, but instead to ‘the last

6 uncontested status which preceded the pending controversy.’”) (citation omitted).

7

To preserve the status quo ante litem, the court orders the following.

8

First, the court vacates DHS’s decision to mass-rescind conditional approvals for the 2,714

9 beneficiaries conditionally approved for parole but who had not traveled to the United States. Cf.

10 Regents II, 908 F.3d at 511–12 (affirming preliminary injunction vacating agency action that

11 likely violates the APA and noting that “[s]uch relief is commonplace in APA cases”).

12

Second, the court orders DHS to continue the post-conditional-approval processing for these

13 2,714 beneficiaries under the policies and procedures that it had in place prior to January 2017 for

14 processing such beneficiaries, including the procedures described in USCIS’s publication Central

15 American Minors (CAM) Parole Program: Information for Conditionally Approved Applicants 16 (Exhibit 48 in the administrative record).51 Cf. Regents I, 279 F. Supp. 3d at 1048 (enjoining DHS

17 from rescinding the DACA program and ordering DHS to maintain the DACA program on the

18 same terms and conditions that were in effect before its attempt to terminate DACA, including

19 with respect to DACA renewal applications); Batalla Vidal, 279 F. Supp. 3d at 409 (similarly

20 enjoining DHS from rescinding the DACA program and ordering DHS to “continue processing

21

22 49 The defendants do not deny that DHS stopped processing conditionally approved beneficiaries in
23 January or February 2017. See Defs. Suppl. Opp’n – ECF No. 61 at 2.

24

50 The court held that DHS’s public announcement in August 2017 that it was terminating the CAM Parole Program mooted the plaintiffs’ APA challenge to the “secret shutdown” as it relates to DHS’s

25

terminating the CAM Parole Program going forward. S.A., __ F. Supp. 3d __, 2018 WL 6470253, at *32. By contrast, the plaintiffs’ challenge here relates to the mass-rescinding of conditional approvals

26

of parole that had already been issued. The alleged “secret shutdown” is relevant in determining the status quo ante litem with respect to that issue.

27 51 U.S. Citizenship & Immigration Servs., Central American Minors (CAM) Parole Program:
Information for Conditionally Approved Applicants (Nov. 23, 2015) – ECF No. 33-48. 28

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1 both initial DACA applications and DACA renewal requests under the same terms and conditions 2 that applied before September 5, 2017, subject to [certain] limitations”).52

3

The court notes that the defendants have raised the prospect that, even if DHS’s decision to

4 mass-rescind conditional approvals of parole were vacated and the beneficiaries’ conditional

5 approval were restored, DHS might refuse to process the beneficiaries in good faith and instead 6 might place the beneficiaries on an indefinite hold.53 The court thus explicitly orders that DHS

7 may not adopt any policy, procedure, or practice of not processing the beneficiaries or placing

8 their processing on hold en masse. Instead, DHS must process the beneficiaries in good faith.

9 Nothing in this order prevents DHS from placing any beneficiary’s processing on hold on an

10 individualized basis to the extent that it could do so under the policies and procedures it had in

11 place prior to January 2017.

12

Third, the court orders DHS, by March 21, 2019, to submit to the court and counsel a plan for

13 resuming processing the 2,714 beneficiaries, with benchmarks for assessing compliance. Cf.

14 Regents I, 279 F. Supp. 3d at 1048 (ordering DHS to prescribe a process consistent with the

15 court’s injunction order); Ramos, 336 F. Supp. 3d at 1108–09 (ordering DHS to report to the court

16 the administrative steps taken to comply with the court’s injunction order); see generally Thomas

17 v. County of Los Angeles, 978 F.2d 504, 510 (9th Cir. 1993) (“The district court is authorized to

18 direct the submission of [] reports to ensure compliance with an injunction. Provided it is not

19 ‘overly burdensome,’ such oversight can be a proper exercise of the district court’s discretion

20 ‘because it helps ensure compliance with the injunction.’”) (citing Gluth v. Kangas, 951 F.2d

21 1504, 1511 (9th Cir. 1991)).

22

23

24

25 52 The court does not order DHS or USCIS necessarily to reengage IOM to process these beneficiaries.
26 DHS and USCIS can opt to perform processing, use IOM, or contract with another third party. 53 See Defs. Suppl. Opp’n – ECF No. 61 at 2 (“If the Court were to stay the August 2017 agency
27 decision terminating that CAM Parole Program, as Plaintiffs request, the natural result would be for
the program to return to the holding pattern it was in prior to that decision, not to active processing.”). 28

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1

Nothing in this order compels DHS to reach any particular outcome with respect to the

2 processing of any individual beneficiary or prevents DHS from exercising its discretion with

3 respect to the parole of any individual beneficiary.

4

Nothing in this order prevents DHS from reconsidering its decision to mass-rescind

5 conditional approvals of parole, including reassessing the serious reliance interests of participants

6 conditionally approved for parole.

7

4.2.2 The defendants’ objections

8

The defendants raise several objections to the entry of a preliminary injunction.

9

The defendants first object that the preliminary injunction “does not seek to preserve the status

10 quo, as plaintiffs posit. Instead, plaintiffs seek to alter the status quo, asking the Court to turn back

11 the clock . . . and reinstate the [CAM Parole] program for applicants in the pipeline at the time it 12 was officially terminated.”54 To the extent that the court’s injunction “turn[s] back the clock,” it

13 does so to preserve the status quo ante litem, which — contrary to the defendants’ claims — is not

14 measured from the moment the plaintiffs filed their complaint but “instead to the ‘last uncontested

15 status which preceded the pending controversy.’” GoTo.com, 202 F.3d at 1210 (citation omitted).

16

The defendants argue that the plaintiffs did not file their complaint until ten months after DHS

17 announced the termination of the CAM Parole Program and that this delay counsels against entry

18 of an injunction. “But, ‘courts are loath to withhold relief solely’ because of delay, which ‘is not

19 particularly probative in the context of ongoing, worsening injuries.’” Disney, 869 F.3d at 866

20 (quoting Arc of Cal. v. Douglas, 757 F.3d 975, 990 (9th Cir. 2014)). Also, here, a number of the

21 plaintiffs initially responded to DHS’s decision to rescind their conditional approvals of parole by

22 first filing requests for review (“RFRs”) of the decisions denying them refugee status under the 23 CAM Refugee Program.55 Two plaintiffs, M.C. and J.C., did not have their RFRs denied until 24 June 2018.56 The other plaintiffs who filed RFRs received no responses when they filed this

25 54 Defs. Opp’n – ECF No. 32 at 15 (citations and internal quotation marks and brackets omitted).
26 55 B.E. Decl. – ECF No. 6-16 at 11 (¶ 22); G.E. Decl. – ECF No. 6-18 at 10 (¶ 18); A.B. Decl. – ECF 27 No. 6-14 at 10 (¶ 20); M.C. Decl. – ECF No. 24-5 at 12 (¶ 3); S.F. Decl. – ECF No. 24-6 at 11 (¶ 17).
56 M.C. Decl. – ECF No. 24-5 at 12 (¶¶ 4–7). 28

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1 action.57 The delay is not suggestive of the plaintiffs’ “sleeping on [their] rights,” as opposed to

2 the plaintiffs’ possibly “waiting to file for preliminary relief until a credible case for irreparable

3 harm can be made.” Cf. Arc. of Cal., 757 F.3d at 991.

4

The defendants argue that the plaintiffs are requesting a mandatory injunction that alters the

5 status quo, rather than a prohibitory injunction that maintains the status quo, and that their request

6 thus should be subject to a heightened standard. The Ninth Circuit has held, however, that

7 preliminary injunctions “that prohibit enforcement of a new law or policy . . . [are] prohibitory,”

8 not mandatory. Ariz. Dream Act Coalition v. Brewer, 757 F.3d 1053, 1061 (9th Cir. 2014); accord

9 Regents I, 279 F. Supp. 3d at 1025–26, 1048 n.20 (where plaintiffs did not file their complaint for

10 three months after DHS terminated the DACA program, court nonetheless held that its injunction

11 vacating DHS’s rescission of DACA and ordering DHS to continue processing DACA renewal

12 applications was prohibitory, not mandatory, as it simply preserved the status quo ante litem). Nor

13 does the fact that the injunction requires DHS to process conditionally approved beneficiaries

14 transform the injunction into a mandatory one. DHS previously processed such beneficiaries

15 during the status quo ad litem, and the court may order DHS to continue with that approach to

16 maintain that status quo. Cf. Regents I, 279 F. Supp. 3d at 1048 (requiring DHS to receive and 17 process DACA renewal applications); Batalla Vidal, 279 F. Supp. 3d at 409 (same).58

18

The defendants next object that a preliminary injunction would grant the plaintiffs the same

19 relief that they ultimately seek in their complaint. But the Ninth Circuit has held that, at least in

20

21

57 B.E. Decl. – ECF No. 6-16 at 11 (¶ 22); G.E. Decl. – ECF No. 6-18 at 10 (¶ 18); A.B. Decl. – ECF No. 6-14 at 10 (¶ 20); S.F. Decl. – ECF No. 24-6 at 11 (¶ 17).

22 58 The defendants cite Singh v. Carter, 185 F. Supp. 3d 11 (D.D.C. 2016), to argue that the injunction
here is mandatory. Defs. Opp’n – ECF No. 32 at 16. That case is inapposite. It involved a Sikh army 23 officer who sought a permanent religious accommodation to allow him to wear uncut hair, a beard, and
a turban as required by his faith but barred by Army grooming regulations. Singh, 185 F. Supp. 3d at 24 14. The Army had not previously granted the plaintiff a permanent accommodation that it later
rescinded. (After the plaintiff filed his complaint, the Army granted him a temporary limited 25 accommodation, but it never granted him a permanent one. Id. at 15.) The preliminary injunction the
plaintiff sought thus would not have preserved a preexisting status quo but would have imposed new, 26 never-before-instituted obligations on the Army. The court held that such a preliminary injunction
would be mandatory. Id. at 17 (“the plaintiff’s requested injunction is mandatory — that is, . . . its 27 terms would alter, rather than preserve, the status quo by commanding some positive act”). Here, by
contrast, a preliminary injunction would return to a preexisting status quo. 28

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1 the context of APA challenges in immigration matters, “[w]hen a reviewing court determines that

2 agency regulations are unlawful, the ordinary result is that the rules are vacated,” and the fact that

3 vacatur is the ordinary relief provided on a final judgment does not undermine a preliminary

4 injunction that vacates the agency’s actions on a preliminary basis. Regents II, 908 F.3d at 511–12

5 (quoting Nat’l Mining Ass’n v. U.S. Army Corps. of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 6 1998)).59

7

The defendants next object that the court cannot enjoin the Secretary of Homeland Security’s

8 exercise of discretion with respect to parole decisions. This concern is misplaced. As stated above,

9 the court does not enjoin the Secretary’s exercise of discretion and does not require DHS to reach

10 a particular ultimate decision on parole with respect to any given beneficiary. Cf. Regents I, 279 F.

11 Supp. 3d at 1048 (issuing injunction but allowing DHS to exercise fair discretion on an

12 individualized basis and not constraining DHS’s ability to remove any individual DACA enrollee

13 that DHS determines in its judgment should be removed); Batalla Vidal, 279 F. Supp. 3d at 437

14 (issuing injunction but holding that DHS “of course, may adjudicate DACA renewal requests on a

15

16

17

59 The defendants cite Taiebat v. Scialabba, No. 17-cv-0805-PJH, 2017 WL 747460 (N.D. Cal. Feb. 27, 2017), to argue that a preliminary injunction that provides the same relief that the plaintiffs

18

ultimately seek after a full judgment is improper. That case, which was not an APA case, is inapposite. The plaintiff there was a non-citizen who sought a writ of mandamus compelling USCIS to process his

19

application for an adjustment of his immigration status. Id. at *1. The plaintiff sought a preliminary injunction compelling USCIS to process his application — the same relief he requested in his petition

20

for a writ of mandamus. Id. at *2–3. The court denied the plaintiff’s request for a preliminary injunction on the grounds that the plaintiff was not seeking to preserve any preexisting status quo and

21

instead “[wa]s seeking a mandatory injunction that would require the government to immediately adjudicate his petition for adjustment of status.” Id. at *3. Here, by contrast, a preliminary injunction

22 would return the plaintiffs to a preexisting status quo.

The defendants also cite University of Texas v. Camenisch, 451 U.S. 390 (1981), to argue that “[i]t is

23 generally inappropriate for a federal court at the preliminary-injunction stage to give a final judgment

on the merits.” Defs. Opp’n – ECF No. 32 at 16 (citing Camenisch, 451 U.S. at 395). This argument

24 does not change the outcome either. Camensich said nothing about the form that preliminary injunctive

relief could or could not take: the question of a preliminary injunction in that case was moot, and the

25 Court declined to address it. Id. at 394. What the Court was saying was that findings of fact and

conclusions of law made by a court in granting a preliminary injunction are just that — preliminary —

26 and do not bind the court at a trial on the merits. Id. at 395. As a result, it is inappropriate to enter a

final judgment (such as a summary judgment) at the preliminary-injunction stage. See id. at 395–96.

27 The court is not entering a final judgment here — and nothing in Camenisch holds that the scope of a

preliminary injunction cannot overlap with the relief requested for an eventual final judgment. 28

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1 case-by-case, individualized basis”). The court requires only that DHS follow the procedures that 2 were previously in place with respect to processing conditionally approved beneficiaries.60

3

The defendants next argue that any preliminary injunction should be limited to the named

4 plaintiffs who were CAM Parole Program participants. In support of this argument, the defendants

5 cite Azar, 911 F.3d 558, where the Ninth Circuit narrowed a preliminary injunction issued in

6 connection with a challenge to regulations promulgated under the Affordable Care Act from

7 applying nationwide to applying only in those states that were plaintiffs in the case. Id. at 582– 8 84.61 The defendants do not explain how an injunction limited to the named individual plaintiffs in

9 this case would provide full relief to CASA. Cf. East Bay I, 909 F.3d at 1256 (declining to narrow

10 nationwide injunction where “the Government failed to explain how the district court could have

11 crafted a narrower remedy that would have provided complete relief to the Organizations”)

12 (internal quotation marks and brackets omitted) (citing Regents II, 908 F.3d at 512). Azar also did

13 not involve immigration, an area where the Ninth Circuit has “consistently recognized the

14 authority of district courts to enjoin unlawful policies on a universal basis” to “promote[]

15 uniformity in immigration enforcement, and . . . provide the plaintiffs . . . with complete redress.”

16 East Bay I, 909 F.3d at 1255 (citing Regents II, 908 F.3d at 511–12; Trump IV, 878 F.3d at 701;

17 Washington, 847 F.3d at 1166–67). “Because Azar did not involve immigration laws, it did not

18 cast doubt on the Ninth Circuit’s ‘uncontroverted line of precedent’ regarding nationwide

19 injunctions in this context, which assuredly involve issues of ‘nationwide impact.’” East Bay II, __

20 F. Supp. 3d __, 2018 WL 6660080, at *17 (citing East Bay I, 909 F.3d at 1256; Azar, 911 F.3d at

21 584).

22

Finally, the defendants argue that the court should remand DHS’s decision to mass-rescind

23 conditional approvals of parole to DHS for reconsideration, rather than enjoining or vacating

24

25 60 Accord Pls. Suppl. Reply – ECF No. 67 at 3 (“Plaintiffs do not ask the Court to mandate a particular

26

outcome in any given CAM application, but simply to require Defendants (including Border Patrol) to follow their own procedures that were in place during the last uncontested status.”).

27 61 Within those states, the injunction still applied statewide and thus affected nonparties beyond the
named plaintiffs in the case. 28

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1 DHS’s decision.62 (On February 27, 2019, two weeks after the second hearing in this case, the

2 Director of USCIS submitted a declaration stating that USCIS is currently undergoing a 3 reconsideration process that is expected to take approximately 60 days.63) The Ninth Circuit has

4 affirmed the propriety of preliminary injunctions in APA cases staying or vacating agency action

5 over remanding the matter to the agency. See Regents II, 908 F.3d at 511–12. While “‘[a] federal

6 court ‘is not required to set aside every unlawful agency action,’ and the ‘decision to grant or deny

7 injunctive or declaratory relief under APA is controlled by principles of equity,’” the defendants

8 have not persuaded the court why it should decline to issue an injunction here. All. for the Wild

9 Rockies v. U.S. Forest Serv., 907 F.3d 1105, 1121 (9th Cir. 2018) (quoting Nat’l Wildlife Fed’n v.

10 Espy, 45 F.3d 1337, 1343 (9th Cir. 1995)). While DHS can consider the issue for as long as it 11 wants, the court issues a preliminary injunction now to preserve the status quo ante litem.64

12

13

CONCLUSION

14

The court grants in part and denies in part the plaintiffs’ motion for a preliminary injunction.

15 The court denies the plaintiffs’ motion to enjoin DHS from terminating the CAM Parole Program

16 going forward. The court grants the motion to require DHS to continue to process the 2,714

17 conditionally approved beneficiaries under the procedures that it had in place for processing the

18 beneficiaries before it terminated the Program and orders the following:

19

1. DHS’s decision to mass-rescind conditional approvals for the 2,714 beneficiaries

20

conditionally approved for parole but who had not traveled to the United States is vacated.

21

2. DHS must continue the post-conditional-approval processing for the 2,714 beneficiaries

22

under the policies and procedures for processing beneficiaries that it had in place before

23

24 62 Defs. Suppl. Opp’n – ECF No. 61 at 4–7.
25 63 Cissna Decl. – ECF No. 76-1 at 2 (¶ 2). 64 Compare id. (stating 79 days after the court first issued its order denying in part the defendants’
26 motion to dismiss that USCIS plans to reconsider the issue for an additional 60 days) with NAACP v. Trump, 298 F. Supp. 3d 209, 249 (D.D.C. 2018) (issuing preliminary injunction vacating DHS’s
27 decision to rescind DACA and staying injunction and giving DHS 90 days to better explain its decision).
28

ORDER – No. 18-cv-03539-LB

29

Case 3:18-cv-03539-LB Document 77 Filed 03/01/19 Page 30 of 30

United States District Court Northern District of California

1

January 2017, including the procedures described in USCIS’s publication Central

2

American Minors (CAM) Parole Program: Information for Conditionally Approved

3

Applicants (Exhibit 48 in the administrative record). DHS is preliminarily enjoined from

4

adopting any policy, procedure, or practice to not process the beneficiaries or to place their

5

processing on hold en masse. Nothing in this order prevents DHS from placing any

6

beneficiary’s processing on hold on an individualized basis to the extent that it could do so

7

under the policies and procedures it had in place before January 2017.

8

3. By March 21, 2019, DHS must submit to the court and counsel its plan for processing

9

these 2,714 beneficiaries with benchmarks for assessing compliance.

10

4. Nothing in this order compels DHS to reach any particular outcome with respect to the

11

processing of any individual beneficiary or prevents DHS from exercising its discretion

12

with respect to the parole of any individual beneficiary.

13

5. Nothing in this order prevents DHS from reconsidering its decision to mass-rescind

14

conditional approvals of parole, including the serious reliance interests of participants

15

conditionally approved for parole.

16

17

IT IS SO ORDERED.

18

Dated: March 1, 2019

19

______________________________________

20

LAUREL BEELER United States Magistrate Judge

21

22

23

24

25

26

27

28

ORDER – No. 18-cv-03539-LB

30

 
 Case 3:18-cv-03539-LB Document 31 Filed 08/24/18 Page 1 of 3

1 ALEX G. TSE (CABN 152348)

United States Attorney

2 SARA WINSLOW (DCBN 457643)

Chief, Civil Division

3 WENDY M. GARBERS (CABN 213208)

Assistant United States Attorney

4 ALISON E. DAW (CABN 137026)

Assistant United States Attorney

5

450 Golden Gate Avenue, Box 36055

6

San Francisco, California 94102-3495

Telephone: (415) 436-6475

7

FAX: (415) 436-7234

wendy.garbers@usdoj.gov

8

Attorneys for the Federal Defendants

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 S.A.; J.A.; A.B.; R.C., on behalf of himself and as Guardian Ad Litem for J.C., a minor child;
14 M.C.; D.D.; G.E., on behalf of himself and as Guardian Ad Litem for B.E., a minor child; J.F.
15 on behalf of himself and as Guardian Ad Litem for H.F. and A.F., minor children, on behalf of
16 themselves and on behalf of a class of all similarly situated individuals, and CASA,
17 Plaintiffs,
18 v.
19 DONALD J. TRUMP, in his official capacity as
20 President of the United States; U.S. DEPARTMENT OF HOMELAND
21 SECURITY; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S.
22 DEPARTMENT OF STATE; KIRSTJEN NIELSEN, in her official capacity as Secretary
23 of Homeland Security; MICHAEL R. POMPEO, in his official capacity as Secretary
24 of State; L. FRANCIS CISSNA, in his official capacity as Director of U.S. Citizenship and
25 Immigration Services; UNITED STATES OF AMERICA,
26 Defendants.
27

Case No. 18-CV-03539 LB
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS
Date: October 11, 2018 Time: 9:30 a.m.
The Honorable Laurel Beeler

28
DEFENDANTS’ NOTICE OF MOTION AND MTD Case No. 18-CV-03539 LB
1 30

Case 3:18-cv-03539-LB Document 31 Filed 08/24/18 Page 2 of 3

1

NOTICE OF MOTION AND MOTION

2

PLEASE TAKE NOTICE that on October 11, 2018, at 9:30 a.m., or as soon thereafter as the

3 matter may be heard, in Courtroom C, 15th Floor, of the United States District Court for the Northern

4 District of California, located at 450 Golden Gate Avenue, San Francisco, California, before the

5 Honorable Laurel Beeler, the Federal Defendants shall and hereby do move, pursuant to Federal Rules

6 of Civil Procedure 12(b)(1) and 12(b)(6), to dismiss all claims in the Class Action Complaint for

7 Declaratory and Injunctive Relief.

8

Through this Motion, the Federal Defendants seek an Order dismissing plaintiffs’ causes of

9 action: (1) under the Administrative Procedures Act, (2) for alleged Due Process violations, (3) for

10 alleged Equal Protection violations, and (4) for equitable estoppel. The Federal Defendants also seek to

11 have all claims of the alien parole applicants, who are nationals of, and currently residing in, either

12 Honduras, El Salvador or Guatemala, dismissed for lack of standing, as well as the direct injury claims

13 of CASA dismissed for lack of standing. Finally, all claims against President Trump should be

14 dismissed, as the President has absolute immunity and this Court lacks jurisdiction to enjoin him.

15

This Motion is based on the Memorandum In Opposition To Plaintiffs’ Motion For A

16 Preliminary Injunction And In Support Of Motion To Dismiss submitted herewith, the Administrative

17 Record submitted herewith, the pleadings, records and files in this action, and such other written or oral

18 argument as may be presented at or before the time this Motion is taken under submission by the Court.

19

ISSUES TO BE DECIDED

(Local Rule 7-4(A)(3))

20

21

1. Should plaintiffs’ claims under the Administrative Procedures Act be dismissed in light of the

22 fact that the agency has submitted an Administrative Record that reflects a facially legitimate basis for

23 termination of the CAM Parole Program?

24

2. Should plaintiffs’ Due Process claims be dismissed in light of the fact that plaintiffs lack a

25 constitutionally-protected interest in continuation of the CAM Parole Program?

26

3. Should plaintiffs’ Equal Protection claims be dismissed in light of the fact that the agency has

27 submitted an Administrative Record that reflects a facially legitimate basis for termination of the CAM

28
DEFENDANTS’ NOTICE OF MOTION AND MTD Case No. 18-CV-03539 LB
2 30

Case 3:18-cv-03539-LB Document 31 Filed 08/24/18 Page 3 of 3

1 Parole Program, and in light of the fact that termination of the CAM Parole Program does not single out

2 nationals of El Salvador, Guatemala and Honduras for less favorable parole consideration than nationals

3 of other countries?

4

4. Should plaintiffs’ equitable estoppel claims be dismissed in light of the fact that equitable

5 estoppel does not provide an affirmative cause of action?

6

5. Should the claims of the alien parole applicants, who are nationals of, and currently residing

7 in, either Honduras, El Salvador or Guatemala, be dismissed for lack of standing? Should CASA’s

8 direct injury claims also be dismissed for lack of standing?

9

6. Should all claims against President Trump be dismissed, in light of the fact that the President

10 has absolute immunity and this Court lacks jurisdiction to issue an injunction against the President?

11

12 DATED: August 24, 2018

Respectfully submitted,

13

ALEX G. TSE

United States Attorney

14

/s/ Wendy M. Garbers

15

WENDY M. GARBERS

Assistant United States Attorney

16

17

18

19

20

21

22

23

24

25

26

27

28
DEFENDANTS’ NOTICE OF MOTION AND MTD Case No. 18-CV-03539 LB
3 30

 
 Case 3:18-cv-03539-LB Document 32 Filed 08/24/18 Page 1 of 33

1 ALEX G. TSE (CABN 152348)

United States Attorney

2 SARA WINSLOW (DCBN 457643)

Chief, Civil Division

3 WENDY M. GARBERS (CABN 213208)

Assistant United States Attorney

4 ALISON E. DAW (CABN 137026)

Assistant United States Attorney

5

450 Golden Gate Avenue, Box 36055

6

San Francisco, California 94102-3495

Telephone: (415) 436-6475

7

FAX: (415) 436-7234

wendy.garbers@usdoj.gov

8

Attorneys for the Federal Defendants

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 S.A.; J.A.; A.B.; R.C., on behalf of himself and as Guardian Ad Litem for J.C., a minor child;
14 M.C.; D.D.; G.E., on behalf of himself and as Guardian Ad Litem for B.E., a minor child; J.F.
15 on behalf of himself and as Guardian Ad Litem for H.F. and A.F., minor children, on behalf of
16 themselves and on behalf of a class of all similarly situated individuals, and CASA,
17 Plaintiffs,
18 v.
19 DONALD J. TRUMP, in his official capacity as
20 President of the United States; U.S. DEPARTMENT OF HOMELAND
21 SECURITY; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S.
22 DEPARTMENT OF STATE; KIRSTJEN NIELSEN, in her official capacity as Secretary
23 of Homeland Security; MICHAEL R. POMPEO, in his official capacity as Secretary
24 of State; L. FRANCIS CISSNA, in his official capacity as Director of U.S. Citizenship and
25 Immigration Services; UNITED STATES OF AMERICA,
26 Defendants.
27

Case No. 18-CV-03539 LB
MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION AND IN SUPPORT OF MOTION TO DISMISS
Date: October 11, 2018 Time: 9:30 a.m.
The Honorable Laurel Beeler

28
MPA ISO OPP TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION/MTD Case No. 18-CV-03539 LB

30

Case 3:18-cv-03539-LB Document 32 Filed 08/24/18 Page 2 of 33

1 TABLE OF CONTENTS
2

3 INTRODUCTION .......................................................................................................................................1

4

BACKGROUND .........................................................................................................................................2

5

A. General Principles of Parole. ........................................................................................2

6

B. The CAM Parole Program. ...........................................................................................3

7

LEGAL STANDARDS ...............................................................................................................................5

8

A. Preliminary Injunction Standard. ...................................................................................5

9

B. Rule 12(b)(6) Standard. .................................................................................................6

10

C. Review Under the Administrative Procedure Act. ........................................................7

11

ARGUMENT ...............................................................................................................................................7

12

I.

Plaintiffs’ Request For A Preliminary Injunction That Alters The Status Quo

13

Should Be Denied. ............................................................................................................7

14

II.

Plaintiffs’ Cannot Satisfy Their Heighten Burden For Obtaining A

Mandatory Preliminary Injunction....................................................................................9

15

A. Plaintiffs Cannot Show That They Will Clearly Succeed On The Merits. ....................9

16

1. Plaintiffs Will Not Clearly Succeed On Their APA Causes Of Action.....................9

17

2. Plaintiffs Will Not Clearly Succeed On Their Due Process Claim. ........................13

18

3. Plaintiffs Will Not Clearly Succeed On Their Equal Protection Claim...................15

19

4. Plaintiffs Will Not Clearly Succeed On Their Equitable Estoppel Cause

20

Of Action. ..............................................................................................................17

21

B. Plaintiffs’ Request For Preliminary Injunctive Relief Is Contrary To The

Public Interest. .............................................................................................................20

22

III. NEITHER THE ALIEN PAROLE APPLICANTS NOR CASA HAS

23

STANDING. ...................................................................................................................21

24

A. The Alien Parole Applicants Lack Article III Standing To Proceed. ..........................21

25

B. CASA Also Lacks Prudential Standing To Pursue Relief On Its Own

Behalf. ..........................................................................................................................22

26

IV. THIS COURT LACKS JURISDICTION TO ENJOIN THE PRESIDENT,

27

AND THE CLAIMS AGAINST THE PRESIDENT MUST BE

DISMISSED. ..................................................................................................................23

28

i 30

Case 3:18-cv-03539-LB Document 32 Filed 08/24/18 Page 3 of 33

1

V.

THE COURT CANNOT ENTER CLASSWIDE, NATIONWIDE

INJUNCTIVE RELIEF...................................................................................................24

2

VI. PLAINTIFFS’ COMPLAINT SHOULD BE DISMISSED. ..........................................24

3

CONCLUSION ..........................................................................................................................................25

4

5

6 CASES
7 AARP v. EEOC,
8 226 F. Supp. 3d 7 (D.D.C. 2016) ................................................................................................................ 7

9 Am. Baptist Churches in the U.S.A. v. Meese, 666 F. Supp. 1358 (N.D. Cal. 1987) ......................................................................................................... 23
10 Am. Bioscience, Inc. v. Thompson,
11 269 F.3d 1077 (D.C. Cir. 2001) .................................................................................................................. 7

12 Ams. for Safe Access v. DEA, 706 F.3d 438 (D.C. Cir. 2013) .................................................................................................................... 7
13 Anderson v. United States,
14 612 F.2d 1112 (9th Cir. 1980) .................................................................................................................... 6

15 AR Ex. 2 [, Executive Order 13767 ............................................................................................................................. 21
16 Arizona Mun. Corp.,
17 471 F.3d 1100 (9th Cir. 2006) .................................................................................................................. 22

18 Arpaio v. Obama, 27 F. Supp. 3d 185 (D.D.C. 2014) ............................................................................................................ 22
19 Ashcroft v. Iqbal,
20 556 U.S. 662 (2009).................................................................................................................................... 6

21 Ass’n of Proprietary Colleges v. Duncan, 107 F. Supp. 3d 332 (S.D.N.Y. 2015)....................................................................................................... 15
22 Balistreri v. Pacifica Police Dep’t,
23 901 F.2d 696 (9th Cir. 1990) ...................................................................................................................... 6

24 Bd. of Regents of State Colleges v. Roth, 408 U.S. 564 (1972).................................................................................................................................. 15
25 Bell Atlantic Corp. v. Twombly,
26 550 U.S. 544 (2007).................................................................................................................................... 6

27 Benjamin v. United States Dep’t of State, No. 17-CV-03587-LB, 2018 WL 1142124 (N.D. Cal. Mar. 2, 2018) ...................................................... 22
28

ii 30

Case 3:18-cv-03539-LB Document 32 Filed 08/24/18 Page 4 of 33
1 Bolante v. Keisler, 506 F.3d 618 (7th Cir. 2007) .................................................................................................................... 10
2 Casa De Maryland v. U.S. Dep’t of Homeland Sec.,
3 284 F. Supp. 3d 758 (D. Md. 2018) ................................................................................................... passim
4 Chinese Am. Civic Council v. Attorney Gen., 396 F. Supp. 1250 (D.D.C. 1975) ............................................................................................................. 22
5 Chun v. Powell,
6 223 F. Supp. 2d 204 (D.D.C. 2002) .......................................................................................................... 22
7 Comm’n, 432 U.S. 333 (U.S. 1977).......................................................................................................................... 23
8 Conn. Bd. of Pardons v. Dumschat,
9 452 U.S. 458 (1981)............................................................................................................................ 14, 15
10 Dave v. Ashcroft, 363 F.3d 649 (7th Cir. 2004) .................................................................................................................... 23
11 Disney Enters., Inc. v. VidAngel, Inc.,
12 869 F.3d 848 (9th Cir. 2017) ...................................................................................................................... 5
13 Dobrowski v. Jay Dee Contractors, Inc., 571 F.3d 551 (6th Cir. 2009) .................................................................................................................... 18
14 Earth Island Inst. v. Carlton,
15 626 F.3d 462 (9th Cir. 2010) ...................................................................................................................... 5
16 Emery Min. Corp. v. Sec’y of Labor, 744 F.2d 1411 (10th Cir. 1984) .......................................................................................................... 18, 19
17 Estate of Amaro v. City of Oakland,
18 653 F.3d 808 (9th Cir. 2011) .................................................................................................................... 18
19 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009).............................................................................................................................. 7, 12
20 Fogo de Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec.,
21 769 F.3d 1127 (D.C. Cir. 2014) ................................................................................................................ 21
22 Friends of the Earth Inc., v. Laidlaw Envtl. Servs. Inc., 528 U.S. 167 (2000).................................................................................................................................. 22
23 Fry v. Melaragno,
24 939 F.2d 832 (9th Cir. 1991) .................................................................................................................... 24
25 Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) .................................................................................................................. 5, 6
26 Garcia-Mir v. Smith,
27 766 F.2d 1478 (11th Cir. 1985) ................................................................................................................ 14
28 Gerhart v. Lake Cty., Mont., 637 F.3d 1013 (9th Cir. 2011) .................................................................................................................. 14 iii
30

Case 3:18-cv-03539-LB Document 32 Filed 08/24/18 Page 5 of 33
1 Hall v. E.E.O.C.,
2 456 F. Supp. 695 (N.D. Cal. 1978) ........................................................................................................... 13
3 Hassan v. Chertoff, 593 F.3d 785 (9th Cir. 2010) .................................................................................................................... 10
4 Immigrant Assistance Project of Los Angeles Cty. Fed’n of Labor (AFL-CIO) v. I.N.S.,
5 306 F.3d 842 (9th Cir. 2002) .................................................................................................................... 24
6 Iqbal, 556 U.S. 678 ............................................................................................................................................... 6
7 Jeanty v. Bulger,
8 204 F. Supp. 2d 1366 (S.D. Fla. 2002) ............................................................................................... 11, 14
9 Johnson v. Mazza, No. 215CV09183ODWAS, 2016 WL 5842186 (C.D. Cal. Oct. 4, 2016)................................................ 18
10 Kleindienst,
11 408 U.S. 753 (1972)........................................................................................................................ 1, 11, 16
12 Kucana v. Holder, 558 U.S. 233 (2010).................................................................................................................................. 10
13 Kwai Fun Wong v. United States,
14 373 F.3d 952 (9th Cir. 2004) .................................................................................................................... 14
15 Leng May Ma v. Barber, 357 U.S. 185 (1958)................................................................................................................................ 2, 3
16 Lujan,
17 504 U.S. .............................................................................................................................................. 22, 23
18 M.R. v. Dreyfus, 697 F.3d 706 (9th Cir. 2012) .................................................................................................................... 25
19 Maldonado v. Macias,
20 150 F. Supp. 3d 788 (W.D. Tex. 2015)..................................................................................................... 22
21 Mason v. Brooks, 862 F.2d 190 (9th Cir. 1988) .............................................................................................................. 10, 11
22 Matter of Arrabally & Yerrabelly,
23 25 I. & N. Dec. 771 (BIA 2012) ................................................................................................................. 3
24 McCormack v. Hiedeman, 694 F.3d 1004 (9th Cir. 2012) .................................................................................................................. 25
25 McMichael v. Napa Cty.,
26 709 F.2d 1268 (9th Cir. 1983) .................................................................................................................. 23
27 Mendez-Garcia v. Lynch, 840 F.3d 655 (9th Cir. 2016) .................................................................................................................... 23
28
iv
30

Case 3:18-cv-03539-LB Document 32 Filed 08/24/18 Page 6 of 33
1 Moise v. Bulger, 321 F.3d 1336 (11th Cir. 2003) ................................................................................................................. 14
2 Morgan v. Gonzales,
3 495 F.3d 1084 (9th Cir. 2007) .................................................................................................................. 19
4 Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).............................................................................................................................. 7, 8, 9
5 Munoz v. Ashcroft,
6 339 F.3d 950 (9th Cir. 2003) .................................................................................................................... 13
7 Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007).................................................................................................................................... 7
8 New Motor Vehicle Bd. v. Orrin W. Fox Co.,
9 434 U.S. 1345 (1977)................................................................................................................................ 21
10 Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010) ................................................................................................................ 24
11 Nken v. Holder,
12 556 U.S. 418 (2009).................................................................................................................................. 20
13 Northwest Immigrant Rights Project v. United States Citizenship & Immigration Services 2016 WL 5817078 (W.D. Wash. Oct. 5, 2016) ........................................................................................................ 24
14 Organized Vill. of Kake v. U.S. Dep’t of Agric.,
15 795 F.3d 956 (9th Cir. 2015) .................................................................................................................... 12
16 Pennzoil Co. v. Dep’t of Energy, 480 F. Supp. 1126 (D. Del. 1979)............................................................................................................. 13
17 Perez v. Mortg. Bankers Ass’n,
18 135 S. Ct. 1199 (2015) .............................................................................................................................. 13
19 Regents of Univ. of California v. U.S. Dep’t of Homeland Sec., 298 F. Supp. 3d 1304 (N.D. Cal. 2018) ........................................................................................ 11, 13, 14
20 Republican Party of Pennsylvania v. Cortes,
21 218 F. Supp. 3d 396 (E.D. Pa. 2016) .................................................................................................... 7, 20
22 Salgado-Diaz v. Gonzales, 395 F.3d 1158 (9th Cir. 2005) .................................................................................................................. 18
23 Salt Pond Assocs. v. U.S. Army Corps of Eng’rs,
24 815 F. Supp. 766 (D. Del. 1993)............................................................................................................. 8, 9
25 Select Milk Producers, Inc. v. Johanns, 400 F.3d 939 (D.C. Cir. 2005) .................................................................................................................... 8
26 Sierra On-Line, Inc. v. Phoenix Software, Inc.,
27 739 F.2d 1415 (9th Cir. 1984) ................................................................................................................ 2, 6
28 Singh v. Carter, 185 F. Supp. 3d 11 (D.D.C. 2016) .............................................................................................................. 8 v
30

Case 3:18-cv-03539-LB Document 32 Filed 08/24/18 Page 7 of 33
1 Smith v. Ashcroft,
2 295 F.3d 425 (4th Cir. 2002) .................................................................................................................... 23
3 Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001) .................................................................................................................. 19
4 Sorannos Gasco, Inc. v. Morgan,
5 874 F.2d 1310 (9th Cir. 1989) .................................................................................................................. 15
6 Southdown, Inc. v. Moore McCormack Res., Inc., 686 F. Supp. 595 (S.D. Tex. 1988) ........................................................................................................... 21
7 Stanley v. Univ. of S. California,
8 13 F.3d 1313 (9th Cir. 1994) .................................................................................................................. 6, 8
9 Stevens v. Hayes, 2012 WL 2572790 (W.D. Tex. July 2, 2012), 535 F. App’x 358 (5th Cir. 2013),.................................... 24
10 Sulit v. Schiltgen,
11 213 F.3d 449 (9th Cir. 2000) .................................................................................................................... 19
12 Sun Il Yoo v. Immigration & Naturalization Serv., 534 F.2d 1325 (9th Cir. 1976) .................................................................................................................. 18
13 Sw. Bell Tel. Co. v. FCC,
14 168 F.3d 1344 (D.C. Cir. 1999) .................................................................................................................. 7
15 Taiebat v. Scialabba, No. 17-CV-0805-PJH, 2017 WL 747460 (N.D. Cal. Feb. 27, 2017) ......................................................... 8
16 Trump v. Hawaii,
17 138 S. Ct. 2392 (2018) ................................................................................................................ 1, 2, 16, 17
18 U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091 (9th Cir. 2010) .................................................................................................................... 6
19 United States ex rel. Accardi v. Shaughnessy,
20 347 U.S. 260 (1954).................................................................................................................................. 12
21 United States v. Valenzuela–Bernal, 458 U.S. 858 (1982).................................................................................................................................. 21
22 Univ. of Texas v. Camenisch,
23 451 U.S. 390 (1981).................................................................................................................................... 8
24 Villena v. Immigration & Naturalization Serv., 622 F.2d 1352 (9th Cir. 1980) .................................................................................................................. 18
25 Walker v. Reno,
26 925 F. Supp. 124 (N.D.N.Y. 1995) ..................................................................................................... 12, 13
27 Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989) .................................................................................................................... 19
28
vi
30

Case 3:18-cv-03539-LB Document 32 Filed 08/24/18 Page 8 of 33

1 Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982)............................................................................................................................ 20, 21
2 Winter v. Natural Res. Def. Council, Inc.,
3 555 U.S. 7 (2008)........................................................................................................................................ 5

4 Zepeda v. I.N.S., 753 F.2d 719 (9th Cir. 1983) .................................................................................................................... 25
5

6

STATUTES

7 5 U.S.C. § 705.......................................................................................................................................... 8, 9

8 5 U.S.C. § 706(2)(A).................................................................................................................................... 7

9 8 U.S.C. § 1182(d)(5) ............................................................................................................................ 3, 21

10 8 U.S.C. § 1182(d)(5)(A) ............................................................................................................... 2, 3, 9, 10

11 RULES
12 Federal Rule of Civil Procedure 12(b)(6) .................................................................................................... 6
13

14

REGULATIONS

15 8 C.F.R. § 212.5 ........................................................................................................................................... 3

16 8 C.F.R. § 212.5(e)................................................................................................................................... 3, 5

17

18

19

20

21

22

23

24

25

26

27

28

vii 30

Case 3:18-cv-03539-LB Document 32 Filed 08/24/18 Page 9 of 33

1

INTRODUCTION

2

The Supreme Court’s recent decision in in Trump v. Hawaii, 138 S. Ct. 2392 (2018), compels the

3 conclusion that plaintiffs are unlikely to succeed on the merits of their action challenging the termination

4 of the Central American Minors (“CAM”) Parole Program. In Hawaii, the Supreme Court emphasized

5 that judgments about immigration policy are to be made by Congress and the Executive, not the

6 Judiciary. “For more than a century, this Court has recognized that the admission and exclusion of

7 foreign nationals is a fundamental sovereign attribute exercised by the Government’s political

8 departments largely immune from judicial control.” 138 S. Ct. at 2418. The Court’s review of the

9 Executive’s admission decisions concerning foreign nationals is limited “to whether the Executive gave

10 a facially legitimate and bona fide reason for its action.” Id. at 2419. “It is not the judicial role in cases

11 of this sort to probe and test the justifications of immigration policies.” Id.

12

The Hawaii plaintiffs sought to cast doubt on the immigration policy at issue—the Presidential

13 Proclamation—by relying on “a series of statements by the President and his advisers.” Id. at 2417.

14 The Court, however, reaffirmed the applicability of Kleindienst v. Mandel’s “narrow standard of review”

15 in “admission and immigration cases.” Id. at 2419; see Kleindienst, 408 U.S. 753 (1972). At most, the

16 court should conduct rational basis review, considering “whether the entry policy is plausibly related to

17 the Government’s stated objective.” Id. at 2420. “As a result, [a court] may consider plaintiffs’

18 extrinsic evidence, but [must] uphold the policy so long as it can reasonably be understood to result from

19 a justification independent of unconstitutional grounds.” Id.

20

In light of the standard of review, “it should come as no surprise that the Court hardly ever

21 strikes down a policy as illegitimate under rational basis scrutiny.” Id. The Hawaii Court found that the

22 Presidential Proclamation at issue easily satisfied rational basis review. “[B]ecause there is persuasive

23 evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart

24 from any religious hostility, we must accept that independent justification.” Id. at 2421. The Court

25 declined to “substitute [its] own assessment for the Executive’s predictive judgments on such matters,

26 all of which are delicate, complex, and involve large elements of prophecy.” Id. The Court thus held

27 that plaintiffs had “not demonstrated a likelihood of success on the merits of their constitutional claim,”

28 and reversed the grant of a preliminary injunction. Id. at 2423.

1 30

Case 3:18-cv-03539-LB Document 32 Filed 08/24/18 Page 10 of 33

1

Termination of the CAM Parole Program passes Hawaii’s rational basis scrutiny. The Secretary

2 of Homeland Security’s rescission of the CAM Parole Program was based on the facially legitimate

3 view that only Congress—not the Executive—should create immigration programs applicable to pre4 designated categories of aliens. (AR Exs. 2, 5, 6, 9.1) The plain language of section 212(d)(5)(A) of the

5 Immigration and Nationality Act, 8 U.S.C. § 1182(d)(5)(A), which establishes the Secretary’s

6 discretionary authority to grant temporary parole “only on a case-by-case basis,” “strongly counsel[s] in

7 favor of using the parole authority sparingly and only in individual cases[.]” (AR Ex. 5.) This facially

8 neutral reason for rescission of the CAM Parole Program will plainly survive Hawaii’s rational basis

9 scrutiny. Accordingly, plaintiffs’ request for a preliminary injunction must be denied.

10

The request for a preliminary injunction must also be denied because it seeks to alter, not

11 maintain, the status quo. The CAM Parole Program was terminated on August 16, 2017—nearly ten

12 months before plaintiffs filed suit and eleventh months before they moved for a preliminary injunction.

13 The Ninth Circuit has made it clear that a preliminary injunction may not be used to obtain “a

14 preliminary adjudication on the merits,” but only to preserve the status quo pending final judgment.

15 Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). Through their

16 preliminary injunction motion, plaintiffs seek to undermine the status quo, and resurrect a program that

17 has long been terminated. This fact counsels strongly against entry of a preliminary injunction.

18

BACKGROUND

19

A. General Principles of Parole.

20

“Parole” exists separate and apart from the CAM Parole Program. Parole allows a foreign

21 national to be physically present in the United States for a specific, temporary period. See, e.g., Leng

22 May Ma v. Barber, 357 U.S. 185, 190 (1958) (observing that parole “was never intended to affect an

23 alien’s status” or result in a determination that “parole placed [the alien] legally within the United

24 States”). Parole of a foreign national into the United States is not an “admission” of that person into the

25 country in a valid immigrant or nonimmigrant status. See 8 U.S.C. § 1182(d)(5)(A). Under the

26

27

1 The agency’s Administrate Record is submitted herewith, and cited as “AR.” The

28 Administrative Record is comprised of 62 documents, which are appended as exhibits (“Ex.”) to the Index of the Administrative Record.

2

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1 Immigration and Nationality Act (“INA”), the decision to parole an alien into the United States

2 temporarily is a wholly discretionary determination made by the Secretary of Homeland Security, who is

3 to exercise such authority “only on a case-by-case basis for urgent humanitarian reasons or significant 4 public benefit[.]” Id.2

5

Department of Homeland Security (“DHS”) regulations generally describe DHS’s discretionary

6 parole authority. See 8 C.F.R. § 212.5. DHS may terminate parole at any time in the agency’s

7 discretion, consistent with existing regulations, and in those cases, the individual is “restored to the

8 status that he or she had at the time of parole.” 8 C.F.R. § 212.5(e); see also 8 U.S.C. § 1182(d)(5)(A).

9

A decision by DHS to exercise its discretion favorably that is made while the parole applicant is

10 still in his or her home country is a conditional authorization only. Conditional parole authorization

11 permits the applicant to travel to the United States. If an applicant is granted conditional parole

12 authorization, either U.S. Citizenship and Immigration Services (“USCIS”), a DHS component, or the

13 Department of State, at DHS’s direction, will issue travel documents to enable the applicant to travel to

14 a U.S. port-of-entry and request parole from U.S. Customs and Border Protection (CBP). (AR Ex. 1.)

15 The ultimate determination whether to parole an individual into the United States is made by CBP

16 officers upon the individual’s arrival at a U.S. port of entry. (Id.) If parole is ultimately granted, the

17 parolee may stay in the United States unless and until the parole period expires or is terminated. See 8

18 C.F.R. § 212.5(e).

19

B. The CAM Parole Program.

20

The CAM Parole Program was established by the DHS in 2014, along with the CAM Refugee

21 Program, to provide certain qualified minors in El Salvador, Guatemala and Honduras with a path to

22 reunite with parents already lawfully present in the United States. (AR Ex. 1.) The CAM programs

23 began accepting applications from qualifying parents in the United States for their children on December

24 1, 2014. (AR Ex. 11.) The CAM Refugee and Parole Programs provided eligible children the

25 opportunity to be considered, while still in their home country, for refugee resettlement in the United

26

27

2 Although 8 U.S.C. § 1182(d)(5) continues to refer to the Attorney General, this parole authority

28 now resides exclusively with the Secretary of Homeland Security. See Matter of Arrabally & Yerrabelly, 25 I. & N. Dec. 771, 777 n.5 (BIA 2012).

3

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1 States. Qualifying children who were denied refugee status were automatically considered for parole

2 into the United States. (AR Ex. 1.)

3

A qualifying child’s accompanying parent, sibling, or child could also be considered for parole

4 into the United States under the program. (AR Ex. 1.) If USCIS found a child or qualifying family

5 member to be ineligible for refugee status, the decision notice informed the applicant of whether he or

6 she had been instead conditionally approved for parole into the United States under the CAM Parole

7 program. (AR Exs. 1, 44.) “Significant public benefit” for parole was considered established if the

8 qualifying child or family member was found to meet the criteria for the program. (AR Exs. 41 at

9 AR000442, 44.) The applicant also had to merit a favorable exercise of discretion to be conditionally

10 approved for parole, which qualifying children typically did absent some adverse information in their

11 background. The CAM Parole Program was established, without notice and comment procedures, based

12 on the Secretary’s discretionary parole authority and broad authority to administer the immigration laws.

13 (AR Ex. 1.)

14

On August 16, 2017, then Acting Secretary Elaine Duke announced the termination of the

15 discretionary CAM Parole Program. (Id). Her decision to rescind the CAM Parole Program was made

16 in accordance with Executive Order 13767, which called for DHS to take appropriate action to ensure

17 that parole authority under § 212(d)(5) of the INA was exercised only individually, on a case-by-case

18 basis, in accordance with the plain language of the statute, “and in all circumstances only when an

19 individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such

20 parole.” (AR Exs. 2, 5, 6, 9.) The decision was motivated by the administration’s legitimate view that

21 only Congress should establish programs “granting parole to certain aliens in pre-designated categories.”

22 (AR Ex. 5.) The statutory language of the INA “counsel[s] in favor of using the parole authority

23 sparingly and only in individual cases[.]” (Id.) Thus, “[c]onsistent with the Executive order, the Acting

24 Secretary of Homeland Security [] reviewed the CAM Parole Program and decided to rescind the

25 program, which automatically considered for parole all individuals found ineligible for refugee status

26 under the in-country refugee program in Guatemala, Honduras, or El Salvador.” (AR Ex. 6.)

27

Individuals who had been conditionally approved for parole, but had not yet travelled, were

28 notified that the CAM Parole Program had been terminated, and that their conditional parole had been

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1 rescinded. (AR Exs. 1, 6.) However, individuals who had already been paroled into the United States

2 (i.e., had already traveled to the United States) under the CAM Parole Program are able maintain their

3 parole until the expiration of its period, unless there are other grounds for termination under DHS

4 regulations, set forth at 8 C.F.R. § 212.5(e). (AR Exs. 1, 6.) CAM Program parolees already in the

5 United States may also apply for re-parole on Form I-131 or for any immigration status for which they

6 may be otherwise eligible. (Id.) Moreover, although the CAM Parole Program was rescinded, minors in

7 Guatemala, Honduras, and El Salvador are still able to apply for parole consideration independent of the

8 CAM Parole Program by filing USCIS Form I-131, Application for Travel Document. (Id.)

9 Additionally, individuals who were conditionally approved for parole before the CAM Parole Program

10 was rescinded were given an additional 90 days to submit a request for review of the denial of their

11 refugee cases. (Id.)

12

LEGAL STANDARDS

13

A. Preliminary Injunction Standard.

14

A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear

15 showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S.

16 7, 22 (2008). Preliminary injunctions are “never awarded as of right.” Id. at 24.

17

“A plaintiff seeking a preliminary injunction must show that: (1) she is likely to succeed on the

18 merits, (2) she is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of

19 equities tips in her favor, and (4) an injunction is in the public interest.” Garcia v. Google, Inc., 786

20 F.3d 733, 740 (9th Cir. 2015) (citing Winter, 555 U.S. at 20). Alternatively, a plaintiff can show that

21 there are “’serious questions going to the merits’ and the ‘balance of hardships tips sharply towards’

22 [plaintiff], as long as the second and third Winter factors are [also] satisfied.” Disney Enters., Inc. v.

23 VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017). “[P]laintiffs seeking a preliminary injunction face a

24 difficult task in proving that they are entitled to this extraordinary remedy.” Earth Island Inst. v.

25 Carlton, 626 F.3d 462, 469 (9th Cir. 2010). Plaintiffs’ burden is aptly described as a “heavy” one. Id.

26

The purpose of a preliminary injunction “is to preserve the status quo and the rights of the parties

27 until a final judgment issues in the cause.” U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094

28 (9th Cir. 2010). A preliminary injunction may not be used to obtain “a preliminary adjudication on the

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1 merits,” but only to preserve the status quo pending final judgment. Sierra On-Line, Inc. v. Phoenix

2 Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984).

3

Accordingly, where a plaintiff seeks mandatory injunctive relief—seeking to alter the status

4 quo—“courts should be extremely cautious.” Stanley v. Univ. of S. California, 13 F.3d 1313, 1319 (9th

5 Cir. 1994). A mandatory injunction “goes well beyond simply maintaining the status quo pendente lite

6 and is particularly disfavored.” Id. at 1320 (internal quotations and alteration omitted). A mandatory

7 injunction “should not be issued unless the facts and law clearly favor the moving party.” Anderson v.

8 United States, 612 F.2d 1112, 1114 (9th Cir. 1980). Mandatory injunctions “are not granted unless

9 extreme or very serious damage will result and are not issued in doubtful cases[.]” Id. at 1115. A party

10 seeking a mandatory injunction “must establish that the law and facts clearly favor her position, not

11 simply that she is likely to succeed.” Garcia, 786 F.3d at 740 (9th Cir. 2015) (emphasis in original).

12

B. Rule 12(b)(6) Standard.

13

Dismissal under Federal Rule of Civil Procedure 12(b)(6) is proper where there is either a “lack

14 of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.”

15 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). The Supreme Court’s decisions

16 in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009),

17 make it clear that conclusory allegations are no longer sufficient to withstand a challenge under Rule

18 12(b)(6). To survive a motion to dismiss, a complaint must plead facts sufficient to “state a claim to

19 relief that is plausible on its face.” Twombly, 550 U.S. at 570. A claim has “facial plausibility” only if

20 the complaint pleads facts sufficient to allow “the court to draw the reasonable inference that the

21 defendant is liable for misconduct alleged.” Iqbal, 556 U.S. at 678. While the Court must treat all

22 factual allegations as true for purposes of a motion to dismiss, the Court is “not bound to accept as true a

23 legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. 678.

24

25

26

27

28

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1

C. Review Under the Administrative Procedure Act.

2

Whether an agency complied with the governing Administrative Procedure Act (“APA”)

3 standard is a question of law. See Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir.

4 2001). The APA “sets forth the full extent of judicial authority to review executive agency action for

5 procedural correctness.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). It requires

6 courts to “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary,

7 capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This

8 is a “deferential” standard, Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658

9 (2007), which “presume[s] the validity of agency action,” Sw. Bell Tel. Co. v. FCC, 168 F.3d 1344, 1352

10 (D.C. Cir. 1999), and bars a court from substituting its judgment for that of the agency, see Motor

11 Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The Court “will not

12 disturb the decision of an agency that has examine[d] the relevant data and articulate[d] a satisfactory

13 explanation for its action including a rational connection between the facts found and the choice made.”

14 Ams. for Safe Access v. DEA, 706 F.3d 438, 449 (D.C. Cir. 2013) (quotations and citation omitted).

15

ARGUMENT

16 I. 17

PLAINTIFFS’ REQUEST FOR A PRELIMINARY INJUNCTION THAT ALTERS THE STATUS QUO SHOULD BE DENIED.

18

The CAM Parole Program was officially terminated on August 16, 2017. (AR Ex. 1.) Plaintiffs

19 did not file this lawsuit until June 13, 2018 (ECF 1) and did not file their motion for a preliminary

20 injunction until July 11, 2018 (ECF 24), nearly eleven months after the program’s termination.

21 Plaintiffs’ delay in “filing their Complaint and [Preliminary Injunction] Motion, [is] something which

22 weighs decidedly against granting the extraordinary relief they seek.” Republican Party of Pennsylvania

23 v. Cortes, 218 F. Supp. 3d 396, 404 (E.D. Pa. 2016); accord AARP v. EEOC, 226 F. Supp. 3d 7, 22

24 (D.D.C. 2016), and cases cited therein.

25

Plaintiffs’ motion does not seek to preserve the status quo, as plaintiffs posit. (ECF 24 at 9.)

26 Instead, plaintiffs seek to alter the status quo, asking the Court to turn back the clock to August 2017 and

27 “set[] aside the termination of the CAM Parole program . . . and reinstat[e] the program for applicants in

28 the pipeline at the time it was officially terminated.” (Id. at 31.) This is precisely the same affirmative,

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1 injunctive relief that plaintiffs seek in their complaint. (Compare ECF 1 at Prayer for Relief with ECF

2 24 at 31.) See Taiebat v. Scialabba, No. 17-CV-0805-PJH, 2017 WL 747460, at *3 (N.D. Cal. Feb. 27,

3 2017) (“The relief petitioner is seeking in this [preliminary injunction] motion is not ‘temporary’ or

4 ‘preliminary,’ but rather is the exact same ultimate relief he seeks in his petition.”).” “[I]t is generally

5 inappropriate for a federal court at the preliminary-injunction stage to give a final judgment on the

6 merits.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). “The purpose of a preliminary

7 injunction is merely to preserve the relative positions of the parties until a trial on the merits can be

8 held.” Id.

9

The mandatory injunction plaintiffs seek alters, rather than preserves, the status quo pending a

10 final judgment in this case. See Singh v. Carter, 185 F. Supp. 3d 11, 16–17 (D.D.C. 2016) (indicating

11 that a mandatory injunction alters, rather than preserves the status quo by “commanding some positive

12 act.”). “When a mandatory preliminary injunction is requested, [as here] the district court should deny

13 such relief unless the facts and law clearly favor the moving party.” Stanley v. Univ. of S. California, 13

14 F.3d 1313, 1320 (9th Cir. 1994). Plaintiffs cannot meet this heightened burden. See id. (affirming

15 denial of request for mandatory preliminary injunction).

16

A mandatory injunction would be especially inappropriate here, as the APA “does not confer

17 jurisdiction onto the Court to alter the status quo nor does it allow the Court in issuing interim relief to

18 actually dictate specific terms or conditions to a governmental agency.” Salt Pond Assocs. v. U.S. Army

19 Corps of Eng’rs, 815 F. Supp. 766, 776 (D. Del. 1993). The APA authorizes courts to provide

20 preliminary injunctive relief only to “postpone the effective date of an agency action” or to “preserve

21 status or rights pending conclusion of the review proceedings.” 5 U.S.C. § 705. The CAM Parole

22 Program has already been terminated. It was terminated many months ago. See Select Milk Producers,

23 Inc. v. Johanns, 400 F.3d 939, 955 (D.C. Cir. 2005) (citations omitted) (“Judicial precedent confirms

24 that the status quo is the last uncontested status which preceded the pending controversy.”). As

25 plaintiffs are asking the Court to “issue a preliminary injunction setting aside the termination of the

26 CAM Parole program” (ECF 24 at 31), plaintiffs are undeniably seeking a mandatory injunction that

27 alters the status quo. This is impermissible under the APA. See Salt Pond Assocs., 815 F. Supp. at 775-

28 76; 5 U.S.C. § 705. The Court cannot provide plaintiffs with the affirmative injunctive relief they seek

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1 because the APA does not permit entry of a mandatory injunction against DHS.

2 II. 3

PLAINTIFFS CANNOT SATISFY THEIR HEIGHTENED BURDEN FOR OBTAINING A MANDATORY PRELIMINARY INJUNCTION.

4

In addition to being impermissible under the APA, a preliminary injunction is otherwise

5 unwarranted. Plaintiffs cannot show that they are clearly likely to succeed on the merits of their claims.

6 The Secretary lawfully exercised her discretion to terminate the CAM Parole Program based on the

7 facially legitimate view that parole authority should only be exercised individually, on a case-by-case

8 basis, and not through the creation of immigration programs applicable to pre-designated categories of

9 aliens. It would be inappropriate for the court to interfere with the executive branch’s authority to

10 enforce immigration laws consistent with a Presidential Executive Order.

11

A. Plaintiffs Cannot Show That They Will Clearly Succeed On The Merits.

12

1. Plaintiffs Will Not Clearly Succeed On Their APA Causes Of Action.

13

Plaintiffs are unlikely to succeed on their APA claim. It is well established that “[t]he scope of

14 review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its

15 judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.

16 Co., 463 U.S. 29, 43 (1983). “[I]t is irrelevant whether this Court, a judge in California or New York, or

17 even a justice on the Supreme Court might have made a different decision while standing in the shoes of

18 DHS.” Casa De Maryland v. U.S. Dep’t of Homeland Sec., 284 F. Supp. 3d 758, 772 (D. Md. 2018),

19 appeal pending, No. 18-1522 (4th Cir. filed May 8, 2018). The relevant inquiry is whether the decision

20 was made with “a satisfactory explanation for its action including a rational connection between the

21 facts found and the choice made.” State Farm, 463 U.S. at 43.

22

Here, the Administrative Record reflects that DHS terminated the CAM Parole Program based

23 on the facially legitimate view that only Congress should create immigration programs applicable to pre-

24 designated categories of aliens. (AR Exs. 2, 5, 6, 9.) The plain language of section 212(d)(5)(A) of the

25 INA, 8 U.S.C. § 1182(d)(5)(A), which establishes the Secretary’s discretionary authority to grant

26 temporary parole “only on a case-by-case basis,” “strongly counsel[s] in favor of using the parole

27 authority sparingly and only in individual cases[.]” (AR Ex. 5.) In tension with the INA’s instruction to

28 grant parole “only on a case-by-case basis,” individuals considered for parole under the CAM Parole

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1 Program were found categorically to meet the “significant public benefit” requirement for parole by

2 meeting pre-established criteria, which was “all qualifying children found ineligible for refugee status

3 under the in-country refugee program in Guatemala, Honduras, or El Salvador,” who demonstrated a

4 well-founded fear of harm. (AR Ex. 41 at AR000440, AR000442, Ex. 9 at AR000038.) Tellingly, data

5 from November 2016 indicates that 99 percent of applicants were conditionally approved for either

6 refugee resettlement or parole under the CAM Program, prior to the program’s termination. (AR Ex. 17

7 at AR000103.)

8

There is a rational connection between the Secretary’s conclusion that the INA counsels in favor

9 of using parole authority sparingly and only in individual cases and the decision to cancel the CAM

10 Parole Program. Plaintiffs emphasize the fact that “the humanitarian crisis that led to the creation of the

11 CAM program has not abated.” (ECF 24 at 15.) But this fact is not inconsistent with the Secretary’s

12 decision, and was, in fact, expressly considered by the agency. (See, e.g., AR Ex. 9 at AR000049

13 (“Q16. Does the United States believe that these children are no longer in danger? A16. The review

14 and subsequent termination of the CAM Parole Program is unrelated to the risk of harm that USCIS

15 evaluates within each CAM Parole case.”) and Ex. 33 at AR000182 (acknowledging that “DHS is

16 pursuing a new strategy to secure the U.S. southern border”).)

17

Deference to the Secretary’s decision to terminate the CAM Parole Program is especially

18 appropriate here, as the Secretary has broad discretion regarding parole. Congress has precluded judicial 19 review of individual parole determinations.3 See 8 U.S.C. § 1252(a)(2)(B)(ii); Bolante v. Keisler, 506

20 F.3d 618, 621 (7th Cir. 2007). As the Ninth Circuit explained in Mason v. Brooks, 862 F.2d 190, 193-94

21 (9th Cir. 1988), the Secretary’s “decision to deny parole is not reviewed under the ‘traditional abuse of

22 discretion standard.’” “Instead, a rejection of parole will be upheld if the agency advanced a facially

23 legitimate and bona fide reason for the denial.” Id. at 193–94. See also Jeanty v. Bulger, 204 F. Supp.

24

25 3 Parole decisions are specifically committed to agency discretion. See 8 U.S.C. § 1182(d)(5)(A). Plaintiffs fail to demonstrate how this Court has jurisdiction to review the termination of the CAM
26 Parole Program, given that it is a discretionary “decision or action” covered by the review preclusion 27 provision at 8 U.S.C. § 1252(a)(2)(B)(ii). See Kucana v. Holder, 558 U.S. 233, 248 (2010) (8 U.S.C.
§ 1252(a)(2)(B)(ii) shields decisions or actions specified by statute to be in the discretion of the 28 Secretary from court oversight); see also Hassan v. Chertoff, 593 F.3d 785, 788 (9th Cir. 2010). This
jurisdictional issue further counsels against entry of a preliminary injunction. 10
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1 2d 1366, 1380 (S.D. Fla. 2002), aff’d sub. nom., Moise v. Bulger, 321 F.3d 1336 (11th Cir. 2003) (noting

2 “extremely deferential” standard of review, limited to whether the agency has articulated “a facially

3 legitimate and bona fide reason” for its decision). The Supreme Court has instructed that “when the

4 Executive exercises this power [to exclude aliens] negatively on the basis of a facially legitimate and

5 bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by

6 balancing its justification against other [constitutional interests].” Kleindienst v. Mandel, 408 U.S. 753,

7 770 (1972). The Secretary’s reasons for terminating the CAM Parole Program were facially legitimate

8 and bona fide.

9

The fact that the Secretary made the decision to terminate the CAM Parole Program without

10 notice and comment procedures does not undermine the validity of the decision. The CAM Parole

11 Program was instituted by the Obama administration without notice and comment procedures. (See

12 AR.) As Judge Alsup held in the context of a challenge to the termination of the DACA policy, “it

13 remains the case that because the original promulgation of the discretionary program did not require

14 notice and comment, a return to the status quo ante also does not require notice and comment.” Regents

15 of Univ. of California v. U.S. Dep’t of Homeland Sec., 298 F. Supp. 3d 1304, 1310 (N.D. Cal. 2018).

16

Nor was there a “secret shutdown” of the CAM Parole Program as plaintiffs allege. (ECF 24 at

17 19-21.) On February 20, 2017, following the issuance of Executive Order 13767, then Secretary Kelly

18 issued an implementing memorandum, instructing DHS to undertake a review of its various parole

19 policies. (AR Ex. 5 at AR000030.) DHS thereafter conducted a careful review of the Central American

20 Minors (CAM) Parole program, and Acting Secretary of Homeland Security Elaine Duke decided to

21 terminate the program. (AR Ex. 9 at AR000046.) “While the CAM program was under review, USCIS

22 ceased considering or offering parole or further processing individuals who had been conditionally

23 approved for parole under the program.” (Id.) This is not a secret shutdown—there is nothing nefarious

24 about a new administration taking the time to evaluate a program that had been put in place through

25 executive action by the prior administration and pausing processing cases while conducting that

26 evaluation.

27

Agency action is not subject to a heightened standard of review simply because it represents a

28 change in administrative policy. See F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 514 (2009).

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1 “Elections have policy consequences.” Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956,

2 968 (9th Cir. 2015). “[R]eevaluation [of policy choices after an election] is well within an agency’s

3 discretion.” Id. “There is nothing improper about the political branches of the government carrying out

4 such changes in policy. To the contrary, such policy changes are often how successful presidential

5 candidates implement the very campaign promises that helped secure their election. That is simply the

6 way the modern political process works.” Id. at 980 (Smith, J., dissenting).

7

Parole under the CAM Parole Program was never guaranteed. Even those applicants who had

8 been conditionally approved for parole, were informed that the DHS Secretary retained discretion to

9 terminate parole. (AR Ex. 48 at AR 000465.) See also AR Ex. 17 at AR000105 (“Q. Is there any

10 guarantee this arrangement will be permitted to proceed under the Trump Administration? • President

11 Obama is in office until January 20, 2017. • We are not in a position to speculate on the plans of

12 President-elect Trump.”).

13

The agency did consider and account for reliance interests. The Secretary chose not to terminate

14 the parole of those who had already been paroled into the county under the CAM Parole Program. (AR

15 Ex. 1 at AR000002 (“Although DHS is terminating the CAM Parole Program, individuals who have

16 been paroled into the United States will maintain parole until the expiration of that period of parole

17 unless there are other grounds for termination of parole under DHS regulations[.]).) Moreover, although

18 plaintiffs reference fees for “medical examinations and plane tickets” for “examinations and flights

19 [that] were never actually scheduled” (ECF 24 at 27), the termination decision called for such fees to be

20 refunded. (See e.g., AR Ex. 6 at AR 000037.)

21

Plaintiffs’ arguments based on United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260

22 (1954), cannot save their APA claims. (ECF 24 at 21.) As an initial matter, the CAM Parole Program

23 was not a formally promulgated regulation, of the type at issue in Accardi. See Walker v. Reno, 925 F.

24 Supp. 124, 131 (N.D.N.Y. 1995); see also Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1206 (2015)

25 (“Because an agency is not required to use notice-and-comment procedures to issue an initial

26 interpretive rule, it is also not required to use those procedures when it amends or repeals that

27 interpretive rule.”). Regardless, “the Accardi doctrine does not bar an agency from amending its

28 regulations,” let alone its informal guidance. Pennzoil Co. v. Dep’t of Energy, 480 F. Supp. 1126, 1131

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1 (D. Del. 1979). “[T]he Accardi doctrine does not prohibit all changes in agency practice and procedure,

2 but only such as are arbitrary and unexplained.” Id. at 132. As set forth above, the reasons for the

3 termination of the CAM Parole Program are clearly set forth in the Administrative Record. Moreover,

4 as discussed below, plaintiffs have no cognizable due process interest in continuation of the CAM Parole

5 program. This fact alone takes termination of the CAM Parole program outside the Accardi doctrine.

6 See Hall v. E.E.O.C., 456 F. Supp. 695, 703 (N.D. Cal. 1978) (“But the message of [Accardi] remains

7 clear that an agency’s violation of its regulations is not a violation of due process if no interests within

8 the protection of the due process clause are involved.”).

9

In short, the agency satisfactorily explained its reasons for termination the CAM Parole Program,

10 and there is a rational relationship between those reasons and the decision to terminate the program. As

11 such, plaintiffs have not shown that they will clearly succeed on their APA claims.

12

2. Plaintiffs Will Not Clearly Succeed On Their Due Process Claim.

13

Plaintiffs are unlikely to succeed on their due process claims (both substantive and procedural)

14 either. “To assert a due process claim, a plaintiff must first show that he or she has an interest in liberty

15 or property protected by the Constitution.” Regents of Univ. of California, 298 F. Supp. 3d at 1310.

16 Plaintiffs do not have a protected interest in the continuation of the CAM Parole Program here.

17

“In the immigration context, courts have long recognized the power to expel or exclude aliens as

18 a fundamental sovereign attribute exercised by the Government’s political departments largely immune

19 from judicial control.” Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003). Because discretionary

20 immigration relief “is a privilege created by Congress, denial of such relief cannot violate a substantive

21 interest protected by the Due Process clause.” Id. “Our court of appeals has accordingly held there is no

22 protected interest in temporary parole, since such relief is entirely within the discretion of the

23 [Secretary].” Regents of Univ. of California, 298 F. Supp. 3d at 1310 (granting motion to dismiss due

24 process claims in DACA context) (citing Kwai Fun Wong v. United States, 373 F.3d 952, 967-68 (9th

25 Cir. 2004)); see also Garcia-Mir v. Smith, 766 F.2d 1478, 1484 (11th Cir. 1985) (holding that

26 inadmissible aliens lack a cognizable due process interest in parole under § 1182(d)(5)); Jeanty v.

27 Bulger, 204 F. Supp. 2d 1366, 1375 (S.D. Fla. 2002) (same), aff’d, 321 F.3d 1336 (11th Cir. 2003).

28 These authorities foreclose any argument that plaintiffs have a protected interest in continuation of the

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1 CAM Parole Program here. See Regents of Univ. of California, 298 F. Supp. 3d at 1310. Accordingly,

2 plaintiffs cannot show that the termination of the CAM Parole Program violated substantive due process.

3

The fact that the termination of the CAM Parole Program was the result of a change in

4 administration does not undermine this conclusion. “There is nothing surprising or unfair about policies,

5 laws, or enforcement thereof changing with an election cycle. Furthermore, the election process, and

6 not federal litigation, is the appropriate method for resolving any fairness implicated in” the termination

7 of the CAM Parole program. Casa De Maryland, 284 F. Supp. 3d at 777 (holding, in DACA context,

8 that plaintiffs’ substantive due process claim lacked merit).

9

Plaintiffs’ attempt to buttress their constitutional claims by highlighting their reliance interest

10 fares no better. Plaintiffs do not have a constitutionally-protected reliance interest in the continuation of

11 the CAM Parole program. “[A] person’s belief of entitlement to a government benefit, no matter how

12 sincerely or reasonably held, does not create a protected right if that belief is not mutually held by the

13 government.” Regents of Univ. of California, 298 F. Supp. 3d at 1311 (citing Gerhart v. Lake Cty.,

14 Mont., 637 F.3d 1013, 1020 (9th Cir. 2011)). Moreover, an “agency’s past practice of generally

15 granting a government benefit is also insufficient to establish a legal entitlement.” Id; accord Gerhart,

16 637 F.3d at 1020 (“The Supreme Court has explained, ‘[a] constitutional entitlement cannot be

17 created—as if by estoppel—merely because a wholly and expressly discretionary state privilege has

18 been granted generously in the past.’” (quoting Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 465

19 (1981))). Plaintiffs’ argument that they have “[r]eli[ed] on the government’s representations, . . .

20 spen[ding] thousands of dollars to pre-pay for required DNA tests, medical examination, and plane

21 tickets, as well as hundreds or thousands of dollars to pay for their children’s successive required trips to

22 the capital cities where all CAMP appointments took place” (ECF 24 at 12) are similar to the reliance

23 interests advanced by plaintiffs in Regents of the University of California, challenging the rescission of

24 the Deferred Action for Childhood Arrivals (DACA) program. Judge Alsup nevertheless rejected the

25 notion that such reliance could give rise to a constitutional claim. The court “empathize[d] with those

26 DACA recipients who have built their lives around the expectation that DACA, and its associated

27 benefits, would continue to be available to them if they played by the rules. That expectation, however,

28 remains insufficient to give rise to a constitutional claim under the Fifth Amendment.” Id.

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1

Plaintiffs’ procedural due process arguments are similarly unavailing. “[B]ecause the

2 requirements of procedural due process apply only to the deprivation of interests encompassed by the

3 Constitution’s protection of liberty and property and because the range of interests protected by

4 procedural due process is not infinite, the first inquiry in every due process challenge is whether the

5 plaintiff has been deprived of a protected interest in ‘property’ or ‘liberty.’” Ass’n of Proprietary

6 Colleges v. Duncan, 107 F. Supp. 3d 332, 347 (S.D.N.Y. 2015) (emphasis in original). “Only upon a

7 finding that the plaintiff has been deprived of such an interest do courts look to see if the government’s

8 procedures comport with due process.” Id.; see also Bd. of Regents of State Colleges v. Roth, 408 U.S.

9 564, 569 (1972) (“The requirements of procedural due process apply only to the deprivation of interests”

10 protected by the Constitution); Sorannos Gasco, Inc. v. Morgan, 874 F.2d 1310, 1316 (9th Cir. 1989)

11 (“The procedural due process guarantees . . . apply only when a constitutionally protected liberty or

12 property interest is at stake.”).

13

Thus, for the same reason that plaintiffs lack a constitutionally-protected interest in continuation

14 of the CAM Parole Program sufficient to support a substantive due process claim, their procedural due

15 process claims fail. See Casa De Maryland, 284 F. Supp. 3d at 776 (holding that DACA’s termination

16 did not violate procedural due process because DACA did not create an entitlement). The procedural

17 due process argument fails for the additional reason that procedural due process does not attach to

18 programmatic policy changes. “[P]rocedural due process only applies to individualized deprivations,

19 not policy-based deprivations for an entire class.” Id.

20

As such, plaintiffs cannot show that they are clearly likely to succeed on their due process

21 claims.

22

3. Plaintiffs Will Not Clearly Succeed On Their Equal Protection Claim.

23

The Supreme Court’s recent decision in Trump v. Hawaii forecloses plaintiffs’ equal protection

24 claims. The agency’s reasons for terminating the CAM Parole Program are set forth in the

25 Administrative Record. Those reasons—the belief that parole authority should only be exercised

26 sparingly, on an individual, case-by-case basis, and that use of parole authority to create immigration

27 programs not established by Congress is inappropriate—are “facially legitimate and bona fide.” Hawaii,

28 138 S. Ct. at 2419. The Supreme Court has instructed that courts must “neither look behind the

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1 [Executive’s] exercise of [its] discretion [over the admission and exclusion of foreign nationals], nor test

2 it by balancing its justification against the asserted constitutional interests[.]” Id. (citing Kleindienst v.

3 Mandel, 408 U.S. 753, 770 (1972)). The Executive’s policy decision must be upheld “so long as it can

4 reasonably be understood to result from a justification independent of unconstitutional grounds.” Id. at

5 2420. “Given the standard of review, it should come as no surprise that the Court hardly ever strikes

6 down a policy as illegitimate under rational basis scrutiny.” Id.

7

“The Administrative Record—the basis from which the Court must make its judicial review—

8 does not support the notion that [the agency] was targeting a subset of the immigrant population, and it

9 does not support any supposition that the decision was derived on a racial animus.” Casa De Maryland,

10 284 F. Supp. 3d at 774. The rescission of the CAM Parole Program did not single out nationals of El

11 Salvador, Guatemala and Honduras for less favorable parole consideration than nationals of other

12 countries. Instead, it put them on the same footing as nationals of other countries. Now, all aliens may

13 apply for parole by filing USCIS Form I-131, Application for Travel Document. (AR Ex. 1, 6.) What

14 plaintiffs are really complaining about is not the failure to receive equal treatment, but the fact that they

15 are no longer receiving preferential treatment.

16

The Administrative Record here makes it clear that the CAM Parole Program was terminated

17 based on the administration’s facially legitimate view that only Congress should establish programs

18 “granting parole to certain aliens in pre-designated categories.” (AR Ex. 5.) The statutory language of

19 the INA “counsel[s] in favor of using the parole authority sparingly and only in individual cases[.]”

20 (Id.) Thus, “[c]onsistent with the Executive order, the Acting Secretary of Homeland Security []

21 reviewed the CAM Parole Program and decided to rescind the program, which automatically considered

22 for parole all individuals found ineligible for refugee status under the in-country refugee program in

23 Guatemala, Honduras, or El Salvador.” (AR Ex. 6.) The rescission of the CAM Parole program

24 “merely fulfills the duty of the executive branch to faithfully enforce the laws passed by Congress.

25 Accordingly, no affirmative showing of bad faith can follow.” Casa De Maryland, 284 F. Supp. 3d at

26 775 (considering termination of DACA program). Review of the agency’s reasons, as set forth in the

27 Administrative Record “is where the judicial inquiry should end.” Casa De Maryland, 284 F. Supp. 3d

28 at 774. See also id. (“reject[ing] Plaintiffs’ reliance on the President’s misguided, inconsistent, and

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1 occasionally irrational comments made to the media to establish an ulterior motive”); Hawaii, 138 S. Ct.

2 at 2417-2420 (refusing to invalidate Presidential Proclamation No. 9645 based on “a series of statements

3 by the President and his advisers casting doubt on the official objective of the Proclamation” in light of

4 the government’s proffered justification, which was “independent of unconstitutional grounds.”).

5

The Supreme Court’s decision in Hawaii, which also concerns the authority of the Executive to

6 make decisions about the admission and exclusion of foreign nationals, is directly on-point and

7 controlling. Plaintiffs simply cannot prevail on their equal protection claims after Hawaii.

8

4. Plaintiffs Will Not Clearly Succeed On Their Equitable Estoppel Cause Of

Action.

9

Plaintiffs’ equitable estoppel claims appear to be based on what plaintiffs label the “secret shut

10

down” of the CAM Program in January 2017, prior to the publicly announced termination on August 16,

11

2017. (ECF 1 at 44.) Plaintiffs allege that they relied to their detriment on various website statements

12 that the CAM Program remained in effect. (Id.)4

13

But, plaintiffs are not likely to succeed on their equitable estoppel cause of action, because

14

equitable estoppel is not a cause of action at all. “Equitable Estoppel is not an affirmative claim, but

15

rather an affirmative defense.” Johnson v. Mazza, No. 215CV09183ODWAS, 2016 WL 5842186, at *4

16

(C.D. Cal. Oct. 4, 2016); see also Dobrowski v. Jay Dee Contractors, Inc., 571 F.3d 551, 554 n.1 (6th

17

Cir. 2009) (“[E]quitable estoppel is not a cause of action but a judicial doctrine that bars the assertion of

18

a claim or defense.”). Equitable estoppel is a tolling doctrine that can excuse a plaintiff’s failure to

19

timely raise his claims. As the Ninth Circuit has explained, “although the doctrines of equitable tolling

20

and equitable estoppel are often confused, the better reasoning states that equitable tolling applies when

21

the plaintiff is unaware of his cause of action, while equitable estoppel applies when a plaintiff who

22

knows of his cause of action reasonably relies on the defendant’s statements or conduct in failing to

23

bring suit.” Estate of Amaro v. City of Oakland, 653 F.3d 808, 814 (9th Cir. 2011).

24

25

4 A number of the named plaintiffs candidly acknowledge that, prior to August 16, 2017, they

26 were informed that the CAM Parole Program was on hold due to the new administration. (See, e.g., ECF 24-7 [Declaration of A.D.] at ¶ 12 (“After almost a month had passed, IOM told my mom that

27 everything was frozen because of the new President.”); ECF 1 [Complaint] at ¶ 53 (alleging that an “IOM employee [informed plaintiff D.D.] that none of the CAM cases could be processed because the

28 new government had changed its position, and IOM had to wait for orders from the new Administration.”).)

17

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1

Tellingly, none of the equitable estoppel cases plaintiffs cite in the immigration context endorse

2 the use of equitable estoppel as an affirmative cause of action. (ECF 24 at 26.) See Salgado-Diaz v.

3 Gonzales, 395 F.3d 1158, 1165-66 (9th Cir. 2005), (applying equitable estoppel to bar the INS’s claim

4 of removability); Villena v. Immigration & Naturalization Serv., 622 F.2d 1352, 1361 (9th Cir. 1980)

5 (holding that where “INS did not respond to [plaintiff’s] petition until almost four years later [with] no

6 apparent justification for this delay[,] INS [wa]s estopped from claiming that Villena failed to

7 adequately pursue his claim for preference classification”); Sun Il Yoo v. Immigration & Naturalization

8 Serv., 534 F.2d 1325, 1328 (9th Cir. 1976) (holding that INS could not use its “unreasonable [one-year]

9 delay in recognizing the bona fides of Yoo’s petition” against him).

10

Equitable estoppel does not come into play in the context of this case. The government is not

11 claiming that plaintiffs’ challenge to the rescission of the CAM Parole Program is barred by the statute

12 of limitations or their delay. Instead of using equitable estoppel to block one of the government’s

13 defenses, as the doctrine is intended to be used, plaintiffs are attempting use the label affirmatively, as a

14 catch-all cause of action to challenge the government’s change in policy. They cannot do so. “[C]ourts

15 invoke the doctrine of estoppel against the government with great reluctance.” Emery Min. Corp. v.

16 Sec’y of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984). “Application of the doctrine is justified only

17 where it does not interfere with underlying government policies or unduly undermine the correct

18 enforcement of a particular law or regulation.” Id. Here, application of estoppel would interfere with

19 the government’s policy decision to end the CAM Parole Program. The Acting Secretary of DHS issued

20 her decision to terminate the CAM Parole Program on August 16, 2017, a decision which was

21 committed to the Secretary’s discretion by law. (AR Ex. 1.)

22

Even if equitable estoppel were available as an affirmative cause of action to challenge a change

23 in policy (which it is not), plaintiffs could not satisfy its elements. In the rare situations in which

24 equitable estoppel may apply against the government, the party advocating estoppel must show

25 “affirmative misconduct going beyond mere negligence.” Watkins v. U.S. Army, 875 F.2d 699, 707 (9th

26 Cir. 1989). In the immigration context, courts have described “affirmative misconduct” as a “deliberate

27 lie” or “a pattern of false promises.” Socop-Gonzalez v. INS, 272 F.3d 1176, 1184 (9th Cir. 2001) (en

28 banc); see also Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir. 2000) (“Neither the failure to inform an

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1 individual of his or her legal rights nor the negligent provision of misinformation constitute affirmative

2 misconduct.”). “[E]ven then, estoppel will only apply where the government’s wrongful act will cause a

3 serious injustice, and the public’s interest will not suffer undue damage by imposition of the liability.”

4 Watkins, 875 F.2d at 707; accord Morgan v. Gonzales, 495 F.3d 1084, 1092 (9th Cir. 2007). Plaintiffs

5 cannot meet this standard.

6

Plaintiffs cannot plausibly allege that the government engaged in any “affirmative misconduct

7 going beyond mere negligence.” The CAM Parole Program was not “secretly” shut down, as plaintiffs

8 allege. Instead, after President Trump issued Executive Order 13767 on January 25, 2017, which

9 instructed the DHS Secretary to ensure that parole authority was exercised “only on a case-by-case basis

10 in accordance with the plain language of the statute” (AR Ex. 2 at AR000006), then Secretary Kelly

11 issued a February 20, 2017 implementing memorandum, instructing DHS to undertake a review of its

12 various parole policies (AR Ex. 5 at AR000030). DHS then “conducted a careful review of the Central

13 American Minors (CAM) Parole program, and Acting Secretary of Homeland Security Elaine Duke

14 decide to terminate the program.” (AR Ex. 9 at AR000046.) “While the CAM program was under

15 review, USCIS ceased considering or offering parole or further processing individuals who had been

16 conditionally approved for parole under the program.” (Id.) This is not affirmative misconduct—there

17 is nothing nefarious about a new administration taking the time to evaluate a program that had been put

18 in place through executive action by the prior administration. CAM Parole Program applicants, even

19 those who had been conditionally approved, were informed that the DHS Secretary retained discretion to

20 terminate parole. (AR Ex. 48 at AR 000465.) See also Ex. 17 at AR000105 (“Q. Is there any guarantee

21 this arrangement will be permitted to proceed under the Trump Administration? • President Obama is in

22 office until January 20, 2017. • We are not in a position to speculate on the plans of President-elect

23 Trump.”). Although plaintiffs reference fees for “medical examinations and plane tickets” for

24 “examinations and flights [that] were never actually scheduled” (ECF 24 at 27), the termination decision

25 contemplated that such fees would be refunded. (See e.g., AR Ex. 6 at AR 000037.) This does not

26 amount to “affirmative misconduct going beyond mere negligence.”

27

Plaintiffs’ equitable estoppel claims merely repackage their policy challenges. The doctrine is

28 unavailable as an affirmative cause of action for such broad-based challenges. And, even if it were,

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1 plaintiffs cannot satisfy its elements. Plaintiffs are not clearly likely to succeed on their equitable

2 estoppel claim.

3

B. Plaintiffs’ Request For Preliminary Injunctive Relief Is Contrary To The Public

Interest.

4

5

Granting a preliminary injunction would be contrary to the public interest. The balance of harms

6 and the public interest elements of the injunctive relief test merge when the government is the opposing

7 party. Nken v. Holder, 556 U.S. 418, 435 (2009). Courts must “pay particular regard for the public

8 consequences in employing the extraordinary remedy of injunction.” Weinberger v. Romero-Barcelo,

9 456 U.S. 305, 312-13 (1982). “Particularly in cases involving important public issues which implicate

10 significant policy considerations, it is appropriate that the trial judge consider possible harm to other

11 interested parties and the public interest in deciding whether to issue the preliminary injunction.”

12 Republican Party of Pennsylvania v. Cortes, 218 F. Supp. 3d 396, 412 (E.D. Pa. 2016). Entry of a

13 preliminary injunction would be contrary to the public interest here.

14

At its core, plaintiffs’ motion is asking for special treatment from the United States’s

15 immigration laws. It also seeks to use the courts to undermine the policy consequences of an election.

16 But, plaintiffs fail to show that their claimed “irreparable injury” outweighs the threatened harm that an

17 injunction would cause, or that it would not “adversely affect [the] public interest[.]” Weinberger, 456

18 U.S. at 312; Southdown, Inc. v. Moore McCormack Res., Inc., 686 F. Supp. 595, 596 (S.D. Tex. 1988)

19 (explaining that it is petitioner’s burden to show that an injunction would cause “no disservice to

20 unrepresented third parties”). Any order that enjoins a governmental agency from enforcing statutes and

21 executive orders promulgated by the duly-elected representatives of the people constitutes an irreparable

22 injury that weighs heavily against the entry of injunctive relief, see, e.g., New Motor Vehicle Bd. v.

23 Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977). See AR Ex. 2 [Executive Order 13767] (“The Secretary

24 [of Homeland Security] shall take appropriate action to ensure that parole authority under section

25 212(d)(5) of the INA (8 U.S.C. § 1182(d)(5)) is exercised only on a case-by-case basis in accordance

26 with the plain language of the statute, and in all circumstances only when an individual demonstrates

27 urgent humanitarian reasons or a significant public benefit derived from such parole.”). See also United

28 States v. Valenzuela–Bernal, 458 U.S. 858, 864 (1982) (“The power to regulate immigration—an

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1 attribute of sovereignty essential to the preservation of any nation—has been entrusted by the

2 Constitution to the political branches of the Federal Government.”); Fogo de Chao (Holdings) Inc. v.

3 U.S. Dep’t of Homeland Sec., 769 F.3d 1127, 1151 n.10 (D.C. Cir. 2014) (“[O]ur Constitution places

4 such sensitive immigration and economic judgments squarely in the hands of the Political Branches, not

5 the courts[.]”).

6

The Court’s entry of a mandatory injunction against DHS would interfere with the executive

7 branch’s ability to enforce the U.S. immigration laws. For these reasons, plaintiffs’ requested injunction

8 is inconsistent the public interest, and the request for a preliminary injunction should be denied.

9 III. NEITHER THE ALIEN PAROLE APPLICANTS NOR CASA HAS STANDING.

10

Neither the alien parole applicants nor CASA has standing to proceed. As such, their claims

11 must be dismissed, and they are not entitled to injunctive relief.

12

Standing requires (1) that the plaintiff has suffered an “injury in fact” that is “concrete and

13 particularized,” and “actual or imminent, not conjectural or hypothetical,” (2) that the injury is “fairly

14 traceable to the challenged action,” and (3) that “it is likely, as opposed to merely speculative, that the

15 injury will be redressed by a favorable [judicial] decision.” Friends of the Earth Inc., v. Laidlaw Envtl.

16 Servs. Inc., 528 U.S. 167, 180-81 (2000). “[B]ecause standing is a necessary predicate to any exercise

17 of the Court’s jurisdiction, the plaintiff and [his] claims have no likelihood of success on the merits, if

18 the plaintiff lacks standing.” Arpaio v. Obama, 27 F. Supp. 3d 185, 207 (D.D.C. 2014). Similarly, an

19 absence of standing “dooms the plaintiff’s ability to show irreparable harm.” Id. Thus, when plaintiffs

20 lack standing, the Court must deny their requests for injunctive relief and dismiss their claims outright.

21 Id.

22

Under these principles, neither the alien parole applicants nor CASA has established standing

23 and their claims must be dismissed.

24

A. The Alien Parole Applicants Lack Article III Standing To Proceed.

25

The alien parole applicants, who are nationals of, and currently residing in either Honduras, El

26 Salvador or Guatemala, lack standing because they cannot establish that they suffer from an injury in

27 fact. Aliens abroad have no legally protected interest in parole, which is a wholly-discretionary

28 determination, so their inability to obtain parole under the CAM Parole Program is not a cognizable

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1 legal injury in fact.

2

Establishing injury in fact requires a showing of “an invasion of a legally protected interest.”

3 Lujan, 504 U.S. at 560; see also Fleck & Assocs., Inc. v. Phoenix, City of, an Arizona Mun. Corp., 471

4 F.3d 1100, 1104 (9th Cir. 2006). But, “unadmitted nonresident aliens have no constitutional right of

5 entry to this country” and thus lack standing to challenge the denial of their admission, or here, parole.

6 Benjamin v. United States Dep’t of State, No. 17-CV-03587-LB, 2018 WL 1142124, at *4 (N.D. Cal.

7 Mar. 2, 2018) (Beeler, J.). See also Chinese Am. Civic Council v. Attorney Gen., 396 F. Supp. 1250,

8 1251 (D.D.C. 1975) (“Standing apparently has never been granted to a person outside the United States

9 challenging the denial of entry or immigration eligibility.”); Chun v. Powell, 223 F. Supp. 2d 204, 207

10 (D.D.C. 2002) (“[A]n unadmitted nonresident alien, has no standing to challenge the denial of her entry

11 into the United States.”).

12

Moreover, the grant of parole under the INA is not a legally protected interest because it “is

13 clearly a discretionary decision under the statute.” Maldonado v. Macias, 150 F. Supp. 3d 788, 794-95

14 (W.D. Tex. 2015) (citing 8 U.S.C. § 1182(d)(5)(A)). An alien has no legally protected interest in a

15 discretionary immigration determination. See, e.g., Mendez-Garcia v. Lynch, 840 F.3d 655, 665 (9th

16 Cir. 2016); Dave v. Ashcroft, 363 F.3d 649, 653 (7th Cir. 2004) (indicating that “in immigration

17 proceedings, a petitioner has no liberty or property interest in obtaining purely discretionary relief”);

18 Smith v. Ashcroft, 295 F.3d 425, 430 (4th Cir. 2002) (stating that an alien’s eligibility for discretionary

19 relief is not a constitutionally protected interest). Accordingly, the alien-plaintiffs’ inability to obtain

20 parole under the CAM Parole Program does not amount to “an invasion of a legally protected interest”

21 sufficient to establish an injury in fact. Lujan, 504 U.S. at 560.

22

For these reasons, the alien-parole-applicant plaintiffs lack Article III standing to proceed, and

23 their claims must be dismissed.

24

B. CASA Also Lacks Prudential Standing To Pursue Relief On Its Own Behalf.

25

CASA also lacks direct standing to pursue relief on its own behalf. The government reserves for

26 another day the questions of whether CASA has associational standing to proceed on behalf of its

27 members in the United States, but CASA clearly does not have associational standing to proceed on

28 behalf of the alien-parole-applicant plaintiffs, as such plaintiffs lack standing to sue in their own right, as

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1 discussed above. See Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 343 (U.S. 1977)

2 (Associational standing requires that the organizations’ “members would otherwise have standing to sue

3 in their own right.”). Nor does CASA have standing “to bring this case based on the direct harm it

4 [allegedly] suffered.” (ECF 24 at 30.)

5

Direct organizational standing requires CASA to satisfy “both constitutional and prudential”

6 requirements. McMichael v. Napa Cty., 709 F.2d 1268, 1270 (9th Cir. 1983). CASA “lack[s] prudential

7 standing because [it is] not within the zone of interests protected by the laws upon which [it] rel[ies].”

8 Am. Baptist Churches in the U.S.A. v. Meese, 666 F. Supp. 1358, 1368 (N.D. Cal. 1987). “[T]he fact

9 that the refugee organizations are attempting to assert the rights of aliens whom they serve does not

10 provide any independent basis for standing.” Id. Like the non-profit immigrant assistance organization

11 in Northwest Immigrant Rights Project v. United States Citizenship & Immigration Services, CASA

12 bases its claimed direct standing on a “different injury [than that of its members]—diversion of scarce

13 resources—and that [distinct] injury is the toehold that supports [CASA’s alleged direct] standing.” No.

14 C15-0813JLR, 2016 WL 5817078, at *12 (W.D. Wash. Oct. 5, 2016). (See ECF 24 at 30.) But, CASA

15 is not within the zone of interests protected by the CAM Parole Program. See 2016 WL 5817078, at *12

16 (concluding that immigrant assistance organization was not within the zone of interests of the “INA and

17 regulatory provisions”). See also Immigrant Assistance Project of Los Angeles Cty. Fed’n of Labor

18 (AFL-CIO) v. I.N.S., 306 F.3d 842, 867 (9th Cir. 2002) (Immigration Reform and Control Act of 1986

19 “did not give organizational plaintiffs standing to sue on their own behalf.”) (emphasis in original).

20 Accordingly, because CASA is not within the zone of interests protected by the INA, CASA lacks

21 standing to proceed with this case on its own behalf.

22

Because they lack standing, the claims of both CASA and the alien parole applicants must be

23 dismissed.

24 IV. 25

THIS COURT LACKS JURISDICTION TO ENJOIN THE PRESIDENT, AND THE CLAIMS AGAINST THE PRESIDENT MUST BE DISMISSED.

26

Plaintiffs cannot succeed on their claims against President Trump, and this Court lacks authority

27 to enter an injunction against the President. “[T]he Supreme Court has determined that certain

28 government officials require absolute immunity from liability in order to enable them to function

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1 independently and effectively, without fear of intimidation or harassment. Accordingly, the Court has

2 granted absolute immunity to the President[.]” Fry v. Melaragno, 939 F.2d 832, 835–36 (9th Cir. 1991).

3 “[A]bsolute immunity bars suit when the allegations regarding a President’s conduct are ‘within the

4 perimeter of his responsibilities as chief of the executive branch,’” as they clearly are here. Stevens v.

5 Hayes, No. A-11-CA-550 LY, 2012 WL 2572790, at *12 (W.D. Tex. July 2, 2012), subsequently aff’d,

6 535 F. App’x 358 (5th Cir. 2013). Accordingly, this Court lacks jurisdiction to issue an injunction

7 against the President. Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir. 2010) (“With regard to the

8 President, courts do not have jurisdiction to enjoin him and have never submitted the President to

9 declaratory relief.”) (internal citations omitted). As such, plaintiffs will not succeed on their claims

10 against President Trump and this Court may not enjoin him. All claims against the President must be

11 dismissed.

12 V. THE COURT CANNOT ENTER CLASSWIDE, NATIONWIDE INJUNCTIVE RELIEF.

13

Plaintiffs seek a classwide, nationwide preliminary injunction “setting aside termination of the

14 CAM Parole program . . . and reinstating the program for applicants in the pipeline at the time it was

15 officially terminated.” (ECF 24 at 31.) Even if this Court were to conclude that the named plaintiffs are

16 entitled to preliminary injunctive relief, it could not provide such relief nationwide, to putative class

17 members.

18

As the Ninth Circuit has made clear, until a class has been certified, an injunction in a putative

19 class action applies only to the named plaintiffs. See Zepeda v. I.N.S., 753 F.2d 719, 727-28 n.1 (9th

20 Cir. 1983) (vacating class-wide preliminary injunction as overbroad, unless and until the district court

21 certified a class of plaintiffs; “[u]ntil class certification is granted, these plaintiffs are entitled to no more

22 than protection of themselves alone from the challenged INS practices”); M.R. v. Dreyfus, 697 F.3d 706,

23 738 (9th Cir. 2012) (enjoining enforcement of regulation only as to named plaintiffs where class

24 certification motion not yet decided by district court); McCormack v. Hiedeman, 694 F.3d 1004, 1020

25 (9th Cir. 2012) (same). The Court should decline plaintiffs’ invitation to enter a classwide, nationwide

26 preliminary injunction here.

27 VI. PLAINTIFFS’ COMPLAINT SHOULD BE DISMISSED.

28

For the reasons set forth above, plaintiffs’ APA, due process, equal protection and equitable

24 30

Case 3:18-cv-03539-LB Document 32 Filed 08/24/18 Page 33 of 33

1 estoppel claims fail and should be dismissed. Additionally, as set forth above, the alien parole

2 applicants, who are nationals of, and currently residing in, either Honduras, El Salvador or Guatemala,

3 lack Article III standing and should be dismissed as plaintiffs in this litigation. CASA also lacks direct

4 standing to sue in its own right and its direct claims should be dismissed. Finally, as set forth above, the

5 Court lacks jurisdiction over the claims against President Trump, and all claims against the President

6 should be dismissed.

7

CONCLUSION

8

For the foregoing reasons, the Court should deny plaintiffs’ motion for a preliminary injunction

9 in its entirety and dismiss plaintiffs’ complaint.

10

11

12 DATED: August 24, 2018

Respectfully submitted,

13

ALEX G. TSE

United States Attorney

14

/s/ Wendy M. Garbers

15

WENDY M. GARBERS

Assistant United States Attorney

16

17

18

19

20

21

22

23

24

25

26

27

28

25 30

 
 Case 3:18-cv-03539-LB Document 41 Filed 10/12/18 Page 1 of 3

1 DANIEL B. ASIMOW (SBN 165661)

LINDA EVARTS (appearance pro hac vice)

daniel.asimow@arnoldporter.com

levarts@refugeerights.org

2 MATTHEW H. FINE (SBN 300808)

KATHRYN C. MEYER (appearance pro hac vice)

matthew.fine@arnoldporter.com

kmeyer@refugeerights.org

3 4 5

ARNOLD & PORTER KAYE SCHOLER LLP Three Embarcadero Center, 10th Floor San Francisco, California 94111 Telephone: 415.471.3100 Facsimile: 415.471.3400

MARIKO HIROSE (appearance pro hac vice) mhirose@refugeerights.org INTERNATIONAL REFUGEE ASSISTANCE PROJECT

40 Rector Street, 9th Floor

6 JOHN A. FREEDMAN (appearance pro hac vice) New York, NY 10006

john.freedman@arnoldporter.com

Telephone: 646.459.3057

7 GAELA K. GEHRING FLORES*

Facsimile: 212.533.4598

gaela.gehringflores@arnoldporter.com

8 DAVID J. WEINER (CA SBN 219753)

PHILLIP A. GERACI*

9

david.weiner@arnoldporter.com DANA O. CAMPOS*

phillip.geraci@arnoldporter.com SUSAN S. HU*

10 dana.campos@arnoldporter.com MATEO MORRIS*

susan.hu@arnoldporter.com ARNOLD & PORTER KAYE SCHOLER LLP

11

mateo.morris@arnoldporter.com ARNOLD & PORTER KAYE SCHOLER LLP

250 West 55th Street New York, NY 10019-9710

12 601 Massachusetts Ave., NW

Telephone: 212.836.8000

Washington, DC 20001-3743

Facsimile: 212.836.8689

13 Telephone: 202.942.5000

Facsimile: 202.942.5999 14

Attorneys for Plaintiffs 15
*Pro Hac Vice motion forthcoming

16

17

UNITED STATES DISTRICT COURT

18

FOR THE NORTHERN DISTRICT OF CALIFORNIA

19

20 S.A.; et al.,

Case No. 3:18-cv-03539-LB

21

22

v.

Plaintiffs,

PLAINTIFFS’ STATEMENT OF RECENT DECISION RELEVANT TO MOTION FOR PRELIMINARY INJUNCTION

23 DONALD J. TRUMP, in his official capacity as President of the United States; et al.,
24 Defendants.
25

26

27

28

PLAINTIFFS’ STATEMENT OF RECENT DECISION

No. 3:18-cv-03539-LB

Case 3:18-cv-03539-LB Document 41 Filed 10/12/18 Page 2 of 3

1 TO THE COURT, THE PARTIES, AND ALL COUNSEL OF RECORD:

2

Plaintiffs respectfully submit this Statement of Recent Decision pursuant to Civil Local Rule

3 7-3(d)(2) in connection with their Motion for Preliminary Injunction (“Motion”) (ECF 24) and their

4 Opposition to Defendants’ Motion to Dismiss (“Opposition to Defendants’ Motion”) (ECF 34).

5 Attached as Exhibit A is a true and correct copy of Ramos v. Nielsen, No. 18-CV-01554-EMC,

6 2018 WL 4778285 (N.D. Cal. Oct. 3, 2018). In this decision, issued after Plaintiffs filed their Reply

7 in support of their Motion (ECF 35) and their Opposition to Defendants’ Motion, District Court

8 Judge Edward M. Chen preliminarily enjoined the federal government from terminating Temporary

9 Protected Status (“TPS”) designations for four countries pending a final resolution of the case on

10 the merits.

11

Plaintiffs’ Motion and Defendants’ Motion to Dismiss (ECF 31) are schedule for hearing on

12 October 30, 2018.

13

14 DATED: October 12, 2018.

15

Respectfully submitted,

16 /s/ Daniel B. Asimow

/s/ Linda Evarts

17 DANIEL B. ASIMOW

LINDA EVARTS (appearance pro hac vice)

MATTHEW H. FINE

KATHRYN C. MEYER (appearance pro hac vice)

18 ARNOLD & PORTER KAYE SCHOLER LLP MARIKO HIROSE (appearance pro hac vice)

Three Embarcadero Center, 10th Floor

INTERNATIONAL REFUGEE ASSISTANCE

19 San Francisco, California 94111

PROJECT

40 Rector Street, 9th Floor

20 JOHN A. FREEDMAN (appearance pro hac vice) New York, NY 10006

DAVID J. WEINER

21 GAELA K. GEHRING FLORES*

DANA O. CAMPOS*

22 MATEO MORRIS*

ARNOLD & PORTER KAYE SCHOLER LLP

23 601 Massachusetts Ave., NW

Washington, DC 20001-3743

24

PHILLIP A. GERACI*

25 SUSAN S. HU*

ARNOLD & PORTER KAYE SCHOLER LLP

26 250 West 55th Street

New York, NY 10019-9710

27 *Pro Hac Vice motion forthcoming

28

Attorneys for Plaintiffs

-1-
PLAINTIFFS’ STATEMENT OF RECENT DECISION

No. 3:18-cv-03539-LB

Case 3:18-cv-03539-LB Document 41 Filed 10/12/18 Page 3 of 3

1

ATTESTATION OF CONCURRENCE IN THE FILING

2

I, Daniel B. Asimow, am the ECF User whose identification and password are being used to

3 file this Plaintiffs’ Statement of Recent Decision. Pursuant to Civil Local Rule 5-1(i)(3), I attest

4 under penalty of perjury that concurrence in this filing has been obtained from all counsel.

5

/s/ Daniel B. Asimow

6

DANIEL B. ASIMOW

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-2-
PLAINTIFFS’ STATEMENT OF RECENT DECISION

No. 3:18-cv-03539-LB

 
 Case 3:18-cv-03539-LB Document 90 Filed 04/12/19 Page 1 of 8

1 DAVID L. ANDERSON (CABN 149604)

United States Attorney

2 SARA WINSLOW (DCBN 457643)

Chief, Civil Division

3 WENDY M. GARBERS (CABN 213208)

Assistant United States Attorney

4 ALISON E. DAW (CABN 137026) Assistant United States Attorney

5

450 Golden Gate Avenue, Box 36055

6

San Francisco, California 94102-3495

Telephone: (415) 436-6475

7

FAX: (415) 436-7234

wendy.garbers@usdoj.gov 8

Attorneys for the Federal Defendants 9

UNITED STATES DISTRICT COURT 10

NORTHERN DISTRICT OF CALIFORNIA 11

SAN FRANCISCO DIVISION 12

13 S.A.; J.A.; A.B.; R.C., on behalf of himself and as Guardian Ad Litem for J.C., a minor child;
14 M.C.; D.D.; G.E., on behalf of himself and as Guardian Ad Litem for B.E., a minor child; J.F.
15 on behalf of himself and as Guardian Ad Litem for H.F. and A.F., minor children, on behalf of
16 themselves and on behalf of a class of all similarly situated individuals, and CASA,
17
Plaintiffs, 18
v. 19
DONALD J. TRUMP, in his official capacity as 20 President of the United States; U.S.
DEPARTMENT OF HOMELAND 21 SECURITY; U.S. CITIZENSHIP AND
IMMIGRATION SERVICES; U.S. 22 DEPARTMENT OF STATE; KIRSTJEN
NIELSEN, in her official capacity as Secretary 23 of Homeland Security; MICHAEL R.
POMPEO, in his official capacity as Secretary 24 of State; L. FRANCIS CISSNA, in his official
capacity as Director of U.S. Citizenship and 25 Immigration Services; UNITED STATES OF
AMERICA, 26
Defendants. 27

Case No. 18-CV-03539 LB
BINDING MEMORANDUM OF AGREEMENT; [PROPOSED] ORDER

28 BINDING MEMORANDUM OF AGREEMENT; [PROPOSED] ORDER
Case No. 18-CV-03539 LB
1
30

Case 3:18-cv-03539-LB Document 90 Filed 04/12/19 Page 2 of 8

1

2

BINDING MEMORANDUM OF AGREEMENT

3

WHEREAS, this Court granted in part and denied in part Defendants’ motion to dismiss,

4 dismissing many of Plaintiffs’ claims and holding that Defendants’ mass rescission of conditional

5 approvals for parole of 2,714 beneficiaries was arbitrary and capricious in violation of the

6 Administrative Procedure Act (ECF No. 51 at 53-56).

7

WHEREAS, prior to the Court’s Order on Plaintiffs’ motion for preliminary injunction (ECF No.

8 77), Defendants submitted a Notice to the Court that USCIS was undergoing “a reconsideration process

9 that will address those individuals who had been conditionally approved for parole” (ECF No. 76 at 2).

10

WHEREAS, this Court granted in part and denied in part Plaintiffs’ motion for preliminary

11 injunction (hereinafter “PI Order”), “vacat[ing] [Defendant] DHS’s decision to mass-rescind conditional

12 approvals for the 2,714 beneficiaries conditionally approved for parole but who had not traveled to the

13 United States,” and “order[ing] DHS to continue the post-conditional-approval processing for these

14 2,714 beneficiaries under the policies and procedures that it had in place prior to January 2017 for

15 processing such beneficiaries, including the procedures described in USCIS’s publication Central

16 American Minors (CAM) Parole Program: Information for Conditionally Approved Applicants” (ECF

17 No. 77, at 23-24 & 29-30 (citing AR, Ex. 48)).

18

WHEREAS, the Court ordered Defendants to submit their plan for “processing these 2,714

19 beneficiaries with benchmarks for assessing compliance” (ECF No. 77 at 30).

20

WHEREAS, Plaintiffs and Defendants stipulated, and the Court ordered, that the deadline for

21 Defendants’ plan to process the beneficiaries be extended in light of the Parties’ discussions regarding a

22 complete resolution of this action, and Defendants’ plan is currently due by April 18, 2019 (ECF Nos.

23 81, 82, 89).

24

WHEREAS, Plaintiffs and Defendants have concluded that a complete resolution of this action is

25 desired by all Parties.

26

IT IS HEREBY STIPULATED AND AGREED, by the Parties to this action (hereinafter “the

27 Parties”), through their counsel of record that:

28 BINDING MEMORANDUM OF AGREEMENT; [PROPOSED] ORDER
Case No. 18-CV-03539 LB
2
30

Case 3:18-cv-03539-LB Document 90 Filed 04/12/19 Page 3 of 8

1

1. The Parties will jointly move the Court to convert its PI Order (ECF No. 77) into a permanent

2 injunction, which the Court will have continuing jurisdiction to enforce.

3

2. USCIS agrees to abandon its reconsideration process of its decision to rescind conditional

4 approvals for parole for CAM beneficiaries (ECF No. 76), and USCIS agrees not to initiate any new

5 process to reconsider its decision to rescind conditional approvals for parole for CAM beneficiaries who

6 were conditionally approved at the time the program was terminated.

7

3. The Parties agree to waive their rights to appeal the Court’s Orders on Plaintiffs’ motion for

8 preliminary injunction and Defendants’ motion to dismiss (ECF Nos. 51, 77).

9

4. The Parties agree to waive their rights to move for fees and costs. The Parties will bear their

10 own attorneys’ fees and costs.

11

5. USCIS agrees to process the approximately 2700 individuals who were conditionally

12 approved for parole prior to the CAM Parole program’s termination and then issued rescission notices,

13 as well as any later born children who are classified as add-ons, pursuant to the Court’s PI Order (ECF

14 No. 77). Specifically, USCIS agrees that the conditionally approved beneficiaries shall be processed

15 pursuant to the CAM policies, guidance, and practices in effect on January 1, 2017. USCIS agrees that

16 pursuant to such CAM policies, guidance, and practices, beneficiaries are eligible for CAM processing

17 so long as they were under 21 years old as of the date on which their Affidavit of Relationship forms

18 were filed, regardless of their age at the time of parole into the United States. USCIS shall notify CBP

19 of the resumption of CAM parole processing and the timeframe for the first beneficiaries arriving at U.S.

20 ports of entry. The Parties anticipate that as a result of this agreement, most conditionally approved

21 beneficiaries will be paroled into the United States, so long as they and their U.S.-based parents continue

22 to remain eligible, are able to pay the associated costs for medical exams and travel, and desire parole.

23

6. Given the use of the same CAM program policies, guidance and practice as prior to the

24 termination of the program, individuals who previously had conditional approval but whose

25 circumstances have changed such that they no longer meet the program requirements will not be eligible

26 for parole, notwithstanding this agreement, such as if their parent in the U.S. is no longer lawfully

27 present or if a child is no longer eligible due to a legal marriage.

28 BINDING MEMORANDUM OF AGREEMENT; [PROPOSED] ORDER
Case No. 18-CV-03539 LB
3
30

Case 3:18-cv-03539-LB Document 90 Filed 04/12/19 Page 4 of 8

1

7. With respect to the two Plaintiff families whose beneficiaries had not yet received a decision

2 on their CAM applications when USCIS terminated the CAM Parole program—specifically, the

3 beneficiaries are (1) A.B.’s son; (2) A.B.’s son’s child; (3) H.F.; (4) A.F.; and (5) H.F. and A.F.’s

4 mother—these beneficiaries shall have their cases re-opened and be considered for parole for purposes

5 of this settlement. These two Plaintiff families are the exception—otherwise this settlement only covers

6 individuals who were conditionally approved for parole prior to the termination of the CAM Parole

7 program and then issued rescission notices from USCIS.

8

8. By April 18, 2019, USCIS agrees to file with the Court a more detailed plan for CAM

9 processing with benchmarks for assessing compliance, which shall not conflict with this Memorandum

10 of Agreement and shall contain the following provisions:

11

a. A plan for providing individualized notice to U.S.-based parents and in-country

12

beneficiaries regarding Defendants’ resumption of CAM Parole processing, and such notice shall

13

remind applicants and beneficiaries that there are costs for medical exams and travel which are

14

borne by applicants.

15

b. A plan for accepting updated contact information from U.S.-based parents and

16

beneficiaries, including by establishing an email address by which U.S.-based parents,

17

beneficiaries and/or their attorney or accredited representatives can inquire whether they are

18

eligible for resumed CAM processing. USCIS will respond to such queries in a reasonable

19

amount of time, while maintaining confidentiality. The parties will continue to discuss ways to

20

develop and improve communication channels between USCIS and program participants.

21

9. Defendants will report in writing to the Court on their progress in implementing this

22 agreement beginning on July 1, 2019 (the first quarterly report) and every three months thereafter until

23 processing is complete (i.e., until the last beneficiary’s case is adjudicated and all approved beneficiaries

24 travel). Subject to revisions to the extent necessary to track the categories of information Defendants

25 collect, the reports to the Court are expected to include the following numbers once initially:

26

•

The number of parents who appear to be in the US lawfully.

27

•

The number of parents for whom Defendants cannot confirm lawful presence (and who

28 BINDING MEMORANDUM OF AGREEMENT; [PROPOSED] ORDER
Case No. 18-CV-03539 LB
4
30

Case 3:18-cv-03539-LB Document 90 Filed 04/12/19 Page 5 of 8

1 will receive requests to provide such evidence within 87 days). In addition, with respect to the U.S.-

2 based parents for whom Defendants cannot confirm lawful presence, Defendants would later make a

3 one-time report of the number of parents for whom Defendants were later able to confirm lawful

4 presence.

5

•

The number of beneficiaries who require fingerprint collection (i.e. the number of

6 beneficiaries who are now at least 13 ½ and who hadn’t had their fingerprints collected previously for

7 CAM).

8

Defendants would then provide the following numbers every three months:

9

A.

The number of beneficiaries who submitted fingerprints after their case was reopened;

10

B.

The number of beneficiaries for whom a medical exam is scheduled (*Note, these will

11 be beneficiaries with a scheduled appointment and who have not yet attended their appointment);

12

C.

The number of beneficiaries for whom USCIS has received the medical exam results;

13

D.

The number of beneficiaries who have a pending request for a re-interview;

14

E.

The number of beneficiaries who completed a re-interview;

15

F.

The number of beneficiaries for whom USCIS authorized parole;

16

G.

The number of beneficiaries for whom USCIS denied parole; and

17

H.

The number of beneficiaries who traveled to the United States.

18 Defendants would also report in the third quarterly report (1) the number of beneficiaries for whom the

19 U.S.-based parent did not respond to USCIS contact efforts and (2) the number of beneficiaries who did

20 not respond to USCIS contact efforts. With respect to this population who did not respond to

21 Defendants’ contact efforts, the Parties shall meet and confer after the third quarterly report.

22

10. The signatories hereto represent that they have authority, whether on behalf of the

23 Defendants or on behalf of their clients, to enter into this Memorandum of Agreement. The

24 Memorandum of Agreement is to be construed under federal law as an agreement made in and to be

25 performed in the United States.

26

11. This Memorandum of Agreement is intended to be binding as a contract between the Parties

27 and shall be enforceable and admissible in any proceeding, notwithstanding any settlement or mediation

28 BINDING MEMORANDUM OF AGREEMENT; [PROPOSED] ORDER
Case No. 18-CV-03539 LB
5
30

Case 3:18-cv-03539-LB Document 90 Filed 04/12/19 Page 6 of 8

1 privilege. The Parties may agree on additional specific terms, which they will memorialize in

2 addendums to this Memorandum of Agreement. If any dispute arises regarding performance under this

3 Memorandum of Agreement, the Parties agree to submit that dispute to the Honorable Laurel Beeler,

4 who shall be empowered to resolve said dispute.

5 6 DATED: April 11, 2019 7 8 9 10

RONALD M Digitally signed by RONALD M ROSENBERG
ROSENBERG Date: 2019.04.11 23:24:47 -04'00'
RON M. ROSENBERG Chief of International Operations, within the Refugee, Asylum, and International Operations Directorate of U.S. Citizenship and Immigration Services (USCIS)

11

12 DATED: April 11, 2019
13
14

Respectfully submitted,
DAVID L. ANDERSON United States Attorney

15

/s/ Wendy M. Garbers

WENDY M. GARBERS

16

Assistant United States Attorney

17

Attorneys for the Federal Defendants

18

19

20

21

22

23

24

25

26

27

28 BINDING MEMORANDUM OF AGREEMENT; [PROPOSED] ORDER
Case No. 18-CV-03539 LB
6

30

Case 3:18-cv-03539-LB Document 90 Filed 04/12/19 Page 7 of 8

1 DATED: April 11, 2019 2 3 4 5

/s/ Linda Evarts*

______________

LINDA EVARTS (appearance pro hac vice)

KATHRYN C. MEYER (appearance pro hac

vice)

MARIKO HIROSE (appearance pro hac vice)

INTERNATIONAL REFUGEE

ASSISTANCE PROJECT

One Battery Park Plaza, 4th Floor

New York, NY 10004

6

JUSTIN B. COX (appearance pro hac vice)

INTERNATIONAL REFUGEE

7

ASSISTANCE PROJECT

PO Box 170208

8

Atlanta, GA 30317

9

/s/ Daniel B. Asimow ____________________

DANIEL B. ASIMOW

10

ARNOLD & PORTER KAYE SCHOLER

LLP

11

Three Embarcadero Center, 10th Floor

San Francisco, California 94111

12

JOHN A. FREEDMAN (appearance pro hac

13

vice)

DAVID J. WEINER

14

GAELA K. GEHRING FLORES**

DANA O. CAMPOS**

15

MATEO MORRIS**

ARNOLD & PORTER KAYE SCHOLER

16

LLP

601 Massachusetts Ave., NW

17

Washington, DC. 20001-3743

18

PHILLIP A. GERACI**

SUSAN S. HU**

19

ARNOLD & PORTER KAYE SCHOLER

LLP

20

250 West 55th Street

New York, NY. 10019-9710

21

**Pro Hac Vice motion forthcoming

22

Attorneys for Plaintiffs

23

24

25 *In compliance with Civil Local Rule 5-1(i)(3), the filer of this document attests under penalty of 26 perjury that all signatories have concurred in the filing of this document.

27

28 BINDING MEMORANDUM OF AGREEMENT; [PROPOSED] ORDER
Case No. 18-CV-03539 LB
7
30

Case 3:18-cv-03539-LB Document 90 Filed 04/12/19 Page 8 of 8

1

[PROPOSED] ORDER

2

Pursuant to the Parties’ Memorandum of Agreement, and good cause appearing therefore,

3 IT IS SO ORDERED.

4

5 Dated:

6

7

HONORABLE LAUREL BEELER

8

United States Magistrate Judge

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 BINDING MEMORANDUM OF AGREEMENT; [PROPOSED] ORDER
Case No. 18-CV-03539 LB
8
30

 
 Case 3:18-cv-03539-LB Document 99 Filed 05/17/19 Page 1 of 5

1 DAVID L. ANDERSON (CABN 149604)

United States Attorney

2 SARA WINSLOW (DCBN 457643)

Chief, Civil Division

3 WENDY M. GARBERS (CABN 213208)

Assistant United States Attorney

4 ALISON E. DAW (CABN 137026) Assistant United States Attorney

5

450 Golden Gate Avenue, Box 36055

6

San Francisco, California 94102-3495

Telephone: (415) 436-6475

7

FAX: (415) 436-7234

wendy.garbers@usdoj.gov 8

Attorneys for the Federal Defendants 9

UNITED STATES DISTRICT COURT 10

NORTHERN DISTRICT OF CALIFORNIA 11

SAN FRANCISCO DIVISION 12

13 S.A.; J.A.; A.B.; R.C., on behalf of himself and as Guardian Ad Litem for J.C., a minor child;
14 M.C.; D.D.; G.E., on behalf of himself and as Guardian Ad Litem for B.E., a minor child; J.F.
15 on behalf of himself and as Guardian Ad Litem for H.F. and A.F., minor children, on behalf of
16 themselves and on behalf of a class of all similarly situated individuals, and CASA,
17
Plaintiffs, 18
v. 19
DONALD J. TRUMP, in his official capacity as 20 President of the United States; U.S.
DEPARTMENT OF HOMELAND 21 SECURITY; U.S. CITIZENSHIP AND
IMMIGRATION SERVICES; U.S. 22 DEPARTMENT OF STATE; KIRSTJEN
NIELSEN, in her official capacity as Secretary 23 of Homeland Security; MICHAEL R.
POMPEO, in his official capacity as Secretary 24 of State; L. FRANCIS CISSNA, in his official
capacity as Director of U.S. Citizenship and 25 Immigration Services; UNITED STATES OF
AMERICA, 26
Defendants. 27

Case No. 18-CV-03539 LB
[PROPOSED] STIPULATED FINAL JUDGMENT AND ORDER FOR PERMANENT INJUNCTION

28
[PROPOSED] STIPULATED FINAL JUDGMENT AND ORDER FOR PERMANENT INJUNCTION Case No. 18-CV-03539 LB
1

Case 3:18-cv-03539-LB Document 99 Filed 05/17/19 Page 2 of 5

1

Pursuant to the Parties’ Binding Memorandum of Agreement (“Agreement”) (ECF 90), which

2 was subsequently adopted as an Order by this Court (ECF 91), the Parties respectfully request that the

3 Court enter the attached Stipulated Final Judgment and Order for Permanent Injunction, as contemplated

4 by the Agreement.

5

6 DATED: May 16, 2019

Respectfully submitted,

7

DAVID L. ANDERSON

United States Attorney

8 /s/ Wendy M. Garbers

9

WENDY M. GARBERS

Assistant United States Attorney

10

Attorneys for the Federal Defendants 11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
[PROPOSED] STIPULATED FINAL JUDGMENT AND ORDER FOR PERMANENT INJUNCTION Case No. 18-CV-03539 LB
2

Case 3:18-cv-03539-LB Document 99 Filed 05/17/19 Page 3 of 5

1 DATED: May 16, 2019 2 3 4 5

/s/ Linda Evarts*

______________

LINDA EVARTS (appearance pro hac vice)

KATHRYN C. MEYER (appearance pro hac

vice)

MARIKO HIROSE (appearance pro hac vice)

INTERNATIONAL REFUGEE

ASSISTANCE PROJECT

One Battery Park Plaza, 4th Floor

New York, NY 10004

6

JUSTIN B. COX (appearance pro hac vice)

INTERNATIONAL REFUGEE

7

ASSISTANCE PROJECT

PO Box 170208

8

Atlanta, GA 30317

9

DANIEL B. ASIMOW

ARNOLD & PORTER KAYE SCHOLER

10

LLP

Three Embarcadero Center, 10th Floor

11

San Francisco, California 94111

12

JOHN A. FREEDMAN (appearance pro hac

vice)

13

DAVID J. WEINER

GAELA K. GEHRING FLORES**

14

DANA O. CAMPOS**

MATEO MORRIS**

15

ARNOLD & PORTER KAYE SCHOLER

LLP

16

601 Massachusetts Ave., NW

Washington, DC. 20001-3743

17

PHILLIP A. GERACI**

18

SUSAN S. HU**

ARNOLD & PORTER KAYE SCHOLER

19

LLP

250 West 55th Street

20

New York, NY. 10019-9710

21

**Pro Hac Vice motion forthcoming

22

Attorneys for Plaintiffs

23 *In compliance with Civil Local Rule 5-1(i)(3), the filer of this document attests under penalty of
24 perjury that all signatories have concurred in the filing of this document.

25

26

27

28
[PROPOSED] STIPULATED FINAL JUDGMENT AND ORDER FOR PERMANENT INJUNCTION Case No. 18-CV-03539 LB
3

Case 3:18-cv-03539-LB Document 99 Filed 05/17/19 Page 4 of 5

1

[PROPOSED] STIPULATED FINAL JUDGMENT AND ORDER FOR PERMANENT

INJUNCTION

2

3

Pursuant to the Parties’ Binding Memorandum of Agreement (“Agreement”) (ECF 90 at 3),

4 which was subsequently adopted as an Order by this Court (ECF 91), IT IS ORDERED AND

5 ADJUDGED that the Court’s Order granting in part and denying in part Plaintiffs’ motion for

6 preliminary injunction (ECF 77) shall become the Court’s final injunction, as follows:

7

1. The Department of Homeland Security’s (“DHS’s”) decision to mass-rescind conditional

8

approvals for the approximately 2,700 beneficiaries conditionally approved for parole but

9

who had not traveled to the United States is vacated.

10

2. DHS must continue the post-conditional-approval processing for the approximately 2,700

11

beneficiaries under the policies, guidance, and practices for processing beneficiaries that

12

it had in place before January 2017, including the procedures described in USCIS’s

13

publication Central American Minors (CAM) Parole Program: Information for

14

Conditionally Approved Applicants (Exhibit 48 in the administrative record), and as

15

further explicated in USCIS’s CAM Parole Project Plan (ECF 93-1). DHS is enjoined

16

from adopting any policy, procedure, or practice to not process the approximately 2,700

17

beneficiaries or to place their processing on hold en masse. Nothing in this order

18

prevents DHS from placing any beneficiary’s processing on hold on an individualized

19

basis to the extent that it would do so under the policies and procedures it had in place

20

before January 2017.

21

3. Nothing in this order compels DHS to reach any particular outcome with respect to the

22

processing of any individual beneficiary or prevents DHS from exercising its discretion

23

with respect to the parole of any individual beneficiary. This Order does require DHS to

24

process the approximately 2,700 beneficiaries in good faith pursuant to the policies,

25

guidance, and practices it had in place prior to January 2017.

26

IT IS FURTHER ORDERED that, as set forth in the Parties’ Agreement (ECF 90 at 3, 6), the

27 Court will have continuing jurisdiction to enforce this Injunction and the Parties’ Agreement.

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[PROPOSED] STIPULATED FINAL JUDGMENT AND ORDER FOR PERMANENT INJUNCTION Case No. 18-CV-03539 LB
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Case 3:18-cv-03539-LB Document 99 Filed 05/17/19 Page 5 of 5

1

IT IS FURTHER ORDERED that, as set forth in the Parties’ Agreement (ECF 90 at 3), each

2 party shall bear his/her/its own attorneys’ fees and costs.

3 4 Dated:

May 17, 2019

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HONORABLE LAUREL BEELER

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United States Magistrate Judge

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[PROPOSED] STIPULATED FINAL JUDGMENT AND ORDER FOR PERMANENT INJUNCTION Case No. 18-CV-03539 LB
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 Case 3:18-cv-03539-LB Document 102 Filed 10/01/19 Page 1 of 10

1 DAVID L. ANDERSON (CABN 149604)

United States Attorney

2 SARA WINSLOW (DCBN 457643)

Chief, Civil Division

3 WENDY M. GARBERS (CABN 213208)

Assistant United States Attorney

4 ALISON E. DAW (CABN 137026)

Assistant United States Attorney

5

450 Golden Gate Avenue, Box 36055

6

San Francisco, California 94102-3495

Telephone: (415) 436-7073

7

FAX: (415) 436-7234

alison.daw@usdoj.gov

8

Attorneys for the Federal Defendants

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 S.A.; J.A.; A.B.; R.C., on behalf of himself and as Guardian Ad Litem for J.C., a minor child;
14 M.C.; D.D.; G.E., on behalf of himself and as Guardian Ad Litem for B.E., a minor child; J.F.
15 on behalf of himself and as Guardian Ad Litem for H.F. and A.F., minor children, on behalf of
16 themselves and on behalf of a class of all similarly situated individuals, and CASA,
17 Plaintiffs,
18 v.

19 DONALD J. TRUMP, in his official capacity as

20

President of the United States; U.S. DEPARTMENT OF HOMELAND

21

SECURITY; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S.

22

DEPARTMENT OF STATE; KEVIN K. McALEENAN, in his capacity as Acting

23

Secretary of Homeland Security; MICHAEL R. POMPEO, in his official capacity as Secretary

24

of State; KENNETH T. CUCCINELLI, II, in his official capacity as Acting Director of U.S.

25

Citizenship and Immigration Services; UNITED STATES OF AMERICA,

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Defendants.

27

Case No. 18-CV-03539 LB
DEFENDANTS’ SECOND QUARTERLY REPORT
Honorable Laurel Beeler

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DEFENDANTS’ SECOND QUARTERLY REPORT Case No. 18-CV-03539 LB
1 30

Case 3:18-cv-03539-LB Document 102 Filed 10/01/19 Page 2 of 10

1

Pursuant to the parties’ Binding Memorandum of Agreement of April 11, 2019 (ECF 90), the

2 Court’s order of April 12, 2019 (ECF 91), and the Stipulated Final Judgment and Order for Permanent

3 Injunction (ECF 99), Defendants submit their Second Quarterly Report, attached hereto, regarding the

4 CAM Parole Program.

5

6 DATED: October 1, 2019

Respectfully submitted,

7

DAVID L. ANDERSON

United States Attorney

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/s/ Wendy M. Garbers

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WENDY M. GARBERS

Assistant United States Attorney

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DEFENDANTS’ SECOND QUARTERLY REPORT Case No. 18-CV-03539 LB
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Case 3:18-cv-03539-LB Document 102 Filed 10/01/19 Page 3 of 10 CAM Parole Status Report (October 1, 2019)

Pursuant to paragraph 9 of the April 12, 2019, Memorandum of Agreement (MOA), USCIS submits this “second quarterly report” of its implementation progress.

Assumptions:

As noted previously in the USCIS operational compliance plan, USCIS will leverage IOM’s expertise and resources as it did when the CAM Parole program was previously operating. The submitted timeline represented the fastest estimated process assuming all external parties met the estimated milestones, but will be updated as more information becomes available. The estimated timeline is also based on previous CAM parole adjudications, and does not account for unforeseen differences. There are several rate-limiting steps upon which timeframes are dependent, including, most importantly, re-establishment/updating of the prior contract with IOM for in-country assistance and contracting with panel physicians to update medical exams, Further, USCIS previously made the decision to restructure its International Operations (IO) division including closing certain overseas offices (but has recently determined that the El Salvador, Mexico City and Guatemala offices will remain open); it is unknown at this time how this will impact timeframes or available resources.

Timeline Updates Steps: Estimated timelines are approximate and may shift depending on unforeseen factors as well as those noted above.

Further to paragraph 8 of the MOA, USCIS notes the following progress on the Compliance Plan. For reference, USCIS has reproduced the tasks, estimated timeline and comments from the Compliance Plan, and provided a status update and date of completion on each tasking.

Compliance Plan filed on April 18, 2019

Status updates for October 1, 2019 Parole Status
Report

Task USCIS will verify lawful status of all qualifying family members in the United States

Estimated Completion
Timeline
March 21 - April 8, 2019

Comments Completed initial verification for approximately 1,670 qualifying family members in the United States

Actual Completion Date Completed on May 20.

Comments On May 30, USCIS issued Requests For Evidence of lawful presence to family members (to 17 parents, representing 28 cases) without a record of current qualifying lawful presence, requesting evidence of lawful presence.
As of September 23, 2019, USCIS had attempted to contact all 17 remaining parents via phone (and email, when
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Case 3:18-cv-03539-LB Document 102 Filed 10/01/19 Page 4 of 10
available) in addition to the mailed RFEs. Of the 17 parents contacted by RFE, phone, and email, when available, 3 submitted proof of lawful status and 1 additional parent was verified by USCIS when the beneficiary appeared to receive information on his medical exams. Therefore, there are 13 parents for whom USCIS cannot confirm lawful presence.

USCIS will update automated security checks for all beneficiaries
USCIS will update automated security checks for all qualifying family members in the United States USCIS will post updated materials to the USCIS website, as necessary about court order and ongoing compliance

March 25 - April 12, 2019
April 1523, 2019
May 6, 2019 – TBD, ongoing as necessary

Completed initial security checks for approximately 2,700 individuals; does not include resolution of adverse information. Approximately 1,670 qualifying family members in the United States

Completed on April 23. Completed on April 23.

Basic information about court order can be posted by May 6. More information about case processing to be posted as notification to impacted family members is sent.

Completed.
See status update for dates of completion.

Additional checks will be conducted during later stages of processing.
Additional checks will be conducted during processing.
On May 21, USCIS posted basic information about the court order to the USCIS website in English and Spanish.
On June 18, USCIS posted further information about the settlement and permanent injunction online in English and Spanish. See https://www.uscis.gov/h umanitarian/humanitaria n-parole/centralamerican-minors-caminformation-paroleapplicants

USCIS also developed and posted on June 18 an online-self-check eligibility tool so that petitioners and beneficiaries could
2

Case 3:18-cv-03539-LB Document 102 Filed 10/01/19 Page 5 of 10
instantly find out if their case is part of the settlement.

USCIS will establish mechanism to accept updated contact information for family members in the United States and their beneficiaries, including an email address.

June 3, 2019 TBD

Completed on May 28.

USCIS will begin notifying qualifying family members in the United States of the court order and continued case processing

June 3, 2019 TBD

Timeframe includes drafting of notice, AR-11 verification of addresses, and printing and mailing.

Completed on May 31.

USCIS will reestablish a contract

Discussio A new or updated

Completed on

ns have contract and procurement September 25.

begun – package will need to be

There is a CAMdedicated email address attached to the program notices and available online. USCIS has received and timely responded to inquiries through this email address since the notices were mailed in late May, including updated contact information for impacted individuals and many other questions related to the CAM program.
In May, USCIS searched AR-11 holdings to ensure that USCIS had the latest addresses of record associated with CAM participants.
On May 31, USCIS completed mailing all notices to qualifying family members in the United States.
As of August 23, 2019, USCIS has received 301 notices, representing 190 petitioners, that USPS returned as undeliverable. USCIS continues to track returned notices and to attempt to locate qualifying family members through alternative contact information of record. Of the 190 petitioners, USCIS contacted 153 by phone and/or email. In anticipation of the finalization of the contract, USCIS was in
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Case 3:18-cv-03539-LB Document 102 Filed 10/01/19 Page 6 of 10

with IOM for incountry assistance

TBD [Estimated mid September /October 2019]

cleared by DHS and IOM; for reference, standing up CAM initially took several months of negotiation with IOM and this timeframe may be shorter

communication with IOM to update them on what steps in the process have been completed thus far and how the agency has communicated with the applicants. USCIS has also tracked information for each beneficiary, including when they have received their medicals and whether they will need to be interviewed. Now that the contract is signed, this information will be provided to IOM to assure a smooth transition.

Department of State and USCIS will renegotiate with consulate and panel physicians to determine how many CAM applicants can be processed each month.

Estimated early July 2019.

Under the program as previously constituted, the Embassy negotiated for panel physicians to accept as many as 5 per day (25 per week per physician.)

IOM will begin notifying beneficiaries abroad of continued case processing;

Estimated July 15, 2019, assuming completio n of prior steps.

Actual timeframe is dependent on how much time IOM might need to build up staffing abroad. (Current estimate allows IOM only one month following the finalized contract to ensure they have the necessary staffing in place.)

Completed on June 28. In process.

USCIS and Department of State have held discussions with panel physicians about how many CAM applicants they can process. The panel physicians in El Salvador, Guatemala and Honduras will be able to accept up to 10 CAM applicants a day. There are currently 5 panel physicians in El Salvador, 4 in Guatemala, and 3 in Honduras. While the completion of the IOM contract was pending, USCIS began the process of notifying beneficiaries in Guatemala and El Salvador, since the agency has offices in these countries. A total of 431 notices have been hand-delivered to the beneficiaries in person at the overseas USCIS offices. These applicants were also given instructions for medical exams.
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Case 3:18-cv-03539-LB Document 102 Filed 10/01/19 Page 7 of 10

USCIS will schedule biometrics appointments when necessary.
USCIS will begin appointments to collect biometrics if necessary

TBD
Estimated July 29, 2019

Fingerprints will be collected by USCIS for any beneficiaries who turned 14 years old following the CAM Parole program termination. Fingerprints do not need to be collected again for conditional parolees who already had them collected prior to termination of program; instead, their fingerprints on file will be re-run for checks.

In process. In process.

The remainder of this tasking is contingent upon the transfer of applicant information from USCIS to IOM, which is expected to occur the week of September 30, 2019. As of June 4, 2019, USCIS identified 89 beneficiaries who require fingerprints.
Since June 13, 2019, USCIS has been scheduling biometrics appointments in El Salvador and Guatemala.
Appointments are scheduled in Honduras on September 25, 2019.
Since June 21, 2019, USCIS has been taking required fingerprints.
Of the 89 cases that were identified (77 Salvadorans, 10 Hondurans, and 2 Guatemalans), 42 cases have been completed in El Salvador (40) and Guatemala (2).
USCIS made attempts to reach the beneficiaries using all available contact information from the file and USCIS systems, including phone numbers and email addresses. USCIS was unable to contact 23 cases for fingerprinting because the agency had no updated contact information (20 Salvadoran and 3 Honduran).

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Case 3:18-cv-03539-LB Document 102 Filed 10/01/19 Page 8 of 10
There are 8 Honduran cases that still need to be fingerprinted - 5 of those have been scheduled for September 25, 2019, in Tegucigalpa. USCIS continues to try to contact the remaining cases.

IOM will begin to collect money and schedule new medical exams for all beneficiaries
USCIS will begin to receive submitted medical exams, required for all beneficiaries

Estimated August 26, 2019.
Estimated September 9, 2019.

Actual timeframe depends on the family’s ability to produce the money for the fee and the limited availability of physicians. There are five panel physicians in El Salvador, where the vast majority of beneficiaries will seek a new medical exam. There are four in Guatemala and three in Honduras. Last time, it took approximately one month for IOM NY to collect payment from parents in the United States. Actual timeframe of medical exam results will depend on available physicians. The results of medical exams are sent to IOM within two weeks and then the scanned report is sent to USCIS in batches.

In process. In process.

USCIS and IOM will begin to schedule interviews with USCIS as needed, depending on any new information.

Estimated September 9, 2019.

Depending on any new information resulting from medical exams or security checks, a new interview may be scheduled for individual beneficiaries.

In process.

In July 2019, USCIS began providing applicants with the option to schedule medical exams and pay the panel physician directly. To date, 431 applicants have been given an instruction sheet on how to schedule their own appointments.
Now that the IOM contract is signed, IOM will assume duties moving forward.
USCIS has received 305 completed medical exams. The first medical exam results were received on July 29, 2019 and will expire on January 22, 2020. The most recent exams received will expire in March 2020. USCIS has so far identified 17 cases that will require interviews. They are not yet scheduled.
This tasking is contingent upon the transfer of applicant information from USCIS to IOM, which is expected to occur the week of September 30, 2019.

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Case 3:18-cv-03539-LB Document 102 Filed 10/01/19 Page 9 of 10

USCIS will begin to review eligibility for CAM parole on a case by case basis, assuming all information has been submitted.

Estimated September 10, 2019.

Case by case review can begin as soon as a beneficiary has submitted medical exams and an officer can review the relevant security checks. Actual date depends on IO office closures and restructuring.

In process.

USCIS has begun reviewing a sampling of cases for eligibility in order to review the process and check the background check systems.
This tasking is contingent upon the transfer of applicant information from USCIS to IOM, which is expected to occur the week of September 30, 2019.

USCIS will inform Customs and Border Protection that its officers will begin to see CAM parolees at ports of entry

Estimated September 10, 2019

Disseminate memo to CBP regarding CAM parolee travel and expected timeframe for travel

In process.

USCIS has drafted a memo for CBP. USCIS plans to disseminate to CBP prior to the travel of the first approved cases.

IOM will collect money for plane tickets.
For eligible cases, USCIS will complete final security checks and re-verify that the qualifying family member in the United States still has lawful presence before issuing the travel document;

Estimated beginning October 14, 2019.
Estimated beginning October 17, 2019.

Following case review, USCIS notifies IOM that they can begin to arrange travel. The actual timeframe depends on the individual’s ability to pay. IOM NY took usually one month to collect payment from parents in the United States. When a travel date is confirmed, USCIS conducts final checks. This must be done within a 48-hour period before issuing the I-512L travel document.

This tasking is contingent upon the transfer of applicant information from USCIS to IOM, which is expected to occur the week of September 30, 2019.
This tasking is contingent upon the transfer of applicant information from USCIS to IOM, which is expected to occur the week of September 30, 2019.
USCIS will complete security checks upon notification of the applicant’s travel date and 48 hours prior issuance of the I-512L.

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Case 3:18-cv-03539-LB Document 102 Filed 10/01/19 Page 10 of 10

For cases with final approval, USCIS will print a travel document that is valid through the valid period of the beneficiary’s medical exam.

Estimated beginning October 17, 2019.

USCIS will provide IOM with USCIS issued travel documents, valid through the valid period of the beneficiaries’ medical exams. IOM will provide the USCIS issued travel document to the travelling beneficiaries with final approval.

Estimated beginning October 18, 2019.
Estimated beginning October 23, 2019.

Actual timeline may depend on the beneficiary’s schedule and readiness to depart. In certain cases, IOM will escort beneficiaries for their travel.

This tasking is contingent upon the transfer of applicant information from USCIS to IOM, which is expected to occur the week of September 30, 2019 This tasking is contingent upon the transfer of applicant information from USCIS to IOM, which is expected to occur the week of September 30, 2019 This tasking is contingent upon the transfer of applicant information from USCIS to IOM, which is expected to occur the week of September 30, 2019

8

 
 Case 3:18-cv-03539-LB Document 103 Filed 12/27/19 Page 1 of 11

1 DAVID L. ANDERSON (CABN 149604)

United States Attorney

2 SARA WINSLOW (DCBN 457643)

Chief, Civil Division

3 WENDY M. GARBERS (CABN 213208)

Assistant United States Attorney

4 ALISON E. DAW (CABN 137026)

Assistant United States Attorney

5

450 Golden Gate Avenue, Box 36055

6

San Francisco, California 94102-3495

Telephone: (415) 436-7073

7

FAX: (415) 436-7234

alison.daw@usdoj.gov

8

Attorneys for the Federal Defendants

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 S.A.; J.A.; A.B.; R.C., on behalf of himself and as Guardian Ad Litem for J.C., a minor child;
14 M.C.; D.D.; G.E., on behalf of himself and as Guardian Ad Litem for B.E., a minor child; J.F.
15 on behalf of himself and as Guardian Ad Litem for H.F. and A.F., minor children, on behalf of
16 themselves and on behalf of a class of all similarly situated individuals, and CASA,
17 Plaintiffs,
18 v.

19 DONALD J. TRUMP, in his official capacity as

20

President of the United States; U.S. DEPARTMENT OF HOMELAND

21

SECURITY; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S.

22

DEPARTMENT OF STATE; KEVIN K. McALEENAN, in his capacity as Acting

23

Secretary of Homeland Security; MICHAEL R. POMPEO, in his official capacity as Secretary

24

of State; KENNETH T. CUCCINELLI, II, in his official capacity as Acting Director of U.S.

25

Citizenship and Immigration Services; UNITED STATES OF AMERICA,

26

Defendants.

27

Case No. 18-CV-03539 LB DEFENDANTS’ THIRD QUARTERLY REPORT Honorable Laurel Beeler

28
DEFENDANTS’ THIRD QUARTERLY REPORT Case No. 18-CV-03539 LB
1 30

Case 3:18-cv-03539-LB Document 103 Filed 12/27/19 Page 2 of 11

1

Pursuant to the parties’ Binding Memorandum of Agreement of April 11, 2019 (ECF 90), the

2 Court’s order of April 12, 2019 (ECF 91), and the Stipulated Final Judgment and Order for Permanent

3 Injunction (ECF 99), Defendants submit their Third Quarterly Report, attached hereto, regarding the

4 CAM Parole Program.

5

6 DATED: December 27, 2019

Respectfully submitted,

7

DAVID L. ANDERSON

United States Attorney

8

/s/ Wendy M. Garbers

9

WENDY M. GARBERS

Assistant United States Attorney

10

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DEFENDANTS’ THIRD QUARTERLY REPORT Case No. 18-CV-03539 LB
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Case 3:18-cv-03539-LB Document 103 Filed 12/27/19 Page 3 of 11
CAM Parole Status Report (January 1, 2019)
Pursuant to paragraph 9 of the April 12, 2019, Memorandum of Agreement (MOA), USCIS submits this “third quarterly report” of its implementation progress. Unless otherwise noted, the information in this report is current as of December 19, 2019.
Note: Update on Paragraph 7 Plaintiffs
Further to paragraph 7 of the MOA, USCIS agreed to re-open two Plaintiff family cases and consider them for parole, specifically, the beneficiaries (1) A.B.’s son; (2) A.B.’s son’s child; (3) H.F.; (4) A.F.; and (5) H.F. and A.F.’s mother. USCIS reopened their cases and has issued them all advance parole documents. A.B.’s son traveled to the U.S. on October 23, 2019. He opted not to take his child. A.F., H.F., and A.F. were issued their transportation letters, but have yet to travel because they are awaiting required travel authorization from the non-present parent, a requirement of the Honduran government.
Note: Update on Paragraph 9 for third quarterly report only:
USCIS agreed to report on (1) the number of beneficiaries for whom the U.S.-based parent did not respond to USCIS contact efforts and (2) the number of beneficiaries who did not respond to USCIS contact efforts. USCIS issued written notices to all U.S.-based parents about the court order and continued case processing. USCIS received returned from the USPS as undeliverable 301 notices, representing 190 petitioners, but of those 190 petitioners, USCIS was later able to locate most of those petitioners and/or their beneficiaries by phone and/or email. At this point in time, USCIS has been unable to contact 33 U.S. based parents, or petitioners, and their 50 beneficiaries about the court order and continued processing.
The re-opening notice sent to U.S.-based parents provided contact information for USCIS and instructions to provide USCIS with updated contact information about beneficiaries if the previous information had changed. It did not specifically require that affected individuals respond to USCIS in order to “opt in” to the settlement agreement. IOM calls all eligible beneficiaries to schedule updated medical examinations and, when necessary, schedule fingerprinting appointments. IOM completes these calls on a rolling basis, based on how many additional individuals IOM is able to process operationally at a given time. Four individuals have declined to move forward with case processing. Two hundred and seventy applicants are currently being processed. Sixty eight have already traveled to the U.S. and been paroled. No cases that were re-opened have been denied.
The 270 cases currently being processed include individuals contacted for medical payment, individuals whose medical payment is complete, individuals with scheduled medicals, individuals contacted for travel payment, and individuals whose travel payment is complete.
Assumptions:
As noted previously in the USCIS operational compliance plan, USCIS will leverage IOM’s expertise and resources as it did when the CAM Parole program was previously operating. The submitted timeline represented the fastest estimated process assuming all external parties met the estimated milestones, but will be updated as more information becomes available. The estimated timeline was also based on previous CAM parole adjudications, and does not account for unforeseen differences.
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Case 3:18-cv-03539-LB Document 103 Filed 12/27/19 Page 4 of 11 Timeline Updates

Steps: Estimated timelines are approximate and may shift depending on unforeseen factors as well as those noted above.

It is important to note that in addition to assisting with the processing of the CAM parole cases, IOM has had to re-establish contact with the local government partners such as the Ministry of External Relations and Salvadoran Immigration (DGME), as well as hire additional staff to manage the workload.

Further to paragraph 8 of the MOA, USCIS notes the following progress on the Compliance Plan. For reference, USCIS has reproduced the tasks, estimated timeline and comments from the Compliance Plan, and provided a status update and date of completion on each tasking.

Compliance Plan filed on April 18, 2019

Status updates for January 1, 2019 Parole Status
Report*
*Unless otherwise noted, information current as of December 19, 2019

Task USCIS will verify lawful status of all qualifying family members in the United States

Estimated Completion
Timeline
March 21 - April 8, 2019

Comments Completed initial verification for approximately 1,670 qualifying family members in the United States

Actual Completion Date Completed on May 20.

Comments Completed – prior notes below:
On May 30, USCIS issued Requests For Evidence of lawful presence to family members (to 17 parents, representing 28 cases) without a record of current qualifying lawful presence, requesting evidence of lawful presence.
As of September 23, 2019, USCIS had attempted to contact all 17 remaining parents via phone (and email, when available) in addition to the mailed RFEs. Of the 17 parents contacted by RFE, phone, and email, when available, 3 submitted proof of lawful status and 1 additional parent was verified by USCIS when the beneficiary appeared to receive information
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on his medical exams. Therefore, there are 11 parents for whom USCIS cannot confirm lawful presence.

USCIS will update automated security checks for all beneficiaries

March 25 - April 12, 2019

Completed initial security checks for approximately 2,700 individuals; does not include resolution of adverse information.

Completed on April 23.

USCIS will update automated security checks for all qualifying family members in the United States USCIS will post updated materials to the USCIS website, as necessary about court order and ongoing compliance

April 1523, 2019
May 6, 2019 – TBD, ongoing as necessary

Approximately 1,670 qualifying family members in the United States

Completed on April 23.

Basic information about court order can be posted by May 6. More information about case processing to be posted as notification to impacted family members is sent.

Completed.
See status update for dates of completion.

Completed - Prior notes below:
Additional checks will be conducted during later stages of processing. Completed - Prior notes below:
Additional checks will be conducted during processing. Completed - Prior notes below:
On May 21, USCIS posted basic information about the court order to the USCIS website in English and Spanish.

On June 18, USCIS posted further information about the settlement and permanent injunction online in English and Spanish. See https://www.uscis.gov/h umanitarian/humanitaria n-parole/centralamerican-minors-caminformation-paroleapplicants

USCIS will establish mechanism to accept updated contact

June 3, 2019 TBD

Completed on May 28.

USCIS also developed and posted on June 18 an online-self-check eligibility tool so that petitioners and beneficiaries could instantly find out if their case is part of the settlement. Completed - Prior notes below:

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Case 3:18-cv-03539-LB Document 103 Filed 12/27/19 Page 6 of 11

information for family members in the United States and their beneficiaries, including an email address.

There is a CAMdedicated email address attached to the program notices and available online. USCIS has received and timely responded to inquiries through this email address since the notices were mailed in late May, including updated contact information for impacted individuals and many other questions related to the CAM program.

USCIS will begin notifying qualifying family members in the United States of the court order and continued case processing

June 3, 2019 TBD

Timeframe includes drafting of notice, AR-11 verification of addresses, and printing and mailing.

Completed on May 31.

Completed - Prior notes below:
In May, USCIS searched AR-11 holdings to ensure that USCIS had the latest addresses of record associated with CAM participants.

On May 31, USCIS completed mailing all notices to qualifying family members in the United States.

USCIS will reestablish a contract with IOM for incountry assistance

Discussio ns have begun – TBD [Estimated

A new or updated contract and procurement package will need to be cleared by DHS and IOM; for reference,

Completed on September 25.

As of August 23, 2019, USCIS has received 301 notices, representing 190 petitioners, that USPS returned as undeliverable. USCIS continues to track returned notices and to attempt to locate qualifying family members through alternative contact information of record. Of the 190 petitioners, USCIS contacted 153 by phone and/or email. Completed - Prior notes below:
In anticipation of the finalization of the
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Case 3:18-cv-03539-LB Document 103 Filed 12/27/19 Page 7 of 11

mid September /October 2019]

standing up CAM initially took several months of negotiation with IOM and this timeframe may be shorter

contract, USCIS was in communication with IOM to update them on what steps in the process have been completed thus far and how the agency has communicated with the applicants. USCIS has also tracked information for each beneficiary, including when they have received their medicals and whether they will need to be interviewed. Now that the contract is signed, this information will be provided to IOM to assure a smooth transition.

Department of State and USCIS will renegotiate with consulate and panel physicians to determine how many CAM applicants can be processed each month.

Estimated early July 2019.

Under the program as previously constituted, the Embassy negotiated for panel physicians to accept as many as 5 per day (25 per week per physician.)

IOM will begin notifying beneficiaries abroad of continued case processing;

Estimated July 15, 2019, assuming completio n of prior steps.

Actual timeframe is dependent on how much time IOM might need to build up staffing abroad. (Current estimate allows IOM only one month following the finalized contract to ensure they have the necessary staffing in place.)

Completed on June 28. In process.

Completed - Prior notes below:
USCIS and Department of State have held discussions with panel physicians about how many CAM applicants they can process. The panel physicians in El Salvador, Guatemala and Honduras will be able to accept up to 10 CAM applicants a day. There are currently 5 panel physicians in El Salvador, 4 in Guatemala, and 3 in Honduras. While the completion of the IOM contract was pending, USCIS began the process of notifying beneficiaries in Guatemala and El Salvador, since the agency has offices in these countries. A total of 431 notices were hand-delivered to the beneficiaries in person at
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Case 3:18-cv-03539-LB Document 103 Filed 12/27/19 Page 8 of 11
the overseas USCIS offices. These applicants were also given instructions for scheduling their medical exams. IOM has delivered a total of 521 letters since they signed the Statement of Work on September 26, 2019.

USCIS will schedule biometrics appointments when necessary.
USCIS will begin appointments to collect biometrics if necessary

TBD
Estimated July 29, 2019

Fingerprints will be collected by USCIS for any beneficiaries who turned 14 years old following the CAM Parole program termination. Fingerprints do not need to be collected again for conditional parolees who already had them collected prior to termination of program; instead, their fingerprints on file will be re-run for checks.

In process. In process.

As of June 4, 2019, USCIS identified 89 beneficiaries who require fingerprints.
Since June 13, 2019, USCIS scheduled biometrics appointments in El Salvador, Honduras and Guatemala.
Since June 21, 2019, USCIS has been taking required fingerprints.
Of the 89 cases that were identified (77 Salvadorans, 10 Hondurans, and 2 Guatemalans), 41 cases have been completed in El Salvador, 5 in Honduras and 2 in Guatemala. In total, 48 out of the 89 identified cases have completed biometrics.
USCIS made attempts to reach the beneficiaries using all available contact information from the file and USCIS systems, including phone numbers and email addresses of the lawfully present parents
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and beneficiaries in country. USCIS was unable to contact 22 cases for fingerprinting because the agency had no updated contact information (19 Salvadoran and 3 Honduran). There are also 19 applicants who were contacted but were unavailable for fingerprinting appointments, as they are not currently living in El Salvador or Honduras (17 Salvadoran, 2 Honduran).

IOM will begin to collect money and schedule new medical exams for all beneficiaries

Estimated August 26, 2019.

Actual timeframe depends on the family’s ability to produce the money for the fee and the limited availability of physicians. There are five panel physicians in El Salvador, where the vast majority of beneficiaries will seek a new medical exam. There are four in Guatemala and three in Honduras. Last time, it took approximately one month for IOM NY to collect payment from parents in the United States.

In process.

USCIS will begin to receive submitted medical exams, required for all beneficiaries

Estimated September 9, 2019.

Actual timeframe of medical exam results will depend on available physicians. The results of medical exams are sent to IOM within two weeks and then the scanned

In process.

In July 2019, USCIS began providing applicants with the option to schedule medical exams and pay the panel physician directly. To date, 431 applicants have been given an instruction sheet by USCIS on how to schedule their own appointments. IOM has now assumed this task. IOM has already contacted 210 applicants for payment of their medical exams as of December 23, 2019. This number includes individuals who have been contacted for payment, whose medical payment has been completed, and those whose medical exam has been scheduled. USCIS has received 403 completed medical exams as of December 23, 2019. The first medical exam results were received on July 29, 2019
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report is sent to USCIS in batches.

USCIS and IOM will begin to schedule interviews with USCIS as needed, depending on any new information.

Estimated September 9, 2019.

Depending on any new information resulting from medical exams or security checks, a new interview may be scheduled for individual beneficiaries.

In process.

USCIS will begin to review eligibility for CAM parole on a case by case basis, assuming all information has been submitted.
USCIS will inform Customs and Border Protection that its officers will begin to see CAM parolees at ports of entry

Estimated September 10, 2019.
Estimated September 10, 2019

Case by case review can begin as soon as a beneficiary has submitted medical exams and an officer can review the relevant security checks. Actual date depends on IO office closures and restructuring. Disseminate memo to CBP regarding CAM parolee travel and expected timeframe for travel

In process.
Completed on October 11, 2019.

IOM will collect money for plane tickets.
For eligible cases, USCIS will complete final security checks and re-verify that the qualifying family member in the United States still has lawful presence before issuing the travel document.

Estimated beginning October 14, 2019.
Estimated beginning October 17, 2019.

Following case review, USCIS notifies IOM that they can begin to arrange travel. The actual timeframe depends on the individual’s ability to pay. IOM NY took usually one month to collect payment from parents in the United States. When a travel date is confirmed, USCIS conducts final checks. This must be done within a 48-hour period before issuing the I-512L travel document.

In process In process.

For cases with final approval, USCIS will print a travel document that is valid through

Estimated beginning October 17, 2019.

In process.

As of Dec. 23 2019, USCIS has so far identified 43 cases that will require interviews. Of those 37 have already been interviewed.
USCIS is actively reviewing cases for eligibility on an ongoing basis.
Completed - Prior notes below:
USCIS sent the memo to CBP on October 11, 2019.
IOM has begun collecting money for travel. They have collected money for 98 applicants as of December 23, 2019.
USCIS will complete security checks upon notification of the applicant’s travel date and 48 hours prior issuance of the I-512L.
USCIS has cleared 67 cases for travel as of December 23, 2019. The first group traveled to the U.S. on October 15, 2019. USCIS has printed a total of 67
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the valid period of the beneficiary’s medical exam.

USCIS will provide IOM with USCIS issued travel documents, valid through the valid period of the beneficiaries’ medical exams. IOM will provide the USCIS issued travel document to the travelling beneficiaries with final approval.

Estimated beginning October 18, 2019.
Estimated beginning October 23, 2019.

In process.

Actual timeline may depend on the beneficiary’s schedule and readiness to depart. In certain cases, IOM will escort beneficiaries for their travel.

In process.

travel documents as of December 23, 2019 (excluding the named plaintiffs). USCIS has provided 67 travel documents to IOM as of December 23, 2019.
IOM has provided travel documents to 67 applicants on their travel day as of December 23, 2019. IOM counsels, houses and escorts applicants to the airport on their designated date of travel.

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 Case 3:18-cv-03539-LB Document 104 Filed 03/31/20 Page 1 of 10

1 DAVID L. ANDERSON (CABN 149604)

United States Attorney

2 SARA WINSLOW (DCBN 457643)

Chief, Civil Division

3 WENDY M. GARBERS (CABN 213208)

Assistant United States Attorney

4 ALISON E. DAW (CABN 137026)

Assistant United States Attorney

5

450 Golden Gate Avenue, Box 36055

6

San Francisco, California 94102-3495

Telephone: (415) 436-7073

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FAX: (415) 436-7234

alison.daw@usdoj.gov

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Attorneys for the Federal Defendants

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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13 S.A.; J.A.; A.B.; R.C., on behalf of himself and as Guardian Ad Litem for J.C., a minor child;
14 M.C.; D.D.; G.E., on behalf of himself and as Guardian Ad Litem for B.E., a minor child; J.F.
15 on behalf of himself and as Guardian Ad Litem for H.F. and A.F., minor children, on behalf of
16 themselves and on behalf of a class of all similarly situated individuals, and CASA,
17 Plaintiffs,
18 v.

19 DONALD J. TRUMP, in his official capacity as

20

President of the United States; U.S. DEPARTMENT OF HOMELAND

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SECURITY; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S.

22

DEPARTMENT OF STATE; KEVIN K. McALEENAN, in his capacity as Acting

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Secretary of Homeland Security; MICHAEL R. POMPEO, in his official capacity as Secretary

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of State; KENNETH T. CUCCINELLI, II, in his official capacity as Acting Director of U.S.

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Citizenship and Immigration Services; UNITED STATES OF AMERICA,

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Defendants.

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Case No. 18-CV-03539 LB
DEFENDANTS’ FOURTH QUARTERLY REPORT
Honorable Laurel Beeler

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DEFENDANTS’ FOURTH QUARTERLY REPORT Case No. 18-CV-03539 LB
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Case 3:18-cv-03539-LB Document 104 Filed 03/31/20 Page 2 of 10

1

Pursuant to the parties’ Binding Memorandum of Agreement of April 11, 2019 (ECF 90), the

2 Court’s order of April 12, 2019 (ECF 91), and the Stipulated Final Judgment and Order for Permanent

3 Injunction (ECF 99), Defendants submit their Fourth Quarterly Report, attached hereto, regarding the

4 CAM Parole Program.

5

6 DATED: March 31, 2020

Respectfully submitted,

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DAVID L. ANDERSON

United States Attorney

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/s/ Wendy M. Garbers

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WENDY M. GARBERS

Assistant United States Attorney

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11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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DEFENDANTS’ FOURTH QUARTERLY REPORT Case No. 18-CV-03539 LB
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Case 3:18-cv-03539-LB Document 104 Filed 03/31/20 Page 3 of 10
CAM Parole Status Report (April 1, 2020)
Pursuant to paragraph 9 of the April 12, 2019, Memorandum of Agreement (MOA), USCIS submits this “fourth quarterly report” of its implementation progress. Unless otherwise noted, the information in this report is current as of March 20, 2020.
Note: Update on Paragraph 7 Plaintiffs
Further to paragraph 7 of the MOA, USCIS agreed to re-open two Plaintiff family cases and consider them for parole, specifically, the beneficiaries (1) A.B.’s son; (2) A.B.’s son’s child; (3) H.F.; (4) A.F.; and (5) H.F. and A.F.’s mother. USCIS reopened their cases and has issued them all advance parole documents. A.B.’s son traveled to the U.S. on October 23, 2019. He opted not to take his child. A.F., H.F., and A.F. were issued their transportation letters and traveled to the United States on December 27, 2019.
Note: Impact of coronavirus on CAM processing: In mid-March, the coronavirus disease (COVID-19) outbreak resulted in airport closures in Guatemala City, San Salvador, and Tegucigalpa. On or around March 15, 2020, shortly prior to the airport closures, flight cancelations began to affect CAM parolees, causing IOM to cancel planned CAM flights on March 17 and 19 and all flights since then. National governments in El Salvador, Guatemala, and Honduras have also declared mandatory stay at home orders. Though some USCIS staff in those locations are working from home and continue to process parole cases, locally employed USCIS staff are not reporting to work during this time and do not have telework capability. USCIS staff are unable to issue travel letters, withdrawal or closure notices while working from home, though other tasks can be completed from home. The initial review of completed medicals may also be delayed due to limitations of available personnel resources. The validity period of medical exams is determined by the Centers for Disease Control (CDC) and it is possible that some individuals will have the validity period of their already completed medical exams expire during the closure of airports, such that medical exams may have to be re-done for those individuals. However, the philanthropic foundation funding parolee travel has stated that it will also provide funding for repeat medical exams for individuals whose medical exams expire during the lapse in flights to the U.S. IOM Operations has also instituted telework and will electronically process as many completed medical exams as possible during this time. New medical exams cannot be scheduled or occur however during this time, with the panel physicians conducting the last medical exams on March 17, 2020.
Assumptions:
As noted previously in the USCIS operational compliance plan, USCIS will leverage IOM’s expertise and resources as it did when the CAM Parole program was previously operating. The submitted timeline represented the fastest estimated process assuming all external parties met the estimated milestones, but will be updated as more information becomes available. The estimated timeline was also based on previous CAM parole adjudications, and does not account for unforeseen differences.
Timeline Updates
Steps: Estimated timelines are approximate and may shift depending on unforeseen factors as well as those noted above.
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Further to paragraph 8 of the MOA, USCIS notes the following progress on the Compliance Plan. For reference, USCIS has reproduced the tasks, estimated timeline and comments from the Compliance Plan, and provided a status update and date of completion on each tasking.

Compliance Plan filed on April 18, 2019

Status updates for April 1, 2020 Parole Status
Report*
*Unless otherwise noted, information current as of March 20, 2020

Task USCIS will verify lawful status of all qualifying family members in the United States

Estimated Completion
Timeline
March 21 - April 8, 2019

Comments Completed initial verification for approximately 1,670 qualifying family members in the United States

Actual Completion Date Completed on May 20.

Comments Completed – prior notes below:
On May 30, USCIS issued Requests For Evidence of lawful presence to family members (to 17 parents, representing 28 cases) without a record of current qualifying lawful presence, requesting evidence of lawful presence.

As of September 23, 2019, USCIS had attempted to contact all 17 remaining parents via phone (and email, when available) in addition to the mailed RFEs. Of the 17 parents contacted by RFE, phone, and email, when available, 3 submitted proof of lawful status and 1 additional parent was verified by USCIS when the beneficiary appeared to receive information on his medical exams. Therefore, there are 11 parents for whom USCIS cannot confirm lawful presence.

USCIS will update automated security

March 25 Completed initial security Completed on April 23.

- April 12, checks for approximately

2019

2,700 individuals; does

Completed - Prior notes below:

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checks for all beneficiaries

USCIS will update automated security checks for all qualifying family members in the United States USCIS will post updated materials to the USCIS website, as necessary about court order and ongoing compliance

April 1523, 2019
May 6, 2019 – TBD, ongoing as necessary

not include resolution of adverse information.

Approximately 1,670 qualifying family members in the United States

Completed on April 23.

Basic information about court order can be posted by May 6. More information about case processing to be posted as notification to impacted family members is sent.

Completed.
See status update for dates of completion.

Additional checks will be conducted during later stages of processing. Completed - Prior notes below:
Additional checks will be conducted during processing. Completed - Prior notes below:
On May 21, USCIS posted basic information about the court order to the USCIS website in English and Spanish.

On June 18, USCIS posted further information about the settlement and permanent injunction online in English and Spanish. See https://www.uscis.gov/h umanitarian/humanitaria n-parole/centralamerican-minors-caminformation-paroleapplicants

USCIS will establish mechanism to accept updated contact information for family members in the United States and their beneficiaries, including an email address.

June 3, 2019 TBD

Completed on May 28.

USCIS also developed and posted on June 18 an online-self-check eligibility tool so that petitioners and beneficiaries could instantly find out if their case is part of the settlement. Completed - Prior notes below:
There is a CAMdedicated email address attached to the program notices and available online. USCIS has received and timely responded to inquiries through this email address since the notices
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were mailed in late May, including updated contact information for impacted individuals and many other questions related to the CAM program.

USCIS will begin notifying qualifying family members in the United States of the court order and continued case processing

June 3, 2019 TBD

Timeframe includes drafting of notice, AR-11 verification of addresses, and printing and mailing.

Completed on May 31.

Completed - Prior notes below:
In May, USCIS searched AR-11 holdings to ensure that USCIS had the latest addresses of record associated with CAM participants.

On May 31, USCIS completed mailing all notices to qualifying family members in the United States.

USCIS will reestablish a contract with IOM for incountry assistance

Discussio ns have begun – TBD [Estimated mid September /October 2019]

A new or updated contract and procurement package will need to be cleared by DHS and IOM; for reference, standing up CAM initially took several months of negotiation with IOM and this timeframe may be shorter

Completed on September 25.

As of August 23, 2019, USCIS has received 301 notices, representing 190 petitioners, that USPS returned as undeliverable. USCIS continues to track returned notices and to attempt to locate qualifying family members through alternative contact information of record. Of the 190 petitioners, USCIS contacted 153 by phone and/or email. Completed - Prior notes below:
In anticipation of the finalization of the contract, USCIS was in communication with IOM to update them on what steps in the process have been completed thus far and how the agency has communicated with the applicants. USCIS has
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also tracked information for each beneficiary, including when they have received their medicals and whether they will need to be interviewed. Now that the contract is signed, this information will be provided to IOM to assure a smooth transition.

Department of State and USCIS will renegotiate with consulate and panel physicians to determine how many CAM applicants can be processed each month.

Estimated early July 2019.

Under the program as previously constituted, the Embassy negotiated for panel physicians to accept as many as 5 per day (25 per week per physician.)

IOM will begin notifying beneficiaries abroad of continued case processing;

Estimated July 15, 2019, assuming completio n of prior steps.

Actual timeframe is dependent on how much time IOM might need to build up staffing abroad. (Current estimate allows IOM only one month following the finalized contract to ensure they have the necessary staffing in place.)

Completed on June 28. In process.

Completed - Prior notes below:
USCIS and Department of State have held discussions with panel physicians about how many CAM applicants they can process. The panel physicians in El Salvador, Guatemala and Honduras will be able to accept up to 10 CAM applicants a day. There are currently 5 panel physicians in El Salvador, 4 in Guatemala, and 3 in Honduras. While the completion of the IOM contract was pending, USCIS began the process of notifying beneficiaries in Guatemala and El Salvador, since the agency has offices in these countries. A total of 431 notices were hand-delivered to the beneficiaries in person at the overseas USCIS offices. These applicants were also given instructions for scheduling their medical exams. IOM has delivered a total of 1,479 letters since they signed

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the Statement of Work on September 26, 2019.

USCIS will schedule biometrics appointments when necessary.

TBD

Fingerprints will be collected by USCIS for any beneficiaries who turned 14 years old following the CAM Parole program termination. Fingerprints do not need to be collected again for conditional parolees who already had them collected prior to termination of program; instead, their fingerprints on file will be re-run for checks.

In process.

As of March 25, 2020, USCIS had identified 113 beneficiaries who require(d) fingerprints, some of which were later closed. Of these 113 individuals, 60 have undergone biometrics and 21 open cases still require biometrics.
Since June 13, 2019, USCIS scheduled biometrics appointments in El Salvador, Honduras and Guatemala.

USCIS will begin appointments to collect biometrics if necessary

Estimated July 29, 2019

In process.

Since June 21, 2019, USCIS has been taking required fingerprints.

IOM will begin to collect money and schedule new medical exams for all beneficiaries

Estimated August 26, 2019.

Actual timeframe depends on the family’s ability to produce the money for the fee and the limited availability of physicians. There are five panel physicians in El Salvador, where the vast majority of beneficiaries will seek a new medical exam. There are four in Guatemala and three in Honduras. Last time, it took approximately one month for IOM NY to collect payment from parents in the United States.

In process.

In July 2019, USCIS began providing applicants with the option to schedule medical exams and pay the panel physician directly. 431 applicants had been given an instruction sheet by USCIS on how to schedule their own appointments. IOM has now assumed this task. IOM has already contacted 1,403 applicants for payment of their medical exams as of March 20, 2020. This number includes individuals who have been contacted for payment, whose medical
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USCIS will begin to receive submitted medical exams, required for all beneficiaries
USCIS and IOM will begin to schedule interviews with USCIS as needed, depending on any new information.

Estimated September 9, 2019.
Estimated September 9, 2019.

Actual timeframe of medical exam results will depend on available physicians. The results of medical exams are sent to IOM within two weeks and then the scanned report is sent to USCIS in batches. Depending on any new information resulting from medical exams or security checks, a new interview may be scheduled for individual beneficiaries.

In process. In process.

payment has been completed, and those whose medical exam has been scheduled. USCIS has received 826 completed medical exams as of March 25, 2020. The first medical exam results were received on July 29, 2019
As of March 25, 2020, USCIS has so far identified 92 cases that will require reinterviews. Of those, 44 re-interviews have already been completed.

USCIS will begin to review eligibility for CAM parole on a case by case basis, assuming all information has been submitted.
USCIS will inform Customs and Border Protection that its officers will begin to see CAM parolees at ports of entry

Estimated September 10, 2019.
Estimated September 10, 2019

Case by case review can begin as soon as a beneficiary has submitted medical exams and an officer can review the relevant security checks. Actual date depends on IO office closures and restructuring. Disseminate memo to CBP regarding CAM parolee travel and expected timeframe for travel

In process.
Completed on October 11, 2019.

IOM will collect money for plane tickets.

Estimated beginning October 14, 2019.

Following case review, USCIS notifies IOM that they can begin to arrange travel. The actual timeframe depends on the individual’s ability to pay. IOM NY took usually one month to collect payment from parents in the United States.

In process

USCIS is actively reviewing cases for eligibility on an ongoing basis.
Completed - Prior notes below:
USCIS sent the memo to CBP on October 11, 2019.
IOM collected money for travel from 98 applicants as of December 23, 2019. IOM has not collected additional money for travel as a philanthropic foundation is funding parolee travel. Parolees who had already paid for travel were issued refunds.

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For eligible cases, USCIS will complete final security checks and re-verify that the qualifying family member in the United States still has lawful presence before issuing the travel document. For cases with final approval, USCIS will print a travel document that is valid through the valid period of the beneficiary’s medical exam.

Estimated beginning October 17, 2019.
Estimated beginning October 17, 2019.

When a travel date is confirmed, USCIS conducts final checks. This must be done within a 48-hour period before issuing the I-512L travel document.

In process. In process.

USCIS will provide IOM with USCIS issued travel documents, valid through the valid period of the beneficiaries’ medical exams. IOM will provide the USCIS issued travel document to the travelling beneficiaries with final approval.

Estimated beginning October 18, 2019.
Estimated beginning October 23, 2019.

In process.

Actual timeline may depend on the beneficiary’s schedule and readiness to depart. In certain cases, IOM will escort beneficiaries for their travel.

In process.

USCIS will complete security checks upon notification of the applicant’s travel date and 48 hours prior to issuance of the I-512L.
USCIS has cleared 484 cases for travel as of March 25, 2020. The first group traveled to the U.S. on October 15, 2019. USCIS has printed a total of 356 travel documents as of March 25, 2020 (excluding the named plaintiffs). USCIS has provided 335 travel documents to IOM as of March 25, 2020. 21 travel documents have not been issued due to COVID-19 related flight cancellations. IOM has provided travel documents to 330 applicants on their travel day as of March 20, 2020. IOM counsels, houses and escorts applicants to the airport on their designated date of travel.

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