Alerts not yet Supported for this Docket ACCO,(SHKx),APPEAL,DISCOVERY,MANADR,STAYED
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Eastern Division - Riverside)
CIVIL DOCKET FOR CASE #: 5:17-cv-02048-PSG-SHK

Inland Empire Immigrant Youth Collective et al v. Elaine C. Duke et al Assigned to: Judge Philip S. Gutierrez Referred to: Magistrate Judge Shashi H. Kewalramani Case in other court: 9th CCA, 18-55564 Cause: 05:551 Administrative Procedure Act

Date Filed: 10/05/2017 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff
Inland Empire - Immigrant Youth Collective

represented by Ahilan T Arulanantham ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213-977-9500 Fax: 213-977-5299 Email: aarulanantham@aclu-sc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dae Keun Kwon ACLU of Southern California 1313 West 8th Street Los Angeles, CA 90017 213-977-5204 Email: akwon@aclusocal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katrina L Eiland ACLU Foundation Immigrants Rights Project 39 Drumm Street San Francisco, CA 94111 415-343-0770 Fax: 415-395-0950

Email: keiland@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Bryan Kaufman ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213-977-5232 Fax: 213-977-5297 Email: mkaufman@aclu-sc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Hausman 242 Curtner Ave Apt F Palo Alto, CA 94306 Email: dhausman@stanford.edu TERMINATED: 07/26/2019 PRO HAC VICE
Jennifer C Newell ACLU Foundation Immigrants Rights Project 39 Drumm Street San Francisco, CA 94111 415-343-0770 Fax: 415-395-0950 Email: jnewell@aclu.org TERMINATED: 12/17/2019
Julie Veroff ACLU Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 415-343-0778 Fax: 415-343-0950 Email: jveroff@aclu.org ATTORNEY TO BE NOTICED
Michael K T Tan ACLU Foundation Immigrants Rights Project

Plaintiff Jesus Alonso Arreola Robles

125 Broad Street 18th Floor New York, NY 10004 212-549-2618 Fax: 212-549-2654 Email: mtan@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ahilan T Arulanantham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dae Keun Kwon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katrina L Eiland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Hausman (See above for address) TERMINATED: 07/26/2019 PRO HAC VICE
Jennifer C Newell (See above for address) TERMINATED: 12/17/2019
Julie Veroff (See above for address) ATTORNEY TO BE NOTICED
Michael K T Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Ronan Carlos de Souza Moreira
Plaintiff Jose Eduardo Gil Robles
V. Defendant Elaine C. Duke Acting Secretary, U.S. Department of Homeland Security TERMINATED: 12/21/2017

represented by David Hausman (See above for address) TERMINATED: 07/26/2019 PRO HAC VICE
Jennifer C Newell (See above for address) TERMINATED: 12/17/2019
Julie Veroff (See above for address) ATTORNEY TO BE NOTICED
Katrina L Eiland (See above for address) ATTORNEY TO BE NOTICED
represented by David Hausman (See above for address) TERMINATED: 07/26/2019 PRO HAC VICE
Jennifer C Newell (See above for address) TERMINATED: 12/17/2019
Julie Veroff (See above for address) ATTORNEY TO BE NOTICED
Katrina L Eiland (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey S Robins Department of Justice Office of Immigration Litigation District Court Section PO Box 868 Ben Franklin Station

Defendant James McCament Acting Director, U.S. Citizenship and Immigration Services
Defendant Mark J Hazuda Director, Nebraska Service Center, U.S. Citizenship and Immigration Services
Defendant Susan M. Curda Los Angeles District Director, U.S. Citizenship and Immigration Services

Washington, DC 20044 202-616-1246 Fax: 202-305-7000 Email: jeffrey.robins@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Joseph Walker US Department of Justice Civil Division - Office of Immigration Litigation PO Box 868 Ben Franklin Station Washington, DC 20044 202-532-4468 Fax: 202-305-7000 Email: james.walker3@usdoj.gov ATTORNEY TO BE NOTICED
represented by Jeffrey S Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Joseph Walker (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey S Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Joseph Walker (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey S Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Joseph Walker

Defendant Thomas D. Homan Acting Director, U.S. Immigration and Customs Enforcement
Defendant David Marin Los Angeles Field Office Director, U.S. Immigration and Customs Enforcement
Defendant Kevin K. Mcaleenan Acting Commissioner, U.S. Customs and Border Protection
Defendant Kirstjen Nielsen Secretary, U.S. Department of Homeland Security

(See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey S Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Joseph Walker (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey S Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Joseph Walker (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey S Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Joseph Walker (See above for address) ATTORNEY TO BE NOTICED
represented by James Joseph Walker (See above for address) ATTORNEY TO BE NOTICED
Jeffrey S Robins (See above for address) ATTORNEY TO BE NOTICED

Date Filed # Docket Text

10/05/2017 10/05/2017 10/05/2017 10/06/2017 10/06/2017 10/06/2017
10/06/2017

1 COMPLAINT Receipt No: 0973-20616899 - Fee: $400, filed by Plaintiff Jesus Alonso Arreola Robles, Inland Empire - Immigrant Youth Collective. (Attorney Jennifer C Newell added to party Jesus Alonso Arreola Robles(pty:pla), Attorney Jennifer C Newell added to party Inland Empire - Immigrant Youth Collective(pty:pla))(Newell, Jennifer) (Entered: 10/05/2017)
2 CIVIL COVER SHEET filed by Plaintiffs Jesus Alonso Arreola Robles, Inland Empire - Immigrant Youth Collective. (Newell, Jennifer) (Entered: 10/05/2017)
3 NOTICE of Interested Parties filed by Plaintiffs All Plaintiffs, (Newell, Jennifer) (Entered: 10/05/2017)
4 NOTICE OF ASSIGNMENT to District Judge Michael W. Fitzgerald and Magistrate Judge Shashi H. Kewalramani. (jtil) (Entered: 10/06/2017)
5 NOTICE TO PARTIES OF COURT-DIRECTED ADR PROGRAM filed. (jtil) (Entered: 10/06/2017)
6 NOTICE OF PRO HAC VICE APPLICATION DUE for Non-Resident Attorney Michael K. T. Tan. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (jtil) (Entered: 10/06/2017)
7 NOTICE OF PRO HAC VICE APPLICATION DUE for Non-Resident Attorney David Hausman. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back

10/11/2017 10/11/2017 10/11/2017 10/13/2017 10/16/2017 10/16/2017

to the docket until your Pro Hac Vice status has been resolved. (jtil) (Entered: 10/06/2017)
9 NOTICE of Appearance filed by attorney Michael Bryan Kaufman on behalf of Plaintiffs Jesus Alonso Arreola Robles, Inland Empire Immigrant Youth Collective (Attorney Michael Bryan Kaufman added to party Jesus Alonso Arreola Robles(pty:pla), Attorney Michael Bryan Kaufman added to party Inland Empire - Immigrant Youth Collective(pty:pla))(Kaufman, Michael) (Entered: 10/11/2017)
10 First APPLICATION of Non-Resident Attorney David Hausman to Appear Pro Hac Vice on behalf of Plaintiffs Jesus Alonso Arreola Robles, Inland Empire - Immigrant Youth Collective (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-20643389) filed by plaintiff Jesus Alonso Arreola Robles, Inland Empire - Immigrant Youth Collective. (Attachments: # 1 Proposed Order Proposed Order) (Kaufman, Michael) (Entered: 10/11/2017)
11 First APPLICATION of Non-Resident Attorney Michael King Thomas Tan to Appear Pro Hac Vice on behalf of Plaintiffs Jesus Alonso Arreola Robles, Inland Empire - Immigrant Youth Collective (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-20643491) filed by plaintiff Jesus Alonso Arreola Robles, Inland Empire - Immigrant Youth Collective. (Attachments: # 1 Proposed Order Proposed Order) (Kaufman, Michael) (Entered: 10/11/2017)
12 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: First APPLICATION of Non-Resident Attorney Michael King Thomas Tan to Appear Pro Hac Vice on behalf of Plaintiffs Jesus Alonso Arreola Robles, Inland Empire - Immigrant Youth Collective (Pro Hac Vice Fee - Fee Paid, Receipt No. 097320643491) 11 . The following error(s) was/were found: Attorney is Not eligible to practice in California for failure to pay dues. (lt) (Entered: 10/13/2017)
13 RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS RE: APPLICATION of Non-Resident Attorney Michael King Thomas Tan to Appear Pro Hac Vice on behalf of Plaintiffs Jesus Alonso Arreola Robles, Inland Empire - Immigrant Youth Collective (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-20643491) 11 by Clerk of Court to Judge Michael W. Fitzgerald. The document is accepted and filed. (jp) Modified on 10/17/2017 (cw). (Entered: 10/16/2017)
14 ORDER by Judge Michael W. Fitzgerald: The Application 10 by NonResident Attorney David Hausman to Appear Pro Hac Vice on behalf of Plaintiffs Inland Empire-Immigrant Youth Collective and Jesus

10/16/2017 10/18/2017
10/18/2017 10/19/2017 10/19/2017

Alonso Arreola Robles, designating Michael Kaufman as local counsel, is GRANTED. (cw) (Entered: 10/16/2017)
15 ORDER by Judge Michael W. Fitzgerald: The Application 11 by NonResident Attorney Michael K.T. Tan to Appear Pro Hac Vice on behalf of Plaintiffs Inland Empire-Immigrant Youth Collective and Jesus Alonso Arreola Robles, designating Michael Kaufman as local counsel, is GRANTED. (cw) (Entered: 10/16/2017)
16 First NOTICE OF MOTION AND MOTION for Preliminary Injunction re Termination of Mr. Arreola's DACA . Motion filed by plaintiff Jesus Alonso Arreola Robles. Motion set for hearing on 11/20/2017 at 10:00 AM before Judge Michael W. Fitzgerald. (Attachments: # 1 Proposed Order Proposed Order, # 2 Memorandum Memorandum of Law, # 3 Declaration Arreola Declaration, # 4 Declaration Kwon Declaration, # 5 Exhibit ACLU Letter to ICE, # 6 Exhibit USCIS Email to ACLU, # 7 Exhibit NTA, # 8 Exhibit 2012 DACA App, # 9 Exhibit DACA Approval Notice, # 10 Exhibit Bond Hearing Transcript, # 11 Exhibit I-213, # 12 Exhibit Notice of Action, # 13 Exhibit Napolitano Memo, # 14 Exhibit Obama Remarks, # 15 Exhibit Politico Article, # 16 Exhibit Kelly Memo, # 17 Exhibit Q&A DHS Implementation, # 18 Exhibit Recission Memo, # 19 Exhibit Sanders Briefing, # 20 Exhibit Dougherty Testimony, # 21 Exhibit TIME article, # 22 Exhibit AP Interview, # 23 Exhibit DACA FAQ, # 24 Exhibit SOP Excerpts, # 25 Exhibit NTA Memo, # 26 Exhibit 2014 DACA Renewal App, # 27 Exhibit 2016 DACA Renewal App, # 28 Exhibit 2016 DACA Approval Notice, # 29 Exhibit ACLU Letter to USCIS) (Newell, Jennifer) (Entered: 10/18/2017)
17 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening), 1 filed by plaintiff Jesus Alonso Arreola Robles, Inland Empire - Immigrant Youth Collective. (Newell, Jennifer) (Entered: 10/18/2017)
18 NOTICE OF DEFICIENCIES in Request to Issue Summons RE: Summons Request 17 . The following error(s) was found: Summons is not directed to the defendant(s). The defendant"s name must appear in the "To:"section of the summons. The summons cannot be issued until this defect has been corrected. Please correct the defect and re-file your request. (jp) (Entered: 10/19/2017)
19 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening), 1 filed by plaintiff Jesus Alonso Arreola Robles, Inland Empire - Immigrant Youth Collective. (Newell, Jennifer) (Entered: 10/19/2017)

10/20/2017 10/30/2017
10/30/2017 10/30/2017 11/01/2017 11/06/2017 11/14/2017

20 60 DAY Summons Issued re Complaint (Attorney Civil Case Opening) 1 as to defendants Susan M. Curda, Elaine C. Duke, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan. (jp) (Entered: 10/20/2017)
21 NOTICE of Appearance filed by attorney Jeffrey S Robins on behalf of Defendants Susan M. Curda, Elaine C. Duke, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan (Attorney Jeffrey S Robins added to party Susan M. Curda(pty:dft), Attorney Jeffrey S Robins added to party Elaine C. Duke(pty:dft), Attorney Jeffrey S Robins added to party Mark J Hazuda(pty:dft), Attorney Jeffrey S Robins added to party Thomas D. Homan(pty:dft), Attorney Jeffrey S Robins added to party David Marin(pty:dft), Attorney Jeffrey S Robins added to party James McCament(pty:dft), Attorney Jeffrey S Robins added to party Kevin K. Mcaleenan(pty:dft))(Robins, Jeffrey) (Entered: 10/30/2017)
22 Joint STIPULATION to Exceed Page Limitation as to Response and Reply re PI Memorandum filed by Defendants Susan M. Curda, Elaine C. Duke, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan. (Attachments: # 1 Affidavit, # 2 Proposed Order)(Robins, Jeffrey) (Entered: 10/30/2017)
23 OPPOSITION to First NOTICE OF MOTION AND MOTION for Preliminary Injunction re Termination of Mr. Arreola's DACA . Motion 16 filed by Defendants Susan M. Curda, Elaine C. Duke, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan. (Attachments: # 1 Declaration of James Walker, # 2 Exhibit Exhibits A-H)(Robins, Jeffrey) (Entered: 10/30/2017)
24 ORDER GRANTING Joint Stipulation to Exceed Page Limits at L.R. 11-6 22 by Judge Michael W. Fitzgerald that the parties Joint Stipulation extending the page limits for Defendants opposition to Plaintiffs motion for preliminary injunction [Dkt. # 16] and Plaintiffs reply in support by seven pages each is GRANTED. (jp) (Entered: 11/01/2017)
25 REPLY In Support of First NOTICE OF MOTION AND MOTION for Preliminary Injunction re Termination of Mr. Arreola's DACA . Motion 16 filed by Plaintiff Jesus Alonso Arreola Robles. (Attachments: # 1 Declaration Declaration of Katrina Eiland)(Eiland, Katrina) (Entered: 11/06/2017)
26 ORDER TO REASSIGN CASE due to self-recusal pursuant to General Order 16-05 by Judge Michael W. Fitzgerald. Case transferred from Judge Michael W. Fitzgerald to the calendar of Judge Philip S.

11/15/2017 11/15/2017 11/16/2017 11/20/2017 11/20/2017
12/21/2017

Gutierrez for all further proceedings. Case number now reads as 5:17cv-02048 PSG(SHKx). (rn) (Entered: 11/14/2017)
27 STANDING ORDER REGARDING NEWLY ASSIGNED CASES by Judge Philip S. Gutierrez. (ji) (Entered: 11/15/2017)
28 TEXT ONLY ENTRY (In Chambers) by Judge Philip S. Gutierrez: Please be advised Plantiff's Motion for a Preliminary Injunction 16 is reset for November 20, 2017 at 1:30pm. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (wm) TEXT ONLY ENTRY (Entered: 11/15/2017)
29 NOTICE of Decision: Notice of Supplemental Authority Relevant to Jurisdiction filed by plaintiff Jesus Alonso Arreola Robles. (Attachments: # 1 Exhibit Supplemental Authority)(Eiland, Katrina) (Entered: 11/16/2017)
30 MINUTES OF PLAINTIFF JESUS ALONSO ARREOLA ROBLES' MOTION FOR A PRELIMINARY INJUNCTION FILED 10-18-17 (DOC. 16) taking under submission 16 MOTION for Preliminary Injunction Hearing held before Judge Philip S. Gutierrez: The Court, having read and considered the Motion, and having heard from counsel today, takes the Motion under submission. Court Reporter: Marea Woolrich. (bm) (Entered: 11/20/2017)
31 MINUTES (IN CHAMBERS) Order GRANTING Plaintiff's motion for a preliminary injunction by Judge Philip S. Gutierrez granting 16 MOTION for Preliminary Injunction: Plaintiff has demonstrated a likelihood of success on the merits of his APA claim and the existence of irreparable harm, and neither a balancing of hardships nor the public interest favors Defendants. Therefore, the Court GRANTS Plaintiff Jesus Alonso Arreola Robles's motion for a preliminary injunction. It is hereby ORDERED that USCIS's decision to terminate Plaintiff's status under the Deferred Action for Childhood Arrivals program, memorialized in the March 6, 2017 Notice of Action, is preliminarily enjoined. This preliminary injunction also applies to enjoin termination of Plaintiff's employment authorization, which was included as a portion of the March 6, 2017 Notice of Action. (bm) (Entered: 11/20/2017)
32 First AMENDED COMPLAINT All Plaintiffs amending Complaint (Attorney Civil Case Opening), 1 , filed by plaintiffs Jesus Alonso Arreola Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira, Jose Eduardo Gil Robles(Attorney Jennifer C Newell added to party Ronan Carlos de Souza Moreira(pty:pla), Attorney Jennifer C Newell added to party Jose Eduardo Gil Robles(pty:pla))(Newell, Jennifer) (Entered: 12/21/2017)

12/21/2017 12/21/2017

33 STRICKEN PURSUANT TO COURT ORDER DATED 12/28/17, DOCUMENT 37 . First NOTICE OF MOTION AND MOTION to Certify Class filed by plaintiffs Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira. Motion set for hearing on 2/5/2018 at 01:30 PM before Judge Philip S. Gutierrez. (Attachments: # 1 Memorandum Memorandum of Law in Support of Motion for Class Certification, # 2 Proposed Order Proposed Order, # 3 Declaration Newell Declaration, # 4 Declaration Moreira Declaration, # 5 Exhibit Moreira Exhibit A, # 6 Exhibit Moreira Exhibit B, # 7 Exhibit Moreira Exhibit C, # 8 Declaration Gil Declaration, # 9 Exhibit Gil Exhibit A, # 10 Exhibit Gil Exhibit B, # 11 Exhibit Gil Exhibit C, # 12 Exhibit Gil Exhibit D, # 13 Declaration Eiland Declaration, # 14 Exhibit Eiland Exhibit 1, # 15 Exhibit Eiland Exhibit 2, # 16 Exhibit Eiland Exhibit 3, # 17 Exhibit Eiland Exhibit 4, # 18 Exhibit Eiland Exhibit 5, # 19 Exhibit Eiland Exhibit 6, # 20 Exhibit Eiland Exhibit 7, # 21 Exhibit Eiland Exhibit 8, # 22 Exhibit Eiland Exhibit 9, # 23 Exhibit Eiland Exhibit 10, # 24 Exhibit Eiland Exhibit 11, # 25 Exhibit Eiland Exhibit 12, # 26 Exhibit Eiland Exhibit 13, # 27 Exhibit Eiland Exhibit 14, # 28 Exhibit Eiland Exhibit 15, # 29 Exhibit Eiland Exhibit 16, # 30 Exhibit Eiland Exhibit 17, # 31 Exhibit Eiland Exhibit 18, # 32 Exhibit Eiland Exhibit 19, # 33 Exhibit Eiland Exhibit 20, # 34 Exhibit Eiland Exhibit 21, # 35 Exhibit Eiland Exhibit 22, # 36 Exhibit Eiland Exhibit 23, # 37 Exhibit Eiland Exhibit 24, # 38 Exhibit Eiland Exhibit 25, # 39 Exhibit Eiland Exhibit 26, # 40 Exhibit Eiland Exhibit 27, # 41 Exhibit Eiland Exhibit 28, # 42 Exhibit Eiland Exhibit 29, # 43 Exhibit Eiland Exhibit 30, # 44 Exhibit Eiland Exhibit 31, # 45 Exhibit Eiland Exhibit 32, # 46 Exhibit Eiland Exhibit 33, # 47 Exhibit Eiland Exhibit 34) (Attorney Katrina L Eiland added to party Jose Eduardo Gil Robles(pty:pla), Attorney Katrina L Eiland added to party Ronan Carlos de Souza Moreira(pty:pla)) (Eiland, Katrina) Modified on 12/28/2017 (bm). (Entered: 12/21/2017)
34 STRICKEN PURSUANT TO COURT ORDER DATED 12/28/17, DOCUMENT 37 . NOTICE OF MOTION AND MOTION for Preliminary Injunction for Classwide Relief. Motion filed by plaintiffs Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire Immigrant Youth Collective, Ronan Carlos de Souza Moreira. Motion set for hearing on 2/5/2018 at 01:30 PM before Judge Philip S. Gutierrez. (Attachments: # 1 Memorandum Memorandum of Law in Support of Motion for Preliminary Injunction, # 2 Declaration Hainmueller Lawrence Declaration, # 3 Exhibit Exhibit A, # 4 Exhibit Exhibit B, # 5 Exhibit Exhibit C, # 6 Proposed Order Proposed Order) (Newell, Jennifer) Modified on 12/28/2017 (bm). (Entered: 12/21/2017)

12/21/2017 12/22/2017
12/28/2017 12/28/2017 12/29/2017

35 STIPULATION for Hearing re NOTICE OF MOTION AND MOTION for Preliminary Injunction for Classwide Relief. Motion 34 , First NOTICE OF MOTION AND MOTION to Certify Class 33 filed by plaintiffs Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira. (Attachments: # 1 Proposed Order Proposed Order)(Eiland, Katrina) (Entered: 12/21/2017)
36 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Motion to Certify Class 33 , Motion for Preliminary Injunction 34 . The following error(s) was/were found: Hearing information is missing, incorrect, or not timely. Other error(s) with document(s): Motion is noticed for a date that is closed on the court's calendar. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (bm) (Entered: 12/22/2017)
37 ORDER by Judge Philip S. Gutierrez: the following document(s) be STRICKEN for failure to comply with the Local Rules, General Order and/or the Courts Case Management Order: Plaintiff's Motion for Class Cert 33 , Motion for Classwide Preliminary Injunction 34 , for the following reasons: Hearing information is missing, incorrect, or not timely. Other: The hearing date selected is closed for NEW motions. See Calendars>Motion Calendar>Select range: TODAY - DEC 2018 and enter Judge's name (bm) (Entered: 12/28/2017)
38 ORDER re JOINT STIPULATION by Judge Philip S. Gutierrez, re Stipulation 35 : DENIED. (bm) (Entered: 12/28/2017)
39 NOTICE OF MOTION AND MOTION to Certify Class filed by plaintiff Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira. Motion set for hearing on 2/26/2018 at 01:30 PM before Judge Philip S. Gutierrez. (Attachments: # 1 Memorandum Memorandum of Law in Support of Class Certification, # 2 Proposed Order Proposed Order, # 3 Declaration Newell Declaration, # 4 Declaration Gil Declaration, # 5 Exhibit Gil Exhibit A, # 6 Exhibit Gil Exhibit B, # 7 Exhibit Gil Exhibit C, # 8 Exhibit Gil Exhibit D, # 9 Declaration Moreira Declaration, # 10 Exhibit Moreira Exhibit A, # 11 Exhibit Moreira Exhibit B, # 12 Exhibit Moreira Exhibit C, # 13 Declaration Eiland Declaration, # 14 Exhibit Eiland Exhibit 1, # 15 Exhibit Eiland Exhibit 2, # 16 Exhibit Eiland Exhibit 3, # 17 Exhibit Eiland Exhibit 4, # 18 Exhibit Eiland Exhibit 5, # 19 Exhibit Eiland Exhibit 6, # 20 Exhibit Eiland Exhibit 7, # 21 Exhibit Eiland Exhibit 8,

12/29/2017 12/29/2017 01/03/2018 01/03/2018

# 22 Exhibit Eiland Exhibit 9, # 23 Exhibit Eiland Exhibit 10, # 24 Exhibit Eiland Exhibit 11, # 25 Exhibit Eiland Exhibit 12, # 26 Exhibit Eiland Exhibit 13, # 27 Exhibit Eiland Exhibit 14, # 28 Exhibit Eiland Exhibit 15, # 29 Exhibit Eiland Exhibit 16, # 30 Exhibit Eiland Exhibit 17, # 31 Exhibit Eiland Exhibit 18, # 32 Exhibit Eiland Exhibit 19, # 33 Exhibit Eiland Exhibit 20, # 34 Exhibit Eiland Exhibit 21, # 35 Exhibit Eiland Exhibit 22, # 36 Exhibit Eiland Exhibit 23, # 37 Exhibit Eiland Exhibit 24, # 38 Exhibit Eiland Exhibit 25, # 39 Exhibit Eiland Exhibit 26, # 40 Exhibit Eiland Exhibit 27, # 41 Exhibit Eiland Exhibit 28, # 42 Exhibit Eiland Exhibit 29, # 43 Exhibit Eiland Exhibit 30, # 44 Exhibit Eiland Exhibit 31, # 45 Exhibit Eiland Exhibit 32, # 46 Exhibit Eiland Exhibit 33, # 47 Exhibit Eiland Exhibit 34) (Eiland, Katrina) (Entered: 12/29/2017)
40 NOTICE OF MOTION AND MOTION for Preliminary Injunction for Classwide Relief. Motion filed by plaintiff Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira. Motion set for hearing on 2/26/2018 at 01:30 PM before Judge Philip S. Gutierrez. (Attachments: # 1 Memorandum Memorandum of Law in Support of Motion for Preliminary Injunction, # 2 Proposed Order, # 3 Declaration Hainmueller Lawrence Declaration, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C) (Newell, Jennifer) (Entered: 12/29/2017)
41 STIPULATION for Hearing re NOTICE OF MOTION AND MOTION to Certify Class 39 , NOTICE OF MOTION AND MOTION for Preliminary Injunction for Classwide Relief. Motion 40 filed by plaintiff Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira. (Attachments: # 1 Proposed Order)(Eiland, Katrina) (Entered: 12/29/2017)
42 PROOF OF SERVICE Executed by Plaintiff Ronan Carlos de Souza Moreira, Jesus Alonso Arreola Robles, Inland Empire - Immigrant Youth Collective, Jose Eduardo Gil Robles, upon Plaintiff David Marin served on 12/15/2017, answer due 2/13/2018. Service of the Summons and Complaint were Executed upon the officer agency or corporation by delivering a copy to Office of U.S. Immigration and Customs Enforcement. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Newell, Jennifer) (Entered: 01/03/2018)
43 PROOF OF SERVICE Executed by Plaintiff Ronan Carlos de Souza Moreira, Jesus Alonso Arreola Robles, Inland Empire - Immigrant

01/03/2018 01/03/2018 01/03/2018 01/03/2018

Youth Collective, Jose Eduardo Gil Robles, upon Defendant Elaine C. Duke served on 12/15/2017, answer due 2/13/2018. Service of the Summons and Complaint were Executed upon the officer agency or corporation by delivering a copy to Department of Homeland Security Office of General Counsel. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Newell, Jennifer) (Entered: 01/03/2018)
44 PROOF OF SERVICE Executed by Plaintiff Ronan Carlos de Souza Moreira, Jesus Alonso Arreola Robles, Inland Empire - Immigrant Youth Collective, Jose Eduardo Gil Robles, upon Defendant James McCament served on 12/15/2017, answer due 2/13/2018. Service of the Summons and Complaint were Executed upon the officer agency or corporation by delivering a copy to Department of Homeland Security Office of the General Counsel. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Newell, Jennifer) (Entered: 01/03/2018)
45 PROOF OF SERVICE Executed by Plaintiff Ronan Carlos de Souza Moreira, Jesus Alonso Arreola Robles, Inland Empire - Immigrant Youth Collective, Jose Eduardo Gil Robles, upon Defendant Kevin K. Mcaleenan served on 12/15/2017, answer due 2/13/2018. Service of the Summons and Complaint were Executed upon the officer agency or corporation by delivering a copy to U.S. Customs and Border Protection Office of the General Counsel. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Newell, Jennifer) (Entered: 01/03/2018)
46 PROOF OF SERVICE Executed by Plaintiff Ronan Carlos de Souza Moreira, Jesus Alonso Arreola Robles, Inland Empire - Immigrant Youth Collective, Jose Eduardo Gil Robles, upon Defendant Mark J Hazuda served on 12/15/2017, answer due 2/13/2018. Service of the Summons and Complaint were Executed upon the officer agency or corporation by delivering a copy to Department of Homeland Security Office of the General Counsel. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Newell, Jennifer) (Entered: 01/03/2018)
47 PROOF OF SERVICE Executed by Plaintiff Ronan Carlos de Souza Moreira, Jesus Alonso Arreola Robles, Inland Empire - Immigrant Youth Collective, Jose Eduardo Gil Robles, upon Defendant Susan M.

01/03/2018 01/05/2018
01/08/2018 01/12/2018

Curda served on 12/15/2017, answer due 2/13/2018. Service of the Summons and Complaint were Executed upon the officer agency or corporation by delivering a copy to Department of Homeland Security Office of the General Counsel. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Newell, Jennifer) (Entered: 01/03/2018)
48 PROOF OF SERVICE Executed by Plaintiff Ronan Carlos de Souza Moreira, Jesus Alonso Arreola Robles, Inland Empire - Immigrant Youth Collective, Jose Eduardo Gil Robles, upon Defendant Thomas D. Homan served on 12/15/2017, answer due 2/13/2018. Service of the Summons and Complaint were Executed upon the officer agency or corporation by delivering a copy to Office of U.S. Immigration and Customs Enforcement. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Newell, Jennifer) (Entered: 01/03/2018)
49 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Service of Summons and Complaint Returned Executed as to USA,, 43 , Service of Summons and Complaint Returned Executed as to USA,, 44 , Service of Summons and Complaint Returned Executed as to USA,, 48 , Service of Summons and Complaint Returned Executed as to USA,, 46 , Service of Summons and Complaint Returned Executed as to USA,, 42 , Service of Summons and Complaint Returned Executed as to USA,, 47 , Service of Summons and Complaint Returned Executed as to USA,, 45 . The following error(s) was/were found: Judge's initials incorrect. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (ab) (Entered: 01/05/2018)
50 ORDER ADVANCING HEARING DATE FOR PLAINTIFFS' MOTIONS FOR CLASS CERTIFICATION AND CLASSWIDE PRELIMINARY INJUNCTION; AND SETTING BRIEIFING SCHEDULE AND ANSWER DEADLINE 41 by Judge Philip S. Gutierrez. DENIED BY ORDER OF THE COURT. (ab) (Entered: 01/09/2018)
51 Joint STIPULATION Extending Time to Answer the complaint as to Susan M. Curda answer now due 2/5/2018; Thomas D. Homan answer now due 2/5/2018; Kevin K. Mcaleenan answer now due 2/5/2018; David Marin answer now due 2/5/2018; James McCament answer now

01/16/2018 02/01/2018 02/01/2018 02/05/2018 02/06/2018 02/12/2018

due 2/5/2018; Kirstjen Nielsen answer now due 2/5/2018; Mark J Hazuda answer now due 2/5/2018, re Amended Complaint/Petition, 32 filed by Defendants Susan M. Curda; Thomas D. Homan; Kevin K. Mcaleenan; David Marin; James McCament; Kirstjen Nielsen; Mark J Hazuda. (Attachments: # 1 Proposed Order)(Attorney Jeffrey S Robins added to party Kirstjen Nielsen(pty:dft))(Robins, Jeffrey) (Entered: 01/12/2018)
52 ORDER RE:] JOINT STIPULATION TO EXTEND TIME TO RESPOND TO AMENDED COMPLAINT granting Stipulation Extending Time to Answer 51 , by Judge Philip S. Gutierrez: It is hereby ordered that the JOINT STIPULATION TO EXTEND TIME TO RESPOND TO AMENDED COMPLAINT is granted. Defendants' answer or other response to Plaintiffs' Complaint is due on or before February 5, 2018. (bm) (Entered: 01/17/2018)
53 OPPOSITION to NOTICE OF MOTION AND MOTION to Certify Class 39 filed by Defendants Susan M. Curda, Elaine C. Duke, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. (Attachments: # 1 Exhibit)(Attorney James Joseph Walker added to party Kirstjen Nielsen(pty:dft))(Walker, James) (Entered: 02/01/2018)
54 OPPOSITION to NOTICE OF MOTION AND MOTION for Preliminary Injunction for Classwide Relief. Motion 40 filed by Defendants Susan M. Curda, Elaine C. Duke, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. (Walker, James) (Entered: 02/01/2018)
55 NOTICE OF MOTION AND MOTION to Dismiss Amended Complaint filed by Defendant Susan M. Curda, Elaine C. Duke, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. Motion set for hearing on 3/26/2018 at 01:30 PM before Judge Philip S. Gutierrez. (Walker, James) (Entered: 02/05/2018)
56 NOTICE OF LODGING filed Proposed Order re NOTICE OF MOTION AND MOTION to Dismiss Amended Complaint 55 (Attachments: # 1 Proposed Order)(Walker, James) (Entered: 02/06/2018)
57 REPLY in support of NOTICE OF MOTION AND MOTION to Certify Class 39 filed by Plaintiffs Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira. (Attachments: # 1 Declaration of Katrina Eiland, # 2 Exhibit Eiland Exhibit 1, # 3 Declaration of David Hausman, # 4 Exhibit Hausman Exhibit A, # 5 Declaration of Maria

02/12/2018 02/14/2018 02/23/2018 02/26/2018 02/26/2018
02/28/2018

Teresa Trafton, # 6 Exhibit Trafton Exhibit A, # 7 Exhibit Trafton Exhibit B, # 8 Exhibit Trafton Exhibit C)(Eiland, Katrina) (Entered: 02/12/2018)
58 REPLY in support of NOTICE OF MOTION AND MOTION for Preliminary Injunction for Classwide Relief. Motion 40 filed by Plaintiffs Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira. (Newell, Jennifer) (Entered: 02/12/2018)
59 Amended NOTICE OF MOTION AND MOTION to Dismiss Amended Complaint filed by Defendant Susan M. Curda, Elaine C. Duke, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. Motion set for hearing on 4/16/2018 at 01:30 PM before Judge Philip S. Gutierrez. (Attachments: # 1 Proposed Order) (Walker, James) (Entered: 02/14/2018)
60 SUPPLEMENT in Opposition to Motion for Classwide Preliminary Injunction filed by Defendants Susan M. Curda, Elaine C. Duke, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. (Attachments: # 1 Supplement Supporting Authority)(Walker, James) (Entered: 02/23/2018)
61 MINUTES (In Chambers): Order GRANTING Plaintiffs Mtion for class certification 39 andGRANTING Plaintiffs Motion for a classwide preliminary injunction 40 by Judge Philip S. Gutierrez. (SEE ATTACHMENT OF THIS ORDER FOR FURTHER DETAILS). (jp) (Entered: 02/26/2018)
62 MINUTE ORDER (IN CHAMBERS) by Judge Philip S. Gutierrez: PLAINTIFFS' MOTION FOR CLASS CERTIFICATION FILED 1229-17 (DOC. 39) PLAINTIFFS' MOTION FOR A CLASS-WIDE PRELIMINARY INJUNCTION FILED 12/29/17 (DOC. 40). Having considered all papers submitted in support of and in opposition to the Motions referenced above, and the oral argument presented today, the Court takes the motions under submission. A ruling will be issued after full consideration of the submitted pleadings. (yl) (Entered: 02/27/2018)
63 TEXT ONLY ENTRY (In Chambers) by Judge Philip S. Gutierrez: Defendants' Motion to Dismiss, filed on February 5, 2018 55 and Defendants' AMENDED Motion to Dismiss, filed on February 14, 2018 59 appear to be the same motion. Accordingly, Motion 55 is rendered moot, and the March 26 hearing date is vacated. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (wm) TEXT ONLY ENTRY (Entered: 02/28/2018)

03/02/2018 03/12/2018
03/14/2018
03/15/2018 03/15/2018 03/16/2018 03/20/2018 03/20/2018 03/21/2018

64 TRANSCRIPT ORDER as to plaintiff Inland Empire - Immigrant Youth Collective for Court Reporter. Court will contact Lisette Diaz at ldiaz@aclu.org with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter. (at) (Entered: 03/02/2018)
65 Joint STIPULATION to Continue Compliance with Preliminary Injunction from March 12, 2018 to March 15, 2018 Re: Order on Motion to Certify Class Action, Order on Motion for Preliminary Injunction 61 filed by Defendants Susan M. Curda, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. (Attachments: # 1 Declaration, # 2 Proposed Order)(Robins, Jeffrey) (Entered: 03/12/2018)
66 ORDER GRANTING JOINT STIPULATION TO EXTEND T[ME FOR COMPLIANCE WITH PRELIMINARY INJUNCTION by Judge Philip S. Gutierrez: the Court hereby ORDERS that the parties' Joint Stipulation to extend time for compliance with the Preliminary Injunction by three days to 3/15/2018 65 is GRANTED. (gk) (Entered: 03/14/2018)
67 Joint STIPULATION for Protective Order filed by Defendants Susan M. Curda, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. (Attachments: # 1 Proposed Order)(Robins, Jeffrey) (Entered: 03/15/2018)
68 Joint STIPULATION for Order Clarification and Modification of Court's February 26, 2018 Order filed by Defendants Susan M. Curda, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. (Attachments: # 1 Proposed Order)(Robins, Jeffrey) (Entered: 03/15/2018)
69 NOTICE of Errata filed by Defendants Susan M. Curda, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. (Attachments: # 1 Proposed Order)(Robins, Jeffrey) (Entered: 03/16/2018)
70 PROTECTIVE ORDER by Magistrate Judge Shashi H. Kewalramani, re Stipulation for Protective Order 67 (SEE ORDER FOR FURTHER DETAILS) (dc) (Entered: 03/20/2018)
71 MODIFIED CLASS DEFINITION AND IMPLEMENTATION PROCEDURES - CORRECTED by Judge Philip S. Gutierrez, re Stipulation 68 (bm) (Entered: 03/21/2018)
72 NOTICE OF LODGING filed re Order 71 (Attachments: # 1 Exhibit)(Robins, Jeffrey) (Entered: 03/21/2018)

03/26/2018 03/27/2018 04/02/2018 04/16/2018
04/16/2018 04/16/2018
04/19/2018

73 Opposition re: Amended NOTICE OF MOTION AND MOTION to Dismiss Amended Complaint 59 filed by Plaintiffs Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira. (Attorney David Hausman added to party Jose Eduardo Gil Robles(pty:pla), Attorney David Hausman added to party Ronan Carlos de Souza Moreira(pty:pla))(Hausman, David) (Entered: 03/26/2018)
74 MODIFIED CLASS DEFINITION AND IMPLEMENTATION PROCEDURES WITH DATES CERTAIN ADDED by Judge Philip S. Gutierrez, pursuant to Notice of Lodging 72 . *See Order for details.* (cw) (Entered: 03/27/2018)
75 REPLY in support of a motion Amended NOTICE OF MOTION AND MOTION to Dismiss Amended Complaint 59 filed by Defendants Susan M. Curda, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. (Robins, Jeffrey) (Entered: 04/02/2018)
76 TRANSCRIPT for proceedings held on 2/26/2018 at 2:01 p.m. Court Reporter: Marea Woolrich, phone number mareawoolrich@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 5/7/2018. Redacted Transcript Deadline set for 5/17/2018. Release of Transcript Restriction set for 7/16/2018. (mwo) (Entered: 04/16/2018)
77 NOTICE OF FILING TRANSCRIPT filed for proceedings 2/26/2018 at 2:01 p.m. re Transcript 76 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (mwo) TEXT ONLY ENTRY (Entered: 04/16/2018)
78 MINUTES OF DEFENDANT'S AMENDED MOTION TO DISMISS AMENDED COMPLAINT FILED 02-14-18 (DOC. 59 )held before Judge Philip S. Gutierrez: Having considered all papers submitted in support of and in opposition to the Motion referenced above, and the oral argument presented today, the Court takes the motion Under Submission. A ruling will be issued after full consideration of the submitted pleadings. Court Reporter: Marea Woolrich. (ab) (Entered: 04/16/2018)
79 MINUTES (IN CHAMBERS) Order DENYING Defendants' motion to dismiss by Judge Philip S. Gutierrez: Defendants argue that, because there is no substantive right to remain in the United States or receive deferred action, Plaintiffs' due process claim must necessarily fail.

04/26/2018 04/27/2018 05/03/2018 05/21/2018 05/22/2018

However, because Plaintiffs have sufficiently demonstrated that the grant of DACA constitutes a conferred benefitthat requires procedural safeguards before it can be terminated, the Court concludes that the due process claim should not be dismissed on this basis. (See minutes for further details). For the foregoing reasons, the Court DENIES Defendants motion to dismiss. IT IS SO ORDERED. (yl) (Entered: 04/19/2018)
80 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Defendants Susan M. Curda, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. Appeal of Order on Motion to Certify Class Action, Order on Motion for Preliminary Injunction 61 , Order 71 . (Appeal Fee - Not Required for US Goverment.) (Robins, Jeffrey) Modified on 1/29/2021 (mat). (Entered: 04/26/2018)
81 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 18-55564 assigned to Notice of Appeal to 9th Circuit Court of Appeals, 80 as to Defendants Susan M. Curda, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. (bm) (Entered: 04/30/2018)
82 Joint STIPULATION for Extension of Time to File Answer to 5/21/2018 re Amended Complaint/Petition, 32 filed by Defendant Susan M. Curda, Elaine C. Duke, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. (Attachments: # 1 Proposed Order)(Walker, James) (Entered: 05/03/2018)
83 ANSWER to Amended Complaint/Petition, 32 filed by Defendant Susan M. Curda, Elaine C. Duke, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen.(Walker, James) (Entered: 05/21/2018)
84 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Answer to Complaint (Attorney Civil Case Opening) 83 . The following error(s) was/were found: Local Rule 7.1-1 No Notice of Interested Parties and/or no copies. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (ab) (Entered: 05/22/2018)

05/22/2018 08/31/2018 09/04/2018 09/04/2018 09/05/2018
09/25/2018 10/03/2018

85 ORDER SETTING SCHEDULING CONFERENCE by Judge Philip S. Gutierrez. Scheduling Conference set for 9/10/2018 at 02:00 PM. (wm) (Entered: 05/22/2018)
86 STIPULATION to Continue Scheduling Conference from 9/10/2018 to 10/1/2018 Re: Initial Order Setting R26 Scheduling Conference - form only 85 , STIPULATION for Extension of Time to File Rule 26(f) Report filed by Defendants Susan M. Curda, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. (Attachments: # 1 Declaration, # 2 Proposed Order)(Robins, Jeffrey) (Entered: 08/31/2018)
87 NOTICE Joint Report Pursuant to Federal Rule of Civil Procedure 26(f) and Local Rule 26-1 filed by plaintiff Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira. (Eiland, Katrina) (Entered: 09/04/2018)
88 ORDER GRANTING JOINT STIPULATION TO CONTINUE SCHEDULING CONFERENCE AND DEADLINE FOR JOINT STATEMENT by Judge Philip S. Gutierrez, re Stipulation 86 : It is hereby ORDERED that the parties' Joint Stipulation to continue the scheduling conference to October 1, 2018, and extending the deadline for the parties' joint statement to on or before September 24, 2018, is GRANTED. (bm) (Entered: 09/04/2018)
89 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Joint Report Pursuant To Federal Rule Of Civil Procedure 26(f) 87 . The following error(s) was/were found: Incorrect event selected. Correct event to be used is: Pretrial and Trial Documents-Joint Report Rule 26(f) Discovery Plan. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (bm) (Entered: 09/05/2018)
90 MINUTE ORDER (In Chambers) Order Vacating the Scheduling Conference by Judge Philip S. Gutierrez: The Court has reviewed the Joint Report (doc. no. 87). The Court approves the parties' proposed schedule and VACATES the scheduling conference. The parties are ordered to submit a scheduling order consistent with the joint report by October 10, 2018. (bm) (Entered: 09/25/2018)
91 Joint STIPULATION for Order re Schedule filed by plaintiff Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire Immigrant Youth Collective, Ronan Carlos de Souza Moreira.

10/10/2018
11/15/2018 12/03/2018 12/07/2018 12/21/2018

(Attachments: # 1 Proposed Order)(Eiland, Katrina) (Entered: 10/03/2018)
92 SCHEDULING ORDER by Judge Philip S. Gutierrez, re Stipulation 91 : If on December 7, 2018, there are no remaining administrative record disputes, the parties shall comply with the following schedule for cross motions for summary judgment: January 11, 2019: deadline for Plaintiffs to file their Motion for Summary Judgment. February 1, 2019: deadline for Defendants to file an Opposition to Plaintiffs' Motion for Summary Judgment and/or a Cross Motion for Summary Judgment. February 22, 2019: deadline for Plaintiffs to file an Opposition/Reply. March 8, 209: deadline for Defendants to file any Reply. Should it be necessary for the Court to resolve any disputes regarding the administrative record, the Court will direct the parties to file a joint status report with a proposed schedule for filing dispositive motions once any record disputes are resolved. The parties shall disclose any expert witnesses in accordance with Fed. R. Civ. P. 26(a)(2) on or before December 1, 2018. The Court will schedule a trial, if necessary, once the parties' dispositive motions are resolved. Hearing on dispositive motions April 15, 2019 at 1:30 pm (see document for further details) (bm) (Entered: 10/12/2018)
93 NOTICE Service of Administrative Record to Plaintiffs filed by Defendants Susan M. Curda, Elaine C. Duke, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. (Walker, James) (Entered: 11/15/2018)
94 Joint STIPULATION to Reschedule Administrative Record and Dispositive Motion Schedule filed by Plaintiffs Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira. (Attachments: # 1 Proposed Order)(Eiland, Katrina) (Entered: 12/03/2018)
95 SCHEDULING ORDER by Judge Philip S. Gutierrez, re Stipulation to Reschedule, 94 : The Court, having found that the parties have agreed to modify the pre-trial litigation schedule, and that good cause exists for holding the current schedule in abeyance for fourteen days, HEREBY ORDERS that: The schedule set out in this Courts order, ECF No. 92, shall be held in abeyance until December 21, 2018, and on that same day, the parties shall file a stipulation setting a briefing schedule on a motion with respect to the administrative record and/or a dispositive motion. (bm) (Entered: 12/07/2018)
96 Joint STIPULATION to Reschedule and Set Briefing Schedule on Motions as to Admin. Record filed by Plaintiff Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth

Collective, Ronan Carlos de Souza Moreira. (Attachments: # 1 Proposed Order)(Newell, Jennifer) (Entered: 12/21/2018)

01/02/2019

97 SCHEDULING ORDER by Judge Philip S. Gutierrez, re Stipulation to Reschedule, 96 : The Court, having found that the parties have agreed to modify the pre-trial litigation schedule, and that good cause exists for modification, HEREBY ORDERS that: The schedule set out in this Court's order, ECF No. 92, is vacated. Defendants shall certify the administrative record on or before January 11, 2019. Any motion by Plaintiffs concerning the proper contents of the administrative record shall be filed on or before February 8, 2019. Any response by Defendants to such a motion is due on or before February 22, 2019. Any reply by Plaintiffs on such a motion is due on or before March 1, 2019. If Plaintiffs elect not to file any such motion, the parties shall file a stipulation on or before February 8, 2019, setting a schedule for dispositive motions and any motions for the Court to consider evidence outside the administrative record together with the parties' crossmotions for summary judgment. (bm) (Entered: 01/03/2019)

01/11/2019

98 NOTICE OF MOTION AND MOTION to Stay pending funding from Congress Order,,,,, Terminate Deadlines and Hearings,,,,, Set/Reset Deadlines/Hearings,,,,, Set/Reset Motion Hearing and R&R Deadlines,,,, 97 filed by defendants Susan M. Curda, Elaine C. Duke, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. (Attachments: # 1 Proposed Order) (Walker, James) (Entered: 01/11/2019)

01/14/2019 99 ORDER DENIED RE STAYING SCHEDULING ORDER 98 by Judge Philip S. Gutierrez. (lom) (Entered: 01/14/2019)

02/08/2019

100 NOTICE Service of Supplemental Administrative Records filed by defendants Susan M. Curda, Elaine C. Duke, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. (Attachments: # 1 Exhibit Administrative Record declarations)(Walker, James) (Entered: 02/08/2019)

02/08/2019

101 NOTICE OF MOTION AND MOTION for Order for Completion of the Administrative Record or Compel Production of a Privilege Log filed by Plaintiffs Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira. (Attachments: # 1 Memorandum of Law, # 2 Declaration of Katrina Eiland, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Proposed Order) (Attorney Julie Veroff added to party Jesus Alonso Arreola Robles(pty:pla), Attorney Julie Veroff added to party Jose Eduardo Gil Robles(pty:pla), Attorney Julie Veroff added to party Inland Empire - Immigrant Youth

Collective(pty:pla), Attorney Julie Veroff added to party Ronan Carlos de Souza Moreira(pty:pla)) (Veroff, Julie) (Entered: 02/08/2019)

02/22/2019

102 OPPOSITION to NOTICE OF MOTION AND MOTION for Order for Completion of the Administrative Record or Compel Production of a Privilege Log 101 filed by Defendants Susan M. Curda, Elaine C. Duke, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. (Walker, James) (Entered: 02/22/2019)

03/01/2019

103 REPLY in support of NOTICE OF MOTION AND MOTION for Order for Completion of the Administrative Record or Compel Production of a Privilege Log 101 filed by Plaintiffs Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira. (Veroff, Julie) (Entered: 03/01/2019)

04/08/2019

104 MINUTES (IN CHAMBERS) Order GRANTING Plaintiff's motion to complete the administrative record by Judge Philip S. Gutierrez: For the foregoing reasons, the Court GRANTS Plaintiffs motion to complete the termination AR or compel the production of a privilege log. The Government is ORDERED to either add the predecisional documents at issue to the termination AR or, if it chooses to assert privilege, to provide Plaintiffs with a privilege log, no later than May 10, 2019. (See minutes for further details) 101 (yl) (Entered: 04/10/2019)

04/08/2019

105 MINUTES OF PLAINTIFF'S MOTION TO COMPLETE THE ADMINISTRATIVE RECORD OR COMPEL PRODUCTION OF A PRIVILEGE LOG FILED 02/08/19 (DOC. 101) held before Judge Philip S. Gutierrez: The Court, having read and considered the motion and all subsequent filings, and having heard from counsel today, takes the motion under submission. Court Reporter: Marea Woolrich. (yl) (Entered: 04/10/2019)

05/10/2019

106 Joint STIPULATION for Extension of Time to File Defendants' administrative record privilege log and scheduling stipulation filed by Defendants Susan M. Curda, Elaine C. Duke, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. (Attachments: # 1 Declaration, # 2 Proposed Order)(Robins, Jeffrey) (Entered: 05/10/2019)

05/15/2019

107 ORDER APPROVING JOINT STIPULATION TO EXTEND DEADLINES IN COURT'S APRIL 8, 2019 ORDER REGARDING THEADMINISTATIVE RECORD by Judge Philip S. Gutierrez, re Stipulation for Extension of Time to File, 106 : It is hereby ORDERED that the parties' Joint Stipulation to extend Defendants' deadline to produce a privilege log and any additional documents from today, May

10, 2019, to May 24, 2019, and to also extend the May 24, 2019, deadline regarding a further briefing schedule on these issues to June 21, 2019, is GRANTED. (bm) (Entered: 05/15/2019)

06/21/2019

108 Joint STIPULATION to Reschedule Deadlines regarding a Briefing Schedule on Challenges to Privilege and Dispositive Motions filed by Plaintiff Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira. (Attachments: # 1 Declaration of Katrina Eiland, # 2 Proposed Order)(Eiland, Katrina) (Entered: 06/21/2019)

06/27/2019

109 ORDER GRANTING JOINT STIPULATION TO EXTEND DEADLINE IN COURT'S MAY 15, 2019 ORDER by Judge Philip S. Gutierrez, re Stipulation to Reschedule, 108 : It is hereby ORDERED that the parties' Joint Stipulation to extend the deadline regarding a further briefing schedule on any challenges to privilege and for dispositive motions to July 19, 2019, is GRANTED. (bm) (Entered: 07/01/2019)

06/28/2019

110 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 80 filed by David Marin, Kevin K. Mcaleenan, Thomas D. Homan, Mark J Hazuda, Kirstjen Nielsen, Susan M. Curda, James McCament. CCA # 18-55564. The(9th CCA) Clerk is directed to administratively close this docket, pending further order. Counsel shall notify the court following the decision in Regents. [See document for details.] (mat) (Entered: 07/03/2019)

07/18/2019

111 Joint STIPULATION for Extension of Time to File stipulation re: Briefing Schedule filed by plaintiff Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira. (Attachments: # 1 Declaration of Katrina Eiland, # 2 Proposed Order)(Eiland, Katrina) (Entered: 07/18/2019)

07/22/2019

112 ORDER GRANTING JOINT STIPULATION TO EXTEND DEADLINE IN COURT'S JURY 1, 2019 ORDER 111 by Judge Philip S. Gutierrez. It is hereby ORDERED that the parties' Joint Stipulation to extend the deadline regarding a further briefing schedule on any challenges to privilege and for dispositive motions to July 26, 2019, is GRANTED. (lom) (Entered: 07/24/2019)

07/25/2019

113 NOTICE OF MOTION AND MOTION to Stay Case pending 9th Circuit Preliminary Injunction Appeal filed by plaintiff Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira. Motion set for hearing on 11/18/2019 at 01:30 PM before Judge Philip S. Gutierrez. (Attachments: # 1 Memorandum in Support of Motion to Stay

Proceedings, # 2 Declaration of Katrina Eiland, # 3 Proposed Order) (Veroff, Julie) (Entered: 07/25/2019)

07/26/2019

114 Notice of Appearance or Withdrawal of Counsel: for attorney David Hausman counsel for Plaintiffs Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira. David Hausman is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff David Hausman. (Hausman, David) (Entered: 07/26/2019)

07/26/2019

115 Joint STIPULATION for Extension of Time to File Briefing Schedule filed by plaintiff Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira. (Attachments: # 1 Declaration of Katrina Eiland, # 2 Proposed Order)(Eiland, Katrina) (Entered: 07/26/2019)

08/02/2019

116 ORDER GRANTING JOINT STIPULATION TO STAY THE DEADLINE REGARDING A BRIEFING SCHEDULE ON DISPOSITIVE MOTIONS by Judge Philip S. Gutierrez, re Stipulation for Extension of Time to File, 115 : It is hereby ORDERED that the parties' Joint Stipulation to stay the deadline regarding a further briefing schedule for diapositive motions pending this Court's resolution of Plaintiffs' Motion to Stay Proceedings is GRANTED. (bm) (Entered: 08/05/2019)

10/28/2019

117 OPPOSITION to NOTICE OF MOTION AND MOTION to Stay Case pending 9th Circuit Preliminary Injunction Appeal 113 filed by Defendants Susan M. Curda, Elaine C. Duke, Mark J Hazuda, Thomas D. Homan, David Marin, James McCament, Kevin K. Mcaleenan, Kirstjen Nielsen. (Walker, James) (Entered: 10/28/2019)

11/04/2019

118 REPLY in support of NOTICE OF MOTION AND MOTION to Stay Case pending 9th Circuit Preliminary Injunction Appeal 113 filed by Plaintiffs Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective, Ronan Carlos de Souza Moreira. (Eiland, Katrina) (Entered: 11/04/2019)

11/07/2019

119 MINUTES (In Chambers): Order GRANTING Plaintiffs' motion to stay by Judge Philip S. Gutierrez granting 113 MOTION to Stay Case: Accordingly, the Court GRANTS Plaintiffs' motion to stay pending the resolution of the Ninth Circuit appeal in this case. (see document for further details) (bm) (Entered: 11/07/2019)

12/17/2019

120 Notice of Appearance or Withdrawal of Counsel: for attorney Jennifer C Newell counsel for Plaintiffs Jesus Alonso Arreola Robles, Jose Eduardo Gil Robles, Inland Empire - Immigrant Youth Collective,

Ronan Carlos de Souza Moreira. Jennifer Chang Newell is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Jennifer Chang Newell. (Newell, Jennifer) (Entered: 12/17/2019)

06/23/2020

121 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 80 filed by David Marin, Kevin K. Mcaleenan, Thomas D. Homan, Mark J Hazuda, Kirstjen Nielsen, Susan M. Curda, James McCament. CCA # 18-55564. The stay of this action, entered on June 28, 2019, is lifted. The (9th CCA) clerk shall administratively reopen the docket. The parties are directed to file simultaneous letter briefs addressing the effect, if any, of the Supreme Court's decision, onthe issues raised in this appeal. [See document for more details.] (mat) (Entered: 06/23/2020)

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 Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 1 of 36 Page ID #:1

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)

13

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

14

EASTERN DIVISION

15 INLAND EMPIRE – IMMIGRANT

) Case No. 5:17-cv-2048

YOUTH COLLECTIVE and JESUS

)

16

ALONSO ARREOLA ROBLES on behalf of himself and others similarly situated,

) )

CLASS ACTION COMPLAINT

17

)

Plaintiffs,

)

18

)

v.

)

19

)

ELAINE C. DUKE, Acting Secretary, U.S. )

20 Department of Homeland Security; JAMES )

McCAMENT, Acting Director, U.S.

)

21 Citizenship and Immigration Services;

)

MARK J. HAZUDA, Director, Nebraska )

22 Service Center, U.S. Citizenship and

)

Immigration Services; SUSAN M.

)

23 CURDA, Los Angeles District Director, )

U.S. Citizenship and Immigration Services; )

24 THOMAS D. HOMAN, Acting Director, )

U.S. Immigration and Customs

)

25 Enforcement; DAVID MARIN, Los

)

Angeles Field Office Director, U.S.

)

26 Immigration and Customs Enforcement; )

KEVIN K. McALEENAN, Acting

)

27 Commissioner, U.S. Customs and Border )

Protection,

)

28

Defendants.

)

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 2 of 36 Page ID #:2
1 Ahilan T. Arulanantham (SBN 237841) aarulanantham@aclusocal.org
2 Dae Keun Kwon (SBN 313155) akwon@aclusocal.org
3 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
4 Los Angeles, CA 90017 Telephone: (213) 977-5232
5 Facsimile: (213) 977-5297 6
Attorneys for Plaintiffs 7
* pro hac vice application forthcoming 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 3 of 36 Page ID #:3

1 2 1.

INTRODUCTION President Trump has said that “dreamers should rest easy,”1 yet his

3 administration has placed these young immigrants, who came to the United States as

4 children, directly at risk. Since 2012, the federal government’s Deferred Action for

5 Childhood Arrivals (“DACA”) program has provided temporary protection from

6 deportation (known as “deferred action”) and authorization to work in the United 7 States for nearly 800,000 young immigrants.2 Now, not only is President Trump

8 sunsetting the protections provided to these immigrant youth under DACA, but his

9 Administration is eroding the strength of those protections even while the program

10 winds down. On his watch, federal immigration authorities have targeted numerous

11 DACA recipients and unlawfully revoked the grants of deferred action and work

12 permits they have received, without any notice or opportunity to be heard, even

13 though these individuals have abided by all the program rules and have not engaged in

14 any conduct that would disqualify them from the program. This lawsuit challenges

15 these unlawful revocation practices.

16 2. For over half a decade, the DACA program has provided permission to live and

17 work in the United States for these young people who have known no other country as

18 home. The DACA program has allowed these talented young immigrants to come out

19 of the shadows, obtain higher education, begin their careers, and contribute more fully

20 to their communities. To establish eligibility for the program, DACA recipients must

21 undergo extensive background checks, in addition to meeting multiple other stringent

22

23 1 Transcript of AP Interview with President Trump, Associated Press, Apr. 23,

24 2017, https://apnews.com/c810d7de280a47e88848b0ac74690c83.

25

2 See U.S. Citizenship & Immigration Servs., Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics

26 and Case Status: Fiscal Year 2012-2017 (June 30, 2017),

27

https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studie s/Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_performance

28 data_fy2017_qtr3.pdf.

1

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 4 of 36 Page ID #:4

1 criteria. Noncitizens granted DACA are eligible to receive employment authorization 2 and a Social Security Number.3

3 3. As former President Obama explained when first announcing the DACA

4 program, these young people “are Americans in their heart, in their minds, in every 5 single way but one: on paper.”4 President Obama recognized that “it makes no sense”

6 to deport these “young people who study in our schools, . . . play in our 7 neighborhoods, [are] friends with our kids, [and] pledge allegiance to our flag.”5

8 4. Despite the critically important interests at stake once an individual has

9 received a grant of DACA, the U.S. Department of Homeland Security (“DHS”) has a

10 practice of unlawfully and arbitrarily revoking DACA grants and work authorization

11 based (apparently) on alleged conduct or minor criminal history that does not

12 disqualify the individual from the program—including mere arrests or charges that are

13 later resolved in the individual’s favor. DHS terminates DACA in such cases without

14 any advance notice, any chance to be heard, or any opportunity for reinstatement once

15 the individual is cleared. As a result, many young noncitizens who grew up in this

16 country have had their permission to remain and ability to work stripped away from

17 them, instantaneously losing their ability to support themselves and their families,

18 even though they have done nothing to change their eligibility for DACA.

19 5. Because of the government’s unlawful practices, other young immigrants across

20 the country are at likewise at risk of wrongfully losing their DACA protections.

21

22 3 See Frequently Asked Questions, DHS DACA FAQs, U.S. Citizenship &

23

Immigration Servs., https://www.uscis.gov/humanitarian/consideration-deferredaction-childhood-arrivals-process/frequently-asked-questions

24 [https://www.uscis.gov/archive/frequently-asked-questions] (hereinafter “USCIS

25

DACA FAQs”). 4 President Barack Obama, Remarks on Immigration Reform and Exchange with

26 Reporters, 2012 DAILY COMP. PRES. DOC. 1 (June 15, 2012),

27

https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-presidentimmigration.

28 5 Id.

2

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 5 of 36 Page ID #:5
1 6. Plaintiff Inland Empire – Immigrant Youth Collective (“IEIYC”) is a grassroots 2 organization based in Ontario, California, that serves the immigrant community in the 3 Inland Empire region by engaging in outreach and advocacy. IEIYC has multiple 4 members whose lives have been changed by DACA, which has made it possible for 5 them to pursue their education and careers, contribute to their communities, and 6 achieve economic stability. Like hundreds of thousands of other immigrants, IEIYC’s 7 members have relied on the promises made by the federal government in the DACA 8 program. However, because of the government’s arbitrary revocation practices, 9 IEIYC’s members fear that their DACA grants and work permits could be terminated 10 without notice or process. 11 7. Plaintiff Jesús Alonso Arreola Robles is a 23-year-old resident of the Los 12 Angeles area whose DACA grant and work permit was terminated without any 13 process. He has known the United States as his only home since he was just one year 14 old. DHS found him eligible for and granted him DACA in 2012, 2014, and again in 15 2016. At the time that DHS terminated his DACA, Mr. Arreola was working two jobs 16 to help support his family—one as a cook at the famed Chateau Marmont in West 17 Hollywood, and one as a driver for Uber and Lyft. Mr. Arreola’s earnings helped 18 support his parents, both of whom are lawful permanent residents, and his three U.S. 19 citizen sisters—one of whom has significant disabilities. 20 8. Despite his valid DACA grant and lack of any criminal history, federal 21 immigration authorities arrested Mr. Arreola in February 2017 while he was driving a 22 customer; falsely alleged that he was trying to help his customer smuggle people into 23 the United States; and placed him in removal proceedings. Even though an 24 immigration judge promptly rejected the smuggling allegation, and he was never 25 charged with any crime, DHS nonetheless revoked his DACA grant and employment 26 authorization. 27 9. Mr. Arreola is just one of many young immigrants who have had their DACA 28 abruptly and unlawfully cut off.
3

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 6 of 36 Page ID #:6

1 10. The government’s practice of terminating DACA without process, apparently

2 based on unsubstantiated allegations or minor criminal history, even though the

3 individual has never engaged in any disqualifying conduct, violates the federal

4 Administrative Procedure Act (“APA”) and the Due Process Clause of the Fifth

5 Amendment to the U.S. Constitution. IEIYC and Mr. Arreola, on behalf of himself

6 and a nationwide class of others similarly situated, respectfully request that this Court:

7 declare the government’s revocation practices unlawful; order that the government

8 vacate and enjoin the revocation of Mr. Arreola’s DACA grant and employment

9 authorization, as well as those of class members who have suffered unlawful

10 revocation or, in the alternative, temporarily reinstate their DACA grants and

11 employment authorization pending the provision of a fair procedure to challenge the

12 termination of their DACA grants consistent with the APA and Due Process Clause;

13 order the government to accept renewal applications from Mr. Arreola and class

14 members; and enjoin the government from revoking DACA grants and work

15 authorization pursuant to its unlawful policies and practices in the future.

16

JURISDICTION AND VENUE

17 11. Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1343, and the APA, 5

18 U.S.C. § 702.

19 12. Declaratory and injunctive relief are available pursuant to 28 U.S.C. §§ 2201-

20 2202 and the APA, 5 U.S.C. §§ 702-703.

21 13. Venue is proper in this Court under 28 U.S.C. § 1391(e) because Defendants

22 Elaine C. Duke, James McCament, Mark J. Hazuda, Susan M. Curda, Thomas D.

23 Homan, David Marin, and Kevin K. McAleenan are Officers of the United States

24 acting in their official capacities, and DHS, U.S. Citizenship and Immigration

25 Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”), and U.S.

26 Customs and Border Protection (“CBP”) are agencies of the United States.

27 Additionally, Mr. Arreola and IEIYC reside in this judicial district.

28 14. IEIYC resides in the Eastern Division of this judicial district.

4

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 7 of 36 Page ID #:7

1

PARTIES

2 15. Plaintiff Inland Empire – Immigrant Youth Collective is a grassroots,

3 immigrant youth-led organization located in Ontario, California. Since 2010, the

4 organization has served the undocumented immigrant community in the Inland

5 Empire and has sought to empower those most impacted by immigration policy

6 through outreach and policy advocacy. The majority of IEIYC’s active membership

7 are current DACA recipients who depend on having DACA to attend school, build

8 their careers, and participate in IEIYC’s work throughout Riverside and San

9 Bernardino Counties.

10 16. Plaintiff Jesús Alonso Arreola Robles is a 23-year-old resident of the Los

11 Angeles area. He was brought to the United States from Mexico in 1995, when he was

12 one year old, and has lived in the United States ever since. From August 2012 to

13 February 2017, federal immigration authorities granted Mr. Arreola permission to live

14 and work in the United States pursuant to the DACA program. In February 2017,

15 however, Defendants terminated his DACA grant and employment authorization

16 without notice or an opportunity to be heard, and without any opportunity for

17 reinstatement.

18 17. Defendant Elaine C. Duke is sued in her official capacity as the Acting

19 Secretary of DHS. DHS is a cabinet department of the United States federal

20 government with responsibility for, among other things, administering and enforcing

21 the nation’s immigration laws. As Acting DHS Secretary, Ms. Duke is responsible for

22 the administration and enforcement of the immigration laws of the United States.

23 18. Defendant James McCament is sued in his official capacity as Acting Director

24 of USCIS, a federal agency that is part of DHS. USCIS is responsible for the

25 implementation of the immigration laws of the United States, and administers the

26 DACA program, including by processing applications and issuing notices of

27 termination. As Director of USCIS, Defendant McCament is responsible for the

28

5

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 8 of 36 Page ID #:8
1 administration of USCIS and the implementation of the immigration laws of the 2 United States. 3 19. Defendant Mark J. Hazuda is sued in his official capacity as Director of the 4 USCIS Nebraska Service Center. As Director of the Nebraska Service Center, Mr. 5 Hazuda is responsible for the administration of the USCIS Nebraska Service Center 6 and the decisions that it issues. 7 20. Defendant Susan M. Curda is sued in her official capacity as the District 8 Director of the Los Angeles District Office of USCIS. As District Director, Ms. Curda 9 is responsible for the administration of the Los Angeles District Office and the 10 decisions that it issues. 11 21. Defendant Thomas D. Homan is sued in his official capacity as Acting Director 12 of ICE, a law enforcement agency that is part of DHS. ICE is responsible for the 13 apprehension, detention, and removal of noncitizens from the interior of the United 14 States. In this position, Mr. Homan is responsible for the overall administration of ICE 15 and the operation of ICE’s immigration enforcement and detention activities. 16 22. Defendant David Marin is sued in his official capacity as the Field Office 17 Director for the Los Angeles Field Office of ICE. As Field Office Director, Mr. Marin 18 is responsible for the administration of the Los Angeles Field Office and operation of 19 the office’s immigration enforcement and detention activities. 20 23. Defendant Kevin K. McAleenan is sued in his official capacity as Acting 21 Commissioner of CBP, a law enforcement agency that is part of DHS. CBP is 22 responsible for border security and the apprehension, detention, and removal of 23 noncitizens from the United States. As Acting Commissioner, he is responsible for the 24 overall administration of CBP and the operation of its immigration enforcement and 25 detention activities. 26 27 28
6

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 9 of 36 Page ID #:9

1

BACKGROUND

2 The DACA Program

3 24. On June 15, 2012, then-DHS Secretary of Homeland Security Janet Napolitano

4 issued a memorandum establishing the DACA program (the “2012 DACA 5 Memorandum”).6 Under the DACA framework, individuals who were brought to the

6 United States as children and meet certain specific criteria may request deferred action

7 for a renewable period of two years. In exchange, DACA applicants are required to

8 provide the government with highly sensitive personal information, submit to a

9 rigorous background check, and pay a considerable fee.

10 25. The 2012 DACA Memorandum explained that DACA covers “certain young

11 people who were brought to this country as children and know only this country as

12 home” and that the immigration laws are not “designed to remove productive young 13 people to countries where they may not have lived or even speak the language.”7

14 26. The 2012 DACA Memorandum established the following criteria for

15 individuals to be eligible for DACA. The applicant must:

16

 have come to the United States before the age of sixteen;

17

 have resided continuously in the United States for at least five years preceding

18

the date of the memorandum and been present in the United States on the date

19

of the memorandum;

20

 be currently in school, have graduated from high school, have obtained a

21

general education development certificate, or be an honorably discharged

22

veteran of the Coast Guard or Armed Forces of the United States;

23

24

25

6 Memorandum from Secretary Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15,

26 2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-

27

individuals-who-came-to-us-as-children.pdf (hereinafter “2012 DACA Memorandum”).

28 7 Id.

7

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 10 of 36 Page ID #:10

1

 have not been convicted of a felony offense, a significant misdemeanor offense,

2

or multiple misdemeanor offenses;

3

 not otherwise pose a threat to national security or public safety; and

4

 not be above the age of thirty as of June 15, 2012.8

5 27. USCIS describes DACA as a form of deferred action, “a discretionary

6 determination to defer a removal action of an individual as an act of prosecutorial

7 discretion . . . . An individual who has received deferred action is authorized by DHS

8 to be present in the United States, and is therefore considered by DHS to be lawfully 9 present during the period deferred action is in effect.”9

10 28. Because of the possibility that many DACA-eligible individuals might be

11 reluctant to voluntarily disclose information that could help facilitate their removal

12 from the United States, DHS repeatedly promised applicants that the information they

13 provided as part of the DACA application process would “not later be used for 14 immigration enforcement purposes.”10

15 29. To apply for DACA, applicants must submit extensive documentation 16 establishing that they meet the above-mentioned criteria.11

17 30. Applicants must submit a Form I-765 Application for Employment 18 Authorization, and pay hundreds of dollars in fees.12 If work authorization is granted,

19 DACA recipients are issued federal employment authorization documents (“EADs”),

20 and can apply for a Social Security Number.

21 31. DACA applicants must also undergo biometric and biographic background

22 checks. When conducting these checks, DHS reviews the applicant’s biometric and

23

24 8 Id.

25

9 USCIS DACA FAQs, Question 1. 10 Letter from Secretary Jeh Charles Johnson to Rep. Judy Chu (Dec. 30, 2016),

26 https://chu.house.gov/sites/chu.house.gov/files/documents/DHS.Signed%20Response

27

%20to%20Chu%2012.30.16.pdf. 11 USCIS DACA FAQs, Questions 28–41.

28 12 USCIS DACA FAQs, Question 7.

8

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 11 of 36 Page ID #:11

1 biographic information “against a variety of databases maintained by DHS and other 2 federal government agencies.”13 If any information “indicates that [the applicant’s]

3 presence in the United States threatens public safety or national security,” the 4 applicant will be ineligible for DACA absent “exceptional circumstances.”14 Under

5 the DACA program, deferred action is available for a period of two years, subject to

6 renewal.

7 32. A decision to grant or deny a DACA application or renewal is separate and

8 independent from any removal proceedings in immigration court. A noncitizen who is 9 in removal proceedings can apply for DACA separately and simultaneously.15 If that

10 application is granted, the removal proceedings continue unless the immigration judge

11 closes or terminates the proceedings. Further, an immigration judge has no power to

12 grant or deny DACA, or to review or reverse USCIS’ decision to deny DACA.

13 33. DACA recipients are eligible to receive certain benefits. These include Social

14 Security, retirement, and disability benefits, and, in certain states, benefits such as 15 driver’s licenses or unemployment insurance.16

16 34. DACA also confers other advantages. For example, DACA recipients do not

17 accrue unlawful presence under Section 212(a)(9)(B)(i) of the Immigration and

18 Nationality Act (“INA”), 8 U.S.C. § 1182(a)(9)(B)(i), which could otherwise bar an 19 individual from adjusting to lawful permanent resident status in the future.17

20 35. The DACA program has been a huge success, allowing nearly 800,000 young

21 people to go to school, advance in their careers, and serve their communities. In

22 California alone, over 220,000 young people have benefitted from DACA.

23

24

25 13 USCIS DACA FAQs, Question 23.

26 14 USCIS DACA FAQs, Question 65.

27

15 2012 DACA Memorandum at 2. 16 See, e.g., 8 U.S.C. §§ 1611(b)(2)–(3), 1621(d).

28 17 USCIS DACA FAQs, Question 5.

9

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 12 of 36 Page ID #:12

1 36. DACA’s benefits to young immigrants and the U.S. economy have been 2 remarkable, as reported by a recent survey of DACA recipients.18 According to the

3 survey:

4

 91 percent of respondents were employed, including at top Fortune 500

5

companies such as Walmart, Apple, General Motors, Amazon, JPMorgan

Chase, Home Depot, and Wells Fargo. 6

7

 The average hourly wage of respondents increased by 69 percent since

receiving DACA; 69 percent of survey respondents responded that their

8

increased earnings had “helped me become financially independent” and 71

9

percent responded that their increased earnings had “helped my family

financially.” These higher wages increased tax revenues and economic growth

10

at the local, state, and federal levels.

11

 16 percent of respondents purchased their first home after receiving DACA,

12

leading to broader positive economic effects such as job creation and the

13

infusion of new spending in local economies.

14

 94 percent reported that, because of DACA, they were able to pursue

15

educational opportunities they could not have pursued otherwise.

16 Another study found that, altogether, DACA recipients stood to contribute more than

17 $460 billion to the gross domestic product over the next ten years.19

18 37. Not only has the program resulted in huge benefits to the American economy,

19 but in addition, more than 86 percent of Americans support allowing DACA recipients 20 to remain in the United States.20

21 18 Tom K. Wong et al., DACA Recipients’ Economic and Educational Gains Continue

22 to Grow, Center for American Progress, Aug. 28, 2017,

23

https://www.americanprogress.org/issues/immigration/news/2017/08/28/437956/dacarecipients-economic-educational-gains-continue-grow/.

24 19 Nicole Prchal Svajlenka, Tom Jawetz, and Angie Bautista-Chavez, A New Threat to

25

DACA Could Cost States Billions of Dollars, Center for American Progress, July 21, 2017,

26 https://www.americanprogress.org/issues/immigration/news/2017/07/21/436419/new-

27

threat-daca-cost-states-billions-dollars/. 20 Scott Clement & David Nakamura, Survey finds strong support for ‘dreamers’,

28 Wash. Post, Sept. 25, 2017, https://www.washingtonpost.com/politics/survey-finds-

10

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 13 of 36 Page ID #:13

1 38. After President Trump took office, his Administration continued the DACA

2 program for more than seven months. From January to September 2017, USCIS

3 continued to process and grant more than 250,000 new DACA applications and

4 applications for renewals.

5 The Rescission of the DACA Program

6 39. Notwithstanding the success of the DACA program and the public’s

7 overwhelming support for it, DHS announced on September 5, 2017, that it was

8 rescinding the DACA program and winding it down.

9 40. Current DACA recipients will maintain their deferred action grants and work

10 permits until they expire. DHS will not consider new applications for DACA dated

11 after September 5, 2017. In addition, certain individuals are eligible for two-year

12 renewals. Individuals with a DACA grant expiring between September 5, 2017, and

13 March 5, 2018, can apply for a two-year renewal if the application is received by

14 October 5, 2017. Individuals whose DACA expires on or after March 6, 2018 will not 15 have an opportunity to renew.21

16 41. All DACA grants are expected to expire by the spring of 2020. In the

17 meantime, hundreds of thousands of young immigrants will continue to benefit from

18 grants of DACA and work authorization for varying lengths of time as the program

19 winds down.

20 42. Although the program is sunsetting, the Administration has confirmed on

21 September 8, via Press Secretary Sarah Huckabee Sanders, that “[d]uring this six22 month time, there are no changes that are being made to the program at this point.”22

23 strong-support-for-dreamers/2017/09/24/df3c885c-a16f-11e7-b14f-

24 f41773cd5a14_story.html?utm_term=.cea6f0719cc6.

25

21 Memorandum from Acting Secretary Elaine C. Duke, Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to

26 Individuals Who Came to the United States as Children” (Sept. 5, 2017),

27

https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca. 22 Press Briefing by Press Secretary Sarah Sanders and Homeland Security Advisor

28 Tom Bossert, 9/8/2017, #11, The White House, Office of the Press Secretary,

11

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 14 of 36 Page ID #:14

1 Plaintiff Jesús Alonso Arreola Robles

2

Mr. Arreola’s Life in the United States

3 43. Mr. Arreola was born in Mexico in May of 1994 and was brought to the United

4 States by his parents in 1995, when he was only one year old. They entered without

5 being inspected at a border crossing. He has lived in the United States continuously

6 since his arrival—indeed, this country is the only place he can call home.

7 44. Mr. Arreola attended and graduated from Los Angeles-area schools. He

8 graduated from Lankershim Elementary School in 2005, Walter Reed Middle School

9 in 2008, and East Valley High School in 2012. Mr. Arreola also attended a year of

10 college at Glendale Community College, but could not continue his studies as he had

11 to work full-time to help financially support his family.

12 45. In addition to his parents, Mr. Arreola has three younger sisters, who are all

13 U.S. citizens by birth. His oldest sister is seventeen years old. Since birth, she has had

14 progeria, autism, Down’s syndrome, and diabetes, and requires special care, around

15 the clock, from her family members.

16 46. Mr. Arreola has played a critical role in caring for his sister, including checking

17 her blood; giving her insulin shots; helping her move around the house; and driving

18 her to the hospital when she needs medical care. He also does everything he can to

19 help her feel “normal,” comfortable, and loved.

20 47. Although Mr. Arreola’s parents entered the United States without inspection,

21 they now have lawful permanent resident status, having obtained immigration relief in

22 the form of cancellation of removal under 8 U.S.C. § 1229a(b).

23 48. Mr. Arreola is the only member of his family without permanent lawful

24 immigration status in the United States.

25

26

27 https://www.whitehouse.gov/the-press-office/2017/09/08/press-briefing-press28 secretary-sarah-sanders-and-homeland-security.

12

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 15 of 36 Page ID #:15

1

Mr. Arreola’s Grant and Renewals of DACA

2 49. Based on the government’s assurances that confidential information would not

3 be used to remove DACA recipients, Mr. Arreola first applied for deferred action and

4 employment authorization pursuant to DACA in August 2012. As part of this process,

5 Mr. Arreola provided the government with his school records and information about

6 where he lived. He was also required to attend a biometrics appointment so that

7 USCIS could take his fingerprints and photographs.

8 50. Mr. Arreola was granted DACA and work authorization on September 26,

9 2012. Mr. Arreola’s initial DACA grant remained in effect for two years, until

10 September 25, 2014.

11 51. In 2014 and again in 2016, Mr. Arreola reapplied for DACA, and each time was

12 granted deferred action and work authorization after being subject to rigorous vetting.

13 As part of this process, the government sent Mr. Arreola approval notices informing

14 him that his request for deferred action had been granted.

15 52. Mr. Arreola’s 2016 approval notice provides that “[u]nless terminated, this

16 decision to defer removal action will remain in effect for 2 years” and is valid until

17 August 19, 2018. The approval notice informed Mr. Arreola that his deferred action

18 could be terminated if he engaged in “[s]ubsequent criminal activity.”

19 53. Since he was granted DACA, Mr. Arreola has used his work authorization to

20 help his family by working two jobs. Starting in approximately 2013, he worked at the

21 Chateau Marmont in West Hollywood, first as a dishwasher and then as a cook. In

22 April 2016, he also began working as a driver for Uber and Lyft.

23 54. The money Mr. Arreola obtained from these jobs helped his family in many

24 ways. Mr. Arreola shared his earnings and paid half the rent for the family home.

25 55. Until his DACA grant and employment authorization were unlawfully revoked,

26 Mr. Arreola had been a model employee at the Chateau Marmont and a successful

27 driver for Uber and Lyft.

28 56. Mr. Arreola has never been charged with or convicted of any crime.

13

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 16 of 36 Page ID #:16

1

Mr. Arreola’s Arrest and Detention

2 57. As a driver, Mr. Arreola regularly provided rides to customers for a fee, both

3 through the Uber and Lyft apps and through referrals from friends. On February 11,

4 2017, a friend offered Mr. Arreola $600 to drive his cousin from the Los Angeles area

5 to the San Diego area to pick up the friend’s uncle and another cousin, and bring them

6 back to the Los Angeles area.

7 58. Mr. Arreola agreed to the long-distance ride and picked up his customer—his

8 friend’s cousin—in Sun Valley near North Hollywood. The customer entered an

9 address near San Diego into Mr. Arreola’s GPS and told him to drive to that location.

10 Being unfamiliar with the San Diego area, Mr. Arreola did not know anything about

11 the destination address and merely followed the GPS instructions.

12 59. After driving for about three and a half hours, Mr. Arreola and his customer

13 reached the destination either late in the evening on February 11, 2017 or early the

14 next morning.

15 60. His customer told Mr. Arreola to stop the car and wait while he went to get the

16 uncle and cousin.

17 61. The customer exited the car and walked toward a figure who was standing in

18 the dark, who he apparently thought was the uncle. Instead of the uncle, that

19 individual was a CBP agent. The CBP agent arrested the customer.

20 62. Although Mr. Arreola informed the CBP agent that he had been granted DACA

21 and had permission to live and work in the United States, the CBP agent also arrested

22 Mr. Arreola, apparently suspecting that he was aiding in smuggling individuals into

23 the United States.

24 63. The CBP agent brought Mr. Arreola to Forest Gate Processing Center in

25 Campo, California, where Mr. Arreola’s property was confiscated, including his car

26 and cell phone.

27 64. Mr. Arreola was subsequently detained and questioned by another CBP agent.

28 Mr. Arreola also informed that CBP agent of his valid DACA grant.

14

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 17 of 36 Page ID #:17
1 65. The CBP agent questioned Mr. Arreola about his trip. Mr. Arreola explained 2 that he was a driver, and that he had been offered $600 to pick up his friend’s uncle 3 and cousin near the San Diego area and drive them back to the Los Angeles area. Mr. 4 Arreola explained that he had never met his customer before that day. 5 66. Mr. Arreola did not know the immigration status of his friend’s uncle and 6 cousin whom he was supposed to pick up. As a driver, it was not Mr. Arreola’s 7 practice to ask about the immigration status of the individuals to whom he gave rides. 8 67. Nonetheless, the CBP agents refused to release Mr. Arreola from custody. 9 68. Instead, on February 12, 2017, CBP issued Mr. Arreola a Notice to Appear 10 (“NTA”), initiating removal proceedings against him and charging him as removable 11 because he was present in the United States without admission under INA 12 § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). 13 69. Mr. Arreola was never charged with any smuggling-related crime or any 14 smuggling-related ground of removability. 15 70. For the first two days of his detention, Mr. Arreola was not allowed to make a 16 phone call. His family had no knowledge of his whereabouts and became very worried 17 about him. Subsequently, Mr. Arreola was transferred to multiple detention centers in 18 California, Arizona, and Georgia, eventually ending up in Folkston, Georgia—nearly 19 2,500 miles away from his home. 20 71. On March 2, 2017, Mr. Arreola finally received a bond hearing before an 21 immigration judge. During the bond hearing, the ICE attorney questioned Mr. Arreola 22 at length regarding the circumstances that led to his arrest by CBP. The ICE attorney 23 suggested that Mr. Arreola was a danger to the community because he attempted to 24 smuggle people into the United States. 25 72. At the hearing, Mr. Arreola testified that he was a driver for Uber and Lyft, and 26 that he was offered $600 by his friend to pick up his friend’s uncle and cousin near the 27 San Diego area and drive them back to the Los Angeles area. He further testified that 28 he had no knowledge of the immigration status of the individuals he was supposed to
15

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 18 of 36 Page ID #:18

1 pick up, and denied the ICE attorney’s allegations that he was involved with

2 smuggling.

3 73. The immigration judge rejected the ICE attorney’s arguments, found Mr.

4 Arreola credible, determined that he is not a flight risk or danger to the community,

5 and ordered Mr. Arreola’s release on $2,500 bond.

6 74. The immigration judge stated that he was “not going to accept the conclusions”

7 by the CBP agents that Mr. Arreola was involved in “smuggling aliens for financial

8 gains.” The immigration judge observed that Mr. Arreola is “an Uber and Lyft driver.

9 He’s in Hollywood, some three, three and a half hours away. Somebody is going to

10 pay him to go all that way and come back.” The immigration judge added that the

11 CBP agents made the incorrect “assumption that [Mr. Arreola] was being paid to

12 smuggle” the uncle and cousin “as opposed to pick up a fare, what would have been a

13 lucrative fare.”

14 75. On March 3, 2017, Mr. Arreola posted bond and was released from detention.

15 Mr. Arreola was detained a total of 21 days. He has been living in the Los Angeles

16 area since being released.

17

Termination of Mr. Arreola’s DACA Grant and Employment Authorization

18 76. On March 6, 2017, Mr. Arreola received a Notice of Action from USCIS

19 notifying him that his DACA and EAD were “terminated automatically as of the date

20 [his Notice to Appear] was issued.”23 The Notice of Action states that an “appeal or

21 motion to reopen/reconsider this notice of action may not be filed.”

22 77. Mr. Arreola was never provided with any prior notice that Defendants intended

23 to terminate his DACA and EAD, nor was he provided any opportunity to respond to

24 such a notice or otherwise contest the termination of his DACA or EAD. Neither was

25 he provided with a reasoned explanation for the decision.

26

27

23 U.S. Citizenship and Immigration Servs., Notice of Action to Jesus Alonso Arreola Robles Re I-821D, Deferred Action for Childhood Arrivals (Mar. 6, 2017) (hereinafter

28 “Notice of Action”) (emphasis added).

16

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 19 of 36 Page ID #:19
1 78. Defendants failed to provide Mr. Arreola with any notice or process even 2 though the DACA program rules, including the Standard Operating Procedures 3 (“SOPs”) that govern the DACA program, require that advance notice and an 4 opportunity to respond be provided in most termination cases. Further, although the 5 SOPs envision certain circumstances in which terminations might occur without 6 notice, Defendants failed even to follow the procedures governing such terminations. 7 79. On March 17, 2017, Mr. Arreola’s counsel submitted a letter to USCIS 8 requesting that USCIS reopen and reconsider the termination of his DACA and EAD. 9 80. On May 9, 2017, USCIS responded, declining to revisit the issue. USCIS stated 10 that, among other things, that “when ICE issues and serves the Notice to Appear on 11 the DACA requestor during the DACA validity period, that action alone terminates 12 the DACA. USCIS will send a Notice of Action and update our system as Deferred 13 Action Terminated but that is only as a follow up to ICE’s action of termination.” 14 However, Mr. Arreola’s NTA was issued by CBP, not ICE. 15 81. Mr. Arreola has suffered and continues to suffer significant and irreparable 16 harm as a result of Defendants’ actions. After his 21-day detention and subsequent 17 release, Mr. Arreola has been unable to fully piece his life back together. After Mr. 18 Arreola lost his DACA and work authorization, he lost his job with Chateau Marmont, 19 and is no longer able to work as a driver for Lyft or Uber. 20 82. The revocation of Mr. Arreola’s DACA and work permit have been particularly 21 difficult for him given that he and his long-term partner are expecting their first child 22 together later this year. However, because of Defendants’ actions, Mr. Arreola’s 23 ability to save for his new family has been curtailed. 24 83. Defendants’ termination of Mr. Arreola’s DACA grant and work permit failed 25 to comply with the DACA program rules and procedures, and violated the 26 Administrative Procedures Act and the Due Process Clause of the Fifth Amendment. 27 28
17

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 20 of 36 Page ID #:20
1 Plaintiff Inland Empire – Immigrant Youth Collective 2 84. The Inland Empire – Immigrant Youth Collective is a grassroots, immigrant 3 youth-led organization located in Ontario, California. IEIYC serves the immigrant 4 community in the Inland Empire region, which encompasses Riverside and San 5 Bernardino Counties. IEIYC’s mission is to advocate for the needs of the 6 undocumented immigrant community in the Inland Empire, including equal access to 7 higher education for undocumented youth, and to achieve justice for immigrant 8 communities by empowering those most affected by immigration policy. Since 2010, 9 IEIYC has focused its efforts on creating a safe space for undocumented youth to 10 share resources; organizing other youth to educate and mobilize their peers; and 11 advocating for regional, state, and federal policies that benefit immigrant 12 communities, including DACA recipients. 13 85. Since 2012, IEIYC has coordinated numerous DACA workshops during which 14 approximately 5,000 individuals have received immigration consultation and 15 assistance with their DACA applications. IEIYC has provided approximately 30 16 scholarships to immigrant youth since 2015, for a total of about $15,000, to help 17 undocumented youth pursue their educational goals or to assist with the cost of DACA 18 application fees. In addition, IEIYC recently raised another $15,000 to assist 19 individual DACA applicants with their renewal fees. IEIYC also runs a Mentorship 20 Academy for local high school and college students, including DACA recipients, to 21 provide professional and leadership development training. In addition, IEIYC has held 22 informational sessions on topics important to DACA recipients, such as their legal 23 rights when encountering law enforcement, and puts on an annual health conference to 24 provide health information and resources. IEIYC also assists in documenting and 25 responding to immigration enforcement activities in the Inland Empire and 26 collaborates with other local organizations to ensure a rapid response from the 27 community. 28
18

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 21 of 36 Page ID #:21
1 86. IEIYC currently has approximately 28 active members in Riverside and San 2 Bernardino Counties, including a staff of three part-time employees and a board of 3 directors comprised of five individuals. In various locations throughout the Inland 4 Empire, IEIYC’s members help plan events and other programming, conduct 5 outreach, and attend membership meetings. Because IEIYC only has three part-time 6 staff, it is heavily dependent on its members’ ability to contribute their time and 7 efforts. 8 87. At least 18 of IEIYC’s members are current DACA recipients who also have 9 work authorization through the program (collectively “IEIYC DACA recipients”). 10 Defendants’ unlawful termination policies and practices are likely to harm IEIYC 11 DACA recipients. IEIYC DACA recipients live, work, attend school, and carry out 12 IEIYC work throughout the Inland Empire, where there is a significant CBP presence. 13 For example, there are three CBP sub-stations in Riverside County, located in 14 Murrieta, Temecula, and Indio, and a new Border Patrol complex is under 15 construction in the Moreno Valley of Riverside County. There are CBP checkpoints 16 located in Riverside County, and roving CBP patrols are also common in the area. 17 IEIYC DACA recipients are at risk of coming into contact with CBP officers and 18 being screened for possible revocation of their DACA when carrying out their day-to19 day activities. 20 88. Some of IEIYC’s DACA recipients have had or may in the future have contact 21 with local law enforcement, which could also put them at even greater risk of having 22 their DACA terminated under the challenged practices, even though they have not 23 engaged in any disqualifying conduct. 24 Defendants’ Unlawful DACA Revocation Practices 25 89. Notwithstanding President Trump’s claims that DACA recipients “have nothing 26 to worry about,”24 Defendants have engaged in a widespread practice of unlawfully 27
24 @realDonladTrump, TWITTER (Sept. 7, 2017, 6:42 AM), 28 https://twitter.com/realDonaldTrump/status/905788459301908480.
19

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 22 of 36 Page ID #:22

1 revoking individuals’ DACA grants and work permits without process, apparently

2 based on unsubstantiated suspicions of criminal activity or minor criminal history,

3 even though these individuals have not violated the terms of the program and continue

4 to be eligible for it.

5 90. The targeting of DACA recipients for revocation has coincided with broader

6 changes in immigration enforcement under the Trump Administration. Administration

7 officials have made numerous public statements indicating that “anyone who is in this 8 country in violation of immigration law is subject to possible arrest.”25

9 91. In April 2017, in response to questions about a DACA recipient who was

10 removed from the country, Attorney General Jeff Sessions said, “We can’t promise 11 people who are here unlawfully that they’re not going to be deported.”26

12 92. In June 2017, Defendant Homan said, “If you’re in this country illegally, and

13 you committed a crime by entering this country, you should be uncomfortable . . . . 14 You should look over your shoulder.”27

15 93. In August 2017, ICE spokeswoman Sarah Rodriguez confirmed that “ICE does

16 not exempt classes or categories of removable aliens from potential enforcement. All

17 of those in violation of the immigration laws may be subject to immigration arrest, 18 detention and, if found removable by final order, removal from the United States.”28

19 25 Brenda Gazzar, ICE arrests increase under Trump showing ‘gloves are being taken

20 off,’ The Mercury News, May 10, 2017 (quoting ICE spokesperson Virginia Kice),

21

http://www.mercurynews.com/2017/05/10/ice-arrests-increase-under-trump-showinggloves-are-being-taken-off-4/.

22 26 Ted Hesson, Sessions: ‘We can’t promise’ Dreamers won’t be deported,’ Politico,

23

Apr. 19, 2017, http://www.politico.com/story/2017/04/jeff-sessions-dreamsdeported-237369.

24 27 Maria Sacchetti, ICE chief tells lawmakers agency needs much more money for

25

immigration arrests, Wash. Post, June 13, 2017, https://www.washingtonpost.com/local/social-issues/ice-chief-tells-lawmakers-

26 agency-needs-much-more-money-for-immigration-arrests/2017/06/13/86651e86-

27

5054-11e7-b064-828ba60fbb98_story.html?utm_term=.abf9e8bb63d0. 28 Tal Kopan, ICE: Arrests still up, deportations still down, CNN, Aug. 11, 2017,

28 http://www.cnn.com/2017/08/11/politics/trump-administration-

20

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 23 of 36 Page ID #:23

1 94. In September 2017, Defendant Duke reportedly stated that she has never seen

2 DHS guidance telling DACA applicants that their information would not be used for 3 immigration enforcement purposes.29

4 95. Multiple DACA recipients have been detained by immigration authorities since

5 President Trump took office. For example, in February, immigration authorities

6 detained Josue Romero, a 19-year-old DACA recipient and arts scholarship student 7 residing in Texas, after he was arrested by local police on a misdemeanor charge.30 In

8 August, ICE apprehended 22-year-old Riccy Enriquez Perdomo, a DACA recipient,

9 mother of two young children, and former Amazon employee residing in Kentucky.

10 Although she had no criminal history and a valid DACA grant, immigration

11 authorities nonetheless confiscated her work permit and detained her for a week after 12 she went to an immigration detention center to post a bond for a friend.31 Just recently,

13 in early September, ten DACA recipients were detained for hours by CBP at a 14 checkpoint in Texas even though they have valid DACA.32 Although they were

15 ultimately released, CBP scrutinized their records, presumably looking for a reason to

16 hold them and revoke their DACA.

17 96. Indeed, immigration officers have been expressly instructed to screen any

18 DACA recipient they encounter in the field for potential enforcement actions. A

19 deportations/index.html. 20 29 @joshgerstein, TWITTER (Sept. 27, 2017, 8:18 AM),

21

https://twitter.com/joshgerstein/status/913060287212933120. 30 Tom Dart, Second known Daca recipient detained by immigration officials in Texas,

22 The Guardian, Feb. 16, 2017, https://www.theguardian.com/us-

23

news/2017/feb/16/daca-dreamer-detained-immigration-texas-josue-romero. 31 Mark Curnutte, This immigrant mom had a permit to work at Amazon, now U.S.

24 agents hold her in jail, Cincinnati.com, August 23, 2017,

25

http://www.cincinnati.com/story/news/2017/08/23/ice-detains-young-nky-motherlegal-status/593734001/.

26 32 Lorenzo Zazueta-Castro, UPDATED: Family, Immigration Attorney: DACA

27

Recipients Being Held at Checkpoint, The Monitor, Sept. 11, 2017, http://www.themonitor.com/news/article_1ced27f4-970e-11e7-a609-

28 47c4564b53ec.html.

21

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 24 of 36 Page ID #:24

1 September 6, 2017 CBP memorandum directs that, after encountering a DACA

2 recipient, immigration agents must run various systems checks to determine “whether 3 removal proceedings are appropriate.”33 Specifically, “[w]here an agent finds

4 derogatory information indicating that deferred action under DACA may no longer be

5 appropriate, the agent should contact USCIS to determine if the deferred action can be 6 terminated immediately.”34 Consistent with this directive, a CBP official in Arizona

7 confirmed that DACA recipients whom officers encounter are screened through

8 databases and may be detained for several hours while being screened. If the officers

9 find an indication of a new conviction, or even simply an arrest, they may place the

10 DACA recipient in removal proceedings, thereby revoking their DACA grants.

11 97. According to government data, DACA revocations increased by 25 percent 12 after President Trump’s inauguration.35

13 98. Upon information and belief, since January, there have been numerous cases in

14 which immigration authorities have targeted DACA recipients by revoking their

15 DACA grants and work permits, without providing any notice or process, even though

16 they have engaged in no disqualifying conduct and continue to be eligible for the

17 program. Indeed, Plaintiffs’ counsel are aware of more than a dozen cases nationwide.

18 99. For example, in February, immigration authorities arrested and detained 23-

19 year-old Daniel Ramirez Medina, a Washington state resident. ICE issued him an

20 NTA, even though he had valid DACA and had done nothing to change his eligibility

21 for the program. Although he has no criminal history, immigration authorities claimed

22

23

33 @ValOnTheBorder, TWITTER (Sept. 25, 2017, 7:35PM), https://twitter.com/ValOnTheBorder/status/912505757958119426; see also Valerie

24 Gonzalez, “Border Patrol Memo States Procedures to Process All DACA Recipients,”

25

KRGV.com, Sept. 25, 2017, http://www.krgv.com/story/36450600/border-patrolmemo-states-procedures-to-process-all-daca-recipients.

26 34 ValOnTheBorder, TWITTER (Sept. 25, 2017, 7:35PM).

27

35 Keegan Hamilton, Targeting Dreamers, Vice News, Sept. 8, 2017, https://news.vice.com/story/ice-was-going-after-dreamers-even-before-trump-killed-

28 daca.

22

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 25 of 36 Page ID #:25

1 that he was suspected of being a gang member and issued him an NTA. An

2 immigration judge determined that he is not a flight risk or danger to the community,

3 and ordered him released on bond, but USCIS had already revoked his DACA, 4 without notice or opportunity to be heard.36

5 100. In April, immigration authorities detained a 26-year-old DACA recipient in

6 Georgia and issued him an NTA after he was arrested on a misdemeanor charge.

7 Although the prosecutor subsequently dropped the charge and an immigration judge

8 ordered the DACA recipient released on bond, USCIS had already revoked his

9 DACA, without notice or an opportunity to be heard.

10 101. In May, immigration authorities arrested and detained a 19-year-old DACA

11 recipient in North Carolina and issued him an NTA after he was arrested on a

12 misdemeanor charge. He pled guilty to a minor misdemeanor that did not disqualify

13 him from DACA, but USCIS had already revoked his DACA, without notice or an

14 opportunity to be heard.

15 102. In May, USCIS also revoked the DACA grant and work permit of then-28-year-

16 old Georgia resident and paralegal Jessica Colotl without notice, denying her renewal

17 request and denying her an opportunity to be heard. Federal authorities publicly stated

18 that the revocation was based on minor, non-disqualifying criminal history—namely,

19 driving without a license—that Ms. Colotl had disclosed in her prior DACA

20 applications.

21 103. In June, immigration authorities arrested and detained a 22-year-old DACA

22 recipient in California for twelve days. ICE issued him an NTA, even though he had

23 valid DACA and had done nothing to change his eligibility for the program. Although

24 immigration authorities later claimed that he was suspected of being affiliated with a

25 gang, ICE voluntarily released him from detention and cancelled his removal

26

27

36 Emily Goldberg, What Immigration Raids Mean for Students, The Atlantic, Feb. 17, 2017, https://www.theatlantic.com/education/archive/2017/02/why-was-a-daca-

28 recipient-detained-by-ice/517134/.

23

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 26 of 36 Page ID #:26
1 proceedings, indicating that the suspicion was not substantiated. However, USCIS had 2 already revoked his DACA, without notice or an opportunity to be heard. 3 104. In July, USCIS revoked the DACA grant and work permit of a 32-year-old 4 South Dakota resident without notice or an opportunity to be heard, despite granting 5 him a two-year renewal only seven months before in December 2016. Federal 6 authorities did not provide a clear reason for revoking his DACA, even though he has 7 only a single, non-disqualifying misdemeanor conviction that he had disclosed in his 8 prior DACA applications. 9 105. In September, USCIS revoked the DACA grant and work permit of a 30-year10 old Minnesota resident and mother without notice or an opportunity to be heard. 11 Federal authorities did not provide a clear reason for revoking her DACA, even 12 though she remains eligible for the program and her only contact with law 13 enforcement is limited to minor traffic violations. 14 106. In addition, thousands of individuals nationwide are subject to having their 15 DACA and work authorization terminated pursuant to Defendants’ unlawful policies 16 and practices. 17 107. Defendants’ unlawful termination of qualified individuals’ DACA and work 18 authorization involves three systemic practices. 19 108. First, Defendants have a practice of revoking DACA grants without providing 20 notice, a reasoned explanation, or an opportunity to be heard prior to revocation, and 21 without providing a process for reinstatement where the revocation is in error. 22 109. Second, Defendants have engaged in a widespread practice of automatically 23 terminating DACA grants and work permits of individuals who remain eligible for 24 DACA based on the filing of a Notice to Appear by immigration authorities, including 25 where the sole basis for the NTA is the individual’s presence without admission in the 26 United States or having overstayed a visa—charges that apply essentially to all DACA 27 recipients—and even though DACA is available to noncitizens who are already in 28 removal proceedings.
24

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 27 of 36 Page ID #:27

1 110. Third, Defendants have targeted DACA recipients for revocation, even though

2 they have committed no disqualifying conduct, based on the Trump administration’s

3 articulation of new immigration enforcement priorities. On February 20, 2017, former

4 DHS Secretary Kelly issued a memorandum setting forth priorities for DHS’s 5 enforcement of the immigration laws.37 The Memorandum prioritizes for removal

6 even noncitizens who have no criminal convictions, but merely have been “charged

7 with any criminal offense that has not been resolved,” as well as any noncitizen who

8 has “committed acts which constitute a chargeable criminal offense.” These broad

9 categories presume guilt for offenses that have not been proven in court. They also

10 include minor misdemeanors that do not disqualify individuals from the DACA

11 program, such as traffic offenses or crimes related to immigration status like unlawful

12 entry into the United States.

13 111. Although the Kelly Memorandum rescinded prior guidance concerning

14 immigration enforcement priorities issued during the Obama administration, it

15 expressly kept the DACA guidance in place. Thus, the Memorandum provides that

16 “the Department no longer will exempt classes or categories of removable aliens from

17 potential enforcement” “[e]xcept as specifically noted above”—referring specifically 18 to the DACA program.38 DHS also issued a “Q&A” document concerning this

19 memorandum which states (at Question 22):

20

Q22: Do these memoranda affect recipients of Deferred Action for Childhood

21

Arrivals (DACA)?

22

A22: No.39

23 37 See Memorandum from John Kelly, Enforcement of the Immigration Laws to Serve

24 the National Interest 2 (Feb. 20, 2017),

25

https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-theImmigration-Laws-to-Serve-the-National-Interest.pdf.

26 38 See id.

27

39 See Q&A: DHS Implementation of the Executive Order on Enhancing Public Safety in the Interior of the United States, Dep’t of Homeland Sec., Feb. 21, 2017,

28 https://www.dhs.gov/news/2017/02/21/qa-dhs-implementation-executive-order-

25

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 28 of 36 Page ID #:28
1 112. Notwithstanding the express language in the Kelly Memorandum and the 2 accompanying FAQ, immigration authorities have claimed that the Kelly 3 Memorandum justifies revoking the DACA grant of individuals who would fall within 4 the new, extremely broad enforcement priorities. Immigration authorities have taken 5 this position even though the rules of the DACA program expressly provide that 6 certain minor criminal history is not disqualifying. Under Defendants’ view, 7 apparently any DACA recipient who is charged with or has allegedly committed any 8 criminal offense, no matter how minor, and without any conviction, can have his or 9 her DACA grant and work permit stripped without notice. 10 113. Defendants’ policies and practices violate the Administrative Procedures Act 11 (“APA”) and the Due Process Clause of the Fifth Amendment to the U.S. 12 Constitution. 13 114. Defendants’ failure to provide DACA recipients with notice, a reasoned 14 explanation, and an opportunity to be heard prior to revocation, as well as a process 15 for reinstatement where the revocation is in error, violates the Due Process Clause and 16 the rules governing the DACA program, and is arbitrary and capricious and contrary 17 to law in violation of the APA. Individuals who have been granted DACA have 18 important constitutionally protected interests in their DACA grant and employment 19 authorization. The revocation of an individual’s grant of deferred action and work 20 permit under the DACA program harms those interests. Before the immigration 21 authorities may revoke a DACA grant and work permit, they must provide, at a 22 minimum, notice, a reasoned explanation for the decision, and an opportunity to be 23 heard. This is particularly important where immigration authorities seek revocation 24 based on mere allegations. In addition, the rules for the DACA program require that 25 detailed procedures be followed before a DACA grant can be terminated, including 26 27 28 enhancing-public-safety-interior-united-states.
26

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 29 of 36 Page ID #:29
1 notice and an opportunity to respond in most cases. Yet Defendants fail even to follow 2 their own procedures. 3 115. In addition, Defendants’ practice of automatically terminating DACA when 4 immigration authorities file a Notice to Appear—including based solely on presence 5 without admission to the United States or overstaying a visa—is arbitrary and 6 capricious and contrary to law in violation of the APA. An individual’s presence 7 without admission or overstay of a visa does not provide a relevant basis for 8 terminating DACA. Defendants’ practice of terminating DACA based on an NTA 9 charging presence without admission or overstaying a visa is irrational and arbitrary 10 because all DACA recipients are present in the country without lawful immigration 11 status; indeed that circumstance is what made it necessary for them to apply for 12 DACA in the first place. Further, the practice is contrary to the rules for the DACA 13 program, which do not allow for termination based merely on presence without 14 admission or overstaying a visa, and also do not permit automatic termination unless 15 certain procedures are followed. Indeed, Defendants’ own rules expressly provide that 16 individuals who are in removal proceedings, or who have received a final order of 17 removal, remain eligible to apply for and receive DACA. Defendants’ practice is also 18 unlawful because, in automatically revoking DACA based on an NTA, the agency 19 fails to consider the relevant facts and circumstances and exercise individualized 20 discretion in deciding whether to continue or revoke DACA. In addition, Defendants’ 21 practice improperly rests the decision of whether an individual’s DACA grant 22 continues to be warranted on the capricious charging decision of an individual 23 immigration agent. For these reasons and others, Defendants’ automatic termination of 24 DACA based on an NTA is unlawful. 25 116. Further, Defendants’ practice of revoking DACA for individuals who lack any 26 disqualifying criminal convictions without process is unlawful under the APA because 27 it reflects the agency’s reversal of its decision to grant DACA in the first place, 28 without providing a reasoned explanation for the change. The granting and renewal of
27

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 30 of 36 Page ID #:30

1 DACA reflects the agency’s reasoned determination that the individual is eligible for

2 and deserving of deferred action and work authorization. A revocation reflects an

3 abrupt change in the agency’s considered position, yet the agency’s practice is to

4 revoke DACA in these cases without providing a reasoned explanation that would

5 justify such a change.

6 117. Finally, Defendants’ reliance on the Kelly Memorandum to terminate DACA

7 for individuals who have committed no disqualifying conduct and continue to be

8 eligible for the DACA program is arbitrary and capricious and contrary to law in

9 violation of the APA because it violates Defendants’ own rules for the DACA

10 program, and is inconsistent with the express language of the Kelly Memorandum.

11 Indeed, applying DHS’ new enforcement priorities to DACA recipients would

12 eviscerate the DACA program as DACA recipients by definition lack a lawful

13 immigration status, and a large number of them have engaged in activities related to

14 their lack of status—such as entering the country without authorization or driving

15 without a license—that would make them an immigration enforcement priority were

16 the Memorandum to apply to them.

17

CLASS ALLEGATIONS

18 118. Together with IEIYC, representative Plaintiff Arreola brings this action

19 pursuant to Federal Rules of Civil Procedure 23(b)(2) on behalf of himself and a

20 nationwide class of all other persons similarly situated. The proposed class is defined

21 as follows:

22

All recipients of Deferred Action for Childhood Arrivals (“DACA”)

23

who have had or will have their DACA grant and employment

24

authorization revoked without notice or an opportunity to respond,

25

even though they have not been convicted of a disqualifying criminal

26

offense.

27 119. The class satisfies the requirements of Rule 23(a)(1) because it is so numerous

28 that joinder of all members is impracticable. Plaintiffs’ counsel alone are currently

28

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 31 of 36 Page ID #:31

1 aware of at least a dozen individuals across the country who have had their DACA

2 and work authorization revoked without any process, even though they lack a

3 disqualifying conviction. Moreover, many more such individuals will continue to have

4 their DACA and work authorization revoked without process in the future, making

5 joinder impracticable. Indeed, thousands of current DACA recipients nationwide are

6 subject to having their DACA and work authorization revoked pursuant to

7 Defendants’ policies and practices, without notice or an opportunity to respond to

8 Defendants’ allegations, even though they remain eligible for the program.

9 120. The class meets the commonality requirements of Federal Rule of Civil

10 Procedure 23(a)(2). The proposed class members are all subject to Defendants’ three

11 common practices or policies: (1) the revocation of DACA and work authorization

12 without notice, a reasoned explanation, and an opportunity to be heard prior to

13 revocation, or a process for reinstatement where the revocation is in error; (2) the

14 automatic termination of DACA grants and work permits based on the filing of a

15 Notice to Appear, even where the sole basis for the NTA is presence in the country

16 without admission or overstaying a visa; and (3) the termination of DACA grants and

17 work permits based on DHS’ new immigration enforcement priorities, even where an

18 individual has no disqualifying conviction. The lawsuit raises numerous questions of

19 law and fact common to members of the class, including but not limited to:

20

 Whether Defendants’ practice of revoking DACA without notice, a reasoned

21

explanation of the reason for such termination, or an opportunity to be heard is

22

arbitrary and capricious and contrary to law in violation of the APA;

23

 Whether Defendants’ practice of revoking DACA without notice, a meaningful

24

explanation of the reason for such termination, or an opportunity to be heard

25

violates the Due Process Clause.

26

 Whether Defendants’ practice of automatically terminating DACA when

27

immigration authorities file a Notice to Appear—including based solely on

28

29

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 32 of 36 Page ID #:32

1

presence without admission to the United States or overstaying a visa—is

2

arbitrary and capricious and contrary to law in violation of the APA.

3

 Whether Defendants’ practice of terminating DACA based on criminal history

4

or alleged conduct, even though the individual remains eligible for the program,

5

pursuant to the immigration enforcement priorities set forth in the Kelly

6

Memorandum, is arbitrary and capricious and contrary to law in violation of the

7

APA.

8 121. The proposed class meets the typicality requirements of Federal Rule of Civil

9 Procedure 23(a)(3) because the claims of the representative Plaintiff, Mr. Arreola, are

10 typical of the claims of the class. Mr. Arreola and the proposed class members are all

11 individuals who are or will have their DACA and employment authorization revoked

12 without notice or an opportunity to be heard even though they have not been convicted

13 of a disqualifying criminal offense, and are all subject to Defendants’ practice of

14 terminating DACA and employment authorization based on the filing of an NTA

15 and/or the Kelly Memorandum. Plaintiff Arreola and the proposed class also share the

16 same legal claims, which challenge the legality of these revocation policies and

17 practices under the APA and the Due Process Clause.

18 122. The proposed class meets the adequacy requirements of Federal Rule of Civil

19 Procedure 23(a)(4). Mr. Arreola seeks the same relief as the other members of the

20 class—namely, a declaration that Defendants’ policies and practices violate the APA

21 and Due Process Clause, and an order enjoining Defendants from terminating DACA

22 and work authorization on arbitrary grounds and in the absence of adequate

23 procedures. Moreover, Mr. Arreola has no interests adverse to those of the class as a

24 whole. In defending his own rights, Mr. Arreola will defend the rights of all proposed

25 class members fairly and adequately.

26 123. In addition, the proposed class is represented by counsel from the American

27 Civil Liberties Union Immigrants’ Rights Project and the American Civil Liberties

28 Union of Southern California. Counsel have extensive experience litigating class

30

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 33 of 36 Page ID #:33

1 action lawsuits and other complex cases in federal court, including civil rights

2 lawsuits on behalf of noncitizens.

3 124. The members of the class are readily ascertainable through Defendants’ records.

4 125. Finally, the proposed class satisfies Federal Rule of Civil Procedure 23(b)(2).

5 The immigration authorities have acted on grounds generally applicable to the class by

6 arbitrarily stripping class members of DACA and employment authorization, without

7 adequate procedures through which they can challenge those revocation decisions.

8 Thus, final injunctive and declaratory relief is appropriate with respect to the class as a

9 whole.

10

CLAIMS FOR RELIEF

11

First Claim

12

Administrative Procedure Act

13 126. The foregoing allegations are repeated and incorporated as though fully set

14 forth herein.

15 127. The Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, provides that

16 courts “shall . . . hold unlawful and set aside agency action” that is “arbitrary,

17 capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.

18 § 706(2)(A).

19 128. Defendants’ practice of terminating or revoking DACA grants and employment

20 authorization without notice, a reasoned explanation, an opportunity to be heard, or a

21 reinstatement procedure is arbitrary, capricious, and contrary to law in violation of the

22 APA because a DACA grant cannot be terminated without first providing a

23 meaningful process and complying with the DACA program rules, including the

24 SOPs.

25 129. Defendants’ practice of automatically terminating or revoking DACA and

26 employment authorization as a result of the filing of an NTA—including a NTA

27 solely charging removability for being present without admission or for having

28 overstayed a visa—is arbitrary, capricious, and contrary to law in violation of the

31

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 34 of 36 Page ID #:34

1 APA for multiple reasons, including that such an NTA fails to provide a reasoned

2 basis for terminating DACA; terminating on this basis is inconsistent with the rules of

3 the DACA program; the practice reflects a failure of the agency to exercise

4 individualized discretion; and it rests the termination decision on the arbitrary

5 charging decision of an ICE or CBP officer.

6 130. Defendants’ practice of terminating or revoking DACA based on non-

7 disqualifying criminal history or unsubstantiated allegations is arbitrary and capricious

8 and contrary to law in violation of the APA because it represents a departure from the

9 agency’s considered decision to grant DACA, without providing a reasoned

10 explanation for their change in position.

11 131. Defendants’ practice of relying on the Kelly Memorandum to terminate or

12 revoke DACA for individuals who have committed no disqualifying conduct and

13 continue to be eligible for the DACA program is arbitrary and capricious and contrary

14 to law in violation of the APA because it is contrary to Defendants’ own rules for the

15 DACA program, as well as the language of the Kelly Memorandum itself.

16

Second Claim

17

Due Process Clause of the Fifth Amendment to the U.S. Constitution

18 132. The foregoing allegations are repeated and incorporated as though fully set

19 forth herein.

20 133. The Due Process Clause of the Fifth Amendment to the U.S. Constitution

21 provides that “[n]o person shall be . . . deprived of life, liberty, or property, without

22 due process of law.” U.S. Const. amend. V.

23 134. Defendants have a policy and practice of revoking DACA recipients’ DACA

24 and work authorization without providing any process. Once DACA has been granted,

25 it cannot be taken away without adequate process. Defendants’ policy and practice

26 violates procedural due process because it fails to provide DACA recipients with

27 notice, a reasoned explanation for the revocation decision, and an opportunity to

28 respond, and to present arguments and evidence to demonstrate that the individual

32

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 35 of 36 Page ID #:35

1 continues to be eligible for and warrants the continuation of his or her DACA grant.

2 Defendants’ process also fails to provide for reinstatement in cases where the

3 revocation decision was in error.

4

PRAYER FOR RELIEF

5

IEIYC and Mr. Arreola, on behalf of himself and others similar situated, ask

6 this Court to grant the following relief:

7

a) Certify this case as a class action lawsuit as proposed herein, appoint Mr.

8

Arreola as class representative and the undersigned counsel as class counsel;

9

b) Declare Defendants’ DACA revocation practices and policies unlawful and

10

unconstitutional;

11 c) Enjoin Defendants from terminating class members’ and IEIYC DACA

12

recipients’ DACA grants and EADs absent a fair procedure—including

13

reasonable notice, a reasoned explanation, and an opportunity to be heard—

14

through which to challenge the termination consistent with the APA and the

15

Due Process Clause;

16 d) Enjoin Defendants from revoking the DACA grants and EADs of class

17

members and IEIYC DACA recipients based on the filing of an NTA charging

18

solely presence without admission to the United States or overstaying a visa, or

19

based on the enforcement priorities set forth in the Kelly Memorandum;

20 e) Vacate Defendants’ unlawful revocation of DACA and work authorization for

21

Mr. Arreola and class members, and enjoin Defendants from enforcing the

22

revocations;

23 f) In the alternative, order Defendants to temporarily reinstate DACA and work

24

authorization for Mr. Arreola and such class members pending a fair

25

procedure—including reasonable notice, a reasoned explanation, and an

26

opportunity to be heard—through which they may challenge the revocation

27

decision consistent with the APA and the Due Process Clause;

28

33

Case 5:17-cv-02048 Document 1 Filed 10/05/17 Page 36 of 36 Page ID #:36

1

g) Order Defendants to accept renewal applications from Mr. Arreola and class

2

members whose DACA protections were unlawfully revoked;

3

h) Grant an award of attorneys’ fees and costs; and

4

i) Grant any other and further relief that this Court may deem fit and proper.

5

6

Respectfully submitted,

7 Dated: October 5, 2017 8 9 10 11 12 13 14

/s/ Jennifer Chang Newell Jennifer Chang Newell Katrina L. Eiland Michael K. T. Tan David Hausman ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
Ahilan T. Arulanantham Dae Keun Kwon ACLU FOUNDATION OF SOUTHERN CALIFORNIA

15 Attorneys for Plaintiffs
16

17

18

19

20

21

22

23

24

25

26

27

28

34

 
 Case 5:17-cv-02048-MWF-SHK Document 16 Filed 10/18/17 Page 1 of 3 Page ID #:67

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)

13

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

14 INLAND EMPIRE – IMMIGRANT

) Case No. 5:17-cv-2048-MWF-SHK

15 YOUTH COLLECTIVE and JESUS

)

ALONSO ARREOLA ROBLES on behalf )

16 of himself and others similarly situated, ) )

17

Plaintiffs,

) ) PLAINTIFF JESUS ALONSO

18

v.

) ARREOLA ROBLES’S MOTION ) FOR A PRELIMINARY

19 ELAINE C. DUKE, Acting Secretary, U.S. ) INJUNCTION

Department of Homeland Security; JAMES )

20 McCAMENT, Acting Director, U.S. Citizenship and Immigration Services;
21 MARK J. HAZUDA, Director, Nebraska Service Center, U.S. Citizenship and
22 Immigration Services; SUSAN M. CURDA, Los Angeles District Director,

)

) ) ) ) )

Judge: Hon. Michael W. Fitzgerald Courtroom: 5A Hearing: November 20, 2017 Time: 10 a.m.

23 U.S. Citizenship and Immigration Services; ) THOMAS D. HOMAN, Acting Director, )

24 U.S. Immigration and Customs

)

Enforcement; DAVID MARIN, Los

)

25 Angeles Field Office Director, U.S.

)

Immigration and Customs Enforcement; )

26 KEVIN K. McALEENAN, Acting

)

Commissioner, U.S. Customs and Border )

27 Protection,

)

Defendants.

)

28

Case 5:17-cv-02048-MWF-SHK Document 16 Filed 10/18/17 Page 2 of 3 Page ID #:68
1 Ahilan T. Arulanantham (SBN 237841) aarulanantham@aclusocal.org
2 Michael Kaufman (SBN 254575) mkaufman@aclusocal.org
3 Dae Keun Kwon (SBN 313155) akwon@aclusocal.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
5 Los Angeles, CA 90017 Telephone: (213) 977-5232
6 Facsimile: (213) 977-5297 7
Attorneys for Plaintiffs 8
*Admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-MWF-SHK Document 16 Filed 10/18/17 Page 3 of 3 Page ID #:69

1

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:  PLEASE

2 TAKE NOTICE that on November 20, 2017, or at the nearest available date at which

3 counsel may be heard, in Courtroom 5A of the above-referenced court located at the

4 First Street Courthouse, 350 West First Street, Los Angeles, California 90012,

5 Plaintiff Jesús Alonso Arreola Robles will, and hereby does, move this Court to grant

6 a preliminary injunction vacating Defendants’ unlawful revocation of his grant of

7 Deferred Action for Childhood Arrivals (“DACA”) and related Employment

8 Authorization Document (“EAD”) or, in the alternative, order Defendants to

9 temporarily reinstate his DACA and EAD pending a fair procedure—including

10 reasonable notice, a reasoned explanation, and an opportunity to be heard—through

11 which he may challenge Defendants’ revocation decision consistent with the

12 Administrative Procedures Act and the Fifth Amendment’s Due Process Clause.

13

The Motion is based on this Notice of Motion; the accompanying Memorandum

14 of Points and Authorities, the supporting declarations, all pleadings and papers filed in

15 this action, and such additional papers and arguments as may be presented at or in

16 connection with the hearing.

17 Dated: October 18, 2017

Respectfully submitted,

18

/s/ Jennifer Chang Newell

19

Jennifer Chang Newell

20

Katrina L. Eiland Michael K. T. Tan

21

David Hausman

22

ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT

23

24

Ahilan T. Arulanantham

Michael Kaufman

25

Dae Keun Kwon

26

ACLU FOUNDATION

OF SOUTHERN CALIFORNIA

27

28

Attorneys for Plaintiff Jesús Alonso Arreola

Robles

1

Case 5:17-cv-02048-MWF-SHK Document 16-2 Filed 10/18/17 Page 1 of 28 Page ID #:72

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)

13

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

14

INLAND EMPIRE – IMMIGRANT

) Case No. 5:17-cv-2048-MWF-SHK

15 YOUTH COLLECTIVE and JESUS

)

ALONSO ARREOLA ROBLES on behalf )

16 of himself and others similarly situated, ) )

17

Plaintiffs,

) ) MEMORANDUM OF LAW IN

18

v.

) SUPPORT OF PLAINTIFF ) JESUS ALONSO ARREOLA

19 ELAINE C. DUKE, Acting Secretary, U.S. ) ROBLES’S MOTION FOR A

Department of Homeland Security; JAMES ) PRELIMINARY INJUNCTION

20 McCAMENT, Acting Director, U.S.

)

Citizenship and Immigration Services;

)

21 22 23

MARK J. HAZUDA, Director, Nebraska Service Center, U.S. Citizenship and Immigration Services; SUSAN M. CURDA, Los Angeles District Director, U.S. Citizenship and Immigration Services;

) ) ) ) )

Judge: Hon. Michael W. Fitzgerald Courtroom: 5A Hearing: November 20, 2017 Time: 10 a.m.

THOMAS D. HOMAN, Acting Director, )

24 U.S. Immigration and Customs

)

Enforcement; DAVID MARIN, Los

)

25 Angeles Field Office Director, U.S.

)

Immigration and Customs Enforcement; )

26 KEVIN K. McALEENAN, Acting

)

Commissioner, U.S. Customs and Border )

27 Protection,

)

Defendants.

)

28

Case 5:17-cv-02048-MWF-SHK Document 16-2 Filed 10/18/17 Page 2 of 28 Page ID #:73
1 Ahilan T. Arulanantham (SBN 237841) aarulanantham@aclusocal.org
2 Michael Kaufman (SBN 254575) mkaufman@aclusocal.org
3 Dae Keun Kwon (SBN 313155) akwon@aclusocal.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
5 Los Angeles, CA 90017 Telephone: (213) 977-5232
6 Facsimile: (213) 977-5297 7
Attorneys for Plaintiffs 8
*admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-MWF-SHK Document 16-2 Filed 10/18/17 Page 3 of 28 Page ID #:74

1 INTRODUCTION .................................................................................................. ii 2 BACKGROUND ......................................................................................................3

3

I. The DACA Program ...........................................................................3

4

II. Mr. Arreola’s Background.................................................................5

5 ARGUMENT..........................................................................................................10
6 I. MR. ARREOLA IS LIKELY TO SUCCEED ON THE MERITS..............10
7

8

A. DHS’ Automatic Termination of Mr. Arreola’s DACA

Based on the Issuance of an NTA Is Arbitrary and

9

Capricious in Violation of the APA.......................................10

10

B. DHS’ Automatic Revocation of Mr. Arreola’s DACA

and EAD Violates Its Own Procedures and

11

Mr. Arreola’s Procedural Due Process Rights. ...................17

12

1. DHS’ Revocation Without Notice Violates

Its Own Rules................................................................17

13

2. DHS’ Automatic Revocation Violates Mr.

14

Arreola’s Due Process Rights......................................18

II. MR. ARREOLA IS SUFFERING IRREPARABLE HARM. ......21

15

III. THE REMAINING FACTORS SUPPORT PRELIMINARY

16

RELIEF. .............................................................................................22

17 CONCLUSION ......................................................................................................23
18

19

20

21

22

23

24

25

26

27

28

i

Case 5:17-cv-02048-MWF-SHK Document 16-2 Filed 10/18/17 Page 4 of 28 Page ID #:75

1 Cases

2 Alaska Airlines, Inc. v. Long Beach, 951 F.2d 977 (9th Cir. 1992).....................................................................................19
3 Arizona Dream Act Coalition v. Brewer,

4 757 F.3d 1053 (9th Cir. 2014).......................................................................10, 21, 22 Bell v. Burson,
5 402 U.S. 535 (1971) ..................................................................................................18

6 Chalk v. U.S. Dist. Ct., 840 F.2d 701 (9th Cir.1988)......................................................................................22
7 Cleveland Bd. of Educ. v. Loudermill,

8 470 U.S. 532 (1985) ..................................................................................................21

Colotl v. Kelly, 9 No. 17-cv-1670, 2017 WL 2889681 (N.D. Ga. June 12, 2017)..................2, 4, 17, 22

10 Delgadillo v. Carmichael,

332 U.S. 388 (1947) ..................................................................................................14 11 Enyart v. Nat’l Conference of Bar Exam’rs, Inc.,

12 630 F.3d 1153 (9th Cir. 2011) ...................................................................................21

FCC v. Fox Television Stations, Inc., 13 556 U.S. 502 (2009) ............................................................................................15, 16

14 Gonzalez Torres v. DHS,

No. 17-cv-1840, 2017 WL 4340385 (S.D. Cal. Sept. 29, 2017)........................passim 15 Greenwood v. Fed. Aviation Admin.,

16 28 F.3d 971 (9th Cir. 1994).......................................................................................19

17

Jones v. City of Modesto, 408 F. Supp. 2d 935 (E.D. Cal. 2005).......................................................................19

18 Judulang v. Holder,

19

565 U.S. 42 (2011) ...............................................................................................11,14 Mathews v. Eldridge,

20 424 U.S. 319 (1976) ......................................................................................18, 19, 20

21

Matter of Quintero, 18 I. & N. Dec. 348 (BIA 1982)................................................................................12

22 Melendres v. Arpaio,

23

695 F.3d 990 (9th Cir. 2012).....................................................................................22 Morrissey v. Brewer,

24 408 U.S. 471 (1972) ............................................................................................18, 19

25

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).....................................................................................................15

26 Nnebe v. Daus,

27

644 F.3d 147 (2d Cir. 2011) ......................................................................................18 Organized Vill. of Kake v. U.S. Dep’t of Agric.,

28 795 F.3d 956 (9th Cir. 2015) ................................................................................16,17

ii

Case 5:17-cv-02048-MWF-SHK Document 16-2 Filed 10/18/17 Page 5 of 28 Page ID #:76

1

Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) .................................................................................................... 3

2 Singh v. Bardini,

3

No. 09-cv-3382, 2010 WL 308807 (N.D. Cal. Jan. 19, 2010)..................................18 Singh v. Vasquez,

4 No. 08-cv-1901, 2009 WL 3219266 (D. Ariz. Sept. 30, 2009) ................................ 20

5

Singh v. Vasquez, 448 F. App’x 776 (9th Cir. 2011)..............................................................................20

6 Villa-Anguiano v. Holder,

7 727 F.3d 873 (9th Cir. 2013) ...............................................................................14, 20 Winter v. Nat. Res. Def. Council,

8 555 U.S. 7 (2008) ......................................................................................................10

9

10 Statutes

11 5 U.S.C. § 706(2) .....................................................................................................11,15
12 8 U.S.C. § 1182(a)(6)(A)(i) ............................................................................................ 8 8 U.S.C. § 1229a(b) ........................................................................................................ 6
13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

iii

Case 5:17-cv-02048-MWF-SHK Document 16-2 Filed 10/18/17 Page 6 of 28 Page ID #:77

1

INTRODUCTION

2

Plaintiff Jesús Alonso Arreola Robles is a 23-year-old resident of the Los

3 Angeles area who has lived in the United States since he was a year old. Mr. Arreola

4 was granted permission three times to live and work in the United States through the

5 Deferred Action for Childhood Arrivals (“DACA”) program—in 2012, 2014, and

6 2016. Mr. Arreola used his DACA to work two jobs to help support his family—one

7 as a cook at the famed Chateau Marmont in West Hollywood, and one as a driver for

8 Uber and Lyft. Mr. Arreola’s earnings helped support his parents, both of whom are

9 lawful permanent residents, and his three U.S. citizen sisters, one of whom has

10 significant disabilities.

11

In March 2017, the government abruptly terminated Mr. Arreola’s DACA grant

12 and work permit, without notice, a reasoned explanation, or any opportunity to contest

13 the decision. The government revoked Mr. Arreola’s DACA even though Mr. Arreola

14 does not have a single criminal conviction—or even a criminal charge—on his record

15 and he continues to meet all of the DACA eligibility requirements. Mr. Arreola’s

16 DACA was revoked after he was arrested by U.S. Customs and Border Patrol (“CBP”)

17 while he was working as a driver—and CBP mistakenly believed he had been

18 involved in alien smuggling. CBP detained Mr. Arreola and initiated removal

19 proceedings against him by issuing him a “Notice to Appear.” However, shortly

20 afterward, an immigration judge rejected the government’s allegation and concluded

21 that CBP had been mistaken, ordering Mr. Arreola released on bond. The government

22 nonetheless subsequently terminated Mr. Arreola’s DACA and work permit, without

23 considering its own immigration judge’s findings. In fact, the government has

24 indicated that it terminated Mr. Arreola’s DACA automatically—without any

25 reasoning whatsoever—because CBP had issued Mr. Arreola a Notice to Appear,

26 which charged him as removable for being present in the United States without

27 admission. However, under the terms of the DACA program, neither placement in

28 removal proceedings nor the lack of a lawful immigration status disqualifies an

1

Case 5:17-cv-02048-MWF-SHK Document 16-2 Filed 10/18/17 Page 7 of 28 Page ID #:78

1 individual from the DACA program. Indeed, as with all DACA recipients, Mr.

2 Arreola’s lack of a lawful immigration status is the reason he applied for DACA in the

3 first place, and DACA was expressly made available to noncitizens in removal

4 proceedings.

5

The government’s revocation of Mr. Arreola’s DACA and employment

6 authorization is arbitrary, capricious, contrary to law, and conflicts with its own rules,

7 in violation of the Administration Procedure Act (“APA”). The revocation also

8 violates the Fifth Amendment’s Due Process Clause. The government’s actions have

9 caused Mr. Arreola ongoing irreparable harm: he lost his job and his ability to help

10 support his family.

11

Two different federal courts have recently issued preliminary injunctions

12 against the government’s revocation of individual DACA grants without process. See

13 Gonzalez Torres v. DHS, No. 17-cv-1840, 2017 WL 4340385, at *7 (S.D. Cal. Sept.

14 29, 2017); Colotl v. Kelly, No. 17-cv-1670, 2017 WL 2889681, at *13 (N.D. Ga. June

15 12, 2017). These decisions reinforce not only that Mr. Arreola has a high likelihood of

16 success on the merits of his claims, but also that the government’s termination of

17 DACA causes serious irreparable harm that warrants preliminary injunctive relief.

18

Issuance of a preliminary injunction is particularly urgent, not only because of

19 the ongoing serious harms to Mr. Arreola, but because his terminated DACA grant

20 would have expired in August 2018. Thus, without preliminary relief enjoining the

21 government’s unlawful termination of his DACA and work permit, Mr. Arreola may

22 lose all opportunity for a meaningful remedy.

23

For these reasons, and because Mr. Arreola satisfies the other injunction

24 factors, Mr. Arreola respectfully asks this Court to grant a preliminary injunction and

25 vacate Defendants’ unlawful revocation of his DACA and work permit or, in the

26 alternative, order Defendants to temporarily reinstate his DACA and work permit

27 pending a fair procedure—including notice, a reasoned explanation, and an

28 opportunity to be heard.

2

Case 5:17-cv-02048-MWF-SHK Document 16-2 Filed 10/18/17 Page 8 of 28 Page ID #:79

1

BACKGROUND

2

I. The DACA Program

3

Deferred action is a longstanding form of administrative action by which the

4 federal Executive Branch decides, for humanitarian or other reasons, to refrain from

5 seeking a noncitizen’s removal and to authorize his continued presence in the United

6 States. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 484 (1999). On

7 June 15, 2012, the Secretary of the Department of Homeland Security (“DHS”)

8 announced DACA—a deferred action program specifically for young immigrants who

9 came to the United States as children and are present in the country without formal 10 immigration status.1 As former President Barack Obama explained, these young

11 immigrants “are Americans in their heart, in their minds, in every single way but one: 12 on paper.”2 Similarly, President Trump has described DACA recipients as “absolutely

13 incredible kids,” who have “worked here” and “gone to school here,” and he publicly 14 stated that they “should rest easy” about being permitted to remain in the country.3

15

Under DACA, young immigrants who entered the United States as children

16 who meet specified educational and residency requirements, and who pass extensive

17 criminal background checks, are eligible to receive deferred action. Napolitano Memo

18 at 1-2. These enumerated eligibility criteria include the requirements that DACA 19 recipients not have been convicted of a felony, significant misdemeanor,4 or three or

20

21

1 Declaration of Dae Kuen Kwon (“Kwon Decl.”) ¶ 10, Ex. 9 at 2 (Janet Napolitano, Memorandum on Exercising Prosecutorial Discretion with Respect to

22 Individuals Who Came to the United States as Children, (June 15, 2012) (“Napolitano

23

Memo”). 2 Kwon Decl. ¶ 11, Ex. 10 at 2.

24 3 Kwon Decl. ¶ 12, Ex. 11 at 2; Kwon Decl. ¶ 18, Ex. 17 at 30; Kwon Decl. ¶ 19,

25

Ex. 18 at 16. 4 A significant misdemeanor is a conviction for an offense of “domestic violence;

26 sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug

27

distribution or trafficking; or, driving under the influence; or . . . [a conviction] for which the individual was sentenced to time in custody of more than 90 days.” Kwon

28 Decl. ¶ 20, Ex. 19 at 20 (U.S. Citizenship and Immigration Services, Frequently

3

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1 more other misdemeanors. Id.

2

A predicate for eligibility for the DACA program is that the individual must

3 lack a lawful immigration status (because he or she is present without admission, or

4 overstayed a visa). Kwon Decl. ¶ 21, Ex. 20 at 44 (DHS DACA Standard Operating

5 Procedures). In addition, the fact that a noncitizen is, has been, or will be in removal

6 proceedings does not disqualify the individual from the program. Napolitano Memo at

7 2.

8

Deferred action through DACA is provided for a renewable period of two years,

9 and DACA recipients may obtain an Employment Authorization Document (“EAD”)

10 and a Social Security Number. See id. A decision to grant or deny a deferred action

11 application or renewal is independent of any proceedings in immigration court; a

12 noncitizen who is in removal proceedings can apply for DACA separately and

13 simultaneously. Id. See also, e.g., Gonzalez Torres, 2017 WL 4340385, at *6 (noting

14 that “an immigration judge has no jurisdiction to reinstate DACA status, or to

15 authorize an application for renewal of DACA status”). The United States Citizenship

16 and Immigration Services (“USCIS”) is the division of DHS responsible for

17 evaluating requests for DACA. DHS’ DACA Standard Operating Procedures

18 (“DACA SOPs”) set forth the procedures that the agency must follow in adjudicating

19 and granting DACA applications, as well as in terminating DACA and EADs granted

20 through the program. Kwon Decl. ¶ 21, Ex. 20 at 16 (“This SOP is applicable to all

21 Service Center personnel performing adjudicative and clerical functions or review of

22 those functions. Personnel outside of Service Centers performing duties related to

23 DACA processing will be similarly bound by the provisions of this SOP.”); id. (“This

24 SOP describes the procedures Service Centers are to follow when adjudicating DACA

25 requests.”). See also Colotl, 2017 WL 2889681, at *4 (“The SOP states that . . .

26 procedures to be followed are not discretionary.”); Gonzalez Torres, 2017 WL

27 Asked Questions about Deferred Action for Childhood Arrivals (updated Apr. 25, 28 2017)).

4

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1 4340385, at *3.

2

On February 20, 2017, DHS Secretary John Kelly issued a memorandum setting

3 forth DHS’ immigration enforcement priorities.5 Although that memorandum

4 rescinded other existing DHS guidance, it expressly kept the DACA program in 5 place.6

6

On September 5, 2017, DHS announced that it was rescinding the DACA

7 program and winding it down.7 Although the program is soon ending, DHS officials

8 have confirmed that the same program rules continue to apply until it ends.8

9

II. Mr. Arreola’s Background

10

Mr. Arreola was born in Mexico and was brought to the United States by his

11

12 5 Kwon Decl. ¶ 13, Ex. 12 at 2 (Memorandum from John Kelly, Enforcement of

the Immigration Laws to Serve the National Interest (Feb. 20, 2017)). 13 6 See id.; accord Kwon Decl. ¶ 14, Ex. 13 at 9 (U.S. Department of

14 Homeland Security, Q&A: DHS Implementation of the Executive Order

on Enhancing Public Safety in the Interior of the United States (Feb. 21, 15 2017)) (“Q22: Do these memoranda affect recipients of Deferred Action for

16 Childhood Arrivals (DACA)? A22: No.”).

7 Kwon Decl. ¶ 15, Ex. 14 (Memorandum from Acting Secretary Elaine C. Duke, 17 Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial

18 Discretion with Respect to Individuals Who Came to the United States as Children”

(Sept. 5, 2017)). 19 8 See Kwon Decl. ¶ 16, Ex. 15 at 15 (Press Briefing by Press Secretary Sarah

20 Sanders and Homeland Security Advisor Tom Bossert, 9/8/2017, #11, The White

21

House, Office of the Press Secretary (explaining that “[d]uring this six-month time, there are no changes that are being made to the program at this point”); see also Kwon

22 Decl. ¶ 17, Ex. 16 (Testimony of Michael Dougherty, Assistant Secretary of DHS,

23

Committee of the Judiciary, Oversight of the Administration’s Decision to End Deferred Action for Childhood Arrivals (Oct. 3, 2017), https://www.c-

24 span.org/video/?435059-1/trump-administration-officials-testify-decision-rescind-

25

daca at 56:46) (stating, in response to Senator Feinstein’s question about the status of DACA recipients during the phasing out of the program: “We rely on guidance that

26 was put in place in 2012 when the DACA program was instantiated. That’s available

27

on USCIS’s website and will tell you what the priorities are for Immigration Customs enforcement and what they are for the Department at large. Those priorities have not

28 changed.”).

5

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1 parents in 1995, when he was one year old. Declaration of Jesús Alonso Arreola

2 Robles (“Arreola Decl.”) ¶ 1. They entered without being inspected at a border

3 crossing. Id. He has lived in the United States continuously since his arrival. Mr.

4 Arreola attended and graduated from Los Angeles-area elementary, middle, and high

5 schools. Id. ¶ 2. He also attended a year of college at Glendale Community College,

6 but could not continue his studies as he had to work full-time to help support his

7 family. Id.

8

Mr. Arreola has three younger sisters, who are all U.S. citizens by birth. Id. ¶ 3.

9 He also has a long-term partner who is a U.S. citizen and is expecting a child in

10 December. Id. His oldest sister is seventeen years old. Id. ¶ 4. Since birth, she has had

11 several disabilities—including progeria, autism, Down’s syndrome, and diabetes—

12 and she requires special care, around the clock. Id. Mr. Arreola has played a critical

13 role in caring for her, including checking her blood; giving her insulin shots; helping

14 her move around the house; and driving her to the hospital when she needs medical

15 care. Id.

16

Mr. Arreola’s parents now have lawful permanent resident status, having

17 obtained immigration relief in the form of cancellation of removal under 8 U.S.C.

18 § 1229a(b). Id. ¶ 6. Mr. Arreola is the only member of his family without permanent

19 lawful immigration status in the United States. Id. ¶ 7. America is the only place he

20 can call home. Id. ¶ 1.

21

Mr. Arreola’s Grant and Renewals of DACA Status

22

After rigorous vetting, DHS granted Mr. Arreola DACA in 2012, 2014, and

23 again in 2016. Id. ¶¶ 10-11; Kwon Decl. ¶¶ 5-6, 23-25, Exs. 4-5, 22-25. Mr. Arreola’s

24 2016 approval notice provides that “[u]nless terminated, this decision to defer removal

25 action will remain in effect for 2 years” and is valid to August 19, 2018. Kwon Decl.

26 ¶ 25, Ex. 24. The approval notice informed Mr. Arreola that his deferred action could

27 be terminated if he engaged in “[s]ubsequent criminal activity.” Id.

28

6

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1

Since he was granted DACA, Mr. Arreola has used his EAD to help his family

2 by working two jobs. Starting in approximately 2013, he worked at the Chateau

3 Marmont in West Hollywood, California, first as a dishwasher and then as a cook.

4 Arreola Decl. ¶¶ 13-14. In 2016, he began working as a driver for Uber and Lyft to

5 make extra money. Id. ¶ 15. Mr. Arreola shared his earnings with his family and paid

6 half the rent in his family home. Id. ¶ 16.

7

Mr. Arreola has never been charged with or convicted of any crime. Id. ¶ 17.

8

Mr. Arreola’s Arrest by Immigration Authorities

9

As a driver, Mr. Arreola regularly provided rides to customers for a fee, both

10 through the Uber and Lyft apps and through referrals from friends. Id. ¶ 18. In

11 February 2017, a friend asked Mr. Arreola to drive his cousin from the Los Angeles

12 area to the San Diego area to pick up the friend’s uncle and another cousin, and bring

13 them back to the Los Angeles area. Id. The friend offered to pay Mr. Arreola $600 for

14 the long-distance ride. Id.

15

Mr. Arreola agreed and picked up his customer—his friend’s cousin—near

16 North Hollywood. Id. ¶ 19. Mr. Arreola had never previously met the customer. Id.

17 ¶ 26. The customer entered an address near San Diego into Mr. Arreola’s GPS and

18 told him to drive to that location. Id. ¶ 19. Mr. Arreola was unfamiliar with the San

19 Diego area and so relied on the GPS instructions to route him to the customer’s

20 destination. Id. ¶ 20.

21

After driving for about three and a half hours, Mr. Arreola and his customer

22 reached the destination. Id. After the customer exited the car to get his uncle and

23 cousin, the customer encountered a CBP agent who arrested him. Id. ¶¶ 21-23.

24 Although Mr. Arreola informed the CBP agent that he had valid DACA status and had

25 permission to live and work in the United States, the CBP agent also arrested Mr.

26 Arreola, apparently suspecting that he was aiding in smuggling undocumented

27 immigrants into the United States. Id. ¶ 23. However, Mr. Arreola did not know the

28 immigration status of his friend’s uncle and cousin whom he was supposed to pick up.

7

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1 Id. ¶ 27. As a driver, it was not Mr. Arreola’s practice to ask about the immigration

2 status of his customers. Id.

3

CBP detained Mr. Arreola and issued him a Notice to Appear (“NTA”),

4 initiating removal proceedings against him and charging him as removable because he

5 was present in the United States without admission under the Immigration and

6 Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). Kwon Decl.

7 ¶ 4, Ex. 3. Mr. Arreola was never charged with any crime or any smuggling-related

8 ground of removability. Arreola Decl. ¶ 29.

9

On March 2, 2017, Mr. Arreola received a bond hearing before an immigration

10 judge. Id.¶ 32. During the bond hearing, the DHS attorney suggested that Mr. Arreola

11 was a danger to the community because he attempted to smuggle undocumented

12 immigrants into the United States. Kwon Decl. ¶ 7, Ex. 6 at 52, 54. However, Mr.

13 Arreola testified, just as he had told CBP after he was arrested, that he regularly

14 worked as a driver, id. at 8-9, and that a friend offered him $600 to pick up his

15 friend’s uncle and cousin near the San Diego area and drive them back to the Los

16 Angeles area, id. at 12-16. He further testified that he had no knowledge of the

17 immigration status of the individuals he was supposed to pick up, id. at 16-17, 38, and

18 denied the DHS attorney’s allegations that he was involved with smuggling

19 unauthorized persons into the United States, id. at 38-39.

20

The immigration judge rejected the DHS attorney’s arguments, found Mr.

21 Arreola credible, determined that he was not a flight risk or danger to the community,

22 and ordered Mr. Arreola’s release on $2,500 bond. Id. at 58-59. The immigration

23 judge stated that he was “not going to accept the conclusions” by the CBP agents that

24 Mr. Arreola was involved in “smuggling aliens for financial gains.” Id. at 58. The

25 immigration judge observed that Mr. Arreola is “an Uber and Lyft driver. He’s in

26 Hollywood, some three, three and a half hours away. Somebody is going to pay him to

27 go all that way and come back.” Id. The immigration judge added that the CBP agents

28 made the incorrect “assumption that [Mr. Arreola] was being paid to smuggle” the

8

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1 uncle and cousin “as opposed to pick up a fare, what would have been a lucrative

2 fare.” Id.

3

Mr. Arreola posted bond and was released from immigration detention. He

4 spent a total of 21 days in detention. Arreola Decl. ¶¶ 35-36. He has been living in the

5 Los Angeles area since being released. Id. ¶ 36.

6

7

Termination of Mr. Arreola’s DACA and Work Permit

8

After his release, on March 6, 2017, Mr. Arreola received a Notice of Action

9 from USCIS notifying him that his DACA and EAD were “terminated automatically 10 as of the date [his] NTA was issued.”9 Mr. Arreola was never provided with any prior

11 notice that USCIS intended to terminate his DACA and EAD, a reasoned explanation

12 for this decision, or any opportunity to respond to such a notice or otherwise contest

13 the termination of his DACA or EAD. Arreola Decl. ¶ 38.

14

On March 17, 2017, Mr. Arreola’s counsel submitted a letter to USCIS

15 requesting that USCIS reopen and reconsider the termination of his DACA and EAD.

16 Kwon Decl. ¶ 26, Ex. 25. On May 9, 2017, USCIS declined to revisit the issue.

17 USCIS stated that, among other things, that “when [U.S. Immigration and Customs

18 Enforcement (“ICE”)] issues and serves the Notice to Appear on the DACA requestor

19 during the DACA validity period, that action alone terminates the DACA. USCIS will

20 send a Notice of Action and update our system as Deferred Action Terminated but that

21 is only as a follow up to ICE’s action of termination.” Kwon Decl. ¶ 3, Ex. 2.

22 However, Mr. Arreola’s NTA was issued by CBP, not ICE. Kwon Decl. ¶ 4, Ex. 3.

23

Mr. Arreola has suffered and continues to suffer significant and irreparable

24 harm as a result of Defendants’ actions. After Mr. Arreola was stripped of his DACA

25 and EAD, he lost his job with Chateau Marmont, and he is no longer able to work as a

26

27

9 Kwon Decl. ¶ 9, Ex. 8 (U.S. Citizenship and Immigration Services, Notice of Action to Jesus Alonso Arreola Robles Re I-821D, Deferred Action for Childhood

28 Arrivals (Mar. 6, 2017)).

9

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1 driver for Lyft or Uber. Arreola Decl. ¶ 40. Losing his DACA and EAD has been

2 especially difficult for Mr. Arreola because he and his partner are expecting their first

3 child later this year. Defendants’ actions have prevented him from saving for his

4 family and planning for their future. Id.

5

ARGUMENT

6

This Court should issue a preliminary injunction. To prevail, Plaintiff must

7 show: (1) a likelihood of success on the merits, (2) likely irreparable harm in the

8 absence of such relief, (3) that the balance of equities tips in his favor, and (4) that an

9 injunction is in the public interest. Arizona Dream Act Coalition v. Brewer, 757 F.3d

10 1053, 1060 (9th Cir. 2014) (citing Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20

11 (2008)). Mr. Arreola satisfies all four factors.

12 I. MR. ARREOLA IS LIKELY TO SUCCEED ON THE MERITS.

13

Mr. Arreola is likely to succeed on his APA and procedural due process claims.

14 Defendants’ revocation decision was arbitrary and capricious in violation of the APA.

15 Defendants automatically terminated Mr. Arreola’s DACA on the basis of an NTA

16 issued by CBP, despite the Napolitano Memorandum’s explicit provision that

17 noncitizens in removal proceedings—and even noncitizens with final orders of

18 removal—remain eligible for DACA. Moreover, the agency reversed its previous

19 position on Mr. Arreola’s eligibility for DACA without explanation and without

20 accounting for the serious reliance interests at stake. Defendants’ automatic

21 termination of Mr. Arreola’s DACA and EAD was also arbitrary and capricious

22 because they did not follow the agency’s own termination procedures, as dictated by

23 the DACA SOPs. Finally, Defendants’ actions also violated the Due Process Clause

24 by failing to provide Mr. Arreola with notice and a meaningful process by which to

25 contest the termination.

26

A. DHS’ Automatic Termination of Mr. Arreola’s DACA Based on the

27

Issuance of an NTA Is Arbitrary and Capricious in Violation of the APA.

28

Defendants have indicated that they terminated Mr. Arreola’s DACA based on

10

Case 5:17-cv-02048-MWF-SHK Document 16-2 Filed 10/18/17 Page 16 of 28 Page ID #:87

1 the issuance of an NTA—one that charges Mr. Arreola with being removable because

2 of presence without admission in the United States. For multiple reasons, that decision

3 was arbitrary and capricious and contrary to law in violation of the APA. 5 U.S.C.

4 § 706(2)(A).

5

The Supreme Court has made clear that under § 706(2)(A), “agency action must

6 be based on non-arbitrary, ‘relevant factors.’” Judulang v. Holder, 565 U.S. 42, 55

7 (2011). Judulang emphasized that “courts retain a role, and an important one, in

8 ensuring that agencies have engaged in reasoned decisionmaking.” Id. at 53. “When

9 reviewing an agency action, we must assess, among other matters, ‘whether the

10 decision was based on a consideration of the relevant factors and whether there has

11 been a clear error of judgment.’” Id. (citation and internal punctuation omitted).

12

In Judulang, the Supreme Court considered a Board of Immigration Appeals

13 (“BIA”) rule governing eligibility for a form of relief—suspension of deportation—

14 which was not provided for in the INA, and was therefore entirely discretionary. 565

15 U.S. at 46-47. Although the relief was ultimately within the agency’s discretion, the

16 Court made clear that the rules applied by the agency with respect to that relief must

17 still reflect reasoned decisionmaking. The Court emphasized that “[a] method for

18 disfavoring deportable aliens . . . that neither focuses on nor relates to an alien’s

19 fitness to remain in the country—is arbitrary and capricious.” Id. at 55. The Supreme

20 Court ultimately invalidated the BIA rule because it was based on “a matter irrelevant

21 to the alien’s fitness to reside in this country,” and concluded that the BIA therefore

22 “has failed to exercise its discretion in a reasoned manner.” Id. at 53.

23

Here, DHS’ March 6, 2017 decision to terminate Mr. Arreola’s DACA and

24 EAD “automatically” because an NTA was issued against him charging presence

25 without admission fails this test for multiple reasons. First, and fundamentally, DHS’

26 decision was arbitrary and irrational because a noncitizen’s deportability for presence

27 without admission to the United States does not provide a relevant basis for

28 terminating a DACA grant. The Napolitano Memorandum and DACA SOPs

11

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1 enumerate the relevant considerations for a DACA grant, and none of those rules

2 suggests that the fact that a noncitizen is subject to removal because he is present

3 without admission, and therefore lacks a lawful immigration status, is a basis for

4 denial or termination. Indeed, the DACA rules indicate the opposite—the fact that a

5 person is present without admission is irrelevant. See, e.g., DACA SOPs at 44. This is

6 because the lack of a lawful immigration status in the United States is a predicate for

7 eligibility for DACA and is a fact that is therefore true of every DACA recipient. Id.

8 Because the lack of a lawful immigration status is a factor common to every single

9 DACA recipient, and is wholly irrelevant to whether an individual is eligible for

10 DACA, the issuance of an NTA charging presence without admission does not

11 provide a reasoned basis for terminating DACA.

12

Second, the program rules make clear that noncitizens who are, have been, or

13 will be placed in removal proceedings continue to be eligible for DACA. The rules

14 thus reinforce the conclusion that an NTA based on presence without admission to the

15 United States does not provide a reasoned basis for termination. The Napolitano

16 Memorandum itself requires that the eligibility “criteria are to be considered whether

17 or not an individual is already in removal proceedings or subject to a final order of

18 removal.” Napolitano Memo at 2. See also Kwon Decl. ¶ 17, Ex. 16 (Dougherty

19 Statement) (“The 2012 memorandum also made clear that individuals could be

20 considered for DACA even if they were already in removal proceedings or were

21 subject to a final removal order.”). Implementing this command, the SOPs provide

22 that “[i]ndividuals in removal proceedings may file a DACA request.” DACA SOPs at

23 71. Indeed, even individuals with final removal orders can be granted DACA. See,

24 e.g., id. at 74 (providing that individuals with final removal orders may be considered

25 for DACA); id. at 75 (providing that an individual who has been removed after

26 issuance of a final removal order, re-entered, and is subject to reinstatement of that

27 removal order continues to be eligible for DACA). Cf. Matter of Quintero, 18 I. & N.

28 Dec. 348, 350 (BIA 1982) (explaining in context of removal proceedings that “the

12

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1 respondent can request deferred action status at any stage in the proceeding”). Further,

2 the DACA SOPs provide that if an NTA is issued against a DACA applicant while his

3 application is pending with USCIS—even if the NTA is based on a public safety

4 concern—USCIS should “proceed with adjudication . . . , taking into account the basis

5 for the NTA.” See Kwon Decl. ¶ 22, Ex. 21 (Revised Guidance for the Referral of

6 Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and

7 Removable Aliens (Nov. 7, 2011)) , at 4 ( “ICE’s issuance of an NTA allows USCIS

8 to proceed with adjudication . . . , taking into account the basis for the NTA”); DACA

9 SOPs at 93 (providing that if ICE accepts a case referred to it by USCIS during the

10 DACA application process, then USCIS “will follow the standard protocols outlined

11 in the November 7, 2011 NTA memorandum”).

12

In such cases, USCIS is required to review all relevant circumstances, and may

13 grant the DACA request “[i]f a DACA requestor has been placed in proceedings on a

14 ground that does not adversely impact the exercise of prosecutorial discretion.”

15 DACA SOPs at 75. See also id. at 74 (providing that for DACA applicants with final

16 removal orders, “[f]inal removal orders . . . should be reviewed carefully to examine

17 the underlying grounds for removal”). Given that the filing of an NTA against a

18 DACA applicant, or even the issuance of a final order of removal against a DACA

19 applicant, does not render noncitizens ineligible for the program, DHS’ decision to

20 find Mr. Arreola ineligible on this basis and automatically terminate his DACA is

21 arbitrary and irrational.

22

Third, DHS’ decision to automatically and categorically terminate Mr.

23 Arreola’s DACA is arbitrary and capricious because the agency failed, despite Mr.

24 Arreola’s continued eligibility for the program, to consider the relevant facts and

25 circumstances and exercise its individualized discretion. This failure to consider Mr.

26 Arreola’s specific circumstances undermines the very purpose of the DACA program.

27 See Napolitano Memorandum at 2 (explaining that the purpose of DACA was to

28 ensure that “[o]ur Nation’s immigration laws . . . . are not designed to be blindly

13

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1 enforced without consideration given to the individual circumstances of each case”).

2 The agency’s failure to exercise its individualized discretion is also inconsistent with

3 its own rules, as described above. Those rules make clear that if someone is the

4 subject of an NTA, USCIS should consider all of the relevant circumstances,

5 including the ground for removal charged in the NTA, to determine whether DACA is

6 appropriate or whether the individual is disqualified. The DACA rules also make clear

7 that when the ground in the NTA does not adversely impact a DACA grant—

8 including, presumably, when the ground is one that all or most DACA recipients

9 could be charged with—the individual is not disqualified from DACA. DHS’ failure

10 to consider all the relevant circumstances and exercise its discretion is all the more

11 problematic where, as here, prior to the decision to terminate DACA, an immigration

12 judge had already considered and rejected the government’s allegations that Mr.

13 Arreola had committed any criminal conduct. Cf. Villa-Anguiano v. Holder, 727 F.3d

14 873, 881-82 (9th Cir. 2013) (explaining that “[d]ue process . . . entitles an unlawfully

15 present alien to consideration of issues relevant to the exercise of an immigration

16 officer’s discretion,” including “new, relevant circumstances [that] had arisen”).

17

Fourth, USCIS’s decision to terminate DACA automatically based on the filing

18 of an NTA was arbitrary and capricious because it left the question of whether Mr.

19 Arreola continued to warrant a DACA grant and EAD solely up to a CBP officer’s

20 charging decision in issuing an NTA. In Judulang, the Supreme Court emphasized

21 that an additional reason why the BIA’s rule was impermissibly arbitrary was that

22 under the rule, whether a noncitizen would be granted discretionary relief may “rest

23 on the happenstance of an immigration official’s charging decision.” 565 U.S. at 57.

24 See also id. at 58 (recognizing “the high stakes for an alien who has long resided in

25 this country,” and noting that the Court has “reversed an agency decision that would

26 make his right to remain here dependent on circumstances so fortuitous and

27 capricious”) (citing Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947)) (internal

28 quotation marks omitted). The same is true here.

14

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1

Finally, in terminating Mr. Arreola’s DACA grant and EAD and finding that

2 the NTA automatically rendered him ineligible for DACA, DHS departed from its

3 prior position without “a reasoned analysis for the change,” in violation of the APA.

4 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983).

5 See also 5 U.S.C. § 706(2). An agency may depart from its prior decision, but it is

6 black letter law that if it does so, it “is obligated to supply a reasoned analysis for the

7 change.” State Farm, 463 U.S. at 42. See also FCC v. Fox Television Stations, Inc.,

8 556 U.S. 502, 515 (2009) (“[T]he agency must show that there are good reasons for

9 the new policy.”).

10

DHS’ settled position—spanning about half a decade, from 2012 to 2017, was

11 that Mr. Arreola warrants a grant of DACA and an EAD. In 2012, 2014, and again in

12 2016, DHS carefully evaluated Mr. Arreola’s applications for DACA and repeatedly

13 determined that he was eligible for a grant of deferred action and an EAD. Arreola

14 Decl. ¶¶ 10-11; Kwon Decl. ¶¶ 5-6, 23-25, Exs. 4-5, 22-24. The agency reached this

15 conclusion after evaluating Mr. Arreola’s school records and other circumstances, as

16 well as conducting extensive background checks. Mr. Arreola’s most recent approval

17 notice, from 2016, provides that “[u]nless terminated, this decision to defer removal

18 action will remain in effect for 2 years” and is valid to August 19, 2018. Arreola Decl.

19 ¶ 12; Kwon Decl. ¶ 25, Ex. 24. The approval notice informed Mr. Arreola that his

20 deferred action could be terminated if he engaged in “[s]ubsequent criminal activity.”

21 Kwon Decl. ¶ 25, Ex. 24.

22

However, in March 2017, the agency abruptly reversed course, concluding that

23 Mr. Arreola’s DACA and EAD should be automatically revoked. Now, as before, Mr.

24 Arreola continues to be eligible for DACA; now, as before, Mr. Arreola has never

25 engaged in any criminal activity or been convicted of (or even charged with) any

26 crime. Nonetheless, in its March 6, 2017 Notice of Action, USCIS notified Mr.

27 Arreola that his DACA and EAD were “terminated automatically” because an NTA

28 was issued charging him with presence without admission. Kwon Decl. ¶ 9, Ex. 8.

15

Case 5:17-cv-02048-MWF-SHK Document 16-2 Filed 10/18/17 Page 21 of 28 Page ID #:92

1 USCIS’s one-sentence explanation, however, fails to acknowledge that Mr. Arreola

2 remains eligible for DACA under the applicable criteria, much less provide “good

3 reasons” for the agency’s change in position, as required by the APA. Fox Television

4 Stations, Inc., 556 U.S. at 515. See also, e.g., Organized Vill. of Kake v. U.S. Dep’t of

5 Agric., 795 F.3d 956, 968 (9th Cir. 2015) (explaining that the agency is “required to

6 provide a ‘reasoned explanation . . . for disregarding’ the ‘facts and circumstances’

7 that underlay its previous decision”) (citations omitted). As discussed above, the vast

8 majority of DACA recipients, like Mr. Arreola, are removable due to “presence

9 without admission” or for overstaying a visa, and this was true of Mr. Arreola every

10 time he applied for and received DACA. The agency’s reliance on an NTA citing Mr.

11 Arreola’s presence without admission simply fails to explain, much less justify, the

12 agency’s decision to reverse course and terminate his DACA.

13

The agency’s failure to explain its decision is also invalid because it fails to

14 mention, let alone account for, Mr. Arreola’s serious reliance interests: Mr. Arreola

15 has lived in the United States since infancy, and has relied on DACA to build a life,

16 obtain rewarding employment as a young adult, and help support his family, who are

17 all United States citizens or lawful permanent residents. See Fox Television Stations,

18 Inc., 556 U.S. at 515 (explaining that an agency must give a “more detailed

19 justification” for a policy change if its “prior policy has engendered serious reliance

20 interests that must be taken into account”). DHS’ failure to provide a reasoned

21 explanation for its change in position is arbitrary and capricious. See, e.g., Organized

22 Vill. of Kake, 795 F.3d at 967-68 (holding that the defendant agency failed to provide

23 “good reasons” for reversing its old policy).

24

For all these reasons, DHS’ decision to change its position and terminate Mr.

25 Arreola’s DACA based merely on an NTA charging presence without admission was

26 arbitrary and capricious in violation of the APA.

27

28

16

Case 5:17-cv-02048-MWF-SHK Document 16-2 Filed 10/18/17 Page 22 of 28 Page ID #:93

1

B. DHS’ Automatic Revocation of Mr. Arreola’s DACA and EAD Violates Its Own Procedures and Mr. Arreola’s Procedural Due Process Rights.

2

1. DHS’ Revocation Without Notice Violates Its Own Rules. 3

DHS’ automatic termination of Mr. Arreola’s DACA and EAD without notice

4 or an opportunity to be heard also violates DHS’ own rules and is therefore arbitrary

5 and capricious. Indeed, two district courts in closely analogous cases have held that

6 the government’s failure to comply with the termination procedures in the DACA

7 SOPs violates the APA. See Gonzalez Torres, 2017 WL 4340385, at *5 (“Defendants’

8

failure to follow the termination procedures set forth in the DACA SOP is arbitrary,

9

capricious, and an abuse of discretion.”); Colotl, 2017 WL 2889681, at *12 n.6

10 (“Defendants’ actions were likely arbitrary and capricious in violation of the APA

11 by . . . terminating her DACA status in contravention of DHS’s own procedures.”).

12 The DACA SOPs provide that USCIS generally will not terminate a recipient’s

13

DACA and EAD without prior notice and an opportunity to respond. See, e.g., DACA

14

SOPs Chapter 14, Termination, at 136-38 (if DACA granted in error, or granted as a

15 result of fraud, officer is directed to issue a “Notice of Intent to Terminate,” allow

16 recipient “33 days to file a brief or statement contesting the grounds cited in [the

17 notice],” and terminate only where the adverse grounds are not overcome). See also

18 Colotl, 2017 WL 2889681, at *7 (“[T]he SOP provides that, in the usual circumstance,

19

a termination of an individual’s DACA status will not occur without prior notice to

20

that individual.”). Although the DACA SOPs contain a procedure for termination of

21 DACA if ICE issues an NTA, such termination is permitted only under narrow

22 circumstances involving certain public safety concerns, and only after DHS follows

23 specific procedures that did not occur here. See Gonzalez Torres, 2017 WL 4340385,

24

at *6 (finding that USCIS’ termination of DACA in response to “NTA issued by

25

USCBP in connection with removal proceedings” charging recipient with being

26 present without admission did not comply with DACA SOPs); see also DACA SOPs

27 Chapter 14, Termination, at 137 (enumerating procedures to be followed in cases

28

17

Case 5:17-cv-02048-MWF-SHK Document 16-2 Filed 10/18/17 Page 23 of 28 Page ID #:94

1 involving disqualifying criminal offenses or public safety concerns). In sum, because

2 Defendants wholly failed to follow their own termination procedures, the revocation

3 of Mr. Arreola’s DACA and EAD was arbitrary and capricious.

4

5

2. DHS’ Automatic Revocation Violates Mr. Arreola’s Due Process Rights.

6

In addition to violating its own procedures, DHS’ sudden revocation of Mr.

7 Arreola’s DACA violates his procedural due process rights. Mr. Arreola has gained a

8 protected interest in his DACA, which authorized him to live and work in the United

9 States for the last five years and until August 2018, and therefore has a right to a fair

10 procedure before it can be revoked. Yet DHS has reversed its decision without

11 providing Mr. Arreola with adequate notice, a reasoned explanation for its decision, or

12 an opportunity to present arguments and evidence to demonstrate that he remains

13 eligible for the program and did not engage in any disqualifying criminal activity.

14

The Constitution “imposes constraints on governmental decisions which

15 deprive individuals of ‘liberty’ or ‘property’ interests.” Mathews v. Eldridge, 424 U.S.

16 319, 332 (1976). Regardless of whether the individual had a claim of entitlement

17 before it was granted, once an important benefit is conferred, recipients have a

18 protected property interest sufficient to require a fair process before the government

19 may take it away. See Bell v. Burson, 402 U.S. 535, 539 (1971) (holding that,“[o]nce

20 [driver’s] licenses are issued, . . . their continued possession may become essential in

21 the pursuit of a livelihood,” such that they cannot “be taken away without” due

22 process); Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (holding that parole

23 revocation requires due process; parolees may “have been on parole for a number of

24 years and may be living a relatively normal life[,]” all the while “[having] relied on at

25 least an implicit promise that parole will be revoked only if [the parolee] fails to live

26 up to the parole conditions”); Nnebe v. Daus, 644 F.3d 147, 158 (2d Cir. 2011)

27 (recognizing that taxi drivers have a protected property interest in the continued

28 possession of their operating licenses, such that suspending licenses without a hearing

18

Case 5:17-cv-02048-MWF-SHK Document 16-2 Filed 10/18/17 Page 24 of 28 Page ID #:95

1 violated due process); Singh v. Bardini, No. 09-cv-3382, 2010 WL 308807, at *7

2 (N.D. Cal. Jan. 19, 2010) (“Even if there is no constitutional right to be granted

3 asylum, that does not mean that, once granted, asylum status can be taken away

4 without any due process protections.”) (internal citation omitted).

5

Mr. Arreola’s DACA and EAD are essential to his ability to remain lawfully

6 present in the United States and earn a livelihood to support himself and his family.

7 See Alaska Airlines, Inc. v. Long Beach, 951 F.2d 977 (9th Cir. 1992) (finding

8 ordinance permitting airport to automatically reduce flights already allocated to air

9 carriers by license violated air carriers’ due process rights where allocations were

10 crucial to enterprise); Jones v. City of Modesto, 408 F. Supp. 2d 935, 951 (E.D. Cal.

11 2005) (finding that city could not revoke existing massage license without due

12 process) (citing Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 975 (9th Cir. 1994)

13 (“The Ninth Circuit specifically recognized that an existing license, in contrast to an

14 applied for license, constitutes a legitimate entitlement of which one cannot be

15 deprived without due process.”)). In continuing to build his life in the United States,

16 Mr. Arreola has reasonably relied on the implicit promise that he could retain his

17 DACA grant and EAD so long as he satisfied the program’s eligibility requirements.

18 See Morrissey, 408 U.S. at 482. The government’s reversal of its previous decision

19 that he was eligible for and warranted DACA inflicts precisely the kind of “serious

20 loss” that requires due process protections. Mathews, 424 U.S. at 348 (internal

21 quotation marks omitted).

22

Determining the procedure necessary to meet constitutional standards requires

23 evaluation of three distinct factors:

24

First, the private interest that will be affected by the official action;

25

second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or

26

substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens

27

that the additional or substitute procedural requirement would entail.

28 Id. at 335.

19

Case 5:17-cv-02048-MWF-SHK Document 16-2 Filed 10/18/17 Page 25 of 28 Page ID #:96

1

Evaluation of these factors demonstrates that Mr. Arreola must be afforded at

2 least the pre-termination process that DHS generally provides for under its own

3 rules—i.e., adequate notice of the allegedly adverse grounds and an opportunity to

4 respond and contest the decision. The private interest at stake for Mr. Arreola could

5 not be more significant. The termination of Mr. Arreola’s DACA rescinds his

6 longstanding authorization to live and work in the United States—the country he has

7 called home since he was an infant. Instead of following its own prescribed process,

8 DHS terminated Mr. Arreola’s DACA suddenly and without notice, based solely on

9 CBP’s issuance of an NTA charging him with being present without admission. Nor

10 has DHS afforded him any opportunity to contest its action, creating an unacceptably

11 high risk—in Mr. Arreola’s case, a certainty—of erroneous deprivation. See Singh v.

12 Vasquez, No. 08-cv-1901, 2009 WL 3219266, at *5 (D. Ariz. Sept. 30, 2009), aff’d,

13 448 F. App’x 776 (9th Cir. 2011) (“[T]here is a substantial risk of erroneous

14 deprivation through the procedures utilized by INS in rescinding asylum via a mailed

15 letter. This manner of termination does not account for anything other than post hoc

16 notice that . . . he or she is no longer entitled to protection.”). Providing Mr. Arreola

17 with a reasoned explanation for the government’s actions and an opportunity to

18 present arguments and evidence could make all the difference in his case, because it

19 will allow him to demonstrate that CBP’s suspicions were mistaken, as the

20 government’s own immigration judge concluded, and that he has not engaged in any

21 disqualifying criminal activity (or even been charged with any crime) and remains

22 eligible for DACA. Mr. Arreola’s circumstances highlight the value of the “an

23 opportunity to contest the termination determination at a meaningful time.” Villa-

24 Anguiano, 727 F.3d at 882. See also id.at 881 (holding that the BIA “must consider all

25 favorable and unfavorable factors relevant to the exercise of its discretion; failure to

26 do so constitutes an abuse of discretion”). The fact that DHS’ rules already provide for

27 these basic pre-deprivation protections in most circumstances reinforces both that the

28 value of such safeguards is high, and that providing such limited process would not

20

Case 5:17-cv-02048-MWF-SHK Document 16-2 Filed 10/18/17 Page 26 of 28 Page ID #:97

1 place undue fiscal or administrative burdens on the government. Vasquez, 2009 WL

2 3219266, at *6 (“To conclude, all of the Mathews factors weigh in favor of a finding

3 that due process requires more than sending an after the fact letter of rescission when

4 the government terminates a grant of asylum.”).

5 II. MR. ARREOLA IS SUFFERING IRREPARABLE HARM.

6

Absent an injunction restoring Mr. Arreola’s DACA, he will continue to

7 experience irreparable harm that cannot be cured by his ultimate success on the merits

8 in this case.

9

The revocation of Mr. Arreola’s DACA has derailed Mr. Arreola’s career. The

10 Ninth Circuit has made clear that the “loss of opportunity to pursue [one’s] chosen

11 profession” constitutes irreparable harm. Enyart v. Nat’l Conference of Bar Exam’rs,

12 Inc., 630 F.3d 1153, 1165 (9th Cir. 2011); see also Cleveland Bd. of Educ. v.

13 Loudermill, 470 U.S. 532, 543 (1985) (“We have frequently recognized the severity of

14 depriving a person of the means of livelihood.”). Because he has lost his EAD, Mr.

15 Arreola has had to leave his job as a cook at Chateau Marmont, and because CBP took

16 possession of his car, he has been unable to work as a driver. Arreola Decl. ¶ 40. Such

17 harm is more than enough to justify an injunction in this circuit. In Arizona Dream Act

18 Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014), for example, the Ninth Circuit

19 reversed a district court’s denial of a preliminary injunction on harm grounds, and

20 held that the DACA recipients had established irreparable harm because the

21 defendants’ policy had “diminished [plaintiffs’] opportunity to pursue their chosen

22 professions.” Id. at 1068. See also Enyart, 630 F.3d at 1165; Gonzalez Torres, 2017

23 WL 4340385, at *6 (finding that irreparable harm caused by defendants’ termination

24 of DACA without notice “includes the loss of employment, a core benefit under

25 DACA” and that such “deprivation of employment impacts Plaintiff’s ability to

26 financially provide for himself and his family”). Moreover, setbacks at this early

27 moment in Mr. Arreola’s career may never be recoverable: before he lost his job at the

28 Chateau Marmont, Mr. Arreola expected to move up through the ranks. Arreola Decl.

21

Case 5:17-cv-02048-MWF-SHK Document 16-2 Filed 10/18/17 Page 27 of 28 Page ID #:98

1 ¶¶ 14, 41. Time without DACA is “productive time irretrievably lost” that Mr. Arreola

2 could be spending in his chosen career path, building toward the future for himself

3 and his family. Chalk v. U.S. Dist. Ct., 840 F.2d 701, 710 (9th Cir.1988). See also

4 Arizona Dream Act Coal., 757 F.3d at 1069 (“The irreparable nature of Plaintiffs’

5 injury is heightened by Plaintiffs’ young age and fragile socioeconomic position.

6 Setbacks early in their careers are likely to haunt Plaintiffs for the rest of their lives.”).

7 As it is, Mr. Arreola is unable to plan for his family or save to provide for his child.

8 Arreola Decl. ¶ 40. Even if Mr. Arreola could later recover his lost income, his

9 emotional distress in the interim constitutes an irreparable injury in itself. See Arreola

10 Decl. ¶ 40; Chalk, 840 F.2d at 709. See also Colotl, 2017 WL 2889681, at *12

11 (“Plaintiff’s emotional distress . . . is another factor in determining that Plaintiff will

12 suffer irreparable injury without the entry of a preliminary injunction.”).

13 III. THE REMAINING FACTORS SUPPORT PRELIMINARY RELIEF.

14

Preliminary relief will not harm the government. The government will not be

15 adversely affected by restoring Mr. Arreola’s DACA, since he remains eligible for the

16 program, the government’s own immigration judge found that the CBP’s allegations

17 against him were unfounded, and there has been no relevant change in circumstances.

18

By contrast, the public interest strongly favors a preliminary injunction. The

19 public interest is served when the government complies with its obligations under the

20 APA and the Constitution and follows its own procedures. As the Ninth Circuit has

21 emphasized, “[I]t is clear that it would not be equitable or in the public’s interest to

22 allow the state ... to violate the requirements of federal law, especially when there are

23 no adequate remedies available.” Arizona Dream Act Coal., 757 F.3d at 1068 (citation

24 and internal quotation marks omitted) (alteration and ellipsis in original). See also

25 Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“[I]t is always in the public

26 interest to prevent the violation of a party’s constitutional rights.”) (citation and

27 internal quotation marks omitted); Colotl, 2017 WL 2889681, at *12 (“[T]he public

28 has an interest in government agencies being required to comply with their own

22

Case 5:17-cv-02048-MWF-SHK Document 16-2 Filed 10/18/17 Page 28 of 28 Page ID #:99

1 written guidelines instead of engaging in arbitrary decision making.”). Further,

2 stripping Mr. Arreola of his profession and his family is not in the public interest. Mr.

3 Arreola’s family relies on him heavily. He plays a critical role in the care of his sister

4 who has serious disabilities, and he contributes to the support of his family. Arreola

5 Decl. ¶¶ 4-5, 16. He was also a valued employee at the Chateau Marmont. Id. ¶¶ 14,

6 40-41.

7

CONCLUSION

8

For the reasons given, the Court should grant Plaintiff’s Motion for a

9 Preliminary Injunction, vacate Defendants’ unlawful revocation of Plaintiff’s DACA

10 and EAD or, in the alternative, order Defendants to temporarily reinstate Mr.

11 Arreola’s DACA and work authorization pending a fair procedure—including

12 reasonable notice, a reasoned explanation, and an opportunity to be heard—through

13 which he may challenge the revocation decision consistent with the APA and the Due

14 Process Clause.

15

16 Dated: October 18, 2017

Respectfully submitted,

17

/s/ Jennifer Chang Newell

18

Jennifer Chang Newell

19

Katrina L. Eiland

Michael K. T. Tan

20

David Hausman

21

ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT

22

23

Ahilan T. Arulanantham

Michael Kaufman

24

Dae Keun Kwon

25

ACLU FOUNDATION

OF SOUTHERN CALIFORNIA

26

27

Attorneys for Plaintiff Jesús Alonso Arreola

Robles

28

23

 
 Case 5:17-cv-02048-MWF-SHK Document 23 Filed 10/30/17 Page 1 of 43 Page ID #:512

CHAD A. READLER 1 Acting Assistant Attorney General

2

WILLIAM C. PEACHEY Director, District Court Section

3

Office of Immigration Litigation JEFFREY S. ROBINS

4

Assistant Director U.S. Department of Justice

5

P.O. Box 868, Ben Franklin Station Washington, D.C. 20044

6 (202) 616-1246 Email: jeffrey.robins@usdoj.gov

7 JAMES WALKER

Trial Attorney

8

Attorneys for Defendants

9

11

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
12

13

14

INLAND EMPIRE –

IMMIGRANT YOUTH

15 COLLECTIVE and JESUS

) Case No. 5:17-cv-2048-MWF-SHK ) )

16 ALONSO ARREOLA ROBLES, ) DEFENDANTS’ MEMORANDUM

on behalf of himself and others

) OF POINTS AND AUTHORITIES

17

similarly situated,

) IN OPPOSITION TO PLAINTIFFS’

18

) MOTION FOR PRELIMINARY

19

Plaintiff,

) INJUNCTION [DKT. 16]. )

20

v.

) Judge: Hon. Michael W. Fitzgerald

21

) Courtroom: 5A

ELAINE C. DUKE, Acting

) Hearing: November 20, 2017

22 Secretary of Homeland Security, et ) Time: 10 a.m.

23 al.,

)

24

)

Defendants.

)

25

26

27

28

5:17-cv-2048-MWF-SHK

Case 5:17-cv-02048-MWF-SHK Document 23 Filed 10/30/17 Page 2 of 43 Page ID #:513

1

TABLE OF CONTENTS

2

3 TABLE OF AUTHORITIES ...............................................................................................ii

4 Introduction .......................................................................................................................... 1
5
I. Overview of Deferred Action and the DACA Policy ......................................... 2
6

7

II. Factual Background ............................................................................................ 5

8 ARGUMENT ....................................................................................................................... 9

9
I. Standards of Review ........................................................................................... 9
11

12

II. Plaintiff Cannot Sustain the Requirements for Preliminary Relief....................10

13

A. Plaintiff Cannot Demonstrate Imminent, Irreparable Harm .................... 11

14
B. Plaintiff is not Likely to Succeed on the Merits ........................................ 13
15

16

i. This Court Lacks Jurisdiction to Review DHS’s Initiation of Removal

Proceedings, and any Judicial Challenges to Removal Must be Brought

17

in a Petition for Review .......................................................................... 13

18

19

a. The Court Lacks Jurisdiction under the APA............................... 13

20

b. The Court Lacks Jurisdiction under 8 U.S.C. § 1252(g), as

21

Amended by the REAL ID Act ..................................................... 14

22

c. Any Viable Claims Must be Channeled through Plaintiff’s

Removal Proceedings and not this Court ..................................... 18
23

24

ii. Nothing in the Constitution or APA Establishes a Right that Constrains

DHS’s Exercise of Discretion................................................................. 20
25

26

a. Termination of DACA does not Infringe upon an Established

27

Constitutional Interest .................................................................. 21

28

5:17-cv-2048-MWF-SHK
i

Case 5:17-cv-02048-MWF-SHK Document 23 Filed 10/30/17 Page 3 of 43 Page ID #:514

1

b. Termination of DACA does not Infringe upon a Constitutional

Interest based on Entitlement ....................................................... 22

2

3

c. The APA Affords Plaintiff no Actionable Interest Regarding the

4

Termination of DACA or Employment Authorization ................. 24

5

iii. Plaintiff Cannot Overcome the Significant Facts Supporting the Decision

6

to Issue an NTA and Terminate his DACA and EAD.............................27

7

iv. Plaintiff cannot Show Prejudice from the Termination of his DACA and

8

EAD, such that any Additional Process would have Achieved a

Different Outcome .................................................................................. 29
9

11

B. The Remaining Preliminary Injunction Factors Favor Defendants .................. 31

12

13 CONCLUSION.................................................................................................................. 32

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5:17-cv-2048-MWF-SHK
ii

Case 5:17-cv-02048-MWF-SHK Document 23 Filed 10/30/17 Page 4 of 43 Page ID #:515

1

TABLE OF AUTHORITES

2

CASES

3 Acura of Bellevue v. Reich, 90 F.3d 1403 (9th Cir. 1996) .......................................................................................... 19
4

5 Aguilar v. Immigration & Customs Enf’t, 510 F.3d 1 (1st Cir. 2007) ........................................................................................ 18, 19
6

7 Ahmed v. Gonzales, 447 F.3d 433 (5th Cir. 2006) .......................................................................................... 22
8

9 Alliance for the Wild Rockies v. Cottrell, 11 632 F.3d 1127 (9th Cir. 2011) ........................................................................................10

12 Arizona v. United States, 13 132 S. Ct. 2492 (2012) .................................................................................................2, 3

14 Ashki v. INS, 15 233 F.3d 913 (6th Cir. 2000) ..........................................................................................22

16
Bd. of Regents of State Colleges v. Roth, 17 408 U.S. 564 (1972) .................................................................................................22, 23

18
Blantz v. Cal. Dep’t of Corr. & Rehab., 19 727 F.3d 917 (9th Cir. 2013) ..............................................................................22, 23, 24

20

21

Cal. Wilderness Coal. v. U.S. Dept. of Energy, 631 F.3d 1072 (9th Cir. 2011) ........................................................................................ 30

22

23 Carranza, v. I.N.S., 277 F.3d 65 (1st Cir. 2002) ...................................................................................... 15, 19
24

25 Chaudhry v. Holder, 705 F.3d 289 (7th Cir. 2013) ............................................................................................ 3
26

27 Chavez-Navarro v. Ashcroft, 28 57 F. App’x 349 (9th Cir. 2003).....................................................................................15

5:17-cv-2048-MWF-SHK
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Case 5:17-cv-02048-MWF-SHK Document 23 Filed 10/30/17 Page 5 of 43 Page ID #:516
1 Chemehuevi Indian Tribe v. Brown, No. 16-CV-1347-JFW-MRWX, 2017 WL 2971864 (C.D. Cal. Mar. 30, 2017) ........... 26
2
3 Colotl v. Kelly, No. 1:17-CV-1670-MHC, 2017 WL 2889681 (N.D. Ga. June 12, 2017) ..................... 12
4
5 De Mercado v. Mukasey, 6 566 F.3d 810 (9th Cir. 2009) ..........................................................................................21
7 Earth Island Inst. v. Carlton, 8 626 F.3d 462 (9th Cir. 2010) ....................................................................................10, 27
9 Galbraith v. Cty. Of Santa Clara, 11 307 F.3d 1119 (9th Cir. 2002).......................................................................................... 7
12 Garcia v. Google, Inc., 13 786 F.3d 733 (9th Cir. 2015) ..........................................................................................10
14
Garcia v. U.S. Att’y Gen., 15 329 F.3d 1217 (11th Cir. 2003) ......................................................................................22
16
Gerhart v. Lake Cnty., Mont., 17 637 F.3d 1013 (9th Cir. 2011) ..................................................................................22, 24
18
19 Glenn v. Newman, 614 F.2d 467 (5th Cir. 1980) .......................................................................................... 22
20
21 Gonzalez v. U.S. Dep’t of Homeland Sec., No. 17CV1840 JM(NLS), 2017 WL 4340385 (S.D. Cal. Sept. 29, 2017) .................... 12
22
23 Goss v. Lopez, 24 419 U.S. 565 (1975) .......................................................................................................23
25 Heckler v. Chaney, 26 470 U.S. 821 (1985) ................................................................................................passim
27 Henry Schein, Inc. v. Cook, 28 191 F. Supp. 3d 1072 (N.D. Cal. 2016)............................................................................9
5:17-cv-2048-MWF-SHK
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Case 5:17-cv-02048-MWF-SHK Document 23 Filed 10/30/17 Page 6 of 43 Page ID #:517
1 Hernandez v. Gonzales, 437 F.3d 341 (3d Cir. 2006) ........................................................................................... 22
2
3 J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir. 2016) .................................................................................passim
4
5 Judulang v. Holder, 6 565 U.S. 42 (2011) .........................................................................................................20
7 Jupiter v. Ashcroft, 8 396 F.3d 487 (1st Cir. 2005) ..........................................................................................22
9 Kaddoura v. Gonzales, 11 No. C06-1402 RSL, 2007 WL 1521218 (W.D. Wash. May 21, 2007)..........................21
12 Kazarian v. U.S. Citizenship and Immigration Servs., 13 596 F.3d 1115 (9th Cir. 2010) ........................................................................................30
14
Khan v. Mukasey, 15 517 F.3d 513 (7th Cir. 2008) ..........................................................................................22
16
Lee v. City of Los Angeles, 17 250 F.3d 668 (9th Cir. 2001) ............................................................................................7
18
19 Leiva-Perez v. Holder, 640 F.3d 962 (9th Cir. 2011) .......................................................................................... 10
20
21 Lyon v. U.S. Immigration & Customs Enf’t, 171 F. Supp. 3d 961 (N.D. Cal. 2016)............................................................................30
22
23 Mada-Luna v. Fitzpatrick, 24 813 F.2d 1006 (9th Cir. 1987) ........................................................................................14
25 Martinez v. Napolitano, 26 704 F.3d 620 (9th Cir. 2012) ..........................................................................................19
27 Meghrig v. KFC W., Inc., 28 516 U.S. 479 (1996) .......................................................................................................10
5:17-cv-2048-MWF-SHK
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Case 5:17-cv-02048-MWF-SHK Document 23 Filed 10/30/17 Page 7 of 43 Page ID #:518
1 Mendez-Garcia v. Lynch, 840 F.3d 655 (9th Cir. 2016) .......................................................................................... 22
2
3 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) ......................................................................................................... 9
4
5 Morales de Soto v. Lynch, 6 824 F.3d 822 (9th Cir. 2016).......................................................................................... 14
7 Morrissey v. Brewer, 8 408 U.S. 471 (1972) .......................................................................................................21
9 Nken v. Holder, 11 556 U.S. 418 (2009) .......................................................................................................31
12 Paul v. Davis, 13 424 U.S. 693 (1976) .......................................................................................................21
14
PDK Laboratories Inc. v. U.S. D.E.A., 15 362 F.3d 786 (D.C. Cir. 2004)........................................................................................30
16
Perales v. Casillas, 17 903 F.2d 1043 (5th Cir. 1990) ........................................................................................21
18
19 Perry v. Sindermann, 408 U.S. 593 (1972) ................................................................................................. 22, 23
20
21 Pilapil v. INS, 424 F.2d 6 (10th Cir. 1970)
22 cert denied, 400 U.S. 908 (1970) ...................................................................................21
23
24 Quach v. Bank of Am., Nat. Ass’n, No. 12–5037 EJD, 2012 WL 4498873 (N.D. Cal. Sept. 28, 2012)................................11
25
26 Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ................................................................................................passim
27
28
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Case 5:17-cv-02048-MWF-SHK Document 23 Filed 10/30/17 Page 8 of 43 Page ID #:519
1 Rodriguez v. Sessions, No. 15-72487, 2017 WL 695192 (9th Cir. Feb. 22, 2017)............................................. 15
2
3 Romeiro de Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985)........................................................................................ 15
4
5 Salgado-Toribio v. Holder, 6 713 F.3d 1267 (10th Cir. 2013) ......................................................................................22
7 Samayoa-Martinez v. Holder, 8 558 F.3d 897 (9th Cir. 2009) ..........................................................................................15
9 Sanchez-Velasco v. Holder, 11 593 F.3d 733 (8th Cir. 2010) ..........................................................................................22
12 Senate of State of Cal. v. Mosbacher, 13 968 F.2d 974 (9th Cir. 1992) ......................................................................................9, 12
14
Shearer v. Bowen, 15 216 F.3d 1080 (5th Cir. 2000)........................................................................................ 22
16
Silva v. United States, 17 866 F.3d 938 (8th Cir. 2017) ..........................................................................................17
18
19 Singh v. Bardini, No. 09-cv-3382, 2010 WL 308807 (N.D. Cal. Jan. 19, 2010) ....................................... 14
20
21 Singh v. Gonzales, 499 F.3d 969, 978 (9th Cir. 2007) ......................................................12
22 Singh v. Vasquez, 23 No. 08-cv-1901, 2009 WL 3219266 (D. Ariz. Sept. 30, 2009) 24 aff’d 448 F. App’x 776 (9th Cir. 2011) ...........................................................................14
25 Sissoko v. Rocha, 26 509 F.3d 947 (9th Cir. 2007) ....................................................................................16, 17
27 Skidmore v. Swift & Co., 28 323 U.S. 134 (1944) .......................................................................................................26
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1
Smith v. Ashcroft, 2 295 F.3d 425 (4th Cir. 2002) ..........................................................................................22
3
Stanley v. Univ. of S. Cal., 4 13 F.3d 1313 (9th Cir. 1994) ..........................................................................................10
5
6 Tefel v. Reno, 180 F.3d 1286 (11th Cir. 1999) ...................................................................................... 22
7
8 Torres-Aguilar v. INS, 246 F.3d 1267 (9th Cir. 2001) ........................................................................................ 17
9
11 Univ. of Texas v. Camenisch, 12 451 U.S. 390 (1981) .........................................................................................................9
13 U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954) .......................................14
14
Vilchiz-Soto v. Holder, 15 688 F.3d 642 (9th Cir. 2012) ..........................................................................................15
16
Villa-Anguiano v. Holder, 17 727 F.3d 873 (9th Cir. 2013) ....................................................................................20, 25
18
19 Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) ........................................................................................ 30
20
21 Wayte v. United States, 470 U.S. 598 (1985) ................................................................................................. 15, 29
22
23 Winter v. Nat’l Res. Def. Council, 24 555 U.S. 7 (2008) ...................................................................................................2, 9, 10
25 WJA Realty Ltd. P’ship v. Nelson, 26 708 F. Supp. 1268 (S.D. Fla. 1989)................................................................................21
27 Wong v. United States, 28 373 F.3d 952 (9th Cir. 2004) ..........................................................................................17
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1
Yuen Jin v. Mukasey, 2 538 F.3d 143 (2d Cir. 2008) ...........................................................................................22

3
Zixiang Li v. Kerry, 4 710 F.3d 995 (9th Cir. 2013) ..........................................................................................17

5

6 Zolotukhin v. Gonzales, 417 F.3d 1073 (9th Cir. 2005) ........................................................................................ 29

7

8

STATUTES 5 U.S.C. § 701(a)(2)...........................................................................................................13

9

11 5 U.S.C. § 702.................................................................................................................... 13

12 5 U.S.C. § 704.................................................................................................................... 13
13
5 U.S.C. § 706 .................................................................................................................... 30
14

15 5 U.S.C. § 706(a)(1)...........................................................................................................17

16
5 U.S.C. § 706(2)(A)..........................................................................................................13
17
18 5 U.S.C. § 706(2)(D).......................................................................................................... 13

19 8 U.S.C. § 1103(a)(1)...........................................................................................................2
20
21 8 U.S.C. § 1182(a) ...............................................................................................................2

22 8 U.S.C. § 1182(a)(6)(A)(i) ................................................................................................. 8

23
8 U.S.C. § 1227(a) ............................................................................................................... 2
24
25 8 U.S.C. § 1229(a) .............................................................................................................14

26 8 U.S.C. § 1229a. ............................................................................................................... 14
27
28 8 U.S.C. § 1252..................................................................................................................17

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1 8 U.S.C. § 1252(a)(2)(D) ...................................................................................................20

2 8 U.S.C. § 1252(a)(5)..................................................................................................passim
3
8 U.S.C. § 1252(b)(9).................................................................................................. passim
4

5 8 U.S.C. § 1252(g) ......................................................................................................passim

6
8 U.S.C. § 1324 .............................................................................................................. 8, 27
7
8 8 U.S.C. § 1324(a)(1)(A)(ii) ................................................................................................ 8

9 28 U.S.C. § 1361................................................................................................................ 15
11
28 U.S.C. § 1651 ................................................................................................................ 15
12

13 28 U.S.C. § 2241................................................................................................................ 15

14

REGULATIONS

15 8 C.F.R. § 239.1(a).............................................................................................................25

16 8 C.F.R. § 274a.12(c)(14) ....................................................................................................3
17
18 8 C.F.R. § 274a.14(a)(1)(ii) ........................................................................................... 1, 25

19 8 C.F.R. § 1003.13 ...............................................................................................................1

20
8 C.F.R. § 1003.14 ............................................................................................................... 1
21

22

ADMINSTRATIVE DECISION

23 Matter of Bahta, 24 22 I. & N. Dec. 1381 (BIA 2000) .................................................................................. 29

25
LEGISLATIVE MATERIALS
26
27 H.R. Rep. No. 109-72, at 173 .............................................................................................. 1

28

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1

Introduction

2

Plaintiff Jesús Alonso Arreola Robles, (“Plaintiff” or “Mr. Arreola”) seeks the

3 extraordinary remedy from this Court of reinstating his Deferred Action for Childhood

4 Arrivals (“DACA”) and employment authorization (“EAD”) that were previously

5 terminated following his arrest for engaging in criminal activity, including participating

6 in the attempt to transport undocumented immigrants near the southern border of the

7 United States. Dkt. No. 16-2, Memorandum of Law, at 7. Plaintiff’s motion for a

8 preliminary injunction requires this Court to reject decades of precedent to recognize

9 alleged rights and privileges that have never existed for Plaintiff and similarly situated

11 individuals. Plaintiff, who has benefitted from the Government’s discretion to remain and

12 work in the United States despite having no lawful status, had no ongoing expectation to

13 the continuation of that grace.

14

Most importantly, Plaintiff’s DACA was automatically terminated by the issuance

15 of a Notice to Appear (“NTA”) from the Department of Homeland Security (“DHS”) sub-

16 agency, U.S. Customs and Border Protection (“CBP”). Filing of the NTA with the

17 appropriate Department of Justice (DOJ) immigration court commences removal

18 proceedings, see 8 C.F.R. §§ 1003.13, 1003.14, and results in the immediate termination

19 of employment authorization for aliens granted deferred action, whether through DACA

20 or otherwise. See 8 CFR § 274a.14(a)(1)(ii). Plaintiff cannot challenge in district court

21 the commencement of removal proceedings by attacking the consequential termination of

22 his DACA or EAD grant. See 8 U.S.C. § 1252(g) (precluding judicial review in district

23 court of “any cause or claim . . . arising from the decision or action . . . to commence

24 proceedings, adjudicate cases, or execute removal orders . . . .”). Thus, to the extent

25 Plaintiff has any viable legal claims arising from the “decision[s] or action[s]” of DHS in

26 this case, they must be raised initially in immigration court and then, following

27 administrative appeal, through a petition for review filed in the U.S. Court of Appeals for

28 the Ninth Circuit. See U.S.C. § 1252(b)(9) (requiring that “[j]udicial review of all

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1 questions of law and fact, including interpretation and application of constitutional and

2 statutory provision, arising from any action taken or proceeding brought to remove an

3 alien” must be made through a petition for review); J.E.F.M. v. Lynch, 837 F.3d 1026,

4 1031 (9th Cir. 2016) (applying this statutory channeling provision in the context of a

5 Fifth Amendment claim).

6

In order to prevail on a motion seeking a preliminary injunction, Plaintiff “must

7 establish” that he is likely to succeed on the merits of his claim, that he is likely to suffer

8 irreparable harm if the injunction is not granted, that the balance of equities is in his

9 favor, and that an injunction is in the public interest. Winter v. Nat’l Res. Def. Council,

11 555 U.S. 7, 20 (2008). Accordingly, Plaintiff cannot prevail on his motion because he is

12 not likely to succeed in obtaining review of DHS’ discretionary decision to issue an NTA

13 to place him in removal proceedings, and thereby automatically terminate his DACA and

14 related EAD. Moreover, to the extent Plaintiff asks the Court to grant a permanent

15 injunction at this initial stage of proceedings requiring that Plaintiff’s DACA and

16 employment authorization – “remain valid until August 19, 2018, so long as Plaintiff

17 continues to satisfy the eligibility requirements of the DACA program” – demands a

18 mandatory injunction that impinges on Defendants discretion – for which Plaintiff cannot

19 establish that the facts and the law “clearly favor” his position, which is in direct conflict

20 with Supreme Court precedent.

21 I. Overview of Deferred Action and the DACA Policy

22

The Immigration and Nationality Act (“INA”) charges the Secretary of Homeland

23 Security “with the administration and enforcement” of the INA and “all other laws

24 relating to the immigration and naturalization of aliens.” 8 U.S.C. § 1103(a)(1).

25 Individuals are removable if, inter alia, “they were inadmissible at the time of entry, have

26 been convicted of certain crimes, or meet other criteria set by federal law.” Arizona v.

27 United States, 132 S. Ct. 2492, 2499 (2012); see 8 U.S.C. §§ 1182(a), 1227(a). The

28 federal government cannot practicably remove every removable alien. Rather, “[a]

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1 principal feature of the removal system is the broad discretion exercised by immigration

2 officials.” Arizona, 132 S. Ct. at 2499. DHS, “as an initial matter, must decide whether it

3 makes sense to pursue removal at all.” Id. “At each stage the Executive has discretion to

4 abandon the endeavor.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,

5 483 (1999) (“AADC”). Like other agencies exercising enforcement discretion, DHS must

6 balance a number of factors that are within its expertise. See Heckler v. Chaney, 470 U.S.

7 821, 831 (1985).

8

Deferred action is “a regular practice” in which the Secretary exercises her

9 discretion “for humanitarian reasons or simply for [his] own convenience,” to notify an

11 alien of a non-binding decision to forbear from seeking his removal for a designated

12 period. See AADC, 525 U.S. at 483-84; 8 C.F.R. § 274a.12(c)(14) (“an act of

13 administrative convenience to the government which gives some cases lower priority”).

14 Through “[t]his commendable exercise in administrative discretion, developed without

15 express statutory authorization,” AADC, 525 U.S. at 484 (citations omitted), a removable

16 individual may remain present in the United States so long as DHS continues to forbear.

17

Deferred action does not confer lawful immigration status or provide any defense

18 to removal. Cf. Chaudhry v. Holder, 705 F.3d 289, 292 (7th Cir. 2013) (discussing the

19 difference between “unlawful presence” and “unlawful status” as two distinct concepts).

20 An individual with deferred action remains removable at any time, and DHS has the

21 discretion to revoke deferred action unilaterally. See AADC, 525 U.S. at 484-85.

22

On June 15, 2012, DHS issued a memorandum entitled, “Exercising Prosecutorial

23 Discretion with Respect to Individuals Who Came to the United States as Children”

24 (“Napolitano Memo”). See Dkt. No. 16-13, Pl. Exhibit 9. That memorandum outlines a

25 policy known as Deferred Action for Childhood Arrivals (“DACA”) that is available to a

26 certain subset of individuals unlawfully present in this country. The DACA Memo states,

27 “[t]his memorandum confers no substantive right, immigration status or pathway to

28 citizenship. Only the Congress, acting through its legislative authority, can confer these

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1 rights.” Id. at 3. The memo does not address the topics of arrest by DHS or the grounds

2 that DHS will consider in terminating deferred action. Rather, the memo directs U.S.

3 Immigration and Customs Enforcement (“ICE”) and U.S. Customs and Border Protection

4 (“CBP”) agents to “immediately exercise their discretion, on an individual basis” to

5 determine whether to issue an NTA or defer action, without reference to whether an

6 individual already has deferred action. Id. (“With respect to individuals who meet the

7 above criteria, ICE and CBP should immediately exercise their discretion, on an

8 individual basis, in order to prevent low priority individuals from being placed into

9 removal proceedings.”). Thus, CBP or ICE have discretion to issue an NTA if the facts

11 and circumstances available at the time an alien is encountered counsel against the

12 continuation of deferred action, including where there is a criminal offense or public

13 safety concern presented. Id.

14

In mid-August 2012, USCIS published on its website a webpage entitled,

15 “Frequently Asked Questions,” which is now archived on the USCIS webpage. See Dkt.

16 No. 16-23, Pl. Exhibit 19. These FAQs provide guidance on the DACA policy and state,

17 “DACA is an exercise of prosecutorial discretion and deferred action may be terminated

18 at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion.” Id. at

19 Q:27. The FAQs also explain that the phrase “national security or public safety threat”

20 includes but is not limited to “gang membership, participation in criminal activities, or

21 participation in activities that threaten the United States.” See id. at Q:65. The Form I-

22 821D, entitled, “Instructions for Consideration of Deferred Action for Childhood

23 Arrivals” states, “[i]ndividuals who receive deferred action will not be placed into

24 removal proceedings or removed from the United States for a specified period of time,

25 unless the Department of Homeland Security (DHS) chooses to terminate the deferral.”

26 See Exhibit A, Form I-821D Instructions (January 9, 2017 version, with no changes to the

27 relevant content).

28

Through an internal guidance document entitled the “National Standard Operating

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1 Procedures (SOP); Deferred Action for Childhood Arrivals (DACA),” USCIS has

2 provided its officers with procedural guidance for terminating deferred action in three

3 circumstances, one of which includes issuing a Notice of Intent to Terminate (“NOIT”)

4 and providing a chance for a DACA recipient to respond, and two in which such notice

5 and an opportunity to respond is not required. See Dkt. No. 16-24, Pl. Exhibit F, National

6 Standard Operating Procedures, Deferred Action for Childhood Arrivals (“SOP”) (Aug.

7 28, 2013); id. at Appendix I.

8

Nothing in the Napolitano Memorandum limits CBP or ICE from exercising their

9 authority to issue an NTA. Rather, pursuant to the DACA SOP and Appendix I, when

11 USCIS discovers certain conduct that suggests DACA should be terminated, USCIS

12 should refer such conduct to ICE, who may issue an NTA that automatically terminates

13 DACA, with no additional notice or opportunity to respond. See Dkt. No. 16-24. USCIS

14 then generally sends a “Notice of Action” to the individual informing him that his

15 deferred action and employment authorization terminated automatically as of the date the

16 NTA was issued. Id. at 42. This “Notice of Action” serves an administrative purpose to

17 inform the DACA recipient that his DACA and employment authorization were already

18 automatically terminated due to issuance of an NTA. The Notice of Action does not itself

19 effectuate the termination of DACA and employment authorization.

20

On September 5, 2017, DHS announced a plan to end the DACA policy in an

21 orderly fashion. See Dkt. No. 16-18, Pl. Exhibit 14, “Memorandum on Rescission of

22 Deferred Action for Child Arrivals” from Elaine C. Duke, Acting Secretary of Homeland

23 Security, to ICE, CBP, and USCIS (Sept. 5, 2017) (“Duke Memo”). The memorandum,

24 inter alia, provides that DHS will “adjudicate – on an individual, case by case basis –

25 properly filed pending DACA renewal requests and associated applications for

26 Employment Authorization Documents . . . from current beneficiaries whose benefits

27 will expire between the date of this memorandum and March 5, 2018 that have been

28 accepted by the Department as of October 5, 2017.” Id. (emphasis added).

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1 II. Factual Background

2

Plaintiff alleges he was granted deferred action and employment authorization

3 pursuant to DACA in 2012 and again in 2014; and that he requested renewal of DACA in

4 2016 and was granted deferred action and employment authorization, effective through

5 August 19, 2018. Dkt. No. 16-2 at 6. Plaintiff also acknowledges the DACA approval

6 letter advises that “[s]ubsequent criminal activity” is likely to result in termination of

7 deferred action. Id.

8

On the evening of February 11, 2017, stretching into the morning of February 12,

9 BP agents were searching an area of El Cajon, California, near the United States/Mexico

11 International Boundary (hereinafter “the border”) known for unlawful border crossings,

12 after finding indications that undocumented immigrants had likely recently crossed the

13 border. See Exhibit B, DHS Memorandum of Investigation, Agent Statement of BP Agent

14 F.O.,1 dated February 12, 2017 (“F.O. Memo”); Exhibit C, DHS Memorandum of

15 Investigation, BP Agent I.J., dated February 13, 2017 (“I.J. Memo”).

16

Around midnight, the border patrol agents encountered Plaintiff behind the wheel

17 of a “vehicle parked on the side of the road with its lights out.” Id. The passenger in the

18 vehicle, Mr. R., was later identified as an undocumented immigrant. Id. According to one

19 agent, subsequent to encountering Plaintiff and Mr. R, four undocumented immigrants

20 were detained in close proximity to Plaintiff’s vehicle, and the “identified . . . smuggler

21 for that event . . . shows a prior apprehension event” with Mr. R. See Exhibit D, DHS

22 Report of Investigation, Border Patrol Agent A.R., dated February 12, 2017 (“A.R.

Report”), at 4. CBP also positively linked Mr. R.’s phone to the smuggler’s cell phone,
23

24 and concluded Plaintiff and Mr. R. were likely present in that location to pick up the four

25 undocumented immigrants. Id.

26

27

28 1 Due to the public nature of this case, names of the federal agency agents and officers are redacted here and in the attached exhibits.

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1

In his initial encounter with the agents, Plaintiff first stated “he picked up [Mr. R.]

2 in El Cajon, California and was going to take him to Tijuana, Mexico.” Exhibit C.

3 However, Plaintiff “then changed his story and claimed that he was just going back home

4 to Hollywood, California.”2 Id. Upon further questioning, Plaintiff stated he had just

5 recently picked up Mr. R. “on the side of the road,” that he knew Mr. R. was

6 undocumented, and that Plaintiff “was going to get paid $100 USD to pick up an

7 unknown amount of illegal aliens.” Id.; see also Exhibit B. Because Plaintiff and Mr. R.

8 gave conflicting stories, the Border Patrol agents arrested both men and transported them

9 to a Border Patrol processing center, where both men separately waived their Miranda

11 rights and were administered an oath before being interviewed. Exhibit C; Exhibit E,

12 Transcript of Border Patrol Agent interview with Plaintiff on February 12, 2017, at 2-6;

13 Exhibit F, Statement of Border Patrol Agent J.H. Regarding Recorded Statement, dated

14 February 12, 2017 (“J.H. Statement”).

15

In his recorded interview, under oath, and after going through a number of other

16 stories, Plaintiff stated that he had been asked by a friend to pick up the friend’s cousin,

17 Mr. R, from a hotel in Sun Valley, California and drive the passenger to El Cajon to pick 18 up the passenger’s cousin and uncle.3 See Exhibits E at 28-34, 37-40; F. Plaintiff admitted

19 he was aware he was picking up undocumented immigrants. Id.; see also Exhibit D at 3.

20

21 2 The Court may take judicial notice of the fact that Plaintiff’s home in Hollywood, California is
approximately 140 miles north of El Cajon, California, and the drive from one city to the other takes 22 approximately three hours. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) overruled on
23 other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (“[A] court may take judicial notice of ‘matters of public record.’”) (citation omitted).
24 3 The Court may also take judicial notice of the fact that Sun Valley, California is near Plaintiff’s home in
25 Hollywood, California, thus also approximately 140 miles and 3 hours north of El Cajon, California, where Plaintiff first alleged to have picked up the passenger. Lee, 250 F.3d at 689. Plaintiff establishes a similar
26 geographic setting in a declaration filed with his Complaint, wherein he states he drove “for about three
27 and a half hours” to get from “Sun Valley, near North Hollywood” to “an address near San Diego,” where, upon arrival, he was confronted by CBP. See Dkt. No. 16-3, Declaration of Jesus Alonso Arreola Robles,
28 at ¶¶ 19, 20, 22. San Diego, California, is approximately 15 miles from El Cajon, California.

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1 At the first encounter on the side of the road, Plaintiff told agents he was to be paid $100

2 for his services, see Exhibit C, but in his interview Plaintiff stated it was only $40, before

3 ultimately admitting he was to receive $600 for making the trip. Exhibit E at 11, 18, 30,

4 39; Exhibit F. The Government declined to seek Plaintiff’s criminal prosecution under 8 5 U.S.C. § 1324,4 but CBP did initiate removal proceedings against him. Exhibit D at 4.5

6

On February 12, 2017, CBP issued Plaintiff an NTA charging him as inadmissible

7 to the United States based on his presence without admission or parole pursuant to 8

8 U.S.C. § 1182(a)(6)(A)(i). See Exhibit G, Form I-862, Notice to Appear, dated February

9 12, 2017 (date stamped as filed with the Immigration Court on February 23, 2017); see

11 also Dkt. No. 16-11, Pl. Exhibit 7, Form I-213 Record of Deportable/Inadmissible Alien, dated

12 February 13, 2017, at 8 (“Arreola was processed administratively for [8 U.S.C. § 1324] Alien

13 Smuggling. Arreola has been approved as a Federal Interest Removal by San Diego Sector

14 Chief Patrol Agent R[.] B[].”).

15

On March 2, 2017, an immigration judge held a custody determination hearing and

16 granted Plaintiff release from immigration detention on $2,500 bond.6 Dkt. 16-10, Pl.

17 Exhibit 10, Bond Hearing Transcript at 59. On March 6, 2017, Plaintiff received a Notice

18 of Action from USCIS, notifying him that his DACA and EAD were “terminated

19

20 4 8 U.S.C. § 1324(a)(1)(A)(ii) provides criminal penalties for “[a]ny person who[,] knowing or in reckless

21 disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of

22 transportation or otherwise, in furtherance of such violation of law; . . . (v)(I) engages in any conspiracy

to commit any of the preceding acts, or (II) aids or abets the commission of any of the preceding acts . . . .” 23
5 Plaintiff now alleges another new version of the facts in his sworn declaration. Plaintiff claims a friend

24 offered him $600 to drive the friend’s cousin from the Los Angeles area to the San Diego area to pick up

25

the friend’s uncle and another cousin, and bring them back to the Los Angeles area. Dkt. No. 16-2 at 7. Plaintiff now asserts the person he picked up, arguably Mr. R, entered an address near San Diego,

26 California, into Plaintiff’s GPS and Plaintiff drove them there without knowing where he was going or

that the people he was picking up were undocumented immigrants. Id. 27 6 As explained in greater detail below in Section II(B)(ii)(b)(5), the transcript of the bond hearing shows

28 Plaintiff misrepresented to the immigration judge a number of key facts regarding his interviews with the

CBP agents on the night of his arrest.

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1 automatically as of the date [his] NTA was issued.” See Dkt. No. 16-12, Pl. Exhibit 8,

2 U.S. Citizenship and Immigration Services, Notice of Action to Jesus Alonso Arreola

3 Robles Re I-821D, Deferred Action for Childhood Arrivals, dated Mar. 6, 2017.

4

Eight months later, on October 5, 2017, Plaintiff filed a Complaint seeking an

5 order restoring his DACA and employment authorization, and requiring Defendants to

6 provide him with a further explanation for their decision and an opportunity to respond.

7 See Dkt. No. 1. On October 18, Plaintiff filed a Motion for Preliminary Injunction,

8 seeking to vacate Defendants’ termination of his DACA and EAD, or in the alternative,

9 order Defendants to temporarily reinstate his DACA and EAD and provide him an

11 opportunity to challenge the termination of his DACA. See Dkt. Nos. 16, 16-2.

12

ARGUMENT

13 I. Standards of Review

14

“The purpose of a preliminary injunction is merely to preserve the relative

15 positions of the parties until a trial on the merits can be held.” Univ. of Texas v.

16 Camenisch, 451 U.S. 390, 395 (1981). As a result, it is generally inappropriate at the

17 “preliminary-injunction stage to give a final judgment on the merits.” Id.; see Senate of

18 State of Cal. v. Mosbacher, 968 F.2d 974, 978 (9th Cir. 1992) (holding that “judgment on

19 the merits in the guise of preliminary relief is a highly inappropriate result”).

20

An injunction is “a drastic and extraordinary remedy, which should not be granted

21 as a matter of course.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 142 (2010).

22 A plaintiff seeking a preliminary injunction “must establish” that: (1) it is likely to

23 succeed on the merits of its claims; (2) it is likely to suffer irreparable harm absent

24 preliminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is in

25 the public interest. Winter, 555 U.S. at 20; see also Henry Schein, Inc. v. Cook, 191 F.

26 Supp. 3d 1072, 1076 (N.D. Cal. 2016) (“The applicable legal standard for a motion for a

27 temporary restraining order is the same as that for a motion for a preliminary

28 injunction.”). Preliminary injunctive relief is an extraordinary remedy never awarded as

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1 of right, Winter, 555 U.S. at 20, and the party seeking such relief bears the burden of

2 establishing the prerequisites to this extraordinary remedy. Earth Island Inst. v. Carlton,

3 626 F.3d 462, 469 (9th Cir. 2010).

4

Alternatively, a party must show “‘serious questions going to the merits’ and a

5 hardship balance that tips sharply toward the plaintiff,” as well as a likelihood of

6 irreparable harm, and that the injunction is in the public interest. Alliance for the Wild

7 Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). Showing “serious questions

8 going to the merits” requires a plaintiff to demonstrate a “substantial case for relief on the

9 merits.” Leiva-Perez v. Holder, 640 F.3d 962, 967-68 (9th Cir. 2011).

11

Finally, to the extent that Plaintiff seeks an injunction that “orders a responsible

12 party to ‘take action’,” Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996), it is a

13 mandatory injunction. When granting mandatory injunctive relief, “courts should be

14 extremely cautious” and will apply a heightened standard in reviewing whether a plaintiff

15 has established a basis for injunctive relief. Stanley v. Univ. of S. Cal., 13 F.3d 1313,

16 1319 (9th Cir. 1994) (internal citations omitted). Mandatory injunctions “go[ ] well

17 beyond simply maintaining the status quo pendente lite [and] is particularly disfavored.”

18 Id. at 1320 (internal citations omitted). In a mandatory injunction request, a moving party

19 “must establish that the law and facts clearly favor [their] position, not simply that [they]

20 [are] likely to succeed.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015).

21 II. Plaintiff Cannot Sustain the Requirements for Preliminary Relief.

22

The factors to grant a preliminary injunction are not met here. To start, Plaintiff

23 cannot show irreparable harm from the loss of a peripheral benefit in work authorization

24 that he failed to challenge for eight months. Nor can he establish a likelihood of success

25 on the merits of his claim, or that the facts and law clearly favor his position, for two

26 important reasons. The first is that, regardless of how Plaintiff frames his argument, both

27 the APA and REAL ID Act preclude judicial review of the Secretary’s discretionary

28 decisions, including the decision to initiate removal proceedings and to terminate a grant

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1 of deferred action. Further, any viable claim Plaintiff may have related to his removal

2 proceedings, including any constitutional challenges, can only be raised in immigration

3 court, and, if requested, through appeal to the Board of Immigration Appeals and then the

4 appropriate circuit court. Second, even if this Court were to find jurisdiction to consider

5 Plaintiff’s claims, Plaintiff can establish no procedural or constitutional right to the

6 additional process he now seeks. Moreover, any procedural failings would not prejudice

7 Plaintiff where he was caught and admitted to engaging in criminal activity. Where

8 Plaintiff has offered no evidence or argument to overcome the facts of his criminal

9 activity, he cannot show that the law and facts clearly favor his position or that there he is

11 likely to succeed on his claim that his DACA was wrongfully terminated.

12

A. Plaintiff Cannot Demonstrate Imminent, Irreparable Harm.

13

The harm that Plaintiff alleges in support of his motion arises from the alleged loss

14 of opportunity to maintain employment through his EAD, which terminated along with his

15 DACA following issuance of the NTA in February 2017. Dkt. No. 16-2 at 21-22. The

16 Court should deny Plaintiff’s motion at the outset because the imminence of the harm

17 Plaintiff cites is doubtful given the period of time that has elapsed between his loss of

18 employment authorization and the filing of this action. See, e.g., Quach v. Bank of Am.,

19 Nat. Ass’n, No. 12–5037 EJD, 2012 WL 4498873, at *4 (N.D. Cal. Sept. 28, 2012)

20 (finding that an ex parte temporary restraining order to enjoin a foreclosure sale was not

21 justified where plaintiffs were aware for months of the potential trustee’s sale).

22 Defendants terminated Plaintiff’s DACA eight months ago, and Plaintiff’s failure to raise

23 this action until now casts doubt on his claims of urgent, irreparable harm unless his

24 DACA and employment authorization are reinstated immediately. See, e.g., Dkt. No. 16-

25 2 at 27 (“Time without DACA is ‘productive time irretrievably lost’ that Mr. Arreola

26 could be spending in his chosen career path . . . .”).

27

In addition, the degree of harm Plaintiff alleges stretches beyond the relief

28 provided by an order maintaining the status quo. Plaintiff asks this Court to grant him a

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1 permanent enjoinder against Defendants terminating his DACA for the remainder of its

2 full term. See Dkt. No. 16-2 at 7 (emphasis added). While this request for complete relief

3 is already inappropriately raised in a motion for preliminary injunction, see Mosbacher,

4 968 F.2d at 978, Plaintiff conflates even the temporary and already extraordinary remedy

5 of a preliminary, mandatory injunction—one reinstating his DACA for the time necessary

6 to reach the merits of his claims—with a form of permanent relief he would not receive

7 even under the most optimal outcome on the merits. Were the Court to conclude, as the

8 courts in Colotl and Gonzalez did, that it has the jurisdiction to review the procedural

9 steps leading to a DACA termination, but not the decision itself, the most relief the Court

11 could grant is an order to Defendants to cure what the Court interprets as procedural

12 defects in the termination process. See Colotl v. Kelly, No. 1:17-CV-1670-MHC, 2017

13 WL 2889681, at *9 (N.D. Ga. June 12, 2017) (“[Section] 1252(g) strips this Court of

14 jurisdiction to review the government's ultimate discretionary determination as to

15 Plaintiff's DACA status.”); see also Gonzalez v. U.S. Dep't of Homeland Sec., No.

16 17CV1840 JM(NLS), 2017 WL 4340385, at *4 (S.D. Cal. Sept. 29, 2017) (finding the 17 same).7

18

Thus, the irreparable harm Plaintiff claims of not having his DACA through

19 August 2018 is overstated at best.

20

21

22 7 Plaintiff’s reliance on Colotl v. Kelly is misplaced. See, e.g., Dkt. No. 16-2, at 2, 4, 17, 22. Colotl is distinguishable. In addition to being wrongly decided, the termination of DACA there did not result from
23 the issuance of a Notice to Appear (“NTA”). However, here, Plaintiff’s DACA was automatically 24 terminated by the issuance of an NTA, a process squarely supported by relevant procedures. The only
other matter raised by Plaintiff, Gonzalez, 2017 WL 4340385, while factually similar to the present matter, 25 is also inapposite and wrongly decided. Defendants dispute that court’s findings, and specifically note that
the court’s interpretation of 8 U.S.C. § 1252(b)(9) and reliance on Singh v. Gonzales, 499 F.3d 969, 978 26 (9th Cir. 2007) are contrary to J.E.F.M., discussed below. Defendants also note that the court there 27 buffered Gonzalez’s irreparable harm claim as stemming from the announced winding down of DACA
which compromised his ability to request an extension of DACA prior to October 5, 2017. 2017 WL 28 4340385 at *6-7. Here, Plaintiff’s delayed claim of irreparable harm lacks the urgency the Gonzalez court
interpreted on those facts.

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1

B. Plaintiff is not Likely to Succeed on the Merits.

2

Whether viewed as a preliminary or permanent injunction, the Court cannot grant

3 Plaintiff relief because he cannot succeed on the merits of his claims. First, this Court

4 lacks jurisdiction to review Plaintiff’s challenge to CBP’s discretionary determination to

5 issue him an NTA, which had the result of terminating his DACA. Additionally, nothing

6 in the APA or constitutional jurisprudence establishes a right to review or constrain

7 DHS’s exercise of discretion or to grant Plaintiff procedural rights other than those

8 available to him through his removal proceedings. Finally, even if Plaintiff had a viable

9 claim subject to review in this Court, he has failed to offer sufficient evidence to show he

is likely to succeed on the merits.
11

12

i. This Court Lacks Jurisdiction to Review DHS’s Initiation of

Removal Proceedings, and any Judicial Challenges to Removal

13

Must be Brought in a Petition for Review.

14

a. The Court Lacks Jurisdiction under the APA.

15

The APA permits persons aggrieved by final agency action to obtain judicial

16 review in federal court where “there is no other adequate remedy in a court.” See 5

17 §§ U.S.C. 702, 704. A reviewing court shall set aside agency action found to be

18 “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,”

19 or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D).

20 However, the APA also precludes judicial review of agency decisions that are “committed

21 to agency discretion by law.” 5 U.S.C. § 701(a)(2). In Heckler v. Chaney, the Supreme

22 Court held that “an agency’s decision not to take enforcement action should be presumed

23 immune from judicial review under § 701(a)(2).” 470 U.S. 821, 832 (1985).

24

Individual DACA decisions fall squarely within that category of agency discretion.

25 A decision to defer action is committed to agency discretion by law because notifying an

26 alien that DHS has decided to forbear from removing him for a designated period is an

27 exercise of prosecutorial discretion, and a court has no meaningful standard against which

28 to judge the agency’s exercise of discretion to forbear from enforcement for that period.

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1 See Heckler, 470 F.3d at 830; see also Morales de Soto v. Lynch, 824 F.3d 822, 828 (9th

2 Cir. 2016) (noting that “the exercise of prosecutorial discretion is a type of government 3 action uniquely shielded from and unsuited to judicial intervention”).8 Argument pursuant

4 to U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954), that Defendants failed

5 to follow their own procedures does not help Plaintiff because the Accardi doctrine is

6 inapplicable in the context of internal operating guidelines that preserve the exercise of

7 agency discretion. See Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1009 (9th Cir. 1987)

8 (finding amended Operating Instructions were “general statements of policy” because the

9 instructions preserved the agency’s flexibility and opportunity to make discretionary

11 determinations); id. (“a directive must not establish a binding norm and must leave

12 agency officials free to consider the individual facts in the various cases that arise and to

13 exercise discretion”) (internal citations and quotations omitted).

14

For these reasons, Plaintiff cannot establish any likelihood of success on the

15 merits. The APA specifically precludes review of the action that Plaintiff challenges – the

16 discretionary decision to issue an NTA and terminate Plaintiff’s DACA and EAD.

17 Moreover, as the challenged action is discretionary, there is no law to apply.

18

b. The Court Lacks Jurisdiction under 8 U.S.C. § 1252(g), as

19

Amended by the REAL ID Act.

The issuance of an NTA to an alien is a necessary predicate step to commencing
20

removal proceedings under 8 U.S.C. § 1229a. See 8 U.S.C. § 1229(a). Through the INA,
21

as amended by the REAL ID Act of 2005 and codified at 8 U.S.C. § 1252(g), Congress
22

explicitly precluded judicial review of any challenge arising from any decision or action
23

to commence removal proceedings. That statute states, in relevant part:
24

25 8 Plaintiff’s reliance on cases that discuss violations of non-discretionary procedures in agency regulations
26 are inapposite where deferred action and related employment authorization are entirely discretionary concepts not tied to statute or regulation. See Dkt. No. 16-2 at 18, 20, citing Singh v. Bardini, No. 09-cv-
27 3382, 2010 WL 308807, at *7 (N.D. Cal. Jan. 19, 2010) & Singh v. Vasquez, No. 08-cv-1901, 2009 WL
28 3219266, at *5 (D. Ariz. Sept. 30, 2009), aff’d 448 F. App’x 776 (9th Cir. 2011).

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1

Except as provided in this section and notwithstanding any other provision

of law (statutory or nonstatutory), including section 2241 of Title 28, or any

2

other habeas corpus provision, and sections 1361 and 1651 of such title,

3

no court shall have jurisdiction to hear any cause or claim by or on behalf

of any alien arising from the decision or action by the Attorney General to

4

commence proceedings, adjudicate cases, or execute removal orders against

5

any alien under this chapter.

6 8 U.S.C. § 1252(g).9 The Supreme Court explained that § 1252(g) was “directed against a

7 particular evil: attempts to impose judicial constraints upon prosecutorial discretion.”

8 AADC, 525 U.S. at 485 n.9.

9

Applying 8 U.S.C. § 1252(g), the Ninth Circuit has held there is no subject matter

11 jurisdiction to review a decision to grant DACA. See, e.g., Vilchiz-Soto v. Holder, 688

12 F.3d 642, 644 (9th Cir. 2012); Rodriguez v. Sessions, No. 15-72487, 2017 WL 695192, at

13 *1 (9th Cir. Feb. 22, 2017).10 This precedent applies to the present case and precludes

14 judicial review of the decision to issue an NTA, which terminated Plaintiff’s DACA, and

15 which was a predicate step to commencing removal proceedings. See, e.g., Samayoa-

16 Martinez v. Holder, 558 F.3d 897, 901-02 (9th Cir. 2009).

17

Plaintiff may contend that the present case is distinguishable from these earlier

18 cases because it involves the Government’s decision to issue an NTA, and thereby

19 terminate DACA, rather than a determination as to whether an individual is considered

20 for DACA in the first place. But nothing in the language of 8 U.S.C. § 1252(g) supports

21 9 For example, courts lack jurisdiction to review the timing of the commencement of removal proceedings.
22 See Chavez-Navarro v. Ashcroft, 57 F. App’x 349 (9th Cir. 2003). Moreover, “[a]s a general matter . . .
23 an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.” AADC, 525 U.S. at 488, 491.
24 10 This authority is consistent with earlier case law interpreting the 1981 Operating Instructions, a previous
25 policy that provided guidelines for the exercise of deferred action. That authority concluded that district courts lack jurisdiction to review the district director’s decision not to recommend deferred action.
26 Romeiro de Silva v. Smith, 773 F.2d 1021, 1025 (9th Cir. 1985); see also Carranza, v. I.N.S., 277 F.3d 65,
27 72 (1st Cir. 2002) (supporting “general proscription against judicial review of any aspect” of prosecutorial deliberations) (citing Wayte v. United States, 470 U.S. 598, 607-8 (1985)). Neither Plaintiff nor any recent
28 court to address these issues has distinguished DHS’s guidance regarding the DACA policy from the 1981 Operating Instructions.

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1 such a distinction and both decisions are similar in the relevant respect – they both

2 involve the exercise of prosecutorial discretion. Congress had no reason to preclude

3 judicial review of the favorable exercise of prosecutorial discretion (where individuals

4 self-select whether to request DACA in light of agency guidelines) while permitting

5 judicial review of an agency’s decision to issue an NTA so that it may commence

6 removal proceedings and thereby terminate DACA (where the agency weighs competing

7 factors and allocates its resources). See Heckler, 470 U.S. at 831 (discussing the

8 Executive’s discretion to spend resources on “this violation or another”). If anything, the

9 decision to issue an NTA, which results in termination of DACA, is more closely

11 connected with the central purpose of 8 U.S.C. § 1252(g) – to prevent “judicial

12 constraints on prosecutorial discretion.” See AADC, 525 U.S. at 485 n.9. Thus, decisions

13 to issue an NTA and thereby terminate DACA are even further outside the scope of

14 judicial review than determinations of whether to grant DACA in the first place.

15

Additionally, the Court should reject, as contrary to 8 U.S.C. § 1252(g), Plaintiff’s

16 attempt to frame his challenge of the Government’s decision to initiate removal

17 proceedings as a challenge to the decision-making process to terminate his DACA.

18 Section 1252(g) is not limited to claims arising from the adjudication of cases. It broadly

19 precludes judicial review of “cause[s] or claim[s]” that arise from the decision “or action”

20 to “commence proceedings” against any alien. See, e.g., Sissoko v. Rocha, 509 F.3d 947,

21 948-50 (9th Cir. 2007) (finding claim of money damages arose from decision or action to

22 commence removal proceedings and was, thus, barred by 8 U.S.C. § 1252(g)).11 To hold

23

24

11 In Sissoko, the Ninth Circuit held that because the plaintiff’s detention arose from the decision to commence removal proceedings, Bivens jurisdiction was barred by 8 U.S.C. § 1252(g). Sissoko, 509 F.3d

25 at 949. The court distinguished between these types of claims and those raised in an earlier Ninth Circuit

case discussing 8 U.S.C. § 1252(g), Wong v. United States, 373 F.3d 952 (9th Cir. 2004). Id. In Wong, the 26 plaintiff’s counsel expressly disclaimed any challenge to the execution of removal and explained that her

27 claims only implicated “actions other than that removal, or the commencement of proceedings . . . .” 373 F.3d at 964 (emphasis original). Thus, the claims at issue in Wong did not implicate the agency’s

28 prosecutorial discretion and did not pose a threat of “obstruction of the institution of removal proceedings

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1 otherwise would render 8 U.S.C. § 1252(g) a dead letter because any alien could seek to

2 enjoin or otherwise challenge the commencement of removal proceedings through this

3 type of creative pleading. Lastly, Plaintiff’s claims under the APA are barred by 8 U.S.C.

4 § 1252(g) regardless of whether they challenge nondiscretionary rather than discretionary

5 duties, because 8 U.S.C. § 1252(g) does not distinguish between discretionary and 6 nondiscretionary duties.12 See Silva v. United States, 866 F.3d 938, 940 (8th Cir. 2017)

7 (rejecting contention that § 1252(g) applies only to discretionary decisions of the

8 Secretary, emphasizing that § 1252(g), by its plain language, “makes no distinction

9 between discretionary and nondiscretionary decisions”); see also Torres-Aguilar v. INS,

11 246 F.3d 1267, 1271 (9th Cir. 2001) (holding that “a petitioner may not create the

12 jurisdiction that Congress chose to remove simply by cloaking [a claim] in constitutional

13 garb” or “through the facile device of re-characterizing” claims to avoid a clear

14 jurisdictional bar).

15

In sum, regardless of how Plaintiff seeks to frame the issue, 8 U.S.C. § 1252(g)

16 precludes judicial review of the Government’s exercise of its prosecutorial discretion.

17 Accordingly, the decisions of DHS to issue an NTA and place Plaintiff in removal

18 proceedings, and thereby terminate DACA, are not subject to judicial review, and the

19 Court should reject Plaintiff’s motion for preliminary relief.

20

21

22

or the execution of removal orders . . . .” Id. at 970. Wong is clearly distinguishable from the present case in which Plaintiff is directly challenging the decision to issue an NTA, which terminated DACA and

23 initiated the commencement of removal proceedings. As a result, his claims are barred by 8 U.S.C. § 1252(g). See Sissoko, 509 F.3d at 949.
24 12 To be sure, in other contexts, courts distinguish between discretionary and nondiscretionary duties. For

25 example, under 5 U.S.C. § 706(a)(1), a plaintiff can assert an APA claim (akin to a mandamus claim)

seeking to compel an agency to perform a duty but only if it is a duty compelled by statute (that is, a matter 26 over which the agency has no discretion). See, e.g., Zixiang Li v. Kerry, 710 F.3d 995, 1003 (9th Cir.

27 2013). Similarly, there are additional jurisdictional bars contained in different subsections of 8 U.S.C. § 1252. See AADC, 525 U.S. at 486 (“[M]any provisions of IIRIRA are aimed at protecting the Executive’s

28 discretion from the courts – indeed, that can fairly be said to be the theme of the legislation.”) (emphasis

omitted).

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1

c. Any Viable Claims Must be Channeled through Plaintiff’s

Removal Proceedings and not this Court.

2

To the extent Plaintiff has any viable claims, the REAL ID Act, codified in 8 U.S.C.

3 §§ 1252(a)(5) and 1252(b)(9), bar him from raising his claims in district court. Under a

4 statutory scheme designed to “put an end to the scattershot and piecemeal nature of the

5 review process,” all claims arising from removal proceedings must be raised in

6 immigration court and channeled through the petition for review process. Aguilar v.

7 Immigration & Customs Enf’t, 510 F.3d 1, 9-10 (1st Cir. 2007). The Ninth Circuit has

8 affirmed this channeling requirement without exception. J.E.F.M. v. Lynch, 837 F.3d

9 1026, 1029 (9th Cir. 2016). Section 1252(a)(5), entitled “[e]xclusive means of review,”

11 requires that “a petition for review filed with an appropriate court of appeals . . . shall be

12 the sole and exclusive means for judicial review of an order of removal . . . .” 8 U.S.C.

13 § 1252(a)(5). Section 1252(b)(9) provides “[j]udicial review of all questions of law and

14 fact, including interpretation and application of constitutional and statutory provisions,

15 arising from any action taken or proceeding brought to remove an alien from the United

16 States under this subchapter shall be available only in judicial review of a final order

17 under this section.” 8 U.S.C. § 1252(b)(9) (emphasis added); see, e.g., J.E.F.M., 837 F.3d

18 at 1038 (explaining that, even if never raised in removal proceedings, a court of appeals

19 has the authority to resolve questions of constitutional rights).

20

These channeling provisions are not limited to challenges to final orders of removal

21 but preclude review in district court of “any” challenge “arising from any action” taken to

22 remove an alien. See J.E.F.M., 837 F.3d at 1031. The second sentence of Section

23 1252(b)(9) explicitly precludes jurisdiction to review (i) orders, “or [(ii)] such questions

24 of law or fact.” Id. The questions of law and fact described in the preceding sentence

25 modify those “arising from any action taken or proceeding brought to remove an alien

26 from the United States.” Id. Thus, claims arising from “any action taken” to remove an

27 alien from the United States – including the decision to issue an NTA, a necessary action

28 toward commencing removal proceedings, and one that automatically terminates DACA –

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1 are channeled through the petition for review process and cannot be brought in federal

2 district court. To hold otherwise would effectively excise the words “any action taken”

3 from the statute. See Aguilar, 510 F.3d at 10; cf. Martinez v. Napolitano, 704 F.3d 620,

4 623 (9th Cir. 2012) (in the context of an APA claim, ignoring how claim “is framed” for

5 purposes of determining whether claim must be channeled through the petition for review

6 process). Congress’s intent was simple: if the issue is one that can be raised in removal

7 proceedings, and ultimately in a petition for review, then the statute precludes district

8 court review). See J.E.F.M., 837 F.3d at 1034 (citing H.R. Rep. No. 109-72, at 173

9 (statute was “intended to preclude all district court review of any issue raised in a removal

11 proceeding)); cf. Aguilar, 510 F.3d at 9-10 (“Congress plainly intended to put an end to

12 the scattershot and piecemeal nature of the review process. . . .”).

13

This approach effectuates the general rule precluding simultaneous review of a

14 question by both an administrative body and a federal court. See Acura of Bellevue v.

15 Reich, 90 F.3d 1403, 1408-9 (9th Cir. 1996). Moreover, there is no “general constitutional

16 right” for an alien to review prosecutorial deliberations in order to avert or prevent

17 removal proceedings. See Carranza, 277 F.3d at 72, citing AADC, 525 U.S. at 487-92.

18

Here, despite framing his argument as a challenge to his DACA termination,

19 Plaintiff challenges the Secretary’s discretionary decision to issue an NTA, which had the

20 effect of terminating his DACA. See Dkt. No. 16-2 at 7, 28 (“Mr. Arreola respectfully

21 asks this Court to . . . vacate Defendants’ unlawful revocation of his DACA and work

22 permit . . . .”). Specifically, Plaintiff argues he has constitutional and procedural interests

23 in deferred action and in employment authorization that are protected by due process and

24 the APA. Id. at 21-22. But where Plaintiff challenges Defendants’ exercise of

25 prosecutorial discretion to issue an NTA – a predicate step in commencing removal

26 proceedings – which has the effect of terminating deferred action and, upon filing with

27 the immigration court, employment authorization, his challenge necessarily arises from

28 “action taken or proceedings brought to remove an alien.” See 8 U.S.C. §§ 1252(a)(5);

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1 1252(b)(9). In fact, he is challenging the very validity of the “proceedings.” See AADC, 2 525 U.S. at 484-85 (explaining what deferred action is).13

3

The Ninth Circuit held that taken together, 8 U.S.C. §§ 1252(a)(5) and (b)(9)

4 “mean that any issue – whether legal or factual – arising from any removal-related

5 activity can be reviewed only through the PFR process.” J.E.F.M., 837 F.3d at 1031

6 (emphases in original). Plaintiff may prefer that his constitutional claims be resolved now

7 rather than at a later date, but his preference provides no basis for this Court to exercise

8 jurisdiction over claims that are subject to a statutory channeling provision. See id. at

9 1035-36, 1038.

11

By arguing that Plaintiff is constitutionally entitled to deferred action (i.e., that

12 DHS must defer acting to remove him) he is, by definition, arguing that DHS is barred 13 from acting to remove him. Those claims, at least in these circumstances, must be 14 channeled through petitions for review. See AADC, 525 U.S. at 485 n.9.

15

ii. Nothing in the Constitution or APA Establishes a Right that

16

Constrains DHS’s Exercise of Discretion.

Even if this Court finds that the INA’s jurisdiction-stripping and channeling
17

provisions might not preclude review of Plaintiff’s claims, the Court should still deny
18

Plaintiff’s motion for injunctive relief because Plaintiff’s merits claims fail as a matter of
19

law. Here, Plaintiff can establish neither a constitutional nor an administrative right to
20

receive any process regarding the termination or denial of DACA because deferred
21

action is necessarily an exercise of the Executive’s prosecutorial discretion. In fact, DHS
22

acted based on that discretion by issuing an NTA based on factors involving Plaintiff’s
23

24

25 13 For these reasons, Plaintiff’s reliance on Judulang v. Holder, 565 U.S. 42, 55 (2011) and Villa-Anguiano
26 v. Holder, 727 F.3d 873 (9th Cir. 2013), to support his constitutional claims is misplaced. Dkt. No. 16-2
27 at 14. While the courts reviewing final orders of removal can consider the application of due process with regard to an exercise of discretion, Congress specifically gave circuit courts that authority pursuant to 8
28 U.S.C. § 1252(a)(2)(D) to consider “constitutional claims or questions of law raised upon a petition for review.”

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1 criminal activity, which put Plaintiff into removal proceedings and had the effect of

2 terminating his DACA. See Dkt. Nos. 16-7, 16-11, 16-12.

3

a. Termination of DACA does not Infringe upon an Established

4

Constitutional Interest.

5

First, the mere fact that an individual alleges an injury does not result in a loss of

liberty. Paul v. Davis, 424 U.S. 693, 712 (1976). The cases on which Plaintiff relies to
6

support an infringement on his liberty interest are inapposite. In Morrissey v. Brewer,
7

408 U.S. 471 (1972), the Supreme Court considered the right of parolees to remain at
8

liberty as long as the conditions of parole were not violated. However, Plaintiff cannot
9

allege that his actual liberty is presently at issue.
11

Plaintiff’s claims regarding the right to support his family conflict with the Ninth
12

Circuit’s determination that there is no “right to family unity” to reside in the United
13

States “simply because other members of their family are citizens or lawful permanent
14

residents.” De Mercado v. Mukasey, 566 F.3d 810, 816 (9th Cir. 2009). The same goes
15

for Plaintiff’s claims regarding the right to earn a livelihood because there is no
16

recognized right of aliens to work in the United States without authorization. See Pilapil
17

v. INS, 424 F.2d 6, 11 (10th Cir. 1970), cert denied, 400 U.S. 908 (1970); WJA Realty
18

Ltd. P’ship v. Nelson, 708 F. Supp. 1268, 1273 (S.D. Fla. 1989) (holding that
19
noncitizens do not have a constitutional right to work without authorization). Thus,
20

there is no judicial review of the decision to terminate work authorization. See Perales
21

v. Casillas, 903 F.2d 1043, 1047-48 (5th Cir. 1990) (“[T]here is nothing in the [INA]
22

expressly providing for the grant of employment authorization . . . . to aliens who are
23
the beneficiaries of approved petitions”) (vacating the challenged portion of the
24
injunction); see, e.g., Kaddoura v. Gonzales, No. C06-1402 RSL, 2007 WL 1521218, at
25
*4-5 (W.D. Wash. May 21, 2007) (finding a lack of judicial review). As a matter of law,
26
a plaintiff cannot assert an established constitutional right to DACA or work
27
authorization.
28

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1

b. Termination of DACA does not Infringe upon a

Constitutional Interest based on Entitlement.

2

“To have a property interest in a benefit, a person clearly must have more than an

3 abstract need or desire for it. He must have more than a unilateral expectation of it. He

4 must, instead, have a legitimate claim of entitlement to it.” Blantz v. Cal. Dep’t of Corr.

5 & Rehab., 727 F.3d 917, 922 (9th Cir. 2013) (citing Bd. of Regents of State Colleges v.

6 Roth, 408 U.S. 564, 577 (1972); see also Mendez-Garcia v. Lynch, 840 F.3d 655, 665

7 (9th Cir. 2016) (underscoring that aliens cannot claim a cognizable due process interest

8 in discretionary immigration relief or benefits). 14 The Supreme Court has held that even

9 a practice of “generously” granting a “wholly and expressly discretionary state

11 privilege” does not create a legal entitlement to that benefit. See Gerhart v. Lake Cnty.,

12 Mont., 637 F.3d 1013, 1020-21 (9th Cir. 2011) (“A person’s belief of entitlement to a

13 government benefit, no matter how sincerely or reasonably held, does not create a

14 property right if that belief is not mutually held by the government.”) (citations

15 omitted).

16

A property interest subject to procedural due process protection may arise where

17 such interest is secured by “existing rules or understandings that stem from an

18 independent source . . . .” Roth, 408 U.S. at 577. The independent source can be a

19 statute, see Goss v. Lopez, 419 U.S. 565, 572-73 (1975); a regulation, see Glenn v.

20 Newman, 614 F.2d 467, 471-72 (5th Cir. 1980), overruled on other grounds by Shearer

21 v. Bowen, 216 F.3d 1080 (5th Cir. 2000); an express or implied contract, see Perry v.

22

23
24 14 The Ninth Circuit is not alone in finding aliens lack a cognizable Fifth Amendment due process interest in any form of discretionary immigration relief or benefit. See, e.g., Salgado-Toribio v. Holder, 713 F.3d
25 1267, 1271 (10th Cir. 2013); Sanchez-Velasco v. Holder, 593 F.3d 733, 737 (8th Cir. 2010); Yuen Jin v. Mukasey, 538 F.3d 143, 156-57 (2d Cir. 2008); Khan v. Mukasey, 517 F.3d 513, 518 (7th Cir. 2008);
26 Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006); Hernandez v. Gonzales, 437 F.3d 341, 345-46 (3d 27 Cir. 2006); Jupiter v. Ashcroft, 396 F.3d 487, 492 (1st Cir. 2005); Garcia v. U.S. Att’y Gen., 329 F.3d
1217, 1224 (11th Cir. 2003); Smith v. Ashcroft, 295 F.3d 425, 429-30 (4th Cir. 2002); Ashki v. INS, 233 28 F.3d 913, 921 (6th Cir. 2000); see also Tefel v. Reno, 180 F.3d 1286, 1301 (11th Cir. 1999) (“awarding
and then revoking discretionary relief does not offend due process”).

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1 Sindermann, 408 U.S. 593, 601-02 (1972); or a mutually explicit understanding. Id. at

2 602-03. In a pair of companion cases handed down the same day, the Supreme Court

3 explained that “government employees can have a protected property interest in their

4 continued employment if they have a legitimate claim to tenure or if the terms of the

5 employment make it clear that the employee can be fired only for cause.” Blantz, 727

6 F.3d at 922-23 (comparing Roth, 408 U.S. 576-78, with Perry, 408 U.S. at 599-603).

7

For example, when a professor sued for deprivation of property without due

8 process after his employment contract was not renewed, the Court found that the

9 professor lacked a protected property interest in his continued employment because his

11 employment contract was for a fixed one-year term. Blantz, 727 F.3d at 922-23 (citing

12 Roth, 408 U.S. at 566). Similarly, when a nurse sued over her termination, relying on

13 orientation documents that stated “termination can occur as a result of the performance

14 review procedures” detailed in the document, the Ninth Circuit concluded she lacked a

15 property interest in her continued employment because the documents “do not guarantee

16 that every termination must be preceded by a peer review process or any other specified

17 departmental procedures.” Id. at 924.

18

Similarly, nothing in the DACA memoranda, public Q&A, or the DACA SOP

19 indicate any promise of benefits or entitlement to initial or continuing deferred action or

20 DACA-based employment authorization. See, e.g., Dkt. No. 16-23 (USCIS FAQ)

21 (“DACA is an exercise of prosecutorial discretion and deferred action may be terminated

22 at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion.”). Here,

23 the DACA guidance and policies made clear that a recipient of DACA has no

24 constitutionally protected interest in the continuation of DACA or a constitutionally

25 protected interest in notice prior to termination. Specifically, the 2012 Memorandum

26 states, “[t]his memorandum confers no substantive right, immigration status or pathway

27 to citizenship. Only the Congress, acting through its legislative authority, can confer

28 these rights.” Dkt. No. 16-13. In addition, the USCIS FAQs specifically state that

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1 deferred action can be terminated before it expires, explaining, “DACA is an exercise of

2 prosecutorial discretion and deferred action may be terminated at any time, with or

3 without a Notice of Intent to Terminate, at DHS’s discretion.” Dkt. No. 16-23 at Q:27.

4 The USCIS FAQs further explain that the phrase “national security or public safety

5 threat” includes but is not limited to “gang membership, participation in criminal

6 activities, or participation in activities that threaten the United States.” See id. at Q:65 7 (emphasis added).15 Reading these documents in context, a DACA recipient does not

8 have a protected property interest in the continuation of his or her DACA or DACA-

9 based employment authorization. Gerhart, 637 F.3d at 1020-21. These policies and

11 guidance are consistent with longstanding authority regarding the exercise of

12 prosecutorial discretion in the context of immigration law. See AADC, 525 U.S. at 484

13 (recognizing that deferred action is a “commendable exercise in administrative discretion,

14 developed without express statutory authorization”).

15

Accordingly, the Court should deny Plaintiff’s motion for emergency relief because

16 his claims fail as a matter of law.

17

c. The APA Affords Plaintiff no Actionable Interest Regarding

18

the Termination of DACA or Employment Authorization.

Assuming jurisdiction arguendo, there is no basis to conclude that Defendants
19

failed to comply with any procedures requiring notice to a DACA recipient before
20

issuing an NTA that terminates DACA, or to issue a notice of the termination of that
21

DACA. The USCIS FAQ specifically states that DACA “may be terminated at any time,
22

with or without a Notice of Intent to Terminate, at DHS’s discretion.” Dkt. No. 16-23 at
23

Q:27. Contrary to Plaintiff’s assertions, while USCIS procedural guidance provides
24

generally for a review process in certain circumstances when USCIS terminates
25

deferred action, when DHS terminates deferred action through the issuance of an NTA,
26

27 15 Although criminal activity “can” result in termination, it is not the case that “every termination must be 28 preceded” by criminal activity. See Blantz, 727 F.3d at 924. The Government retains the discretion to
terminate DACA for other reasons.

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1 there is no requirement to provide notice or an opportunity to respond. See Dkt. No. 16-

2 2 at 25.

3

For example, where CBP or ICE issues a Notice to Appear, the DACA SOP

4 provides that DACA and the EAD terminate automatically.16 Dkt. No. 16-24 at 38, 42.

5 CBP or ICE may decide to issue an NTA, and USCIS will generally issue a Notice of

6 Action informing the individual that his DACA and Employment Authorization

7 Document terminated automatically due to the NTA. Dkt. No. 16-24 at 42 (“On [Date

8 NTA served on alien], [ICE] issued you a Notice to Appear (NTA). . . . USCIS is

9 notifying you that your deferred action as a childhood arrival and your employment

11 authorization terminated automatically as of the date your NTA was issued.”). The

12 determination to issue the NTA remains within the discretion of the agency. 8 C.F.R.

13 § 239.1(a) (“Any immigration officer, or supervisor thereof, performing an inspection of

14 an arriving alien at a port-of-entry may issue a notice to appear to such alien.”); see, e.g.,

15 Villa-Anguiano, 727 F.3d at 878 (discussing historic roots of this discretion).

16

Plaintiff’s argument that DHS internal procedures require notice and an

17 opportunity to respond in every DACA termination is incorrect, and it is based on a

18 selective interpretation of those procedures. See, e,g,. Dkt. No. 16-2 at 9, 13.

19 Importantly, the DACA SOP was written by USCIS for USCIS agents and officers, and

20 it does not encroach on the authority of ICE or CBP to arrest, detain, or issue an NTA to

21 an individual. Id. at 9, citing Dkt. No. 16-24 at 16 (“This SOP describes the procedures

22 Service Centers are to follow when adjudicating DACA requests.”). In defining DACA

23 policy, the 2012 DHS memorandum instructed ICE and CBP to “immediately exercise

24 their discretion on an individual basis” in determining when to issue an NTA or defer

25

26 16 While the DACA SOP states the EAD terminates when the NTA is issued, the EAD regulation states 27 EAD termination occurs when the NTA is served on an immigration court. 8 C.F.R. § 274a.14(a)(1)(ii).
Here, the NTA issued on February 12, 2017, the NTA was served on the immigration court on February 28 23, and Plaintiff received the Notice of Action informing him his DACA and EAD terminated on March
6. Thus, any discrepancy between the SOP and the regulation did not impact Plaintiff.

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1 action. Dkt. No. 16-13. Defendant DHS’s reading of its own authority to provide for

2 automatic termination of DACA with the issuance of NTAs is well supported by

3 Defendant’s consistent practice, and is thus “entitled to substantial weight.” See Exhibit

4 H, Declaration of Ron Thomas at ¶ 4; Chemehuevi Indian Tribe v. Brown, No.

5 EDCV161347JFWMRWX, 2017 WL 2971864, at *8 (C.D. Cal. Mar. 30, 2017) (“The

6 agency's consistent practice of approving compacts with duration provisions . . . in an

7 area within its expertise is itself entitled to at least traditional deference under Skidmore

8 v. Swift & Co., 323 U.S. 134 (1944), due, in part, to the agency's specialized experience

9 in matters relating to Indian gaming.”).

11

Here, Defendants obtained information through Plaintiff’s arrest and detention

12 process, including an interview in which Plaintiff first lied about and later admitted to

13 his illegal activity. The information before the Border Patrol agents was that: 1)

14 Plaintiff was encountered in the middle of the night in a parked car on the side of the

15 road, about a mile from the border; 2) in the company of a known smuggler; 3) in close

16 proximity to four undocumented immigrants who were intercepted with another

17 smuggler with ties to Plaintiff’s companion, and; 4) in the course of questioning

18 Plaintiff, including under oath, he lied repeatedly about his knowledge and involvement

19 in the situation. See Exhibits E and F. Defendants reasonably relied on these facts to

20 find that Plaintiff was involved in a human smuggling operation, and led to the

21 discretionary determination to issue an NTA, which simultaneously terminated

22 Plaintiff’s DACA and EAD. The Notice of Action that Plaintiff received following the

23 NTA was drawn directly from Appendix I of the DACA SOP. See Dkt. No. 16-24.

24

Defendants exercised their discretion to decline to prosecute the criminal charges

25 and instead initiated removal proceedings against Plaintiff by issuing an NTA. See

26 Exhibit D at 4 (“Prosecution for [8 U.S.C. § 1324] Alien Smuggling was declined for

27 ARREOLA.”); id. (“Assistant Chief Border Patrol Agent R[.Y.] approved removal

28 proceedings for ARREOLA in the furtherance of the United States Government

5:17-cv-2048-MWF-SHK
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1 interest.”). This process is consistent with the Napolitano Memorandum and consistent

2 agency practice, and as prescribed in Chapter 14 and Appendix I of the DACA SOP, the

3 issuance of the NTA immediately terminated Plaintiff’s DACA, with no additional notice

4 or opportunity to respond required. Per the SOP, the NTA also terminated Plaintiff’s

5 employment authorization. Thus, Plaintiff has no basis to allege a violation of internal

6 operating procedures.

7

The Court should deny Plaintiff’s requested relief because there is no basis to

8 conclude that Defendants failed to provide required notice to a DACA recipient before

9 issuing an NTA or to provide an opportunity to challenge the reasons for the NTA

11 issuance.

12

iii. Plaintiff Cannot Overcome the Significant Facts Supporting the

13

Decision to Issue an NTA and Terminate his DACA and EAD.

Were the Court to find jurisdiction to hear Plaintiff’s claim, and further find a
14

procedural interest in Plaintiff’s DACA and employment authorization, the Court should
15

still deny the motion because Plaintiff has failed to demonstrate any likelihood of
16

success on the merits of his claim. See Earth Island Inst., 626 F.3d at 469 (“the party
17

seeking such relief bears the burden of establishing the prerequisites to this
18

extraordinary remedy.”).
19

Plaintiff argues that notice and an opportunity to respond to the termination of his
20

DACA would “allow him to demonstrate that CBP’s suspicions were mistaken, as the
21

government’s own immigration judge concluded, and that he has not engaged in any
22

disqualifying criminal activity (or even been charged with any crime) and remains
23

eligible for DACA.”17 Dkt. No. 16-2 at 25. However, Plaintiff has provided no evidence
24

25 17 Plaintiff repeatedly mischaracterizes the immigration judge’s determination that the Border Patrol report
26 lacked enough detail to conclude specifically that Plaintiff “admitted to smuggling aliens for financial
27 gains” for the purpose of denying bond. See Dkt. No. 16-2 at 59. Here, Plaintiff asserts instead that the immigration judge “rejected the government’s allegation and concluded that CBP had been mistaken.” Id.
28 at 6, 25; see also id. at 19 (the immigration judge “rejected the government’s allegations that Mr. Arreola

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1 or argument beyond: 1) the assertion that an immigration judge granted him bonded

2 release from immigration detention; and 2) that he was not criminally prosecuted for his

3 involvement in transporting smuggled aliens. Id. Neither of Plaintiff’s assertions satisfy

4 his burden to demonstrate a likelihood of prevailing on the merits of his claim.

5

First, the transcript of the bond hearing shows Plaintiff misrepresented to the

6 immigration judge a number of key facts regarding his interviews with the Border Patrol

7 agents on the night of his arrest. Plaintiff told the immigration judge that he was

8 forthcoming with the Border Patrol agents and admitted he was offered $600 to transport

9 the passenger from Sunny Valley to El Cajon to pick up additional passengers. Dkt. No.

11 16-10 at 17. Plaintiff did not inform the judge that he lied at the initial encounter,

12 claiming he was offered $100, or that he lied repeatedly under oath in his interview with

13 CBP, claiming he was paid only $40. See Exhibits B; E at 11, 18-19. Plaintiff also

14 informed the judge he had picked up the passenger in Sun Valley, California, and drove

15 the passenger the three and one half hours to the destination, Dkt. No. 16-10 at 18, but did

16 not inform the judge that he lied to Border Patrol agents under oath, telling them he only

17 recently picked the passenger up nearby. See Exhibits B; E at 10-13, 20, 28. Plaintiff told

18 the judge he was not aware the people he was asked to pick up were undocumented, id. at

19 17, which the judge relied on to question the veracity of CBP’s conclusion that Plaintiff

20 was involved in smuggling. Id. at 59. In fact, Plaintiff stated under oath he was aware the

21 people were undocumented. Exhibits B; E at 29-30.

22

Thus, there are a number of critical inconsistencies in Plaintiff’s testimony to the

23 immigration judge, and the judge did not review the contradictory evidence in the video

24 of Plaintiff’s sworn statement. The transcript of that interview shows Plaintiff was not

25 credible in his encounter with CBP and is not credible in the story he now alleges. The

26 immigration judge’s limited finding that it was not clear that CBP did not “make a leap”

27 had committed any criminal conduct.”); id. at 25 (the immigration judge “concluded . . . that he has not
28 engaged in any disqualifying criminal activity”); id. at 27 (the immigration judge found “the CBP’s allegations against him were unfounded”).

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1 in finding Plaintiff knew he was being paid to pick up undocumented immigrants is based

2 on insufficient and inaccurate information, and thus inadequate to show Plaintiff is likely

3 to prevail on the merits of his claim.

4

Plaintiff’s second claim, that he has not been criminally prosecuted, is irrelevant

5 here. CBP is well within its authority to issue an NTA, which automatically terminates

6 DACA, based on the substantial circumstantial evidence demonstrating Plaintiff’s

7 complicity in criminal activity, outlined herein, along with his videotaped admission to

8 knowingly participating in the criminal activity in exchange for money, and Plaintiff’s 9 repeated dishonesty about the matter while under oath.18 As Plaintiff points out, “[t]he

11 [DACA] approval notice informed Mr. Arreola that his deferred action could be

12 terminated if he engaged in “[s]ubsequent criminal activity.” Dkt. No. 16-2 at 11. 13 Termination of DACA does not require an indictment or a conviction, and thus the 14 absence of such does not establish a likelihood of Plaintiff’s success on the merits here.

15

iv. Plaintiff cannot Show Prejudice from the Termination of his DACA

16

and EAD, such that any Additional Process would have Achieved a Different Outcome.

17

Even if the Court found merit in Plaintiff’s claim and determined he was entitled to

18 greater process, Plaintiff would still have to show prejudice, “which means that the

19 outcome of the proceedings may have been affected by the alleged violation.” Zolotukhin

20 v. Gonzales, 417 F.3d 1073, 1076 (9th Cir. 2005) (internal quotation omitted) (emphasis

21 in original). The Ninth Circuit has held that “[w]hen it is necessary to demonstrate

22

23
24 18 Determinations whether to charge an alien with particular grounds of removability in an NTA are subject to prosecutorial discretion. See, e.g., Matter of Bahta, 22 I. & N. Dec. 1381, 1391-92 (BIA 2000).
25 Similarly, and also responsive to Plaintiff’s claims here, determinations not to pursue criminal prosecution are also a matter of prosecutorial discretion for a variety of reasons. See Wayte v. United States, 470 U.S.
26 at 607-608 (“Such factors as the strength of the case, the prosecution's general deterrence value, the 27 Government's enforcement priorities, and the case's relationship to the Government's overall enforcement
plan are not readily susceptible to the kind of analysis the courts are competent to undertake.”). 28 Accordingly, that Plaintiff has not been criminally charged for his conduct and such conduct was not
asserted as ground of removability here is of no consequence.

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1 prejudice as a result of a constitutional violation, the alien must show that the inadequate

2 procedures occurred in a manner so as potentially to affect the outcome of the

3 proceedings.” Walters v. Reno, 145 F.3d 1032, 1044 (9th Cir. 1998) (emphasis added)

4 (citations omitted). Thus, “there must be plausible scenarios in which the outcome of the

5 proceedings would have been different, absent the constitutional violation.” Id. (emphasis

6 added). A similar harmless error standard would apply to finding of a procedural

7 violation under the APA. Lyon v. U.S. Immigration & Customs Enf't, 171 F. Supp. 3d

8 961, 981–82 (N.D. Cal. 2016) (The APA instructs reviewing courts to take “due account

9 . . . of the rule of prejudicial error.”) (citing 5 U.S.C. § 706).

11

Where a procedural error occurs, the doctrine of “harmless error” requires a

12 determination that the error “had no bearing on the procedure used or the substance of

13 [the] decision reached.” Cal. Wilderness Coal. v. U.S. Dept. of Energy, 631 F.3d 1072,

14 1092 (9th Cir. 2011); see also Lyon, 171 F. Supp. 3d at 981–82 (where an agency error

15 “did not affect the outcome, if it did not prejudice the petitioner, it would be senseless to

16 vacate and remand for reconsideration.”) (citing PDK Laboratories Inc. v. U.S. D.E.A.,

17 362 F.3d 786, 799 (D.C. Cir. 2004)); see also Kazarian v. U.S. Citizenship and

18 Immigration Servs., 596 F.3d 1115, 1122 (9th Cir. 2010) (harmless error where agency

19 denied a visa application based on an erroneous interpretation of its regulations, where

20 under proper interpretation it still would have been denied).

21

Plaintiff claims, with no support, that providing him “a reasoned explanation for

22 the government’s actions and an opportunity to present arguments and evidence . . . will

23 allow him to demonstrate that CBP’s suspicions were mistaken . . . and that he has not

24 engaged in any disqualifying criminal activity (or even been charged with any crime) and

25 remains eligible for DACA.” Dkt. No. 16-2 at 25. However, as described herein,

26 Defendants relied on significant evidence, including multiple inconsistent statements

27 from Plaintiff, in deciding to issue an NTA and therefore terminate his DACA. Where

28 Plaintiff has offered nothing more than an immigration judge’s favorable bond

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1 determination based on a limited understanding of the facts, Plaintiff fails to establish any

2 likelihood Defendants would come to a different conclusion regarding the issuance of the

3 NTA (and resulting termination of DACA), were the Court to order such a re-

4 adjudication of his claim.

5

Where Plaintiff cannot show how additional process would alter the decision to

6 issue an NTA (and therefore terminate DACA), the Court should deny his motion.

7

B. The Remaining Preliminary Injunction Factors Favor Defendants.

8

Where the Government is the opposing party, the balance of equities and public

9 interest factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009). Defendants have strong

11 interests in enforcing U.S. immigration laws effectively and consistent with the statutory

12 removal scheme. See AADC, 525 U.S. at 490 (“There is always a public interest in

13 prompt execution of removal orders: The continued presence of an alien lawfully deemed

14 removable undermines the streamlined removal proceedings IIRIRA established, and

15 “permit[s] and prolong[s] a continuing violation of United States law.”). These interests

16 outweigh the harms alleged by Plaintiff, especially considering the amount of time that

17 has passed since Defendants first terminated Plaintiff’s DACA through the initiation of

18 removal proceedings. Moreover, Plaintiff’s effort to reinterpret DHS’s consistent position

19 regarding NTA issuance and DACA termination would create absurd results wherein 20 DHS’ regulations regarding the termination of employment authorization upon the

21 initiation of removal proceedings would be ignored and individuals could use the fact of

22 their continued DACA, while responding to a notice of intent to terminate, to frustrate

23 ICE’s removal efforts.

24

Finally, Plaintiff utilized his DACA and EAD to engage in the criminal activity

25 that led Defendants to initiate his removal. The public interest in this case weighs heavily

26 against allowing Plaintiff to maintain a government grace that he may again abuse for the

27 purpose of breaking the law. For these additional reasons, Plaintiff’s motion should be

28 denied.

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1

CONCLUSION

2

Where Plaintiff cannot meet the lesser burden of establishing a likelihood of

3 success on the merits of his claim to be granted a temporary injunction, he surely cannot

4 meet the higher standard necessary to obtain a permanent reversal of Defendants’

5 termination of his DACA through issuance of an NTA. For this reason and the reasons 6 outlined herein, the Court should deny Plaintiff’s motion and dismiss his claims.

7
8 Dated: October 30, 2017

Respectfully submitted,

9

CHAD A. READLER

11

Acting Assistant Attorney General

12

WILLIAM C. PEACHEY

13

Director

14

District Court Section Office of Immigration Litigation

15

16

/s/ Jeffrey S. Robins

JEFFREY S. ROBINS

17

Assistant Director

18

U.S. Department of Justice

P.O. Box 868, Ben Franklin Station

19

Washington, D.C. 20044

20

(202) 616-1246

21

jeffrey.robins@usdoj.gov

22

JAMES WALKER

23

Trial Attorney

24

Attorneys for Defendants

25

26

27

28

5:17-cv-2048-MWF-SHK
32

Case 5:17-cv-02048-MWF-SHK Document 23-1 Filed 10/30/17 Page 1 of 3 Page ID #:555

CHAD A. READLER 1 Acting Assistant Attorney General

2

WILLIAM C. PEACHEY Director, District Court Section

3

Office of Immigration Litigation JEFFREY S. ROBINS

4

Assistant Director U.S. Department of Justice

5

P.O. Box 868, Ben Franklin Station Washington, D.C. 20044

6 (202) 616-1246 Email: jeffrey.robins@usdoj.gov

7 JAMES WALKER

Trial Attorney

8

9 Attorneys for Defendants

11
UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13

14

INLAND EMPIRE –

) Case No. 5:17-cv-2048-MWF-SHK

15 IMMIGRANT YOUTH

)

16

COLLECTIVE and JESUS ALONSO ARREOLA ROBLES,

) ) DECLARATION OF JAMES J.

17 on behalf of himself and others

) WALKER IN SUPPORT OF

18 similarly situated,

19

Plaintiff,

) DEFENDANTS’ OPPOSITION TO ) PLAINTIFF’S MOTION FOR A ) PRELIMINARY INJUNCTION.

20

)

v.
21

) Judge: Hon. Michael W. Fitzgerald ) Courtroom: 5A

22 ELAINE C. DUKE, Acting

) Hearing: November 20, 2017

23 Secretary of Homeland Security, et ) Time: 10 a.m.

al.,

)

24

)

25

Defendants.

)

26

27

28

5:17-cv-2048-MWF-SHK

Case 5:17-cv-02048-MWF-SHK Document 23-1 Filed 10/30/17 Page 2 of 3 Page ID #:556

1

I, James J. Walker, pursuant to 28 U.S.C. § 1746, hereby declare:

2 1. I am employed as a Trial Attorney for the Department of Justice, Civil Division,

3 Office of Immigration Litigation, and have been assigned as counsel for Defendants in

4 Inland Empire Immigrant Youth Collective et al v. Elaine C. Duke et al, Case No.

5 5:17-cv-2048-MWF-SHK. As such, I have personal knowledge of the following facts

6 and could testify regarding these facts if called to do so.

7 2. Attached as Exhibit A is a true, correct, and complete copy of USCIS Form I-821D
8 Instructions, Instructions for Consideration of Deferred Action for Childhood Arrivals
9 (January 9, 2017, version, with no changes to the relevant content).
11
3. Attached as Exhibit B is a true, correct, and complete copy of DHS Memorandum of
12
Investigation, Agent Statement of Border Patrol Agent F.O., dated February 12, 2017.
13
14 4. Attached as Exhibit C is a true, correct, and complete copy of DHS Memorandum of 15 Investigation, Border Patrol Agent I.J., dated February 13, 2017.

16 5. Attached as Exhibit D is a true, correct, and complete copy of DHS Report of

17 Investigation, Border Patrol Agent A.R., dated February 12, 2017.

18 6. Attached as Exhibit E is a true, correct, and complete copy of Transcript of Border
19 Patrol Agent interview with Plaintiff on February 12, 2017.
20
7. Attached as Exhibit F is a true, correct, and complete copy of Statement of Border
21
Patrol Agent J.H. Regarding Recorded Statement, dated February 12, 2017.
22
23 8. Attached as Exhibit G is a true, correct, and complete copy of Form I-862, Notice to 24 Appear, dated February 12, 2017 (date stamped as filed with the Immigration Court on 25 February 23, 2017).

26 9. Attached as Exhibit H is a true, correct, and complete copy of Declaration of USCIS

27 Chief Ron Thomas, dated October 30, 2017.

28

5:17-cv-2048-MWF-SHK
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Case 5:17-cv-02048-MWF-SHK Document 23-1 Filed 10/30/17 Page 3 of 3 Page ID #:557

1

I declare under penalty of perjury that the foregoing is true and correct and

2 that this declaration was executed under the laws of the United States on this 30th day of

3 October, 2017, in Washington, D.C.

4

5 DATED: October 30, 2017
6 7 8 9 11 12 13 14

/s/ James J. Walker JAMES J. WALKER Trial Attorney U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 532-4468 Fax: (202) 305-7000 Email: james.walker3@usdoj.gov

15

Attorney for Defendants

16

17

18

19

20

21

22

23

24

25

26

27

28

5:17-cv-2048-MWF-SHK
2

Case 5:17-cv-02048-MWF-SHK Document 23-2 Filed 10/30/17 Page 1 of 81 Page ID #:558

CHAD A. READLER 1 Acting Assistant Attorney General

2

WILLIAM C. PEACHEY Director, District Court Section

3

Office of Immigration Litigation JEFFREY S. ROBINS

4

Assistant Director U.S. Department of Justice

5

P.O. Box 868, Ben Franklin Station Washington, D.C. 20044

6 (202) 616-1246 Email: jeffrey.robins@usdoj.gov

7 JAMES WALKER

Trial Attorney

8

9 Attorneys for Defendants

11
UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13

14

INLAND EMPIRE –

) Case No. 5:17-cv-2048-MWF-SHK

15 IMMIGRANT YOUTH

)

16

COLLECTIVE and JESUS ALONSO ARREOLA ROBLES,

) ) DEFENDANTS’ EXHIBITS.

17 on behalf of himself and others

)

18 similarly situated,

19

Plaintiff,

) Judge: Hon. Michael W. Fitzgerald ) Courtroom: 5A ) Hearing: November 20, 2017

20

) Time: 10 a.m.

v.

)

21

)

22 ELAINE C. DUKE, Acting

)

23

Secretary of Homeland Security, et )

al.,

)

24

)

25

Defendants.

)

26

27

28

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1
2 Exhibit A:
3 4
Exhibit B:
5 6
Exhibit C:
7 8
9 Exhibit D:
11
12 Exhibit E:
13
14 Exhibit F:
15
16 Exhibit G:
17 18
19 Exhibit H:
20 21 22 23 24 25 26 27 28

EXHIBITS Form I-821D Instructions (January 9, 2017, version, with no changes to the relevant content); DHS Memorandum of Investigation, Agent Statement of Border Patrol Agent F.O., dated February 12, 2017; DHS Memorandum of Investigation, Border Patrol Agent I.J., dated February 13, 2017; DHS Report of Investigation, Border Patrol Agent A.R., dated February 12, 2017; Transcript of Border Patrol Agent interview with Plaintiff on February 12, 2017; Statement of Border Patrol Agent J.H. Regarding Recorded Statement, dated February 12, 2017. Form I-862, Notice to Appear, dated February 12, 2017 (date stamped as filed with the Immigration Court on February 23, 2017). Declaration of USCIS Chief Ron Thomas, dated October 30, 2017.
5:17-cv-2048-MWF-SHK
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1

2

3

4

5

6

7

8

9

11

12

13

14 15

Exhibit A

16
17 Form I-821D Instructions (January 9, 2017, version, with no changes to the relevant content)
18

19

20

21

22

23

24

25

26

27

28

5:17-cv-2048-MWF-SHK
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Case 5:17-cv-02048-MWF-SHK Document 23-2 Filed 10/30/17 Page 6 of 81 Page ID #:563

Case 5:17-cv-02048-MWF-SHK Document 23-2 Filed 10/30/17 Page 7 of 81 Page ID #:564
How To Fill Out Form I-821D
1. This form consists of eight parts. Requestors for Initial DACA and those requestors seeking Renewal of DACA should fill out most parts. However, only requestors for Initial DACA should complete Part 3. See below for greater detail.
Part 1. Information About You. All requestors must complete this part.
Part 2. Residence and Travel Information. All requestors must complete this part. Please be aware that Initial requestors must provide more extensive information than Renewal requestors.
Part 3. For Initial Requests Only. Renewal requestors should skip this part.
Part 4. Criminal, National Security, and Public Safety Information. All requestors must complete this part.
Part 5. Statement, Certification, Signature, and Contact Information of the Requestor. All requestors must complete this part.
Part 6. Contact Information, Certification, and Signature of the Interpreter. Any requestor using an interpreter must complete this part.
Part 7. Contact Information, Declaration, and Signature of the Person Preparing this Request, If Other than the Requestor. If you had someone else prepare your request, he or she must complete this part.
Part 8. Additional Information. Any requestor may complete this part if additional space is needed.
2. Further Information on filling out Form I-821D:
A. Type or print legibly in black ink.
B. If you need extra space to complete any item within this request, use Part 8. Additional Information and make additional copies of this sheet as needed. Type or print your name and Alien Registration Number (A-Number) (if any) at the top of each sheet; indicate the Page Number, Part Number, and Item Number to which your answer refers; and sign and date each sheet.
C. Answer all questions fully and accurately. If an item is not applicable or the answer is “none,” type or print “N/ A,” unless otherwise directed.
D. All dates must be entered as mm/dd/yyyy. You may provide approximate dates if you do not know the exact date. Do not leave a date response blank.
E. Processing Information. You must provide the biometrics information requested in Part 1., Item Numbers 15. - 20. Providing this information as part of your request may reduce the time you spend at your USCIS ASC appointment.
F. Part 5. Statement, Certification, Signature, and Contact Information of the Requestor. Select the box that indicates whether someone interpreted this form for you. If applicable, the attorney, accredited representative, or other individual who helped prepare this form for you must complete Part 7. and sign and date the form. Every request must contain the requestor’s original signature. A photocopy of a signed request or a typewritten name in place of a signature is not acceptable. Sign and date the form and provide your daytime telephone number, mobile telephone number, and email address. If you are under 14 years of age, your parent or legal guardian may sign the request on your behalf. A designated representative may sign if the requestor is unable to sign due to a physical or developmental disability or mental impairment.
G. Part 6. Contact Information, Certification, and Signature of the Interpreter. If you used an interpreter to read the instructions and complete the questions on this form, the interpreter must fill out Part 6. The interpreter must provide his or her full name, the name of his or her business or organization, an address, a daytime telephone number, and an email address. He or she must also sign and date the form.

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3. What documents may show that you came to the United States before your 16th birthday?
Submit copies of any of the following documents:
A. Passport with an admission stamp indicating when you entered the United States;
B. Form I-94, I-94W, or I-95 Arrival-Departure Record;
C. Any Immigration and Naturalization Service (INS) or DHS document stating your date of entry (e.g., Form I-862, Notice to Appear);
D. Travel records, such as transportation tickets showing your dates of travel to the United States;
E. School records (e.g., transcripts, report cards) from the schools that you have attended in the United States, showing the names of the schools and periods of school attendance;
F. Hospital or medical records concerning treatment or hospitalization, showing the names of the medical facilities or physicians and the dates of the treatment or hospitalization;
G. Official records from a religious entity in the United States confirming your participation in a religious ceremony, rite, or passage (e.g., baptism, first communion, wedding); or
H. Any other document that you believe is relevant.
4. If you left the United States for some period of time before your 16th birthday and returned on or after your 16th birthday to begin your current period of continuous residence, what documents may show that you established residence before your 16th birthday?
Submit copies of any of the following documents:
A. School records (e.g., transcripts, report cards) from the schools that you have attended in the United States, showing the names of the schools and periods of school attendance;
B. Employment records (e.g., pay stubs, W-2 Forms, certification of the filing of Federal income tax returns, state verification of the filing of state income tax returns, letters from employers, or, if you are self employed, letters from banks and other firms with whom you have done business);
C. Documents evidencing that you were physically present in the United States for multiple years prior to your 16th birthday; or
D. Any other relevant document.
5. What documents may show that you continuously resided in the United States since June 15, 2007, up to the present date?
Submit copies of any relevant documents such as:
A. Rent receipts, utility bills (e.g., gas, electric, phone), or receipts or letters from companies showing the dates during which you received service. You may submit this documentation even if it only has the name of your parents or legal guardians, as long as you also submit other evidence (e.g., third party documentation) that connects you to your residence at that address;
B. Employment records (e.g., pay stubs, W-2 Forms, certification of the filing of Federal income tax returns, state verification of the filing of state income tax returns, letters from employers, or, if you are self employed, letters from banks and other firms with whom you have done business);
NOTE: In all of these documents, your name and the name of the employer or other interested organization must appear on the form or letter, as well as relevant dates. Letters must include: your address at the time of employment, exact periods of employment, periods of layoff, and duties with the employer. Letters must also be signed by the employer and include the employer’s contact information.
C. School records (e.g., transcripts, report cards) from the schools that you have attended in the United States, showing the names of the schools and periods of school attendance;

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D. Military records (e.g., Form DD-214, Certificate of Release or Discharge from Active Duty; NGB Form 22, National Guard Report of Separation and Record of Service; military personnel records; or military health records);
E. Hospital or medical records concerning treatment or hospitalization, showing the names of the medical facilities or physicians and the dates of the treatment or hospitalization;
F. Official records from a religious entity in the United States confirming your participation in a religious ceremony, rite, or passage (e.g., baptism, first communion, wedding);
G. Money order receipts for money sent in or out of the country; passport entries; birth certificates of children born in the United States; dated records of bank transactions; correspondence between you and another person or organization; automobile license receipts, title, vehicle registration, etc.; deeds, mortgages, rental agreements, contracts to which you have been a party; tax receipts; insurance policies; receipts; postmarked letters; or
H. Any other relevant document.
6. Do brief departures interrupt continuous residence?
A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was on or after June 15, 2007, and before August 15, 2012, and:
A. The absence was short and reasonably calculated to accomplish the purpose for the absence;
B. The absence was not because of an order of exclusion, deportation, or removal;
C. The absence was not because of an order of voluntary departure or an administrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and
D. The purpose of the absence and/or your actions while outside of the United States were not contrary to law.
In Part 3. Arrival/Residence Information, list all your absences from the United States since June 15, 2007. Include information about all your departure and return dates, and the reason for your departures. Documents you can submit that may show your absence was brief, casual, and innocent include, but are not limited to:
A. Plane or other transportation tickets or itinerary showing the travel dates;
B. Passport entries;
C. Hotel receipts showing the dates you were abroad;
D. Evidence of the purpose of the travel (e.g., you attended a wedding or funeral);
E. Copy of Advance Parole Document issued by USCIS; and
F. Any other evidence that could support a brief, casual, and innocent absence.
7. What documents may demonstrate that you were present in the United States on June 15, 2012?
Submit copies of any relevant documents such as:
A. Rent receipts, utility bills (e.g., gas, electric, phone), or receipts or letters from companies showing the dates during which you received service You may submit this documentation even if it only has the name of your parents or legal guardians, as long as you also submit other evidence (e.g., third party documentation) that connects you to your residence at that address;
B. Employment records (e.g., pay stubs, W-2 Forms, certification of the filing of Federal income tax returns, state verification of the filing of state income tax returns, letters from employers, or, if you are self employed, letters from banks and other firms with whom you have done business);
NOTE: In all of these documents, your name and the name of the employer or other interested organization must appear on the form or letter, as well as relevant dates. Letters must include: your address at the time of employment, exact periods of employment, periods of layoff, and duties with the employer. Letters must also be signed by the employer and include the employer’s contact information.

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C. School records (e.g., transcripts, report cards) from the schools that you have attended in the United States, showing the names of the schools and periods of school attendance;
D. Military records (e.g., Form DD-214, Certificate of Release or Discharge from Active Duty; NGB Form 22, National Guard Report of Separation and Record of Service; military personnel records; or military health records);
E. Hospital or medical records concerning treatment or hospitalization, showing the names of the medical facilities or physicians and the dates of the treatment or hospitalization;
F. Official records from a religious entity in the United States confirming your participation in a religious ceremony, rite, or passage (e.g., baptism, first communion, wedding);
G. Money order receipts for money sent in or out of the country; passport entries; birth certificates of children born in the United States; dated records of bank transactions; correspondence between you and another person or organization; automobile license receipts, title, vehicle registration, etc.; deeds, mortgages, rental agreements, contracts to which you have been a party; tax receipts; insurance policies; receipts; postmarked letters; or
H. Any other relevant document.
8. What documents may show you had no lawful status on June 15, 2012? (Submit documents if you were admitted or paroled, or otherwise obtained a lawful immigration status, on or before June 15, 2012, or you were or are in removal proceedings.)
Submit copies of any of the following documents:
A. Form I-94, I-94W, or I-95 Arrival/Departure Record showing the date your authorized stay expired;
B. If you have a final order of exclusion, deportation, or removal issued as of June 15, 2012, submit a copy of that order and related charging documents, if available;
C. An INS or DHS charging document placing you into removal proceedings, if available; or
D. Any other document that you believe is relevant to show that on June 15, 2012, you had no lawful status.
9. What documents may demonstrate that you: a) are currently in school in the United States at the time of filing; b) have graduated or received a certificate of completion or a certificate of attendance from a U.S. high school, a U.S. public or private college or university, including community college; or c) have obtained a GED certificate or other equivalent state-authorized exam in the United States? (If applicable)
USCIS recognizes that schools, educational programs, school districts, and state education agencies around the country issue educational records in a variety of formats. USCIS does not require educational records to be presented in any particular format.
A. To be considered “currently in school,” you are to demonstrate that you are currently enrolled in one of the following:
(1) A U.S. public, private, or charter elementary school, junior high or middle school, high school, secondary school, alternative program, or home school program meeting state requirements;
(2) An education, literacy, or career training program (including vocational training) that has a purpose of improving literacy, mathematics, or English or is designed to lead to placement in post-secondary education, job training, or employment, and where you are working toward such placement, and that the program:
(a) Is administered by a non-profit entity; or
(b) Is funded in whole or in part by Federal, state, local, or municipal funds; or
(c) Is of demonstrated effectiveness;

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(3) An education program in the U.S. assisting students in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a GED exam or other equivalent state-authorized exam, and that the program:
(a) Is administered by a non-profit entity; or
(b) Is funded in whole or in part by Federal, state, local, or municipal funds; or
(c) Is of demonstrated effectiveness;
(4) A U.S. public or private college or university including community college.
Evidence of enrollment may include, but is not limited to: school registration cards, acceptance or other letters demonstrating enrollment or attendance, current transcripts, report cards, progress reports, or other documents issued by a school district, state education agency, school, or program. These documents should show your name; the name of the school district, or state educational agency, school, or program issuing the record; the dates or time periods of enrollment you are seeking to establish; and your current educational or grade level.
If you have been accepted for enrollment and your classes have not yet begun, you may submit an acceptance letter with evidence that you have registered for classes or any other relevant evidence showing you have committed to starting classes on a certain date, including, for example, a copy of your tuition bill, your class schedule, or your Individualized Educational Program.
If you are enrolled in an educational, literacy, or career training program (including vocational training or an ESL course), evidence that the program is funded in whole or in part by Federal, state, local, or municipal funds includes a letter or other documentation from an authorized representative of the program that includes information such as: your name and date of enrollment, the duration of the program and expected completion date, the program’s source of public funding, and the program’s authorized representative’s contact information.
If you are enrolled in an education, literacy, or career training program that is not publicly funded, evidence that the program is of demonstrated effectiveness may include information from an authorized school representative relating to: the duration of the program’s existence; the program’s track record in placing students in employment, job training, or post-secondary education; receipt of awards or special achievement or recognition that indicate the program’s overall quality; and/or any other information indicating the program’s overall quality.
B. Evidence to show that you meet the educational guideline because you have “graduated from school” or “obtained a GED certificate” or other equivalent state-authorized exam in the United States includes, but is not limited to:
(1) A high school diploma from a U.S. public or private high school or secondary school;
(2) A recognized equivalent of a U.S. high school diploma under state law, including a GED certificate or other equivalent state-authorized exam, a certificate of completion, or a certificate of attendance;
(3) A transcript that identifies the date of graduation or program completion;
(4) An enrollment history that shows the date of graduation or program completion;
(5) A degree from a public or private college or university or a community college; or
(6) An alternate award from a U.S. public or private high school or secondary school.
These documents should show your name; the name of the U.S. school district, educational agency, school, or program issuing the record; the dates or time periods of enrollment you are seeking to establish; and your date of graduation or completion.
10. What documents may demonstrate that you are an honorably discharged veteran of the U.S. Armed Forces or U.S. Coast Guard? (If applicable)
Submit copies of the following documents:
A. Form DD-214, Certificate of Release or Discharge from Active Duty;
B. NGB Form 22, National Guard Report of Separation and Record of Service;

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1

2

3

4

5

6

7

8

9

11

12

13

14 15

Exhibit B

16 DHS Memorandum of Investigation, Agent Statement of Border Patrol Agent

17

F.O., dated February 12, 2017

18

19

20

21

22

23

24

25

26

27

28

5:17-cv-2048-MWF-SHK
3

Case 5:17-cv-02048-MWF-SHK Document 23-2 Filed 10/30/17 Page 19 of 81 Page ID

#:576

Event No:

U.S. Department of Homeland Security

MEMORANDUM OF INVESTIGATION

File Number

Title: PRIMARY SUBJECT: JESUS ARREOLA-LOPEZ

Control Office SDC/ECJ

Agent Statement RE: BPA

------------------------

On February 12, 2017, I, Border Patrol Agent (BPA)

was conducting assigned duties in

the El Cajon Border Patrol Station's area of respon

ampo, California in an area

commonly known to Border Patrol Agents as " Zuellner's." this area is notorious for illegal aliens

attempting to further their entry into the United States. I was wearing a full Border Patrol rough

duty uniform with badge and insignias clearly displayed.

At approximately 12:00 a.m., BPA near the border road heading in a Boundary.

advised via service radio, he discovered footprints

r

ction away from the United States/Mexico International

At approximately 12:05 a.m., I responded to assist BPA

on State Route 94 (SR-94) in an area

commonly known to Border Patrol Agents as "Bulldozer."

arrived in the area, I started walking

eastbound approximately twenty five yards south from SR-94, near an area commonly known to Border

Patrol Agents as "Lone Pine." As I walked towards Lone Pine, I noticed a dark colored four door

vehicle parked on the side of the road with its lights out near the area where I was trying to find

the individuals that BPA Oleson was actively tracking.

As I approached the vehicle, I observed two individuals sitting inside. I identified myself as a United States Border Patrol Agent and asked both individuals as to the reason of their presence in the area.

Both individuals responded with conflicted stories. At this time, I requested vehicle record checks

from San Diego Sector Border Patrol Tactical Communication Center. Also, I asked each individual to

produce an identification. Only the driver, later id

nso Arreola-Robles, provided

a driver license. The passenger later identified as

stated that he did not have

any identification.

At approxima

12:23 a.m., BPA

showed up at the scene to provide assistance. At this

moment, BPA

separated both

and questioned them individ

rpose in

the area. A

oments later, BPA

advised me that the passenger,

, freely

admitted that he was illegally pres

n the United States . The driver

la-

Robles, freely admitted he was in the area to pick up an unknown amount of illegal aliens.

Investigator BORDER PATROL AGENT
Form G-166C (08/01/07)

Date February 12, 2017
Page 1 of 1

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1

2

3

4

5

6

7

8

9

11

12

13 14

Exhibit C

15

16 DHS Memorandum of Investigation, Border Patrol Agent I.J., dated February

17

13, 2017

18

19

20

21

22

23

24

25

26

27

28

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#:578

Event No:

U.S. Department of Homeland Security

MEMORANDUM OF INVESTIGATION

File Number

Title: PRIMARY SUBJECT: JESUS ARREOLA-LOPEZ

Control Office SDC/ECJ

RE: BPA

Memorandum of Investigation

--------

----------------------------

On February 12, 2017, I, Border Patrol Agent BPA

was performing my assigned line-watch

duties in the El Cajon, California Border Pa

ration. At approximately 12:21 a.m., I

responded to assist Border Patrol Agent BPA

who was on a consensual encounter with a

driver of a 2014 Toyota Camry at the locatio

w

order Patrol Agents as "Lone Pine." This area

is approximately 8 miles east of the Tecate, California Port of Entry and approximately 1 mile north

of the United States/Mexico International Boundary.

At app

tely 12:23 a.m. I arrived

e

BPA

and began to assist with questioning.

(BPA)

informed me that the BPA

was

tly tracking a group of possibly

illega

ns that had recently cross

nited States ille

directly south of where he

observed a 2014 Toyota Camry parked on the side of the road. (BPA)

lastly advised me that the

vehicle was occupied by two subjects and that they are giving confli

stories concerning their

reasoning for being in the area.

I began to question the passenger of the icle later who was identified as

as

to his place of birth and citizenship.

freely stated that he was born i

that he ha

immigration documents tha uld allow him to enter or remain in the United States

legally.

stated that the driver of the vehicle later identified as Jesus Alonso ARREOLA-Robles,

had just r tly picked him up.

At this time, I began to ask ARREOL at he was doing in the area and where was he headed. ARREOLA

initially stated that he picked up

in El Cajon, California and was going to take him to Tijuana,

Mexico. ARREOLA then changed his s

and claimed that he was just going back home to Hollywood,

California. I then told ARREOLA that he was in Campo, California and that he is giving conflicting

statements. ARREOLA then freely admitted that he had just recently picked up RIOS on the side of the

road. ARREOLA stated that he knew RIOS was an illegal alien and he was going to get paid $100 USD to

pick up an unknown amount of illegal aliens.

At approximately 12:31 a.m., I placed both subjects under arrest and transported them to the El Cajon Substation Processing Center in Campo, California.

Investigator BORDER PATROL AGENT
Form G-166C (08/01/07)

Date February 13, 2017
Page 1 of 1

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1

2

3

4

5

6

7

8

9

11

12

13 14

Exhibit D

15

16 DHS Report of Investigation, Border Patrol Agent A.R., dated February 12,

17

2017

18

19

20

21

22

23

24

25

26

27

28

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9

11

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13 14

Exhibit E

15

16 Transcript of Border Patrol Agent interview with Plaintiff on February 12,

17

2017

18

19

20

21

22

23

24

25

26

27

28

5:17-cv-2048-MWF-SHK
6

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P R O C E E D I N G S

2

AGENT

Go ahead and have a seat on the

3

bench over there.

4

Just to confirm, you are most comfortable

5

speaking in English; right?

6

MR. ROBLES: Yes.

7

AGENT

Okay. All right. The following

8

statement is under oath before me, Border Patrol

9

Agent

witnessed by Border Patrol

10

Agents

and

at El

11

Cajon Border Patrol Station’s processing

12

substation in Campo, California. The statement is

13

being given by Defendant Jesus Alonso Arreola

14

Robles in the case of the United States v. Jesus

15

Alonso Arreola Robles. The date is February 12th,

16

2017. The time now is 6:04 a.m.

17

The following advisal of rights and any

18

statements are being recorded by audio and video

19

tape. Do you understand?

20

MR. ROBLES: Yes.

21

AGENT

Are you under the influence of

22

any drugs or alcohol at this time?

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MR. ROBLES: No.

2

AGENT

All right. Yeah. Earlier, you

3

were given a notice of rights in which you asked

4

to return to your country as soon as possible.

5

You must --

6

AGENT

Hold on. I’m sorry. That’s

7

not right.

8

AGENT

Consulate.

9

AGENT

The Consulate, yes. Skip that

10

one.

11

AGENT

Cancel that?

12

AGENT

Yep.

13

AGENT

Since you are not a citizen of

14

the United States, once you are arrested and

15

detained, you have the right to ask us to notify a

16

consular representative from your country here in

17

the United States if you wish. Among other

18

things, the consular or official from your country

19

can help you regarding legal matters, contact your

20

family, or visit you in jail. If you decide that

21

we contact the consular officials from your

22

country, you can ask now or at any time in the

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future. After you have contacted the consular

2

officials, they will be able to call or visit you.

3

Do you understand this right?

4

MR. ROBLES: Yeah.

5

AGENT

All right. Do you wish to speak

6

with a consular representative from your country?

7

MR. ROBLES: No.

8

AGENT

The time now is 6:05 a.m.

9

AGENT

Any statements you have made

10

prior to this interview will not be used against

11

you. You will now be read your Miranda rights.

12

Before you ask me any questions, you must

13

understand your rights.

14

You have the right to remain silent. Anything

15

you say can be used against you in court or in any

16

immigration or administrative proceeding.

17

You have the right to talk to a lawyer for

18

advice before we ask you any questions and to have

19

him with you during your questioning. If you

20

cannot afford a lawyer, one will be appointed for

21

you before any questioning if you wish. If you

22

decide to answer questions now without a lawyer

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present, you will still have the right to stop

2

answering questions at any time. You will also

3

have the right to stop answering at any time when

4

you want to talk to a lawyer. Do you understand

5

your rights?

6

MR. ROBLES: Yes.

7

AGENT

All right. So right here, as

8

it says, “Do you understand your rights?” Go

9

ahead and circle “Yes” and then put your initials.

10

“And then are you willing to answer my

11

questions without an attorney present at this

12

time?” Circle your answer and then initial there.

13

Okay? All right. So I have to ask them.

14

“Are you willing to answer my questions

15

without an attorney present at this time?” All

16

right.

17

AGENT

Just to clarify, you said yes?

18

MR. ROBLES: Uh-huh. Yeah.

19

AGENT

Sir, I now proceed to state

20

Bureau of Customs and Border Protection is

21

authorized by the law to administer oaths and take

22

testimony in conjunction with enforcement of

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immigration and nationality laws of the United

2

States. Are you willing to answer my questions

3

under oath?

4

MR. ROBLES: Yeah.

5

AGENT

Raise your right hand.

6

WHEREUPON,

7

JESUS ALONSO ARREOLA ROBLES

8

called as a witness, and having been sworn,

9

was examined and testified as follows:

10

EXAMINATION

11

BY AGENT:

12

Q What is your true and correct name?

13

A What?

14

Q What is your proper name? What is your

15

name?

16

A Jesus Alonso Arreola Robles.

17

Q Have you ever used any other names?

18

A No.

19

Q Of what country are you a citizen?

20

A Mexico.

21

Q And what is your date and place of birth?

22

A May 14, 1994.

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Q Okay. In what place?

2

A Roanodurano (ph).

3

Q Do you have an immigration status or have

4

any claims been filed on your behalf?

5

A I don’t know. Like what?

6

BY AGENT:

7

Q Immigration status. We are basically

8

asking if you applied for any legal status other

9

than your current DACA status that you have. No?

10

A I recently applied for a permanent so I

11

could visit my grandpa in Mexico who is dying.

12

Q Okay.

13

A That’s the most recent I applied for.

14

BY AGENT:

15

Q When are you going to return to Mexico

16

for that?

17

A They said I have to go like in three

18

months, but I have to get the permit first.

19

Q You have to go within three months or you

20

have to leave?

21

A I have to get the permit first so I could

22

go. They said I was going to have to wait like

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three months.

2

Q Okay. How long do you plan on staying in

3

Mexico?

4

A Well, we are going to visit him for like

5

two weeks and then come back.

6

Q Okay. All right. When did you last

7

enter the United States?

8

A When I was one.

9

Q And have you lived in the United States

10

previously?

11

A Yeah, my whole life.

12

Q What is the address of your current place

13

of residence? And how long have you lived there?

14

A

I have

15

lived there like 13-14 years.

16

Q What city and state is that in?

17

A North Hollywood, California.

18

Q Do you have anything to help you prove

19

your residence or verify the dates of your

20

residence here: school records, financial

21

records?

22

A Oh, yeah, I have.

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Q What kind of stuff do you have?

2

A Well, I had an IAP. That’s it, I guess.

3

Q Are you currently enrolled in school?

4

A No.

5

Q Are you a high school graduate or have

6

you obtained a general education development, your

7

GED?

8

A High school graduate.

9

Q High school? Now, in what month and year

10

did you graduate?

11

A I graduated in June 2002.

12

Q What is the name and address of the

13

school you attended?

14

A I went out to Vineland.

15

Q What’s that?

16

A I went out to Vineland. East Valley High

17

School.

18

Q What city is that in?

19

A North Hollywood.

20

Q Have you ever been arrested by the police

21

or any other law enforcement in the United States?

22

A No.

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Q Have you ever served in the armed forces

2

or Coast Guard of the United States?

3

A No.

4

Q All right. What was going on tonight?

5

What was the -- tell me what happened tonight.

6

A I just saw a guy. He asked me for a

7

ride.

8

Q Where was that at?

9

A I don’t know the streets of San Diego.

10

Q Was it downtown San Diego or --

11

A No. It was kind of by the apartment.

12

Q By the home?

13

A Uh-huh.

14

Q I mean, what were you doing, like bound

15

or stopped somewhere?

16

A No. Visit my cousin. As I was leaving,

17

he saw me and came over to the side. And he asked

18

me in Spanish to give him a ride. I’m like “All

19

right.” I don’t know (inaudible).

20

Q This is a guy you didn’t know at all who

21

just --

22

A I don’t know.

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Q You were just driving him to Mexico?

2

A No, I wasn’t driving to Mexico.

3

Q Where were you taking him?

4

A To the -- because I can’t -- I can’t go

5

out.

6

Q Where specifically did he say he wanted a

7

ride to?

8

A He said to the (inaudible).

9

BY AGENT:

10

Q Did he say why?

11

A No. I didn’t ask him.

12

BY AGENT:

13

Q And, I mean, was he giving you anything

14

for this ride?

15

A He gave me 40 bucks.

16

Q So do you know anything about him?

17

A No.

18

Q No? What did you guys talk about on the

19

way?

20

A Well, he was just telling me about his

21

life, you know, I just suppose, that he was born

22

in Sun Valley and that he lived with his family

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there all his life. And then he came back, and

2

that was it.

3

Q So you said that he was born in Tijuana

4

and he lived there his entire life? So then Sun

5

Valley?

6

A Uh-huh.

7

Q Where is that at?

8

A That’s in North Hollywood.

9

Q North Hollywood?

10

A Yeah. So he said -- when I told him

11

where I was from, he goes, “Oh,” this and that.

12

That’s what. Like he didn’t live there. He just

13

-- he was just born there, and then he needed to

14

get --

15

Q He told us he was born in Mexico.

16

A Oh, really?

17

Q Yeah.

18

A That’s what he told me.

19

Q I understand. Well, when did you pick

20

him up? About what time?

21

A 11:30.

22

Q You picked him up at 11:30?

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A Or 11:00. I didn’t see the time.

2

Q Okay. Well, when did you leave your

3

friend’s house?

4

A My cousin’s house?

5

Q Cousin.

6

A Yeah. I left at like at 10:00.

7

Q 10:00? So what did you do after you

8

left?

9

A I went and grabbed something to eat, and

10

that’s when I saw him.

11

Q Where did you grab something to eat?

12

A Subway.

13

Q Subway? What else was around at that

14

Subway? What other businesses?

15

A There was a gas station, a Shell.

16

Q A Shell gas station? Is that the only

17

gas station or is there another one around?

18

A That’s the only one I saw there.

19

Q No? And there were no other plans down

20

here or anything, just giving a stranger a ride

21

for 40 bucks? What is your financial situation?

22

A My financial situation?

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Q Yes.

2

A What do you mean?

3

Q Are you hurting for money? Have you got

4

a job?

5

A Yes, Uber and I work at the Chateau

6

Marmont.

7

Q What do you do at the Chateau -- what is

8

it?

9

A I’m in the kitchen.

10

Q Chateau what’s the name?

11

A Chateau Marmont, Los Angeles.

12

Q I am sorry. The door just closed.

13

A The Chateau Marmont.

14

Q Vermont?

15

A Chateau Marmont.

16

Q Marmont?

17

A Yeah.

18

Q Okay. You work in the kitchen?

19

A Yeah.

20

Q Do they pay you good?

21

A Fourteen bucks.

22

Q Fourteen bucks an hour?

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A Uh-huh.

2

Q How many hours of work do you work?

3

A About 40, 40.

4

Q That is a decent chunk of change, man.

5

That plus Uber?

6

A Yeah.

7

Q What do you make doing Uber?

8

A When I’m not lazy, 400 a week.

9

Q Yeah? Who do you live with?

10

A My parents.

11

Q You live with your parents? Do you pay

12

them rent?

13

A Yeah.

14

Q How much do you pay them?

15

A Six hundred.

16

Q Six hundred a month?

17

A Uh-huh.

18

Q So you work 40 hours a week every week?

19

A Uh-huh.

20

Q Fourteen hours. How -- that is -- $40 to

21

drive somebody to Tecate. Were you doing anything

22

else? Do you know anybody in Tecate?

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A No, nobody.

2

Q No? That seems kind of --

3

AGENT: Strange?

4

AGENT: Strange, yeah.

5

BY AGENT:

6

Q Where are you from again?

7

A North Hollywood.

8

Q North Hollywood. So from North

9

Hollywood, where did you go? You went back home

10

or where did you go?

11

A I went to my cousin’s.

12

Q You have a cousin here at home?

13

A Yes.

14

Q So we take him home. He is going to be

15

here?

16

A Yeah.

17

Q That is in (inaudible). What is his

18

address? Where is he located at?

19

A I don’t know his address.

20

Q Then how did you get there?

21

A I called him, and he told me how to get

22

there.

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Q Have you got his number?

2

A Yeah.

3

Q Who is he?

4

A

cousin.

5

Q Like I say, so you are in another home,

6

turn around, you see somebody or what do you --

7

A I went to go eat, and then he saw me.

8

Q Eat where?

9

A Subway.

10

Q You went to Subway?

11

A Uh-huh.

12

Q And then you saw him? He went to Subway?

13

Eating there or what?

14

A That’s what I’m saying. He saw me there.

15

He came up there.

16

Q What was your cousin’s name?

17

A

cousin.

18

Q That is when you talked to him?

19

A Yeah.

20

Q Hmm. When did you talk to him for these

21

directions? Because I’m not seeing them.

22

A No?

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Q No, not seeing them in your call log,

2

texts. No, I’m not seeing any directions. When

3

did you talk to him to get these directions?

4

A In the morning.

5

Q In the morning? Today?

6

A No. Yesterday.

7

Q Yesterday morning?

8

A Yeah.

9

Q And he is in here as

huh?

10

A Yeah.

11

Q I’m not seeing a

at all.

12

BY AGENT:

13

Q You are not at home. You are in a city

14

that you don’t even know. You are all the way

15

from home, the L.A. area, come down here. You

16

think you are just going to pick up a random dude,

17

and he is going to bring him here to pick up

18

without knowing him? Do you think I am going to

19

believe that?

20

A Well, extra money.

21

Q Forty bucks?

22

A To me, it’s something.

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Q That is gas back and forth, man?

2

A Yeah. Well, that’s --

3

Q That is not extra money.

4

A No. That’s my gas to get over there and

5

back.

6

Q That is your time for free.

7

BY AGENT:

8

Q So how did you know where to go in

9

Tecate?

10

A He gave me the directions.

11

Q He gave you directions? Did he like tell

12

you like “Make a right here, and go down this way”

13

and stuff like that?

14

A Yeah.

15

Q Did he say why he wanted to go to Tecate?

16

A No, just telling me “I want to go back to

17

Mexico.”

18

BY AGENT:

19

Q So he wanted to go back to Mexico. We

20

found in your phone a dropped pin at an address

21

that is not on the border.

22

A That’s -- he put it.

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Q So you gave him your phone?

2

A Yeah, using it.

3

Q He was using it to do what?

4

A To get the (inaudible).

5

Q Well, you said he was going back to

6

Mexico and the pin is in Mexico.

7

A I just went where he wanted me to go.

8

Q For free?

9

A No. For $10.

10

Q For gas money?

11

BY AGENT:

12

Q You said that he is from Sun Valley?

13

A Yeah.

14

Q Why have you got a pin in Sun Valley that

15

you put pretty recently? Is that where you picked

16

him up at?

17

A No.

18

Q Are you sure?

19

A Yeah.

20

Q What were you doing up in Sun Valley with

21

an address pinned to Sun Valley right before you

22

pinned an address in --

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A I was at my cousin’s.

2

Q Come on, man.

3

A No. For real.

4

Q Is this dude illegal?

5

A Who?

6

Q The dude that was in your car.

7

A I’m pretty sure, pretty sure.

8

BY AGENT:

9

Q Why are you sure? Did he tell you he was

10

illegal?

11

A He doesn’t know English.

12

Q Did you try to speak in English with him?

13

A Yeah. He didn’t speak nothing.

14

Q That’s not a very good story.

15

A Yeah, I know.

16

AGENT: No.

17

BY AGENT:

18

Q Do you remember your talk you had with

19

the agent on the side of the road?

20

A Yeah.

21

Q Did you say anything about picking

22

anybody up?

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A No, not that --

2

Q Are you sure?

3

A Just what I’m telling you in this place.

4

AGENT: It is not the same story.

5

AGENT: No.

6

AGENT: Whatever you told him you are not

7

telling us. So we didn’t know about it.

8

AGENT: A little bit different.

9

AGENT: So we will give you a chance to go

10

ahead and say -- you have to tell the truth. All

11

right? Like say if you are in a building, you are

12

in front of three federal agents here. That is

13

the time you can make it now. So I am going to

14

give you a chance again to start all over again.

15

We already know what is going on here. We know

16

there is voice and the text. We already know

17

links. We already know what is going on. All

18

right? We have been doing this for a while. You

19

don’t come out of here not knowing and give

20

somebody a ride on the south side.

21

AGENT: After midnight.

22

AGENT: You could have died. I know what you

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1

are doing hanging around with drug gangsters

2

walking around. You are drinking and driving. I

3

have seen it before. I have seen the pictures. I

4

have seen the videos. I am going to give you a

5

chance again to start all over again.

6

THE WITNESS: I am telling the truth already.

7

BY AGENT:

8

Q Okay. We will start with a good

9

question. Who is at (

10

A

.

11

Q You don’t have a contact, but they know

12

you.

13

A What?

14

Q Yes.

15

A I don’t know.

16

Q You don’t? Hmm.

17

BY AGENT:

18

Q Tell me what you were really doing out

19

there.

20

A I was just dropping him off.

21

Q Dropping him off at a location that is

22

not at the border?

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1

A That’s where he wanted to go.

2

Q Why didn’t he get out? Why were you guys

3

just sitting there? Why didn’t he get out and go

4

when you got there? Just hanging out for 10

5

minutes?

6

A I don’t know. He was just calling

7

somebody to come out.

8

Q To come what? Come and do --

9

A I don’t know. He was just calling

10

somebody.

11

Q Now, here is something. Do you know

12

(ph)?

13

A What?

14

Q You have a nickname. Do you know

16

A I haven’t (inaudible) didn’t even get to

17

call. He just went back in --

18

BY AGENT:

19

Q So he tried to call somebody. He had no

20

signal. So you just sat there thinking a signal

21

might show up or --

22

A No. He got out of the car. That’s when

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1

he ran into the agent.

2

BY AGENT:

3

Q Why wasn’t he using his phone?

4

A He used his phone.

5

Q Then why is he using your phone?

6

A No. Well, he tried on mine, and then he

7

used mine to call, too. But they didn’t pick up.

8

So we just went outside. And that’s when they ran

9

into him.

10

Q Now, the only -- you said he used your

11

phone for the call, huh?

12

A Yeah.

13

Q The only call anywhere close to that is

14

you called

who is one of your contacts,

15

unless he was calling one of your contacts.

16

A No.

17

Q That is the only call around that time.

18

The only call around that time was --

19

BY AGENT:

20

Q Who is

21

BY AGENT:

22

Q -- calls to your contacts. So what call

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1

did he make that just isn’t in your phone?

2

A It is there.

3

Q No.

4

A Well, what are you --

5

Q You have got

at 12:13. You have got

6

another call at 12:30, but that was already after.

7

A It was before that.

8

Q Nope.

9

A I do.

10

Q You have got

Was he calling your

11

babe?

12

A No.

13

Q That would be a weird call for him to

14

make.

15

A Are you sure you are on the recent calls?

16

Q Yep.

17

Q So why is your mom the same as

18

A It’s

and Mom.

19

BY AGENT:

20

Q How do you think she would feel if she

21

knew you were in this situation right now?

22

A Very bad.

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1

Q Why?

2

A I don’t know. Would you be proud of

3

seeing your son here?

4

AGENT: It is pretty easy to not be here.

5

BY AGENT:

6

Q What gets me about it is you are

7

basically in. You have the status. And you are

8

going to throw it all away for smuggling aliens?

9

A No, I did not smuggle aliens.

10

Q I mean, we have all of the evidence,

11

really, that we need. And you know what? The

12

problem is when we take -- because this DVD -- I

13

told you it is being recorded, right? We take

14

this DVD. And the judge gets to see it.

15

Everybody gets to see it. And they have you here

16

now. Why on videotape? Do you think that your

17

mom is going to be happy about that?

18

A No.

19

Q It is very easy. Just tell us what we

20

need to know. We might be able to, you know --

21

AGENT: It goes a lot smoother.

22

BY AGENT:

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1

Q Goes a lot smoother. All right? So just

2

start from the beginning and tell me exactly how

3

it went down.

4

A All right. We had -- I was in Sun

5

Valley.

6

Q You picked up?

7

A In Sun Valley.

8

Q Yes.

9

A Over here. He was coming to get some

10

shit.

11

Q What was he coming to get?

12

A I think his Uncle

(ph). I don’t

13

know. It’s like let’s get you --

14

BY AGENT:

15

Q Oh, so he didn’t get (inaudible)?

16

A Yeah. (Inaudible.)

17

Q (Inaudible.)

18

A It was his uncle.

19

Q Uncle?

20

BY AGENT:

21

Q Where were you supposed to take him?

22

A Back.

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1

Q Back up to Sun Valley?

2

A Uh-huh.

3

Q Same place? How did he get a hold of you

4

in the first place?

5

A It is my friend’s cousin.

6

BY AGENT:

7

Q So you know what? So you know his name

8

and everything else, right?

9

A No, I don’t.

10

Q What is his name?

11

A I don’t know.

12

Q You are going to pick up somebody. You

13

are going to bring him by here. And you don’t

14

know his name?

15

A He told me in the beginning, but I don’t

16

remember. He only told me one time. So that was

17

just (inaudible).

18

BY AGENT:

19

Q Where was his uncle coming from?

20

A He was supposed to be in that spot where

21

we were at.

22

Q Okay. But he is illegal or whatever?

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1

A Yes.

2

Q He just jumped the fence? Is what you

3

are saying?

4

A Uh-huh.

5

Q All right. So $600. How much is his

6

uncle paying?

7

A I don’t know.

8

Q Six hundred is pretty high. So you were

9

going pick him up and take him back to Sun Valley?

10

A Uh-huh.

11

Q Both of them?

12

A Yeah.

13

Q And where are they staying?

14

A In a motel.

15

Q What?

16

A In a motel.

17

Q Do you know the name of the motel?

18

A It’s the place where I picked him up.

19

Q Is that where it is? Are you sure he

20

wasn’t coming over with his cousin gone? His

21

cousin is here, too.

22

A I don’t know his cousin.

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1

Q I am telling you his cousin is here, too.

2

A I don’t know.

3

BY AGENT:

4

Q Well, let me just make it easy on you

5

here.

6

A He just told me his uncle.

7

Q Okay. We already know that

was

8

coming to get in your car.

9

A Brian?

10

Q Yeah.

11

A That’s --

12

Q They said it to you like you knew who

13

they were. No? And I am telling you this because

14

you already said -- you already mentioned this. I

15

mean, this is already on record. You already

16

mentioned the status you picked up. You knew he

17

was illegal. He doesn’t speak English, correct?

18

A Uh-huh.

19

Q Yet, all the cases -- well, you are

20

talking to this person on the south side English.

21

Do I make myself clear?

22

A Yes.

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1

Q Does that make any sense? Okay. Okay.

2

There is a cousin, right? So you know. You knew.

3

A His cousin is not here. I took him to

4

his other cousin.

5

Q On the other side?

6

A Yeah.

7

Q In Mexico?

8

A No. On this side.

9

Q On this side?

10

A Yeah.

11

Q Oh. All right.

12

BY AGENT:

13

Q So how did they originally contact you?

14

A They just called me.

15

Q So you know them from before?

16

A Yeah, I knew.

17

Q How did you originally meet them?

18

A High school. Well, this one or my --

19

Q The guy that was in the vehicle with you.

20

A I hadn’t really known him today --

21

yesterday.

22

Q How did you meet him?

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1

A Because when I took my friend. It’s his

2

cousin.

3

Q So you know his cousin?

4

A Yeah.

5

Q And you went to high school with his

6

cousin?

7

A Yeah.

8

Q Okay. What is his cousin’s name?

9

A

(ph).

10

Q

11

A Yeah.

12

Q Okay. How did he get you to come pick

13

the kid up?

14

A Well, he called me, and he asked me. I

15

know I need the money. So I said yeah, took it.

16

Q Yeah. I will be honest with you. We are

17

really not after people who just come to pick up

18

family members and stuff like that. I mean, it is

19

not like you are, you know, smuggling drugs or

20

anything like that. So it is like not too big of

21

a deal. If you help us out in any way, it will

22

probably be a little bit smoother for you in the

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1

future. Is there -- did they use any nicknames

2

from anybody --

3

A No.

4

Q -- that was planning to help you out or

5

help him out?

6

A No, they have no nicknames.

7

Q No? Did he actually use your phone at

8

all?

9

A Yeah, he did.

10

Q And he is the one that dropped the pin?

11

A Yeah.

12

Q Okay. Why that pin? Why there?

13

A That’s where his uncle was to meet us up.

14

Q Was his uncle supposedly already there or

15

was he --

16

A Yes.

17

Q -- waiting for you to get there?

18

A He said he was already there.

19

Q How long were you waiting there?

20

A No. We had already got there when they

21

caught us.

22

Q Okay.

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1

A We didn’t really wait long.

2

Q All right.

3

BY AGENT:

4

Q Like I said, whatever you say here is

5

confidential. Nobody is going to know anything.

6

They are not going to know anything unless you

7

tell them. But if anything, you have got to --

8

A I will find --

9

Q -- help us. Help us out, right? I mean,

10

you have got already DACA. That is easy to get

11

away. You can take a week quick. All of that has

12

happened already.

13

A Yeah.

14

Q So you have got to act. You can take the

15

14 days that you asked. We can take a -- we can

16

tell you what it will do, too. If you help us,

17

help us out a little bit -- like I said,

18

everything is confidential. Not everybody gives

19

me a (inaudible) back. You know? Help us out.

20

BY AGENT:

21

Q Tell me who this guy is right here, that

22

number.

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1

A Yeah. That’s one of those numbers he

2

dialed.

3

Q That he dialed?

4

A Yes.

5

Q Which other numbers did he dial?

6

A This one.

7

Q

8

A Yeah. And this one, too. I’ve never

9

seen this number.

10

Q You have never seen either of these

11

numbers?

12

A No.

13

Q

14

A Yeah.

15

Q Or what does that one say?

16

?

17

A Yeah. I don’t know those numbers.

18

Q Okay. So you said that you picked him up

19

at around 11 o’clock, and you said that you have

20

never seen these numbers. I have an 8:47 p.m.

21

from one of the numbers you have just told me --

22

A May I see?

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1

Q -- that you didn’t recognize,

2

.

3

A Yeah.

4

Q What is the cousin’s name -- I mean, the

5

number? The cousin’s number is

.

6

Where is 477 out of? Do you know, 477?

7

A It says Mexico.

8

Q Mexico? It does say that. Okay.

9

AGENT: I really have to use the restroom. I

10

will be back.

11

(Pause.)

12

BY AGENT:

13

Q So you are saying his cousin, he lives

14

here, right, in the States, where? Sun Valley?

15

What is his name? Is it Khan? What is his name?

16

A

17

Q What is it?

18

A

19

Q

So he is the one who told

20

you pretty much?

21

A Yeah.

22

Q And what did he say, “I’m going to have

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1

you take my cousin with you. He knows the area”?

2

A Yeah, “He knows it.”

3

BY AGENT:

4

Q Where did you pick him up at? Is that a

5

business, a house?

6

A Who, the cousin?

7

Q This address here, the 8065 in Sun

8

Valley?

9

A That’s a motel.

10

Q It is what?

11

A A motel.

12

Q Do you know why he was staying in a

13

motel?

14

A His whole family is there.

15

Q In the motel?

16

A Uh-huh.

17

Q When you picked him up, was it a room?

18

Was he waiting on the side?

19

A Waiting outside.

20

Q Do you know the name of the motel?

21

BY AGENT:

22

Q So how many people were you picking up?

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1

A Two.

2

Q Two?

3

BY AGENT:

4

Q Earlier you said it was his uncle. Who

5

else? Did he say?

6

A His uncle and his other cousin.

7

BY AGENT:

8

Q What is the other cousin’s name?

9

A I don’t know.

10

Q Earlier you said that you were just

11

picking up his uncle and you were getting $600.

12

Was the $600 for each of them? Was it $600 total?

13

A Total.

14

Q And they were going to pay you what, when

15

you delivered? Did they already pay you?

16

A Yeah. When I dropped them off, yes.

17

Q Back at the motel?

18

A Uh-huh.

19

Q So where were you supposed to take his

20

uncle?

21

A Back to the hotel.

22

Q Oh, to the hotel in Sun Valley?

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1

A Sun Valley.

2

BY AGENT:

3

Q Who is this one here? Do you know?

4

A No.

5

Q Not much at all? And it was just the

6

uncle and the cousin supposedly you were picking

7

up? There was no mention of anybody else?

8

A That was it.

9

Q And the plan was you pulled up, they were

10

going to be there?

11

A And just take them by Sun Valley.

12

Q And before have you ever done this?

13

A No. This is the first time.

14

Q First time?

15

BY AGENT:

16

Q

like

(ph)?

17

A What?

18

Q

who is it?

19

A

20

Q Yes.

21

A Can I see that name?

22

Q What?

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1

A Can I see that name?

2

Q No. It is the same thing as what I am

3

telling you.

4

A

5

Q

You know who it is. You know.

6

A I don’t know what you are talking about.

7

Okay.

8

BY AGENT:

9

Q He is not in your contacts?

10

A

No. No, I don’t know

I

11

am putting that on everything. I don’t know

12

13

BY AGENT:

14

Q So where is this number coming from, 664?

15

A Mexico.

16

Q Six, six, four (inaudible). Somebody is

17

talking in here.

18

A Who is it?

19

Q I just want to know the -- which --

20

A It is probably whoever he called.

21

Q The what?

22

A The number that he called.

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1

Q It is all English.

2

A Is it

or it was his cousin on

3

that?

4

Q It is on

in your list.

5

A

6

Q Yes.

7

A I don’t have Litto in my contacts.

8

Q But you know who it is, even though -- I

9

know you don’t have him.

10

A Can you tell me the real name?

11

AGENT: Anything else to ask?

12

AGENT: What?

13

AGENT: Anything else you want to ask him?

14

AGENT: No.

15

AGENT: Why don’t you go ahead and wrap it up?

16

AGENT: The number didn’t get called. That

17

was just a text message. Okay.

18

AGENT: Wrap up the finishing stuff. Yeah.

19

You can maybe read that. Read that and then the

20

bottom.

21

AGENT: Right.

22

BY AGENT:

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1

Q Do you have any fear of persecution or

2

torture should you be removed from the United

3

States?

4

A No.

5

Q Is there anything else you would like to

6

say at this time?

7

A Anything else? Am I going to get

8

deported?

9

AGENT: Well, that is not up to us. We

10

collect as much evidence as we can, and we present

11

it. Well, we will pass it on. And other people

12

make those decisions.

13

BY AGENT:

14

Q All right. Were all of the statements

15

you gave today voluntary?

16

A Yes.

17

AGENT: This concludes the sworn statement.

18

The date is February 12th, 2017.

19

AGENT: The time now is 6:44 a.m. Thank you.

20

21

22

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1

2

3

4

5

6

7

8

9

11

12

13 14

Exhibit F

15 Statement of Border Patrol Agent J.H. Regarding Recorded Statement, dated

16

February 12, 2017

17

18

19

20

21

22

23

24

25

26

27

28

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Exhibit G

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Form I-862, Notice to Appear, dated February 12, 2017

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Declaration of USCIS Chief Ron Thomas, dated October 30, 2017

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Exhibit H

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Declaration of USCIS Chief Ron Thomas, dated October 30, 2017

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5:17-cv-2048-MWF-SHK
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Case 5:17-cv-02048-MWF-SHK Document 23-2 Filed 10/30/17 Page 78 of 81 Page ID #:635

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

INLAND EMPIRE – IMMIGRANT YOUTH COLLECTIVE and JESUS ALONSO ARREOLA ROBLES, on behalf of himself and others similarly situated,
Plaintiff,
v.
ELAINE C. DUKE, Acting Secretary of Homeland Security, et al.,
Defendants.

) ) ) ) Case No. 5:17-cv-2048-MWF-SHK ) ) ) ) ) ) ) ) ) ) ) )

DECLARATION OF RON THOMAS

I, Ron Thomas, hereby make the following declaration with respect to the

above captioned matter.

1. I have been the Chief of the Office of Security and Fraud (SCO) within the

Service Center Operations Directorate (SCOPS) for U.S. Citizenship and

Immigration Services (USCIS), a component within the U.S. Department of

Homeland Security (DHS) since 2007. In this position, I provide oversight and

direction to the Background Check Units and Center Fraud Detection Operations

within the Security and Fraud Divisions at the five service centers located in

California, Nebraska, Texas, Vermont, and Virginia. Within my Office at SCOPS

1

Case 5:17-cv-02048-MWF-SHK Document 23-2 Filed 10/30/17 Page 79 of 81 Page ID #:636
I oversee the operations in the National Security Branch and the Fraud Detection Branch within SCOPS.
2. I make this declaration on the basis of my personal knowledge and information made available to me in the course of my official duties.
3. In my capacity as Chief of SCO/SCOPS, I am familiar with the DHS Deferred Action for Childhood Arrivals (DACA) policy that USCIS, in conjunction with other immigration components of DHS, has been implementing since June 15, 2012. In particular, I am familiar with the policies and practices governing termination of DACA for individual recipients.
4. The issuance of a Notice To Appear (NTA) by U.S. Immigration and Customs Enforcement (ICE) or U.S. Customs and Border Protection (CBP) automatically terminates DACA. USCIS sends a Notice of Action informing the DACA recipient that his or her DACA, and related Employment Authorization Document, have automatically terminated following the issuance of an NTA by ICE or CBP. This has been USCIS’ practice since FY 2013 when such terminations began.
5. My team conducted preliminary research on DACA termination cases where USCIS had issued a Notice of Action informing the DACA recipient that his or her DACA had automatically terminated upon issuance of an NTA by ICE or CBP. We looked at whether USCIS sent the Notice of Action after it learned ICE or CBP
2

Case 5:17-cv-02048-MWF-SHK Document 23-2 Filed 10/30/17 Page 80 of 81 Page ID #:637
issued an NTA , or USCIS sent a Referral to ICE first, that then resulted in ICE or CBP issuing an NTA. Conducting a more fulsome review of all automatic terminations of DACA would be burdensome, because it would involve a manual review of hundreds of cases. Therefore, my team pulled a small selection of cases from each fiscal year (FY) since the inception of DACA for which we have termination data available. My team has confirmed that USCIS issued automatic DACA termination notices upon CBP or ICE issuance of an NTA at least four times in FY 2013, once in FY 2014, three times in FY 2015, three times in FY 2016, and three times in FY 2017. None of these fourteen cases involved a USCIS referral to ICE prior to issuance of the NTA by CBP or ICE.
3

Case 5:17-cv-02048-MWF-SHK Document 23-2 Filed 10/30/17 Page 81 of 81 Page ID #:638

 
 Case 5:17-cv-02048-PSG-SHK Document 25 Filed 11/06/17 Page 1 of 31 Page ID #:641

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)

13

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

14

INLAND EMPIRE – IMMIGRANT

) Case No. 5:17-cv-2048-MWF-SHK

15 YOUTH COLLECTIVE and JESUS

)

ALONSO ARREOLA ROBLES on behalf )

16 of himself and others similarly situated, ) )

17

Plaintiffs,

) ) PLAINTIFF’S REPLY IN

18

v.

) SUPPORT OF PLAINTIFF ) JESUS ALONSO ARREOLA

19 ELAINE C. DUKE, Acting Secretary, U.S. ) ROBLES’S MOTION FOR A

Department of Homeland Security; JAMES ) PRELIMINARY INJUNCTION

20 McCAMENT, Acting Director, U.S.

)

Citizenship and Immigration Services;

)

21 22 23

MARK J. HAZUDA, Director, Nebraska Service Center, U.S. Citizenship and Immigration Services; SUSAN M. CURDA, Los Angeles District Director, U.S. Citizenship and Immigration Services;

) ) ) ) )

Judge: Hon. Michael W. Fitzgerald Courtroom: 5A Hearing: November 20, 2017 Time: 10 a.m.

THOMAS D. HOMAN, Acting Director, )

24 U.S. Immigration and Customs

)

Enforcement; DAVID MARIN, Los

)

25 Angeles Field Office Director, U.S.

)

Immigration and Customs Enforcement; )

26 KEVIN K. McALEENAN, Acting

)

Commissioner, U.S. Customs and Border )

27 Protection,

)

Defendants.

)

28

Case 5:17-cv-02048-PSG-SHK Document 25 Filed 11/06/17 Page 2 of 31 Page ID #:642
1 Ahilan T. Arulanantham (SBN 237841) aarulanantham@aclusocal.org
2 Michael Kaufman (SBN 254575) mkaufman@aclusocal.org
3 Dae Keun Kwon (SBN 313155) akwon@aclusocal.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
5 Los Angeles, CA 90017 Telephone: (213) 977-5232
6 Facsimile: (213) 977-5297 7
Attorneys for Plaintiffs 8
*admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-PSG-SHK Document 25 Filed 11/06/17 Page 3 of 31 Page ID #:643

1 TABLE OF CONTENTS
2

3 INTRODUCTION .....................................................................................................1

4 ARGUMENT.............................................................................................................2

5

I. NO STATUTE PRECLUDES JUDICIAL REVIEW.....................................2

6

A. Section 1252(g) Does Not Bar Mr. Arreola’s Claims. ...............................2 7

B. Sections 1252(b)(9) and 1252(a)(5) Do Not Bar Mr. Arreola’s Claims. ...6 8

C. The Termination of Mr. Arreola’s DACA Is Reviewable Under

9

the APA…………………………………………………………………..8

10

II. THE GOVERNMENT DOES NOT CONTEST THAT USCIS’

TERMINATION DECISION WAS ARBITRARY AND CAPRICIOUS

11

UNDER THE APA........................................................................................11

12

A. This Court Must Evaluate the Government’s Actions Based on Its

13

Contemporaneous Rationale. ...................................................................11

14

B. USCIS’ Automatic Termination of Mr. Arreola’s DACA Based on the

Issuance of an NTA Was Arbitrary and Capricious in Violation of the

15

APA……………………………………………………………………..13

16

C. USCIS’ Automatic Revocation Also Violates Its Own Procedures and

Thus the APA. ..........................................................................................15 17

III.THE GOVERNMENT PROVIDES NO RESPONSE TO MR. ARREOLA’S

18

DUE PROCESS ARGUMENT THAT, ALTHOUGH DACA IS

DISCRETIONARY, ONCE GRANTED HE IS ENTITLED TO A FAIR

19

PROCESS FOR REVOCATION..................................................................19

20

IV. THE REMAINING INJUNCTION FACTORS FAVOR

MR. ARREOLA. .........................................................................................21 21

CONCLUSION ........................................................................................................ 23 22

23

24

25

26

27

28

i

Case 5:17-cv-02048-PSG-SHK Document 25 Filed 11/06/17 Page 4 of 31 Page ID #:644

1

TABLE OF AUTHORITIES

2 3 Cases

4 Aguilar v. ICE, 510 F.3d 1 (1st Cir. 2007) ........................................................................................... 7
5 Alcaraz v. INS,

6 384 F.3d 1150 (9th Cir. 2004).......................................................................3, 4, 9, 10 Alfaro-Orellana v. Ilchert,
7 720 F.Supp. 792 (N.D. Cal. 1989) ............................................................................16

8 Arc of California v. Douglas,

757 F.3d 975 (9th Cir. 2014).....................................................................................22 9 Arizona Dream Act Coalition v. Brewer,

10 757 F.3d 1053 (9th Cir. 2014)...................................................................................21 Arrington v. Daniels,
11 516 F.3d 1106 (9th Cir. 2008)...................................................................................12

12 ASSE Intern., Inc. v. Kerry,

803 F.3d 1059 (9th Cir. 2015).....................................................................................9 13 Auntie Anne’s, Inc. v. Wang,

14 No. 14-cv-01049, 2014 WL 11728722 (C.D. Cal. July 16, 2014)............................22

Bell v. Burson, 15 402 U.S. 535 (1971) ..................................................................................................19

16 Bowen v. Mich. Academy of Family Physicians,

476 U.S. 667 (1986) .................................................................................................... 2 17 Califano v. Sanders,

18 430 U.S. 99 (1977) ....................................................................................................12

Camp v. Pitts, 19 411 U.S. 138 (1973) ............................................................................................12, 13

20 Catholic Soc. Servs., Inc. v. I.N.S.,

21

232 F.3d 1139 (9th Cir. 2000).....................................................................................4 Ching v. Mayorkas,

22 725 F.3d 1149 (9th Cir. 2013).........................................................................8, 19, 20

23

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ..................................................................................................12

24 Colotl v. Kelly,

25

No. 17-cv-1670, 2017 WL 2889681 (N.D. Ga. June 12, 2017)................2, 10, 15, 21 Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv.,

26 450 F.3d 930 (9th Cir. 2006).....................................................................................12

27

Dep’t of Parks & Rec. v. Bazaar Del Mundo, Inc., 448 F.3d 1118 (9th Cir. 2006)...................................................................................22

28 FCC v. Fox Television Stations, Inc.,

ii

Case 5:17-cv-02048-PSG-SHK Document 25 Filed 11/06/17 Page 5 of 31 Page ID #:645

1

556 U.S. 502 (2009) ............................................................................................14, 15 Gomez-Lopez v. Ashcroft,

2 393 F.3d 882 (9th Cir. 2005).......................................................................................5

3

Gonzalez Torres v. DHS, No. 17-cv-1840, 2017 WL 4340385, (S.D. Cal. Sept. 29, 2017).......................passim

4 Heckler v. Chaney,

5

470 U.S. 821 (1985) ........................................................................................9, 10, 11 Indep. Min. Co. v. Babbitt,

6 105 F.3d 502 (9th Cir. 1997).....................................................................................12

7 INS v. St. Cyr, 533 U.S. 289 (2001) .................................................................................................... 6

8 JEFM. v. Sessions,

9 No. 15-35738 (9th Cir. Dec. 5, 2016) ......................................................................... 8 JEFM v. Lynch,

10 837 F.3d 1026 (9th Cir. 2016).................................................................................7, 8

11 Judulang v. Holder, 565 U.S. 42 (2011) ....................................................................................................14

12 Mada-Luna v. Fitzpatrick,

13 813 F.2d 1006 (9th Cir. 1987)...................................................................................10 Madu v. Attorney General,

14 470 F.3d 1362 (11th Cir. 2006)...................................................................................5

15 Mamigonian v. Biggs, 710 F.3d 936 (9th Cir. 2013).......................................................................................7
16 Martinez v. Napolitano,

17 704 F.3d 620 (9th Cir. 2012).......................................................................................8 Matter of Quintero,
18 18 I. & N. Dec. 348 (BIA 1982)..........................................................................5, 7, 8

19 Mendez-Gutierrez v. Ashcroft, 340 F.3d 865 (9th Cir. 2003).......................................................................................9
20 Morales de Soto v. Lynch,

21 824 F.3d 822 (9th Cir. 2016).....................................................................................10 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
22 463 U.S. 29 (1983) ..............................................................................................13, 14

23 Nicholas v. INS, 590 F.2d 802 (9th Cir.1979) ........................................................................................ 6
24 Organized Vill. of Kake v. U.S. Dep’t of Agric.,

25 795 F.3d 956 (9th Cir. 2015).....................................................................................14 Pinnacle Armor, Inc. v. U.S.,
26 648 F.3d 708 (9th Cir. 2011).......................................................................................9

27 Quach v. Bank of Am., Nat. Ass’n, No. 12–5037 EJD, 2012 WL 4498873 (N.D. Cal. Sept. 28, 2012)........................... 21
28 Reno v. American-Arab Anti-Discrimination Committee,

iii

Case 5:17-cv-02048-PSG-SHK Document 25 Filed 11/06/17 Page 6 of 31 Page ID #:646

1

525 U.S. 471 (1999) ................................................................................................3, 5 Resident Councils of Washington v. Leavitt,

2 500 F.3d 1025 (9th Cir. 2007)...................................................................................18

3

Rodriguez v. Sessions, 677 Fed. App’x 447 (9th Cir. 2017)............................................................................5

4 Romeiro de Silva v. Smith,

5

773 F.2d 1021 (9th Cir. 1985).....................................................................................6 San Diego Minutemen v. California Bus. Transp. & Hous. Agency’s Dep’t of Transp.,

6 570 F. Supp. 2d 1229 (S.D. Cal. 2008) .....................................................................23

7 SEC v. Chenery Corp., 318 U.S. 80 (1943) ....................................................................................................12

8 Shirrod v. Director,

9 809 F.3d 1082 (9th Cir. 2015)...................................................................................12 Singh v. Gonzales,

10 499 F.3d 969 (9th Cir. 2007)...................................................................................6, 7

11 Sissoko v. Rocha, 509 F.3d 947 (9th Cir. 2007).......................................................................................6

12 Spencer Enters., Inc. v. United States,

13 345 F.3d 683 (9th Cir. 2003).......................................................................................9 Steenholdt v. FAA,

14 314 F.3d 633 (D.C. Cir. 2003) .................................................................................... 9

15 Texas v. United States, 787 F.3d 733 (5th Cir. 2015).......................................................................................5
16 Texas v. United States,

17 809 F.3d 134, 170 (5th Cir. 2015), as revised (Nov. 25, 2015), cert. granted, 136 S. Ct. 906, 193 L. Ed. 2d 788 (2016) ......................................... 11
18 Toor v. Lynch,

19 789 F.3d 1055 (9th Cir. 2015)...................................................................................12 U.S. ex rel. Accardi v. Shaughnessy,
20 347 U.S. 260 (1954) ..................................................................................................10

21 United States v. Barajas-Montiel, 185 F.3d 947 (9th Cir. 1999).....................................................................................13
22 United States v. Hovsepian,

23 359 F.3d 1144 (9th Cir. 2004).................................................................................4, 5 Vilchiz-Soto v. Holder,
24 688 F.3d 642 (9th Cir. 2012).......................................................................................5

25 Zolotukhin v. Gonzales, 417 F.3d 1073 (9th Cir. 2005)...................................................................................20
26

27 Statutes

28 5 U.S.C. § 701(a) ..........................................................................................................10

iv

Case 5:17-cv-02048-PSG-SHK Document 25 Filed 11/06/17 Page 7 of 31 Page ID #:647

1

5 U.S.C. § 701(a)(2)..................................................................................................9, 10 5 U.S.C. § 706(2) ..........................................................................................................14

2 8 U.S.C. § 1252(a)(1)......................................................................................................6

3

8 U.S.C. § 1252(a)(2)(B) ................................................................................................ 5 8 U.S.C. § 1252(a)(5)..................................................................................................2, 6

4 8 U.S.C. § 1252(b)(9) .........................................................................................2, 6, 7, 8

5 8 U.S.C. § 1252(g) .................................................................................................passim

6 Regulations

7 8 C.F.R. § 274a.12(c)....................................................................................................16 8 8 C.F.R. § 274a.14(a)(1)(ii) ..........................................................................................16

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

v

Case 5:17-cv-02048-PSG-SHK Document 25 Filed 11/06/17 Page 8 of 31 Page ID #:648

1

INTRODUCTION

2

The government wholly fails to address the merits of Mr. Arreola’s claim that

3 stripping him of DACA (“Deferred Action for Childhood Arrivals”) based solely on a

4 Notice to Appear (“NTA”) charging him with presence without admission was

5 arbitrary, capricious, and contrary to law. Indeed, the government fails even to

6 contest that the DACA rules explicitly provide that a noncitizen’s placement in

7 removal proceedings does not preclude a DACA grant. Instead, the government

8 improperly offers a post hac rationale—one that the United States Citizenship and

9 Immigration Services (“USCIS”) did not provide to Mr. Arreola and which there is no

10 indication that it even considered in deciding to terminate his DACA. And in arguing

11 that USCIS’ automatic termination did not also violate its own rules, the government

12 ignores the plain language of the DACA Standard Operating Procedures.

13

Given the government’s clear violation of the Administrative Procedure Act

14 (“APA”), it is no surprise that it asks this Court to avoid the merits on jurisdictional

15 and other grounds. In doing so, it repeatedly mischaracterizes Mr. Arreola’s claims as

16 challenges to removal. Yet Mr. Arreola does not challenge his placement in removal

17 proceedings, which are ongoing; instead, he challenges USCIS’s separate decision to

18 terminate his DACA after removal proceedings were initiated—a claim the

19 immigration court would have no jurisdiction to consider. The government also

20 incorrectly portrays Mr. Arreola’s claims as directed at the agency’s ultimate exercise

21 of discretion, rather than at the agency’s termination practices, set out in its

22 nondiscretionary eligibility criteria and procedures, which provide a meaningful

23 standard for review under the APA. Unsurprisingly, each federal court to address the

24 government’s jurisdictional arguments concerning a DACA recipient’s challenge to

25 termination has rejected them, and this Court should as well.

26

Mr. Arreola’s request for relief is straightforward: this Court should preserve

27 the status quo by temporarily enjoining the revocation of Mr. Arreola’s DACA

28 pending a termination process that complies with the APA and due process.

1

Case 5:17-cv-02048-PSG-SHK Document 25 Filed 11/06/17 Page 9 of 31 Page ID #:649

1

ARGUMENT

2 I. NO STATUTE PRECLUDES JUDICIAL REVIEW.

3

In determining whether a suit can be brought under the APA, courts must

4 “begin with the strong presumption that Congress intends judicial review of

5 administrative action.” Bowen v. Mich. Academy of Family Physicians, 476 U.S. 667,

6 670 (1986). This presumption requires that “only upon a showing of clear and

7 convincing evidence of a contrary legislative intent should the courts restrict access to

8 judicial review [of administrative action].” Id. at 671 (citation and internal quotation

9 marks omitted). Here, there is no clear showing of intent to preclude Mr. Arreola’s

10 challenge to the termination of his DACA, a matter entirely independent of and

11 collateral to any removal proceedings.

12

The government contends that 8 U.S.C. § 1252(g), as well as §§ 1252(b)(9) and

13 1252(a)(5)—each of which purports to limit jurisdiction over certain challenges

14 relating to removal proceedings—bar this court from exercising jurisdiction over a

15 challenge to the termination of DACA. Yet each court to have considered these

16 contentions has rejected them. Gonzalez Torres v. DHS, No. 17-cv-1840, 2017 WL

17 4340385, at *4-5 (S.D. Cal. Sept. 29, 2017) (“Here, Plaintiff brings a procedural

18 challenge to termination of his DACA [], an issue independent from any removal

19 proceedings.”); Colotl v. Kelly, No. 17-cv-1670, 2017 WL 2889681, at *8-10 (N.D.

20 Ga. June 12, 2017) (“[N]either [§ 1252(g) nor § 1252(b)(9)] divests this Court of

21 jurisdiction to hear Plaintiff’s challenge to the . . . nondiscretionary process by which

22 her DACA status was terminated.”). As these courts correctly concluded, 8 U.S.C.

23 §§ 1252(a)(5), 1252(b)(9), and 1252(g) do not bar review of claims that the

24 government invalidly terminated a noncitizen’s DACA. None of Mr. Arreola’s claims

25 challenges the validity of any removal order, the adequacy of any removal

26 proceedings, or the initiation of any such proceedings.

27

A. Section 1252(g) Does Not Bar Mr. Arreola’s Claims.

28

Section 1252(g) does not apply because, despite the government’s repeated

2

Case 5:17-cv-02048-PSG-SHK Document 25 Filed 11/06/17 Page 10 of 31 Page ID #:650

1 efforts to mischaracterize the nature of his claims, Mr. Arreola is not challenging any

2 decision to “commence” or “adjudicate” removal proceedings. As the Supreme Court

3 explained in Reno v. American-Arab Anti-Discrimination Committee, (“AADC”),

4 “what § 1252(g) says is” quite “narrow[].” 525 U.S. 471, 482 (1999). Compare Opp.

5 at 16 (asserting, contrary to AADC, that § 1252(g) “broadly precludes judicial

6 review”). “The provision applies only to three discrete actions that the Attorney

7 General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate

8 cases, or execute removal orders.’” AADC, 525 U.S. at 482. Section 1252(g) does not

9 preclude review of “many other decisions or actions that may be part of the

10 deportation process—such as the decisions to open an investigation, to surveil the

11 suspected violator, to reschedule the deportation hearing, to include various provisions

12 in the final order that is the product of the adjudication, and to refuse reconsideration

13 of that order.” Id.

14

Consistent with the Supreme Court’s guidance in AADC, the Ninth Circuit has

15 narrowly construed § 1252(g). For example, in Alcaraz v. INS, 384 F.3d 1150 (9th

16 Cir. 2004), the Ninth Circuit made clear that even claims closely related to the

17 initiation of removal proceedings are not precluded by § 1252(g), so long as the claim

18 does not directly challenge the decision to commence proceedings itself. Id. at 1160-

19 61. Alcaraz considered whether § 1252(g) precluded jurisdiction over a claim that the

20 BIA should have administratively closed the noncitizens’ removal proceedings, which

21 would have allowed the immigration authorities to re-initiate removal proceedings in

22 which the noncitizens would be eligible to apply for a form of discretionary relief that

23 would not have otherwise been available to them. Id. at 1152-53. This process—of

24 administrative closure followed by re-initiation of removal proceedings—was known

25 as “repapering.” Id. at 1154. The Ninth Circuit held that “[w]hile the second step in

26 the repapering process involves a decision to commence (or “reinitiate”) proceedings,

27 . . . [t]he Alcarazes’ repapering claim only raises the issue of administrative closure.

28 Therefore, we are not barred from hearing this claim by 8 U.S.C. § 1252(g).” Id. at

3

Case 5:17-cv-02048-PSG-SHK Document 25 Filed 11/06/17 Page 11 of 31 Page ID #:651

1 1161.

2

Here, although one of Mr. Arreola’s claims challenges USCIS’ categorical

3 revocation of his DACA after his NTA was issued, Mr. Arreola’s claim does not

4 challenge CBP’s issuance of the NTA itself or its decision to place him in removal

5 proceedings. Rather, he challenges USCIS’ separate and independent decision to

6 revoke his DACA on that basis. See Gonzalez Torres, 2017 WL 4340385, at *4-5

7 (holding that § 1252(g) did not preclude jurisdiction over noncitizen’s challenge to

8 DACA termination based on an NTA, and explaining that the plaintiff’s challenge was

9 “independent from any removal proceedings”). As in Alcaraz and Gonzalez Torres,

10 § 1252(g) does not preclude jurisdiction here because Mr. Arreola’s specific claim

11 does not challenge the commencement of removal proceedings itself. See, e.g.,

12 Catholic Soc. Servs., Inc. v. I.N.S., 232 F.3d 1139, 1150 (9th Cir. 2000) (explaining

13 that § 1252(g) “applies only to the three specific discretionary actions mentioned in its

14 text, not to all claims relating in any way to deportation proceedings”). Notably,

15 success on the claims in this case would not affect the immigration judge’s continued

16 jurisdiction over Mr. Arreola’s removal proceedings.

17

Mr. Arreola’s claim is not barred by § 1252(g) for the additional reason that he

18 does not challenge the agency’s ultimate exercise of discretion, but rather asserts legal

19 claims: he challenges Defendants’ failures to comply with their own rules, to provide

20 him with the process due, and to comply with the mandates of the APA. In construing

21 § 1252(g), the Ninth Circuit has also held that while it precludes jurisdiction to review

22 challenges to the three specified discretionary decisions, it does not bar review of

23 legal questions, even if related to those discretionary decisions. In United States v.

24 Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004) (en banc), the Court explained that

25 under 8 U.S.C. § 1252(g), “[t]he district court may consider a purely legal question

26 that does not challenge the Attorney General’s discretionary authority, even if the

27 answer to that legal question—a description of the relevant law—forms the backdrop

28 against which the Attorney General later will exercise discretionary authority.”

4

Case 5:17-cv-02048-PSG-SHK Document 25 Filed 11/06/17 Page 12 of 31 Page ID #:652

1 Accord, e.g., Madu v. Attorney General, 470 F.3d 1362, 1368 (11th Cir. 2006)

2 (explaining that § 1252(g) “does not proscribe substantive review of the underlying

3 legal bases for those discretionary decisions and actions”). The Ninth Circuit’s en 4 banc decision in Hovsepian is controlling here.1 Thus, although AADC indicated that

5 § 1252(g) was “designed to give some measure of protection to ‘no deferred action’

6 decisions and similar discretionary determinations,” 525 U.S. at 485 (emphasis

7 added), Mr. Arreola’s case does not challenge any discretionary decision not to defer

8 action. See also Texas v. United States, 787 F.3d 733, 755-56 (5th Cir. 2015) (holding

9 that § 1252(g) was inapplicable to states’ APA challenge to 2014 deferred action

10 program). Indeed, rather than exercise its discretion in determining whether the

11 totality of circumstances warranted revocation, the government categorically 12 terminated Mr. Arreola’s DACA and work permit.2

13

Finally, the government incorrectly represents that the Ninth Circuit has “held

14 there is no subject matter jurisdiction to review a decision to grant DACA” pursuant to

15 § 1252(g). Opp. at 15. However, neither case cited by the government so holds. In

16 Vilchiz-Soto v. Holder, 688 F.3d 642 (9th Cir. 2012), the noncitizen sought review not

17 of any decision to grant or deny DACA, but of the Board of Immigration Appeals’

18 (“BIA”) decision not to reopen removal proceedings, which the noncitizen believed

19 would have allowed him to apply for DACA. Id. at 643-44. The BIA, however, has

20 no jurisdiction to grant or deny DACA. See Matter of Quintero, 18 I. & N. Dec. 348,

21 350 (BIA 1982). The government also cites dicta in an unpublished case, Cruz

22

23

1 Notably, the government overlooks the Ninth Circuit’s en banc decision in Hovsepian and instead cites an Eighth Circuit case, incorrectly representing that “8

24 U.S.C. § 1252(g) does not distinguish between discretionary and nondiscretionary

25

duties.” Opp. at 17. As discussed, however, the Ninth Circuit has rejected the argument advanced by the government.

26 2 Cf. Gomez-Lopez v. Ashcroft, 393 F.3d 882, 884 (9th Cir. 2005) (holding that

27

denial of discretionary relief based on a conclusion that noncitizen was in a “per se exclusion categor[y]” for that form of relief was “not a discretionary decision and

28 therefore [did] not strip this court of jurisdiction” under § 1252(a)(2)(B)).

5

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1 Rodriguez v. Sessions, 677 Fed. App’x 447 (9th Cir. 2017), but that case is likewise

2 inapposite because the noncitizen challenged the BIA’s denial of a motion to remand,

3 and the Court therefore had no occasion to consider whether it would have jurisdiction 4 to review a challenge to a denial of DACA on legal grounds.3 In both cases cited by

5 the government, the noncitizen had not even applied for DACA, let alone sought 6 review of any denial.4

7

B. Sections 1252(b)(9) and 1252(a)(5) Do Not Bar Mr. Arreola’s Claims.

8

As the Supreme Court has explained, the purpose of § 1252(b)(9) is “to

9 consolidate ‘judicial review’ of immigration proceedings into one action in the court

10 of appeals, but it applies only ‘[w]ith respect to review of an order of removal under

11 subsection [1252] (a)(1).’” INS v. St. Cyr, 533 U.S. 289, 313 (2001). Critically, St. Cyr

12 held that § 1252(b)(9) does not apply to matters that are “not subject to judicial review

13 under § 1252(a)(1)”—which governs judicial review of removal orders. Id. The same

14 is true of § 1252(a)(5), which expressly concerns “judicial review of an order of

15 removal.” See Singh v. Gonzales, 499 F.3d 969, 978 (9th Cir. 2007) (“By virtue of

16 their explicit language, both §§ 1252(a)(5) and 1252(b)(9) apply only to those claims

17 seeking judicial review of orders of removal.”). Thus, §§ 1252(a)(5) and 1252(b)(9)

18 work to ensure that issues that can be adjudicated in a deportation proceeding are

19 resolved there, rather than in piecemeal, separate litigation.

20

Here, these provisions are inapplicable because Mr. Arreola does not seek

21

22 3 The government also cites Romeiro de Silva v. Smith, 773 F.2d 1021, 1024-25

23

(9th Cir. 1985), but that case did not involve section 1252(g); in fact, the statute did not yet exist at the time. In any event, the court explained that Nicholas v. INS, 590

24 F.2d 802 (9th Cir.1979), which found that courts had jurisdiction to review the 1978

25

deferred action Operations Instruction, remained good law in the Ninth Circuit. 4 The government’s citation to Sissoko v. Rocha, 509 F.3d 947 (9th Cir. 2007), is

26 likewise unavailing. That case involved a “direct[] challenge[]” to the government’s

27

“decision to commence expedited removal proceedings.” Id. at 950. In contrast, here, Mr. Arreola does not challenge the validity of his placement in removal

28 proceedings whatsoever.

6

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1 judicial review of an order of removal. To the contrary, his challenge is collateral to,

2 and independent of, any removal proceedings. See Gonzalez Torres, 2017 WL

3 4340385, at *4-5. Indeed, the government takes the position that “[d]eferred action

4 does not . . . provide any defense to removal,” and “[a]n individual with deferred

5 action remains removable at any time.” Opp. at 3. A noncitizen who is in removal 6 proceedings can apply for DACA separately and simultaneously.5 Critically, an IJ has

7 no power to grant or deny deferred action, or to review or reverse the immigration

8 agency’s decision to revoke deferred action. Gonzalez Torres, 2017 WL 4340385, at

9 *11 (“[A]n immigration judge has no jurisdiction to reinstate DACA status, or

10 authorize an application for renewal of DACA status, as acknowledged by Defendants

11 at oral argument.”); see also Napolitano Memo at 2-3; Matter of Quintero, 18 I. & N.

12 Dec. at 350 (explaining that “neither the immigration judge nor the Board may grant

13 [deferred action] status or review a decision of the District Director to deny it”).

14

In particular, § 1252(b)(9) does not preclude Mr. Arreola’s claim because that

15 section does not deprive district courts of jurisdiction where the claim could not have

16 been litigated in removal proceedings and the noncitizen would otherwise “have had

17 no legal avenue to obtain judicial review of this claim.” JEFM v. Lynch, 837 F.3d

18 1026, 1032 (9th Cir. 2016) (citing Singh, 499 F.3d at 979-80); see also Aguilar v. ICE,

19 510 F.3d 1, 11-12 (1st Cir. 2007) (explaining that § 1252(b)(9) does not preclude

20 “claims that cannot effectively be handled through the available administrative

21 process”). The government concedes this point, but ignores that the immigration court

22 simply has no jurisdiction to review the termination or denial of DACA. See Opp. at

23 19 (“Congress’s intent was simple: if the issue is one that can be raised in removal

24 proceedings, and ultimately in a petition for review, then the statute precludes district

25 court review”) (citing JEFM, 837 F.3d at 1034).

26

27

5 Doc. No. 16-4, Kwon Decl. ¶ 10, Ex. 9 at 2 (Janet Napolitano, Memorandum on Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the

28 United States as Children (“Napolitano Memo”) (June 15, 2012)).

7

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1

The government also overlooks that in applying the jurisdictional provisions of

2 § 1252, the Ninth Circuit has repeatedly held that APA challenges to the Department

3 of Homeland Security’s (“DHS”) denials of affirmative benefits that are collateral to a

4 noncitizen’s removal proceedings may be brought in district court. For example, in

5 Mamigonian v. Biggs, 710 F.3d 936, 945-46 (9th Cir. 2013), the Ninth Circuit

6 considered whether a noncitizen could seek district court review of USCIS’ denial of

7 an adjustment of status application, when the noncitizen had also been in removal

8 proceedings. Because review in the context of removal proceedings “would be

9 unavailable to Ms. Mamigonian,” she could bring an affirmative claim in district court

10 notwithstanding the § 1252 jurisdictional bars. Id. at 945; see also, e.g., Ching v.

11 Mayorkas, 725 F.3d 1149, 1154-59 (9th Cir. 2013) (reversing district court’s denial of

12 procedural due process challenge to the denial of an I-130 petition for immediate

13 relative status filed by a husband for his wife, even though the wife’s “removal

14 proceedings are currently pending”).

15

The government unsuccessfully attempts to draw support for its § 1252(b)(9)

16 argument from JEFM, but that case supports Mr. Arreola’s position.6 As noted,

17 JEFM makes clear that where, as here, the immigration court would have no

18 jurisdiction to adjudicate the claim, § 1252(b)(9) does not bar district court

19 jurisdiction. JEFM, 837 F.3d at 1032. In JEFM, the Court reasoned that the

20 plaintiffs’ claim—that children in removal proceedings have a right to counsel—was

21 not independent of removal proceedings, emphasizing that “[r]ight-to-counsel claims

22 are routinely raised in petitions for review filed with a federal court of appeals.” Id. at 23 1033.7 Here, in contrast, there is no question that a challenge to the revocation of

24

25

6 Counsel submit that JEFM’s conclusion—that the right to counsel claims at issue there could not be brought in district court—was incorrect, and note that there is

26 a pending petition for rehearing en banc. See JEFM v. Sessions, No. 15-35738, Doc.

27

No. 106 at 12-23 (9th Cir. Dec. 5, 2016). 7 Similarly, in Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012), the

28 petitioner raised asylum and other claims that could be raised in removal proceedings.

8

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1 deferred action cannot be brought in immigration court, because the immigration

2 judge has no power to consider it. Matter of Quintero, 18 I. & N. Dec. at 350.

3

C. The Termination of Mr. Arreola’s DACA Is Reviewable Under the

4

APA.

5

The DACA eligibility criteria and Standard Operating Procedures (“SOPs”)

6 provide law to apply, and the government’s contention that that determination is

7 “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), is therefore incorrect.

8 That bar applies only where there is “no meaningful standard against which to judge

9 the agency’s exercise of discretion.” Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 868

10 (9th Cir. 2003) (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)). As the Ninth

11 Circuit has held, there is law to apply whenever “statutes, regulations, established

12 agency policies, or judicial decisions . . . provide a meaningful standard against which

13 to assess” the agency action. Id.; accord ASSE Intern., Inc. v. Kerry, 803 F.3d 1059,

14 1069 (9th Cir. 2015) (“Even where statutory language grants an agency ‘unfettered

15 discretion,’ its decision may nonetheless be reviewed if regulations or agency practice

16 provide a ‘meaningful standard by which this court may review its exercise of

17 discretion.’”) (quoting Spencer Enters., Inc. v. United States, 345 F.3d 683, 688 (9th

18 Cir. 2003)).

19

The Ninth Circuit has expressly found that informal memoranda may provide

20 such a standard. For example, in Alcaraz, the Ninth Circuit held that, although the

21 relevant statutory provision committed the repapering policy at issue to the Attorney

22 General, the agency’s memoranda on the topic were sufficient to provide jurisdiction

23 under the APA. 384 F.3d at 1161; see also Pinnacle Armor, Inc. v. U.S., 648 F.3d

24 708, 719 (9th Cir. 2011) (looking to agency’s interim certification standards for law to

25 apply); Mendez-Gutierrez, 340 F.3d at 868-69 (finding that agency’s application of

26 reinstatement rules provided law to apply); Steenholdt v. FAA, 314 F.3d 633, 638

27 (D.C. Cir. 2003) (“[J]udicially manageable standards by which to judge the agency’s

28 action . . . may be found in formal and informal policy statements and regulations as

9

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1 well as in statutes.”) (citation and internal quotation marks omitted). Here, the

2 Napolitano Memorandum and DACA SOPs govern the DACA eligibility

3 determination and in particular, whether Mr. Arreola continues to be eligible for 4 DACA despite the issuance of his NTA.8 These documents, like the repapering

5 memoranda in Alcaraz, 384 F.3d at 1161, set out detailed policy directives that

6 provide the standards against which this Court can judge the government’s revocation

7 of Mr. Arreola’s DACA. See Gonzalez Torres, 2017 WL 4340385, at *5

8 (“Defendants’ failure to follow the termination procedures set forth in the DACA SOP

9 is arbitrary, capricious, and an abuse of discretion.”) (citing U.S. ex rel. Accardi v.

10 Shaughnessy, 347 U.S. 260, 268 (1954), and Alcarez); Colotl, 2017 WL 2889681, at

11 *10 (“Defendants’ argument that § 701(a) of the APA bars this Court from reviewing

12 an agency’s non-discretionary review process fails.”). The government’s suggestion

13 that such directives are unenforceable under U.S. ex rel. Accardi v. Shaughnessy, 347

14 U.S. 260, 268 (1954), Opp. at 14, relies on a patent misreading of a single case. In

15 Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1010-11 (9th Cir. 1987), the plaintiff did

16 not attempt to enforce the guidelines at issue. Instead, the case concerned whether

17 those guidelines were applicable at all, and improperly promulgated without notice

18 and comment procedures. The opinion therefore did not mention Accardi at all, and

19 indeed the court also explained that it was not faced with the question of whether it

20 lacked jurisdiction under 5 U.S.C. 701(a)(2). See Mada-Luna, 813 F.2d at 1015.

21 8 Although the DACA memorandum has been withdrawn, the agency continues

22 to adjudicate DACA applications according to the standards set out in the

23

memorandum and its SOPs. See Kwon Decl. ¶ 16, Ex. 15 at 15 (Press Briefing by Press Secretary Sarah Sanders and Homeland Security Advisor Tom Bossert,

24 9/8/2017, #11, The White House, Office of the Press Secretary (explaining that

25

“[d]uring this six-month time, there are no changes that are being made to the program at this point”); see also id. ¶ 17, Ex. 16 (Testimony of Michael Dougherty, Assistant

26 Secretary of DHS, Committee of the Judiciary, Oversight of the Administration’s

27

Decision to End Deferred Action for Childhood Arrivals (Oct. 3, 2017), https://www.c-span.org/video/?435059-1/trump-administration-officials-testify-

28 decision-rescind-daca (relevant testimony at 56:46)).

10

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1

The proposition from Heckler, 470 U.S. at 831-32, that an agency’s

2 nonenforcement decisions are presumptively committed to agency discretion, is

3 consistent with these principles: Mr. Arreola challenges USCIS’ determination that his

4 DACA should be automatically terminated based on CBP’s issuance of an NTA, not 5 any eventual enforcement decision in removal proceedings.9 Indeed, in Heckler, the

6 Court noted that even enforcement decisions are reviewable where they are governed

7 by “clearly defined factors” like the DACA eligibility criteria. 470 U.S. at 834

8 (citation and internal quotation marks omitted). And the Fifth Circuit expressly found

9 that the DACA memorandum created nondiscretionary eligibility standards. See

10 Texas v. United States, 809 F.3d 134, 170 (5th Cir. 2015), as revised (Nov. 25,

11 2015), cert. granted, 136 S. Ct. 906, 193 L. Ed. 2d 788 (2016).

12

In sum, the government fails to address the simple reason why the decision to

13 terminate Mr. Arreola’s DACA on the basis of the issuance of his NTA is reviewable

14 under the APA: the eligibility criteria and the SOPs provide the “meaningful standard

15 against which to judge the agency’s exercise of discretion” required by Heckler, 470

16 U.S. at 830.

17 II. THE GOVERNMENT DOES NOT CONTEST THAT USCIS’

18

TERMINATION DECISION WAS ARBITRARY AND CAPRICIOUS

UNDER THE APA.

19

20

A. This Court Must Evaluate the Government’s Actions Based on Its

Contemporaneous Rationale.

21

The government does not dispute that USCIS terminated Mr. Arreola’s DACA

22 automatically based on CBP’s issuance of an NTA, and thereby failed to exercise its

23 own discretion. Nor does the government contend that it ever provided an

24

9
25

Morales de Soto v. Lynch, 824 F.3d 822, 828-29 (9th Cir. 2016), the only Ninth

Circuit case on which the government relies for the proposition that exercises of

26 prosecutorial discretion are unreviewable, concerned a challenge to an agency’s final

27 discretionary determination. Here, by contrast, Mr. Arreola challenges USCIS’ failure to follow its own rules before reaching a discretionary determination.
28

11

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1 explanation, based on relevant factors, for its abrupt reversal. Instead, the government

2 introduces new documents related to Mr. Arreola’s arrest—documents that the

3 government never suggests that USCIS possessed, let alone relied on, in terminating

4 Mr. Arreola’s DACA. The government’s contention that this Court should consider

5 that evidence violates two fundamental principles of administrative law.

6

First, it is black letter law that courts review agency action according to the

7 contemporaneous reasons given by the agency, and disregard any alternative

8 rationales presented during litigation. See Citizens to Preserve Overton Park, Inc. v.

9 Volpe, 401 U.S. 402, 419 (1971), abrogated on other grounds by Califano v. Sanders,

10 430 U.S. 99 (1977); see also SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943). As the

11 Ninth Circuit has explained, “[t]he rule barring consideration of post hoc agency

12 rationalizations operates where an agency has provided a particular justification for a

13 determination at the time the determination is made, but provides a different

14 justification for that same determination when it is later reviewed by another body.”

15 Indep. Min. Co. v. Babbitt, 105 F.3d 502, 511 (9th Cir. 1997); accord Toor v. Lynch,

16 789 F.3d 1055, 1064 (9th Cir. 2015) (agency action may only be affirmed based on

17 the contemporaneous “explanations offered by the agency”) (internal quotation marks

18 omitted) (quoting Arrington v. Daniels, 516 F.3d 1106, 1112–13 (9th Cir. 2008));

19 Shirrod v. Director, 809 F.3d 1082, 1087 n.4 (9th Cir. 2015) (court must “review only

20 what the [agency] did, not what [it] could have done”).

21

Here, USCIS made clear in its notice to Mr. Arreola, and Defendants do not

22 contest, Opp. at 25, that USCIS terminated Mr. Arreola’s DACA automatically due to

23 CBP’s issuance of an NTA based on his presence without admission. The newly

24 submitted evidence is irrelevant to USCIS’ automatic termination decision, which is

25 the only rationale USCIS provided and the only rationale that is at issue in this case.

26

Second, and relatedly, courts may only review agency actions on the basis of

27 the administrative record. “If [a] finding is not sustainable on the administrative

28 record made, then the [agency’s] decision must be vacated and the matter remanded to

12

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1 [it] for further consideration.” Camp v. Pitts, 411 U.S. 138, 143 (1973). This Court

2 should decline to consider outside evidence that is not part of the record of USCIS’

3 termination decision; indeed, there is no evidence that USCIS itself considered it. Ctr.

4 for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir.

5 2006) (affirming the district court’s decision to strike additional exhibits that were not

6 part of the administrative record and noting that “the focal point for judicial review

7 should be the administrative record already in existence, not some new record made 8 initially in the reviewing court”) (quoting Camp, 411 U.S. at 142).10

9

In sum, on this motion, the Court must evaluate USCIS’ action according to the

10 contemporaneous rationale it provided and based on the record that was actually

11 before it.

12

B. USCIS’ Automatic Termination of Mr. Arreola’s DACA Based on

13

the Issuance of an NTA Was Arbitrary and Capricious in Violation

of the APA.

14

Defendants wholly fail to respond to—and therefore do not contest—Mr.

15

Arreola’s claim that USCIS’ actual rationale for terminating his DACA grant—the

16

10
17

Notably, the government’s allegations underscore the value of providing a fair

pre-termination procedure with notice of the reasons for the decision and a fair

18 opportunity to respond. Had Mr. Arreola been provided an opportunity to respond, he

19 would have vigorously contested that he committed any crime. In fact, the government’s extra-record evidence shows that Mr. Arreola emphatically denied
20 smuggling when asked. Doc No. 23-2 at 54. Yet CBP represented in the I-213 form

21 that Mr. Arreola “stated that he was smuggling illegal aliens for financial gain.” Kwon Decl. ¶ 8, Ex. 7. An Immigration Judge nonetheless found Mr. Arreola credible
22 that he was not engaged in smuggling, and concluded that the I-213 allegations were

23 mistaken. The government now heavily relies on Mr. Arreola’s purported acknowledgment that he knew the passengers he was to pick up were undocumented,
24 Opp. at 28, but Mr. Arreola never suggested in the interview that he knew of his

25 prospective passengers’ immigration statuses before he was arrested by CBP agents. In any event, the government apparently decided that there was no basis to charge Mr.
26 Arreola with any crime. Cf. United States v. Barajas-Montiel, 185 F.3d 947, 953-54

27 (9th Cir. 1999) (holding that to establish a violation, specific intent to violate the smuggling laws must be established).
28

13

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1 mere issuance of an NTA charging him with being present without admission—was

2 arbitrary and capricious under the APA. Nor do Defendants contest that the

3 Napolitano Memo and SOPs expressly provide that a noncitizen’s placement in

4 removal proceedings does not preclude a DACA grant.

5

USICS’ termination decision (1) represents a complete reversal of its prior

6 considered position that Mr. Arreola was eligible for and warranted DACA without

7 providing “a reasoned analysis for the change,” Motor Vehicle Mfrs. Ass’n v. State

8 Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983); and (2) does not reflect reasoned

9 decisionmaking, see Judulang v. Holder, 565 U.S. 42, 55 (2011) (holding that

10 “agency action must be based on non-arbitrary, ‘relevant factors’”). USCIS’ decision

11 is arbitrary and capricious under the APA for both of these reasons. 5 U.S.C.

12 § 706(2).

13

First, although an agency may depart from its prior decision, if it does so, it “is

14 obligated to supply a reasoned analysis for the change.” State Farm, 463 U.S. at 42;

15 see also FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (“[T]he

16 agency must show that there are good reasons for the new policy.”). USCIS’ one-

17 sentence explanation that it terminated Mr. Arreola’s DACA automatically fails to

18 acknowledge that Mr. Arreola remains eligible for DACA under the applicable

19 criteria, much less provide “good reasons” for the agency’s change in position, as

20 required by the APA. Fox Television Stations, Inc., 556 U.S. at 515; see also, e.g.,

21 Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 968 (9th Cir. 2015)

22 (explaining that the agency is “required to provide a ‘reasoned explanation . . . for

23 disregarding’ the ‘facts and circumstances’ that underlay its previous decision”)

24 (citations omitted). Indeed, all DACA recipients lack lawful immigration status and,

25 like Mr. Arreola, are removable on that basis. USCIS’ reliance on an NTA citing Mr.

26 Arreola’s presence without admission therefore fails to explain, much less justify, its

27 decision to reverse course and terminate his DACA. See Fox Television Stations, Inc.,

28 556 U.S. at 515 (explaining that an agency must give a “more detailed justification”

14

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1 for a policy change if its “prior policy has engendered serious reliance interests that

2 must be taken into account”).

3

Second, as explained in Mr. Arreola’s opening brief, USCIS failed to act “in a

4 reasoned manner” in violation of the APA. See PI Mot. at 11-14. An individual’s

5 presence without admission is wholly irrelevant to whether that individual is eligible

6 for DACA, and so the issuance of an NTA charging presence without admission does

7 not provide a reasoned basis for terminating DACA. This conclusion is supported by

8 the DACA SOPs, which make clear that a noncitizen in removal proceedings is

9 eligible for and may be granted DACA like any other applicant. Kwon Decl. ¶ 21, Ex.

10 20 (“DACA SOPs”) at 71, 74-75. Despite Mr. Arreola’s continued eligibility for the

11 program, however, USCIS failed to consider the relevant facts and circumstances and

12 exercise its individualized discretion in accordance with its rules. Those make clear

13 that if someone is the subject of an NTA, USCIS should consider all of the relevant

14 circumstances, including the ground for removal charged in the NTA, to determine

15 whether DACA is appropriate or whether the individual is disqualified. Id. at 74-75.

16 The DACA rules also make clear that when the ground in the NTA does not adversely

17 impact a DACA grant—for example, merely lacking immigration status—the

18 individual is not disqualified from DACA.

19

C. USCIS’ Automatic Revocation Also Violates Its Own Procedures and

20

Thus the APA.

21

USCIS’ decision contravenes the APA for an additional reason: it violates the

22 DACA procedures, which the agency is required to follow. See PI Mot. at 17.

23 Indeed, notwithstanding the government’s passing suggestion that a DACA grant can

24 be terminated at any time, without notice (Opp. at 24), ultimately the government

25 concedes that the SOPs are binding on USCIS when adjudicating DACA cases, as

26 multiple courts have found. See Opp. at 25 (“[T]he DACA SOP was written by

27 USCIS for USCIS agents and officers.”); Colotl, 2017 WL 2889681, at *4 (“The SOP

28 states that . . . the procedures to be followed are not discretionary.”); Gonzalez Torres,

15

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1 2017 WL 4340385, at *3 (“The DACA SOP issued by DHS sets forth the procedures

2 for adjudicating DACA applications, renewals, and the termination of participation in

3 DACA.”); see also, e.g., Fox Television Stations, Inc., 556 U.S. at 549 (an “agency

4 must follow its own rules”). The DACA SOPs provide that, in most circumstances,

5 including those that involve disqualifying criminal convictions, USCIS can only

6 terminate DACA after the agency provides a Notice of Intent to Terminate that

7 explains the adverse grounds and gives the recipient 33 days to respond with

8 arguments and evidence. DACA SOPs at 136-37; see also PI Mot. at 17.

9

Defendants’ assertion that “where CBP or ICE issues a Notice to Appear, the

10 DACA SOP provides that DACA and the EAD terminate automatically,” Opp. at 25,

11 finds no support in the SOPs. Instead, the SOPs make clear that there is only one

12 narrow circumstance in which USCIS may do so, which requires undertaking a

13 specific procedure that Defendants concede did not occur in Mr. Arreola’s case.

14 Under Chapter 14 of the SOPs, if USCIS determines that a disqualifying offense or

15 public safety concern is deemed to be “Egregious Public Safety” or “EPS” under the

16 agency’s 2011 NTA Memorandum, the officer should forward the case to a special

17 unit within USCIS, which will then refer the case to ICE and follow the handling

18 procedures outlined in the memo. DACA SOPs at 137. If after referral from USCIS,

19 ICE decides to issue an NTA, the SOPs provide that the NTA’s issuance terminates

20 DACA. Id. Defendants have not cited a single authority that provides that USCIS

21 may terminate DACA automatically any time CBP or ICE issues an NTA based solely

22 on presence without admission. See Opp. at 24-27. Indeed, if it were the case that all

23 DACA grants automatically terminate with the issuance of an NTA, then it would be

24 unnecessary for the SOPs to enumerate detailed procedures for termination when an 25 NTA is issued in certain EPS cases.11

26

27

11 The government also asserts that a federal regulation provides for termination of a DACA EAD when an NTA is filed with the immigration court. Opp. at 25 n.16

28 (citing 8 C.F.R. § 274a.14(a)(1)(ii)). Although the cited regulation provides for

16

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1

Here, nothing in the record indicates that USCIS determined that Mr. Arreola

2 presented an EPS concern or referred his case to ICE, or that ICE ever reviewed his

3 case or issued an NTA based on a determination that it was an EPS case; nor does the

4 government even attempt to suggest that USCIS followed the procedures for EPS

5 cases. On the contrary, CBP (not ICE) issued Mr. Arreola’s NTA based solely on

6 presence without admission and without reference to any criminal grounds for

7 removal. Under those circumstances, the DACA SOPs require that USCIS provide

8 Mr. Arreola notice and an opportunity to respond before terminating his DACA.

9 DACA SOPs 136-37.

10

Indeed, the court in Gonzalez Torres, 2017 WL 4340385, at *5-6, rejected the

11 same argument that the government makes here. The court explained that, except in

12 certain EPS cases, the SOPs require the issuance of a Notice of Intent to Terminate

13 before termination, and that an NTA charging presence without admission does not

14 constitute an EPS case under the SOPs. Id. at *5. The court also noted that the

15 government in that case—as in this one—“indefensibl[y]” conflated the CBP issuance

16 of an NTA with ICE’s issuance of an NTA after a USCIS referral of an EPS case. Id.

17 at *6. Defendants have no response to these points.

18

Defendants mischaracterize the Napolitano Memorandum, attempting to

19 suggest that it authorizes CBP and ICE officers to terminate DACA grants

20 unilaterally. See Opp. at 4, 25-26. Indeed, were that the case, then the SOPs’ careful

21 and detailed procedures governing DACA terminations would be negated. To the

22 contrary, the Napolitano Memo expressly vested in USCIS the responsibility for

23 making DACA determinations. See Napolitano Memo at 2-3 (directing USCIS to

24

25

termination in some cases, it also contains a specific exception stating that “this shall not preclude the authorization of employment pursuant to § 274a.12(c) of this part

26 where appropriate.” 8 C.F.R. § 274a.14(a)(1)(ii) (emphasis added). See Alfaro-

27

Orellana v. Ilchert, 720 F.Supp. 792, 794 (N.D. Cal. 1989) (recognizing that 8 C.F.R. § 274a.14(a)(1)(ii) “creates an exception for appropriate work authorizations under

28 § 274a.12(c))”).

17

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1 immediately begin establishing a process to adjudicate DACA applications). While

2 USCIS developed and implemented the DACA application process, DHS directed ICE

3 to identify and assess for deferred action DACA-eligible individuals already in

4 removal proceedings to prevent them from losing the opportunity to apply. Id. at 2.

5 Further, DHS sought to ensure that DACA-eligible individuals who encountered DHS

6 officers while the DACA application process was implemented were assessed for

7 deferred action to prevent these “low priority individuals from being placed into

8 removal proceedings or removed from the United States.” Id. Nothing in the

9 Napolitano Memo supports the notion that, once USCIS implemented the DACA

10 adjudication process and made a considered judgment to grant an individual DACA,

11 the decision could be unilaterally undone by any ICE or CBP officer. Neither does the

12 Memo suggest that USCIS must treat another agency’s issuance of an NTA charging

13 presence without admission as determinative of its decision whether to terminate

14 DACA.

15

Defendants’ contention that USCIS has engaged in a consistent practice of

16 terminating DACA automatically based on the issuance of an NTA, and is therefore

17 entitled to deference, is not supported by the case law or the record. Defendants have

18 provided only 14 examples of cases in which USCIS has cancelled DACA on the

19 basis of an NTA, when USCIS has granted DACA to more than 800,000 applicants

20 since 2012 and approximately 1,500 grants have been terminated. See Declaration of

21 Katrina L. Eiland (“Eiland Decl.”) ¶ 3, Ex. 1. In any event, Defendants concede that

22 the interpretation they advance is entitled to, at most, Skidmore deference, which is

23 due “respect only insofar as [it] ha[s] the ‘power to persuade,’ which is a function of

24 ‘the thoroughness evident in [its] consideration’ and ‘the validity of [its] reasoning.’”

25 Resident Councils of Washington v. Leavitt, 500 F.3d 1025, 1037 (9th Cir. 2007).

26 Here, Defendants’ interpretation not only conflicts with the plain language of the

27 SOPs, but as explained above, such a policy would be arbitrary and capricious—

28 indeed, it would mean that any individual enforcement officer could reverse USCIS’

18

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1 considered judgement with the stroke of a pen, notwithstanding the fact that the

2 individual continues to be eligible for DACA and that all DACA recipients, by

3 definition, lack lawful immigration status.

4 III. THE GOVERNMENT PROVIDES NO RESPONSE TO MR.

5

ARREOLA’S DUE PROCESS ARGUMENT THAT, ALTHOUGH DACA

6

IS DISCRETIONARY, ONCE GRANTED HE IS ENTITLED TO A FAIR PROCESS FOR REVOCATION.

7

While the court can grant Plaintiff’s motion based on his non-constitutional

8 APA claims, the government notably fails to address Mr. Arreola’s core constitutional

9 argument. Mr. Arreola’s procedural due process argument is based on a controlling

10 line of cases holding that, even absent a claim of entitlement to an important benefit,

11 once it is conferred, recipients have a protected property interest that requires a fair

12 process before the government may take that benefit away. See PI Mot. at 18-19

13 (citing, inter alia, Bell v. Burson, 402 U.S. 535, 539 (1971)). Thus, even though

14 DACA is ultimately discretionary, once granted, the government cannot take it away

15 without due process.

16

The government makes no attempt to refute this principle. Instead, it cites a

17 cases holding that, as a general matter, discretionary benefits do not give rise to a

18 protected property interest. See Opp. at 22-24 (citing cases). But Mr. Arreola never

19 makes that contention, and none of those cases involve the revocation of a

20 discretionary benefit that has already been conferred.

21

The government further argues that the DACA guidance does not give rise to a

22 protected property interest, see Opp. at 23-24, but again this argument is a straw man.

23 Mr. Arreola does not argue that the DACA program itself establishes a protected

24 interest. Instead, he argues only that, having previously granted him DACA, the

25 government may not strip him of it without a fair procedure. Defendants’ remaining

26 arguments likewise miss the mark. Mr. Arreola does not premise his claim on a

27 substantive right “to work in the United States without authorization,” nor has he

28 alleged a “right to family unity” or a deprivation of liberty. Opp. at 21.

19

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1

Finally, the government does not even attempt to suggest that its actions

2 satisfied due process. Indeed, the government could not since—as it concedes, see

3 Opp. at 8-9—Mr. Arreola was stripped of DACA without any process whatsoever.

4 This is especially true given that USCIS already provides a procedure whereby

5 DACA recipients are afforded a reasoned explanation for its actions and an

6 opportunity to present arguments and evidence. See PI Mot. at 17.

7

The Court should likewise reject Defendants’ contention that Mr. Arreola’s due

8 process claim fails for lack of prejudice. See Opp. at 30-31. The Ninth Circuit has

9 questioned whether prejudice is even required under these circumstances. See Ching

10 725 F.3d at 1156 (characterizing question of whether prejudice is required outside of a

11 challenge to inadequate process in removal proceedings as “not settled”). In any

12 event, Plaintiff’s burden is a lenient one. See id. at 1156-57 (finding that prejudice

13 “standard does not demand absolute certainty; rather prejudice is shown if the

14 violation potentially affects the outcome of the proceedings”) (internal quotation

15 marks omitted). Indeed, courts “may infer prejudice even absent any allegations as to

16 what the petitioner or his witnesses might have said” if given the opportunity.

17 Zolotukhin v. Gonzales, 417 F.3d 1073, 1077 (9th Cir. 2005).

18

Mr. Arreola easily satisfies this test. Defendants argue that CBP relied on

19 significant evidence in issuing an NTA the night it arrested Mr. Arreola, and therefore

20 that providing Mr. Arreola with an opportunity to present information is not likely to

21 make a difference. Opp. at 29-31. As explained previously, however, Mr. Arreola

22 does not challenge CBP’s decision to issue an NTA; rather, his claim challenges

23 USCIS’ subsequent decision to treat the NTA as automatically cancelling his DACA,

24 without considering the grounds for the NTA and making a determination in the

25 totality of the circumstances, and without providing him with notice, a reasoned

26 explanation, or opportunity to respond. Mr. Arreola’s evidence would show, among

27 other things, that Mr. Arreola strenuously denies being involved in smuggling aliens;

28 the agency’s own decisionmaker found his testimony credible that he was not; he has

20

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1 no criminal history; he has been a model employee; and he is a primary financial

2 supporter of his U.S. citizen and permanent resident family members, as well as a

3 caretaker of his U.S. citizen sister with serious disabilities. See Doc. No. 16-3,

4 Declaration of Jesús Alonso Arreola Robles (“Arreola Decl.”) ¶¶ 3-6, 14-17, 41.

5 Given that Mr. Arreola remains eligible for DACA, having the benefit of information

6 about Mr. Arreola’s positive equities and evidence that he did not engage in criminal

7 conduct has at least the “potential” to impact USCIS’ decision. See Zolotukhinm, 417

8 F.3d at 1077 (rejecting government’s contention that petitioner could not show

9 prejudice because he lacked good character and would not prevail on his claims even

10 if given a fair hearing).

11

In sum, the termination of Mr. Arreola’s DACA and EAD in the absence of a

12 fair process violates his procedural due process rights.

13 IV. THE REMAINING INJUNCTION FACTORS FAVOR MR. ARREOLA.

14

The government does not dispute that the harm it is causing Mr. Arreola is

15 irreparable. Indeed, it could not do so given that the Ninth Circuit has expressly found

16 that undermining DACA recipients’ employment constitutes irreparable harm.

17 Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014) (“The

18 irreparable nature of Plaintiffs’ injury is heightened by Plaintiffs’ young age and

19 fragile socioeconomic position. Setbacks early in their careers are likely to haunt

20 Plaintiffs for the rest of their lives.”); see also Gonzalez Torres, 2017 WL 4340385, at

21 *6 (finding irreparable harm caused by loss of employment and “sense of well-being”

22 following termination of DACA); Colotl, 2017 WL 2889681, at *12; PI Mot. at 21-22.

23

The government instead suggests that Mr. Arreola’s claims are not urgent

24 because his DACA was terminated eight months before the filing of this case. Opp. at

25 11. That delay, in additional to being inconsequential, reflects Mr. Arreola’s good

26 faith attempts to advocate with the agency to reconsider its unreasoned decision. See,

27 e.g., Kwon Decl. ¶ 2, Ex. 1 (Plaintiff’s counsel correspondence with ICE); Id. ¶ 3, Ex.

28 2 (Plaintiff’s counsel correspondence with USCIS); see also Eiland Decl. ¶ 4

21

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1 (describing efforts to engage legislators to inquire with DHS regarding reinstatement

2 of Mr. Arreola’s DACA). The government does not and cannot contend that Mr.

3 Arreola—who lost his job at Chateau Marmont and is expecting a child at the end of

4 December, Arreola Decl. ¶¶ 3, 40-41—does not face imminent irreparable harm. And

5 Mr. Arreola’s situation bears no resemblance to that in Quach v. Bank of Am., Nat.

6 Ass’n, No. 12–5037 EJD, 2012 WL 4498873, at *4 (N.D. Cal. Sept. 28, 2012), Opp. at

7 11, in which the plaintiff waited until two days before a trustee sale to seek a

8 temporary restraining order challenging it. Here, Mr. Arreola’s DACA grant would

9 have remained valid until August 2018. In any event, a months-long delay “is not

10 particularly probative in the context of ongoing, worsening injuries.” Arc of

11 California v. Douglas, 757 F.3d 975, 990–91 (9th Cir. 2014) (finding months-long

12 delay “prudent”). The irreparable harm to Mr. Arreola is ongoing and worsening: the

13 loss of his work permit will become even more acute with the birth of his child in less

14 than two months. Arreola Decl. ¶¶ 3, 40-41. Moreover, because his DACA grant

15 would have expired in August 2018, if his revocation is not preliminarily enjoined, he

16 may lose the opportunity for meaningful relief altogether.

17

The government also does not dispute that requiring it to comply with the APA

18 and the Constitution would serve the public interest. See PI Mot. at 22. Nor does it

19 dispute the interests of Mr. Arreola’s U.S. citizen and permanent resident family

20 members in a fair and reasoned determination of whether his DACA should be

21 terminated. See id. at 21-22. Nor does the government explain how re-evaluating the

22 termination of Mr. Arreola’s DACA under its own standards would cause the agency

23 harm—especially when it has such review procedures already in place. See id. And

24 although the government certainly has an interest in the enforcement of the

25 immigration laws, the agencies administering those laws are required to act lawfully.

26 In sum, the remaining factors support a preliminary injunction.

27

Defendants’ suggestion that enjoining the termination of Mr. Arreola’s DACA

28 would require a mandatory injunction is unavailing. A prohibitory injunction

22

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1 maintains the status quo, which is defined as “not simply any situation before the

2 filing of the lawsuit, but rather the last uncontested status that preceded the parties’

3 controversy.” Dep’t of Parks & Rec. v. Bazaar Del Mundo, Inc., 448 F.3d 1118, 1124

4 (9th Cir. 2006). Here, that “last uncontested status” is when Mr. Arreola had DACA

5 and an EAD. Because the preliminary injunction Mr. Arreola requests would merely

6 preserve that status quo by enjoining Defendants from enforcing the unlawful

7 termination of his DACA, he does not request a mandatory injunction. See, e.g.,

8 Auntie Anne’s, Inc. v. Wang, No. 14-cv-01049, 2014 WL 11728722, at *7 (C.D. Cal.

9 July 16, 2014) (explaining that a mandatory injunction “requir[es] affirmative conduct

10 that goes well beyond the status quo”); San Diego Minutemen v. California Bus.

11 Transp. & Hous. Agency’s Dep’t of Transp., 570 F. Supp. 2d 1229, 1256 (S.D. Cal.

12 2008) (enjoining defendant’s revocation of plaintiff’s adopt-a-highway permit likely 13 in violation of First Amendment preserved the status quo).12

14

CONCLUSION

15

For these reasons, the Court should grant Plaintiff’s Motion for a Preliminary

16 Injunction and order Defendants to reinstate Mr. Arreola’s DACA and work

17 authorization pending a fair procedure—including reasonable notice, a reasoned

18 explanation, and an opportunity to be heard—through which he may challenge any

19 revocation decision consistent with the APA and the Due Process Clause.

20 Dated: November 6, 2017

Respectfully submitted,

21

/s/ Katrina L. Eiland

22

Katrina L. Eiland

23

Jennifer Chang Newell Michael K. T. Tan*

24

25

12 Defendants further misunderstand the nature of Mr. Arreola’s requested relief by suggesting that he has asked for a permanent enjoinder that would prevent

26 Defendants from terminating his DACA for the remainder of its validity. See Opp. at

27

12. On the contrary, Mr. Arreola has requested that the Court enjoin the revocation of his DACA and prohibit Defendants from terminating it again without complying with

28 its own rules, as well as with the APA and due process.

23

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1

David Hausman* ACLU FOUNDATION

2

IMMIGRANTS’ RIGHTS PROJECT

3

Ahilan T. Arulanantham

4

Michael Kaufman

5

Dae Keun Kwon ACLU FOUNDATION

6

OF SOUTHERN CALIFORNIA

7 Attorneys for Plaintiffs
8 *admitted pro hac vice
9

10

11

12

13

14

15

16

17

18

19

20

21

22

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24

25

26

27

28

24

 
 Case 5:17-cv-02048-PSG-SHK Document 31 Filed 11/20/17 Page 1 of 16 Page ID #:706

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date November 20, 2017

Title

Inland Empire – Immigrant Youth Collective et al. v. Elaine C. Duke et al.

Present: The Honorable Philip S. Gutierrez, United States District Judge

Wendy Hernandez Deputy Clerk

Not Reported Court Reporter

Attorneys Present for Plaintiff(s):

Attorneys Present for Defendant(s):

Not Present

Not Present

Proceedings (In Chambers): Order GRANTING Plaintiff’s motion for a preliminary injunction

Before the Court is a motion for a preliminary injunction filed by Plaintiff Jesus Alonso Arreola Robles (“Plaintiff”). See Dkt. # 16 (“Mot.”). Defendants Elaine C. Duke, James McCament, Mark J. Hazuda, Susan M. Curda, Thomas D. Homan, David Marin, and Kevin K. McAleenan (“Defendants”) oppose the motion, see Dkt. # 23 (“Opp.”), and Plaintiff timely replied, see Dkt. # 25 (“Reply”). The Court held a hearing on this matter on November 20, 2017, and also consulted supplemental authority. Having considered the moving papers and oral arguments, the Court GRANTS Plaintiff’s motion.
I. Background
This action stems from the termination of Plaintiff’s Deferred Action for Childhood Arrivals (“DACA”).
A. The DACA Program
Deferred action is a longstanding form of administrative action by which the Executive Branch decides, for humanitarian or other reasons, to refrain from seeking a noncitizen’s removal and to authorize his or her continued presence in the United States. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 484 (1999). On June 15, 2012, the Department of Homeland Security (“DHS”) announced DACA, a deferred action program for young immigrants who came to the United States as children and are present in the United States without formal immigration status, in a memorandum issued by Secretary Janet Napolitano (“the Napolitano Memo”). See Declaration of Dae Kuen Kwon, Dkt. # 16-4 (“Kwon Decl.”), ¶ 10, Ex. 9 (“Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”) at 2 (“Napolitano Memo”). Although DHS announced on September 5,

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date November 20, 2017

Title

Inland Empire – Immigrant Youth Collective et al. v. Elaine C. Duke et al.

2017 that it was planning to rescind the DACA program, officials confirmed that the same program rules would continue to apply until its end. Mot. 5:6–8.

Under DACA, young immigrants who entered the United States as children and meet specified educational and residency requirements, and who pass extensive criminal background checks, are eligible to receive deferred action. See Napolitano Memo at 1–2. A necessary predicate for DACA eligibility is that an individual must lack a lawful immigration status. See Kwon Decl. ¶ 21, Ex. 20 (“National Standard Operating Procedures (SOP): Deferred Action for Childhood Arrivals (DACA)”) at 44 (“DACA SOP”). Deferred action under DACA is granted to qualifying individuals for a period of two years, subject to renewal, see Napolitano Memo at 2–3, and DACA recipients may obtain an Employment Authorization Document (“EAD”) and a Social Security Number. Mot. 4:8–10.

DHS’s DACA Standard Operating Procedures (“DACA SOPs”) set forth the procedures that U.S. Citizenship and Immigration Services (“USCIS”) must follow in both granting and terminating DACA. See DACA SOP at 16; see also Colotl v. Kelly, No. 1:17-CV-1670-MHC, 2017 WL 2889681, at *4 (N.D. Ga. June 12, 2017) (“The SOP states that it is applicable to all personnel performing adjudicative functions and the procedures to be followed are not discretionary.”).

B. Plaintiff’s History

Plaintiff is a 23-year-old resident of Los Angeles who has lived in the United States since the age of one and has received deferred action through DACA three times—in 2012, 2014, and 2016. Mot. 1:2–6; Declaration of Jesus Alonso Arreola Robles, Dkt. # 16-3 (“Arreola Decl.”), ¶¶ 1, 10–11; Kwon Decl. ¶¶ 5–6, 23–25, Exs. 4 (2012 DACA Application), 5 (2012 DACA Approval Notice), 22 (2014 DACA Renewal Application), 23 (2016 DACA Renewal Application), 24 (2016 DACA Renewal Approval Notice). This final grant was set to be valid until August 19, 2018. Mot. 6:23–26; Kwon Decl. ¶ 25, Ex. 24. Using the accompanying EAD, Plaintiff worked two jobs, as a dishwasher and then a cook at Chateau Marmont in West Hollywood and as a driver for Uber and Lyft. Mot. 7:1–5; Arreola Decl. ¶¶ 13–15. He shared his earnings with his family and paid half the rent for their home. Mot. 7:5–6; Arreola Decl. ¶ 16. Plaintiff has never been charged with or convicted of any crime. Mot. 7:7; Arreola Decl. ¶ 17.

In February 2017, Plaintiff claims that a friend asked him to drive his cousin from the Los Angeles area to the San Diego area, to pick up the friend’s uncle and another cousin and bring them back to Los Angeles—a task for which he would be paid $600. Mot. 7:9–14; Arreola Decl. ¶ 18. Plaintiff accepted, and while he and his customer were near San Diego, the latter was

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date November 20, 2017

Title

Inland Empire – Immigrant Youth Collective et al. v. Elaine C. Duke et al.

arrested by an agent of the U.S. Customs and Border Patrol (“CBP”). Mot. 7:15–23; Arreola Decl. ¶¶ 19–23. Although Plaintiff claims that he informed the CBP agent of his DACA status, he was also arrested on suspicion of aiding in the smuggling of undocumented immigrants. Mot. 7:24–27; Arreola Decl. ¶ 23. Defendants note that, at the time, Plaintiff provided authorities conflicting information, both in terms of the nature of his assignment and the amount he was to be paid for completing it. See Opp. 7:1–8:5.

CBP detained Plaintiff and issued him a Notice to Appear (“NTA”), initiating removal proceedings and charging him as removable due to his presence in the United States without admission under the Immigration and Nationality Act (“INA”). Mot. 8:3–7; Kwon Decl. ¶ 4, Ex. 3 (Notice to Appear). Plaintiff was not, however, charged with any crime. Mot. 8:7–8; Arreola Decl. ¶ 29. On March 2, 2017, Plaintiff received a bond hearing before an immigration judge and was released from immigration detention the following day. Mot. 8:9–9:3; Arreola Decl. ¶¶ 32, 35–36. Shortly thereafter, on March 6, Plaintiff received a Notice of Action from USCIS notifying him that his DACA and EAD were “terminated automatically as of the date [his] NTA was issued.” Kwon Decl. ¶ 9, Ex. 8 (Notice of Action) at 1. Plaintiff reports that he was not provided with prior notice of his DACA termination, a reasoned explanation for the decision, or an opportunity to respond to the Notice of Action or otherwise contest the decision. Mot. 9:10–13; Arreola Decl. ¶ 38. Subsequent efforts by Plaintiff to seek redress from USCIS were unsuccessful. Mot. 9:14–22.

As a result of losing his DACA and EAD, Plaintiff lost his job at Chateau Marmont and can no longer work as a driver for Uber of Lyft. Id. 9:23–10:1; Arreola Decl. ¶ 40. His hardship has been magnified by the fact that he and his partner are expecting their first child later this year. Id. 10:1–3; Arreola Decl. ¶ 40.

II. Legal Standard

A preliminary injunction is an “extraordinary and drastic remedy.” Munaf v. Geren, 553 U.S. 674, 689 (2008). A party seeking a preliminary injunction must make a “clear showing” of: (1) a likelihood of success on the merits, (2) a likelihood of irreparable injury to the plaintiff if injunctive relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) an advancement of the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20, 22 (2008).

III. Discussion

A. Likelihood of Success on the Merits

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date November 20, 2017

Title

Inland Empire – Immigrant Youth Collective et al. v. Elaine C. Duke et al.

i. Jurisdiction

As a threshold matter, Defendants challenge this Court’s ability to review the revocation of Plaintiff’s DACA, based on both the Administrative Procedure Act (“APA”) and the REAL ID Act of 2005.

a. Jurisdiction under the APA

Although the APA permits judicial review of agency actions where “there is no other adequate remedy in a court,” 5 U.S.C. § 704, Defendants note that the APA precludes review of agency decisions that are “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), and that the Supreme Court has held that “an agency’s decision not to take enforcement action should be presumed immune from judicial review under § 701(a)(2).” Heckler v. Chaney, 470 U.S. 821, 832 (1985). Because “[i]ndividual DACA decisions fall squarely within that category of agency discretion,” Defendants conclude that “[t]he APA specifically precludes review of the action that Plaintiff challenges.” Opp. 13:24, 14:15.

The Court disagrees. The jurisdictional bar cited by Defendants applies only where there is “no meaningful standard against which to judge the agency’s exercise of discretion.” MendezGutierrez v. Ashcroft, 340 F.3d 865, 868 (9th Cir. 2003) (quoting Heckler, 470 U.S. at 830). By contrast, a court can review an agency decision when, like here, there are “statutes, regulations, established agency policies, or judicial decisions that provide a meaningful standard against which to assess” an agency’s action. Mendez-Gutierrez, 340 F.3d at 868; see also ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1069 (9th Cir. 2015) (quoting Spencer Enters., Inc. v. United States, 345 F.3d 683, 688 (9th Cir. 2003); Socop-Gonzalez v. Immigration & Naturalization Serv., 208 F.3d 838, 844 (9th Cir. 2000)) (“Even where statutory language grants an agency ‘unfettered discretion,’ its decision may nonetheless be reviewed if regulations or agency practice provide a ‘meaningful standard by which this court may review its exercise of discretion.’”).

Here, the decision to revoke DACA is governed by both the Napolitano Memo and the DACA SOPs, and the Ninth Circuit has repeatedly found that APA jurisdiction exists where “discretion has been legally circumscribed by various memoranda.” Alcaraz v. Immigration & Naturalization Serv., 384 F.3d 1150, 1161 (9th Cir. 2004); see also Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 719 (9th Cir. 2011) (looking to an agency’s interim certification standards to “supply the standard against which we can judge the agency’s decision-making”); Mendez-Gutierrez, 340 F.3d at 868 (noting that the absence of a specific statute or regulation “does not . . . mean that there are no meaningful standards against which to evaluate” an agency’s decision where other rules and regulations apply). Other courts that have similarly

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date November 20, 2017

Title

Inland Empire – Immigrant Youth Collective et al. v. Elaine C. Duke et al.

examined the Napolitano Memo and DACA SOPs have also concluded that they contain detailed policy directives that provide courts with the standards needed to review DACA revocation. See Gonzalez Torres v. U.S. Dep’t of Homeland Sec., No. 17cv1840 JM(NLS), 2017 WL 4340385, at *5 (S.D. Cal. Sept. 29, 2017) (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954); Alcaraz, 384 F.3d at 1162) (“Defendants’ failure to follow the termination procedures set forth in the DACA SOP is arbitrary, capricious, and an abuse of discretion.”); Colotl, 2017 WL 2889681, at *10 (“Defendants’ argument that § 701(a) of the APA bars this Court from reviewing an agency’s non-discretionary review process fails.”); see also Texas v. United States, 809 F.3d 134, 170 (5th Cir. 2015), as revised (Nov. 25, 2015), cert. granted, 136 S. Ct. 906 (2016) (determining that the “grant of lawful presence and accompanying eligibility for benefits is a substantive rule”).

Plaintiff correctly notes that he “challenges USCIS’ determination that his DACA should be automatically terminated based on CBP’s issuance of an NTA, not any eventual enforcement decision in removal proceedings.” Reply 11:3–5. Because DACA eligibility and revocation is governed by the aforementioned regulations, the Court has a meaningful standard on which to base the agency’s decision, and so judicial review is not barred by the APA. See Ramirez Medina v. U.S. Dep’t of Homeland Sec., No. C17-0218RSM, 2017 WL 5176720, at *8 (W.D. Wash. Nov. 8, 2017) (“Defendants’ alleged failure to follow the procedures detailed in the DACA SOP does not implicate agency discretion. Therefore, the jurisdiction-stripping provisions of . . . § 701(a) are not applicable to prevent this Court from determining whether Defendants complied with their non-discretionary procedures.”).

b. Jurisdiction under § 1252(g)

Defendants next point to statutory language amended by the REAL ID Act, which mandates that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien.” 8 U.S.C. § 1252(g). The Supreme Court has explained that § 1252(g) is “directed against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion.” Reno, 525 U.S. at 944 n.9. Accordingly, Defendants assert that “regardless of how Plaintiff seeks to frame the issue, 8 U.S.C. § 1252(g) precludes judicial review of the Government’s exercise of its prosecutorial discretion.” Opp. 17:15–16.

Defendants interpret § 1252(g) too broadly, as evidenced by the Supreme Court’s Reno decision. There, in response to the “unexamined assumption that § 1252(g) covers the universe of deportation claims—that it is a ‘zipper’ clause that says ‘no judicial review in deportation cases unless this section provides judicial review,’” the Supreme Court opined that “what

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date November 20, 2017

Title

Inland Empire – Immigrant Youth Collective et al. v. Elaine C. Duke et al.

§ 1252(g) says is much narrower.” Reno, 525 U.S. at 482. It concluded that “[t]he provision applies only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” Id. (emphases in original). Section 1252(g) does not preclude review of “many other decisions or actions that may be part of the deportation process.” Id. Consistent with this guidance, the Ninth Circuit has narrowly construed § 1252(g), distinguishing between the narrow category of actions that courts cannot review and those adjacent actions that are within their jurisdiction. In Alcaraz, for example, the Ninth Circuit held that even a claim closely related to the initiation of removal proceedings is not barred by § 1252(g), so long as it does not challenge the decision to commence proceedings itself. Alcaraz, 384 F.3d at 1160–61; see also Catholic Soc. Servs. v. Immigration & Naturalization Serv., 232 F.3d 1139, 1150 (“[Section 1252(g)] applies only to the three specific discretionary actions mentioned in its text, not to all claims relating in any way to deportation proceedings.”).

Here, Plaintiff is challenging neither the issuance of the NTA nor the CBP’s decision to commence removal proceedings. Instead, he challenges the USCIS’s separate and independent decision to revoke his DACA on that basis, which is independent of the limited category of decisions covered by § 1252(g). See Ramirez Medina, 2017 WL 5176720, at *6 (“[T]he Court ultimately finds that none of the statutes relied upon by Defendants applies to the narrower issues presented in this case; specifically, whether Defendants complied with their own nondiscretionary procedures.”); Gonzalez Torres, 2017 WL 4340385, at *4–5.

Furthermore, the Ninth Circuit has held that while § 1252(g) precludes review of the three specified discretionary decisions, it does not bar review of legal questions relating to those discretionary decisions. See United States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004) (en banc) (“The district court may consider a purely legal question that does not challenge the Attorney General’s discretionary authority, even if the answer to that legal question—a description of the relevant law—forms the backdrop against which the Attorney General later will exercise discretionary authority.”); see also Madu v. U.S. Attorney Gen., 470 F.3d 1362, 1368 (11th Cir. 2006) (“While this provision bars courts from reviewing certain exercises of discretion by the attorney general, it does not proscribe substantive review of the underlying legal bases for those discretionary decisions and actions.”). Here, Plaintiff brings a legal challenge to his revocation under the APA and the due process clause. This is the sort of purely legal question that, although related to a discretionary decision, is nevertheless permitted by the Ninth Circuit.

Because Plaintiff is offering a legal challenge to a decision that is not within the limited category of discretionary actions enumerated by the statute, the Court concludes that § 1252(g) does not deprive it of jurisdiction over this action.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date November 20, 2017

Title

Inland Empire – Immigrant Youth Collective et al. v. Elaine C. Duke et al.

c. Jurisdiction under §§ 1252(a)(5) and 1252(b)(9)

Lastly, Defendants contend that other sections of the REAL ID Act “bar [Plaintiff] from raising his claims in district court.” Opp. 18:2–3. Section 1252(a)(5) requires that “a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter.” 8 U.S.C. § 1252(a)(5). Section 1252(b)(9) further provides that “[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.” 8 U.S.C. § 1252(b)(9). As one court characterized it, this statutory scheme was designed to “put an end to the scattershot and piecemeal nature of the review process that previously had held sway in regard to removal proceedings.” Aguilar v. U.S. Immigration & Customs Enf’t, 510 F.3d 1, 9 (1st Cir. 2007).

However, although the Supreme Court has explained that the purpose of § 1252(b)(9) is “to consolidate ‘judicial review’ of immigration proceedings into one action in the court of appeals,” it “applies only ‘[w]ith respect to review of an order of removal under subsection (a)(1).’” Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 313 (2001). Section 1252(a)(1), like § 1252(a)(5), refers to “[j]udicial review of a final removal” order. 8 U.S.C. § 1252(a)(1); see also Singh v. Gonzalez, 499 F.3d 969, 978 (9th Cir. 2007) (“By virtue of their explicit language, both §§ 1252(a)(5) and 1252(b)(9) apply only to those claims seeking judicial review of orders of removal.”).

Again, Plaintiff does not seek judicial review of an order of removal; indeed, his challenge is independent of any removal proceeding. See Gonzalez Torres, 2017 WL 4340385, at *5 (“Plaintiff brings a procedural challenge to termination of his DACA status, an issue independent from any removal proceedings.”). Furthermore, the Ninth Circuit has held that § 1252(b)(9) does not deprive district courts of jurisdiction where a claim could not have been litigated in removal proceedings and the noncitizen would otherwise “have had no legal avenue to obtain judicial review of this claim.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1032 (9th Cir. 2016); see also Mamigonian v. Biggs, 710 F.3d 936, 945 (9th Cir. 2013) (permitting an APA action where the immigration judge “would be without jurisdiction” to adjudicate the claim and so “review would be unavailable” to plaintiff). An immigration judge in a removal proceeding does not have the power to grant or deny deferred action, or to review or reverse an agency’s decision to revoke it. See Gonzalez Torres, 2017 WL 4340385, at *6 (“[A]n immigration judge has no jurisdiction to reinstate DACA status.”); see also Napolitano Memo at 2–3 (conveying power to grant DACA to agencies); Matter of Quintero, 18 I. & N. Dec. 348, 350 (B.I.A. 1982)

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Case 5:17-cv-02048-PSG-SHK Document 31 Filed 11/20/17 Page 8 of 16 Page ID #:713

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date November 20, 2017

Title

Inland Empire – Immigrant Youth Collective et al. v. Elaine C. Duke et al.

(“[N]either the immigration judge nor the Board may grant [deferred action] status or review a decision of the District Director to deny it.”). Therefore, Plaintiff could not have challenged the revocation of his DACA at a removal proceeding, and so under Ninth Circuit precedent, jurisdiction is not barred.

Plaintiff here is not challenging a final removal order, and the action he brings is premised on a claim that could not have been brought in a removal proceeding. Therefore, §§ 1252(a)(5) and 1252(b)(9) do not apply and do not deprive this Court of jurisdiction.

ii. Merits of Plaintiff’s Claims

Because the Court concludes that it has jurisdiction over this action, it will now consider the merits of Plaintiff’s claims.

a. APA Claim

Plaintiff argues that “Defendants have indicated that they terminated [his] DACA based on the issuance of an NTA—one that charges [Plaintiff] with being removable because of presence without admission in the United States. For multiple reasons, that decision was arbitrary and capricious and contrary to law in violation of the APA.” Mot. 10:28–11:3.

Under the APA, “agency action must be based on non-arbitrary, ‘relevant factors.’” Judulang v. Holder, 565 U.S. 42, 55 (2011) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983)). The “courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking.” Judulang, 565 U.S. at 53. “When reviewing an agency action, we must assess, among other matters, ‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” Id. (quoting State Farm, 463 U.S. at 43).

The Court agrees with Plaintiff that his case is analogous to that which the Supreme Court considered in Judulang. See Mot. 11:12–22. There, the Supreme Court considered a Board of Immigration Appeals (“BIA”) rule governing eligibility for a form of relief—suspension of deportation—which, like DACA, was not provided for in the INA and was therefore discretionary. See Judulang, 565 U.S. at 46–47. Despite this discretionary quality, the Supreme Court nonetheless determined that the rules applied by the agency must reflect reasoned decisionmaking, admonishing that “[a] method for disfavoring deportable aliens that bears no relation to these matters—that neither focuses on nor relates to an alien’s fitness to remain in the country—is arbitrary and capricious.” Id. at 55. The BIA’s rule was invalidated because it was

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date November 20, 2017

Title

Inland Empire – Immigrant Youth Collective et al. v. Elaine C. Duke et al.

based on “a matter irrelevant to the alien’s fitness to reside in this country,” which indicated that “the BIA ha[d] failed to exercise its discretion in a reasoned manner.” Id. at 53.

Plaintiff has put forth a compelling argument that, like the BIA’s invalidated rule in Judulang, the decision to automatically terminate Plaintiff’s DACA and EAD based on the issuance of an NTA fails the requirements of the APA. First, based on the Napolitano Memo and the DACA SOPs, a noncitizen’s deportability due to unauthorized presence in the United States—the basis for Plaintiff’s NTA—provides no relevant basis for terminating DACA. These guidelines enumerate the relevant considerations for a DACA grant, and not only is unauthorized presence an unmentioned factor, but the program was specifically designed for persons without lawful immigration status. See, e.g., DACA SOC at 44 (indicating that an individual “may be favorably considered for DACA if” he/she “[e]ntered without inspection” or his/her “lawful immigration status expired”). The program’s rules also make clear that even noncitizens who are, have been, or will be placed in removal proceedings are nonetheless eligible for DACA. See Napolitano Memo at 2; DACA SOP at 71 (“Individuals in removal proceedings may file a DACA request.”); Kwon Decl. ¶ 17, Ex. 16 (Statement of Assistant Secretary Michael Dougherty and Acting Director James McCament) at 2 (“The 2012 memorandum also made clear that individuals could be considered for DACA even if they were already in removal proceedings or were subject to a final removal order.”). Accordingly, the Court agrees that “the issuance of an NTA charging presence without admission does not provide a reasoned basis for terminating DACA.” Mot. 12:10–11.

Furthermore, the guidelines even address the issuance of an NTA. The DACA SOPs provide that if an NTA is issued against a DACA applicant, USCIS should “proceed with adjudication . . . , taking into account the basis for the NTA”—even if the NTA is based on a public service concern. See Kwon Decl., ¶ 22, Ex. 21 (“Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removal Aliens”) at 4 (“[U.S. Immigration and Customs Enforcement (“ICE”)]’s issuance of an NTA allows USCIS to proceed with adjudication . . . , taking into account the basis for the NTA.”); DACA SOP at 93 (providing that if ICE accepts a case referred to it by USCIS during the DACA application process, then USCIS “will follow the standard protocols outlined in the [aforementioned] NTA memorandum”). In these cases, USCIS is required to review all relevant circumstances, and may still grant a DACA request despite an NTA “[i]f a DACA requestor has been placed in proceedings on a ground that does not adversely impact the exercise of prosecutorial discretion.” DACA SOP at 75; see also id. at 74 (“Final removal orders . . . should be reviewed carefully to examine the underlying grounds for removal.”). Consequently, the Court agrees with Plaintiff’s conclusion that, “[g]iven that the filing of an NTA against a DACA applicant, or even the issuance of a final order of removal against a DACA applicant, does not

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date November 20, 2017

Title

Inland Empire – Immigrant Youth Collective et al. v. Elaine C. Duke et al.

render noncitizens ineligible for the program, DHS’ decision to find [Plaintiff] ineligible on this basis and automatically terminate his DACA is arbitrary and irrational.” Mot. 13:17–21.

In addition, as Plaintiff notes, “USCIS’s decision to terminate DACA automatically based on the filing of an NTA . . . left the question of whether [Plaintiff] continued to warrant a DACA grant and EAD solely up to a CBP officer’s charging decision in issuing an NTA”—a result that is at odds with the Supreme Court’s decision in Judulang. Mot. 14:17–20. That opinion emphasized that “yet another” arbitrary quality of the BIA’s rule was that “the outcome of the Board’s comparable-grounds analysis itself may rest on the happenstance of an immigration official’s charging decision.” Judulang, 565 U.S. at 57. The Supreme Court objected to the fact that “everything hangs on the fortuity of an individual official’s decision,” noting that it had previously “reversed an agency decision that would ‘make [an alien’s] right to remain here dependent on circumstances so fortuitous and capricious.’” Id. at 58 (quoting Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947)). This is precisely the case here. Because Plaintiff’s DACA was revoked automatically due to the issuance of the NTA, everything hung on the fortuity of one CBP officer’s decision.

Finally, there is the issue of departure. Agencies are free to change course and depart from a prior decision, but they are also “obligated to supply a reasoned analysis for the change.” State Farm, 463 U.S. at 42; see also Federal Commc’ns Comm’n v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (“[T]he agency must show that there are good reasons for the new policy.”). Here, on three occasions—in 2012, 2014, and 2016—DHS evaluated Plaintiff’s DACA applications and determined that he was eligible for deferred action and an EAD. See Kwon Decl. ¶¶ 4–5, 23–25, Exs. 3–4, 22–24. These decisions were based on extensive background checks and a review of Plaintiff’s school records and other documentation. His 2016 approval notice provided that “[u]nless terminated, this decision to defer removal action will remain in effect for 2 years,” indicating its validity through August 19, 2018. Kwon Decl. ¶ 25, Ex. 24 at 1. The notice specified that “[s]ubsequent criminal activity . . . is likely to result in termination of your deferred action.” Id. However, although Plaintiff has not been charged or convicted of any criminal activity, this decision was reversed and his DACA was revoked. The only explanation for this reversal provided to Plaintiff was that it was “terminated automatically” due to the NTA. Kwon Decl. ¶ 9, Ex. 8 at 1. The Court agrees that “USCIS’s one-sentence explanation” fails to “provide ‘good reasons’ for the agency’s change in position, as required by the APA.” Mot. 16:1–3; see also Organized Vill. Of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 968 (9th Cir. 2015) (quoting Fox Television Stations, 556 U.S. at 516; Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1209 (2015)) (explaining that an agency is “required to provide a ‘reasoned explanation . . . for disregarding’ the ‘facts and circumstances’ that underlay its previous decision”) (alternation in original). As Plaintiff accurately concludes, given that all DACA recipients are necessarily removable due to their unauthorized presence, “[t]he agency’s

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Case 5:17-cv-02048-PSG-SHK Document 31 Filed 11/20/17 Page 11 of 16 Page ID #:716

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date November 20, 2017

Title

Inland Empire – Immigrant Youth Collective et al. v. Elaine C. Duke et al.

reliance on an NTA citing [Plaintiff’s] presence without admission simply fails to explain, much less justify, the agency’s decision to reverse course and terminate his DACA.” Mot. 16:10–12. Such an arbitrary and unexplained decision fails to address Plaintiff’s substantial reliance interests, which also runs counter to the Supreme Court’s mandate. See Fox Television Stations, 556 U.S. at 515 (holding that an agency must “provide a more detailed justification” when “its prior policy has engendered serious reliance interests that must be taken into account”).

In opposition, Defendants argue that that DHS did not violate its internal guidelines because “where CBP or ICE issues a Notice to Appear [NTA], the DACA SOP provides that DACA and the EAD terminate automatically.” Opp. 25:3–4. However, the DACA SOPs do not support this assertion. There appears to be only one narrow circumstance in which automatic termination based on an NTA is appropriate—when an NTA is issued after USCIS determines that a disqualifying offense or public safety concern is deemed to be “Egregious Public Safety” (“EPS”). DACA SOP at 137. This is not the case here, as Plaintiff’s NTA was issued on the basis of presence without admission, not EPS. Defendants point to no provision in the DACA SOPs that permits automatic termination as a result of an NTA based on unauthorized presence.1 Indeed, “unless there are criminal, national security, or public safety concerns,” the DACA termination guidelines prescribe the issuance of a Notice of Intent to Terminate and require that “[t]he individual should be allowed 33 days to file a brief or statement contesting the grounds cited.” Id. at 137–38. When the Gonzalez Torres court was presented with a similar argument from the government—that “the NTA issued by [CBP] in connection with removal proceedings for Plaintiff was tantamount to ICE issuing a NTA terminating DACA status pursuant to the DACA SOP”—the Court deemed the government’s position “indefensible,” noting that NTAs based on an EPS designation and NTAs based on unauthorized presence “are not fungible, or ‘flip sides of the same coin.’” Gonzalez Torres, 2017 WL 4340385, at *6.2

Defendants further suggest that the Napolitano Memo “instructed ICE and CBP to ‘immediately exercise their discretion on an individual basis’ in determining whether to issue an NTA or defer action.” Opp. 25:23–26:1. The Court agrees with Plaintiff that “Defendants

1 Defendants point to the DACA SOPs’ appendix, which includes the form language for the

termination notice that Plaintiff received, but this language itself does not indicate when such a

notice should be dispatched. See DACA SOP App. I at 2.

2 As for the EAD, Defendants also cite statutory authority for its automatic revocation. See Opp.

25 n.16. Although the regulations do provide for termination of work authorization when an

NTA is issued in some cases, see 8 C.F.R. § 274a.14(1)(ii), it also contains an exception for

work permits granted to, among others, “alien[s] who [have] been granted deferred action.” 8

C.F.R. § 274a.12(c)(14); see also Alfaro-Orellana v. Ilchert, 720 F. Supp. 792, 794 (N.D. Cal.

1989) (noting that § 274a.14(a)(1)(ii) “is itself ambiguous, because it creates an exception for

appropriate work authorizations under § 274a.12(c)”).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date November 20, 2017

Title

Inland Empire – Immigrant Youth Collective et al. v. Elaine C. Duke et al.

mischaracterize the Napolitano Memo.” Reply 17:18. The Memo instructed USCIS, not ICE or CBP, to make DACA determinations. See Napolitano Memo at 2–3 (“USCIS should establish a clear and efficient process for exercising prosecutorial discretion, on an individual basis, by deferring action against individuals.”). The role of ICE and CBP was not to develop or manage the program, but instead to “immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed into removal proceedings” as DACA was developed. Id. at 2. The Court agrees that “[n]othing in the Napolitano Memo supports the notion that, once USCIS implemented the DACA adjudication process and made a considered judgment to grant an individual DACA, the decision could be unilaterally undone by any ICE or CBP officer”—indeed, if such were the case, “then the SOPs’ careful and detailed procedures governing DACA terminations would be negated.” Reply 17:20–21, 18:8–11.

Alternatively, Defendants argue that “Defendant DHS’s reading of its own authority to provide for automatic termination of DACA with the issuance of NTAs is well supported by Defendant’s consistent practice, and is thus ‘entitled to substantial weight.’” Opp. 26:1–9 (quoting Chemehuevi Indian Tribe v. Brown, No. ED CV 16-1347-JFW (MRWx), 2017 WL 2971864, at *8 n.9 (C.D. Cal. Mar. 30, 2017)). The Court does not find this availing. The evidence Defendants point to for this “consistent practice” is fourteen instances when DACA was automatically terminated due to an NTA. See Declaration of Ron Thomas, Dkt. # 23-2, ¶ 5. The Court does not find such a practice “consistent” when “USCIS has granted DACA to more than 800,000 applicants since 2012 and approximately 1,500 grants have been terminated.” Reply 18:19–20. At any rate, Defendants imply that such a practice is only entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), and is therefore due “respect only insofar as [it has] the power to persuade, which is a function of the thoroughness evident in [its] consideration and the validity of [its] reasoning.” Resident Councils of Wash. v. Leavitt, 500 F.3d 1025, 1037 (9th Cir. 2007) (internal quotation marks omitted). The Court cannot afford this practice much respect given that it apparently conflicts with the plain language of the DACA SOPs and would mean that “any individual enforcement officer could reverse USCIS’ considered judgement with the stroke of a pen, notwithstanding the fact that the individual continues to be eligible for DACA and that all DACA recipients, by definition, lack lawful immigration status.” Reply 18:28–19:3.

Finally, Defendants point to additional information regarding Plaintiff’s arrest—“including an interview in which Plaintiff first lied about and later admitted to his illegal activity”—to argue that “Defendants reasonably relied on these facts to find that Plaintiff was involved in a human smuggling operation, and led to the discretionary determination to issue an NTA, which simultaneously terminated Plaintiff’s DACA and EAD.” Opp. 26:11–23. Whatever inconsistencies may be found in, and whatever suspicions may arise from, the evidence surrounding Plaintiff’s arrest, they are not relevant to his APA claim. Courts review

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date November 20, 2017

Title

Inland Empire – Immigrant Youth Collective et al. v. Elaine C. Duke et al.

agency action according to the contemporaneous reasons given by the agency and disregard alternative rationales presented during litigation. See Independence Mining Co., Inc. v. Babbitt, 105 F.3d 502, 511 (9th Cir. 1997) (“The rule barring consideration of post hoc agency rationalizations operates where an agency has provided a particular justification for a determination at the time the determination is made, but provides a different justification for that same determination when it is later reviewed by another body.”); see also Toor v. Lynch, 789 F.3d 1055, 1064 (9th Cir. 2015) (quoting Arrington v. Daniels, 516 F.3d 1106, 1113 (9th Cir. 2008)) (“[W]e may affirm the BIA based only on ‘the explanations offered by the agency.’”); Shirrod v. Director, Office of Workers’ Comp. Programs, 809 F.3d 1082, 1087 n.4 (9th Cir. 2015) (“[W]e review only what [the agency] did, not what [it] could have done.”). Here, USCIS made clear to Plaintiff that his DACA was terminated automatically due to CBP’s issuance of the NTA. This was the only rationale provided, and so it is the only one that the Court will consider, especially since there is no evidence that USCIS relied on anything other than the NTA itself in making its decision. See Center for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir. 2006) (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)) (“When reviewing an agency decision, ‘the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.’”).

In short, Defendants’ arguments in opposition do not sway the Court from its conclusion that Plaintiff makes a compelling argument that the decision to terminate his DACA was arbitrary and capricious and in violation of the APA. Accordingly, he has demonstrated a sufficient likelihood of success on the merits, and so the first factor in the preliminary injunction inquiry tips in Plaintiff’s favor.

b. Due Process Claim

Because the Court finds that Plaintiff’s APA claim satisfies the first requirement, it need not consider his due process claim at this time.

B. Irreparable Injury

In describing the nature of his irreparable harm, Plaintiff focuses on the economic consequences of losing his DACA and EAD, arguing that the revocation “has derailed [his] career.” Mot. 21:9. He lost his job at Chateau Marmont (despite what he characterizes as his expectation to “move up through the ranks”) and can no longer work as a driver. Id. 21:14–16, 21:26–28. This argument is compelling, as the Ninth Circuit has held that “loss of opportunity to pursue [one’s] chosen profession” constitutes irreparable harm. Enyart v. National Conference of Bar Exam’rs, Inc., 630 F.3d 1153, 1165 (9th Cir. 2011); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543 (1985) (“We have frequently recognized the severity of

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date November 20, 2017

Title

Inland Empire – Immigrant Youth Collective et al. v. Elaine C. Duke et al.

depriving a person of the means of livelihood.”). Moreover, the Ninth Circuit has specifically found irreparable harm in a similar case involving DACA recipients. See Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014) (finding irreparable harm where professional opportunities are limited); see also id. (“The irreparable nature of Plaintiffs’ injury is heightened by Plaintiffs’ young age and fragile socioeconomic position. Setbacks early in their careers are likely to haunt Plaintiffs for the rest of their lives.”). Plaintiff has demonstrated that his earnings are used to support his family, see Arreola Decl. ¶¶ 2–5, 16, which also suggests irreparable harm. See Gonzalez Torres, 2017 WL 4340385, at *6 (“The potential harm caused by Defendants’ conduct includes the loss of employment, a core benefit under DACA. The deprivation of employment impacts Plaintiff’s ability to financially provide for himself and his family.”).

In opposition, Defendants suggest that “the imminence of the harm Plaintiff cites is doubtful given the period of time that has elapsed between his loss of employment authorization and the filing of this action,” noting that “Defendants terminated Plaintiff’s DACA eight months ago, and Plaintiff’s failure to raise this action until now casts doubt on his claims of urgent, irreparable harm unless his DACA and employment authorization are reinstated immediately.” Opp. 11:13–26. The Court is not persuaded by this argument. Plaintiff asserts, and Defendants do not dispute, that the cause of this delay was his “good faith attempts to advocate with the agency to reconsider its unreasoned decision.” Reply 21:25–22:2. This fact distinguishes Plaintiff’s situation from the case cited by Defendants, Quach v. Bank of Am., Nat’l Ass’n, No. 5:12-cv-05037 EJD, 2012 WL 4498873 (N.D. Cal. Sept. 28, 2012), where a plaintiff waited until two days before a trustee sale to seek a temporary restraining order challenging it. Id. at *4. Here, there is no indication that Plaintiff’s delay was in bad faith, and even if it were, that alone would not change the fact that Plaintiff’s harm is “ongoing and worsening” given that he is soon expecting a child. Reply 22:12–14; see also Arc of Cal. v. Douglas, 757 F.3d 975, 990 (9th Cir. 2014) (“[T]ardiness is not particularly probative in the context of ongoing, worsening injuries.”).

Because the Court concludes that the deprivation of Plaintiff’s earnings and job opportunities caused by the loss of his DACA and EAD constitutes irreparable harm, this factor weighs in Plaintiff’s favor.

C. Balance of Hardships and Public Interest

The remaining two factors—balance of hardships and the public interest—merge when, as here, the government is the opposing party. See Nken v. Holder, 556 U.S. 418, 435 (2009).

There is undoubtedly a strong interest to be found in the effective and efficient enforcement of the nation’s immigration laws. See, e.g., Reno, 525 U.S. at 490–91 (“[T]he

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Case 5:17-cv-02048-PSG-SHK Document 31 Filed 11/20/17 Page 15 of 16 Page ID #:720

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date November 20, 2017

Title

Inland Empire – Immigrant Youth Collective et al. v. Elaine C. Duke et al.

consequence of delay . . . in deportation proceedings . . . is to permit and prolong a continuing violation of United States law.”). However, the Court does not conclude that this interest outweighs the ongoing harm that Plaintiff is experiencing as a result of losing his DACA and EAD, especially in light of the facts that (1) his DACA was slated to continue until August 2018, and (2) the Court is “simply requiring Defendants to comply with DHS’s written procedures as to the adjudication of DACA applications and the termination of DACA status.” Colotl, 2017 WL 2889681, at *12. Defendants suggest that granting this motion would allow Plaintiff “to maintain a government grace that he may again abuse for the purpose of breaking the law.” Opp. 31:26–27. The Court is hard-pressed to accept this histrionic conclusion considering that, whatever inconsistencies may exist in Plaintiff’s recollection of the events that led to his detainment, he has not been charged with any crime.

Furthermore, Plaintiff persuasively notes the public interest that exists in ensuring that the government complies with its obligations under the law and follows its own procedures. Mot. 22:18–20; see also Brewer, 757 F.3d at 1069 (“[I]t is clear that it would not be equitable or in the public’s interest to allow the state . . . to violate the requirements of federal law, especially when there are no adequate remedies available.”) (alternations in original); Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.”); Colotl, 2017 WL 2889681, at *12 (“[T]he public has an interest in government agencies being required to comply with their own written guidelines instead of engaging in arbitrary decision making.”). This is in addition to the public’s interest in ensuring that Plaintiff remains employed and that his family remains supported.

In short, the Court concludes that the harms that would be experienced by Plaintiff and his family if this motion were denied outweigh any potential injury to Defendants. In addition, the public has a strong interest in ensuring that the nation’s immigration laws are robustly—and fairly—enforced. These factors therefore weigh in Plaintiff’s favor.

IV. Conclusion

Plaintiff has demonstrated a likelihood of success on the merits of his APA claim and the existence of irreparable harm, and neither a balancing of hardships nor the public interest favors Defendants. Therefore, the Court GRANTS Plaintiff Jesus Alonso Arreola Robles’s motion for a preliminary injunction.

It is hereby ORDERED that USCIS’s decision to terminate Plaintiff’s status under the Deferred Action for Childhood Arrivals program, memorialized in the March 6, 2017 Notice of Action, is preliminarily enjoined. This preliminary injunction also applies to enjoin termination

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Case 5:17-cv-02048-PSG-SHK Document 31 Filed 11/20/17 Page 16 of 16 Page ID #:721

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date November 20, 2017

Title

Inland Empire – Immigrant Youth Collective et al. v. Elaine C. Duke et al.

of Plaintiff’s employment authorization, which was included as a portion of the March 6, 2017 Notice of Action.

IT IS SO ORDERED.

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Page 16 of 16

 
 Case 5:17-cv-02048-PSG-SHK Document 39 Filed 12/29/17 Page 1 of 4 Page ID #:1164

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)
13

14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

15

16 INLAND EMPIRE – IMMIGRANT

)

YOUTH COLLECTIVE, et al., on behalf ) Case No. 5:17-cv-02048-PSG-SHK

17 of themselves and others similarly situated, )

)

18

Plaintiffs,

)

19

v.

) ) )

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

20 KIRSTJEN NIELSEN, Secretary, U.S. Department of Homeland Security, et al.,
21 Defendants.
22

)

) ) ) ) )

Judge: Hon. Philip S. Gutierrez Courtroom: 6A Hearing: February 26, 2018 Time: 1:30 p.m.

23

)

)

24

)

)

25

)

)

26

27

28

Case 5:17-cv-02048-PSG-SHK Document 39 Filed 12/29/17 Page 2 of 4 Page ID #:1165
1 Ahilan T. Arulanantham (SBN 237841) aarulanantham@aclusocal.org
2 Michael Kaufman (SBN 254575) mkaufman@aclusocal.org
3 Dae Keun Kwon (SBN 313155) akwon@aclusocal.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
5 Los Angeles, CA 90017 Telephone: (213) 977-5232
6 Facsimile: (213) 977-5297 7
Attorneys for Plaintiffs 8
* Admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-PSG-SHK Document 39 Filed 12/29/17 Page 3 of 4 Page ID #:1166

1

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2 PLEASE TAKE NOTICE that on February 26, 2018 at 1:30 p.m., or at the

3 nearest available date at which counsel may be heard, in Courtroom 6A of

4 the above-referenced court located at the First Street Courthouse, 350 West 1st

5 Street, 6th Floor, Los Angeles, California 90012-4565, Plaintiffs will, and hereby

6 do, move this Court pursuant to Federal Rules of Civil Procedure 23(a) and (b)(2)

7 to certify a nationwide Notice Class of:

8

All recipients of Deferred Action for Childhood Arrivals (“DACA”)

9

who, after January 19, 2017, have had or will have their DACA grant

10

and employment authorization revoked without notice or an

11

opportunity to respond, even though they have not been convicted of a

12

disqualifying criminal offense.

13

Plaintiffs further move to be appointed Class Representatives and their counsel

14 to be appointed Class Counsel.

15

The Motion is based upon this Notice of Motion; the accompanying

16 Memorandum of Points and Authorities, the supporting declarations, all pleadings and

17 papers filed in this action, and such additional papers and arguments as may be 18 presented at or in connection with the hearing.1

19

20 Dated: December 29, 2017

Respectfully submitted,

21

/s/ Katrina L. Eiland

22

Katrina L. Eiland

23

Jennifer Chang Newell

Michael K. T. Tan*

24

David Hausman*

25

ACLU FOUNDATION

IMMIGRANTS’ RIGHTS PROJECT

26

27 1 Plaintiffs met and conferred with counsel for Defendants on December 12,
28 2017, regarding this Motion in accordance with Local Rule 7-3.

1

Case 5:17-cv-02048-PSG-SHK Document 39 Filed 12/29/17 Page 4 of 4 Page ID #:1167

1

Ahilan T. Arulanantham Michael Kaufman

2

Dae Keun Kwon

3

ACLU FOUNDATION

OF SOUTHERN CALIFORNIA

4

5

Attorneys for Plaintiffs

6

*admitted pro hac vice

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

Case 5:17-cv-02048-PSG-SHK Document 39-1 Filed 12/29/17 Page 1 of 29 Page ID #:1168

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)
13

14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

15

16 INLAND EMPIRE – IMMIGRANT

)

YOUTH COLLECTIVE, et al., on behalf ) Case No. 5:17-cv-02048-PSG-SHK

17 of themselves and others similarly situated, )

)

18

Plaintiffs,

)

19

v.

20 KIRSTJEN NIELSEN, Secretary, U.S. Department of Homeland Security, et al.,

) ) ) ) )

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

21 Defendants.
22
23

)

) ) ) ) )

Judge: Hon. Philip S. Gutierrez Courtroom: 6A Hearing: February 26, 2018 Time: 1:30 p.m.

24

)

)

25

)

)

26

27

28

Case 5:17-cv-02048-PSG-SHK Document 39-1 Filed 12/29/17 Page 2 of 29 Page ID #:1169
1 Ahilan T. Arulanantham (SBN 237841) aarulanantham@aclusocal.org
2 Michael Kaufman (SBN 254575) mkaufman@aclusocal.org
3 Dae Keun Kwon (SBN 313155) akwon@aclusocal.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
5 Los Angeles, CA 90017 Telephone: (213) 977-5232
6 Facsimile: (213) 977-5297 7
Attorneys for Plaintiffs 8
* Admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-PSG-SHK Document 39-1 Filed 12/29/17 Page 3 of 29 Page ID #:1170

1

TABLE OF CONTENTS

2

INTRODUCTION .....................................................................................................ii

3

BACKGROUND .......................................................................................................4 4

The DACA Program........................................................................................4 5

Defendants’ Unlawful DACA Revocation Policies and Practices..................5

6

Plaintiffs and Proposed Class Members..........................................................6

7

ARGUMENT ........................................................................................................... 10

8

I. The Proposed Class Satisfies Rule 23(a)’s Requirements. .................11 9

A. Numerosity: The Proposed Class Consists of at Least Seventeen and

10

Likely Many More DACA Recipients...........................................11

11

B. The Class Presents Common Questions of Law and Fact. ............13

12

C. Typicality: Plaintiffs’ Claims Are Typical of Those of Other Class

Members. ........................................................................................ 16

13

D. Adequacy: Plaintiffs Will Adequately Protect the Interests of the

14

Proposed Class, and Plaintiffs’ Counsel Are More Than Qualified

to Litigate this Action. ...................................................................17 15

E. The Class Is Sufficiently Ascertainable. ........................................19 16

II. This Action Satisfies the Requirements of Rule 23(b)(2)...................20

17

CONCLUSION ........................................................................................................ 23

18

19

20

21

22

23

24

25

26

27

28

i

Case 5:17-cv-02048-PSG-SHK Document 39-1 Filed 12/29/17 Page 4 of 29 Page ID #:1171

1

TABLE OF AUTHORITIES

Cases 2

Alfaro Garcia v. Johnson, 3 No. 14-cv-1775, 2014 WL 6657591 (N.D. Cal. 2014) ............................................. 18

Ali v. Ashcroft, 4 213 F.R.D. 390 (W.D. Wash. 2003)..........................................................................13

Ark. Educ. Ass’n v. Board Of Educ. of Portland, Ark. Sch. Dist., 5 446 F.2d 763 (8th Cir. 1971).................................................................................3, 12

Armstrong v. Davis, 6 275 F.3d 849 (9th Cir. 2001).....................................................................................14

Arnott v. U.S. Citizenship & Immigration Servs., 7 290 F.R.D. 579 (C.D. Cal. 2012) ..................................................................10, 11, 16

Baharona-Gomez v. Reno, 8 167 F.3d 1228 (9th Cir. 1999) ...................................................................................... 4

Carrillo v. Schneider Logistics, Inc., 9 No. 11-cv-8557CAS-DTBX, 2012 WL 556309 (C.D. Cal. Jan. 31, 2012) ................ 4

Cervantez v. Celestica Corp., 10 253 F.R.D. 562 (C.D. Cal. 2008) ..............................................................................12

Cole v. City of Memphis, 11 839 F.3d 530 (6th Cir. 2016).....................................................................................19

Colotl v. Kelly, 12 No. 17-cv-1670-MHC, 2017 WL 2889681 (N.D. Ga. June 12, 2017) .............5, 9, 10

Dunnigan v. Metro. Life Ins. Co., 13 214 F.R.D. 125 (S.D.N.Y. 2003)...............................................................................20

Ellis v. Costco Wholesale Corp., 14 657 F.3d 970 (9th Cir. 2011).....................................................................................16

Evon v. Law Offices of Sidney Mickell, 15 688 F.3d 1015 (9th Cir. 2012)...................................................................................16

Franco-Gonzales v. Napolitano, 16 No. 10-cv-02211-DMG-DTBX, 2011 WL 11705815

(C.D. Cal. Nov. 21, 2011) ...................................................................................11, 18 17 Gen. Tel. Co. of Sw. v. Falcon,

457 U.S. 147 (1982) ..................................................................................................15 18 Gonzalez Torres v. U.S. Dep’t of Homeland Sec.,

No. 17-cv-1840 JM(NLS), 2017 WL 4340385(S.D. Cal. Sept. 29, 2017) ............. 5, 6 19 Gorbach v. Reno,

181 F.R.D. 642 (W.D. Wash. 1998)..........................................................................22 20 Greater Los Angeles Agency on Deafness, Inc. v. Reel Servs. Mgmt. LLC,

No. 13-cv-7172 PSG (ASX), 2014 WL 12561074 (C.D. Cal. May 6, 2014) ........... 19 21 Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998)........................................................................13, 14,17 22 Hanon v. Dataproducts Corp.,

976 F.2d 497 (9th Cir. 1992).....................................................................................17 23 Harris v. Palm Springs Alpine Estates, Inc.,

329 F. 2d 909 (9th Cir. 1964)....................................................................................11 24 Hawker v. Consovoy,

198 F.R.D. 619 (D.N.J. 2001) ...................................................................................13 25 Hum v. Dericks,

162 F.R.D. 628 (D. Haw. 1995) ............................................................................3, 12 26 In re Yahoo Mail Litig.,

308 F.R.D. 577 (N.D. Cal. 2015) ..............................................................................19 27 Johnson v. California,

543 U.S. 499 (2005) ..................................................................................................14 28 Jordan v. Los Angeles Cty.,

669 F.2d 1311 (9th Cir. 1982)...................................................................................12

ii

Case 5:17-cv-02048-PSG-SHK Document 39-1 Filed 12/29/17 Page 5 of 29 Page ID #:1172
Khoury v. Asher, 1 3 F. Supp. 3d 877 (W.D. Wash. 2014) ...................................................................... 18
LaDuke v. Nelson, 2 762 F.2d 1318 (9th Cir. 1985)...................................................................................17
Lamumba Corp. v. City of Oakland, 3 No. 05-cv-2712 MHP, 2007 WL 3245282 (N.D. Cal. Nov. 2, 2007) ...................... 20
Lynch v. Rank, 4 604 F. Supp. 30 (N.D. Cal. 1984) .............................................................................18
Lyon v. U.S. Immigration & Customs Enf’t, 5 308 F.R.D. 203 (N.D. Cal. 2015) ..............................................................................21
Mazza v. Am. Honda Motor Co., Inc., 6 666 F.3d 581 (9th Cir. 2012).....................................................................................13
Mendez Rojas, et al. v. Johnson, 7 No. 16-cv-1024-RSM (W.D. Wash. Jan. 10, 2017) .................................................. 11
Moreno v. Napolitano, 8 No. 11-cv-5452, 2014 WL 4911938 (N.D. Ill. Sept. 30, 2014) ................................ 20
Natl. Assn. of Radiation Survivors v. Walters, 9 111 F.R.D. 595 (N.D. Cal. 1986) ..............................................................................13
O’Connor v. Boeing N. Am., Inc., 10 184 F.R.D. 311 (C.D. Cal. 1998) ..............................................................................20
Orantes-Hernandez v. Smith, 11 541 F. Supp. 351 (C.D. Cal. 1982)............................................................................16
Parsons v.Ryan, 12 754 F.3d 657 (9th Cir. 2014).........................................................................13, 17, 22
Perez-Funez v. Dist. Dir., I.N.S., 13 611 F. Supp. 990 (C.D. Cal. 1984)............................................................................11
Perez-Olano v. Gonzalez, 14 248 F.R.D. 248 (C.D. Cal. 2008) ..............................................................................15
Preap v. Johnson, 15 303 F.R.D. 566 (N.D. Cal. 2014) ........................................................................13, 18
RILR v. Johnson, 16 80 F. Supp. 3d 164 (D.D.C. 2015) ............................................................................18
Rivera v. Johnson, 17 307 F.R.D. 539 (W.D. Wa 2015) ..............................................................................18
Rodriguez v. Hayes, 18 591 F.3d 1105 (9th Cir. 2010)............................................................................passim
Santillan v. Ashcroft, 19 No. 04-cv-2686MHP, 2004 WL 2297990 (N.D. Cal. Oct. 12, 2004).................11, 14
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 20 559 U.S. 393 (2010) ..................................................................................................10
Shelton v. Bledsoe, 21 775 F.3d 554 (3d Cir. 2015) ......................................................................................19
Shook v. El Paso Cnty., 22 386 F.3d 963 (10th Cir. 2004)...................................................................................19
Smith v. Heckler, 23 595 F. Supp. 1173 (E.D. Cal. 1984)..........................................................................13
Sueoka v. United States, 24 101 Fed. App’x 649 (9th Cir. 2004)..........................................................................11
Sweet v. Pfizer, 25 232 F.R.D. 360 (C.D. Cal. 2005) ..............................................................................15
Wagafe v. Trump, 26 No. 17-cv-0094-RAJ, 2017 WL 2671254 (W.D. Wash. June 21, 2017)..................11
Wal-Mart Stores, Inc. v. Dukes, 27 564 U.S. 338 (2011) ......................................................................................15, 16, 21
Walters v. Reno, 28 145 F.3d 1032 (9th Cir. 1998)............................................................................passim
Yaffe v. Powers, iii

Case 5:17-cv-02048-PSG-SHK Document 39-1 Filed 12/29/17 Page 6 of 29 Page ID #:1173
454 F.2d 1362 (1st Cir.1972) ....................................................................................19 1 Young v. Nationwide Mut. Ins. Co.,
693 F.3d 532 (6th Cir. 2012).....................................................................................20 2 3 Rules 4 Fed. R. Civ. P. 23...................................................................................................passim 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
iv

Case 5:17-cv-02048-PSG-SHK Document 39-1 Filed 12/29/17 Page 7 of 29 Page ID #:1174

1

INTRODUCTION

2

Plaintiffs José Eduardo Gil Robles (“Mr. Gil”), Ronan Carlos De Souza

3 Moreira (“Mr. Moreira”), and Jesús Alonso Arreola Robles (“Mr. Arreola”)

4 (collectively, “Plaintiffs”), along with numerous other Deferred Action for Childhood

5 Arrivals (“DACA”) recipients nationwide, have had their permission to live in the

6 United States and employment authorization arbitrarily stripped away by the United

7 States Citizenship and Immigration Services (“USCIS”) since President Trump took

8 office, without any notice, reasoned explanation, or opportunity to be heard. USCIS

9 has abruptly revoked these young immigrants’ valid DACA and work authorization

10 even though they remain eligible for the program. Losing the protection of DACA

11 and, with it, the ability to work and plan for the future, is devastating to these young

12 immigrants who have called the United States home since they were children.

13

Mr. Gil is a 24-year-old who has lived in the United States for more than 19

14 years. USCIS found him eligible for and granted him DACA in both 2015 and 2017.

15 His DACA allowed him to work as a bakery manager and for a logistics company, and

16 he used his earnings to help support his five younger U.S. citizen siblings. Mr. Gil

17 was also able to get a driver’s license, which allowed him to drive to work and church,

18 and to give his siblings rides to school. However, USCIS suddenly revoked Mr. Gil’s

19 DACA and work authorization in November 2017—just three months after USCIS

20 renewed it—without providing him with a reasoned explanation or a process to

21 challenge the revocation.

22

Mr. Moreira is also 24 years old and has lived in the United States since he was

23 a child. In high school, Mr. Moreira was active in school sports and other activities

24 and received various certificates of achievement for his academic performance. After

25 Mr. Moreira graduated, USCIS granted him DACA, which allowed him to secure a

26 good job with a flooring company, where he excelled and was quickly promoted from

27 an assistant manager to a manager position. USCIS granted Mr. Moreira DACA twice

28

1

Case 5:17-cv-02048-PSG-SHK Document 39-1 Filed 12/29/17 Page 8 of 29 Page ID #:1175

1 more—most recently in November 2017—just days before USCIS abruptly 2 terminated it.1

3

Plaintiffs are not alone. Indeed, Plaintiffs’ counsel are aware of at least 17

4 DACA recipients across the country who have had their DACA and work permits

5 terminated without notice or process since January 2017, even though they still

6 qualify for the program. Declaration of Katrina L. Eiland (“Eiland Decl.”) ¶¶ 3-14.

7 Hundreds of thousands more DACA recipients nationwide are at risk of having their

8 DACA terminated pursuant to Defendants’ unlawful policies and practices. Id. ¶ 48,

9 Ex. 33.

10

Indeed, Defendants have conceded in this lawsuit that USCIS engages in a

11 practice of terminating DACA without notice or an opportunity to respond, including

12 by automatically terminating DACA based on the issuance of a Notice to Appear

13 (“NTA”) in immigration court, without regard to whether the recipient remains

14 eligible for the program. See Doc No. 23-2, Declaration of Ron Thomas (“Thomas

15 Decl.”) ¶ 4. Defendants also have conceded that this practice is widespread. In fact,

16 Defendants have represented that the number of individuals subjected to its practice is

17 such that identifying “all automatic terminations of DACA would . . . involve a

18 manual review of hundreds of cases.” Id. ¶ 5 (emphasis added).

19

However, as this Court and others have ruled, USCIS’s admitted practice of

20 terminating DACA without notice or process violates the agency’s own rules and is,

21 therefore, arbitrary and capricious and contrary to law under the Administrative

22 Procedure Act (“APA”). As described in Plaintiffs’ Motion for a Classwide

23 Preliminary Injunction, filed this same date, Defendants’ termination practice is also

24 arbitrary and capricious because it fails to provide good reasons for changing course

25 with respect to the agency’s determination that the individual merits DACA, and is

26 based on arbitrary, irrelevant factors. Terminating DACA without notice and an

27 1 The termination of Mr. Arreola’s DACA is described in detail in Plaintiff Arreola’s Memorandum of Law in Support of his Motion for a Preliminary Injunction.
28 See Doc. No. 16-2 at 5-10.

2

Case 5:17-cv-02048-PSG-SHK Document 39-1 Filed 12/29/17 Page 9 of 29 Page ID #:1176

1 opportunity to be heard also violates the Due Process Clause of the Fifth Amendment

2 to the U.S. Constitution.

3

A class action lawsuit is appropriate to challenge Defendants’ unlawful policies

4 and practices. Plaintiffs seek to certify the following nationwide Notice Class under

5 Federal Rules of Civil Procedure 23(a) and 23(b)(2):

6

All recipients of Deferred Action for Childhood Arrivals (“DACA”)

7

who, after January 19, 2017, have had or will have their DACA grant

8

and employment authorization revoked without notice or an

9

opportunity to respond, even though they have not been convicted of a

10

disqualifying criminal offense.2

11

The proposed class readily satisfies the requirements of numerosity,

12 commonality, typicality, and adequacy in Rule 23(a) and is readily ascertainable. The

13 proposed class includes at least 17 and likely many more individuals whose DACA

14 already has been unlawfully terminated, which is sufficient to satisfy numerosity. See,

15 e.g., Ark. Educ. Ass’n v. Board Of Educ. of Portland, Ark. Sch. Dist., 446 F.2d 763,

16 765-66 (8th Cir. 1971) (class of 17 sufficient); Hum v. Dericks, 162 F.R.D. 628, 634

17 (D. Haw. 1995) (noting that courts have certified classes with as few as 13 members).

18 The class raises numerous common legal questions that generate common answers:

19 namely, whether Defendants’ challenged policies and practices violate the APA and

20 the Due Process Clause. The class also raises common factual issues because

21 Plaintiffs and class members are subject to the same policies and practices. Plaintiffs’

22 APA and Due Process Clause claims are typical of those whom they seek to

23 represent—that is, other DACA recipients who have or will have their DACA and

24 work authorization terminated without notice or process pursuant to Defendants’

25 unlawful policies and practices, despite having no disqualifying convictions. And as

26 to adequacy, a team of seasoned attorneys from the ACLU Immigrants’ Rights Project

27 2 This motion does not address the proposed “Enforcement Priority” Class pled in
28 Plaintiffs’ Amended Complaint, filed this same date.

3

Case 5:17-cv-02048-PSG-SHK Document 39-1 Filed 12/29/17 Page 10 of 29 Page ID #:1177

1 and the ACLU of Southern California, with significant experience in immigrants’

2 rights and class action cases, represents Plaintiffs.

3

Plaintiffs’ proposed class likewise satisfies Rule 23(b)(2) because Defendants

4 have “acted or refused to act on grounds that apply generally to the class, so that final

5 injunctive relief or corresponding declaratory relief is appropriate respecting the class

6 as a whole.” Because the government has a policy or practice of terminating DACA

7 without notice, process, or a reasoned explanation, including based solely on the

8 issuance of an NTA, even where a DACA recipient has never engaged in any

9 disqualifying conduct, Defendants have necessarily acted in the same way as to all

10 class members. Injunctive and declaratory relief to stop Defendants’ unlawful

11 practices is therefore appropriate with respect to the class as a whole.

12

Accordingly, this Court should grant class certification under Rule 23(b)(2) for

13 purposes of entering Plaintiffs’ requested classwide preliminary injunction.3 See

14 Carrillo v. Schneider Logistics, Inc., No. 11-cv-8557CAS-DTBX, 2012 WL 556309,

15 at *9 (C.D. Cal. Jan. 31, 2012) (“courts routinely grant provisional class certification

16 for purposes of entering [preliminary] injunctive relief” under Rule 23(b)(2), where

17 the plaintiff establishes that the four prerequisites in Rule 23(a) are also met) (citing

18 Baharona-Gomez v. Reno, 167 F.3d 1228, 1233 (9th Cir. 1999)).

19 20 The DACA Program4

BACKGROUND

21

Under DACA, young immigrants who entered the United States as children

22 who meet specified educational and residency requirements, and who pass extensive

23 criminal background checks, are eligible to receive deferred action. Doc. No. 16-4,

24 Declaration of Dae Keun Kwon (“Kwon Decl.”) ¶ 10, Ex. 9 (“Napolitano Memo” at

25 3 Plaintiffs also request that they be appointed Class Representatives, and that
26 undersigned counsel be appointed Class Counsel. 4 Additional background about the DACA program is provided in Plaintiffs’
27 Amended Complaint, filed concurrently with this Motion, and Plaintiff Arreola’s Memorandum of Law in support of his Motion for a Preliminary Injunction, Doc No.
28 16-2.

4

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1 1-2). The enumerated eligibility criteria include the requirements that DACA 2 recipients not have been convicted of a felony, a significant misdemeanor,5 or three or

3 more other misdemeanors. Napolitano Memo at 1.

4

USCIS is the agency charged with making DACA determinations. Id. at 2-3.

5 The DACA Standard Operating Procedures (“SOPs”) set forth the uniform procedures

6 that the agency must follow in adjudicating all DACA applications, as well as in

7 terminating DACA and EADs granted through the program. See Doc No. 31, Order

8 Granting Pl.’s Mot. for Prelim. Inj. (“PI Order”) at 2; Kwon Decl. ¶ 21, Ex. 20 at 16

9 (“This SOP is applicable to all Service Center personnel performing adjudicative and

10 clerical functions or review of those functions. Personnel outside of Service Centers

11 performing duties related to DACA processing will be similarly bound by the

12 provisions of this SOP.”); id. (“This SOP describes the procedures Service Centers are

13 to follow when adjudicating DACA requests.”); see also Colotl v. Kelly, No. 17-cv-

14 1670-MHC, 2017 WL 2889681, at *4 (N.D. Ga. June 12, 2017); Gonzalez Torres v.

15 U.S. Dep’t of Homeland Sec., No. 17-cv-1840 JM(NLS), 2017 WL 4340385, at *3

16 (S.D. Cal. Sept. 29, 2017).

17

On September 5, 2017, the Department of Homeland Security (“DHS”)

18 announced that it was winding down the DACA program. Although the program is

19 ending, DHS officials have confirmed that the same program rules continue to apply

20 until it ends. PI Order at 1-2.

21 Defendants’ Unlawful DACA Revocation Policies and Practices

22

Despite President Trump’s assurances that DACA recipients “have nothing to

23 worry about”6 and despite the critically important interests at stake once an individual

24 has received a grant of DACA, Defendants have engaged in a policy and practice of

25 5 Significant misdemeanors are convictions for domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or
26 trafficking; and, driving under the influence; and any offense for which an individual was sentenced to time in custody of more than 90 days. Kwon Decl. ¶ 20, Ex. 19 at
27 20. 6 Eiland Decl. ¶ 30, Ex. 15 (@realDonaldTrump, TWITTER (Sept. 7, 2017, 6:42
28 AM), https://twitter.com/realDonaldTrump/status/905788459301908480).

5

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1 unlawfully revoking individuals’ DACA and work permits without notice, a reasoned

2 explanation, or an opportunity to respond, even though these individuals remain

3 eligible for the program.

4

Defendants’ unlawful termination of qualified individuals’ DACA and work

5 authorization involves at least two systemic policies and practices:

6

First, Defendants have a practice of revoking DACA without providing notice,

7 a reasoned explanation, an opportunity to be heard prior to revocation, or a process for

8 reinstatement where the revocation is in error. Defendants’ have engaged in this

9 practice despite the fact that USCIS’s own SOPs governing the DACA program do

10 not allow for termination without notice in the vast majority of cases, including in

11 Plaintiffs’ and the proposed class members. See, e.g., Gonzalez Torres, 2017 WL

12 4340385, at *3 (“In short, except in EPS cases [i.e., certain cases involving an

13 egregious risk to public safety], the DACA SOP requires notice and an ability to

14 contest the [Notice of Intent to Terminate] before DACA status may be terminated.”).

15

Second, USCIS has a practice of automatically terminating DACA and work

16 permits based on the issuance of an NTA where the sole basis for the NTA is the

17 individual’s lack of immigration status in the United States. Defendants themselves

18 have asserted in this litigation that USCIS has a “consistent practice” of automatically

19 terminating DACA “with the issuance of NTAs.” Doc No. 23, Defs.’ Opp. to PI at

20 26; see also Thomas Decl. ¶ 4 (“The issuance of a Notice to Appear (NTA) by U.S.

21 Immigration and Customs Enforcement (ICE) or U.S. Customs and Border Protection

22 (CBP) automatically terminates DACA. . . . This has been USCIS’ practice since FY

23 2013 when such terminations began.”). As this Court has observed, however, all

24 DACA recipients could be charged with unlawful presence, and DACA is available to

25 noncitizens who are in removal proceedings. PI Order at 9.

26 Plaintiffs and Proposed Class Members

27

The termination of Plaintiffs’ DACA and work authorization illustrates

28 Defendants’ unlawful policies and practices. Mr. Gil, who has lived in the United

6

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1 States since he was five years old, was working for a logistics company in Minnesota

2 and helping to support his five U.S. citizen siblings when USCIS revoked his DACA

3 and work authorization. Declaration of José Eduardo Gil Robles (“Gil Decl.”) ¶¶ 1-2,

4 11-12. Mr. Gil was arrested in September 2017 and ultimately charged with a 5 misdemeanor for driving on a cancelled license, which is still pending.7 Id. ¶ 14. Mr.

6 Gil was not aware of any problem with his driver’s license, which was allegedly

7 cancelled because it required a “status check” when his previous grant of DACA

8 expired a few weeks before. Id. Mr. Gil was released on bond and went back to his

9 work and family. Id. ¶ 15. However, a month later, ICE appeared at his job, arrested

10 him, and took him to an immigration detention facility. Id. ICE subsequently issued

11 him an NTA charging him with being present without admission. Id. Mr. Gil was

12 released on bond after an immigration judge found that he was not a danger to the

13 community or a flight risk. Id. ¶¶ 18-20. However, while he was in detention, Mr. Gil

14 received a notice from USCIS terminating his renewed DACA based on ICE’s

15 issuance of an NTA. Id. ¶¶ 22-23, 30, Ex. B. He received no notice or explanation

16 beyond the single sentence in the notice, and he had no chance to respond. Id. ¶ 23.

17

Similarly, Mr. Moreira has lived in the United States since middle school, after

18 entering on a visitor’s visa. Declaration of Ronan Carlos De Souza Moreira (“Moreira

19 Decl.”) ¶ 1. His mother is a Legal Permanent Resident and his older brother, who is

20 expecting a child, is a U.S. citizen. Id. ¶ 5. During middle school and high school,

21 Mr. Moreira played soccer and tennis, participated in school clubs, and earned

22 certificates of achievement for his academic performance and attendance. Id. ¶ 2.

23 After graduating from high school and getting DACA, Mr. Moreira secured a good

24 job with a flooring company in Georgia, working his way up to a job managing 20

25 flooring installers. Id. ¶¶ 2, 9. On November 2, 2017, Mr. Moreira was arrested after

26 a police officer concluded that the expiration date on his license had been changed.

27 7 Such traffic violations do not even count as a misdemeanor that could disqualify an
28 individual from DACA. See Kwon Decl. ¶ 20, Ex. 19 at 20.

7

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1 He was ultimately charged with a misdemeanor for possession of an altered

2 identification document, but has not been convicted. Id. ¶¶ 12-14. Although Mr.

3 Moreira was quickly granted bail, ICE detained him and issued him an NTA charging

4 him with overstaying a visa. Id. ¶ 14. Mr. Moreira was released from immigration

5 detention after about a month. When he appeared for a bond hearing, the lawyer for

6 the government conceded that he was neither a flight risk nor a danger to the

7 community, and offered him a bond, which he accepted. Id. ¶ 16. However, like Mr.

8 Gil, Mr. Moreira received a notice from USCIS terminating his DACA based on

9 ICE’s issuance of an NTA. Id. ¶¶ 18, 26, Ex. B. Mr. Moreira also did not receive any

10 notice or explanation beyond the single sentence in the notice, and he had no chance

11 to respond. Id. ¶ 19.

12

Plaintiffs’ experiences are representative of DACA terminations nationally.

13 According to government statistics, DACA revocations increased by 25 percent in the 14 first three months after President Trump’s inauguration in January 2017.8 Plaintiffs’

15 counsel are aware of at least 17 individuals around the country who, in the last ten

16 months alone, have had their DACA and work authorization terminated without

17 notice, a reasoned explanation, or an opportunity to respond, even though they

18 continue to be eligible for DACA. Eiland Decl. ¶¶ 2-14. Given that there are

19 currently nearly 700,000 DACA recipients across the country, id. ¶ 48, Ex. 33, there

20 are likely at least dozens—if not many more—in the same situation whose stories

21 have not reached Plaintiffs’ counsel. Moreover, hundreds of thousands of individuals

22 nationwide are at risk of having their DACA and work authorization terminated

23 pursuant to Defendants’ unlawful policies and practices in the future as the program

24 winds down over the next two years. In fact, Plaintiffs’ counsel are aware of two

25 additional DACA recipients to whom ICE recently issued NTAs despite their

26 continued DACA eligibility, and who are at risk of receiving DACA termination

27 8 Eiland Decl. ¶ 20, Ex. 5 (Keegan Hamilton, Targeting Dreamers, VICE News, Sept. 8, 2017, https://news.vice.com/story/ice-was-going-after-dreamers-even-before-
28 trump-killed-daca).

8

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1 letters from USCIS. Id. ¶ 15. In at least one of those cases, counsel for ICE has

2 already represented that the individual’s DACA has been terminated. Id.

3

Moreover, federal immigration authorities have been instructed to screen every

4 DACA recipient they encounter. Id. ¶¶ 21-23, Exs. 6-8. Just recently, in early

5 September, ten DACA recipients were detained for hours by Customs and Border

6 Patrol (“CBP”) agents in Texas even though they have valid DACA. Id. ¶ 23, Ex. 8.

7 Although they were ultimately released, CBP scrutinized their records, presumably

8 looking for a reason to hold them and revoke their DACA status. Id. This targeting of

9 DACA recipients is likely to result in additional unlawful terminations.

10

Moreover, Defendants’ actions demonstrate that they have been targeting

11 DACA recipients for revocation even though they have committed no disqualifying

12 conduct and remain eligible for the program. On February 20, 2017, former DHS

13 Secretary John Kelly issued a memorandum setting forth enforcement priorities that

14 DHS would follow in its enforcement of the immigration laws (hereinafter, the “Kelly 15 Memo”).9 The Kelly Memo states that, “[e]ffective immediately, . . . Department

16 personnel shall faithfully execute the immigration laws of the United States against all

17 removable aliens.” The memorandum provides that even noncitizens who have no

18 criminal convictions, but merely have been “charged with any criminal offense that

19 has not been resolved,” as well as any noncitizen who has “committed acts which

20 constitute a chargeable criminal offense” will be prioritized for removal from the

21 United States. USCIS has revoked DACA grants of individuals who do not have

22 criminal history disqualifying them from DACA under the carefully crafted DACA

23 Memo and SOPs, but who have had minor encounters with law enforcement that

24 could make them a priority under the Kelly Memo’s general expanded enforcement

25 priorities. See, e.g., Colotl, 2017 WL 2889681, at *7 (N.D. Ga. June 12, 2017).

26 9 Eiland Decl. ¶ 18, Ex. 3 (Memorandum from John Kelly, Enforcement of the
27 Immigration Laws to Serve the National Interest 2 (Feb. 20, 2017), available at https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-the-
28 Immigration-Laws-to-Serve-the-National-Interest.pdf).

9

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1

The Kelly Memo and related DHS guidance, however, expressly exempt the

2 DACA program from the Kelly Memo’s expanded priorities. See Eiland Decl. ¶¶ 17-

3 17, Exs. 2-3; see also Colotl, 2017 WL 2889681, at *7-8, *12 (finding that “the Kelly

4 Memo, by its own terms, has no application to the DACA program”). Indeed, the

5 Kelly Memo directly conflicts with the DACA Memo and SOPs, which define those

6 eligible for DACA as low enforcement priorities and provide the relevant rules for

7 termination of DACA. See Kwon Decl. ¶ 21, Ex. 20 at 18, 136-38. Even so, USCIS

8 has targeted for revocation individuals who remain eligible for DACA, thus further

9 reinforcing that numerous DACA recipients are at risk of unlawful termination in the

10 future.

11

ARGUMENT

12

A plaintiff whose suit meets the requirements of Federal Rule of Civil

13 Procedure 23 has a “categorical” right “to pursue his claim as a class action.” Shady

14 Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010). To

15 meet these requirements, the “suit must satisfy the criteria set forth in [Rule 23(a)]

16 (i.e., numerosity, commonality, typicality, and adequacy of representation), and it also

17 must fit into one of the three categories described in subdivision (b).” Id.

18

As set forth below, Plaintiffs’ proposed class satisfies all four of the Rule 23(a)

19 prerequisites, as well as the judicially implied requirement of ascertainability. The

20 proposed class likewise meets the requirements for certification under Rule 23(b)(2).

21

This Court should certify the proposed class in keeping with the numerous court

22 decisions certifying classes in similar actions challenging the federal government’s

23 administration of immigration programs. See, e.g., Walters v. Reno, 145 F.3d 1032

24 (9th Cir. 1998) (affirming certification of nationwide class of individuals challenging

25 adequacy of notice in document fraud cases); Arnott v. U.S. Citizenship &

26 Immigration Servs., 290 F.R.D. 579 (C.D. Cal. 2012) (certifying nationwide class of

27 immigrant investors challenging USCIS’ retroactive application of new rules

28 governing approval petitions to remove permanent residency conditions); Santillan v.

10

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1 Ashcroft, No. 04-cv-2686MHP, 2004 WL 2297990 (N.D. Cal. Oct. 12, 2004)

2 (certifying nationwide class of lawful permanent residents challenging delays in

3 receiving documentation of their status); Wagafe v. Trump, No. 17-cv-0094-RAJ,

4 2017 WL 2671254, at *1 (W.D. Wash. June 21, 2017) (certifying nationwide class of

5 naturalization applicants challenging national security screening procedures); Mendez

6 Rojas, et al. v. Johnson, No. 16-cv-1024-RSM, (W.D. Wash. Jan. 10, 2017)

7 (certifying two nationwide classes of asylum seekers challenging defective asylum

8 application procedures).

9 I. The Proposed Class Satisfies Rule 23(a)’s Requirements.

10

A. Numerosity: The Proposed Class Consists of at Least Seventeen and

11

Likely Many More DACA Recipients.

12

Rule 23(a)(1) requires that a class be “so numerous that joinder of all members

13 is impracticable.” Fed. R. Civ. P. 23(a)(1). “‘[I]mpracticability’ does not mean

14 ‘impossibility,’ but only the difficulty or inconvenience of joining all members of the

15 class.” Franco-Gonzales v. Napolitano, No. 10-cv-02211-DMG-DTBX, 2011 WL

16 11705815, at *6 (C.D. Cal. Nov. 21, 2011) (quoting Harris v. Palm Springs Alpine

17 Estates, Inc., 329 F. 2d 909, 913-14 (9th Cir. 1964)). No fixed number of class

18 members is required. Perez-Funez v. Dist. Dir., I.N.S., 611 F. Supp. 990, 995 (C.D.

19 Cal. 1984). Moreover, where a plaintiff seeks injunctive and declaratory relief, the

20 “requirement is relaxed and plaintiffs may rely on [] reasonable inference[s] arising

21 from plaintiffs’ other evidence that the number of unknown and future members of

22 [the] proposed subclass . . . is sufficient to make joinder impracticable.” Arnott v. U.S.

23 Citizenship & Immigration Servs., 290 F.R.D. 579, 586 (C.D. Cal. 2012) (quoting

24 Sueoka v. United States, 101 Fed. App’x 649, 653 (9th Cir. 2004)).

25

Here, the number of class members far exceeds the requirement for numerosity.

26 First, Plaintiffs’ counsel is aware of at least 17 DACA recipients who, in the last ten

27 months alone, have had their DACA terminated without notice or process, despite

28 remaining eligible for the program. Eiland Decl. ¶¶ 2-14. Given the increasing

11

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1 number of DACA revocations nationwide in 2017, see id. ¶ 20, Ex. 5, the targeting of

2 DACA recipients by federal immigration authorities, and the overall scale of the

3 program, with hundreds of thousands of current DACA recipients, id. ¶ 48, Ex. 33,

4 there are likely at least dozens—if not many more—who have already had their

5 DACA terminated pursuant to Defendants’ challenged practices. Indeed, Defendants

6 have submitted a declaration in the instant litigation representing that the number of

7 DACA recipients subjected to terminations without process is such that identifying

8 “all automatic terminations of DACA would . . . involve a manual review of hundreds

9 of cases.” Thomas Decl. ¶ 5 (emphasis added). The Court can thus reasonably

10 conclude that the proposed class is sufficiently numerous. See Cervantez v. Celestica

11 Corp., 253 F.R.D. 562, 569 (C.D. Cal. 2008) (internal quotation marks and citations

12 omitted) (noting that “where the exact size of the class is unknown but general

13 knowledge and common sense indicate that it is large, the numerosity requirement is

14 satisfied”); see also, e.g., Hum, 162 F.R.D. at 634 (courts have certified classes with

15 as few as 13 members); Ark. Educ. Ass’n, 446 F.2d at 765-66 (class of 17 sufficient);

16 Jordan v. Los Angeles Cty., 669 F.2d 1311, 1319 (9th Cir. 1982) (class of 39

17 sufficient), vacated on other grounds, 459 U.S. 810 (1982).

18

Second, in addition to the number of individuals who have already had their

19 DACA unlawfully terminated, Plaintiffs’ proposed class also includes individuals who

20 will have their DACA terminated without notice or process, despite continuing to be

21 eligible, if Defendants’ policies and practices are not enjoined. Hundreds of

22 thousands of DACA recipients are at risk of losing their deferred action if Defendants’

23 challenged practices are permitted to continue while the DACA program winds down

24 over the next two years. Indeed, Defendants themselves have conceded that USCIS

25 engages in a practice of automatically terminating DACA without notice or process,

26 based solely on the issuance of an NTA, without regard to whether the individual

27 remains eligible for DACA. See Thomas Decl. ¶ 4. Immigration authorities’

28 increased screening of DACA recipients, as well as the large number of already-

12

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1 identified class members, further supports the inference that there will be additional

2 class members in the future.

3

The presence of such future class members renders joinder inherently

4 impractical, thereby satisfying the purpose behind the numerosity requirement. See,

5 e.g, Ali v. Ashcroft, 213 F.R.D. 390, 408 (W.D. Wash. 2003), aff’d, 346 F.3d 873 (9th

6 Cir. 2003), vacated on other grounds, 421 F.3d 795 (9th Cir. 2005) (internal quotation

7 marks and citation omitted) (“[W]here the class includes unnamed, unknown future

8 members, joinder of such unknown individuals is impracticable and the numerosity

9 requirement is therefore met, regardless of class size.” (quoting Natl. Assn. of

10 Radiation Survivors v. Walters, 111 F.R.D. 595, 599 (N.D. Cal. 1986)); Smith v.

11 Heckler, 595 F. Supp. 1173, 1186 (E.D. Cal. 1984) (in injunctive relief cases,

12 “[j]oinder in the class of persons who may be injured in the future has been held

13 impracticable without regard to the number of persons already injured”); Hawker v.

14 Consovoy, 198 F.R.D. 619, 625 (D.N.J. 2001) (“The joinder of potential future class

15 members who share a common characteristic, but whose identity cannot be

16 determined yet is considered impracticable.”).

17

B. The Class Presents Common Questions of Law and Fact.

18

To satisfy commonality, Plaintiffs must show that “there are questions of law or

19 fact common to the class.” Fed. R. Civ. P. 23(a)(2). Rule 23(a)(2)’s commonality

20 requirement “has been construed permissively.” Preap v. Johnson, 303 F.R.D. 566,

21 585 (N.D. Cal. 2014), aff’d, 831 F.3d 1193 (9th Cir. 2016) (quoting Hanlon v.

22 Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)) (internal quotation marks

23 omitted). A plaintiff “need not show . . . that every question in the case, or even a

24 preponderance of questions, is capable of class wide resolution.” Parsons v.Ryan, 754

25 F.3d 657, 675 (9th Cir. 2014) (internal quotation marks and citation omitted). Rather,

26 even one shared legal issue can be sufficient. See, e.g., Mazza v. Am. Honda Motor

27 Co., Inc., 666 F.3d 581, 589 (9th Cir. 2012) (noting that “commonality only requires a

28 single significant question of law or fact”); Walters, 145 F.3d at 1046 (“What makes

13

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1 the plaintiffs’ claims suitable for a class action is the common allegation that the

2 INS’s procedures provide insufficient notice.”); Rodriguez v. Hayes, 591 F.3d 1105,

3 1122 (9th Cir. 2010) (“[T]he commonality requirement[] asks us to look only for

4 some shared legal issue or a common core of facts.”). Moreover, “[i]ndividual

5 variation among plaintiffs’ questions of law and fact does not defeat underlying legal

6 commonality, because ‘the existence of shared legal issues with divergent factual

7 predicates is sufficient’ to satisfy Rule 23.” Santillan v. Ashcroft, No. C 04-2686

8 MHP, 2004 WL 2297990, at *10 (N.D. Cal. Oct. 12, 2004) (quoting Hanlon, 150 F.3d

9 at 1019). The commonality standard is even more liberal in a civil rights suit like this

10 one, in which “the lawsuit challenges a system-wide practice or policy that affects all

11 of the putative class members.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir.

12 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499, 504-05

13 (2005).

14

Here, Plaintiffs’ lawsuit raises numerous legal questions common to the

15 proposed class,10 including:

16

• Whether Defendants’ practice of terminating DACA and work authorization

17

without notice, a meaningful explanation, or an opportunity to be heard violates

18

Defendants’ own rules for the DACA program and is therefore arbitrary and

19

capricious under the APA;

20

• Whether Defendants’ practice of revoking an existing grant of DACA and work

21

authorization without notice, a meaningful explanation, or an opportunity to be

22

heard is arbitrary and capricious and contrary to law in violation of the APA

23

because it fails to provide a good reason for the agency’s change in position;

24

• Whether Defendants’ practice of terminating DACA and work authorization

25

without notice, a meaningful explanation, or an opportunity to be heard violates

26

the Due Process Clause of the U.S. Constitution; and

27 10 Plaintiffs’ claims are described in greater detail in their Motion for a Classwide
28 Preliminary Injunction, filed this same date.

14

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1

• Whether Defendants’ practice of terminating DACA and work authorization

2

based solely on the issuance of an NTA charging the individual with unlawful

3

presence in the United States, is arbitrary and capricious under the APA

4

because it is based on arbitrary, irrelevant factors.

5

Any one of these common issues, standing alone, is enough to satisfy Rule

6 23(a)(2)’s permissive standard. See Perez-Olano v. Gonzalez, 248 F.R.D. 248, 257

7 (C.D. Cal. 2008) (“Courts have found that a single common issue of law or fact is

8 sufficient.”) (citation omitted); Sweet v. Pfizer, 232 F.R.D. 360, 367 (C.D. Cal. 2005)

9 (observing that “there must only be one single issue common to the proposed class”)

10 (quotation and citation omitted).

11

Plaintiffs and proposed class members also share a common core of facts: (1)

12 The determination of Plaintiffs’ and class members’ DACA is subject to the same

13 rules, namely the DACA Memo and SOPs; (2) Plaintiffs and proposed class members

14 all had their DACA terminated without notice, a meaningful explanation, or an

15 opportunity to respond; and (3) Plaintiffs and proposed class members do not have

16 any convictions that would disqualify them from the program.

17

Finally, Plaintiffs and proposed class members “have suffered the same injury,”

18 in that Defendants have terminated each of their DACA without notice, a meaningful

19 explanation, or an opportunity to be hear pursuant to the same unlawful policies or

20 practices. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (quoting Gen.

21 Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). Should the Court agree that

22 Defendants’ policies or practices violate the APA and/or the Due Process Clause, all

23 who fall within the class will benefit from the requested relief—a nationwide

24 injunction preventing the termination of their DACA pursuant to those practices.

25 Thus, a common answer as to the legality of the challenged policies and practices will

26 “drive the resolution of the litigation.” Ellis v. Costco Wholesale Corp., 657 F.3d 970,

27 981 (9th Cir. 2011) (quoting Wal-Mart, 564 U.S. at 350).

28

15

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1

Defendants may argue that Plaintiffs cannot satisfy commonality because the

2 agency’s decision to revoke DACA is based on particular facts and circumstances

3 unique to each recipient. But this argument would misconstrue and misapply the

4 commonality requirement. Instead, “[w]here the circumstances of each particular

5 class member vary but retain a common core of factual or legal issues with the rest of

6 the class, commonality exists.” Evon v. Law Offices of Sidney Mickell, 688 F.3d

7 1015, 1029 (9th Cir. 2012) (internal quotation marks and citation omitted); see also

8 Walters, 145 F.3d at 1046 (“Differences among the class members with respect to the

9 merits of their actual document fraud cases, however, are simply insufficient to defeat

10 the propriety of class certification. What makes the plaintiffs’ claims suitable for a

11 class action is the common allegation that the INS’s procedures provide insufficient

12 notice.”); Arnott, 290 F.R.D. at 586-87 (variation in business plans and investment

13 projects did not defeat certification in light of common question of permissibility of

14 retroactively applying new policy to those who “already received approval of I-526

15 petitions”). Moreover, any factual differences that may exist among Plaintiffs and

16 proposed class members are immaterial to their claims, which challenge Defendants’

17 common termination policies and practices as categorically violating the APA and the

18 Due Process Clause—not the agency’s ultimate exercise of discretion with respect to

19 each recipient. See Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982)

20 (rejecting defendants’ argument that certification was unwarranted because class

21 members’ suitability for relief was individualized where plaintiff challenged common

22 agency practice, not ultimate outcome of cases).

23

C. Typicality: Plaintiffs’ Claims Are Typical of Those of Other Class

24

Members.

25

Rule 23(a)(3) requires that “the claims or defense of the representative parties

26 [be] typical of the claims or defenses of the class.” The purpose of this requirement is

27 to “assure that the interest of the named representative aligns with the interests of the

28 class” as a whole. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992).

16

Case 5:17-cv-02048-PSG-SHK Document 39-1 Filed 12/29/17 Page 23 of 29 Page ID #:1190

1 “Under the rule’s permissive standards, representative claims are ‘typical’ if they are

2 reasonably coextensive with those of the absent class members.” Parsons, 754 F.3d at

3 685 (quoting Hanlon, 150 F.3d at 1020). “The test of typicality is ‘whether other

4 members have the same or similar injury, whether the action is based on conduct

5 which is not unique to the named plaintiffs, and whether other class members have

6 been injured by the same course of conduct.’” Id. (citation omitted). As with

7 commonality, factual differences among class members do not defeat typicality.

8 LaDuke v. Nelson, 762 F.2d 1318, 1332 (9th Cir. 1985) (“The minor differences in the

9 manner in which the representative’s Fourth Amendment rights were violated does not

10 render their claims atypical of those of the class.”)

11

Plaintiffs’ claims are typical of the claims of the proposed class. Each Plaintiff,

12 just like each proposed class members, had valid DACA and work authorization that

13 USCIS terminated without notice, a meaningful explanation, or an opportunity to be

14 heard, pursuant to Defendants’ unlawful policies or practices. Plaintiffs and class

15 members assert that such action was arbitrary and capricious under the APA and

16 violated the Due Process Clause. Any factual variations among Plaintiffs and

17 proposed class members in ways relevant to USCIS’s ultimate decision of whether to

18 terminate DACA do not defeat typicality because, as described above, Plaintiffs’

19 claims do not implicate such differences. See, e.g., Rodriguez, 591 F.3d at 1124 (“The

20 particular characteristics of the Petitioner or any individual detainee will not impact

21 the resolution of this general statutory question and, therefore, cannot render

22 Petitioner’s claim atypical.”).

23

D. Adequacy: Plaintiffs Will Adequately Protect the Interests of the

24

Proposed Class, and Plaintiffs’ Counsel Are More Than Qualified to

Litigate this Action.

25 Rule 23(a)(4) requires that “[t]he representative parties will fairly and

26 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Whether the

27 class representatives satisfy the adequacy requirement depends on ‘the qualifications

28 of counsel for the representatives, an absence of antagonism, a sharing of interests

17

Case 5:17-cv-02048-PSG-SHK Document 39-1 Filed 12/29/17 Page 24 of 29 Page ID #:1191

1 between representatives and absentees, and the unlikelihood that the suit is

2 collusive.’” Rodriguez, 591 F.3d at 1125 (citing Walters, 145 F.3d at 1046).

3

Plaintiffs’ counsel are deemed qualified when they can establish their

4 experiences in previous class actions and cases involving the same area of law. Lynch

5 v. Rank, 604 F. Supp. 30, 37 (N.D. Cal. 1984), aff’d 747 F.2d 528 (9th Cir. 1984),

6 amended on reh’g, 763 F.2d 1098 (9th Cir. 1985). Here, putative Class Counsel are

7 attorneys from the ACLU Immigrants’ Rights Project and ACLU of Southern

8 California. See Declaration of Jennifer Chang Newell (“Newell Decl.”).

9

Collectively, putative Class Counsel have extensive and diverse experience in

10 complex immigration cases and class action litigation, and Class Counsel also have

11 sufficient resources to litigate this matter to completion. Id. ¶¶ 2-27. Attorneys from

12 the ACLU Immigrants’ Rights Project and ACLU of Southern California have been

13 appointed class counsel and successfully litigated similar class action lawsuits in this

14 district and in courts across the country. Id.; see also, e.g., Rodriguez, 591 F.3d at

15 1111; Alfaro Garcia v. Johnson, No. 14-cv-1775, 2014 WL 6657591, at *15 (N.D.

16 Cal. 2014); Rivera v. Johnson, 307 F.R.D. 539 at 542-43 (W.D. Wa 2015); Franco-

17 Gonzales, 2011 WL 11705815, at *1; Preap, 303 F.R.D. at 570; Khoury v. Asher, 3 F.

18 Supp. 3d 877, 878 (W.D. Wash. 2014); RILR v. Johnson, 80 F. Supp. 3d 164, 181

19 (D.D.C. 2015).

20

Plaintiffs will fairly and adequately protect the interests of the proposed class,

21 and therefore are adequate class representatives. Plaintiffs do not seek any unique or

22 additional benefit from this litigation that may make their interests different from or

23 adverse to those of absent class members. Instead, Plaintiffs’ aim is to secure

24 injunctive relief that will protect themselves and the entire class from the Defendants’

25 challenged practices and enjoin the Defendants from further violations. See Arreola

26 Decl. ¶¶ 42-43; Gil Decl. ¶¶ 27-28; Moreira Decl. ¶ 23-24. Plaintiffs and Class

27 Counsel do not seek financial gain at the cost of absent class members’ rights.

28 Accordingly, Plaintiffs have demonstrated that they lack any antagonism with the

18

Case 5:17-cv-02048-PSG-SHK Document 39-1 Filed 12/29/17 Page 25 of 29 Page ID #:1192

1 class, that they share interests with proposed class members, and that no collusion is

2 present.

3

E. The Class Is Sufficiently Ascertainable.

4

Although the Ninth Circuit has not yet ruled whether the judicially implied

5 ascertainability requirement applies to classes certified under Rule 23(b)(2), other

6 circuits have found that it does not. See Shelton v. Bledsoe, 775 F.3d 554, 563 (3d

7 Cir. 2015) (“The nature of Rule 23(b)(2) actions, the Advisory Committee’s note on

8 (b)(2) actions, and the practice of many [] other federal courts all lead us to conclude

9 that ascertainability is not a requirement for certification of a (b)(2) class seeking only

10 injunctive and declaratory relief . . . .”); Shook v. El Paso Cnty., 386 F.3d 963, 972

11 (10th Cir. 2004) (“[M]any courts have found Rule 23(b)(2) well suited for cases where

12 the composition of the class is not readily ascertainable.”); Cole v. City of Memphis,

13 839 F.3d 530, 542 (6th Cir. 2016), cert. denied 137 S. Ct. 2220 (2017)

14 (“[A]scertainability is not an additional requirement for certification of a (b)(2) class

15 seeking only injunctive and declaratory relief.”); Yaffe v. Powers, 454 F.2d 1362,

16 1366 (1st Cir.1972) (no ascertainability requirement for Rule 23(b)(2) classes); see

17 also, e.g., In re Yahoo Mail Litig., 308 F.R.D. 577, 597 (N.D. Cal. 2015).

18

In any event, the proposed class is sufficiently ascertainable because it is

19 “administratively feasible” to ascertain whether an individual is a member. Greater

20 Los Angeles Agency on Deafness, Inc. v. Reel Servs. Mgmt. LLC, No. 13-cv-7172 PSG

21 (ASX), 2014 WL 12561074, at *5 (C.D. Cal. May 6, 2014) (Gutierrez, J.) (internal

22 quotation marks omitted) (finding ascertainable proposed class of individuals who are

23 deaf or hard of hearing and require closed captioning). Here, membership in the class

24 is defined by clear and objective criteria: (1) the individual’s DACA has been or will

25 be terminated without notice, a meaningful explanation, or an opportunity to

26 respond—that is, without the issuance of a Notice of Intent to Terminate and a

27 sufficient opportunity to respond to the reason for termination and (2) the individual

28 has not been convicted of any disqualifying crime as set forth in the DACA Memo

19

Case 5:17-cv-02048-PSG-SHK Document 39-1 Filed 12/29/17 Page 26 of 29 Page ID #:1193

1 and SOPs. See supra at 3. This definition is “‘precise, objective, and presently

2 ascertainable.’” O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal.

3 1998) (observing that class definitions of actions maintained under Rule 23(b)(2)

4 command less precision than actions for damages requiring notice to the class); see

5 also, e.g., Lamumba Corp. v. City of Oakland, No. 05-cv-2712 MHP, 2007 WL

6 3245282, at *4 (N.D. Cal. Nov. 2, 2007) (“Plaintiffs putative class is based on the

7 objective factors of business ownership, race, and indebtedness to the City, and

8 therefore is sufficiently defined.”). The fact that some administrative process may be

9 required to identify class members does not undermine ascertainability. See, e.g.,

10 Moreno v. Napolitano, No. 11-cv-5452, 2014 WL 4911938, at *6-7 (N.D. Ill. Sept.

11 30, 2014) (finding that the necessity of manually reviewing tens of thousands of

12 detainer forms to identify class members did not undermine ascertainability) (citing

13 Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 539 (6th Cir. 2012)). This is

14 particularly true here, where USCIS keeps detailed records regarding DACA

15 terminations, see Kwon Decl. ¶ 21, Ex. 20 at 138 (instructing adjudicators to update

16 systems), and routinely evaluates whether DACA recipients have disqualifying

17 convictions. See Dunnigan v. Metro. Life Ins. Co., 214 F.R.D. 125, 136 (S.D.N.Y.

18 2003) (holding that even a slow and burdensome process for identifying class

19 members would not defeat the ascertainability requirement). Moreover, Plaintiffs

20 have proposed a practical process for implementing the requested preliminary

21 injunction, which includes a procedure for identifying class members whose DACA

22 USCIS has already unlawfully revoked. See Pls.’ PI Proposed Order.

23 II. This Action Satisfies the Requirements of Rule 23(b)(2).

24

In addition to satisfying the four requirements of Rule 23(a), Plaintiffs also

25 must meet one of the subsections of Rule 23(b). Certification of a class under Rule

26 23(b)(2) requires that “the party opposing the class has acted or refused to act on

27 grounds that apply generally to the class, so that final injunctive relief or

28

20

Case 5:17-cv-02048-PSG-SHK Document 39-1 Filed 12/29/17 Page 27 of 29 Page ID #:1194

1 corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.

2 R. Civ. P. 23(b)(2).

3

In the Ninth Circuit, “‘[i]t is sufficient’ to meet the requirements of Rule

4 23(b)(2) [when] ‘class members complain of a pattern or practice that is generally

5 applicable to the class as a whole.’” Rodriguez, 591 F.3d at 1125 (quoting Walters,

6 145 F.3d at 1047); Lyon v. U.S. Immigration & Customs Enf’t, 308 F.R.D. 203, 213

7 (N.D. Cal. 2015) (injunctive or declaratory relief under Rule 23(b)(2) is appropriate

8 when “the party opposing the class has acted or refused to act on grounds that apply

9 generally to the class”) (internal quotation marks omitted). Indeed, Rule “23(b)(2)

10 was adopted in order to permit the prosecution of civil rights actions” like this one.

11 Walters, 145 F.3d at 1047; Rodriguez, 591 F.3d at 1126 (finding that class of non-

12 citizens detained during immigration proceedings met Rule 23(b)(2) criteria because

13 “all class members’ [sought] the exact same relief as a matter of statutory or, in the

14 alternative, constitutional right”).

15

Importantly, “[t]he rule does not require [the court] to examine the viability or

16 bases of class members’ claims for declaratory and injunctive relief, but only to look

17 at whether class members seek uniform relief from a practice applicable to all of

18 them.” Rodriguez, 591 F.3d at 1125. “‘The key to the (b)(2) class is the indivisible

19 nature of the injunctive or declaratory remedy warranted—the notion that the conduct

20 is such that it can be enjoined or declared unlawful only as to all of the class members

21 or as to none of them.’” Lyon, 308 F.R.D. at 213 (quoting Wal-Mart Stores, 131 S.Ct.

22 at 2557).

23

Rule 23(b)(2)’s requirements are plainly met. Here, Plaintiffs ask the Court to

24 declare Defendants’ termination policies and practices, which have impacted Plaintiffs

25 and proposed class members, to be unlawful and to enjoin USCIS from: (1) enforcing

26 the termination of DACA and related work authorization for Plaintiffs and class

27 members whose DACA USCIS has already unlawfully terminated and (2) terminating

28 DACA grants and work authorization in the future based solely on the issuance of an

21

Case 5:17-cv-02048-PSG-SHK Document 39-1 Filed 12/29/17 Page 28 of 29 Page ID #:1195

1 NTA charging unlawful presence or otherwise absent a fair procedure that complies

2 with the agency’s rules, including notice, a reasoned explanation, and an opportunity

3 to be heard prior to termination. See Pls.’ PI Proposed Order.

4

This relief would benefit Plaintiffs as well as all members of the proposed

5 classes in the same fashion. No individual class member would be entitled to a

6 different injunction or declaratory judgment. The requested relief would address these

7 policies or practices in a single stroke, and thus the proposed class plainly warrants

8 certification under Rule 23(b)(2). See Parsons, 754 F.3d at 689 (finding declaratory

9 and injunctive relief proper as to the whole class where “every [member] in the

10 proposed class is allegedly suffering the same (or at least a similar) injury and that

11 injury can be alleviated for every class member by uniform changes in . . . policy and

12 practice”); Rodriguez, 591 F.3d at 1126 (certifying class of immigrant detainees under

13 Rule 23(b)(2) where “relief from a single practice is requested by all class members”).

14

Given the nature of Plaintiffs’ claims, which challenge USCIS’s centralized and

15 uniform DACA termination practices, class certification should be nationwide.

16 Defendants have indicated that USCIS has a practice of automatically terminating

17 individual DACA grants, without process. See Thomas Decl. ¶ 4. Plaintiffs have

18 identified at least 17 examples of Defendant’s unlawful DACA terminations from

19 various states around the country (including Texas, Louisiana, Georgia, Minnesota,

20 South Dakota, North Carolina, New Jersey, and California). See Eiland Decl. ¶¶ 2-14.

21 And given the nationwide scope and scale of the program, there are nearly 700,000

22 DACA recipients in all 50 states who are potentially at risk of having their DACA

23 unlawfully terminated pursuant to Defendants’ practices. Id. ¶ 48, Ex. 33.

24 Certification that is not nationwide in scope would result in Defendants continuing to

25 apply an unlawful policy to DACA recipients simply by virtue of their geographic

26 location. Such piecemeal relief would lead to arbitrary and unjust results. See

27 Gorbach v. Reno, 181 F.R.D. 642, 644 (W.D. Wash. 1998), aff’d, 219 F.3d 1087 (9th

28 Cir. 2000) (holding certification of a nationwide class was particularly fitting because

22

Case 5:17-cv-02048-PSG-SHK Document 39-1 Filed 12/29/17 Page 29 of 29 Page ID #:1196

1 “anything less [than] a nationwide class would result in an anomalous situation

2 allowing the INS to pursue denaturalization proceedings against some citizens, but not

3 others, depending on which district they reside in”).

4

Because Plaintiffs and proposed class members all have suffered or will suffer

5 the same statutory and constitutional violations as a result of the government’s

6 challenged practices or policies, and because they seek singular injunctive and

7 corresponding declaratory relief that remedy those injuries, the Court should certify

8 the class under Rule 23(b)(2).

9

CONCLUSION

10

Plaintiffs respectfully requests that the Court grant this Motion and enter an

11 order certifying the proposed class under Rule 23(b)(2); appoint Plaintiffs as Class

12 Representatives; and appoint the Plaintiffs’ Counsel from ACLU Immigrants’ Rights

13 Project and the ACLU of Southern California as Class Counsel.

14

15 Dated: December 29, 2017

Respectfully submitted,

16

/s/ Katrina L. Eiland

17

Katrina L. Eiland

18

Jennifer Chang Newell

Michael K. T. Tan*

19

David Hausman*

20

ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT

21

22

Ahilan T. Arulanantham

Michael Kaufman

23

Dae Keun Kwon

24

ACLU FOUNDATION

OF SOUTHERN CALIFORNIA

25

26

Attorneys for Plaintiffs

27

*Admitted pro hac vice

28

23

Case 5:17-cv-02048-PSG-SHK Document 39-2 Filed 12/29/17 Page 1 of 3 Page ID #:1197

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)
13

14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

15

16 INLAND EMPIRE – IMMIGRANT

)

YOUTH COLLECTIVE, et al., on behalf ) Case No. 5:17-cv-02048-PSG-SHK

17 of themselves and others similarly situated, )

)

18

Plaintiffs,

)

19

v.

20 KIRSTJEN NIELSEN, Secretary, U.S. Department of Homeland Security, et al.,

) ) ) ) )

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

21 Defendants.
22
23

)

) ) ) ) )

Judge: Hon. Philip S. Gutierrez Courtroom: 6A Hearing: February 26, 2018 Time: 1:30 p.m.

24

)

)

25

)

)

26

27

28

Case 5:17-cv-02048-PSG-SHK Document 39-2 Filed 12/29/17 Page 2 of 3 Page ID #:1198
1 Ahilan T. Arulanantham (SBN 237841) aarulanantham@aclusocal.org
2 Michael Kaufman (SBN 254575) mkaufman@aclusocal.org
3 Dae Keun Kwon (SBN 313155) akwon@aclusocal.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
5 Los Angeles, CA 90017 Telephone: (213) 977-5232
6 Facsimile: (213) 977-5297 7
Attorneys for Plaintiffs 8
* Admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-PSG-SHK Document 39-2 Filed 12/29/17 Page 3 of 3 Page ID #:1199

1

[PROPOSED] ORDER

2 The Court has considered the parties’ briefing, evidence, arguments, and

3 authorities cited in support of their positions. Upon due consideration, it is hereby

4 ORDERED that Plaintiffs’ Motion for Class Certification is GRANTED.

5

The Court finds that Plaintiffs have satisfied Federal Rule of Civil Procedure

6 23(a)’s requirements of numerosity, commonality, typicality, and adequacy of

7 representation and that class certification is appropriate under Federal Rule of Civil

8 Procedure 23(b)(2). The Court certifies the following Notice class:

9

All recipients of Deferred Action for Childhood Arrivals (“DACA”)

10

who, after January 19, 2017, have had or will have their DACA grant

11

and employment authorization revoked without notice or an

12 opportunity to respond, even though they have not been convicted of a

13 disqualifying criminal offense.

14 It is further ORDERED that Jesús Alonso Arreola Robles, José Eduardo Gil

15 Robles, and Ronan Carlos De Souza Moreira, on behalf of themselves and others

16 similarly situated, are appointed as representatives of a class pursuant to Rules 23(a)

17 and 23(b)(2) of the Federal Rules of Civil Procedure.

18 It is further ORDERED that the Court appoints as class counsel the lawyers for

19 the American Civil Liberties Union (“ACLU”) Foundation Immigrants’ Rights Project

20 and the ACLU Foundation of Southern California.

21 IT IS SO ORDERED.

22

23 Dated: _____________, 2018 By: ____________________________________

24

THE HONORABLE PHILIP S. GUTERREZ

UNITED STATES DISTRICT JUDGE

25

26

27

28

1

Case 5:17-cv-02048-PSG-SHK Document 39-3 Filed 12/29/17 Page 1 of 13 Page ID #:1200

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)
13

14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

15

16 INLAND EMPIRE – IMMIGRANT

) Case No. 5:17-cv-2048-PSG-SHK

YOUTH COLLECTIVE, et al., on behalf )

17 of themselves and others similarly situated, )

)

18

Plaintiffs,

)

) DECLARATION OF JENNIFER

19

v.

) CHANG NEWELL, ESQ. IN

) SUPPORT OF PLAINTIFFS’

20 KIRSTJEN NIELSEN, Secretary, U.S. ) MOTION FOR CLASS Department of Homeland Security; et al., ) CERTIFICATION

21

)

Defendants.

)

22 23 24

) ) ) ) )

Judge: Hon. Philip S. Gutierrez Courtroom: 6A Hearing: February 26, 2018 Time: 1:30 p.m.

)

25

)

)

26

27

28

Case 5:17-cv-02048-PSG-SHK Document 39-3 Filed 12/29/17 Page 2 of 13 Page ID #:1201
1 Ahilan T. Arulanantham (SBN 237841) aarulanantham@aclusocal.org
2 Michael Kaufman (SBN 254575) mkaufman@aclusocal.org
3 Dae Keun Kwon (SBN 313155) akwon@aclusocal.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
5 Los Angeles, CA 90017 Telephone: (213) 977-5232
6 Facsimile: (213) 977-5297 7
Attorneys for Plaintiffs 8
* Admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-PSG-SHK Document 39-3 Filed 12/29/17 Page 3 of 13 Page ID #:1202

1

I, JENNIFER CHANG NEWELL, declare and state as follows:

2 1. I am duly licensed to practice law in the State of California and am a Managing

3 Attorney with the American Civil Liberties Union (“ACLU”) Immigrants’ Rights

4 Project (“IRP”). I am counsel of record for Plaintiffs Inland Empire-Immigrant Youth

5 Collective, Jesús Alonso Arreola Robles, José Eduardo Gil Robles, and Ronan Carlos

6 De Souza Moreira in the above-entitled action. I have knowledge of the facts set forth

7 herein, and if called upon to testify as a witness thereto, I could and would

8 competently do so under oath.

9 2. I have been practicing law as an attorney with ACLU IRP since 2004. IRP is a

10 project of the national legal department of the ACLU. I have been admitted to practice

11 in California and have been admitted to the bars of the U.S. Supreme Court, the U.S.

12 Courts of Appeals for the Second, Third, Fifth, Eighth, Ninth, Tenth, and District of

13 Columbia Circuits, and the U.S. District Courts for the Northern, Central, and

14 Southern Districts of California, as well as the Eastern District of Michigan. I am a

15 2003 graduate of Stanford Law School, where I was a member of the Order of the

16 Coif. From 2003 to 2004, I served as law clerk to the Honorable Marsha S. Berzon of

17 the U.S. Court of Appeals for the Ninth Circuit. Previously, I was a Skadden Fellow at

18 IRP from 2004 to 2006, before becoming a member of IRP’s permanent staff. I was

19 named one of the National Asian Pacific American Bar Association’s Best Lawyers

20 Under 40 in 2014, and I am the 2013 recipient of Stanford Law School’s Miles Rubin

21 Public Interest Award. In January 2017, I was selected to serve a three-year term as a

22 Ninth Circuit Appellate Lawyer Representative. I have published articles on the rights

23 of undocumented immigrants and housing discrimination in the Hofstra Labor &

24 Employment Law Journal, California Labor & Employment Law Review, and

25 Stanford Law Review.

26 3. I am an expert on legal and policy issues related to the Deferred Action for

27 Childhood Arrivals (“DACA”) program. I am counsel in Colotl v. Duke, No. 17-1670,

28 2017 WL 2889681 (N.D. Ga. June 12, 2017), a lawsuit challenging the arbitrary

1

Case 5:17-cv-02048-PSG-SHK Document 39-3 Filed 12/29/17 Page 4 of 13 Page ID #:1203
1 revocation of an individual’s DACA status and employment authorization. I also serve 2 as counsel in Arizona Dream Act Coalition v. Brewer, 855 F.3d 957 (9th Cir. 2017), a 3 legal challenge to Arizona’s policy denying drivers’ licenses to DACA recipients, and 4 served as counsel in One Michigan v. Johnson, 2:12-cv-15551 (filed E.D. Mi. Dec. 19, 5 2012), a legal challenge to a similar policy in Michigan. In Arizona Dream Act 6 Coalition, we obtained a permanent injunction against Arizona’s discriminatory 7 driver’s license policy, potentially benefitting over 25,000 DACA recipients residing 8 in Arizona. 9 4. I am also an expert on federal court jurisdiction in immigration cases. My 10 jurisdictional cases have included Luna v. Holder, 637 F.3d 85 (2d Cir. 2011) (court11 appointed amicus in pro se case involving federal court jurisdiction over untimely 12 appeal caused by ineffective assistance of counsel); Thompson v. Holder, 637 F.3d 85 13 (2d Cir. 2011) (court-appointed amicus in pro se case involving federal court 14 jurisdiction over noncitizen’s claim that federal government interference precluded 15 timely filing of his appeal); Castro et al. v. Dep’t of Homeland Security (3d Cir. No. 16 16-1339, E.D. Penn. No. 5-15-cv-06153) (consolidated habeas petitions on behalf of 17 28 Central American families seeking judicial review of expedited removal orders); 18 Ramadan v. Gonzales 479 F.3d 646 (9th Cir. 2007) (judicial review of removal 19 orders) (amicus); and Chen v. Gonzales, 471 F.3d 315 (2d Cir. 2006) (judicial review 20 of removal orders) (amicus). I have also served as faculty on the topic of immigration 21 jurisdiction for the Federal Judiciary Center’s National Seminar for Appellate Staff 22 Attorneys. 23 5. In my over 13 years’ of practice as a lawyer, I have served as counsel in 24 numerous other complex cases involving immigrants’ rights. For example, I served as 25 nationwide class co-counsel in Orantes-Hernandez v. Gonzales, Nos. 07-56509, 0826 55231, 321 Fed. Appx. 625, 2009 WL 905454 (9th Cir. April 6, 2009), in which I 27 successfully helped defeat the federal government’s motion to dissolve a nationwide 28 injunction benefitting a class of Salvadoran asylum seekers detained by immigration
2

Case 5:17-cv-02048-PSG-SHK Document 39-3 Filed 12/29/17 Page 5 of 13 Page ID #:1204
1 authorities. See also Orantes-Hernandez v. Gonzales, 504 F.Supp.2d 825 (C.D. Cal. 2 2007). My other cases have included Morales v. Chadbourne, 235 F.Supp.3d 388 (D. 3 R.I. 2017) (won summary judgment in Fourth Amendment challenge to detention of 4 U.S. citizen based on an immigration detainer); Utah Coalition of La Raza et al. v. 5 Herbert, 26 F. Supp. 3d 1125 (D. Utah 2014) (won preliminary injunction in 6 constitutional challenge to state anti-immigrant law); Lozano v. City of Hazleton, 724 7 F.3d 297 (3d Cir. 2013) (won permanent injunction in constitutional challenge to local 8 immigration-related employer sanctions and housing ordinance); Villas at Parkside 9 Partners v. City of Farmers Branch, 726 F.3d 524 (5th Cir. 2013) (en banc) (won 10 permanent injunction in constitutional challenge to local immigration-related housing 11 ordinance); AFL-CIO v. Chertoff, 552 F. Supp. 2d 999 (N.D. Cal. 2007) (won 12 preliminary injunction against Department of Homeland Security Social Security “no13 match” regulation); Buck v. Stankovic 485 F. Supp. 2d 576 (M.D. Pa. 2007) (won 14 preliminary injunction in due process and Equal Protection challenge to denial of 15 marriage license to an undocumented immigrant and his U.S. citizen fiancée). 16 6. Through these cases and others, I have come to have distinctive knowledge and 17 specialized skill in the area of immigrants’ rights litigation in the federal courts. 18 7. Michael Tan has worked as a Staff Attorney at IRP since 2012. He is admitted 19 in to practice in New York and has been admitted to the bars of the U.S. Supreme 20 Court, the U.S. Courts of Appeals for the First, Third, Ninth, Tenth, and Eleventh 21 Circuits, and the U.S. District Courts for the Eastern District of Michigan and 22 Northern District of California. He graduated from Yale Law School in 2008 and 23 served as a Law Clerk to the Honorable M. Margaret McKeown, U.S. Court of 24 Appeals for the Ninth Circuit, from 2009 to 2010. Previously, he was a Skadden 25 Fellow at IRP from 2010 to 2012 and a Liman Fellow at IRP from 2008 to 2009. In 26 2014, Mr. Tan was named a California Lawyer of the Year in immigration law. In 27 2016, he was awarded a Best Lawyers Under 40 Award by the National Asian Pacific 28
3

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1 American Bar Association. He was also named a Best LGBT Lawyer Under the Age 2 of 40 by the National LGBT Bar Association in 2017. 3 8. Mr. Tan is an expert on legal and policy issues related to the Deferred Action 4 for Childhood Arrivals (“DACA”) program. He is co-counsel in Colotl v. Duke, No. 5 17-1670, 2017 WL 2889681 (N.D. Ga. June 12, 2017); and Arizona Dream Act 6 Coalition v. Brewer, 855 F.3d 957 (9th Cir. 2017); and served as co-counsel in One 7 Michigan v. Johnson, 2:12-cv-15551 (filed E.D. Mi. Dec. 19, 2012), all cases 8 involving DACA, as discussed above. 9 9. Mr. Tan additionally has co-counselled numerous class action lawsuits on 10 behalf of immigrants, including Rodriguez v. Robbins, No. 07-03239-TJH-E (C.D. 11 Cal), 591 F.3d 1105 (9th Cir. 2010), 715 F.3d 1127 (9th Cir. 2013), 804 F.3d 1060 12 (9th Cir. 2015), cert. granted Jennings v. Rodriguez, 136 S.Ct. 2489 (2016) 13 (challenging the prolonged detention without bond hearings of immigrants held in the 14 Central District of California pending completion of their removal cases); Hernandez 15 v. Sessions, EDCV 16-00620-JGB (KKx), 2016 WL 7116611 (C.D. Cal. Nov. 10, 16 2016), 872 F.3d 976 (9th Cir. 2017) (challenging the detention of immigrants based 17 on a lack of financial resources in the Central District of California); Gayle v. 18 Johnson, 4 F. Supp. 3d 692 (D.N.J. 2014), 81 F. Supp. 3d 371 (D.N.J. 2015), 838 F.3d 19 297 (3d Cir. 2016) (challenging the mandatory detention of individuals with 20 substantial challenges to removal in New Jersey); RILR v. Johnson, 80 F. Supp. 3d 21 164 (D.D.C. 2015) (nationwide class action challenging detention of migrant families 22 seeking asylum based on general deterrence); Rivera v. Holder, 307 F.R.D. 539 (W.D. 23 Wa. 2015) (class action challenging immigration court’s failure to consider detainees 24 for release on recognizance); Khoury v. Asher, 3 F. Supp. 3d 877 (W.D. Wash. 2014) 25 (challenging the mandatory detention of immigrants in the Western District of 26 Washington who were not taken into immigration custody upon their release from 27 criminal custody); Gordon v. Johnson, 300 F.R.D. 31 (D. Mass. 2014) (same, for 28 immigrants detained in Massachusetts); Preap v. Johnson, 303 F.R.D. 566 (N.D. Cal.
4

Case 5:17-cv-02048-PSG-SHK Document 39-3 Filed 12/29/17 Page 7 of 13 Page ID #:1206
1 2014), 831 F.3d 1193 (9th Cir. 2016) (same, for immigrants detained in California); 2 Reid v. Donelan, 297 F.R.D. 185 (D. Mass. 2014), 22 F. Supp. 3d 84 (D. Mass. 2014), 3 819 F.3d 486 (1st Cir. 2016) (challenging prolonged mandatory detention of 4 immigrants held in Massachusetts); Alli v. Decker, No. 4:09-cv-00698-JEJ-SF (M.D. 5 Pa), 644 F. Supp. 2d 535 (M.D. Pa. 2009), 650 F.3d 1007 (3d Cir. 2011) (same, for 6 immigrants held in Pennsylvania). 7 10. Through these cases and others, Mr. Tan has come to have distinctive 8 knowledge and specialized skill in the area of immigrants’ rights litigation in the 9 federal courts and class action litigation in particular. 10 11. Katrina Eiland is a Staff Attorney with IRP based in San Francisco, 11 California. Ms. Eiland litigates cases and engages in advocacy to protect the civil 12 rights of immigrant communities. Ms. Eiland is a member of the California State Bar 13 and is admitted to practice in the U.S. District Court for the Northern District of 14 California, the U.S. District Court for the Central District of California, and the U.S. 15 Court of Appeals for the Ninth Circuit. 16 12. Ms. Eiland received her J.D. from Stanford Law School in 2010 and her B.A. 17 from the University of California, Los Angeles, in 2003. Following a year-long 18 clerkship with the Honorable Keith P. Ellison of the United States District Court for 19 the Southern District of Texas, Ms. Eiland was first a Civil Rights Fellow and then an 20 associate at the civil rights firm of Goldstein, Borgen, Dardarian & Ho, where she 21 litigated complex wage and hour, employment discrimination, disability access, and 22 voting rights cases. Ms. Eiland was also an associate at Outten & Golden LLP from 23 May 2014 until she joined the IRP in March 2017. At Outten & Golden, Ms. Eiland 24 represented employees in wage and hour and discrimination class actions. 25 13. Through this work, Ms. Eiland has developed particular expertise in litigating 26 class actions, including on behalf of the immigrant community. She has served as co27 counsel in more than a dozen putative class actions in federal courts around the 28 country, including the following: Moussouris v. Microsoft Corp., No. 15-cv-01483
5

Case 5:17-cv-02048-PSG-SHK Document 39-3 Filed 12/29/17 Page 8 of 13 Page ID #:1207
1 (W.D. Wash.) (putative gender discrimination class action); Vasquez v. USM Inc., No. 2 13-cv-05449 (N.D. Cal.) (wage and hour putative class action on behalf of low-wage 3 immigrant workers); Juarez v. The Northwestern Mutual Life Insurance Company, 4 Inc., No. 14-cv-05107 (S.D.N.Y.) (Section 1981 discrimination case on behalf of 5 DACA recipients denied employment). 6 14. In 2017, Ms. Eiland was selected as a “Rising Star for Northern California” by 7 Super Lawyers. She also received the ACLU of Southern California’s 2014 Voting 8 Rights Award for her work representing Latino residents in the City of Anaheim under 9 the California Voting Rights Act. 10 15. At IRP, Ms. Eiland litigates complex immigrants’ rights cases. For example, 11 she is currently co-counsel in Colotl v. Kelly, No. 17-cv-01670 (N.D. Georgia), 12 Arizona Dream Act Coalition v. Brewer, 855 F.3d 957 (9th Cir. 2017), and Ortega 13 Melendres v. Maricopa Cty., Case No. 16-16661 (9th Cir.) (appeal from injunction in 14 class action challenging local sheriff’s pattern and practice of racial profiling Latinos 15 in Maricopa County, Arizona). 16 16. Ms. Eiland has presented on various topics related to civil rights litigation, 17 including combatting named plaintiff pick-off tactics to prevent class action mootness 18 and class action waivers in arbitration agreements. 19 17. David Hausman graduated from Stanford Law School in 2015 and clerked for 20 the Honorable Stephen F. Williams on the U.S. Court of Appeals for the D.C. Circuit. 21 He is currently a Skadden Fellow at the IRP. He is a member of the New York Bar 22 and is admitted to practice in the Ninth Circuit. Mr. Hausman has experience with 23 complex immigration matters, including among others, International Refugee 24 Assistance Project v. Trump, 137 S. Ct. 2080 (2017) (challenging the 2017 Executive 25 Order instituting a travel ban from Muslim-majority countries), and Rodriguez v. 26 Swartz, No. 15-16410 (9th Cir.) (Bivens action seeking damages for cross-border 27 shooting, currently pending before the Ninth Circuit). 28
6

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1 18. Mr. Hausman also has experience with DACA matters and class actions. He is 2 co-counsel in Colotl v. Duke, No. 17-1670, 2017 WL 2889681 (N.D. Ga. June 12, 3 2017), and his Skadden Fellowship project focuses on the intersection of immigration 4 and education. He is currently part of the litigation team in Hernandez v. Sessions, No. 5 16-620, 2016 WL 7116611 (C.D. Cal. Nov. 11, 2016), a class action lawsuit 6 challenging the immigration authorities’ failure to consider ability to pay in setting 7 immigration bonds. Before joining the ACLU, he also served as a consulting expert 8 for the ACLU on several class actions, contributing statistical analyses. 9 19. Ahilan Arulanantham is the Director of Advocacy/Legal Director of the 10 ACLU of Southern California. Mr. Arulanantham graduated from Yale Law School in 11 1999, after which he served as a law clerk to the Honorable Stephen Reinhardt. He 12 then worked for two years as an Equal Justice Works Fellow and attorney for the 13 ACLU Immigrants’ Rights Project in New York, practiced as an assistant Federal 14 Public Defender in the Western District of Texas for two years, and then came to work 15 at the ACLU of Southern California in June 2004. He is a member of the Bar of the 16 State of California, and also a member of the Bar of the State of New York, is 17 admitted to practice before several federal courts, including the Supreme Court of the 18 United States, the U.S. Court of Appeals for the Ninth Circuit, and the U.S. Court of 19 Appeals for the Fifth Circuit. 20 20. Mr. Arulanantham has extensive experience working on immigrants’ rights 21 cases. For example, he was lead counsel in Nadarajah v. Gonzales, 443 F.3d 1069 22 (9th Cir. 2006) (granting habeas petition and ordering release of refugee detained 23 indefinitely as a national security threat); co-lead counsel in Hamdan v. Gonzales, 24 Case No. 2:05-cv-5144-TJH-JWJ (C.D. Cal. 2005) (holding that no statute authorized 25 prolonged immigration detention of non-citizen on national security grounds, despite 26 his having been given a bond hearing); one of the attorneys of record in INS v. St. Cyr, 27 533 U.S. 289 (2001) (upholding habeas corpus jurisdiction to review immigration 28 claims); and in Kar v. Bush, Case No. 1:05-01348-JR (D.D.C. 2005) (challenging
7

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1 extra-territorial detention without judicial review of United States citizen of Iranian 2 origin) (voluntarily dismissed after petitioner’s release); and served as lead counsel for 3 amici ACLU and the ACLU of Southern California in Muehler v. Mena, 544 U.S. 93 4 (2005) (upholding brief detention of noncitizen during raid of house against Fourth 5 Amendment challenge). 6 21. Mr. Arulanantham is also an experienced class action litigator. He has served as 7 lead counsel in a class action lawsuit challenging the prolonged detention of 8 immigrants without bond hearings, Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 9 2015), cert. granted, Jennings v. Rodriguez, 136 S.Ct. 2489 (2016); co-lead counsel in 10 a class action challenging the lack of appointed legal representatives for immigrants 11 with serious mental disabilities, Franco-Gonzalez v. Holder, Case No. 2:10-0221112 DMG-DTB (C.D. Cal. 2011), 2011 U.S. Dist. LEXIS 158130 (C.D. Cal. Nov. 21, 13 2011) (granting class certification) and 2013 U.S. Dist. LEXIS 186258 (C.D. Cal. 14 Apr. 23, 2013) (granting permanent injunction ordering the government to provide 15 free legal representation to immigrants with serious mental disabilities); co-lead 16 counsel in a class action against the federal government challenging the use of forcible 17 drugging in effectuating removal orders, Diouf v. Chertoff, Case No. 2:07-3977-TJH18 CT (C.D. Cal. 2007); lead counsel in a group action challenging the unlawful practice 19 of denying access to counsel for people at immigration interviews, National Lawyers’ 20 Guild v. Chertoff, Case No. 2:08-1000-GW-SH (C.D. Cal. 2008); and co-lead counsel 21 in a class action challenging unlawful conditions of confinement at an immigration 22 detention center in Los Angeles, Castellano v. Napolitano, Case No. 2:09-cv-228123 PA-VBK (C.D. Cal. 2009). 24 22. Mr. Arulanantham was named California Lawyer of the Year in 2007 in the 25 area of Immigration Law for his work in the Nadarajah case, and again in 2014 for his 26 work in the Rodriguez class action litigation. In 2007, 2008, 2009, 2012 and 2013, Mr. 27 Arulanantham was named by the Daily Journal as one of the Top 100 most influential 28 lawyers in California for his work in the immigrants’ rights area. In 2010, he was
8

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1 awarded the Arthur C. Helton Human Rights Award by the American Immigration 2 Lawyers’ Association for his work concerning immigrants’ rights. Most recently, in 3 2014, Mr. Arulanantham was awarded the American Immigration Lawyers’ 4 Association Jack Wasserman Memorial Award for Excellence in Litigation in the 5 Field of Immigration Law for his work in the Franco litigation. In 2016, Mr. 6 Arulanantham was awarded a MacArthur Foundation fellowship. 7 23. Michael Kaufman is an attorney with the ACLU of Southern California. He 8 graduated with distinction from Stanford Law School in 2007. Following graduation, 9 he served as a law clerk to the Honorable Sidney Thomas of the Ninth Circuit Court of 10 Appeals. From 2008 to 2010, Michael Kaufman was a Skadden Fellow at the 11 Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, where he 12 worked on immigrants’ rights and workers’ rights issues. Mr. Kaufman joined the 13 staff of the ACLU of Southern California in 2010. He is a member of the Bar of the 14 State of California, and is admitted to practice before several federal courts, including 15 the Northern District of California, the Central District of California and the United 16 States Court of Appeals for the Ninth Circuit. 17 24. Mr. Kaufman has substantial experience litigating cases involving immigrants’ 18 rights. He has represented immigrants in a number of cases raising complex legal 19 issues. For example, he serves or has served as co-lead counsel in Santiago, et. al v. 20 City of Los Angeles, et. al, Case No. 2:15-cv-08444-BRO (C.D. Cal. 2015) 21 (challenging the seizure and destruction of street vendors’ property on constitutional 22 and statutory grounds); lead counsel in Molina-de La Villa v. Holder, No. 12-73462 23 (9th Cir. 2014) (seeking to establish the right to collaterally attack a removal order 24 based on subsequent judicial decision); lead counsel in Ali, et al. v. Holder, et al., 25 Case No. 2:11-cv-4503-AHM-SP (C.D. Cal. 2010) (challenging the revocation of a 26 visa in retaliation for client’s exercise of his right to counsel); and counsel in Comite 27 de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936 (9th Cir. 28
9

Case 5:17-cv-02048-PSG-SHK Document 39-3 Filed 12/29/17 Page 12 of 13 Page ID #:1211
1 2011) (en banc) (striking down ordinance targeting day laborers on First Amendment 2 grounds). 3 25. In addition to these cases, Mr. Kaufman has been involved in cases addressing 4 systemic issues in the federal immigration system through class actions. He is counsel 5 in several class actions challenging federal immigration policies in the detention 6 context. See Rodriguez v. Robbins, No. 07-03239-TJH-E (C.D. Cal), 591 F.3d 1105 7 (9th Cir. 2010), 715 F.3d 1127 (9th Cir. 2013), 804 F.3d 1060 (9th Cir. 2015), cert. 8 granted Jennings v. Rodriguez, 136 S.Ct. 2489 (2016) (challenging the prolonged 9 detention without bond hearings of immigrants held in the Central District of 10 California pending completion of their removal cases); Hernandez v. Sessions, EDCV 11 16-00620-JGB (KKx), 2016 WL 7116611 (C.D. Cal. Nov. 10, 2016), 872 F.3d 976 12 (9th Cir. 2017) (challenging the detention of immigrants based on a lack of financial 13 resources in the Central District of California). In 2014, Mr. Kaufman was named 14 California Lawyer of the Year for his work on Rodriguez. He also served as lead 15 counsel in a nationwide class action challenging unlawful delays in the processing of 16 detained asylum seekers’ cases. See Alfaro Garcia v. Johnson, Case No. 4:14-cv17 1775-YGR (N.D. Cal. 2014). In 2016, Mr. Kaufman was named California Lawyer of 18 the Year for his work on Alfaro Garcia. 19 26. Dae Keun Kwon graduated from UCLA School of Law in 2016 and is an 20 attorney and the Equal Justice Works Emerson Fellow at the ACLU of Southern 21 California. He is licensed to practice law in the State of California and is admitted to 22 practice in the Central District of California. Mr. Kwon has experience with working 23 with class members and with DACA matters more broadly. In particular, as local 24 counsel, he has worked closely with plaintiff Jesus Alonso Arreola Robles since the 25 government detained Mr. Arreola and instituted removal proceedings. In addition, Mr. 26 Kwon has experience with matters involving the intersection of criminal and 27 immigration law and enforcement. 28
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1 27. The ACLU Immigrants’ Rights Project and ACLU of Southern California have

2 capacity litigate the claims in this case to thoroughly and vigorously and properly

3 represent the plaintiff class, and intend to commit all necessary resources to do so. If

4 appointed class counsel, I will ensure that Mr. Tan, Ms. Eiland, Mr. Hausman, Mr.

5 Arulanantham, Mr. Kaufman, Mr. Kwon, and I zealously represent the interests of the

6 class to the best of our collective ability.

7

I declare under penalty of perjury under the laws of the state of California and

8 the United States that the foregoing is true and correct and that this declaration was

9 executed on December 21, 2017, at San Francisco, California.

10

11

/s/ Jennifer Chang Newell

12

Jennifer Chang Newell

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Case 5:17-cv-02048-PSG-SHK Document 39-4 Filed 12/29/17 Page 1 of 8 Page ID #:1213

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)
13

14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

15

16 INLAND EMPIRE – IMMIGRANT

)

YOUTH COLLECTIVE, et al., on behalf ) Case No. 5:17-cv-02048-PSG-SHK

17 of themselves and others similarly situated, ) )

18

Plaintiffs,

19

v.

20 KIRSTJEN NIELSEN, Secretary, U.S. Department of Homeland Security, et al.,
21 Defendants.
22

)

) ) ) ) ) ) ) )

DECLARATION OF JOSE EDUARDO GIL ROBLES IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR CLASS CERTIFICATION AND A CLASSWIDE PRELIMINARY INJUNCTION

)

23 24 25

) ) ) ) )

Judge: Hon. Philip S. Gutierrez Courtroom: 6A Hearing: February 26, 2018 Time: 1:30 p.m.

)

26

27

28

Case 5:17-cv-02048-PSG-SHK Document 39-4 Filed 12/29/17 Page 2 of 8 Page ID #:1214
1 Ahilan T. Arulanantham (SBN 237841) aarulanantham@aclusocal.org
2 Michael Kaufman (SBN 254575) mkaufman@aclusocal.org
3 Dae Keun Kwon (SBN 313155) akwon@aclusocal.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
5 Los Angeles, CA 90017 Telephone: (213) 977-5232
6 Facsimile: (213) 977-5297 7
Attorneys for Plaintiffs 8
* Admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-PSG-SHK Document 39-4 Filed 12/29/17 Page 3 of 8 Page ID #:1215

1

I, José Eduardo Gil Robles, upon my personal knowledge, hereby declare as

2 follows:

3 Personal Background

4

1. My name is José Eduardo1 Gil Robles. I am 24 years old and I live in

5 Coon Rapids, Minnesota, near Minneapolis. I have lived in the United States since I

6 was five years old. I was born in Mexico in January 1993, but I came to the United

7 States in 1998 without inspection at a border crossing. I consider the United States to

8 be my home. I don’t really remember living in Mexico.

9

2. I attended public schools in the Minneapolis area starting in kindergarten,

10 and I graduated from Coon Rapids High School.

11

3. I have five younger siblings, ages nine to 19 years old. They were all

12 born in this country and are U.S. citizens. I am very close to my younger sisters and

13 brother, and I spend a lot of my free time hanging out with them at home and taking

14 them to do activities. I also help my youngest sister with her homework.

15

4. I have a steady girlfriend who is also a U.S. citizen. I like to spend time

16 with her and her family. I have attended many of my girlfriend’s family gatherings

17 and I sometimes take my girlfriend’s little sister and my little sister on outings to

18 places like Chuck E. Cheese’s and to go swimming at a pool during the summer.

19

5. I am a member of my local Catholic church, St. Stephens, in Anoka,

20 Minnesota. I have been an active member of the Catholic Church throughout my life,

21 and I have regularly attended services at St. Stephens for about eight years. In high

22 school, I was an Altar Server there. I also participate in a smaller Bible study and

23 prayer group on Thursday nights, where I meet with others to pray and discuss Bible

24 stories and what they teach us about everyday life and how to be a good person. In

25 addition to being a welcoming and tight-knit religious community, my church

26 encourages us to do community service to help others. For example, a few years ago,

27 after Hurricane Sandy, I traveled to the New York City area with members of my

28 1 Some of my friends and family call me by my middle name, Eduardo.

1

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1 church to help rebuild a church there that was damaged in the storm. I spent about ten

2 days working on a team to replace rotten wood and damaged flooring, install new

3 sheet rock, fix sidewalks, and clean up the yard. I have also volunteered to help with

4 various landscaping projects at another local church where I am involved in the youth

5 ministry.

6

6. One of my main hobbies is training at a boxing gym. I’ve been doing it

7 since I was about 14 years old and I practice almost every day. Although I don’t

8 compete in matches, the training helps me stay in shape and be disciplined. It requires

9 me to stick with a routine and to get up early so that I have time to train and fulfill my

10 other responsibilities. I also really enjoy learning the skills and techniques and

11 spending time at the gym with other people who love the sport. I find that it helps me

12 keep a calm mind even when things get hectic.

13 The Impact of DACA on My Life

14

7. When I heard about DACA, I was really happy because it would allow

15 me to apply for a work permit and a driver’s license, which I wasn’t able to get before.

16 I applied as soon as I could save up the money for the application fee.

17

8. When I first applied for deferred action and work authorization in 2015, I

18 gave the government my school records and information about where I lived. I also

19 went to an appointment so that U.S. Citizenship and Immigration Services (“USCIS”)

20 could take my fingerprints and photographs.

21

9. I was granted DACA and work authorization in August 2015. My first

22 grant of DACA was valid for two years, until August 26, 2017.

23

10. In April 2017, I filed a DACA renewal application and, again, the

24 government granted me deferred action and work authorization. I received the

25 approval notice in August 2017, which said that my DACA was supposed to be valid

26 until August 13, 2019. I trusted the U.S. government to stay true to its word that, if I

27 followed all the rules, my DACA would not be taken away.

28

2

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1

11. Being granted DACA had a huge positive impact on my life. I was able

2 to work full time as a baker at a local restaurant chain called Key’s Café & Bakery. I

3 learned fast and was promoted to bakery manager after about a year and a half. In that

4 position, it was my job to make the bakery schedule for the other bakery employees,

5 decorate and deliver wedding cakes, order and stock ingredients, make sure we were

6 making enough cakes and pies, and handle customer complaints. I enjoyed the job a

7 lot—especially decorating cakes. Many people have told me that I have a real talent

8 for it. I worked at Key’s Café & Bakery until the summer of 2017. Soon after that, I

9 started working for a logistics company, making deliveries of large items like

10 furniture and appliances to homes and businesses in the Minneapolis area. I liked that

11 the job allowed me to be active and spend time outside.

12

12. Since I got DACA, I used my work authorization to help my family by

13 contributing money towards our rent and other living expenses. Until I lost my

14 DACA, I was paying about half of our rent and bills. My jobs also allowed me to start

15 saving up money so that I can take college classes one day. My goal is to get my

16 associate’s degree to help me be more competitive for jobs and figure out what I want

17 to do professionally in the long term.

18

13. DACA also allowed me to get a Social Security Number and a driver’s

19 license for the first time. Having a license meant that I could drive to work and

20 church and give my siblings rides to school and to their extracurricular activities. I

21 also helped with grocery shopping and did other errands for my family using the car I

22 purchased with my money from my paychecks.

23 My Arrest and Revocation of My DACA and Work Permit

24

14. On September 20, 2017, I was pulled over by the police while driving in

25 my car with two passengers. I went to high school with one of the young men and the

26 other is a friend of my classmate. The officer said that my driver’s license wasn’t

27 valid anymore. I was arrested and taken to the local jail and later charged with the

28 misdemeanor traffic violation of driving after cancellation of my driver’s license. It

3

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1 was supposedly cancelled because it required a “status check” when my previous

2 DACA grant expired a few weeks before. I wasn’t aware that there was any problem

3 with my license.

4

15. I was released from jail the next day, but about a month later, agents from

5 Immigration and Customs Enforcement (“ICE”) showed up at my work and arrested

6 me in the parking lot. I told them that I had DACA, but they still sent me to an

7 immigration detention center and gave me a Notice to Appear on October 23, 2017,

8 which charged me with being removable because I was present in the United States

9 without admission. I couldn’t understand why they put me in deportation proceedings

10 since I had been granted a two-year DACA renewal just two months before. And a

11 minor traffic offense like driving on a cancelled license is not supposed to disqualify

12 someone from DACA.

13

16. Being in the detention center was terrible. I had trouble eating and

14 sleeping and I felt depressed and sad. It was really difficult to talk to my family on

15 the phone and hear them tell me they were having a hard time because I was in

16 detention—especially my youngest sister who is only nine years old. It broke my

17 heart to hear her cry.

18

17. Fortunately, my family was able to call an attorney who came to see me

19 at the detention center.

20

18. I first had a bond hearing before an immigration judge on November 6,

21 2017, which was continued to November 27, 2017. During the bond hearings, the

22 government attorney raised the events that led to my arrest and charge for driving on a

23 cancelled license. The government attorney argued that I was a danger to the

24 community because one of the passengers in the car when I was pulled over had a toy

25 pellet gun and had supposedly shot it from the car window. But my immigration

26 lawyer argued that I was not a danger to anyone. She explained to the judge that the

27 pellet gun was a toy, not a firearm, and that it was not mine. My lawyer also told the

28 judge that I did not touch the pellet gun or shoot it. In fact, I was concentrating on

4

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1 driving and didn’t even know that my passenger had brought a pellet gun. I don’t own

2 any kind of gun—even a toy one. My lawyer also emphasized that the only crime I

3 was charged with was driving on a cancelled license. My lawyer also gave the judge

4 many letters from my relatives, friends, employers, and members of my church

5 speaking about my good character.

6

19. After hearing all the evidence, including reviewing the police records

7 from my arrest, the immigration judge concluded that I was not a danger to the public

8 and ordered my release on a $5,000 bond.

9

20. On November 28, 2017, I posted bond and was released from detention.

10

21. I was detained for over a month, which was really hard on me and my

11 family, both emotionally and financially.

12

22. But things got worse. I found out that, while I was in detention, on

13 November 14, 2017, USCIS sent me a Notice of Action terminating my DACA and

14 work permit “as of the date [my] NTA was issued.” The Notice of Action says that an

15 “appeal or motion to reopen/reconsider this notice of action may not be filed.”

16

23. I never received any prior notice that USCIS intended to terminate my

17 DACA and work permit, nor did I have any opportunity to respond to the notice or

18 otherwise contest the termination of my DACA or work permit beforehand. I also got

19 no explanation for the decision beyond the one sentence in the Notice of Action.

20

24. Losing my DACA has changed everything for me. I am no longer able to

21 work at my job with the logistics company, which paid me approximately $2,400 per

22 month. Being in detention for over a month was really frightening for both me and

23 my family. I missed them very much and still have bad memories about my time in

24 detention.

25

25. Everything is more difficult after losing my DACA, both because I am

26 not authorized to work, and because I don’t know what will happen to me next.

27

26. I’m no longer able to contribute to my family’s resources the way that I

28 could before, and I am not able to plan for my future, including saving up money to

5

Case 5:17-cv-02048-PSG-SHK Document 39-4 Filed 12/29/17 Page 8 of 8 Page ID #:1220

Case 5:17-cv-02048-PSG-SHK Document 39-9 Filed 12/29/17 Page 1 of 7 Page ID #:1249

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)
13

14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

15

16 INLAND EMPIRE – IMMIGRANT

)

YOUTH COLLECTIVE, et al., on behalf ) Case No. 5:17-cv-02048-PSG-SHK

17 of themselves and others similarly situated, ) )

18

Plaintiffs,

19

v.

20 KIRSTJEN NIELSEN, Secretary, U.S. Department of Homeland Security, et al.,
21 Defendants.
22

)

) ) ) ) ) ) ) )

DECLARATION OF RONAN CARLOS DE SOUZA MOREIRA IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR CLASS CERTIFICATION AND A CLASSWIDE PRELIMINARY INJUNCTION

)

23 24 25

) ) ) ) )

Judge: Hon. Philip S. Gutierrez Courtroom: 6A Hearing: February 26, 2018 Time: 1:30 p.m.

)

26

27

28

Case 5:17-cv-02048-PSG-SHK Document 39-9 Filed 12/29/17 Page 2 of 7 Page ID #:1250
1 Ahilan T. Arulanantham (SBN 237841) aarulanantham@aclusocal.org
2 Michael Kaufman (SBN 254575) mkaufman@aclusocal.org
3 Dae Keun Kwon (SBN 313155) akwon@aclusocal.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
5 Los Angeles, CA 90017 Telephone: (213) 977-5232
6 Facsimile: (213) 977-5297 7
Attorneys for Plaintiffs 8
* Admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-PSG-SHK Document 39-9 Filed 12/29/17 Page 3 of 7 Page ID #:1251

1

DECLARATION OF RONAN CARLOS DE SOUZA MOREIRA

2

I, Ronan Carlos De Souza Moreira, upon my personal knowledge, hereby

3 declare as follows:

4 Personal Background

5

1. My name is Ronan Carlos De Souza Moreira. I am 24 years old and I

6 live in Kennesaw, Georgia, near Atlanta. I have lived in the United States for almost

7 twelve years. I was born in Brazil in December 1992. I came to the United States in

8 2006 with my two brothers and my mother on a visitor’s visa. My father already lived

9 here at that time. I have never left the country since I arrived. I consider the United

10 States to be my home.

11

2. I attended public schools in Marietta, Georgia starting in middle school,

12 and I graduated from Wheeler High School. In school, I played soccer and tennis, and

13 participated in art club and French club. During middle school and high school, I

14 received various certificates of achievement for my excellent attendance in school, as

15 well as for getting good grades and working hard to improve my English language

16 skills. I graduated from high school in 2012.

17

3. While I was in high school, I also attended a Brazilian Protestant church

18 called The Vine in Atlanta. I took spiritual maturity courses at that church and

19 eventually became a youth leader, which meant that I led youth meetings at my

20 parents’ house every Wednesday. While at the church, I also collected food for the

21 homeless and organized free yard sales. I also often volunteered at church events.

22

4. About a year after graduating from high school, I started working on a

23 college degree at Perimeter College at Georgia State University in Atlanta. However,

24 I was unable to complete my college degree due to my family’s financial situation. I

25 hope someday to go back to college.

26

5. My mom is a Lawful Permanent Resident, and my older brother is a U.S.

27 citizen. My older brother’s wife is pregnant, and they’re expecting a child in January.

28 I’m excited to be an uncle. My younger brother, who recently turned 18, has a

1

Case 5:17-cv-02048-PSG-SHK Document 39-9 Filed 12/29/17 Page 4 of 7 Page ID #:1252

1 pending application for permanent residence. My father is also seeking permanent

2 residence. My aunt and two cousins, who are all U.S. citizens, also live in Georgia.

3

6. I am very close to my family. We live together, and when my parents

4 need my help, I contribute to household expenses. We spend all our holidays and

5 birthdays together, and whenever we can, we travel together—for example, I often go

6 fishing with my dad in Florida. I love to travel, and have visited at least ten states.

7 Eventually, I would like to start my own travel business.

8 The Impact of DACA on My Life

9

7. When I first heard about DACA, I was really happy because it would

10 allow me to apply for a work permit and a driver’s license, which I wasn’t able to get

11 before. I first applied for DACA in May 2013, and was approved in August 2013. I

12 applied for renewal in July 2015, and was again approved for a DACA grant in

13 October 2015, this one lasting until October 2017. I again applied for renewal in

14 August 2017, and I was approved on November 2, 2017.

15

8. When I first applied for deferred action and work authorization in 2013, I

16 gave the government my school records and information about where I lived. I also

17 went to an appointment so that U.S. Citizenship and Immigration Services (“USCIS”)

18 could take my fingerprints and photographs.

19

9. Being granted DACA had a huge—and good—effect on my life. After I

20 stopped school in the fall of 2013, I took several temporary jobs, including at AT&T,

21 at a flooring company, and at a bakery. Starting in August, 2014, I began working for

22 a new flooring company permanently. I started out as an assistant to the installation

23 manager, but within six months I took over as installation manager. That job involved

24 supervising about 20 flooring installers, dispatching them to jobs throughout the day,

25 speaking frequently with them and our customers, solving problems as they arose, and

26 addressing payroll, delivery, and inventory issues.

27

10. I used my work authorization to help my family and to travel around the

28 United States when I had time off. My job also allowed me to start saving up money

2

Case 5:17-cv-02048-PSG-SHK Document 39-9 Filed 12/29/17 Page 5 of 7 Page ID #:1253

1 so that I can take college classes again one day. My goal is to get my college degree

2 in business administration eventually and to start my own business, maybe in travel.

3

11. DACA also allowed me to get a Social Security Number and a driver’s

4 license for the first time. Having a license meant that I could drive to work and travel.

5 My Arrest and Revocation of My DACA and Work Permit

6

12. On November 2, 2017, I was out with a friend, and we stopped at a gas

7 station. We got into an argument there, and although it wasn’t a serious fight, we

8 raised our voices. Someone overheard us and called the police, even though neither of

9 us threatened or touched the other. When the police arrived, they realized that our

10 argument was not serious, but they nonetheless asked to see our IDs.

11

13. When the officer looked at my ID, he said the expiration date had been

12 altered. The officers arrested me, but not my friend.

13

14. I appeared before a judge soon, who immediately granted me bail, but

14 Immigration and Customs Enforcement (“ICE”) had already placed a hold on me, and

15 I had to stay in jail for several more days, until immigration officers came to pick me

16 up. The immigration officers brought me to Irwin Detention Center, where I was

17 given a Notice To Appear (“NTA”) charging me with overstaying a visa. I have been

18 charged with the misdemeanor of possession of an altered identification document.

19

15. My parents found an immigration attorney for me, who requested a bond

20 hearing for me, but that hearing was repeatedly postponed, first for ICE to collect

21 documents related to the charge against me, then for Thanksgiving, and then because

22 the hearing was reassigned to a different immigration judge.

23

16. I finally had a bond hearing on December 7, 2017. At that hearing, the

24 lawyer for the government did not contest that I was neither a flight risk nor a danger

25 to the community, and offered me a bond, which I accepted. I posted the bond and

26 was released the next day.

27

28

3

Case 5:17-cv-02048-PSG-SHK Document 39-9 Filed 12/29/17 Page 6 of 7 Page ID #:1254

1

17. Being in detention was traumatic. Although I’m 25 years old, I look

2 much younger, and I was afraid of the older men. I got very depressed, and I missed

3 my family. I didn’t know when I would be able to see them again.

4

18. While I was detained, USCIS sent me a Notice of Action terminating my

5 DACA and work permit “automatically as of the date [my] NTA was issued.” The

6 Notice of Action says that an “appeal or motion to reopen/reconsider this notice of

7 action may not be filed.”

8

19. I never received any prior notice that USCIS intended to terminate my

9 DACA and work permit, nor did I have any opportunity to respond to the notice or

10 otherwise contest the termination of my DACA or work permit beforehand. I also got

11 no explanation for the decision beyond the one sentence in the Notice of Action.

12

20. Now that I’ve lost my DACA, I don’t know what to do. I’m no longer

13 authorized to work or drive, and I am not able to plan for my future. I’ve lost the

14 freedom to be a normal part of society. I’m really afraid about what will happen to me

15 now.

16

21. I also feel that it’s not fair that I’ve lost my DACA just because of a

17 possible minor misdemeanor charge that would not per se disqualify me from DACA

18 even if I were convicted. Everything is more difficult after losing my DACA. I don’t

19 know what will happen to me next.

20

22. The uncertainty has made me depressed. I feel very hopeless and

21 stressed.

22

23. I understand that I am a named plaintiff in this proposed class action

23 lawsuit. I understand that I need to stay informed about what is happening in the case

24 and that I need to think about the interests of other proposed class members and act on

25 those interests. I am prepared to represent the proposed class in this case and will take

26 my responsibilities seriously.

27

24. I know that there are many other people like me who have lost their

28 DACA despite doing nothing to make them ineligible for the program. I want to be a

4

Case 5:17-cv-02048-PSG-SHK Document 39-9 Filed 12/29/17 Page 7 of 7 Page ID #:1255

1 class representative to help all the people like me who have lost their DACA withou

2 notice or process and despite doing nothing to make them disqualified from th

3 program.

4 My Documents

5

25. Attached as Exhibit A is a true and correct copy of the Notice to Appea

6 that ICE issued me, dated November 5, 2017.

7

26. Attached as Exhibit B is a true and correct copy of the DAC

8 termination notice that I received from USCIS, dated November 10, 2017.

9

27. Attached as Exhibit C is a true and correct copy of the most recen

10 DACA approval notice that I received from USCIS, dated November 2, 2017.

11

I declare under penalty of perjury under the laws of the United States that the

12 foregoing is true and correct. Executed at _._BS_JFU_ UB(_FP_SHJ_ B _ _ on

13 December_, 2017.

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

Case 5:17-cv-02048-PSG-SHK Document 39-13 Filed 12/29/17 Page 1 of 13 Page ID #:1266

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)

13

UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA

15 )

16 INLAND EMPIRE – IMMIGRANT

) Case No. 5:17-cv-2048- PSG-SHK

YOUTH COLLECTIVE et al. on behalf of )

17 themselves and others similarly situated, ) )

18

Plaintiffs,

) ) DECLARATION OF KATRINA

19

v.

) L. EILAND IN SUPPORT OF ) PLAINTIFFS’ MOTIONS FOR

20 KIRSTJEN NIELSEN, Secretary, U.S. ) CLASS CERTIFICATION AND Department of Homeland Security, et al., ) A. CLASSWIDE PRELIMINARY

21 Defendants.

) INJUNCTION )

22

)

23 24

) ) ) ) )

Judge: Hon. Philip S. Gutierrez Courtroom: 6A Hearing: February 26, 2018 Time: 1:30 p.m.

25

)

)

26

)

)

27

)

)

28

Case 5:17-cv-02048-PSG-SHK Document 39-13 Filed 12/29/17 Page 2 of 13 Page ID #:1267
1 Ahilan T. Arulanantham (SBN 237841) aarulanantham@aclusocal.org
2 Michael Kaufman (SBN 254575) mkaufman@aclusocal.org
3 Dae Keun Kwon (SBN 313155) akwon@aclusocal.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
5 Los Angeles, CA 90017 Telephone: (213) 977-5232
6 Facsimile: (213) 977-5297 7
Attorneys for Plaintiffs 8
*Admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-PSG-SHK Document 39-13 Filed 12/29/17 Page 3 of 13 Page ID
#:1268
1 I, Katrina L. Eiland, make this declaration based on my own personal
2 knowledge and if called to testify I could and would do so competently as follows:
3 1. I am an attorney with the American Civil Liberties Union Foundation. I am
4 licensed in the state of California and have been admitted to practice in this court. I
5 am counsel of record for Plaintiffs Inland Empire-Immigrant Youth Collective, Jesús
6 Alonso Arreola Robles, José Eduardo Gil Robles, and Ronan Carlos De Souza
7 Moreira in the above-entitled action.
8 DACA Terminations
9 2. In March 2017, I began collecting information about the U.S. Department of
10 Homeland Security’s terminations of grants of Deferred Action for Childhood
11 Arrivals (“DACA”) and associated employment authorization. Between March 2017
12 and the present, I and other staff members reviewed news reports and corresponded
13 and spoke with numerous former DACA recipients and immigration attorneys across
14 the country.
15 3. This investigation revealed that, since January 2017, there have been dozens of
16 instances around the country in which the United States Citizenship and Immigration
17 Services (“USCIS”) has terminated individuals’ DACA and work authorization
18 without notice, a reasoned explanation, or an opportunity to be heard. In at least 17 of
19 those cases, I determined based on publicly available information, conversations
20 and/or correspondence with the former DACA recipients and/or their immigration
21 lawyers, and/or review of criminal record documents, that the individual did not have
22 any disqualifying criminal convictions as set forth in the DACA Memorandum and
23 Standard Operating Procedures.
24 4. For example, all three of the named plaintiffs had their DACA and work
25 authorization terminated since February 2017, without notice, a meaningful
26 explanation, or an opportunity to respond. None of them have any criminal
27 convictions that would disqualify them from DACA.
28
1

Case 5:17-cv-02048-PSG-SHK Document 39-13 Filed 12/29/17 Page 4 of 13 Page ID #:1269
1 5. In addition, in April, immigration authorities detained a 26-year-old DACA 2 recipient in Georgia and issued him a Notice to Appear (“NTA”) after he was arrested 3 on a misdemeanor charge. Although the prosecutor subsequently dropped the charge 4 and an immigration judge ordered the DACA recipient released on bond, USCIS had 5 already revoked his DACA, without notice or an opportunity to be heard. 6 6. In May, immigration authorities arrested and detained a 19-year-old DACA 7 recipient in North Carolina and issued him an NTA after he was arrested on a 8 misdemeanor charge. He pled guilty to a minor misdemeanor that did not disqualify 9 him from DACA, but USCIS nonetheless revoked his DACA, without notice or an 10 opportunity to be heard. 11 7. In May, USCIS also revoked the DACA grant and work permit of then-28-year12 old Georgia resident and paralegal Jessica Colotl without notice, denying her renewal 13 request and denying her an opportunity to be heard. Federal authorities publicly stated 14 that the revocation was based on minor, non-disqualifying criminal history—namely, 15 driving without a license—that Ms. Colotl had disclosed in her prior DACA 16 applications. See Exhibit 5, below. 17 8. In June, immigration authorities arrested and detained a 22-year-old DACA 18 recipient in California for twelve days. ICE issued him an NTA, even though he had 19 valid DACA and had done nothing to change his eligibility for the program. Although 20 ICE voluntarily released him from detention and cancelled his removal proceedings, 21 USCIS nonetheless revoked his DACA, without notice or an opportunity to be heard. 22 See Exhibit 23, below. 23 9. In July, USCIS revoked the DACA grant and work permit of a 32-year-old 24 South Dakota resident without notice or an opportunity to be heard, despite granting 25 him a two-year renewal only seven months before in December 2016. Federal 26 authorities did not provide a clear reason for revoking his DACA, even though he has 27 only a single, non-disqualifying misdemeanor conviction that he had disclosed in all 28 prior DACA applications.
2

Case 5:17-cv-02048-PSG-SHK Document 39-13 Filed 12/29/17 Page 5 of 13 Page ID #:1270
1 10. In September, USCIS revoked the DACA grant and work permit of a 30-year2 old Minnesota resident and mother without notice or an opportunity to be heard. 3 Federal authorities did not provide a clear reason for revoking her DACA, even 4 though she has only minor traffic violations and remains eligible for the program. 5 11. In November, USCIS revoked the DACA and work permit of Felipe Abonza 6 Lopez, a 20-year-old from Texas. In October, Customs and Border Protection 7 (“CBP”) detained Mr. Abonza Lopez, who wears a prosthetic leg, when the car he was 8 riding in with undocumented family members was pulled over by local police who 9 handed the passengers over to CBP. Although CBP claimed that Mr. Abonza Lopez 10 was arrested as part of an alien smuggling investigation, he was never charged with a 11 crime and an immigration judge ordered him released on bond after finding that he did 12 not pose a danger to the community. Even so, USCIS revoked his DACA, without 13 notice or an opportunity to be heard. See Exhibit 22, below. 14 12. In October, USCIS revoked the DACA grant and work permit of a young 15 California resident without notice or an opportunity to be heard. USCIS did not 16 provide a clear reason for revoking his DACA, even though he does not have any 17 disqualifying criminal conviction. 18 13. In February, immigration authorities arrested and detained 23-year-old Daniel 19 Ramirez Medina, a Washington state resident. ICE issued him an NTA, even though 20 he had valid DACA and had done nothing to change his eligibility for the program. 21 An immigration judge determined that he is not a flight risk or danger to the 22 community, and ordered him released on bond, but USCIS nonetheless revoked his 23 DACA, without notice or opportunity to be heard. See Exhibit 4, below. 24 14. In addition to these cases, I am aware of five other individuals whose DACA 25 was revoked without notice, a meaningful explanation, or an opportunity to be heard, 26 despite having no disqualifying criminal convictions, in California, Louisiana, 27 Georgia, Minnesota, and New Jersey. 28
3

Case 5:17-cv-02048-PSG-SHK Document 39-13 Filed 12/29/17 Page 6 of 13 Page ID #:1271
1 15. I recently learned of two additional DACA recipients, in Colorado and 2 Minnesota, respectively, who have been issued NTAs in immigration court, despite 3 having no disqualifying criminal convictions, but who have not yet received a notice 4 of termination from the United States Citizenship and Immigration Services. In at 5 least one of those cases, counsel for ICE represented in immigration court that the 6 individual’s DACA had been terminated. 7 Attached Documents 8 16. Attached hereto as Exhibit 1 is a true and correct copy of a news article entitled 9 ICE: Arrests still up, deportations still down, written by Tal Kopan, updated on CNN 10 Politics on August 11, 2017. The article is also available at 11 http://www.cnn.com/2017/08/11/politics/trump-administration12 deportations/index.html (last visited Dec. 14, 2017). 13 17. Attached hereto as Exhibit 2 is a true and correct copy of the Q&A: DHS 14 Implementation of the Executive Order on Enhancing Public Safety in the Interior of 15 the United States, published on the Department of Homeland Security website on 16 February 21, 2017. This document is also available at 17 https://www.dhs.gov/news/2017/02/21/qa-dhs-implementation-executive-order18 enhancing-public-safety-interior-united-states (last visited Dec. 14, 2017). 19 18. Attached hereto as Exhibit 3 is a true and correct copy of the Memorandum 20 from John Kelly entitled Enforcement of the Immigration Laws to Serve the National 21 Interest, published on the Department of Homeland Security website on February 20, 22 2017. This memorandum is also available at 23 https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-the24 Immigration-Laws-to-Serve-the-National-Interest.pdf (last visited Dec. 14, 2017). 25 19. Attached hereto as Exhibit 4 is a true and correct copy of a news article entitled 26 What Immigration Raids Mean for Students, written by Emily Goldberg, published in 27 The Atlantic on February 17, 2017. This article is also available at 28
4

Case 5:17-cv-02048-PSG-SHK Document 39-13 Filed 12/29/17 Page 7 of 13 Page ID #:1272
1 https://www.theatlantic.com/education/archive/2017/02/why-was-a-daca-recipient2 detained-by-ice/517134/ (last visited Dec. 14, 2017). 3 20. Attached hereto as Exhibit 5 is a true and correct copy of a news article entitled 4 Targeting Dreamers, written by Keegan Hamilton, published in VICE News on Sept. 5 8, 2017. This article is also available at https://news.vice.com/story/ice-was-going6 after-dreamers-even-before-trump-killed-daca (last visited Dec. 14, 2017). 7 21. Attached hereto as Exhibit 6 is a true and correct copy of a news article entitled 8 Border Patrol Memo States Procedures to Process all DACA Recipients, written by 9 Valerie Gonzalez, published in KRGV on Sept. 25, 2017. This article is also available 10 at http://www.krgv.com/story/36450600/border-patrol-memo-states-procedures-to11 process-all-daca-recipients (last visited Dec. 14, 2017). 12 22. Attached hereto as Exhibit 7 is a true and correct copy of a Tweet by Valerie 13 Gonzalez available at Twitter.com/ValOnTheBorder, posted on Sept. 25, 2017. This 14 tweet is also available at 15 https://twitter.com/ValOnTheBorder/status/912505757958119426 (last visited Dec. 16 14, 2017). 17 23. Attached hereto as Exhibit 8 is a true and correct copy of a news article entitled 18 Family, immigration attorney: DACA recipients being held at checkpoint, written by 19 Lorenzo Zazueta-Castro, published in The Monitor on Sept. 11, 2017. This article is 20 also available at http://www.themonitor.com/news/article_1ced27f4-970e-11e7-a60921 47c4564b53ec.html (last visited Dec. 14, 2017). 22 24. Attached hereto as Exhibit 9 is a true and correct copy of a news article entitled 23 This immigrant mom had a permit to work at Amazon. Now U.S. agents hold her in 24 jail, written by Mark Curnutte, published in Cincincentnati.com on Aug. 23, 2017. 25 This article is also available at 26 https://www.cincinnati.com/story/news/2017/08/23/ice-detains-young-nky-mother27 legal-status/593734001/ (last visited Dec. 14, 2017). 28
5

Case 5:17-cv-02048-PSG-SHK Document 39-13 Filed 12/29/17 Page 8 of 13 Page ID #:1273
1 25. Attached hereto as Exhibit 10 is a true and correct copy of a news article 2 entitled Second known DACA recipient detained by immigration officials in Texas, 3 written by Tom Dart, published in The Guardian website on Feb 17, 2017. This 4 article is also available at https://www.theguardian.com/us-news/2017/feb/16/daca5 dreamer-detained-immigration-texas-josue-romero (last visited Dec. 14, 2017). 6 26. Attached hereto as Exhibit 11 is a true and correct copy of a Tweet, written by 7 Josh Gerstein on Twitter.com/joshgerstein and posted on Sept. 27, 2017. This tweet is 8 also available at https://twitter.com/joshgerstein/status/913060287212933120 (last 9 visited Dec. 14, 2017). 10 27. Attached hereto as Exhibit 12 is a true and correct copy of a news article 11 entitled ICE chief tells lawmakers agency needs much more money for immigration 12 arrests, written by Maria Sacchetti, published in The Washington Post on June 13, 13 2017. This article is also available at https://www.washingtonpost.com/local/social14 issues/ice-chief-tells-lawmakers-agency-needs-much-more-money-for-immigration15 arrests/2017/06/13/86651e86-5054-11e7-b06416 828ba60fbb98_story.html?utm_term=.2aa4e6c3e8e0 (last visited Dec. 15, 2017). 17 28. Attached hereto as Exhibit 13 is a true and correct copy of a news article 18 entitled Sessions: ‘We can’t promise’ Dreamers won’t be deported, written by Ted 19 Hesson, published in Politico on April 19, 2017. This article is also available at 20 https://www.politico.com/story/2017/04/jeff-sessions-dreams-deported-237369 (last 21 visited Dec. 14, 2017). 22 29. Attached hereto as Exhibit 14 is a true and correct copy of a news article 23 entitled ICE arrests increase under Trump showing ‘gloves are being taken off,’ 24 written by Brenda Gazzar, published in The Mercury News on May 10, 2017. This 25 article is also available at http://www.mercurynews.com/2017/05/10/ice-arrests26 increase-under-trump-showing-gloves-are-being-taken-off-4/ (last visited Dec. 14, 27 2017). 28
6

Case 5:17-cv-02048-PSG-SHK Document 39-13 Filed 12/29/17 Page 9 of 13 Page ID #:1274
1 30. Attached hereto as Exhibit 15 is a true and correct copy of a Tweet written by 2 Donald J. Trump on Twitter.com/realDonaldTrump and posted on Sept. 7, 2017. This 3 tweet is also available at 4 https://twitter.com/realdonaldtrump/status/905788459301908480?lang=en (last visited 5 Dec. 14, 2017). 6 31. Attached hereto as Exhibit 16 is a true and correct copy of survey results 7 entitled DACA Recipients’ Economic and Educational Gains Continue to Grow, 8 written by Tom K. Wong, published in the Center for American Progress website on 9 August 28, 2017. This article is also available at 10 https://www.americanprogress.org/issues/immigration/news/2017/08/28/437956/daca11 recipients-economic-educational-gains-continue-grow/ (last visited Dec. 14, 2017). 12 32. Attached hereto as Exhibit 17 is a true and correct copy of an article entitled 13 Access to Driver’s Licenses for Immigrant Youth Granted DACA, published on 14 National Immigration Law Center on May 31, 2015. This article is also available at 15 https://www.nilc.org/issues/drivers-licenses/daca-and-drivers-licenses/ (last visited 16 Dec. 14, 2017). 17 33. Attached hereto as Exhibit 18 is a true and correct copy of an article entitled 18 DACA recipients saw their mental health improve. Now, advocates fear its end will 19 have the opposite effect, written by Tiziana Rinaldi, published on the Public Radio 20 International website on Nov. 22, 2017. This article is also available at 21 https://www.pri.org/stories/2017-11-22/study-found-daca-improved-mental-health-its22 recipients-which-why-researchers (last visited Dec. 14, 2017). 23 34. Attached hereto as Exhibit 19 is a true and correct copy of an article entitled A 24 New Threat to DACA Could Cost States Billions of Dollars, written by Nicole Prchal 25 Svajlenka, Tom Jawetz and Angie Bautista-Chavez, published on the Center for 26 American Progress website on July 21, 2017. This article is also available at 27 https://www.americanprogress.org/issues/immigration/news/2017/07/21/436419/new28 threat-daca-cost-states-billions-dollars/ (last visited Dec. 14, 2017).
7

Case 5:17-cv-02048-PSG-SHK Document 39-13 Filed 12/29/17 Page 10 of 13 Page ID #:1275
1 35. Attached hereto as Exhibit 20 is a true and correct copy of an article entitled 2 Ending DACA Will Cost States Billions of Dollars, written by Silva Mathema, 3 published on the Center for American Progress website on Jan. 9, 2017. This article is 4 also available at 5 https://www.americanprogress.org/issues/immigration/news/2017/01/09/296125/endin 6 g-daca-will-cost-states-billions-of-dollars/ (last visited Dec. 14, 2017). 7 36. Attached hereto as Exhibit 21 is a true and correct copy of the article entitled 8 The Insane Economic Cost of Ending DACA written by Ian Salisbury, published on 9 Time.com on Sept. 7, 2017. This article is also available at 10 http://time.com/money/4928394/daca-economic-cost-trump/ (last visited Dec. 14, 11 2017). 12 37. Attached hereto as Exhibit 22 is a true and correct copy of an article entitled 13 Immigrant Who Had Prosthetic Leg Mocked by Trump Officials to be Freed After 14 ‘Inhumane’ Detention, written by Nicole Rodriguez , published on Newsweek.com on 15 Nov. 17, 2017. This article is also available at http://www.newsweek.com/immigrant16 mocked-federal-officials-disability-be-freed-715251 (last visited Dec. 18. 2017). 17 38. Attached hereto as Exhibit 23 is a true and correct copy of a press release 18 issued by Pangea Legal Services entitled 4th of July Celebration ends in Possible 19 Deportation of DACA Recipient, dated July 20, 2017. The release is also available at 20 http://www.pangealegal.org/news-and-updates/2017/7/20/4th-of-july-celebration21 ends-in-possible-deportation-of-daca-recipient (last visited Dec. 18, 2017). 22 39. Attached hereto as Exhibit 24 is a true and correct copy of a study entitled The 23 Economic Benefits of Expanding the Dream: DAPA and DACA impacts on Kern 24 County, Fresno County and the State of California, written by Raul Hinojosa-Ojeda 25 with assistance from Maksim Wynn, published in the North American Integration and 26 Development Center of UCLA on Jan. 26, 2015. This study is also available at 27 http://www.naid.ucla.edu/uploads/4/2/1/9/4219226/central_valley_final.pdf (last 28 visited Dec. 18, 2017).
8

Case 5:17-cv-02048-PSG-SHK Document 39-13 Filed 12/29/17 Page 11 of 13 Page ID #:1276
1 40. Attached hereto as Exhibit 25 is a true and correct copy of an article entitled 2 The End of DACA Will Ripple Through Families and Communities, written by Ana 3 Maria Barry-Jester, published on the website FiveThirtyEight on Sept. 6, 2017. This 4 article is also available at https://fivethirtyeight.com/features/the-end-of-daca-will5 ripple-through-families-and-communities/ (last visited Dec. 18, 2017). 6 41. Attached hereto as Exhibit 26 is a true and correct copy of an article entitled 7 New Study Finds on Mixed-Status Immigrant Families: Threat of Family Separation 8 Affects Health of the Children, written by Dinah Wiley, published in Georgetown 9 University Health Policy Institute Center for Children and Families on June 13, 2013. 10 This article is also available at https://ccf.georgetown.edu/2013/06/13/new-study11 findings-on-mixed-status-immigrant-families-threat-of-family-separation-affects12 health-of-the-children/ (last visited Dec. 18, 2017). 13 42. Attached hereto as Exhibit 27 is a true and correct copy of an article entitled 14 New Study of DACA Beneficiaries Shows Positive Economic and Educational 15 Outcomes, written by Tom K. Wong, published in the Center for American Progress 16 on Oct. 18, 2016. This article is also available at https://www.americanprogress. 17 org/issues/immigration/news/2016/10/18/146290/new-study-of-daca-beneficiaries18 shows-positive-economic-and-educational-outcomes/ (last visited Dec. 21, 2017). 19 43. Attached hereto as Exhibit 28 is a true and correct copy of an article entitled 20 US GDP would take a hit from DACA deportations, report finds, written by John. W. 21 Shoen, published on the CNBC website on Aug. 8, 2017. This article is also available 22 at https://www.cnbc.com/2017/08/31/u-s-gdp-would-take-a-hit-from-daca23 deportations-report-finds.html (last visited Dec. 18, 2017). 24 44. Attached hereto as Exhibit 29 is a true and correct copy of the text of the article 25 entitled The High Costs of Ending DACA, written by Chad Stone, published in US 26 News & World Report on Sept. 29, 2017. This article is also available at 27 https://www.usnews.com/opinion/economic-intelligence/articles/2017-09-29/why28
9

Case 5:17-cv-02048-PSG-SHK Document 39-13 Filed 12/29/17 Page 12 of 13 Page ID #:1277
1 ending-daca-and-deporting-dreamers-makes-no-economic-sense) (last visited Dec. 18, 2 2017). 3 45. Attached hereto as Exhibit 30 is a true and correct copy of an article entitled 4 Here’s How Much Money Rescinding DACA Could Cost the U.S. Economy, written by 5 Alana Abramson published in the Fortune website on Sept. 6, 2017. This article is also 6 available at http://fortune.com/2017/09/05/daca-donald-trump-economic-impact/ (last 7 visited Dec. 18, 2017). 8 46. Attached hereto as Exhibit 31 is a true and correct copy of an article entitled 9 Ending This Immigration Program would Devastate the Economy, written by Julissa 10 Arce, published in the Fortune website on July 21, 2017. This article is also available 11 at http://fortune.com/2017/07/21/daca-dream-act-2017-new-immigration-news/ (last 12 visited Dec. 18, 2017). 13 47. Attached hereto as Exhibit 32 is true and correct copy of an article entitled 14 DACA’s end would hurt the economy, written by Paul Davidson, published in USA 15 TODAY on Sept. 8, 2017. This article is also available at 16 https://www.usatoday.com/story/money/2017/09/08/dacas-end-would-hurt-economy17 hiring/638835001/ (last visited Dec. 18, 2017). 18 48. Attached hereto as Exhibit 33 is a true and correct copy of a document from the 19 United States Citizenship and Immigration services website, USCIS.gov, entitled 20 Approximate Active DACA Recipients: Country of Birth, As of September 4, 2017. 21 This document is also available at 22 https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studie 23 s/Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_population_d 24 ata.pdf (last visited Dec. 18, 2017). 25 49. Attached hereto as Exhibit 34 is a true and correct copy of a document from the 26 U.C. San Diego U.S. Immigration Policy Center, entitled DACA Stats and Facts. This 27 document is also available at dacastatsandfacts.com (last visited Dec. 21, 2017). 28 50.
10

Case 5:17-cv-02048-PSG-SHK Document 39-13 Filed 12/29/17 Page 13 of 13 Page ID #:1278

1

I declare under penalty of perjury under the laws of the United States of

2 America that the foregoing is true and correct, based on my personal knowledge.

3 Executed at San Francisco, California, on December 21, 2017.

4

/s/ Katrina L. Eiland

5

Katrina L. Eiland

6

ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT

7

39 Drumm Street

8

San Francisco, CA 94111

Phone: (415) 343-0770

9

Fax: (415) 395-0950

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

 
 Case 5:17-cv-02048-PSG-SHK Document 40 Filed 12/29/17 Page 1 of 3 Page ID #:1481

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)

13

UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA

15

INLAND EMPIRE – IMMIGRANT

) Case No. 5:17-cv-2048-PSG-SHK

16 YOUTH COLLECTIVE, et al., on behalf )

of themselves and others similarly situated, )

17

)

Plaintiffs,

)

18

)

v.

) PLAINTIFFS’ MOTION FOR A

19

) CLASSWIDE PRELIMINARY

KIRSTJEN NIELSEN, Acting Secretary, ) INJUNCTION

20 U.S. Department of Homeland Security, et )

al.,

)

21 Defendants.
22
23

) ) ) ) )

Judge: Hon. Philip S. Gutierrez Courtroom: 6A Hearing: February 26, 2018 Time: 1:30 p.m.

)

24

)

)

25

)

26

27

28

Case 5:17-cv-02048-PSG-SHK Document 40 Filed 12/29/17 Page 2 of 3 Page ID #:1482
1 Ahilan T. Arulanantham (SBN 237841) aarulanantham@aclusocal.org
2 Michael Kaufman (SBN 254575) mkaufman@aclusocal.org
3 Dae Keun Kwon (SBN 313155) akwon@aclusocal.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
5 Los Angeles, CA 90017 Telephone: (213) 977-5232
6 Facsimile: (213) 977-5297 7
Attorneys for Plaintiffs 8
*admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-PSG-SHK Document 40 Filed 12/29/17 Page 3 of 3 Page ID #:1483

1

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE

2 TAKE NOTICE that on February 26, 2018, or at the nearest available date at which

3 counsel may be heard, in Courtroom 6A of the above-referenced court located at the

4 First Street Courthouse, 350 West First Street, Los Angeles, California 90012,

5 Plaintiffs will, and hereby do, move this Court to grant a classwide preliminary

6 injunction vacating and enjoining Defendants’ unlawful revocation of Plaintiffs’ and

7 proposed class members’ Deferred Action for Childhood Arrivals (“DACA”) and

8 related Employment Authorization Documents (“EADs”) and enjoining Defendants

9 from revoking Plaintiffs’ and proposed class members’ DACA and EADs pursuant to

10 their unlawful policies and practices in the future.

11

The Motion is based on this Notice of Motion; the accompanying Memorandum

12 of Points and Authorities, the supporting declarations, all pleadings and papers filed in

13 this action, and such additional papers and arguments as may be presented at or in

14 connection with the hearing.

15 16 Dated: December 29, 2017

Respectfully submitted,

17

/s/ Jennifer Chang Newell

18

Jennifer Chang Newell

19

Katrina L. Eiland

Michael K. T. Tan*

20

David Hausman*

21

ACLU FOUNDATION

IMMIGRANTS’ RIGHTS PROJECT

22

23

Ahilan T. Arulanantham

Michael Kaufman

24

Sameer Ahmed

25

Dae Keun Kwon

ACLU FOUNDATION

26

OF SOUTHERN CALIFORNIA

27 Attorneys for Plaintiffs

28

*Admitted pro hac vice

1

Case 5:17-cv-02048-PSG-SHK Document 40-1 Filed 12/29/17 Page 1 of 30 Page ID #:1484

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)

13 UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA

15 INLAND EMPIRE – IMMIGRANT

) Case No. 5:17-cv-2048-PSG-SHK

YOUTH COLLECTIVE, et al., on behalf )

16 of themselves and others similarly situated, )

)

17

Plaintiffs,

)

)

18

v.

) MEMORANDUM OF LAW IN

) SUPPORT OF PLAINTIFFS’

19 KIRSTJEN NIELSEN, Secretary, U.S. ) MOTION FOR A CLASSWIDE

Department of Homeland Security, et al., ) PRELIMINARY INJUNCTION

20

)

Defendants.

)

21 22 23

) ) ) ) )

Judge: Hon. Philip S. Gutierrez Courtroom: 6A Hearing: February 26, 2018 Time: 1:30 p.m.

)

24

)

)

25

)

)

26

)

)

27

)

)

28

)

Case 5:17-cv-02048-PSG-SHK Document 40-1 Filed 12/29/17 Page 2 of 30 Page ID #:1485
1 Ahilan T. Arulanantham (SBN 237841) aarulanantham@aclusocal.org
2 Michael Kaufman (SBN 254575) mkaufman@aclusocal.org
3 Dae Keun Kwon (SBN 313155) akwon@aclusocal.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
5 Los Angeles, CA 90017 Telephone: (213) 977-5232
6 Facsimile: (213) 977-5297 7
Attorneys for Plaintiffs 8
*Admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-PSG-SHK Document 40-1 Filed 12/29/17 Page 3 of 30 Page ID #:1486

TABLE OF CONTENTS 1

2 INTRODUCTION .....................................................................................................1

3 BACKGROUND .......................................................................................................2

4

I. The DACA Program .............................................................................2

5

II. Defendants’ Unlawful DACA Termination Practices ..........................5

6 ARGUMENT.............................................................................................................8

7

I. THE PLAINTIFF CLASS IS LIKELY TO SUCCEED ON THE

MERITS. ...............................................................................................8

8

A. DHS’ Automatic Termination of DACA Based Solely on the

9

Issuance of an NTA Is Arbitrary and Capricious in Violation

of the APA. .................................................................................9 10

B. DHS’ Revocation of Class Members’ DACA and EAD

11

Without Process Violates the Agency’s Own Procedures and

Procedural Due Process. ...........................................................14

12

1. DHS’ Revocation Without Notice Violates Its Own

13

Rules and the APA. ........................................................15

14

2. DHS’ Practice of Revoking DACA Without Process

Violates Procedural Due Process. ..................................16 15

II. THE PLAINTIFF CLASS IS SUFFERING IRREPARABLE

16

HARM. ................................................................................................19

17

III. THE REMAINING FACTORS SUPPORT PRELIMINARY

RELIEF. ..............................................................................................23 18

CONCLUSION ........................................................................................................ 25 19

20

21

22

23

24

25

26

27

28

i

Case 5:17-cv-02048-PSG-SHK Document 40-1 Filed 12/29/17 Page 4 of 30 Page ID #:1487

1

TABLE OF AUTHORITIES

2 Cases

3 Alaska Airlines, Inc. v. Long Beach, 951 F.2d 977 (9th Cir. 1991).....................................................................................17
4 Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014)...................................................................8, 20, 21, 23
5 Bell v. Burson, 402 U.S. 535 (1971) ..................................................................................................17
6 Chalk v. United States Dist. Court, 840 F.2d 701 (9th Cir. 1988)..........................................................................21, 22,23
7 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) ..................................................................................................20
8 Colotl v. Duke, No. 17-cv-1670, 2017 WL 2889681 (N.D. Ga. June 12, 2017).........................passim
9 Colotl v. Kelly, No. 1:17-cv-01670-MHC (N.D. Ga. July 31, 2017) ................................................. 16
10 Delgadillo v. Carmichael, 332 U.S. 388 (1947) ..................................................................................................13
11 Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 630 F.3d 1153 (9th Cir. 2011)..............................................................................20,21
12 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ............................................................................................13, 14
13 Gonzalez Torres v. DHS, No. 17-cv-1840, 2017 WL 4340385 (S.D. Cal. Sept. 29, 2017)........................passim
14 Greenwood v. Fed. Aviation Admin., 28 F.3d 971 (9th Cir. 1994).......................................................................................17
15 Jones v. City of Modesto, 408 F. Supp. 2d 935 (E.D. Cal. 2005).......................................................................17
16 Judulang v. Holder, 565 U.S. 42 (2011) ......................................................................................9,10, 12,13
17 Mathews v. Eldridge, 424 U.S. 319 (1976) ................................................................................16, 17, 18, 19
18 Matter of Quintero, 18 I. & N. Dec. 348 (BIA 1982)................................................................................10
19 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012).....................................................................................23
20 Morrissey v. Brewer, 408 U.S. 471 (1972) ..................................................................................................18
21 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ....................................................................................................13
22 Nnebe v. Daus, 644 F.3d 147 (2d Cir. 2011) ......................................................................................17
23 Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956 (9th Cir. 2015)...............................................................................13, 14
24 Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) .................................................................................................... 2
25 Singh v. Bardini, No. 09-cv-3382, 2010 WL 308807 (N.D. Cal. Jan. 19, 2010)..................................17
26 Singh v. Vasquez, No. 08-cv-1901, 2009 WL 3219266 (D. Ariz. Sept. 30, 2009) ..........................18, 19
27 Villa-Anguiano v. Holder, 727 F.3d 873 (9th Cir. 2013).....................................................................................19
28 Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) ........................................................................................................ 8 ii

Case 5:17-cv-02048-PSG-SHK Document 40-1 Filed 12/29/17 Page 5 of 30 Page ID #:1488
1 Statutes
2 5 U.S.C. § 706(2)(A) ................................................................................................9, 13
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
iii

Case 5:17-cv-02048-PSG-SHK Document 40-1 Filed 12/29/17 Page 6 of 30 Page ID #:1489

1

INTRODUCTION

2

In its order of November 20, 2017, this Court granted a preliminary injunction

3 enjoining Defendants’ unlawful termination of Deferred Action for Childhood

4 Arrivals (“DACA”) and employment authorization for Plaintiff Jesús Alonso Arreola

5 Robles (“Mr. Arreola”). The Court held that Defendants’ automatic termination of Mr.

6 Arreola’s DACA based on the filing of a Notice to Appear (“NTA”) that charged him

7 with removal for being present in the United States without admission was arbitrary

8 and capricious and contrary to law in violation of the Administrative Procedure Act

9 (“APA”). See Doc. No. 31, Order Granting Pl.’s Mot. for Prelim. Inj. (“PI Order”) at

10 3-13. Defendants’ revocation of his DACA, despite the absence of any disqualifying

11 convictions, also violated the APA by arbitrarily reversing, without a reasoned

12 explanation, the agency’s decision to grant him DACA in the first place. See id. at 10-

13 11. And Defendants’ failure to provide Mr. Arreola with notice and an opportunity to

14 respond to its termination decision violated the rules of the DACA program. See id. at

15 10-11.

16

Mr. Arreola’s example reflects Defendants’ widespread practice of unlawfully

17 revoking similarly situated immigrants’ DACA grants and work permits without

18 process, even though they continue to meet the requirements of the DACA program.

19 Like Mr. Arreola, Plaintiff José Eduardo Gil Robles lost his DACA after being

20 charged with driving after cancellation of his license, and Plaintiff Ronan Carlos De

21 Souza Moreira lost his DACA after being charged with possession of an altered

22 identification document—both misdemeanor offenses that do not disqualify them

23 from DACA. Indeed, Defendants have admitted that U.S. Citizenship and

24 Immigration Services (“USCIS”) has a practice of automatically terminating DACA

25 based solely on the issuance of an NTA and argued that, under its own policies,

26 USCIS may terminate DACA without providing individuals notice or an opportunity

27 to respond. See Doc. No. 23-2 (Decl. of Ron Thomas) at 79-81. Countless young

28 immigrants have been unlawfully stripped of their DACA and work authorization

1

Case 5:17-cv-02048-PSG-SHK Document 40-1 Filed 12/29/17 Page 7 of 30 Page ID #:1490

1 pursuant to Defendants’ policies and practices or face the unlawful termination of

2 their DACA in the future.

3

As this Court has already recognized, Defendants’ revocation of proposed class

4 members’ DACA and employment authorization is arbitrary, capricious, contrary to

5 law, and conflicts with the government’s own rules, in violation of the APA. The

6 revocation also violates the Fifth Amendment’s Due Process Clause. As with Mr.

7 Arreola, Defendants’ actions have caused proposed class members ongoing

8 irreparable harm, including severe emotional distress and loss of employment and the

9 ability to support themselves and their families. Issuance of a preliminary injunction is

10 particularly urgent here. Because of the imminent end of the DACA program,

11 proposed class members have only limited time remaining on their DACA grants and

12 will lose that limited time absent preliminary relief from this Court.

13

For these reasons, and because they satisfy the other injunction factors,

14 Plaintiffs respectfully ask this Court to grant a classwide preliminary injunction;

15 vacate and enjoin Defendants’ unlawful revocation of Plaintiffs Gil’s, Plaintiff

16 Moreira’s, and proposed class members’ DACA and work permits; and enjoin

17 Defendants from revoking Plaintiffs’ and proposed class members’ DACA and work

18 permits pursuant to their unlawful policies and practices in the future.

19

BACKGROUND1

20

I. The DACA Program

21

Deferred action is a longstanding form of administrative action by which the

22 federal Executive Branch decides, for humanitarian or other reasons, to refrain from

23 seeking a noncitizen’s removal and to authorize his continued presence in the United

24 States. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 484 (1999). On

25 1 Along with Plaintiffs’ Motion for Class Certification filed this same day,

26 Plaintiffs have filed declarations in support of both that motion and the instant motion.

27

Those declarations are the Declaration of Katrina L. Eiland, Declaration of José Eduardo Gil Robles, and Declaration of Ronan Carlos De Souza Moreira, cited herein.

28 Plaintiffs incorporate these declarations by reference.

2

Case 5:17-cv-02048-PSG-SHK Document 40-1 Filed 12/29/17 Page 8 of 30 Page ID #:1491

1 June 15, 2012, the Secretary of the Department of Homeland Security (“DHS”)

2 announced DACA—a deferred action program specifically for young immigrants who

3 came to the United States as children and are present in the country without formal 4 immigration status.2

5

Under DACA, young immigrants who entered the United States as children

6 who meet specified educational and residency requirements, and who pass extensive

7 criminal background checks, are eligible to receive deferred action. Napolitano Memo

8 at 1-2. These enumerated eligibility criteria include the requirements that DACA 9 recipients not have been convicted of a felony, significant misdemeanor,3 or multiple

10 other misdemeanors. Id.

11

A predicate for eligibility for the DACA program is that the individual must

12 lack a lawful immigration status (because he or she is present without admission, or

13 overstayed a visa). Kwon Decl. ¶ 21, Ex. 20 at 44 (DHS DACA Standard Operating

14 Procedures). In addition, the fact that a noncitizen is, has been, or will be in removal

15 proceedings does not disqualify the individual from the program. Napolitano Memo at

16 2.

17

Deferred action through DACA is provided for a renewable period of two years,

18 and DACA recipients may obtain an Employment Authorization Document (“EAD”)

19 and a Social Security Number. See id.at 3. A decision to grant or deny a deferred

20

21

2 See Doc. No. 16-4, Declaration of Dae Keun Kwon (“Kwon Decl.”) ¶ 10, Ex. 9 at 2 (Janet Napolitano, Memorandum on Exercising Prosecutorial Discretion with

22 Respect to Individuals Who Came to the United States as Children (June 15, 2012))

23

(“Napolitano Memo”). Plaintiffs incorporate by reference Doc. Nos. 16-4 to 16-29 (Kwon Decl. and exhibits).

24 3 A significant misdemeanor is a conviction for an offense of “domestic violence;

25

sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or . . . [a conviction] for

26 which the individual was sentenced to time in custody of more than 90 days.” Kwon

27

Decl. ¶ 20, Ex. 19 at 19-20 (U.S. Citizenship and Immigration Services, Frequently Asked Questions about Deferred Action for Childhood Arrivals (updated Oct. 6,

28 2017)).

3

Case 5:17-cv-02048-PSG-SHK Document 40-1 Filed 12/29/17 Page 9 of 30 Page ID #:1492

1 action application or renewal is independent of any proceedings in immigration court;

2 a noncitizen who is in removal proceedings can apply for DACA separately and

3 simultaneously. Id.at 2. See also, e.g., Gonzalez Torres v. DHS, No. 17-cv-1840, 2017

4 WL 4340385, at *6 (S.D. Cal. Sept. 29, 2017) (noting that “an immigration judge has

5 no jurisdiction to reinstate DACA status, or to authorize an application for renewal of

6 DACA status”). USCIS is the division of DHS responsible for evaluating requests for

7 DACA. DHS’ DACA Standard Operating Procedures (“DACA SOPs”) set forth the

8 procedures that the agency must follow in adjudicating and granting DACA

9 applications, as well as in terminating DACA and EADs granted through the program.

10 See PI Order at 2; Kwon Decl. ¶ 21, Ex. 20 (“DACA SOPs”) at 16 (“This SOP is

11 applicable to all Service Center personnel performing adjudicative and clerical

12 functions or review of those functions. Personnel outside of Service Centers

13 performing duties related to DACA processing will be similarly bound by the

14 provisions of this SOP.”); id. (“This SOP describes the procedures Service Centers are

15 to follow when adjudicating DACA requests.”). See also Colotl v. Duke, No. 17-cv-

16 1670, 2017 WL 2889681, at *4 (N.D. Ga. June 12, 2017); Gonzalez Torres, 2017 WL

17 4340385, at *3.

18

On February 20, 2017, DHS Secretary John Kelly issued a memorandum setting

19 forth DHS’ new immigration enforcement priorities.4 However, “by its own terms,

20 [the Kelly memorandum] has no application to the DACA program.” See, e.g., Colotl, 21 2017 WL 2889681, at *12.5

22

23

24 4 Declaration of Katrina L. Eiland (“Eiland Decl.”) ¶ 18, Ex. 3, at 2

25

(Memorandum from John Kelly, Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017)).

26 5 Accord Eiland Decl. ¶ 17, Ex. 2 at 7 (U.S. Department of Homeland Security,

27

Q&A: DHS Implementation of the Executive Order on Enhancing Public Safety in the Interior of the United States (Feb. 21, 2017)) (“Q22: Do these memoranda affect

28 recipients of Deferred Action for Childhood Arrivals (DACA)? A22: No.”).

4

Case 5:17-cv-02048-PSG-SHK Document 40-1 Filed 12/29/17 Page 10 of 30 Page ID #:1493

1

On September 5, 2017, DHS announced that it was rescinding the DACA

2 program and winding it down.6 Although the program is soon ending, DHS officials

3 have confirmed that the same program rules continue to apply until it ends. PI Order at 4 1-2.7

5

6

II. Defendants’ Unlawful DACA Termination Practices

7

Defendants have engaged in a widespread practice of unlawfully revoking

8 individuals’ DACA grants and work permits without process, even though these

9 individuals have not violated the terms of the program and continue to be eligible for

10 it.

11

Multiple DACA recipients around the country have been detained by

12 immigration authorities since President Trump took office. For example, in early

13 September, ten DACA recipients were detained for hours by CBP at a checkpoint in 14 Texas even though they have valid DACA.8 Although they were ultimately released,

15 6 Kwon Decl. ¶ 15, Ex. 14 (Memorandum from Acting Secretary Elaine C. Duke,

16 Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial

Discretion with Respect to Individuals Who Came to the United States as Children” 17 (Sept. 5, 2017)). 18 7 See also Kwon Decl. ¶ 16, Ex. 15 at 15 (Press Briefing by Press Secretary

19

Sarah Sanders and Homeland Security Advisor Tom Bossert, 9/8/2017, #11, The White House, Office of the Press Secretary (explaining that “[d]uring this six-month

20 time, there are no changes that are being made to the program at this point”); Kwon

21

Decl. ¶ 17, Ex. 16 (Testimony of Michael Dougherty, Assistant Secretary of DHS, Committee of the Judiciary, Oversight of the Administration’s Decision to End

22 Deferred Action for Childhood Arrivals (Oct. 3, 2017), https://www.c-

23

span.org/video/?435059-1/trump-administration-officials-testify-decision-rescinddaca at 56:46) (“Dougherty Statement”) (stating, in response to Senator Feinstein’s

24 question about the status of DACA recipients during the phasing out of the program:

25

“We rely on guidance that was put in place in 2012 when the DACA program was instantiated. That’s available on USCIS’s website and will tell you what the priorities

26 are for Immigration Customs enforcement and what they are for the Department at

27

large. Those priorities have not changed.”). 8 Eiland Decl. ¶ 23, Ex. 8 (Lorenzo Zazueta-Castro, UPDATED: Family,

28 Immigration Attorney: DACA Recipients Being Held at Checkpoint, The Monitor,

5

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1 CBP scrutinized their records, presumably looking for a reason to hold them and

2 revoke their DACA. See also Eiland Decl. ¶¶ 2-15 (providing examples). Indeed,

3 immigration officers have been expressly instructed to screen any DACA recipient 4 they encounter in the field for potential enforcement actions.9

5

According to government data, DACA revocations increased by 25 percent

6 after President Trump’s inauguration.10 Since January, there have been numerous

7 cases in which immigration authorities have targeted DACA recipients by revoking

8 their DACA grants and work permits, without providing any notice or process, even

9 though they have engaged in no disqualifying conduct and continue to be eligible for

10 the program. Indeed, Plaintiffs’ counsel are aware of at least 17 cases nationwide. See

11 Eiland Decl. ¶¶ 2-15 (providing examples).

12

Critically, Defendants have admitted in the course of the instant litigation that

13 USCIS has a practice of automatically terminating DACA based solely on the

14 issuance of a Notice to Appear (“NTA”), and have taken the position that under its

15 own policies, USCIS may terminate DACA without providing any notice or

16 meaningful process. See Doc No. 23-2 at 79-81 (Decl. of Ron Thomas) (“The

17 issuance of a Notice to Appear (NTA) by U.S. Immigration and Customs Enforcement

18 (ICE) or U.S. Customs and Border Protection (CBP) automatically terminates DACA.

19 . . . This has been USCIS’ practice since FY 2013 when such terminations began.”).

20

21

22 Sept. 11, 2017, http://www.themonitor.com/news/article_1ced27f4-970e-11e7-a609-

23

47c4564b53ec.html). 9 Eiland Decl. ¶ 21, Ex. 6 (Valerie Gonzalez, Border Patrol Memo States

24 Procedures to Process all DACA Recipients, KRGV, Sept. 25, 2017,

25

http://www.krgv.com/story/36450600/border-patrol-memo-states-procedures-toprocess-all-daca-recipients); Eiland Decl. ¶ 22, Ex. 7 (Valerie Gonzalez, Tweet, Sept.

26 25, 2017, https://twitter.com/ValOnTheBorder/status/912505757958119426).

27

10 Eiland Decl. ¶ 20, Ex. 5 (Keegan Hamilton, Targeting Dreamers, Vice News, Sept. 8, 2017, https://news.vice.com/story/ice-was-going-after-dreamers-even-before-

28 trump-killed-daca).

6

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1

The named Plaintiffs’ experiences illustrate Defendants’ practices and the

2 harms they inflict. Plaintiff José Eduardo Gil Robles (“Gil”), now 24 years old, has

3 lived in the United States since he was five. Declaration of José Eduardo Gil Robles

4 (“Gil Decl.”) ¶ 1. He has five younger siblings, all of whom are U.S. citizens, and is

5 very active in his Catholic church. Id. ¶¶ 3, 5. USCIS granted him DACA in 2015 and

6 renewed it in August 2017. Id. ¶¶ 9, 10. Until he lost his DACA, he worked at a

7 logistics company, and paid about half his family’s rent and bills. Id. ¶¶ 11-12. On

8 September 20, 2017, he was arrested and ultimately charged with driving on a

9 cancelled license, which was linked to the validity of his first DACA grant. Id. ¶ 14.

10 Even if convicted, the offense would not have disqualified him for DACA. But a

11 month later, he was arrested at work by immigration agents, who placed him in

12 removal proceedings. Id. ¶ 15. Like Mr. Arreola, whose preliminary injunction motion

13 this Court already granted, Mr. Gil found out that USCIS automatically terminated his

14 DACA upon the issuance of a Notice to Appear in removal proceedings—even though

15 Mr. Gil was charged only with presence without admission. Id. ¶¶ 15, 22. Losing his

16 DACA has caused Mr. Gil to lose his job and has harmed his family, which relied on

17 him for support. Id. ¶¶ 24-26. It has also caused him emotional harm, leading him to

18 become hopeless and depressed. Id.

19

Plaintiff Ronan Carlos De Souza Moreira (“Moreira”) lives in the Atlanta area

20 with his family, most of whom are U.S. citizens or lawful permanent residents.

21 Declaration of Ronan Carlos De Souza Moreira (“Moreira Decl.”) ¶¶ 1, 5-6. He is 24

22 years old and has lived in the United States since middle school, becoming a youth

23 leader in his church, volunteering and traveling, and rising to the position of

24 installation manager at a flooring firm. Id. ¶¶ 2-3, 6, 9. The government approved Mr.

25 Moreira’s application for DACA three times—in 2013, 2015, and 2017. Id. ¶ 7; see

26 also id. ¶ 27, Ex. C. But after being charged with possession of an altered

27 identification document—a misdemeanor that would not per se render him ineligible

28 for DACA even if he were convicted—Mr. Moreira lost his DACA without any

7

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1 notice, process, or explanation. Id. ¶¶ 14, 18-19. Like Mr. Arreola and Mr. Gil, Mr.

2 Moreira found out that his DACA was automatically terminated upon the issuance of

3 a Notice to Appear in removal proceedings—even though Mr. Moreira was charged

4 only with overstaying a visa. Id. The loss of DACA has upended Mr. Moreira’s life,

5 causing him emotional harm and leaving him unable to plan for the future. Id. ¶¶ 20-

6 22.

7

8

ARGUMENT

9

The Court should issue a preliminary injunction. To prevail, Plaintiffs must

10 show: (1) a likelihood of success on the merits, (2) likely irreparable harm in the

11 absence of such relief, (3) that the balance of equities tips in their favor, and (4) that

12 an injunction is in the public interest. Arizona Dream Act Coalition v. Brewer, 757

13 F.3d 1053, 1060 (9th Cir. 2014) (citing Winter v. Nat. Res. Def. Council, 555 U.S. 7,

14 20 (2008)). Plaintiffs satisfy all four factors.

15

16 I. THE PLAINTIFF CLASS IS LIKELY TO SUCCEED ON THE MERITS.

17

Plaintiffs and the proposed class are likely to succeed on their APA claims,

18 which are substantially the same as the claims raised by Plaintiff Arreola, and as to

19 which this Court has already found a substantial likelihood of success. See PI Order at

20 3-13. The proposed Plaintiff class is also likely to succeed on the merits of the

21 procedural due process claim.

22

First, as this Court has concluded, Defendants’ practice of automatically

23 terminating DACA when immigration authorities file a NTA—including based solely

24 on presence without admission to the United States or overstaying a visa—is arbitrary

25 and capricious and contrary to law in violation of the APA. See PI Order at 8-13.

26

Second, Defendants’ practice of revoking DACA for individuals who lack any

27 disqualifying criminal convictions without process is unlawful under the APA because

28

8

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1 it reflects the agency’s reversal of its decision to grant DACA in the first place,

2 without providing a reasoned explanation for the change. See PI Order at 10-11.

3

Third, Defendants’ failure to provide DACA recipients with notice and an

4 opportunity to respond violates the rules governing the DACA program, see PI Order

5 at 10-11, is arbitrary and capricious and contrary to law in violation of the APA, and

6 violates the Due Process Clause.

7

A. DHS’ Automatic Termination of DACA Based Solely on the Issuance of an

8

NTA Is Arbitrary and Capricious in Violation of the APA.

9

For multiple reasons, Defendants’ practice of terminating DACA based solely

10 on the issuance of an NTA charging the DACA recipient with presence without

11 admission or overstaying a visa is arbitrary and capricious and contrary to law in

12 violation of the APA. 5 U.S.C. § 706(2)(A). See PI Order at 8-13.

13

The Supreme Court has made clear that under § 706(2)(A), “agency action must

14 be based on non-arbitrary, ‘relevant factors.’” Judulang v. Holder, 565 U.S. 42, 55

15 (2011) (citation omitted). Judulang emphasized that “courts retain a role, and an

16 important one, in ensuring that agencies have engaged in reasoned decisionmaking.”

17 Id. at 53. “When reviewing an agency action, [courts] must assess, among other

18 matters, ‘whether the decision was based on a consideration of the relevant factors and

19 whether there has been a clear error of judgment.’” Id. (citation omitted).

20

In Judulang, the Supreme Court considered a Board of Immigration Appeals

21 (“BIA”) rule governing eligibility for a form of relief—suspension of deportation—

22 which was not provided for in the Immigration and Nationality Act, and was therefore

23 entirely discretionary. 565 U.S. at 46-47. Although the relief was ultimately within the

24 agency’s discretion, the Court made clear that the rules applied by the agency with

25 respect to that relief must still reflect reasoned decisionmaking. The Court emphasized

26 that “[a] method for disfavoring deportable aliens . . . that neither focuses on nor

27 relates to an alien’s fitness to remain in the country—is arbitrary and capricious.” Id.

28 at 55. The Supreme Court ultimately invalidated the BIA rule because it was based on

9

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1 “a matter irrelevant to the alien’s fitness to reside in this country,” and concluded that

2 the BIA therefore “has failed to exercise its discretion in a reasoned manner.” Id. at

3 53. See also PI Order at 8-9 (discussing Judulang).

4

Defendants’ practice of terminating DACA based solely on the issuance of an

5 NTA charging unlawful presence in the United States fails this test for multiple

6 reasons. First, as this Court has concluded, DHS’ practice is arbitrary and irrational

7 because “a noncitizen’s deportability due to unauthorized presence in the United

8 States . . . provides no relevant basis for terminating DACA.” PI Order at 9. As the

9 Court has explained, the Napolitano Memorandum and DACA SOPs “enumerate the

10 relevant considerations for a DACA grant, and not only is unauthorized presence an

11 unmentioned factor, but the program was specifically designed for persons without

12 lawful immigration status.” PI Order at 9. Nothing in those rules suggests that the fact

13 that a noncitizen is subject to removal because he lacks a lawful immigration status is

14 a basis for denial or termination. Indeed, the DACA rules indicate the opposite—the

15 fact that a person is present without admission or has overstayed his visa is irrelevant.

16 See, e.g., DACA SOPs at 44. This is because the lack of a lawful immigration status in

17 the United States is a predicate for eligibility for DACA and is a fact that is therefore

18 true of every DACA recipient. Id. Because the lack of a lawful immigration status is a

19 factor common to every single DACA recipient, and is wholly irrelevant to whether an

20 individual is eligible for DACA, the issuance of an NTA charging presence without

21 admission or visa overstay does not provide a reasoned basis for terminating DACA.

22

Second, as this Court has concluded, “[t]he program’s rules also make clear that

23 even noncitizens who are, have been, or will be placed in removal proceedings are

24 nonetheless eligible for DACA.” PI Order at 9. The rules thus reinforce the conclusion

25 that an NTA based on presence without admission to the United States does not

26 provide a reasoned basis for termination. The Napolitano Memorandum itself requires

27 that the eligibility “criteria are to be considered whether or not an individual is already

28 in removal proceedings or subject to a final order of removal.” Napolitano Memo at 2.

10

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1 See also Kwon Decl. ¶ 17, Ex. 16 (Dougherty Statement) (“The 2012 memorandum

2 also made clear that individuals could be considered for DACA even if they were

3 already in removal proceedings or were subject to a final removal order.”).

4 Implementing this command, the SOPs provide that “[i]ndividuals in removal

5 proceedings may file a DACA request.” DACA SOPs at 71. Indeed, even individuals

6 with final removal orders can be granted DACA. See, e.g., id. at 74 (providing that

7 individuals with final removal orders may be considered for DACA); id. at 75

8 (providing that an individual who has been removed after issuance of a final removal

9 order, re-entered, and is subject to reinstatement of that removal order continues to be

10 eligible for DACA). Cf. Matter of Quintero, 18 I. & N. Dec. 348, 350 (BIA 1982)

11 (explaining in context of removal proceedings that “the respondent can request

12 deferred action status at any stage in the proceeding”). Further, the DACA SOPs

13 provide that if an NTA is issued against a DACA applicant while his application is

14 pending with USCIS—even if the NTA is based on a public safety concern—USCIS

15 should “proceed with adjudication . . . , taking into account the basis for the NTA.”

16 See Kwon Decl. ¶ 22, Ex. 21 (Revised Guidance for the Referral of Cases and

17 Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and

18 Removable Aliens (Nov. 7, 2011)) , at 4 ( “ICE’s issuance of an NTA allows USCIS

19 to proceed with adjudication . . . , taking into account the basis for the NTA”); DACA

20 SOPs at 93 (providing that if ICE accepts a case referred to it by USCIS during the

21 DACA application process, then USCIS “will follow the standard protocols outlined

22 in the November 7, 2011 NTA memorandum”).

23

In such cases, USCIS is required to review all relevant circumstances, and may

24 grant the DACA request “[i]f a DACA requestor has been placed in proceedings on a

25 ground that does not adversely impact the exercise of prosecutorial discretion.”

26 DACA SOPs at 75. See also PI Order at 9; DACA SOPs at 74 (providing that for

27 DACA applicants with final removal orders, “[f]inal removal orders . . . should be

28 reviewed carefully to examine the underlying grounds for removal”). As this Court

11

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1 has concluded, given that the filing of an NTA against a DACA applicant, or even the

2 issuance of a final order of removal against a DACA applicant, does not render the

3 individual ineligible for the program, DHS’ practice of automatically terminating

4 DACA on this basis is arbitrary and irrational. PI Order at 9-10.

5

Third, DHS’ practice of automatically and categorically terminating DACA

6 based on an NTA is arbitrary and capricious because the agency fails, despite

7 proposed class members’ continued eligibility for the program, to consider the

8 relevant facts and circumstances and exercise its individualized discretion. This failure

9 to consider each individual’s specific circumstances undermines the very purpose of

10 the DACA program. See Napolitano Memorandum at 2 (explaining that “[o]ur

11 Nation’s immigration laws . . . . are not designed to be blindly enforced without

12 consideration given to the individual circumstances of each case”). The agency’s

13 failure to exercise its individualized discretion is also inconsistent with its own rules,

14 as described above. Those rules make clear that if someone is the subject of an NTA,

15 USCIS should consider all of the relevant circumstances, including the ground for

16 removal charged in the NTA, to determine whether DACA is appropriate or whether

17 the individual is disqualified. The DACA rules also make clear that when the ground

18 in the NTA does not adversely impact a DACA grant—including, presumably, when

19 the ground is one that all or most DACA recipients could be charged with—the

20 individual is not disqualified from DACA.

21

Fourth, and as this Court has held, USCIS’ practice of terminating DACA

22 automatically based on the filing of an NTA is arbitrary and capricious because it

23 leaves the question of whether an individual continues to warrant a DACA grant and

24 EAD solely up to a CBP or ICE officer’s charging decision in issuing an NTA. PI

25 Order at 10. In Judulang, the Supreme Court emphasized that an additional reason

26 why the BIA’s rule was impermissibly arbitrary was that under the rule, whether a

27 noncitizen would be granted discretionary relief may “rest on the happenstance of an

28 immigration official’s charging decision.” 565 U.S. at 57. See also id. at 58

12

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1 (recognizing “the high stakes for an alien who has long resided in this country,” and

2 noting that the Court has “reversed an agency decision that would ‘make his right to

3 remain here dependent on circumstances so fortuitous and capricious’”) (quoting

4 Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947)). The same is true here: where a

5 class member’s “DACA [i]s revoked automatically due to the issuance of the NTA,

6 everything h[angs] on the fortuity of one CBP officer’s decision.” PI Order at 10.

7

Fifth, in terminating proposed class members’ individual DACA grants and

8 EADs and finding that the issuance of an NTA automatically renders them ineligible

9 for DACA, DHS is departing from its prior position without “a reasoned analysis for

10 the change,” in violation of the APA. Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

11 Auto. Ins. Co., 463 U.S. 29, 42 (1983). See also PI Order at 10-11; 5 U.S.C.

12 § 706(2)(A). An agency may depart from its prior decision, but it is black letter law

13 that if it does so, it “is obligated to supply a reasoned analysis for the change.” State

14 Farm, 463 U.S. at 42. See also FCC v. Fox Television Stations, Inc., 556 U.S. 502,

15 515 (2009) (“[T]he agency must show that there are good reasons for the new

16 policy.”).

17

In these cases, DHS has previously determined that the individual proposed

18 class member is eligible for and warrants a DACA grant on at least one occasion, and

19 in many cases on multiple occasions. The agency reached these individual

20 determinations after evaluating each DACA applicant’s school records and other

21 circumstances, as well as conducting extensive background checks. PI Order at 10.

22

In terminating DACA, the agency is abruptly reversing course. The agency does

23 so even though now, as before, each proposed class member continues to be eligible

24 for DACA. Nonetheless, USCIS provides class members with a boilerplate one-

25 sentence statement that his or her DACA and EAD have been “terminated

26 automatically” because a NTA was issued. See, e.g., Kwon Decl. ¶ 9, Ex. 8; Moreira

27 Decl. ¶ 26, Ex. B; Gil Decl. ¶ 30, Ex. B. As this Court has concluded, USCIS’s one-

28 sentence explanation fails to provide “good reasons” for the agency’s change in

13

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1 position, as required by the APA. PI Order at 10. See also Fox Television Stations,

2 Inc., 556 U.S. at 515; Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956,

3 968 (9th Cir. 2015) (explaining that the agency is “required to provide a ‘reasoned

4 explanation . . . for disregarding’ the ‘facts and circumstances’ that underlay its

5 previous decision”) (citations omitted). As this Court explained, “[g]iven that all

6 DACA recipients are necessarily removable due to their unauthorized presence, the

7 agency’s reliance on an NTA citing . . . presence without admission simply fails to

8 explain, much less justify, an agency’s decision to reverse course and terminate []

9 DACA.” PI Order at 10-11 (internal quotation marks and citation omitted).

10

As this Court has recognized, the agency’s failure to explain its decision is also

11 invalid because it fails to mention, let alone account for, each proposed class

12 member’s “substantial reliance interests.” PI Order at 11. Plaintiffs and the proposed

13 class members have lived in the United States since a young age, and have relied on

14 DACA to build a life, obtain rewarding employment as young adults, and help support

15 themselves and their families. See Fox Television Stations, Inc., 556 U.S. at 515

16 (explaining that an agency must give a “more detailed justification” for a policy

17 change if its “prior policy has engendered serious reliance interests that must be taken

18 into account”). DHS’ failure to provide a reasoned explanation for its change in

19 position is arbitrary and capricious. See, e.g., Organized Vill. of Kake, 795 F.3d at

20 967-68 (holding that the defendant agency failed to provide “good reasons” for

21 reversing its old policy).

22

For all these reasons, DHS’ practices of changing its position without providing

23 a reasoned explanation and terminating Plaintiffs’ and class members’ DACA based

24 merely on an NTA charging unlawful presence is arbitrary and capricious in violation

25 of the APA.

26

B. DHS’ Revocation of Class Members’ DACA and EAD Without Process

27

Violates the Agency’s Own Procedures and Procedural Due Process.

28

14

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1

1. DHS’ Revocation Without Notice Violates Its Own Rules and the APA.

2

DHS’ automatic termination of proposed class members’ DACA and EAD

3 without notice or an opportunity to be heard also violates DHS’ own rules and is

4 therefore arbitrary and capricious under the APA.

5

The DACA SOPs provide that USCIS generally will not terminate a recipient’s

6 DACA and EAD without prior notice and an opportunity to respond. See, e.g., DACA

7 SOPs Chapter 14, Termination, at 136-38 (if DACA granted in error, or granted as a

8 result of fraud, officer is directed to issue a “Notice of Intent to Terminate,” allow

9 recipient “33 days to file a brief or statement contesting the grounds cited in [the

10 notice],” and terminate only where the adverse grounds are not overcome). See also

11 Colotl, 2017 WL 2889681, at *7 (“[T]he SOP provides that, in the usual circumstance,

12 a termination of an individual’s DACA status will not occur without prior notice to

13 that individual.”). As this Court has recognized, “unless there are criminal, national

14 security, or public safety concerns, the DACA termination guidelines prescribe the

15 issuance of a Notice of Intent to Terminate and require that the individual should be

16 allowed 33 days to file a brief or statement contesting the grounds cited.” PI Order at

17 11 (internal quotation marks and citation omitted). Although the DACA SOPs contain

18 a procedure for termination of DACA if ICE issues an NTA, such termination is

19 permitted only under narrow circumstances involving certain serious public safety

20 concerns, and only after DHS follows specific procedures. See Gonzalez Torres, 2017

21 WL 4340385, at *6 (finding that USCIS’ termination of DACA in response to “NTA

22 issued by USCBP in connection with removal proceedings” charging recipient with

23 being present without admission did not comply with DACA SOPs); see also DACA

24 SOPs Chapter 14, Termination, at 137 (enumerating procedures to be followed in

25 cases involving disqualifying criminal offenses or public safety concerns).11

26

27

11 Defendants may attempt to argue that, where a noncitizen otherwise eligible for DACA is an enforcement priority under the Kelly Memorandum, the DACA rules do

28 not require notice and an opportunity to respond prior to termination. However, the

15

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1

In sum, because Defendants’ practice of terminating DACA without process

2 violates Defendants’ own termination procedures, the practice is arbitrary and

3 capricious. See Gonzalez Torres, 2017 WL 4340385, at *5 (“Defendants’ failure to

4 follow the termination procedures set forth in the DACA SOP is arbitrary, capricious,

5 and an abuse of discretion.”); Colotl, 2017 WL 2889681, at *12 n.6 (“Defendants’

6 actions were likely arbitrary and capricious in violation of the APA by . . . terminating

7 her DACA status in contravention of DHS’s own procedures.”).

8

2. DHS’ Practice of Revoking DACA Without Process Violates

Procedural Due Process.

9

In addition to violating its own procedures, DHS’ practice of revoking DACA

10 without providing any process violates proposed class members’ procedural due

11 process rights. Plaintiffs and the proposed class members have gained a protected

12 interest in their DACA, which authorized them to live and work in the United States

13 until the expiration date of their DACA grants, and therefore have a right to a fair

14 procedure before it can be revoked. Yet DHS has reversed these decisions without

15 providing Plaintiffs and proposed class members with adequate notice, a reasoned

16 explanation, or an opportunity to present arguments and evidence to demonstrate that

17 they remain eligible for the program and did not engage in any disqualifying criminal

18 activity.

19

The Constitution “imposes constraints on governmental decisions which

20 deprive individuals of ‘liberty’ or ‘property’ interests.” Mathews v. Eldridge, 424 U.S.

21

22 Kelly Memorandum on its face makes clear that the new enforcement priorities do not

23

affect the DACA program. See Colotl, 2017 WL 2889681, at *12 (holding that “the Kelly Memo, by its own terms, has no application to the DACA program”); id. at *7

24 (emphasizing that the Kelly Memorandum “specifically excludes” the DACA

25

program); id. at *8 (noting that DHS’s public guidance is “clear and unambiguous” that the Kelly Memorandum does not affect the DACA program); Colotl v. Kelly, No.

26 1:17-cv-01670-MHC (N.D. Ga. July 31, 2017) (Doc. No. 43) (Order Denying

27

Reconsideration at 7-8). Moreover, applying the Kelly Memorandum to revoke DACA based on conduct or criminal history that the DACA SOPs and DACA

28 Memorandum provide is not disqualifying is inconsistent with the program rules.

16

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1 319, 332 (1976). Regardless of whether the individual had a claim of entitlement

2 before it was granted, once an important benefit is conferred, recipients have a

3 protected property interest sufficient to require a fair process before the government

4 may take it away. See Bell v. Burson, 402 U.S. 535, 539 (1971) (holding that,“[o]nce

5 [driver’s] licenses are issued, . . . their continued possession may become essential in

6 the pursuit of a livelihood,” such that they cannot “be taken away without” due

7 process); Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (holding that parole

8 revocation requires due process; parolees may “have been on parole for a number of

9 years and may be living a relatively normal life[,]” all the while “[having] relied on at

10 least an implicit promise that parole will be revoked only if [the parolee] fails to live

11 up to the parole conditions”); Nnebe v. Daus, 644 F.3d 147, 158-69 (2d Cir. 2011)

12 (recognizing that taxi drivers have a protected property interest in the continued

13 possession of their operating licenses and remanding to determine if suspension

14 hearing satisfied due process); Singh v. Bardini, No. 09-cv-3382, 2010 WL 308807, at

15 *7 (N.D. Cal. Jan. 19, 2010) (“Even if there is no constitutional right to be granted

16 asylum, that does not mean that, once granted, asylum status can be taken away

17 without any due process protections.”) (internal citation omitted).

18

Plaintiffs and the proposed class members’ DACA and EADs are essential to

19 their ability to remain lawfully present in the United States and earn a livelihood to

20 support themselves and their families. See Alaska Airlines, Inc. v. Long Beach, 951

21 F.2d 977, 986 (9th Cir. 1991) (finding ordinance permitting airport to automatically

22 reduce flights already allocated to air carriers by license violated air carriers’ due

23 process rights where allocations were crucial to enterprise); Jones v. City of Modesto,

24 408 F. Supp. 2d 935, 951 (E.D. Cal. 2005) (finding that city could not revoke existing

25 massage license without due process) (citing Greenwood v. Fed. Aviation Admin., 28

26 F.3d 971, 975 (9th Cir. 1994) (“The Ninth Circuit specifically recognized that an

27 existing license, in contrast to an applied for license, constitutes a legitimate

28 entitlement of which one cannot be deprived without due process.”)). Plaintiffs and

17

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1 the proposed class members have reasonably relied on the implicit promise that they

2 could retain their DACA grants and EADs so long as they satisfied the program’s

3 eligibility requirements. See Morrissey, 408 U.S. at 482. The government’s reversal of

4 its previous decision that they were eligible for and warranted DACA inflicts precisely

5 the kind of “serious loss” that requires due process protections. Mathews, 424 U.S. at

6 348 (internal quotation marks omitted).

7

Determining the procedure necessary to meet constitutional standards requires

8 evaluation of three distinct factors:

9

First, the private interest that will be affected by the official action;

10

second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or

11

substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens

12

that the additional or substitute procedural requirement would entail.

13 Id. at 335.

14

Evaluation of these factors demonstrates that Plaintiffs and the proposed class

15 members must be afforded at least the pre-termination process that DHS generally

16 provides for under its own rules—i.e., adequate notice of the allegedly adverse

17 grounds and an opportunity to respond and contest the decision. The private interest at

18 stake could not be more significant. The termination of DACA rescinds proposed

19 Plaintiffs and class members’ authorization to live and work in the United States—the

20 country they have called home from a young age. Instead of following its own

21 prescribed process, DHS’s practice is to terminate proposed class members’ DACA

22 without notice. The lack of any opportunity to contest the termination decision creates

23 an unacceptably high risk of erroneous deprivation. See Singh v. Vasquez, No. 08-cv-

24 1901, 2009 WL 3219266, at *5 (D. Ariz. Sept. 30, 2009), aff’d, 448 F. App’x 776 (9th

25 Cir. Aug. 31, 2011) (“[T]here is a substantial risk of erroneous deprivation through the

26 procedures utilized by INS in rescinding asylum via a mailed letter. This manner of

27 termination does not account for anything other than post hoc notice that . . . he or she

28 is no longer entitled to protection.”). Providing Plaintiffs and proposed class members

18

Case 5:17-cv-02048-PSG-SHK Document 40-1 Filed 12/29/17 Page 24 of 30 Page ID #:1507

1 with a reasoned explanation for the government’s actions and an opportunity to

2 present arguments and evidence could make all the difference, because it will allow

3 proposed class members to demonstrate that they have not engaged in any

4 disqualifying criminal activity (or even been charged with any crime) and remain

5 eligible for DACA. Indeed, Mr. Arreola’s circumstances highlight the value of the “an

6 opportunity to contest the [termination] determination at a meaningful time,” as he

7 would have been able to show that CBP’s allegations had been mistaken, as the

8 immigration judge had concluded. See Villa-Anguiano v. Holder, 727 F.3d 873, 882

9 (9th Cir. 2013). See also id.at 881 (holding that BIA “must consider all favorable and

10 unfavorable factors relevant to the exercise of its discretion; failure to do so

11 constitutes an abuse of discretion”). And both Mr. Gil and Mr. Moreira could

12 demonstrate that the minor offenses that they have been charged with do not

13 disqualify them from DACA, and that they have deep family ties, strong work

14 histories, and other positive equities favoring continuation of DACA in the totality of

15 the circumstances. See Gil Decl. ¶¶ 1-6, 11-14; Moreira Decl. ¶¶ 1-6, 9-14, 21. The

16 fact that DHS’ rules already provide for these basic pre-deprivation protections in

17 most circumstances reinforces both that the value of such safeguards is high, and that

18 providing such limited process would not place undue fiscal or administrative burdens

19 on the government. Vasquez, 2009 WL 3219266, at *6 (“To conclude, all of the

20 Mathews factors weigh in favor of a finding that due process requires more than

21 sending an after the fact letter of rescission when the government terminates a grant of

22 asylum.”).

23 II. THE PLAINTIFF CLASS IS SUFFERING IRREPARABLE HARM.

24

Absent an injunction, Plaintiffs and the proposed class will continue to

25 experience irreparable harm that cannot be cured by their ultimate success on the

26 merits in this case.

27

There is no question that revocation of proposed class members’ DACA and

28 loss of their EADs has derailed their careers and undermined their employment.

19

Case 5:17-cv-02048-PSG-SHK Document 40-1 Filed 12/29/17 Page 25 of 30 Page ID #:1508

1 Indeed, a recent survey concluded that, like Plaintiffs, 91 percent of DACA recipients

2 were employed, including at top Fortune 500 companies such as Walmart, Apple,

3 General Motors, Amazon, JPMorgan Chase, Home Depot, and Wells Fargo. Sixty-

4 nine percent of DACA recipients reported that their earnings “helped [them] become 5 financially independent.”12 Stripping DACA recipients of their DACA and EADs

6 directly results in loss of employment and earnings, as well as lost opportunities to

7 gain education and experience: 94% of DACA recipients have “pursued educational 8 opportunities that [they] previously could not” because of DACA.13 As this Court has

9 held, “the deprivation of Plaintiff’s earnings and job opportunities caused by the loss

10 of his DACA and EAD constitutes irreparable harm.” See PI Order at 13-14.

11 Consistent with this Court’s holding, the Ninth Circuit has made clear that the “loss of

12 opportunity to pursue [one’s] chosen profession” constitutes irreparable harm. Enyart

13 v. Nat’l Conference of Bar Exam’rs, Inc., 630 F.3d 1153, 1165 (9th Cir. 2011); see

14 also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543 (1985) (“We have

15 frequently recognized the severity of depriving a person of the means of livelihood.”).

16 The harms faced by Plaintiffs illustrate the adverse effects on proposed class members

17 of losing one’s DACA and EAD. For example, because he lost his EAD, Mr. Arreola

18 had to leave his job as a cook at Chateau Marmont, and because CBP took possession

19 of his car, he has been unable to work as a driver. Arreola Decl. ¶ 40. See also, e.g., 20 Gil Decl. ¶ 24. The classwide effects are similar.14

21 12 See Eiland Decl. ¶ 31, Ex. 16 at 3, 4 (Tom K. Wong et al, DACA Recipients’

22 Economic and Educational Gains Continue to Grow, Center for American Progress,

23

Aug. 28, 2017, https://www.americanprogress.org/issues/immigration/news/2017/08/28/437956/daca-

24 recipients-economic-educational-gains-continue-grow/).

13
25 14

Id. at 4. See, e.g., Eiland Decl. ¶ 31, Ex. 16; Eiland Decl. ¶ 39, Ex. 24 (Raul Hinojosa-

26 Ojeda, The Economic Benefits of Expanding the Dream: DAPA and DACA Impacts on

27

Los Angeles and California, North American Integration and Development Center, UCLA, Jan. 26, 2015,

28 http://www.naid.ucla.edu/uploads/4/2/1/9/4219226/central_valley_final.pdf).

20

Case 5:17-cv-02048-PSG-SHK Document 40-1 Filed 12/29/17 Page 26 of 30 Page ID #:1509

1

Such loss of employment is more than enough to justify an injunction in this

2 circuit. In Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014), for

3 example, the Ninth Circuit reversed a district court’s denial of a preliminary

4 injunction on harm grounds, and held that the DACA recipients had established

5 irreparable harm because the defendants’ policy had “diminished [plaintiffs’]

6 opportunity to pursue their chosen professions.” Id. at 1068. See also PI Order at 13-

7 14; Enyart, 630 F.3d at 1165; Gonzalez Torres, 2017 WL 4340385, at *6 (finding that

8 irreparable harm caused by defendants’ termination of DACA without notice

9 “includes the loss of employment, a core benefit under DACA” and that such

10 “deprivation of employment impacts Plaintiff’s ability to financially provide for

11 himself and his family”). Moreover, setbacks at an early stage in proposed class

12 members’ careers may never be recoverable. Time without DACA is “productive time

13 irretrievably lost” that the proposed class members could be spending in their chosen

14 career paths, building toward the future for themselves and their families. Chalk v.

15 United States Dist. Court, 840 F.2d 701, 710 (9th Cir. 1988). See also Arizona Dream

16 Act Coal., 757 F.3d at 1068 (“The irreparable nature of Plaintiffs’ injury is heightened

17 by Plaintiffs’ young age and fragile socioeconomic position. Setbacks early in their

18 careers are likely to haunt Plaintiffs for the rest of their lives.”).

19

In addition, losing DACA has rendered many proposed class members’

20 ineligible for driver’s licenses, which in the vast majority of states are conditioned on 21 showing lawful presence in the United States.15 Indeed, 90 percent of DACA

22 recipients obtained driver’s licenses or state identification card for the first time after 23 receiving DACA.16 Without driver’s licenses, proposed class members are unable to

24

25

15 See Eiland Decl. ¶ 32, Ex. 17 at 2 (Nat’l Immigration Law Center, Access to Driver’s Licenses for Immigrant Youth Granted DACA, May 31, 2015,

26 https://www.nilc.org/issues/drivers-licenses/daca-and-drivers-licenses/).

27

16 See Eiland Decl. ¶ 42, Ex. 27 at 4 (Tom K. Wong et al, New Study of DACA Beneficiaries Shows Positive Economic and Educational Outcomes, Center for

28 American Progress, Oct. 18, 2016,

21

Case 5:17-cv-02048-PSG-SHK Document 40-1 Filed 12/29/17 Page 27 of 30 Page ID #:1510

1 accomplish the basic tasks of everyday life, such as driving to school, church, or the

2 grocery store or taking their siblings or children to daycare or the doctor’s office.

3

Finally, the abrupt revocation of proposed class members’ DACA and EADs

4 also causes emotional distress. See, e.g., Arreola Decl. ¶ 40; Gil Decl. ¶ 26 (loss of

5 DACA has left plaintiff feeling “depressed” and “hopeless and stressed”); Moreira

6 Decl. ¶ 20, 22 (describing fear and depression resulting from uncertainty following the

7 loss of DACA). These harms are common to the class. Numerous studies have shown

8 that both DACA recipients themselves and their family members—especially their

9 children—suffer psychological harm from the fear and uncertainty that accompany the 10 loss of benefits.17 Thus even if the proposed class members could later recover their

11 lost income, their emotional distress in the interim constitutes an irreparable injury in

12 itself. See Chalk, 840 F.2d at 709. See also Colotl, 2017 WL 2889681, at *12

13 (“Plaintiff’s emotional distress . . . is another factor in determining that Plaintiff will 14 suffer irreparable injury without the entry of a preliminary injunction.”).18

15 https://www.americanprogress.org/issues/immigration/news/2016/10/18/146290/new-

16 study-of-daca-beneficiaries-shows-positive-economic-and-educational-outcomes/) 17 See, e.g., Eiland Decl. ¶ 40, Ex. 25 at 3 (Anna Maria Barry-Jester, The End of
17 DACA Will Ripple Through Families and Communities, FiveThirtyEight, Sept. 6,

18 2017, https://fivethirtyeight.com/features/the-end-of-daca-will-ripple-through-

19

families-and-communities/) (describing, inter alia, anxiety suffered by children of undocumented parents); Eiland Decl. ¶ 41, Ex. 26 at 1 (Dinah Wiley, New Study

20 Findings on Mixed-Status Immigrant Families: Threat of Family Separation Affects

21

Health of the Children, Georgetown University Health Policy Institute Center for Children and Families, June 13, 2013, https://ccf.georgetown.edu/2013/06/13/new-

22 study-findings-on-mixed-status-immigrant-families-threat-of-family-separation-

23

affects-health-of-the-children/) (describing, inter alia, anxiety suffered by children of undocumented parents); Declaration of Jens Hainmueller and Duncan Lawrence

24 (describing declarants’ research, published in Science, demonstrating that mothers’

25

eligibility for DACA improves the mental health of their children). 18 See Eiland Decl. ¶ 33, Ex. 18 (Tiziana Rinaldi, DACA recipients saw their

26 mental health improve. Now, advocates fear its end will have the opposite effect, PRI,

27

Nov. 22, 2017, https://www.pri.org/stories/2017-11-22/study-found-daca-improvedmental-health-its-recipients-which-why-researchers) (termination of DACA causes

28 DACA recipients to lose “ontological security” and potential “distress, negative

22

Case 5:17-cv-02048-PSG-SHK Document 40-1 Filed 12/29/17 Page 28 of 30 Page ID #:1511

1 III. THE REMAINING FACTORS SUPPORT PRELIMINARY RELIEF.

2

Preliminary relief will not harm the government. The government will not be

3 adversely affected by enjoining the revocation of Plaintiffs’ and class members’

4 DACA, since the proposed class includes only individuals who remain eligible for the

5 program.

6

By contrast, the public interest strongly favors a preliminary injunction. The

7 public interest is served when the government complies with its obligations under the

8 APA and the Constitution and follows its own procedures. As the Ninth Circuit has

9 emphasized, “[I]t is clear that it would not be equitable or in the public’s interest to

10 allow the state . . . to violate the requirements of federal law, especially when there are

11 no adequate remedies available.” Arizona Dream Act Coal., 757 F.3d at 1069 (citation

12 and internal quotation marks omitted) (alteration and ellipsis in original). See also

13 Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“[I]t is always in the public

14 interest to prevent the violation of a party’s constitutional rights.”) (citation and

15 internal quotation marks omitted); Colotl, 2017 WL 2889681, at *12 (“[T]he public

16 has an interest in government agencies being required to comply with their own

17 written guidelines instead of engaging in arbitrary decision making.”).

18

Further, stripping class members of their professions and authorization to work

19 is not in the public interest. The vast majority (71%) of DACA recipients have been 20 able to help their families financially through their earnings; 19 job loss means that

21 many DACA recipient’s families would lose a crucial support, and many of those

22 family members are U.S. citizens—78% of DACA recipients have an American 23 citizen spouse, sibling, or child.20 For example, Mr. Arreola’s family relies on him

24 heavily. He plays a critical role in the care of his sister who has serious disabilities,

25

26 emotions, depression and anxiety”) (quoting Catlin Patler, Ph.D).

19
27 20

See Eiland Decl. ¶ 31, Ex. 16 at 3. See Eiland Decl. ¶ 49, Ex. 34, at 2 (U.C. San Diego U.S. Immigration Policy

28 Center, DACA Stats and Facts, dacastatsandfacts.com).

23

Case 5:17-cv-02048-PSG-SHK Document 40-1 Filed 12/29/17 Page 29 of 30 Page ID #:1512

1 and he contributes to the support of his family. Arreola Decl. ¶¶ 4-5, 16. He was also a

2 valued employee at the Chateau Marmont. Id. ¶¶ 14, 40-41. See also, e.g., Gil Decl. ¶¶

3 11, 24.

4

Moreover, recent studies have estimated that DACA recipients as a whole have

5 contributed billions of dollars to the U.S. economy, contributing not only their labor

6 and productivity, but buying homes, cars, and other goods and services; stripping

7 proposed class members of their DACA and EADs would harm the public interest by 8 decreasing class members’ contribution to the economy.21 Economists have estimated

9 that DACA would contribute $280 billion to $460 billion to GDP over the next 10 decade, including $60 billion in lost taxes.22 The government’s policy of revoking

11 class members’ DACA also imposes high costs on employers, who must search for 12 new employees at a time of low unemployment and high demand for skilled labor.23

13 21 See, e.g., Eiland Decl. ¶ 34, Ex. 19 at 2 (Nicole Prchal Svajlenka, Tom Jawetz,

14 and Angie Bautista-Chavez, A New Threat to DACA Could Cost States Billions of

Dollars, Center for American Progress, July 21, 2017, 15 https://www.americanprogress.org/issues/immigration/news/2017/07/21/436419/new-

16 threat-daca-cost-states-billions-dollars/); Eiland Decl. ¶ 35, Ex. 20 at 2 (Silva

Mathema, Ending DACA Will Cost States Billions of Dollars, Center for American 17 Progress, January 9, 2017,

18 https://www.americanprogress.org/issues/immigration/news/2017/01/09/296125/endin

19

g-daca-will-cost-states-billions-of-dollars/); Eiland Decl. ¶ 36, Ex. 21 at 1-3 (Ian Salisbury, The Insane Economic Cost of Ending DACA, Time, Sept. 7, 2017,

20 http://time.com/money/4928394/daca-economic-cost-trump/).

21

22 Id. See also, e.g., Eiland Decl. ¶ 43, Ex. 28 at 1-3 (John W. Shoen, US GDP would take a hit from DACA deportations, report finds, CNBC, Aus. 8, 2017,

22 https://www.cnbc.com/2017/08/31/u-s-gdp-would-take-a-hit-from-daca-deportations-

23

report-finds.html); Eiland Decl. ¶ 44, Ex. 29 (Chad Stone, The High Costs of Ending DACA, US News & World Report, Sept. 29, 2017,

24 https://www.usnews.com/opinion/economic-intelligence/articles/2017-09-29/why-

25

ending-daca-and-deporting-dreamers-makes-no-economic-sense); Eiland Decl. ¶ 45, Ex. 30 at 1-2 (Alana Abramson, Here’s How Much Money Rescinding DACA Could

26 Cost the U.S. Economy, Fortune, Sept. 6, 2017, http://fortune.com/2017/09/05/daca-

27

donald-trump-economic-impact/). 23 See Eiland Decl. ¶ 46, Ex. 31 at 3 (Julissa Arce, Ending This Immigration

28 Program would Devastate the Economy, Fortune, July 21, 2017,

24

Case 5:17-cv-02048-PSG-SHK Document 40-1 Filed 12/29/17 Page 30 of 30 Page ID #:1513

1

Enjoining the government’s policy of revoking DACA without justification

2 would serve the public interest, protecting American families and businesses and

3 requiring the government to comply with the APA and the Constitution.

4

CONCLUSION

5

For the reasons given, the Court should grant (1) Plaintiffs’ Motion for a

6 Classwide Preliminary Injunction, (2) vacate and enjoin Defendants’ unlawful

7 revocation of Plaintiffs Gil’s and Moreira’s DACA and EADs, as well as the DACA

8 and EADs of proposed class members whose DACA has been terminated since

9 January 19, 2017, and (3) enjoin Defendants from terminating Plaintiffs’ and proposed

10 class members’ DACA and EADs pursuant to their unlawful policies in the future.

11

12 Dated: December 29, 2017

Respectfully submitted,

13

/s/ Jennifer Chang Newell

14

Jennifer Chang Newell

15

Katrina L. Eiland Michael K. T. Tan*

16

David Hausman*

17

ACLU FOUNDATION

IMMIGRANTS’ RIGHTS PROJECT

18

19

Ahilan T. Arulanantham

Michael Kaufman

20

Dae Keun Kwon

21

ACLU FOUNDATION

OF SOUTHERN CALIFORNIA

22

23

Attorneys for Plaintiffs

24 http://fortune.com/2017/07/21/daca-dream-act-2017-new-immigration-news/)

25

(estimating the cost to employers in having to find and replace their employees if the DACA program is rescinded at around $3.4 billion); Eiland Decl. ¶ 47, Ex. 32 at 2

26 (Paul Davidson, DACA’s end would hurt the economy, USA TODAY, Sept. 8, 2017,

27

https://www.usatoday.com/story/money/2017/09/08/dacas-end-would-hurt-economyhiring/638835001/) (describing DACA importance for U.S. businesses struggling to

28 find high-skilled employees).

25

Case 5:17-cv-02048-PSG-SHK Document 40-2 Filed 12/29/17 Page 1 of 5 Page ID #:1514

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)
13

14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

15

16 INLAND EMPIRE – IMMIGRANT

) Case No. 5:17-cv-2048-PSG-SHK

YOUTH COLLECTIVE, et al., on behalf )

17 of themselves and others similarly situated, )

)

18

Plaintiffs,

)

) [PROPOSED] ORDER

19

v.

) GRANTING PLAINTIFFS’

) MOTION FOR A CLASSWIDE

20 KIRSTJEN NIELSEN, Secretary, U.S. ) PRELIMINARY INJUNCTION

Department of Homeland Security, et al., )

21

)

Defendants. 22
23

) ) ) ) )

Judge: Hon. Philip S. Gutierrez Courtroom: 6A Hearing: February 26, 2018 Time: 1:30 p.m.

24

)

)

25

)

)

26

)

27

28

Case 5:17-cv-02048-PSG-SHK Document 40-2 Filed 12/29/17 Page 2 of 5 Page ID #:1515
1 Ahilan T. Arulanantham (SBN 237841) aarulanantham@aclusocal.org
2 Michael Kaufman (SBN 254575) mkaufman@aclusocal.org
3 Dae Keun Kwon (SBN 313155) akwon@aclusocal.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
5 Los Angeles, CA 90017 Telephone: (213) 977-5232
6 Facsimile: (213) 977-5297 7
Attorneys for Plaintiffs 8
* Admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-PSG-SHK Document 40-2 Filed 12/29/17 Page 3 of 5 Page ID #:1516

1

[PROPOSED] ORDER

2

The Court has considered the parties’ briefing, evidence, arguments, and

3 authorities cited in support of their positions. Upon due consideration, the Court

4 hereby GRANTS Plaintiffs’ Motion for a Classwide Preliminary Injunction.

5 Defendants and their agents, employees, assigns, and all those acting in concert with

6 them are enjoined as follows:

7 1. It is hereby ORDERED that Defendants are preliminarily enjoined from

8 terminating grants of Deferred Action for Childhood Arrivals (“DACA”) and related

9 employment authorization documents (“EADs”) of class members absent a fair

10 procedure that complies with the Department of Homeland Security (“DHS”) DACA

11 Standard Operating Procedures as well as the Memorandum from Janet Napolitano,

12 Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the

13 United States as Children (June 15, 2012), available at

14 https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-

15 individuals-who-came-to-us-as-children.pdf, and which includes, at a minimum,

16 notice, a reasoned explanation, and an opportunity to be heard prior to termination.

17 2. It is hereby ORDERED that Defendants are preliminarily enjoined from

18 terminating grants of DACA and related EADs based solely on the issuance of a

19 Notice to Appear (“NTA”) that charges the DACA recipient as removable due to his

20 or her presence in the United States without admission or having overstayed a visa.

21 3. It is hereby ORDERED that Defendants’ decisions after January 19, 2017 to

22 terminate the DACA grants and EADs of class members, without notice, a reasoned

23 explanation, or an opportunity to respond prior to termination, are preliminarily

24 enjoined. Defendants immediately will restore those individuals’ DACA and EADs,

25 subject to their original date of expiration.

26 4. It is hereby ORDERED that Defendants accept and adjudicate any applications

27 to renew DACA by individuals whose DACA grant and EAD would have expired on

28 or before March 5, 2018, but were unable to apply for or obtain a renewal as a result

1

Case 5:17-cv-02048-PSG-SHK Document 40-2 Filed 12/29/17 Page 4 of 5 Page ID #:1517

1 of Defendants’ unlawful revocation decision, consistent with the terms of this Order.

2 Implementation Procedures

3 5. Within seven days of this Order, the parties will meet and confer to develop a

4 notice that explains the requirements of this Order and provides class members with

5 contact information for Class Counsel. Within 14 days of this Order, Defendants will

6 send the notice to all individuals whose DACA grant and EAD was revoked after

7 January 19, 2017 without advance issuance of a Notice of Intent to Terminate

8 (“NOIT”) and provide copies of those notices to Class Counsel.

9

Within 14 days of this Order:

10 6. Defendants shall identify all DACA recipients whose DACA grant and EAD

11 was revoked after January 19, 2017 without issuance of a NOIT and determine if they

12 have been convicted of a disqualifying criminal offense. If the individual has not been

13 convicted of a disqualifying criminal offense, Defendants immediately will restore the

14 individual’s DACA grant and issue the individual a new EAD.

15 7. If the individual’s restored DACA grant and EAD have expired as of the date of

16 this Order or will expire on or before March 5, 2018, Defendants will permit the

17 individual 60 days from the date of this Order to submit a DACA renewal application

18 to U.S. Citizenship and Immigration Services. If the individual’s restored DACA

19 grant and EAD expired on or before the date of this Order, Defendants temporarily

20 will restore that individual’s DACA grant and EAD for the 60-day period to submit a

21 renewal application.

22 8. Defendants shall provide Class Counsel with a list of all DACA recipients

23 whose DACA grant and EAD was revoked after January 19, 2017 without issuance of

24 a NOIT. That list shall include the following information for each person:

25

• Name, Alien Number, Mailing Address, and Phone Number;

26

• The date the individual’s most recent DACA grant and EAD was granted;

27

• The date the individual’s most recent DACA grant and EAD was set to expire;

28

• The date the individual’s most recent DACA grant and EAD was revoked;

2

Case 5:17-cv-02048-PSG-SHK Document 40-2 Filed 12/29/17 Page 5 of 5 Page ID #:1518

1

• Whether the individual was found to have a disqualifying criminal conviction

2

and, if so, what conviction(s);

3

• If applicable, the date the individual’s DACA grant and EAD was restored.

4 For each such person, Defendants also will provide Class Counsel with copies of the

5 Notices of Action previously terminating the person’s DACA grant and EAD, as well

6 as the Notices of Action and EADs for individuals whose DACA grants and EADs are

7 restored pursuant to this Order, including those DACA grants and EADs that are

8 temporarily restored pursuant to paragraph 7.

9

10

IT IS SO ORDERED.

11

12 DATED: ___________, 2018 13 14

____________________________________ THE HONORABLE PHILIP S. GUTIERREZ UNITED STATES DISTRICT JUDGE

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

Case 5:17-cv-02048-PSG-SHK Document 40-3 Filed 12/29/17 Page 1 of 8 Page ID #:1519

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)
13

14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

15

16 INLAND EMPIRE – IMMIGRANT

)

YOUTH COLLECTIVE, et al., on behalf ) Case No. 5:17-cv-02048-PSG-SHK

17 of themselves and others similarly situated, ) )

18

Plaintiffs,

19

v.

20 KIRSTJEN NIELSEN, Secretary, U.S. Department of Homeland Security, et al.,
21 Defendants.

)

) ) ) ) ) ) )

DECLARATION OF JENS HAINMUELLER AND DUNCAN LAWRENCE IN SUPPORT OF PLAINTIFFS’ MOTION FOR A CLASSWIDE PRELIMINARY INJUNCTION

22

)

23 24

) ) ) ) )

Judge: Hon. Philip S. Gutierrez Courtroom: 6A Hearing: February 26, 2018 Time: 1:30 p.m.

25

)

)

26

27

28

Case 5:17-cv-02048-PSG-SHK Document 40-3 Filed 12/29/17 Page 2 of 8 Page ID #:1520
1 Ahilan T. Arulanantham (SBN 237841) aarulanantham@aclusocal.org
2 Michael Kaufman (SBN 254575) mkaufman@aclusocal.org
3 Dae Keun Kwon (SBN 313155) akwon@aclusocal.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
5 Los Angeles, CA 90017 Telephone: (213) 977-5232
6 Facsimile: (213) 977-5297 7
Attorneys for Plaintiffs 8
* Admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-PSG-SHK Document 40-3 Filed 12/29/17 Page 3 of 8 Page ID #:1521

1

We, Jens Hainmueller and Duncan Lawrence, declare and state as follows:

2

1. Jens Hainmueller is a Professor of Political Science and Faculty Co-

3 director of the Immigration Policy Lab (“IPL”) at Stanford University, Stanford,

4 California. Duncan Lawrence is the Executive Director of IPL. We write this

5 declaration in our personal capacity as experts in support of Plaintiffs.

6

a. Jens Hainmueller is a Professor of Political Science at Stanford

7

University and is the Co-founder and Faculty Co-director of

8

IPL. Mr. Hainmueller received his PhD from Harvard University

9

and also studied at the London School of Economics, Brown

10

University, and the University of Tübingen. Before joining

11

Stanford, he served on the faculty of the Massachusetts Institute of

12

Technology. He has published more than 40 articles in peer-

13

reviewed journals. A copy of his curriculum vitae is attached

14

(Exhibit A).

15

b. Duncan Lawrence is the Executive Director of IPL. Mr. Lawrence

16

received his PhD in political science from the University of

17

Colorado Boulder, and has published several peer-reviewed articles

18

on immigration. A copy of his curriculum vitae is attached (Exhibit

19

B).

20

2. In 2017, we (along with other colleagues) co-authored a peer-reviewed

21 study about the intergenerational effects of parental immigration status on children’s

22 health. This study was published in Science, and a copy is attached to this declaration

23 (Exhibit C).

24

3. Our study focused on the Deferred Action for Childhood Arrivals (DACA)

25 program, which is one of the most extensive policies directed toward unauthorized

26 immigrants in recent decades. It builds on prior studies that have found that DACA is

27 related to higher rates of employment and improved health outcomes.

28

Case 5:17-cv-02048-PSG-SHK Document 40-3 Filed 12/29/17 Page 4 of 8 Page ID #:1522

1

4. Our study used data from Emergency Medicaid, a government program

2 that provides coverage for emergencies and labor and delivery services for low-

3 income individuals who are not eligible for Medicaid. The program serves

4 unauthorized immigrants and lawful permanent residents with less than 5 years of

5 residency. Estimates from states such as California indicate that 90 to 99% of

6 Emergency Medicaid recipients are unauthorized immigrants. In addition, because

7 U.S.-born children of unauthorized immigrants are U.S. citizens, they are eligible for

8 full-scope Medicaid benefits (if meeting all requirements) and can be tracked with

9 Medicaid claims data. We limited our sample to children whose mothers were under

10 age 31 as of June 15, 2012—a date tied to the DACA eligibility criterion announced

11 when DACA was adopted on June 15, 2012. Our data did not reflect whether

12 mothers apply for DACA, but given that mothers who were born just before or after

13 the DACA birthdate cutoff are similar in confounding characteristics, we can isolate

14 the intention-to-treat effect of DACA eligibility on the health of their children.

15

5. Using this sampling criteria, we used Medicaid claims data from Oregon to

16 identify 5,653 mothers born between 1980 and 1982 who were covered by

17 Emergency Medicaid and gave birth to 8,610 children between 2003 and 2015. We

18 then tracked the children’s mental health outcomes by using their Medicaid claims.

19 The children in our sample were born in Oregon and are therefore U.S. citizens by

20 birth; 49% are female, 73% are Hispanic, and they were between 0 and 12 years old

21 in 2015.

22

6. Although parental DACA eligibility could affect a broad range of child

23 health outcomes, we focused on the impacts on children’s mental health. Because

24 DACA offered the mothers immediate relief from the risk of deportation, maternal

25 stress might have declined, and their children would no longer have had to fear being

26 separated from them. Therefore, the children’s mental well-being could have

27 improved. Moreover, examining mental health disorders that originate in childhood

28 is important because they are associated with long-term health issues, low education,

Case 5:17-cv-02048-PSG-SHK Document 40-3 Filed 12/29/17 Page 5 of 8 Page ID #:1523

1 and welfare dependence, which generate considerable private and social costs. Our

2 main child outcome is a broad measure of any diagnoses of adjustment disorder,

3 acute stress disorder, or anxiety disorder, measured using all diagnoses in the

4 International Classification of Diseases 9 (ICD-9) categories 309, 308, and 300:

5

a. Adjustment disorder is a reaction to an identified stressor, leading to

6

an inability to function normally. It is diagnosed on the basis of

7

symptoms of anxiety, depressed mood, and conduct disturbances and

8

often results in considerable impairment in important areas of

9

functioning, such as social activities, school performance, and sleep.

10

b. Acute stress disorder can be a precursor to a diagnosis of a more

11

lasting posttraumatic stress disorder (included in the ICD-9 category

12

309, adjustment disorder). It is characterized by symptoms or

13

behaviors similar to those that arise from exposure to a traumatic or

14

stressful event, but acute stress disorders cannot (by definition) last

15

longer than 1 month.

16

c. Anxiety disorders are characterized by excessive fear, anxiety, and

17

related behavioral disturbances that can lead to substantial distress or

18

impairment. An external stressor might not be clearly identified, and

19

anxiety disorders can be caused by environmental, genetic, or

20

physiological factors.

21 These mental health disorders in childhood are associated with considerable

22 developmental, psychosocial, and psycho-pathological complications for children and

23 their families.

24

7. We found that mothers’ eligibility for DACA protection led to a significant

25 improvement in their children’s mental health. Specifically, Mothers’ DACA

26 eligibility reduced adjustment and anxiety disorder diagnoses in their children by 4.3

27 percentage points (P = 0.023) from a baseline rate of 7.9% among children of

28 ineligible mothers at the threshold. This reduction represents more than a 50% drop

Case 5:17-cv-02048-PSG-SHK Document 40-3 Filed 12/29/17 Page 6 of 8 Page ID #:1524

1 in the rate of these disorders (albeit with a wide 95% confidence interval (CI) for the

2 magnitude of the estimated effect) and provides evidence that mothers’ DACA

3 eligibility sharply improved their children’s mental health.

4

8. The causal link between parental DACA eligibility and positive child

5 mental health outcomes is based on the idea that the DACA birthdate cutoff is an

6 arbitrary date, and, therefore, children of ineligible mothers born just before the

7 birthdate cutoff should be similar in all respects, including in possible confounding

8 characteristics, to children of DACA-eligible mothers born just after the cutoff. We

9 corroborated this continuity assumption by testing for differences in the prevalence of

10 disorder diagnoses in the children during a similar time period pre-DACA (2003 to

11 quarter 2, 2012) and at the cutoff date. We confirmed that there were no discernible

12 difference in the prevalence of disorder diagnoses at the same cutoff date for the pre-

13 DACA period. The difference in diagnosis rates at the cutoff was a statistically

14 insignificant 0.4 percentage points. All our tests suggested that we can isolate the

15 causal effects of mothers’ DACA eligibility at the birthdate cutoff.

16

9. We also confirmed that there were no discernible differences in diagnoses

17 at the same birthdate cutoff among children of mothers who were covered by

18 standard Medicaid at the time they gave birth. These mothers should not be affected

19 by DACA eligibility, given that standard Medicaid in Oregon is open only to low-

20 income U.S. citizens and long-term lawful permanent residents. This check again

21 underscores that, in the absence of changes in DACA eligibility, there is no evidence

22 of confounders associated with having a mother who is born just before or after the

23 cutoff date that could explain the observed post-DACA difference in child mental

24 health outcomes.

25

10. Because health care utilization could be affected by immigration status, we

26 also checked for the possibility that the drop in diagnoses reflects a DACA-induced

27 change in health care visits, which could affect the probability of detection of mental

28 health disorders. We found no support for this. Mothers’ DACA eligibility had no

Case 5:17-cv-02048-PSG-SHK Document 40-3 Filed 12/29/17 Page 7 of 8 Page ID #:1525

1 discernible impact on their children’s health care utilization during the post-DACA

2 period, as measured either by the total number of visits, the number of emergency

3 room (ER) and urgent care visits, or the number of outpatient visits. Consistent with

4 this, in a non-prespecified analysis, we also found that the effects of mothers’ DACA

5 eligibility on child mental health were similar when we restricted the sample to

6 children who had at least one health care visit in the post-DACA period.

7

11. Our results provide causal evidence supporting the theory that parental

8 unauthorized immigration status has important intergenerational effects on the well-

9 being and development of children in immigrant families. Protecting unauthorized

10 immigrants from deportation led to immediate and sizable improvements in the

11 mental health of their U.S. citizen children. This suggests that parents’ unauthorized

12 status is a substantial stressor that stymies normal child development and perpetuates

13 health inequalities by transferring parental disadvantages to children.

14

12. Our findings have important implications for DACA policy. Prior research

15 has suggested that early childhood exposure to stress and adversity does not only

16 cause poor health and impaired development in the short term; the issues can also

17 persist into adulthood. Anxiety and psychosocial stress have been identified as risk

18 factors for depression, substance abuse, cardiovascular diseases, and obesity.

19 Treatment of mental disorders also carries considerable economic costs. Prior

20 research indicates that they account for the highest total health care expenditures of

21 all children’s medical conditions and that they are associated with poor long-term

22 outcomes for school performance and welfare reliance. By reducing mental health

23 problems, deferred action can therefore have important multiplier effects through

24 improving the future prospects of the children of unauthorized immigrants.

25

13. Conversely, the termination of recipients’ DACA is likely to erode the

26 mental health gains we measured and lead to corresponding economic and public

27 health costs in both the short-term and long term.

28

Case 5:17-cv-02048-PSG-SHK Document 40-3 Filed 12/29/17 Page 8 of 8 Page ID #:1526

1

We declare under penalty of perjury under the laws of the United States that the

2 foregoing is true and correct and that this declaration was executed on December 20,

3 2017 in Stanford, California.

4

5

___________________________

JENS HAINMUELLER

6

7

___________________________

8

DUNCAN LAWRENCE

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 
 Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 1 of 48 Page ID #:722

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Attorneys for Plaintiffs (Additional counsel listed on following page)
7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

INLAND EMPIRE – IMMIGRANT

) Case No. 5:17-cv-2048-PSG-SHK

11 YOUTH COLLECTIVE, JESUS ALONSO )

ARREOLA ROBLES, JOSE EDUARDO )

12 GIL ROBLES, AND RONAN CARLOS )

DE SOUZA MOREIRA, on behalf of

)

13 themselves and others similarly situated, )

) FIRST AMENDED CLASS

14

Plaintiffs,

) ACTION COMPLAINT

)

15

v.

)

)

16 KIRSTJEN NIELSEN, Secretary, U.S. )

Department of Homeland Security; JAMES )

17 McCAMENT, Acting Director, U.S.

)

Citizenship and Immigration Services;

)

18 MARK J. HAZUDA, Director, Nebraska )

Service Center, U.S. Citizenship and

)

19 Immigration Services; SUSAN M.

)

CURDA, Los Angeles District Director, )

20 U.S. Citizenship and Immigration Services; )

THOMAS D. HOMAN, Deputy Director )

21 and Senior Official Performing the Duties )

of the Director, U.S. Immigration and

)

22 Customs Enforcement; DAVID MARIN, )

Los Angeles Field Office Director, U.S. )

23 Immigration and Customs Enforcement; )

KEVIN K. McALEENAN, Acting

)

24 Commissioner, U.S. Customs and Border )

Protection,

)

25

)

Defendants.

)

26

)

)

27

)

28

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 2 of 48 Page ID #:723
1 Michael K. T. Tan* mtan@aclu.org
2 David Hausman* dhausman@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 125 Broad Street, 18th Floor New York, NY 10004
5 Telephone: (212) 549-2660 Facsimile: (212) 549-2654
6 Ahilan T. Arulanantham (SBN 237841)
7 aarulanantham@aclusocal.org Michael Kaufman (SBN 254575)
8 mkaufman@aclusocal.org Dae Keun Kwon (SBN 313155)
9 akwon@aclusocal.org ACLU FOUNDATION OF SOUTHERN CALIFORNIA
10 1313 West 8th Street Los Angeles, CA 90017
11 Telephone: (213) 977-5232 Facsimile: (213) 977-5297
12 13 Attorneys for Plaintiffs 14 * Admitted pro hac vice 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 3 of 48 Page ID #:724

1 2 1.

INTRODUCTION President Trump has said that “dreamers should rest easy,”1 yet his

3 administration has placed these young immigrants, who came to the United States as

4 children, directly at risk. Since 2012, the federal government’s Deferred Action for

5 Childhood Arrivals (“DACA”) program has provided temporary protection from

6 deportation (known as “deferred action”) and authorization to work in the United 7 States for nearly 800,000 young immigrants.2 Now, not only is President Trump

8 sunsetting the protections provided to these immigrant youth under DACA, but his

9 Administration is eroding the strength of those protections even while the program

10 winds down. On his watch, federal immigration authorities have targeted numerous

11 DACA recipients and unlawfully revoked the grants of deferred action and work

12 permits they have received even though these individuals have abided by all the

13 program rules and have not engaged in any conduct that would disqualify them from

14 the program. This lawsuit challenges these unlawful revocation practices.

15 2. For over half a decade, the DACA program has provided permission to live and

16 work in the United States for these young people who have known no other country as

17 home. The DACA program has allowed these talented young immigrants to come out

18 of the shadows, obtain higher education, begin their careers, and contribute more fully

19 to their communities. To establish eligibility for the program, DACA recipients must

20 undergo extensive background checks, in addition to meeting multiple other stringent

21

22

23 1 Transcript of AP Interview with President Trump, Associated Press, Apr. 23,

24 2017, https://apnews.com/c810d7de280a47e88848b0ac74690c83.

25

2 See U.S. Citizenship & Immigration Servs., Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics

26 and Case Status: Fiscal Year 2012-2017 (June 30, 2017),

27

https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studie s/Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_performance

28 data_fy2017_qtr3.pdf.

1

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 4 of 48 Page ID #:725

1 criteria. Noncitizens granted DACA are eligible to receive employment authorization 2 and a Social Security Number.3

3 3. As former President Obama explained when first announcing the DACA

4 program, these young people “are Americans in their heart, in their minds, in every 5 single way but one: on paper.”4 President Obama recognized that “it makes no sense”

6 to deport these “young people who study in our schools, . . . play in our 7 neighborhoods, [are] friends with our kids, [and] pledge allegiance to our flag.”5

8 4. Despite the critically important interests at stake once an individual has

9 received a grant of DACA, the U.S. Department of Homeland Security (“DHS”) has a

10 practice of unlawfully and arbitrarily revoking DACA grants and work authorization

11 based (apparently) on alleged conduct or minor criminal history that does not

12 disqualify the individual from the program—including mere arrests or charges that are

13 later resolved in the individual’s favor. As a result, many young noncitizens who grew

14 up in this country have had their permission to remain and ability to work stripped

15 away from them, instantaneously losing their ability to support themselves and their

16 families, even though they have done nothing to change their eligibility for DACA.

17 5. Because of the government’s unlawful practices, other young immigrants across

18 the country are at likewise at risk of wrongfully losing their DACA protections.

19 6. Plaintiff Inland Empire – Immigrant Youth Collective (“IEIYC”) is a grassroots

20 organization based in Ontario, California, that serves the immigrant community in the

21 Inland Empire region by engaging in outreach and advocacy. IEIYC has multiple

22

23

3 See Frequently Asked Questions, DHS DACA FAQs, U.S. Citizenship & Immigration Servs., https://www.uscis.gov/humanitarian/consideration-deferred-

24 action-childhood-arrivals-process/frequently-asked-questions (hereinafter “USCIS

25

DACA FAQs”). 4 President Barack Obama, Remarks on Immigration Reform and Exchange with

26 Reporters, 2012 DAILY COMP. PRES. DOC. 1 (June 15, 2012),

27

https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-presidentimmigration.

28 5 Id.

2

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 5 of 48 Page ID #:726
1 members whose lives have been changed by DACA, which has made it possible for 2 them to pursue their education and careers, contribute to their communities, and 3 achieve economic stability. Like hundreds of thousands of other immigrants, IEIYC’s 4 members have relied on the promises made by the federal government in the DACA 5 program. However, because of the government’s arbitrary revocation practices, 6 IEIYC’s members fear that their DACA grants and work permits could be unlawfully 7 terminated. 8 7. Plaintiff Jesús Alonso Arreola Robles (“Arreola”) is a 23-year-old resident of 9 the Los Angeles area whose DACA grant and work permit was terminated without 10 any process. He has known the United States as his only home since he was just one 11 year old. DHS found him eligible for and granted him DACA in 2012, 2014, and 12 again in 2016. At the time that DHS terminated his DACA, Mr. Arreola was working 13 two jobs to help support his family—one as a cook at the famed Chateau Marmont in 14 West Hollywood, and one as a driver for Uber and Lyft. Mr. Arreola’s earnings 15 helped support his parents, both of whom are lawful permanent residents, and his 16 three U.S. citizen sisters—one of whom has significant disabilities. 17 8. Despite his valid DACA grant and lack of any criminal history, federal 18 immigration authorities arrested Mr. Arreola in February 2017 while he was driving a 19 customer; falsely alleged that he was trying to help his customer smuggle people into 20 the United States; and placed him in removal proceedings. Even though an 21 immigration judge promptly rejected the smuggling allegation, and he was never 22 charged with any crime, DHS nonetheless revoked his DACA grant and employment 23 authorization. Although this Court issued a preliminary injunction on November 20, 24 2017, enjoining the government’s termination of Mr. Arreola’s DACA and 25 employment authorization, the government has now indicated that it intends to 26 terminate his DACA again, even though he remains eligible under the DACA program 27 rules. The government is targeting Mr. Arreola as an “enforcement priority,” even 28
3

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 6 of 48 Page ID #:727

1 though, because he is eligible for DACA, he is by definition a low priority under the

2 DACA rules.

3 9. Like Mr. Arreola, Plaintiffs José Eduardo Gil Robles (“Gil”) and Ronan Carlos

4 De Souza Moreira (“Moreira”) had their DACA grants and employment authorization

5 documents abruptly stripped from them, without any notice or opportunity to respond,

6 even though they had not done anything to disqualify themselves from the program.

7 Plaintiffs Arreola, Gil, and Moreira are just a few of the many young immigrants who

8 have had their DACA suddenly and unlawfully cut off.

9 10. The government’s practice of terminating DACA, apparently based on

10 unsubstantiated allegations or minor criminal history, even though the individual has

11 never engaged in any disqualifying conduct, violates the federal Administrative

12 Procedure Act (“APA”) and the Due Process Clause of the Fifth Amendment to the

13 U.S. Constitution. Individual Plaintiffs Arreola, Gil, and Moreira (hereinafter

14 collectively, “Individual Plaintiffs”), on behalf of themselves and a nationwide class

15 of others similarly situated, respectfully request that this Court: declare the

16 government’s revocation practices unlawful; order that the government vacate and

17 enjoin the revocation of the Individual Plaintiffs’ DACA grants and employment

18 authorization, as well as those of class members who have suffered unlawful

19 revocation; order the government to accept renewal applications from Individual

20 Plaintiffs and class members; and enjoin the government from revoking DACA grants

21 and work authorization pursuant to its unlawful policies and practices in the future.

22

JURISDICTION AND VENUE

23 11. Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1343, and the APA, 5

24 U.S.C. § 702.

25 12. Declaratory and injunctive relief are available pursuant to 28 U.S.C. §§ 2201-

26 2202 and the APA, 5 U.S.C. §§ 702-703.

27 13. Venue is proper in this Court under 28 U.S.C. § 1391(e) because Defendants

28 Kirstjen Nielsen, James McCament, Mark J. Hazuda, Susan M. Curda, Thomas D.

4

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 7 of 48 Page ID #:728

1 Homan, David Marin, and Kevin K. McAleenan are Officers of the United States

2 acting in their official capacities, and DHS, U.S. Citizenship and Immigration

3 Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”), and U.S.

4 Customs and Border Protection (“CBP”) are agencies of the United States.

5 Additionally, Plaintiffs Arreola and IEIYC, as well as Defendants Susan M. Curda

6 and David Marin, all reside in this judicial district.

7 14. In addition, numerous DACA recipients similarly situated to the Individual

8 Plaintiffs, and who are members of the proposed class, reside in this district. With

9 over 200,000 DACA recipients residing in the state, California has the most DACA

10 recipients of any state in the country.

11

PARTIES

12 15. Plaintiff Inland Empire – Immigrant Youth Collective is a grassroots,

13 immigrant youth-led organization located in Ontario, California. Since 2010, the

14 organization has served the undocumented immigrant community in the Inland

15 Empire and has sought to empower those most impacted by immigration policy

16 through outreach and policy advocacy. The majority of IEIYC’s active membership

17 are current DACA recipients who depend on having DACA to attend school, build

18 their careers, and participate in IEIYC’s work throughout Riverside and San

19 Bernardino Counties.

20 16. Plaintiff Jesús Alonso Arreola Robles is a 23-year-old resident of the Los

21 Angeles area. He was brought to the United States from Mexico in 1995, when he was

22 one year old, and has lived in the United States ever since. From August 2012 to

23 August 2018, federal immigration authorities granted Mr. Arreola permission to live

24 and work in the United States pursuant to the DACA program. In February 2017,

25 however, Defendants terminated his DACA grant and employment authorization

26 without notice or an opportunity to be heard, and without any opportunity for

27 reinstatement. Mr. Arreola’s DACA grant was revoked even though he remains

28

5

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 8 of 48 Page ID #:729
1 eligible for the program and has never been convicted of any disqualifying criminal 2 offense. 3 17. Plaintiff José Eduardo Gil Robles is 24-year-old resident of Coon Rapids, 4 Minnesota, near Minneapolis. He has lived in the United States since he was five 5 years old, when he entered the country from Mexico. From August 2015 to August 6 2019, federal immigration authorities granted Mr. Gil permission to live and work in 7 the United States pursuant to the DACA program. In November 2017, however, 8 Defendants terminated his DACA grant and employment authorization without notice 9 or an opportunity to be heard, and without any opportunity for reinstatement. Mr. 10 Gil’s DACA grant was revoked even though he remains eligible for the program and 11 has never been convicted of any disqualifying criminal offense. 12 18. Plaintiff Ronan Carlos De Souza Moreira is a 24-year-old resident of 13 Kennesaw, Georgia, near Atlanta. Mr. Moreira, a native of Brazil who first arrived in 14 the United States on a visitor’s visa, has lived in this country for almost twelve years. 15 He considers the United States his home. The federal government granted him DACA 16 three times, in 2013, 2015, and again in 2017, before USCIS terminated his DACA 17 grant and employment authorization without notice or an opportunity to be heard, and 18 without any opportunity for reinstatement. Mr. Moreira’s DACA grant was revoked 19 even though he remains eligible for the program and has never been convicted of any 20 disqualifying criminal offense. 21 19. Defendant Kirstjen Nielsen is sued in her official capacity as the Secretary of 22 DHS. DHS is a cabinet department of the United States federal government with 23 responsibility for, among other things, administering and enforcing the nation’s 24 immigration laws. As DHS Secretary, Ms. Nielsen is responsible for the 25 administration and enforcement of the immigration laws of the United States. 26 20. Defendant James McCament is sued in his official capacity as Acting Director 27 of USCIS, a federal agency that is part of DHS. USCIS is responsible for the 28 implementation of the immigration laws of the United States, and administers the
6

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 9 of 48 Page ID #:730
1 DACA program, including by processing applications and issuing notices of 2 termination. As Director of USCIS, Defendant McCament is responsible for the 3 administration of USCIS and the implementation of the immigration laws of the 4 United States. 5 21. Defendant Mark J. Hazuda is sued in his official capacity as Director of the 6 USCIS Nebraska Service Center. As Director of the Nebraska Service Center, Mr. 7 Hazuda is responsible for the administration of the USCIS Nebraska Service Center 8 and the decisions that it issues. 9 22. Defendant Susan M. Curda is sued in her official capacity as the District 10 Director of the Los Angeles District Office of USCIS. As District Director, Ms. Curda 11 is responsible for the administration of the Los Angeles District Office and the 12 decisions that it issues. 13 23. Defendant Thomas D. Homan is sued in his official capacity as Deputy Director 14 and Senior Official Performing the Duties of the Director of ICE, a law enforcement 15 agency that is part of DHS. ICE is responsible for the apprehension, detention, and 16 removal of noncitizens from the interior of the United States. In this position, Mr. 17 Homan is responsible for the overall administration of ICE and the operation of ICE’s 18 immigration enforcement and detention activities. 19 24. Defendant David Marin is sued in his official capacity as the Field Office 20 Director for the Los Angeles Field Office of ICE. As Field Office Director, Mr. Marin 21 is responsible for the administration of the Los Angeles Field Office and operation of 22 the office’s immigration enforcement and detention activities. 23 25. Defendant Kevin K. McAleenan is sued in his official capacity as Acting 24 Commissioner of CBP, a law enforcement agency that is part of DHS. CBP is 25 responsible for border security and the apprehension, detention, and removal of 26 noncitizens from the United States. As Acting Commissioner, he is responsible for the 27 overall administration of CBP and the operation of its immigration enforcement and 28 detention activities.
7

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 10 of 48 Page ID #:731

1

BACKGROUND

2 The DACA Program

3 26. On June 15, 2012, then-DHS Secretary of Homeland Security Janet Napolitano

4 issued a memorandum establishing the DACA program (the “2012 DACA 5 Memorandum”).6 Under the DACA framework, individuals who were brought to the

6 United States as children and meet certain specific criteria may request deferred action

7 for a renewable period of two years. In exchange, DACA applicants are required to

8 provide the government with highly sensitive personal information, submit to a

9 rigorous background check, and pay a considerable fee.

10 27. The 2012 DACA Memorandum explained that DACA covers “certain young

11 people who were brought to this country as children and know only this country as

12 home” and that the immigration laws are not “designed to remove productive young 13 people to countries where they may not have lived or even speak the language.”7

14 28. The 2012 DACA Memorandum established the following criteria for

15 individuals to be eligible for DACA. The applicant must:

16 • have come to the United States before the age of sixteen;

17 • have resided continuously in the United States for at least five years preceding

18

the date of the memorandum and been present in the United States on the date

19

of the memorandum;

20 • be currently in school, have graduated from high school, have obtained a

21

general education development certificate, or be an honorably discharged

22

veteran of the Coast Guard or Armed Forces of the United States;

23

24

25

6 Memorandum from Secretary Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15,

26 2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-

27

individuals-who-came-to-us-as-children.pdf (hereinafter “2012 DACA Memorandum”).

28 7 Id.

8

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 11 of 48 Page ID #:732

1 • have not been convicted of a felony offense, a significant misdemeanor offense,

2

or multiple misdemeanor offenses;

3 • not otherwise pose a threat to national security or public safety; and

4

• not be above the age of thirty as of June 15, 2012.8

5 29. USCIS describes DACA as a form of deferred action, “a discretionary

6 determination to defer a removal action of an individual as an act of prosecutorial

7 discretion . . . . An individual who has received deferred action is authorized by DHS

8 to be present in the United States, and is therefore considered by DHS to be lawfully 9 present during the period deferred action is in effect.”9

10 30. Because of the possibility that many DACA-eligible individuals might be

11 reluctant to voluntarily disclose information that could help facilitate their removal

12 from the United States, DHS repeatedly promised applicants that the information they

13 provided as part of the DACA application process would “not later be used for 14 immigration enforcement purposes.”10

15 31. To apply for DACA, applicants must submit extensive documentation 16 establishing that they meet the above-mentioned criteria.11

17 32. Applicants must submit a Form I-765 Application for Employment 18 Authorization, and pay hundreds of dollars in fees.12 If work authorization is granted,

19 DACA recipients are issued federal employment authorization documents (“EADs”),

20 and can apply for a Social Security Number.

21 33. DACA applicants must also undergo biometric and biographic background

22 checks. When conducting these checks, DHS reviews the applicant’s biometric and

23

24 8 Id.

25

9 USCIS DACA FAQs, Question 1. 10 Letter from Secretary Jeh Charles Johnson to Rep. Judy Chu (Dec. 30, 2016),

26 https://chu.house.gov/sites/chu.house.gov/files/documents/DHS.Signed%20Response

27

%20to%20Chu%2012.30.16.pdf. 11 USCIS DACA FAQs, Questions 28–41.

28 12 USCIS DACA FAQs, Question 7.

9

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 12 of 48 Page ID #:733

1 biographic information “against a variety of databases maintained by DHS and other 2 federal government agencies.”13 If any information “indicates that [the applicant’s]

3 presence in the United States threatens public safety or national security,” the 4 applicant will be ineligible for DACA absent “exceptional circumstances.”14 Under

5 the DACA program, deferred action is available for a period of two years, subject to

6 renewal.

7 34. A decision to grant or deny a DACA application or renewal is separate and

8 independent from any removal proceedings in immigration court. A noncitizen who is 9 in removal proceedings can apply for DACA separately and simultaneously.15 If that

10 application is granted, the removal proceedings continue unless the immigration judge

11 closes or terminates the proceedings. Further, an immigration judge has no power to

12 grant or deny DACA, or to review or reverse USCIS’ decision to deny DACA.

13 35. DACA recipients are eligible to receive certain benefits. These include Social

14 Security, retirement, and disability benefits, and, in certain states, benefits such as 15 driver’s licenses or unemployment insurance.16

16 36. DACA also confers other advantages. For example, DACA recipients do not

17 accrue unlawful presence under Section 212(a)(9)(B)(i) of the Immigration and

18 Nationality Act (“INA”), 8 U.S.C. § 1182(a)(9)(B)(i), which could otherwise bar an 19 individual from adjusting to lawful permanent resident status in the future.17

20 37. The DACA program has been a huge success, allowing nearly 800,000 young

21 people to go to school, advance in their careers, and serve their communities. In

22 California alone, over 220,000 young people have benefitted from DACA.

23

24

25 13 USCIS DACA FAQs, Question 23.

26 14 USCIS DACA FAQs, Question 65.

27

15 2012 DACA Memorandum at 2. 16 See, e.g., 8 U.S.C. §§ 1611(b)(2)–(3), 1621(d).

28 17 USCIS DACA FAQs, Question 5.

10

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 13 of 48 Page ID #:734

1 38. DACA’s benefits to young immigrants and the U.S. economy have been 2 remarkable, as reported by a recent survey of DACA recipients.18 According to the

3 survey:

4

• 91 percent of respondents were employed, including at top Fortune 500

5

companies such as Walmart, Apple, General Motors, Amazon, JPMorgan

Chase, Home Depot, and Wells Fargo. 6

7

• The average hourly wage of respondents increased by 69 percent since

receiving DACA; 69 percent of survey respondents responded that their

8

increased earnings had “helped me become financially independent” and 71

9

percent responded that their increased earnings had “helped my family

financially.” These higher wages increased tax revenues and economic growth

10

at the local, state, and federal levels.

11

• 16 percent of respondents purchased their first home after receiving DACA,

12

leading to broader positive economic effects such as job creation and the

13

infusion of new spending in local economies.

14

• 94 percent reported that, because of DACA, they were able to pursue

15

educational opportunities they could not have pursued otherwise.

16 Another study found that, altogether, DACA recipients stood to contribute more than 17 $460 billion to the gross domestic product over the next ten years.19

18 39. Not only has the program resulted in huge benefits to the American economy,

19 but in addition, more than 86 percent of Americans support allowing DACA recipients 20 to remain in the United States.20

21 18 Tom K. Wong et al., DACA Recipients’ Economic and Educational Gains Continue

22 to Grow, Center for American Progress, Aug. 28, 2017,

23

https://www.americanprogress.org/issues/immigration/news/2017/08/28/437956/dacarecipients-economic-educational-gains-continue-grow/.

24 19 Nicole Prchal Svajlenka, Tom Jawetz, and Angie Bautista-Chavez, A New Threat to

25

DACA Could Cost States Billions of Dollars, Center for American Progress, July 21, 2017,

26 https://www.americanprogress.org/issues/immigration/news/2017/07/21/436419/new-

27

threat-daca-cost-states-billions-dollars/. 20 Scott Clement & David Nakamura, Survey finds strong support for ‘dreamers’,

28 Wash. Post, Sept. 25, 2017, https://www.washingtonpost.com/politics/survey-finds-

11

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 14 of 48 Page ID #:735

1 40. After President Trump took office, his Administration continued the DACA

2 program for more than seven months. From January to September 2017, USCIS

3 continued to process and grant more than 250,000 new DACA applications and

4 applications for renewals.

5 The Rescission of the DACA Program

6 41. Notwithstanding the success of the DACA program and the public’s

7 overwhelming support for it, DHS announced on September 5, 2017, that it was

8 rescinding the DACA program and winding it down.

9 42. Current DACA recipients will maintain their deferred action grants and work

10 permits until they expire. DHS will not consider new applications for DACA dated

11 after September 5, 2017. In addition, certain individuals were eligible for two-year

12 renewals. Individuals with a DACA grant expiring between September 5, 2017, and

13 March 5, 2018, could apply for a two-year renewal if the application was received by

14 October 5, 2017. Individuals whose DACA expires on or after March 6, 2018 will not 15 have an opportunity to renew.21

16 43. All DACA grants are expected to expire by the spring of 2020. In the

17 meantime, hundreds of thousands of young immigrants will continue to benefit from

18 grants of DACA and work authorization for varying lengths of time as the program

19 winds down.

20 44. Although the program is sunsetting, the Administration has confirmed on

21 September 8, via Press Secretary Sarah Huckabee Sanders, that “[d]uring this six22 month time, there are no changes that are being made to the program at this point.”22

23 strong-support-for-dreamers/2017/09/24/df3c885c-a16f-11e7-b14f-

24 f41773cd5a14_story.html?utm_term=.cea6f0719cc6.

25

21 Memorandum from Acting Secretary Elaine C. Duke, Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to

26 Individuals Who Came to the United States as Children” (Sept. 5, 2017),

27

https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca. 22 Press Briefing by Press Secretary Sarah Sanders and Homeland Security Advisor

28 Tom Bossert, 9/8/2017, #11, The White House, Office of the Press Secretary,

12

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 15 of 48 Page ID #:736

1 Plaintiff Jesús Alonso Arreola Robles

2

Mr. Arreola’s Life in the United States

3 45. Mr. Arreola was born in Mexico in May of 1994 and was brought to the United

4 States by his parents in 1995, when he was only one year old. They entered without

5 being inspected at a border crossing. He has lived in the United States continuously

6 since his arrival—indeed, this country is the only place he can call home.

7 46. Mr. Arreola attended and graduated from Los Angeles-area schools. He

8 graduated from Lankershim Elementary School in 2005, Walter Reed Middle School

9 in 2008, and East Valley High School in 2012. Mr. Arreola also attended a year of

10 college at Glendale Community College, but could not continue his studies as he had

11 to work full-time to help financially support his family.

12 47. In addition to his parents, Mr. Arreola has three younger sisters, who are all

13 U.S. citizens by birth. His oldest sister is seventeen years old. Since birth, she has had

14 progeria, autism, Down’s syndrome, and diabetes, and requires special care, around

15 the clock, from her family members.

16 48. Mr. Arreola has played a critical role in caring for his sister, including checking

17 her blood; giving her insulin shots; helping her move around the house; and driving

18 her to the hospital when she needs medical care. He also does everything he can to

19 help her feel “normal,” comfortable, and loved.

20 49. Although Mr. Arreola’s parents entered the United States without inspection,

21 they now have lawful permanent resident status, having obtained immigration relief in

22 the form of cancellation of removal under 8 U.S.C. § 1229a(b).

23 50. Mr. Arreola is the only member of his family without permanent lawful

24 immigration status in the United States.

25

26

27 https://www.whitehouse.gov/the-press-office/2017/09/08/press-briefing-press28 secretary-sarah-sanders-and-homeland-security.

13

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 16 of 48 Page ID #:737

1

Mr. Arreola’s Grant and Renewals of DACA

2 51. Based on the government’s assurances that confidential information would not

3 be used to remove DACA recipients, Mr. Arreola first applied for deferred action and

4 employment authorization pursuant to DACA in August 2012. As part of this process,

5 Mr. Arreola provided the government with his school records and information about

6 where he lived. He was also required to attend a biometrics appointment so that

7 USCIS could take his fingerprints and photographs.

8 52. Mr. Arreola was granted DACA and work authorization on September 26,

9 2012. Mr. Arreola’s initial DACA grant remained in effect for two years, until

10 September 25, 2014.

11 53. In 2014 and again in 2016, Mr. Arreola reapplied for DACA, and each time was

12 granted deferred action and work authorization after being subject to rigorous vetting.

13 As part of this process, the government sent Mr. Arreola approval notices informing

14 him that his request for deferred action had been granted.

15 54. Mr. Arreola’s 2016 approval notice provides that “[u]nless terminated, this

16 decision to defer removal action will remain in effect for 2 years” and is valid until

17 August 19, 2018. The approval notice informed Mr. Arreola that his deferred action

18 could be terminated if he engaged in “[s]ubsequent criminal activity.”

19 55. Since he was granted DACA, Mr. Arreola has used his work authorization to

20 help his family by working two jobs. Starting in approximately 2013, he worked at the

21 Chateau Marmont in West Hollywood, first as a dishwasher and then as a cook. In

22 April 2016, he also began working as a driver for Uber and Lyft.

23 56. The money Mr. Arreola obtained from these jobs helped his family in many

24 ways. Mr. Arreola shared his earnings and paid half the rent for the family home.

25 57. Until his DACA grant and employment authorization were unlawfully revoked,

26 Mr. Arreola had been a model employee at the Chateau Marmont and a successful

27 driver for Uber and Lyft.

28 58. Mr. Arreola has never been charged with or convicted of any crime.

14

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1

Mr. Arreola’s Arrest and Detention

2 59. As a driver, Mr. Arreola regularly provided rides to customers for a fee, both

3 through the Uber and Lyft apps and through referrals from friends. On February 11,

4 2017, a friend offered Mr. Arreola $600 to drive his cousin from the Los Angeles area

5 to the San Diego area to pick up the friend’s uncle and another cousin, and bring them

6 back to the Los Angeles area.

7 60. Mr. Arreola agreed to the long-distance ride and picked up his customer—his

8 friend’s cousin—in Sun Valley near North Hollywood. The customer entered an

9 address near San Diego into Mr. Arreola’s GPS and told him to drive to that location.

10 Being unfamiliar with the San Diego area, Mr. Arreola did not know anything about

11 the destination address and merely followed the GPS instructions.

12 61. After driving for about three and a half hours, Mr. Arreola and his customer

13 reached the destination either late in the evening on February 11, 2017 or early the

14 next morning.

15 62. His customer told Mr. Arreola to stop the car and wait while he went to get the

16 uncle and cousin.

17 63. The customer exited the car and walked toward a figure who was standing in

18 the dark, who he apparently thought was the uncle. Instead of the uncle, that

19 individual was a CBP agent. The CBP agent arrested the customer.

20 64. Although Mr. Arreola informed the CBP agent that he had been granted DACA

21 and had permission to live and work in the United States, the CBP agent also arrested

22 Mr. Arreola, apparently suspecting that he was aiding in smuggling individuals into

23 the United States.

24 65. The CBP agent brought Mr. Arreola to Forest Gate Processing Center in

25 Campo, California, where Mr. Arreola’s property was confiscated, including his car

26 and cell phone.

27 66. Mr. Arreola was subsequently detained and questioned by another CBP agent.

28 Mr. Arreola also informed that CBP agent of his valid DACA grant.

15

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 18 of 48 Page ID #:739
1 67. The CBP agent questioned Mr. Arreola about his trip. Mr. Arreola explained 2 that he was a driver, and that he had been offered $600 to pick up his friend’s uncle 3 and cousin near the San Diego area and drive them back to the Los Angeles area. Mr. 4 Arreola explained that he had never met his customer before that day. 5 68. Mr. Arreola did not know the immigration status of his friend’s uncle and 6 cousin whom he was supposed to pick up. As a driver, it was not Mr. Arreola’s 7 practice to ask about the immigration status of the individuals to whom he gave rides. 8 69. Nonetheless, the CBP agents refused to release Mr. Arreola from custody. 9 70. Instead, on February 12, 2017, CBP issued Mr. Arreola a Notice to Appear 10 (“NTA”), initiating removal proceedings against him and charging him as removable 11 because he was present in the United States without admission under INA 12 § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). 13 71. Mr. Arreola was never charged with any smuggling-related crime or any 14 smuggling-related ground of removability. 15 72. For the first two days of his detention, Mr. Arreola was not allowed to make a 16 phone call. His family had no knowledge of his whereabouts and became very worried 17 about him. Subsequently, Mr. Arreola was transferred to multiple detention centers in 18 California, Arizona, and Georgia, eventually ending up in Folkston, Georgia—nearly 19 2,500 miles away from his home. 20 73. On March 2, 2017, Mr. Arreola finally received a bond hearing before an 21 immigration judge. During the bond hearing, the ICE attorney questioned Mr. Arreola 22 at length regarding the circumstances that led to his arrest by CBP. The ICE attorney 23 suggested that Mr. Arreola was a danger to the community because he attempted to 24 smuggle people into the United States. 25 74. At the hearing, Mr. Arreola testified that he was a driver for Uber and Lyft, and 26 that he was offered $600 by his friend to pick up his friend’s uncle and cousin near the 27 San Diego area and drive them back to the Los Angeles area. He further testified that 28 he had no knowledge of the immigration status of the individuals he was supposed to
16

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1 pick up, and denied the ICE attorney’s allegations that he was involved with

2 smuggling.

3 75. The immigration judge rejected the ICE attorney’s arguments, found Mr.

4 Arreola credible, determined that he is not a flight risk or danger to the community,

5 and ordered Mr. Arreola’s release on $2,500 bond.

6 76. The immigration judge stated that he was “not going to accept the conclusions”

7 by the CBP agents that Mr. Arreola was involved in “smuggling aliens for financial

8 gains.” The immigration judge observed that Mr. Arreola is “an Uber and Lyft driver.

9 He’s in Hollywood, some three, three and a half hours away. Somebody is going to

10 pay him to go all that way and come back.” The immigration judge added that the

11 CBP agents made the incorrect “assumption that [Mr. Arreola] was being paid to

12 smuggle” the uncle and cousin “as opposed to pick up a fare, what would have been a

13 lucrative fare.”

14 77. On March 3, 2017, Mr. Arreola posted bond and was released from detention.

15 Mr. Arreola was detained a total of 21 days. He has been living in the Los Angeles

16 area since being released.

17

Termination of Mr. Arreola’s DACA Grant and Employment Authorization

18 78. On March 6, 2017, Mr. Arreola received a Notice of Action from USCIS

19 notifying him that his DACA and EAD were “terminated automatically as of the date

20 [his Notice to Appear] was issued.”23 The Notice of Action states that an “appeal or

21 motion to reopen/reconsider this notice of action may not be filed.”

22 79. Mr. Arreola was never provided with any prior notice that Defendants intended

23 to terminate his DACA and EAD, nor was he provided any opportunity to respond to

24 such a notice or otherwise contest the termination of his DACA or EAD. Neither was

25 he provided with a reasoned explanation for the decision.

26

27

23 U.S. Citizenship and Immigration Servs., Notice of Action to Jesus Alonso Arreola Robles Re I-821D, Deferred Action for Childhood Arrivals (Mar. 6, 2017) (hereinafter

28 “Notice of Action”) (emphasis added).

17

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 20 of 48 Page ID #:741
1 80. Defendants failed to provide Mr. Arreola with any notice or process even 2 though the DACA program rules, including the Standard Operating Procedures 3 (“SOPs”) that govern the DACA program, require that advance notice and an 4 opportunity to respond be provided in most termination cases. Further, although the 5 SOPs envision certain circumstances in which terminations might occur without 6 notice, Defendants failed even to follow the procedures governing such terminations. 7 81. On March 17, 2017, Mr. Arreola’s counsel submitted a letter to USCIS 8 requesting that USCIS reopen and reconsider the termination of his DACA and EAD. 9 82. On May 9, 2017, USCIS responded, declining to revisit the issue. USCIS stated 10 that, among other things, that “when ICE issues and serves the Notice to Appear on 11 the DACA requestor during the DACA validity period, that action alone terminates 12 the DACA. USCIS will send a Notice of Action and update our system as Deferred 13 Action Terminated but that is only as a follow up to ICE’s action of termination.” 14 However, Mr. Arreola’s NTA was issued by CBP, not ICE. 15 83. Mr. Arreola has suffered significant and irreparable harm as a result of 16 Defendants’ actions. After his 21-day detention and subsequent release, Mr. Arreola 17 was unable to fully piece his life back together. After Mr. Arreola lost his DACA and 18 work authorization, he lost his job with Chateau Marmont, and was no longer able to 19 work as a driver for Lyft or Uber. 20 84. The revocation of Mr. Arreola’s DACA and work permit was particularly 21 difficult for him given that he and his long-term partner recently had their first child. 22 Because of Defendants’ actions, Mr. Arreola’s ability to save for his new family was 23 curtailed. 24 85. Defendants’ termination of Mr. Arreola’s DACA grant and work permit failed 25 to comply with the DACA program rules and procedures, and violated the 26 Administrative Procedure Act and the Due Process Clause of the Fifth Amendment. 27 28
18

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1

The Court’s Preliminary Injunction Order and Defendants’ Subsequent Actions

2 86. On November 20, 2017, this Court granted a preliminary injunction enjoining

3 Defendants’ unlawful termination of Mr. Arreola’s DACA grant and employment

4 authorization. The Court held that Defendants’ automatic termination of Mr. Arreola’s

5 DACA based on the filing of a Notice to Appear (“NTA”) that charged him with

6 removal for being present in the United States without admission was arbitrary and

7 capricious and contrary to law in violation of the APA. The Court held that

8 Defendants’ revocation of his DACA, despite the absence of any disqualifying

9 convictions, also violated the APA by arbitrarily reversing the agency’s decision to

10 grant him DACA in the first place without a reasoned explanation for doing so.

11 Further, the Court recognized that Defendants’ failure to provide Mr. Arreola with

12 notice and an opportunity to respond to its termination decision violated the rules of

13 the DACA program.

14 87. As a result, Defendants reinstated Mr. Arreola’s DACA grant and employment

15 authorization. On December 20, 2017, however, Defendants issued Mr. Arreola a

16 Notice of Intent to Terminate (“NOIT”) his DACA and work authorization. The NOIT

17 asserted that ICE had determined that Mr. Arreola is “an enforcement priority,” and

18 explained that “ICE informed USCIS that you are an enforcement priority and that

19 ICE is actively pursuing your removal in immigration court.” Further, it stated that

20 “USCIS finds that continuing to exercise prosecutorial discretion to defer DHS

21 removal action against you is not consistent with the Department of Homeland

22 Security’s enforcement priorities.”

23 88. The NOIT also misstates the relevant facts of Mr. Arreola’s case in numerous

24 respects, and erroneously alleges among other things that Mr. Arreola admitted to

25 smuggling undocumented immigrants.

26 89. Defendants’ decision to terminate DACA based on the conclusion that the

27 individual is an enforcement priority even though he remains eligible for DACA

28 violates the rules for the DACA program, including the Standard Operating

19

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 22 of 48 Page ID #:743
1 Procedures, and is arbitrary and capricious and contrary to law in violation of the 2 APA. Among other things, the DACA program rules provide that when an individual 3 meets the eligibility criteria for DACA, the individual is a low priority for 4 immigration enforcement. Defendants’ application of new enforcement priorities that 5 are inconsistent with the DACA program rules as a basis for termination of DACA is 6 unlawful. Further, to the extent Defendants have changed the DACA program rules 7 without providing a reasoned explanation or otherwise complying with the APA, 8 Defendants’ actions are further unlawful. 9 Plaintiff José Eduardo Gil Robles 10 90. Mr. Gil is 24 years old and lives in Coon Rapids, Minnesota, near Minneapolis. 11 He has lived in the United States since he was five years old. He was born in Mexico 12 in January 1993; he came to the United States in 1998 without inspection at a border 13 crossing. He considers the United States his home. 14 91. Mr. Gil attended public schools in the Minneapolis area starting in kindergarten, 15 and is a graduate of Coon Rapids High School. He has five younger siblings, ages 16 nine to 19 years old, who were all born in this country and are U.S. citizens. He is 17 close to his siblings, taking them to do activities and helping his youngest sister with 18 her homework. 19 92. Mr. Gil has a steady girlfriend who is a U.S. citizen. He enjoys spending time 20 with her and her family: he has attended many of her family gatherings and he 21 sometimes takes her little sister and his little sister on outings to places like Chuck E. 22 Cheese’s and to go swimming at a pool during the summer. 23 93. Mr. Gil is a member of his local Catholic church, St. Stephens, in Anoka 24 Minnesota. He has been an active member of the Catholic Church throughout his life, 25 and has regularly attended services at St. Stephens for about eight years. In high 26 school, he was an Altar Server. He also participates in a smaller Bible study and 27 prayer group on Thursday nights, where he meets with others to pray and discuss the 28 Bible. He also participates in community service through his church. For example, a
20

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 23 of 48 Page ID #:744

1 few years ago after Hurricane Sandy, he traveled to the New York City area for about

2 ten days with members of the church to help rebuild a church there that was damaged

3 in the storm. He has also volunteered to help with various landscaping projects at

4 another local church where he is involved in the youth ministry.

5 94. Mr. Gil also enjoys training at a boxing gym. He has been training since he was

6 about 14 years old and goes to the gym almost every day. Although he does not

7 compete in matches, the training helps him stay in shape and be disciplined.

8

The Impact of DACA on Mr. Gil’s Life

9 95. Mr. Gil first applied for DACA in 2015. In doing so, he gave the government

10 his school records, information about where he lived, his fingerprints, and

11 photographs.

12 96. He was granted DACA and work authorization in August 2015. His first grant

13 of DACA was valid for two years, until August 26, 2017.

14 97. In April 2017, Mr. Gil filed a DACA renewal application and, again, the

15 government granted him deferred action and work authorization. He received the

16 approval notice in August 2017, stating that his DACA would be valid until August

17 13, 2019.

18 98. Being granted DACA had a huge positive impact on Mr. Gil’s life. He worked

19 full time as a baker at a local restaurant chain called Key’s Café & Bakery. At that

20 job, he was promoted to bakery manager after about a year and a half. As bakery

21 manager, he made the bakery schedule for the other bakery employees; decorated and

22 delivered wedding cakes; ordered and stocked ingredients; made sure the bakery was

23 making enough cakes and pies; and handled customer complaints. He worked at Key’s

24 Café & Bakery until the summer of 2017. After that, he started working for a logistics

25 company, making deliveries of large items like furniture and appliances to homes and

26 businesses in the Minneapolis area. He liked that the job allowed him to be active and

27 spend time outside.

28

21

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 24 of 48 Page ID #:745

1 99. Since he obtained DACA, Mr. Gil used his work authorization to help his

2 family by contributing money towards rent and other living expenses. Until he lost his

3 DACA, he was paying about half of the family rent and bills. His jobs also allowed

4 him to start saving up money so that he could reach his goal of taking college classes

5 and, eventually, getting a degree.

6 100. DACA also allowed Mr. Gil to get a Social Security Number and a driver’s

7 license for the first time. Having a license meant that he could drive to work and

8 church and give his siblings rides to school and to their extracurricular activities. He

9 also helped with grocery shopping and did other errands for his family using the car

10 he purchased with money from his paychecks.

11

Mr. Gil’s Arrest and Revocation of His DACA and Work Permit

12 101. On September 20, 2017, Mr. Gil was pulled over by the police while driving in

13 his car with two passengers—a high school classmate and a friend of that classmate.

14 The officer told Mr. Gil that his driver’s license had been cancelled. Mr. Gil was

15 arrested and taken to the local jail and later charged with the misdemeanor traffic

16 offense of driving after cancellation of his driver’s license. Mr. Gil’s driver’s license

17 was supposedly cancelled because it required an immigration “status check” when his

18 previous DACA grant expired a few weeks before. Mr. Gil was not aware that there

19 was any problem with his license. Mr. Gil was released from jail the next day. The

20 misdemeanor charge against Mr. Gil is still pending.

21 102. About a month later, ICE agents appeared at his workplace and arrested him in

22 the parking lot. Mr. Gil told the agents that he had DACA, but they detained him

23 nonetheless.

24 103. On October 23, 2017, ICE gave Mr. Gil a Notice to Appear, which charged him

25 with being removable because he was present in the United States without admission.

26 ICE put Mr. Gil in deportation proceedings even though Mr. Gil had been granted a

27 two-year DACA renewal just two months before, and a minor traffic offense, like

28 driving on a cancelled license, did not disqualify him from DACA.

22

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1 104. Mr. Gil suffered in detention. He had trouble eating and sleeping, and he 2 became depressed. He found it especially difficult to talk on the phone to his family, 3 which was having a hard time because he was in detention—especially his youngest 4 sister who is only nine years old. He hated to hear her cry. 5 105. Mr. Gil appeared at bond hearings before the immigration judge on November 6 6, 2017 and November 27, 2017. At those hearings, the government raised the events 7 that led to his arrest and charge for driving after cancellation of his license. The 8 government argued that Mr. Gil was a danger to the community because one of the 9 passengers in the car he was driving had a toy pellet gun and had allegedly shot it out 10 of the car window. Mr. Gil’s immigration attorney explained to the court that the 11 pellet gun was a toy, not a firearm, and did not belong to Mr. Gil; indeed, Mr. Gil 12 never touched the pellet gun and did not even know that his passenger had brought it 13 with him. His lawyer also gave the judge many letters from relatives, friends, 14 employers, and members of his church attesting to Mr. Gil’s good character. 15 106. After hearing the evidence, the immigration judge concluded that Mr. Gil was 16 not a danger to the public and ordered his release on a $5,000 bond. 17 107. On November 28, 2017, Mr. Gil posted bond and was released from detention. 18 108. Mr. Gil was detained for over a month, which injured him and his family, both 19 emotionally and financially. 20 109. Upon release, Mr. Gil found out that while he was in detention, on November 21 14, 2017, USCIS had sent him a Notice of Action terminating his DACA and work 22 permit “as of the date [his] NTA was issued.” The Notice of Action stated that an 23 “appeal or motion to reopen/reconsider this notice of action may not be filed.” 24 110. Mr. Gil never received any prior notice that USCIS intended to terminate his 25 DACA and work permit, nor did he have any opportunity to respond to the notice or 26 otherwise contest the termination of his DACA or work permit beforehand. He also 27 received no explanation for the decision beyond the one sentence in the Notice of 28 Action.
23

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1 111. Losing his DACA has changed everything for Mr. Gil. He is no longer able to 2 work at his job with the logistics company. He is no longer able to contribute to his 3 family’s resources in the way he did before, and he is not able to plan for his future, 4 including saving up money to attend college. 5 112. Being in detention for over a month was frightening for both Mr. Gil and his 6 family. He missed them very much and still has bad memories of that time. Losing his 7 DACA has also created uncertainty for Mr. Gil: he is unsure what he will be able to do 8 next. The uncertainty has made him feel depressed, hopeless, and stressed. 9 Plaintiff Ronan Carlos De Souza Moreira 10 113. Mr. Moreira is 24 years old and lives in Kennesaw, Georgia, near Atlanta. He 11 has lived in the United States for almost twelve years. He was born in Brazil in 12 December 1992, and came to the United States in 2006 on a visitor’s visa with his two 13 brothers and mother. His father already lived in the United States at that time. He has 14 never left the country since, and considers the United States his home. 15 114. Mr. Moreira attended public schools in Marietta, Georgia, starting in middle 16 school, and graduated from Wheeler High School. In school, he played soccer and 17 tennis, and participated in art club and French club. During middle school and high 18 school, he received various certificates of achievement for his excellent attendance in 19 school, as well as for getting good grades and working hard to improve his English 20 language skills. He graduated from high school in 2012. 21 115. While Mr. Moreira was in high school, he also attended a Brazilian Protestant 22 church called The Vine in Atlanta. He took spiritual maturity courses at that church 23 and eventually became a youth leader, leading youth meetings every week. While at 24 the church, he also collected food for the homeless, organized free yard sales, and 25 often volunteered at church events. 26 116. About a year after graduating from high school, Mr. Moreira started working on 27 a college degree at Perimeter College at Georgia State University in Atlanta. 28
24

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1 However, he was unable to complete his college degree due to his family’s financial

2 situation. He hopes someday to go back to college.

3 117. Mr. Moreira’s mother is a Lawful Permanent Resident, and his older brother is

4 a U.S. citizen. Mr. Moreira’s younger brother, who recently turned 18, has a pending

5 application for permanent residence. His father is also seeking permanent residence.

6 His aunt and two cousins, who are all U.S. citizens, also live in Georgia.

7 118. Mr. Moreira is very close to his family. They live together, and he contributes

8 to household expenses. The family spends all holidays and birthdays together, and

9 whenever they can, they travel together.

10

The Impact of DACA on Mr. Moreira’s Life

11 119. Mr. Moreira first applied for DACA in May 2013, and was approved in August

12 2013. He applied for renewal in July 2015, and was again approved for a DACA grant

13 in October 2015, this one lasting until October 2017. Mr. Moreira again applied for

14 renewal in August 2017, and was approved on November 2, 2017.

15 120. When Mr. Moreira first applied for deferred action and work authorization in

16 2013, he gave the government his school records and information about where he

17 lived. He also went to an appointment so that USCIS could take his fingerprints and

18 photographs.

19 121. Being granted DACA changed Mr. Moreira’s life. After he stopped school in

20 the fall of 2013, he took several temporary jobs, including at AT&T, a flooring

21 company, and a bakery. Starting in August 2014, Mr. Moreira began working for a

22 new flooring company permanently. He started out as an assistant to the installation

23 manager, but within six months he took over as installation manager. In that job, he

24 supervised about 20 flooring installers, dispatching them to jobs throughout the day,

25 speaking frequently with them and the company’s customers, and solving problems as

26 they arose. He also worked on payroll, delivery, and inventory issues.

27 122. Mr. Moreira used his work authorization to help his family and to travel around

28 the United States when he had time off work. His job also allowed him to start saving

25

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1 up money, which he could use to take college classes again one day. His goal is to get

2 his college degree in business administration eventually and to start his own business,

3 perhaps in the travel industry.

4 123. DACA also allowed Mr. Moreira to get a Social Security Number and a driver’s

5 license for the first time. Having a license meant that he could drive to work and

6 travel.

7

Mr. Moreira’s Arrest and Revocation of His DACA and Work Permit

8 124. On November 2, 2017, Mr. Moreira was out with a friend, and they stopped at a

9 gas station. They got into an argument there, and although it was not a serious fight,

10 they raised their voices. Someone overheard Mr. Moreira and his friend and called the

11 police. When the police arrived, they realized that the argument was not serious, but

12 they nonetheless asked to see Mr. Moreira’s identification.

13 125. Upon examining Mr. Moreira’s identification, the officer concluded that the

14 expiration date had been altered and arrested him. Mr. Moreira subsequently was

15 charged with the misdemeanor of possession of an altered identification document.

16 126. Mr. Moreira appeared before a judge, who immediately granted him bail, but

17 ICE had already placed an immigration hold on him, and he had to stay in jail for

18 several more days, until immigration officers came to pick him up. The immigration

19 officers brought Mr. Moreira to Irwin Detention Center in Ocilla, Georgia, where he

20 was given a Notice to Appear charging him with overstaying a visa.

21 127. Mr. Moreira had a bond hearing before the immigration judge on December 7,

22 2017. At that hearing, the government conceded that Mr. Moreira was neither a flight

23 risk nor a danger to the community, and offered him a bond, which he accepted. Mr.

24 Moreira posted the bond and was released the next day.

25 128. Being in detention for more than a month was traumatic for Mr. Moreira.

26 Although he is 25 years old, he looks younger, and he was afraid of the older men.

27 Mr. Moreira became depressed, and he missed his family.

28

26

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 29 of 48 Page ID #:750
1 129. While Mr. Moreira was detained, USCIS sent him a Notice of Action 2 terminating his DACA and work permit “automatically as of the date [his] NTA was 3 issued.” The Notice of Action states that an “appeal or motion to reopen/reconsider 4 this notice of action may not be filed.” 5 130. Mr. Moreira never received any prior notice that USCIS intended to terminate 6 his DACA and work permit, nor did he have any opportunity to respond to the notice 7 or otherwise contest the termination of his DACA or work permit beforehand. Mr. 8 Moreira also received no explanation for the decision beyond the one sentence in the 9 Notice of Action. 10 131. After losing his DACA, Mr. Moreira has lost his work authorization, his 11 temporary authorization to remain in the United States, and his license to drive, and is 12 uncertain about his future. The uncertainty has made him depressed. He feels 13 hopeless and stressed. 14 Plaintiff Inland Empire – Immigrant Youth Collective 15 132. The Inland Empire – Immigrant Youth Collective is a grassroots, immigrant 16 youth-led organization located in Ontario, California. IEIYC serves the immigrant 17 community in the Inland Empire region, which encompasses Riverside and San 18 Bernardino Counties. IEIYC’s mission is to advocate for the needs of the 19 undocumented immigrant community in the Inland Empire, including equal access to 20 higher education for undocumented youth, and to achieve justice for immigrant 21 communities by empowering those most affected by immigration policy. Since 2010, 22 IEIYC has focused its efforts on creating a safe space for undocumented youth to 23 share resources; organizing other youth to educate and mobilize their peers; and 24 advocating for regional, state, and federal policies that benefit immigrant 25 communities, including DACA recipients. 26 133. Since 2012, IEIYC has coordinated numerous DACA workshops during which 27 approximately 5,000 individuals have received immigration consultation and 28 assistance with their DACA applications. IEIYC has provided approximately 30
27

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1 scholarships to immigrant youth since 2015, for a total of about $15,000, to help 2 undocumented youth pursue their educational goals or to assist with the cost of DACA 3 application fees. In addition, IEIYC recently raised another $15,000 to assist 4 individual DACA applicants with their renewal fees. IEIYC also runs a Mentorship 5 Academy for local high school and college students, including DACA recipients, to 6 provide professional and leadership development training. In addition, IEIYC has held 7 informational sessions on topics important to DACA recipients, such as their legal 8 rights when encountering law enforcement, and puts on an annual health conference to 9 provide health information and resources. IEIYC also assists in documenting and 10 responding to immigration enforcement activities in the Inland Empire and 11 collaborates with other local organizations to ensure a rapid response from the 12 community. 13 134. IEIYC currently has approximately 28 active members in Riverside and San 14 Bernardino Counties, including a staff of three part-time employees and a board of 15 directors comprised of five individuals. In various locations throughout the Inland 16 Empire, IEIYC’s members help plan events and other programming, conduct 17 outreach, and attend membership meetings. Because IEIYC only has three part-time 18 staff, it is heavily dependent on its members’ ability to contribute their time and 19 efforts. 20 135. At least 18 of IEIYC’s members are current DACA recipients who also have 21 work authorization through the program (collectively “IEIYC DACA recipients”). 22 Defendants’ unlawful termination policies and practices are likely to harm IEIYC 23 DACA recipients. IEIYC DACA recipients live, work, attend school, and carry out 24 IEIYC work throughout the Inland Empire, where there is a significant CBP presence. 25 For example, there are three CBP sub-stations in Riverside County, located in 26 Murrieta, Temecula, and Indio, and a new Border Patrol complex is under 27 construction in the Moreno Valley of Riverside County. There are CBP checkpoints 28 located in Riverside County, and roving CBP patrols are also common in the area.
28

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1 IEIYC DACA recipients are at risk of coming into contact with CBP officers and

2 being screened for possible revocation of their DACA when carrying out their day-to-

3 day activities.

4 136. Some of IEIYC’s DACA recipients have had or may in the future have contact

5 with local law enforcement, which could also put them at even greater risk of having

6 their DACA terminated under the challenged practices, even though they have not

7 engaged in any disqualifying conduct.

8 Defendants’ Unlawful DACA Revocation Practices

9 137. Notwithstanding President Trump’s claims that DACA recipients “have nothing 10 to worry about,”24 Defendants have engaged in a widespread practice of unlawfully

11 revoking individuals’ DACA grants and work permits, apparently based on

12 unsubstantiated suspicions of criminal activity or minor criminal history, even though

13 these individuals have not violated the terms of the program and continue to be

14 eligible for it.

15 138. The targeting of DACA recipients for revocation has coincided with broader

16 changes in immigration enforcement under the Trump Administration. Administration

17 officials have made numerous public statements indicating that “anyone who is in this

18 country in violation of immigration law is subject to possible arrest.”

19 139. In April 2017, in response to questions about a DACA recipient who was

20 removed from the country, Attorney General Jeff Sessions said, “We can’t promise 21 people who are here unlawfully that they’re not going to be deported.”25

22 140. In June 2017, Defendant Homan said, “If you’re in this country illegally, and

23 you committed a crime by entering this country, you should be uncomfortable . . . . 24 You should look over your shoulder.”26

25

24 @realDonaldTrump, TWITTER (Sept. 7, 2017, 6:42 AM),

26 https://twitter.com/realDonaldTrump/status/905788459301908480.

27

25 Ted Hesson, Sessions: ‘We can’t promise’ Dreamers won’t be deported,’ Politico, Apr. 19, 2017, http://www.politico.com/story/2017/04/jeff-sessions-dreams-

28 deported-237369.

29

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1 141. In August 2017, ICE spokeswoman Sarah Rodriguez confirmed that “ICE does

2 not exempt classes or categories of removable aliens from potential enforcement. All

3 of those in violation of the immigration laws may be subject to immigration arrest, 4 detention and, if found removable by final order, removal from the United States.”27

5 142. In September 2017, the former Acting Secretary of DHS, Elaine Duke,

6 reportedly stated that she has never seen DHS guidance telling DACA applicants that 7 their information would not be used for immigration enforcement purposes.28

8 143. Multiple DACA recipients have been detained by immigration authorities since

9 President Trump took office. For example, in February, immigration authorities

10 detained Josue Romero, a 19-year-old DACA recipient and arts scholarship student 11 residing in Texas, after he was arrested by local police on a misdemeanor charge.29 In

12 August, ICE apprehended 22-year-old Riccy Enriquez Perdomo, a DACA recipient,

13 mother of two young children, and former Amazon employee residing in Kentucky.

14 Although she had no criminal history and a valid DACA grant, immigration

15 authorities nonetheless confiscated her work permit and detained her for a week after 16 she went to an immigration detention center to post a bond for a friend.30 Just recently,

17 26 Maria Sacchetti, ICE chief tells lawmakers agency needs much more money for

18 immigration arrests, Wash. Post, June 13, 2017,

19

https://www.washingtonpost.com/local/social-issues/ice-chief-tells-lawmakersagency-needs-much-more-money-for-immigration-arrests/2017/06/13/86651e86-

20 5054-11e7-b064-828ba60fbb98_story.html?utm_term=.abf9e8bb63d0.

21

27 Tal Kopan, ICE: Arrests still up, deportations still down, CNN, Aug. 11, 2017, http://www.cnn.com/2017/08/11/politics/trump-administration-

22 deportations/index.html.

23

28 @joshgerstein, TWITTER (Sept. 27, 2017, 8:18 AM), https://twitter.com/joshgerstein/status/913060287212933120.

24 29 Tom Dart, Second known Daca recipient detained by immigration officials in Texas,

25

The Guardian, Feb. 16, 2017, https://www.theguardian.com/usnews/2017/feb/16/daca-dreamer-detained-immigration-texas-josue-romero.

26 30 Mark Curnutte, This immigrant mom had a permit to work at Amazon, now U.S.

27

agents hold her in jail, Cincinnati.com, August 23, 2017, http://www.cincinnati.com/story/news/2017/08/23/ice-detains-young-nky-mother-

28 legal-status/593734001/.

30

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1 in early September, ten DACA recipients were detained for hours by CBP at a 2 checkpoint in Texas even though they have valid DACA.31 Although they were

3 ultimately released, CBP scrutinized their records, presumably looking for a reason to

4 hold them and revoke their DACA.

5 144. Indeed, immigration officers have been expressly instructed to screen any

6 DACA recipient they encounter in the field for potential enforcement actions. A

7 September 6, 2017 CBP memorandum directs that, after encountering a DACA

8 recipient, immigration agents must run various systems checks to determine “whether 9 removal proceedings are appropriate.”32 Specifically, “[w]here an agent finds

10 derogatory information indicating that deferred action under DACA may no longer be

11 appropriate, the agent should contact USCIS to determine if the deferred action can be 12 terminated immediately.”33 Consistent with this directive, a CBP official in Arizona

13 confirmed that DACA recipients whom officers encounter are screened through

14 databases and may be detained for several hours while being screened. If the officers

15 find an indication of a new conviction, or even simply an arrest, they may place the

16 DACA recipient in removal proceedings, thereby revoking their DACA grants.

17 145. According to government data, DACA revocations increased by 25 percent 18 after President Trump’s inauguration.34

19

20 31 Lorenzo Zazueta-Castro, UPDATED: Family, Immigration Attorney: DACA

21

Recipients Being Held at Checkpoint, The Monitor, Sept. 11, 2017, http://www.themonitor.com/news/article_1ced27f4-970e-11e7-a609-

22 47c4564b53ec.html.

23

32 @ValOnTheBorder, TWITTER (Sept. 25, 2017, 7:35PM), https://twitter.com/ValOnTheBorder/status/912505757958119426; see also Valerie

24 Gonzalez, “Border Patrol Memo States Procedures to Process All DACA Recipients,”

25

KRGV.com, Sept. 25, 2017, http://www.krgv.com/story/36450600/border-patrolmemo-states-procedures-to-process-all-daca-recipients.

26 33 ValOnTheBorder, TWITTER (Sept. 25, 2017, 7:35PM).

27

34 Keegan Hamilton, Targeting Dreamers, Vice News, Sept. 8, 2017, https://news.vice.com/story/ice-was-going-after-dreamers-even-before-trump-killed-

28 daca.

31

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1 146. Upon information and belief, since January 2017 alone, there have been

2 numerous cases in which immigration authorities have targeted DACA recipients by

3 revoking their DACA grants and work permits, without providing any notice or

4 process, even though they have engaged in no disqualifying conduct and continue to

5 be eligible for the program. Indeed, Plaintiffs’ counsel are aware of at least 17 such

6 terminations nationwide.

7 147. For example, in February, immigration authorities arrested and detained 23-

8 year-old Daniel Ramirez Medina, a Washington state resident. ICE issued him an

9 NTA, even though he had valid DACA and had done nothing to change his eligibility

10 for the program. Although he has no criminal history, immigration authorities claimed

11 that he was suspected of being a gang member and issued him an NTA. An

12 immigration judge determined that he is not a flight risk or danger to the community,

13 and ordered him released on bond, but USCIS had already revoked his DACA, 14 without notice or opportunity to be heard.35

15 148. In April, immigration authorities detained a 26-year-old DACA recipient in

16 Georgia and issued him an NTA after he was arrested on a misdemeanor charge.

17 Although the prosecutor subsequently dropped the charge and an immigration judge

18 ordered the DACA recipient released on bond, USCIS had already revoked his

19 DACA, without notice or an opportunity to be heard.

20 149. In May, immigration authorities arrested and detained a 19-year-old DACA

21 recipient in North Carolina and issued him an NTA after he was arrested on a

22 misdemeanor charge. He pled guilty to a minor misdemeanor that did not disqualify

23 him from DACA, but USCIS had already revoked his DACA, without notice or an

24 opportunity to be heard.

25

26

27

35 Emily Goldberg, What Immigration Raids Mean for Students, The Atlantic, Feb. 17, 2017, https://www.theatlantic.com/education/archive/2017/02/why-was-a-daca-

28 recipient-detained-by-ice/517134/.

32

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1 150. In May, USCIS also revoked the DACA grant and work permit of then-28-year2 old Georgia resident and paralegal Jessica Colotl without notice, denying her renewal 3 request and denying her an opportunity to be heard. Federal authorities publicly stated 4 that the revocation was based on minor, non-disqualifying criminal history—namely, 5 driving without a license—that Ms. Colotl had disclosed in her prior DACA 6 applications. 7 151. In June, immigration authorities arrested and detained a 22-year-old DACA 8 recipient in California for twelve days. ICE issued him an NTA, even though he had 9 valid DACA and had done nothing to change his eligibility for the program. Although 10 immigration authorities later claimed that he was suspected of being affiliated with a 11 gang, ICE voluntarily released him from detention and cancelled his removal 12 proceedings, indicating that the suspicion was not substantiated. However, USCIS had 13 already revoked his DACA, without notice or an opportunity to be heard. 14 152. In July, USCIS revoked the DACA grant and work permit of a 32-year-old 15 South Dakota resident without notice or an opportunity to be heard, despite granting 16 him a two-year renewal only seven months before in December 2016. Federal 17 authorities did not provide a clear reason for revoking his DACA, even though he has 18 only a single, non-disqualifying misdemeanor conviction that he had disclosed in his 19 prior DACA applications. 20 153. In September, USCIS revoked the DACA grant and work permit of a 30-year21 old Minnesota resident and mother without notice or an opportunity to be heard. 22 Federal authorities did not provide a clear reason for revoking her DACA, even 23 though she remains eligible for the program and her only contact with law 24 enforcement is limited to minor traffic violations. 25 154. In November, USCIS revoked the DACA and work permit of Felipe Abonza 26 Lopez, a 20-year-old from Texas. In October, CBP detained Mr. Abonza Lopez, who 27 wears a prosthetic leg, when the car he was riding in with undocumented family 28 members was pulled over by local police who handed the passengers over to CBP.
33

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 36 of 48 Page ID #:757
1 Although CBP claimed that Mr. Abonza Lopez was arrested as part of an alien 2 smuggling investigation, he was never charged with a crime. Even so, USCIS 3 revoked his DACA, without notice or an opportunity to be heard, based solely on 4 CBP’s issuance of an NTA.36 5 155. In October, USCIS revoked the DACA grant and work permit of a young 6 California resident without notice or an opportunity to be heard. USCIS did not 7 provide a clear reason for revoking his DACA, even though he does not have any 8 disqualifying criminal conviction. 9 156. In addition, thousands of individuals nationwide are subject to having their 10 DACA and work authorization terminated pursuant to Defendants’ unlawful policies 11 and practices. Indeed, in the course of opposing the preliminary injunction motion 12 filed in the instant litigation, Defendants admitted that USCIS has a practice of 13 automatically terminating DACA based solely on the issuance of a Notice to Appear. 14 157. Defendants’ unlawful termination of qualified individuals’ DACA and work 15 authorization involves three systemic practices. 16 158. First, Defendants have a practice of revoking DACA grants without providing 17 notice, a reasoned explanation, or an opportunity to be heard prior to revocation, and 18 without providing a process for reinstatement where the revocation is in error. 19 Defendants’ practice is to terminate without providing a reasoned explanation, even 20 though the termination represents a reversal of the agency’s position because 21 Defendants had previously granted the individual DACA on one or more occasions. 22 159. Second, Defendants have engaged in a widespread practice of automatically 23 terminating DACA grants and work permits of individuals who remain eligible for 24 DACA based on the filing of a Notice to Appear by immigration authorities, including 25 where the sole basis for the NTA is the individual’s presence without admission in the 26
36 Nicole Rodriguez, Immigrant Who Had Prosthetic Leg Mocked by Trump Officials 27 to be Freed After ‘Inhumane’ Detention, Newsweek,
http://www.newsweek.com/immigrant-mocked-federal-officials-disability-be-freed28 715251.
34

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1 United States or having overstayed a visa—charges that apply essentially to all DACA

2 recipients—and even though DACA is available to noncitizens who are already in

3 removal proceedings.

4 160. Third, Defendants have targeted DACA recipients for revocation, even though

5 they have committed no disqualifying conduct, based on the Trump administration’s

6 articulation of new immigration enforcement priorities. On February 20, 2017, former

7 DHS Secretary Kelly issued a memorandum setting forth priorities for DHS’s 8 enforcement of the immigration laws.37 The Memorandum prioritizes for removal

9 even noncitizens who have no criminal convictions, but merely have been “charged

10 with any criminal offense that has not been resolved,” as well as any noncitizen who

11 has “committed acts which constitute a chargeable criminal offense.” These broad

12 categories presume guilt for offenses that have not been proven in court. They also

13 include minor misdemeanors that do not disqualify individuals from the DACA

14 program, such as traffic offenses or crimes related to immigration status like unlawful

15 entry into the United States.

16 161. Although the Kelly Memorandum rescinded prior guidance concerning

17 immigration enforcement priorities issued during the Obama administration, it

18 expressly kept the DACA guidance in place. Thus, the Memorandum provides that

19 “the Department no longer will exempt classes or categories of removable aliens from

20 potential enforcement” “[e]xcept as specifically noted above”—referring specifically 21 to the DACA program.38 DHS also issued a “Q&A” document concerning this

22 memorandum which states (at Question 22):

23

Q22: Do these memoranda affect recipients of Deferred Action for Childhood

24

Arrivals (DACA)?

25 37 See Memorandum from John Kelly, Enforcement of the Immigration Laws to Serve

26 the National Interest 2 (Feb. 20, 2017),

27

https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-theImmigration-Laws-to-Serve-the-National-Interest.pdf.

28 38 See id.

35

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1

A22: No.39

2 162. Notwithstanding the express language in the Kelly Memorandum and the

3 accompanying FAQ, immigration authorities have claimed that the Kelly

4 Memorandum justifies revoking the DACA grants of individuals who would fall

5 within the new, extremely broad enforcement priorities. Immigration authorities have

6 taken this position even though the rules of the DACA program expressly provide that

7 certain minor criminal history is not disqualifying. Under Defendants’ view,

8 apparently any DACA recipient who is charged with or has allegedly committed any

9 criminal offense, no matter how minor, and without any charge or conviction, can

10 have his or her DACA grant and work permit stripped—in many cases, without

11 notice. Defendants’ issuance of a Notice of Intent to Terminate Mr. Arreola’s DACA

12 based on their conclusion that he is an “enforcement priority” is an example of this

13 practice.

14 163. Defendants’ policies and practices violate the Administrative Procedures Act

15 (“APA”) and the Due Process Clause of the Fifth Amendment to the U.S.

16 Constitution.

17 164. Defendants’ failure to provide DACA recipients with notice, a reasoned

18 explanation, and an opportunity to be heard prior to revocation, as well as a process

19 for reinstatement where the revocation is in error, violates the Due Process Clause and

20 the rules governing the DACA program, and is arbitrary and capricious and contrary

21 to law in violation of the APA. Individuals who have been granted DACA have

22 important constitutionally protected interests in their DACA grant and employment

23 authorization. The revocation of an individual’s grant of deferred action and work

24 permit under the DACA program harms those interests. Before the immigration

25

26 39 See Q&A: DHS Implementation of the Executive Order on Enhancing Public Safety

27

in the Interior of the United States, Dep’t of Homeland Sec., Feb. 21, 2017, https://www.dhs.gov/news/2017/02/21/qa-dhs-implementation-executive-order-

28 enhancing-public-safety-interior-united-states.

36

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1 authorities may revoke a DACA grant and work permit, they must provide, at a 2 minimum, notice, a reasoned explanation for the decision, and an opportunity to be 3 heard. This is particularly important where immigration authorities seek revocation 4 based on mere allegations. In addition, the rules for the DACA program require that 5 detailed procedures be followed before a DACA grant can be terminated, including 6 notice and an opportunity to respond in most cases. Yet Defendants fail even to follow 7 their own procedures. 8 165. In addition, Defendants’ practice of automatically terminating DACA when 9 immigration authorities file a Notice to Appear—including based solely on presence 10 without admission to the United States or overstaying a visa—is arbitrary and 11 capricious and contrary to law in violation of the APA. An individual’s presence 12 without admission or overstay of a visa does not provide a relevant basis for 13 terminating DACA. Defendants’ practice of terminating DACA based on an NTA 14 charging presence without admission or overstaying a visa is irrational and arbitrary 15 because all DACA recipients are present in the country without lawful immigration 16 status; indeed that circumstance is what made it necessary for them to apply for 17 DACA in the first place. Further, the practice is contrary to the rules for the DACA 18 program, which do not allow for termination based merely on presence without 19 admission or overstaying a visa, and also do not permit automatic termination unless 20 certain procedures are followed. Indeed, Defendants’ own rules expressly provide that 21 individuals who are in removal proceedings, or who have received a final order of 22 removal, remain eligible to apply for and receive DACA. Defendants’ practice is also 23 unlawful because, in automatically revoking DACA based on an NTA, the agency 24 fails to consider the relevant facts and circumstances and exercise individualized 25 discretion in deciding whether to continue or revoke DACA. In addition, Defendants’ 26 practice improperly rests the decision of whether an individual’s DACA grant 27 continues to be warranted on the capricious charging decision of an individual 28
37

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1 immigration agent. For these reasons and others, Defendants’ automatic termination of 2 DACA based on an NTA is unlawful. 3 166. Further, Defendants’ practice of revoking DACA for individuals who lack any 4 disqualifying criminal convictions without process is unlawful under the APA because 5 it reflects the agency’s reversal of its decision to grant DACA in the first place, 6 without providing a reasoned explanation for the change. The granting and renewal of 7 DACA reflects the agency’s reasoned determination that the individual is eligible for 8 and deserving of deferred action and work authorization. A revocation reflects an 9 abrupt change in the agency’s considered position, yet the agency’s practice is to 10 revoke DACA in these cases without providing a reasoned explanation that would 11 justify such a change. 12 167. Finally, Defendants’ practice of terminating DACA for individuals who have 13 committed no disqualifying conduct and continue to be eligible for the DACA 14 program, based on a determination that they are an “enforcement priority” (apparently 15 in reliance on the Kelly Memorandum), is arbitrary and capricious and contrary to law 16 in violation of the APA. This is so because such terminations violate Defendants’ own 17 rules for the DACA program, and are inconsistent with the express language of the 18 Kelly Memorandum. Among other things, applying DHS’ new enforcement priorities 19 to DACA recipients would eviscerate the DACA program because DACA recipients 20 by definition lack a lawful immigration status, and a large number of them have 21 engaged in activities related to their lack of status—such as entering the country 22 without authorization or driving without a license—that would make them an 23 immigration enforcement priority were the Memorandum to apply to them. Moreover, 24 individuals who remain eligible for DACA are, by definition, considered a low 25 priority for enforcement under the DACA program. Thus, by terminating DACA 26 based on a determination that such individuals are an enforcement priority, 27 Defendants have also changed their position without providing a reasoned explanation 28 for the change, in violation of the APA.
38

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1

CLASS ALLEGATIONS

2 168. Together with IEIYC, representative Individual Plaintiffs bring this action

3 pursuant to Federal Rules of Civil Procedure 23(b)(2) on behalf of themselves and a

4 nationwide class of all other persons similarly situated.

5 169. Plaintiffs seek to represent the following nationwide classes:

6

A Notice Class defined as: All recipients of Deferred Action for

7

Childhood Arrivals (“DACA”) who, after January 19, 2017, have had

8

or will have their DACA grant and employment authorization revoked

9

without notice or an opportunity to respond, even though they have

10

not been convicted of a disqualifying criminal offense.

11

An “Enforcement Priority” Class defined as: All recipients of

12

Deferred Action for Childhood Arrivals (“DACA”) who, after January

13

19, 2017, have had or will have their DACA grant and employment

14

authorization revoked based on Defendants’ determination that they

15

are an enforcement priority, even though they have not been convicted

16

of a disqualifying criminal offense.

17 170. Plaintiffs Arreola, Gil, and Moreira are each adequate representatives of the

18 Notice Class. Plaintiff Arreola is an adequate representative of the “Enforcement

19 Priority” Class.

20 171. The proposed classes satisfy the requirements of Rule 23(a)(1) because each is

21 so numerous that joinder of all members is impracticable.

22 172. With respect to the Notice Class, Plaintiffs’ counsel are currently aware of at

23 least 17 individuals across the country who have had their DACA and work

24 authorization revoked without any process, even though they lack a disqualifying

25 conviction. Moreover, many more such individuals will continue to have their DACA

26 and work authorization revoked without process in the future, making joinder

27 impracticable. Indeed, thousands of current DACA recipients nationwide are subject

28 to having their DACA and work authorization revoked pursuant to Defendants’

39

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1 policies and practices, without notice or an opportunity to respond to Defendants’

2 allegations, even though they remain eligible for the program. The risk is reinforced

3 by Defendants’ concession in this case that they have a practice of terminating DACA

4 without process.

5 173. With respect to the “Enforcement Priority” Class, Plaintiffs’ Counsel are

6 likewise aware of at least several cases in which Defendants have terminated DACA

7 based on a determination that the individual is an “enforcement priority,” even though

8 the individual has no disqualifying criminal conviction. Further, Defendants have

9 taken the position in other litigation that they may terminate DACA when the

10 recipient is considered an enforcement priority under the Kelly Memorandum, even

11 though the Kelly Memorandum on its face does not apply to the DACA program and

12 even though the individual is already defined as low priority under the DACA

13 program rules.

14 174. The classes each meet the commonality requirements of Federal Rule of Civil

15 Procedure 23(a)(2). The members of the Notice Class are subject to two common

16 practices or policies: (1) the revocation of DACA and work authorization without

17 notice, a reasoned explanation, and an opportunity to be heard prior to revocation, or a

18 process for reinstatement where the revocation is in error; (2) the automatic

19 termination of DACA grants and work permits based on the filing of a Notice to

20 Appear, even where the sole basis for the NTA is presence in the country without

21 admission or overstaying a visa. The members of the “Enforcement Priority” Class are

22 subject to the termination of DACA grants and work permits based on DHS’ new,

23 expanded immigration enforcement priorities, even though the individual has no

24 disqualifying conviction. The lawsuit raises numerous questions of law and fact

25 common to members of the proposed classes, including but not limited to:

26 • Whether Defendants’ practice of revoking DACA without notice, a reasoned

27

explanation of the reason for such termination, or an opportunity to be heard is

28

arbitrary and capricious and contrary to law in violation of the APA;

40

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1 • Whether Defendants’ practice of revoking DACA without notice, a meaningful

2

explanation of the reason for such termination, or an opportunity to be heard

3

violates the Due Process Clause.

4 • Whether Defendants’ practice of revoking DACA without providing a reasoned

5

explanation for the agency’s change in position is arbitrary and capricious and

6

contrary to law in violation of the APA;

7 • Whether Defendants’ practice of automatically terminating DACA when

8

immigration authorities file a Notice to Appear—including based solely on

9

presence without admission to the United States or overstaying a visa—is

10

arbitrary and capricious and contrary to law in violation of the APA.

11 • Whether Defendants’ practice of terminating DACA based on criminal history

12

or alleged conduct, even though the individual remains eligible for the program,

13

pursuant to new immigration enforcement priorities (such as those set forth in

14

the Kelly Memorandum), is arbitrary and capricious and contrary to law in

15

violation of the APA.

16 175. The proposed classes meet the typicality requirements of Federal Rule of Civil

17 Procedure 23(a)(3) because the claims of the representative Individual Plaintiffs are

18 typical of the claims of their respective classes. Plaintiffs Arreola, Gil, and Moreira,

19 and the proposed Notice Class members are all individuals who have had or will have

20 their DACA and employment authorization revoked without notice or an opportunity

21 to be heard even though they have not been convicted of a disqualifying criminal

22 offense. Plaintiff Arreola and the proposed “Enforcement Priority” Class members are

23 all subject to Defendants’ practice of terminating DACA and employment

24 authorization based on Defendants’ new enforcement priorities even though they have

25 not been convicted of a disqualifying criminal offense. Individual Plaintiffs and their

26 respective proposed classes also share the same legal claims, which challenge the

27 legality of these revocation policies and practices under the APA and/or the Due

28 Process Clause.

41

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1 176. The proposed classes each meet the adequacy requirements of Federal Rule of 2 Civil Procedure 23(a)(4). Individual Plaintiffs seek the same relief as the other 3 members of the Notice Class—namely, a declaration that Defendants’ policies and 4 practices violate the APA and Due Process Clause, and an order enjoining Defendants 5 from terminating DACA and work authorization on arbitrary grounds and in the 6 absence of adequate procedures. As to the “Enforcement Priority” Class, Plaintiff 7 Arreola likewise seeks the same relief as the other members of the class: a declaration 8 that Defendants’ policies and practices violate the APA, and an order enjoining 9 Defendants from terminating DACA and work authorization based on the application 10 of new enforcement priorities even though under the DACA program rules, class 11 members are not an enforcement priority. Moreover, Individual Plaintiffs have no 12 interests adverse to those of their respective classes as a whole. In defending their own 13 rights, Plaintiffs Arreola, Gil, and Moreira will defend the rights of all proposed class 14 members fairly and adequately. 15 177. In addition, the proposed classes are represented by counsel from the American 16 Civil Liberties Union Immigrants’ Rights Project and the American Civil Liberties 17 Union of Southern California. Counsel have extensive experience litigating class 18 action lawsuits and other complex cases in federal court, including civil rights 19 lawsuits on behalf of noncitizens. 20 178. The members of each of the classes are readily ascertainable through 21 Defendants’ records. 22 179. Finally, each of the proposed classes satisfies Federal Rule of Civil Procedure 23 23(b)(2). The immigration authorities have acted on grounds generally applicable to 24 each of the classes by arbitrarily stripping class members of DACA and employment 25 authorization, without adequate procedures through which they can challenge those 26 revocation decisions, and by terminating DACA based on Defendants’ new 27 enforcement priorities that conflict with the DACA program rules. Thus, final 28
42

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1 injunctive and declaratory relief is appropriate with respect to each of the classes as a

2 whole.

3

CLAIMS FOR RELIEF

4

First Claim

5

Administrative Procedure Act

6 180. The foregoing allegations are repeated and incorporated as though fully set

7 forth herein.

8 181. The Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-06, provides that

9 courts “shall . . . hold unlawful and set aside agency action” that is “arbitrary,

10 capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.

11 § 706(2)(A).

12 182. Defendants’ practice of terminating or revoking DACA grants and employment

13 authorization without notice, a reasoned explanation, an opportunity to be heard, or a

14 reinstatement procedure is arbitrary, capricious, and contrary to law in violation of the

15 APA because a DACA grant cannot be terminated without first providing a

16 meaningful process and complying with the DACA program rules, including the

17 SOPs.

18 183. Defendants’ practice of automatically terminating or revoking DACA and

19 employment authorization as a result of the filing of an NTA—including an NTA

20 solely charging removability for being present without admission or for having

21 overstayed a visa—is arbitrary, capricious, and contrary to law in violation of the

22 APA for multiple reasons, including that such an NTA fails to provide a reasoned

23 basis for terminating DACA; terminating on this basis is inconsistent with and

24 violates the rules of the DACA program; the practice reflects a failure of the agency to

25 exercise individualized discretion; and it rests the termination decision on the arbitrary

26 charging decision of an ICE or CBP officer.

27 184. Defendants’ practice of terminating or revoking DACA based on non-

28 disqualifying criminal history or unsubstantiated allegations is arbitrary and capricious

43

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1 and contrary to law in violation of the APA because it represents a departure from the

2 agency’s considered decision to grant DACA, without providing a reasoned

3 explanation for their change in position.

4 185. Defendants’ practice of relying on the Kelly Memorandum or other

5 enforcement priorities to terminate or revoke DACA for individuals who have

6 committed no disqualifying conduct and continue to be eligible for the DACA

7 program is arbitrary and capricious and contrary to law in violation of the APA

8 because it is contrary to Defendants’ own rules for the DACA program, as well as the

9 language of the Kelly Memorandum itself. Further, in terminating DACA based on a

10 determination that individuals who remain eligible for DACA are an enforcement

11 priority even though such individuals are by definition considered low priority under

12 the DACA program, Defendants have also violated the APA by failing to provide a

13 reasoned explanation for their change in position.

14

Second Claim

15

Due Process Clause of the Fifth Amendment to the U.S. Constitution

16 186. The foregoing allegations are repeated and incorporated as though fully set

17 forth herein.

18 187. The Due Process Clause of the Fifth Amendment to the U.S. Constitution

19 provides that “[n]o person shall be . . . deprived of life, liberty, or property, without

20 due process of law.” U.S. Const. amend. V.

21 188. Defendants have a policy and practice of revoking DACA recipients’ DACA

22 and work authorization without providing any process. Once DACA has been granted,

23 it cannot be taken away without adequate process. Defendants’ policy and practice

24 violates procedural due process because it fails to provide DACA recipients with

25 notice, a reasoned explanation for the revocation decision, and an opportunity to

26 respond, and to present arguments and evidence to demonstrate that the individual

27 continues to be eligible for and warrants the continuation of his or her DACA grant.

28

44

Case 5:17-cv-02048-PSG-SHK Document 32 Filed 12/21/17 Page 47 of 48 Page ID #:768

1 Defendants’ process also fails to provide for reinstatement in cases where the

2 revocation decision was in error.

3

PRAYER FOR RELIEF

4

IEIYC and Individual Plaintiffs, on behalf of themselves and others similar

5 situated, ask this Court to grant the following relief:

6 a) Certify this case as a class action lawsuit as proposed herein, appoint Plaintiffs

7

Arreola, Gil, and Moreira as class representatives of their respective classes and

8

the undersigned counsel as class counsel;

9 b) Declare Defendants’ DACA revocation practices and policies unlawful and

10

unconstitutional;

11 c) Enjoin Defendants from terminating Notice Class members’ and IEIYC DACA

12

recipients’ DACA grants and EADs absent a fair procedure—including

13

reasonable notice, a reasoned explanation, and an opportunity to be heard—

14

through which to challenge the termination consistent with the APA and the

15

Due Process Clause;

16 d) Enjoin Defendants from revoking the DACA grants and EADs of Notice Class

17

members and IEIYC DACA recipients based on the filing of an NTA charging

18

solely presence without admission to the United States or overstaying a visa,

19 e) Enjoin Defendants from revoking the DACA grants and EADs of “Enforcement

20

Priority” Class members and IEIYC DACA recipients based on the

21

enforcement priorities set forth in the Kelly Memorandum or other enforcement

22

priorities inconsistent with the rules of the DACA program;

23 f) Vacate Defendants’ unlawful revocation of DACA and work authorization for

24

Individual Plaintiffs and all class members, and enjoin Defendants from

25

enforcing the revocations;

26 g) In the alternative, order Defendants to temporarily reinstate DACA and work

27

authorization for Plaintiffs Gil and Moreira and such Notice Class members

28

pending a fair procedure—including reasonable notice, a reasoned explanation,

45

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1

and an opportunity to be heard—through which they may challenge the

2

revocation decision consistent with the APA and the Due Process Clause;

3 h) Order Defendants to accept renewal applications from Individual Plaintiffs and

4

class members whose DACA protections were unlawfully revoked;

5 i) Grant an award of attorneys’ fees and costs; and

6 j) Grant any other and further relief that this Court may deem fit and proper.

7

8

Respectfully submitted,

9 Dated: December 21, 2017 10 11 12 13 14 15 16 17

/s/ Jennifer Chang Newell Jennifer Chang Newell Katrina L. Eiland Michael K. T. Tan* David Hausman* ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
Ahilan T. Arulanantham Michael Kaufman Dae Keun Kwon ACLU FOUNDATION OF SOUTHERN CALIFORNIA

18

Attorneys for Plaintiffs

*Admitted pro hac vice 19

20

21

22

23

24

25

26

27

28

46

 
 Case 5:17-cv-02048-PSG-SHK Document 33-1 Filed 12/21/17 Page 1 of 29 Page ID #:774

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)
13

14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

15

16 INLAND EMPIRE – IMMIGRANT

)

YOUTH COLLECTIVE, et al., on behalf ) Case No. 5:17-cv-02048-PSG-SHK

17 of themselves and others similarly situated, ) )

18

Plaintiffs,

19

v.

20 KIRSTJEN NIELSEN, Secretary, U.S. Department of Homeland Security, et al.,

)

) ) ) ) )

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

21 Defendants.
22
23

)

) ) ) ) )

Judge: Hon. Philip S. Gutierrez Courtroom: 6A Hearing: February 5, 2018 Time: 1:30 p.m.

24

)

)

25

)

)

26

27

28

Case 5:17-cv-02048-PSG-SHK Document 33-1 Filed 12/21/17 Page 2 of 29 Page ID #:775
1 Ahilan T. Arulanantham (SBN 237841) aarulanantham@aclusocal.org
2 Michael Kaufman (SBN 254575) mkaufman@aclusocal.org
3 Dae Keun Kwon (SBN 313155) akwon@aclusocal.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
5 Los Angeles, CA 90017 Telephone: (213) 977-5232
6 Facsimile: (213) 977-5297 7
Attorneys for Plaintiffs 8
* Admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-PSG-SHK Document 33-1 Filed 12/21/17 Page 3 of 29 Page ID #:776

1

TABLE OF CONTENTS 2

INTRODUCTION .....................................................................................................ii

3

BACKGROUND .......................................................................................................4 4

The DACA Program........................................................................................4 5

Defendants’ Unlawful DACA Revocation Policies and Practices..................5 6

Plaintiffs and Proposed Class Members..........................................................6 7

ARGUMENT ........................................................................................................... 10

8

I. The Proposed Class Satisfies Rule 23(a)’s Requirements. .................11

9

A. Numerosity: The Proposed Class Consists of at Least Seventeen and

10

Likely Many More DACA Recipients...........................................11

11

B. The Class Presents Common Questions of Law and Fact. ............13

12

C. Typicality: Plaintiffs’ Claims Are Typical of Those of Other Class

Members. ........................................................................................ 16 13

D. Adequacy: Plaintiffs Will Adequately Protect the Interests of the

14

Proposed Class, and Plaintiffs’ Counsel Are More Than Qualified

to Litigate this Action. ...................................................................17 15

E. The Class Is Sufficiently Ascertainable. ........................................19 16

II. This Action Satisfies the Requirements of Rule 23(b)(2)...................20 17

CONCLUSION ........................................................................................................ 23 18

19

20

21

22

23

24

25

26

27

28

i

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1

TABLE OF AUTHORITIES

Cases 2

Alfaro Garcia v. Johnson,

3 No. 14-cv-1775, 2014 WL 6657591 (N.D. Cal. 2014) ............................................. 18

Ali v. Ashcroft, 4 213 F.R.D. 390 (W.D. Wash. 2003)..........................................................................13

Ark. Educ. Ass’n v. Board Of Educ. of Portland, Ark. Sch. Dist., 5 446 F.2d 763 (8th Cir. 1971).................................................................................3, 12

Armstrong v. Davis,

6 275 F.3d 849 (9th Cir. 2001).....................................................................................14

Arnott v. U.S. Citizenship & Immigration Servs., 7 290 F.R.D. 579 (C.D. Cal. 2012) ..................................................................10, 11, 16

Baharona-Gomez v. Reno, 8 167 F.3d 1228 (9th Cir. 1999) ...................................................................................... 4

Carrillo v. Schneider Logistics, Inc.,

9 No. 11-cv-8557CAS-DTBX, 2012 WL 556309 (C.D. Cal. Jan. 31, 2012) ................ 4

Cervantez v. Celestica Corp., 10 253 F.R.D. 562 (C.D. Cal. 2008) ..............................................................................12

Cole v. City of Memphis, 11 839 F.3d 530 (6th Cir. 2016).....................................................................................19

Colotl v. Kelly, 12 No. 17-cv-1670-MHC, 2017 WL 2889681 (N.D. Ga. June 12, 2017) .............5, 9, 10

Dunnigan v. Metro. Life Ins. Co., 13 214 F.R.D. 125 (S.D.N.Y. 2003)...............................................................................20

Ellis v. Costco Wholesale Corp., 14 657 F.3d 970 (9th Cir. 2011).....................................................................................16

Evon v. Law Offices of Sidney Mickell, 15 688 F.3d 1015 (9th Cir. 2012)...................................................................................16

Franco-Gonzales v. Napolitano, 16 No. 10-cv-02211-DMG-DTBX, 2011 WL 11705815

(C.D. Cal. Nov. 21, 2011) ...................................................................................11, 18 17 Gen. Tel. Co. of Sw. v. Falcon,

457 U.S. 147 (1982) ..................................................................................................15 18 Gonzalez Torres v. U.S. Dep’t of Homeland Sec.,

No. 17-cv-1840 JM(NLS), 2017 WL 4340385(S.D. Cal. Sept. 29, 2017) ............. 5, 6 19 Gorbach v. Reno,

181 F.R.D. 642 (W.D. Wash. 1998)..........................................................................22 20 Greater Los Angeles Agency on Deafness, Inc. v. Reel Servs. Mgmt. LLC,

No. 13-cv-7172 PSG (ASX), 2014 WL 12561074 (C.D. Cal. May 6, 2014)...........19 21 Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998)........................................................................13, 14,17 22 Hanon v. Dataproducts Corp.,

976 F.2d 497 (9th Cir. 1992).....................................................................................17 23 Harris v. Palm Springs Alpine Estates, Inc.,

329 F. 2d 909 (9th Cir. 1964)....................................................................................11 24 Hawker v. Consovoy,

198 F.R.D. 619 (D.N.J. 2001) ...................................................................................13 25 Hum v. Dericks,

162 F.R.D. 628 (D. Haw. 1995) ............................................................................3, 12 26 In re Yahoo Mail Litig.,

308 F.R.D. 577 (N.D. Cal. 2015) ..............................................................................19 27 Johnson v. California,

543 U.S. 499 (2005) ..................................................................................................14 28 Jordan v. Los Angeles Cty.,

669 F.2d 1311 (9th Cir. 1982)...................................................................................12

ii

Case 5:17-cv-02048-PSG-SHK Document 33-1 Filed 12/21/17 Page 5 of 29 Page ID #:778
Khoury v. Asher, 1 3 F. Supp. 3d 877 (W.D. Wash. 2014) ...................................................................... 18
LaDuke v. Nelson, 2 762 F.2d 1318 (9th Cir. 1985)...................................................................................17
Lamumba Corp. v. City of Oakland, 3 No. 05-cv-2712 MHP, 2007 WL 3245282 (N.D. Cal. Nov. 2, 2007) ...................... 20
Lynch v. Rank, 4 604 F. Supp. 30 (N.D. Cal. 1984) .............................................................................18
Lyon v. U.S. Immigration & Customs Enf’t, 5 308 F.R.D. 203 (N.D. Cal. 2015) ..............................................................................21
Mazza v. Am. Honda Motor Co., Inc., 6 666 F.3d 581 (9th Cir. 2012).....................................................................................13
Mendez Rojas, et al. v. Johnson, 7 No. 16-cv-1024-RSM (W.D. Wash. Jan. 10, 2017) .................................................. 11
Moreno v. Napolitano, 8 No. 11-cv-5452, 2014 WL 4911938 (N.D. Ill. Sept. 30, 2014) ................................ 20
Natl. Assn. of Radiation Survivors v. Walters, 9 111 F.R.D. 595 (N.D. Cal. 1986) ..............................................................................13
O’Connor v. Boeing N. Am., Inc., 10 184 F.R.D. 311 (C.D. Cal. 1998) ..............................................................................20
Orantes-Hernandez v. Smith, 11 541 F. Supp. 351 (C.D. Cal. 1982)............................................................................16
Parsons v.Ryan, 12 754 F.3d 657 (9th Cir. 2014).........................................................................13, 17, 22
Perez-Funez v. Dist. Dir., I.N.S., 13 611 F. Supp. 990 (C.D. Cal. 1984)............................................................................11
Perez-Olano v. Gonzalez, 14 248 F.R.D. 248 (C.D. Cal. 2008) ..............................................................................15
Preap v. Johnson, 15 303 F.R.D. 566 (N.D. Cal. 2014) ........................................................................13, 18
RILR v. Johnson, 16 80 F. Supp. 3d 164 (D.D.C. 2015) ............................................................................18
Rivera v. Johnson, 17 307 F.R.D. 539 (W.D. Wa 2015) ..............................................................................18
Rodriguez v. Hayes, 18 591 F.3d 1105 (9th Cir. 2010)............................................................................passim
Santillan v. Ashcroft, 19 No. 04-cv-2686MHP, 2004 WL 2297990 (N.D. Cal. Oct. 12, 2004).................11, 14
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 20 559 U.S. 393 (2010) ..................................................................................................10
Shelton v. Bledsoe, 21 775 F.3d 554 (3d Cir. 2015) ......................................................................................19
Shook v. El Paso Cnty., 22 386 F.3d 963 (10th Cir. 2004)...................................................................................19
Smith v. Heckler, 23 595 F. Supp. 1173 (E.D. Cal. 1984)..........................................................................13
Sueoka v. United States, 24 101 Fed. App’x 649 (9th Cir. 2004)..........................................................................11
Sweet v. Pfizer, 25 232 F.R.D. 360 (C.D. Cal. 2005) ..............................................................................15
Wagafe v. Trump, 26 No. 17-cv-0094-RAJ, 2017 WL 2671254 (W.D. Wash. June 21, 2017)..................11
Wal-Mart Stores, Inc. v. Dukes, 27 564 U.S. 338 (2011) ......................................................................................15, 16, 21
Walters v. Reno, 28 145 F.3d 1032 (9th Cir. 1998)............................................................................passim
Yaffe v. Powers, iii

Case 5:17-cv-02048-PSG-SHK Document 33-1 Filed 12/21/17 Page 6 of 29 Page ID #:779
454 F.2d 1362 (1st Cir.1972) ....................................................................................19 1 Young v. Nationwide Mut. Ins. Co.,
693 F.3d 532 (6th Cir. 2012).....................................................................................20 2 3 Rules 4 Fed. R. Civ. P. 23...................................................................................................passim 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
iv

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1

INTRODUCTION

2

Plaintiffs José Eduardo Gil Robles (“Mr. Gil”), Ronan Carlos De Souza

3 Moreira (“Mr. Moreira”), and Jesús Alonso Arreola Robles (“Mr. Arreola”)

4 (collectively, “Plaintiffs”), along with numerous other Deferred Action for Childhood

5 Arrivals (“DACA”) recipients nationwide, have had their permission to live in the

6 United States and employment authorization arbitrarily stripped away by the United

7 States Citizenship and Immigration Services (“USCIS”) since President Trump took

8 office, without any notice, reasoned explanation, or opportunity to be heard. USCIS

9 has abruptly revoked these young immigrants’ valid DACA and work authorization

10 even though they remain eligible for the program. Losing the protection of DACA

11 and, with it, the ability to work and plan for the future, is devastating to these young

12 immigrants who have called the United States home since they were children.

13

Mr. Gil is a 24-year-old who has lived in the United States for more than 19

14 years. USCIS found him eligible for and granted him DACA in both 2015 and 2017.

15 His DACA allowed him to work as a bakery manager and for a logistics company, and

16 he used his earnings to help support his five younger U.S. citizen siblings. Mr. Gil

17 was also able to get a driver’s license, which allowed him to drive to work and church,

18 and to give his siblings rides to school. However, USCIS suddenly revoked Mr. Gil’s

19 DACA and work authorization in November 2017—just three months after USCIS

20 renewed it—without providing him with a reasoned explanation or a process to

21 challenge the revocation.

22

Mr. Moreira is also 24 years old and has lived in the United States since he was

23 a child. In high school, Mr. Moreira was active in school sports and other activities

24 and received various certificates of achievement for his academic performance. After

25 Mr. Moreira graduated, USCIS granted him DACA, which allowed him to secure a

26 good job with a flooring company, where he excelled and was quickly promoted from

27 an assistant manager to a manager position. USCIS granted Mr. Moreira DACA twice

28

1

Case 5:17-cv-02048-PSG-SHK Document 33-1 Filed 12/21/17 Page 8 of 29 Page ID #:781

1 more—most recently in November 2017—just days before USCIS abruptly 2 terminated it.1

3

Plaintiffs are not alone. Indeed, Plaintiffs’ counsel are aware of at least 17

4 DACA recipients across the country who have had their DACA and work permits

5 terminated without notice or process since January 2017, even though they still

6 qualify for the program. Declaration of Katrina L. Eiland (“Eiland Decl.”) ¶¶ 3-14.

7 Hundreds of thousands more DACA recipients nationwide are at risk of having their

8 DACA terminated pursuant to Defendants’ unlawful policies and practices. Id. ¶ 48,

9 Ex. 33.

10

Indeed, Defendants have conceded in this lawsuit that USCIS engages in a

11 practice of terminating DACA without notice or an opportunity to respond, including

12 by automatically terminating DACA based on the issuance of a Notice to Appear

13 (“NTA”) in immigration court, without regard to whether the recipient remains

14 eligible for the program. See Doc No. 23-2, Declaration of Ron Thomas (“Thomas

15 Decl.”) ¶ 4. Defendants also have conceded that this practice is widespread. In fact,

16 Defendants have represented that the number of individuals subjected to its practice is

17 such that identifying “all automatic terminations of DACA would . . . involve a

18 manual review of hundreds of cases.” Id. ¶ 5 (emphasis added).

19

However, as this Court and others have ruled, USCIS’s admitted practice of

20 terminating DACA without notice or process violates the agency’s own rules and is,

21 therefore, arbitrary and capricious and contrary to law under the Administrative

22 Procedure Act (“APA”). As described in Plaintiffs’ Motion for a Classwide

23 Preliminary Injunction, filed this same date, Defendants’ termination practice is also

24 arbitrary and capricious because it fails to provide good reasons for changing course

25 with respect to the agency’s determination that the individual merits DACA, and is

26 based on arbitrary, irrelevant factors. Terminating DACA without notice and an

27 1 The termination of Mr. Arreola’s DACA is described in detail in Plaintiff Arreola’s Memorandum of Law in Support of his Motion for a Preliminary Injunction.
28 See Doc. No. 16-2 at 5-10.

2

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1 opportunity to be heard also violates the Due Process Clause of the Fifth Amendment

2 to the U.S. Constitution.

3

A class action lawsuit is appropriate to challenge Defendants’ unlawful policies

4 and practices. Plaintiffs seek to certify the following nationwide Notice Class under

5 Federal Rules of Civil Procedure 23(a) and 23(b)(2):

6

All recipients of Deferred Action for Childhood Arrivals (“DACA”)

7

who, after January 19, 2017, have had or will have their DACA grant

8

and employment authorization revoked without notice or an

9

opportunity to respond, even though they have not been convicted of a

10

disqualifying criminal offense.2

11

The proposed class readily satisfies the requirements of numerosity,

12 commonality, typicality, and adequacy in Rule 23(a) and is readily ascertainable. The

13 proposed class includes at least 17 and likely many more individuals whose DACA

14 already has been unlawfully terminated, which is sufficient to satisfy numerosity. See,

15 e.g., Ark. Educ. Ass’n v. Board Of Educ. of Portland, Ark. Sch. Dist., 446 F.2d 763,

16 765-66 (8th Cir. 1971) (class of 17 sufficient); Hum v. Dericks, 162 F.R.D. 628, 634

17 (D. Haw. 1995) (noting that courts have certified classes with as few as 13 members).

18 The class raises numerous common legal questions that generate common answers:

19 namely, whether Defendants’ challenged policies and practices violate the APA and

20 the Due Process Clause. The class also raises common factual issues because

21 Plaintiffs and class members are subject to the same policies and practices. Plaintiffs’

22 APA and Due Process Clause claims are typical of those whom they seek to

23 represent—that is, other DACA recipients who have or will have their DACA and

24 work authorization terminated without notice or process pursuant to Defendants’

25 unlawful policies and practices, despite having no disqualifying convictions. And as

26 to adequacy, a team of seasoned attorneys from the ACLU Immigrants’ Rights Project

27 2 This motion does not address the proposed “Enforcement Priority” Class pled in
28 Plaintiffs’ Amended Complaint, filed this same date.

3

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1 and the ACLU of Southern California, with significant experience in immigrants’

2 rights and class action cases, represents Plaintiffs.

3

Plaintiffs’ proposed class likewise satisfies Rule 23(b)(2) because Defendants

4 have “acted or refused to act on grounds that apply generally to the class, so that final

5 injunctive relief or corresponding declaratory relief is appropriate respecting the class

6 as a whole.” Because the government has a policy or practice of terminating DACA

7 without notice, process, or a reasoned explanation, including based solely on the

8 issuance of an NTA, even where a DACA recipient has never engaged in any

9 disqualifying conduct, Defendants have necessarily acted in the same way as to all

10 class members. Injunctive and declaratory relief to stop Defendants’ unlawful

11 practices is therefore appropriate with respect to the class as a whole.

12

Accordingly, this Court should grant class certification under Rule 23(b)(2) for

13 purposes of entering Plaintiffs’ requested classwide preliminary injunction.3 See

14 Carrillo v. Schneider Logistics, Inc., No. 11-cv-8557CAS-DTBX, 2012 WL 556309,

15 at *9 (C.D. Cal. Jan. 31, 2012) (“courts routinely grant provisional class certification

16 for purposes of entering [preliminary] injunctive relief” under Rule 23(b)(2), where

17 the plaintiff establishes that the four prerequisites in Rule 23(a) are also met) (citing

18 Baharona-Gomez v. Reno, 167 F.3d 1228, 1233 (9th Cir. 1999)).

19 20 The DACA Program4

BACKGROUND

21

Under DACA, young immigrants who entered the United States as children

22 who meet specified educational and residency requirements, and who pass extensive

23 criminal background checks, are eligible to receive deferred action. Doc. No. 16-4,

24 Declaration of Dae Keun Kwon (“Kwon Decl.”) ¶ 10, Ex. 9 (“Napolitano Memo” at

25 3 Plaintiffs also request that they be appointed Class Representatives, and that
26 u4 ndersAigdndeidtioconualnsbealcbkegraopupnodinatbeoduCt ltahsesDCAouCnAsepl.rogram is provided in Plaintiffs’ 27 Amended Complaint, filed concurrently with this Motion, and Plaintiff Arreola’s
Memorandum of Law in support of his Motion for a Preliminary Injunction, Doc No. 28 16-2.

4

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1 1-2). The enumerated eligibility criteria include the requirements that DACA 2 recipients not have been convicted of a felony, a significant misdemeanor,5 or three or

3 more other misdemeanors. Napolitano Memo at 1.

4

USCIS is the agency charged with making DACA determinations. Id. at 2-3.

5 The DACA Standard Operating Procedures (“SOPs”) set forth the uniform procedures

6 that the agency must follow in adjudicating all DACA applications, as well as in

7 terminating DACA and EADs granted through the program. See Doc No. 31, Order

8 Granting Pl.’s Mot. for Prelim. Inj. (“PI Order”) at 2; Kwon Decl. ¶ 21, Ex. 20 at 16

9 (“This SOP is applicable to all Service Center personnel performing adjudicative and

10 clerical functions or review of those functions. Personnel outside of Service Centers

11 performing duties related to DACA processing will be similarly bound by the

12 provisions of this SOP.”); id. (“This SOP describes the procedures Service Centers are

13 to follow when adjudicating DACA requests.”); see also Colotl v. Kelly, No. 17-cv-

14 1670-MHC, 2017 WL 2889681, at *4 (N.D. Ga. June 12, 2017); Gonzalez Torres v.

15 U.S. Dep’t of Homeland Sec., No. 17-cv-1840 JM(NLS), 2017 WL 4340385, at *3

16 (S.D. Cal. Sept. 29, 2017).

17

On September 5, 2017, the Department of Homeland Security (“DHS”)

18 announced that it was winding down the DACA program. Although the program is

19 ending, DHS officials have confirmed that the same program rules continue to apply

20 until it ends. PI Order at 1-2.

21 Defendants’ Unlawful DACA Revocation Policies and Practices

22

Despite President Trump’s assurances that DACA recipients “have nothing to

23 worry about”6 and despite the critically important interests at stake once an individual

24 has received a grant of DACA, Defendants have engaged in a policy and practice of

25 5 Significant misdemeanors are convictions for domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or
26 trafficking; and, driving under the influence; and any offense for which an individual was sentenced to time in custody of more than 90 days. Kwon Decl. ¶ 20, Ex. 19 at
27 20. 6 Eiland Decl. ¶ 30, Ex. 15 (@realDonaldTrump, TWITTER (Sept. 7, 2017, 6:42
28 AM), https://twitter.com/realDonaldTrump/status/905788459301908480).

5

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1 unlawfully revoking individuals’ DACA and work permits without notice, a reasoned

2 explanation, or an opportunity to respond, even though these individuals remain

3 eligible for the program.

4

Defendants’ unlawful termination of qualified individuals’ DACA and work

5 authorization involves at least two systemic policies and practices:

6

First, Defendants have a practice of revoking DACA without providing notice,

7 a reasoned explanation, an opportunity to be heard prior to revocation, or a process for

8 reinstatement where the revocation is in error. Defendants’ have engaged in this

9 practice despite the fact that USCIS’s own SOPs governing the DACA program do

10 not allow for termination without notice in the vast majority of cases, including in

11 Plaintiffs’ and the proposed class members. See, e.g., Gonzalez Torres, 2017 WL

12 4340385, at *3 (“In short, except in EPS cases [i.e., certain cases involving an

13 egregious risk to public safety], the DACA SOP requires notice and an ability to

14 contest the [Notice of Intent to Terminate] before DACA status may be terminated.”).

15

Second, USCIS has a practice of automatically terminating DACA and work

16 permits based on the issuance of an NTA where the sole basis for the NTA is the

17 individual’s lack of immigration status in the United States. Defendants themselves

18 have asserted in this litigation that USCIS has a “consistent practice” of automatically

19 terminating DACA “with the issuance of NTAs.” Doc No. 23, Defs.’ Opp. to PI at

20 26; see also Thomas Decl. ¶ 4 (“The issuance of a Notice to Appear (NTA) by U.S.

21 Immigration and Customs Enforcement (ICE) or U.S. Customs and Border Protection

22 (CBP) automatically terminates DACA. . . . This has been USCIS’ practice since FY

23 2013 when such terminations began.”). As this Court has observed, however, all

24 DACA recipients could be charged with unlawful presence, and DACA is available to

25 noncitizens who are in removal proceedings. PI Order at 9.

26 Plaintiffs and Proposed Class Members

27

The termination of Plaintiffs’ DACA and work authorization illustrates

28 Defendants’ unlawful policies and practices. Mr. Gil, who has lived in the United

6

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1 States since he was five years old, was working for a logistics company in Minnesota

2 and helping to support his five U.S. citizen siblings when USCIS revoked his DACA

3 and work authorization. Declaration of José Eduardo Gil Robles (“Gil Decl.”) ¶¶ 1-2,

4 11-12. Mr. Gil was arrested in September 2017 and ultimately charged with a 5 misdemeanor for driving on a cancelled license, which is still pending.7 Id. ¶ 14. Mr.

6 Gil was not aware of any problem with his driver’s license, which was allegedly

7 cancelled because it required a “status check” when his previous grant of DACA

8 expired a few weeks before. Id. Mr. Gil was released on bond and went back to his

9 work and family. Id. ¶ 15. However, a month later, ICE appeared at his job, arrested

10 him, and took him to an immigration detention facility. Id. ICE subsequently issued

11 him an NTA charging him with being present without admission. Id. Mr. Gil was

12 released on bond after an immigration judge found that he was not a danger to the

13 community or a flight risk. Id. ¶¶ 18-20. However, while he was in detention, Mr. Gil

14 received a notice from USCIS terminating his renewed DACA based on ICE’s

15 issuance of an NTA. Id. ¶¶ 22-23, 30, Ex. B. He received no notice or explanation

16 beyond the single sentence in the notice, and he had no chance to respond. Id. ¶ 23.

17

Similarly, Mr. Moreira has lived in the United States since middle school, after

18 entering on a visitor’s visa. Declaration of Ronan Carlos De Souza Moreira (“Moreira

19 Decl.”) ¶ 1. His mother is a Legal Permanent Resident and his older brother, who is

20 expecting a child, is a U.S. citizen. Id. ¶ 5. During middle school and high school,

21 Mr. Moreira played soccer and tennis, participated in school clubs, and earned

22 certificates of achievement for his academic performance and attendance. Id. ¶ 2.

23 After graduating from high school and getting DACA, Mr. Moreira secured a good

24 job with a flooring company in Georgia, working his way up to a job managing 20

25 flooring installers. Id. ¶¶ 2, 9. On November 2, 2017, Mr. Moreira was arrested after

26 a police officer concluded that the expiration date on his license had been changed.

27 7 Such traffic violations do not even count as a misdemeanor that could disqualify an
28 individual from DACA. See Kwon Decl. ¶ 20, Ex. 19 at 20.

7

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1 He was ultimately charged with a misdemeanor for possession of an altered

2 identification document, but has not been convicted. Id. ¶¶ 12-14. Although Mr.

3 Moreira was quickly granted bail, ICE detained him and issued him an NTA charging

4 him with overstaying a visa. Id. ¶ 14. Mr. Moreira was released from immigration

5 detention after about a month. When he appeared for a bond hearing, the lawyer for

6 the government conceded that he was neither a flight risk nor a danger to the

7 community, and offered him a bond, which he accepted. Id. ¶ 16. However, like Mr.

8 Gil, Mr. Moreira received a notice from USCIS terminating his DACA based on

9 ICE’s issuance of an NTA. Id. ¶¶ 18, 26, Ex. B. Mr. Moreira also did not receive any

10 notice or explanation beyond the single sentence in the notice, and he had no chance

11 to respond. Id. ¶ 19.

12

Plaintiffs’ experiences are representative of DACA terminations nationally.

13 According to government statistics, DACA revocations increased by 25 percent in the 14 first three months after President Trump’s inauguration in January 2017.8 Plaintiffs’

15 counsel are aware of at least 17 individuals around the country who, in the last ten

16 months alone, have had their DACA and work authorization terminated without

17 notice, a reasoned explanation, or an opportunity to respond, even though they

18 continue to be eligible for DACA. Eiland Decl. ¶¶ 2-14. Given that there are

19 currently nearly 700,000 DACA recipients across the country, id. ¶ 48, Ex. 33, there

20 are likely at least dozens—if not many more—in the same situation whose stories

21 have not reached Plaintiffs’ counsel. Moreover, hundreds of thousands of individuals

22 nationwide are at risk of having their DACA and work authorization terminated

23 pursuant to Defendants’ unlawful policies and practices in the future as the program

24 winds down over the next two years. In fact, Plaintiffs’ counsel are aware of two

25 additional DACA recipients to whom ICE recently issued NTAs despite their

26 continued DACA eligibility, and who are at risk of receiving DACA termination

27 8 Eiland Decl. ¶ 20, Ex. 5 (Keegan Hamilton, Targeting Dreamers, VICE News, Sept. 8, 2017, https://news.vice.com/story/ice-was-going-after-dreamers-even-before-
28 trump-killed-daca).

8

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1 letters from USCIS. Id. ¶ 15. In at least one of those cases, counsel for ICE has

2 already represented that the individual’s DACA has been terminated. Id.

3

Moreover, federal immigration authorities have been instructed to screen every

4 DACA recipient they encounter. Id. ¶¶ 21-23, Exs. 6-8. Just recently, in early

5 September, ten DACA recipients were detained for hours by Customs and Border

6 Patrol (“CBP”) agents in Texas even though they have valid DACA. Id. ¶ 23, Ex. 8.

7 Although they were ultimately released, CBP scrutinized their records, presumably

8 looking for a reason to hold them and revoke their DACA status. Id. This targeting of

9 DACA recipients is likely to result in additional unlawful terminations.

10

Moreover, Defendants’ actions demonstrate that they have been targeting

11 DACA recipients for revocation even though they have committed no disqualifying

12 conduct and remain eligible for the program. On February 20, 2017, former DHS

13 Secretary John Kelly issued a memorandum setting forth enforcement priorities that

14 DHS would follow in its enforcement of the immigration laws (hereinafter, the “Kelly 15 Memo”).9 The Kelly Memo states that, “[e]ffective immediately, . . . Department

16 personnel shall faithfully execute the immigration laws of the United States against all

17 removable aliens.” The memorandum provides that even noncitizens who have no

18 criminal convictions, but merely have been “charged with any criminal offense that

19 has not been resolved,” as well as any noncitizen who has “committed acts which

20 constitute a chargeable criminal offense” will be prioritized for removal from the

21 United States. USCIS has revoked DACA grants of individuals who do not have

22 criminal history disqualifying them from DACA under the carefully crafted DACA

23 Memo and SOPs, but who have had minor encounters with law enforcement that

24 could make them a priority under the Kelly Memo’s general expanded enforcement

25 priorities. See, e.g., Colotl, 2017 WL 2889681, at *7 (N.D. Ga. June 12, 2017).

26 9 Eiland Decl. ¶ 18, Ex. 3 (Memorandum from John Kelly, Enforcement of the
27 Immigration Laws to Serve the National Interest 2 (Feb. 20, 2017), available at https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-the-
28 Immigration-Laws-to-Serve-the-National-Interest.pdf).

9

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1

The Kelly Memo and related DHS guidance, however, expressly exempt the

2 DACA program from the Kelly Memo’s expanded priorities. See Eiland Decl. ¶¶ 17-

3 17, Exs. 2-3; see also Colotl, 2017 WL 2889681, at *7-8, *12 (finding that “the Kelly

4 Memo, by its own terms, has no application to the DACA program”). Indeed, the

5 Kelly Memo directly conflicts with the DACA Memo and SOPs, which define those

6 eligible for DACA as low enforcement priorities and provide the relevant rules for

7 termination of DACA. See Kwon Decl. ¶ 21, Ex. 20 at 18, 136-38. Even so, USCIS

8 has targeted for revocation individuals who remain eligible for DACA, thus further

9 reinforcing that numerous DACA recipients are at risk of unlawful termination in the

10 future.

11

ARGUMENT

12

A plaintiff whose suit meets the requirements of Federal Rule of Civil

13 Procedure 23 has a “categorical” right “to pursue his claim as a class action.” Shady

14 Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010). To

15 meet these requirements, the “suit must satisfy the criteria set forth in [Rule 23(a)]

16 (i.e., numerosity, commonality, typicality, and adequacy of representation), and it also

17 must fit into one of the three categories described in subdivision (b).” Id.

18

As set forth below, Plaintiffs’ proposed class satisfies all four of the Rule 23(a)

19 prerequisites, as well as the judicially implied requirement of ascertainability. The

20 proposed class likewise meets the requirements for certification under Rule 23(b)(2).

21

This Court should certify the proposed class in keeping with the numerous court

22 decisions certifying classes in similar actions challenging the federal government’s

23 administration of immigration programs. See, e.g., Walters v. Reno, 145 F.3d 1032

24 (9th Cir. 1998) (affirming certification of nationwide class of individuals challenging

25 adequacy of notice in document fraud cases); Arnott v. U.S. Citizenship &

26 Immigration Servs., 290 F.R.D. 579 (C.D. Cal. 2012) (certifying nationwide class of

27 immigrant investors challenging USCIS’ retroactive application of new rules

28 governing approval petitions to remove permanent residency conditions); Santillan v.

10

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1 Ashcroft, No. 04-cv-2686MHP, 2004 WL 2297990 (N.D. Cal. Oct. 12, 2004)

2 (certifying nationwide class of lawful permanent residents challenging delays in

3 receiving documentation of their status); Wagafe v. Trump, No. 17-cv-0094-RAJ,

4 2017 WL 2671254, at *1 (W.D. Wash. June 21, 2017) (certifying nationwide class of

5 naturalization applicants challenging national security screening procedures); Mendez

6 Rojas, et al. v. Johnson, No. 16-cv-1024-RSM, (W.D. Wash. Jan. 10, 2017)

7 (certifying two nationwide classes of asylum seekers challenging defective asylum

8 application procedures).

9 I. The Proposed Class Satisfies Rule 23(a)’s Requirements.

10

A. Numerosity: The Proposed Class Consists of at Least Seventeen and

11

Likely Many More DACA Recipients.

12

Rule 23(a)(1) requires that a class be “so numerous that joinder of all members

13 is impracticable.” Fed. R. Civ. P. 23(a)(1). “‘[I]mpracticability’ does not mean

14 ‘impossibility,’ but only the difficulty or inconvenience of joining all members of the

15 class.” Franco-Gonzales v. Napolitano, No. 10-cv-02211-DMG-DTBX, 2011 WL

16 11705815, at *6 (C.D. Cal. Nov. 21, 2011) (quoting Harris v. Palm Springs Alpine

17 Estates, Inc., 329 F. 2d 909, 913-14 (9th Cir. 1964)). No fixed number of class

18 members is required. Perez-Funez v. Dist. Dir., I.N.S., 611 F. Supp. 990, 995 (C.D.

19 Cal. 1984). Moreover, where a plaintiff seeks injunctive and declaratory relief, the

20 “requirement is relaxed and plaintiffs may rely on [] reasonable inference[s] arising

21 from plaintiffs’ other evidence that the number of unknown and future members of

22 [the] proposed subclass . . . is sufficient to make joinder impracticable.” Arnott v. U.S.

23 Citizenship & Immigration Servs., 290 F.R.D. 579, 586 (C.D. Cal. 2012) (quoting

24 Sueoka v. United States, 101 Fed. App’x 649, 653 (9th Cir. 2004)).

25

Here, the number of class members far exceeds the requirement for numerosity.

26 First, Plaintiffs’ counsel is aware of at least 17 DACA recipients who, in the last ten

27 months alone, have had their DACA terminated without notice or process, despite

28 remaining eligible for the program. Eiland Decl. ¶¶ 2-14. Given the increasing

11

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1 number of DACA revocations nationwide in 2017, see id. ¶ 20, Ex. 5, the targeting of

2 DACA recipients by federal immigration authorities, and the overall scale of the

3 program, with hundreds of thousands of current DACA recipients, id. ¶ 48, Ex. 33,

4 there are likely at least dozens—if not many more—who have already had their

5 DACA terminated pursuant to Defendants’ challenged practices. Indeed, Defendants

6 have submitted a declaration in the instant litigation representing that the number of

7 DACA recipients subjected to terminations without process is such that identifying

8 “all automatic terminations of DACA would . . . involve a manual review of hundreds

9 of cases.” Thomas Decl. ¶ 5 (emphasis added). The Court can thus reasonably

10 conclude that the proposed class is sufficiently numerous. See Cervantez v. Celestica

11 Corp., 253 F.R.D. 562, 569 (C.D. Cal. 2008) (internal quotation marks and citations

12 omitted) (noting that “where the exact size of the class is unknown but general

13 knowledge and common sense indicate that it is large, the numerosity requirement is

14 satisfied”); see also, e.g., Hum, 162 F.R.D. at 634 (courts have certified classes with

15 as few as 13 members); Ark. Educ. Ass’n, 446 F.2d at 765-66 (class of 17 sufficient);

16 Jordan v. Los Angeles Cty., 669 F.2d 1311, 1319 (9th Cir. 1982) (class of 39

17 sufficient), vacated on other grounds, 459 U.S. 810 (1982).

18

Second, in addition to the number of individuals who have already had their

19 DACA unlawfully terminated, Plaintiffs’ proposed class also includes individuals who

20 will have their DACA terminated without notice or process, despite continuing to be

21 eligible, if Defendants’ policies and practices are not enjoined. Hundreds of

22 thousands of DACA recipients are at risk of losing their deferred action if Defendants’

23 challenged practices are permitted to continue while the DACA program winds down

24 over the next two years. Indeed, Defendants themselves have conceded that USCIS

25 engages in a practice of automatically terminating DACA without notice or process,

26 based solely on the issuance of an NTA, without regard to whether the individual

27 remains eligible for DACA. See Thomas Decl. ¶ 4. Immigration authorities’

28 increased screening of DACA recipients, as well as the large number of already-

12

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1 identified class members, further supports the inference that there will be additional

2 class members in the future.

3

The presence of such future class members renders joinder inherently

4 impractical, thereby satisfying the purpose behind the numerosity requirement. See,

5 e.g, Ali v. Ashcroft, 213 F.R.D. 390, 408 (W.D. Wash. 2003), aff’d, 346 F.3d 873 (9th

6 Cir. 2003), vacated on other grounds, 421 F.3d 795 (9th Cir. 2005) (internal quotation

7 marks and citation omitted) (“[W]here the class includes unnamed, unknown future

8 members, joinder of such unknown individuals is impracticable and the numerosity

9 requirement is therefore met, regardless of class size.” (quoting Natl. Assn. of

10 Radiation Survivors v. Walters, 111 F.R.D. 595, 599 (N.D. Cal. 1986)); Smith v.

11 Heckler, 595 F. Supp. 1173, 1186 (E.D. Cal. 1984) (in injunctive relief cases,

12 “[j]oinder in the class of persons who may be injured in the future has been held

13 impracticable without regard to the number of persons already injured”); Hawker v.

14 Consovoy, 198 F.R.D. 619, 625 (D.N.J. 2001) (“The joinder of potential future class

15 members who share a common characteristic, but whose identity cannot be

16 determined yet is considered impracticable.”).

17

B. The Class Presents Common Questions of Law and Fact.

18

To satisfy commonality, Plaintiffs must show that “there are questions of law or

19 fact common to the class.” Fed. R. Civ. P. 23(a)(2). Rule 23(a)(2)’s commonality

20 requirement “has been construed permissively.” Preap v. Johnson, 303 F.R.D. 566,

21 585 (N.D. Cal. 2014), aff’d, 831 F.3d 1193 (9th Cir. 2016) (quoting Hanlon v.

22 Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)) (internal quotation marks

23 omitted). A plaintiff “need not show . . . that every question in the case, or even a

24 preponderance of questions, is capable of class wide resolution.” Parsons v.Ryan, 754

25 F.3d 657, 675 (9th Cir. 2014) (internal quotation marks and citation omitted). Rather,

26 even one shared legal issue can be sufficient. See, e.g., Mazza v. Am. Honda Motor

27 Co., Inc., 666 F.3d 581, 589 (9th Cir. 2012) (noting that “commonality only requires a

28 single significant question of law or fact”); Walters, 145 F.3d at 1046 (“What makes

13

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1 the plaintiffs’ claims suitable for a class action is the common allegation that the

2 INS’s procedures provide insufficient notice.”); Rodriguez v. Hayes, 591 F.3d 1105,

3 1122 (9th Cir. 2010) (“[T]he commonality requirement[] asks us to look only for

4 some shared legal issue or a common core of facts.”). Moreover, “[i]ndividual

5 variation among plaintiffs’ questions of law and fact does not defeat underlying legal

6 commonality, because ‘the existence of shared legal issues with divergent factual

7 predicates is sufficient’ to satisfy Rule 23.” Santillan v. Ashcroft, No. C 04-2686

8 MHP, 2004 WL 2297990, at *10 (N.D. Cal. Oct. 12, 2004) (quoting Hanlon, 150 F.3d

9 at 1019). The commonality standard is even more liberal in a civil rights suit like this

10 one, in which “the lawsuit challenges a system-wide practice or policy that affects all

11 of the putative class members.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir.

12 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499, 504-05

13 (2005).

14

Here, Plaintiffs’ lawsuit raises numerous legal questions common to the

15 proposed class,10 including:

16 • Whether Defendants’ practice of terminating DACA and work authorization

17

without notice, a meaningful explanation, or an opportunity to be heard violates

18

Defendants’ own rules for the DACA program and is therefore arbitrary and

19

capricious under the APA;

20 • Whether Defendants’ practice of revoking an existing grant of DACA and work

21

authorization without notice, a meaningful explanation, or an opportunity to be

22

heard is arbitrary and capricious and contrary to law in violation of the APA

23

because it fails to provide a good reason for the agency’s change in position;

24 • Whether Defendants’ practice of terminating DACA and work authorization

25

without notice, a meaningful explanation, or an opportunity to be heard violates

26

the Due Process Clause of the U.S. Constitution; and

27 10 Plaintiffs’ claims are described in greater detail in their Motion for a Classwide
28 Preliminary Injunction, filed this same date.

14

Case 5:17-cv-02048-PSG-SHK Document 33-1 Filed 12/21/17 Page 21 of 29 Page ID #:794

1 • Whether Defendants’ practice of terminating DACA and work authorization

2

based solely on the issuance of an NTA charging the individual with unlawful

3

presence in the United States, is arbitrary and capricious under the APA

4

because it is based on arbitrary, irrelevant factors.

5

Any one of these common issues, standing alone, is enough to satisfy Rule

6 23(a)(2)’s permissive standard. See Perez-Olano v. Gonzalez, 248 F.R.D. 248, 257

7 (C.D. Cal. 2008) (“Courts have found that a single common issue of law or fact is

8 sufficient.”) (citation omitted); Sweet v. Pfizer, 232 F.R.D. 360, 367 (C.D. Cal. 2005)

9 (observing that “there must only be one single issue common to the proposed class”)

10 (quotation and citation omitted).

11

Plaintiffs and proposed class members also share a common core of facts: (1)

12 The determination of Plaintiffs’ and class members’ DACA is subject to the same

13 rules, namely the DACA Memo and SOPs; (2) Plaintiffs and proposed class members

14 all had their DACA terminated without notice, a meaningful explanation, or an

15 opportunity to respond; and (3) Plaintiffs and proposed class members do not have

16 any convictions that would disqualify them from the program.

17

Finally, Plaintiffs and proposed class members “have suffered the same injury,”

18 in that Defendants have terminated each of their DACA without notice, a meaningful

19 explanation, or an opportunity to be hear pursuant to the same unlawful policies or

20 practices. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (quoting Gen.

21 Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). Should the Court agree that

22 Defendants’ policies or practices violate the APA and/or the Due Process Clause, all

23 who fall within the class will benefit from the requested relief—a nationwide

24 injunction preventing the termination of their DACA pursuant to those practices.

25 Thus, a common answer as to the legality of the challenged policies and practices will

26 “drive the resolution of the litigation.” Ellis v. Costco Wholesale Corp., 657 F.3d 970,

27 981 (9th Cir. 2011) (quoting Wal-Mart, 564 U.S. at 350).

28

15

Case 5:17-cv-02048-PSG-SHK Document 33-1 Filed 12/21/17 Page 22 of 29 Page ID #:795

1

Defendants may argue that Plaintiffs cannot satisfy commonality because the

2 agency’s decision to revoke DACA is based on particular facts and circumstances

3 unique to each recipient. But this argument would misconstrue and misapply the

4 commonality requirement. Instead, “[w]here the circumstances of each particular

5 class member vary but retain a common core of factual or legal issues with the rest of

6 the class, commonality exists.” Evon v. Law Offices of Sidney Mickell, 688 F.3d

7 1015, 1029 (9th Cir. 2012) (internal quotation marks and citation omitted); see also

8 Walters, 145 F.3d at 1046 (“Differences among the class members with respect to the

9 merits of their actual document fraud cases, however, are simply insufficient to defeat

10 the propriety of class certification. What makes the plaintiffs’ claims suitable for a

11 class action is the common allegation that the INS’s procedures provide insufficient

12 notice.”); Arnott, 290 F.R.D. at 586-87 (variation in business plans and investment

13 projects did not defeat certification in light of common question of permissibility of

14 retroactively applying new policy to those who “already received approval of I-526

15 petitions”). Moreover, any factual differences that may exist among Plaintiffs and

16 proposed class members are immaterial to their claims, which challenge Defendants’

17 common termination policies and practices as categorically violating the APA and the

18 Due Process Clause—not the agency’s ultimate exercise of discretion with respect to

19 each recipient. See Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982)

20 (rejecting defendants’ argument that certification was unwarranted because class

21 members’ suitability for relief was individualized where plaintiff challenged common

22 agency practice, not ultimate outcome of cases).

23

C. Typicality: Plaintiffs’ Claims Are Typical of Those of Other Class

24

Members.

25

Rule 23(a)(3) requires that “the claims or defense of the representative parties

26 [be] typical of the claims or defenses of the class.” The purpose of this requirement is

27 to “assure that the interest of the named representative aligns with the interests of the

28 class” as a whole. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992).

16

Case 5:17-cv-02048-PSG-SHK Document 33-1 Filed 12/21/17 Page 23 of 29 Page ID #:796

1 “Under the rule’s permissive standards, representative claims are ‘typical’ if they are

2 reasonably coextensive with those of the absent class members.” Parsons, 754 F.3d at

3 685 (quoting Hanlon, 150 F.3d at 1020). “The test of typicality is ‘whether other

4 members have the same or similar injury, whether the action is based on conduct

5 which is not unique to the named plaintiffs, and whether other class members have

6 been injured by the same course of conduct.’” Id. (citation omitted). As with

7 commonality, factual differences among class members do not defeat typicality.

8 LaDuke v. Nelson, 762 F.2d 1318, 1332 (9th Cir. 1985) (“The minor differences in the

9 manner in which the representative’s Fourth Amendment rights were violated does not

10 render their claims atypical of those of the class.”)

11

Plaintiffs’ claims are typical of the claims of the proposed class. Each Plaintiff,

12 just like each proposed class members, had valid DACA and work authorization that

13 USCIS terminated without notice, a meaningful explanation, or an opportunity to be

14 heard, pursuant to Defendants’ unlawful policies or practices. Plaintiffs and class

15 members assert that such action was arbitrary and capricious under the APA and

16 violated the Due Process Clause. Any factual variations among Plaintiffs and

17 proposed class members in ways relevant to USCIS’s ultimate decision of whether to

18 terminate DACA do not defeat typicality because, as described above, Plaintiffs’

19 claims do not implicate such differences. See, e.g., Rodriguez, 591 F.3d at 1124 (“The

20 particular characteristics of the Petitioner or any individual detainee will not impact

21 the resolution of this general statutory question and, therefore, cannot render

22 Petitioner’s claim atypical.”).

23

D. Adequacy: Plaintiffs Will Adequately Protect the Interests of the

24

Proposed Class, and Plaintiffs’ Counsel Are More Than Qualified to

Litigate this Action.

25 Rule 23(a)(4) requires that “[t]he representative parties will fairly and

26 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Whether the

27 class representatives satisfy the adequacy requirement depends on ‘the qualifications

28 of counsel for the representatives, an absence of antagonism, a sharing of interests

17

Case 5:17-cv-02048-PSG-SHK Document 33-1 Filed 12/21/17 Page 24 of 29 Page ID #:797

1 between representatives and absentees, and the unlikelihood that the suit is

2 collusive.’” Rodriguez, 591 F.3d at 1125 (citing Walters, 145 F.3d at 1046).

3

Plaintiffs’ counsel are deemed qualified when they can establish their

4 experiences in previous class actions and cases involving the same area of law. Lynch

5 v. Rank, 604 F. Supp. 30, 37 (N.D. Cal. 1984), aff’d 747 F.2d 528 (9th Cir. 1984),

6 amended on reh’g, 763 F.2d 1098 (9th Cir. 1985). Here, putative Class Counsel are

7 attorneys from the ACLU Immigrants’ Rights Project and ACLU of Southern

8 California. See Declaration of Jennifer Chang Newell (“Newell Decl.”).

9

Collectively, putative Class Counsel have extensive and diverse experience in

10 complex immigration cases and class action litigation, and Class Counsel also have

11 sufficient resources to litigate this matter to completion. Id. ¶¶ 2-27. Attorneys from

12 the ACLU Immigrants’ Rights Project and ACLU of Southern California have been

13 appointed class counsel and successfully litigated similar class action lawsuits in this

14 district and in courts across the country. Id.; see also, e.g., Rodriguez, 591 F.3d at

15 1111; Alfaro Garcia v. Johnson, No. 14-cv-1775, 2014 WL 6657591, at *15 (N.D.

16 Cal. 2014); Rivera v. Johnson, 307 F.R.D. 539 at 542-43 (W.D. Wa 2015); Franco-

17 Gonzales, 2011 WL 11705815, at *1; Preap, 303 F.R.D. at 570; Khoury v. Asher, 3 F.

18 Supp. 3d 877, 878 (W.D. Wash. 2014); RILR v. Johnson, 80 F. Supp. 3d 164, 181

19 (D.D.C. 2015).

20

Plaintiffs will fairly and adequately protect the interests of the proposed class,

21 and therefore are adequate class representatives. Plaintiffs do not seek any unique or

22 additional benefit from this litigation that may make their interests different from or

23 adverse to those of absent class members. Instead, Plaintiffs’ aim is to secure

24 injunctive relief that will protect themselves and the entire class from the Defendants’

25 challenged practices and enjoin the Defendants from further violations. See Arreola

26 Decl. ¶¶ 42-43; Gil Decl. ¶¶ 27-28; Moreira Decl. ¶ 23-24. Plaintiffs and Class

27 Counsel do not seek financial gain at the cost of absent class members’ rights.

28 Accordingly, Plaintiffs have demonstrated that they lack any antagonism with the

18

Case 5:17-cv-02048-PSG-SHK Document 33-1 Filed 12/21/17 Page 25 of 29 Page ID #:798

1 class, that they share interests with proposed class members, and that no collusion is

2 present.

3

E. The Class Is Sufficiently Ascertainable.

4

Although the Ninth Circuit has not yet ruled whether the judicially implied

5 ascertainability requirement applies to classes certified under Rule 23(b)(2), other

6 circuits have found that it does not. See Shelton v. Bledsoe, 775 F.3d 554, 563 (3d

7 Cir. 2015) (“The nature of Rule 23(b)(2) actions, the Advisory Committee’s note on

8 (b)(2) actions, and the practice of many [] other federal courts all lead us to conclude

9 that ascertainability is not a requirement for certification of a (b)(2) class seeking only

10 injunctive and declaratory relief . . . .”); Shook v. El Paso Cnty., 386 F.3d 963, 972

11 (10th Cir. 2004) (“[M]any courts have found Rule 23(b)(2) well suited for cases where

12 the composition of the class is not readily ascertainable.”); Cole v. City of Memphis,

13 839 F.3d 530, 542 (6th Cir. 2016), cert. denied 137 S. Ct. 2220 (2017)

14 (“[A]scertainability is not an additional requirement for certification of a (b)(2) class

15 seeking only injunctive and declaratory relief.”); Yaffe v. Powers, 454 F.2d 1362,

16 1366 (1st Cir.1972) (no ascertainability requirement for Rule 23(b)(2) classes); see

17 also, e.g., In re Yahoo Mail Litig., 308 F.R.D. 577, 597 (N.D. Cal. 2015).

18

In any event, the proposed class is sufficiently ascertainable because it is

19 “administratively feasible” to ascertain whether an individual is a member. Greater

20 Los Angeles Agency on Deafness, Inc. v. Reel Servs. Mgmt. LLC, No. 13-cv-7172 PSG

21 (ASX), 2014 WL 12561074, at *5 (C.D. Cal. May 6, 2014) (Gutierrez, J.) (internal

22 quotation marks omitted) (finding ascertainable proposed class of individuals who are

23 deaf or hard of hearing and require closed captioning). Here, membership in the class

24 is defined by clear and objective criteria: (1) the individual’s DACA has been or will

25 be terminated without notice, a meaningful explanation, or an opportunity to

26 respond—that is, without the issuance of a Notice of Intent to Terminate and a

27 sufficient opportunity to respond to the reason for termination and (2) the individual

28 has not been convicted of any disqualifying crime as set forth in the DACA Memo

19

Case 5:17-cv-02048-PSG-SHK Document 33-1 Filed 12/21/17 Page 26 of 29 Page ID #:799

1 and SOPs. See supra at 3. This definition is “‘precise, objective, and presently

2 ascertainable.’” O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal.

3 1998) (observing that class definitions of actions maintained under Rule 23(b)(2)

4 command less precision than actions for damages requiring notice to the class); see

5 also, e.g., Lamumba Corp. v. City of Oakland, No. 05-cv-2712 MHP, 2007 WL

6 3245282, at *4 (N.D. Cal. Nov. 2, 2007) (“Plaintiffs putative class is based on the

7 objective factors of business ownership, race, and indebtedness to the City, and

8 therefore is sufficiently defined.”). The fact that some administrative process may be

9 required to identify class members does not undermine ascertainability. See, e.g.,

10 Moreno v. Napolitano, No. 11-cv-5452, 2014 WL 4911938, at *6-7 (N.D. Ill. Sept.

11 30, 2014) (finding that the necessity of manually reviewing tens of thousands of

12 detainer forms to identify class members did not undermine ascertainability) (citing

13 Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 539 (6th Cir. 2012)). This is

14 particularly true here, where USCIS keeps detailed records regarding DACA

15 terminations, see Kwon Decl. ¶ 21, Ex. 20 at 138 (instructing adjudicators to update

16 systems), and routinely evaluates whether DACA recipients have disqualifying

17 convictions. See Dunnigan v. Metro. Life Ins. Co., 214 F.R.D. 125, 136 (S.D.N.Y.

18 2003) (holding that even a slow and burdensome process for identifying class

19 members would not defeat the ascertainability requirement). Moreover, Plaintiffs

20 have proposed a practical process for implementing the requested preliminary

21 injunction, which includes a procedure for identifying class members whose DACA

22 USCIS has already unlawfully revoked. See Pls.’ PI Proposed Order.

23 II. This Action Satisfies the Requirements of Rule 23(b)(2).

24

In addition to satisfying the four requirements of Rule 23(a), Plaintiffs also

25 must meet one of the subsections of Rule 23(b). Certification of a class under Rule

26 23(b)(2) requires that “the party opposing the class has acted or refused to act on

27 grounds that apply generally to the class, so that final injunctive relief or

28

20

Case 5:17-cv-02048-PSG-SHK Document 33-1 Filed 12/21/17 Page 27 of 29 Page ID #:800

1 corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.

2 R. Civ. P. 23(b)(2).

3

In the Ninth Circuit, “‘[i]t is sufficient’ to meet the requirements of Rule

4 23(b)(2) [when] ‘class members complain of a pattern or practice that is generally

5 applicable to the class as a whole.’” Rodriguez, 591 F.3d at 1125 (quoting Walters,

6 145 F.3d at 1047); Lyon v. U.S. Immigration & Customs Enf’t, 308 F.R.D. 203, 213

7 (N.D. Cal. 2015) (injunctive or declaratory relief under Rule 23(b)(2) is appropriate

8 when “the party opposing the class has acted or refused to act on grounds that apply

9 generally to the class”) (internal quotation marks omitted). Indeed, Rule “23(b)(2)

10 was adopted in order to permit the prosecution of civil rights actions” like this one.

11 Walters, 145 F.3d at 1047; Rodriguez, 591 F.3d at 1126 (finding that class of non-

12 citizens detained during immigration proceedings met Rule 23(b)(2) criteria because

13 “all class members’ [sought] the exact same relief as a matter of statutory or, in the

14 alternative, constitutional right”).

15

Importantly, “[t]he rule does not require [the court] to examine the viability or

16 bases of class members’ claims for declaratory and injunctive relief, but only to look

17 at whether class members seek uniform relief from a practice applicable to all of

18 them.” Rodriguez, 591 F.3d at 1125. “‘The key to the (b)(2) class is the indivisible

19 nature of the injunctive or declaratory remedy warranted—the notion that the conduct

20 is such that it can be enjoined or declared unlawful only as to all of the class members

21 or as to none of them.’” Lyon, 308 F.R.D. at 213 (quoting Wal-Mart Stores, 131 S.Ct.

22 at 2557).

23

Rule 23(b)(2)’s requirements are plainly met. Here, Plaintiffs ask the Court to

24 declare Defendants’ termination policies and practices, which have impacted Plaintiffs

25 and proposed class members, to be unlawful and to enjoin USCIS from: (1) enforcing

26 the termination of DACA and related work authorization for Plaintiffs and class

27 members whose DACA USCIS has already unlawfully terminated and (2) terminating

28 DACA grants and work authorization in the future based solely on the issuance of an

21

Case 5:17-cv-02048-PSG-SHK Document 33-1 Filed 12/21/17 Page 28 of 29 Page ID #:801

1 NTA charging unlawful presence or otherwise absent a fair procedure that complies

2 with the agency’s rules, including notice, a reasoned explanation, and an opportunity

3 to be heard prior to termination. See Pls.’ PI Proposed Order.

4

This relief would benefit Plaintiffs as well as all members of the proposed

5 classes in the same fashion. No individual class member would be entitled to a

6 different injunction or declaratory judgment. The requested relief would address these

7 policies or practices in a single stroke, and thus the proposed class plainly warrants

8 certification under Rule 23(b)(2). See Parsons, 754 F.3d at 689 (finding declaratory

9 and injunctive relief proper as to the whole class where “every [member] in the

10 proposed class is allegedly suffering the same (or at least a similar) injury and that

11 injury can be alleviated for every class member by uniform changes in . . . policy and

12 practice”); Rodriguez, 591 F.3d at 1126 (certifying class of immigrant detainees under

13 Rule 23(b)(2) where “relief from a single practice is requested by all class members”).

14

Given the nature of Plaintiffs’ claims, which challenge USCIS’s centralized and

15 uniform DACA termination practices, class certification should be nationwide.

16 Defendants have indicated that USCIS has a practice of automatically terminating

17 individual DACA grants, without process. See Thomas Decl. ¶ 4. Plaintiffs have

18 identified at least 17 examples of Defendant’s unlawful DACA terminations from

19 various states around the country (including Texas, Louisiana, Georgia, Minnesota,

20 South Dakota, North Carolina, New Jersey, and California). See Eiland Decl. ¶¶ 2-14.

21 And given the nationwide scope and scale of the program, there are nearly 700,000

22 DACA recipients in all 50 states who are potentially at risk of having their DACA

23 unlawfully terminated pursuant to Defendants’ practices. Id. ¶ 48, Ex. 33.

24 Certification that is not nationwide in scope would result in Defendants continuing to

25 apply an unlawful policy to DACA recipients simply by virtue of their geographic

26 location. Such piecemeal relief would lead to arbitrary and unjust results. See

27 Gorbach v. Reno, 181 F.R.D. 642, 644 (W.D. Wash. 1998), aff’d, 219 F.3d 1087 (9th

28 Cir. 2000) (holding certification of a nationwide class was particularly fitting because

22

Case 5:17-cv-02048-PSG-SHK Document 33-1 Filed 12/21/17 Page 29 of 29 Page ID #:802

1 “anything less [than] a nationwide class would result in an anomalous situation

2 allowing the INS to pursue denaturalization proceedings against some citizens, but not

3 others, depending on which district they reside in”).

4

Because Plaintiffs and proposed class members all have suffered or will suffer

5 the same statutory and constitutional violations as a result of the government’s

6 challenged practices or policies, and because they seek singular injunctive and

7 corresponding declaratory relief that remedy those injuries, the Court should certify

8 the class under Rule 23(b)(2).

9

CONCLUSION

10

Plaintiffs respectfully requests that the Court grant this Motion and enter an

11 order certifying the proposed class under Rule 23(b)(2); appoint Plaintiffs as Class

12 Representatives; and appoint the Plaintiffs’ Counsel from ACLU Immigrants’ Rights

13 Project and the ACLU of Southern California as Class Counsel.

14

15 Dated: December 21, 2017

Respectfully submitted,

16

/s/ Katrina L. Eiland

17

Katrina L. Eiland

18

Jennifer Chang Newell Michael K. T. Tan*

19

David Hausman*

20

ACLU FOUNDATION

IMMIGRANTS’ RIGHTS PROJECT

21

22

Ahilan T. Arulanantham

Michael Kaufman

23

Dae Keun Kwon

24

ACLU FOUNDATION

OF SOUTHERN CALIFORNIA

25

26

Attorneys for Plaintiffs

27

*Admitted pro hac vice

28

23

 
 Case 5:17-cv-02048-PSG-SHK Document 34-1 Filed 12/21/17 Page 1 of 30 Page ID #:1090

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)

13 UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA

15 INLAND EMPIRE – IMMIGRANT

) Case No. 5:17-cv-2048-PSG-SHK

YOUTH COLLECTIVE, et al., on behalf )

16 of themselves and others similarly situated, )

)

17

Plaintiffs,

)

)

18

v.

) MEMORANDUM OF LAW IN

) SUPPORT OF PLAINTIFFS’

19 KIRSTJEN NIELSEN, Secretary, U.S. ) MOTION FOR A CLASSWIDE

Department of Homeland Security, et al., ) PRELIMINARY INJUNCTION

20

)

Defendants.

)

21 22 23

) ) ) ) )

Judge: Hon. Philip S. Gutierrez Courtroom: 6A Hearing: February 5, 2018 Time: 1:30 p.m.

)

24

)

)

25

)

)

26

)

)

27

)

)

28

)

Case 5:17-cv-02048-PSG-SHK Document 34-1 Filed 12/21/17 Page 2 of 30 Page ID #:1091
1 Ahilan T. Arulanantham (SBN 237841) aarulanantham@aclusocal.org
2 Michael Kaufman (SBN 254575) mkaufman@aclusocal.org
3 Dae Keun Kwon (SBN 313155) akwon@aclusocal.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
5 Los Angeles, CA 90017 Telephone: (213) 977-5232
6 Facsimile: (213) 977-5297 7
Attorneys for Plaintiffs 8
*Admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-PSG-SHK Document 34-1 Filed 12/21/17 Page 3 of 30 Page ID #:1092

TABLE OF CONTENTS 1

2 INTRODUCTION .....................................................................................................1

3 BACKGROUND .......................................................................................................2

4

I. The DACA Program .............................................................................2

5

II. Defendants’ Unlawful DACA Termination Practices ..........................5

6 ARGUMENT.............................................................................................................8

7

I. THE PLAINTIFF CLASS IS LIKELY TO SUCCEED ON THE

MERITS. ...............................................................................................8

8

A. DHS’ Automatic Termination of DACA Based Solely on the

9

Issuance of an NTA Is Arbitrary and Capricious in Violation

of the APA. .................................................................................9 10

B. DHS’ Revocation of Class Members’ DACA and EAD

11

Without Process Violates the Agency’s Own Procedures and

Procedural Due Process. ...........................................................14 12

1. DHS’ Revocation Without Notice Violates Its Own

13

Rules and the APA. ........................................................15

14

2. DHS’ Practice of Revoking DACA Without Process

Violates Procedural Due Process. ..................................16 15

II. THE PLAINTIFF CLASS IS SUFFERING IRREPARABLE

16

HARM. ................................................................................................19

17

III. THE REMAINING FACTORS SUPPORT PRELIMINARY

RELIEF. ..............................................................................................23 18

CONCLUSION ........................................................................................................ 25 19

20

21

22

23

24

25

26

27

28

i

Case 5:17-cv-02048-PSG-SHK Document 34-1 Filed 12/21/17 Page 4 of 30 Page ID #:1093

1

TABLE OF AUTHORITIES

2 Cases

3 Alaska Airlines, Inc. v. Long Beach, 951 F.2d 977 (9th Cir. 1991).....................................................................................17
4 Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014)...................................................................8, 20, 21, 23
5 Bell v. Burson, 402 U.S. 535 (1971) ..................................................................................................17
6 Chalk v. United States Dist. Court, 840 F.2d 701 (9th Cir. 1988)..........................................................................21, 22,23
7 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) ..................................................................................................20
8 Colotl v. Duke, No. 17-cv-1670, 2017 WL 2889681 (N.D. Ga. June 12, 2017).........................passim
9 Colotl v. Kelly, No. 1:17-cv-01670-MHC (N.D. Ga. July 31, 2017) ................................................. 16
10 Delgadillo v. Carmichael, 332 U.S. 388 (1947) ..................................................................................................13
11 Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 630 F.3d 1153 (9th Cir. 2011)..............................................................................20,21
12 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ............................................................................................13, 14
13 Gonzalez Torres v. DHS, No. 17-cv-1840, 2017 WL 4340385 (S.D. Cal. Sept. 29, 2017)........................passim
14 Greenwood v. Fed. Aviation Admin., 28 F.3d 971 (9th Cir. 1994).......................................................................................17
15 Jones v. City of Modesto, 408 F. Supp. 2d 935 (E.D. Cal. 2005).......................................................................17
16 Judulang v. Holder, 565 U.S. 42 (2011) ......................................................................................9,10, 12,13
17 Mathews v. Eldridge, 424 U.S. 319 (1976) ................................................................................16, 17, 18, 19
18 Matter of Quintero, 18 I. & N. Dec. 348 (BIA 1982)................................................................................10
19 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012).....................................................................................23
20 Morrissey v. Brewer, 408 U.S. 471 (1972) ..................................................................................................18
21 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ....................................................................................................13
22 Nnebe v. Daus, 644 F.3d 147 (2d Cir. 2011) ......................................................................................17
23 Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956 (9th Cir. 2015)...............................................................................13, 14
24 Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) .................................................................................................... 2
25 Singh v. Bardini, No. 09-cv-3382, 2010 WL 308807 (N.D. Cal. Jan. 19, 2010)..................................17
26 Singh v. Vasquez, No. 08-cv-1901, 2009 WL 3219266 (D. Ariz. Sept. 30, 2009) ..........................18, 19
27 Villa-Anguiano v. Holder, 727 F.3d 873 (9th Cir. 2013).....................................................................................19
28 Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) ........................................................................................................ 8 ii

Case 5:17-cv-02048-PSG-SHK Document 34-1 Filed 12/21/17 Page 5 of 30 Page ID #:1094
1 Statutes
2 5 U.S.C. § 706(2)(A) ................................................................................................9, 13
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
iii

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1

INTRODUCTION

2

In its order of November 20, 2017, this Court granted a preliminary injunction

3 enjoining Defendants’ unlawful termination of Deferred Action for Childhood

4 Arrivals (“DACA”) and employment authorization for Plaintiff Jesús Alonso Arreola

5 Robles (“Mr. Arreola”). The Court held that Defendants’ automatic termination of Mr.

6 Arreola’s DACA based on the filing of a Notice to Appear (“NTA”) that charged him

7 with removal for being present in the United States without admission was arbitrary

8 and capricious and contrary to law in violation of the Administrative Procedure Act

9 (“APA”). See Doc. No. 31, Order Granting Pl.’s Mot. for Prelim. Inj. (“PI Order”) at

10 3-13. Defendants’ revocation of his DACA, despite the absence of any disqualifying

11 convictions, also violated the APA by arbitrarily reversing, without a reasoned

12 explanation, the agency’s decision to grant him DACA in the first place. See id. at 10-

13 11. And Defendants’ failure to provide Mr. Arreola with notice and an opportunity to

14 respond to its termination decision violated the rules of the DACA program. See id. at

15 10-11.

16

Mr. Arreola’s example reflects Defendants’ widespread practice of unlawfully

17 revoking similarly situated immigrants’ DACA grants and work permits without

18 process, even though they continue to meet the requirements of the DACA program.

19 Like Mr. Arreola, Plaintiff José Eduardo Gil Robles lost his DACA after being

20 charged with driving after cancellation of his license, and Plaintiff Ronan Carlos De

21 Souza Moreira lost his DACA after being charged with possession of an altered

22 identification document—both misdemeanor offenses that do not disqualify them

23 from DACA. Indeed, Defendants have admitted that U.S. Citizenship and

24 Immigration Services (“USCIS”) has a practice of automatically terminating DACA

25 based solely on the issuance of an NTA and argued that, under its own policies,

26 USCIS may terminate DACA without providing individuals notice or an opportunity

27 to respond. See Doc. No. 23-2 (Decl. of Ron Thomas) at 79-81. Countless young

28 immigrants have been unlawfully stripped of their DACA and work authorization

1

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1 pursuant to Defendants’ policies and practices or face the unlawful termination of

2 their DACA in the future.

3

As this Court has already recognized, Defendants’ revocation of proposed class

4 members’ DACA and employment authorization is arbitrary, capricious, contrary to

5 law, and conflicts with the government’s own rules, in violation of the APA. The

6 revocation also violates the Fifth Amendment’s Due Process Clause. As with Mr.

7 Arreola, Defendants’ actions have caused proposed class members ongoing

8 irreparable harm, including severe emotional distress and loss of employment and the

9 ability to support themselves and their families. Issuance of a preliminary injunction is

10 particularly urgent here. Because of the imminent end of the DACA program,

11 proposed class members have only limited time remaining on their DACA grants and

12 will lose that limited time absent preliminary relief from this Court.

13

For these reasons, and because they satisfy the other injunction factors,

14 Plaintiffs respectfully ask this Court to grant a classwide preliminary injunction;

15 vacate and enjoin Defendants’ unlawful revocation of Plaintiffs Gil’s, Plaintiff

16 Moreira’s, and proposed class members’ DACA and work permits; and enjoin

17 Defendants from revoking Plaintiffs’ and proposed class members’ DACA and work

18 permits pursuant to their unlawful policies and practices in the future.

19

BACKGROUND1

20

I. The DACA Program

21

Deferred action is a longstanding form of administrative action by which the

22 federal Executive Branch decides, for humanitarian or other reasons, to refrain from

23 seeking a noncitizen’s removal and to authorize his continued presence in the United

24 States. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 484 (1999). On

25 1 Along with Plaintiffs’ Motion for Class Certification filed this same day,

26 Plaintiffs have filed declarations in support of both that motion and the instant motion.

27

Those declarations are the Declaration of Katrina L. Eiland, Declaration of José Eduardo Gil Robles, and Declaration of Ronan Carlos De Souza Moreira, cited herein.

28 Plaintiffs incorporate these declarations by reference.

2

Case 5:17-cv-02048-PSG-SHK Document 34-1 Filed 12/21/17 Page 8 of 30 Page ID #:1097

1 June 15, 2012, the Secretary of the Department of Homeland Security (“DHS”)

2 announced DACA—a deferred action program specifically for young immigrants who

3 came to the United States as children and are present in the country without formal 4 immigration status.2

5

Under DACA, young immigrants who entered the United States as children

6 who meet specified educational and residency requirements, and who pass extensive

7 criminal background checks, are eligible to receive deferred action. Napolitano Memo

8 at 1-2. These enumerated eligibility criteria include the requirements that DACA 9 recipients not have been convicted of a felony, significant misdemeanor,3 or multiple

10 other misdemeanors. Id.

11

A predicate for eligibility for the DACA program is that the individual must

12 lack a lawful immigration status (because he or she is present without admission, or

13 overstayed a visa). Kwon Decl. ¶ 21, Ex. 20 at 44 (DHS DACA Standard Operating

14 Procedures). In addition, the fact that a noncitizen is, has been, or will be in removal

15 proceedings does not disqualify the individual from the program. Napolitano Memo at

16 2.

17

Deferred action through DACA is provided for a renewable period of two years,

18 and DACA recipients may obtain an Employment Authorization Document (“EAD”)

19 and a Social Security Number. See id.at 3. A decision to grant or deny a deferred

20

21

2 See Doc. No. 16-4, Declaration of Dae Keun Kwon (“Kwon Decl.”) ¶ 10, Ex. 9 at 2 (Janet Napolitano, Memorandum on Exercising Prosecutorial Discretion with

22 Respect to Individuals Who Came to the United States as Children (June 15, 2012))

23

(“Napolitano Memo”). Plaintiffs incorporate by reference Doc. Nos. 16-4 to 16-29 (Kwon Decl. and exhibits).

24 3 A significant misdemeanor is a conviction for an offense of “domestic violence;

25

sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or . . . [a conviction] for

26 which the individual was sentenced to time in custody of more than 90 days.” Kwon

27

Decl. ¶ 20, Ex. 19 at 19-20 (U.S. Citizenship and Immigration Services, Frequently Asked Questions about Deferred Action for Childhood Arrivals (updated Oct. 6,

28 2017)).

3

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1 action application or renewal is independent of any proceedings in immigration court;

2 a noncitizen who is in removal proceedings can apply for DACA separately and

3 simultaneously. Id.at 2. See also, e.g., Gonzalez Torres v. DHS, No. 17-cv-1840, 2017

4 WL 4340385, at *6 (S.D. Cal. Sept. 29, 2017) (noting that “an immigration judge has

5 no jurisdiction to reinstate DACA status, or to authorize an application for renewal of

6 DACA status”). USCIS is the division of DHS responsible for evaluating requests for

7 DACA. DHS’ DACA Standard Operating Procedures (“DACA SOPs”) set forth the

8 procedures that the agency must follow in adjudicating and granting DACA

9 applications, as well as in terminating DACA and EADs granted through the program.

10 See PI Order at 2; Kwon Decl. ¶ 21, Ex. 20 (“DACA SOPs”) at 16 (“This SOP is

11 applicable to all Service Center personnel performing adjudicative and clerical

12 functions or review of those functions. Personnel outside of Service Centers

13 performing duties related to DACA processing will be similarly bound by the

14 provisions of this SOP.”); id. (“This SOP describes the procedures Service Centers are

15 to follow when adjudicating DACA requests.”). See also Colotl v. Duke, No. 17-cv-

16 1670, 2017 WL 2889681, at *4 (N.D. Ga. June 12, 2017); Gonzalez Torres, 2017 WL

17 4340385, at *3.

18

On February 20, 2017, DHS Secretary John Kelly issued a memorandum setting

19 forth DHS’ new immigration enforcement priorities.4 However, “by its own terms,

20 [the Kelly memorandum] has no application to the DACA program.” See, e.g., Colotl, 21 2017 WL 2889681, at *12.5

22

23

24 4 Declaration of Katrina L. Eiland (“Eiland Decl.”) ¶ 18, Ex. 3, at 2

25

(Memorandum from John Kelly, Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017)).

26 5 Accord Eiland Decl. ¶ 17, Ex. 2 at 7 (U.S. Department of Homeland Security,

27

Q&A: DHS Implementation of the Executive Order on Enhancing Public Safety in the Interior of the United States (Feb. 21, 2017)) (“Q22: Do these memoranda affect

28 recipients of Deferred Action for Childhood Arrivals (DACA)? A22: No.”).

4

Case 5:17-cv-02048-PSG-SHK Document 34-1 Filed 12/21/17 Page 10 of 30 Page ID #:1099

1

On September 5, 2017, DHS announced that it was rescinding the DACA

2 program and winding it down.6 Although the program is soon ending, DHS officials

3 have confirmed that the same program rules continue to apply until it ends. PI Order at 4 1-2.7

5

6

II. Defendants’ Unlawful DACA Termination Practices

7

Defendants have engaged in a widespread practice of unlawfully revoking

8 individuals’ DACA grants and work permits without process, even though these

9 individuals have not violated the terms of the program and continue to be eligible for

10 it.

11

Multiple DACA recipients around the country have been detained by

12 immigration authorities since President Trump took office. For example, in early

13 September, ten DACA recipients were detained for hours by CBP at a checkpoint in 14 Texas even though they have valid DACA.8 Although they were ultimately released,

15 6 Kwon Decl. ¶ 15, Ex. 14 (Memorandum from Acting Secretary Elaine C. Duke,

16 Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial

17

Discretion with Respect to Individuals Who Came to the United States as Children” (Sept. 5, 2017)).

18 7 See also Kwon Decl. ¶ 16, Ex. 15 at 15 (Press Briefing by Press Secretary

19

Sarah Sanders and Homeland Security Advisor Tom Bossert, 9/8/2017, #11, The White House, Office of the Press Secretary (explaining that “[d]uring this six-month

20 time, there are no changes that are being made to the program at this point”); Kwon

21

Decl. ¶ 17, Ex. 16 (Testimony of Michael Dougherty, Assistant Secretary of DHS, Committee of the Judiciary, Oversight of the Administration’s Decision to End

22 Deferred Action for Childhood Arrivals (Oct. 3, 2017), https://www.c-

23

span.org/video/?435059-1/trump-administration-officials-testify-decision-rescinddaca at 56:46) (“Dougherty Statement”) (stating, in response to Senator Feinstein’s

24 question about the status of DACA recipients during the phasing out of the program:

25

“We rely on guidance that was put in place in 2012 when the DACA program was instantiated. That’s available on USCIS’s website and will tell you what the priorities

26 are for Immigration Customs enforcement and what they are for the Department at

27

large. Those priorities have not changed.”). 8 Eiland Decl. ¶ 23, Ex. 8 (Lorenzo Zazueta-Castro, UPDATED: Family,

28 Immigration Attorney: DACA Recipients Being Held at Checkpoint, The Monitor,

5

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1 CBP scrutinized their records, presumably looking for a reason to hold them and

2 revoke their DACA. See also Eiland Decl. ¶¶ 2-15 (providing examples). Indeed,

3 immigration officers have been expressly instructed to screen any DACA recipient 4 they encounter in the field for potential enforcement actions.9

5

According to government data, DACA revocations increased by 25 percent

6 after President Trump’s inauguration.10 Since January, there have been numerous

7 cases in which immigration authorities have targeted DACA recipients by revoking

8 their DACA grants and work permits, without providing any notice or process, even

9 though they have engaged in no disqualifying conduct and continue to be eligible for

10 the program. Indeed, Plaintiffs’ counsel are aware of at least 17 cases nationwide. See

11 Eiland Decl. ¶¶ 2-15 (providing examples).

12

Critically, Defendants have admitted in the course of the instant litigation that

13 USCIS has a practice of automatically terminating DACA based solely on the

14 issuance of a Notice to Appear (“NTA”), and have taken the position that under its

15 own policies, USCIS may terminate DACA without providing any notice or

16 meaningful process. See Doc No. 23-2 at 79-81 (Decl. of Ron Thomas) (“The

17 issuance of a Notice to Appear (NTA) by U.S. Immigration and Customs Enforcement

18 (ICE) or U.S. Customs and Border Protection (CBP) automatically terminates DACA.

19 . . . This has been USCIS’ practice since FY 2013 when such terminations began.”).

20

21

22 Sept. 11, 2017, http://www.themonitor.com/news/article_1ced27f4-970e-11e7-a609-

23

47c4564b53ec.html). 9 Eiland Decl. ¶ 21, Ex. 6 (Valerie Gonzalez, Border Patrol Memo States

24 Procedures to Process all DACA Recipients, KRGV, Sept. 25, 2017,

25

http://www.krgv.com/story/36450600/border-patrol-memo-states-procedures-toprocess-all-daca-recipients); Eiland Decl. ¶ 22, Ex. 7 (Valerie Gonzalez, Tweet, Sept.

26 25, 2017, https://twitter.com/ValOnTheBorder/status/912505757958119426).

27

10 Eiland Decl. ¶ 20, Ex. 5 (Keegan Hamilton, Targeting Dreamers, Vice News, Sept. 8, 2017, https://news.vice.com/story/ice-was-going-after-dreamers-even-before-

28 trump-killed-daca).

6

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1

The named Plaintiffs’ experiences illustrate Defendants’ practices and the

2 harms they inflict. Plaintiff José Eduardo Gil Robles (“Gil”), now 24 years old, has

3 lived in the United States since he was five. Declaration of José Eduardo Gil Robles

4 (“Gil Decl.”) ¶ 1. He has five younger siblings, all of whom are U.S. citizens, and is

5 very active in his Catholic church. Id. ¶¶ 3, 5. USCIS granted him DACA in 2015 and

6 renewed it in August 2017. Id. ¶¶ 9, 10. Until he lost his DACA, he worked at a

7 logistics company, and paid about half his family’s rent and bills. Id. ¶¶ 11-12. On

8 September 20, 2017, he was arrested and ultimately charged with driving on a

9 cancelled license, which was linked to the validity of his first DACA grant. Id. ¶ 14.

10 Even if convicted, the offense would not have disqualified him for DACA. But a

11 month later, he was arrested at work by immigration agents, who placed him in

12 removal proceedings. Id. ¶ 15. Like Mr. Arreola, whose preliminary injunction motion

13 this Court already granted, Mr. Gil found out that USCIS automatically terminated his

14 DACA upon the issuance of a Notice to Appear in removal proceedings—even though

15 Mr. Gil was charged only with presence without admission. Id. ¶¶ 15, 22. Losing his

16 DACA has caused Mr. Gil to lose his job and has harmed his family, which relied on

17 him for support. Id. ¶¶ 24-26. It has also caused him emotional harm, leading him to

18 become hopeless and depressed. Id.

19

Plaintiff Ronan Carlos De Souza Moreira (“Moreira”) lives in the Atlanta area

20 with his family, most of whom are U.S. citizens or lawful permanent residents.

21 Declaration of Ronan Carlos De Souza Moreira (“Moreira Decl.”) ¶¶ 1, 5-6. He is 24

22 years old and has lived in the United States since middle school, becoming a youth

23 leader in his church, volunteering and traveling, and rising to the position of

24 installation manager at a flooring firm. Id. ¶¶ 2-3, 6, 9. The government approved Mr.

25 Moreira’s application for DACA three times—in 2013, 2015, and 2017. Id. ¶ 7; see

26 also id. ¶ 27, Ex. C. But after being charged with possession of an altered

27 identification document—a misdemeanor that would not per se render him ineligible

28 for DACA even if he were convicted—Mr. Moreira lost his DACA without any

7

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1 notice, process, or explanation. Id. ¶¶ 14, 18-19. Like Mr. Arreola and Mr. Gil, Mr.

2 Moreira found out that his DACA was automatically terminated upon the issuance of

3 a Notice to Appear in removal proceedings—even though Mr. Moreira was charged

4 only with overstaying a visa. Id. The loss of DACA has upended Mr. Moreira’s life,

5 causing him emotional harm and leaving him unable to plan for the future. Id. ¶¶ 20-

6 22.

7

8

ARGUMENT

9

The Court should issue a preliminary injunction. To prevail, Plaintiffs must

10 show: (1) a likelihood of success on the merits, (2) likely irreparable harm in the

11 absence of such relief, (3) that the balance of equities tips in their favor, and (4) that

12 an injunction is in the public interest. Arizona Dream Act Coalition v. Brewer, 757

13 F.3d 1053, 1060 (9th Cir. 2014) (citing Winter v. Nat. Res. Def. Council, 555 U.S. 7,

14 20 (2008)). Plaintiffs satisfy all four factors.

15

16 I. THE PLAINTIFF CLASS IS LIKELY TO SUCCEED ON THE MERITS.

17

Plaintiffs and the proposed class are likely to succeed on their APA claims,

18 which are substantially the same as the claims raised by Plaintiff Arreola, and as to

19 which this Court has already found a substantial likelihood of success. See PI Order at

20 3-13. The proposed Plaintiff class is also likely to succeed on the merits of the

21 procedural due process claim.

22

First, as this Court has concluded, Defendants’ practice of automatically

23 terminating DACA when immigration authorities file a NTA—including based solely

24 on presence without admission to the United States or overstaying a visa—is arbitrary

25 and capricious and contrary to law in violation of the APA. See PI Order at 8-13.

26

Second, Defendants’ practice of revoking DACA for individuals who lack any

27 disqualifying criminal convictions without process is unlawful under the APA because

28

8

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1 it reflects the agency’s reversal of its decision to grant DACA in the first place,

2 without providing a reasoned explanation for the change. See PI Order at 10-11.

3

Third, Defendants’ failure to provide DACA recipients with notice and an

4 opportunity to respond violates the rules governing the DACA program, see PI Order

5 at 10-11, is arbitrary and capricious and contrary to law in violation of the APA, and

6 violates the Due Process Clause.

7

A. DHS’ Automatic Termination of DACA Based Solely on the Issuance of an

8

NTA Is Arbitrary and Capricious in Violation of the APA.

9

For multiple reasons, Defendants’ practice of terminating DACA based solely

10 on the issuance of an NTA charging the DACA recipient with presence without

11 admission or overstaying a visa is arbitrary and capricious and contrary to law in

12 violation of the APA. 5 U.S.C. § 706(2)(A). See PI Order at 8-13.

13

The Supreme Court has made clear that under § 706(2)(A), “agency action must

14 be based on non-arbitrary, ‘relevant factors.’” Judulang v. Holder, 565 U.S. 42, 55

15 (2011) (citation omitted). Judulang emphasized that “courts retain a role, and an

16 important one, in ensuring that agencies have engaged in reasoned decisionmaking.”

17 Id. at 53. “When reviewing an agency action, [courts] must assess, among other

18 matters, ‘whether the decision was based on a consideration of the relevant factors and

19 whether there has been a clear error of judgment.’” Id. (citation omitted).

20

In Judulang, the Supreme Court considered a Board of Immigration Appeals

21 (“BIA”) rule governing eligibility for a form of relief—suspension of deportation—

22 which was not provided for in the Immigration and Nationality Act, and was therefore

23 entirely discretionary. 565 U.S. at 46-47. Although the relief was ultimately within the

24 agency’s discretion, the Court made clear that the rules applied by the agency with

25 respect to that relief must still reflect reasoned decisionmaking. The Court emphasized

26 that “[a] method for disfavoring deportable aliens . . . that neither focuses on nor

27 relates to an alien’s fitness to remain in the country—is arbitrary and capricious.” Id.

28 at 55. The Supreme Court ultimately invalidated the BIA rule because it was based on

9

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1 “a matter irrelevant to the alien’s fitness to reside in this country,” and concluded that

2 the BIA therefore “has failed to exercise its discretion in a reasoned manner.” Id. at

3 53. See also PI Order at 8-9 (discussing Judulang).

4

Defendants’ practice of terminating DACA based solely on the issuance of an

5 NTA charging unlawful presence in the United States fails this test for multiple

6 reasons. First, as this Court has concluded, DHS’ practice is arbitrary and irrational

7 because “a noncitizen’s deportability due to unauthorized presence in the United

8 States . . . provides no relevant basis for terminating DACA.” PI Order at 9. As the

9 Court has explained, the Napolitano Memorandum and DACA SOPs “enumerate the

10 relevant considerations for a DACA grant, and not only is unauthorized presence an

11 unmentioned factor, but the program was specifically designed for persons without

12 lawful immigration status.” PI Order at 9. Nothing in those rules suggests that the fact

13 that a noncitizen is subject to removal because he lacks a lawful immigration status is

14 a basis for denial or termination. Indeed, the DACA rules indicate the opposite—the

15 fact that a person is present without admission or has overstayed his visa is irrelevant.

16 See, e.g., DACA SOPs at 44. This is because the lack of a lawful immigration status in

17 the United States is a predicate for eligibility for DACA and is a fact that is therefore

18 true of every DACA recipient. Id. Because the lack of a lawful immigration status is a

19 factor common to every single DACA recipient, and is wholly irrelevant to whether an

20 individual is eligible for DACA, the issuance of an NTA charging presence without

21 admission or visa overstay does not provide a reasoned basis for terminating DACA.

22

Second, as this Court has concluded, “[t]he program’s rules also make clear that

23 even noncitizens who are, have been, or will be placed in removal proceedings are

24 nonetheless eligible for DACA.” PI Order at 9. The rules thus reinforce the conclusion

25 that an NTA based on presence without admission to the United States does not

26 provide a reasoned basis for termination. The Napolitano Memorandum itself requires

27 that the eligibility “criteria are to be considered whether or not an individual is already

28 in removal proceedings or subject to a final order of removal.” Napolitano Memo at 2.

10

Case 5:17-cv-02048-PSG-SHK Document 34-1 Filed 12/21/17 Page 16 of 30 Page ID #:1105

1 See also Kwon Decl. ¶ 17, Ex. 16 (Dougherty Statement) (“The 2012 memorandum

2 also made clear that individuals could be considered for DACA even if they were

3 already in removal proceedings or were subject to a final removal order.”).

4 Implementing this command, the SOPs provide that “[i]ndividuals in removal

5 proceedings may file a DACA request.” DACA SOPs at 71. Indeed, even individuals

6 with final removal orders can be granted DACA. See, e.g., id. at 74 (providing that

7 individuals with final removal orders may be considered for DACA); id. at 75

8 (providing that an individual who has been removed after issuance of a final removal

9 order, re-entered, and is subject to reinstatement of that removal order continues to be

10 eligible for DACA). Cf. Matter of Quintero, 18 I. & N. Dec. 348, 350 (BIA 1982)

11 (explaining in context of removal proceedings that “the respondent can request

12 deferred action status at any stage in the proceeding”). Further, the DACA SOPs

13 provide that if an NTA is issued against a DACA applicant while his application is

14 pending with USCIS—even if the NTA is based on a public safety concern—USCIS

15 should “proceed with adjudication . . . , taking into account the basis for the NTA.”

16 See Kwon Decl. ¶ 22, Ex. 21 (Revised Guidance for the Referral of Cases and

17 Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and

18 Removable Aliens (Nov. 7, 2011)) , at 4 ( “ICE’s issuance of an NTA allows USCIS

19 to proceed with adjudication . . . , taking into account the basis for the NTA”); DACA

20 SOPs at 93 (providing that if ICE accepts a case referred to it by USCIS during the

21 DACA application process, then USCIS “will follow the standard protocols outlined

22 in the November 7, 2011 NTA memorandum”).

23

In such cases, USCIS is required to review all relevant circumstances, and may

24 grant the DACA request “[i]f a DACA requestor has been placed in proceedings on a

25 ground that does not adversely impact the exercise of prosecutorial discretion.”

26 DACA SOPs at 75. See also PI Order at 9; DACA SOPs at 74 (providing that for

27 DACA applicants with final removal orders, “[f]inal removal orders . . . should be

28 reviewed carefully to examine the underlying grounds for removal”). As this Court

11

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1 has concluded, given that the filing of an NTA against a DACA applicant, or even the

2 issuance of a final order of removal against a DACA applicant, does not render the

3 individual ineligible for the program, DHS’ practice of automatically terminating

4 DACA on this basis is arbitrary and irrational. PI Order at 9-10.

5

Third, DHS’ practice of automatically and categorically terminating DACA

6 based on an NTA is arbitrary and capricious because the agency fails, despite

7 proposed class members’ continued eligibility for the program, to consider the

8 relevant facts and circumstances and exercise its individualized discretion. This failure

9 to consider each individual’s specific circumstances undermines the very purpose of

10 the DACA program. See Napolitano Memorandum at 2 (explaining that “[o]ur

11 Nation’s immigration laws . . . . are not designed to be blindly enforced without

12 consideration given to the individual circumstances of each case”). The agency’s

13 failure to exercise its individualized discretion is also inconsistent with its own rules,

14 as described above. Those rules make clear that if someone is the subject of an NTA,

15 USCIS should consider all of the relevant circumstances, including the ground for

16 removal charged in the NTA, to determine whether DACA is appropriate or whether

17 the individual is disqualified. The DACA rules also make clear that when the ground

18 in the NTA does not adversely impact a DACA grant—including, presumably, when

19 the ground is one that all or most DACA recipients could be charged with—the

20 individual is not disqualified from DACA.

21

Fourth, and as this Court has held, USCIS’ practice of terminating DACA

22 automatically based on the filing of an NTA is arbitrary and capricious because it

23 leaves the question of whether an individual continues to warrant a DACA grant and

24 EAD solely up to a CBP or ICE officer’s charging decision in issuing an NTA. PI

25 Order at 10. In Judulang, the Supreme Court emphasized that an additional reason

26 why the BIA’s rule was impermissibly arbitrary was that under the rule, whether a

27 noncitizen would be granted discretionary relief may “rest on the happenstance of an

28 immigration official’s charging decision.” 565 U.S. at 57. See also id. at 58

12

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1 (recognizing “the high stakes for an alien who has long resided in this country,” and

2 noting that the Court has “reversed an agency decision that would ‘make his right to

3 remain here dependent on circumstances so fortuitous and capricious’”) (quoting

4 Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947)). The same is true here: where a

5 class member’s “DACA [i]s revoked automatically due to the issuance of the NTA,

6 everything h[angs] on the fortuity of one CBP officer’s decision.” PI Order at 10.

7

Fifth, in terminating proposed class members’ individual DACA grants and

8 EADs and finding that the issuance of an NTA automatically renders them ineligible

9 for DACA, DHS is departing from its prior position without “a reasoned analysis for

10 the change,” in violation of the APA. Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

11 Auto. Ins. Co., 463 U.S. 29, 42 (1983). See also PI Order at 10-11; 5 U.S.C.

12 § 706(2)(A). An agency may depart from its prior decision, but it is black letter law

13 that if it does so, it “is obligated to supply a reasoned analysis for the change.” State

14 Farm, 463 U.S. at 42. See also FCC v. Fox Television Stations, Inc., 556 U.S. 502,

15 515 (2009) (“[T]he agency must show that there are good reasons for the new

16 policy.”).

17

In these cases, DHS has previously determined that the individual proposed

18 class member is eligible for and warrants a DACA grant on at least one occasion, and

19 in many cases on multiple occasions. The agency reached these individual

20 determinations after evaluating each DACA applicant’s school records and other

21 circumstances, as well as conducting extensive background checks. PI Order at 10.

22

In terminating DACA, the agency is abruptly reversing course. The agency does

23 so even though now, as before, each proposed class member continues to be eligible

24 for DACA. Nonetheless, USCIS provides class members with a boilerplate one-

25 sentence statement that his or her DACA and EAD have been “terminated

26 automatically” because a NTA was issued. See, e.g., Kwon Decl. ¶ 9, Ex. 8; Moreira

27 Decl. ¶ 26, Ex. B; Gil Decl. ¶ 30, Ex. B. As this Court has concluded, USCIS’s one-

28 sentence explanation fails to provide “good reasons” for the agency’s change in

13

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1 position, as required by the APA. PI Order at 10. See also Fox Television Stations,

2 Inc., 556 U.S. at 515; Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956,

3 968 (9th Cir. 2015) (explaining that the agency is “required to provide a ‘reasoned

4 explanation . . . for disregarding’ the ‘facts and circumstances’ that underlay its

5 previous decision”) (citations omitted). As this Court explained, “[g]iven that all

6 DACA recipients are necessarily removable due to their unauthorized presence, the

7 agency’s reliance on an NTA citing . . . presence without admission simply fails to

8 explain, much less justify, an agency’s decision to reverse course and terminate []

9 DACA.” PI Order at 10-11 (internal quotation marks and citation omitted).

10

As this Court has recognized, the agency’s failure to explain its decision is also

11 invalid because it fails to mention, let alone account for, each proposed class

12 member’s “substantial reliance interests.” PI Order at 11. Plaintiffs and the proposed

13 class members have lived in the United States since a young age, and have relied on

14 DACA to build a life, obtain rewarding employment as young adults, and help support

15 themselves and their families. See Fox Television Stations, Inc., 556 U.S. at 515

16 (explaining that an agency must give a “more detailed justification” for a policy

17 change if its “prior policy has engendered serious reliance interests that must be taken

18 into account”). DHS’ failure to provide a reasoned explanation for its change in

19 position is arbitrary and capricious. See, e.g., Organized Vill. of Kake, 795 F.3d at

20 967-68 (holding that the defendant agency failed to provide “good reasons” for

21 reversing its old policy).

22

For all these reasons, DHS’ practices of changing its position without providing

23 a reasoned explanation and terminating Plaintiffs’ and class members’ DACA based

24 merely on an NTA charging unlawful presence is arbitrary and capricious in violation

25 of the APA.

26

B. DHS’ Revocation of Class Members’ DACA and EAD Without Process

27

Violates the Agency’s Own Procedures and Procedural Due Process.

28

14

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1

1. DHS’ Revocation Without Notice Violates Its Own Rules and the APA.

2

DHS’ automatic termination of proposed class members’ DACA and EAD

3 without notice or an opportunity to be heard also violates DHS’ own rules and is

4 therefore arbitrary and capricious under the APA.

5

The DACA SOPs provide that USCIS generally will not terminate a recipient’s

6 DACA and EAD without prior notice and an opportunity to respond. See, e.g., DACA

7 SOPs Chapter 14, Termination, at 136-38 (if DACA granted in error, or granted as a

8 result of fraud, officer is directed to issue a “Notice of Intent to Terminate,” allow

9 recipient “33 days to file a brief or statement contesting the grounds cited in [the

10 notice],” and terminate only where the adverse grounds are not overcome). See also

11 Colotl, 2017 WL 2889681, at *7 (“[T]he SOP provides that, in the usual circumstance,

12 a termination of an individual’s DACA status will not occur without prior notice to

13 that individual.”). As this Court has recognized, “unless there are criminal, national

14 security, or public safety concerns, the DACA termination guidelines prescribe the

15 issuance of a Notice of Intent to Terminate and require that the individual should be

16 allowed 33 days to file a brief or statement contesting the grounds cited.” PI Order at

17 11 (internal quotation marks and citation omitted). Although the DACA SOPs contain

18 a procedure for termination of DACA if ICE issues an NTA, such termination is

19 permitted only under narrow circumstances involving certain serious public safety

20 concerns, and only after DHS follows specific procedures. See Gonzalez Torres, 2017

21 WL 4340385, at *6 (finding that USCIS’ termination of DACA in response to “NTA

22 issued by USCBP in connection with removal proceedings” charging recipient with

23 being present without admission did not comply with DACA SOPs); see also DACA

24 SOPs Chapter 14, Termination, at 137 (enumerating procedures to be followed in

25 cases involving disqualifying criminal offenses or public safety concerns).11

26

27

11 Defendants may attempt to argue that, where a noncitizen otherwise eligible for DACA is an enforcement priority under the Kelly Memorandum, the DACA rules do

28 not require notice and an opportunity to respond prior to termination. However, the

15

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1

In sum, because Defendants’ practice of terminating DACA without process

2 violates Defendants’ own termination procedures, the practice is arbitrary and

3 capricious. See Gonzalez Torres, 2017 WL 4340385, at *5 (“Defendants’ failure to

4 follow the termination procedures set forth in the DACA SOP is arbitrary, capricious,

5 and an abuse of discretion.”); Colotl, 2017 WL 2889681, at *12 n.6 (“Defendants’

6 actions were likely arbitrary and capricious in violation of the APA by . . . terminating

7 her DACA status in contravention of DHS’s own procedures.”).

8

2. DHS’ Practice of Revoking DACA Without Process Violates Procedural Due Process.

9

In addition to violating its own procedures, DHS’ practice of revoking DACA

10 without providing any process violates proposed class members’ procedural due

11 process rights. Plaintiffs and the proposed class members have gained a protected

12 interest in their DACA, which authorized them to live and work in the United States

13 until the expiration date of their DACA grants, and therefore have a right to a fair

14 procedure before it can be revoked. Yet DHS has reversed these decisions without

15 providing Plaintiffs and proposed class members with adequate notice, a reasoned

16 explanation, or an opportunity to present arguments and evidence to demonstrate that

17 they remain eligible for the program and did not engage in any disqualifying criminal

18 activity.

19

The Constitution “imposes constraints on governmental decisions which

20 deprive individuals of ‘liberty’ or ‘property’ interests.” Mathews v. Eldridge, 424 U.S.

21

22 Kelly Memorandum on its face makes clear that the new enforcement priorities do not

23

affect the DACA program. See Colotl, 2017 WL 2889681, at *12 (holding that “the Kelly Memo, by its own terms, has no application to the DACA program”); id. at *7

24 (emphasizing that the Kelly Memorandum “specifically excludes” the DACA

25

program); id. at *8 (noting that DHS’s public guidance is “clear and unambiguous” that the Kelly Memorandum does not affect the DACA program); Colotl v. Kelly, No.

26 1:17-cv-01670-MHC (N.D. Ga. July 31, 2017) (Doc. No. 43) (Order Denying

27

Reconsideration at 7-8). Moreover, applying the Kelly Memorandum to revoke DACA based on conduct or criminal history that the DACA SOPs and DACA

28 Memorandum provide is not disqualifying is inconsistent with the program rules.

16

Case 5:17-cv-02048-PSG-SHK Document 34-1 Filed 12/21/17 Page 22 of 30 Page ID #:1111

1 319, 332 (1976). Regardless of whether the individual had a claim of entitlement

2 before it was granted, once an important benefit is conferred, recipients have a

3 protected property interest sufficient to require a fair process before the government

4 may take it away. See Bell v. Burson, 402 U.S. 535, 539 (1971) (holding that,“[o]nce

5 [driver’s] licenses are issued, . . . their continued possession may become essential in

6 the pursuit of a livelihood,” such that they cannot “be taken away without” due

7 process); Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (holding that parole

8 revocation requires due process; parolees may “have been on parole for a number of

9 years and may be living a relatively normal life[,]” all the while “[having] relied on at

10 least an implicit promise that parole will be revoked only if [the parolee] fails to live

11 up to the parole conditions”); Nnebe v. Daus, 644 F.3d 147, 158-69 (2d Cir. 2011)

12 (recognizing that taxi drivers have a protected property interest in the continued

13 possession of their operating licenses and remanding to determine if suspension

14 hearing satisfied due process); Singh v. Bardini, No. 09-cv-3382, 2010 WL 308807, at

15 *7 (N.D. Cal. Jan. 19, 2010) (“Even if there is no constitutional right to be granted

16 asylum, that does not mean that, once granted, asylum status can be taken away

17 without any due process protections.”) (internal citation omitted).

18

Plaintiffs and the proposed class members’ DACA and EADs are essential to

19 their ability to remain lawfully present in the United States and earn a livelihood to

20 support themselves and their families. See Alaska Airlines, Inc. v. Long Beach, 951

21 F.2d 977, 986 (9th Cir. 1991) (finding ordinance permitting airport to automatically

22 reduce flights already allocated to air carriers by license violated air carriers’ due

23 process rights where allocations were crucial to enterprise); Jones v. City of Modesto,

24 408 F. Supp. 2d 935, 951 (E.D. Cal. 2005) (finding that city could not revoke existing

25 massage license without due process) (citing Greenwood v. Fed. Aviation Admin., 28

26 F.3d 971, 975 (9th Cir. 1994) (“The Ninth Circuit specifically recognized that an

27 existing license, in contrast to an applied for license, constitutes a legitimate

28 entitlement of which one cannot be deprived without due process.”)). Plaintiffs and

17

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1 the proposed class members have reasonably relied on the implicit promise that they

2 could retain their DACA grants and EADs so long as they satisfied the program’s

3 eligibility requirements. See Morrissey, 408 U.S. at 482. The government’s reversal of

4 its previous decision that they were eligible for and warranted DACA inflicts precisely

5 the kind of “serious loss” that requires due process protections. Mathews, 424 U.S. at

6 348 (internal quotation marks omitted).

7

Determining the procedure necessary to meet constitutional standards requires

8 evaluation of three distinct factors:

9

First, the private interest that will be affected by the official action;

10

second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or

11

substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens

12

that the additional or substitute procedural requirement would entail.

13 Id. at 335.

14

Evaluation of these factors demonstrates that Plaintiffs and the proposed class

15 members must be afforded at least the pre-termination process that DHS generally

16 provides for under its own rules—i.e., adequate notice of the allegedly adverse

17 grounds and an opportunity to respond and contest the decision. The private interest at

18 stake could not be more significant. The termination of DACA rescinds proposed

19 Plaintiffs and class members’ authorization to live and work in the United States—the

20 country they have called home from a young age. Instead of following its own

21 prescribed process, DHS’s practice is to terminate proposed class members’ DACA

22 without notice. The lack of any opportunity to contest the termination decision creates

23 an unacceptably high risk of erroneous deprivation. See Singh v. Vasquez, No. 08-cv-

24 1901, 2009 WL 3219266, at *5 (D. Ariz. Sept. 30, 2009), aff’d, 448 F. App’x 776 (9th

25 Cir. Aug. 31, 2011) (“[T]here is a substantial risk of erroneous deprivation through the

26 procedures utilized by INS in rescinding asylum via a mailed letter. This manner of

27 termination does not account for anything other than post hoc notice that . . . he or she

28 is no longer entitled to protection.”). Providing Plaintiffs and proposed class members

18

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1 with a reasoned explanation for the government’s actions and an opportunity to

2 present arguments and evidence could make all the difference, because it will allow

3 proposed class members to demonstrate that they have not engaged in any

4 disqualifying criminal activity (or even been charged with any crime) and remain

5 eligible for DACA. Indeed, Mr. Arreola’s circumstances highlight the value of the “an

6 opportunity to contest the [termination] determination at a meaningful time,” as he

7 would have been able to show that CBP’s allegations had been mistaken, as the

8 immigration judge had concluded. See Villa-Anguiano v. Holder, 727 F.3d 873, 882

9 (9th Cir. 2013). See also id.at 881 (holding that BIA “must consider all favorable and

10 unfavorable factors relevant to the exercise of its discretion; failure to do so

11 constitutes an abuse of discretion”). And both Mr. Gil and Mr. Moreira could

12 demonstrate that the minor offenses that they have been charged with do not

13 disqualify them from DACA, and that they have deep family ties, strong work

14 histories, and other positive equities favoring continuation of DACA in the totality of

15 the circumstances. See Gil Decl. ¶¶ 1-6, 11-14; Moreira Decl. ¶¶ 1-6, 9-14, 21. The

16 fact that DHS’ rules already provide for these basic pre-deprivation protections in

17 most circumstances reinforces both that the value of such safeguards is high, and that

18 providing such limited process would not place undue fiscal or administrative burdens

19 on the government. Vasquez, 2009 WL 3219266, at *6 (“To conclude, all of the

20 Mathews factors weigh in favor of a finding that due process requires more than

21 sending an after the fact letter of rescission when the government terminates a grant of

22 asylum.”).

23 II. THE PLAINTIFF CLASS IS SUFFERING IRREPARABLE HARM.

24

Absent an injunction, Plaintiffs and the proposed class will continue to

25 experience irreparable harm that cannot be cured by their ultimate success on the

26 merits in this case.

27

There is no question that revocation of proposed class members’ DACA and

28 loss of their EADs has derailed their careers and undermined their employment.

19

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1 Indeed, a recent survey concluded that, like Plaintiffs, 91 percent of DACA recipients

2 were employed, including at top Fortune 500 companies such as Walmart, Apple,

3 General Motors, Amazon, JPMorgan Chase, Home Depot, and Wells Fargo. Sixty-

4 nine percent of DACA recipients reported that their earnings “helped [them] become 5 financially independent.”12 Stripping DACA recipients of their DACA and EADs

6 directly results in loss of employment and earnings, as well as lost opportunities to

7 gain education and experience: 94% of DACA recipients have “pursued educational 8 opportunities that [they] previously could not” because of DACA.13 As this Court has

9 held, “the deprivation of Plaintiff’s earnings and job opportunities caused by the loss

10 of his DACA and EAD constitutes irreparable harm.” See PI Order at 13-14.

11 Consistent with this Court’s holding, the Ninth Circuit has made clear that the “loss of

12 opportunity to pursue [one’s] chosen profession” constitutes irreparable harm. Enyart

13 v. Nat’l Conference of Bar Exam’rs, Inc., 630 F.3d 1153, 1165 (9th Cir. 2011); see

14 also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543 (1985) (“We have

15 frequently recognized the severity of depriving a person of the means of livelihood.”).

16 The harms faced by Plaintiffs illustrate the adverse effects on proposed class members

17 of losing one’s DACA and EAD. For example, because he lost his EAD, Mr. Arreola

18 had to leave his job as a cook at Chateau Marmont, and because CBP took possession

19 of his car, he has been unable to work as a driver. Arreola Decl. ¶ 40. See also, e.g., 20 Gil Decl. ¶ 24. The classwide effects are similar.14

21 12 See Eiland Decl. ¶ 31, Ex. 16 at 3, 4 (Tom K. Wong et al, DACA Recipients’

22 Economic and Educational Gains Continue to Grow, Center for American Progress,

23

Aug. 28, 2017, https://www.americanprogress.org/issues/immigration/news/2017/08/28/437956/daca-

24 recipients-economic-educational-gains-continue-grow/).

13
25 14

Id. at 4. See, e.g., Eiland Decl. ¶ 31, Ex. 16; Eiland Decl. ¶ 39, Ex. 24 (Raul Hinojosa-

26 Ojeda, The Economic Benefits of Expanding the Dream: DAPA and DACA Impacts on

27

Los Angeles and California, North American Integration and Development Center, UCLA, Jan. 26, 2015,

28 http://www.naid.ucla.edu/uploads/4/2/1/9/4219226/central_valley_final.pdf).

20

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1

Such loss of employment is more than enough to justify an injunction in this

2 circuit. In Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014), for

3 example, the Ninth Circuit reversed a district court’s denial of a preliminary

4 injunction on harm grounds, and held that the DACA recipients had established

5 irreparable harm because the defendants’ policy had “diminished [plaintiffs’]

6 opportunity to pursue their chosen professions.” Id. at 1068. See also PI Order at 13-

7 14; Enyart, 630 F.3d at 1165; Gonzalez Torres, 2017 WL 4340385, at *6 (finding that

8 irreparable harm caused by defendants’ termination of DACA without notice

9 “includes the loss of employment, a core benefit under DACA” and that such

10 “deprivation of employment impacts Plaintiff’s ability to financially provide for

11 himself and his family”). Moreover, setbacks at an early stage in proposed class

12 members’ careers may never be recoverable. Time without DACA is “productive time

13 irretrievably lost” that the proposed class members could be spending in their chosen

14 career paths, building toward the future for themselves and their families. Chalk v.

15 United States Dist. Court, 840 F.2d 701, 710 (9th Cir. 1988). See also Arizona Dream

16 Act Coal., 757 F.3d at 1068 (“The irreparable nature of Plaintiffs’ injury is heightened

17 by Plaintiffs’ young age and fragile socioeconomic position. Setbacks early in their

18 careers are likely to haunt Plaintiffs for the rest of their lives.”).

19

In addition, losing DACA has rendered many proposed class members’

20 ineligible for driver’s licenses, which in the vast majority of states are conditioned on 21 showing lawful presence in the United States.15 Indeed, 90 percent of DACA

22 recipients obtained driver’s licenses or state identification card for the first time after 23 receiving DACA.16 Without driver’s licenses, proposed class members are unable to

24

25

15 See Eiland Decl. ¶ 32, Ex. 17 at 2 (Nat’l Immigration Law Center, Access to Driver’s Licenses for Immigrant Youth Granted DACA, May 31, 2015,

26 https://www.nilc.org/issues/drivers-licenses/daca-and-drivers-licenses/).

27

16 See Eiland Decl. ¶ 42, Ex. 27 at 4 (Tom K. Wong et al, New Study of DACA Beneficiaries Shows Positive Economic and Educational Outcomes, Center for

28 American Progress, Oct. 18, 2016,

21

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1 accomplish the basic tasks of everyday life, such as driving to school, church, or the

2 grocery store or taking their siblings or children to daycare or the doctor’s office.

3

Finally, the abrupt revocation of proposed class members’ DACA and EADs

4 also causes emotional distress. See, e.g., Arreola Decl. ¶ 40; Gil Decl. ¶ 26 (loss of

5 DACA has left plaintiff feeling “depressed” and “hopeless and stressed”); Moreira

6 Decl. ¶ 20, 22 (describing fear and depression resulting from uncertainty following the

7 loss of DACA). These harms are common to the class. Numerous studies have shown

8 that both DACA recipients themselves and their family members—especially their

9 children—suffer psychological harm from the fear and uncertainty that accompany the 10 loss of benefits.17 Thus even if the proposed class members could later recover their

11 lost income, their emotional distress in the interim constitutes an irreparable injury in

12 itself. See Chalk, 840 F.2d at 709. See also Colotl, 2017 WL 2889681, at *12

13 (“Plaintiff’s emotional distress . . . is another factor in determining that Plaintiff will 14 suffer irreparable injury without the entry of a preliminary injunction.”).18

15 https://www.americanprogress.org/issues/immigration/news/2016/10/18/146290/new-

16 study-of-daca-beneficiaries-shows-positive-economic-and-educational-outcomes/) 17 See, e.g., Eiland Decl. ¶ 40, Ex. 25 at 3 (Anna Maria Barry-Jester, The End of
17 DACA Will Ripple Through Families and Communities, FiveThirtyEight, Sept. 6,

18 2017, https://fivethirtyeight.com/features/the-end-of-daca-will-ripple-through-

19

families-and-communities/) (describing, inter alia, anxiety suffered by children of undocumented parents); Eiland Decl. ¶ 41, Ex. 26 at 1 (Dinah Wiley, New Study

20 Findings on Mixed-Status Immigrant Families: Threat of Family Separation Affects

21

Health of the Children, Georgetown University Health Policy Institute Center for Children and Families, June 13, 2013, https://ccf.georgetown.edu/2013/06/13/new-

22 study-findings-on-mixed-status-immigrant-families-threat-of-family-separation-

23

affects-health-of-the-children/) (describing, inter alia, anxiety suffered by children of undocumented parents); Declaration of Jens Hainmueller and Duncan Lawrence

24 (describing declarants’ research, published in Science, demonstrating that mothers’

25

eligibility for DACA improves the mental health of their children). 18 See Eiland Decl. ¶ 33, Ex. 18 (Tiziana Rinaldi, DACA recipients saw their

26 mental health improve. Now, advocates fear its end will have the opposite effect, PRI,

27

Nov. 22, 2017, https://www.pri.org/stories/2017-11-22/study-found-daca-improvedmental-health-its-recipients-which-why-researchers) (termination of DACA causes

28 DACA recipients to lose “ontological security” and potential “distress, negative

22

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1 III. THE REMAINING FACTORS SUPPORT PRELIMINARY RELIEF.

2

Preliminary relief will not harm the government. The government will not be

3 adversely affected by enjoining the revocation of Plaintiffs’ and class members’

4 DACA, since the proposed class includes only individuals who remain eligible for the

5 program.

6

By contrast, the public interest strongly favors a preliminary injunction. The

7 public interest is served when the government complies with its obligations under the

8 APA and the Constitution and follows its own procedures. As the Ninth Circuit has

9 emphasized, “[I]t is clear that it would not be equitable or in the public’s interest to

10 allow the state . . . to violate the requirements of federal law, especially when there are

11 no adequate remedies available.” Arizona Dream Act Coal., 757 F.3d at 1069 (citation

12 and internal quotation marks omitted) (alteration and ellipsis in original). See also

13 Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“[I]t is always in the public

14 interest to prevent the violation of a party’s constitutional rights.”) (citation and

15 internal quotation marks omitted); Colotl, 2017 WL 2889681, at *12 (“[T]he public

16 has an interest in government agencies being required to comply with their own

17 written guidelines instead of engaging in arbitrary decision making.”).

18

Further, stripping class members of their professions and authorization to work

19 is not in the public interest. The vast majority (71%) of DACA recipients have been 20 able to help their families financially through their earnings; 19 job loss means that

21 many DACA recipient’s families would lose a crucial support, and many of those

22 family members are U.S. citizens—78% of DACA recipients have an American 23 citizen spouse, sibling, or child.20 For example, Mr. Arreola’s family relies on him

24 heavily. He plays a critical role in the care of his sister who has serious disabilities,

25

26 emotions, depression and anxiety”) (quoting Catlin Patler, Ph.D).

19
27 20

See Eiland Decl. ¶ 31, Ex. 16 at 3. See Eiland Decl. ¶ 49, Ex. 34, at 2 (U.C. San Diego U.S. Immigration Policy

28 Center, DACA Stats and Facts, dacastatsandfacts.com).

23

Case 5:17-cv-02048-PSG-SHK Document 34-1 Filed 12/21/17 Page 29 of 30 Page ID #:1118

1 and he contributes to the support of his family. Arreola Decl. ¶¶ 4-5, 16. He was also a

2 valued employee at the Chateau Marmont. Id. ¶¶ 14, 40-41. See also, e.g., Gil Decl. ¶¶

3 11, 24.

4

Moreover, recent studies have estimated that DACA recipients as a whole have

5 contributed billions of dollars to the U.S. economy, contributing not only their labor

6 and productivity, but buying homes, cars, and other goods and services; stripping

7 proposed class members of their DACA and EADs would harm the public interest by 8 decreasing class members’ contribution to the economy.21 Economists have estimated

9 that DACA would contribute $280 billion to $460 billion to GDP over the next 10 decade, including $60 billion in lost taxes.22 The government’s policy of revoking

11 class members’ DACA also imposes high costs on employers, who must search for 12 new employees at a time of low unemployment and high demand for skilled labor.23

13 21 See, e.g., Eiland Decl. ¶ 34, Ex. 19 at 2 (Nicole Prchal Svajlenka, Tom Jawetz,

14 and Angie Bautista-Chavez, A New Threat to DACA Could Cost States Billions of

Dollars, Center for American Progress, July 21, 2017, 15 https://www.americanprogress.org/issues/immigration/news/2017/07/21/436419/new-

16 threat-daca-cost-states-billions-dollars/); Eiland Decl. ¶ 35, Ex. 20 at 2 (Silva

17

Mathema, Ending DACA Will Cost States Billions of Dollars, Center for American Progress, January 9, 2017,

18 https://www.americanprogress.org/issues/immigration/news/2017/01/09/296125/endin

19

g-daca-will-cost-states-billions-of-dollars/); Eiland Decl. ¶ 36, Ex. 21 at 1-3 (Ian Salisbury, The Insane Economic Cost of Ending DACA, Time, Sept. 7, 2017,

20 http://time.com/money/4928394/daca-economic-cost-trump/).

21

22 Id. See also, e.g., Eiland Decl. ¶ 43, Ex. 28 at 1-3 (John W. Shoen, US GDP would take a hit from DACA deportations, report finds, CNBC, Aus. 8, 2017,

22 https://www.cnbc.com/2017/08/31/u-s-gdp-would-take-a-hit-from-daca-deportations-

23

report-finds.html); Eiland Decl. ¶ 44, Ex. 29 (Chad Stone, The High Costs of Ending DACA, US News & World Report, Sept. 29, 2017,

24 https://www.usnews.com/opinion/economic-intelligence/articles/2017-09-29/why-

25

ending-daca-and-deporting-dreamers-makes-no-economic-sense); Eiland Decl. ¶ 45, Ex. 30 at 1-2 (Alana Abramson, Here’s How Much Money Rescinding DACA Could

26 Cost the U.S. Economy, Fortune, Sept. 6, 2017, http://fortune.com/2017/09/05/daca-

27

donald-trump-economic-impact/). 23 See Eiland Decl. ¶ 46, Ex. 31 at 3 (Julissa Arce, Ending This Immigration

28 Program would Devastate the Economy, Fortune, July 21, 2017,

24

Case 5:17-cv-02048-PSG-SHK Document 34-1 Filed 12/21/17 Page 30 of 30 Page ID #:1119

1

Enjoining the government’s policy of revoking DACA without justification

2 would serve the public interest, protecting American families and businesses and

3 requiring the government to comply with the APA and the Constitution.

4

CONCLUSION

5

For the reasons given, the Court should grant (1) Plaintiffs’ Motion for a

6 Classwide Preliminary Injunction, (2) vacate and enjoin Defendants’ unlawful

7 revocation of Plaintiffs Gil’s and Moreira’s DACA and EADs, as well as the DACA

8 and EADs of proposed class members whose DACA has been terminated since

9 January 19, 2017, and (3) enjoin Defendants from terminating Plaintiffs’ and proposed

10 class members’ DACA and EADs pursuant to their unlawful policies in the future.

11

12 Dated: December 21, 2017

Respectfully submitted,

13

/s/ Jennifer Chang Newell

14

Jennifer Chang Newell

15

Katrina L. Eiland Michael K. T. Tan*

16

David Hausman*

17

ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT

18

19

Ahilan T. Arulanantham

Michael Kaufman

20

Dae Keun Kwon

21

ACLU FOUNDATION

OF SOUTHERN CALIFORNIA

22

23

Attorneys for Plaintiffs

24 http://fortune.com/2017/07/21/daca-dream-act-2017-new-immigration-news/)

25

(estimating the cost to employers in having to find and replace their employees if the DACA program is rescinded at around $3.4 billion); Eiland Decl. ¶ 47, Ex. 32 at 2

26 (Paul Davidson, DACA’s end would hurt the economy, USA TODAY, Sept. 8, 2017,

27

https://www.usatoday.com/story/money/2017/09/08/dacas-end-would-hurt-economyhiring/638835001/) (describing DACA importance for U.S. businesses struggling to

28 find high-skilled employees).

25

 
 Case 5:17-cv-02048-PSG-SHK Document 53 Filed 02/01/18 Page 1 of 33 Page ID #:1610

1 CHAD A. READLER

2 Assistant Attorney General

3

Civil Division WILLIAM C. PEACHEY

4 Director

5 JEFFREY S. ROBINS Assistant Director
6 JAMES J. WALKER

7 Trial Attorney

United States Department of Justice 8 Civil Division

9 Office of Immigration Litigation

10 District Court Section Washington, D.C. 20044
11 Tel.: (202) 532-4468

12 Fax: (202) 305-7000 Email: james.walker3@usdoj.gov
13

14 Counsel for Defendants

15

UNITED STATES DISTRICT COURT

16

FOR THE CENTRAL DISTRICT OF CALIFORNIA

17
INLAND EMPIRE – IMMIGRANT ) 18 YOUTH COLLECTIVE, et al., on )

19 behalf of themselves and others

)

20 similarly situated,

)

)

21 Plaintiffs,

)

22 v.

)

)

23 KIRSTJEN NIELSEN, Secretary, U.S. )

24 Department of Homeland Security, et )

25 al.,

) )

26 Defendants.

)

Case No. 5:17-cv-02048-PSG-SHK
DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
DATE: February 5, 2018 TIME: 1:30 p.m. JUDGE: Philip S. Gutierrez Courtroom: 6A

27

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Case 5:17-cv-02048-PSG-SHK Document 53 Filed 02/01/18 Page 2 of 33 Page ID #:1611

1

TABLE OF CONTENTS

2

PAGE

3 TABLE OF AUTHORITES ..................................................................................... ii
4

5 INTRODUCTION .....................................................................................................1

6 BACKGROUND .......................................................................................................1 7
8 SUMMARY OF THE ARGUMENT ........................................................................4

9 ARGUMENT .............................................................................................................5

10

11

I. Standard of Review for Class Certification ..............................................5

12

II. Deferred Action and the DACA Policy ....................................................7

13 A. The Notice to Appear process ..........................................................7
14

15

B. Deferred Action................................................................................8

16

III. This Court must deny class certification because Plaintiffs

17

fail to satisfy the requirements of Fed. R. of Civ. P. 23(b)(2) ................13

18

IV. This Court must deny the motion for class certification because

19

Plaintiffs fail to satisfy the requirements of Federal Rule of Civil

20

Procedure 23(a) .......................................................................................17

21

A. The Proposed Class Lack Numerosity ...........................................17

22

23

B. The Proposed Class Lacks Commonality ......................................19

24

C. The Proposed Class Lacks Typicality............................................22

25 D. Plaintiffs are not Adequate Representatives ..................................23
26 27 CONCLUSION ........................................................................................................25

28

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Case 5:17-cv-02048-PSG-SHK Document 53 Filed 02/01/18 Page 3 of 33 Page ID #:1612

1

TABLE OF AUTHORTIES

2

3 CASES

PAGE(S)

4

5

Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) .............................................................................................22

6

7 Arizona Dream Act Coal. v. Brewer, 855 F.3d 957 (9th Cir. 2017) ................................................................................20
8

9 Arizona v. United States, 132 S. Ct. 2492 (2012) .......................................................................................7, 8
10

11 Ark. Educ. Ass’n v. Board Of Educ. of Portland, Ark. Sch. Dist., 12 446 F.2d 763 (8th Cir. 1971) ................................................................................17

13 Arnott v. U.S. Citizenship & Immigration Servs., 14 290 F.R.D. 579 (C.D. Cal. 2012)..........................................................................23

15 Arpaio v. Obama, 16 797 F.3d 11 (D.C. Cir. 2015)................................................................................10

17 Califano v. Yamasaki, 18 442 U.S. 682 (1979) ...............................................................................................5

19 Chaudhry v. Holder,
20 705 F.3d 289 (7th Cir. 2013) ..................................................................................9

21

Colapinto v. Esquire Deposition Servs., LLC, 22 No. CV 09-07584 SJO PLAX, 2011 WL 913251 (C.D. Cal. Mar. 8, 2011) .......13

23

24 Colotl v. Kelly, No. 1:17-CV-1670-MHC (N.D. Ga.)...............................................................3, 25
25

26

Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) ................................................................................23

27

28

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Case 5:17-cv-02048-PSG-SHK Document 53 Filed 02/01/18 Page 4 of 33 Page ID #:1613

1

Flores v. CVS Pharmacy, Inc., No. 2:07-CV-05326-JHN-EX,

2 2010 WL 3656807 (C.D. Cal. Sept. 7, 2010) ............................................... passim

3 Flores v. Supervalu, Inc.,
4 509 F. App’x 593 (9th Cir. 2013).........................................................................13

5

6

Forrand v. Federal Exp. Corp., No. CV 08-1360 DSF (PJWx),

7 2009 WL 648966 (C.D. Cal. Feb. 18, 2009) ........................................................14

8 Franco-Gonzales v. Napolitano,
9 No. CV 10-02211 DMG DTBX, 2011 WL 11705815 10 (C.D. Cal. Nov. 21, 2011) ......................................................................................6

11 Gen. Tel. Co. of the Nw., Inc. v. EEOC, 12 446 U.S. 318 (1980) .............................................................................................18

13 Gen. Tel. Co. v. Falcon, 14 457 U.S. 147 (1982) .................................................................................... 6, 7, 22

15 Hanlon v. Chrysler Corp., 16 150 F.3d 1011 (9th Cir. 1998) ................................................................. 17, 19, 24

17 Hanon v. Dataproducts,
18 976 F.2d 497 (9th Cir. 1992) ......................................................................... 22, 23

19

20

Harik v. Cal. Teachers Ass'n, 326 F.3d 1042 (9th Cir. 2003) ..............................................................................18

21

22 Heckler v. Chaney, 470 U.S. 821 (1985) ...............................................................................................8
23

24 Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999).........................................................................18, 24
25 26 Hum v. Dericks,
162 F.R.D. 628 (D. Haw. 1995) ...........................................................................17 27

28

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1

Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507 (9th Cir. 1978) ................................................................................25

2

3 Leyva v. Medline Indus. Inc., 716 F.3d 510 (9th Cir. 2013) ................................................................................19
4

5 Lierboe v. State Farm Mut. Auto. Ins. Co., 6 350 F.3d 1018 (9th Cir. 2003) ..............................................................................24

7 Linda R.S. v. Richard D., 8 410 U.S. 614 (1973) .............................................................................................20

9 Molski v. Gleich, 10 318 F.3d 937 (9th Cir. 2003) ................................................................................24

11 Preap v. Johnson, 12 303 F.R.D. 566 (N.D. Cal. 2014) 13 aff’d, 831 F.3d 1193 (9th Cir. 2016) .............................................................. 19, 22

14 Rannis v. Recchia, 15 380 Fed. Appx. 646 (9th Cir. 2010) .....................................................................18

16 Regents of Univ. of California v. United States Dep’t of Homeland Sec., 17 No. C 1705211, 2018 WL 339144 (N.D. Cal. Jan. 9, 2018) .........................10, 13

18 Reno v. Am.-Arab Anti-Discrimination Comm., 19 525 U.S. 471 (1999) ...........................................................................................8, 9

20 Rodriguez v. Hayes, 21 591 F.3d 1105 (9th Cir. 2010) ......................................................................... 6, 13

22 Rodriguez v. West Publ’g Corp.,
23 563 F.3d 948 (9th Cir. 2009) ................................................................................24
24 Rutledge v. Elec. Hose & Rubber Co.,
25 511 F.2d 668 (9th Cir. 1975) ..................................................................................6 26 27 Santos v. TWC Admin. LLC,
No. CV1304799MMMCWX, 28 2014 WL 12558009 (C.D. Cal. Aug. 4, 2014) .............................................. 13, 18

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1 Saravia v. Sessions, 2 No. 17-CV-03615-VC, 2017 WL 5569838 (N.D. Cal. Nov. 20, 2017)...............17

3 Schwartz v. Harp,
4 108 F.R.D. 279 (C.D. Cal. 1985)..........................................................................22

5

6

Ticor Title Ins. Co. v. Brown, 511 U.S. 117 (1994) .............................................................................................24

7

8 United States v. Mendoza, 464 U.S. 154 (1984) ...............................................................................................5
9
10 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ..................................................................................... passim
11

12 Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087 (9th Cir. 2010) ................................................................................7
13

14 Zinser v. Accufix Research Inst., Inc., 15 253 F.3d 1180 (9th Cir. 2001) ............................................................................6, 7

16

17

FEDERAL STATUTES AND REGULATIONS

18 8 U.S.C. § 1103(a)(1).................................................................................................7
19 20 8 U.S.C. § 1227(a) .....................................................................................................7

21 8 U.S.C. § 1229(a) .....................................................................................................7 22
8 U.S.C. § 1252(g) .....................................................................................................4 23

24 8 U.S.C. § 1182(a) .....................................................................................................7

25 8 U.S.C. § 1252(a)(5).................................................................................................4 26 27 8 U.S.C. § 1252(b)(9).................................................................................................4

28

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1 8 C.F.R. § 239.1(a).....................................................................................................7 2 8 C.F.R. § 274a.12(c)(14) ................................................................................... 9, 11 3
8 C.F.R. § 274a.12(a)-(b) .........................................................................................11 4 5 8 C.F.R. § 274a.12(c) ...............................................................................................11 6 8 C.F.R. § 274a.14(a)(1)(ii) .....................................................................................11 7
8 C.F.R. § 1003.14(a).................................................................................................7 8 9
RULES 10 11 Federal Rules of Civil Procedure 23..........................................................................7 12 Federal Rules of Civil Procedure 23(a) ........................................................... passim 13 14 Fed. R. Civ. P. 23(a)(1)............................................................................................17 15 Fed. R. Civ. P. 23(a)(2)............................................................................................19 16 Federal Rules of Civil Procedure 23(b) .....................................................................1 17
Fed. R. Civ. P. 23(b)(1)..............................................................................................6 18 19 Fed. R. Civ. P. 23(b)(2).................................................................................... passim 20 Fed. R. Civ. P. 23(b)(3)........................................................................................6, 13 21 22 23 24 25 26 27 28
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1

INTRODUCTION

2

Plaintiffs propose a mandatory, nationwide class of individuals who have had, or

3 who will have, their Deferred Action for Childhood Arrivals (“DACA”) grant terminated

4 without advanced notice and an opportunity to respond even though no regulation or

5 policy requires such notice, nor does any regulation or policy limit Defendants from

6 withdrawing putative class members’ DACA by the procedures they challenge. The

7 effect of such an injunction would be to prevent DACA from being promptly rescinded

8 when removal proceedings are initiated, a state of affairs that turns immigration law –

9 where enforcement action is only deferred until enforcement action commences – on its

10 head. It would create a court-imposed obstacle to immigration enforcement where

11 Congress has spoken clearly and instructed Courts to stay their hand until removal

12 proceedings have been concluded. Such an order would be inconsistent with the law, and

13 Plaintiffs’ request should be rejected.

14

Defendants ask this Court to deny Plaintiffs’ motion for class certification for

15 failure to meet the requirements of Federal Rules of Civil Procedure 23(a) and (b). First,

16 Plaintiffs assert an overbroad class and fail to meet the numerosity or commonality

17 requirements, because the class definition unnecessarily seeks nationwide certification

18 and relies on faulty legal and factual premises. Second, the three named Plaintiffs were

19 all arrested committing crimes, subsequently determined to be enforcement priorities, and

20 issued NTAs that had the effect of terminating their DACA and employment

21 authorizations automatically. Their claims are in no way representative of this proposed

22 class of individuals plaintiffs assert had or will have their DACA terminated despite no

23 “disqualifying conduct,” rendering class certification impossible. Third, relatedly, the

24 facts underlying each putative plaintiff’s situation require individualized analysis,

25 disqualifying their claims from class treatment.

26

BACKGROUND

27

On December 21, 2017, Plaintiffs filed an amended complaint claiming

28 Defendants “have targeted numerous DACA recipients and unlawfully revoked the grants

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1 of deferred action and work permits they have received even though these individuals

2 have abided by all the program rules and have not engaged in any conduct that would

3 disqualify them from the program.” Amended Complaint, Dkt. No. 32 at 3. Plaintiffs

4 moved to certify a class they define as follows:

5

All recipients of Deferred Action for Childhood Arrivals (“DACA”) who,

6

after January 19, 2017, have had or will have their DACA grant and employment authorization revoked without notice or an opportunity to

7

respond, even though they have not been convicted of a disqualifying criminal

8

offense.

9 Class Cert. Motion, Dkt. No. 39 at 3; see also Dkt. No. 39-1 at 9 n.2 (“This motion does

10 not address the proposed ‘Enforcement Priority’ Class pled in Plaintiffs’ Amended

11 Complaint.”).

12

Plaintiff Arreola had his DACA and EAD terminated automatically through the

13 issuance of an NTA, after U.S. Customs and Border Protection (“CBP”) encountered him

14 engaged in alien smuggling, the facts of which he conceded to in an interview with CBP

15 agents. See Dkt. 23-2 at 26, 56-57. Mr. Arreola’s DACA and EAD were then reinstated

16 on November 22, 2017, and on December 20, 2017, DHS issued a Notice of Intent to

17 Terminate pursuant to this Court’s Order. See Dkt. No. 31; Dkt. No. 32 at ¶ 87.

18

Named Plaintiffs Gil Robles and De Souza Moreira were found to be enforcement

19 priorities upon investigation by ICE, following plaintiffs’ respective arrests for felony

20 crimes. See Exhibits A, Decl. of Jeremy Anderson; A.1, Gil-Robles Notice to Appear

21 (“NTA”) and Form I-213, dated Oct. 23, 2017; B, Decl. of Derrick A. Eleazer; B.1, De

22 Souza-Moreira NTA and Form I-213, dated Nov. 5, 2017. On September 20, 2017,

23 Plaintiff Gil-Robles was arrested and charged with two felonies, including First Degree

24 Assault and transferring a firearm without a background check to a prohibited person. See

25 Exhibit A. On Nov. 6, 2017, ICE issued Gil-Robles an NTA charging him with unlawful

26 presence, and on Nov. 14, 2017, USCIS issued him a Notice of Action, stating his DACA

27 and EAD terminated automatically with the NTA. Dkt. No. 32 at ¶ 109.

28

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1

On November 3, 2017, Plaintiff De Souza was arrested for Forgery in the First

2 Degree, a felony.1 Exhibit B. Plaintiff admitted to police that he had altered the expiration

3 date on his driver’s license due to it expiring. Id. On November 5, 2017, ICE issued De

4 Souza an NTA charging unlawful presence, and on November 10, 2017, USCIS issued

5 him a Notice of Action explaining his DACA and EAD terminated automatically with the

6 NTA. Id.; Dkt. No. 32 at ¶ 129.

7

Contrary to Plaintiffs’ allegations, the DHS law enforcement officers who issued

8 each Plaintiffs’ NTA relied on the criminal conduct described herein, and were also

9 aware of Plaintiffs’ previous DACA grants. See Exhibits A, B; Dkt. No 23-2 at 34, 62. As

10 explained below, the decision to charge only unlawful presence on their respective NTAs

11 is not indicative of the full reasoning DHS employed to issue the NTAs.

12

Putative class member Jessica Colotl, Dkt. No. 39-13, Eiland Decl., at ¶ 7, is not

13 subject to DACA termination. Rather, following the issuance of a preliminary injunction

14 in her case, USCIS reinstated her previous DACA grant, which subsequently expired.

15 USCIS denied Ms. Colotl’s DACA renewal request after providing her with notice of its

16 intent to do so, and an opportunity to respond. See Colotl v. Kelly, No. 1:17-CV-1670-

17 MHC (N.D. Ga.) at Dkt. No. 50-2.

18

Putative class member Felipe Abonza Lopez, had his DACA terminated

19 automatically through the issuance of an NTA after CBP encountered him engaged in

20 alien smuggling. Dkt. No. 39-13 at ¶ 11; see 2011 NTA Memo, Dkt. No. 16-25, at 4-5

21 (classifying an alien who engages in an “offense relating to alien smuggling” as a “top

22 immigration enforcement priority”). 2

23

24

25 1 Plaintiffs incorrectly assert that Plaintiff De Souza was arrested for “possession of an altered

identification document—a misdemeanor.” Dkt. No. 40-1 at 12.
26
2 In their motions for class certification and class-wide preliminary injunction and supporting briefs

27 [Dkt. Nos. 39, 39-1, and 40, 40-1], Plaintiffs cite to the exhibits they previously filed with their first

28

motion for injunctive relief [Dkt. Nos. 16, 16-2 and 16-4 (Kwon Decl.) to 16-29]. For the sake of judicial efficiency, Defendants do the same in their response briefs to both motions.

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1

Putative class member Daniel Ramirez Medina, Dkt. No. 39-13 at ¶ 13, had his

2 DACA terminated automatically after DHS issued him an NTA based on statements he

3 made indicating gang affiliation. See Exhibit C, Decl. of Michael A. Melendez at ¶¶ 4-5;

4 Dkt. No. 16-25 at 4-5 (classifying a “known or suspected street gang member” as a “top

5 immigration enforcement priority”). Of the remaining seven proposed class members,

6 two of them have not had their DACA terminated at all. Dkt. No. 39-13 at ¶¶ 14-15.

7

SUMMARY OF THE ARGUMENT

8

As an initial matter, the Court should deny Plaintiffs’ motion for class certification

9 to the extent that Plaintiffs’ claims are subject to dismissal. Congress enacted 8 U.S.C.

10 § 1252(g) with the specific intent of preventing judicial review of the Department of

11 Homeland Security’s (“DHS”) prosecutorial discretion to decide whether and when to

12 initiate removal proceedings, as well as actions and decisions that arise out of that

13 decision.3 Congress also mandated through 8 U.S.C. §§ 1252(a)(5) and (b)(9) a single

14 opportunity in a court of appeals for individuals to challenge their removal orders,

15 including claims of constitutional violations arising from the initiation of or conduct of

16 their removal proceedings. Any interpretation of these statutes that permits a district court

17 challenge to actions inextricably linked to the initiation of removal proceedings, such as

18 Plaintiffs’ challenge here, would run counter to Congress’s intent, to Supreme Court case

19 law, and to the law of this Circuit.

20

Even if the Court believes that it would have jurisdiction over Plaintiffs’ claims, it

21 should nonetheless deny the motion for class certification where Plaintiffs fail to meet

22 any of the requirements of Fed. R. Civ. P. 23(a) or (b)(2). To begin with, Plaintiffs offer

23 an overbroad definition of their putative class based on an incorrect understanding of

24 DACA policy, such that it captures many DACA terminations not requiring any notice or

25 3 Plaintiffs imply at least some of their class members have or will have lost DACA and EADs

26 automatically without the issuance of an NTA, but fail to identify any examples or offer any argument in
support of such a possible class member. Regardless, all three named plaintiffs’ DACA was terminated as

27 a consequence of NTA issuance based on criminal conduct, so there is no class representative for an

28

individual whose DACA was terminated for some reason other than an NTA issuance based on criminal conduct.

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1 opportunity to respond, while also carving out a significant subcategory of DACA

2 terminations based on DHS finding an individual to be an enforcement priority. See Pls.’

3 Mem. in Supp. of Class Certification, Dkt. No. 39-1 at 9 n.2 (“This motion does not

4 address the proposed ‘Enforcement Priority’ Class pled in Plaintiffs’ Amended

5 Complaint, filed this same date.”). Because the enforcement priority exception would

6 exclude all three of the named plaintiffs, and likely most of the unnamed potential class

7 members; and because any relief a potential class member may be entitled to differs

8 depending on an individual analysis of the facts and law pertaining to their DACA

9 terminations, Plaintiffs fail to meet the numerosity, commonality, typicality, or adequacy

10 of representation requirements of Fed. R. Civ. P. 23(a) or (b)(2). For these reasons, class

11 certification should be denied.

12

ARGUMENT

13 I. Standard of Review for Class Certification

14

Courts should take great care in determining whether to certify a class, especially a

15 nationwide class against the federal government. Although the Supreme Court declined to

16 adopt a blanket prohibition on such classes, it cautioned that “a federal court when asked

17 to certify a nationwide class should take care to ensure that nationwide relief is indeed

18 appropriate in the case before it, and that certification of such a class would not

19 improperly interfere with the litigation of similar issues in other judicial districts.”

20 Califano v. Yamasaki, 442 U.S. 682, 702-03 (1979). The Court further acknowledged

21 “the force of the [government’s] contentions that nationwide class actions may have a

22 detrimental effect by foreclosing adjudication by a number of different courts and judges,

23 and of increasing, in certain cases, the pressures on this Court’s docket.” Id. at 702; see

24 also United States v. Mendoza, 464 U.S. 154, 160 (1984) (“Allowing only one final

25 adjudication would deprive this Court of the benefit it receives from permitting several

26 courts of appeals to explore a difficult question before this Court grants certiorari.”).

27 Other class challenges to immigration policies in this Court have decidedly not sought the

28 certification of a nationwide class. See, e.g., Franco-Gonzales v. Napolitano, No. CV 10-

5

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1 02211 DMG DTBX, 2011 WL 11705815, at *1 (C.D. Cal. Nov. 21, 2011); Rodriguez v.

2 Hayes, 591 F.3d 1105, 1111 (9th Cir. 2010).

3

A party seeking certification of a proposed class must demonstrate the existence of

4 the four required elements set forth in Rule 23(a) of the Federal Rules of Civil Procedure.

5 Specifically, the moving party must show that:

6

(1) the class is so numerous that joinder of all members is impracticable

7

(“numerosity”); (2) there are questions of law or fact common to the class (“commonality”);

8

(3) the claims or defenses of the named plaintiffs are typical of claims or

9

defenses of the class (“typicality”); and

(4) the named plaintiffs will fairly and adequately protect the interests of the

10

class (“adequacy of representation”).

11 See Fed. R. Civ. P. 23(a); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345

12 (2011) (“Class certification is governed by Federal Rule of Civil Procedure 23.”). In

13 addition to meeting the requirements set forth in Rule 23(a), the proposed class must also

14 qualify under Rule 23(b)(1), (2), or (3). Dukes, 564 U.S. at 345; see also Zinser v. Accufix

15 Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). Plaintiffs seek certification

16 under Rule 23(b)(2). Dkt. No. 17 at 25-29. Rule 23(b)(2) permits class actions for

17 declaratory or injunctive relief where “the party opposing the class has acted or refused to

18 act on grounds that generally apply to the class.” Fed. R. Civ. P. 23(b)(2). The “key to the

19 (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—

20 the notion that the conduct is such that it can be enjoined or declared unlawful only as to

21 all of the class members or as to none of them.” Id. at 360 (citation omitted).

22

The party seeking class certification bears the burden of proof to demonstrate that

23 it has met all four Rule 23(a) prerequisites and that the class lawsuit falls within one of

24 the three types of actions permitted under Rule 23(b). Zinser, 253 F.3d at 1186.

25 Moreover, a complaint’s failure to meet “any one of Rule 23’s requirements destroys the

26 alleged class action.” Rutledge v. Elec. Hose & Rubber Co., 511 F.2d 668, 673 (9th Cir.

27 1975) (emphasis added). The Supreme Court has held that “actual, not presumed,

28 conformance with Rule 23(a) [is] indispensable.” Gen. Tel. Co. v. Falcon, 457 U.S. 147,

6

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1 160 (1982); Zinser, 253 F.3d at 350 (Rule 23 “does not set forth a mere pleading

2 standard.”). A court should only certify a class “if the trial court is satisfied, after a

3 rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Zinser, 253

4 F.3d at 350-51 (internal quotation omitted).

5

A district court, therefore, must conduct a rigorous analysis to determine that an

6 action meets all the requirements of Rule 23. Gen. Tel. Co., 457 U.S. at 161. Even if a

7 court finds that an action meets all of Rule 23’s requirements, that court retains “broad

8 discretion” to determine whether it should certify the proposed class. Zinser, 253 F.3d at

9 1186. Toward that end, a court may “probe behind the pleadings before coming to rest on

10 the certification question.” Gen. Tel. Co., 457 U.S. at 160. This is because “the class

11 determination generally involves considerations that are enmeshed in the factual and

12 legal issues comprising the plaintiff’s cause of action.” Id. (internal quotation omitted).

13 Nonetheless, the ultimate decision regarding class certification must necessarily

14 “involve[] a significant element of discretion.” Yokoyama v. Midland Nat’l Life Ins. Co.,

15 594 F.3d 1087, 1090 (9th Cir. 2010).

16 II. Deferred Action and the DACA Policy

17

A. The Notice to Appear process

18

The Immigration and Nationality Act (“INA”) charges the Secretary of Homeland

19 Security “with the administration and enforcement” of the INA and “all other laws

20 relating to the immigration and naturalization of aliens.” 8 U.S.C. § 1103(a)(1).

21 Individuals are removable if, inter alia, “they were inadmissible at the time of entry, have

22 been convicted of certain crimes, or meet other criteria set by federal law.” Arizona v.

23 United States, 132 S. Ct. 2492, 2499 (2012); see 8 U.S.C. §§ 1182(a), 1227(a). The

24 issuance of a Notice to Appear (“NTA”) is a necessary predicate step to commencing

25 removal proceedings. See 8 U.S.C. § 1229(a); 8 C.F.R. § 1003.14(a). The authority to

26 issue an NTA is vested with all DHS immigration officers. See 8 C.F.R. § 239.1(a).

27 However, DHS divides NTA issuance responsibility between U.S. Citizenship and

28 Immigration Services (“USCIS”) in its administrative capacity, and U.S. Immigration and

7

Case 5:17-cv-02048-PSG-SHK Document 53 Filed 02/01/18 Page 15 of 33 Page ID #:1624

1 Customs Enforcement (“ICE”) and U.S. Customs and Border Protection (“CBP”) in their

2 law enforcement capacities. See Dkt. No 16-25, USCIS Memorandum: Revised Guidance

3 for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving

4 Inadmissible and Removable Aliens, (“NTA Memo”) dated Nov. 7, 2011. In adjudicating

5 applications for immigration benefits, USCIS is authorized to issue an NTA in cases

6 where a statute or regulation requires it, such as in the termination of Conditional

7 Permanent Resident Status or the termination of refugee status; or where “a Statement of

8 Findings (“SOF”) substantiating fraud” is part of the individual’s record. Id. at 3-4.

9

In any case where USCIS has “information indicat[ing an individual] is under

10 investigation for, has been arrested for (without disposition), or has been convicted of” a

11 crime, whether defined as an Egregious Public Safety (“EPS”) case or not, USCIS is

12 required to refer the case to ICE. Id. at 5 (“All EPS cases must be referred to ICE . . . .”);

13 id. at 6 (“[F]or a criminal offense not included on the EPS list, USCIS will complete the

14 adjudication and then refer the case to ICE.”). The memo is clear: “USCIS will not issue

15 an NTA in these cases if ICE declines to issue an NTA.” Id. at 5 and 6 (emphasis added);

16 see id. at 2 (“USCIS must ensure that its issuance of NTAs fits within and supports the

17 Government’s overall removal priorities . . . .”).

18

B. Deferred Action

19

The federal government cannot practicably remove every removable alien. Rather,

20 “[a] principal feature of the removal system is the broad discretion exercised by

21 immigration officials.” Arizona, 132 S. Ct. at 2499. DHS, “as an initial matter, must

22 decide whether it makes sense to pursue removal at all.” Id. “At each stage the Executive 23 has discretion to abandon the endeavor.” Reno v. Am.-Arab Anti-Discrimination Comm., 24 525 U.S. 471, 483 (1999) (“AADC”). As with other agencies exercising enforcement

25 discretion, DHS must balance a number of factors within its expertise. See Heckler v.

26 Chaney, 470 U.S. 821, 831 (1985).

27

Deferred action is “a regular practice” in which the Secretary exercises her

28 discretion “for humanitarian reasons or simply for [her] own convenience,” to notify an

8

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1 alien of a non-binding decision to forbear from seeking his removal for a designated

2 period. See AADC, 525 U.S. at 483-84; 8 C.F.R. § 274a.12(c)(14) (“an act of

3 administrative convenience to the government which gives some cases lower priority”).

4 Through “[t]his commendable exercise in administrative discretion, developed without

5 express statutory authorization,” AADC, 525 U.S. at 484 (citations omitted), a removable

6 individual may remain present in the United States so long as DHS continues to forbear,

7 but always at the discretion of the Secretary.

8

It is important to note, of course, that deferred action does not confer lawful

9 immigration status or provide any defense to removal. Cf. Chaudhry v. Holder, 705 F.3d

10 289, 292 (7th Cir. 2013) (discussing the difference between “unlawful presence” and

11 “unlawful status” as two distinct concepts). An individual with deferred action remains

12 removable at any time, and DHS never surrenders or otherwise loses the discretion to

13 revoke deferred action unilaterally. See AADC, 525 U.S. at 484-85.

14

On June 15, 2012, DHS issued a memorandum entitled, “Exercising Prosecutorial

15 Discretion with Respect to Individuals Who Came to the United States as Children” (the

16 “Napolitano Memo”). See Pl. Exhibit 9, Dkt. No. 16-13. That memorandum outlines a

17 policy known as Deferred Action for Childhood Arrivals (“DACA”) that is available to a

18 certain subset of individuals unlawfully present in this country. The Napolitano Memo

19 recognizes both USCIS and ICE authority to grant DACA. Id. at 4 (“For individuals who

20 are granted deferred action by either ICE or USCIS . . . .”). The memo also clarifies that

21 DACA “confers no substantive right, immigration status or pathway to citizenship. Only

22 the Congress, acting through its legislative authority, can confer these rights.” Id. at 3.

23 Conversely, the Napolitano Memo does not address the topics of arrest by DHS or the

24 grounds that DHS will consider in terminating deferred action. Rather, it directs ICE and

25 CBP agents to “immediately exercise their discretion, on an individual basis” to

26 determine whether to issue an NTA or defer action, without reference to whether an

27 individual already has deferred action. Id. (“With respect to individuals who meet the

28 above criteria, ICE and CBP should immediately exercise their discretion, on an

9

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1 individual basis, in order to prevent low priority individuals from being placed into

2 removal proceedings.”). Thus, CBP or ICE have discretion to issue an NTA if the facts

3 and circumstances available at the time an individual is encountered counsel against the

4 continuation of deferred action, including where there is a criminal offense or public

5 safety concern presented. Id.; see Regents of Univ. of California v. United States Dep’t of

6 Homeland Sec. (“Regents”), No. C 17-05211 WHA, 2018 WL 339144, at *27-28 (N.D.

7 Cal. Jan. 9, 2018) (“Nothing in this order [enjoining termination of DACA policy]

8 prohibits the agency from proceeding to remove any individual, including any DACA

9 enrollee, who it determines poses a risk to national security or public safety, or otherwise

10 deserves, in its judgment, to be removed.”); Arpaio v. Obama, 797 F.3d 11, 16, 24 (D.C.

11 Cir. 2015) (“Even after they are approved for deferred action . . . beneficiaries are subject

12 to the Department’s overall enforcement priorities”), cert. denied, 136 S. Ct. 900, (2016),

13 reh’g denied, 136 S. Ct. 1250 (2016).

14

In mid-August 2012, USCIS published on its website a webpage entitled,

15 “Frequently Asked Questions,” which is now archived on the USCIS webpage.4 See Pl.

16 Exhibit 19, Dkt. No. 16-23. These FAQs provide guidance on the DACA policy and

17 state, “DACA is an exercise of prosecutorial discretion and deferred action may be

18 terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s

19 discretion.” Id. at Q:27. The FAQs also explain that the phrase “national security or

20 public safety threat” includes but is not limited to “gang membership, participation in

21 criminal activities, or participation in activities that threaten the United States.” See id. at

22 Q:65. The Form I-821D, entitled, “Instructions for Consideration of Deferred Action for

23 Childhood Arrivals” states, “[i]ndividuals who receive deferred action will not be placed

24 into removal proceedings or removed from the United States for a specified period of

25 time, unless the Department of Homeland Security (DHS) chooses to terminate the

26 deferral.” See Form I-821D Instructions, Dkt. No. 23-2 at 4.

27

DACA, as a form of deferred action, confers the ability to apply for an

28 4 Available at https://www.uscis.gov/archive/frequently-asked-questions (last visited Jan. 30, 2018).

10

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1 employment authorization document (“EAD”) which may be granted upon a showing of

2 economic necessity for employment. See 8 C.F.R. § 274a.12(c)(14). While regulations

3 provide for automatic and largely unconditional employment authorization for some

4 individuals with a legal status, such as legal permanent residents and some temporary

5 visa holders, see 8 C.F.R. § 274a.12(a)-(b), individuals with no lawful status, including

6 those with any form of deferred action, must apply for temporary and conditional

7 employment authorization. 8 C.F.R. § 274a.12(c). Regulations also provide that

8 employment authorization granted under subsection (c) is automatically terminated,

9 without notice, upon the institution of removal proceedings. 8 C.F.R. § 274a.14(a)(1)(ii).

10

Through an internal USCIS guidance document entitled the “National Standard

11 Operating Procedures (SOP); Deferred Action for Childhood Arrivals (DACA),” USCIS

12 has provided officers in the Service Center Operations directorate with procedural

13 guidance for terminating deferred action in three circumstances, one of which includes

14 issuing a Notice of Intent to Terminate (“NOIT”) and providing a chance for a DACA

15 recipient to respond, and two in which such notice and an opportunity to respond is not

16 required, including when the individual is served with an NTA. See Pl. Exhibit 20,

17 National Standard Operating Procedures, Deferred Action for Childhood Arrivals

18 (“DACA SOP”) dated Aug. 28, 2013, Dkt. No. 16-24 at 37-39; id. at 41-44, Appendix I.

19

Nothing in the Napolitano Memo limits CBP or ICE from exercising their

20 authority to issue an NTA to an individual with DACA. Rather, pursuant to the DACA

21 SOP and Appendix I, and in conjunction with the NTA Memo, when USCIS discovers

22 certain conduct that suggests DACA should be terminated, USCIS should refer such

23 conduct to ICE, who may issue an NTA that automatically terminates DACA, with no 24 additional notice or opportunity to respond. See Dkt. No. 16-24 at 38-39. Logically,

25 lawfully, and pursuant to the Napolitano Memo, where an ICE or CBP officer encounters 26 an individual engaged in criminal behavior, the officer may issue an NTA or defer action 27 without consulting with USCIS, who in any event would be required to refer the case 28 back to ICE to decide whether to issue an NTA – creating an absurd circular result.

11

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1

Thus, USCIS’s only role in a case where ICE or CBP issues an NTA is to issue a

2 “Notice of Action” to the individual, informing him or her that deferred action under

3 DACA and his or her EAD automatically terminated as of the date the NTA was issued.

4 Id. at 42. This “Notice of Action” serves only as an administrative notice. USCIS,

5 through the Notice of Action, does not “decide” to terminate DACA or the EAD, which

6 are likely already terminated by the time USCIS becomes involved.

7

Analogously, the DACA SOP provides that if a DACA requestor is in immigration

8 detention and ICE intends to release the individual, USCIS will deny the DACA request

9 if ICE notifies USCIS that the requestor is an enforcement priority. See Exhibit D, Decl.

10 of Brandon M. Robinson; D.1, DACA SOP, Chapter 8, dated August 28, 2013, at 47-49.5

11 In those cases, and in conjunction with the 2011 NTA Memo and the Napolitano Memo,

12 USCIS makes no further examination of the reason for detention or for the basis of the

13 initiation of removal proceedings. Id. USCIS may “discuss” its disagreement with ICE,

14 but the SOP does not say that USCIS may override ICE’s determination. Id. at 48.

15 Additionally, if USCIS refers a non-detained DACA requestor to ICE as an EPS case and

16 ICE declines to act, USCIS is required to deny the DACA request. Id. at 49. In both

17 cases, the individual is provided no additional reasons for the denial, nor a notice of

18 intent to deny, nor an opportunity to respond.

19

On September 5, 2017, DHS announced a plan to end the DACA policy in an

20 orderly fashion. See Pl. Exhibit 14, “Memorandum on Rescission of Deferred Action for

21 Child Arrivals” from Elaine C. Duke, dated Sept. 5, 2017 (“Duke Memo”), Dkt. No. 16-

22 18. The memorandum, inter alia, provides that DHS will “adjudicate – on an individual,

23 case by case basis – properly filed pending DACA renewal requests and associated

24 applications for Employment Authorization Documents . . . from current beneficiaries

25 whose benefits will expire between the date of this memorandum and March 5, 2018 that

26 have been accepted by the Department as of October 5, 2017.” Id. (emphasis added). On

27 5 Exhibit D.1 is an updated and more complete version of the DACA SOP Chapter 8, including sections
28 excluded by Plaintiffs’ Exhibit 16-24, at 7-28 (“Determining if Guidelines are Met”), and 42-54
(“Evaluating Issues of Criminality, Public Safety, and National Security”).

12

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1 Jan. 9, 2018, the court in Regents, ordered a preliminary injunction requiring USCIS to

2 receive and adjudicate DACA requests from individuals who previously received DACA.

3 See Regents, 2018 WL 339144 at *27-28. USCIS issued guidance thereafter that allows,

4 in part, individuals who previously received DACA and whose DACA expired on or after

5 Sept. 5, 2017 to file a DACA renewal request, and individuals who previously received

6 DACA which expired before Sept. 5, 2016 or whose DACA was previously terminated to

7 submit an initial DACA request.6

8 III. This Court must deny class certification because Plaintiffs fail to satisfy the

9

requirements of Fed. R. of Civ. P. 23(b)(2).

Plaintiffs cannot demonstrate that “final injunctive relief or corresponding 10

declaratory relief is appropriate respecting the class as a whole,” thus the Court should 11

find Plaintiffs cannot meet the requirements of Fed. R. Civ. P. 23(b)(2) and deny 12

certification. Dukes, 564 U.S. at 360; Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 13
2010) (Rule 23(b)(2) requires the court “only to look at whether class members seek 14
uniform relief from a practice applicable to all of them.”). 15
Class certification will fail under Rule 23(b)(2) if a class definition is overbroad.7 16
Not only must the challenged practice apply to all class members, but it must be readily 17
ascertainable that the practice has injured every member. Santos v. TWC Admin. LLC, 18
No. CV1304799MMMCWX, 2014 WL 12558009, at *11 (C.D. Cal. Aug. 4, 2014) 19
(collecting cases); Colapinto, 2011 WL 913251 at *4 (“Plaintiffs fail to define an 20
ascertainable class because Plaintiffs' proposed class definition includes members who

21

22 6 Available at https://www.uscis.gov/humanitarian/deferred-action-childhood-arrivals-response-january-

2018-preliminary-injunction (last visited Jan. 30, 2018).
23 7 The overbroad analysis applies in overlapping contexts under Rules 23(a) and 23(b)(3), either of which

24 will also prevent class certification if not met. See Dukes, 564 U.S. at 345; Colapinto v. Esquire

25

Deposition Servs., LLC, No. CV 09-07584 SJO PLAX, 2011 WL 913251, at *4 (C.D. Cal. Mar. 8, 2011) (denying class under Rule 23(a) where ascertaining numerosity was impeded by a class definition that

26 included uninjured members); Flores v. CVS Pharmacy, Inc., No. 2:07-CV-05326-JHN-EX, 2010 WL
3656807, at *7 (C.D. Cal. Sept. 7, 2010) (denying Rule 23(b)(3) class as overbroad where it would be

27 necessary “to conduct mini-trials to separate the class members from non-class members.”), aff’d sub

28

nom. Flores v. Supervalu, Inc., 509 F. App’x 593 (9th Cir. 2013). Plaintiffs’ definition is overbroad in all three contexts.

13

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1 are unharmed.”); Flores, 2010 WL 3656807 at *7 (“Plaintiff has not identified a single

2 case in which a court certified an overbroad class that included both injured and

3 uninjured parties.”).

4

Class certification is also inappropriate where “individualized factual inquiries

5 would dominate.” Id. at *7. Where the issues contributing to the alleged injury “are

6 contingent on a number of human factors and individual idiosyncrasies and have little to

7 do with an overarching policy [. . .] common issues do not predominate. Id., citing

8 Forrand v. Federal Exp. Corp., No. CV 08-1360 DSF (PJWx), 2009 WL 648966, at *3

9 (C.D. Cal. Feb. 18, 2009) (class certification denied where “Plaintiffs fail to propose a

10 method of common proof that would show that FedEx’s policies prevent more than

11 21,000 class members from taking meal and rest breaks”).

12

Plaintiffs’ proposed class captures individuals for whom it is necessary to analyze

13 their claims on a case by case basis to determine whether they have similarly been

14 impacted by the policy challenged by the putative class. See Forrand, 2009 WL 648966,

15 at *3 (denying class certification for employees claiming FedEx prevented them from

16 taking meal breaks because it would have had to determine not just whether an employee

17 did not take breaks, but the reasons why). Plaintiffs define their class as all DACA 18 recipients who have had their DACA terminated without advanced notice or an 19 opportunity to respond, and “without a disqualifying criminal conviction.” Dkt. No. 39 at 20 3; see also Dkt. No. 32 (asserting the requirement to terminate DACA is a “disqualifying 21 criminal conviction”). Additionally, Plaintiffs carve out of that proposed group 22 individuals who had their DACA terminated without notice due to DHS’s determination 23 that the individual is an enforcement priority. Dkt. No. 39 at 9 n.2.8

24 8 Plaintiffs misapply the term “enforcement priority” to distinguish a sub-class of individuals who

25 received an NTA and are no longer “eligible” for DACA, from those who received an NTA but remain
“eligible” for DACA. See, e.g., Dkt. No. 32 at 21 (“Defendants’ decision to terminate DACA based on
26 the conclusion that the individual is an enforcement priority even though he remains eligible for DACA

27

violates the rules for the DACA program”). In reality, DHS considers every individual it issues an NTA to an enforcement priority. Further, Plaintiffs point out the obvious sticking point that contradicts their

28 claim that DHS is applying stricter enforcement priority definitions to target DACA grantees:

14

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1

This definition does not in itself identify an injury common to the putative class,

2 because DACA policy provides for automatic termination in several scenarios, regardless

3 of a criminal conviction. In addition to Defendants’ position that an NTA issued by ICE

4 and CBP works to automatically terminate DACA, DACA also terminates automatically

5 if a DACA recipient travels outside the United States on or after August 15, 2012 without

6 first receiving advance parole. Dkt. No. 16-23 at Q57. Additionally, DACA may also be

7 terminated without advanced notice and an opportunity to respond when DHS deems a

8 DACA recipient an enforcement priority or when USCIS finds that a person is an EPS

9 concern but ICE declines to issue an NTA. See Dkt. No 16-24 at 39. Conversely, the

10 DACA SOP provides that USCIS should notify an individual of its intent to terminate

11 DACA and provide an opportunity to respond to intended DACA termination when

12 USCIS believes there was error in the DACA grant, the requestor committed fraud in

13 seeking DACA, or when subsequent criminal activity comes to USCIS’s attention that is

14 not EPS or if ICE does not accept the case, and the circumstances require additional

15 information to resolve USCIS’s concerns. Dkt. No. 16-24 at 38-39.

16

The Court here would have to determine not just that an individual’s DACA was

17 terminated without advance notice and an opportunity to respond, but the reason why no

18 advance notice and opportunity to respond was provided, and what process was followed 19 prior to termination. Such mini-trials of each DACA termination makes class certification 20 impractical and underscores the inappropriateness of adding an additional layer of 21 process that Congress explicitly precluded – process that is entirely outside of the

22

23

“Among other things, applying DHS’ new enforcement priorities to DACA recipients

would eviscerate the DACA program because DACA recipients by definition lack a lawful

24

immigration status, and a large number of them have engaged in activities related to their

25

lack of status—such as entering the country without authorization or driving without a license—that would make them an immigration enforcement priority were the

26

Memorandum to apply to them.”

Dkt. No. 32 at 40. Relying on a proposed class where the named plaintiffs were all issued NTAs as a

27 result of their criminal conduct fails to demonstrate how DHS is implementing one set of enforcement

28

priorities or another, or that DHS is “targeting” DACA grantees. See Dkt. No. 32 at ¶¶ 8, 138, 146, 160; Dkt. No. 39-1 at 15, 16, 18.

15

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1 established removal proceeding process. Similarly, Plaintiffs indicate only that putative

2 class members lost DACA despite having no “disqualifying criminal convictions,” which

3 is insufficient to determine whether each individual was an enforcement priority, received

4 some sort of process, or whether the DACA SOP provides for process prior to

5 termination in their cases. Rather, given the nature of the proposed class and the limited

6 facts provided by Plaintiffs, each claim would have to be assessed individually – which

7 counsels against class certification. Flores, 2010 WL 3656807 at *5. As explained above,

8 even a cursory review of Plaintiffs’ proposed putative class members identifies the

9 problem with Plaintiffs’ class. Here, numerous of the putative class members identified

10 by Plaintiffs can claim no injury, and Rule 23(b)(2) requires that the challenged practice

11 result in a readily ascertainable injury to every member. Were the Court to grant the class

12 that Plaintiffs seek, countless individuals could not receive relief for insufficient injuries.

13 For example, putative class member Jessica Colotl, can no longer claim an injury based

14 on the termination of her DACA because, following the issuance of a preliminary

15 injunction in her case, USCIS denied her DACA renewal request after notice and an

16 opportunity respond. Dkt. No. 39-13, Eiland Decl., at ¶ 7. Relatedly, at least two

17 proposed class members (unnamed by Plaintiffs) have not had their DACA terminated at

18 all. Id. at ¶ 15. Thus, Plaintiffs’ class definition encompasses individuals who were not

19 subject to the challenged policy, and therefore have not been injured. Colapinto, 2011

20 WL 913251 at *4.

21

Moreover, even under Plaintiffs’ incorrect interpretation of the DACA SOP,

22 automatic termination of DACA absent a criminal offense or criminal conviction does not

23 necessarily violate the SOP. And the named Plaintiffs cannot dispute that their treatment 24 – having their DACA terminated following arrest on criminal grounds that ICE has 25 deemed enforcement priorities – distinguishes Defendants’ treatment of their DACA 26 terminations from its treatment of other putative class members. Even if the Court found 27 that the automatic termination by NTA of Gil’s and De Souza’s DACA could be 28 unlawful, there remain putative class members for whom the DACA SOP provides for

16

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1 termination of DACA without notice, and even by NTA, following proscribed

2 procedures. See Dkt. No. 16-24 at 37-39; id. at 41-44. This distinction clarifies that

3 Plaintiffs cannot show that Defendants have acted consistently such that “a single

4 injunction [could] protect all class members’ . . . rights.” Saravia v. Sessions, No. 17-CV-

5 03615-VC, 2017 WL 5569838, at *23 (N.D. Cal. Nov. 20, 2017) (citing Dukes, 564 U.S.

6 at 360). This Court must deny Plaintiffs’ motion, therefore, because they have failed to

7 meet their burden under Rule 23(b)(2).

8 IV. This Court must deny the motion for class certification because Plaintiffs fail

9

to satisfy the requirements of Federal Rule of Civil Procedure 23(a).

A. The Proposed Class Lacks Numerosity.

10

To satisfy the numerosity requirement, Plaintiffs must show “that joinder of all

11

members is impracticable.’” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.

12

1998) (quoting Fed. R. Civ. P. 23(a)(1)). In their attempt to do so, Plaintiffs baldly state

13

that ‘[t]he proposed class readily satisfies the requirements of numerosity . . . and is

14

readily ascertainable.” Dkt. No. 39-1 at 9. They specify that the proposed class includes

15

“at least 17 DACA recipients who, in the last ten months alone, have had their DACA

16

terminated without notice or process” and add, with no support, that the proposed class

17

includes “likely many more individuals whose DACA already has been unlawfully

18 terminated, which is sufficient to satisfy numerosity.” Id. (citing Ark. Educ. Ass’n v.

19 Board Of Educ. of Portland, Ark. Sch. Dist., 446 F.2d 763, 765-66 (8th Cir. 1971); Hum

20 v. Dericks, 162 F.R.D. 628, 634 (D. Haw. 1995). However, at least seven of the 17

21 individuals Plaintiffs assert belong in the class – including all named Plaintiffs – are not

22 properly considered as members of the class Plaintiffs seek to certify. See Dkt. No. 39-13,

23 Eiland Decl., at ¶¶ 3-15. As discussed above, the named plaintiffs are disqualified from

24 representing the proposed group, while proposed class members Lopez and Ramirez were

25 issued NTAs because of conduct rendering each a “top enforcement priority.” See NTA

26 Memo, Dkt. No. 16-25 at 4-5. At least two more of the remaining proposed class

27 members have not had their DACA terminated, Dkt. No 39-13 at ¶ 15, and, absent an

28 actionable injury, they are also not appropriate class members. See Hodgers-Durgin v. de

17

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1 la Vina, 199 F.3d 1037, 1045 (9th Cir. 1999).

2

Of the remaining ten proposed class members, Plaintiffs indicate only that they are

3 aware that these individuals lost DACA despite having no “disqualifying criminal

4 convictions,” which, as explained above, is insufficient to determine whether each

5 individual received process or whether the DACA SOP provides for process prior to

6 termination in their cases. Rather, given the nature of the proposed class and the limited

7 facts provided by Plaintiffs, each claim would have to be assessed individually – which

8 counsels against class certification. Flores, 2010 WL 3656807 at *5.

9

Notably, Plaintiffs cite no Ninth Circuit cases to support their claim that 17 –

10 much less 10 – identified class members meet the numerosity requirement, which is

11 understandable, as, “in general, courts find the numerosity requirement satisfied when a

12 class includes at least 40 members.” Rannis v. Recchia, 380 Fed. Appx. 646, 651 (9th Cir.

13 2010); Harik v. Cal. Teachers Ass'n, 326 F.3d 1042, 1051 (9th Cir. 2003) (“The Supreme

14 Court has held fifteen is too small. The certification of those classes must be vacated on

15 numerosity grounds.”), citing Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330

16 (1980); Santos, 2014 WL 12558009 at *11 (“As a general rule, [however,] classes of 20

17 are too small.”). Instead, they assert that, because Plaintiffs’ proposed class also includes

18 individuals who will have their DACA terminated without notice or process, despite

19 continuing to be eligible, if Defendants’ policies and practices are not enjoined,” the

20 proposed class contains “[h]undreds of thousands of DACA recipients.” Dkt. No. 33-1 at

21 18. This figure is utter speculation, however, and the Court should give it no credit.

22

Moreover, contrary to Plaintiffs’ mistaken characterization, Defendants did not

23 “represent[] that . . . identifying ‘all automatic terminations of DACA would . . . involve 24 a manual review of hundreds of cases.’” Dkt. No. 39-1 at 8 (Plaintiffs’ emphasis). 25 Defendants’ actually stated that, in contrast to identifying 14 automatic DACA 26 terminations based on the issuance of an NTA by ICE or CBP over five years, 27 “[c]onducting a more fulsome review of all automatic terminations of DACA would be 28 burdensome, because it would involve a manual review of hundreds of cases.” Dkt. No.

18

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1 23-2 at ¶ 5 (emphasis added). Far from supporting Plaintiffs’ claim to a unified class of

2 hundreds of individuals suffering the same harm, the statement demonstrates various

3 avenues of automatic DACA termination for various reasons, very few of which on their

4 surface correspond to the proposed class definition. There is no way to confirm, without

5 individual analysis, whether an individual’s automatic DACA termination would fit the

6 proposed class, and, if so, whether that person would be entitled to the relief sought here.

7

Finally, although “the number of class members is the most important factor, the

8 ultimate question concerns the practicability of their joinder.” S. Gensler, Federal Rules

9 of Civil Procedure, Rules and Commentary at 540 (2017). Plaintiffs have proffered no

10 argument whatsoever to suggest that joinder of those affected by the Government’s

11 actions at issue in this case would not be practicable. Plaintiffs rely only on the “presence

12 of . . . future class members” to argue that joinder is “inherently impracticable,” Dkt. No.

13 33-1 at 19, however the various injuries that could be asserted by future members of

14 Plaintiffs’ proposed class – who may be impacted differently by Defendants’ DACA

15 termination policies and is a shrinking population given the wind down of the DACA

16 policy – only demonstrates that joinder would not be appropriate, not that joinder is

17 impracticable.

18

B. The Proposed Class Lacks Commonality.

19

As Plaintiffs note, commonality requires them to show that “there are questions of

20 law or fact common to the class” (Dkt. No. 33-1 at 19, citing Fed. R. Civ. P. 23(a)(2))

21 and some courts have construed the commonality requirement “permissively.” Id. (citing

22 Preap v. Johnson, 303 F.R.D. 566, 585 (N.D. Cal. 2014), aff’d, 831 F.3d 1193 (9th Cir.

23 2016) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)) (internal

24 quotation marks omitted). Other courts, of course, have construed it more “rigorous[ly].”

25 See, e.g., Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2013) (citation

26 omitted).

27

Here, however, Plaintiffs face two obstacles to meeting their burden to show

28 commonality, which forecloses a finding of commonality under a permissive or rigorous

19

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1 approach. First, the individualized analysis underlying each putative plaintiff’s claim

2 renders this action inapt for class consideration. It is not enough, as Plaintiffs proffer, to

3 allege that they “have suffered the same injury.” Dkt. No. 33-1 at 21. Rather, the 4 Supreme Court has clarified that:

5

[w]hat matters to class certification. . . is not the raising of common

6

‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the

7

litigation. Dissimilarities within the proposed class are what have the potential

8

to impede the generation of common answers.

9 Dukes, 564 U.S. at 350 (emphasis added). Plaintiffs cannot plausibly argue that the

10 Government is barred outright from terminating an individual’s DACA. See, e.g., Dkt.

11 No. 16-24 at 37-39. Moreover, as applied here, Plaintiffs cannot dispute that DHS may

12 determine before an individual’s DACA expires that prosecutorial discretion is no longer
13 warranted. Id. An individual whose conduct qualifies him or her as an “enforcement 14 priority” may no longer merit a favorable exercise of prosecutorial discretion through 15 continued receipt of deferred action under DACA, and such an individual would lack 16 standing to challenge the termination of their DACA. Arizona Dream Act Coal. v. 17 Brewer, 855 F.3d 957, 976 (9th Cir. 2017) (“the INA is replete with provisions that 18 confer prosecutorial discretion on the Executive to establish its own enforcement 19 priorities . . . . Third parties generally may not contest the exercise of this discretion.”) 20 (citing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Finally, Plaintiffs are 21 incorrect that DACA cannot be terminated without notice and an opportunity to respond 22 outside of having a “disqualifying” criminal conviction. See Dkt. No. 16-24 at 37-39; 23 Dkt. No. 16-23 at Q57. Determining whether an individual’s DACA terminated because 24 of the issuance of an NTA or because of some other discretionary decision would require 25 precisely the type of individualized analysis the Supreme Court recognized could prevent 26 a finding of commonality. Dukes, 564 U.S. at 350. Indeed, Plaintiffs’ tortured effort to 27 develop “sub-classes” to avoid the differing circumstances presented by those DACA

28

20

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1 recipients who engage in criminal activity or who are enforcement priorities only

2 underscores the lack of commonality here.

3

Further, the SOP describes the procedures USCIS should follow for USCIS to

4 terminate DACA, but it does not void the effects of an NTA issued by ICE or CBP agents

5 in terminating DACA. See, e.g., Dkt. No. 16-13 at 3 (directing ICE and CBP agents to

6 “exercise their discretion, on an individual basis” to determine whether to issue an NTA

7 or defer action, without reference to whether an individual already has deferred action).

8 Defendants, then, have never limited the discretion of ICE or CBP agents to issue an

9 NTA to an individual regardless of whether the individual has deferred action – of which

10 DACA is only one form. The SOP, therefore, does not relate to those individuals, but

11 only to those putative class members who come to the attention of USCIS before the

12 issuance of an NTA so that USCIS could act using the steps the SOP describes.

13

Additionally, even if the Court overlooked Plaintiffs’ carve out of enforcement

14 priority terminations without notice and an opportunity to respond, like named Plaintiffs

15 Gil and De Souza, they would still lack commonality with any individual whose DACA

16 was terminated without advance notice and an opportunity to respond but was not found

17 to be an enforcement priority (under Plaintiffs’ mistaken application of that term). Other

18 putative class members may be in removal proceedings as a result of termination of their

19 DACA by NTA issuance, and some may even have an administratively final order of

20 removal or have already been removed. The status of these removal proceedings

21 demonstrates further commonality problems for the proposed class because some

22 individuals may be eligible to seek relief from removal in the course of their removal

23 proceedings, like cancellation of removal, that could result in a benefit that removes the

24 need for DACA, and those removed may no longer be eligible to have their DACA and

25 employment authorization reinstated.

26

These “dissimilarities,” then, “impede the generation of common answers,” such

27 that class certification is not appropriate. See Dukes, 564 U.S. at 350. Because Plaintiffs

28 cannot meet their burden to show they have met the commonality requirement of Fed. R.

21

Case 5:17-cv-02048-PSG-SHK Document 53 Filed 02/01/18 Page 29 of 33 Page ID #:1638

1 Civ. P. 23(a), the Court must deny their motion to certify a class. See Preap v. Johnson,

2 303 F.R.D. 566, 584 (N.D. Cal. 2014), aff’d, 831 F.3d 1193 (9th Cir. 2016) (citing Dukes,

3 564 U.S. at 350; Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997)).

4

C. The Proposed Class Lacks Typicality.

5

To establish typicality, Plaintiffs must show “whether other members have the

6 same or similar injury, whether the action is based on conduct which is not unique to the

7 named plaintiffs, and whether other class members have been injured by the same course

8 of conduct.” Hanon v. Dataproducts, 976 F.2d 497, 508 (9th Cir. 1992) (quoting

9 Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985)). The typicality requirement is

10 not met if the proposed class representatives are subject to unique defenses. Id.

11

Here, the Court cannot find typicality. An order requiring the Defendants to

12 provide the notice that Plaintiffs seek cannot afford many of the putative plaintiffs – as 13 well as the named Plaintiffs - with any relief whatsoever.9 As explained above, the

14 DACA SOP provides for termination of DACA without advance notice and an

15 opportunity to respond in some circumstances, as well as automatically through NTA

16 issuance, but the circumstances by which DACA is terminated without advance notice

17 and an opportunity to respond may differ. For example, Defendants maintain that 18 individuals like Plaintiffs Gil Robles and De Souza Moreira are subject to automatic 19 termination of DACA by NTA due to a determination that each was an enforcement 20 priority. Even if the Court ignored that Plaintiffs have carved out enforcement priority 21 cases from their class definition, the SOP nonetheless supports a different path for 22 automatic termination of DACA by NTA issuance for other putative class members 23 following referral by USCIS based on EPS or USCIS’s enforcement priority finding. Dkt. 24 No. 16-24 at 38. Injunctive relief ordering Defendants to provide additional process to

25 9 Defendants’ typicality argument essentially mirrors its argument that Plaintiffs have failed to meet their

26 commonality requirement. The “commonality and typicality requirements of Rule 23(a) tend to merge.”
Gen. Tel. Co., 457 U.S. at 157 n.13. “Both serve as guideposts for determining whether under the particular

27 circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and

28

the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Id.

22

Case 5:17-cv-02048-PSG-SHK Document 53 Filed 02/01/18 Page 30 of 33 Page ID #:1639

1 those individuals, therefore, would contradict the SOP, involve a different issue than the

2 claims raised by Plaintiffs Gil and De Souza, and demand a different result. See Hanon,

3 976 F.2d at 508 (“class certification is inappropriate where a putative class representative

4 is subject to unique defenses which threaten to become the focus of the litigation.”).

5

Moreover, the unique defenses required to respond to the various procedures by

6 which DACA may be terminated without notice counsel against class certification. See,

7 e.g., Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th Cir. 2011) (“The test of

8 typicality ‘is whether other members have the same or similar injury, whether the action

9 is based on conduct which is not unique to the named plaintiffs, and whether other class

10 members have been injured by the same course of conduct.”) (marks and citation

11 omitted); Arnott v. U.S. Citizenship & Immigration Servs., 290 F.R.D. 579, 587 (C.D.

12 Cal. 2012) (the injunctive and declaratory relief sought must “resolve an issue that is

13 central to the validity of each one of the [class members’] claims.”) (citing Dukes, 564

14 U.S. at 350). For example, unlike Defendants’ defense of DACA termination by NTA

15 issued by ICE or CBP, the defense of an EPS or enforcement priority termination would

16 be different both with regard to the APA, because of the specific guidance provided in the

17 DACA SOP and the record supporting USCIS’s compliance with that SOP, and, under

18 Plaintiffs’ incorrect due process theory, with regard to the Constitution, because of the

19 SOP’s impact on any expectations that could give rise to a Constitutional claim and on

20 the Matthews analysis.

21

Accordingly, where putative class members cannot allege the same injuries by the

22 same course of conduct, and where the defenses to the various potential sources of the

23 putative class’s injuries are unique, the Court should find Plaintiffs’ proposed class lacks

24 typicality and deny Plaintiffs’ motion for class certification.

25

D. Plaintiffs are not Adequate Representatives.

26

The Plaintiffs are not adequate class representatives because their interests may

27 conflict with the interests of other putative class members. The adequacy requirement

28 serves to protect the due process rights of absent class members who will be bound by the

23

Case 5:17-cv-02048-PSG-SHK Document 53 Filed 02/01/18 Page 31 of 33 Page ID #:1640

1 judgment. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). A

2 determination of legal adequacy is based on two inquiries: “(1) do the named plaintiffs

3 and their counsel have any conflicts of interest with other class members, and (2) will the

4 named plaintiffs and their counsel prosecute the action vigorously on behalf of the

5 class?” Id. Indeed, “uncovering conflicts of interest between the named parties and the

6 class they seek to represent is a critical purpose of the adequacy inquiry.” Rodriguez v.

7 West Publ’g Corp., 563 F.3d 948, 959 (9th Cir. 2009). This notion is compounded by the

8 nature of a class certified pursuant to Rule 23(b)(2), the members of which do not have a

9 right to opt out of their class. See Molski v. Gleich, 318 F.3d 937, 947 (9th Cir. 2003)

10 (citing Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 121 (1994) (per curiam)).

11 Additionally, where a class representative is not entitled to the relief sought, adequacy of

12 representation is not satisfied. See Hodgers-Durgin, 199 F.3d at 1045 (“Unless the named

13 plaintiffs are themselves entitled to seek injunctive relief, they may not represent a class

14 seeking that relief.”).

15

First, not even the three named Plaintiffs are properly part of the class that

16 Plaintiffs seeks to certify. Plaintiff Arreola’s DACA and EAD were reinstated pursuant to

17 Court order and he has been provided notice and opportunity to respond to his intended

18 termination, and Plaintiffs Gil and De Souza were issued NTAs by ICE after being found

19 to be enforcement priorities due to criminal conduct, making them part of the sub-class

20 that Plaintiffs specifically carve out of this class certification motion. Additionally,

21 because the claims each of the named Plaintiffs is subject to dismissal, as discussed in

22 Defendants’ accompanying opposition to Plaintiffs’ motion for preliminary injunction, 23 and to be addressed in Defendants’ forthcoming motion to dismiss, class certification on 24 the basis of their claims is also inappropriate at this time. Lierboe v. State Farm Mut.

25 Auto. Ins. Co., 350 F.3d 1018, 1023 (9th Cir. 2003).

26

The Court should also deny Plaintiffs’ motion for class certification due to the

27 divergent interests between Plaintiffs and the proposed class members. In fact, at least

28 two of the individuals Plaintiffs identify as putative class members, Ramirez Medina and

24

Case 5:17-cv-02048-PSG-SHK Document 53 Filed 02/01/18 Page 32 of 33 Page ID #:1641

1 Colotl, have pursued their own lawsuits that are well ahead of this action. In fact, the

2 advanced stage of her proceeding combined with the fact that Colotl is represented by the

3 same counsel in this proceeding also raises the question of conflicts of interests for

4 proposed class counsel. See Colotl v. Kelly, No. 1:17-CV-1670-MHC (N.D. Ga.); Lerwill

5 v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978). Finally, potentially

6 many other putative class members, even with ongoing removal proceedings, may be able

7 to reapply for DACA and could receive additional process, which may prove more

8 expedient than waiting for the outcome of this litigation, which may ultimately prove

9 unsuccessful to the class as a whole. Still others may have obtained dismissal of the NTA 10 that resulted in the automatic termination of their DACA and then reapplied for deferred

11 action, and potentially many others, even with removal proceedings ongoing, may be able

12 to request DACA again pursuant to the injunction in Regents, while the injunction

13 remains in place, and could receive additional process, which may prove more expedient

14 than waiting for the outcome of this litigation.

15

CONCLUSION

16

Plaintiffs have proffered a class that is overbroad under Federal Rule 23(b)(2) and

17 that fails to meet any of the requirements of Rule 23(a). Rather, Plaintiffs cannot show

18 that Defendants have failed or refused to act in a way that affects the class as a whole, or

19 that a single injunction could benefit every member of the putative class; and the named

20 plaintiffs are situated so dramatically differently – whether because they do not face the

21 same prospect of imminent harm or because they fall into an “enforcement priority” –

22 from other members of the putative class that they cannot adequately represent the

23 interests of those individuals. Moreover, Plaintiffs would require the Court to engage in 24 an individualized inquiry into each claim to determine the rationale behind each putative 25 plaintiff’s DACA termination. Plaintiffs are therefore not entitled to proceed as a class, 26 and the Court must deny their motion.

27

28

25

Case 5:17-cv-02048-PSG-SHK Document 53 Filed 02/01/18 Page 33 of 33 Page ID #:1642

1 DATED: February 1, 2018 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully Submitted,
CHAD A. READLER Acting Assistant Attorney General
WILLIAM C. PEACHEY Director
COLIN A. KISOR Deputy Director
JEFFREY S. ROBINS Assistant Director
/s/ James J. Walker JAMES J. WALKER Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section Washington, D.C. 20044 Tel.: (202) 532-4468 Fax: (202) 305-7000 Email: james.walker3@usdoj.gov
Counsel for Defendants

26

 
 Case 5:17-cv-02048-PSG-SHK Document 54 Filed 02/01/18 Page 1 of 35 Page ID #:1735

1 CHAD A. READLER

2 Assistant Attorney General

3

Civil Division WILLIAM C. PEACHEY

4 Director

5 JEFFREY S. ROBINS Assistant Director
6 JAMES J. WALKER

7 Trial Attorney

United States Department of Justice 8 Civil Division

9 Office of Immigration Litigation

10 District Court Section Washington, D.C. 20044
11 Tel.: (202) 532-4468

12 Fax: (202) 305-7000 Email: james.walker3@usdoj.gov
13

14 Counsel for Defendants

15

UNITED STATES DISTRICT COURT

16

FOR THE CENTRAL DISTRICT OF CALIFORNIA

17
INLAND EMPIRE – IMMIGRANT ) 18 YOUTH COLLECTIVE, et al., on )

19 behalf of themselves and others

)

20 similarly situated,

)

)

21 Plaintiffs,

)

22 v.

)

)

23 KIRSTJEN NIELSEN, Secretary, U.S. )

24 Department of Homeland Security, et )

25 al.,

) )

26 Defendants.

)

Case No. 5:17-cv-02048-PSG-SHK
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION [DKT. 40].
DATE: February 26, 2018 TIME: 1:30 p.m. JUDGE: Philip S. Gutierrez Courtroom: 6A

27

28

Case 5:17-cv-02048-PSG-SHK Document 54 Filed 02/01/18 Page 2 of 35 Page ID #:1736

1

TABLE OF CONTENTS

2
3 INTRODUCTION ............................................................................................................ 1

4 BACKGROUND .............................................................................................................. 1

5
SUMMARY OF THE ARGUMENT ............................................................................... 3
6

7 ARGUMENT .................................................................................................................... 4

8 I.
9
10 II.
11
12 III.

Standard of Review................................................................................................. 4
To the extent the Court does not certify a class, a preliminary injunction providing class-wide relief is inappropriate ........................................................... 5
Plaintiffs are not likely to succeed on the merits.................................................... 5

13

A. DHS’s discretion to initiate removal proceedings and their effect on the

14

termination of Plaintiffs’ DACA is not reviewable ..................................... 6

15
i. The INA Limits Review of Plaintiffs’ Claims, which Arise from

16

DHS’s Decision to Commence Plaintiffs’ Removal

17

Proceedings. ....................................................................................... 7

18

ii. Judicial Review of DACA termination based on NTA issuance is

19

also barred under 5 U.S.C. § 701(a)(2)............................................ 10

20
iii. Plaintiffs cannot state a Constitutional claim because the

21

termination of DACA does not implicate a Constitutional

22

interest. ............................................................................................. 13

23

B. Nothing in the Constitution or APA Establishes a Right that Constrains

24

DHS’s Exercise of Discretion .................................................................... 17

25

i. Agency guidance places no limit on ICE or CBP’s authority to

26

act against identified enforcement priorities by issuing an NTA

27

that terminates DACA...................................................................... 18

28

5:17-cv-2048-PSG-SHK
i

Case 5:17-cv-02048-PSG-SHK Document 54 Filed 02/01/18 Page 3 of 35 Page ID #:1737

1

ii. DACA termination by NTA is provided for in the DACA SOP

2

and policy documents, and DHS policy and regulations ................. 18

3

iii. There is no requirement that an NTA charge more than unlawful

4

presence, nor is it arbitrary to rely on the decision to issue an

5

NTA.................................................................................................. 20

6

iv. DACA termination by NTA is not a reversal of agency

7

policy................................................................................................ 22

8

C. The Remaining Preliminary Injunction Factors Favor Defendants ........... 24

9

10 CONCLUSION ............................................................................................................... 25

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5:17-cv-2048-PSG-SHK
ii

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1

TABLE OF AUTHORITIES

2

3

4 Acura of Bellevue v. Reich, 5 90 F.3d 1403 (9th Cir. 1996) ....................................................................................... 10

6 Addy v. Sessions, 7 696 F. App’x 801 (9th Cir. 2017)................................................................................ 21

8 Aguilar v. ICE , 9 510 F.3d 10 (1st Cir. 2007) ......................................................................................... 10

10
Alcaraz v. INS, 11 384 F.3d 1150 (9th Cir. 2004) ....................................................................................... 8
12
Arizona v. United States, 13 567 U.S. 387 (2012) .................................................................................................... 20
14
15 Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015)....................................................................................... 11
16
17 Bd. of Regents of State Colleges v. Roth, 408 U.S. 564 (1972) .................................................................................................... 17
18

19 Blantz v. Cal. Dep’t of Corr. & Rehab., 20 727 F.3d 917 (9th Cir. 2013) ....................................................................................... 14

21 Botezatu v. INS, 22 195 F.3d 311 (7th Cir. 1999) ......................................................................................... 8

23 Carranza, v. INS, 24 277 F.3d 65 (1st Cir. 2002) ......................................................................................... 12

25

26 Chemehuevi Indian Tribe v. Brown, 27 2017 WL 2971864 (C.D. Cal. Mar. 30, 2017) ............................................................ 23

28

5:17-cv-2048-PSG-SHK
iii

Case 5:17-cv-02048-PSG-SHK Document 54 Filed 02/01/18 Page 5 of 35 Page ID #:1739

1 Earth Island Inst. v. Carlton, 2 626 F.3d 462 (9th Cir. 2010) ......................................................................................... 5

3 FCC v. Fox Television Stations, Inc., 4 556 U.S. 502 (2009) .................................................................................................... 22

5
Garcia v. Google, Inc., 6 786 F.3d 733 (9th Cir. 2015) ................................................................................... 5, 10
7
Garcia v. Holder, 8 320 F. App’x 288 (9th Cir. April 9, 2009) .................................................................. 14
9
10 Gerhart v. Lake Cnty., Mont., 637 F.3d 1013 (9th Cir. 2011) ..................................................................................... 14
11
12 Gupta v. Holder, 2011 WL 13174873 (M.D. Fla. Oct. 31, 2011).................................................... passim
13

14 Heckler v. Chaney, 15 470 U.S. 821 (1985) ............................................................................................. passim

16 Hernandez v. Gonzales, 17 221 F. App’x 588 (9th Cir. 2007)................................................................................ 21

18 Hodgers-Durgin v. de la Vina, 19 199 F.3d 1037 (9th Cir. 1999) ....................................................................................... 5

20
Hoffman Plastic Compounds, Inc. v. NLRB, 21 535 U.S. 137 (2002) .................................................................................................... 16

22
ICC v. Bhd. of Locomotive Eng’rs, 23 482 U.S. 270 (1987) .................................................................................................... 10

24

25

J.E.F.M. v. Lynch, 837 F.3d 1035 (9th Cir. 2016) ..................................................................................... 10

26

27 Judulang v. Holder, 565 U.S. 42 (2011) ............................................................................................... passim
28

5:17-cv-2048-PSG-SHK
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1
2 Landon v. Plasencia, 3 459 U.S. 21 (1982) ................................................................................................ 14, 15
4 Leon v. Reno, 5 1998 WL 289321 (N.D. Cal. Mar. 26, 1998) .............................................................. 17
6 Lincoln v. Vigil, 7 508 U.S. 182 (1993) .................................................................................................... 10
8 Madu v. U.S. Attorney Gen., 9 470 F.3d 1362 (11th Cir. 2006) ................................................................................... 13
10
Martinez v. Napolitano, 11 704 F.3d 620 (9th Cir. 2012) ....................................................................................... 10
12
Mathews v. Eldridge, 13 424 U.S. 319 (1976) .................................................................................................... 14
14
15 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ......................................................................................... 5
16
17 Mendez-Garcia v. Lynch, 840 F.3d 655 (9th Cir. 2016) ....................................................................................... 14
18
19 Monsanto Co. v. Geertson Seed Farms, 20 561 U.S. 139 (2010) ...................................................................................................... 4
21 Munoz v. Ashcroft, 22 339 F.3d 950 (9th Cir. 2003) ....................................................................................... 16
23 Neri v. Gonzales, 24 229 F. App'x 508 (9th Cir. 2007) ............................................................................... 15
25 Nken v. Holder, 26 556 U.S. 418 (2009) .................................................................................................... 24
27
28
5:17-cv-2048-PSG-SHK
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1 Paige v. California, 2 102 F.3d 1035 (9th Cir. 1996) ....................................................................................... 5

3 Pasquini v. Morris, 4 700 F.2d 658 (11th Cir. 1983) ..................................................................................... 12

5
Perales v. Casillas, 6 903 F.2d 1043 (5th Cir. 1990) ............................................................................... 12, 15
7
Pilapil v. INS, 8 424 F.2d 6 (10th Cir. 1970) ................................................................................... 14, 15
9
10 Regents of Univ. of California v. United States Dep’t of Homeland Sec., No. C 17-05211 WHA, 2018 WL 339144, at *18 (N.D. Cal. Jan. 9, 2018) .................. 14
11
12 Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ............................................................................................. passim
13

14 Salviejo–Fernandez v. Gonzales, 15 455 F.3d 1063 (9th Cir. 2006) ..................................................................................... 21

16 Senate of State of Cal. v. Mosbacher, 17 968 F.2d 974 (9th Cir. 1992) ......................................................................................... 4

18 Sierra Club v. Bureau of Land Management, 19 786 F.3d 1219 (9th Cir. 2015) ..................................................................................... 23

20
Silva v. Smith, 21 773 F.2d 1021 (9th Cir. 1985) ..................................................................................... 10

22
Silva v. United States, 23 866 F.3d 938 (8th Cir. 2017) ......................................................................................... 7

24

25

Singh v. Bardini, 2010 WL 308807 (N.D. Cal. Jan. 19, 2010) ............................................................... 12

26

27 Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007) ......................................................................................... 9
28

5:17-cv-2048-PSG-SHK
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Case 5:17-cv-02048-PSG-SHK Document 54 Filed 02/01/18 Page 8 of 35 Page ID #:1742
1
2 Singh v. Vasquez, 3 2009 WL 3219266 (D. Ariz. Sept. 30, 2009), aff'd, 448 F. App'x 776 (9th Cir. 2011)12
4 Sissoko v. Rocha, 5 509 F.3d 947 (9th Cir. 2007) ......................................................................................... 7
6 Skidmore v. Swift & Co., 7 323 U.S. 134 (1944) .................................................................................................... 23
8 Soto v. Lynch, 9 824 F.3d 822 (9th Cir. 2016) ....................................................................................... 14
10
Texas v. United States, 11 809 F.3d 134 (5th Cir. 2015) ....................................................................................... 17
12
Torres-Aguilar v. INS, 13 246 F.3d 1267 (9th Cir. 2001) ....................................................................................... 8
14
15 Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) ................................................................................................ 7, 15
16
17 United States v. Armstrong, 517 U.S. 456 (1996) .................................................................................................... 11
18
19 United States v. Hovsepian, 20 359 F.3d 1144 (9th Cir. 2004) ..................................................................................... 13
21 United States v. Lee, 22 274 F.3d 485 (8th Cir. 2001) ....................................................................................... 12
23 Univ. of Texas v. Camenisch, 24 451 U.S. 390 (1981) ...................................................................................................... 4 25 Vasquez v. Aviles, 26 639 F. App’x 898 (3d Cir. 2016) ................................................................................. 19
27
28
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Case 5:17-cv-02048-PSG-SHK Document 54 Filed 02/01/18 Page 9 of 35 Page ID #:1743
1 Vilchiz-Soto v. Holder, 2 688 F.3d 642 (9th Cir. 2012) ......................................................................................... 8 3 Wayte v. United States, 4 470 U.S. 598 (1985) .................................................................................................... 11
5
Winter v. Nat. Res. Def. Council, Inc., 6 555 U.S. 20 (2008) ........................................................................................................ 5
7
Wong v. United States, 8 373 F.3d 952 (9th Cir. 2004) ......................................................................................... 7
9
10 Zepeda v. INS, 753 F.2d 719 (9th Cir. 1983) ......................................................................................... 5
11
12
FEDERAL STATUTES
13
14 5 U.S.C. § 701(a)(1).......................................................................................................... 6
15
5 U.S.C. § 701(a)(2)........................................................................................................ 10
16
17 5 U.S.C. § 702 ................................................................................................................... 6
18 5 U.S.C. § 702 ................................................................................................................... 6
19
20 5 U.S.C. § 706(2)(A)......................................................................................................... 6 21 8 U.S.C. § 1182 ............................................................................................................... 22
22
8 U.S.C. § 1229(a) ............................................................................................................ 7
23
24 8 U.S.C. § 1252 ................................................................................................................. 3 25 8 U.S.C. § 1252(a)(5)........................................................................................................ 9
26
27 8 U.S.C. § 1252(b)(9)........................................................................................................ 9
28
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1 8 U.S.C. § 1252(g) .................................................................................................... 6, 7, 8
2
3 8 U.S.C. § 1611(b)(2)-(3) ............................................................................................... 17

4

5

FEDERAL REGULATIONS

6

7 8 C.F.R. § 274a.12(c) ........................................................................................................ 8

8 8 C.F.R. § 239.1(a) .......................................................................................................... 18
9
10 8 C.F.R. § 1003.13 .......................................................................................................... 16

11 8 C.F.R. § 1003.14 .......................................................................................................... 16
12

13

14

FEDERAL RULES FOR CIVIL PROCEDURE

15
Fed. R. Civ. P. 23(a).......................................................................................................... 1
16
17 Fed. R. Civ. P. 23(b) ......................................................................................................... 1

18

19

20

21

22

23

24

25

26

27

28

5:17-cv-2048-PSG-SHK
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1
INTRODUCTION
2
Contemporaneous to the filing of their amended complaint and motion for
3
certification of a mandatory, nationwide class, see Dkt. Nos. 32, 39, Plaintiffs’ seek a
4
class-wide preliminary injunction for their proposed class of individuals who have had, or
5
who will have, their Deferred Action for Childhood Arrivals (“DACA”) and employment
6
authorization document (“EAD”) terminated without notice or an opportunity to respond.
7
Dkt. No. 40-1, Memorandum of Law in Support of Plaintiffs’ Motion for a Classwide
8
Preliminary Injunction (“PI Motion”). In a separate filing, Defendants oppose the
9
proposed class for lack of jurisdiction and for failure of the proposed class to meet the
10
requirements of Federal Rules of Civil Procedure 23(a) and (b). See Dkt. No. 53.
11
The Court should deny Plaintiff’s motion for injunctive relief because the class
12
should not be certified, and even if it is, Plaintiffs’ fail to establish that they can succeed
13
on the merits of their claim. This Court lacks jurisdiction to review actions that are
14
predicates to commencing removal proceedings, Plaintiffs cannot state a Constitutional
15
claim, and Defendants have fully complied with their internal policies, which Plaintiffs
16
misrepresent and misconstrue. In sum, Plaintiffs cannot establish that an NTA based on
17
unlawful presence is insufficient to terminate DACA without advanced notice,
18
particularly where the decision to issue the NTA is based on additional findings that the
19
DACA recipient is an EPS concern, or otherwise an enforcement priority. Additionally,
20
the balance of the equities weigh against Plaintiffs.
21
BACKGROUND
22
When U.S. Immigration and Customs Enforcement (“ICE”) or U.S. Customs and
23
Border Protection (“CBP”) issues a notice to appear (“NTA”) to a DACA grantee,
24
regardless of the reason selected, there is no requirement in the DACA SOP or elsewhere
25
for USCIS to make a separate decision to terminate the individual’s DACA or EAD.1
26
27 1 Defendants incorporate by reference the explanation of the DACA policy, the EAD application process for individuals with no lawful status, and the process by which removal proceedings are initiated through
28
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Rather, the decision to issue an NTA to an individual with DACA is the decision to no
2
longer defer action against that individual, and the charge selected for the NTA does not
3
have to reflect DHS’s full reasoning. Nothing restricts DHS’s authority to issue an NTA
4
because someone was previously found to warrant a favorable exercise of prosecutorial
5
discretion in the form of deferred action, nor is a criminal conviction or criminal charge
6
necessary to justify termination of DACA. While the Napolitano Memo and DACA SOP
7
identify and explain threshold criteria for DACA consideration, nothing limits DHS’s
8
discretion to grant, deny, or terminate DACA on a case by case basis.2 Nor is the DACA
9
SOP the only authority establishing the process by which deferred action terminates.
10
On September 20, 2017, Plaintiff Gil-Robles was arrested and charged with two
11
felonies, including Assault in the First Degree and transferring a firearm without a
12
background check to a prohibited person. See Exhibits A, Decl. of Jeremy Anderson,
13
Dkt. No. 53-1 at 4-7; A.1, Gil-Robles Notice to Appear (“NTA”) and Form I-213, dated
14
Oct. 23, 2017, Dkt. No. 53-1 at 9-15. On November 6, 2017, ICE issued Gil-Robles an
15
NTA charging him with unlawful presence. Id. On November 14, 2017, USCIS issued
16
Plaintiff a Notice of Action, stating his DACA and EAD terminated automatically with
17
the NTA. See Pl. Amended Complaint, Dkt. No. 32 at ¶ 109.
18
On November 3, 2017, Plaintiff De Souza was arrested for Forgery in the First
19
Degree, a felony.3 See Exhibits B, Decl. of Derrick A. Eleazer, Dkt. 53-1 at 17-18; B.1,
20
De Souza-Moreira NTA and Form I-213, dated Nov. 5, 2017, Dkt. No. 53-1 at 20-24.
21
22 NTA issuance, provided in Defendants’ Opposition to Plaintiffs Motion for Class Certification, Section
23 II.A and B. Dkt. No. 53 at 7-13.
24 2 In fact, USCIS may still grant DACA to an individual with a disqualifying criminal conviction, See Dkt. No. 53-1 at 70; or deny DACA to an individual with no criminal history. Id. at 38 (“Individuals may be
25 considered for DACA upon showing that they meet the prescribed guidelines . . .”); id. at 78 (“USCIS 26 lacks the authority to consider requests from individuals who are in immigration detention under the
custody of ICE at the time of filing”). 27 3 Plaintiffs incorrectly assert that Plaintiff De Souza was arrested for “possession of an altered 28 identification document—a misdemeanor.” Dkt. No. 40-1 at 12.
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De Souza admitted to police that he had altered the expiration date on his driver’s
2
license due to it expiring. Id. On November 5, 2017, ICE issued De Souza an NTA
3
charging unlawful presence, and on November 10, 2017, USCIS issued a Notice of
4
Action informing De Souza his DACA and EAD terminated automatically with the
5
NTA. Id.
6
SUMMARY OF THE ARGUMENT
7
Regardless of how the arguments are framed, Plaintiffs directly challenge DHS’s
8
authority to initiate removal proceedings, which this Court should dismiss for lack of
9
subject matter jurisdiction pursuant to the Administrative Procedure Act (“APA”) and 8
10
U.S.C. § 1252. A claim to restore deferred action that terminated by the initiation of
11
removal proceedings by definition challenges the agency’s determination to initiate
12
removal proceedings. Any interpretation of these statutes that permits district court
13
challenges to actions inextricably linked to the initiation of removal proceedings would
14
run counter to Congress’s intent, to Supreme Court case law, and to the law of this
15
Circuit. Plaintiffs’ due process challenges must also fail, because they cannot show a
16
protected interest in DACA or EAD. In fact, to reinstate individual EADs would violate
17
DHS regulations that operate independent of, and superior to, DACA policy. Since ICE
18
already issued NTA’s with the knowledge of each Plaintiffs’ DACA, and based on DHS’s
19
determinations that Plaintiffs’ criminal conduct rendered them enforcement priorities,
20
there is no reason to expect a different result on a second review.
21
Were the Court to find it has jurisdiction over these challenges, it should deny
22
Plaintiffs’ motion for failing to meet the requirements necessary to grant a preliminary
23
injunction. Plaintiffs fail to show a likelihood of success on the merits of their claims, or
24
an irreparable harm that this Court can relieve. First, contrary to Plaintiffs’ arguments,
25
DACA policy guides ICE and CBP to continue exercising their prosecutorial discretion
26
on a case-by-case basis, and the DACA SOP explicitly recognizes, in multiple places, the
27
effect of NTA issuance on DACA termination. When an NTA issues, DACA terminates
28
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1
with no input from USCIS. Plaintiffs point to nothing that supports their charge that
2
USCIS must do more, nor have they overcome the presumption that an NTA, even one
3
charging only unlawful presence, is properly issued.
4
Though it may be a harsh reality, neither Congress nor the Constitution has
5
provided these Plaintiffs a protected interest in remaining or working in the United
6
States.4 There is nothing remarkable about these cases: Plaintiffs were apprehended in the
7
commission of various criminal actions, which DHS law enforcement officers determined
8
warranted their removal, regardless of any prior eligibility for deferred action. Any
9
claims arising out of those decisions and actions must be brought in immigration court,
10
and then in a petition for review in a court of appeals if necessary. For these reasons, the
11
Court should deny Plaintiffs’ motion for preliminary injunction.
12
ARGUMENT
13
I. Standard of Review
14
“The purpose of a preliminary injunction is merely to preserve the relative
15
positions of the parties until a trial on the merits can be held.” Univ. of Texas v.
16
Camenisch, 451 U.S. 390, 395 (1981). As a result, it is generally inappropriate at the
17
“preliminary-injunction stage to give a final judgment on the merits.” Id.; see Senate of
18
State of Cal. v. Mosbacher, 968 F.2d 974, 978 (9th Cir. 1992) (holding that “judgment on
19
the merits in the guise of preliminary relief is a highly inappropriate result”).
20
An injunction is “a drastic and extraordinary remedy, which should not be granted
21
as a matter of course.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 142 (2010).
22
A plaintiff seeking a preliminary injunction “must establish” that: (1) it is likely to
23
succeed on the merits of its claims; (2) it is likely to suffer irreparable harm absent
24
preliminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is in
25

26 4 Nor is the Government actively pursuing DACA recipients for wholesale termination. Plaintiffs and

27

nearly every putative class member they describe had their DACA terminated by DHS because of their involvement in criminal activity, a consequence each was informed of since the inception of DACA

28 policy.

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1

the public interest. Winter, 555 U.S. at 20. Preliminary injunctive relief is an

2

extraordinary remedy never awarded as of right, id., and the party seeking such relief

3

bears the burden of establishing the prerequisites to this extraordinary remedy. Earth

4

Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010). In a mandatory injunction

5

request such as this, where Plaintiffs seek to order the Government to act, a moving party

6

“must establish that the law and facts clearly favor [their] position, not simply that [they]

7

[are] likely to succeed.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015).

8

II. To the extent the Court does not certify a class, a preliminary injunction

9

providing class-wide relief is inappropriate.

10

Where an injunction provides class-wide relief, “effective review of the injunction

11 requires review of the class certification.” Paige v. California, 102 F.3d 1035, 1039 (9th

12 Cir. 1996). Melendres v. Arpaio, 695 F.3d 990, 999 (9th Cir. 2012); see also Zepeda v.

13 INS, 753 F.2d 719, 728 n.1 (9th Cir. 1983). Because class certification is inappropriate

14 here, see Dkt. No. 53, this Court should find granting Plaintiffs’ class-wide relief is also

15 inappropriate.5 Relatedly, even if a class is certified, “system-wide injunctive relief is not

16 available based on alleged injuries to unnamed members of a proposed class.” Hodgers-

17 Durgin v. de la Vina, 199 F.3d 1037, 1045 (9th Cir. 1999) (citations omitted).

18 III. Plaintiffs are not likely to succeed on the merits.

19

Plaintiffs are not likely, and indeed, cannot succeed on the merits of their claims because

20 the Court lacks jurisdiction over Plaintiff’s APA and Constitutional claims, and Plaintiff’s

21 arguments fail on the merits. First, this Court lacks jurisdiction to review any putative class

22 member’s challenge to DHS’s discretionary determination to issue an NTA which had the

23 result of automatically terminating DACA and EADs. The putative class cannot state a

24 claim because there is no protected entitlement to DACA or employment authorization.

25

26 5 Defendants maintain that no class should be certified. In part, DHS found all three named plaintiffs to

27

be enforcement priorities, which disqualifies them from joining the putative class, and certainly from representing class members. Dkt. No. 39-1 at 9 n.2 (“This motion does not address the proposed

28 ‘Enforcement Priority’ Class pled in Plaintiffs’ Amended Complaint, filed this same date.”).

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Finally, nothing in the APA or constitutional jurisprudence, nor Defendants’ own policies

2
and guidance, supports a right to review or constrain DHS’s exercise of discretion or to

3
grant Plaintiffs procedural rights other than those available through removal proceedings.

4

A. DHS’s discretion to initiate removal proceedings and their effect on the

5

termination of Plaintiffs’ DACA is not reviewable.

6

The APA permits persons aggrieved by final agency action to obtain judicial review in

7 federal court where “there is no other adequate remedy in a court.” See 5 U.S.C. §§ 702, 704. A

8 reviewing court shall set aside agency action found to be “arbitrary, capricious, an abuse of

9 discretion, or otherwise not in accordance with law,” or “without observance of procedure

10 required by law.” 5 U.S.C. § 706(2)(A), (D). However, the APA precludes judicial review of

11 agency decisions when “statutes preclude judicial review,” or when the decision is “committed

12 to agency discretion by law.” 5 U.S.C. § 701(a)(1), (a)(2); see Heckler v. Chaney, 470 U.S. 821,

13 830 (1985) (“even where Congress has not affirmatively precluded review, review is not to be

14 had if the statute is drawn so that a court would have no meaningful standard against which to

15 judge the agency's exercise of discretion.”).

16

Congress enacted 8 U.S.C. § 1252(g) to specifically preclude judicial review of the

17 discretionary decision to initiate removal proceedings, and the actions and decisions arising out

18 of such decisions. See Reno v. Am.-Arab Anti-Discrimination Comm. (“AADC”), 525 U.S. 471,

19 483-85 (1999) (finding section 1252(g) also precludes review of the discretionary decision to

20 not initiate removal proceedings). Furthermore, in Heckler, the Supreme Court held that “an

21 agency’s decision not to take enforcement action should be presumed immune from

22 judicial review under § 701(a)(2).” 470 U.S. 821, 832. Thus, there are two reasons APA

23 jurisdiction is not available here. First, there is no separate decision to terminate DACA in these

24 cases because a DHS law enforcement officer decided, in consideration of each plaintiff’s

25 felonious criminal activity, to initiate removal proceedings and issued an NTA that

26 automatically terminated DACA; and second, even if the Court found a separate decision was

27

28

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1
made, there is still no standard in the SOP or otherwise by which the Court may review a

2
decision that deferring action is no longer in the Government’s interest.

3
Additionally, the Court lacks jurisdiction over Plaintiffs’ constitutional claims

4
because Plaintiffs necessarily lack a protected constitutional interest in the process by

5
which their DACA is terminated, because the ultimate relief they seek – deferred action –

6

is discretionary. Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005).

7

i. The INA Limits Review of Plaintiffs’ Claims, which Arise from

8

DHS’s Decision to Commence Plaintiffs’ Removal Proceedings.

9

Congress eliminated judicial review over “any cause or claim by or on behalf of

10 any alien . . . arising from the decision or action . . . to . . . adjudicate cases . . .” 8 U.S.C.

11 § 1252(g). The issuance of an NTA is a necessary predicate to commencing removal

12 proceedings. 8 U.S.C. § 1229(a). Through section 1252(g), Congress explicitly precluded

13 judicial review of any challenge arising from any decision or action to commence

14 removal proceedings. See AADC, 525 U.S. 471, 483-85. The Supreme Court explained

15 that section 1252(g) was “directed against a particular evil: attempts to impose judicial

16 constraints upon prosecutorial discretion.” Id. at 485 n.9; see AADC, 525 U.S. at 485

17 (treating “‘no deferred action’ decisions” as “discretionary determinations”); cf. Silva v.

18 United States, 866 F.3d 938, 940 (8th Cir. 2017) (§ 1252(g) precludes review of decision

19 to execute removal order even where claim that agency lacked discretion because

20 removal violated law).

21

Section 1252(g) encompasses “cause[s] or claim[s]” that arise from the decision

22 “or action” to “commence proceedings” against any individual. See, e.g., Sissoko v.

23 Rocha, 509 F.3d 947, 948-50 (9th Cir. 2007) (finding claim of money damages arose

24 from decision or action to commence removal proceedings and was, thus, barred by 8

25 U.S.C. § 1252(g)).6 A DACA grant is acknowledgement that DHS is not presently

26

27

6 Wong v. United States, 373 F.3d 952 (9th Cir. 2004), is distinguishable from this case and Sissoko, where the issuance of Plaintiffs’ NTAs occurred before, and were the direct cause of, termination of Plaintiffs’

28 DACA and EADs.

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1
pursuing removal against an individual. Thus, when DHS finds an individual has become
2
an enforcement priority and issues an NTA, DACA will logically terminate.
3
Indeed, because issuance of an NTA and termination of DACA are steps “leading
4
up to” a final order of removal, they are squarely within the scope of 8 U.S.C. § 1252(g).
5
See, e.g., Botezatu v. INS, 195 F.3d 311, 314 (7th Cir. 1999) (citing AADC, 525 U.S. at
6
944 (discussing the scope of 8 U.S.C. § 1252(g) as including “various decision . . .
7
leading up to order consequent upon final orders of deportation.”)); Alcaraz v. INS, 384
8
F.3d 1150, 1160-61 (9th Cir. 2004) (finding review of the reopening of removal
9
proceedings, but not the administrative closure of proceedings, was barred from review as
10
an action related to the decision to commence removal). To hold otherwise would render
11
section 1252(g) a dead letter because any individual could seek to enjoin or otherwise
12
challenge the commencement of removal proceedings through this type of creative
13
pleading. See Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001) (holding that “a
14
petitioner may not create the jurisdiction that Congress chose to remove simply by
15
cloaking [a claim] in constitutional garb”).7
16
There can be no reasonable argument that DACA termination by NTA issuance
17
does not arise out of the decision to initiate removal proceedings, such that 8 U.S.C.
18
§ 1252(g) would not bar this Court from reviewing that hypothetical second decision.
19
See, e.g., Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (holding section
20
1252(g) barred jurisdiction to review the BIA’s discretionary decision to not reopen
21
removal proceedings to consider a DACA request).8
22

23 7 In analogous circumstances, the Eleventh Circuit Court of Appeals affirmed the applicability of Section
24 1252(g) to bar district court review of the automatic termination of discretion-based employment authorization documents following the commencement of removal proceedings, in accordance with 8
25 C.F.R. § 274a.12(c). See Gupta v. Holder, No. 611CV1731ORL35GJK, 2011 WL 13174873, at *1 (M.D. 26 Fla. Oct. 31, 2011), aff’d sub nom. Gupta v. U.S. Atty. Gen., 485 F. App’x 386 (11th Cir. 2012)

27

8 This authority is consistent with earlier case law interpreting the 1981 Operating Instructions, a previous policy that provided guidelines for the exercise of deferred action. See Romeiro de Silva v. Smith, 773

28 F.2d 1021, 1025 (9th Cir. 1985).

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To the extent that Plaintiffs have any viable claims, the REAL ID Act, codified at 8
2
U.S.C. §§ 1252(a)(5) and 1252(b)(9), bars them from raising those claims in district
3
court, even before a final order of removal issues. Section 1252(a)(5), entitled
4
“[e]xclusive means of review,” requires that “a petition for review filed with an
5
appropriate court of appeals . . . shall be the sole and exclusive means for judicial review
6
of an order of removal . . . .” 8 U.S.C. § 1252(a)(5). Section 1252(b)(9) provides
7
“[j]udicial review of all questions of law and fact, including interpretation and application
8
of constitutional and statutory provisions, arising from any action taken or proceeding
9
brought to remove an alien from the United States under this subchapter shall be available
10
only in judicial review of a final order under this section.” 8 U.S.C. § 1252(b)(9)
11
(emphasis added); see, e.g., J.E.F.M., 837 F.3d at 1038 (district court lacked jurisdiction
12
over challenge to adequacy of removal procedures, and instead court of appeals has
13
authority to resolve questions of constitutional rights on review of a final removal order).
14
Importantly, the Ninth Circuit found that Section 1252(b)(9) is “a clear statutory
15
prescription against district court review” of challenges arising from removal proceedings
16
for plaintiffs who had not yet received final orders of removal. See J.E.F.M., 837 F.3d at
17
1035-38 (“The minors . . . attempt to get around [section 1252(b)(9)] by claiming that
18
they have been (or will be) denied meaningful judicial review in light of their juvenile
19
status.”) (emphasis added). While the Court acknowledged that “an unrepresented minor
20
in immigration proceedings poses an extremely difficult situation,” it also found “these
21
considerations cannot overcome a clear statutory prescription against district court
22
review. Relief is through review in the court of appeals or executive or congressional
23
action.” Id. at 1036-1038.9
24
25 9 The Court’s previous reliance on Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007), to support section 26 1252(b)(9) applying only to a final order of removal is misplaced because that language is dicta and
conflicts with the plain language of the statute. Dkt. No. 31 at 7. Singh brought a challenge of ineffective 27 assistance of counsel through a habeas petition, and the Court found that the challenge was not tied to
removal proceedings, so section 1252(b)(9) did not apply regardless of whether a final order had issued. 28
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Thus, Congress’s intent was simple and uncontroversial: if the issue is one that can

2
be raised in removal proceedings, and ultimately in a petition for review, then the statute

3
precludes district court review. See id. at 1034 (citing H.R. Rep. No. 109-72, at 173

4
(statute was “intended to preclude all district court review of any issue raised in a removal

5
proceeding”)); cf. Aguilar, 510 F.3d at 9-10 (“Congress plainly intended to put an end to

6
the scattershot and piecemeal nature of the review process . . . .”). This approach

7
effectuates the general rule precluding simultaneous review of a question by both an

8
administrative body and a federal court. See Acura of Bellevue v. Reich, 90 F.3d 1403,

9
1408-9 (9th Cir. 1996).

10
Here, Plaintiffs challenge the Secretary’s discretion to issue NTAs that have the

11
effect of terminating DACA. See Dkt. No. 40-1 at 8-9. Thus, Plaintiffs’ challenges

12
necessarily arise from “action taken or proceedings brought to remove an alien,” for

13
which district courts lack jurisdiction. Accordingly, this Court should find that Plaintiffs

14

cannot show either a likelihood of success or that the law and facts clearly favor their

15
position. Garcia, 786 F.3d at 740.

16

ii. Judicial Review of DACA Termination Based on NTA Issuance is

17

also Barred under 5 U.S.C. § 701(a)(2).

18

There is no judicial review under the APA of decisions that “courts traditionally

19 have regarded as ‘committed to agency discretion.’” Lincoln v. Vigil, 508 U.S. 182, 192

20 (1993) (quoting 5 U.S.C. § 701(a)(2)). These decisions are typically unreviewable

21 because there exists “no meaningful standard against which to judge the agency’s

22 exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830 (1985). This bar applies

23 even when “the agency gives a ‘reviewable’ reason for otherwise unreviewable action.”

24 ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 283 (1987) (“BLE”).

25 Singh, 499 F.3d at 978-79. To interpret Singh as permitting district court challenges such as those raised
26 here runs counter to Congressional intent, and would effectively excise the words “any action taken” from

27

the statute. See Aguilar, 510 F.3d at 10; cf. Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012) (an APA claim “challeng[ing] the procedure and substance of an agency determination that is ‘inextricably

28 linked’ to the order of removal” must be channeled through the petition for review process).

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The decisions committed to executive discretion include “an agency’s exercise of
2
enforcement power.” Chaney, 470 U.S. at 831. Such judgments involve “a complicated
3
balancing of factors which are peculiarly within [an agency’s] expertise,” including
4
“whether agency resources are best spent on this violation or another, whether the agency
5
is likely to succeed if it acts, whether the particular enforcement action requested best fits
6
the agency’s overall priorities, and, indeed, whether the agency has enough resources to
7
undertake the action at all.” Id. As there is “no meaningful standard against which to
8
judge the agency’s exercise of discretion” in weighing these factors, an agency’s exercise
9
of enforcement powers is “presumed immune from judicial review under § 701(a)(2).” Id.
10
at 830, 832. For instance, an “agency decision not to prosecute or enforce, whether
11
through civil or criminal process, is a decision generally committed to an agency’s
12
absolute discretion.” Id. at 831.
13
An agency’s decision to enforce the law against a particular individual is likewise
14
presumptively unreviewable. Just as “the decision whether or not to prosecute”
15
presumptively “rests entirely in [the prosecutor’s] discretion,” United States v. Armstrong,
16
517 U.S. 456, 464 (1996) (citation omitted), an agency’s decision to bring a civil
17
enforcement action is generally not open to judicial scrutiny. Considerations such as the
18
Chaney factors are equally present in enforcement decisions as in nonenforcement
19
decisions. See Chaney, 470 U.S. at 831; see also Wayte v. United States, 470 U.S. 598,
20
607-8 (1985) (“[T]he decision to prosecute is particularly ill-suited to judicial review”).
21
One form of that broad discretion is deferred action, a “discretionary and
22
reversible” decision to notify an alien that DHS has chosen not to seek his removal for a
23
specific period of time. Arpaio v. Obama, 797 F.3d 11, 17 (D.C. Cir. 2015). Like other
24
agency nonenforcement decisions, grants of deferred action rest on a complex balancing
25
of policy considerations that cannot serve as “meaningful standard against which to judge
26
the agency’s exercise of discretion.” Chaney, 470 U.S. at 831. The converse is equally
27
true: denials of deferred action are also committed to agency discretion. See AADC, 525
28
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1
U.S. at 485 (treating “‘no deferred action’ decisions” as “discretionary determinations”).
2
Because “[g]ranting an illegally present alien permission to remain and work in this
3
country” is fundamentally “a dispensation of mercy,” there are “no standards by which
4
judges may patrol its exercise.” Perales v. Casillas, 903 F.2d 1043, 1051 (5th Cir. 1990)
5
(INS’s decision not to grant pre-hearing voluntary departures and work authorizations to
6
a group of aliens was non-justiciable).
7
Even in situations in which an agency has promulgated regulations or provided
8
internal guidance, decisions involving the exercise of prosecutorial discretion are
9
generally not subject to judicial review. See Pasquini v. Morris, 700 F.2d 658, 659 (11th
10
Cir. 1983) (holding that Immigration and Naturalization Service (“INS”) Operating
11
Instructions regarding deferred action did not confer substantive rights on an alien and
12
courts could not review a claim that INS failed to comply with these internal
13
instructions); see also Carranza, v. I.N.S., 277 F.3d 65, 72-3 (1st Cir. 2002) (“Whether or
14
not the INS exercised its discretion is therefore beside any relevant point” as “petitioner
15
did not have a right to demand the exercise of this discretion in the first place”); cf.
16
United States v. Lee, 274 F.3d 485, 492 (8th Cir. 2001) (reversing a finding that a criminal
17
defendant can force the Department of Justice to comply with its death penalty protocol).
18
Thus, individual DACA terminations, especially where based on issuance of NTAs,
19
fall squarely within that category of agency discretion for which judicial review is
20
improper. See Chaney, 470 F.3d at 830; see also Morales de Soto v. Lynch, 824 F.3d 822,
21
828 (9th Cir. 2016) (noting that “the exercise of prosecutorial discretion is a type of
22
government action uniquely shielded from and unsuited to judicial intervention”).10 In the
23
cases of putative class members, there is no legal question with regard to the DACA
24

25 10 Plaintiffs’ reliance on cases that discuss violations of non-discretionary procedures in agency regulations are inapposite where deferred action and related employment authorization are entirely
26 discretionary concepts not tied to statute or regulation. See Dkt. No. 16-2 at 18, 20, citing Singh v. Bardini,

27

No. 09-cv-3382, 2010 WL 308807, at *7 (N.D. Cal. Jan. 19, 2010) & Singh v. Vasquez, No. 08-cv-1901, 2009 WL 3219266, at *5 (D. Ariz. Sept. 30, 2009), aff’d 448 F. App’x 776 (9th Cir. 2011) (both addressing

28 questions of regulatory procedures for asylum termination outside of removal proceedings).

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1

guidelines, because the DACA guidelines merely allow an individual to seek a

2

discretionary administrative grace in the form of DACA. See Dkt. No. 53-1 at 38

3

(“Individuals may be considered for DACA upon showing that they meet the prescribed

4

guidelines . . .”). DACA is unlike immigration benefits where eligibility is defined by

5

statute or regulation, and for which Courts have found that review of the non-

6
discretionary denial of such benefits may be reviewed.11

7

Here, Plaintiffs are challenging DHS’s exercise of its enforcement power granted

8

by Congress. See Dkt. 40-1 at 30 (seeking to “enjoin Defendants from terminating

9

Plaintiffs’ and proposed class members’ DACA and EADs”). This is a classic challenge to

10

DHS’s exercise of its prosecutorial discretion. See Chaney, 470 U.S. at 831. This type of

11

enforcement decision involves a balancing of factors committed to agency discretion by

12

law, including how to allocate agency resources. See id.; Armstrong, 517 U.S. at 464. The

13

question for DHS was not whether it could exercise its discretion in favor of the

14

Plaintiffs, but rather whether it should do so under the circumstances of each case.

15

Because this type of discretionary determination is committed to DHS discretion by law,

16

this Court lacks jurisdiction to review Plaintiffs’ claims.

17

iii. Plaintiffs Cannot State a Constitutional Claim because the

18

Termination of DACA does not Implicate a Constitutional Interest.

19

Plaintiffs assert incorrectly that they have “gained a protected interest in their

20 DACA, which authorized them to live and work in the United States until the expiration

21 date of their DACA grants, and therefore have a right to a fair procedure before it can be

22 revoked.” Dkt. No. 40-1 at 21. However, Plaintiffs necessarily lack a protected

23

24

11 The Court’s reliance on United States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004) (en banc) and Madu v. U.S. Attorney Gen., 470 F.3d 1362 (11th Cir. 2006) is misplaced. In both cases, courts reviewed

25 a “purely legal question” that set the stage for a discretionary decision. However, the DACA SOP identifies threshold criteria for DACA consideration, but it does not mandate granting DACA if those
26 threshold criteria are met. See Dkt. No. 53-1 at 38 (“Individuals may be considered for DACA upon

27

showing that they meet the prescribed guidelines . . .”). Even if the Court finds those criteria enforceable, they are not the subject of the exercises of prosecutorial discretion to issue NTAs based on criminal

28 conduct, which terminate DACA notwithstanding compliance with the threshold criteria.

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constitutional interest in their DACA and in the process to terminate DACA, because the
2
ultimate relief sought – deferred action – is discretionary, and because the Government
3
never expressed a mutual intention to confer a protected benefit in DACA.
4
The “Due Process Clause does not protect everything that might be described as a
5
‘benefit.’” Castle Rock, 545 U.S. at 756. Particular due process rights must be established
6
on the basis of entitlement to a property or liberty interest, the risks of loss associated
7
with deprivation of that interest, and the competing interests of the government in not
8
providing that interest. Landon v. Plasencia, 459 U.S. 21, 34 (1982), quoting Mathews v.
9
Eldridge, 424 U.S. 319, 334-335 (1976). DACA recipients face these circumstances
10
given that they are living illegally in a country where they are not citizens. The Court
11
may view this circumstance as unfortunate, but neither the Constitution nor Congress
12
provides an individual in unlawful status a protected interest in living or working in the
13
United States, or in discretionary relief from removal. Garcia v. Holder, No., 07-60271,
14
320 F. App’x 288, 290 (9th Cir. April 9, 2009); Pilapil v. INS, 424 F.2d 6, 11 (10th Cir.
15
1970), cert denied, 400 U.S. 908 (1970).
16
Nor can Plaintiffs claim a Constitutional interest based on entitlement. “To have a
17
property interest in a benefit, a person clearly must have more than an abstract need or
18
desire for it. He must have more than a unilateral expectation of it. He must, instead, have
19
a legitimate claim of entitlement to it.” Blantz v. Cal. Dep’t of Corr. & Rehab., 727 F.3d
20
917, 922 (9th Cir. 2013) (citing Bd. of Regents of State Colleges v. Roth, 408 U.S. 564,
21
577 (1972)); see also Mendez-Garcia v. Lynch, 840 F.3d 655, 665 (9th Cir. 2016)
22
(underscoring that aliens cannot claim a cognizable due process interest in discretionary
23
immigration relief or benefits). The Supreme Court has held that even a practice of
24
“generously” granting a “wholly and expressly discretionary state privilege” does not
25
create a legal entitlement to that benefit. See Regents of Univ. of California v. United
26
States Dep’t of Homeland Sec. (“Regents”), No. C 17-05211 WHA, 2018 WL 339144, at
27
*4 (citing Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1020-21 (9th Cir. 2011)) (“A
28
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person’s belief of entitlement to a government benefit, no matter how sincerely or
2
reasonably held, does not create a property right if that belief is not mutually held by the
3
government.”).
4
Plaintiffs’ proposed class consists exclusively of individuals with no lawful status,
5
thus no protected interest in living or working in the United States. DACA policy has
6
never purported to alter that, nor may this Court. Landon, 459 U.S. at 35 (“The role of the
7
judiciary . . . does not extend to imposing procedures that merely displace congressional
8
choices of policy.”). Because DACA is discretionary, it does not give rise to a protected
9
right to work in the United States. See Dkt. No. 16-28, Pl. Exhibit 24, DACA Grant
10
Approval letter, dated August 20, 2016, at 2 (“This form does not constitute employment
11
authorization, nor may it be used in place of an [EAD].”). Nor does DACA confer lawful
12
status. See Dkt. No. 16-13, Pl. Exhibit 9, 2012 Napolitano Memo (“This memorandum
13
confers no substantive right, immigration status or pathway to citizenship.”). A grant of
14
DACA is not protection from removal. See Dkt. No. 16-23, DACA FAQ at Q:27 (“DACA
15
is an exercise of prosecutorial discretion and deferred action may be terminated at any
16
time, with or without a Notice of Intent to Terminate, at DHS’s discretion.”).
17
Plaintiffs’ claims regarding an interest in employment authorization and other
18
public benefits like driver’s licenses are particularly misplaced, because there is no right
19
to the receipt of either, and no judicial review of the decision to terminate EAD once
20
granted. Pilapil, 424 F.2d at 11; see also Perales, 903 F.2d at 1047-48 (“[T]here is
21
nothing in the [INA] expressly providing for the grant of employment authorization . . . to
22
aliens who are the beneficiaries of approved petitions”) (vacating the challenged portion
23
of the injunction); Gupta, 2011 WL 13174873 at *1 (finding a challenge to the
24
termination of EAD upon initiation of removal proceedings was an impermissible
25
challenge to the discretionary decision to initiate removal proceedings). In the context of
26
Plaintiffs’ claims here that they have a right to DACA and therefore EADs, the Ninth
27
Circuit has refused the same proposition. See Neri, 229 F. App'x at 508 (an individual
28
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“has no substantive due process right to discretionary relief from removal or
2
deportation.”); Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003) (finding no liberty
3
interest in discretionary forms of relief from deportation).
4
Plaintiffs’ reference to cases addressing U.S. citizens’ constitutional interest in
5
choosing their own field of employment, see Dkt. No. 40-1 at 25, simply misses the
6
point. Noncitizens who are here illegally do not have a constitutional right to remain in
7
the United States, much less a right to work in the United States. Cf. Hoffman Plastic
8
Compounds, Inc. v. NLRB, 535 U.S. 137, 151-52 (2002) (holding, as a general matter, an
9
individual who is not authorized to work in the United States does not have a right to
10
work). In fact, every individual with employment authorization based on 8 C.F.R.
11
§ 274a.12(c), including those with deferred action, is subject to automatic termination of
12
their EAD with the filing of an NTA with an immigration court. See 8 C.F.R.
13
§ 274a.14(a)(1)(ii); 8 C.F.R. §§ 1003.13, 1003.14. No notice or opportunity to respond is
14
afforded to any deferred action recipient in this posture, and Plaintiffs point to nothing
15
that supports a contrary finding. Cf. Gupta, 2011 WL 13174873 at *1 (denying challenge
16
to automatic EAD termination). Because EAD termination is not tied to operation of the
17
DACA SOP, Plaintiffs’ claims of harm regarding EAD loss must fail. Further, the DACA
18
SOP instructs USCIS to defer to existing law and regulations where there is any conflict
19
with the SOP. See Dkt. No. 16-24 at 17, DACA SOP Chapter One (“Any provision of the
20
[INA] or 8 C.F.R. found . . . to be in conflict with this SOP will take precedence over the
21
SOP.”). Thus, it is inappropriate to find the SOP’s silence regarding termination of
22
DACA-based EAD due to NTA issuance by CBP or ICE creates entitlement to a process
23
not provided for by the duly promulgated regulation.
24
Furthermore, under DHS regulations, an individual with deferred action who has
25
lost his EAD due to having been placed into removal proceedings may reapply for an
26
EAD if he or she becomes eligible again under a category of subsection 274a.12(c). Only
27
if employment authorization is granted again would the individual then be eligible to
28
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apply to their state authority for a driver’s license or Social Security card. ADAC, 757

2

F.3d at 1061; Texas v. United States, 809 F.3d 134, 149 (5th Cir. 2015) (an individual’s

3

access to a Social Security number is predicated on possession of EAD, not DACA).

4

Thus, the peripheral benefits Plaintiffs cite to illustrate the urgency of the relief they seek

5
are two steps removed from the relief this Court can grant.12

6

For these reasons, and because Plaintiffs by definition concede removability and

7

challenge only termination of a discretionary temporary grant of deferred action from

8

removal, “the Court cannot conclude that the government has deprived [plaintiffs] of

9

[their] liberty interest in remaining in the United States without due process of law.”

10

Mendez de Leon v. Reno, No. C 97-02482 CW, 1998 WL 289321, at *7 (N.D. Cal. Mar.

11

26, 1998). Therefore, the Court should deny their request for injunctive relief.

12

B. Nothing in the Constitution or APA Establishes a Right that Constrains

13

DHS’s Exercise of Discretion.

14

Even if this Court finds that it would have jurisdiction over any of Plaintiffs’

15 claims, the Court should still deny Plaintiffs’ motion for injunctive relief because

16 Plaintiffs’ merits claims fail as a matter of law. Here, Plaintiffs cannot establish either an

17 administrative or a constitutional right to receive any process regarding the termination of

18 DACA because deferred action is necessarily an exercise of the Executive’s prosecutorial

19 discretion. See Regents, 2018 WL 339144 at *18 (“Congress has been free to constrain DHS’s

20 discretion with respect to granting deferred action, but it has yet to do so.”). In fact, DHS acted

21 based on that discretion by issuing an NTA based on Plaintiffs’ criminal activity. At that

22 point, the limited grace a temporary grant of DACA serves to recognize was overridden

23 by the Government’s determination that Plaintiffs had become enforcement priorities. See

24 Dkt. No. 53-1 at 4-7, 17-18. Defendants respectfully disagree with the Court’s prior order

25

26

27 12 None of the provisions that Plaintiffs cite at 8 U.S.C. §§ 1611(b)(2)–(3) and 1621(d) depends directly 28 on the receipt of DACA.

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granting a preliminary injunction to Plaintiff Arreola, see Dkt. No. 31, and endeavor to address

2
that order here. Id. at 9, 11, 12.

3

i. Agency Guidance Places no Limit on ICE or CBP’s Authority to Act

4

Against Identified Enforcement Priorities by Issuing an NTA that

5

terminates DACA.

6

Plaintiffs frame their argument as a challenge to USCIS’s failure to follow

7 procedures required by the DACA SOP before terminating their DACA and EADs. See 8 Dkt. No. 40-1 at 15-17. Plaintiffs argue that there is no process in the SOP that provides 9 for termination of DACA based solely on an NTA issued by ICE or CBP. Id. at 16. The 10 Court too, has similarly accepted this argument, finding that:

11

There appears to be only one narrow circumstance in which automatic termination

based on an NTA is appropriate—when an NTA is issued after USCIS determines

12

that a disqualifying offense or public safety concern is deemed to be “Egregious

13

Public Safety” (“EPS”). DACA SOP at 137. This is not the case here, as Plaintiff’s

14

NTA was issued on the basis of presence without admission, not EPS.

15 Dkt. No. 31 at 11. These conclusions are inconsistent with the law and agency policy for

16 the reasons stated below.

17

ii. DACA termination by NTA is provided for in the DACA SOP and

18

policy documents, and in DHS policy and regulations.

19

There is no support in the Napolitano Memo for the proposition that DACA policy

limits ICE or CBP’s authority to issue NTAs that will have the effect of terminating
20

grants of deferred action, like DACA. See Dkt. No. 16-13. Contrary to the Court’s
21

previous finding, the Napolitano memo does not limit this authority only for the period
22

“as DACA was developed.” Dkt. No. 31 at 12.
23

Nor does DHS guidance prevent immigration enforcement agencies from
24

terminating DACA by issuing an NTA. The authority to issue an NTA is vested with all
25

DHS immigration officers. See 8 C.F.R. § 239.1(a). However, DHS divides NTA
26

27 issuance responsibility between USCIS in its administrative capacity, and ICE and CBP

in their law enforcement capacities. See 2011 NTA Memo, Dkt. No. 16-25. USCIS is
28

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required to refer all cases involving criminal conduct, not limited to Egregious Public
2
Safety (“EPS”), to ICE. Id. at 5. USCIS’s decision to issue an NTA on its own under
3
such circumstances must follow ICE’s lead. Id. at 5 & 6 (“USCIS will not issue an NTA
4
in these cases if ICE declines to issue an NTA.”) (emphasis added); id. at 2 (“USCIS
5
must ensure that its issuance of NTAs fits within and supports the Government’s overall
6
removal priorities . . . .”). When a case is referred by USCIS, ICE may issue an NTA
7
that automatically terminates DACA, with no additional notice or opportunity to
8
respond. See Dkt. No. 16-24 at 39.
9
The effect of NTA issuance on DACA termination is unremarkable, and is
10
recognized elsewhere in the DACA SOP. See Dkt. No. 53-1 at 91-92 (providing that
11
USCIS will deny, without advance notice and an opportunity to respond, a DACA
12
request from an individual in immigration detention who ICE intends to release but who
13
ICE indicates is an enforcement priority). While the SOP instructs USCIS to “discuss” a
14
disagreement it may have with ICE’s finding, id., there is no provision permitting USCIS
15
to reverse ICE’s decision. See Vasquez v. Aviles, 639 F. App’x 898, 901 (3d Cir. 2016)
16
(finding no jurisdiction based on Section 1252(g) to review an ICE officer’s unilateral
17
denial of a DACA request to a detained individual because “that decision involves the
18
exercise of prosecutorial discretion not to grant a deferred action.”).13
19
Indeed, where DHS has worked to ensure that ICE’s determination that someone is
20
an enforcement priority would not be conflicted by a later discretionary exercise by
21
USCIS to grant deferred action in the form of DACA, and where the Napolitano Memo
22
specifically preserves the NTA authority of ICE and CBP upon consideration of the
23

24 13 The Court’s prior order improperly concludes that the SOP termination chapter requires USCIS to

25 adjudicate a termination after ICE has issued an NTA for EPS. Dkt. No. 31 at 9. While the NTA Memo states “ICE’s issuance of an NTA allows USCIS to proceed with adjudication . . . ,” Dkt. No. 16-25 at 5
26 (emphasis added), the guidance is optional and the DACA SOP explicitly diverges from it in important

27

ways. The DACA SOP termination chapter instructs USCIS to follow the NTA Memo, but also states that ICE’s issuance of an NTA on an EPS referral from USCIS “will result in the termination of DACA.” Dkt.

28 No. 16-24 at 38; see also id. at 34 (“USCIS “will deny the DACA request.”) (emphasis added).

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DACA guidelines, it takes a particularly strained reading of the Napolitano Memo and

2

DACA SOP to find that ICE and CBP cannot issue NTAs that have the effect of

3

terminating DACA. In fact, the scenario that the Court’s and Plaintiffs’ interpretation of

4

Defendants’ guidance would create, that ICE would institute new administrative removal

5

proceedings against an individual while that individual seeks additional separate legal

6

process regarding the termination of their DACA, is absurd – stripping the immigration

7

enforcement agencies of their most critical authority. Regents, 2018 WL 339144, at *1

8

(“One of the key enforcement tools under the INA is removal, i.e., deportation. In turn,

9

‘[a] principal feature of the removal system is the broad discretion exercised by

10
immigration officials.’”), citing Arizona v. United States, 567 U.S. 387, 396 (2012).14

11

DHS’s discretion to initiate removal proceedings that have the effect of terminating

12

DACA is not impeded by DACA policy in any way. Accordingly, the Court should deny

13

Plaintiffs’ motion for a preliminary injunction.

14

iii. There is no requirement that an NTA charge more than unlawful

15

presence, nor is it arbitrary to rely on the decision to issue an NTA.

16

Plaintiffs argue, and this Court agreed, that USCIS impermissibly relies on only

17 unlawful presence as the charge listed in an NTA as the sole basis to terminate DACA.

18 Dkt. No. 31 at 6, 10: Dkt. No. 32 at ¶¶ 159, 165. However, that conclusion relies on a

19 starkly oversimplified consideration of the NTA decision process. See, e.g., Dkt. No. 53-1

20 at 9-15, 20-24 (summaries of the information considered in Plaintiffs’ NTA issuances).

21 Plaintiffs also assert an inaccurate reading of Judulang v. Holder, 565 U.S. 42 (2011), for

22 the mistaken proposition that an immigration officer’s charging decision to issue an NTA

23 that only charges unlawful presence is categorically capricious and cannot be the basis to

24 terminate an individual’s DACA and EAD. Dkt. No. 40-1 at 14-18. There is no basis in

25 14 The fact that USCIS may grant DACA to nondetained aliens in removal proceedings or with final
26 orders of removal does not change this analysis. Just as USCIS has the discretion to grant DACA to those

27

requestors based on the totality of circumstances, nothing in DHS policy or guidance prohibits ICE, CBP, or USCIS from similarly exercising discretion to terminate DACA on a case by case basis as an exercise

28 of agency discretion.

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the SOP or other DACA-related guidance for the Court to find that an NTA charging
2
removability on the basis of presence without admission is not sufficient to terminate
3
DACA. Nor can Plaintiffs establish that an individual in receipt of an NTA based on
4
unlawful presence cannot also have been found to be an EPS concern, or otherwise an
5
enforcement priority.
6
First, the charges listed in an NTA are not dispositive of the reasons for issuing an
7
NTA.15 DHS is under no obligation to charge an individual with anything more than
8
unlawful presence. Addy v. Sessions, 696 F. App’x 801, 804 (9th Cir. 2017) (rejecting
9
argument that petitioner should have been charged with removability under a different
10
statute, because “[t]he Attorney General has prosecutorial discretion over the initiation of
11
removal proceedings, and that discretion is not reviewable.”). Rather, the decision to
12
issue an NTA is based on the immigration officer’s experience and information, and –
13
most importantly – his or her discretion. See Hernandez v. Gonzales, 221 F. App’x 588,
14
589–90 (9th Cir. 2007) (“Absent evidence to the contrary, we presume that the
15
immigration officers properly discharged their duties when issuing Hernandez’s NTA.”)
16
(citations omitted). Notably, an NTA also need not include charges used to support the
17
denial of relief from removal. Salviejo–Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th
18
Cir. 2006) (denying due process claim where the BIA found petitioner ineligible for
19
cancellation of removal based on a conviction not alleged in the NTA).
20
Here, the nature of discretion exercised in issuing an NTA that has the effect of
21
terminating DACA is nothing like the process the Judulang Court found arbitrary. The
22
Judulang Court rejected the BIA process of interpreting and comparing the removability
23
charges on an individual’s NTA against a list of charges under 8 U.S.C. § 1182 that
24

25 15 This proposition is wholly consistent with the denial portion of the DACA SOP, which provides that,
26 while to be considered, the charges filed in an NTA are not determinative to the ultimate discretion

27

decision regarding DACA. Dkt. No. 53-1 at 65 (“Do not rely solely on the grounds listed in the charging document [. . . ;] review all derogatory information in its totality and then make an informed assessment

28 regarding the appropriate exercise of prosecutorial discretion for DACA.”).

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composed grounds for exclusion of an arriving alien, to determine whether the individual
2
facing removal was eligible for a form of discretionary relief from removal originally
3
reserved for arriving aliens. 565 U.S. at 489-90. The Court equated the process to flipping
4
a coin, such that some violent criminals would be eligible for relief while some LPRs
5
with lesser offenses would be excluded. Id. at 487 (finding the process had “no
6
connection to the goals of the deportation process or the rational operation of the
7
immigration laws.”). Here, DACA termination does not hinge on how the NTA is
8
selected, but rather whether the NTA is selected.
9
Moreover, the facts here demonstrate that immigration officer decisions to issue
10
NTAs that have the result of terminating DACA are not “happenstance,” Dkt. No. 40-1 at
11
17; but rather, NTA issuance that results in the termination of DACA represents a valid
12
and thoughtful exercise of agency discretion. The facts here demonstrate that immigration
13
enforcement officers: (1) were specifically aware of each Plaintiffs’ DACA, see Dkt. No.
14
53-1 at 9-15, 20-24; (2) did not rely solely on unlawful presence in decisions to initiate
15
removal against Plaintiffs. Id.; see also Dkt. No. 23-2 at 26 (“Prosecution for Alien
16
Smuggling was declined for ARREOLA.”); id. (Agency chief “approved removal
17
proceedings for ARREOLA in the furtherance of the United States Government
18
interest.”); and (3) may issue NTAs after supervisory review or consultation with agency
19
counsel. See Dkt. No 53-1 at 6 ¶ 11.
20
iv. DACA termination by NTA is not a reversal of agency policy.
21
Plaintiffs’ charge that the termination of their DACA is a “reversal” in violation of
22
the APA is also mistaken. See Dkt. No 40-1 at 18, citing FCC v. Fox Television Stations,
23
Inc., 556 U.S. 502, 515 (2009). Fox only applies to changes in agency policy. See 556
24
U.S. at 514 (holding that when an agency changes policy, it must show no more than that
25
it “examine[d] the relevant data and articulate a satisfactory explanation for its action.”).
26
Here, Defendants’ policy has not changed. The initial grant of DACA is heavily qualified
27
with warnings that it is not protection from removal or a change in legal status, and that it
28
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may be terminated at any time, specifically for subsequent criminal activity. See, e.g.,
2
Dkt. No. 16-23, DACA FAQ at Q:27 (DACA “may be terminated at any time, with or
3
without a Notice of Intent to Terminate, at DHS’s discretion.”); Dkt. No. 16-28 (DACA
4
termination is “likely” following subsequent criminal activity). The automatic
5
termination of Plaintiffs’ DACA and EADs here, as a result of the decision to pursue
6
removal proceedings against plaintiffs due to criminal activity, is well within DACA SOP
7
policy and practice, and demonstrates that there is no change in policy or practice as it
8
applies to the putative class or individuals. Dkt. No. 23-2, Declaration of Ron Thomas, ¶
9
5 (identifying examples of automatic termination of DACA due to NTA issuance going
10
back to 2013); see also Chemehuevi Indian Tribe v. Brown, No.
11
EDCV161347JFWMRWX, 2017 WL 2971864, at *8 (C.D. Cal. Mar. 30, 2017) (“The
12
agency's consistent practice of approving compacts with duration provisions . . . in an
13
area within its expertise is itself entitled to at least traditional deference under Skidmore v.
14
Swift & Co., 323 U.S. 134 (1944), due, in part, to the agency's specialized experience in
15
[these] matters.”). Indeed, all that has happened in cases like those of the putative class is
16
that DHS has determined that those DACA recipients have become enforcement
17
priorities, often based on their unlawful activity. Such entirely appropriate changes of
18
mind regarding this exercise of discretion are analogous to the Ninth Circuit’s holding
19
that Fox did not apply to an agency’s “evolving analysis” that “was not a change in a
20
published regulation or official policy”). Sierra Club v. Bureau of Land Management, 786
21
F.3d 1219, 1226 (9th Cir. 2015).
22
Even if Fox were applicable, the notices of action issued by USCIS following NTA
23
issuance that automatically terminate DACA are not arbitrary and capricious under Fox,
24
because USCIS demonstrates an awareness that it has taken a different position regarding
25
a putative class member’s DACA, see, e.g., Dkt. No. 16-12 (acknowledging prior DACA
26
grant and notifying recipient “that your deferred action as a childhood arrival and your
27
employment authorization terminated as of the date your NTA was issued.”); and that
28
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23

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1
there is a good reason for the different position, see id. (basing the termination on ICE’s
2
issuance of an NTA). Fox requires nothing more. 556 U.S. at 515 (requiring an agency
3
“display awareness that it is changing position,” and “show that there are good reasons
4
for the new policy. . . .”, but the agency “need not demonstrate to a court’s satisfaction
5
that the reasons for the new policy are better than the reasons for the old one; it suffices
6
that the new policy is permissible under the statute”).
7
C. The Remaining Preliminary Injunction Factors Favor Defendants.
8
Where the Government is the opposing party, the balance of equities and public
9
interest factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009). Defendants have strong
10
interests in enforcing U.S. immigration laws effectively and consistent with the statutory
11
removal scheme. See AADC, 525 U.S. at 490 (“There is always a public interest in prompt
12
execution of removal orders [to end] a continuing violation of United States law.”). Here,
13
the process Plaintiffs have received is adequate given the ultimately discretionary policy
14
at issue and the Government’s strong interest regarding immigration enforcement. And
15
while the loss of the ability to work is a significant harm, it is outweighed by the need for
16
Defendants to pursue removal for individuals like the named Plaintiffs who have misused
17
the trust given to them with the administrative grace of DACA.
18
Moreover, Plaintiffs’ effort to reinterpret DHS’s consistent position regarding
19
NTA issuance and DACA and EAD terminations would create absurd results. First, a
20
class-wide injunction requiring the reinstatement of DACA and employment
21
authorization would be contrary to DHS regulations regarding the termination of
22
employment authorization upon the initiation of removal proceedings. Second, the
23
efficacy of the additional process that Plaintiffs seek is questionable because DHS and its
24
components have already exercised prosecutorial discretion to end the putative class
25
members’ DACA by deciding instead to place them into removal proceedings –
26
regardless of their original or continued ability to meet the threshold criteria to request
27
DACA. Indeed, where Plaintiffs hang everything on proving that they meet the threshold
28
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1
DACA guidelines, they fail to establish any likelihood Defendants would come to a
2
different conclusion were the Court to order such a re-adjudication of their claims.
3
CONCLUSION
4
Where injunctive relief is not appropriate to the extent the Court denies Plaintiffs’
5
motion for class certification, and alternatively, where Plaintiffs can neither meet the
6
lesser burden of establishing a likelihood of success on the merits to be granted a
7
temporary injunction nor the higher standard necessary to obtain a permanent reversal of
8
Defendants’ termination of their DACA through issuance of NTAs, the Court should deny
9
Plaintiffs’ motion for class-wide injunctive relief.
10

11 DATED: February 1, 2018
12 13 14 15

Respectfully Submitted,
CHAD A. READLER Acting Assistant Attorney General WILLIAM C. PEACHEY Director

16

COLIN A. KISOR

17

Deputy Director

18

JEFFREY S. ROBINS

Assistant Director

19

20

/s/ James J. Walker

JAMES J. WALKER

21

Trial Attorney

22

United States Department of Justice

23

Civil Division Office of Immigration Litigation

24

District Court Section

25

Washington, D.C. 20044

Tel.: (202) 532-4468

26

Fax: (202) 305-7000

27

Email: james.walker3@usdoj.gov

28

Counsel for Defendants

5:17-cv-2048-PSG-SHK
25

 
 Case 5:17-cv-02048-PSG-SHK Document 55 Filed 02/05/18 Page 1 of 33 Page ID #:1770

1 CHAD A. READLER

2 Assistant Attorney General

3

Civil Division WILLIAM C. PEACHEY

4 Director

5 JEFFREY S. ROBINS Assistant Director
6 JAMES J. WALKER

7 Trial Attorney

8

United States Department of Justice Civil Division

9 Office of Immigration Litigation

10

District Court Section Washington, D.C. 20044

11 Tel.: (202) 532-4468

12 Fax: (202) 305-7000

13 Email: james.walker3@usdoj.gov

14 Counsel for Defendants

15

UNITED STATES DISTRICT COURT

16

CENTRAL DISTRICT OF CALIFORNIA

17

18

INLAND EMPIRE –

) Case No. 5:17-cv-2048- PSG-SHK

19

IMMIGRANT YOUTH

)

COLLECTIVE and JESUS

)

20

ALONSO ARREOLA ROBLES, ) DEFENDANTS’ NOTICE OF

21 on behalf of himself and others

) MOTION & MEORANDUM OF

22

similarly situated,

23

Plaintiff,

) POINTS AND AUTHORITIES IN ) SUPPORT OF DEFENDANTS’ ) MOTION TO DISMISS AMENDED

24
v.
25

) COMPLAINT ) ) Judge: Hon. Philip S. Gutierrez

26

) Courtroom: 6A

27

KIRSTJEN NIELSEN, Secretary of ) Hearing: March 26, 2018

Homeland Security, et al.,

) Time: 1:30pm

28

)

Defendants.

)

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1

TABLE OF CONTENTS

2 INTRODUCTION ............................................................................................................... 1 3 4 BACKGROUND ................................................................................................................. 2

5 SUMMARY OF THE ARGUMENT .................................................................................. 3

6 ARGUMENT ....................................................................................................................... 4 7 8 I. Standard of Review.................................................................................................... 4

9

A. Dismissal pursuant to Fed. R. Civ. P. 12(b)(1) ............................................... 4

10

11

B. Dismissal pursuant to Fed. R. Civ. P. 12(b)(6) ............................................... 5

12 II. Plaintiff Inland Empire should be dismissed for lack of standing ............................. 6

13 III. 14 15 16 IV. 17 18 19

Plaintiff Arreola Robles should be dismissed from this action for lack of standing and because his claim is no longer ripe ................................................. 7
This Court must dismiss the amended complaint because Plaintiffs fail to establish this Court’s jurisdiction. ........................................................................ 8
A. DHS’s discretion to initiate removal proceedings and their effect on the termination of Plaintiffs’ DACA is not reviewable. ............................ 8

20

i. Judicial review is barred under 5 U.S.C.§ 701(a)(1) because

21

the INA limits review of Plaintiffs’ claim, which arise

22

from DHS’s decision to commence Plaintiffs’ removal proceedings ........................................................................................... 9

23

24

ii Judicial review of Plaintiffs’ claims is also barred under 5 U.S.C.§ 701(a)(2), because how and when an NTA issues is

25

committed to agency discretion .......................................................... 13

26

iii Plaintiffs cannot state a constitutional claim because the

27

termination of DACA does not implicate a constitutional

28

interest. ................................................................................................ 15

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1

B. Plaintiff’s Fail to State a Claim Under the APA ..........................................18

2

3

i. DACA termination by NTA is provided for in the DACA SOP

4

and policy documents, and DHS policy and regulations...................19

5

ii. There is no requirement that an NTA charge more than unlawful

6

presence, nor is it arbitrary to rely on the decision to issue an NTA.................................................................................................... 21

7

8

CONCLUSION ....................................................................................................... 23

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

TABLE OF AUTHORITIES

2

CASES

3 Acura of Bellevue v. Reich, 4 90 F.3d 1403 (9th Cir. 1996) ..........................................................................................12

5

6

Addy v. Sessions, 696 F. App’x 801 (9th Cir. 2017)...................................................................................22

7

8

Aguilar v. U.S. Immigration and Customs Enforcement Div. of Dept. of Homeland Sec., 510 F.3d at 9-10........................................................................................................12, 19

9

10 Alcaraz v. INS, 11 384 F.3d 1150 (9th Cir. 2004) ........................................................................................10

12 Arizona v. United States, 13 567 U.S. 387 (2012) .......................................................................................................21

14 Arpaio v. Obama, 15 797 F.3d 11 (D.C. Cir. 2015)..........................................................................................14

16 Ashcroft v. Iqbal, 17 556 U.S. 662 (2009) .........................................................................................................6

18 Bd. of Regents of State Colleges v. Roth, 19 408 U.S. 564 (1972) ...........................................................................................16, 19, 21

20 Bell Atl. Corp. v. Twombly, 21 550 U.S. 544 (2007) .........................................................................................................5

22

23

Blantz v. Cal. Dep’t of Corr. & Rehab., 727 F.3d 917 (9th Cir. 2013) .......................................................................................... 16

24

25

Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999) .......................................................................................... 10

26

27 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ..................................................................................................... 5
28

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1

Garcia v. Holder, No., 07-60271, 320 F. App’x 288 (9th Cir. April 9, 2009) ............................................ 16

2

3 Gerhart v. Lake Cnty., Mont., 4 637 F.3d 1013 (9th Cir. 2011) ........................................................................................16

5 Gupta v. Holder,

6

No. 611CV1731ORL35GJK, 2011 WL 13174873, at *1 (M.D. Fla. Oct. 31, 2011) .......... 11, 17, 18

7 Gupta v. U.S. Atty. Gen., 8 485 F. App’x 386 (11th Cir. 2012).................................................................................11

9 Heckler v. Chaney, 10 470 U.S. 821 (1985) ............................................................................................9, passim

11 Hernandez v. Gonzales, 12 221 F. App’x 588 (9th Cir. 2007)...................................................................................22

13 Hodgers-Durgin, v. de la Vina, 14 199 F.3d 1037 (9th Cir. 1999). .........................................................................................7

15

16

Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) ....................................................................................................... 16

17

18

ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270 (1987) ....................................................................................................... 13

19

20 Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. Brock, 477 U.S. 274 (1986) ..................................................................................................... 5, 6
21

22 J.E.F.M., 23 837 F.3d at 1035-38..................................................................................................11, 12

24 Judulang v. Holder, 25 565 U.S. 42 (2011) .........................................................................................................22

26 Kings Cty. v. Surface Transp. Bd., 27 694 F. App’x 472 (9th Cir. 2017).....................................................................................8

28

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1

La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083 (9th Cir. 2010) ...................................................................................... 5, 6

2

3 Landon v. Plasencia, 4 459 U.S. 21 (1982) ...................................................................................................16, 17

5 Lincoln v. Vigil, 6 508 U.S. 182 (1993) .......................................................................................................13

7 Lujan v. Defenders of Wildlife, 8 504 U.S. 555 (1992) .....................................................................................................4, 5

9 Madu v. U.S. Attorney Gen., 10 470 F.3d 1362 (11th Cir. 2006) ......................................................................................15

11 Martinez v. Napolitano, 12 704 F.3d 620 (9th Cir. 2012) ..........................................................................................12

13 Mathews v. Eldridge, 14 424 U.S. 319 (1976) .......................................................................................................16

15

16

Mendez de Leon v. Reno, No. C 97-02482 CW, 1998 WL 289321, at *7 (N.D. Cal. Mar. 26, 1998)....................18

17

18

Mendez-Garcia v. Lynch, 840 F.3d 655 (9th Cir. 2016) .......................................................................................... 16

19

20 Morales de Soto v. Lynch, 824 F.3d 822, 828 (9th Cir. 2016) .................................................................................. 14
21

22 Munoz v. Ashcroft, 23 339 F.3d 950 (9th Cir. 2003) ..........................................................................................17

24 Neri v. New Jersey State Parole Board, et al., 25 229 F. App'x at 508 ........................................................................................................17

26 O’Shea v. Littleton, 27 414 U.S. 488 (1974) .........................................................................................................5

28

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1

Oregon Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin., 860 F.3d 1228 (9th Cir. 2017) ...................................................................................... 5, 6

2

3 Owen Equip. & Erection Co. v. Kroger, 4 437 U.S. 365 (1978) .........................................................................................................4

5 Pasquini v. Morris, 6 700 F.2d 658 (11th Cir. 1983) ........................................................................................14

7 Perales v. Casillas, 8 903 F.2d 1043 (5th Cir. 1990) ..................................................................................14, 17

9 Pilapil v. INS, 10 424 F.2d 2 (10th Cir. 1970) ............................................................................................17

11 Rockwell Int'l Corp. v. United States, 12 549 U.S. 457 (2007) .........................................................................................................7

13 Reno v. Am.-Arab Anti-Discrimination Comm. (“AADC”), 14 525 U.S. 471 (1999) ...............................................................................................9, 10, 14

15

16

Romero de Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985) ........................................................................................... 10

17

18

Salviejo–Fernandez v. Gonzales, 455 F.3d 1063 (9th Cir. 2006) ........................................................................................ 22

19

20 Silva v. United States, 866 F.3d 938 (8th Cir. 2017) .......................................................................................... 10
21

22 Singh v. Gonzales, 23 499 F.3d 969 (9th Cir. 2007) ..........................................................................................12

24 Sissoko v. Rocha, 25 509 F.3d 947 (9th Cir. 2007) ..........................................................................................10

26 Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 27 873 F.2d 1221 (9th Cir. 1989) ..........................................................................................4

28

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1

Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730 (9th Cir. 1979) ............................................................................................ 5

2

3 Torres-Aguilar v. INS, 4 246 F.3d 1267 (9th Cir. 2001) ........................................................................................11

5 Town of Castle Rock v. Gonzales, 6 545 U.S. 748 (2005) ...................................................................................................9, 16

7 United States v. Armstrong, 8 517 U.S. 456 (1996) .................................................................................................13, 15

9 United States v. Hovsepian, 10 359 F.3d 1144 (9th Cir. 2004) ........................................................................................15

11 Vasquez v. Aviles, 12 639 F. App’x 898 (3d Cir. 2016)....................................................................................20

13 Vilchiz-Soto v. Holder, 14 688 F.3d 642 (9th Cir. 2012) ......................................................................................9, 11

15

16

Wayte v. United States, 470 U.S. 598 (1985) ....................................................................................................... 14

17

18

Wong v. United States, 373 F.3d 952 (9th Cir. 2004) .......................................................................................... 10

19

20

STATUTES

21 5 U.S.C. § 701(a)(1).............................................................................................................9

22 5 U.S.C. § 701(a)(2).......................................................................................................9, 13

23 5 U.S.C. § 702......................................................................................................................8

24 5 U.S.C. § 704......................................................................................................................8 25 5 U.S.C. § 706(2)(A)............................................................................................................9 26 5 U.S.C. § 706(2)(D)............................................................................................................9
8 U.S.C. § 1182 .................................................................................................................. 22 27
8 U.S.C. § 1229(a) ............................................................................................................... 9 28 8 U.S.C. § 1252....................................................................................................................4

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1 8 U.S.C. § 1252(b)(9)...................................................................................................11, 12 2 8 U.S.C. § 1252(g) ...............................................................................................4, 9, 10, 11 3 8 U.S.C. § 1229a ..................................................................................................................4 4 8 U.S.C. § 1252(a)(5).........................................................................................................11 5 8 U.S.C. § 1611(b)(2).........................................................................................................18 6 8 U.S.C. § 1611(b)(3).........................................................................................................18 7 8 U.S.C. § 1621(d) .............................................................................................................18

8

FEDERAL RULES OF CIVIL PROCEDURE

9 Rule 12(b)(1)........................................................................................................................4

10 Rule 12(b)(6)........................................................................................................................5

11

REGULATIONS

12 8 C.F.R. § 239.1(a).......................................................................................................19, 25

13 8 C.F.R. § 274a.12(c).............................................................................................17, 18, 23

14 8 C.F.R. § 274a.14(a)(1)(ii) .........................................................................................11, 17 15 8 C.F.R. § 1003.13 .......................................................................................................17, 23

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

NOTICE OF MOTION

2

PLEASE TAKE NOTICE that on March 26, 2018 at 1:30 p.m., or as soon

3 thereafter as the parties may be heard, Defendants will bring for hearing a motion to

4 dismiss. The hearing will take place before the Honorable Philip S. Gutierrez in

5 Courtroom 6A, 350 W 1st Street, Suite 4311 Los Angeles, CA, 90012. This motion is

6 based on the memorandum of points and authorities attached hereto, all pleadings, papers

7 and files in this action, and such oral argument as may be presented at the hearing on the

8 motion. This motion is also made following conferences between counsel for the

9 Plaintiffs and Defendants pursuant to L.R. 7-3, which took place via e-mail on December

10 12, 19, 20, and 21, 2017, on December 29, 2017, and again on January 9 and 12, 2018.

11 DATED: February 5, 2018 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Respectfully Submitted,
CHAD A. READLER Acting Assistant Attorney General WILLIAM C. PEACHEY Director JEFFREY S. ROBINS Assistant Director
/s/ James J. Walker JAMES J. WALKER Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section Washington, D.C. 20044 Tel.: (202) 532-4468 Fax: (202) 305-7000 Email: james.walker3@usdoj.gov

26

Counsel for Defendants

27

28

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

INTRODUCTION

3

On December 21, 2017, organizational plaintiff Inland Empire – Immigrant Youth

4 Collective (“Inland Empire” or “IEIYC”) and individual Plaintiffs Jesús Alonso Arreola

5 Robles (“Mr. Arreola”), José Eduardo Gil Robles (“Mr. Gil”), and Ronan Carlos De

6 Souza Moreira (“Mr. Moreira”), filed an amended class action complaint [Dkt. No. 32],

7 following Defendants’ restoration of Plaintiff Arreola’s Deferred Action for Childhood

8 Arrivals (“DACA”) and employment authorization document (“EAD”), per this Court’s

9 November 21, 2017, Order. [Dkt. No. 31].

10

Plaintiffs’ amended complaint alleges Defendants “have targeted numerous DACA

11 recipients and unlawfully revoked the grants of deferred action and work permits they

12 have received even though these individuals have abided by all the program rules and

13 have not engaged in any conduct that would disqualify them from the program.” Dkt. No.

14 32 at ¶ 1. On this basis, Plaintiffs seek the extraordinary relief of forcing DHS to reinstate

15 their DACA and enjoining the Government from terminating DACA in the future for the

16 individual plaintiffs as well as for a nationwide class of those similarly situated.

17

However, Plaintiffs’ allegations fall apart when examined in full context. Each

18 Plaintiff was arrested for engaging in criminal activities, determined to be an enforcement

19 priority, and placed into removal proceedings, which had the unremarkable effect of

20 terminating their DACA. Every step of the process Defendants followed is accounted for

21 in DACA policy and immigration law, and Plaintiffs were forewarned of the risk to their

22 DACA for engaging in criminal activity. Plaintiffs offer no support for their claim that

23 Defendants are “targeting” DACA grantees for wholesale automatic termination.

24

The Court should dismiss Plaintiffs’ amended complaint as a challenge to the

25 Government’s authority to initiate removal proceedings, which this Court lacks

26 jurisdiction to review. Furthermore, Congress has made clear that any claims the Court

27 may find cognizable, including constitutional claims, related to the initiation or conduct

28 of removal proceedings against Plaintiffs, must be raised in those proceedings before an

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1 immigration judge, and appealed to a court of appeals through the for review process if 2 necessary. If the Court were to find jurisdiction to hear these challenges to the initiation 3 of removal proceedings, it should still dismiss for failing to state a claim for which relief 4 can be granted. Deferred action is an entirely discretionary grace, not an immigration 5 benefit nor a protection from removal.

6

BACKGROUND

7

When U.S. Immigration and Customs Enforcement (“ICE”) or U.S. Customs and

8 Border Protection (“CBP”) issues a notice to appear (“NTA”) to a DACA grantee,

9 regardless of the reason, there is no requirement in the DACA SOP or elsewhere for

10 USCIS to make a separate decision to terminate the individual’s DACA or EAD.1 Rather,

11 the decision to issue an NTA to an individual with DACA is the decision to no longer

12 defer action against that individual, and the charge selected for the NTA does not have to

13 reflect DHS’s full reasoning. Nothing restricts DHS’s authority to issue an NTA because

14 someone was previously found to warrant a favorable exercise of prosecutorial discretion

15 in the form of deferred action, nor is a criminal conviction or criminal charge necessary

16 to justify termination of DACA. While the Napolitano Memo and DACA SOP identify

17 and explain threshold criteria for DACA consideration, nothing limits DHS’s discretion

18 to grant, deny, or terminate DACA on a case by case basis.2 Nor is the DACA SOP the

19 only authority establishing the process by which deferred action terminates.

20

Plaintiff Arreola had his DACA and EAD terminated automatically through the

21 issuance of an NTA, after CBP law enforcement officers encountered him engaged in

22

23 1 Defendants incorporate by reference the explanation of the DACA policy, the EAD application process

24

for individuals with no lawful status, and the process by which removal proceedings are initiated through NTA issuance, provided in Defendants’ Opposition to Plaintiffs Motion for Class Certification, Section

25 II.A and B. Dkt. No. 53 at 7-13.

26 2 In fact, USCIS may still grant DACA to an individual with a disqualifying criminal conviction, See Dkt.
No. 53-1 at 70; or deny DACA to an individual with no criminal history. Id. at 38 (“Individuals may be

27 considered for DACA upon showing that they meet the prescribed guidelines . . .”); id. at 78 (“USCIS

28

lacks the authority to consider requests from individuals who are in immigration detention under the custody of ICE at the time of filing”).

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1 alien smuggling, the facts of which he conceded in an interview with Border Patrol

2 Agents. See Dkt. 23-2 at 26, 56-57. Mr. Arreola’s DACA and EAD were then reinstated

3 on November 22, 2017, and on December 20, 2017, DHS issued a Notice of Intent to

4 Terminate pursuant to this Court’s Order. See Dkt. No. 31; Dkt. No. 32 at ¶ 87.

5

On September 20, 2017, Plaintiff Gil was arrested and charged with two felonies,

6 including assault in the first degree and transferring a firearm without a background

7 check to a prohibited person. See Dkt. No. 53-1 at 4-7, 9-15. On November 6, 2017,

8 ICE issued Gil an NTA charging him with unlawful presence. Id. On November 14,

9 2017, USCIS issued him a Notice of Action, stating his DACA and EAD terminated

10 automatically with the NTA. See Dkt. No. 32 at ¶ 109.

11

On November 3, 2017, Plaintiff De Souza was arrested for forgery in the first

12 degree, a felony.3 See Dkt. 53-1 at 17-18, 20-24. De Souza admitted to police that he

13 had altered the expiration date on his driver’s license due to it expiring. Id. On

14 November 5, 2017, ICE issued De Souza an NTA charging unlawful presence, and on

15 November 10, 2017, USCIS issued a Notice of Action informing De Souza his DACA

16 and EAD terminated automatically with the NTA. Dkt. No. 32 at ¶ 129.

17

Organizational Plaintiff Inland Empire claims no injury of its own, and only

18 prospective harm to its members. See, e.g., Dkt. No. 32 at ¶ 135 (“Defendants’ unlawful

19 termination policies and practices are likely to harm IEIYC DACA recipients.”).

20

SUMMARY OF THE ARGUMENT

21

Regardless of how the arguments are framed, Plaintiffs directly challenge DHS’s

22 authority to initiate removal proceedings, which this Court should dismiss for lack of

23 subject matter jurisdiction pursuant to the Administrative Procedure Act (“APA”) and 8

24 U.S.C. § 1252. By definition, a demand to restore deferred action terminated by the

25 initiation of removal proceedings challenges the agency’s determination to initiate

26 removal proceedings. Any interpretation of these statutes that permits district court

27

28

3 Plaintiffs incorrectly assert that Plaintiff De Souza was arrested for “possession of an altered identification document—a misdemeanor.” Dkt. No. 32 at ¶ 101.

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1 challenges to actions inextricably linked to the initiation of removal proceedings would

2 run counter to Congress’s intent, to Supreme Court case law, and to the law of this

3 Circuit. Plaintiffs’ due process challenges must also fail, because they cannot show a

4 protected interest in DACA or EADs. In fact, reinstating Plaintiffs’ EADs following the

5 institution of removal proceedings would violate duly-enacted DHS regulations that

6 operate independent of, and superior to, DACA policy.

7

Additionally, Plaintiffs Arreola and Inland Empire lack standing in this matter.

8

Most importantly, and contrary to Plaintiffs’ unsupported allegations, DHS issued

9 Plaintiffs NTAs based on individualized determinations that Plaintiffs’ criminal conduct

10 rendered them enforcement priorities, and it did so with the knowledge of each Plaintiffs’

11 DACA. Thus, the decision to initiate removal proceedings preceded the consequence of

12 Plaintiffs’ DACA and EAD terminating, and no reasonable argument can be made that the 13 terminations did not arise out of that decision, such that 8 U.S.C. § 1252(g) prevents this 14 Court from reviewing either step. To the extent this Court may find Plaintiffs have any 15 viable legal claims arising from the “decision[s] or action[s]” of DHS to initiate removal 16 against these Plaintiffs, Congress enacted 8 U.S.C. §§ 1229a and 1252 to channel those 17 claims to an immigration court and ultimately to the appropriate court of appeals.

18

ARGUMENT

19 I. Standard of Review

20 A. Dismissal pursuant to Fed. R. Civ. P. 12(b)(1)

21

Because federal courts have limited jurisdiction, a court must dismiss any case if it

22 lacks subject matter jurisdiction over the claims. Fed. R. Civ. P. 12(b)(1); Owen Equip. &

23 Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). “A federal court is presumed to lack

24 jurisdiction in a particular case unless the contrary affirmatively appears.” Stock W., Inc.

25 v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).

26 The elements necessary to establish standing “must be supported in the same way as any

27 other matter on which the plaintiff bears the burden of proof.” Lujan v. Defenders of

28 Wildlife, 504 U.S. 555, 561 (1992). Moreover, when the issue of jurisdiction is separable

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1 from the merits of the case, no presumption of truthfulness attaches to a plaintiff’s

2 allegations, and the plaintiff bears the burden of proving that jurisdiction exists. Thornhill

3 Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).

4

The “irreducible constitutional minimum of standing” to assert federal court

5 jurisdiction requires “the plaintiff must have suffered an injury in fact . . . which is . . .

6 concrete and particularized, . . . the injury has to be fairly traceable to the challenged

7 action of the defendant, and . . . it must be likely . . . that the injury will be redressed by a

8 favorable decision.” Lujan, 504 U.S. at 560 (internal citations and modifications omitted).

9 “Allegations of possible future injury do not satisfy the requirements of Art[icle] III.”

10 Oregon Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin., 860 F.3d

11 1228, 1235 (9th Cir. 2017), citing Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1141

12 (2013). Finally, while an imminent future harm may establish standing, the harm alleged

13 cannot be the result of plaintiff’s own unlawful conduct. Id. at 1042, quoting O’Shea v.

14 Littleton, 414 U.S. 488, 497 (1974).

15

An organization suing on its own behalf must also show that the claimed injury is

16 “both a diversion of its resources and a frustration of its mission.” La Asociacion de

17 Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010). 18 An organization suing on behalf of its members must show that: “(1) its members would

19 otherwise have standing to sue in their own right; (2) the interests it seeks to protect are 20 germane to the organization’s purpose; and (3) neither the claim asserted nor the relief

21 requested requires the participation of individual members in the lawsuit.” Int’l Union, 22 United Auto., Aerospace & Agr. Implement Workers of Am. v. Brock, 477 U.S. 274, 282 23 (1986).

24

B. Dismissal pursuant to Fed. R. Civ. P. 12(b)(6)

25

To survive dismissal under Rule 12(b)(6), “the complaint must allege sufficient

26 facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

27 550 U.S. 544, 555-56 (2007). Although the Court must accept as true all well-pleaded

28 factual allegations when determining the legal sufficiency of a claim, it need not credit

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1 “legal conclusion couched as a factual allegation.” Id. at 555. “Threadbare recitals of the

2 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). .

4 II. Plaintiff Inland Empire should be dismissed for lack of standing

5

Plaintiff Inland Empire lacks standing on its own and lacks standing on behalf of

6 its members. Inland Empire describes the work that it has done for and with DACA 7 recipients, both as members and as clients, since the policy’s inception. See Dkt. No. 32

8 at 29-31. However, Inland Empire makes no claim that the Government’s actions have

9 diverted its resources or frustrated its mission in the service of members who have lost

10 DACA without advanced notice or an opportunity to respond. See La Asociacion de

11 Trabajadores de Lake Forest, 624 F.3d at 1088. Nor does Inland Empire identify a single

12 member of its organization who has lost DACA with or without advanced notice. In fact,

13 Plaintiff is clear that its sole concern in this matter is the prospective harm its members

14 may possibly face in the future. Dkt. No. 32 at ¶ 135 (“Defendants’ unlawful termination

15 policies and practices are likely to harm IEIYC DACA recipients.”); Or. Prescription

16 Drug Monitoring Program, 860 F.3d at 1235.

17

Thus, Inland Empire has not shown organizational injury, and it may not represent

18 its individual members unless those members themselves would have standing as

19 plaintiffs, and then only if those individual members would not be required to participate

20 in the lawsuit. Brock, 477 U.S. at 282. Here, Plaintiffs’ amended complaint does not

21 establish standing for even one of Inland Empire’s members. Even if it did, the very fact-

22 specific inquiry necessary to determine why such a fictional plaintiff lost his or her

23 DACA, and whether he or she would be entitled to additional process before such

24 termination, would require that person to participate in the lawsuit. Plaintiffs offer no

25 rationale to overcome these requirements. Furthermore, while Inland Empire alleges

26 future potential harm to its members even if they do not commit any disqualifying

27 conduct, the only present harm plaintiffs allege in their complaint is DACA termination

28

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1 that was based on the unlawful conduct of the plaintiffs.4 And a plaintiff may not assert

2 standing based on future harm that would only occur if the plaintiff first engages in

3 unlawful behavior. Hodgers-Durgin, v. de la Vina, 199 F.3d 1037, 1042 (9th Cir. 1999).

4 Plaintiffs offer no examples of a DACA recipient whose DACA automatically terminated

5 without having first engaged in criminal activity. Thus, they show no basis for standing

6 on the premise that such an action might occur to one of their members sometime in the

7 future. Because Plaintiff Inland Empire fails to meet the standing requirements for an

8 individual or an organization, it should be dismissed from this action.

9 III. Plaintiff Arreola Robles should be dismissed from this action for lack of

10

standing and because his claim is no longer ripe

11

Because Plaintiff Arreola’s DACA and EAD were reinstated on November 22,

12 2017, pursuant to this Court’s Order, and he subsequently filed an amended complaint on

13 December 21, 2017, the grounds he asserted for standing in his original complaint are no

14 longer before this Court, and he has failed to establish any injury in the amended

15 complaint ripe for this Court’s adjudication. See Dkt. Nos. 31, 32. As discussed in the

16 previous section, the Court may not find standing based on the possibility of future harm

17 to cure his present lack of standing, particularly if that possible future harm is predicated

18 on Plaintiff’s future unlawful conduct.

19

When “a plaintiff files a complaint in federal court and then voluntarily amends the

20 complaint, courts look to the amended complaint to determine jurisdiction.” Rockwell

21 Int'l Corp. v. United States, 549 U.S. 457, 473 (2007). Thus, the fact that Plaintiff Arreola

22 had a valid DACA grant at the time he filed his amended complaint means he lacks

23 standing to assert any injury from the termination of his DACA in the present action.

24

Furthermore, where Defendants have issued Plaintiff Arreola a Notice of Intent to

25 Terminate his DACA, along with an opportunity to respond to their intended action, the

26 possibility that he will experience automatic termination of his DACA without such

notice and opportunity in the future (or that such a termination would be based on

27

28 4 As explained below, the particular charge of unlawful presence on each plaintiff’s NTA is not the only
reason the NTA was issued, and the lack of additional charges on the NTA does not infirm the process.
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1 something other than his criminal conduct) is essentially nil. Additionally, Plaintiff

2 Arreola’s challenge to his ongoing NOIT process – intending to terminate his DACA

3 based on the determination that he is an enforcement priority – is not ripe because

4 Defendants’ action is not final. See 5 U.S.C. § 704 (“Agency action made reviewable by

5 statute and final agency action for which there is no other adequate remedy in a court are

6 subject to judicial review.”); Kings Cty. v. Surface Transp. Bd., 694 F. App’x 472, 473

7 (9th Cir. 2017) (“We have neither Constitutional jurisdiction nor statutory jurisdiction

8 because the Declaratory Order was not final. Expressing our views regarding that order

9 would amount to an advisory opinion, which would not resolve ‘concrete legal issues,

10 presented in actual cases, not abstractions.’”) (citations omitted). Plaintiff Arreola now

11 has the opportunity to argue to USCIS that his DACA should not be terminated. Though

12 Defendants maintain that the decision to terminate any individual’s DACA is committed 13 to agency discretion and ultimately unreviewable, the lack of a final agency decision in 14 Plaintiff Arreola’s case is an additional basis for this Court to dismiss him from this 15 action.

16 IV. This Court must dismiss the amended complaint because Plaintiffs fail to

17

establish this Court’s jurisdiction

18

The Court lacks jurisdiction over Plaintiff’s APA and Constitutional claims. First, this

19 Court lacks jurisdiction to review any challenge to DHS’s discretionary determination to issue

20 an NTA, which had the result of automatically terminating DACA and EAD. Second, Plaintiffs

21 cannot state a claim because there is no protected entitlement to DACA or employment

22 authorization. Finally, nothing in the APA or constitutional jurisprudence, nor Defendants’ own

23 policies and guidance, supports a right to review or constrain DHS’s exercise of discretion or to

24 grant Plaintiffs procedural rights other than those available through removal proceedings.

25

A. DHS’s discretion to initiate removal proceedings and their effect on the termination of Plaintiffs’ DACA is not reviewable.

26

The APA permits persons aggrieved by final agency action to obtain judicial review in

27 federal court where “there is no other adequate remedy in a court.” See 5 U.S.C. §§ 702, 704. A

28 reviewing court shall set aside agency action found to be “arbitrary, capricious, an abuse of

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1 discretion, or otherwise not in accordance with law,” or “without observance of procedure

2 required by law.” 5 U.S.C. § 706(2)(A), (D). However, the APA precludes judicial review of

3 agency decisions when “statutes preclude judicial review,” or when the decision is “committed

4 to agency discretion by law.” 5 U.S.C. § 701(a)(1), (a)(2); see Heckler v. Chaney, 470 U.S. 821,

5 830 (1985) (“even where Congress has not affirmatively precluded review, review is not to be

6 had if the statute is drawn so that a court would have no meaningful standard against which to

7 judge the agency's exercise of discretion.”).

8

Thus, there are two reasons APA jurisdiction is not available here. First, there is no

9 separate decision to terminate DACA in these cases because a DHS law enforcement officer

10 decided, in consideration of each plaintiff’s criminal activity, to initiate removal proceedings

11 and issued an NTA that automatically terminated DACA; and second, even if the Court found a

12 separate decision was made, there is still no standard in the SOP or otherwise by which the

13 Court may review a decision that deferring action is no longer in the Government’s interest.

14

Additionally, the Court lacks jurisdiction over Plaintiffs’ constitutional claims

15 because Plaintiffs necessarily lack a protected constitutional interest in the process by

16 which their DACA is terminated, because the ultimate relief they seek – deferred action –

17 is discretionary. Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005).

18

i. Judicial review is barred under 5 U.S.C. § 701(a)(1) because the INA

19

limits review of Plaintiffs’ claims, which arise from DHS’s decision to commence Plaintiffs’ removal proceedings.

20

Congress eliminated judicial review over “any cause or claim by or on behalf of

21 any alien . . . arising from the decision or action . . . to . . . adjudicate cases . . .” 8 U.S.C.

22 § 1252(g). The issuance of an NTA is a necessary predicate to commencing removal

23 proceedings. 8 U.S.C. § 1229(a). Through section 1252(g), Congress explicitly precluded

24 judicial review of any challenge arising from any decision or action to commence

25 removal proceedings. See Reno v. Am.-Arab Anti-Discrimination Comm. (“AADC”), 525 U.S.

26 471, 483-85 (1999) (finding section 1252(g) also precludes review of the discretionary decision

27 to not initiate removal proceedings); see, e.g., Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th

28 Cir. 2012) (holding section 1252(g) barred jurisdiction to review the BIA’s discretionary

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1 decision to not reopen removal proceedings to consider a DACA request).5 The Supreme

2 Court explained that section 1252(g) was “directed against a particular evil: attempts to

3 impose judicial constraints upon prosecutorial discretion.” AADC 588 F.3d at 485 n.9; id.

4 at 485 (treating “‘no deferred action’ decisions” as “discretionary determinations”); cf.

5 Silva v. United States, 866 F.3d 938, 940 (8th Cir. 2017) (section 1252(g) precludes

6 review of decision to execute removal order even where claim that agency lacked

7 discretion because removal violated law).

8

Section 1252(g) encompasses “cause[s] or claim[s]” that arise from the decision

9 “or action” to “commence proceedings” against any individual. See, e.g., Sissoko v.

10 Rocha, 509 F.3d 947, 948-50 (9th Cir. 2007) (finding claim of money damages arose

11 from decision or action to commence removal proceedings and was, thus, barred by 8 12 U.S.C. § 1252(g)); see, e.g., Alcaraz v. INS, 384 F.3d 1150, 1160-61 (9th Cir. 2004) 13 (finding review of the reopening of removal proceedings, but not the administrative 14 closure of proceedings, was barred from review as an action related to the decision to 15 commence removal); Botezatu v. INS, 195 F.3d 311, 314 (7th Cir. 1999) ( (discussing the 16 scope of 8 U.S.C. § 1252(g) as including “various decision . . . leading up to order 17 consequent upon final orders of deportation.”) (citations and quotations omitted).6 A 18 DACA grant is acknowledgement that DHS is not presently pursuing removal against an 19 individual. Thus, when DHS finds an individual has become an enforcement priority and 20 issues an NTA, DACA will logically terminate and such consequence falls squarely 21 within the province of section 1252(g). See, e.g., Alcaraz, 384 F.3d at 1160-61. To hold 22 otherwise would render section 1252(g) a dead letter because any individual could seek 23 to enjoin or otherwise challenge the commencement of removal proceedings through this

24 5 This authority is consistent with earlier case law interpreting the 1981 Operating Instructions, a previous

25 policy that provided guidelines for the exercise of deferred action. See Romeiro de Silva v. Smith, 773

26

F.2d 1021, 1025 (9th Cir. 1985). 6 Wong v. United States, 373 F.3d 952 (9th Cir. 2004), is distinguishable from this case and Sissoko, where

27 the issuance of Plaintiffs’ NTAs occurred before, and were the direct cause of, termination of Plaintiffs’

28 DACA and EADs.

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1 type of creative pleading. See Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001)

2 (holding that “a petitioner may not create the jurisdiction that Congress chose to remove

3 simply by cloaking [a claim] in constitutional garb”).7

4

Applied to the context of this case, a challenge to the decision to terminate DACA

5 by the issuing an NTA is a necessarily a challenge that arises out of the decision or action

6 to initiate removal proceedings because the NTA is the document that is used to initiate

7 removal proceedings. See 8 U.S.C. § 1252(g). Thus, 8 U.S.C. § 1252(g) necessarily bars

8 judicial review. See Vilchiz-Soto, 688 F.3d at 644.

9

To the extent that Plaintiffs have any viable claims, the REAL ID Act, codified at 8

10 U.S.C. §§ 1252(a)(5) and 1252(b)(9), bars them from raising those claims in district

11 court, regardless of whether a final order of removal has issued. Section 1252(a)(5),

12 entitled “[e]xclusive means of review,” requires that “a petition for review filed with an

13 appropriate court of appeals . . . shall be the sole and exclusive means for judicial review

14 of an order of removal . . . .” 8 U.S.C. § 1252(a)(5). Section 1252(b)(9) provides

15 “[j]udicial review of all questions of law and fact, including interpretation and application

16 of constitutional and statutory provisions, arising from any action taken or proceeding

17 brought to remove an alien from the United States under this subchapter shall be available

18 only in judicial review of a final order under this section.” 8 U.S.C. § 1252(b)(9)

19 (emphasis added); see, e.g., J.E.F.M., 837 F.3d at 1038 (district court lacked jurisdiction

20 over challenge to adequacy of removal procedures, and instead court of appeals has

21 authority to resolve questions of constitutional rights on review of a final removal order).

22

Importantly, the Ninth Circuit found that Section 1252(b)(9) is “a clear statutory

23 prescription against district court review” of challenges arising from removal proceedings

24 for plaintiffs who had not yet received final orders of removal. See J.E.F.M., 837 F.3d at

25

26 7 In analogous circumstances, the Eleventh Circuit Court of Appeals affirmed the applicability of Section
1252(g) to bar district court review of the automatic termination of discretion-based employment

27 authorization documents following the commencement of removal proceedings, in accordance with 8

28

C.F.R. § 274a.14(a)(1)(ii). See Gupta v. Holder, No. 611CV1731ORL35GJK, 2011 WL 13174873, at *1 (M.D. Fla. Oct. 31, 2011), aff’d sub nom. Gupta v. U.S. Atty. Gen., 485 F. App’x 386 (11th Cir. 2012).

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1 1035-38 (“The minors . . . attempt to get around [section 1252(b)(9)] by claiming that

2 they have been (or will be) denied meaningful judicial review in light of their juvenile

3 status.”) (emphasis added). While the Court acknowledged that “an unrepresented minor

4 in immigration proceedings poses an extremely difficult situation,” it also found “these

5 considerations cannot overcome a clear statutory prescription against district court

6 review. Relief is through review in the court of appeals or executive or congressional

7 action.” Id. at 1036-1038.8

8

Congress’s intent was simple and uncontroversial: if the issue is one that can be

9 raised in removal proceedings, and ultimately in a petition for review, then the statute

10 precludes district court review. See id. at 1034 (citing H.R. Rep. No. 109-72, at 173

11 (statute was “intended to preclude all district court review of any issue raised in a removal

12 proceeding”)); cf. Aguilar, 510 F.3d at 9-10 (“Congress plainly intended to put an end to

13 the scattershot and piecemeal nature of the review process . . . .”). This approach

14 effectuates the general rule precluding simultaneous review of a question by both an

15 administrative body and a federal court. See Acura of Bellevue v. Reich, 90 F.3d 1403,

16 1408-9 (9th Cir. 1996).

17

Here, the sequence of events could not be more clear: Plaintiffs engaged in criminal

18 conduct, DHS determined their conduct rendered them enforcement priorities, DHS issued

19 each an NTA, the respective NTA caused each Plaintiff’s DACA and EAD to terminate,

20 and Plaintiffs filed this challenge. There can be no doubt that DHS’s discretionary

21 decision to issue NTAs was the direct cause of Plaintiffs’ DACA terminations. See Dkt.

22

23 8 The Court’s previous reliance on Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007), to support section
1252(b)(9) applying only to a final order of removal is misplaced because that language is dicta and

24 conflicts with the plain language of the statute. Dkt. No. 31 at 7. Singh brought a challenge of ineffective

25

assistance of counsel through a habeas petition, and the Court found that the challenge was not tied to removal proceedings, so section 1252(b)(9) did not apply regardless of whether a final order had issued.

26 Singh, 499 F.3d at 978-79. To interpret Singh as permitting district court challenges such as those raised
here runs counter to Congressional intent, and would effectively excise the words “any action taken” from
27 the statute. See Aguilar, 510 F.3d at 10; cf. Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012) (an

28

APA claim “challeng[ing] the procedure and substance of an agency determination that is ‘inextricably linked’ to the order of removal” must be channeled through the petition for review process).

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1 53-1 at 4-24. Thus, Plaintiffs’ challenges necessarily arise from “action taken or

2 proceedings brought to remove an alien,” for which district courts lack jurisdiction.

3

ii. Judicial review of Plaintiffs’ claims is also barred under 5 U.S.C.

4

§ 701(a)(2), because how and when an NTA issues is committed to

agency discretion

5

There is no judicial review under the APA of decisions that “courts traditionally

6 have regarded as ‘committed to agency discretion.’” Lincoln v. Vigil, 508 U.S. 182, 192 7 (1993) (quoting 5 U.S.C. § 701(a)(2)). These decisions are typically unreviewable

8 because there exists “no meaningful standard against which to judge the agency’s

9 exercise of discretion.” Chaney, 470 U.S. at 830. This bar applies even when “the agency 10 gives a ‘reviewable’ reason for otherwise unreviewable action.” ICC v. Bhd. of 11 Locomotive Eng’rs, 482 U.S. 270, 283 (1987) (“BLE”).

12

The decisions committed to executive discretion include “an agency’s exercise of

13 enforcement power.” Chaney, 470 U.S. at 831. Such judgments involve “a complicated

14 balancing of factors which are peculiarly within [an agency’s] expertise,” including

15 “whether agency resources are best spent on this violation or another, whether the agency

16 is likely to succeed if it acts, whether the particular enforcement action requested best fits

17 the agency’s overall priorities, and, indeed, whether the agency has enough resources to

18 undertake the action at all.” Id. As there is “no meaningful standard against which to

19 judge the agency’s exercise of discretion” in weighing these factors, an agency’s exercise

20 of enforcement powers is “presumed immune from judicial review under § 701(a)(2).” Id.

21 at 830, 832.

22

An agency’s decision to enforce the law against a particular individual is likewise

23 presumptively unreviewable. Just as “the decision whether or not to prosecute”

24 presumptively “rests entirely in [the prosecutor’s] discretion,” United States v. Armstrong,

25 517 U.S. 456, 464 (1996) (citation omitted), an agency’s decision to bring a civil

26 enforcement action is generally not open to judicial scrutiny. Considerations such as the

27 Chaney factors are equally present in enforcement decisions as in nonenforcement

28

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1 decisions. See Chaney, 470 U.S. at 831; see also Wayte v. United States, 470 U.S. 598,

2 607-8 (1985) (“[T]he decision to prosecute is particularly ill-suited to judicial review”).

3

One form of that broad discretion is deferred action, a “discretionary and

4 reversible” decision to notify an alien that DHS has chosen not to seek his removal for a

5 specific period of time. Arpaio v. Obama, 797 F.3d 11, 17 (D.C. Cir. 2015). Like other

6 agency nonenforcement decisions, grants of deferred action rest on a complex balancing

7 of policy considerations that cannot serve as “meaningful standard against which to judge

8 the agency’s exercise of discretion.” Chaney, 470 U.S. at 831. The converse is equally

9 true: denials of deferred action are also committed to agency discretion. See AADC, 525

10 U.S. at 485 (treating “‘no deferred action’ decisions” as “discretionary determinations”).

11 Because “[g]ranting an illegally present alien permission to remain and work in this

12 country” is fundamentally “a dispensation of mercy,” there are “no standards by which

13 judges may patrol its exercise.” Perales v. Casillas, 903 F.2d 1043, 1051 (5th Cir. 1990)

14 (INS’s decision not to grant pre-hearing voluntary departures and work authorizations to

15 a group of aliens was non-justiciable).

16

Even where an agency has promulgated regulations or provided internal guidance,

17 decisions involving the exercise of prosecutorial discretion are generally not subject to

18 judicial review. See Pasquini v. Morris, 700 F.2d 658, 659 (11th Cir. 1983) (holding that

19 Immigration and Naturalization Service (“INS”) Operating Instructions regarding

20 deferred action did not confer substantive rights on an alien and courts could not review a

21 claim that INS failed to comply with these internal instructions).

22

Thus, individual DACA terminations, especially where based on issuance of NTAs,

23 fall squarely within that category of agency discretion for which judicial review is

24 improper. See Chaney, 470 F.3d at 830; see also Morales de Soto v. Lynch, 824 F.3d 822, 25 828 (9th Cir. 2016) (noting that “the exercise of prosecutorial discretion is a type of

26 government action uniquely shielded from and unsuited to judicial intervention”). In 27 Plaintiffs’ cases, there is no legal question with regard to the DACA guidelines, because 28 the DACA guidelines merely allow an individual to seek a discretionary administrative

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1 grace in the form of DACA. See Dkt. No. 53-1 at 38 (“Individuals may be considered for

2 DACA upon showing that they meet the prescribed guidelines . . .”). DACA is unlike

3 immigration benefits where eligibility is found in statute or regulation, and which Courts

4 have found that the non-discretionary denial of such benefits may be reviewed.9

5

Here, Plaintiffs are challenging DHS’s exercise of its enforcement power granted

6 by Congress. See Dkt. 32 Prayer for Relief (seeking to “Enjoin Defendants from revoking

7 the DACA grants and EADs . . . based on the filing of an NTA charging solely” unlawful

8 presence). This is a classic challenge to DHS’s exercise of its prosecutorial discretion.

9 See Chaney, 470 U.S. at 831. This type of enforcement decision involves a balancing of

10 factors committed to agency discretion by law, including how to allocate agency

11 resources. See id.; Armstrong, 517 U.S. at 464. The question for DHS was not whether it

12 could exercise its discretion in favor of the Plaintiffs, but rather whether it should do so in

13 each case. Because this type of discretionary determination is committed to DHS

14 discretion by law, this Court lacks jurisdiction to review Plaintiffs’ claims.

15

iii. Plaintiffs cannot state a constitutional claim because the termination

16

of DACA does not implicate a constitutional interest.

17

Plaintiffs assert incorrectly that “[i]ndividuals who have been granted DACA have

18 important constitutionally protected interests in their DACA grant and employment

19 authorization.” Dkt. No. 32 at ¶ 164. However, Plaintiffs necessarily lack a protected

20 constitutional interest in their DACA and in the process to terminate DACA because the

21 ultimate result sought – deferred action – is discretionary, and because the Government

22 never expressed a mutual intention to confer a protected benefit in DACA.

23

24 9 The Court’s reliance on United States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004) (en banc) and

25

Madu v. U.S. Attorney Gen., 470 F.3d 1362 (11th Cir. 2006) is misplaced. In both cases, courts reviewed a “purely legal question” that set the stage for a discretionary decision. However, the DACA SOP

26 identifies threshold criteria for DACA consideration, but it does not mandate granting DACA if those
threshold criteria are met. See Dkt. No. 53-1 at 38 (“Individuals may be considered for DACA upon
27 showing that they meet the prescribed guidelines . . .”). Even if the Court finds those criteria enforceable,

28

they are not the subject of the exercises of prosecutorial discretion to issue NTAs, which terminate DACA notwithstanding compliance with the threshold criteria.

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1

The “Due Process Clause does not protect everything that might be described as a

2 ‘benefit.’” Castle Rock, 545 U.S. at 756. Particular due process rights must be established

3 on the basis of entitlement to a property or liberty interest, the risks of loss associated

4 with deprivation of that interest, and the competing interests of the government in not

5 providing that interest. Landon v. Plasencia, 459 U.S. 21, 34 (1982) (quoting Mathews v.

6 Eldridge, 424 U.S. 319, 334-335 (1976)). The Court may view DACA recipients’

7 circumstance as unfortunate, but neither the Constitution nor Congress provides an

8 individual in unlawful status a protected interest in living or working in the United States,

9 or in discretionary relief from removal. Cf. Hoffman Plastic Compounds, Inc. v. NLRB,

10 535 U.S. 137, 151-52 (2002) (holding, as a general matter, an individual who is not

11 authorized to work in the United States does not have a right to work); see also Garcia v.

12 Holder, No., 07-60271, 320 F. App’x 288, 290 (9th Cir. April 9, 2009).

13

Nor can Plaintiffs claim an entitlement in this case that creates a Constitutional

14 interest. “To have a property interest in a benefit, a person clearly must have more than an

15 abstract need or desire for it. He must have more than a unilateral expectation of it. He

16 must, instead, have a legitimate claim of entitlement to it.” Blantz v. Cal. Dep’t of Corr. &

17 Rehab., 727 F.3d 917, 922 (9th Cir. 2013) (citing Bd. of Regents of State Colleges v. Roth,

18 408 U.S. 564, 577 (1972)); see also Mendez-Garcia v. Lynch, 840 F.3d 655, 665 (9th Cir.

19 2016) (underscoring that aliens cannot claim a cognizable due process interest in

20 discretionary immigration relief or benefits). The Supreme Court, however, has held that

21 even a practice of “generously” granting a “wholly and expressly discretionary state

22 privilege” does not create a legal entitlement to that benefit. See Regents, 2018 WL

23 339144 at *4 (citing Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1020-21 (9th Cir.

24 2011)) (“A person’s belief of entitlement to a government benefit, no matter how 25 sincerely or reasonably held, does not create a property right if that belief is not mutually

26 held by the government.”).

27

Plaintiffs possess no lawful status, thus no protected interest in living or working in

28 the United States. DACA policy has never purported to alter that, and nor may this Court.

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1 Landon, 459 U.S. at 35 (“The role of the judiciary . . . does not extend to imposing

2 procedures that merely displace congressional choices of policy.”). Because DACA is

3 discretionary, it does not give rise to a protected right to work in the United States. See

4 Dkt. No. 16-28 at 2 (“This [DACA grant] does not constitute employment authorization,

5 nor may it be used in place of an [EAD].”). Nor does DACA confer lawful status. See

6 Dkt. No. 16-13 (“This memorandum confers no substantive right, immigration status or

7 pathway to citizenship.”). DACA is not protection from removal. See Dkt. No. 16-23

8 (“DACA is an exercise of prosecutorial discretion and deferred action may be terminated

9 at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion.”).

10

Plaintiffs’ claims regarding an interest in employment authorization and other

11 public benefits like driver’s licenses are particularly misplaced, because there is no right

12 to the receipt of either, and no judicial review of the decision to terminate an EAD once

13 granted. See Dkt. No. 32 at ¶ 35; Pilapil v. INS, 424 F.2d 6, 11 (10th Cir. 1970); see also

14 Perales, 903 F.2d at 1047-48 (“[T]here is nothing in the [INA] expressly providing for

15 the grant of employment authorization . . . to aliens who are the beneficiaries of approved

16 petitions”) (vacating the challenged portion of the injunction); Gupta, 2011 WL

17 13174873 at *1 (finding a challenge to the termination of EAD upon initiation of removal

18 proceedings was an impermissible challenge to the discretionary decision to initiate

19 removal proceedings). In the condtext of Plaintiffs’ claims here that they have a right to

20 DACA and therefore EADs, the Ninth Circuit has refused the same proposition. See Neri,

21 229 F. App'x at 508 (an individual “has no substantive due process right to discretionary

22 relief from removal or deportation.”); Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir.

23 2003) (finding no liberty interest in discretionary forms of relief from deportation).

24

In fact, every individual with employment authorization based on 8 C.F.R.

25 § 274a.12(c), including those with deferred action, is subject to automatic termination of

26 their EAD upon institution of removal proceedings in an immigration court. See 8 C.F.R. 27 § 274a.14(a)(1)(ii); 8 C.F.R. §§ 1003.13, 1003.14. No notice or opportunity to respond is 28 afforded to any deferred action recipient in this posture, and Plaintiffs point to nothing

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1 that supports a contrary finding. Cf. Gupta, 2011 WL 13174873 at *1 (denying challenge

2 to automatic EAD termination). Because EAD termination is not tied to operation of the

3 DACA SOP, Plaintiffs’ claims of harm regarding EAD loss must fail. Further, the DACA

4 SOP instructs USCIS to defer to existing law and regulations where there is any conflict

5 with the SOP. See Dkt. No. 16-24 at 17, DACA SOP Chapter One (“Any provision of the

6 [INA] or 8 C.F.R. found . . . to be in conflict with this SOP will take precedence over the

7 SOP.”). Thus, it would be inappropriate for the Court to find the SOP requires a process

8 before termination of a DACA-based EAD due to NTA issuance by CBP or ICE, which is

9 contrary to the plain language of the duly promulgated regulation.

10

Furthermore, under DHS regulations, an individual with deferred action who has

11 lost his EAD due to having been placed into removal proceedings may reapply for an

12 EAD if he or she becomes eligible again under a category of subsection 274a.12(c). Only

13 if employment authorization is granted again would the individual then be eligible to

14 apply to their state authority for a driver’s license or Social Security card. ADAC, 757

15 F.3d at 1061. Thus, the peripheral benefits Plaintiffs cite to illustrate the urgency of the

16 relief they seek are two steps removed from the relief this Court can grant.10

17

For these reasons, and because Plaintiffs by definition concede removability and

18 challenge only termination of a discretionary temporary grant of deferred action from

19 removal, “the Court cannot conclude that the government has deprived [plaintiffs] of

20 [their] liberty interest in remaining in the United States without due process of law.”

21 Mendez de Leon v. Reno, No. C 97-02482 CW, 1998 WL 289321, at *7 (N.D. Cal. Mar.

22 26, 1998).

23

B. Plaintiff’s Fail to State a Claim Under the APA.

24

Even if this Court finds that it would have jurisdiction over any of Plaintiffs’

25 claims, the Court should still dismiss Plaintiffs’ amended complaint because Plaintiffs’

26 fail to state a claim upon which relief can be granted. Plaintiffs cannot establish either an

27

28

10 None of the provisions that Plaintiffs cite at 8 U.S.C. §§ 1611(b)(2)–(3) and 1621(d) depends directly on the receipt of DACA. Dkt. No. 32 at ¶ 35.

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1 administrative or a constitutional right to receive any process regarding the termination of

2 DACA because deferred action is necessarily an exercise of the Executive’s prosecutorial

3 discretion. See Chaney, 470 U.S. at 831; Regents, 2018 WL 339144 at *18 (“Congress has

4 been free to constrain DHS’s discretion with respect to granting deferred action, but it has yet to

5 do so.”). In fact, DHS acted based on that discretion by issuing NTAs based on Plaintiffs’

6 criminal activity. Thus, the limited grace a temporary grant of DACA serves to recognize

7 was overridden by the Government’s determination that Plaintiffs had become

8 enforcement priorities. See Dkt. No. 53-1 at 4-7, 17-18. Defendants respectfully disagree with

9 the Court’s prior order granting a preliminary injunction to Plaintiff Arreola, see Dkt. No. 31,

10 and endeavor to address that order here. Id. at 9, 11, 12.

11

i. DACA termination by NTA is provided for in the DACA SOP and

12

policy documents, and in DHS policy and regulations.

13

There is no support in the Napolitano Memo for the proposition that DACA policy

14 limits ICE or CBP’s authority to issue NTAs that will have the effect of terminating

15 grants of deferred action, like DACA. See Dkt. No. 16-13. Contrary to the Court’s

16 previous finding, the Napolitano memo does not limit this authority only for the period

17 “as DACA was developed.” Dkt. No. 31 at 12.

18

Nor does DHS guidance prevent immigration enforcement agencies from

19 terminating DACA by issuing an NTA. The authority to issue an NTA is vested with all

20 DHS immigration officers. See 8 C.F.R. § 239.1(a). However, DHS divides NTA issuance

21 responsibility between USCIS in its administrative capacity, and ICE and CBP in their

22 law enforcement capacities. See 2011 NTA Memo, Dkt. No. 16-25. USCIS is required to

23 refer all cases involving criminal conduct, not limited to Egregious Public Safety

24 (“EPS”), to ICE. Id. at 5. USCIS’s decision to issue an NTA on its own under such

25 circumstances must follow ICE’s lead. Id. at 5 & 6 (“USCIS will not issue an NTA in

26 these cases if ICE declines to issue an NTA.”) (emphasis added); id. at 2 (“USCIS must

ensure that its issuance of NTAs fits within and supports the Government’s overall

27

28 removal priorities . . . .”). When a case is referred by USCIS, ICE may issue an NTA that

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1 automatically terminates DACA, with no additional notice or opportunity to respond. See

2 Dkt. No. 16-24 at 39.

3

The effect of NTA issuance on DACA termination is unremarkable, and is

4 recognized elsewhere in the DACA SOP. See Dkt. No. 53-1 at 91-92 (providing that

5 USCIS will deny, without advance notice and an opportunity to respond, a DACA request

6 from an individual in immigration detention who ICE intends to release but who ICE

7 indicates is an enforcement priority). While the SOP instructs USCIS to “discuss” a

8 disagreement it may have with ICE’s finding, id., there is no provision permitting USCIS

9 to reverse ICE’s decision. See Vasquez v. Aviles, 639 F. App’x 898, 901 (3d Cir. 2016)

10 (finding no jurisdiction based on Section 1252(g) to review an ICE officer’s unilateral

11 denial of a DACA request to a detained individual because “that decision involves the

12 exercise of prosecutorial discretion not to grant a deferred action.”).11

13

Indeed, where DHS has worked to ensure that ICE’s determination that someone is

14 an enforcement priority would not be conflicted by a later discretionary exercise by

15 USCIS to grant deferred action in the form of DACA, and where the Napolitano Memo

16 specifically preserves the NTA authority of ICE and CBP upon consideration of the

17 DACA guidelines, it takes a particularly strained reading of the Napolitano Memo and

18 DACA SOP to find that ICE and CBP cannot issue NTAs that have the effect of

19 terminating DACA. In fact, the Court’s and Plaintiffs’ interpretation of Defendants’

20 guidance creates an absurd scenario in which ICE would institute new administrative

21 removal proceedings against an individual while that individual seeks additional separate

22 legal process regarding the termination of their DACA. That scenario also strips the

23

24 11 The Court’s prior order improperly concludes that the SOP termination chapter requires USCIS to

25

adjudicate a termination after ICE has issued an NTA for EPS. Dkt. No. 31 at 9. While the NTA Memo states “ICE’s issuance of an NTA allows USCIS to proceed with adjudication . . . ,” Dkt. No. 16-25 at 5

26 (emphasis added), the guidance is optional and the DACA SOP explicitly diverges from it in important
ways. The DACA SOP termination chapter instructs USCIS to follow the NTA Memo, but also states that

27 ICE’s issuance of an NTA on an EPS referral from USCIS “will result in the termination of DACA.” Dkt.

28 No. 16-24 at 38; see also id. at 34 (“USCIS “will deny the DACA request.”) (emphasis added).

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1 immigration enforcement agencies of their most critical authority. Regents, 2018 WL

2 339144, at *1 (“One of the key enforcement tools under the INA is removal, i.e.,

3 deportation. In turn, ‘[a] principal feature of the removal system is the broad discretion

4 exercised by immigration officials.’”(citing Arizona v. United States, 567 U.S. 387, 396

5 (2012))).12

6

DHS’s discretion to initiate removal proceedings that have the effect of terminating

7 DACA is not impeded by DACA policy or immigration law in any way, and so this Court

8 should dismiss Plaintiffs’ amended complaint alleging otherwise.

9

ii. There is no requirement that an NTA charge more than unlawful

10

presence, nor is it arbitrary to rely on the decision to issue an NTA.

11

Plaintiffs argue, and this Court agreed, that USCIS impermissibly relies on only

12 unlawful presence as the charge listed in an NTA as the sole basis to terminate DACA.

13 Dkt. No. 31 at 6, 10: Dkt. No. 32 at ¶¶ 159, 165. However, that conclusion relies on a

14 starkly oversimplified consideration of the NTA decision process. See, e.g., Dkt. No. 53-1

15 at 9-15, 20-24 (summaries of the information considered in Plaintiffs’ NTA issuances).

16 There is no basis in the SOP or other DACA-related guidance for the Court to find that an

17 NTA charging removability on the basis of presence without admission is not sufficient to

18 terminate DACA. Nor can Plaintiffs establish that an individual in receipt of an NTA

19 based on unlawful presence cannot also have been found to be an enforcement priority.

20

First, the charges listed in an NTA are not dispositive of the reasons for issuing an

21 NTA.13 DHS is under no obligation to charge an individual with anything more than

22

23

12 The fact that USCIS may grant DACA to nondetained aliens in removal proceedings or with final orders of removal does not change this analysis. Just as USCIS has the discretion to grant DACA to those

24

requestors based on the totality of circumstances, nothing in DHS policy or guidance prohibits ICE, CBP, or USCIS from similarly exercising discretion to terminate DACA on a case by case basis as an exercise

25 of agency discretion.

26 13 This proposition is wholly consistent with the denial portion of the DACA SOP, which provides that,
while to be considered, the charges filed in an NTA are not determinative to the ultimate discretion

27 decision regarding DACA. Dkt. No. 53-1 at 65 (“Do not rely solely on the grounds listed in the charging

28

document [. . . ;] review all derogatory information in its totality and then make an informed assessment regarding the appropriate exercise of prosecutorial discretion for DACA.”).

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1 unlawful presence. Addy v. Sessions, 696 F. App’x 801, 804 (9th Cir. 2017) (rejecting

2 argument that petitioner should have been charged with removability under a different

3 statute, because “[t]he Attorney General has prosecutorial discretion over the initiation of

4 removal proceedings, and that discretion is not reviewable.”). Rather, the decision to

5 issue an NTA is based on the immigration officer’s experience and information, and –

6 most importantly – his or her discretion. See Hernandez v. Gonzales, 221 F. App’x 588,

7 589–90 (9th Cir. 2007) (“Absent evidence to the contrary, we presume that the

8 immigration officers properly discharged their duties when issuing Hernandez’s NTA.”).

9 Notably, an NTA also need not include charges used to support the denial of relief from

10 removal. Salviejo–Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006) (denying

11 due process claim where the BIA found petitioner ineligible for cancellation of removal

12 based on a conviction not alleged in the NTA).

13

Here, the discretion exercised in issuing an NTA that has the effect of terminating

14 DACA is nothing like the arbitrary process this Court cited to in Judulang v. Holder, 565

15 U.S. 42 (2011). The Judulang Court rejected the BIA process of interpreting and

16 comparing the removability charges on an individual’s NTA against a list of charges

17 under 8 U.S.C. § 1182 that composed grounds for exclusion of an arriving alien, to

18 determine whether the individual facing removal was eligible for a form of discretionary

19 relief from removal originally reserved for arriving aliens. 565 U.S. at 489-90. The Court

20 equated the process to flipping a coin, such that some violent criminals would be eligible

21 for relief while some lawful permanent residents (“LPR”) with lesser offenses would be

22 excluded. Id. at 487 (finding the process had “no connection to the goals of the

23 deportation process or the rational operation of the immigration laws.”). Here, DACA

24 termination does not hinge on how the NTA is selected, but rather whether it is selected.

25

Moreover, the facts here demonstrate that DHS’s decision to issue NTAs that have

26 the result of terminating DACA are not “happenstance,” Dkt. No. 31 at 10; but rather, 27 NTA issuance that results in the termination of DACA represents a valid and thoughtful 28 exercise of agency discretion. The facts here demonstrate that immigration enforcement

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1 officers: (1) were specifically aware of each Plaintiffs’ DACA, see Dkt. No. 53-1 at 9-15,

2 20-24; (2) did not rely solely on unlawful presence in decisions to initiate removal against

3 Plaintiffs. Id.; see also Dkt. No. 23-2 at 26; and (3) may issue NTAs after supervisory

4 review or consultation with agency counsel. See Dkt. No 53-1 at 6 ¶ 11.

5

CONCLUSION

6

In sum, Plaintiffs Arreola and Inland Empire have failed to establish standing to

7 raise the claims in their amended complaint, and all Plaintiffs have failed to establish

8 jurisdiction for this Court to consider their challenges to the NTA process, which 9 Congress expressly precluded through section 1252. Nor can Plaintiffs show that, in the 10 termination of their DACA grants they were entitled to any additional process either 11 through statute or the Constitution. For these reasons, the Court should dismiss Plaintiffs 12 Arreola and Inland Empire and dismiss this entire action for lack of jurisdiction.

13 DATED: February 5, 2018 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Respectfully Submitted,
CHAD A. READLER Acting Assistant Attorney General WILLIAM C. PEACHEY Director JEFFREY S. ROBINS Assistant Director
/s/ James J. Walker JAMES J. WALKER Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section Washington, D.C. 20044 Tel.: (202) 532-4468 Fax: (202) 305-7000 Email: james.walker3@usdoj.gov

28

Counsel for Defendants

23 5:17-cv-2048-PSG-SHK

 
 Case 5:17-cv-02048-PSG-SHK Document 57 Filed 02/12/18 Page 1 of 18 Page ID #:1807

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)
13

14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

15

16 INLAND EMPIRE – IMMIGRANT

)

YOUTH COLLECTIVE, et al., on behalf ) Case No. 5:17-cv-02048-PSG-SHK

17 of themselves and others similarly situated, ) )

18

Plaintiffs,

19

v.

20 KIRSTJEN NIELSEN, Secretary, U.S. Department of Homeland Security, et al.,

)

) ) ) )

REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

)

21 Defendants.
22
23

) ) ) ) )

Judge: Hon. Philip S. Gutierrez Courtroom: 6A Hearing: February 26, 2018 Time: 1:30 p.m.

)

24

)

)

25

)

)

26

27

28

Case 5:17-cv-02048-PSG-SHK Document 57 Filed 02/12/18 Page 2 of 18 Page ID #:1808
1 Ahilan T. Arulanantham (SBN 237841) aarulanantham@aclusocal.org
2 Michael Kaufman (SBN 254575) mkaufman@aclusocal.org
3 Dae Keun Kwon (SBN 313155) akwon@aclusocal.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
5 Los Angeles, CA 90017 Telephone: (213) 977-5232
6 Facsimile: (213) 977-5297 7
Attorneys for Plaintiffs 8
* Admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-PSG-SHK Document 57 Filed 02/12/18 Page 3 of 18 Page ID #:1809

1

TABLE OF CONTENTS

INTRODUCTION .....................................................................................................1 2

BACKGROUND .......................................................................................................1 3

ARGUMENT .............................................................................................................5 4

5

I. The Court Should Provisionally Certify the Proposed Class for Purposes of Entering a Classwide Preliminary Injunction ...................5

6

A. The Proposed Class Satisfies the Requirements of

7

Rule 23(b)(2)...............................................................................5

8

B. Plaintiffs’ Claims Present Common Questions with Common

9

Answers.......................................................................................8

10

C. The Proposed Class Is So Numerous that Joinder Is

11

Impracticable............................................................................... 9

12

D. The Named Plaintiffs Satisfy Adequacy and Typicality ..........11

13

E. Nationwide Certification Is Appropriate in Light of Defendants’

14

Unlawful Nationwide Conduct .................................................12

15 CONCLUSION........................................................................................................12

16

17

18

19

20

21

22

23

24

25

26

27

28

i

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1

TABLE OF AUTHORITIES

2 Cases

3 Ali v. Ashcroft,
4 213 F.R.D. 390 (W.D. Wash. 2003)..........................................................................11
5 Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001).......................................................................................7
6 Arnott v. U.S. Citizenship and Immigration Servs., 7 290 F.R.D. 579 (C.D. Cal. 2012) ..............................................................................12
8 Bruce v. Christian, 9 113 F.R.D. 554 (S.D.N.Y. 1986)...............................................................................10
Califano v. Yamasaki, 10 442 U.S. 682 (1979) ..................................................................................................12
11 Chief Goes Out v. Missoula Cty., 12 No. 12-cv-155, 2013 WL 139938 (D. Mont. Jan. 10, 2013).....................................10
Civil Rights Educ. & Enf’t Ctr. v. Hosp. Props. Trust, 13 317 F.R.D. 91 (N.D. Cal. 2016) .................................................................................. 9
14 Colapino v. Esquire Deposition Servs., LLC,
15 No. 09-cv-07584, 2011 WL 913251(C.D. Cal. Mar. 8, 2011)....................................5 Colotl v. Kelly,
16 261 F. Supp. 3d 1328 (N.D. Ga. 2017) ....................................................................... 3 17 Cummings v. Connell,
18 316 F.3d 886 (9th Cir. 2003).....................................................................................12 19 Flores v. CVS Pharmacy, Inc.,
No. 07-cv-05326, 2010 WL 3656807 (C.D. Cal. Sept. 7, 2010) ................................ 5 20 Gonzalez Torres v. U.S. Dep’t of Homeland Sec.,
21 No. 17-cv-1840, 2017 WL 4340385 (S.D. Cal. Sept. 29, 2017).............................3, 6
22 Gorbach v. Reno, 181 F.R.D. 642 (W.D. Wash. 1998)..........................................................................12
23 Harik v. Cal. Teachers Ass’n, 24 326 F.3d 1042 (9th Cir. 2003)...................................................................................10
25 Johnson v. California, 543 U.S. 499 (2005) .................................................................................................... 7
26 Jordan v. Cty. of Los Angeles, 27 669 F.2d 1311 (9th Cir. 1982)...................................................................................10
28 McMillon v. Hawaii,

ii

Case 5:17-cv-02048-PSG-SHK Document 57 Filed 02/12/18 Page 5 of 18 Page ID #:1811
1 261 F.R.D. 536 (D. Haw. 2009) ................................................................................10 Medina v. U.S. Dep’t of Homeland Sec.,
2 No. 17-cv-218, 2017 WL 2954719 (W.D. Wash. Mar. 14, 2017) .............................. 4 3 Perez-Funez v. Dist. Dir., I.N.S., 4 611 F. Supp. 990 (C.D. Cal. 1984)............................................................................12
Perez-Olano v. Gonzalez, 5 248 F.R.D. 248 (C.D. Cal. 2008) ................................................................................ 8 6 Rannis v. Recchia, 7 380 Fed. App’x 646 (9th Cir. 2010)..........................................................................10 8 Rodriguez v. Hayes,
591 F.3d 1105 (9th Cir. 2010)...............................................................................5, 11 9 Santos v. TWC Admin. LLC, 10 No. 13-cv-04799, 2014 WL 12558009 (C.D. Cal. Aug. 4, 2014) ......................... 5,10 11 Saravia v. Sessions,
No. 17-cv-03615, 2017 WL 5569838 (N.D. Cal. Nov. 20, 2017) ......................10, 12 12 United States v. Mendoza, 13 464 U.S. 154 (1984) ..................................................................................................12 14 Walters v. Reno,
145 F.3d 1032 (9th Cir. 1998).....................................................................................8 15 Wolph v. Acer Am. Corp., 16 272 F.R.D. 477 (N.D. Cal. 2011) ................................................................................ 7 17
18 Rules 19
Fed. R. Civ. P. 23(a)(1)...................................................................................................9 20 Fed. R. Civ. P. 23(a)(2)...................................................................................................8 21 Fed. R. Civ. P. 23(a)(3).................................................................................................11 22 Fed. R. Civ. P. 23(a)(4).................................................................................................11
Fed. R. Civ. P. 23(b)(2) ..............................................................................................5, 8 23
24
25
26
27
28
iii

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1

INTRODUCTION

2

Plaintiffs have asked the Court to certify a nationwide class of Deferred Action

3 for Childhood Arrivals (“DACA”) recipients who seek the same relief the Court has

4 already granted to Plaintiff Jesús Alonso Arreola Robles (“Mr. Arreola”). Plaintiffs

5 have satisfied their burden to show that the Rule 23 requirements are met. The

6 proposed class members—DACA recipients who, like Mr. Arreola, have had or will

7 have their DACA and employment authorization documents (“EADs”) arbitrarily and

8 abruptly stripped away, despite having no disqualifying criminal convictions—all

9 suffer the same harm. The government does not dispute that it has a nationwide

10 practice of terminating DACA and work authorization without notice or process,

11 notwithstanding recipients’ continued eligibility for the program. Nor does it contest

12 that that the DACA criteria and program rules govern USCIS’s DACA determinations

13 and are applicable to all DACA recipients, or that Plaintiffs all seek the same

14 injunctive relief barring the government’s unlawful practices.

15

Defendants’ opposition instead rests on mischaracterizations of Plaintiffs’ class

16 definition, as well as merits arguments that the Court has already rejected. Moreover,

17 the government presents erroneous and misleading information about Plaintiffs’ cases

18 in an attempt to make them appear dissimilar to the class. Even if this information

19 were accurate, however, Plaintiffs would still be suitable class representatives. Indeed,

20 Defendants’ mischaracterizations only underscore the value of notice, a reasoned

21 explanation, and an opportunity to be heard.

22

BACKGROUND

23

Plaintiffs seek certification of the following Notice Class of individuals:

24

All recipients of Deferred Action for Childhood Arrivals (“DACA”) who,

25

after January 19, 2017, have had or will have their DACA grant and

26

employment authorization revoked without notice or an opportunity to respond, even though they have not been convicted of a disqualifying

27

criminal offense.

28 Dkt. 39-1, Class Cert. Mot. at 3. Plaintiffs ask the Court to declare unlawful and

1

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1 enjoin Defendants’ policy and practice of automatically terminating class members’

2 DACA and work authorization without prior notice, a reasoned explanation, and an

3 opportunity to be heard, including where Defendants have terminated DACA based

4 solely on a Notice to Appear (“NTA”) charging unlawful presence in the U.S. See id.

5 at 21-22.

6

Three critical errors are repeated throughout Defendants’ opposition:

7

First, Defendants incorrectly state that Plaintiffs have excluded from the Notice

8 Class certain individuals who had their DACA terminated based on a determination

9 that they are enforcement priorities. See Dkt. 53, Class Cert. Opp. at 5. To the

10 contrary, the plain terms of the class definition include all individuals whose DACA

11 was terminated without process and who lack disqualifying criminal convictions—

12 including individuals deemed enforcement priorities. See Class Cert. Mot. at 3.

13 Plaintiffs separately pled, but have not moved for certification of, an Enforcement

14 Priority Class of individuals whose DACA was terminated based on a determination

15 that they are enforcement priorities. See Dkt. 32, Am. Compl. ¶ 169. Although

16 individuals arbitrarily labeled enforcement priorities are included in both classes, the

17 Notice Class claims challenge the process by which the termination of their DACA

18 was effectuated, whereas the Enforcement Priority Class claims challenge the

19 enforcement priority designation as an appropriate basis for the termination.

20

Second, Defendants rehash their prior unsuccessful arguments that the DACA

21 Standard Operating Procedures (“SOPs”) permit termination without notice in two

22 situations encompassed by the class definition. Defendants assert that the SOPs allow

23 for automatic termination of DACA whenever immigration authorities issue an NTA

24 initiating removal proceedings. See Class Cert. Opp. at 11-12. However, the Court

25 already rejected this argument, holding that there is “no provision in the DACA SOPs

26 that permits automatic termination as a result of an NTA based on unauthorized

27 presence.” PI Order at 11. Instead, there is “only one narrow circumstance in which

28 automatic termination based on an NTA is appropriate” and that is “when an NTA is

2

Case 5:17-cv-02048-PSG-SHK Document 57 Filed 02/12/18 Page 8 of 18 Page ID #:1814

1 issued after USCIS determines that a disqualifying offense or public safety concern is

2 deemed to be ‘Egregious Public Safety’ (‘EPS’).” Id.; see also Dkt. 16-4, Kwon Decl.

3 ¶ 21, Ex. 20 (“DACA SOPs”) at 136-38; Dkt. 40-1, Class PI Mot. at 15. In all other

4 cases, the default termination procedures apply, which include notice and an

5 opportunity to be heard. See PI Order at 11; see also Class PI Reply at 7-8.

6

Further, Defendants contend that not all class members are entitled to the same

7 relief, because in their erroneous view the SOPs permit automatic termination

8 whenever an individual is labeled an “enforcement priority.” See Class Cert. Opp. at

9 15. But Defendants’ argument, even if it were correct, is irrelevant. The agency’s own

10 rules expressly state that individuals like Plaintiffs and proposed class members who

11 continue to meet the DACA program’s criteria are not enforcement priorities. See

12 Class PI Reply at 6-7; Class PI Mot. at 4, 15 n.11; see also Colotl v. Kelly, 261 F.

13 Supp. 3d 1328, 1343 (N.D. Ga. 2017), reconsideration denied, No. 17-cv-1670-MHC,

14 2017 WL 4956419 (N.D. Ga. July 31, 2017). Accordingly, it would be a violation of

15 Defendants’ own rules to designate DACA-eligible individuals as enforcement

16 priorities. See Am. Compl. ¶¶ 160-62, 167, 185. In any event, the SOPs require notice

17 and an opportunity to respond in all cases other than those in which USCIS has made

18 an EPS determination. See Gonzalez Torres v. U.S. Dep’t of Homeland Sec., No. 1719 cv-1840, 2017 WL 4340385, at *3 (S.D. Cal. Sept. 29, 2017); Class PI Reply at 6-8.1

20

Third, Defendants misrepresent facts about Plaintiffs and members of the

21 proposed class in an unsuccessful effort to make them appear dissimilar. See Class 22 Cert. Opp. at 2-4.2 Notably, Defendants wrongly assert that Plaintiffs “committ[ed]

23 crimes,” even though none of the Plaintiffs have been convicted of the crimes alleged,

24 1

See also DACA SOPs at 138 (directing adjudicators to refer the case to USCIS

25 headquarters to determine whether termination is appropriate through issuance of a

Notice of Intent to Terminate). 26 2 As explained below, even if Defendants’ misrepresentations were accurate, they

27 would be immaterial to whether class certification is appropriate, as Defendants do not allege that Plaintiffs or other affected individuals have been convicted of a

28 disqualifying crime.

3

Case 5:17-cv-02048-PSG-SHK Document 57 Filed 02/12/18 Page 9 of 18 Page ID #:1815

1 and USCIS did not terminate their DACA on that basis, but instead terminated based

2 on issuance of an NTA. See Class Cert. Mot. at 7-8.

3 • Plaintiff José Eduardo Gil Robles (“Mr. Gil”) was never charged with any

4

felonies, contrary to the government’s allegations. In fact, Mr. Gil was charged

5

with a single misdemeanor traffic violation for driving on a cancelled license.

6

See Declaration of Maria Teresa Trafton ¶¶ 2-3, Exs. A-B. Nor has Mr. Gil

7

been convicted of that charge. In fact, the case has been continued and the

8

charge will be dismissed if Mr. Gil completes probation. Id.¶ 4, Ex. C.

9 • Although Plaintiff Ronan Carlos DeSouza Moreira (“Mr. Moreira”) was

10

initially arrested on suspicion of forgery, he was never charged with that crime.

11

Instead, he was charged with a misdemeanor for possession of an altered

12

identification document. Hausman Decl. ¶ 2, Ex. A.

13 • The government also misleadingly suggests that proposed class member Felipe

14

Abonza Lopez is somehow differently situated than Plaintiffs or other proposed

15

class members because he was arrested on suspicion of alien smuggling.

16

However, like Mr. Arreola, Mr. Abonza Lopez was not charged with any crime,

17

and USCIS terminated his DACA based on the issuance of an NTA charging

18

him with unlawful presence. See Dkt. 39-13, Eiland Decl. ¶ 11.

19 • Proposed class member Daniel Ramirez Medina likewise was never charged

20

with any crime, and USCIS terminated his DACA based on an NTA charging

21

him with unlawful presence. See Medina v. U.S. Dep’t of Homeland Sec., No.

22

17-cv-218, 2017 WL 2954719, at *5 (W.D. Wash. Mar. 14, 2017), report and

23

recommendation adopted, 2017 WL 1101370 (W.D. Wash. Mar. 24, 2017). He

24

has steadfastly denied having any gang affiliation. See id.

25 Notwithstanding the government’s misrepresentations and attempts to rely on

26 improper post hoc rationalizations, each of these individuals is a member of the

27 proposed class, has not been convicted of any disqualifying offense, and remains

28 eligible for DACA.

4

Case 5:17-cv-02048-PSG-SHK Document 57 Filed 02/12/18 Page 10 of 18 Page ID #:1816

1

ARGUMENT

2

I. The Court Should Provisionally Certify the Proposed Class for

3

Purposes of Entering a Classwide Preliminary Injunction.

4

A. The Proposed Class Satisfies the Requirements of Rule 23(b)(2).

5

Notwithstanding Defendants’ arguments to the contrary, there is no question

6 that all class members have suffered the same injury here: the termination of their 7 DACA and work authorization without process.3 And all class members seek

8 declaratory and injunctive relief under the APA and Due Process Clause prohibiting

9 those practices. Thus, Plaintiffs easily satisfy Rule 23(b)(2). See Class Cert. Mot. at

10 21-23 (citing, inter alia, Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010)

11 (certification under Rule 23(b)(2) “does not require [the court] to examine the viability

12 or bases of class members’ claims for declaratory and injunctive relief,” but only to

13 look at the uniformity of relief requested)).

14

Defendants rely on merits arguments going to Plaintiffs’ claim that the

15 government’s termination practices violate the DACA rules, attempting to suggest that

16 certain class members are not entitled to the same relief (Class Cert. Opp. at 15), but

17 these arguments have for the most part been previously raised and rejected. As

18 discussed above, this Court has already rejected the government’s argument that the

19 DACA “SOPs” permit automatic termination for individuals issued an NTA charging

20 only unlawful presence. PI Order at 11. Instead, as this Court already has held, under

21 the SOPs, individuals issued such NTAs are entitled to notice and an opportunity to be

22 3 The cases Defendants cite on injury are wholly distinguishable. See, e.g., Santos

v. TWC Admin. LLC, No. 13-cv-04799, 2014 WL 12558009, at *11 (C.D. Cal. Aug. 4, 23 2014) (proposed class included uninjured parties where defendants did not use

24 challenged method for calculating commissions and bonuses during the entire class period); Colapino v. Esquire Deposition Servs., LLC, No. 09-cv-07584, 2011 WL

25 913251, at *4 (C.D. Cal. Mar. 8, 2011) (proposed class challenging fraudulent

26

reporting by court reporting firms included uninjured parties—i.e., attorneys reimbursed by their clients for transcription fees); Flores v. CVS Pharmacy, Inc., No.

27 07-cv-05326, 2010 WL 3656807, at *6-7 (C.D. Cal. Sept. 7, 2010) (proposed class of pharmacy employees was overbroad where some alleged class members were in fact

28 retail store employees).

5

Case 5:17-cv-02048-PSG-SHK Document 57 Filed 02/12/18 Page 11 of 18 Page ID #:1817

1 heard prior to termination. Id.

2

Similarly, contrary to the government’s contentions, USCIS may not deny class

3 members process by labeling them “enforcement priorities” because the DACA rules

4 provide that DACA-eligible individuals are, by definition, not enforcement priorities.

5 See Class PI Reply at 6-7. Critically, the class is defined to include only individuals

6 who are eligible for DACA—and the DACA Memorandum explains that DHS’s

7 enforcement resources should not be expended on “these low priority cases”—

8 referring to individuals who meet the eligibility criteria—and instead “on people who 9 meet our enforcement priorities.” Napolitano Memo, Kwon Decl. ¶ 10, Ex. 9 at 1.4

10 Accordingly, because class members cannot properly be labelled “enforcement

11 priorities,” Defendant’s argument is not only incorrect, it is irrelevant.

12

And although the SOPs permit automatic termination in EPS cases, any

13 difference in treatment of EPS cases under USCIS’s rules is irrelevant to Plaintiffs’

14 constitutional due process claim, as well to Plaintiffs’ APA claims that termination

15 based on an NTA charging unlawful presence is arbitrary and capricious, and that

16 Defendants impermissibly changed position without providing a good reason.

17 Moreover, as a practical matter, most individuals who meet the EPS definition are also

18 convicted of a disqualifying crime and would therefore be excluded from the class

19 definition. See Kwon Decl. ¶ 22, Ex. 21 at 3-4. Notably, Defendants have not pointed

20 to a single example of someone who would fall within the class definition but who

21 received a Termination Notice from USCIS stating an EPS concern as the basis for 22 termination.5

23 4

Further, as discussed above, the SOPs do not permit automatic termination for

24 individuals deemed “enforcement priorities.” As this Court has held, the SOPs require

25 notice except in cases where USCIS has determined that there is an Egregious Public Safety concern and follows the appropriate procedures for termination without notice.
26 See DACA SOPs at 138; PI Order at 11; see also Class PI Reply at 6-8; Gonzalez

27

Torres, 2017 WL 4340385, at *3. 5 Should the Court have concerns about over-breadth, however, the Court could

28 modify the class definition to create a subclass of individuals who received or will

6

Case 5:17-cv-02048-PSG-SHK Document 57 Filed 02/12/18 Page 12 of 18 Page ID #:1818

1

Nor are individualized “mini-trials” required to determine whether an individual

2 is in fact a class member and entitled to injunctive relief, as Defendants claim. See

3 Class Cert. Opp. at 15. Rather, it is administratively feasible to determine who is a

4 class member based on clear and objective criteria and by reference to the

5 government’s own records: the individual (1) has had or will have had his or her

6 DACA terminated without issuance of a Notice of Intent to Terminate and an

7 opportunity to respond to the reasons for termination; and (2) the individual has not

8 been convicted of a disqualifying crime set forth in the DACA Memorandum or

9 SOPs. See Class Cert. Mot. at 19-20 (citing cases holding that administrative burden

10 required to identify class members does not undermine certification).

11

Finally, Defendants complain that Jessica Colotl6 is no longer eligible for relief

12 because she already received notice and an opportunity to respond to her DACA

13 termination as a result of a preliminary injunction order, and that two DACA

14 recipients who were placed in removal proceedings had not yet received termination

15 notices from USCIS. See Class Cert. Opp. at 16. But it is noncontroversial that

16 individuals will enter and exit the class as their circumstances change over time. The

17 class as a whole will continue to be subject to Defendants’ unlawful termination

18 practices, in violation of their APA and due process rights, regardless of whether

19 every individual class member continues to need relief. Perez-Olano v. Gonzalez, 248

20 receive Termination Notices citing an EPS determination. See Armstrong v. Davis,

21

275 F.3d 849, 871 n. 28 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499 (2005) (“Where appropriate, the district court may redefine

22 the class . . . .”); Wolph v. Acer Am. Corp., 272 F.R.D. 477, 482–83 (N.D. Cal. 2011)

(discussing courts’ broad discretion to modify a class definition and redefining class).

23

The SOPs also permit USCIS to automatically terminate the DACA of

24 individuals who travel outside the United States after August 15, 2012, without first receiving permission to do so through a grant of advance parole. See Kwon Decl. ¶ 20,

25 Ex. 19 at Q57. Plaintiffs did not intend to include these individuals in the class. The

26

Court may modify the class definition to exclude this likely very small number of individuals.

6
27

Even if Ms. Colotl were presently unable to secure relief through an injunction

in this case, her experience is nonetheless relevant to demonstrate the numerosity of

28 the proposed class and the existence of a nationwide policy.

7

Case 5:17-cv-02048-PSG-SHK Document 57 Filed 02/12/18 Page 13 of 18 Page ID #:1819

1 F.R.D. 248, 259 (C.D. Cal. 2008) (Rule 23(b)(2) is well suited for cases where the

2 class encompasses a “shifting population”) (internal quotation marks omitted).

3

B. Plaintiffs’ Claims Present Common Questions with Common Answers.

4

Defendants likewise fail to refute Plaintiffs’ showing of commonality. See Fed.

5 R. Civ. P. 23(a)(2). Plaintiffs argue that Defendants’ practice of terminating DACA

6 and work authorization without process violates the APA and the Due Process Clause.

7 See, e.g., Perez-Olano, 248 F.R.D. at 257 (even “a single” common legal issue is

8 sufficient to satisfy the commonality requirement). These common legal questions

9 drive resolution of the case. Indeed, should the Court agree that Defendants’

10 termination practices are unlawful, all class members will benefit from the requested

11 relief: a nationwide injunction preventing termination of their DACA pursuant to

12 those practices. Thus, Plaintiffs satisfy Rule 23(a)(2). See Class Cert. Mot. at 14-15.

13

The government’s argument as to commonality is largely redundant with its

14 arguments as to Rule 23(b)(2), see Class Cert. Opp. at 20-21, and Defendants’

15 attempts to pick out differences amongst class members fail for the same reasons set

16 forth above. See Point I.A., supra. Defendants also contend, wrongly, that the class

17 lacks commonality because DACA ultimately involves an individualized discretionary

18 determination. Class Cert. Opp. at 20. But Plaintiffs are not challenging any ultimate

19 exercise of discretion, and resolving Plaintiffs’ claims does not involve individualized

20 balancing. Instead, a single common answer—a nationwide injunction barring the

21 government’s unlawful practices permitting automatic, process-less termination— 22 applies to the entire class.7 See Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998)

23 (finding commonality satisfied with respect to process claims notwithstanding

24 7

The government also notes that some class members may have removal orders,

25 see Class Cert. Opp. at 21, but that is irrelevant, as such individuals may still be

26

eligible for DACA and still may challenge its unlawful revocation. See Napolitano Memorandum at 3. The government also complains that the class may include

27 individuals who are granted immigration relief or deported, but that is absurd: individuals who obtain a lawful immigration status or are deported have no need for

28 DACA.

8

Case 5:17-cv-02048-PSG-SHK Document 57 Filed 02/12/18 Page 14 of 18 Page ID #:1820

1 “[d]ifferences among the class members with respect to the merits” of their cases).

2

C. The Proposed Class Is So Numerous that Joinder Is Impracticable.

3

Defendants have failed to counter Plaintiffs’ showing of numerosity. See Fed.

4 R. Civ. P. 23(a)(1). Plaintiffs have identified and submitted evidence of a sizeable

5 number of affected individuals across the country—now at least 22 DACA recipients in 10 states8—as well as unrebutted evidence that Defendants engage in a nationwide
6

7 practice of terminating DACA without process. See Eiland Decl. ¶¶ 3-14; Second

8 Declaration of Katrina L. Eiland (“Second Eiland Decl.”) ¶¶ 3-8. This practice has

9 likely already ensnared dozens of other still-eligible DACA recipients, see Doc. No.

10 23-2 ¶ 4 (confirming that there have been hundreds of terminations without notice),

11 and places tens of thousands more at risk of losing their DACA. Notably, although

12 Defendants possess records of all DACA terminations, Defendants have not even

13 alleged, much less provided evidence, that the actual number of challenged

14 terminations is insufficiently numerous. See Civil Rights Educ. & Enf’t Ctr. v. Hosp.

15 Props. Trust, 317 F.R.D. 91, 100 (N.D. Cal. 2016) (plaintiffs seeking only injunctive

16 and declaratory relief “may rely on [the] reasonable inference[] . . . that the number of

17 unknown and future members . . . is sufficient to make joinder impracticable”)

18 (internal quotation marks omitted). In addition, the prospective nature of the relief

19 Plaintiffs seek makes joinder of all class members impracticable regardless of class

20 8 Plaintiffs previously submitted evidence documenting 17 DACA recipients who

21

have already had their DACA terminated without process, as well as two additional individuals who received NTAs but had not yet been terminated by USCIS. Eiland

22 Decl. ¶¶ 3-15. Defendants suggest that the two additional individuals were included in

the 17. This is not only incorrect—see Eiland Decl. ¶ 15—but Defendants ignore that 23 their experiences support a reasonable inference that the challenged practices will

24 harm additional DACA recipients in the future. Moreover, in the weeks since Plaintiffs filed this motion, Plaintiffs have learned of five additional individuals who

25 have had their DACA terminated without process despite remaining eligible, bringing

26

the total number of known affected DACA recipients to 22. See Second Eiland Decl. ¶¶ 3-8. Finally, Defendants’ suggestion that Mr. Gil, Mr. Moreira, and other proposed

27 class members are not class members because they are enforcement priorities is not only flat wrong, but it improperly relies on a post hoc rationale. See supra at 4; see

28 Class PI Reply at 2, 5 n.2.

9

Case 5:17-cv-02048-PSG-SHK Document 57 Filed 02/12/18 Page 15 of 18 Page ID #:1821

1 size. See Class Cert. Mot. at 13 (collecting cases). This is even more so now that the 2 government has resumed accepting renewal applications.9 Finally, the characteristics

3 of the proposed class—a geographically dispersed and growing group of young adults

4 who have abruptly lost their means of financial support—further support the

5 impracticability of joining all of its members. See Jordan v. Cty. of Los Angeles, 669

6 F.2d 1311, 1319 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982)

7 (explaining that the geographical diversity of class members, difficulty of filing

8 separate suits, and the fact that only injunctive or declaratory relief is sought weigh in

9 favor of concluding that joinder is impracticable).

10

Courts in the Ninth Circuit and elsewhere frequently certify classes based on

11 evidence of a similar number of known individuals, particularly where, as here, the

12 class includes unknown present and future class members. See, e.g., Saravia v.

13 Sessions, No. 17-cv-03615, 2017 WL 5569838, at *20-21 (N.D. Cal. Nov. 20, 2017)

14 (certifying nationwide class of unaccompanied minors based on evidence of 15 known

15 members and likelihood of future members); Chief Goes Out v. Missoula Cty., No. 12-

16 cv-155, 2013 WL 139938, at *3 (D. Mont. Jan. 10, 2013) (numerosity satisfied by 18

17 current members and likelihood of future members); McMillon v. Hawaii, 261 F.R.D.

18 536, 543 (D. Haw. 2009) (numerosity satisfied based on 10 identifiable members, as

19 well as current and future, unidentified members); see also Bruce v. Christian, 113

20 F.R.D. 554, 557, 559 (S.D.N.Y. 1986) (certifying class of “present and future” public 21 housing tenants with 16 identified members).10

22 9 See USCIS, Deferred Action for Childhood Arrivals: Response to January 2018
23 Preliminary Injunction, www.uscis.gov/humanitarian/deferred-action-childhood-

24

arrivals-response-january-2018-preliminary-injunction (visited Feb. 8, 2018). 10 Defendants’ authority is not to the contrary. See Class Cert. Opp. at 18 (citing

25 Rannis v. Recchia, 380 Fed. App’x 646, 651 (9th Cir. 2010) (affirming numerosity

26

finding for a class of 20 members); Harik v. Cal. Teachers Ass’n, 326 F.3d 1042, 1051 (9th Cir. 2003) (reversing certification of classes of union feepayers containing

27 known membership of only seven, nine, and ten, respectively; no evidence supporting the existence of additional class members or other practicability concerns); Santos v.

28 TWC Admin. LLC, No. 13-cv-04799, 2014 WL 12558009, at *14 (C.D. Cal. Aug. 4,

10

Case 5:17-cv-02048-PSG-SHK Document 57 Filed 02/12/18 Page 16 of 18 Page ID #:1822

1

D. The Named Plaintiffs Satisfy Adequacy and Typicality.

2

The government has failed to identify any material differences or actual

3 conflicts between Plaintiffs and the proposed class members that would defeat

4 Plaintiffs’ showing of typicality and adequacy. See Fed. R. Civ. P. 23(a)(3), (4).

5 Defendants’ arguments rest on the same flawed premises discussed above—i.e., that

6 Plaintiffs are not members of the proposed class (based on Defendants’ 7 mischaracterization of their facts and the class definition) and that they are not entitled 8 to process. Both of these arguments fail for the reasons discussed above. See Point

9 I.A.; see also Class PI Reply at 1-2, 4-10.

10

The Ninth Circuit has emphasized that the typicality requirement is

11 “permissive” and requires only that the representative’s claims are “reasonably

12 coextensive with those of absent class members; they need not be substantially 13 identical.” Rodriguez, 591 F.3d at 1124 (internal quotation marks and citation 14 omitted); see also id. (certifying class of noncitizens detained for more than six 15 months without a bond hearing even where proposed class members were “detained 16 under different statutes” and were “at different points in the removal process”). 17 “[T]ypicality is not defeated if there are legal questions common to all class 18 members.” Ali v. Ashcroft, 213 F.R.D. 390, 409 (W.D. Wash. 2003), aff’d, 346 F.3d 19 873 (9th Cir. 2003), vacated on other grounds, 421 F.3d 795 (9th Cir. 2005). Here, 20 Plaintiffs easily satisfy this test: Plaintiffs and proposed class members have suffered 21 the identical injury—termination of their DACA and EADs despite not being 22 disqualified—and they bring common claims under the APA and the Due Process 23 Clause challenging those terminations as unlawful.11 24

25 2014) (employing reasonable inferences to find that class was sufficiently numerous)). 11 Even if the DACA rules permitted termination without process in some limited
26 circumstances covered by the class definition, it would not defeat typicality or
27 adequacy. Indeed, as explained above, it could only possibly impact Plaintiffs’ claim based on the SOPs, which is just one of the several reasons why Defendants’ actions
28 violate the APA, and it would not undermine Plaintiffs’ procedural due process claim.

11

Case 5:17-cv-02048-PSG-SHK Document 57 Filed 02/12/18 Page 17 of 18 Page ID #:1823

1

Similarly, Defendants have pointed to no reason why Plaintiffs and proposed

2 class members have divergent interests, such that Plaintiffs are inadequate

3 representatives. Although Defendants state that some current members of the

4 proposed class may be able to reapply for DACA or seek to have their DACA

5 reinstated through other means, they fail to explain how this could create any

6 antagonistic interests. See Cummings v. Connell, 316 F.3d 886, 896 (9th Cir. 2003)

7 (“[T]his circuit does not favor denial of class certification on the basis of speculative

8 conflicts.”). Moreover, any individuals granted renewals are at risk of having their

9 DACA unlawfully terminated once again unless Defendants’ practices are enjoined.

10 Finally, as explained above, it is routine for some individuals to enter and exit the

11 class as new individuals are harmed and claims become moot. See Point I.A., supra.

12

E. Nationwide Certification Is Appropriate in Light of Defendants’ Unlawful Nationwide Conduct.

13

Finally, Defendants present no evidence that undermines the appropriateness of

14 nationwide certification where, as here, the government admittedly engages in the

15 challenged practice regardless of location, and has already unlawfully terminated

16 DACA in at least 10 states. See Class Cert. Mot. at 22-23; Second Eiland Decl. ¶¶ 3-8.

17 Instead, Defendants cite authority that does not support its position.12 In fact, courts

18 routinely certify nationwide classes in immigration cases where, as here, the evidence

19 supports a nationwide practice. See Saravia, 2017 WL 5569838, at *20; Perez-Funez

20 v. Dist. Dir., I.N.S., 611 F. Supp. 990, 1000 (C.D. Cal. 1984); Gorbach v. Reno, 181

21 F.R.D. 642, 644 (W.D. Wash. 1998); Arnott v. U.S. Citizenship and Immigration

22 Servs., 290 F.R.D. 579, 588-89 (C.D. Cal. 2012).

23

CONCLUSION

24

The Court should grant Plaintiffs’ motion for class certification.

25 12 See Califano v. Yamasaki, 442 U.S. 682, 702-03 (1979) (affirming nationwide
26 class certification and holding that appropriateness of nationwide certification should

27 be evaluated on the facts of the case); United States v. Mendoza, 464 U.S. 154, 159-64 (1984) (evaluating non-mutual collateral estoppel against the government); Class Cert.
28 Opp. at 5-6 (citing cases in which plaintiffs did not seek to certify a nationwide class).

12

Case 5:17-cv-02048-PSG-SHK Document 57 Filed 02/12/18 Page 18 of 18 Page ID #:1824

1 Dated: February 12, 2018 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted, /s/ Katrina L. Eiland Katrina L. Eiland Jennifer Chang Newell Michael K. T. Tan* David Hausman* ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT Ahilan T. Arulanantham Michael Kaufman Dae Keun Kwon ACLU FOUNDATION OF SOUTHERN CALIFORNIA Attorneys for Plaintiffs *Admitted pro hac vice
13

 
 Case 5:17-cv-02048-PSG-SHK Document 58 Filed 02/12/18 Page 1 of 17 Page ID #:1859

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)

13 UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA

15 INLAND EMPIRE – IMMIGRANT

) Case No. 5:17-cv-2048-PSG-SHK

YOUTH COLLECTIVE, et al., on behalf )

16 of themselves and others similarly situated, )

)

17

Plaintiffs,

)

)

18

v.

) REPLY IN SUPPORT OF

) PLAINTIFFS’ MOTION FOR A

19 KIRSTJEN NIELSEN, Secretary, U.S. ) CLASSWIDE PRELIMINARY

Department of Homeland Security, et al., ) INJUNCTION

20

)

Defendants.

)

21 22 23

) ) ) ) )

Judge: Hon. Philip S. Gutierrez Courtroom: 6A Hearing: February 26, 2018 Time: 1:30 p.m.

)

24

)

)

25

)

)

26

)

)

27

)

)

28

)

Case 5:17-cv-02048-PSG-SHK Document 58 Filed 02/12/18 Page 2 of 17 Page ID #:1860
Ahilan T. Arulanantham (SBN 237841) 1 aarulanantham@aclusocal.org
Michael Kaufman (SBN 254575) 2 mkaufman@aclusocal.org
Dae Keun Kwon (SBN 313155) 3 akwon@aclusocal.org
ACLU FOUNDATION OF SOUTHERN CALIFORNIA 4 1313 West 8th Street
Los Angeles, CA 90017 5 Telephone: (213) 977-5232
Facsimile: (213) 977-5297 6 7 Attorneys for Plaintiffs 8 *Admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-PSG-SHK Document 58 Filed 02/12/18 Page 3 of 17 Page ID #:1861

TABLE OF CONTENTS 1

INTRODUCTION .....................................................................................................1 2

ARGUMENT .............................................................................................................2 3

I. NO STATUTE PRECLUDES JUDICIAL REVIEW. .........................2 4

II. USCIS’S AUTOMATIC TERMINATION OF DACA IS

5

ARBITRARY AND CAPRICIOUS UNDER THE APA. ...................4

6

III. THE GOVERNMENT PROVIDES NO RESPONSE TO PLAINTIFFS’

DUE PROCESS ARGUMENT THATONCE GRANTED DACA,

7

RECIPIENTS ARE ENTITLED TO A FAIR PROCESS FOR

REVOCATION. .................................................................................... 9 8

IV. THE REMAINING INJUNCTION FACTORS FAVOR THE

9

PLAINTIFFS. ...................................................................................... 11

10 CONCLUSION........................................................................................................12

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

i

Case 5:17-cv-02048-PSG-SHK Document 58 Filed 02/12/18 Page 4 of 17 Page ID #:1862

1 2 Cases

TABLE OF AUTHORITIES

3 Alcaraz v. INS,
4 384 F.3d 1150 (9th Cir. 2004).....................................................................................4 Alfaro-Orellana v. Ilchert,
5 720 F. Supp. 792 (N.D. Cal. 1989) ...........................................................................10 6 Arizona Dream Act Coal. v. Brewer,
7 757 F.3d 1053 (9th Cir. 2014)...................................................................................11 Bell v. Burson,
8 402 U.S. 535 (1971) .................................................................................................... 9 9 California Pub. Utils. Comm’n v. Federal Energy Regulatory Comm’n,
10 879 F.3d 966 (9th Cir. 2018).......................................................................................8 11 Chemehuevi Indian Tribe v. Brown,
No. ED CV 16-1347-JFW (MRWx), 2017 WL 2971864 (C.D. Cal. Mar. 30, 2017) 9 12 Cleveland Bd. of Educ. v. Loudermill,
13 470 U.S. 532 (1985) ..................................................................................................10
14 Colotl v. Kelly, 261 F. Supp. 3d 1328 (N.D. Ga. 2017) .........................................................3, 4, 6, 11
15 Dep't. of Parks & Recreation v. Bazaar Del Mundo Inc., 16 448 F.3d 1118 (9th Cir. 2006)...................................................................................11
17 FCC v. Fox Television Stations, 18 556 U.S. 502 (2009) ................................................................................................8, 9
Gonzalez Torres v. DHS, 19 No. 17-cv-1840, 2017 WL 4340385 (S.D. Cal. Sept. 29, 2017)...................3, 4, 7, 11
20 LeMoyne-Owen Coll. v. NLRB, 21 357 F.3d 55 (D.C. Cir. 2004) ...................................................................................... 8
Organized Vill. of Kake v. U.S. Dep’t of Agric., 22 795 F.3d 956 (9th Cir. 2015).......................................................................................8
23 Ramirez Medina v. DHS,
24 No. 17-cv-0218, 2017 WL 5176720 (W.D. Wash. Nov. 8, 2017)..........................3, 4 Reno v. Am.-Arab Anti-Discrimination Comm.,
25 525 U.S. 471 (1999) .................................................................................................... 2 26 Sierra Club v. Bureau of Land Management.,
27 786 F.3d 1219 (9th Cir. 2015).....................................................................................9 28 Skidmore v. Swift & Co.,
323 U.S. 134 (1944) .................................................................................................... 9

ii

Case 5:17-cv-02048-PSG-SHK Document 58 Filed 02/12/18 Page 5 of 17 Page ID #:1863
1 Statutes 2 5 U.S.C. § 701(a)(2)........................................................................................................4 3 8 U.S.C. § 1252(a)(5)......................................................................................................3
8 U.S.C. § 1252(b)(9) ..................................................................................................... 3 4 8 U.S.C. § 1252(g) ......................................................................................................2, 3 5 6 Regulations 7
8 C.F.R. § 274a.12(c)....................................................................................................10 8 8 C.F.R. § 274a.14(a)(1)(ii) ..........................................................................................10 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
iii

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1

INTRODUCTION

2

This motion for classwide preliminary relief presents precisely the same claims

3 that Plaintiff Jesús Arreola raised in his individual motion for a preliminary

4 injunction, which this Court granted. The government never explains why the Court

5 should reach a different decision on the same claims. Instead, the government repeats

6 arguments that this Court squarely rejected: that the Court lacks jurisdiction; that the

7 Deferred Action for Childhood Arrivals Standard Operating Procedures (“DACA

8 SOPs”) do not mean what they say; that the government is free to take contradictory

9 actions and reverse its position arbitrarily; and that the government’s interest in

10 violating its own rules outweighs the harm to the Plaintiff class in being stripped of

11 permission to live and work in the United States. Compare Arreola PI Opp., Dkt. 23,

12 with Class PI Opp., Dkt. 54. Yet this Court has already explained in detail why it has

13 jurisdiction over these claims, why USCIS’s termination of DACA without notice

14 violates the Administrative Procedure Act (“APA”), and why the equities favor an

15 injunction. See PI Order, Dkt. 31. The Court should reach the same conclusion here.

16

Unable to offer new arguments, the government resorts to mischaracterizing the

17 named Plaintiffs’ facts. Contrary to the government’s assertions, Mr. Gil was never

18 charged with any felony. The city attorney found that the only charge for which there

19 was probable cause was driving on a cancelled license. Declaration of Maria Teresa

20 Trafton ¶ 2, Ex. A. As a result, Mr. Gil was charged with a single misdemeanor traffic 21 violation. Id. ¶ 3 Ex. B.1 As to Mr. Moreira, the government emphasizes that he was

22 initially arrested for forgery, but fails to mention that he was never charged with that

23 offense. As he stated in his declaration, Mr. Moreira instead was only charged with a

24 misdemeanor for possession of an altered identification document. See Declaration of

25 David Hausman ¶ 2, Ex. A. Indeed, the government’s mischaracterizations only

26

27

1 Mr. Gil has not been convicted of the charge, and indeed, the case has been continued and the charge will be dismissed if Mr. Gil successfully completes

28 probation. Trafton Decl. ¶ 4, Ex. C.

1

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1 underline the importance of the procedures Plaintiffs seek here. Had Mr. Gil or Mr.

2 Moreira had notice of USCIS’s termination decision and an opportunity to respond,

3 each would have corrected the government’s mistaken conclusions. And in any event,

4 such facts are irrelevant because USCIS did not address them in its rationale for the

5 challenged DACA termination decisions: as the government concedes, USCIS has a

6 practice of automatically terminating DACA when a Notice to Appear (“NTA”) is

7 issued.

8

The class members’ request for relief is straightforward: this Court should

9 restore the status quo by vacating the revocations of class members whose DACA was

10 revoked without process after January 19, 2017, and by preliminarily enjoining the

11 future unlawful revocation of class members’ DACA absent a termination process that

12 complies with the APA and the Due Process Clause.

13

ARGUMENT

14 I. NO STATUTE PRECLUDES JUDICIAL REVIEW.

15

The Court correctly determined that it had jurisdiction to enjoin the termination

16 of Mr. Arreola’s DACA and work authorization. See PI Order at 4-8; see also Arreola

17 PI Reply, Dkt. 25, at 2-11. The Court has jurisdiction here for the same reasons. In

18 suggesting otherwise, the government simply rehashes arguments that this Court has

19 already considered and rejected.

20

First, the government again suggests that review of USCIS’s failure to provide

21 notice and process in terminating DACA is precluded by 8 U.S.C. § 1252(g). Yet that

22 provision insulates from review only a “‘decision or action’ to ‘commence

23 proceedings, adjudicate cases, or execute removal orders.’” Reno v. Am.-Arab Anti-

24 Discrimination Comm., 525 U.S. 471, 482 (1999) (quoting 8 U.S.C. § 1252(g)). The

25 government asserts that “[t]here can be no reasonable argument that DACA

26 termination by . . . issuance [of an NTA] does not arise out of the decision to initiate

27 removal proceedings.” Class PI Opp. at 8 (emphasis omitted). But as the Court

28 explained, and multiple courts have agreed, class members are “challenging neither

2

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1 the issuance of the NTA nor the [government’s] decision to commence removal

2 proceedings,” but instead “USCIS’s separate and independent decision to revoke

3 [their] DACA on that basis, which is independent of the limited category of decisions

4 covered by § 1252(g).” PI Order at 6; accord Arreola PI Reply at 2-6; Ramirez

5 Medina v. DHS, No. 17-cv-0218, 2017 WL 5176720, at *6-7 (W.D. Wash. Nov. 8,

6 2017); Gonzalez Torres v. DHS, No. 17-cv-1840, 2017 WL 4340385, at *4 (S.D. Cal.

7 Sept. 29, 2017); Colotl v. Kelly, 261 F. Supp. 3d 1328, 1338-40 (N.D. Ga. 2017).

8

The Court was also correct to hold that in any event, § 1252(g) does not bar

9 review of legal questions related to discretionary decisions, and that the Plaintiffs’

10 claims are therefore reviewable on that basis. PI Order at 6. The government does not

11 contest that such legal questions are reviewable, but instead mischaracterizes the

12 Plaintiffs’ claims as seeking to require the agency to exercise its discretion not to

13 terminate DACA. Class PI Opp. at 13 n.11. But as this Court found and the Plaintiffs

14 have explained, Plaintiffs seek review not of USCIS’s ultimate exercise of discretion

15 to grant or deny DACA, but rather of the agency’s compliance with its own rules, the

16 APA, and due process. Compare id.with PI Order at 6; accord Arreola PI Reply at 1.

17

Second, the government repeats its suggestion that the Plaintiffs’ claims are

18 precluded by 8 U.S.C. §§ 1252(b)(9) and 1252(a)(5), which require that challenges to

19 removal orders be raised through a petition for review of a final removal order in the

20 courts of appeal. Yet the government fails even to acknowledge this Court’s

21 observation that “[a]n immigration judge in a removal proceeding does not have the

22 power to grant or deny deferred action, or to review or reverse an agency’s decision to

23 revoke it.” PI Order at 7. That fact alone is decisive because, in the government’s own

24 words, “if the issue is one that can be raised in removal proceedings, and ultimately in

25 a petition for review, then the statute precludes district court review.” Class PI Opp. at

26 10 (emphasis added); accord Arreola PI Reply at 7. Because the Plaintiffs are unable

27 to challenge the termination of their DACA in removal proceedings, §§ 1252(b)(9)

28 and 1252(a)(5) do not preclude them from raising their challenge in district court.

3

Case 5:17-cv-02048-PSG-SHK Document 58 Filed 02/12/18 Page 9 of 17 Page ID #:1867

1 Accord Arreola PI Reply at 6-8; Ramirez Medina, 2017 WL 5176720, at *8; Gonzalez

2 Torres, 2017 WL 4340385, at *5; Colotl, 261 F. Supp. 3d at 1339-40.

3

Finally, the government argues once again that USCIS need not provide notice

4 or process in terminating DACA because the decision is “committed to agency

5 discretion by law.” 5 U.S.C. § 701(a)(2); see also Class PI Opp. at 10-11. But again,

6 the government simply ignores this Court’s prior decision and the controlling Ninth

7 Circuit cases, which rely on the established proposition that review is available where

8 “‘discretion has been legally circumscribed by various memoranda.’” PI Order at 4

9 (quoting Alcaraz v. INS, 384 F.3d 1150, 1161 (9th Cir. 2004)); accord Arreola PI

10 Reply at 9-11; Ramirez Medina, 2017 WL 5176720, at *8; Colotl, 261 F. Supp. 3d at

11 1340-41. As this Court correctly held, “[h]ere, the decision to revoke DACA is

12 governed by both the Napolitano Memo and the DACA SOPs.” PI Order at 4. Review

13 is therefore available under those authorities, the APA, and the Constitution.

14 II. USCIS’S AUTOMATIC TERMINATION OF DACA IS ARBITRARY

15

AND CAPRICIOUS UNDER THE APA.

16

Plaintiffs have established a likelihood of success on their APA claims.

17 Defendants acknowledge that they have a practice of automatically terminating class

18 members’ DACA and work authorization without process. See Class PI Opp. at 23.

19 This Court has already held that this practice violates the APA for multiple reasons.

20 The Court held that automatically terminating DACA based on an NTA charging

21 unlawful presence is arbitrary and capricious in violation of the APA because all 22 DACA recipients are unlawfully present and being in removal proceedings is not 23 disqualifying. PI Order at 8-13. The Court also held that abruptly terminating an

24 individual’s DACA without providing a reasoned explanation for the agency’s

25 reversal, after granting DACA on one or more occasions, violates the APA. Id at 10-

26 11. Further, the Court held that Defendants’ automatic termination practice violates 27 the DACA procedures, which the agency is required to follow. See id. Defendants fail 28 to grapple with the Court’s reasoning, which applies equally here.

4

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1

Defendants instead focus their response on a number of arguments that are

2 irrelevant to the Court’s reasoning and to the arguments raised by Plaintiffs. Class PI

3 Opp. at 17-20. Plaintiffs are not challenging the government’s authority to initiate

4 removal proceedings, issue an NTA, or select the charges alleged in the NTA. And the

5 Court’s preliminary injunction with respect to Plaintiff Arreola—granting the same

6 relief that Plaintiffs now seek for the class—does not preclude the government from

7 issuing an NTA or initiating removal proceedings, nor does it dictate what charges

8 must be included in an NTA. PI Order at 15-16; see also PI Order at 6. Indeed,

9 Plaintiff Arreola’s removal proceedings are ongoing, and his NTA remains unaffected.

10

Defendants’ focus on ICE and CBP’s authority to initiate removal proceedings

11 and issue NTAs is beside the point, as the only questions in this case pertain to

12 USCIS’s decisions to terminate DACA. The Napolitano Memo and SOPs

13 unmistakably vest that termination authority in USCIS, and provide detailed

14 procedures governing USCIS’s exercise of that authority. Class PI. Mot., Dkt. 34-1, at

15 9-16. As this Court has explained, the Napolitano “Memo instructed USCIS, not ICE

16 or CBP, to make DACA determinations.” PI Order at 12. “[N]othing in the Napolitano

17 Memo supports the notion that, once USCIS implemented the DACA adjudication

18 process and made a considered judgment to grant an individual DACA, the decision 19 could be unilaterally undone by any ICE or CBP officer.” Id.2

20

Defendants make a number of other erroneous representations about the DACA

21 rules, addressed below. In one critical respect, however, Defendants are correct:

22 Defendants now concede that “the DACA SOP provides that USCIS should notify an

23 individual of its intent to terminate DACA and provide an opportunity to respond to

24

25

2 Defendants’ repeated references to ICE and CBP’s alleged reasons for pursuing removal in Plaintiffs’ and other individual cases are irrelevant for an

26 additional reason: as this Court has held, “[c]ourts review agency action according to

27

the contemporaneous reasons given by the agency and disregard alternative rationales presented during litigation.” PI Order at 12-13. The only relevant potential

28 justifications are those provided by USCIS in its termination decisions.

5

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1 intended DACA termination when . . . subsequent criminal activity comes to USCIS’s

2 attention that is not EPS [Egregious Public Safety concern].” Class Cert. Opp. at 15.

3 As this Court has recognized, absent specified criminal, national security, or public

4 safety concerns, “the DACA termination guidelines prescribe the issuance of a Notice

5 of Intent to Terminate and require that the individual should be allowed 33 days to file

6 a brief or statement contesting the grounds cited.” PI Order at 11 (internal quotation

7 marks and citation omitted). Defendants’ automatic termination practice therefore

8 violates the agency’s own rules and the APA.

9

Defendants erroneously suggest that the DACA SOPs provide for automatic

10 termination—without process—whenever a DACA recipient is labeled an

11 enforcement priority. Class Cert. Opp. at 15. Defendants also make the sweeping

12 assertion that “[i]n reality, DHS considers every individual it issues an NTA to [be] an

13 enforcement priority.” Id. at 14 n.8. Defendants are wrong on both counts. Critically,

14 the class is defined to include only individuals who are eligible for DACA—and the

15 rules of the DACA program expressly provide that eligible individuals are not

16 enforcement priorities. The DACA Memorandum explains that DHS’s enforcement

17 resources should not be expended on “these low priority cases”—referring to

18 individuals who meet the eligibility criteria—and instead “on people who meet our 19 enforcement priorities.”3 Further, the DACA Memorandum and SOPs repeatedly

20 provide that the fact that an individual is in removal proceedings does not disqualify

21 him from being deemed “low priority” via the DACA program. See PI Order at 9-10.

22

In addition, if Defendants’ assertion were true that all individuals issued an

23 NTA are enforcement priorities, then the detailed enforcement priorities enumerated

24 in the Kelly Memorandum would be a nullity. See Kwon Decl., Dkt. 16-4, ¶ 13, Ex.

25 12. Notably, the Kelly Memorandum on its face makes clear that it does not apply to

26 the DACA program. See, e.g., Colotl, 261 F. Supp. 3d at 1343 (holding that “the Kelly

27 28 1.

3 Napolitano Memo, Declaration of Dae Keun Kwon, Dkt. 16-4, ¶ 10, Ex. 9, at

6

Case 5:17-cv-02048-PSG-SHK Document 58 Filed 02/12/18 Page 12 of 17 Page ID #:1870

1 Memo, by its own terms, has no application to the DACA program”); Class PI Mot. at

2 4; see also Second Declaration of Katrina Eiland ¶ 9, Ex. 1 (USCIS correspondence

3 confirming that “USCIS cannot apply the new February 2017 Kelly memo standards

4 to DACA requests.”). Defendants would therefore violate their own rules in deeming

5 DACA-eligible individuals enforcement priorities and terminating on that basis. In

6 sum, because by virtue of their continued DACA eligibility, class members are by

7 definition not enforcement priorities under the DACA rules, Defendants’ contention 8 as to the SOP’s treatment of those deemed an “enforcement priority” is irrelevant.4

9

Defendants appear to suggest, incorrectly, that Plaintiffs are not entitled to a

10 classwide injunction because in at least some cases involving “Egregious Public

11 Safety” issues, automatic termination is permitted under the DACA rules. Class Cert.

12 Opp. at 16-17. Even assuming Defendants were correct, this argument would only

13 affect Plaintiffs’ APA claim alleging violation of the SOPs; Plaintiffs would still be

14 entitled to classwide relief on their other APA claims, as well as on the due process

15 claim. Moreover, Defendants’ suggestion is wrong. As this Court has held, there is

16 “only one narrow circumstance in which automatic termination based on an NTA is

17 appropriate—when an NTA is issued after USCIS determines that a disqualifying

18 offense or public safety concern is deemed to be ‘Egregious Public Safety’ (‘EPS’).”

19 PI Order at 11. The Court held that automatic termination is not appropriate, however,

20

21

4 In any event, Defendants’ interpretation of the SOPs section referencing enforcement priorities cannot be reconciled with other relevant sections of the SOPs

22 or DHS guidance. Indeed, as explained above, the SOPs section entitled “Criminal

23

National Security, or Public Safety Issues” requires notice and an opportunity to respond in all non-EPS cases. See PI Order at 11; Dkt. 16-24 at 137. Moreover, it

24 could not be more crystal clear that in cases involving enforcement priorities, a

25

specified process requiring notice is mandated: the section is entitled, “Enforcement Priority – DACA Not Automatically Terminated.” Dkt. 16-24 at 138 (emphasis

26 added). See also id. (providing that USCIS can determine whether to initiate

27

termination by issuing a Notice Of Intent to Terminate, and then “[i]f it is determined that the case warrants final termination, the officer will issue . . .Termination Notice[:]

28 Enforcement Priority; Not Automatically Terminated”) (internal brackets omitted).

7

Case 5:17-cv-02048-PSG-SHK Document 58 Filed 02/12/18 Page 13 of 17 Page ID #:1871

1 where the “NTA was issued on the basis of presence without admission, not EPS.” Id.

2 Accord Gonzalez Torres, 2017 WL 4340385, at *5-6. Yet Defendants’ policy is to

3 terminate automatically regardless of whether the NTA is based on EPS—in violation

4 of Defendants’ own rules. In any event, as Plaintiffs have explained, the Court could

5 modify the class definition to create a subclass of noncitizens whose Termination

6 Notices have stated or will state that the reason for the termination is EPS. Class Cert.

7 Reply at 6 & n. 5. As a result, there is no question that for all class members (i.e.

8 individuals who have not been convicted of a disqualifying offense and whose

9 termination notices do not assert an EPS concern), automatic termination violates the

10 DACA rules.

11

The government’s failure to explain its changes of position in terminating each

12 class member’s DACA is also arbitrary and capricious in violation of the APA. See

13 FCC v. Fox Television Stations, 556 U.S. 502, 515 (2009). The government offers no

14 authority for its view that an agency may change its position in individual cases with

15 no explanation. Class PI Opp. at 22. In fact, as this Court has held, whenever an

16 agency “chang[es] position,” Fox, 556 U.S. at 515, it is “required to provide a

17 reasoned explanation . . . for disregarding the facts and circumstances that underlay its

18 previous decision.” PI Order at 10 (quoting Organized Vill. of Kake v. U.S. Dep’t of

19 Agric., 795 F.3d 956, 968 (9th Cir. 2015)) (other citations and internal quotation

20 marks omitted). See also, e.g., California Pub. Utils. Comm’n v. Federal Energy

21 Regulatory Comm’n, 879 F.3d 966, 978 (9th Cir. 2018) (holding that the Federal

22 Energy Regulatory Commission had acted arbitrarily in departing—in individual cases

23 and without explanation—from a previous decision to grant utility company requests

24 only under particular circumstances); LeMoyne-Owen Coll. v. NLRB, 357 F.3d 55, 61

25 (D.C. Cir. 2004) (holding that agencies must explain themselves when “a party makes

26 a significant showing that analogous cases have been decided differently”).

27

The government does not address this Court’s holding or the controlling

28 authority on which it relied. Instead, the government asserts that it may change its

8

Case 5:17-cv-02048-PSG-SHK Document 58 Filed 02/12/18 Page 14 of 17 Page ID #:1872

1 position arbitrarily, with no explanation, as long as it has a practice of doing so. Class

2 PI Opp. at 23 (relying on USCIS’s practice—contrary to its own rules—of automatic

3 termination without explanation). In other words, the government takes the position

4 that an agency may violate the APA so long as it has a consistent practice of doing so.

5 This argument is self-refuting. Unsurprisingly, the lone case on which the government

6 relies does not stand for this remarkable proposition. See Sierra Club v. Bureau of

7 Land Management., 786 F.3d 1219, 1226 (9th Cir. 2015) (finding no Fox violation 8 where the agency altered its analysis but did not reverse any decision).5 The Court

9 should again hold that the government’s unexplained reversal violates the APA.

10

III.

THE GOVERNMENT PROVIDES NO RESPONSE TO PLAINTIFFS’ DUE PROCESS ARGUMENT THAT ONCE GRANTED DACA,

11

RECIPIENTS ARE ENTITLED TO A FAIR PROCESS FOR

12

REVOCATION.

13

While the Court can grant Plaintiffs’ motion based on their non-constitutional

14 APA claims, the government notably fails to address Plaintiffs’ core constitutional

15 argument. That procedural due process argument is based on a controlling line of

16 cases holding that, even absent a claim of entitlement to an important benefit, once it

17 is conferred, recipients have a protected property interest that requires a fair process

18 before the government may take that benefit away. See Class PI Mot. at 17 (citing,

19 inter alia, Bell v. Burson, 402 U.S. 535, 539 (1971)); see also Arreola PI Mot., Dkt.

20 16-2, at 18-21; Arreola PI Reply at 19-21. Thus, even though DACA is ultimately

21 discretionary, once granted, the government cannot take it away without due process.

22

23

5 Chemehuevi Indian Tribe v. Brown, No. ED CV 16-1347-JFW (MRWx), 2017

24 WL 2971864, at *8 n.9 (C.D. Cal. Mar. 30, 2017), did not even concern a claim that a

25

change in position was arbitrary and capricious under the APA. The footnote cited by the government, Class PI Opp. at 23, discusses the unrelated question of when an

26 agency practice interpreting a statute can receive deference under Skidmore v. Swift &

27

Co., 323 U.S. 134 (1944). See also PI Order at 12 (noting that Skidmore only requires deference to the extent that an agency interpretation has “the power to persuade”)

28 (citation and quotation marks omitted).

9

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1

The government makes no attempt to refute this principle. Instead, it cites cases

2 holding that, as a general matter, discretionary benefits do not give rise to a protected

3 property interest. See Class PI Opp. at 13-16 (citing cases). But the Plaintiffs never

4 make that contention, and none of those cases involve the revocation of a

5 discretionary benefit that has already been conferred.

6

The government further argues that the DACA guidance does not give rise to a

7 protected property interest, see Class PI Opp. at 15-17, but again this argument is a

8 straw man. The Plaintiffs do not argue that the DACA program itself establishes a

9 protected interest. Instead, they argue only that, having previously granted them

10 DACA, the government may not strip them of it without a fair procedure. Class PI

11 Mot. at 16-19. Defendants’ remaining arguments likewise miss the mark. The

12 Plaintiffs do not premise their claim on a substantive “right to work in the United 13 States,” nor have they alleged a “right to DACA.” Class PI Opp. at 15.6

14

Finally, the government does not even attempt to suggest that its actions satisfy

15 due process. Indeed, the government could not since—as it concedes, see Class PI

16 Opp. at 2-3—the Plaintiffs were stripped of DACA without any process whatsoever.

17 Indeed, USCIS already provides a procedure whereby DACA recipients are afforded a

18 reasoned explanation for its actions and an opportunity to present arguments and

19

20

21

6 The government also half-heartedly suggests, incorrectly, that a federal regulation provides for automatic termination of a DACA EAD when an NTA is filed

22 with the immigration court. Class PI Opp. at 16 (citing 8 C.F.R. § 274a.14(a)(1)(ii)).

23

Although the cited regulation provides for termination in some cases, it also contains a specific exception stating that “this shall not preclude the authorization of

24 employment pursuant to § 274a.12(c) of this part where appropriate.” 8 C.F.R. §

25

274a.14(a)(1)(ii) (emphasis added). See Alfaro-Orellana v. Ilchert, 720 F. Supp. 792, 794 (N.D. Cal. 1989) (recognizing that 8 C.F.R. § 274a.14(a)(1)(ii) “creates an

26 exception for appropriate work authorizations under § 274a.12(c)). In any event, the

27

Supreme Court has held that the government “may not constitutionally authorize the deprivation of [a property] interest, once conferred, without appropriate procedural

28 safeguards.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541– 42 (1985).

10

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1 evidence. See Class PI Mot. at 19. In sum, the termination of Plaintiffs’ DACA and

2 EADs in the absence of a fair process violates their procedural due process rights.

3

4 IV. THE REMAINING INJUNCTION FACTORS FAVOR THE

5

PLAINTIFFS.

6

The government does not dispute that the harm it is causing the Plaintiffs is

7 irreparable. Indeed, it could not do so given that this Court has already held that the

8 revocation of DACA imposes irreparable harm. PI Order at 13-14. The Court relied on

9 controlling Ninth Circuit case law holding that undermining DACA recipients’

10 employment constitutes irreparable harm. See id.; see also Arizona Dream Act Coal. v.

11 Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014); Gonzalez Torres, 2017 WL 4340385, at

12 *6 (finding irreparable harm caused by loss of employment and “sense of well-being”

13 following termination of DACA); Colotl, 261 F. Supp. 3d at 1343-44.

14

The government also does not dispute that requiring it to comply with the APA

15 and the Constitution would serve the public interest, as this Court has held. See PI

16 Order at 14-15. Indeed, the only government interest that it names—“the need for

17 Defendants to pursue removal for individuals like the named Plaintiffs,” Class PI Opp.

18 at 24—concerns the Plaintiffs’ removal proceedings, which are not at issue in this

19 case. And although the government certainly has a general interest in the enforcement

20 of the immigration laws, the agencies administering those laws are required to act 21 lawfully. In sum, the remaining factors support a preliminary injunction.7

22

23

24

7 Defendants’ passing suggestion that enjoining the termination of the

25

Plaintiffs’ DACA would require a mandatory injunction is incorrect. Class PI Opp. at 5. A prohibitory injunction maintains the status quo, which is defined as “not simply

26 any situation before the filing of the lawsuit, but rather the last uncontested status that

27

preceded the parties’ controversy.” Dep’t. of Parks & Recreation v. Bazaar Del Mundo Inc., 448 F.3d 1118, 1124 (9th Cir. 2006). Here, that “last uncontested status”

28 is when the Plaintiffs had DACA and EADs.

11

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1

CONCLUSION

2

For these reasons, the Court should grant (1) Plaintiffs’ Motion for a Classwide

3 Preliminary Injunction, (2) vacate and enjoin Defendants’ unlawful revocation of

4 Plaintiffs Gil’s and Moreira’s DACA and EADs, as well as the DACA and EADs of

5 proposed class members whose DACA has been terminated since January 19, 2017,

6 and (3) enjoin Defendants from terminating Plaintiffs’ and proposed class members’

7 DACA and EADs pursuant to their unlawful policies in the future.

8 Dated: February 12, 2018

Respectfully submitted,

9

/s/ Jennifer Chang Newell

10

Jennifer Chang Newell

11

Katrina L. Eiland Michael K. T. Tan*

12

David Hausman*

13

ACLU FOUNDATION

IMMIGRANTS’ RIGHTS PROJECT

14

15

Ahilan T. Arulanantham

Michael Kaufman

16

Dae Keun Kwon

17

ACLU FOUNDATION

OF SOUTHERN CALIFORNIA

18

19

Attorneys for Plaintiffs

*Admitted pro hac vice

20

21

22

23

24

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12

 
 Case 5:17-cv-02048-PSG-SHK Document 59 Filed 02/14/18 Page 1 of 33 Page ID #:1876

1 CHAD A. READLER

2 Assistant Attorney General

3

Civil Division WILLIAM C. PEACHEY

4 Director

5 JEFFREY S. ROBINS Assistant Director
6 JAMES J. WALKER

7 Trial Attorney

United States Department of Justice 8 Civil Division

9 Office of Immigration Litigation

10 District Court Section Washington, D.C. 20044
11 Tel.: (202) 532-4468

12 Fax: (202) 305-7000 Email: james.walker3@usdoj.gov
13

14 Counsel for Defendants

15

UNITED STATES DISTRICT COURT

16

CENTRAL DISTRICT OF CALIFORNIA

17

18 INLAND EMPIRE –

) Case No. 5:17-cv-2048- PSG-SHK

19 IMMIGRANT YOUTH

)

COLLECTIVE and JESUS

)

20

ALONSO ARREOLA ROBLES, ) DEFENDANTS’ AMENDED

21 on behalf of himself and others

) NOTICE OF MOTION &

22

similarly situated,

) MEMORANDUM OF POINTS AND ) AUTHORITIES IN SUPPORT OF

23

Plaintiff,

) DEFENDANTS’ MOTION TO

24
v.
25

) DISMISS AMENDED COMPLAINT ) ) Judge: Hon. Philip S. Gutierrez

26

) Courtroom: 6A

27

KIRSTJEN NIELSEN, Secretary of ) Hearing: April 16, 2018

Homeland Security, et al.,

) Time: 1:30pm

28

)

Defendants.

)

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1

TABLE OF CONTENTS

2 INTRODUCTION ............................................................................................................... 1

3 BACKGROUND ................................................................................................................. 2
4

5 SUMMARY OF THE ARGUMENT .................................................................................. 3

6 ARGUMENT ....................................................................................................................... 4 7
8 I. Standard of Review.................................................................................................... 4

9

A. Dismissal pursuant to Fed. R. Civ. P. 12(b)(1) ............................................... 4

10

11

B. Dismissal pursuant to Fed. R. Civ. P. 12(b)(6) ............................................... 5

12 II. Plaintiff Inland Empire should be dismissed for lack of standing ............................. 6

13 III.
14
15 IV.
16 17
18 19

Plaintiff Arreola Robles should be dismissed from this action for lack of standing and because his claim is no longer ripe ................................................. 7
This Court must dismiss the amended complaint because Plaintiffs fail to establish this Court’s jurisdiction. ........................................................................ 8
A. DHS’s discretion to initiate removal proceedings and their effect on the termination of Plaintiffs’ DACA is not reviewable. ............................ 8

20

i. Judicial review is barred under 5 U.S.C.§ 701(a)(1) because

21

the INA limits review of Plaintiffs’ claim, which arise

from DHS’s decision to commence Plaintiffs’ removal

22

proceedings ........................................................................................... 9

23

24

ii Judicial review of Plaintiffs’ claims is also barred under 5 U.S.C.§ 701(a)(2), because how and when an NTA issues is

25

committed to agency discretion .......................................................... 13

26

iii Plaintiffs cannot state a constitutional claim because the

27

termination of DACA does not implicate a constitutional

28

interest. ................................................................................................ 15

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1

B. Plaintiff’s Fail to State a Claim Under the APA ..........................................18

2

3

i. DACA termination by NTA is provided for in the DACA SOP

and policy documents, and DHS policy and regulations...................19

4

5

ii. There is no requirement that an NTA charge more than unlawful

6

presence, nor is it arbitrary to rely on the decision to issue an NTA.................................................................................................... 21

7

8

CONCLUSION ....................................................................................................... 23

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

TABLE OF AUTHORITIES

2

CASES

3 Acura of Bellevue v. Reich,
4 90 F.3d 1403 (9th Cir. 1996) .......................................................................................... 12

5 Addy v. Sessions,
6 696 F. App’x 801 (9th Cir. 2017)...................................................................................22

7

8

Aguilar v. U.S. Immigration and Customs Enforcement Div. of Dept. of Homeland Sec., 510 F.3d at 9-10........................................................................................................12, 19

9

10 Alcaraz v. INS, 384 F.3d 1150 (9th Cir. 2004) ........................................................................................ 10
11

12 Arizona v. United States, 13 567 U.S. 387 (2012) ....................................................................................................... 21

14 Arpaio v. Obama, 15 797 F.3d 11 (D.C. Cir. 2015)..........................................................................................14

16 Ashcroft v. Iqbal, 17 556 U.S. 662 (2009) ......................................................................................................... 6

18 Bd. of Regents of State Colleges v. Roth, 19 408 U.S. 564 (1972) ...........................................................................................16, 19, 21

20 Bell Atl. Corp. v. Twombly, 21 550 U.S. 544 (2007) ......................................................................................................... 5

22 Blantz v. Cal. Dep’t of Corr. & Rehab.,
23 727 F.3d 917 (9th Cir. 2013) .......................................................................................... 16

24

25

Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999) .......................................................................................... 10

26

27 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013)...................................................................................................... 5
28

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1

Garcia v. Holder, No., 07-60271, 320 F. App’x 288 (9th Cir. April 9, 2009) ............................................ 16

2

3 Gerhart v. Lake Cnty., Mont., 637 F.3d 1013 (9th Cir. 2011) ........................................................................................ 16
4

5 Gupta v. Holder, 6 No. 611CV1731ORL35GJK, 2011 WL 13174873, at *1 (M.D. Fla. Oct. 31, 2011) ..........11, 17, 18

7 Gupta v. U.S. Atty. Gen., 8 485 F. App’x 386 (11th Cir. 2012).................................................................................11

9 Heckler v. Chaney, 10 470 U.S. 821 (1985) ............................................................................................9, passim

11 Hernandez v. Gonzales, 12 221 F. App’x 588 (9th Cir. 2007)...................................................................................22

13 Hodgers-Durgin, v. de la Vina,
14 199 F.3d 1037 (9th Cir. 1999). ......................................................................................... 7

15 Hoffman Plastic Compounds, Inc. v. NLRB,
16 535 U.S. 137 (2002) ....................................................................................................... 16

17

18

ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270 (1987) ....................................................................................................... 13

19

20 Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. Brock, 477 U.S. 274 (1986) ..................................................................................................... 5, 6
21

22 J.E.F.M., 23 837 F.3d at 1035-38..................................................................................................11, 12

24 Judulang v. Holder, 25 565 U.S. 42 (2011) ......................................................................................................... 22

26 Kings Cty. v. Surface Transp. Bd., 27 694 F. App’x 472 (9th Cir. 2017).....................................................................................8

28

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1

La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083 (9th Cir. 2010) ...................................................................................... 5, 6

2

3 Landon v. Plasencia, 459 U.S. 21 (1982) ................................................................................................... 16, 17
4

5 Lincoln v. Vigil, 6 508 U.S. 182 (1993) ....................................................................................................... 13

7 Lujan v. Defenders of Wildlife, 8 504 U.S. 555 (1992) ..................................................................................................... 4, 5

9 Madu v. U.S. Attorney Gen., 10 470 F.3d 1362 (11th Cir. 2006) ...................................................................................... 15

11 Martinez v. Napolitano, 12 704 F.3d 620 (9th Cir. 2012) .......................................................................................... 12

13 Mathews v. Eldridge,
14 424 U.S. 319 (1976) ....................................................................................................... 16

15 Mendez de Leon v. Reno,
16 No. C 97-02482 CW, 1998 WL 289321, at *7 (N.D. Cal. Mar. 26, 1998)....................18

17

18

Mendez-Garcia v. Lynch, 840 F.3d 655 (9th Cir. 2016) .......................................................................................... 16

19

20 Morales de Soto v. Lynch, 824 F.3d 822, 828 (9th Cir. 2016) .................................................................................. 14
21

22 Munoz v. Ashcroft, 23 339 F.3d 950 (9th Cir. 2003) .......................................................................................... 17

24 Neri v. New Jersey State Parole Board, et al., 25 229 F. App'x at 508 ........................................................................................................ 17

26 O’Shea v. Littleton, 27 414 U.S. 488 (1974) ......................................................................................................... 5

28

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1

Oregon Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin., 860 F.3d 1228 (9th Cir. 2017) ...................................................................................... 5, 6

2

3 Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365 (1978) ......................................................................................................... 4
4

5 Pasquini v. Morris, 6 700 F.2d 658 (11th Cir. 1983) ........................................................................................ 14

7 Perales v. Casillas, 8 903 F.2d 1043 (5th Cir. 1990) .................................................................................. 14, 17

9 Pilapil v. INS, 10 424 F.2d 2 (10th Cir. 1970) ............................................................................................ 17

11 Rockwell Int'l Corp. v. United States, 12 549 U.S. 457 (2007) ......................................................................................................... 7

13 Reno v. Am.-Arab Anti-Discrimination Comm. (“AADC”),
14 525 U.S. 471 (1999) ............................................................................................... 9, 10, 14

15 Romero de Silva v. Smith,
16 773 F.2d 1021 (9th Cir. 1985)...........................................................................................10

17

18

Salviejo–Fernandez v. Gonzales, 455 F.3d 1063 (9th Cir. 2006) ........................................................................................ 22

19

20 Silva v. United States, 866 F.3d 938 (8th Cir. 2017) .......................................................................................... 10
21

22 Singh v. Gonzales, 23 499 F.3d 969 (9th Cir. 2007) .......................................................................................... 12

24 Sissoko v. Rocha, 25 509 F.3d 947 (9th Cir. 2007) .......................................................................................... 10

26 Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 27 873 F.2d 1221 (9th Cir. 1989) .......................................................................................... 4

28

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1

Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730 (9th Cir. 1979) ............................................................................................ 5

2

3 Torres-Aguilar v. INS, 246 F.3d 1267 (9th Cir. 2001) ........................................................................................ 11
4

5 Town of Castle Rock v. Gonzales, 6 545 U.S. 748 (2005) ................................................................................................... 9, 16

7 United States v. Armstrong, 8 517 U.S. 456 (1996) ................................................................................................. 13, 15

9 United States v. Hovsepian, 10 359 F.3d 1144 (9th Cir. 2004) ........................................................................................15

11 Vasquez v. Aviles, 12 639 F. App’x 898 (3d Cir. 2016) .................................................................................... 20

13 Vilchiz-Soto v. Holder,
14 688 F.3d 642 (9th Cir. 2012) ...................................................................................... 9, 11

15 Wayte v. United States,
16 470 U.S. 598 (1985) ....................................................................................................... 14

17

18

Wong v. United States, 373 F.3d 952 (9th Cir. 2004) .......................................................................................... 10

19

20

STATUTES

21 5 U.S.C. § 701(a)(1).............................................................................................................9

22 5 U.S.C. § 701(a)(2).......................................................................................................9, 13

23 5 U.S.C. § 702 ...................................................................................................................... 8

5 U.S.C. § 704 ...................................................................................................................... 8 24

5 U.S.C. § 706(2)(A)............................................................................................................9 25
5 U.S.C. § 706(2)(D)............................................................................................................9 26
8 U.S.C. § 1182 .................................................................................................................. 22 27
8 U.S.C. § 1229(a) ............................................................................................................... 9 28
8 U.S.C. § 1252 .................................................................................................................... 4

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1 8 U.S.C. § 1252(b)(9)................................................................................................... 11, 12
2 8 U.S.C. § 1252(g) ...............................................................................................4, 9, 10, 11
3 8 U.S.C. § 1229a .................................................................................................................. 4 4 8 U.S.C. § 1252(a)(5).........................................................................................................11
8 U.S.C. § 1611(b)(2)......................................................................................................... 18 5
8 U.S.C. § 1611(b)(3)......................................................................................................... 18 6
8 U.S.C. § 1621(d) ............................................................................................................. 18 7

8

FEDERAL RULES OF CIVIL PROCEDURE

9 Rule 12(b)(1)........................................................................................................................4

10 Rule 12(b)(6)........................................................................................................................5

11

REGULATIONS

12 8 C.F.R. § 239.1(a) ....................................................................................................... 19, 25

13 8 C.F.R. § 274a.12(c).............................................................................................17, 18, 23

14 8 C.F.R. § 274a.14(a)(1)(ii) ......................................................................................... 11, 17

15 8 C.F.R. § 1003.13 ....................................................................................................... 17, 23

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

AMENDED NOTICE OF MOTION

2

PLEASE TAKE NOTICE that on April 16, 2018 at 1:30 p.m., or as soon thereafter

3 as the parties may be heard, Defendants will bring for hearing a motion to dismiss. On

4 February 5, 2018, Defendants filed a Notice of Motion and Memorandum of Points and

5 Authorities in Support of Defendants’ Motion to Dismiss Amended Complaint, which

6 noticed a hearing date of March 26, 2018 [Dkt. No. 55]. This amended motion is based

7 on the same memorandum of points and authorities filed at Dkt. No. 55, attached hereto,

8 as well as all pleadings, papers and files in this action, and such oral argument as may be

9 presented at the hearing on the motion. The hearing will take place before the Honorable

10 Philip S. Gutierrez in Courtroom 6A, 350 W 1st Street, Suite 4311, Los Angeles, CA,

11 90012. This amended motion is made following conference between counsel for the

12 Plaintiffs and Defendants, which took place via telephone on February 14, 2018, in which

13 Plaintiffs’ counsel indicated a conflict with the first hearing date.

14 DATED: February 14, 2018 15 16 17 18 19 20 21 22 23 24 25 26 27

Respectfully Submitted,
CHAD A. READLER Acting Assistant Attorney General WILLIAM C. PEACHEY Director JEFFREY S. ROBINS Assistant Director
/s/ James J. Walker JAMES J. WALKER Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section Washington, D.C. 20044 Tel.: (202) 532-4468 Fax: (202) 305-7000 Email: james.walker3@usdoj.gov

28

Counsel for Defendants

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

INTRODUCTION

3

On December 21, 2017, organizational plaintiff Inland Empire – Immigrant Youth

4 Collective (“Inland Empire” or “IEIYC”) and individual Plaintiffs Jesús Alonso Arreola

5 Robles (“Mr. Arreola”), José Eduardo Gil Robles (“Mr. Gil”), and Ronan Carlos De

6 Souza Moreira (“Mr. Moreira”), filed an amended class action complaint [Dkt. No. 32],

7 following Defendants’ restoration of Plaintiff Arreola’s Deferred Action for Childhood

8 Arrivals (“DACA”) and employment authorization document (“EAD”), per this Court’s

9 November 21, 2017, Order. [Dkt. No. 31].

10

Plaintiffs’ amended complaint alleges Defendants “have targeted numerous DACA

11 recipients and unlawfully revoked the grants of deferred action and work permits they

12 have received even though these individuals have abided by all the program rules and

13 have not engaged in any conduct that would disqualify them from the program.” Dkt. No.

14 32 at ¶ 1. On this basis, Plaintiffs seek the extraordinary relief of forcing DHS to reinstate

15 their DACA and enjoining the Government from terminating DACA in the future for the

16 individual plaintiffs as well as for a nationwide class of those similarly situated.

17

However, Plaintiffs’ allegations fall apart when examined in full context. Each

18 Plaintiff was arrested for engaging in criminal activities, determined to be an enforcement

19 priority, and placed into removal proceedings, which had the unremarkable effect of

20 terminating their DACA. Every step of the process Defendants followed is accounted for

21 in DACA policy and immigration law, and Plaintiffs were forewarned of the risk to their

22 DACA for engaging in criminal activity. Plaintiffs offer no support for their claim that

23 Defendants are “targeting” DACA grantees for wholesale automatic termination.

24

The Court should dismiss Plaintiffs’ amended complaint as a challenge to the

25 Government’s authority to initiate removal proceedings, which this Court lacks

26 jurisdiction to review. Furthermore, Congress has made clear that any claims the Court

27 may find cognizable, including constitutional claims, related to the initiation or conduct 28 of removal proceedings against Plaintiffs, must be raised in those proceedings before an

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1 immigration judge, and appealed to a court of appeals through the for review process if

2 necessary. If the Court were to find jurisdiction to hear these challenges to the initiation

3 of removal proceedings, it should still dismiss for failing to state a claim for which relief

4 can be granted. Deferred action is an entirely discretionary grace, not an immigration

5 benefit nor a protection from removal.

6

BACKGROUND

7

When U.S. Immigration and Customs Enforcement (“ICE”) or U.S. Customs and

8 Border Protection (“CBP”) issues a notice to appear (“NTA”) to a DACA grantee,

9 regardless of the reason, there is no requirement in the DACA SOP or elsewhere for 10 USCIS to make a separate decision to terminate the individual’s DACA or EAD.1 Rather,

11 the decision to issue an NTA to an individual with DACA is the decision to no longer

12 defer action against that individual, and the charge selected for the NTA does not have to

13 reflect DHS’s full reasoning. Nothing restricts DHS’s authority to issue an NTA because

14 someone was previously found to warrant a favorable exercise of prosecutorial discretion

15 in the form of deferred action, nor is a criminal conviction or criminal charge necessary

16 to justify termination of DACA. While the Napolitano Memo and DACA SOP identify

17 and explain threshold criteria for DACA consideration, nothing limits DHS’s discretion 18 to grant, deny, or terminate DACA on a case by case basis.2 Nor is the DACA SOP the

19 only authority establishing the process by which deferred action terminates.

20

Plaintiff Arreola had his DACA and EAD terminated automatically through the

21 issuance of an NTA, after CBP law enforcement officers encountered him engaged in

22

23 1 Defendants incorporate by reference the explanation of the DACA policy, the EAD application process

24

for individuals with no lawful status, and the process by which removal proceedings are initiated through NTA issuance, provided in Defendants’ Opposition to Plaintiffs Motion for Class Certification, Section

25 II.A and B. Dkt. No. 53 at 7-13.

26 2 In fact, USCIS may still grant DACA to an individual with a disqualifying criminal conviction, See Dkt.
No. 53-1 at 70; or deny DACA to an individual with no criminal history. Id. at 38 (“Individuals may be

27 considered for DACA upon showing that they meet the prescribed guidelines . . .”); id. at 78 (“USCIS

28

lacks the authority to consider requests from individuals who are in immigration detention under the custody of ICE at the time of filing”).

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1 alien smuggling, the facts of which he conceded in an interview with Border Patrol

2 Agents. See Dkt. 23-2 at 26, 56-57. Mr. Arreola’s DACA and EAD were then reinstated

3 on November 22, 2017, and on December 20, 2017, DHS issued a Notice of Intent to

4 Terminate pursuant to this Court’s Order. See Dkt. No. 31; Dkt. No. 32 at ¶ 87.

5

On September 20, 2017, Plaintiff Gil was arrested and charged with two felonies,

6 including assault in the first degree and transferring a firearm without a background

7 check to a prohibited person. See Dkt. No. 53-1 at 4-7, 9-15. On November 6, 2017,

8 ICE issued Gil an NTA charging him with unlawful presence. Id. On November 14,

9 2017, USCIS issued him a Notice of Action, stating his DACA and EAD terminated

10 automatically with the NTA. See Dkt. No. 32 at ¶ 109.

11

On November 3, 2017, Plaintiff De Souza was arrested for forgery in the first

12 degree, a felony.3 See Dkt. 53-1 at 17-18, 20-24. De Souza admitted to police that he

13 had altered the expiration date on his driver’s license due to it expiring. Id. On

14 November 5, 2017, ICE issued De Souza an NTA charging unlawful presence, and on

15 November 10, 2017, USCIS issued a Notice of Action informing De Souza his DACA

16 and EAD terminated automatically with the NTA. Dkt. No. 32 at ¶ 129.

17

Organizational Plaintiff Inland Empire claims no injury of its own, and only

18 prospective harm to its members. See, e.g., Dkt. No. 32 at ¶ 135 (“Defendants’ unlawful

19 termination policies and practices are likely to harm IEIYC DACA recipients.”).

20

SUMMARY OF THE ARGUMENT

21

Regardless of how the arguments are framed, Plaintiffs directly challenge DHS’s

22 authority to initiate removal proceedings, which this Court should dismiss for lack of

23 subject matter jurisdiction pursuant to the Administrative Procedure Act (“APA”) and 8

24 U.S.C. § 1252. By definition, a demand to restore deferred action terminated by the

25 initiation of removal proceedings challenges the agency’s determination to initiate

26 removal proceedings. Any interpretation of these statutes that permits district court

27

28

3 Plaintiffs incorrectly assert that Plaintiff De Souza was arrested for “possession of an altered identification document—a misdemeanor.” Dkt. No. 32 at ¶ 101.

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1 challenges to actions inextricably linked to the initiation of removal proceedings would

2 run counter to Congress’s intent, to Supreme Court case law, and to the law of this

3 Circuit. Plaintiffs’ due process challenges must also fail, because they cannot show a

4 protected interest in DACA or EADs. In fact, reinstating Plaintiffs’ EADs following the

5 institution of removal proceedings would violate duly-enacted DHS regulations that

6 operate independent of, and superior to, DACA policy.

7

Additionally, Plaintiffs Arreola and Inland Empire lack standing in this matter.

8

Most importantly, and contrary to Plaintiffs’ unsupported allegations, DHS issued

9 Plaintiffs NTAs based on individualized determinations that Plaintiffs’ criminal conduct

10 rendered them enforcement priorities, and it did so with the knowledge of each Plaintiffs’

11 DACA. Thus, the decision to initiate removal proceedings preceded the consequence of

12 Plaintiffs’ DACA and EAD terminating, and no reasonable argument can be made that the

13 terminations did not arise out of that decision, such that 8 U.S.C. § 1252(g) prevents this

14 Court from reviewing either step. To the extent this Court may find Plaintiffs have any

15 viable legal claims arising from the “decision[s] or action[s]” of DHS to initiate removal 16 against these Plaintiffs, Congress enacted 8 U.S.C. §§ 1229a and 1252 to channel those 17 claims to an immigration court and ultimately to the appropriate court of appeals.

18

ARGUMENT

19 I. Standard of Review

20

A. Dismissal pursuant to Fed. R. Civ. P. 12(b)(1)

21

Because federal courts have limited jurisdiction, a court must dismiss any case if it

22 lacks subject matter jurisdiction over the claims. Fed. R. Civ. P. 12(b)(1); Owen Equip. &

23 Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). “A federal court is presumed to lack

24 jurisdiction in a particular case unless the contrary affirmatively appears.” Stock W., Inc.

25 v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).

26 The elements necessary to establish standing “must be supported in the same way as any

27 other matter on which the plaintiff bears the burden of proof.” Lujan v. Defenders of

28 Wildlife, 504 U.S. 555, 561 (1992). Moreover, when the issue of jurisdiction is separable

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1 from the merits of the case, no presumption of truthfulness attaches to a plaintiff’s

2 allegations, and the plaintiff bears the burden of proving that jurisdiction exists. Thornhill

3 Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).

4

The “irreducible constitutional minimum of standing” to assert federal court

5 jurisdiction requires “the plaintiff must have suffered an injury in fact . . . which is . . .

6 concrete and particularized, . . . the injury has to be fairly traceable to the challenged

7 action of the defendant, and . . . it must be likely . . . that the injury will be redressed by a

8 favorable decision.” Lujan, 504 U.S. at 560 (internal citations and modifications omitted).

9 “Allegations of possible future injury do not satisfy the requirements of Art[icle] III.”

10 Oregon Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin., 860 F.3d

11 1228, 1235 (9th Cir. 2017), citing Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1141

12 (2013). Finally, while an imminent future harm may establish standing, the harm alleged

13 cannot be the result of plaintiff’s own unlawful conduct. Id. at 1042, quoting O’Shea v.

14 Littleton, 414 U.S. 488, 497 (1974).

15

An organization suing on its own behalf must also show that the claimed injury is

16 “both a diversion of its resources and a frustration of its mission.” La Asociacion de

17 Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010).

18 An organization suing on behalf of its members must show that: “(1) its members would

19 otherwise have standing to sue in their own right; (2) the interests it seeks to protect are

20 germane to the organization’s purpose; and (3) neither the claim asserted nor the relief

21 requested requires the participation of individual members in the lawsuit.” Int’l Union,

22 United Auto., Aerospace & Agr. Implement Workers of Am. v. Brock, 477 U.S. 274, 282

23 (1986).

24

B. Dismissal pursuant to Fed. R. Civ. P. 12(b)(6)

25

To survive dismissal under Rule 12(b)(6), “the complaint must allege sufficient

26 facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

27 550 U.S. 544, 555-56 (2007). Although the Court must accept as true all well-pleaded 28 factual allegations when determining the legal sufficiency of a claim, it need not credit

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1 “legal conclusion couched as a factual allegation.” Id. at 555. “Threadbare recitals of the

2 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). .

4 II. Plaintiff Inland Empire should be dismissed for lack of standing

5

Plaintiff Inland Empire lacks standing on its own and lacks standing on behalf of

6 its members. Inland Empire describes the work that it has done for and with DACA

7 recipients, both as members and as clients, since the policy’s inception. See Dkt. No. 32

8 at 29-31. However, Inland Empire makes no claim that the Government’s actions have

9 diverted its resources or frustrated its mission in the service of members who have lost

10 DACA without advanced notice or an opportunity to respond. See La Asociacion de

11 Trabajadores de Lake Forest, 624 F.3d at 1088. Nor does Inland Empire identify a single

12 member of its organization who has lost DACA with or without advanced notice. In fact,

13 Plaintiff is clear that its sole concern in this matter is the prospective harm its members

14 may possibly face in the future. Dkt. No. 32 at ¶ 135 (“Defendants’ unlawful termination

15 policies and practices are likely to harm IEIYC DACA recipients.”); Or. Prescription

16 Drug Monitoring Program, 860 F.3d at 1235.

17

Thus, Inland Empire has not shown organizational injury, and it may not represent

18 its individual members unless those members themselves would have standing as 19 plaintiffs, and then only if those individual members would not be required to participate 20 in the lawsuit. Brock, 477 U.S. at 282. Here, Plaintiffs’ amended complaint does not 21 establish standing for even one of Inland Empire’s members. Even if it did, the very fact22 specific inquiry necessary to determine why such a fictional plaintiff lost his or her 23 DACA, and whether he or she would be entitled to additional process before such 24 termination, would require that person to participate in the lawsuit. Plaintiffs offer no 25 rationale to overcome these requirements. Furthermore, while Inland Empire alleges 26 future potential harm to its members even if they do not commit any disqualifying 27 conduct, the only present harm plaintiffs allege in their complaint is DACA termination

28

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1 that was based on the unlawful conduct of the plaintiffs.4 And a plaintiff may not assert

2 standing based on future harm that would only occur if the plaintiff first engages in

3 unlawful behavior. Hodgers-Durgin, v. de la Vina, 199 F.3d 1037, 1042 (9th Cir. 1999).

4 Plaintiffs offer no examples of a DACA recipient whose DACA automatically terminated

5 without having first engaged in criminal activity. Thus, they show no basis for standing

6 on the premise that such an action might occur to one of their members sometime in the

7 future. Because Plaintiff Inland Empire fails to meet the standing requirements for an

8 individual or an organization, it should be dismissed from this action.

9 III. Plaintiff Arreola Robles should be dismissed from this action for lack of

10

standing and because his claim is no longer ripe

Because Plaintiff Arreola’s DACA and EAD were reinstated on November 22, 11

2017, pursuant to this Court’s Order, and he subsequently filed an amended complaint on 12

December 21, 2017, the grounds he asserted for standing in his original complaint are no 13

longer before this Court, and he has failed to establish any injury in the amended 14

complaint ripe for this Court’s adjudication. See Dkt. Nos. 31, 32. As discussed in the 15

previous section, the Court may not find standing based on the possibility of future harm 16

to cure his present lack of standing, particularly if that possible future harm is predicated 17

on Plaintiff’s future unlawful conduct. 18

When “a plaintiff files a complaint in federal court and then voluntarily amends the 19

complaint, courts look to the amended complaint to determine jurisdiction.” Rockwell 20

Int'l Corp. v. United States, 549 U.S. 457, 473 (2007). Thus, the fact that Plaintiff Arreola 21

had a valid DACA grant at the time he filed his amended complaint means he lacks 22

standing to assert any injury from the termination of his DACA in the present action. 23
Furthermore, where Defendants have issued Plaintiff Arreola a Notice of Intent to 24

Terminate his DACA, along with an opportunity to respond to their intended action, the 25
possibility that he will experience automatic termination of his DACA without such 26
notice and opportunity in the future (or that such a termination would be based on 27

28 4 As explained below, the particular charge of unlawful presence on each plaintiff’s NTA is not the only
reason the NTA was issued, and the lack of additional charges on the NTA does not infirm the process.

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1 something other than his criminal conduct) is essentially nil. Additionally, Plaintiff

2 Arreola’s challenge to his ongoing NOIT process – intending to terminate his DACA

3 based on the determination that he is an enforcement priority – is not ripe because

4 Defendants’ action is not final. See 5 U.S.C. § 704 (“Agency action made reviewable by

5 statute and final agency action for which there is no other adequate remedy in a court are

6 subject to judicial review.”); Kings Cty. v. Surface Transp. Bd., 694 F. App’x 472, 473

7 (9th Cir. 2017) (“We have neither Constitutional jurisdiction nor statutory jurisdiction

8 because the Declaratory Order was not final. Expressing our views regarding that order

9 would amount to an advisory opinion, which would not resolve ‘concrete legal issues,

10 presented in actual cases, not abstractions.’”) (citations omitted). Plaintiff Arreola now

11 has the opportunity to argue to USCIS that his DACA should not be terminated. Though

12 Defendants maintain that the decision to terminate any individual’s DACA is committed

13 to agency discretion and ultimately unreviewable, the lack of a final agency decision in

14 Plaintiff Arreola’s case is an additional basis for this Court to dismiss him from this

15 action.

16 IV. This Court must dismiss the amended complaint because Plaintiffs fail to

17

establish this Court’s jurisdiction

The Court lacks jurisdiction over Plaintiff’s APA and Constitutional claims. First, this

18

Court lacks jurisdiction to review any challenge to DHS’s discretionary determination to issue 19

an NTA, which had the result of automatically terminating DACA and EAD. Second, Plaintiffs

20

cannot state a claim because there is no protected entitlement to DACA or employment

21

authorization. Finally, nothing in the APA or constitutional jurisprudence, nor Defendants’ own

22

policies and guidance, supports a right to review or constrain DHS’s exercise of discretion or to

23

grant Plaintiffs procedural rights other than those available through removal proceedings.

24

A. DHS’s discretion to initiate removal proceedings and their effect on the

25

termination of Plaintiffs’ DACA is not reviewable.

26

The APA permits persons aggrieved by final agency action to obtain judicial review in

27 federal court where “there is no other adequate remedy in a court.” See 5 U.S.C. §§ 702, 704. A

28 reviewing court shall set aside agency action found to be “arbitrary, capricious, an abuse of

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1 discretion, or otherwise not in accordance with law,” or “without observance of procedure

2 required by law.” 5 U.S.C. § 706(2)(A), (D). However, the APA precludes judicial review of

3 agency decisions when “statutes preclude judicial review,” or when the decision is “committed

4 to agency discretion by law.” 5 U.S.C. § 701(a)(1), (a)(2); see Heckler v. Chaney, 470 U.S. 821,

5 830 (1985) (“even where Congress has not affirmatively precluded review, review is not to be

6 had if the statute is drawn so that a court would have no meaningful standard against which to

7 judge the agency's exercise of discretion.”).

8

Thus, there are two reasons APA jurisdiction is not available here. First, there is no

9 separate decision to terminate DACA in these cases because a DHS law enforcement officer

10 decided, in consideration of each plaintiff’s criminal activity, to initiate removal proceedings

11 and issued an NTA that automatically terminated DACA; and second, even if the Court found a

12 separate decision was made, there is still no standard in the SOP or otherwise by which the

13 Court may review a decision that deferring action is no longer in the Government’s interest.

14

Additionally, the Court lacks jurisdiction over Plaintiffs’ constitutional claims

15 because Plaintiffs necessarily lack a protected constitutional interest in the process by

16 which their DACA is terminated, because the ultimate relief they seek – deferred action –

17 is discretionary. Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005).

18

i. Judicial review is barred under 5 U.S.C. § 701(a)(1) because the INA

19

limits review of Plaintiffs’ claims, which arise from DHS’s decision to commence Plaintiffs’ removal proceedings.

20

Congress eliminated judicial review over “any cause or claim by or on behalf of

21 any alien . . . arising from the decision or action . . . to . . . adjudicate cases . . .” 8 U.S.C.

22 § 1252(g). The issuance of an NTA is a necessary predicate to commencing removal

23 proceedings. 8 U.S.C. § 1229(a). Through section 1252(g), Congress explicitly precluded

24 judicial review of any challenge arising from any decision or action to commence 25 removal proceedings. See Reno v. Am.-Arab Anti-Discrimination Comm. (“AADC”), 525 U.S. 26 471, 483-85 (1999) (finding section 1252(g) also precludes review of the discretionary decision

27 to not initiate removal proceedings); see, e.g., Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th 28 Cir. 2012) (holding section 1252(g) barred jurisdiction to review the BIA’s discretionary

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1 decision to not reopen removal proceedings to consider a DACA request).5 The Supreme

2 Court explained that section 1252(g) was “directed against a particular evil: attempts to

3 impose judicial constraints upon prosecutorial discretion.” AADC 588 F.3d at 485 n.9; id.

4 at 485 (treating “‘no deferred action’ decisions” as “discretionary determinations”); cf.

5 Silva v. United States, 866 F.3d 938, 940 (8th Cir. 2017) (section 1252(g) precludes

6 review of decision to execute removal order even where claim that agency lacked

7 discretion because removal violated law).

8

Section 1252(g) encompasses “cause[s] or claim[s]” that arise from the decision

9 “or action” to “commence proceedings” against any individual. See, e.g., Sissoko v.

10 Rocha, 509 F.3d 947, 948-50 (9th Cir. 2007) (finding claim of money damages arose

11 from decision or action to commence removal proceedings and was, thus, barred by 8 12 U.S.C. § 1252(g)); see, e.g., Alcaraz v. INS, 384 F.3d 1150, 1160-61 (9th Cir. 2004)

13 (finding review of the reopening of removal proceedings, but not the administrative 14 closure of proceedings, was barred from review as an action related to the decision to 15 commence removal); Botezatu v. INS, 195 F.3d 311, 314 (7th Cir. 1999) ( (discussing the 16 scope of 8 U.S.C. § 1252(g) as including “various decision . . . leading up to order 17 consequent upon final orders of deportation.”) (citations and quotations omitted).6 A 18 DACA grant is acknowledgement that DHS is not presently pursuing removal against an 19 individual. Thus, when DHS finds an individual has become an enforcement priority and 20 issues an NTA, DACA will logically terminate and such consequence falls squarely 21 within the province of section 1252(g). See, e.g., Alcaraz, 384 F.3d at 1160-61. To hold 22 otherwise would render section 1252(g) a dead letter because any individual could seek 23 to enjoin or otherwise challenge the commencement of removal proceedings through this

24 5 This authority is consistent with earlier case law interpreting the 1981 Operating Instructions, a previous
25 policy that provided guidelines for the exercise of deferred action. See Romeiro de Silva v. Smith, 773
F.2d 1021, 1025 (9th Cir. 1985).
26
6 Wong v. United States, 373 F.3d 952 (9th Cir. 2004), is distinguishable from this case and Sissoko, where
27 the issuance of Plaintiffs’ NTAs occurred before, and were the direct cause of, termination of Plaintiffs’
28 DACA and EADs.

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1 type of creative pleading. See Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001)

2 (holding that “a petitioner may not create the jurisdiction that Congress chose to remove

3 simply by cloaking [a claim] in constitutional garb”).7

4

Applied to the context of this case, a challenge to the decision to terminate DACA

5 by the issuing an NTA is a necessarily a challenge that arises out of the decision or action

6 to initiate removal proceedings because the NTA is the document that is used to initiate

7 removal proceedings. See 8 U.S.C. § 1252(g). Thus, 8 U.S.C. § 1252(g) necessarily bars

8 judicial review. See Vilchiz-Soto, 688 F.3d at 644.

9

To the extent that Plaintiffs have any viable claims, the REAL ID Act, codified at 8

10 U.S.C. §§ 1252(a)(5) and 1252(b)(9), bars them from raising those claims in district

11 court, regardless of whether a final order of removal has issued. Section 1252(a)(5),

12 entitled “[e]xclusive means of review,” requires that “a petition for review filed with an

13 appropriate court of appeals . . . shall be the sole and exclusive means for judicial review

14 of an order of removal . . . .” 8 U.S.C. § 1252(a)(5). Section 1252(b)(9) provides

15 “[j]udicial review of all questions of law and fact, including interpretation and application

16 of constitutional and statutory provisions, arising from any action taken or proceeding

17 brought to remove an alien from the United States under this subchapter shall be available

18 only in judicial review of a final order under this section.” 8 U.S.C. § 1252(b)(9)

19 (emphasis added); see, e.g., J.E.F.M., 837 F.3d at 1038 (district court lacked jurisdiction

20 over challenge to adequacy of removal procedures, and instead court of appeals has

21 authority to resolve questions of constitutional rights on review of a final removal order).

22

Importantly, the Ninth Circuit found that Section 1252(b)(9) is “a clear statutory

23 prescription against district court review” of challenges arising from removal proceedings

24 for plaintiffs who had not yet received final orders of removal. See J.E.F.M., 837 F.3d at

25

26 7 In analogous circumstances, the Eleventh Circuit Court of Appeals affirmed the applicability of Section
1252(g) to bar district court review of the automatic termination of discretion-based employment

27 authorization documents following the commencement of removal proceedings, in accordance with 8

28

C.F.R. § 274a.14(a)(1)(ii). See Gupta v. Holder, No. 611CV1731ORL35GJK, 2011 WL 13174873, at *1 (M.D. Fla. Oct. 31, 2011), aff’d sub nom. Gupta v. U.S. Atty. Gen., 485 F. App’x 386 (11th Cir. 2012).

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1 1035-38 (“The minors . . . attempt to get around [section 1252(b)(9)] by claiming that

2 they have been (or will be) denied meaningful judicial review in light of their juvenile

3 status.”) (emphasis added). While the Court acknowledged that “an unrepresented minor

4 in immigration proceedings poses an extremely difficult situation,” it also found “these

5 considerations cannot overcome a clear statutory prescription against district court

6 review. Relief is through review in the court of appeals or executive or congressional 7 action.” Id. at 1036-1038.8

8

Congress’s intent was simple and uncontroversial: if the issue is one that can be

9 raised in removal proceedings, and ultimately in a petition for review, then the statute

10 precludes district court review. See id. at 1034 (citing H.R. Rep. No. 109-72, at 173

11 (statute was “intended to preclude all district court review of any issue raised in a removal

12 proceeding”)); cf. Aguilar, 510 F.3d at 9-10 (“Congress plainly intended to put an end to

13 the scattershot and piecemeal nature of the review process . . . .”). This approach

14 effectuates the general rule precluding simultaneous review of a question by both an

15 administrative body and a federal court. See Acura of Bellevue v. Reich, 90 F.3d 1403,

16 1408-9 (9th Cir. 1996).

17

Here, the sequence of events could not be more clear: Plaintiffs engaged in criminal

18 conduct, DHS determined their conduct rendered them enforcement priorities, DHS issued

19 each an NTA, the respective NTA caused each Plaintiff’s DACA and EAD to terminate,

20 and Plaintiffs filed this challenge. There can be no doubt that DHS’s discretionary

21 decision to issue NTAs was the direct cause of Plaintiffs’ DACA terminations. See Dkt.

22

23 8 The Court’s previous reliance on Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007), to support section
1252(b)(9) applying only to a final order of removal is misplaced because that language is dicta and

24 conflicts with the plain language of the statute. Dkt. No. 31 at 7. Singh brought a challenge of ineffective

25

assistance of counsel through a habeas petition, and the Court found that the challenge was not tied to removal proceedings, so section 1252(b)(9) did not apply regardless of whether a final order had issued.

26 Singh, 499 F.3d at 978-79. To interpret Singh as permitting district court challenges such as those raised
here runs counter to Congressional intent, and would effectively excise the words “any action taken” from

27 the statute. See Aguilar, 510 F.3d at 10; cf. Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012) (an

28

APA claim “challeng[ing] the procedure and substance of an agency determination that is ‘inextricably linked’ to the order of removal” must be channeled through the petition for review process).

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1 53-1 at 4-24. Thus, Plaintiffs’ challenges necessarily arise from “action taken or

2 proceedings brought to remove an alien,” for which district courts lack jurisdiction.

3

ii. Judicial review of Plaintiffs’ claims is also barred under 5 U.S.C.

4

§ 701(a)(2), because how and when an NTA issues is committed to agency discretion

5

There is no judicial review under the APA of decisions that “courts traditionally

6 have regarded as ‘committed to agency discretion.’” Lincoln v. Vigil, 508 U.S. 182, 192

7 (1993) (quoting 5 U.S.C. § 701(a)(2)). These decisions are typically unreviewable

8 because there exists “no meaningful standard against which to judge the agency’s

9 exercise of discretion.” Chaney, 470 U.S. at 830. This bar applies even when “the agency

10 gives a ‘reviewable’ reason for otherwise unreviewable action.” ICC v. Bhd. of

11 Locomotive Eng’rs, 482 U.S. 270, 283 (1987) (“BLE”).

12

The decisions committed to executive discretion include “an agency’s exercise of

13 enforcement power.” Chaney, 470 U.S. at 831. Such judgments involve “a complicated

14 balancing of factors which are peculiarly within [an agency’s] expertise,” including

15 “whether agency resources are best spent on this violation or another, whether the agency

16 is likely to succeed if it acts, whether the particular enforcement action requested best fits

17 the agency’s overall priorities, and, indeed, whether the agency has enough resources to

18 undertake the action at all.” Id. As there is “no meaningful standard against which to

19 judge the agency’s exercise of discretion” in weighing these factors, an agency’s exercise

20 of enforcement powers is “presumed immune from judicial review under § 701(a)(2).” Id.

21 at 830, 832.

22

An agency’s decision to enforce the law against a particular individual is likewise

23 presumptively unreviewable. Just as “the decision whether or not to prosecute”

24 presumptively “rests entirely in [the prosecutor’s] discretion,” United States v. Armstrong,

25 517 U.S. 456, 464 (1996) (citation omitted), an agency’s decision to bring a civil

26 enforcement action is generally not open to judicial scrutiny. Considerations such as the

27 Chaney factors are equally present in enforcement decisions as in nonenforcement

28

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1 decisions. See Chaney, 470 U.S. at 831; see also Wayte v. United States, 470 U.S. 598,

2 607-8 (1985) (“[T]he decision to prosecute is particularly ill-suited to judicial review”).

3

One form of that broad discretion is deferred action, a “discretionary and

4 reversible” decision to notify an alien that DHS has chosen not to seek his removal for a

5 specific period of time. Arpaio v. Obama, 797 F.3d 11, 17 (D.C. Cir. 2015). Like other

6 agency nonenforcement decisions, grants of deferred action rest on a complex balancing

7 of policy considerations that cannot serve as “meaningful standard against which to judge

8 the agency’s exercise of discretion.” Chaney, 470 U.S. at 831. The converse is equally

9 true: denials of deferred action are also committed to agency discretion. See AADC, 525

10 U.S. at 485 (treating “‘no deferred action’ decisions” as “discretionary determinations”).

11 Because “[g]ranting an illegally present alien permission to remain and work in this

12 country” is fundamentally “a dispensation of mercy,” there are “no standards by which

13 judges may patrol its exercise.” Perales v. Casillas, 903 F.2d 1043, 1051 (5th Cir. 1990)

14 (INS’s decision not to grant pre-hearing voluntary departures and work authorizations to

15 a group of aliens was non-justiciable).

16

Even where an agency has promulgated regulations or provided internal guidance,

17 decisions involving the exercise of prosecutorial discretion are generally not subject to

18 judicial review. See Pasquini v. Morris, 700 F.2d 658, 659 (11th Cir. 1983) (holding that

19 Immigration and Naturalization Service (“INS”) Operating Instructions regarding

20 deferred action did not confer substantive rights on an alien and courts could not review a

21 claim that INS failed to comply with these internal instructions).

22

Thus, individual DACA terminations, especially where based on issuance of NTAs,

23 fall squarely within that category of agency discretion for which judicial review is

24 improper. See Chaney, 470 F.3d at 830; see also Morales de Soto v. Lynch, 824 F.3d 822,

25 828 (9th Cir. 2016) (noting that “the exercise of prosecutorial discretion is a type of

26 government action uniquely shielded from and unsuited to judicial intervention”). In

27 Plaintiffs’ cases, there is no legal question with regard to the DACA guidelines, because

28 the DACA guidelines merely allow an individual to seek a discretionary administrative

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1 grace in the form of DACA. See Dkt. No. 53-1 at 38 (“Individuals may be considered for

2 DACA upon showing that they meet the prescribed guidelines . . .”). DACA is unlike

3 immigration benefits where eligibility is found in statute or regulation, and which Courts 4 have found that the non-discretionary denial of such benefits may be reviewed.9

5

Here, Plaintiffs are challenging DHS’s exercise of its enforcement power granted

6 by Congress. See Dkt. 32 Prayer for Relief (seeking to “Enjoin Defendants from revoking

7 the DACA grants and EADs . . . based on the filing of an NTA charging solely” unlawful

8 presence). This is a classic challenge to DHS’s exercise of its prosecutorial discretion.

9 See Chaney, 470 U.S. at 831. This type of enforcement decision involves a balancing of

10 factors committed to agency discretion by law, including how to allocate agency

11 resources. See id.; Armstrong, 517 U.S. at 464. The question for DHS was not whether it 12 could exercise its discretion in favor of the Plaintiffs, but rather whether it should do so in

13 each case. Because this type of discretionary determination is committed to DHS 14 discretion by law, this Court lacks jurisdiction to review Plaintiffs’ claims.

15

iii. Plaintiffs cannot state a constitutional claim because the termination

16

of DACA does not implicate a constitutional interest.

Plaintiffs assert incorrectly that “[i]ndividuals who have been granted DACA have 17

important constitutionally protected interests in their DACA grant and employment 18

authorization.” Dkt. No. 32 at ¶ 164. However, Plaintiffs necessarily lack a protected 19

constitutional interest in their DACA and in the process to terminate DACA because the 20

ultimate result sought – deferred action – is discretionary, and because the Government 21

never expressed a mutual intention to confer a protected benefit in DACA. 22

23

24 9 The Court’s reliance on United States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004) (en banc) and

25

Madu v. U.S. Attorney Gen., 470 F.3d 1362 (11th Cir. 2006) is misplaced. In both cases, courts reviewed a “purely legal question” that set the stage for a discretionary decision. However, the DACA SOP

26 identifies threshold criteria for DACA consideration, but it does not mandate granting DACA if those
threshold criteria are met. See Dkt. No. 53-1 at 38 (“Individuals may be considered for DACA upon

27 showing that they meet the prescribed guidelines . . .”). Even if the Court finds those criteria enforceable,

28

they are not the subject of the exercises of prosecutorial discretion to issue NTAs, which terminate DACA notwithstanding compliance with the threshold criteria.

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1

The “Due Process Clause does not protect everything that might be described as a

2 ‘benefit.’” Castle Rock, 545 U.S. at 756. Particular due process rights must be established

3 on the basis of entitlement to a property or liberty interest, the risks of loss associated

4 with deprivation of that interest, and the competing interests of the government in not

5 providing that interest. Landon v. Plasencia, 459 U.S. 21, 34 (1982) (quoting Mathews v.

6 Eldridge, 424 U.S. 319, 334-335 (1976)). The Court may view DACA recipients’

7 circumstance as unfortunate, but neither the Constitution nor Congress provides an

8 individual in unlawful status a protected interest in living or working in the United States,

9 or in discretionary relief from removal. Cf. Hoffman Plastic Compounds, Inc. v. NLRB,

10 535 U.S. 137, 151-52 (2002) (holding, as a general matter, an individual who is not

11 authorized to work in the United States does not have a right to work); see also Garcia v.

12 Holder, No., 07-60271, 320 F. App’x 288, 290 (9th Cir. April 9, 2009).

13

Nor can Plaintiffs claim an entitlement in this case that creates a Constitutional

14 interest. “To have a property interest in a benefit, a person clearly must have more than an

15 abstract need or desire for it. He must have more than a unilateral expectation of it. He

16 must, instead, have a legitimate claim of entitlement to it.” Blantz v. Cal. Dep’t of Corr. &

17 Rehab., 727 F.3d 917, 922 (9th Cir. 2013) (citing Bd. of Regents of State Colleges v. Roth,

18 408 U.S. 564, 577 (1972)); see also Mendez-Garcia v. Lynch, 840 F.3d 655, 665 (9th Cir.

19 2016) (underscoring that aliens cannot claim a cognizable due process interest in

20 discretionary immigration relief or benefits). The Supreme Court, however, has held that

21 even a practice of “generously” granting a “wholly and expressly discretionary state

22 privilege” does not create a legal entitlement to that benefit. See Regents, 2018 WL

23 339144 at *4 (citing Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1020-21 (9th Cir.

24 2011)) (“A person’s belief of entitlement to a government benefit, no matter how

25 sincerely or reasonably held, does not create a property right if that belief is not mutually

26 held by the government.”).

27

Plaintiffs possess no lawful status, thus no protected interest in living or working in

28 the United States. DACA policy has never purported to alter that, and nor may this Court.

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1 Landon, 459 U.S. at 35 (“The role of the judiciary . . . does not extend to imposing

2 procedures that merely displace congressional choices of policy.”). Because DACA is

3 discretionary, it does not give rise to a protected right to work in the United States. See

4 Dkt. No. 16-28 at 2 (“This [DACA grant] does not constitute employment authorization,

5 nor may it be used in place of an [EAD].”). Nor does DACA confer lawful status. See

6 Dkt. No. 16-13 (“This memorandum confers no substantive right, immigration status or

7 pathway to citizenship.”). DACA is not protection from removal. See Dkt. No. 16-23

8 (“DACA is an exercise of prosecutorial discretion and deferred action may be terminated

9 at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion.”).

10

Plaintiffs’ claims regarding an interest in employment authorization and other

11 public benefits like driver’s licenses are particularly misplaced, because there is no right

12 to the receipt of either, and no judicial review of the decision to terminate an EAD once

13 granted. See Dkt. No. 32 at ¶ 35; Pilapil v. INS, 424 F.2d 6, 11 (10th Cir. 1970); see also

14 Perales, 903 F.2d at 1047-48 (“[T]here is nothing in the [INA] expressly providing for

15 the grant of employment authorization . . . to aliens who are the beneficiaries of approved

16 petitions”) (vacating the challenged portion of the injunction); Gupta, 2011 WL

17 13174873 at *1 (finding a challenge to the termination of EAD upon initiation of removal

18 proceedings was an impermissible challenge to the discretionary decision to initiate

19 removal proceedings). In the condtext of Plaintiffs’ claims here that they have a right to

20 DACA and therefore EADs, the Ninth Circuit has refused the same proposition. See Neri,

21 229 F. App'x at 508 (an individual “has no substantive due process right to discretionary

22 relief from removal or deportation.”); Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir.

23 2003) (finding no liberty interest in discretionary forms of relief from deportation).

24

In fact, every individual with employment authorization based on 8 C.F.R.

25 § 274a.12(c), including those with deferred action, is subject to automatic termination of

26 their EAD upon institution of removal proceedings in an immigration court. See 8 C.F.R.

27 § 274a.14(a)(1)(ii); 8 C.F.R. §§ 1003.13, 1003.14. No notice or opportunity to respond is

28 afforded to any deferred action recipient in this posture, and Plaintiffs point to nothing

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1 that supports a contrary finding. Cf. Gupta, 2011 WL 13174873 at *1 (denying challenge

2 to automatic EAD termination). Because EAD termination is not tied to operation of the

3 DACA SOP, Plaintiffs’ claims of harm regarding EAD loss must fail. Further, the DACA

4 SOP instructs USCIS to defer to existing law and regulations where there is any conflict

5 with the SOP. See Dkt. No. 16-24 at 17, DACA SOP Chapter One (“Any provision of the

6 [INA] or 8 C.F.R. found . . . to be in conflict with this SOP will take precedence over the

7 SOP.”). Thus, it would be inappropriate for the Court to find the SOP requires a process

8 before termination of a DACA-based EAD due to NTA issuance by CBP or ICE, which is

9 contrary to the plain language of the duly promulgated regulation.

10

Furthermore, under DHS regulations, an individual with deferred action who has

11 lost his EAD due to having been placed into removal proceedings may reapply for an

12 EAD if he or she becomes eligible again under a category of subsection 274a.12(c). Only

13 if employment authorization is granted again would the individual then be eligible to

14 apply to their state authority for a driver’s license or Social Security card. ADAC, 757

15 F.3d at 1061. Thus, the peripheral benefits Plaintiffs cite to illustrate the urgency of the

16 relief they seek are two steps removed from the relief this Court can grant.10

17

For these reasons, and because Plaintiffs by definition concede removability and

18 challenge only termination of a discretionary temporary grant of deferred action from

19 removal, “the Court cannot conclude that the government has deprived [plaintiffs] of

20 [their] liberty interest in remaining in the United States without due process of law.”

21 Mendez de Leon v. Reno, No. C 97-02482 CW, 1998 WL 289321, at *7 (N.D. Cal. Mar.

22 26, 1998).

23

B. Plaintiff’s Fail to State a Claim Under the APA.

24

Even if this Court finds that it would have jurisdiction over any of Plaintiffs’

25 claims, the Court should still dismiss Plaintiffs’ amended complaint because Plaintiffs’

26 fail to state a claim upon which relief can be granted. Plaintiffs cannot establish either an

27

28

10 None of the provisions that Plaintiffs cite at 8 U.S.C. §§ 1611(b)(2)–(3) and 1621(d) depends directly on the receipt of DACA. Dkt. No. 32 at ¶ 35.

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1 administrative or a constitutional right to receive any process regarding the termination of

2 DACA because deferred action is necessarily an exercise of the Executive’s prosecutorial

3 discretion. See Chaney, 470 U.S. at 831; Regents, 2018 WL 339144 at *18 (“Congress has

4 been free to constrain DHS’s discretion with respect to granting deferred action, but it has yet to

5 do so.”). In fact, DHS acted based on that discretion by issuing NTAs based on Plaintiffs’

6 criminal activity. Thus, the limited grace a temporary grant of DACA serves to recognize

7 was overridden by the Government’s determination that Plaintiffs had become

8 enforcement priorities. See Dkt. No. 53-1 at 4-7, 17-18. Defendants respectfully disagree with

9 the Court’s prior order granting a preliminary injunction to Plaintiff Arreola, see Dkt. No. 31,

10 and endeavor to address that order here. Id. at 9, 11, 12.

11

i. DACA termination by NTA is provided for in the DACA SOP and

12

policy documents, and in DHS policy and regulations.

There is no support in the Napolitano Memo for the proposition that DACA policy 13

limits ICE or CBP’s authority to issue NTAs that will have the effect of terminating 14

grants of deferred action, like DACA. See Dkt. No. 16-13. Contrary to the Court’s 15

previous finding, the Napolitano memo does not limit this authority only for the period 16

“as DACA was developed.” Dkt. No. 31 at 12. 17

Nor does DHS guidance prevent immigration enforcement agencies from 18

terminating DACA by issuing an NTA. The authority to issue an NTA is vested with all 19

DHS immigration officers. See 8 C.F.R. § 239.1(a). However, DHS divides NTA issuance 20

responsibility between USCIS in its administrative capacity, and ICE and CBP in their 21

law enforcement capacities. See 2011 NTA Memo, Dkt. No. 16-25. USCIS is required to 22

refer all cases involving criminal conduct, not limited to Egregious Public Safety 23

(“EPS”), to ICE. Id. at 5. USCIS’s decision to issue an NTA on its own under such 24

circumstances must follow ICE’s lead. Id. at 5 & 6 (“USCIS will not issue an NTA in 25

these cases if ICE declines to issue an NTA.”) (emphasis added); id. at 2 (“USCIS must 26

ensure that its issuance of NTAs fits within and supports the Government’s overall 27
removal priorities . . . .”). When a case is referred by USCIS, ICE may issue an NTA that 28

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1 automatically terminates DACA, with no additional notice or opportunity to respond. See

2 Dkt. No. 16-24 at 39.

3

The effect of NTA issuance on DACA termination is unremarkable, and is

4 recognized elsewhere in the DACA SOP. See Dkt. No. 53-1 at 91-92 (providing that

5 USCIS will deny, without advance notice and an opportunity to respond, a DACA request

6 from an individual in immigration detention who ICE intends to release but who ICE

7 indicates is an enforcement priority). While the SOP instructs USCIS to “discuss” a

8 disagreement it may have with ICE’s finding, id., there is no provision permitting USCIS

9 to reverse ICE’s decision. See Vasquez v. Aviles, 639 F. App’x 898, 901 (3d Cir. 2016)

10 (finding no jurisdiction based on Section 1252(g) to review an ICE officer’s unilateral

11 denial of a DACA request to a detained individual because “that decision involves the 12 exercise of prosecutorial discretion not to grant a deferred action.”).11

13

Indeed, where DHS has worked to ensure that ICE’s determination that someone is

14 an enforcement priority would not be conflicted by a later discretionary exercise by

15 USCIS to grant deferred action in the form of DACA, and where the Napolitano Memo

16 specifically preserves the NTA authority of ICE and CBP upon consideration of the

17 DACA guidelines, it takes a particularly strained reading of the Napolitano Memo and

18 DACA SOP to find that ICE and CBP cannot issue NTAs that have the effect of

19 terminating DACA. In fact, the Court’s and Plaintiffs’ interpretation of Defendants’

20 guidance creates an absurd scenario in which ICE would institute new administrative

21 removal proceedings against an individual while that individual seeks additional separate

22 legal process regarding the termination of their DACA. That scenario also strips the

23

24 11 The Court’s prior order improperly concludes that the SOP termination chapter requires USCIS to

25

adjudicate a termination after ICE has issued an NTA for EPS. Dkt. No. 31 at 9. While the NTA Memo states “ICE’s issuance of an NTA allows USCIS to proceed with adjudication . . . ,” Dkt. No. 16-25 at 5

26 (emphasis added), the guidance is optional and the DACA SOP explicitly diverges from it in important
ways. The DACA SOP termination chapter instructs USCIS to follow the NTA Memo, but also states that

27 ICE’s issuance of an NTA on an EPS referral from USCIS “will result in the termination of DACA.” Dkt.

28 No. 16-24 at 38; see also id. at 34 (“USCIS “will deny the DACA request.”) (emphasis added).

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1 immigration enforcement agencies of their most critical authority. Regents, 2018 WL

2 339144, at *1 (“One of the key enforcement tools under the INA is removal, i.e.,

3 deportation. In turn, ‘[a] principal feature of the removal system is the broad discretion

4 exercised by immigration officials.’”(citing Arizona v. United States, 567 U.S. 387, 396 5 (2012))).12

6

DHS’s discretion to initiate removal proceedings that have the effect of terminating

7 DACA is not impeded by DACA policy or immigration law in any way, and so this Court

8 should dismiss Plaintiffs’ amended complaint alleging otherwise.

9

ii. There is no requirement that an NTA charge more than unlawful

10

presence, nor is it arbitrary to rely on the decision to issue an NTA.

Plaintiffs argue, and this Court agreed, that USCIS impermissibly relies on only 11

unlawful presence as the charge listed in an NTA as the sole basis to terminate DACA. 12

Dkt. No. 31 at 6, 10: Dkt. No. 32 at ¶¶ 159, 165. However, that conclusion relies on a 13

starkly oversimplified consideration of the NTA decision process. See, e.g., Dkt. No. 53-1 14

at 9-15, 20-24 (summaries of the information considered in Plaintiffs’ NTA issuances). 15

There is no basis in the SOP or other DACA-related guidance for the Court to find that an 16

NTA charging removability on the basis of presence without admission is not sufficient to 17

terminate DACA. Nor can Plaintiffs establish that an individual in receipt of an NTA 18

based on unlawful presence cannot also have been found to be an enforcement priority. 19

First, the charges listed in an NTA are not dispositive of the reasons for issuing an 20
NTA.13 DHS is under no obligation to charge an individual with anything more than 21

22
12 The fact that USCIS may grant DACA to nondetained aliens in removal proceedings or with final orders
23 of removal does not change this analysis. Just as USCIS has the discretion to grant DACA to those

24

requestors based on the totality of circumstances, nothing in DHS policy or guidance prohibits ICE, CBP, or USCIS from similarly exercising discretion to terminate DACA on a case by case basis as an exercise

25 of agency discretion.

26 13 This proposition is wholly consistent with the denial portion of the DACA SOP, which provides that,
while to be considered, the charges filed in an NTA are not determinative to the ultimate discretion

27 decision regarding DACA. Dkt. No. 53-1 at 65 (“Do not rely solely on the grounds listed in the charging

28

document [. . . ;] review all derogatory information in its totality and then make an informed assessment regarding the appropriate exercise of prosecutorial discretion for DACA.”).

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1 unlawful presence. Addy v. Sessions, 696 F. App’x 801, 804 (9th Cir. 2017) (rejecting

2 argument that petitioner should have been charged with removability under a different

3 statute, because “[t]he Attorney General has prosecutorial discretion over the initiation of

4 removal proceedings, and that discretion is not reviewable.”). Rather, the decision to

5 issue an NTA is based on the immigration officer’s experience and information, and –

6 most importantly – his or her discretion. See Hernandez v. Gonzales, 221 F. App’x 588,

7 589–90 (9th Cir. 2007) (“Absent evidence to the contrary, we presume that the

8 immigration officers properly discharged their duties when issuing Hernandez’s NTA.”).

9 Notably, an NTA also need not include charges used to support the denial of relief from

10 removal. Salviejo–Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006) (denying

11 due process claim where the BIA found petitioner ineligible for cancellation of removal

12 based on a conviction not alleged in the NTA).

13

Here, the discretion exercised in issuing an NTA that has the effect of terminating

14 DACA is nothing like the arbitrary process this Court cited to in Judulang v. Holder, 565

15 U.S. 42 (2011). The Judulang Court rejected the BIA process of interpreting and

16 comparing the removability charges on an individual’s NTA against a list of charges

17 under 8 U.S.C. § 1182 that composed grounds for exclusion of an arriving alien, to

18 determine whether the individual facing removal was eligible for a form of discretionary

19 relief from removal originally reserved for arriving aliens. 565 U.S. at 489-90. The Court

20 equated the process to flipping a coin, such that some violent criminals would be eligible

21 for relief while some lawful permanent residents (“LPR”) with lesser offenses would be

22 excluded. Id. at 487 (finding the process had “no connection to the goals of the

23 deportation process or the rational operation of the immigration laws.”). Here, DACA

24 termination does not hinge on how the NTA is selected, but rather whether it is selected.

25

Moreover, the facts here demonstrate that DHS’s decision to issue NTAs that have

26 the result of terminating DACA are not “happenstance,” Dkt. No. 31 at 10; but rather,

27 NTA issuance that results in the termination of DACA represents a valid and thoughtful

28 exercise of agency discretion. The facts here demonstrate that immigration enforcement

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1 officers: (1) were specifically aware of each Plaintiffs’ DACA, see Dkt. No. 53-1 at 9-15,

2 20-24; (2) did not rely solely on unlawful presence in decisions to initiate removal against

3 Plaintiffs. Id.; see also Dkt. No. 23-2 at 26; and (3) may issue NTAs after supervisory

4 review or consultation with agency counsel. See Dkt. No 53-1 at 6 ¶ 11.

5

CONCLUSION

6

In sum, Plaintiffs Arreola and Inland Empire have failed to establish standing to

7 raise the claims in their amended complaint, and all Plaintiffs have failed to establish

8 jurisdiction for this Court to consider their challenges to the NTA process, which 9 Congress expressly precluded through section 1252. Nor can Plaintiffs show that, in the 10 termination of their DACA grants they were entitled to any additional process either 11 through statute or the Constitution. For these reasons, the Court should dismiss Plaintiffs 12 Arreola and Inland Empire and dismiss this entire action for lack of jurisdiction.

13 DATED: February 14, 2018 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Respectfully Submitted,
CHAD A. READLER Acting Assistant Attorney General WILLIAM C. PEACHEY Director JEFFREY S. ROBINS Assistant Director
/s/ James J. Walker JAMES J. WALKER Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section Washington, D.C. 20044 Tel.: (202) 532-4468 Fax: (202) 305-7000 Email: james.walker3@usdoj.gov

28

Counsel for Defendants

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#39/40
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

Present: The Honorable Philip S. Gutierrez, United States District Judge

Wendy Hernandez Deputy Clerk

Not Reported Court Reporter

Attorneys Present for Plaintiff(s):

Attorneys Present for Defendant(s):

Not Present

Not Present

Proceedings (In Chambers): Order GRANTING Plaintiffs’ motion for class certification and GRANTING Plaintiffs’ motion for a classwide preliminary injunction

Before the Court are a motion for class certification and a motion for a classwide preliminary injunction, both filed by Plaintiffs José Eduardo Gil Robles, Ronan Carlos De Souza Moreira, and Jesús Alonso Arreola Robles (“Plaintiffs”). See Dkts. # 39 (“Cert. Mot.”), 40 (“PI Mot.”). Defendants Kirstjen Nielsen, James McCament, Mark J. Hazuda, Susan M. Curda, Thomas D. Homan, David Marin, and Kevin K. McAleenan (“Defendants”) oppose the motions, see Dkts. # 53 (“Cert. Opp.”), 54 (“PI Opp.”), and Plaintiffs timely replied, see Dkts. # 57 (“Cert. Reply”), 58 (“PI Reply”). The Court held a hearing in these matters on February 26, 2018. Having considered the moving papers and oral arguments, the Court GRANTS Plaintiffs’ motion for class certification and GRANTS Plaintiffs’ motion for a classwide preliminary injunction.
I. Background
This action stems from the termination of Plaintiffs’ Deferred Action for Childhood Arrivals (“DACA”). They allege that “their permission to live in the United States and employment authorization [have been] arbitrarily stripped away . . . since President Trump took office, without any notice, reasoned explanation, or opportunity to be heard.” Cert. Mot. 1:5–8.
A. The DACA Program
The Court previously outlined the history and features of the DACA program in its order granting Plaintiff Arreola’s motion for a preliminary injunction. See Dkt. # 31 (“Arreola Order”), at 1–2.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

Deferred action is a longstanding form of administrative action by which the Executive Branch decides, for humanitarian or other reasons, to refrain from seeking a noncitizen’s removal and to authorize his or her continued presence in the United States. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 484 (1999). On June 15, 2012, the Department of Homeland Security (“DHS”) announced DACA, a deferred action program for young immigrants who came to the United States as children and are present in the United States without formal immigration status, in a memorandum issued by Secretary Janet Napolitano (“the Napolitano Memo”). See Declaration of Dae Keun Kwon, Dkt. # 16-4 (“Kwon Decl.”), ¶ 10, Ex. 9 (“Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”) at 2 (“Napolitano Memo”). Although DHS announced on September 5, 2017 that it was “winding down” the DACA program, officials confirmed that the same program rules would continue to apply until its end. Cert. Mot. 5:17–20.

Under DACA, young immigrants who entered the United States as children and meet specified educational and residency requirements, and who pass extensive criminal background checks, are eligible to receive deferred action. See Napolitano Memo at 1–2. A necessary predicate for DACA eligibility is that an individual must lack a lawful immigration status. See Kwon Decl. ¶ 21, Ex. 20 (“National Standard Operating Procedures (SOP): Deferred Action for Childhood Arrivals (DACA)”) at 44 (“DACA SOP”). In addition, DACA recipients cannot have been convicted of a felony, a significant misdemeanor, or three or more other misdemeanors. See Napolitano Memo at 1. Deferred action under DACA is granted to qualifying individuals for a period of two years, subject to renewal. See id. at 2–3.

DHS’s DACA Standard Operating Procedures (“the DACA SOP”) set forth the procedures that U.S. Citizenship and Immigration Services (“USCIS”) must follow in both granting and terminating DACA. See DACA SOP at 16; see also Colotl v. Kelly, 261 F. Supp. 3d 1328, 1334 (N.D. Ga. 2017) (“The SOP states that it is applicable to all personnel performing adjudicative functions and the procedures to be followed are not discretionary.”).

B. DACA Revocation

Ron Thomas, an official within USCIS, previously attested that the agency “automatically terminates DACA” upon the issuance of a Notice to Appear (“NTA”)1 in immigration court, a

1 An NTA is issued as a predicate step to commencing removal proceedings. See 8 U.S.C.

§ 1229(a) (“In removal proceedings under section 1229a of this title, written notice (in this

section referred to as a ‘notice to appear’) shall be given in person to the alien . . .”). In general,

“[a]liens may be removed if they were inadmissible at the time of entry, have been convicted of

certain crimes, or meet other criteria set by federal law.” Arizona v. United States, 567 U.S. 387,

396 (2012); see also 8 U.S.C. §§ 1182(a), 1227(a).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

practice that has been in place since 2013. See Declaration of Ron Thomas, Dkt. # 23-2 (“Thomas Decl.”), ¶ 4. He also illustrated the scope of automatic DACA terminations, noting that “a more fulsome review of all automatic terminations of DACA would . . . involve a manual review of hundreds of cases.” Id. ¶ 5.

Plaintiffs argue that automatic terminations following the issuance of an NTA are “unlawful,” noting two “systemic policies and practices.” Cert. Mot. 6:4–5. First, Plaintiffs contend that the “practice of revoking DACA without providing notice, a reasoned explanation, an opportunity to be heard prior to revocation, or a process for reinstatement where the revocation is in error” violates the DACA SOP, which “do not allow for termination without notice in the vast majority of cases, including in Plaintiffs’ and the proposed class members.” Id. 6:6–14. Second, Plaintiffs note that the practice of revoking DACA automatically upon the issuance of an NTA is fundamentally unsound because all DACA recipients necessarily could be charged with unlawful presence. See id. 6:15–25.

C. Plaintiffs’ Histories

i. Plaintiff José Eduardo Gil Robles

Plaintiff Gil has lived in the United States since 1998 when, at the age of five, he entered the country without inspection at a border crossing. See Declaration of José Eduardo Gil Robles, Dkt. # 39-4 (“Gil Decl.”), ¶ 1. He eventually settled in Minnesota and graduated from high school in the Minneapolis area, and has five younger siblings, all of whom were born in the United States and are U.S. citizens. Id. ¶¶ 2–3. Gil first applied for DACA in 2015; it was granted in August of that year and was valid until August 2017. Id. ¶¶ 8–9. In April 2017, he applied for DACA renewal, which was approved and valid until August 13, 2019. Id. ¶ 10. Using the work authorization that accompanies DACA, Gil first worked as a baker and then began employment with a logistics company. Id. ¶ 11. He also obtained a Social Security Number and a driver’s license. Id. ¶ 13.

The parties do not dispute that Gil was arrested in September 2017; however, they characterize the nature of that arrest very differently. Plaintiffs assert that Gil was “charged with a misdemeanor for driving on a cancelled license, which is still pending.” Cert. Mot. 7:4–5; Gil Decl. ¶ 14. To supplement this assertion, Plaintiffs have provided the declaration of Gil’s attorney, as well as emails from an Assistant Minneapolis City Attorney indicating that Gil was charged “with the misdemeanor offense of Driving After Cancellation”—not “the gross misdemeanor offense of Driving After Cancellation” or “a weapons violation”—and a copy of the complaint issued after his arrest. See Declaration of Maria Teresa Trafton, Dkt. # 57-5 (“Trafton Decl.”), ¶¶ 1–3, Exs. A, B. Defendants counter that Gil was “arrested and charged

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

with two felonies, including First Degree Assault and transferring a firearm without a background check to a prohibited person.” Cert. Opp. 2:23–24; see also Declaration of Jeremy Anderson, Dkt. # 53-1 (“Anderson Decl.”), ¶ 6.2 Plaintiffs note that “a minor traffic offense, such as driving without a license,” is not, according to a USCIS list of frequently asked questions relating to DACA, “considered a misdemeanor for purposes of this process.” Kwon Decl. ¶ 20, Ex. 19 at 20. Defendants, however, assert that the more severe offenses with which they claim Gil was charged made him an “enforcement priority,” which prompted his DACA termination. Cert. Opp. 2:25–27; Anderson Decl. ¶ 10.

In any event, Gil was released on bond after the immigration judge determined that he was not a danger to the community. Gil Decl. ¶¶ 19–20. However, while in detention, Gil received a notice from USCIS terminating his renewed DACA based on the issuance of an NTA by Immigration and Customs Enforcement (“ICE”). Gil Decl. ¶¶ 22–23, 30, Ex. B. The notice reported that his DACA and employment authorization “terminated automatically as of the date [his] NTA was issued.” Id. ¶ 30, Ex. B. No additional notice or explanation was provided, and he was not provided a chance to respond. Id. ¶ 23.

ii. Plaintiff Ronan Carlos De Souza Moreira

Plaintiff Moreira was born in Brazil and entered the United States in 2006, along with his two brothers and mother, on a visitor’s visa. See Declaration of Ronan Carlos De Souza Moreira, Dkt. # 39-3 (“Moreira Decl.”), ¶ 1. His mother is a Legal Permanent Resident and his older brother is a U.S. citizen. Id. ¶ 5. Moreira attended public schools in Marietta, Georgia and graduated from high school in 2012. Id. ¶ 2. He first applied for DACA in 2013, and applied for and received renewals in 2015 and 2017. Id. ¶ 7. In August 2014, after leaving college due to his finances and working several temporary jobs, Moreira began his employment at a flooring company, eventually becoming a manager. Id. ¶¶ 4, 9.

Although both parties contend that Moreira was arrested in November 2017, they again dispute the nature of the offense with which he was charged. Plaintiffs claim that he was “charged with a misdemeanor for possession of an altered identification document, but has not been convicted.” Cert. Mot. 8:1–2; Moreira Decl. ¶¶ 12–14. Defendants contend that this assertion is “incorrect[],” and that instead Moreira “was arrested for Forgery in the First Degree,

2 Specifically, Defendants claim that Gil “and his companions were engaged in felonious and

dangerous behavior, including shooting at people with a BB gun from a car.” Anderson Decl.

¶ 7. Gil conceded that “one of the passengers in the car when [he] was pulled over had a toy

pellet gun and had supposedly shot it from the car window,” but at the time of his bond hearing,

his lawyer “explained to the judge that the pellet gun was a toy, not a firearm, and that it was not

[his],” and that he “did not touch the pellet gun or shoot it.” Gil Decl. ¶ 18.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

a felony.” Cert. Opp. 3:1–2, 3 n. 1; see also Declaration of Derrick A. Eleazer, Dkt. # 53-1 (“Eleazer Decl.”), ¶ 3. Plaintiffs counter that although Moreira “was initially arrested on suspicion of forgery, he was never charged with that crime,” and provide the criminal accusation filed against Moreira that supports this contention. Cert. Reply 4:9–12; see also Declaration of David Hausman, Dkt. # 57-3 (“Hausman Decl.”), ¶ 2, Ex. A.

As with Gil, Defendants assert that “on the basis of [these] criminal activities . . . [Moreira] had become an enforcement priority,” and so ICE issued an NTA. Eleazer Decl. ¶ 5. Also like Gil, although Moreira was released on bond, he received a notice from USCIS terminating his DACA due to the NTA, with no additional explanation and without being given an opportunity to respond. Moreira Decl. ¶¶ 16, 18–19, 26, Ex. B.

iii. Plaintiff Jesús Alonso Arreola Robles

Plaintiff Arreola’s background was recounted in the Court’s order granting his motion for a preliminary injunction. See Arreola Order at 2–3. His experience resembles those of Gil and Moreira in many of the relevant particulars.

iv. Putative Class Members

Plaintiffs assert that their experiences “are representative of DACA terminations nationally,” and that their counsel are aware “of at least 17 individuals around the country who, in the last ten months alone, have had their DACA and work authorization terminated without notice, a reasoned explanation, or an opportunity to respond, even though they continue to be eligible for DACA.” Cert. Mot. 8:12–18; see also Declaration of Katrina L. Eiland, Dkt. # 3913 (“Eiland Decl.”), ¶¶ 2–14.

Furthermore, Plaintiffs suggest that, “[g]iven that there are currently nearly 700,000 DACA recipients across the country, there are likely at least dozens—if not many more—in the same situation whose stories have not reached Plaintiffs’ counsel.” Cert. Mot. 8:18–21. They point to news stories suggesting that federal immigration authorities are applying increased scrutiny to DACA recipients, “presumably looking for a reason to hold them and revoke their DACA status.” Id. 9:3–9; see also Eiland Decl. ¶¶ 21, 23, Exs. 6, 8. They also note a memorandum issued by former DHS Secretary John Kelly (“the Kelly Memo”), which read that “Department personnel should prioritize removable aliens” who have only been “charged with,” not necessarily convicted of, “any criminal offense that has not been resolved.” Id. ¶ 18, Ex. 3 at 2. Although DACA recipients are expressly exempt from the Kelly Memo’s expanded priorities, see Colotl, 261 F. Supp. 3d at 1343 (“[T]he Kelly Memo, by its own terms, has no application to

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CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

the DACA program.”), Plaintiffs claim that USCIS has nevertheless targeted individuals who remain eligible for DACA, in violation of the DACA SOP. Cert. Mot. 10:7–10.

Defendants argue that the relevant details of at least three of the identified class members are distinct from Plaintiffs’. Jessica Colotl, for instance, is mentioned by Plaintiffs as a potential class member. See Eiland Decl. ¶ 7. Defendants note that she “is not subject to DACA termination” because, following the issuance of a preliminary injunction in a separate action, USCIS reinstated her previous DACA grant, which subsequently expired. USCIS denied Colotl’s renewal request “after providing her with notice of its intent to do so, and an opportunity to respond.” Cert. Opp. 3:12–17. Felipe Abonza Lopez, also cited by Plaintiffs, see Eiland Decl. ¶ 11, “had his DACA terminated automatically through the issuance of an NTA after [Customs and Border Protection (“CBP”)] encountered him engaged in alien smuggling.” Cert. Opp. 3:18–22.3 Lastly, Daniel Ramirez Medina, another putative class member, see Eiland Decl. ¶ 13, “had his DACA terminated automatically after DHS issued him an NTA based on statements he made indicating gang affiliation.” Cert. Opp. 4:1–6; see also Declaration of Michael A. Melendez, Dkt. # 53-1 (“Melendez Decl.”), ¶¶ 4–5.4

D. Procedural History

Plaintiffs Inland Empire – Immigrant Youth Collective and Arreola originally filed their class action complaint on October 5, 2017. See Dkt. # 1. The following month, on November 20, 2017, the Court granted Arreola’s motion for a preliminary injunction, enjoining USCIS’s decision to terminate his DACA. See Arreola Order at 15–16.

Plaintiffs now move to certify a class under Federal Rule of Civil Procedure 23(b)(2), consisting of

[a]ll recipients of Deferred Action for Childhood Arrivals (“DACA”) who, after January 19, 2017, have had or will have their DACA grant and employment authorization revoked without notice or an opportunity to respond, even though they have not been convicted of a disqualifying criminal offense.5

3 Plaintiffs counter that “like Mr. Arreola, Mr. Abonza Lopez was not charged with any crime,

and USCIS terminated his DACA based on the issuance of an NTA charging him with unlawful

presence.” Cert. Reply 4:16–18.

4 Plaintiffs contend that “[p]roposed class member Daniel Ramirez Medina likewise was never

charged with any crime, and USCIS terminated his DACA based on an NTA charging him with

unlawful presence.” Cert. Reply 4:19–24.

5 In their first amended complaint, Plaintiffs also propose an “Enforcement Priority” Class. See

Dkt. # 32, ¶ 169. However, that proposed class is not at issue in the pending motion. See Cert.

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Cert. Mot. 3:6–10. They also ask this Court “to grant a classwide preliminary injunction; vacate and enjoin Defendants’ unlawful revocation of Plaintiff[] Gil’s, Plaintiff Moreira’s, and proposed class members’ DACA and work permits; and enjoin Defendants from revoking Plaintiffs’ and proposed class members’ DACA and work permits pursuant to their unlawful policies and practices in the future.” PI Mot. 2:14–18.

II. Legal Standard

A. Motion for Class Certification

“The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (citing Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). “In order to justify a departure from that rule, a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Dukes, 564 U.S. at 348–49 (internal quotation marks omitted).

In a motion for class certification, the burden is on the plaintiffs to make a prima facie showing that class certification is appropriate, see In re N. Dist. of Cal. Dalkon Shield IUD Liab. Litig., 693 F.2d 847, 854 (9th Cir. 1982), and the Court must conduct a “rigorous analysis” to determine the merit of plaintiffs’ arguments. General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982). Plaintiffs must be prepared to “prove” that there are “in fact” sufficiently numerous parties or that common questions exist, and frequently this will require some “overlap with the merits of the plaintiff’s underlying claim.” Dukes, 564 U.S. at 350 (emphasis in original). Rule 23 does not, however, grant the court license to “engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 465–66 (2013). “Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. at 466 (citing Dukes, 564 U.S. at 351 n. 6).

Federal Rule of Civil Procedure 23 governs the maintenance of class actions in federal court. Rule 23(a) ensures that the named plaintiffs are “appropriate representatives of the class whose claims they wish to litigate.” Dukes, 564 U.S. at 349. Plaintiffs must satisfy all of Rule 23(a)’s four requirements—numerosity, commonality, typicality, and adequacy—and at least one of the requirements of Rule 23(b). See Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979–80 (9th Cir. 2011).

B. Motion for Preliminary Injunction

Mot. 3 n. 2.
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A preliminary injunction is an “extraordinary and drastic remedy.” Munaf v. Geren, 553 U.S. 674, 689 (2008). A party seeking a preliminary injunction must make a “clear showing” of: (1) a likelihood of success on the merits, (2) a likelihood of irreparable injury to the plaintiff if injunctive relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) an advancement of the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20, 22 (2008).
III. Discussion
A. Motion for Class Certification
Plaintiffs move to certify a class under Rule 23(b)(2), which can be maintained if the Rule 23(a) factors are satisfied and “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
As a threshold matter, in their opposition to class certification, Defendants devote a considerable amount of ink to describing, among other things, the Immigration and Nationality Act (“INA”) and the powers vested to DHS regarding immigration policy; deferred action and prosecutorial discretion; and USCIS’s authority to grant DACA and CBP’s and ICE’s abilities to issue NTAs. See Cert. Opp. 7:17–13:7. Some of this information is useful at the class certification stage; specifically, when it is “relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen, 568 U.S. at 466. However, beyond that limited function, these arguments will not be used for the purpose of assessing the merits of Plaintiffs’ claims generally, because “[w]hether class members could actually prevail on the merits of their claims is not a proper inquiry in determining” preliminary questions relating to class certification. Stockwell v. City & Cty. of S.F., 749 F.3d 1107, 1112 (9th Cir. 2014) (internal quotation marks omitted).6
The Court will first consider the Rule 23(a) factors before examining whether Rule 23(b)(2) is satisfied.
i. Rule 23(a)

6 Defendants vigorously contest the Court’s jurisdiction over this action. See Cert. Opp. 4:8–19;

PI Opp. 6:6–13:17. Because the Court concludes that it has jurisdiction, see Part III.B.i.a below,

it will proceed with consideration of class certification.

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Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

The Court will analyze each of Rule 23(a)’s four requirements—numerosity, commonality, typicality, and adequacy—in turn.

a. Numerosity

Rule 23(a)(1) requires that “the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). There is no fixed number which satisfies the numerosity requirement; it “requires examination of the specific facts of each case and imposes no absolute limitations.” General Tel. Co. of Nw., Inc. v. Equal Emp’t Opportunity Comm’n, 446 U.S. 318, 330 (1980). In general, however, “courts find the numerosity requirement satisfied when a class includes at least 40 members.” Rannis v. Recchia, 380 F. App’x 646, 651 (9th Cir. 2010). When, as here, plaintiffs seek injunctive or declaratory relief, “the numerosity requirement is relaxed and plaintiffs may rely on the reasonable inference arising from plaintiffs’ other evidence that the number of unknown and future members of [the proposed class] is sufficient to make joinder impracticable.” Sueoka v. United States, 101 F. App’x 649, 653 (9th Cir. 2004); see also Arnott v. U.S. Citizenship & Immigration Servs., 290 F.R.D. 579, 586 (C.D. Cal. 2012) (“[W]ith . . . additional future members likely to be added, Plaintiffs have shown sufficient numerosity to satisfy the requirements of Rule 23(a)(1).”).

Here, “Plaintiffs’ counsel is aware of at least 17 DACA recipients who, in the last ten months alone, have had their DACA terminated without notice or process, despite remaining eligible for the program,” and estimates that, given the increased rate of DACA revocations and increased scrutiny on the part of federal immigration authorities, there are likely “at least dozens—if not many more—who have already had their DACA terminated.” Cert. Mot. 11:25–12:5. Since filing their motion, Plaintiffs “have learned of five additional individuals who have had their DACA terminated without process despite remaining eligible, bringing the total number of known affected DACA recipients to 22.” Cert. Reply 9 n. 8; see also Second Declaration of Katrina L. Eiland, Dkt. # 57-1 (“Second Eiland Decl.”), ¶¶ 3–8.

1. Identified Class Members

To begin, Defendants challenge whether the identified DACA recipients can be properly considered as members of the proposed class. See Cert. Opp. 17:20–18:1. As discussed above, Defendants suggest that Plaintiffs Gil and Moreira were charged with felonies and so have been “convicted of a disqualifying criminal offense,” which thus puts them outside the definition of the proposed class. However, the evidence provided by Plaintiffs in the form of arrest records and declarations creates at least the plausible suggestion that Defendants are “attempt[ing] to rely on improper post hoc rationalizations.” Cert. Reply 4:25–26. The same inference applies to proposed class members Abonza Lopez and Medina, both of whom, Plaintiffs maintain, have not

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committed disqualifying criminal offenses and are thus proper class members. Consequently, the Court cannot assume, as Defendants do, that “at least seven of the 17 individual Plaintiffs . . . are not properly considered members of the class Plaintiffs seek to certify.” Cert. Opp. 17:20–22.

Defendants also challenge whether even proposed class members who have not committed disqualifying offenses can properly be included in the class. As they explain, “Plaintiffs indicate only that they are aware that these individuals lost DACA despite having no ‘disqualifying criminal convictions,’ which . . . is insufficient to determine whether each individual received process or whether the DACA SOP provides for process prior to termination in their cases.” Id. 18:2–6. As a result, Defendants claim that “each claim would have to be assessed individually.” Id. 18:7–8. The Court disagrees.

Whether the DACA SOP permit automatic revocation in cases where a DACA recipient has committed no disqualifying offense is essentially a merits question, and not one that ought to be fully resolved at this time. However, it can nevertheless be considered because numerosity “overlap[s] with the merits of the plaintiff’s underlying claim.” Dukes, 564 U.S. at 350.

Defendants assert that the relevant guidelines permit automatic termination of DACA whenever immigration authorities issue an NTA. See Cert. Opp. 11:19–12:6 (“[P]ursuant to the DACA SOP and Appendix I, and in conjunction with the NTA Memo, when USCIS discovers certain conduct that suggests DACA should be terminated, USCIS should refer such conduct to ICE, who may issue an NTA that automatically terminates DACA, with no additional notice or opportunity to respond.”). The Court, however, has previously rejected this argument, noting that “Defendants point to no provision in the DACA SOPs that permits automatic termination as a result of an NTA based on unauthorized presence.” Arreola Order at 11. Indeed, the Court determined that “[t]here appears to be only one narrow circumstance in which automatic termination based on an NTA is appropriate—when an NTA is issued after USCIS determines that a disqualifying offense or public safety concern is deemed to be ‘Egregious Public Safety’ [“EPS”].” Id. (citing DACA SOP at 137).7 Otherwise, “‘unless there are criminal, national security, or public safety concerns,’ the DACA termination guidelines prescribe the issuance of a Notice of Intent to Terminate and require that ‘[t]he individual should be allowed 33 days to file a brief or statement contesting the grounds cited.’” Arreola Order at 11 (quoting DACA SOP at 137–38) (alteration in original); see also Gonzalez Torres v. U.S. Dep’t of Homeland Sec., No. 17cv1840 JM(NLS), 2017 WL 4340385, at *3 (S.D. Cal. Sept. 29, 2017) (“[E]xcept in EPS

7 An EPS case is defined by USCIS and ICE as a case “where information indicates [that an]

alien is under investigation for, has been arrested for (without disposition), or has been convicted

of” murder, rape, sexual abuse, firearms trafficking, human rights violations, or various other

serious offenses. See Kwon Decl. ¶ 22, Ex. 21 at 3–4.

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Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

cases, the DACA SOP requires notice and an ability to contest the [Notice of Termination] before DACA status may be terminated.”).

Similarly, Defendants argue that “DACA also terminates automatically if a DACA recipient travels outside the United States . . . without first receiving advance parole” or if “DHS deems a DACA recipient an enforcement priority or when USCIS finds that a person is an EPS concern but ICE declines to issue an NTA.” Cert. Opp. 15:4–9. While these assertions are both true to an extent—the “enforcement priority” exception also requires a “process of referring the case to multiple entities for various determinations prior to termination,” Colotl, 261 F. Supp. 3d at 1342—Defendants do not claim that any of the identified class members either left the country impermissibly or received proper process after being deemed enforcement priorities.

Defendants do not suggest, and there is no indication in the record, that either the named Plaintiffs or any of the proposed class members received an NTA on the basis of an EPS determination, because they left the country without following the proper procedure, or were deemed an enforcement priority and received the required determination process. Therefore, because Plaintiffs did not commit disqualifying criminal offenses, they were entitled to notice and an opportunity to respond, and so are properly members of the proposed class.

2. Potential Class Members

Even if all 22 of the identified class members are included, however, satisfaction of the numerosity requirement is not a foregone conclusion. As mentioned, the Ninth Circuit has noted that numerosity is “satisfied when a class includes at least 40 members,” Rannis, 380 F. App’x at 651, and smaller classes have been deemed insufficient. See, e.g., Harik v. California Teachers Ass’n, 326 F.3d 1042, 1051 (9th Cir. 2003) (rejecting classes of seven, nine, and ten members because “[t]he Supreme Court has held fifteen is too small”); Ikonen v. Hartz Mountain Corp., 122 F.R.D. 258, 262 (S.D. Cal. 1988) (“As a general rule, classes of 20 are too small, classes of 20–40 may or may not be big enough depending on the circumstances of each case, and classes of 40 or more are numerous enough.”). However, in addition to the 22 identified members, Plaintiffs have made a compelling case that the number is likely higher, see Cert. Mot. 11:28–12:5, and “courts have held that [w]here the exact size of the class is unknown but general knowledge and common sense indicate that it is large, the numerosity requirement is satisfied.” Cervantez v. Celestica Corp., 253 F.R.D. 562, 569 (C.D. Cal. 2008) (alteration in original and internal quotation marks omitted).

Plaintiffs also note that their “proposed class also includes individuals who will have their DACA terminated without notice or process, despite continuing to be eligible, if Defendants’ policies and practices are not enjoined.” Cert. Mot. 12:19–21 (emphasis in

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original). Considering that there are hundreds of thousands of DACA recipients across the country, and the admission that USCIS “automatically terminates DACA” upon the issuance of an NTA, Thomas Decl. ¶ 4, the Court agrees that an inference of future class members is reasonable. Moreover, the presence of future class members renders joinder inherently impractical, thus satisfying the numerosity requirement’s fundamental purpose. See, e.g., Sueoka, 101 F. App’x at 653 (“Because plaintiffs seek injunctive and declaratory relief, the numerosity requirement is relaxed and plaintiffs may rely on the reasonable inference arising from plaintiffs’ other evidence that the number of unknown and future members of proposed [class] is sufficient to make joinder impracticable.”); Ali v. Ashcroft, 213 F.R.D. 390, 408–09 (W.D. Wash. 2003) (quoting National Ass’n of Radiation Survivors v. Walters, 111 F.R.D. 595, 599 (N.D. Cal. 1986)) (“[W]here the class includes unnamed, unknown future members, joinder of such unknown individuals is impracticable and the numerosity requirement is therefore met, regardless of class size.”) (internal quotation marks omitted); Hawker v. Consovoy, 198 F.R.D. 619, 625 (D.N.J. 2001) (“The joinder of potential future class members who share a common characteristic, but whose identity cannot be determined yet is considered impracticable.”); Smith v. Heckler, 595 F. Supp. 1173, 1186 (E.D. Cal. 1984) (“[S]pecial consideration applies to actions seeking declaratory or injunctive relief against conduct that is likely to cause future harm. Joinder in the class of persons who may be injured in the future has been held impracticable, without regard to the number of persons already injured.”).

Courts within this Circuit have certified classes with a similar number of known class members, particularly when, as here, the class might also include unknown present and future class members. See, e.g., Saravia v. Sessions, No. 17-cv-03615-VC, 2017 WL 5569838, at *21 (N.D. Cal. Nov. 20, 2017) (certifying nationwide class of unaccompanied minors based on evidence of 15 known members and likelihood of future members); Chief Goes Out v. Missoula Cty., No. CV 12-155-M-DWM, 2013 WL 139938, at *3 (D. Mont. Jan. 10, 2013) (certifying class of 18 members because “small classes may satisfy the numerosity requirement where, as here, the class includes both ascertainable members and a fluid composition of future, unidentified members”). Based on the class members identified by Plaintiffs and the likelihood of both unknown and future members, the Court concludes that joinder is impracticable, and so the numerosity requirement is satisfied.

b. Commonality

Under Rule 23(a)(2), Plaintiffs must show that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). This means that the class members’ claims must “depend on a common contention.” Dukes, 564 U.S. at 350. “What matters to class certification . . . is not the raising of common ‘questions’—even in droves—but rather, the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.”

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Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

Id. “[E]ven a single [common] question will do.” Id. at 359 (internal quotation marks omitted). Thus, Rule 23(a)(2) requires not just a common question, but one that is “capable of classwide resolution.” Alcantar v. Hobart Serv., 800 F.3d 1047, 1052 (9th Cir. 2015). The Ninth Circuit has held that “in a civil-rights suit, [] commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001).

Here, Plaintiffs have identified a number of legal questions common to the proposed class, including whether Defendants’ practice of terminating DACA without notice and an opportunity to be heard violates their internal rules and the Administrative Procedure Act (“APA”), and whether the practice violates the due process clause of the U.S. Constitution. Cert. Mot. 14:14–15:4. These common issues are sufficient to satisfy the requirement’s permissive standard. See Perez-Olano v. Gonzalez, 248 F.R.D. 248, 257 (C.D. Cal. 2008) (“Courts have found that a single common issue of law or fact is sufficient to satisfy the commonality requirement.”). The Court also agrees with Plaintiffs that the class members share a common core of facts, such as the DACA program’s requirements and procedures. See Cert. Mot. 15:11–16. As for the requirement that class members “have suffered the same injury,” Dukes, 564 U.S. at 349–50, the narrow tailoring of the class definition—to include only those individuals who lost their DACA without notice and did not commit disqualifying criminal offenses—ensures commonality of injury. Given this commonality, should the Court decide that Defendants’ practices violate the APA or due process clause, the requested relief—a nationwide injunction preventing termination of DACA pursuant to those practices—would benefit the entire class. Therefore, the common answers to the legal questions presented would “drive the resolution of the litigation.” Ellis, 657 F.3d at 981 (quoting Dukes, 564 U.S. at 350).

In opposition, Defendants primarily argue that “[d]etermining whether an individual’s DACA terminated because of the issuance of an NTA or because of some other discretionary decision would require precisely the type of individualized analysis the Supreme Court recognized could prevent a finding of commonality.” Cert. Opp. 20:22–25 (citing Dukes, 564 U.S. at 350). This argument, though, is premised on a flawed assumption—specifically, that automatic termination of DACA is acceptable in a variety of circumstances, such that the proposed class definition is impermissibly overbroad. While there are some instances in which the DACA SOP might permit automatic termination of a potential class member’s DACA—for example, if the class member received an EPS designation or traveled abroad without following the proper procedure—the Court agrees with Plaintiffs that such cases likely constitute a “very small number of individuals.” Cert. Reply 6 n. 5. Plaintiffs note that, as a practical matter, most individuals who are deemed EPS would have also been convicted of a disqualifying crime and would therefore be excluded from the class definition; indeed, Defendants have not identified a single potential class member whose DACA was terminated due to EPS but did not commit a

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disqualifying criminal offense. See id. 6:17–22. Furthermore, even if the proposed class were to include some members whose DACA were properly terminated, this alone would not defeat certification, because “[w]here the circumstances of each particular class member vary but retain a common core of factual or legal issues with the rest of the class, commonality exists.” Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1029 (9th Cir. 2012); see also Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998) (“Differences among the class members with respect to the merits of their actual document fraud cases, however, are simply insufficient to defeat the propriety of class certification. What makes the plaintiffs’ claims suitable for a class action is the common allegation that the INS’s procedures provide insufficient notice.”). The Ninth Circuit has noted that “even a well-defined class may inevitably contain some individuals who have suffered no harm as a result of a defendant’s unlawful conduct.” Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1136 (9th Cir. 2016); see also id. (distinguishing between “the possibility that an injurious course of conduct may sometimes fail to cause injury to certain class members” and “a flaw that may defeat predominance, such as the existence of large numbers of class members who were never exposed to the challenged conduct to begin with”) (emphasis in original).8

This same analysis applies to DACA recipients who are reclassified as enforcement priorities. According to the DACA SOP,

If after consulting with ICE, USCIS determines that exercising prosecutorial discretion after removal has been deferred under DACA is not consistent with the Department of Homeland Security’s enforcement priorities, and ICE does not plan to issue an NTA, the officer should refer the case to HQSCOPS [Headquarters Service Center Operations], though [sic] the normal chain of command, to determine whether or not a NOIT [Notice of Termination] is appropriate.

DACA SOP at 138. At that point, DACA may be terminated without additional notice or an opportunity to respond, but only if this procedure is followed. See Colotl, 261 F. Supp. 3d at 1342; DACA SOP at 138 (titling this section “Enforcement Priority – DACA Not Automatically Terminated”) (emphasis added). Defendants claim that some proposed class members, including Plaintiffs Gil and Moreira, had their DACA terminated because they were determined to be enforcement priorities. However, there is no indication that the above procedure was followed in their cases, which would mean that the automatic termination of their DACA grants would be

8 For this reason, the Court declines Plaintiffs’ invitation to “modify the class definition,” Cert.

Reply 6 n. 5, even though it retains this prerogative. See Armstrong, 275 F.3d at 871 n. 28

(“Where appropriate, the district court may redefine the class.”).

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subject to the same legal questions as other class members. In addition, even if this procedure were followed in some class members’ cases, that alone would not preclude certification.9

Whatever factual dissimilarities that may exist among the proposed class members do not prevent class certification; as Plaintiffs note, their claims “challenge Defendants’ common termination policies and practices as categorically violating the APA and the Due Process Clause—not the agency’s ultimate exercise of discretion with respect to each recipient.” Cert. Mot. 16:15–19. Because these issues create common legal questions amenable to common answers, Rule 23(a)’s commonality requirement is satisfied.

c. Typicality

Rule 23(a)(3) requires that the named Plaintiffs’ claims be typical of the claims of the class. See Fed. R. Civ. P. 23(a)(3). “Under the rule’s permissive standards, representative claims are ‘typical’ if they are reasonably co-extensive with those of absent class members; they need not be substantially identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). The danger that this requirement is meant to guard against is that “absent class members will suffer if their representative is preoccupied with [claims or defenses] unique to it.” Ellis, 657 F.3d at 984. To meet the typicality requirement, Plaintiffs must therefore establish that other class members have the same or similar injury as them; that the action is based on conduct that is not unique to them as the named Plaintiffs; and that other class members have been injured by the same course of conduct. See id.

The Court agrees that Plaintiffs’ claims are typical of the claims of the proposed class. Each Plaintiff, like each member of the proposed class, had valid DACA and work authorization that USCIS terminated without notice or an opportunity to be heard, and now claims that this practice violates the APA and the due process clause. See Cert. Mot. 17:11–16. Plaintiffs’ claims are thus reasonably co-extensive with the other class members’.

Defendants’ challenge to the typicality requirement, by their admission, “essentially mirrors its argument that Plaintiffs failed to meet their commonality requirement.” Cert. Opp. 22 n. 9. This is not surprising, since “[t]he commonality and typicality requirements of Rule

9 Defendants also suggest another commonality obstacle: that “[o]ther putative class members

may be in removal proceedings as a result of termination of their DACA by NTA issuance, and

some may even have an administratively filed order of removal or have already been removed.”

Cert. Opp. 21:17–20. However, an individual who is in removal proceedings is still eligible for

DACA, see Napolitano Memo at 3, and so may challenge the legality of future revocation. As

for those who have already been removed, Plaintiffs note that “individuals who obtain a lawful

immigration status or are deported have no need for DACA.” Cert Reply 8 n. 7.

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Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

23(a) tend to merge” because “[b]oth serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” General Tel., 457 U.S. at 157 n. 13. Consequently, Defendants’ typicality challenge fails to the same extent as their commonality challenge. Even if the named Plaintiffs’ individual cases contain some factual variations, that does not change the fact that all are challenging the legality of Defendants’ DACA revocation practices under the APA and due process clause. See Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir. 2010) (“The particular characteristics of the Petitioner or any individual detainee will not impact the resolution of this general statutory question and, therefore, cannot render Petitioner’s claim atypical”); Ali, 213 F.R.D. at 409 (citing Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 914 (9th Cir. 1964)) (“[T]ypicality is not defeated if there are legal questions common to all class members.”). As discussed above, Defendants’ contention that Plaintiffs Gil and Moreira were eligible for automatic revocation because of their enforcement priority findings is inconsistent with the DACA SOP, which specifically indicates that DACA is not automatically terminated in those situations. See DACA SOP at 138. If their DACA grants were terminated without following the proper procedure, or if the enforcement priority finding was a post hoc rationalization, then their challenges under the APA and due process clause would be “reasonably coextensive” with the other class members’; again, “they need not be substantially identical.” Hanlon, 150 F.3d at 1020.

Because Plaintiffs’ claims raise the same legal issues as the proposed class members’, and because minor factual variations need not prevent certification, the Court concludes that the typicality requirement is satisfied.

d. Adequacy

Rule 23(a)(4) requires Plaintiffs to show that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Representation is adequate when the class representatives do not have any conflicts of interest with other class members, and the Court is confident that the representative plaintiffs will prosecute the action “vigorously on behalf of the class.” Evon, 688 F.3d at 1031. A district court should evaluate whether the class representatives have a sufficient stake in the outcome of the litigation, and whether the class representatives have interests antagonistic to the unnamed class members. See Brown v. Ticor Title Ins. Co., 982 F.2d 386, 390 (9th Cir. 1992). In addition, the district court should inquire into the zeal and competence of class representatives’ counsel. See id.

To begin, neither Defendants nor the Court questions the competence of Plaintiffs’ counsel, who have acquitted themselves well during this litigation and have demonstrated the

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Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

experience and resources necessary to pursue this matter to completion. See Declaration of Jennifer Chang Newell, Dkt. # 39-3 (“Newell Decl.”), ¶¶ 2–27. Plaintiffs further note that “[a]ttorneys from the ACLU Immigrations’ Rights Project and ACLU of Southern California have been appointed class counsel and successfully litigated similar class action lawsuits in this district and in courts across the country.” Cert. Mot. 18:11–19; see also Rodriguez, 591 F.3d at 1111; Garcia v. Johnson, No. 14-cv-01775-YGR, 2014 WL 6657591, at *15 (N.D. Cal. Nov. 21, 2014) (finding Plaintiffs’ counsel “experienced in protecting the interests of noncitizens and handling complex and class action litigation, including litigation on behalf of immigration detainees”).

Instead, Defendants challenge the adequacy of the named Plaintiffs. They suggest that “the three named Plaintiffs are not properly part of the class that Plaintiffs seek[] to certify,” Cert. Opp. 24:15–16, and although it is true that this Court issued a preliminary injunction restoring Arreola’s DACA, see Arreola Order at 15–16, as discussed above, the fact that Gil and Moreira were purportedly designated as enforcement priorities does not alter their challenges to Defendants’ practices under the APA and due process clause. Defendants also argue that class certification is inappropriate because “the claims of each of the named Plaintiffs is subject to dismissal,” Cert. Opp. 24:10–25, and cite to Lierboe v. State Farm Mutual Automobile Insurance Co., 350 F.3d 1018 (9th Cir. 2003), in which the Ninth Circuit determined that a class could not be certified when the class representative did not have standing. Id. at 1022–23. However, as discussed in Part III.B.i.a below, the Court concludes that it has jurisdiction to hear this case, and it has not ruled to dismiss any of the named Plaintiffs from this action. Accordingly, Lierboe does not present the Court with a compelling reason to deny certification.

Finally, Defendants suggest that proposed class members might have “divergent interests,” noting that at least two of the identified class members have already initiated proceedings on their own behalves, and that “many other putative class members, even with ongoing removal proceedings, may be able to reapply for DACA and could receive additional process.” Cert. Opp. 24:26–25:14. As to the first point, the Court does not see how other suits undertaken by potential class members create divergent interests here, and Defendants do not identify any specific conflict. As for the possibility that class members might reapply for DACA and receive additional process in the future, “this circuit does not favor denial of class certification on the basis of speculative conflicts.” Cummings v. Connell, 316 F.3d 886, 896 (9th Cir. 2003). Moreover, even if some class members receive relief in the future, certification under Rule 23(b)(2) is “appropriate for cases where plaintiffs bring a class action on behalf of a shifting population.” Perez-Olano, 248 F.R.D. at 259 (internal quotation marks omitted).

In short, because the Court concludes that the named Plaintiffs and their counsel will

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Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

fairly and adequately protect the interests of the class, the adequacy requirement of Rule 23(a) is satisfied.

ii. Rule 23(b)(2)

Because the four requirements of Rule 23(a) are satisfied, the Court will now consider whether certification is appropriate under Rule 23(b)(2).

Certification of a class under Rule 23(b)(2) requires that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). The Ninth Circuit has held that “‘it is sufficient’ to meet the requirements of Rule 23(b)(2) [when] ‘class members complain of a pattern or practice that is generally applicable to the class as a whole.’” Rodriguez, 591 F.3d at 1125 (quoting Walters, 145 F.3d at 1047). Rule 23(b)(2) “was adopted in order to permit the prosecution of civil rights actions.” Walters, 145 F.3d at 1047; see also Lyon v. U.S. Immigration & Customs Enf’t, 308 F.R.D. 203, 213 (N.D. Cal. 2015). “The rule does not require [the Court] to examine the viability or bases of class members’ claims for declaratory and injunctive relief, but only to look at whether class members seek uniform relief from a practice applicable to all of them.” Rodriguez, 591 F.3d at 1125; see also Dukes, 564 U.S. at 360 (“The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.”) (internal quotation marks omitted).

a. Proposed Class

The Court agrees that “Rule 23(b)(2)’s requirements are plainly met” here. Cert. Mot. 21:23. Plaintiffs ask the Court to declare that Defendants’ termination policies and practices, which have impacted the proposed class, are unlawful, and to enjoin USCIS from enforcing unlawful DACA terminations and unlawfully terminating DACA in the future. See generally PI Mot. Plaintiffs contend that

[t]his relief would benefit Plaintiffs as well as all members of the proposed classes in the same fashion. No individual class member would be entitled to a different injunction or declaratory judgment. The requested relief would address these policies or practices in a single stroke, and thus the proposed class plainly warrants certification under Rule 23(b)(2).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

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Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

Cert. Mot. 22:4–8. The Court agrees. See Parsons v. Ryan, 754 F.3d 657, 689 (9th Cir. 2014) (“[E]very [member] in the proposed class is allegedly suffering the same (or at least a similar) injury and that injury can be alleviated for every class member by uniform changes in . . . policy and practice.”); Rodriguez, 591 F.3d at 1126 (certifying class of immigrant detainees under Rule 23(b)(2) where “relief from a single practice is requested by all class members”).

The Court also agrees that nationwide certification is appropriate, given the centralized nature and scope of Defendants’ practices. The potential class members identified by Plaintiffs come from various states, including Texas, Louisiana, Georgia, Minnesota, South Dakota, North Carolina, New Jersey, and California. See Cert. Mot. 22:17–20; Eiland Decl. ¶¶ 2–14; Second Eiland Decl. ¶¶ 3–8. Furthermore, there are currently nearly 700,000 DACA recipients in all 50 states, see Eiland Decl. ¶ 48, Ex. 33, and Defendants have indicated that USCIS has a practice of automatically terminating individual DACA grants upon the issuance of an NTA. See Thomas Decl. ¶ 4. Accordingly, to certify a class that is not nationwide in scope might result in the application of unlawful practices based solely on geographic location, a piecemeal situation that would lead to arbitrary results. See Arnott, 290 F.R.D. at 589 (quoting Califano, 442 U.S. at 702) (certifying nationwide class after noting that “the interests of judicial efficiency, economy, and equity weigh in favor of class certifications that offer relief ‘dictated by the extent of the violation established, not by the geographical extent of the plaintiff class’”); Gorbach v. Reno, 181 F.R.D. 642, 644 (W.D. Wash. 1998) (“[A]nything less [than] a nationwide class would result in an anomalous situation allowing the INS to pursue denaturalization proceedings against some citizens, but not others, depending on which district they reside in.”).

b. Ascertainability

Defendants challenge certification under Rule 23(b)(2) on ascertainability grounds, arguing that “[n]ot only must the challenged practice apply to all class members, but it must be readily ascertainable that the practice has injured every member.” Cert. Opp. 13:16–17. To begin, the cases cited by Defendants for this proposition are inapposite, because each concerned, in whole or at least in part, class certification under Rule 23(b)(3), not 23(b)(2). See Santos v. TWC Admin. LLC, No. CV 13-04799 MMM (CWx), 2014 WL 12558009, at *11 (C.D. Cal. Aug. 4, 2015); Colapinto v. Esquire Deposition Servs., LLC, Nos. CV 09-07584 SJO (PLAx), SACV 10-00297 SJO (PLAx), 2011 WL 913251, at *7 (C.D. Cal. Mar. 8, 2011); Flores v. CVS Pharmacy, Inc., No. 2:07-cv-05326-JHN-Ex, 2010 WL 3656807, at *7 (C.D. Cal. Sept. 7, 2010). As for Rule 23(b)(2), the Ninth Circuit has not yet ruled whether the judicially implied ascertainability requirement applies to it, see In re Yahoo Mail Litig., 308 F.R.D. 577, 597 (N.D. Cal. 2015), but other circuits have concluded that it does not. See Cole v. City of Memphis, 839 F.3d 530, 542 (6th Cir. 2016) (“The decisions of other federal courts and the purpose of Rule 23(b)(2) persuade us that ascertainability is not an additional requirement for certification of a

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Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

(b)(2) class seeking only injunctive and declaratory relief.”); Shelton v. Bledsoe, 775 F.3d 554, 563 (3d Cir. 2015) (“The nature of Rule 23(b)(2) actions, the Advisory Committee’s note on (b)(2) actions, and the practice of many [] other federal courts all lead us to conclude that ascertainability is not a requirement for certification of a (b)(2) class seeking only injunctive and declaratory relief.”); Shook v. El Paso Cty., 386 F.3d 963, 972 (10th Cir. 2004) (“[M]any courts have found Rule 23(b)(2) well suited for cases where the composition of a class is not readily ascertainable; for instance, in a case where the plaintiffs attempt to bring suit on behalf of a shifting [] population.”); Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972) (determining that ascertainability is a requirement under Rule 23(b)(3) but not Rule 23(b)(2)).

However, even if the ascertainability requirement were to apply to this proposed class, the Court concludes that it would be satisfied because it is “administratively feasible” to ascertain whether an individual is a member. Greater L.A. Agency on Deafness, Inc. v. Reel Servs. Mgmt. LLC, No. CV 13-7172 PSG (ASx), 2014 WL 12561074, at *5 (C.D. Cal. May 6, 2014). As discussed above, this is not a case where rigorous, individualized inquiries are necessary. Membership in the class is defined by (1) the nature of an individual’s DACA revocation, and (2) whether that individual has been convicted of a disqualifying criminal offense. Accordingly, the definition is “precise, objective, and presently ascertainable.” O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998). That some administrative effort is required does not preclude certification. See, e.g., Moreno v. Napolitano, No. 11 C 5452, 2014 WL 4911938, at *6–7 (N.D. Ill. Sept. 30, 2014) (quoting Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 539 (6th Cir. 2012)) (“[T]he size of the potential class and the need to review individual files to identify its members are not reasons to deny class certification.”).10

10 Defendants also argue that the proposed class is overbroad because it “captures individuals for

whom it is necessary to analyze their claims on a case by case basis to determine whether they

have similarly been impacted by the policy challenged by the putative class.” Cert. Opp.

14:12–14; see also id. 15:1–17:7 (“The Court here would have to determine not just that an

individual’s DACA was terminated without advance notice and an opportunity to respond, but

the reason why no advance notice and opportunity to respond was provided, and what process

was followed prior to termination.”). These arguments, as discussed earlier in this order, are

based on the flawed premise that automatic DACA termination is a common and permissible

feature of the program. However, as the Court has concluded both here and in its prior order,

see generally Arreola Order, automatic termination is only permissible in what appears to be a

relatively small subset of cases. Therefore, the Court is not concerned with overbreadth.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

In summation, because the declaratory and injunctive relief sought by Plaintiffs and
proposed class members would remedy their injuries as a whole, the Court concludes that certification under Rule 23(b)(2) is appropriate.11

iii. Rule 23(g)

Plaintiffs’ counsel seek to be appointed as Class Counsel. See Cert. Mot. 23:12–13.

Under Rule 23(g) of the Federal Rules of Civil Procedure, a district court must appoint class counsel at the time the class is certified, unless otherwise provided by statute. See Fed. R. Civ. P. 23(g). The class counsel must fairly and adequately represent the interests of the class, and the court must review the counsel’s work in investigating claims, experience in handling class action litigation, and the resources counsel will commit to representing the class. See Fed. R. Civ. P. 23(g)(1).

As discussed in Part III.A.i.d above, Plaintiffs’ counsel have previously litigated a number of similar class actions, including cases involving immigration law. See Garcia, 2014 WL 6657591, at *15. They have also demonstrated that they possess the experience and resources needed to pursue this matter to completion, see Newell Decl. ¶¶ 2–27, and have thus far served Plaintiffs well during the course of this litigation. Defendants have provided no challenges to their qualifications, and the Court sees no reason not to appoint Plaintiffs’ counsel as Class Counsel.

iv. Summation

Because the Court concludes that the proposed class satisfies the requirements of Rule 23(a) and Rule 23(b)(2), it GRANTS Plaintiffs’ motion for class certification.

11 The Court’s conclusion here is consistent with the decisions of a number of courts that have

certified nationwide classes under Rule 23(b)(2) in similar actions challenging the federal

government’s administration of immigration programs. See, e.g., Walters, 145 F.3d at 1053

(affirming certification of nationwide class of individuals challenging adequacy of notice in

document fraud cases); Wagafe v. Trump, No. C17-0094-RAJ, 2017 WL 2671254, at *16 (W.D.

Wash. June 21, 2017) (certifying nationwide class of naturalization applicants challenging

national security screening procedures); Arnott, 290 F.R.D. at 589 (certifying nationwide class of

immigrant investors challenging USCIS’s retroactive application of new rules); Santillan v.

Ashcroft, No. C 04-2686 MHP, 2004 WL 2297990, at *12 (N.D. Cal. Oct. 12, 2004) (certifying

nationwide class of lawful permanent residents challenging delays in receiving documentation of

their status).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

B. Motion for Preliminary Injunction

Much of the discussion that follows mirrors the arguments and analyses presented in the Court’s previous order granting Plaintiff Arreola’s motion for a preliminary injunction. See generally Arreola Order. Defendants repeat many of the same contentions that the Court previously rejected, and give few reasons why it should revise the conclusions it reached at that time. The Court will nevertheless address the arguments for and against the issuance of a preliminary injunction.

i. Likelihood of Success on the Merits

a. Jurisdiction

As a threshold matter, Defendants challenge this Court’s ability to review the revocation of class members’ DACA, based on the APA and other statutes.

1. APA

Although the APA permits judicial review of agency actions where “there is no other adequate remedy in a court,” 5 U.S.C. § 704, Defendants note that the APA precludes review of agency decisions that are “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), and that the Supreme Court has held that “an agency’s decision not to take enforcement action should be presumed immune from judicial review under § 701(a)(2).” Heckler v. Chaney, 470 U.S. 821, 832 (1985). Defendants therefore conclude that “individual DACA terminations, especially where based on issuance of NTAs, fall squarely within that category of agency discretion for which judicial review is improper.” PI Opp. 12:18–20.

The Court disagrees. The jurisdictional bar cited by Defendants applies only where there is “no meaningful standard against which to judge the agency’s exercise of discretion.” MendezGutierrez v. Ashcroft, 340 F.3d 865, 868 (9th Cir. 2003) (quoting Heckler, 470 U.S. at 830). By contrast, a court can review an agency decision when, like here, there are “statutes, regulations, established agency policies, or judicial decisions that provide a meaningful standard against which to assess” an agency’s action. Mendez-Gutierrez, 340 F.3d at 868; see also ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1069 (9th Cir. 2015) (quoting Spencer Enters., Inc. v. United States, 345 F.3d 683, 688 (9th Cir. 2003); Socop-Gonzalez v. Immigration & Naturalization Serv., 208 F.3d 838, 844 (9th Cir. 2000)) (“Even where statutory language grants an agency ‘unfettered discretion,’ its decision may nonetheless be reviewed if regulations or agency practice provide a ‘meaningful standard by which this court may review its exercise of discretion.’”).

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Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

Here, the decision to revoke DACA is governed by both the Napolitano Memo and the DACA SOP, and the Ninth Circuit has repeatedly found that APA jurisdiction exists where “discretion has been legally circumscribed by various memoranda.” Alcaraz v. Immigration & Naturalization Serv., 384 F.3d 1150, 1161 (9th Cir. 2004); see also Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 719 (9th Cir. 2011) (looking to an agency’s interim certification standards to “supply the standard against which we can judge the agency’s decision-making”); Mendez-Gutierrez, 340 F.3d at 868 (noting that the absence of a specific statute or regulation “does not . . . mean that there are no meaningful standards against which to evaluate” an agency’s decision where other rules and regulations apply). Other courts that have similarly examined the Napolitano Memo and DACA SOP have also concluded that they contain the sort of detailed policy directives that provide courts with the standards needed to review DACA revocation. See Gonzalez Torres, 2017 WL 4340385, at *5 (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954); Alcaraz, 384 F.3d at 1162) (“Defendants’ failure to follow the termination procedures set forth in the DACA SOP is arbitrary, capricious, and an abuse of discretion.”); Colotl, 261 F. Supp. 3d at 1340 (“Defendants’ argument that § 701(a) of the APA bars this Court from reviewing an agency’s non-discretionary review process fails.”); see also Texas v. United States, 809 F.3d 134, 170 (5th Cir. 2015) (determining that the “grant of lawful presence and accompanying eligibility for benefits is a substantive rule”).

In its prior order, the Court noted that Plaintiffs “challenge[] USCIS’ determination that [] DACA should be automatically terminated based on CBP’s issuance of an NTA, not any eventual enforcement decision in removal proceedings.” Arreola Order at 5. Because DACA eligibility and revocation are governed by the aforementioned regulations, the Court has a meaningful standard with which to scrutinize the agency’s decision, and so judicial review is not barred by the APA. See Ramirez Medina v. U.S. Dep’t of Homeland Sec., No. C17-0218RSM, 2017 WL 5176720, at *8 (W.D. Wash. Nov. 8, 2017) (“Defendants’ alleged failure to follow the procedures detailed in the DACA SOP does not implicate agency discretion. Therefore, the jurisdiction-stripping provisions of . . . § 701(a) are not applicable to prevent this Court from determining whether Defendants complied with their non-discretionary procedures.”).

2. Section 1252(g)

Defendants also point to § 1252(g) for their jurisdictional claim, which mandates that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien.” 8 U.S.C. § 1252(g). The Supreme Court has explained that § 1252(g) is “directed against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion.” Reno, 525 U.S. at 944 n. 9. Accordingly, Defendants

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Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

assert that “because issuance of an NTA and termination of DACA are steps ‘leading up to’ a final order of removal, they are squarely within the scope of 8 U.S.C. § 1252(g).” PI Opp. 8:3–4.

Defendants interpret § 1252(g) too broadly, as evidenced by the Supreme Court’s Reno decision. There, in response to the “unexamined assumption that § 1252(g) covers the universe of deportation claims—that it is a ‘zipper’ clause that says ‘no judicial review in deportation cases unless this section provides judicial review,’” the Supreme Court opined that “what § 1252(g) says is much narrower.” Reno, 525 U.S. at 482. It concluded that “[t]he provision applies only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” Id. (emphasis in original). Section 1252(g) does not preclude review of “many other decisions or actions that may be part of the deportation process.” Id. Consistent with this guidance, the Ninth Circuit has narrowly construed § 1252(g), distinguishing between the narrow category of actions that courts cannot review and those adjacent actions that are within their jurisdiction. In Alcaraz, for example, the Ninth Circuit held that even a claim closely related to the initiation of removal proceedings is not barred by § 1252(g), so long as it does not challenge the decision to commence proceedings itself. Alcaraz, 384 F.3d at 1160–61; see also Catholic Soc. Servs. v. Immigration & Naturalization Serv., 232 F.3d 1139, 1150 (9th Cir. 2000) (“[Section 1252(g)] applies only to the three specific discretionary actions mentioned in its text, not to all claims relating in any way to deportation proceedings.”).

Here, Plaintiffs challenge neither the issuance of NTAs nor the CBP’s decisions to commence removal proceedings. Instead, they challenge the USCIS’s separate and independent decision to revoke DACA on the basis of an NTA, which is independent of the limited category of decisions covered by § 1252(g). See Ramirez Medina, 2017 WL 5176720, at *6 (“[T]he Court ultimately finds that none of the statutes relied upon by Defendants applies to the narrower issues presented in this case; specifically, whether Defendants complied with their own nondiscretionary procedures.”); Gonzalez Torres, 2017 WL 4340385, at *4–5.

Furthermore, the Ninth Circuit has held that while § 1252(g) precludes review of the three specified discretionary decisions, it does not bar review of legal questions relating to those discretionary decisions. See United States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004) (en banc) (“The district court may consider a purely legal question that does not challenge the Attorney General’s discretionary authority, even if the answer to that legal question—a description of the relevant law—forms the backdrop against which the Attorney General later will exercise discretionary authority.”); see also Madu v. U.S. Attorney Gen., 470 F.3d 1362, 1368 (11th Cir. 2006) (“While this provision bars courts from reviewing certain exercises of discretion by the attorney general, it does not proscribe substantive review of the underlying

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Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

legal bases for those discretionary decisions and actions.”). Here, Plaintiffs bring their legal challenges under the APA and the due process clause. These are the sorts of purely legal questions that, although related to a discretionary decision, are nevertheless permitted by the Ninth Circuit.

Because Plaintiffs mount legal challenges to decisions that are not within the limited category of discretionary actions enumerated by the statute, the Court concludes that § 1252(g) does not deprive it of jurisdiction over their claims.

3. Sections 1252(a)(5) and 1252(b)(9)

Lastly, Defendants contend that “[t]o the extent that Plaintiffs have any viable claims, the REAL ID Act, codified at 8 U.S.C. §§ 1252(a)(5) and 1252(b)(9), bars them from raising those claims in district court, even before a final order of removal issues.” PI Opp. 9:1–3. Section 1252(a)(5) requires that “a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter.” 8 U.S.C. § 1252(a)(5). Section 1252(b)(9) further provides that “[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.” 8 U.S.C. § 1252(b)(9). As one court characterized this statutory scheme, it was designed to “put an end to the scattershot and piecemeal nature of the review process that previously had held sway in regard to removal proceedings.” Aguilar v. U.S. Immigration & Customs Enf’t, 510 F.3d 1, 9 (1st Cir. 2007).

However, although the Supreme Court has explained that the purpose of § 1252(b)(9) is “to consolidate ‘judicial review’ of immigration proceedings into one action in the court of appeals,” it “applies only ‘[w]ith respect to review of an order of removal under subsection (a)(1).’” Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 313 (2001). Section 1252(a)(1), like § 1252(a)(5), refers to “[j]udicial review of a final removal” order. 8 U.S.C. § 1252(a)(1); see also Singh v. Gonzalez, 499 F.3d 969, 978 (9th Cir. 2007) (“By virtue of their explicit language, both §§ 1252(a)(5) and 1252(b)(9) apply only to those claims seeking judicial review of orders of removal.”).

Plaintiffs do not seek judicial review of orders of removal; indeed, their challenges are independent of any removal proceedings. See Gonzalez Torres, 2017 WL 4340385, at *5 (“Plaintiff brings a procedural challenge to termination of his DACA status, an issue independent from any removal proceedings.”). Furthermore, the Ninth Circuit has held that

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

§ 1252(b)(9) does not deprive district courts of jurisdiction where a claim could not have been litigated in removal proceedings and the noncitizen would otherwise “have had no legal avenue to obtain judicial review of this claim.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1032 (9th Cir. 2016); see also Mamigonian v. Biggs, 710 F.3d 936, 945 (9th Cir. 2013) (permitting an APA action where the immigration judge “would be without jurisdiction” to adjudicate the claim and so “review would be unavailable” to plaintiff). An immigration judge in a removal proceeding does not have the power to grant or deny deferred action, or to review or reverse an agency’s decision to revoke it. See Gonzalez Torres, 2017 WL 4340385, at *6 (“[A]n immigration judge has no jurisdiction to reinstate DACA status.”); see also Napolitano Memo at 2–3 (conveying power to grant DACA to agencies); Matter of Quintero, 18 I. & N. Dec. 348, 350 (B.I.A. 1982) (“[N]either the immigration judge nor the Board may grant [deferred action] status or review a decision of the District Director to deny it.”). Therefore, Plaintiffs could not have challenged the revocation of their DACA statuses at a removal proceeding, and so under Ninth Circuit precedent, jurisdiction is not barred.

Plaintiffs here are not challenging a final removal order, and the action they bring is premised on claims that could not have been brought in removal proceedings. Therefore, §§ 1252(a)(5) and 1252(b)(9) do not apply and do not deprive this Court of jurisdiction.

b. Merits of Plaintiffs’ Claims

Because the Court again concludes that it has jurisdiction over this action, it will now consider the merits of Plaintiffs’ claims.

1. APA Claim

Plaintiffs argue that “Defendants’ practice of terminating DACA based solely on the issuance of an NTA charging the DACA recipient with presence without admission or overstaying a visa is arbitrary and capricious and contrary to law in violation of the APA.” PI Mot. 9:9–12. The Court agrees.

Under the APA, “agency action must be based on non-arbitrary, ‘relevant factors.’” Judulang v. Holder, 565 U.S. 42, 55 (2011) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983)). The “courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking.” Judulang, 565 U.S. at 53. “When reviewing an agency action, [the Court] must assess, among other matters, ‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” Id. (quoting State Farm, 463 U.S. at 43).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

The Court agrees with Plaintiffs that this case is analogous to that which the Supreme Court considered in Judulang. See PI Mot. 9:20–10:3. There, the Supreme Court considered a Board of Immigration Appeals (“BIA”) rule governing eligibility for a form of relief—suspension of deportation—which, like DACA, was not provided for in the INA and was therefore discretionary. See Judulang, 565 U.S. at 46–47. Despite this discretionary quality, the Supreme Court nonetheless determined that the rules applied by the agency must reflect reasoned decisionmaking, admonishing that “[a] method for disfavoring deportable aliens that bears no relation to these matters—that neither focuses on nor relates to an alien’s fitness to remain in the country—is arbitrary and capricious.” Id. at 55. The BIA’s rule was invalidated because it was based on “a matter irrelevant to the alien’s fitness to reside in this country,” which indicated that “the BIA ha[d] failed to exercise its discretion in a reasoned manner.” Id. at 53.

Plaintiffs make a compelling argument that, like the BIA’s invalidated rule in Judulang, the decision to automatically terminate their DACA and its accompanying employment authorization based on the issuance of an NTA fails the requirements of the APA. First, based on the Napolitano Memo and the DACA SOP, a noncitizen’s deportability due to unauthorized presence in the United States—the basis for NTAs—provides no relevant basis for terminating DACA. These guidelines enumerate the relevant considerations for a DACA grant, and not only is unauthorized presence an unmentioned factor, but the program was specifically designed for persons without lawful immigration status. See, e.g., DACA SOC at 44 (indicating that an individual “may be favorably considered for DACA if” he/she “[e]ntered without inspection” or his/her “lawful immigration status expired”). The program’s rules also make clear that even noncitizens who are, have been, or will be placed in removal proceedings are nonetheless eligible for DACA. See Napolitano Memo at 2; DACA SOP at 71 (“Individuals in removal proceedings may file a DACA request.”); Kwon Decl. ¶ 17, Ex. 16 (Statement of Assistant Secretary Michael Dougherty and Acting Director James McCament) at 2 (“The 2012 memorandum also made clear that individuals could be considered for DACA even if they were already in removal proceedings or were subject to a final removal order.”). The same is true for individuals with final removal orders, and even individuals who have “reenter[ed] the United States illegally after having been removed or after leaving voluntarily under an order of removal.” See DACA SOP at 74–75.

Furthermore, if an NTA is issued against an applicant while her application is pending with USCIS—even if the NTA is based on a public safety concern—DACA can still be conferred on the applicant. See Kwon Decl. ¶ 22, Ex. 21 (November 7, 2011 Policy Memorandum titled “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens”) at 4 (“ICE’s issuance of an NTA allows USCIS to proceed with adjudication . . . taking into account the basis for the

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

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Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

NTA.”); DACA SOP at 93 (providing that if ICE accepts a case referred to it by USCIS during the DACA application process, then the “DACA Team will follow the standard protocols outlined in the November 7, 2011 NTA memorandum”). In such cases, USCIS is required to review all relevant circumstances, and may still grant a DACA request despite an NTA “[i]f a DACA requestor has been placed in proceedings on a ground that does not adversely impact the exercise of prosecutorial discretion.” DACA SOP at 75; see also id. at 74 (“Final removal orders . . . should be reviewed carefully to examine the underlying grounds for removal.”).

Accordingly, the Court agrees that “given that the filing of an NTA against a DACA applicant, or even the issuance of a final order of removal against a DACA applicant, does not render the individual ineligible for the program, DHS’ practice of automatically terminating DACA on this basis is arbitrary and irrational.” PI Mot. 12:1–4.

Finally, there is the issue of departure. Agencies are free to change course and depart from a prior decision, but they are also “obligated to supply a reasoned analysis for the change.” State Farm, 463 U.S. at 42; see also Federal Commc’ns Comm’n v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (“[T]he agency must show that there are good reasons for the new policy.”). Here, in the case of each class member, DHS made a determination (and, in cases like the named Plaintiffs’ where renewal was granted, multiple determinations) that the individual was eligible for and warranted a DACA grant. These decisions, pursuant to the relevant guidelines, were based on background checks and a review of the applicant’s documentation. However, in each case, although the class member had not been charged with or convicted of a disqualifying criminal act, DHS’s decisions were reversed and DACA was revoked—in Plaintiffs’ words, “the agency [] abruptly chang[ed] course” even though “each [] class member continue[d] to be eligible for DACA.” PI Mot. 13:22–24. The only explanation for this reversal provided to Plaintiffs was that their DACA was “terminated automatically” due to the NTA. Kwon Decl. ¶ 9, Ex. 8; Moreira Decl. ¶ 26, Ex. B; Gil Decl. ¶ 30, Ex. B. The Court maintains that “USCIS’s one-sentence explanation fails to provide good reasons for the agency’s change in position, as required by the APA.” Arreola Order at 10; see also Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 968 (9th Cir. 2015) (quoting Fox Television Stations, 556 U.S. at 516; Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1209 (2015)) (explaining that an agency is “required to provide a ‘reasoned explanation . . . for disregarding’ the ‘facts and circumstances’ that underlay its previous decision”). In its prior order, the Court continued:

[G]iven that all DACA recipients are necessarily removable due to their unauthorized presence, [t]he agency’s reliance on an NTA citing [class members’] presence without admission simply fails to explain, much less justify, the agency’s decision to reverse course and terminate [their] DACA. Such an

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

arbitrary and unexplained decision fails to address [class members’] substantial reliance interests, which also runs counter to the Supreme Court’s mandate.

Arreola Order at 10–11 (emphasis in original and internal quotation marks omitted); see also Fox Television Stations, 556 U.S. at 515 (holding that an agency must “provide a more detailed justification” when “its prior policy has engendered serious reliance interests that must be taken into account”).

In opposition, Defendants contest the conclusions the Court reached when it issued Plaintiff Arreola’s preliminary injunction and maintain that DHS did not violate its internal guidelines, asserting that “[w]hen a case is referred by USCIS, ICE may issue an NTA that automatically terminates DACA, with no additional notice or opportunity to respond.” PI Opp. 19:6–8. Despite Defendants’ disagreement, the Court repeats what it stated previously: the DACA SOP do not support this assertion. There are, as discussed throughout Part III.A above, only a few, narrow circumstances in which DACA can be terminated automatically, without notice and an opportunity to be heard. Defendants point to no provision in the DACA SOP that permits automatic termination as a result of an NTA based on unauthorized presence. They discuss ICE’s and CBP’s authority to issue NTAs, see PI Opp. at 18:25–19:8, and note that “there is no provision permitting USCIS to reverse ICE’s decision,” id. 19:14–15, but such assertions are not relevant—the issue is not whether DHS or its component agencies can issue NTAs, but instead whether USCIS can terminate DACA automatically solely on that basis.12 The Court maintains that it cannot. Although an NTA filed on the basis of an EPS designation can result in automatic DACA termination, see DACA SOP at 137, “if the disqualifying criminal offense is non-EPS” then “[t]he individual should be allowed 33 days to file a brief or statement contesting the grounds cited in the Notice of Intent to Terminate.” Id.; see also Gonzalez Torres, 2017 WL 4340385, at *6 (noting that NTAs based on an EPS designation and NTAs based on unauthorized presence “are not fungible, or ‘flip sides of the same coin’”). Defendants contend that “it takes a particularly strained reading of the Napolitano Memo and DACA SOP to find that ICE and CBP cannot issue NTAs that have the effect of terminating DACA.” PI Opp. 20:1–3. For the reasons discussed throughout this order, the Court disagrees.

Defendants also suggest that they have not reversed policy by automatically terminating DACA upon the issuance of an NTA, and hence that Fox Television Stations is inapposite. See

12 Defendants argue that the Court’s prior conclusion “relies on a starkly oversimplified

consideration of the NTA decision process,” and provide additional information as to how NTAs

are issued. PI Opp. 20:16–22:19. Again, neither Plaintiffs nor the Court suggest that the NTA

process itself is arbitrary or capricious, but instead that the decision to automatically terminate

DACA solely on the basis of an NTA is inconsistent with the applicable guidelines and

regulations.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

PI Opp. 22:21–24:6. They note that “[t]he initial grant of DACA is heavily qualified with warnings that it is not protection from removal or a change in legal status, and that it may be terminated at any time, specifically for subsequent criminal activity.” Id. 22:26–23:1. Accordingly, “[t]he automatic termination of Plaintiffs’ DACA . . . is well within DACA SOP policy and practice, and demonstrates that there is no change in policy or practice as it applies to the putative class or individuals,” id. 23:4–8, and therefore any variations merely constitute an “evolving analysis” that the Ninth Circuit has excluded from Fox Television Stations analysis. Sierra Club v. Bureau of Land Mgmt., 786 F.3d 1219, 1226 (9th Cir. 2015).

To begin, the Court disagrees that no change in policy has occurred. Arbitrariness can be found not only in a change of official written policy, which may not have occurred here, but also through “a significant showing that analogous cases have been decided differently,” which certainly has been made here. LeMoyne-Owen Coll. v. National Labor Relations Bd., 357 F.3d 55, 61 (D.C. Cir. 2004); see also California Pub. Utils. Comm’n v. Federal Energy Regulatory Comm’n, 879 F.3d 966, 978 (9th Cir. 2018) (finding that the Federal Energy Regulatory Commission acted arbitrarily when it departed without explanation from a policy employed in previous decisions). However, even accepting Defendants’ conclusion leads to another obstacle, one discussed in the Court’s prior order: that Defendants’ practices are unpersuasive and not entitled to deference. See Arreola Order at 12. Defendants cite to Chemehuevi Indian Tribe v. Brown, No. ED CV 16-1347-JFW (MRWx), 2017 WL 2971864 (C.D. Cal. Mar. 30, 2017), in which the court determined that an agency’s “consistent practice . . . in an area within its expertise is itself entitled to at least traditional deference under Skidmore v. Swift & Co. due, in part, to the agency’s specialized experience.” Id. at *8 n. 9 (citation omitted). Defendants also point to fourteen instances when DACA was automatically terminated due to an NTA, as evidence of “consistent practice.” See Thomas Decl. ¶ 5. The Court, as it concluded previously, “does not find this availing.” Arreola Order at 12. Even accepting fourteen instances out of thousands of DACA terminations as a “consistent practice,” Defendants imply that such a practice is only entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), and is therefore due “respect only insofar as [it has] the power to persuade, which is a function of the thoroughness evident in [its] consideration and the validity of [its] reasoning.” Resident Councils of Wash. v. Leavitt, 500 F.3d 1025, 1037 (9th Cir. 2007) (internal quotation marks omitted). The Court cannot afford this practice much respect given that “it apparently conflicts with the plain language of the DACA SOPs,” and would permit the issuance of an NTA to automatically terminate DACA “notwithstanding the fact that the individual continues to be eligible for DACA and that all DACA recipients, by definition, lack lawful immigration status.” Arreola Order at 12.

In short, either the practice at issue constitutes an arbitrary and impermissible change in agency policy, or it conflicts with applicable regulations in such a way as to be entitled to little

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

deference from this Court. Either way, the Court finds the practice problematic and not immune from APA scrutiny.

In summation, Defendants’ opposition does not sway this Court from its previous conclusion that Plaintiffs make “a compelling argument that the decision to terminate [] DACA was arbitrary and capricious and in violation of the APA.” Arreola Order at 13. Therefore, Plaintiffs have demonstrated a likelihood of success on the merits.13

2. Due Process Claim

Because the Court concludes that Plaintiffs’ APA claim satisfies the first requirement of the preliminary injunction inquiry, it need not consider their due process claim at this time.

ii. Irreparable Injury

In granting Plaintiff Arreola’s preliminary injunction, the Court concluded that “the deprivation of Plaintiff’s earnings and job opportunities caused by the loss of his DACA and [accompanying employment authorization] constitutes irreparable harm.” This conclusion also applies to the class as a whole. Plaintiffs have provided evidence that, “like Plaintiffs, 91 percent of DACA recipients were employed, including at top Fortune 500 companies,” and that 69 percent of DACA recipients reported that their earnings “helped [them] become financially independent.” PI Mot. 20:1–5; see also Eiland Decl. ¶ 31, Ex. 16 at 2–3. In addition, 94 percent of DACA recipients surveyed stated that, because of DACA, they “pursued educational opportunities that [they] previously could not.” Eiland Decl. ¶ 31, Ex. 16 at 4. After losing his DACA and employment authorization, Plaintiff Arreola lost his job as a cook at Chateau Marmont and could no longer work as a driver for Uber or Lyft, as he had previously done. See Declaration of Jesus Alonso Arreola Robles, Dkt. # 16-3 (“Arreola Decl.”), ¶ 40. Plaintiff Gil lost his job with a logistics company, see Gil Decl. ¶ 24, and Plaintiff Moreira can no longer work or drive. See Moreira Decl. ¶ 20. Defendants have given no reason to doubt that the loss of DACA and employment authorization will have a similarly deleterious effect on the other class members.

13 Defendants also suggest that employment authorization must be treated differently than

DACA, arguing that “to reinstate individual EADs [Employment Authorization Documents]

would violate DHS regulations that operate independent of, and superior to, DACA policy.” PI

Opp. 3:16–17. However, as the Court discussed in its prior order, it does not agree with

Defendants and concludes that automatic revocation of employment authorization in these cases

is inconsistent with the applicable regulations. See Arreola Order at 11 n. 2.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

The Ninth Circuit has held that “loss of opportunity to pursue [one’s] chosen profession” constitutes irreparable harm. Enyart v. National Conference of Bar Exam’rs, Inc., 630 F.3d 1153, 1165 (9th Cir. 2011); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543 (1985) (“We have frequently recognized the severity of depriving a person of the means of livelihood.”). Moreover, the Ninth Circuit has specifically found irreparable harm in a similar case involving DACA recipients. See Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014) (finding irreparable harm where professional opportunities are limited); see also id. (“The irreparable nature of Plaintiffs’ injury is heightened by Plaintiffs’ young age and fragile socioeconomic position. Setbacks early in their careers are likely to haunt Plaintiffs for the rest of their lives.”). Furthermore, each of the named Plaintiffs has demonstrated that his earnings are used to support his family, see Arreola Decl. ¶¶ 2–5, 16; Gil Decl. ¶¶ 12, 26; Moreira Decl. ¶¶ 6, 10, which also suggests irreparable harm. See Gonzalez Torres, 2017 WL 4340385, at *6 (“The potential harm caused by Defendants’ conduct includes the loss of employment, a core benefit under DACA. The deprivation of employment impacts Plaintiff’s ability to financially provide for himself and his family.”).

In addition, Plaintiffs note that “losing DACA has rendered many proposed class members’ ineligible for driver’s licenses, which in the vast majority of states are conditioned on showing lawful presence in the United States.” PI Mot. 21:19–21; see also Eiland Decl. ¶ 32, Ex. 17 at 2. This likely explains why 90 percent of DACA recipients obtained driver’s licenses or state identification cards for the first time after receiving DACA. Eiland Decl. ¶ 42, Ex. 27 at 4. The Court should also consider the emotional pain to which the named Plaintiffs have attested, see Arreola Decl. ¶ 40; Gil Decl. ¶ 26; Moreira Decl. ¶¶ 20, 22, which is also a cognizable form of irreparable injury. See Chalk v. U.S. Dist. Ct., 840 F.2d 701, 709–10 (9th Cir. 1988) (noting that a plaintiff’s injury is “emotional and psychological—and immediate” and that “[s]uch an injury cannot be adequately compensated for by a monetary award after trial”); Colotl, 261 F. Supp. 3d at 1343–44 (“Plaintiff’s emotional distress caused by this insecurity is another factor in determining that Plaintiff will suffer irreparable injury without the entry of a preliminary injunction which compels Defendants to comply with DHS’s SOP prior to denying Plaintiff her application to renew her DACA status or terminating that status.”).

Defendants do not dispute that Plaintiffs and class members have suffered or will suffer injury as a result of losing DACA, and indeed concede that “the loss of the ability to work is a significant harm.” PI Opp. 24:15. The Court therefore concludes that the loss of DACA constitutes irreparable harm for Plaintiffs and class members.

iii. Balance of Hardships and Public Interest

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Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

The remaining two factors—balance of hardships and the public interest—merge when, as here, the government is the opposing party. See Nken v. Holder, 556 U.S. 418, 435.

There is undoubtedly a strong interest to be found in the effective and efficient enforcement of the nation’s immigration laws. See, e.g., Reno, 525 U.S. at 490–91 (“[T]he consequence of delay . . . in deportation proceedings . . . is to permit and prolong a continuing violation of United States law.”). However, as the Court previously concluded, this interest does not outweigh the ongoing harm that Plaintiffs and class members have experienced or will experience as a result of losing their DACA grants and employment authorization, especially given that the Court is “simply requiring Defendants to comply with DHS’s written procedures as to the adjudication of DACA applications and the termination of DACA status. There can be no harm to Defendants in requiring them to follow their own written guidelines, but the harm to Plaintiff by Defendants’ failure to do so is significant.” Colotl, 261 F. Supp. 3d at 1344. In addition, the Court again notes “the public interest that exists in ensuring that the government complies with its obligations under the law and follows its own procedures.” Arreola Order at 15; see also Brewer, 757 F.3d at 1069 (“[I]t is clear that it would not be equitable or in the public’s interest to allow the state . . . to violate the requirements of federal law, especially when there are no adequate remedies available.”) (alterations in original); Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.”); Colotl, 261 F. Supp. 3d at 1344 (“[T]he public has an interest in government agencies being required to comply with their own written guidelines instead of engaging in arbitrary decision making.”). Lastly, Plaintiffs note the significant financial contributions of DACA recipients, both to their families—71 percent of DACA recipients surveyed report that their increased earnings have allowed them to help their families financially, Eiland Decl. ¶ 31, Ex. 16 at 3—and to the United States. See, e.g., id. ¶ 34, Ex. 19 at 2 (estimating that “ending DACA would result in a loss of $460.3 billion from the national GDP over the next decade” and “would remove an estimated 685,000 workers from the nation’s economy”). The public interest would not be served by eliminating class members’ abilities to support their families and contribute to the national economy.

In opposition, Defendants argue that class members’ injuries are “outweighed by the need for Defendants to pursue removal for individuals like the named Plaintiffs who have misused the trust given to them with the administrative grace of DACA.” PI Opp. 24:15–17. However, Plaintiffs do not seek a permanent reinstatement of their DACA grants, but only the notice and process that is required by the DACA SOP and other regulations. If indeed any class members have misused the trust given to them, then that can be determined and addressed through proper adjudication. Defendants suggest that “the efficacy of [this] additional process . . . is questionable because DHS and its components have already exercised prosecutorial discretion to end the putative class members’ DACA by deciding instead to place them into removal

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Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

proceedings.” Id. 24:22–25. Questionable or not, Plaintiffs do not seek a guarantee of continued DACA, but merely the ability to be heard and the privilege of receiving fair and nonarbitrary treatment. As the Court previously concluded, “the public has a strong interest in ensuring that the nation’s immigration laws are robustly—and fairly—enforced.” Arreola Order at 15 (emphasis in original).

In short, the Court concludes that the harm to Plaintiffs and class members caused by automatic DACA termination and the consequent risk of employment loss and financial instability outweighs Defendants’ interest in immigration enforcement, particularly given the Court’s skepticism as to the fairness and legality of Defendants’ practices. If Defendants placed their trust in Plaintiffs and class members through the act of deferred action, then Plaintiffs and class members in turn placed their trust in Defendants to only revoke DACA through a fair, nonarbitrary, and consistent process. It is in the public’s interest that the expectations of both Defendants and Plaintiffs are realized, which requires equitable enforcement of the nation’s immigration laws.

iv. Summation

Because Plaintiffs have demonstrated a likelihood of success on the merits of their APA claim and the existence of irreparable harm, and because neither a balancing of the hardships nor the public interest favors Defendants, the Court GRANTS Plaintiffs’ motion for a classwide preliminary injunction.

IV. Conclusion

For the foregoing reasons, the Court GRANTS Plaintiffs’ motion for class certification and GRANTS Plaintiffs’ motion for a classwide preliminary injunction.

A. Class Certification

The Court hereby CERTIFIES the following class under Rule 23(b)(2):

All recipients of Deferred Action for Childhood Arrivals (“DACA”) who, after January 19, 2017, have had or will have their DACA grant and employment authorization revoked without notice or an opportunity to respond, even though they have not been convicted of a disqualifying criminal offense.

The Court also APPOINTS the moving Plaintiffs as Class Representatives and Plaintiffs’

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Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

counsel from the ACLU Immigrants’ Rights Project and the ACLU of Southern California as Class Counsel.

B. Scope of Preliminary Injunction

Defendants and their agents, employees, assigns, and all those acting in concert with them are enjoined as follows:

1. It is hereby ORDERED that Defendants are preliminarily enjoined from terminating grants of Deferred Action for Childhood Arrivals (“DACA”) and related employment authorization documents (“EADs”) of class members absent a fair procedure that complies with the Department of Homeland Security (“DHS”) DACA Standard Operating Procedures as well as the Memorandum from Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012), available at https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretionindividuals-whocame-to-us-as-children.pdf, and which includes, at a minimum, notice, a reasoned explanation, and an opportunity to be heard prior to termination.

2. It is hereby ORDERED that Defendants are preliminarily enjoined from terminating grants of DACA and related EADs based solely on the issuance of a Notice to Appear (“NTA”) that charges the DACA recipient as removable due to his or her presence in the United States without admission or having overstayed a visa.

3. It is hereby ORDERED that Defendants’ decisions after January 19, 2017 to terminate the DACA grants and EADs of class members, without notice, a reasoned explanation, or an opportunity to respond prior to termination, are preliminarily enjoined. Defendants immediately will restore those individuals’ DACA and EADs, subject to their original date of expiration.

4. It is hereby ORDERED that Defendants accept and adjudicate any applications to renew DACA by individuals whose DACA grant and EAD would have expired on or before March 5, 2018, but were unable to apply for or obtain a renewal as a result of Defendants’ unlawful revocation decision, consistent with the terms of this Order.

C. Implementation Procedures

5. Within seven days of this order, the parties will meet and confer to develop a notice that explains the requirements of this Order and provides class members with contact information for Class Counsel. Within 14 days of this Order, Defendants will send the notice to all individuals

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CIVIL MINUTES - GENERAL

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Case 5:17-cv-02048-PSG-SHK Document 61 Filed 02/26/18 Page 36 of 37 Page ID #:1966

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

whose DACA grant and EAD was revoked after January 19, 2017 without advance issuance of a Notice of Intent to Terminate (“NOIT”) and provide copies of those notices to Class Counsel.

Within 14 days of this Order:

6. Defendants shall identify all DACA recipients whose DACA grant and EAD was revoked after January 19, 2017 without issuance of a NOIT and determine if they have been convicted of a disqualifying criminal offense. If the individual has not been convicted of a disqualifying criminal offense, Defendants immediately will restore the individual’s DACA grant and issue the individual a new EAD.

7. If the individual’s restored DACA grant and EAD have expired as of the date of this Order or will expire on or before March 5, 2018, Defendants will permit the individual 60 days from the date of this Order to submit a DACA renewal application to U.S. Citizenship and Immigration Services. If the individual’s restored DACA grant and EAD expired on or before the date of this Order, Defendants temporarily will restore that individual’s DACA grant and EAD for the 60-day period to submit a renewal application.

8. Defendants shall provide Class Counsel with a list of all DACA recipients whose DACA grant and EAD was revoked after January 19, 2017 without issuance of a NOIT. That list shall include the following information for each person:

• Name, Alien Number, Mailing Address, and Phone Number;

• The date the individual’s most recent DACA grant and EAD was granted;

• The date the individual’s most recent DACA grant and EAD was set to expire;

• The date the individual’s most recent DACA grant and EAD was revoked;

• Whether the individual was found to have a disqualifying criminal conviction and, if so, what conviction(s);

• If applicable, the date the individual’s DACA grant and EAD was restored.

For each such person, Defendants also will provide Class Counsel with copies of the Notices of Action previously terminating the person’s DACA grant and EAD, as well as the Notices of Action and EADs for individuals whose DACA grants and EADs are restored pursuant to this

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CIVIL MINUTES - GENERAL

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Case 5:17-cv-02048-PSG-SHK Document 61 Filed 02/26/18 Page 37 of 37 Page ID #:1967

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date February 26, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

Order, including those DACA grants and EADs that are temporarily restored pursuant to paragraph 7.

IT IS SO ORDERED.

CV-90 (10/08)

CIVIL MINUTES - GENERAL

Page 37 of 37

 
 Case 5:17-cv-02048-PSG-SHK Document 73 Filed 03/26/18 Page 1 of 21 Page ID #:2045

1 Jennifer Chang Newell (SBN 233033) jnewell@aclu.org
2 Katrina L. Eiland (SBN 275701) keiland@aclu.org
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
6 Michael K. T. Tan*
7 mtan@aclu.org David Hausman*
8 dhausman@aclu.org ACLU FOUNDATION
9 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor
10 New York, NY 10004 Telephone: (212) 549-2660
11 Facsimile: (212) 549-2654

12 Attorneys for Plaintiffs (Additional counsel listed on following page)

13 UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA

15 INLAND EMPIRE – IMMIGRANT

) Case No. 5:17-cv-2048-PSG-SHK

YOUTH COLLECTIVE, et al., on behalf )

16 of themselves and others similarly situated, )

)

17

Plaintiffs,

)

)

18

v.

) PLAINTIFFS’ OPPOSITION TO

) DEFENDANTS’ MOTION TO

19 KIRSTJEN NIELSEN, Secretary, U.S. ) DISMISS

Department of Homeland Security, et al., )

20

)

Defendants. 21
22

) ) ) ) )

Judge: Hon. Philip S. Gutierrez Courtroom: 6A Hearing: April 16, 2018 Time: 1:30 p.m.

23

)

)

24

)

)

25

)

)

26

)

)

27

)

)

28

)

Case 5:17-cv-02048-PSG-SHK Document 73 Filed 03/26/18 Page 2 of 21 Page ID #:2046
Ahilan T. Arulanantham (SBN 237841) 1 aarulanantham@aclusocal.org
Michael Kaufman (SBN 254575) 2 mkaufman@aclusocal.org
Dae Keun Kwon (SBN 313155) 3 akwon@aclusocal.org
ACLU FOUNDATION OF SOUTHERN CALIFORNIA 4 1313 West 8th Street
Los Angeles, CA 90017 5 Telephone: (213) 977-5232
Facsimile: (213) 977-5297 6 7 Attorneys for Plaintiffs 8 *Admitted pro hac vice 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 5:17-cv-02048-PSG-SHK Document 73 Filed 03/26/18 Page 3 of 21 Page ID #:2047

1

TABLE OF CONTENTS

2

3 INTRODUCTION .....................................................................................................1

4 LEGAL STANDARD................................................................................................2

5 ARGUMENT.............................................................................................................3

6

I. MR. ARREOLA AND IEIYC HAVE STANDING ............................3

7

A. Mr. Arreola Had Standing at the Commencement of the

Litigation and His Claims Are Not Moot. ............................................3 8

B. IEIYC Has Standing on Behalf of Its Members...............................7 9

II. THE IMMIGRATION AND NATIONALITY ACT AND

10

ADMINISTRATIVE PROCEDURE ACT DO NOT DEPRIVE THE

COURT OF JURISDICTION.............................................................11 11

III. PLAINTIFFS HAVE STATED A CLAIM UNDER THE APA .......13 12

IV. PLAINTIFFS HAVE STATED A PROCEDURAL DUE PROCESS

13

CLAIM ................................................................................................14

14 CONCLUSION........................................................................................................15

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ii

Case 5:17-cv-02048-PSG-SHK Document 73 Filed 03/26/18 Page 4 of 21 Page ID #:2048

TABLE OF AUTHORITIES 1

2

Cases Alcaraz v. INS,

3 384 F.3d 1150 (9th Cir. 2004)...................................................................................13

4

Alfaro-Orellana v. Ilchert, 720 F. Supp. 792 (N.D. Cal. 1989) ...........................................................................15

5 Already, LLC v. Nike, Inc.,

6

568 U.S. 85 (2013) ...................................................................................................... 5 Arizona DREAM Act Coalition v. Brewer,

7 855 F.3d 962 (9th Cir. 2017).......................................................................................2

8 Babbitt v. United Farm Workers, 442 U.S. 289 (1979) .................................................................................................... 5

9 Bell v. Burson,

10 402 U.S. 535 (1971) ..................................................................................................14 Cleveland Bd. of Educ. v. Loudermill,

11 470 U.S. 532 (1985) ..................................................................................................15

12 Colotl v. Kelly, 261 F. Supp. 3d 1328 (N.D. Ga. 2017) ...............................................................12, 13

13 Doe I v. Nestle USA, Inc.,

14 766 F.3d 1013 (9th Cir. 2014).....................................................................................3 Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc.,

15 528 U.S. 167 (2000) ............................................................................................3, 4, 6

16 Georgia Latino Alliance for Human Rights (GLAHR) v. Gov. of Georgia, 691 F.3d 1250 (11th Cir. 2012)...................................................................................9
17 Gonzalez Torres v. DHS,

18 No. 17-cv-1840, 2017 WL 4340385 (S.D. Cal. Sept. 29, 2017).........................12, 13 Hawai‘i v. Trump,
19 859 F.3d 741 (9th Cir. 2017).......................................................................................9

20 Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999)...................................................................................11
21 Intl. Union, United Auto., Aerospace and Agr. Implement Workers of Am. v. Brock,

22 477 U.S. 274 (1986) ..................................................................................................10 Jackson v. California Dept. of Mental Health,
23 399 F.3d 1069 (9th Cir. 2005).....................................................................................6

24 Laub v. U.S. Dept. of Int., 342 F.3d 1080 (9th Cir. 2003).....................................................................................3
25 Lee v. City of Los Angeles,

26 250 F.3d 668 (9th Cir. 2001).......................................................................................3 Lujan v. Defs. of Wildlife,
27 504 U.S. 555 (1992) .................................................................................................... 2

28 Malama Makua v. Rumsfeld,

iii

Case 5:17-cv-02048-PSG-SHK Document 73 Filed 03/26/18 Page 5 of 21 Page ID #:2049

1

136 F. Supp. 2d 1155 (D. Haw. 2001) ........................................................................ 5 Maya v. Centex Corp.,

2 658 F.3d 1060 (9th Cir. 2011).....................................................................................2

3

McFalls v. Purdue, No. 16-2116, 2018 WL 785866 (D. Or. Feb. 8, 2018) ............................................... 4

4 N.L.R.B. v. Raytheon Co.,

5

398 U.S. 25 (1970) ...................................................................................................... 6 N.W. Envtl. Def. Ctr. v. U.S. Army Corps of Engineers,

6 No. 3:10-01129, 2013 WL 1294647 (D. Or. Mar. 27, 2013)......................................4

7 Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846 (9th Cir. 2005).......................................................................................7

8 Ramirez Medina v. DHS,

9 No. 17-cv-0218, 2017 WL 5176720 (W.D. Wash. Nov. 8, 2017)......................12, 13 Reno v. Am.-Arab Anti-Discrimination Comm.,

10 525 U.S. 471 (1999) ..................................................................................................11

11 Rockwell Int’l Corp. v. United States, 549 U.S. 457 (2007) .................................................................................................... 5

12 Rosemere Neighborhood Ass’n v. EPA,

13 581 F.3d 1169 (9th Cir. 2009).....................................................................................6 Rumsfeld v. Forum for Academic & Institutional Rights, Inc.,

14 547 U.S. 47 (2006) ...................................................................................................... 1

15 United Union of Roofers, Waterproofers, and Allied Trades No. 40 v. Ins. Corp. of Am.,
16 919 F.2d 1398 (9th Cir. 1990).....................................................................................5

17 Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013).............................................................................5, 8, 9
18 White v. Lee,

19 227 F.3d 1214 (9th Cir. 2000).................................................................................3, 6

20 Statutes

21

5 U.S.C. § 701(a)(2)......................................................................................................13 8 U.S.C. § 1252(a)(5)..............................................................................................12, 13

22 8 U.S.C. § 1252(b)(9) .............................................................................................12, 13

23 8 U.S.C. § 1252(g) ..................................................................................................11, 12

24 Rules

25 Fed. R. Civ. P. 12(b)(6) ..............................................................................................2, 3

26 Regulations

27 8 C.F.R. § 274a.14(a)(1)(ii) ..........................................................................................15

28

iv

Case 5:17-cv-02048-PSG-SHK Document 73 Filed 03/26/18 Page 6 of 21 Page ID #:2050

1

INTRODUCTION

2

Defendants’ motion to dismiss repeats arguments that this Court has already

3 rejected and asks the Court to expend its resources on issues that need not be decided.

4 The motion repeats, verbatim, statutory jurisdictional arguments that this Court has

5 already rejected twice in this case. Likewise, Defendants repeat their failed arguments

6 concerning Plaintiffs’ Administrative Procedure Act (“APA”) claims.

7 Notwithstanding that this Court has issued two preliminary injunctions based on

8 Plaintiffs’ likelihood of success on these APA claims, Defendants argue that Plaintiffs

9 have failed even to state a claim. The Court need not consider and reject Defendants’

10 arguments for a third time, and it should summarily deny the motion.

11

The remaining arguments Defendants raise simply need not be decided, and the

12 Court should therefore deny the remainder of Defendants’ motion as well. Defendants

13 ask the Court to hold that Plaintiffs Arreola and Inland Empire-Immigrant Youth

14 Collective (IEIYC) lack standing, yet Defendants do not dispute that Plaintiffs Gil and

15 Moreira, whose DACA grants were terminated and whose work permits were

16 canceled, have standing to sue. Defendants’ standing arguments as to Mr. Arreola and

17 IEIYC are not only meritless, they are wholly irrelevant: it is black letter law

18 that “[t]he presence of one party with standing is sufficient to satisfy Article III’s case-

19 or-controversy requirement.” Rumsfeld v. Forum for Academic & Institutional Rights,

20 Inc., 547 U.S. 47, 53, n.2 (2006). As a result, because Mr. Gil and Mr. Moreira

21 indisputably have standing, the Court need not decide whether additional plaintiffs

22 have standing.

23

In any event, were the Court to reach the issue, it is clear that Mr. Arreola and

24 IEIYC have standing. Defendants do not dispute that Mr. Arreola had standing at the

25 outset of the litigation—the relevant point in time for determining standing—and his

26 claim is not moot just because Defendants’ unlawful actions have been preliminarily

27 enjoined by this Court. And IEIYC clearly has standing on behalf of its members,

28 who are DACA recipients at risk of being subjected to Defendants’ illegal practices.

1

Case 5:17-cv-02048-PSG-SHK Document 73 Filed 03/26/18 Page 7 of 21 Page ID #:2051

1

Defendants’ repeated arguments that Plaintiffs have failed to state a procedural

2 due process claim must also be rejected. As Plaintiffs have explained, the Supreme

3 Court has held that where the government seeks to revoke an important benefit—even

4 if that benefit is ultimately a discretionary one—it must first provide a meaningful

5 opportunity to be heard. However, the Court need not resolve this constitutional

6 question, since it has granted the preliminary relief the plaintiffs requested on other

7 grounds and potentially may grant permanent relief on those other grounds as well.

8 As the Ninth Circuit has emphasized, “We do not decide federal constitutional

9 questions where a dispositive nonconstitutional ground is available.” Arizona

10 DREAM Act Coalition v. Brewer, 855 F.3d 962, 970-71 (9th Cir. 2017) (citation and

11 quotation marks omitted), cert denied, --- S.Ct. ----, 2018 WL 1369140 (March 19,

12 2018). See also id. at 963 (“Applying the doctrine of constitutional avoidance, . . . we

13 need not and should not come to rest on the [constitutional] issue, . . . so long as there

14 is a viable alternate, nonconstitutional ground to reach the same result.”) (citation

15 omitted).

16

Accordingly, the Court should deny the motion.

17

LEGAL STANDARD

18

“For purposes of ruling on a motion to dismiss for want of standing, both the

19 trial and reviewing courts must accept as true all material allegations of the complaint

20 and must construe the complaint in favor of the complaining party.” Maya v. Centex

21 Corp., 658 F.3d 1060, 1068 (9th Cir. 2011) (citation and quotation marks omitted).

22 Moreover, even “general factual allegations of injury resulting from the defendant’s

23 conduct may suffice, for on a motion to dismiss [the Court] presum[es] that

24 general allegations embrace those specific facts that are necessary to support the

25 claim.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

26

On a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P.

27 12(b)(6), “[a]ll factual allegations in the complaint are accepted as true, and the

28 pleadings construed in the light most favorable to the nonmoving party.” Doe I v.

2

Case 5:17-cv-02048-PSG-SHK Document 73 Filed 03/26/18 Page 8 of 21 Page ID #:2052

1 Nestle USA, Inc., 766 F.3d 1013, 1018 (9th Cir. 2014) (citation and quotation marks 2 omitted).1

3

ARGUMENT

4 I. MR. ARREOLA AND IEIYC HAVE STANDING.

5

Because Defendants do not dispute that Plaintiffs Gil and Moreira have

6 standing to sue, there is no need for the Court to consider Defendants’ standing

7 arguments as to the remaining plaintiffs. Where “one plaintiff ha[s] standing to bring

8 the suit, the court need not consider the standing of the other plaintiffs.” Laub v. U.S.

9 Dept. of Int., 342 F.3d 1080, 1086 (9th Cir. 2003). Defendants’ standing arguments

10 can be summarily rejected on this basis alone, without prejudice to their ability to

11 renew these arguments should they ever become relevant. Should the Court reach the

12 question, however, as shown below, it is clear that Mr. Arreola and IEIYC have

13 standing to sue.

14

A. Mr. Arreola Had Standing at the Commencement of the Litigation and

15

His Claims Are Not Moot.

16

The Supreme Court has repeatedly instructed that standing is the “requisite

17 personal interest that must exist at the commencement of the litigation.” Friends of

18 the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167, 189 (2000)

19 (citation and quotation marks omitted and emphasis added). See also, e.g., White v.

20 Lee, 227 F.3d 1214, 1243 (9th Cir. 2000) (“Standing is examined at ‘the

21 commencement of the litigation.’”) (quoting Friends of the Earth, 528 U.S. at 189).

22 Mr. Arreola had standing at the commencement of this litigation because the

23

1 Defendants’ motion, in arguing that Plaintiffs’ complaint should be dismissed

24 for failure to state a claim, improperly attempts to rely on evidence that Defendants

25

have submitted into the record. See, e.g., Mot. at 3, 22-23 (citing exhibits). However, it is well established that a motion to dismiss for failure to state a claim must be

26 decided on the basis of the allegations in the complaint. See, e.g., Lee v. City of Los

27

Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (“[A] district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.”) (citation and

28 quotation marks omitted).

3

Case 5:17-cv-02048-PSG-SHK Document 73 Filed 03/26/18 Page 9 of 21 Page ID #:2053

1 government terminated his DACA and Employment Authorization Document, causing

2 him to lose his job and harming his ability to provide for his family. See Compl., Dkt.

3 1, at ¶¶ 76-83; Am. Compl., Dkt. 32, at ¶¶ 78-85. Defendants apparently do not

4 dispute that Mr. Arreola had standing at the outset, and that ends the inquiry.

5

Attempting to avoid this simple point, Defendants argue that Plaintiffs, by

6 amending Mr. Arreola’s complaint to add allegations concerning subsequent events

7 and additional plaintiffs, somehow defeated Mr. Arreola’s original standing in the

8 case. But the fact that Mr. Arreola filed an amended complaint, which contains

9 additional procedural history concerning the preliminary injunction and the

10 government’s subsequent actions, does not change his undisputed injury at the outset

11 of the litigation. The fact that a plaintiff who had standing at the commencement of

12 the case has amended his complaint to include additional allegations does not

13 somehow negate his standing—which, as discussed, is determined at the outset. See,

14 e.g., McFalls v. Purdue, No. 16-2116, 2018 WL 785866, at *8 (D. Or. Feb. 8, 2018);

15 N.W. Envtl. Def. Ctr. v. U.S. Army Corps of Engineers, No. 3:10-01129, 2013 WL

16 1294647, at *7 (D. Or. Mar. 27, 2013).

17

For example, in McFalls, the district court considered and rejected precisely the

18 argument raised by Defendants here. 2018 WL 785866, at *8 (explaining that

19 defendants “challenge Plaintiffs’ standing, based on the facts as they exist as of the

20 filing of the Second Amended Complaint”). The district court explained that “Article

21 III standing is evaluated by considering the facts as they existed at the time of the

22 commencement of the action.” Id. (citing Friends of the Earth, 528 U.S. at 180).

23 Accordingly, the court held that notwithstanding the filing of an amended complaint

24 reflecting subsequent events, “Plaintiffs had standing at the time they commenced the

25 action.” Id. at *9. The court concluded that the defendants’ arguments based on

26 subsequent events alleged in the amended complaint were properly analyzed under

27 mootness principles. Id. Accord N.W. Envtl. Def. Ctr., 2013 WL 1294647, at *7

28 (rejecting defendants’ argument that standing should be considered based on the facts

4

Case 5:17-cv-02048-PSG-SHK Document 73 Filed 03/26/18 Page 10 of 21 Page ID #:2054

1 at the time of the amended complaint, and explaining the difference between standing

2 and mootness). In N.W. Envtl. Def. Ctr., the court specifically rejected the notion that

3 the inclusion of additional allegations in an amended complaint could defeat standing

4 that existed at the outset of the case. 2013 WL 1294647, at *7 (explaining that the

5 “claim alleged in the Second Amended Complaint is nearly identical to that in the

6 original Complaint except that it has been supplemented by an additional paragraph

7 . . . . The addition of this paragraph does little, if anything, to change the contours of 8 [the] claim and does not deprive this court of jurisdiction on the basis of standing”).2

9 See also Already, LLC v. Nike, Inc., 568 U.S. 85, 91-92 (2013) (holding that where

10 subsequent events occurred that “call[ed] into question the existence of any continuing

11 case or controversy,” those events did not require a reappraisal of the parties’ standing 12 but rather raised questions of mootness).3 The amended complaint in this case, far

13 from withdrawing the allegations explaining Mr. Arreola’s original DACA

14 termination, repeated them. Compare Compl., Dkt. No. 1, at ¶¶ 43-83 with Am.

15 Compl., Dkt. No. 32, at ¶¶ 45-85. It therefore did nothing to alter Mr. Arreola’s 16 standing.4

17

2 Defendants invoke Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473

18 (2007), which did not concern standing and is irrelevant here. In any event, as that

19

opinion explained, an amended complaint is only relevant for establishing jurisdiction to the extent that that complaint “withdraw[s] . . . allegations [supporting jurisdiction],

20 unless they are replaced by others that establish jurisdiction.” Id.

21

3 Where there were standing deficiencies in a plaintiff’s original complaint, of course, a court may look to an amended complaint to cure those deficiencies. See,

22 e.g., United Union of Roofers, Waterproofers, and Allied Trades No. 40 v. Ins. Corp.

23

of Am., 919 F.2d 1398, 1402 (9th Cir. 1990). Once a plaintiff has demonstrated standing, either in an original or an amended complaint, the burden shifts to the

24 defendant to show that a cause has become moot.

25

4 For the same reasons, Mr. Arreola’s challenge to his unlawful DACA termination remains ripe. See, e.g., Malama Makua v. Rumsfeld, 136 F. Supp. 2d

26 1155, 1161 (D. Haw. 2001) (noting that ripeness “is measured at the time an action is

27

instituted; ripeness is not a moving target affected by a defendant’s action”). Further, with respect to the government’s stated intent to terminate Mr. Arreola’s DACA once

28 again, “a plaintiff ‘does not have to await the consummation of threatened injury to

5

Case 5:17-cv-02048-PSG-SHK Document 73 Filed 03/26/18 Page 11 of 21 Page ID #:2055

1

Since Mr. Arreola had standing at the outset of the litigation, the only

2 conceivable question at this stage is whether his claim is moot. See, e.g., Jackson v.

3 California Dept. of Mental Health, 399 F.3d 1069, 1072 (9th Cir. 2005) (explaining

4 that “mootness” involves the question “whether, after the case had been brought,

5 something happened to cause [the plaintiff] to lose his continuing interest in the

6 case”), amended on other grounds, 417 F.3d 1029 (9th Cir. 2005). Defendants bear a

7 “heavy burden” in establishing mootness, Friends of the Earth, 528 U.S. at 189, and

8 have not remotely shouldered that burden here. The factual developments on which

9 the government relies—the reinstatement of Mr. Arreola’s DACA and the issuance of

10 a Notice of Intent to Terminate—are the results of the government’s compliance with

11 this Court’s preliminary injunction. It is clear that compliance with a preliminary

12 injunction does not moot a case; any other rule would systematically prevent courts

13 from entering final judgments. Thus, the Ninth Circuit has emphasized that “a

14 government agency’s moratorium that ‘by its terms was not permanent’ would not

15 moot ‘an otherwise valid claim for injunctive relief.’” White, 227 F.3d at 1243 (9th

16 Cir. 2000) (quoting Friends of the Earth, 528 U.S. at 190). See also, e.g., N.L.R.B. v.

17 Raytheon Co., 398 U.S. 25, 27 (1970) (“We think it plain from the cases that the

18 employer’s compliance with an order of the [National Labor Relations] Board does

19 not render the cause moot.”); Rosemere Neighborhood Ass’n v. EPA, 581 F.3d 1169,

20 1173 (9th Cir. 2009) (“[T]he mere cessation of illegal activity in response to pending

21 litigation does not moot a case, unless the party alleging mootness can show that the

22 ‘allegedly wrongful behavior could not reasonably be expected to recur.’”) (quoting

23 Friends of the Earth, 528 U.S. at 189).

24

The government must therefore show that, absent the preliminary injunction, it

25 would not attempt to terminate Mr. Arreola’s DACA unlawfully. First, without the

26

27

obtain preventive relief.’” Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1015 (9th Cir. 2013) (quoting Babbitt v. United Farm Workers, 442 U.S. 289, 298 (1979) (internal

28 quotation marks omitted)).

6

Case 5:17-cv-02048-PSG-SHK Document 73 Filed 03/26/18 Page 12 of 21 Page ID #:2056

1 preliminary injunction, the government could again rescind Mr. Arreola’s DACA

2 based merely on the earlier issuance of a Notice to Appear, providing no advance

3 notice or opportunity to respond. And second, despite this Court’s injunction, and far

4 from showing that its wrongful behavior will not recur, the government has expressed

5 its formal intent, with a Notice of Intent to Terminate, to repeat the harm that it

6 originally caused Mr. Arreola, this time by terminating his DACA on the ground that

7 he is an enforcement priority, Am. Compl., Dkt. 32, at ¶¶ 86-89—also an unlawful

8 ground for termination described in the original complaint. Compl., Dkt. 1, at ¶¶ 112,

9 117.

10

Mr. Arreola’s standing was established at the outset of this case, and his claim

11 is clearly not moot.

12

B. IEIYC Has Standing on Behalf of Its Members.

13

IEIYC clearly has standing to sue on behalf of its members, who reasonably

14 feared, at the outset of this litigation, that their DACA would be unlawfully terminated

15 as a result of the policy that this Court has enjoined. To establish standing on behalf

16 of its members, IEIYC must show that “its members would have standing to sue on

17 their own behalf, the interests at issue are germane to [its] mission, and neither the

18 substantive claim nor the remedy sought necessitates the participation of any

19 individual member of [IEIYC].” Ocean Advocates v. U.S. Army Corps of Engineers,

20 402 F.3d 846, 861 (9th Cir. 2005).

21

IEIYC easily satisfies all three requirements.

22

IEIYC’s members would themselves have standing because they plainly face

23 imminent injury: this case is about a widespread practice of unlawful DACA

24 terminations that the government has explicitly acknowledged and that IEIYC

25 members may be subjected to at any time. That injury is imminent because IEIYC

26 members are DACA recipients and the government has an admitted policy of

27 terminating DACA without notice or process, even where a recipient has not violated

28 the program rules. Indeed, for example, the government has “admitted that USCIS

7

Case 5:17-cv-02048-PSG-SHK Document 73 Filed 03/26/18 Page 13 of 21 Page ID #:2057

1 has a practice of automatically terminating DACA based solely on the issuance of a

2 Notice to Appear.” Am. Compl., Dkt. 32, at ¶ 156 (emphasis added). And if these

3 unlawful practices were not enough, DHS officials have repeatedly made clear that

4 they do not intend to exempt DACA recipients from their enforcement efforts. For

5 example, Defendant Homan has stated that “[i]f you’re in this country illegally, . . .

6 [y]ou should look over your shoulder,” id. at ¶ 140, and an ICE spokeswoman has

7 confirmed that “ICE does not exempt classes or categories of removable aliens from

8 enforcement,” id. at ¶ 141. Indeed, the former Acting Secretary of DHS has even said

9 that she is unaware of any guidance stating that DHS will not use DACA recipients’

10 confidential information to remove them. Id. at ¶ 142. See also, e.g., id. at ¶¶ 138-39

11 (similar statements from administration officials).

12

Those fears are all the more reasonable, and the members’ injuries all the more

13 imminent, because IEIYC members are particularly likely to be subjected to USCIS’s

14 policy of unlawful terminations. There are multiple CBP sub-stations in Riverside

15 County (in Murrieta, Temecula, and Indio), and multiple CBP checkpoints and roving

16 patrols, id. at ¶ 135, as well as a new border patrol complex under construction in

17 Moreno Valley, id. IEIYC members therefore are forced to “live, work, attend school,

18 and carry out IEIYC work” in an area with pervasive CBP presence. Id. That

19 presence poses a direct threat to IEIYC members, since “[a] September 6, 2017 CBP

20 memorandum directs that, after encountering a DACA recipient, immigration agents

21 must run various systems checks to determine whether removal proceedings are

22 appropriate,” id. at ¶ 144 (citation and quotation marks omitted). The risk of being

23 placed in removal proceedings is particularly high for IEIYC members who have had

24 or will have contact with local law enforcement, id. at ¶ 136, since CBP officials may

25 place DACA recipients whom they encounter in removal proceedings—even on the

26 basis of an arrest, id. at ¶ 144. And that risk is compounded by USCIS’s practice of

27 automatically terminating DACA on the basis of the issuance of a Notice to Appear in

28 removal proceedings. Id. at ¶ 159.

8

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1

This evidence of a systematic practice is more than enough to support standing.

2 For example, in Valle del Sol Inc., 732 F.3d 1006, 1018 (9th Cir. 2013), the Ninth

3 Circuit held—at the more demanding summary judgment stage—that two

4 organizations faced imminent injury from an Arizona law prohibiting the

5 transportation of undocumented immigrants in furtherance of their illegal presence.

6 The organizations alleged that they feared their staff would be prosecuted because

7 they provide transportation to undocumented immigrants. Id. The court held that the

8 organizations had standing, and IEIYC’s members have standing for the same reason:

9 they reasonably fear that the government, absent an injunction, will continue its

10 established practice by unlawfully terminating their DACA. Similarly, in Hawai‘i v.

11 Trump, 859 F.3d 741 (9th Cir. 2017), vacated, 138 S. Ct. 377 (2017), the Ninth

12 Circuit held that family members of visa applicants “understandably and reasonably

13 fear[ed]” that the President’s ban would prevent their reunification with family

14 members, id. at 762, even though that ban allowed them to apply for waivers.

15

Indeed, courts have held that similarly situated plaintiffs had standing to

16 challenge policies even where the risk of enforcement was far lower than the risk here.

17 For example, in Georgia Latino Alliance for Human Rights (GLAHR) v. Gov. of

18 Georgia, 691 F.3d 1250 (11th Cir. 2012), the plaintiffs challenged (among other

19 things) a provision of state law that allowed officers to detain individuals for

20 immigration purposes where the officer had probable cause to believe the individual

21 had committed a crime. The court held that an individual plaintiff with deferred

22 action status faced an imminent injury because she lacked required immigration

23 documentation—even though she never suggested that she would commit a crime or

24 that an officer would have probable cause to arrest her on that basis. Id. at 1258-60.

25 The injuries facing IEIYC members are far more imminent: the government asserts

26 that it may terminate their DACA for any reason or no reason, and at any time,

27 without notice or an opportunity to respond. Like the plaintiff in GLAHR, who feared

28 being stopped and detained by state officers, id.; the plaintiffs in Valle del Sol, who

9

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1 feared their staff would be arrested and prosecuted for transporting undocumented

2 immigrants, 732 F.3d at 1014-15; and the family members of visa applicants in

3 Hawai‘i, 859 F.3d at 762, who feared that they would not be provided waivers from

4 the travel ban and thereby be separated from their family; IEIYC members fear that

5 their DACA will be terminated pursuant to the government’s conceded practices, and

6 therefore have standing.

7

IEIYC also meets the second requirement for standing on behalf of its

8 members: Defendants do not even dispute (nor could they) that the claims in this case

9 are germane to IEIYC’s mission.

10

Finally, IEIYC meets the third requirement: its members would not be required

11 to participate in this challenge. Defendants suggest that IEIYC’s members would

12 need to participate because determining whether an individual’s DACA has been

13 unlawfully terminated requires a “very fact-specific inquiry.” Mot. 6. But this Court

14 has already found that “this is not a case where rigorous, individualized inquiries are

15 necessary.” Class PI Order, Dkt. No. 61, at 20. The fact that determinations of class

16 membership might be necessary is not an obstacle to membership standing. Indeed, in

17 the very case on which Defendants rely, the Supreme Court held that a union had

18 standing on behalf of its members to challenge a guideline interpretation that limited

19 their access to benefits, even “though the unique facts of each [union] member’s claim

20 will have to be considered by the proper state authorities before any member will be

21 able to receive the benefits allegedly due him.” Intl. Union, United Auto., Aerospace

22 and Agr. Implement Workers of Am. v. Brock, 477 U.S. 274, 288 (1986).

23

Finally, Defendants assert that IEIYC members lack standing because the harm

24 they fear “would only occur if [they] first engage[] in unlawful behavior.” Mot. 7.

25 That assumes away the central allegations in this case: that the government has a

26 policy of unlawfully terminating DACA for individuals who lack disqualifying

27 criminal convictions. See, e.g., Am. Compl., Dkt. 32, at ¶¶ 78-85 (describing the

28 termination of Mr. Arreola’s DACA despite the government’s decision never to

10

Case 5:17-cv-02048-PSG-SHK Document 73 Filed 03/26/18 Page 16 of 21 Page ID #:2060

1 charge him with any crime); id. at ¶ 150 (describing the DACA termination of Jessica

2 Colotl, whose only conviction was for driving without a license—a conviction she had

3 disclosed in each of her successful DACA applications). The Ninth Circuit explained,

4 in the case on which Defendants rely for this proposition, that “there is no tenable

5 argument that plaintiff should avoid driving near the Mexican border in order to avoid

6 another stop by the Border Police.” Hodgers-Durgin v. de la Vina, 199 F.3d 1037,

7 1041 (9th Cir. 1999). Here, too, there is no tenable argument that IEIYC members

8 should cease their daily routines to avoid the checkpoints that subject them to a risk of

9 unlawful DACA termination.

10 II. THE IMMIGRATION AND NATIONALITY ACT AND

11

ADMINISTRATIVE PROCEDURE ACT DO NOT DEPRIVE THE

COURT OF JURISDICTION. 12
This Court has twice correctly determined that it has jurisdiction under the INA 13
and the APA to enjoin the unlawful termination of individuals’ DACA and work 14
authorization. See Arreola PI Order, Dkt. 31, at 4-8; Class PI Order, Dkt. 61, at 2215 26; see also Arreola PI Reply, Dkt. 25, at 2-11.5 The same reasoning applies on this 16
motion to dismiss, in which Defendants’ argument is copied nearly verbatim from 17
their opposition to the Plaintiffs’ motion for a classwide preliminary injunction. 18
Compare Class PI Opp., Dkt. 54, at 6-13, with Mot. at 8-15. The Court need not once 19
again explain why these identical arguments are incorrect. 20
First, Defendants again suggest that review of USCIS’s failure to provide notice 21
and process in terminating DACA is precluded by 8 U.S.C. § 1252(g). Yet that 22
provision insulates from review only a “‘decision or action’ to ‘commence 23
proceedings, adjudicate cases, or execute removal orders.’” Reno v. Am.-Arab Anti24
Discrimination Comm., 525 U.S. 471, 482 (1999) (quoting 8 U.S.C. § 1252(g)). 25
Defendants again assert that “no reasonable argument can be made that the 26

27

5 Plaintiffs incorporate their previous jurisdictional arguments, see Arreola PI

28 Reply, Dkt. 25, at 2-11, by reference here.

11

Case 5:17-cv-02048-PSG-SHK Document 73 Filed 03/26/18 Page 17 of 21 Page ID #:2061

1 terminations did not arise out of [the decision to initiate removal proceedings].” Mot.

2 at 4. But as this Court twice explained, and multiple courts have agreed, class

3 members are “challeng[ing] neither the issuance of NTAs nor the [government’s]

4 decision to commence removal proceedings,” but instead “USCIS’s separate and

5 independent decision to revoke [their] DACA on the basis of an NTA, which is

6 independent of the limited category of decisions covered by § 1252(g).” Class PI

7 Order, Dkt. 61, at 24; see also Arreola PI Order, Dkt. 31, at 6; accord Arreola PI

8 Reply at 2-6; Ramirez Medina v. DHS, No. 17-cv-0218, 2017 WL 5176720, at *6-7

9 (W.D. Wash. Nov. 8, 2017); Gonzalez Torres v. DHS, No. 17-cv-1840, 2017 WL

10 4340385, at *4 (S.D. Cal. Sept. 29, 2017); Colotl v. Kelly, 261 F. Supp. 3d 1328,

11 1338-40 (N.D. Ga. 2017).

12

The Court was also correct to hold that in any event, § 1252(g) does not bar

13 review of legal questions related to discretionary decisions, and that Plaintiffs’ claims

14 are therefore reviewable on that basis. Class PI Order, Dkt. 61, at 24-25; Arreola PI

15 Order, Dkt. 31, at 6. Defendants do not contest that such legal questions are

16 reviewable, but instead mischaracterize Plaintiffs’ claims as seeking to require the

17 agency to exercise its discretion not to terminate DACA. Mot. at 15 n.9. But as this

18 Court found and Plaintiffs have explained, Plaintiffs seek review not of USCIS’s

19 ultimate exercise of discretion to grant or deny DACA, but rather of the agency’s

20 compliance with its own rules, the APA, and due process. Compare id. with Class PI

21 Order, Dkt. 61, at 25; Arreola PI Order, Dkt. 31, at 6; accord Arreola PI Reply, Dkt.

22 25, at 1.

23

Second, Defendants once again repeat their suggestion that Plaintiffs’ claims

24 are precluded by 8 U.S.C. §§ 1252(b)(9) and 1252(a)(5), which require that challenges

25 to removal orders be raised through a petition for review of a final removal order in

26 the courts of appeal. Yet Defendants fail even to acknowledge this Court’s

27 observation that “[a]n immigration judge in a removal proceeding does not have the

28 power to grant or deny deferred action, or to review or reverse an agency’s decision to

12

Case 5:17-cv-02048-PSG-SHK Document 73 Filed 03/26/18 Page 18 of 21 Page ID #:2062

1 revoke it.” Class PI Order, Dkt. 61, at 26; Arreola PI Order, Dkt. 31, at 7. That fact

2 alone is decisive because, in the government’s own words, “if the issue is one that can

3 be raised in removal proceedings, and ultimately in a petition for review, then the

4 statute precludes district court review.” Mot. at 12 (emphasis added); accord Arreola

5 PI Reply, Dkt. 25, at 7. Because Plaintiffs are unable to challenge the termination of

6 their DACA in removal proceedings, §§ 1252(b)(9) and 1252(a)(5) do not preclude

7 them from raising their challenge in district court. Accord Arreola PI Reply, Dkt. 25,

8 at 6-8; Ramirez Medina, 2017 WL 5176720, at *8; Gonzalez Torres, 2017 WL

9 4340385, at *5; Colotl, 261 F. Supp. 3d at 1339-40.

10

Finally, Defendants argue once again that USCIS need not provide notice or

11 process in terminating DACA because the decision is “committed to agency discretion

12 by law.” 5 U.S.C. § 701(a)(2); see also Mot. 13-15. But again, Defendants simply

13 ignore this Court’s prior decision and the controlling Ninth Circuit cases, which rely

14 on the established proposition that review is available where “‘discretion has been

15 legally circumscribed by various memoranda.’” Class PI Order, Dkt. 61, at 23;

16 Arreola PI Order, Dkt. 31, at 4 (quoting Alcaraz v. INS, 384 F.3d 1150, 1161 (9th Cir.

17 2004)); accord Arreola PI Reply, Dkt. 25, at 9-11; Ramirez Medina, 2017 WL

18 5176720, at *8; Colotl, 261 F. Supp. 3d at 1340-41. As this Court correctly held,

19 “[h]ere, the decision to revoke DACA is governed by both the Napolitano Memo and

20 the DACA SOPs.” Class PI Order, Dkt. 61, at 23; Arreola PI Order, Dkt. 31, at 4.

21 Review is therefore available under those authorities, the APA, and the Constitution.

22 III. PLAINTIFFS HAVE STATED A CLAIM UNDER THE APA.

23

Defendants repeat, verbatim, their arguments that USCIS may automatically

24 terminate DACA on the basis of an NTA charging unlawful presence. Compare Mot.

25 19-23 with Class PI Opp., Dkt. 54, at 18-22. This Court has already rejected precisely

26 the same arguments twice. See Class PI Order, Dkt. 61, at 26-31; Arreola PI Order,

27

28

13

Case 5:17-cv-02048-PSG-SHK Document 73 Filed 03/26/18 Page 19 of 21 Page ID #:2063

1 Dkt. 31, at 8-13.6 It should do so again here for the same reasons.

2 IV. PLAINTIFFS HAVE STATED A PROCEDURAL DUE PROCESS

3

CLAIM.

4

As explained above, the Court need not reach Plaintiffs’ due process claim

5 because it may grant permanent relief—and has already granted preliminary relief—

6 on the basis of Plaintiffs’ APA claims. If the court does reach those claims, however,

7 it should reject Defendants’ arguments, which fail to address Plaintiffs’ central

8 contentions. That procedural due process argument is based on a controlling line of

9 cases holding that, even absent a claim of entitlement to an important benefit, once it

10 is conferred, recipients have a protected property interest that requires a fair process

11 before the government may take that benefit away. See Class PI Mot., Dkt. 40, at 17

12 (citing, inter alia, Bell v. Burson, 402 U.S. 535, 539 (1971)); see also Class PI Reply,

13 Dkt. 58, at 9-11; Arreola PI Mot., Dkt. 16-2, at 18-21; Arreola PI Reply, Dkt. 25, at 14 19-21.7 Thus, even though DACA is ultimately discretionary, once granted, the

15 government cannot take it away without due process.

16

The government makes no attempt to refute this principle. Instead, it cites cases

17 holding that, as a general matter, discretionary benefits do not give rise to a protected

18 property interest. See Mot. 15-18 (citing cases). But the Plaintiffs never make that

19 contention, and none of those cases involve the revocation of a discretionary benefit

20 that has already been conferred.

21

The government further argues that the DACA guidance does not give rise to a

22 protected property interest, see Mot. 16-18, but again this argument is a straw man.

23 The Plaintiffs do not argue that the DACA program itself establishes a protected

24 interest. Instead, they argue only that, having previously granted them DACA, the

25

26

6 Plaintiffs incorporate by reference their previous arguments with respect to the

27

APA claims. See Class PI Mot., Dkt. 40, at 8-16; Class PI Reply, Dkt. 58, at 4-9. 7 Plaintiffs incorporate the procedural due process arguments made in prior

28 filings by reference here.

14

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1 government may not strip them of it without a fair procedure. Class PI Mot., Dkt. 40,

2 at 16-19. Defendants’ remaining arguments likewise miss the mark. The Plaintiffs do

3 not premise their claim on a substantive “right to work in the United States,” nor have 4 they alleged a “right to DACA.” Mot. at 16-17.8

5

Finally, Defendants do not even attempt to suggest that their actions satisfy due

6 process. Indeed, they could not since—as they concede, see Class PI Opp., Dkt. 54, at

7 2-3—their policy allows them to strip Plaintiffs of DACA without any process

8 whatsoever. This is especially true given that USCIS already provides a procedure

9 whereby DACA recipients are afforded a reasoned explanation for its actions and an

10 opportunity to present arguments and evidence. See Class PI Mot., Dkt. 40, at 19. In

11 sum, the termination of Plaintiffs’ DACA and EADs in the absence of a fair process

12 violates their procedural due process rights.

13

CONCLUSION

14

For these reasons, the Court should summarily deny the motion to dismiss.

15 Dated: March 26, 2018 16 17 18

Respectfully submitted,
/s/ David Hausman David Hausman Jennifer Chang Newell

19

8 Defendants also half-heartedly attempt to suggest, again and incorrectly, that a

20 federal regulation provides for automatic termination of a DACA EAD when an NTA

21

is filed with the immigration court. Mot. 17 (citing 8 C.F.R. § 274a.14(a)(1)(ii)).)). This Court has already rejected that argument twice. Class PI Order, Dkt. 61, at 31

22 n.13; Arreola PI Order, Dkt. 31, at 11 n.2. Although the cited regulation provides for

23

termination in some cases, it also contains a specific exception stating that “this shall not preclude the authorization of employment pursuant to § 274a.12(c) of this part

24 where appropriate.” 8 C.F.R. § 274a.14(a)(1)(ii)) (emphasis added). See Alfaro-

25

Orellana v. Ilchert, 720 F. Supp. 792, 794 (N.D. Cal. 1989)1989) (recognizing that 8 C.F.R. § 274a.14(a)(1)(ii)) “creates an exception for appropriate work authorizations

26 under § 274a.12(c)).”). In any event, the Supreme Court has held that the government

27

“may not constitutionally authorize the deprivation of [a property] interest, once conferred, without appropriate procedural safeguards.” Cleveland Bd. of Educ. v.

28 Loudermill, 470 U.S. 532, 541-42 (1985).).

15

Case 5:17-cv-02048-PSG-SHK Document 73 Filed 03/26/18 Page 21 of 21 Page ID #:2065

1

Katrina L. Eiland Michael K. T. Tan

2

ACLU FOUNDATION

3

IMMIGRANTS’ RIGHTS PROJECT

4

Ahilan T. Arulanantham

5

Michael Kaufman Dae Keun Kwon

6

ACLU FOUNDATION

7

OF SOUTHERN CALIFORNIA

8

Attorneys for Plaintiffs

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 5:17-cv-02048-PSG-SHK Document 74 Filed 03/27/18 Page 1 of 7 Page ID #:2066

1

2

3/27/2018

3

CW

4

5

6

7

8

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

9

10

11

INLAND EMPIRE –

) ) Case No. 5:17-cv-2048- PSG-SHK

12 IMMIGRANT YOUTH

)

13 COLLECTIVE and JESUS

)

ALONSO ARREOLA ROBLES, ) MODIFIED CLASS DEFINITION

14 on behalf of himself and others

) AND IMPLEMENTATION

15 similarly situated,

) PROCEDURES – WITH DATES

16

Plaintiff,

) CERTAIN ADDED )

17

)

18

v.

)

)

19

)

20

KIRSTJEN NIELSEN, Secretary of )

Homeland Security, et al.,

)

21

)

22

Defendants.

Pursuant to the parties’ stipulation, this Order supersedes the Court’s February 26, 23

24 2018 Order regarding the class definition certified by the Court and the implementation

25 procedures for the preliminary injunction imposed by that Order, as well as the Court’s
26
27 March, 14, 2018 Order concerning Defendants’ compliance deadline.

28

1

Case 5:17-cv-02048-PSG-SHK Document 74 Filed 03/27/18 Page 2 of 7 Page ID #:2067

1

The Parties having agreed to the following terms to clarify and modify the class

2 definition, and to revise the implementation procedures, for good cause shown, IT IS 3
HEREBY ORDERED as follows: 4

5

1. The definition of the class certified by the Court’s February 26, 2018, Order

6

is clarified and modified accordingly:

7

8

All recipients of Deferred Action for Childhood Arrivals (“DACA”)

who, after January 19, 2017, have had or will have their DACA grant

9

and employment authorization terminated without notice or an

10

opportunity to respond, except for those DACA recipients:

11

a. Who have a conviction for a disqualifying offense as of the date of

12

termination; or, if termination occurred prior to February 26, 2018, who

13

have a conviction for a disqualifying offense as of the date DHS makes

the determination of class membership required in this Order.

14

15

b. Who departed the United States without a grant of advance parole;

16

c. Who were physically removed from the United States pursuant to

17

an order of removal, voluntary departure order, or voluntary return

agreement; 18

19

d. Who, on or after the date of this Order, maintain a nonimmigrant

20

or immigrant status;

21

e. Who, on or after the date of this Order, have a pending criminal

22

charge for a crime that would satisfy the Egregious Public Safety

(“EPS”) grounds referenced in USCIS’s DACA Standard

23

Operating Procedures (“SOPs”) and USCIS’s 2011 NTA

24

Memorandum, provided that if the charge is for a crime of violence

25

(as set forth in section IV(A)(1)(d) of the 2011 NTA Memorandum), the minimum sentence for that charge is at least 1

26

year of imprisonment;

27

28

2

Case 5:17-cv-02048-PSG-SHK Document 74 Filed 03/27/18 Page 3 of 7 Page ID #:2068

1

f. Who, on or after the date of this Order, have a pending criminal charge for a crime described in 8 U.S.C. §§ 1182(a)(3)(B)(iii), (iv)

2

or 1227(a)(4)(A)(i).

3 With respect to individuals who are described in paragraphs 1.a. through 1.f.
4

5 above, this Order is without prejudice to their ability to pursue their legal claims, if any,

6 independently of this class action, and such individuals’ claims, if any, shall not be 7
8 precluded by virtue of this class action.

9

2. The Court’s implementation procedures are modified accordingly:

10

11

a. No later than March 21, 2018, the parties shall jointly file with the Court a version of this Order that provides dates certain for all

12

requirements, deadlines, or time frames subject to this Order that are

13

calculated based on a set number of days from the date the Court

enters this Order.

14

15

b. No later than March 23, 2018, Defendants shall provide Class Counsel

with a list of all DACA recipients whose DACA grant and EAD was

16

terminated after January 19, 2017, without issuance of a NOIT. That

17

list shall include the following information for each person:

18

i. Name, Alien Number, Mailing Address, Phone

19

Number (if available);

20

ii. The date the individual’s most recent DACA grant

and EAD were granted;

21

iii. The date the individual’s most recent DACA grant

22

and EAD were set to expire;

23

iv. The date the individual’s most recent DACA grant and EAD were terminated.

24

25

c. No later than March 27, 2018, Defendants will send an agreed

class notice to all individuals whose DACA grant and EAD

26

were terminated after January 19, 2017, without advance

27

issuance of a Notice of Intent to Terminate (“NOIT”) and

provide copies of those notices to Class Counsel. 28

3

Case 5:17-cv-02048-PSG-SHK Document 74 Filed 03/27/18 Page 4 of 7 Page ID #:2069

1

d. On or before April 17, 2018:

2

i. Defendants shall identify all DACA recipients whose DACA

3

grant and EAD were terminated after January 19, 2017, without

issuance of a NOIT on or before February 26, 2018, and

4

determine if they have a conviction for a disqualifying criminal

5

offense as described in paragraph 1.a. of this Order. If the

6

individual does not have a conviction for a disqualifying criminal offense, and is otherwise a member of the class, Defendants will

7

restore the individual’s DACA grant and request production and

8

mailing of a new EAD. Defendants shall restore class members’

DACA and request EAD production and mailing on a rolling

9

basis, in weekly batches, during this term.

10

ii. If the original date of expiration of the individual’s terminated

11

DACA grant and EAD was on or before April 17, 2018,

12

Defendants will extend the individual’s reinstated DACA grant

13

and EAD for 60-days from the date of reinstatement. If the original date of expiration of the individual’s terminated DACA

14

grant and EAD was between April 18, 2018, and May 15, 2018,

15

inclusive, Defendants will extend the individual’s reinstated

DACA grant and EAD until May 15, 2018.

16

17

iii. Defendants shall provide Class Counsel with an updated list of

all DACA recipients whose DACA grant and EAD were

18

terminated after January 19, 2017, but before February 26, 2018,

19

without issuance of a NOIT. That list shall include the following

20

information for each person, which Defendants should endeavor

to update on a weekly basis:

21

22

23

24

25

26

27

28

4

Case 5:17-cv-02048-PSG-SHK Document 74 Filed 03/27/18 Page 5 of 7 Page ID #:2070

1

 Whether the individual was found to have a

disqualifying criminal conviction and, if so, what

2

conviction(s), as described in paragraph 1.a. of

3

this Order;

4

 Whether the individual was found to have departed the United States without a grant of

5

advance parole, as described in paragraph 1.b. of

6

this Order;

 Whether the individual was found to have been

7

physically removed from the United States

8

pursuant to an order of removal, voluntary

9

departure order, or voluntary return agreement, as described in paragraph 1.c. of this Order;

10

 Whether the individual was found to have

11

obtained a nonimmigrant or immigrant status, as

described in paragraph 1.d. of this Order;

12

 Whether the individual was found to have a

13

pending criminal charge for a crime that would

14

satisfy the Egregious Public Safety (“EPS”) grounds referenced in USCIS’s DACA Standard

15

Operating Procedures (“SOPs”) and USCIS’s

16

2011 NTA Memorandum, and meets the criteria

enumerated in paragraph 1.e. of this Order;

17

 Whether the individual was found to have a

18

pending criminal charge for a crime described in 8

19

U.S.C. §§ 1182(a)(3)(B)(iii), (iv) or 1227(a)(4)(A)(i), as described in paragraph 1.f. of

20

this Order.

21

 If applicable, the date the individual’s DACA

grant and EAD were restored.

22

23

For each individual identified on the list, Defendants

24

will provide Class Counsel with, on a rolling basis, in weekly batches, through the term:

25

26

 Copies of the Notices of Action and Notices of

Termination previously sent to the DACA

27

recipient notifying them of the termination of

28

DACA grant and EAD;

5

Case 5:17-cv-02048-PSG-SHK Document 74 Filed 03/27/18 Page 6 of 7 Page ID #:2071

1

 Copies of the reinstatement notices, and printouts

of the information contained on new EADs for

2

individuals whose DACA grants and EADs are

3

restored pursuant to this Order, including those

4

DACA grants and EADs that are extended pursuant to this Order.

5

6

e. All class members shall have until June 18, 2018, to submit a renewal

request under the terms of this Order. Notwithstanding whether

7

USCIS otherwise continues to adjudicate DACA requests, USCIS

8

shall adjudicate DACA requests from class members whose original

expiration dates were between September 5, 2017, and March 5, 2018,

9

inclusive, if:

10

11

i. their DACA was terminated on or before October 5, 2017; or

12

ii. they filed a renewal request on or before

13

October 5, 2017, and that request remains

pending as of the date of this Order, but whose

14

DACA was terminated prior to February 26,

15

2018.

16

To the extent USCIS continues to accept renewal

17

requests after that date, no class member shall be

18

precluded by this Order from submitting such a

request after June 18, 2018.

19

20

f. USCIS will treat new initial DACA requests submitted by class

members prior to the reinstatement of their DACA as timely

21

submitted renewal requests upon reinstatement based on this

22

Order. However, if a class member’s reinstated DACA is

23

subsequently terminated after notice and an opportunity to

respond, nothing precludes USCIS from taking into

24

consideration that subsequent termination in adjudication of the

25

renewal request, in accordance with existing USCIS DACA

policies.

26

27

g. The parties shall meet and confer to develop a procedure to permit

individuals whom Defendants determine fall within paragraphs 1.e. or

28

1.f. of this Order, to contest that determination, through Class

6

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1

Counsel, if the individual believes it to be incorrect. For individuals who are determined to be class members, the parties shall meet and

2

confer to determine how to effectuate that relief consistent with the

3

spirit of the injunction and this Order.

4

h. To facilitate paragraph g., on or before April 17, 2018, Defendants

5

shall mail all individuals excluded under paragraphs 1.e. or 1.f. a

6

notice explaining that USCIS has determined that they have a pending criminal charge that is described in paragraphs 1.e. or 1.f. of this

7

Order, and that as a result they are not a member of the class. The

8

Notice shall advise recipients that if they believe the government’s

information is incorrect, or if they disagree with the government’s

9

determination, they should contact Class Counsel on or before May

10

17, 2018. If Class Counsel agrees that an individual meets the class

11

definition, Class Counsel shall provide all relevant documents and information to Defendants on or before May 24, 2018.

12

13

i. Individuals described in paragraphs 1.e. and 1.f. of this Order whose

pending criminal charges are resolved (other than if the result is a

14

disqualifying conviction for DACA purposes) on or before June 6,

15

2018, may notify USCIS through Class Counsel that their charges

were favorably resolved, and once confirmed, USCIS will process

16

their pending DACA request as a renewal request, or otherwise allow

17

the individual to submit a DACA renewal request before June 18,

18

2018. To the extent USCIS continues to accept DACA requests after that date, no such individual shall be precluded by this Order from

19

submitting an initial DACA request after June 18, 2018.

20 IT IS SO ORDERED.
21

22

DATED: March 26, 20-18

23

________________________________ Hon. Philip S. Gutierrez

24

25

26

27

28

7

 
 Case 5:17-cv-02048-PSG-SHK Document 75 Filed 04/02/18 Page 1 of 11 Page ID #:2073

1 CHAD A. READLER

2 Assistant Attorney General

3

Civil Division WILLIAM C. PEACHEY

4 Director

5 JEFFREY S. ROBINS Assistant Director
6 United States Department of Justice

7 Civil Division

Office of Immigration Litigation 8 District Court Section

9 Washington, D.C. 20044

10 Tel.: (202) 616-1246 Fax: (202) 305-7000
11 Email: jeffrey.robins@usdoj.gov

12 JAMES J. WALKER Trial Attorney
13

14 Counsel for Defendants

15
UNITED STATES DISTRICT COURT

16

CENTRAL DISTRICT OF CALIFORNIA

17

18

INLAND EMPIRE –

) Case No. 5:17-cv-2048- PSG-SHK

19 IMMIGRANT YOUTH

)

20 21

COLLECTIVE and JESUS ALONSO ARREOLA ROBLES, on behalf of himself and others

)

) )

DEFENDANTS’ REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

22 similarly situated,

)

23

Plaintiff,

) Judge: Hon. Philip S. Gutierrez ) Courtroom: 6A

24

) Hearing: April 16, 2018

25

v.

) Time: 1:30pm

)

26 KIRSTJEN NIELSEN, Secretary of )

27

Homeland Security, et al.,

)

)

28

Defendants.

)

)

5:17-cv-2048-PSG-SHK

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1

Given the Court’s prior decisions to grant Plaintiff Arreola’s first preliminary

2 injunction, then Plaintiffs’ motions for class certification and a class wide preliminary

3 injunction, Defendants recognize that a version of some of the arguments made in this

4 motion were offered and rejected in prior filings. Plaintiffs, however, in asking this Court

5 to “summarily deny the motion,” ignore the subsequent events and new authorities that

6 give new shape to Defendants’ arguments for why this Court should grant the motion to

7 dismiss the amended complaint, or, alternatively, to dismiss Plaintiffs Arreola and Inland

8 Empire from the complaint if it is allowed to go forward. In fact, the Court has yet to

9 address any of Defendants’ arguments in the context of Defendants’ standing arguments

10 against Plaintiffs Arreola and Inland Empire.

11

Additionally, the Court has yet to decide its jurisdiction over Plaintiffs’ claims in

12 light of the recent decisions in Jennings v. Rodriguez, 138 S. Ct. 830 (2018) and 13 Castellar v. Nielsen, No. 17-CV-0491-BAS-BGS, 2018 WL 786742 (S.D. Cal. Feb. 8,

14 2018). As explained below, both cases clarify and reinforce Defendants’ arguments that 15 section 1252 bars this Court’s jurisdiction over the claims asserted here, and instead

16 channels those claims through the Petition for Review process Congress designated.

17 Defendants would be remiss in forgoing the opportunity to present the Court with these

18 new cases, particularly in light of the Parties’ changed circumstances, in the hopes of

19 persuading the Court to reach a different conclusion than it did on the facts and law as

20 they were previously understood.

21

To be clear, Defendants’ position is that Congress has spoken unequivocally on the

22 matter of when and where a claim “arising from any removal-related activity” may be

23 raised; and it is not before the administrative process has concluded and a final order of

24 removal has issued, and it is not in a district court. See Castellar, 2018 WL 786742 at

25 *15. It is Defendants’ continuing position that the issues raised by Plaintiffs here,

26 termination of their DACA as a consequence of the initiation of removal proceedings

27 against them—itself a consequence of each plaintiff’s criminal activity—falls squarely

28 into the category of “removal-related activity” that this Court may not hear, and that no

1 5:17-cv-2048-PSG-SHK

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1 court may hear until Plaintiffs have exhausted their administrative remedies through the 2 removal process.1 3 I. New Supreme Court authority supports dismissal of Plaintiffs’ claims.

4

In addition to ignoring the changed circumstances that now apply to Defendants’

5 arguments, Plaintiffs continue to rely on incomplete selections from the Ninth Circuit’s

6 holding in J.E.F.M. to assert that section 1252(b)(9)’s jurisdiction channeling provision

7 only applies after a final order of removal is issued, and that it does not bar review of

8 issues that an immigration judge has no authority to decide. See Dkt. No. 73 at 16.

9 However, recent decisions from the Supreme Court and the District Court for the

10 Southern District of California directly support Defendants’ substantive arguments that

11 sections 1252(a)(5) and (b)(9) bar this Court’s jurisdiction over Plaintiffs’ claims. See

12 Jennings v. Rodriguez, 138 S. Ct. 830 (2018); Castellar v. Nielsen, No. 17-CV-0491-

13 BAS-BGS, 2018 WL 786742 (S.D. Cal. Feb. 8, 2018).

14

In Part II of the plurality opinion in Jennings, Justice Alito (joined by Chief Justice

15 Roberts and Justice Kennedy) concluded that section 1252(b)(9) did not apply because

16 the respondents in that case were not challenging “the decision . . . to seek removal [. . .

17 or] any part of the process by which their removability will be determined.” 138 S. Ct. at

18 841. There can be no serious argument here that Plaintiffs are not challenging a part of

19 the process by which their removability will be determined. See, e.g., Dkt. No. 73 at 13

20 (“The risk of being placed in removal proceedings is particularly high for IEIYC

21 members who have had or will have contact with local law enforcement, since CBP

22 officials may place DACA recipients whom they encounter in removal proceedings—

23 even on the basis of an arrest.”) (internal citations omitted). In addition, in his

24 concurrence, Justice Thomas (joined by Justice Gorsuch) explained:

25

26
1 Defendants also maintain that the decision to initiate removal proceedings, and, to the extent the Court

27 finds a separate decision is made, the decision to terminate DACA, are both entirely discretionary and

28

barred from review in any court, pursuant to Congress’ intent under 8 U.S.C. § 1252 and longstanding and uncontroversial principles of agency discretion. See Heckler v. Chaney, 470 U.S. 821, 830 (1985).

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1

The text of [§ 1252(b)(9)] is clear. Courts generally lack jurisdiction over “all questions of law and fact,” both “constitutional” and “statutory,” that “aris[e]

2

from” an “action taken or proceeding brought to remove an alien.” If an alien

3

raises a claim arising from such an action or proceeding, courts cannot review

it unless they are reviewing “a final order” under § 1252(a)(1) or exercising

4

jurisdiction “otherwise provided” in § 1252.

5 138 S. Ct. at 853-54 (Thomas, J. concurring) (emphasis added). Thus, section 1252(b)(9)

6 does not lie feckless until a final order of removal issues, but rather acts as a channeling

7 provision throughout the removal process to “put an end to the scattershot and piecemeal

8 nature of the review process.” Aguilar v. Immigration & Customs Enf’t, 510 F.3d 1, 9-10

9 (1st Cir. 2007) (cited favorably throughout J.E.F.M., 837 F.3d 1026). Whether the Court

10 agrees that it was permissible, it is indisputable that Defendants terminated each

11 Plaintiff’s DACA based on the initiation of removal proceedings against each Plaintiff.

12 Challenges to those decisions cannot be separated from the “action taken or proceeding

13 brought to remove” them, such that section 1252(b)(9) would not bar this Court’s

14 jurisdiction. Jennings, 138 S. Ct. at 853-54; Castellar, 2018 WL 786742 at *14.

15 Furthermore, in J.E.F.M., the Ninth Circuit explicitly acknowledged that the

16 plaintiffs “are at various stages of the removal process: some are waiting to have their

17 first removal hearing, some have already had a hearing, and some have been ordered

18 removed in absentia.” 837 F.3d at 1029; see also Castellar, 2018 WL 786742 at *14

19 (“The jurisdictional channeling function of Section 1252(b)(9) is not defeated simply

20 because Plaintiffs are at a stage of the removal proceedings at which no final order of

21 removal has issued against them.”), citing J.E.F.M., 837 F.3d at 1029.

22

Additionally, the Castellar Court addressed and rejected as “selective reading” the

23 assertion that J.E.F.M. permits challenges to be raised in the district court “[w]here a

24 plaintiff ‘would have no legal avenue to obtain judicial review’ of his claims, section

25 1252(b)(9) does not bar those claims.” Castellar, 2018 WL 786742 at *15 n.6, citing

26 J.E.F.M., 837 F.3d at 1032 and Singh v. Gonzalez, 499 F.3d 969, 979–80 (9th Cir.

27

28

3 5:17-cv-2048-PSG-SHK

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1 2007);2 see Dkt. No. 73 at 18 (“Because Plaintiffs are unable to challenge the termination

2 of their DACA in removal proceedings, §§ 1252(b)(9) and 1252(a)(5) do not preclude

3 them from raising their challenge in district court.”).

4

Castellar placed the Ninth Circuit’s holding into proper context, and explained that

5 Section 1252(b)(9) did not bar district court jurisdiction in the “unique situation” of Singh

6 only because his ineffective assistance of counsel claim arose after his removal

7 proceedings had ended. Id. Thus, rather than the issue being that the immigration judge

8 could not grant the relief Singh sought, as Plaintiffs argue, the Ninth Circuit found that it

9 was literally impossible for Singh to have raised his claim in removal proceedings at all.

10 In fact, Singh denied Singh’s second ineffective assistance of counsel claim because it

11 “arose before a final order of removal entered and [] could and should have been brought

12 before the agency.” J.E.F.M., 837 F.3d at 1032, citing Singh, 499 F.3d at 974 (emphasis

13 added).

14

Importantly, J.E.F.M. also explained that the inability of the immigration judge to

15 relieve a constitutional claim is not a valid reason to ignore the jurisdiction channeling

16 functions of sections 1252(a)(5) and (b)(9). Id. at 1032-33. Castellar relied on J.E.F.M. to

17 find that, under sections 1252(a)(5) and (b)(9), “[b]eyond the[] limited and unusual

18 circumstances [of Singh and Nadarajah,]3 . . . claims arising from any removal-related

19 activity must be raised through the petition for review process.” Castellar, 2018 WL

20 786742 at *15 (emphasis added). Plaintiffs cannot show that the unusual issues in Singh

21

22

23 2 Plaintiffs in Castellar raised Fourth and Fifth Amendment and APA claims regarding the delay between

24

when they were detained and when they were first brought before an immigration judge to begin their removal proceedings. Id. at *4-6. Castellar plaintiffs raised the same three arguments raised here: (1)

25 “their claims are independent of the substantive merits of their removal proceedings;” (2) “because their

claims do not require judicial review of a final order of removal, they may assert them now”; and (3) their
26 claims “cannot be meaningfully heard in the administrative process.” Id. at *12, *14, *15. Castellar relied

27 on J.E.F.M. to reject all three claims.

28

3 Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006) (finding jurisdiction in district court to hear a habeas challenge where plaintiff had been granted asylum but remained in detention for five years).

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1 or Nadarajah apply here, and so this Court should grant Defendants’ motion to dismiss in

2 its entirety.

3 II. Standing

4

Defendants’ motion to dismiss Plaintiffs Arreola and Inland Empire is an

5 alternative argument that assumes the Court rejected Defendants’ main argument that the

6 Court lacks subject-matter jurisdiction in this matter entirely. In that context, Plaintiffs’

7 argument that it is “wholly irrelevant” that Plaintiffs Arreola and Inland Empire lack

8 standing is incorrect. Dkt. No. 73 at 8, citing Rumsfeld v. Forum for Academic &

9 Institutional Rights Inc. (“FAIR”), 547 U.S. 47, 53 n.2 (2006). In fact, the Supreme Court

10 in FAIR was only affirming the Third Circuit’s finding that it possessed subject-matter 11 jurisdiction at all. See 547 U.S. 47, 53 n.2 (“Because we also agree that FAIR has

12 standing, we similarly limit our discussion to FAIR.”). Moreover, the key reasoning on 13 which Plaintiffs appear to rely only supports standing for parties who are identically

14 positioned. See id., citing Bowsher v. Synar, 478 U.S. 714, 721 (1986), citing Sec’y of the

15 Interior v. California, 464 U.S. 312, 319 n.3 (1984) (“Since the State of California clearly

16 does have standing, we need not address the standing of the other respondents, whose

17 position here is identical to the State’s.”)

18

Here, Plaintiff Arreola presents entirely different arguments than those of the

19 certified class—arguments he lacks standing to raise on his own and which, if allowed,

20 will “waste [this Court’s] scarce judicial resources.” State of Cal., By & Through Brown

21 v. Watt, 683 F.2d 1253, 1271 (9th Cir. 1982) (emphasis added), rev'd on other grounds

22 sub nom. Sec'y of the Interior v. California, 464 U.S. 312 (1984). The class is defined as

23 individuals who have lost DACA without notice or an opportunity to respond, while

24 Plaintiff Arreola argues he may lose his DACA at some time in the future based on

25 allegations of an inadequate process that is not yet final. Dkt. No. 73 at 11-12. Similarly,

26 Plaintiff Inland Empire offers no argument to overcome its lack of organizational

27 standing.

28

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1

a. Plaintiff Arreola’s claims became moot under the original complaint, and

he thus lacks standing to assert an identical claim in an amended

2

complaint.

3

Plaintiffs incorrectly assert that the outset of the litigation is the only “relevant

4 point in time for determining standing.” Dkt. No. 73 at 6, 8. As Defendants noted in their

5 motion, when “a plaintiff files a complaint in federal court and then voluntarily amends

6 the complaint, courts look to the amended complaint to determine jurisdiction.” Dkt No.

7 55at 17, citing Rockwell Int'l Corp. v. United States, 549 U.S. 457, 473 (2007). 4 This

8 Court has previously found just the opposite, holding that “the reasoning in Rockwell did

9 not indicate that the original complaint was irrelevant for purposes of determining

10 jurisdiction; rather, it recognized that jurisdiction must be present throughout the duration

11 of the litigation, and not just at the initial filing of the Complaint.” United States ex rel.

12 Lee v. Corinthian Colleges, No. CV071984PSGMANX, 2013 WL 12114015, at *8 (C.D.

13 Cal. Mar. 15, 2013) (Gutierrez, J.), aff'd sub nom. United States v. Corinthian Colleges,

14 652 F. App’x 503 (9th Cir. 2016); Lim v. Helio, LLC, No. CV119183PSGACRX, 2012

15 WL 12884439, at *1 (C.D. Cal. Apr. 18, 2012) (Gutierrez, J.) (“On April 4, 2011, the

16 Court . . . deemed Plaintiff’s First Amended Complaint (‘FAC’) filed. Accordingly, the

17 FAC is the operative pleading.”); see also Civil Rights Educ. & Enf't Ctr. v. Hosp.

18 Properties Tr., 867 F.3d 1093, 1102 (9th Cir. 2017) (standing is determined on the

19 amended complaint, because “the proper focus in determining jurisdiction are the facts 20 existing at the time the complaint under consideration was filed”) (emphasis in original)

21 (citation omitted).

22

Plaintiffs instead select half of a quote from Friends of the Earth, Inc. v. Laidlaw

23 Envtl. Servs. (TOC), Inc. (“FOE”), 528 U.S. 167 (2000), to make the incorrect assertion

24

25 4 Plaintiffs’ argument that Rockwell concerns jurisdiction but not standing is incorrect. Standing is the

26 “irreducible constitutional minimum” necessary to assert federal court jurisdiction. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). Determining a court’s subject-matter jurisdiction necessarily

27 encompasses the question of standing. Preston v. Heckler, 734 F.2d 1359, 1363 (9th Cir. 1984) (“The

28

standing doctrine is one component of the case or controversy requirement” to establish jurisdiction under Article III.).

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1 that the Supreme Court has held that standing is established once at the start of a case and

2 then, apparently, may not be challenged throughout the litigation. Dkt. No. 73 at 9.

3 Where no amended complaint had been filed in FOE, the Supreme Court in that case had

4 no reason to discuss whether an amended complaint required new consideration of a

5 plaintiff’s standing. 528 U.S. at 189. When it did address that issue subsequently, the

6 Court found, as has the Ninth Circuit and this Court, that jurisdiction must be established

7 from the allegations in an amended complaint. Rockwell Int'l Corp., 549 U.S. at 473.

8

While the amended complaint re-alleged all of the harms Plaintiff Arreola listed in

9 the original complaint, Dkt. No. 32 at ¶¶ 78-85, it also acknowledged that Defendants

10 reinstated his DACA grant and employment authorization and issued him a Notice of

11 Intent to Terminate (“NOIT”) his DACA and work authorization, as well as a reason for

12 the decision and an opportunity to respond. Id. at 87; Dkt. No. 73 at 12. The harm of

13 losing his DACA and EAD that established his standing at the outset of this litigation

14 simply no longer exists, and, given the issuance of the NOIT, the potential for Defendants

15 to terminate his DACA without notice is too speculative and remote to establish standing.

16 Or. Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin., 860 F.3d 1228,

17 1235 (9th Cir. 2017).

18

Unless and until Defendants actually terminate Plaintiff Arreola’s DACA again, he

19 has no standing to challenge the intermediate step of Defendants issuing him a NOIT.

20 Preston v. Heckler, 734 F.2d 1359, 1363–64 (9th Cir. 1984) (“An essential element of the

21 standing requirement is that ‘the plaintiff . . . show that he personally has suffered some

22 actual or threatened injury as a result of the putatively illegal conduct of the defendant.’”)

23 (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979)).

24

Furthermore, from the time of filing the amended complaint to the present, there is

25 no final agency action that has caused Plaintiff Arreola any harm upon which to base this

26 Court’s jurisdiction under the Administrative Procedure Act (“APA”). See Ceja v.

27 Napolitano, No. EDCV1200466VAPOPX, 2012 WL 12881988, at *1 (C.D. Cal. May 15,

28 2012) (“[W]ithout a final agency action, 28 U.S.C. § 1331 and § 704 of the APA do not

7 5:17-cv-2048-PSG-SHK

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1 vest the district court with jurisdiction . . .”), citing Nippon Miniature Bearing Corp. v.

2 Weise, 230 F.3d 1131, 1137 (9th Cir. 2000).

3

For these reasons, Plaintiff Arreola should be dismissed from this matter.

4

b. Inland Empire lacks standing under both the original complaint and the

5

amended complaint.

6

Plaintiff Inland Empire continues to assert only speculative injury to its members,

7 based on the premise that Defendants have terminated the DACA of individuals who

8 have not engaged in criminal activity, which Plaintiffs have yet to establish through a

9 single example. Dkt. No. 32 at 31 (“IEIYC DACA recipients are at risk of coming into

10 contact with CBP officers and being screened for possible revocation of their DACA

11 when carrying out their day-to-day activities.”); Dkt. No. 73 at 13 (“The risk of being

12 placed in removal proceedings is particularly high for IEIYC members who have had or

13 will have contact with local law enforcement, since CBP officials may place DACA

14 recipients whom they encounter in removal proceedings—even on the basis of an

15 arrest.”) (citations omitted). The cases Plaintiffs cite to do not overcome this deficiency,

16 and largely do not even apply to Plaintiffs’ arguments.

17

First, Plaintiffs misstate the Ninth Circuit’s holding in Valle del Sol Inc. v. Whiting,

18 claiming the Court found organizational standing based on the organization’s fear that its

19 members would be arrested under a new Arizona law. Dkt. No. 73 at 14. In reality, the

20 Court found standing “[b]ecause the organizational plaintiffs have shown that their

21 missions have been frustrated and their resources diverted as a result of § 13–2929.” 732

22 F.3d 1006, 1019 (9th Cir. 2013). As Defendants pointed out in their motion and Plaintiffs

23 fail to address in their opposition, Plaintiff Inland Empire has not alleged any frustration

24 in its mission or diversion of its resources due to Defendants’ alleged DACA termination

25 practices.

26

Second, Plaintiffs’ citations to Hawaii v. Trump, 859 F.3d 741, 762 (9th Cir.),

27 vacated, 874 F.3d 1112 (9th Cir. 2017) and Georgia Latino All. for Human Rights v.

28 Governor of Georgia (“GLAHR”), 691 F.3d 1250, 1260 (11th Cir. 2012), are equally

8 5:17-cv-2048-PSG-SHK

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1 misstated. Dkt. No. 73 at 14-15. Plaintiffs in those cases relied on individual standing to

2 assert a harm, rather than organizational standing. See Hawaii, 859 F.3d at 762; GLAHR,

3 691 F.3d at 1260. Furthermore, to the extent those decisions address organizational

4 standing, those findings are based on allegations of frustration of their missions, and both

5 opinions cite to evidence offered by the organizations of diversion of their resources in an

6 effort to respond to the alleged harms. See Hawaii, 859 F.3d at 763-66; GLAHR, 691 F.3d

7 at 1259-61. Thus, neither case supports Plaintiffs’ organizational standing arguments, and

8 consequently, Inland Empire’s claims should be dismissed

9

c. Plaintiffs fail to address the Ninth Circuit and Supreme Court holdings

10

that standing cannot be established on the fear of future harm that will only arise from a plaintiff’s unlawful conduct.

11

Even if Plaintiffs Arreola and Inland Empire established more than “[a]llegations 12

of possible future injury” necessary to create standing, Or. Prescription Drug Monitoring 13

Program, 860 F.3d at 1235, they cannot overcome the fact that they have only presented 14
plaintiffs who have lost DACA due to having engaged in illegal conduct. Plaintiffs’ 15

response to Defendants’ assertion that standing cannot be based on a future harm that will 16
only result from a plaintiff’s own illegal behavior, see Def.’s Motion at 17, is to assert 17

again that the government concedes it may terminate DACA for an individual without a 18
criminal conviction. Dkt. No. 73 at 15-16. Plaintiffs miss the point. The Ninth Circuit in 19
Hodgers-Durgin v. de la Vina did not hold—and Defendants do not assert—that behavior 20
resulting in a criminal conviction is necessary to preclude Article III standing to 21
challenge a future harm. 199 F.3d 1037, 1042 (9th Cir. 1999) (“denial of Article III 22
standing in Lyons [was] based on the plaintiff's ability to avoid engaging in illegal 23
conduct.”), citing City of Los Angeles v. Lyons, 461 U.S. 95 (1983). Here, Plaintiff Inland 24
Empire argues that it has organizational standing on the basis that its members are at risk 25
of encountering an immigration enforcement officer, that officer arresting them, and then 26
placing them in removal proceedings that would cause their DACA to terminate. Dkt. No. 27
73. However, this scenario is entirely speculative and based on the exact type of “string

28

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1 of contingencies” the Ninth Circuit rejected in Hodgers-Durgin. 199 F.3d at 1042 (“In

2 Lyons, further injury would have required another stop by the police, followed by post-

3 stop behavior culminating in a chokehold.”).

4

Nor do Defendants suggest that, as Plaintiffs’ allege, individuals “should avoid

5 driving near the Mexican border in order to avoid another stop by the Border Police.”

6 Dkt. No. 73 at 16, citing 199 F.3d at 1041 (finding “untenable” the suggestion that an

7 individual avoid engaging in “entirely innocent conduct” to avoid a future harm).

8 Ultimately, Plaintiffs fail to address the fact that they have failed to identify one named or

9 putative class member who lost DACA without having first engaged in illegal conduct.

10 Thus, Plaintiff Inland Empire’s fear of speculative future harm to their members, based

11 only on proximity to Border Patrol agents, lacks the imminence or certainty required for

12 Article III standing, and it should be dismissed as a party.

13

14 DATED: April 2, 2018 15 16 17

Respectfully Submitted,
CHAD A. READLER Acting Assistant Attorney General WILLIAM C. PEACHEY Director

18

/s/ Jeffrey S. Robins

JEFFREY S. ROBINS

19

Assistant Director

20

United States Department of Justice

21

Civil Division

Office of Immigration Litigation

22

District Court Section

23

Washington, D.C. 20044

Tel.: (202) 616-1246

24

Fax: (202) 305-7000

25

Email: jeffrey.robins@usdoj.gov

26

JAMES J. WALKER

27

Trial Attorney

28 Counsel for Defendants

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 Case 5:17-cv-02048-PSG-SHK Document 79 Filed 04/19/18 Page 1 of 31 Page ID #:21#4539
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

Present: The Honorable Philip S. Gutierrez, United States District Judge

Wendy Hernandez Deputy Clerk

Not Reported Court Reporter

Attorneys Present for Plaintiff(s):

Attorneys Present for Defendant(s):

Not Present

Not Present

Proceedings (In Chambers): Order DENYING Defendants’ motion to dismiss

Before the Court is a motion to dismiss filed by Defendants Kirstjen Nielsen, James McCament, Mark J. Hazuda, Susan M. Curda, Thomas D. Homan, David Marin, and Kevin K. McAleenan (“Defendants”). See Dkt. # 59 (“Mot.”). Plaintiffs Inland Empire – Immigrant Youth Collective, Jesús Alonso Arreola Robles, José Eduardo Gil Robles, and Ronan Carlos De Souza Moreira (“Plaintiffs”) oppose the motion, see Dkt. # 73 (“Opp.”), and Defendants replied, see Dkt. # 75 (“Reply”). A hearing in this matter was held on April 16, 2018. Having considered the moving papers and oral arguments, the Court DENIES Defendants’ motion.

I. Background

The Court previously recounted the factual background of the Deferred Action for Childhood Arrivals (“DACA”) program in general and this action in particular in its order granting Plaintiff Arreola’s motion for a preliminary injunction, see Dkt. # 21 (“Arreola Order”), at 1–3, and its order certifying a nationwide class and issuing a classwide preliminary injunction, see Dkt. # 61 (“Class Order”), at 1–7. It will now relate only those facts germane to Defendants’ motion, cognizant that “[g]enerally, the scope of review on a motion to dismiss for failure to state a claim is limited to the contents of the complaint.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006).

A. Factual History

i. The DACA Program

Plaintiffs allege that “federal immigration authorities have targeted numerous DACA recipients and unlawfully revoked the grants of deferred action and work permits they have received even though these individuals have abided by all the program rules and have not engaged in any conduct that would disqualify them from the program.” See First Amended

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Case No. EDCV 17-2048 PSG (SHKx)

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Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

Complaint, Dkt. # 32 (“FAC”), ¶ 1. Under the DACA program, which was established pursuant to a 2012 memorandum (“the Napolitano Memo”) issued by Secretary Janet Napolitano of the Department of Homeland Security (“DHS”), “individuals who were brought to the United States as children and meet certain specific criteria may request deferred action for a renewable period of two years.” Id. ¶ 26. Under DACA, young immigrants who entered the United States as children and meet specified educational and residency requirements, and who pass extensive criminal background checks, are eligible to receive deferred action. Id. ¶¶ 28, 31; see also Declaration of Dae Keun Kwon, Dkt. # 16-4 (“Kwon Decl.”), ¶ 10, Ex. 9 (“Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”) at 1–2 (“Napolitano Memo”).1 A necessary predicate for DACA eligibility is that an individual must lack a lawful immigration status. FAC ¶ 29; see also Kwon Decl. ¶ 21, Ex. 20 (“National Standard Operating Procedures (SOP): Deferred Action for Childhood Arrivals (DACA)”) at 44 (“DACA SOP”).2 In addition, DACA recipients cannot have been convicted of a felony, a significant misdemeanor, or three or more other misdemeanors. See Napolitano Memo at 1. DHS’s DACA Standard Operating Procedures (“the DACA SOP”) set forth the procedures that U.S. Citizenship and Immigration Services (“USCIS”) must follow in both granting and terminating DACA. See DACA SOP at 16; see also Colotl v. Kelly, 261 F. Supp. 3d 1328, 1334 (N.D. Ga. 2017) (“The SOP states that it is applicable to all personnel performing adjudicative functions and the procedures to be followed are not discretionary.”).

Deferred action under DACA is granted to qualifying individuals for a period of two years, subject to renewal. FAC ¶ 26; Napolitano Memo at 2–3. In addition to submitting documentation relating to the various DACA criteria, applicants also submit a Form I-765 Application for Employment Authorization; if work authorization is granted, DACA recipients are issued federal employment authorization documents (“EADs”) and can apply for Social Security Numbers and other benefits, such as driver’s licenses and unemployment insurance. FAC ¶¶ 31–32, 35.

Plaintiffs assert that

1 The Napolitano Memo is incorporated by reference into Plaintiffs’ complaint, see FAC ¶ 26 n.

6, and can thus be considered on a motion to dismiss. See In re NVIDIA Corp. Sec. Litig., 768

F.3d 1046, 1051 (9th Cir. 2014) (noting that a court may utilize “attached exhibits, documents

incorporated by reference, and matters properly subject to judicial notice”); Marder, 450 F.3d at

448 (“A court may consider evidence on which the complaint ‘necessarily relies’ if: (1) the

complaint refers to the document; (2) the document is central to the plaintiff’s claim; and (3) no

party questions the authenticity of the copy attached to the 12(b)(6) motion.”).

2 The DACA Standard Operating Procedures are also incorporated by reference into the

complaint. See FAC ¶ 80.

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Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

[a] decision to grant or deny a DACA application or renewal is separate and independent from any removal proceedings in immigration court. A noncitizen who is in removal proceedings can apply for DACA separately and simultaneously. If that application is granted, the removal proceedings continue unless the immigration judge closes or terminates the proceedings. Further, an immigration judge has no power to grant or deny DACA, or to review or reverse USCIS’ decision to deny DACA.

Id. ¶ 34 (citing Napolitano Memo at 2).

ii. Plaintiff Arreola

Plaintiff Arreola was born in Mexico and has lived in the United States since the age of one, when his parents entered the United States without being inspected at a border crossing. FAC ¶ 45. His parents have since obtained lawful permanent resident statuses, and his three younger sisters, all of whom were born in the United States, are U.S. citizens. Id. ¶¶ 47, 49–50. Arreola has received deferred action through DACA three times—in 2012, 2014, and 2016. Id. ¶¶ 51–53. This final grant was set to be valid until August 19, 2018. Id. ¶ 54. Using the accompanying EAD, Plaintiff worked two jobs, as a dishwasher and then a cook at the Chateau Marmont in West Hollywood and as a driver for Uber and Lyft. Id. ¶ 55. He shared the earnings with his family and paid half the rent for their home. Id. ¶ 56. Plaintiffs assert that Arreola “has never been charged with or convicted of any crime.” Id. ¶ 58.

In February 2017, Plaintiffs claim that a friend asked Arreola to drive his cousin from the Los Angeles area to the San Diego area, to pick up the friend’s uncle and another cousin and bring them back to Los Angeles—a task for which Arreola would be paid $600. Id. ¶¶ 59–60. Arreola accepted, and while he and his customer were near San Diego, the latter was arrested by an agent of the U.S. Customs and Border Patrol (“CBP”). Id. ¶¶ 61–63. Although Arreola claims that he informed the CBP agent of his DACA status, he was also arrested on suspicion of aiding in the smuggling of undocumented immigrants. Id. ¶ 64. CBP detained Arreola and issued him a Notice to Appear (“NTA”), initiating removal proceedings and charging him as removable due to his presence in the United States without admission under the Immigration and Nationality Act (“INA”). Id. ¶¶ 66–70. Plaintiffs assert that Arreola was not, however, charged with any crime. Id. ¶ 71. On March 2, 2017, Arreola received a bond hearing before an immigration judge and was released from immigration detention the following day. Id. ¶¶ 73–77. Shortly thereafter, on March 6, Arreola received a Notice of Action from USCIS notifying him that his DACA and EAD were “terminated automatically as of the date [his NTA] was issued.” Id. ¶ 78. Plaintiffs claim that Arreola was not provided with prior notice of his DACA termination, a reasoned explanation for the decision, or an opportunity to respond to the

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Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

Notice of Action or otherwise contest the decision. Id. ¶¶ 79–80. Subsequent efforts by Plaintiff to seek redress from USCIS were unsuccessful. Id. ¶¶ 81–82.

iii. Plaintiff Gil

Plaintiff Gil has lived in the United States since 1998 when, at the age of five, he entered the country without inspection at a border crossing. Id. ¶ 90. He eventually settled in Minnesota and graduated from high school in the Minneapolis area, and has five younger siblings, all of whom were born in the United States and are U.S. citizens. Id. ¶ 91. Gil first applied for DACA in 2015; it was granted in August of that year and was valid until August 2017. Id. ¶¶ 95–96. In April 2017, he applied for DACA renewal, which was approved and valid until August 13, 2019. Id. ¶ 97. Using the work authorization that accompanies DACA, Gil first worked as a baker and then began employment with a logistics company. Id. ¶¶ 98–99. He also obtained a Social Security Number and a driver’s license. Id. ¶ 100.

Plaintiffs assert that Gil was arrested on September 20, 2017 and charged with the misdemeanor traffic offense of driving on a cancelled license, which is still pending. Id. ¶ 101. While in ICE detention, Gil received a Notice to Appear, which charged him with being removable because he was present in the United States without admission. Id. ¶ 103. Plaintiffs note that “ICE put Mr. Gil in deportation proceedings even though Mr. Gil had been granted a two-year DACA renewal just two months before, and a minor traffic offense, like driving on a cancelled license, did not disqualify him from DACA.” Id. After being released from detention on November 28, 2017, Gil learned that he had received another Notice of Action that terminated his DACA and EAD “as of the date [his] NTA was issued.” Id. ¶¶ 107, 109. Plaintiffs assert that no additional notice or explanation was provided, and that Gil was not provided a chance to respond. Id. ¶ 110.

iv. Plaintiff Moreira

Plaintiff Moreira was born in Brazil and entered the United States in 2006, along with his two brothers and mother, on a visitor’s visa. Id. ¶ 113. His mother is a Legal Permanent Resident and his older brother is a U.S. citizen. Id. ¶ 117. Moreira attended public schools in Marietta, Georgia and graduated from high school in 2012. Id. ¶ 114. He first applied for DACA in 2013, and applied for and received renewals in 2015 and 2017. Id. ¶ 119. In August 2014, after leaving college due to his finances and working several temporary jobs, Moreira began his employment at a flooring company, eventually becoming a manager. Id. ¶¶ 121–22. He also received a Social Security Number and a driver’s license. Id. ¶ 123.

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Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

On November 2, 2017, Plaintiffs claim that Moreira was charged with the misdemeanor of possession of an altered identification document. Id. ¶¶ 124–25. He subsequently spent a month in ICE detention. Id. ¶ 128. During this time, USCIS sent him a Notice of Action terminating his DACA and work permit “automatically as of the date [his] NTA was issued” and stating that an “appeal or motion to reopen/reconsider this notice of action may not be filed.” Id. ¶ 129. Plaintiffs again assert that Moreira was provided no prior notice, no additional explanation, and no opportunity to respond. Id. ¶ 130.

v. Plaintiff Inland Empire – Immigrant Youth Collective

Plaintiff Inland Empire – Immigrant Youth Collective (“IEIYC”) is “a grassroots, immigrant youth-led organization located in Ontario, California. IEIYC serves the immigrant community in the Inland Empire region, which encompasses Riverside and San Bernardino Counties.” Id. ¶ 132. Plaintiffs state that IEIYC’s mission is

to advocate for the needs of the undocumented immigrant community in the Inland Empire, including equal access to higher education for undocumented youth, and to achieve justice for immigrant communities by empowering those most affected by immigration policy. Since 2010, IEIYC has focused its efforts on creating a safe space for undocumented youth to share resources; organizing other youth to educate and mobilize their peers; and advocating for regional, state, and federal policies that benefit immigrant communities, including DACA recipients.

Id. Since 2012, IEIYC has coordinated DACA workshops through which “5,000 individuals [] received immigration consultation and assistance with their DACA applications,” and counts “[a]t least 18” DACA recipients among its members. Id. ¶¶ 133, 135. Accordingly, Plaintiffs allege that “Defendants’ unlawful termination policies and practices are likely to harm IEIYC DACA recipients” because they “live, work, attend school, and carry out IEIYC work throughout the Inland Empire, where there is a significant CBP presence.” Id. ¶ 135.

B. Procedural History

Plaintiffs IEIYC and Arreola originally filed their class action complaint on October 5, 2017. See Dkt. # 1. The following month, on November 20, 2017, the Court granted Arreola’s motion for a preliminary injunction, enjoining USCIS’s decision to terminate his DACA. See Arreola Order at 15–16. Subsequently, Plaintiffs filed a first amended complaint (“FAC”) on December 21, 2017, which included Plaintiffs Gil and Moreira.

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Case No. EDCV 17-2048 PSG (SHKx)

Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

In their FAC, Plaintiffs assert that “Defendants have engaged in a widespread practice of unlawfully revoking individuals’ DACA grants and work permits, apparently based on unsubstantiated suspicions of criminal activity or minor criminal history, even though these individuals have not violated the terms of the program and continue to be eligible for it.” FAC ¶ 137. They identify “three systemic practices” that constitute this allegedly “unlawful termination” of DACA grants. Id. ¶ 157. First, that “Defendants have a practice of revoking DACA grants without providing notice, a reasoned explanation, or an opportunity to be heard prior to revocation, and without providing a process for reinstatement where the revocation is in error,” which represents an impermissible “reversal of the agency’s position”; second, that “Defendants have engaged in a widespread practice of automatically terminating DACA grants and work permits of individuals who remain eligible for DACA based on the filing of a Notice to Appear by immigration authorities,” which is not permitted by controlling regulations and memoranda; and third, that “Defendants have targeted DACA recipients for revocation, even though they have committed no disqualifying conduct.” Id. ¶¶ 158–60. They argue that “Defendants’ failure to provide DACA recipients with notice, a reasoned explanation, and an opportunity to be heard prior to revocation, as well as a process for reinstatement where the revocation is in error, violates the Due Process Clause and the rules governing the DACA program, and is arbitrary and capricious and contrary to law in violation of the” Administrative Procedure Act (“APA”). Id. ¶ 164. They also contend that “Defendants’ practice of automatically terminating DACA when immigration authorities file a Notice to Appear—including based solely on presence without admission to the United States or overstaying a visa—is arbitrary and capricious and contrary to law in violation of the APA.” Id. ¶ 165.

Plaintiffs assert two causes of action: violation of the APA, id. ¶¶ 180–85, and violation of the due process clause of the Fifth Amendment to the U.S. Constitution, id. ¶¶ 186–88.

On February 26, 2018, the Court issued an order in which it certified a nationwide class of DACA recipients “who, after January 19, 2017, have had or will have their DACA grant and employment authorization revoked without notice or an opportunity to respond, even though they have not been convicted of a disqualifying criminal offense.” Class Order at 6, 21. The Court also issued a preliminary injunction that enjoined Defendants from terminating DACA grants “absent a fair procedure that complies with” the DACA SOP and the Napolitano Memo. Id. at 34–37.

Defendants filed this motion to dismiss on February 14, 2018, arguing that Plaintiffs IEIYC and Arreola lack standing; that this Court lacks subject matter jurisdiction pursuant to the APA and INA; and that Plaintiffs have failed to state claims under the APA and the due process clause. See generally Mot.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

II. Legal Standard
A. Rule 12(b)(1)
Federal courts have limited jurisdiction and therefore only possess power authorized by Article III of the United States Constitution and statutes enacted by Congress pursuant thereto. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Thus, federal courts cannot consider claims for which they lack subject matter jurisdiction. See Wang ex rel. United States v. FMC Corp., 975 F.2d 1412, 1415 (9th Cir. 1992).
Federal Rule of Civil Procedure 12(b)(1) provides for a party, by motion, to assert the defense of “lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). This defense may be raised at any time, and the Court is obligated to address the issue sua sponte. See Fed. R. Civ. P. 12(h)(1) (providing for waiver of certain defenses but excluding lack of subject matter jurisdiction); Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 571 (2004) (“Challenges to subject-matter jurisdiction can of course be raised at any time prior to final judgment.”); Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 894 (9th Cir. 2011) (“The Court is obligated to determine sua sponte whether it has subject matter jurisdiction.”). The plaintiff bears the burden of establishing that subject matter jurisdiction exists. See United States v. Orr Water Ditch Co., 600 F.3d 1152, 1157 (9th Cir. 2010). If the Court finds that it lacks subject matter jurisdiction at any time, it must dismiss the action. See Fed. R. Civ. P. 12(h)(3).
Furthermore, the question of standing is an “essential and unchanging part of the case-orcontroversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Standing is not subject to waiver and therefore must be considered by the court regardless of whether or not it is raised by the parties. See United States v. Hays, 515 U.S 737, 742 (1995). For each claim and each form of relief, the burden lies on the plaintiff to establish standing. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006); Hays, 515 U.S. at 743 (noting that the burden is on the party seeking exercise of jurisdiction to “clearly . . . allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute”). To establish standing, a party must demonstrate an “invasion of a legally protected interest” that is “concrete and particularized,” “actual and imminent,” and that is “fairly traceable to the challenged action” and “redressable by a favorable ruling.” Arizona State Leg. v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2663 (2015).
B. Rule 12(b)(6)

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Case No. EDCV 17-2048 PSG (SHKx)

Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

To survive a motion to dismiss under Rule 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In assessing the adequacy of the complaint, the court must accept all pleaded facts as true and construe them in the light most favorable to the plaintiff. See Turner v. City & Cty. of S.F., 788 F.3d 1206, 1210 (9th Cir. 2015); Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). The court then determines whether the complaint “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Accordingly, “for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks omitted).

III. Discussion

A. Standing

Defendants argue that both Plaintiff IEIYC and Plaintiff Arreola lack standing to bring this action. See Mot. 6:4–8:15.

The Court first notes that it need not consider these standing arguments at this time. Defendants do not dispute, and the Court sees no reason to question, that Plaintiffs Gil and Moreira have standing. Gil and Moreira experienced revocation of their DACA statuses, allegedly without proper notice and procedure and therefore in violation of the APA and due process clause, which is the basis of Plaintiffs’ action. Their injuries are therefore “fairly traceable to the challenged action” and “redressable by a favorable ruling.” Arizona State Leg., 135 S. Ct. at 2663. “Because [these] individual plaintiffs have standing, we need not consider whether the [other plaintiffs] ha[ve] standing.” Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1086 (9th Cir. 2003); see also Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 52 n. 2 (2006) (“FAIR”) (“[T]he presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.”); Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 912 (9th Cir. 2004) (“As our jurisdiction and our duty to answer the questions raised here would be unaffected by the resolution of Idaho’s challenge to Planned Parenthood’s standing, we decline to decide the issue.”). Because Defendants do not dispute that Plaintiffs Gil and Moreira have standing, and because the Court concludes that they do, the standing requirement is therefore satisfied and whether or not Plaintiffs Arreola and IEIYC have standing need not be resolved at this time.

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Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

However, the Court will nevertheless engage the standing issues on the merits. The standing of Plaintiffs IEIYC and Arreola might need to be established at some point prior to entry of final judgment. See Wasden, 376 F.3d at 918 n. 6 (citing Fed. R. Civ. P 65(d)) (“[O]n remand, when the district court enters the appropriate injunctive relief against enforcement of the statute, it may need to decide whether Planned Parenthood is a proper plaintiff. Only a proper party to an action can enforce an injunction that results from a final judgment.”). In addition, the line of precedent upon which the Supreme Court relied in FAIR suggests, albeit elliptically, that the standing of other parties need not be considered only if their positions are identical to the plaintiffs who have standing. See FAIR, 547 U.S. at 52 n. 2 (citing Bowsher v. Synar, 478 U.S. 714, 721 (1986)); Bowsher, 478 U.S. at 721 (citing Secretary of Interior v. California, 464 U.S. 312, 319 n. 3 (1984)); California, 464 U.S. at 319 n. 3 (“Since the State of California clearly does have standing, we need not address the standing of the other respondents, whose position here is identical to the State’s.”) (emphasis added). Given these considerations, the Court concludes that it is prudent to determine whether Plaintiffs IEIYC and Arreola have standing at this time.

i. Plaintiff IEIYC

Defendants contend that IEIYC “lacks standing on its own” as well as “standing on behalf of its members.” Mot. 6:5–6.

“An organization suing on its own behalf can establish an injury when it suffered both a diversion of its resources and a frustration of its mission.” La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010). Although the Court determines that Defendants’ alleged misconduct would frustrate IEIYC’s mission of assisting its members with the DACA process, see FAC ¶¶ 132–33, at no point does the organization plead that this misconduct led to a diversion of its resources. Absent clear indication that IEIYC has suffered both a frustration of its mission and a diversion of its resources, the Court agrees that it has not established standing on its own behalf.

Instead, Plaintiffs argue that “IEIYC clearly has standing to sue on behalf of its members, who reasonably feared, at the outset of this litigation, that their DACA would be unlawfully terminated as a result of the policy that this Court has enjoined.” Opp. 7:13–15. To establish organizational standing on the behalf of its members, IEIYC must demonstrate that “its members would have standing to sue on their own behalf, the interests at issue are ‘germane’ to [its] mission, and neither the substantive claim nor the remedy sought necessitates the participation of any individual member of [IEIYC].” Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 861 (9th Cir. 2005) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 169 (2000)). Each of these requirements will be considered in turn.

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Case No. EDCV 17-2048 PSG (SHKx)

Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

a. Members’ Standing

As to the first requirement—that IEIYC’s members would themselves have standing—Plaintiffs argue that the members “have standing because they plainly face imminent injury: this case is about a widespread practice of unlawful DACA terminations that the government has explicitly acknowledged and that IEIYC members may be subjected to at any time.” Opp. 7:22–25. In short, Plaintiffs argue that IEIYC’s members can assert claims based on speculative, future harm; unlike Arreola, Gil, and Moreira, who have had their DACA grants revoked in alleged violation of the APA and due process clause, there is no indication that any of IEIYC’s members have actually experienced similar revocations. Plaintiffs identify two components of this “imminent” harm. The first is Defendants’ “admitted . . . practice of automatically terminating DACA based solely on the issuance of a Notice to Appear,” FAC ¶ 156, as well as the allegedly systematic targeting of undocumented individuals in general and DACA recipients in particular. See id. ¶ 140 (“In June 2017, Defendant Homan said, ‘If you’re in this country illegally, and you committed a crime by entering this country, you should be uncomfortable . . . . You should look over your shoulder.’”); id. ¶ 141 (“In August 2017, ICE spokeswoman Sarah Rodriguez confirmed that ‘ICE does not exempt classes or categories of removable aliens from potential enforcement. All of those in violation of the immigration laws may be subject to immigration arrest, detention and, if found removable by final order, removal from the United States.’”); id. ¶ 142 (“In September 2017, the former Acting Secretary of DHS, Elaine Duke, reportedly stated that she has never seen DHS guidance telling DACA applicants that their information would not be used for immigration enforcement purposes.”). The second component is more specific to IEIYC and its members: that they are “particularly likely to be subjected to USCIS’s policy of unlawful terminations” because of the prevalence of CBP activity in the Inland Empire. Opp. 8:12–14 (emphasis in original); see also FAC ¶ 135 (“IEIYC DACA recipients live, work, attend school, and carry out IEIYC work throughout the Inland Empire, where there is a significant CBP presence. For example, there are three CBP substations in Riverside County, located in Murrieta, Temecula, and Indio, and a new Border Patrol complex is under construction in the Moreno Valley of Riverside County.”).

Plaintiffs suggest that “[t]his evidence of a systematic practice” and the resulting fear it instills in IEIYC members is sufficient to create standing. The Court agrees. Although the Ninth Circuit, following the lead of the Supreme Court, has emphasized that “threatened injury must be certainly impending to constitute injury in fact, and . . . [a]llegations of possible future injury are not sufficient” to convey standing, Oregon Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin., 860 F.3d 1228, 1235 (9th Cir. 2017) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)) (alterations and emphases in original), it is also “wellestablished that, although a plaintiff ‘must demonstrate a realistic danger of sustaining a direct

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Case No. EDCV 17-2048 PSG (SHKx)

Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

injury as a result of a statute’s operation or enforcement,’ a plaintiff ‘does not have to await the consummation of threatened injury to obtain preventive relief.’” Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1015 (9th Cir. 2013) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)); see also Arizona Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) (“[I]t is sufficient for standing purposes that the plaintiff intends to engage in a course of conduct arguably affected with a constitutional interest and that there is a credible threat that the challenged provision will be invoked against the plaintiff.”) (internal quotation marks omitted). The Ninth Circuit’s decision in Valle del Sol is instructive. There, a pastor who provided transportation and shelter to members of her congregation, including those who were unauthorized aliens, feared prosecution under an Arizona law that made it unlawful to transport and harbor illegal aliens. See Valle del Sol, 732 F.3d at 1013–15. She therefore alleged that she feared prosecution under the Arizona law, and the district court concluded that her “allegations are sufficient to demonstrate a reasonable likelihood that [the law] could be enforced against her.” Id. at 1015. The Ninth Circuit agreed:

Santiago has established a credible threat of prosecution under this statute, which she challenges on constitutional grounds. She alleges that she provides, and plans to continue to provide, shelter and transportation to her congregants, most of whom are unauthorized aliens, on a daily basis. . . . Because the injury alleged—a credible threat of prosecution under [the Arizona law]—is clearly traceable to [the Arizona law], and can be redressed through an injunction enjoining enforcement of that provision, Santiago has standing to challenge it.

Id. at 1015–16. Here, similarly, Plaintiffs have alleged that Defendants have a practice of unlawfully terminating DACA grants in violation of the APA and due process clause. Their alleged injury—a credible threat of unlawful revocation—is clearly traceable to Defendants’ practices that are challenged in this suit, and can be redressed through an injunction enjoining the allegedly unlawful conduct. Therefore, the Court concludes that IEIYC members have sufficiently pleaded a credible fear that establishes standing to challenge Defendants’ actions. See Hawaii v. Trump, 859 F.3d 741, 762 (9th Cir. 2017), vacated, 874 F.3d 1112 (9th Cir. 2017) (finding that a plaintiff had standing where he “understandably and reasonably fear[ed]” enforcement of travel ban); Georgia Latino All. for Human Rights v. Governor of Ga., 691 F.3d 1250, 1258–59 (11th Cir. 2012) (finding standing where plaintiffs faced a “credible threat” of prosecution and detention). The first standing requirement is thus satisfied.3

3 Defendants suggest that Valle del Sol, Hawaii, and Georgia Latino Alliance are all inapposite

because “to the extent those decisions address organizational standing, those findings are based

on allegations of frustration of their missions, and both opinions cite to evidence offered by the

organizations of diversion of their resources in an effort to respond to the alleged harms.” Reply

9:3–7. It is true that each of these cases also featured an organizational plaintiff that itself had

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Case No. EDCV 17-2048 PSG (SHKx)

Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

Alternatively, Defendants contend that IEIYC members do not have standing because “a plaintiff may not assert standing based on future harm that would only occur if the plaintiff first engaged in unlawful behavior.” Mot. 7:1–3. It is true that the automatic revocation of Arreola’s, Gil’s, and Moreira’s DACA grants were preceded by an independent encounter with authorities. See FAC ¶¶ 59–77, 101–09, 124–27. It is also true that the Supreme Court has determined that standing does not exist where the risk of future injury hinges on hypothetical contingencies. See City of L.A. v. Lyons, 461 U.S. 95, 106 (1983); Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1041–42 (9th Cir. 1999) (characterizing Lyons as precluding standing where there is a “string of contingencies necessary to produce an injury”). However, the Court agrees with Plaintiffs that Defendants’ argument “assumes away the central allegations in this case.” Opp. 10:25. Plaintiffs allege that Defendants have a practice of terminating DACA grants as to individuals who lack disqualifying criminal convictions, which includes those like Arreola, Gil, and Moreira, who were arrested and charged with criminal acts, as well as those who were not. Plaintiffs do not allege that only DACA recipients who are arrested or otherwise interact with law enforcement experience automatic termination, which would make this cause analogous to Lyons. Instead, Plaintiffs allege that any DACA recipient might experience unlawful revocation, and so this case is comparable to Hodgers-Durgin. There, the Ninth Circuit determined that plaintiffs had standing to challenge allegedly unlawful Border Patrol stops because the case was “notably different from Lyons in that plaintiffs did nothing illegal to prompt the stops by the Border Patrol.” Hodgers-Durgin, 199 F.3d at 1041; see also id. (“Given this interpretation of Lyons by the Supreme Court, it is by no means certain that plaintiffs in this case have failed to assert a cognizable injury under Article III. Unlike in Lyons, in this case it is uncontested that both plaintiffs engaged in entirely innocent conduct, and there is no tenable argument that plaintiffs should avoid driving near the Mexican border in order to avoid another stop by the Border Police.”). Similarly, Plaintiffs here allege that even DACA recipients who are engaged in entirely innocent conduct may nevertheless be subjected to unlawful revocation. Therefore, the future injury alleged by IEIYC members requires neither engagement in illegal conduct nor a string of contingencies necessary to produce the harm.

b. Germaneness to Mission

As to the second requirement for organizational standing—that “the interests at stake are germane to the organization’s purpose,” Friends of the Earth, 528 U.S. at 181—Defendants do not dispute, and the Court concludes, that the claims in this case are germane to IEIYC’s mission

standing because it suffered a diversion of its resources and a frustration of its mission. See

Valle del Sol, 732 F.3d at 1018–19; Hawaii, 859 F.3d at 763–66; Georgia Latino All., 691 F.3d

at 1259–60. However, IEIYC is not asserting organizational standing itself, but is instead

asserting organizational standing on behalf of its members. Therefore, because each of these

decisions discussed standing for individuals like IEIYC members, they are nonetheless relevant.

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Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

of “advocat[ing] for the needs of the undocumented immigrant community in the Inland Empire.” FAC ¶ 132. This second requirement is therefore satisfied.

c. Participation of Individual Members

Lastly, “neither the claim[s] asserted nor the relief requested [can] require[] the participation of individual members” of IEIYC. Friends of the Earth, 528 U.S. at 181.

Defendants suggest that this requirement is not satisfied here because of “the very factspecific inquiry necessary to determine why [a member] lost his or her DACA, and whether he or she would be entitled to additional process before such termination,” which would require the member’s participation in the lawsuit. Mot. 6:21–24. However, the Court previously addressed these concerns when it certified the nationwide class in this action, concluding that “this is not a case where rigorous, individualized inquiries are necessary.” Class Order at 20. That some individual determinations might be required to determine whether a given IEIYC member is a member of the certified class does not preclude standing. See International Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 288 (1986) (“[T]hough the unique facts of each UAW member’s claim will have to be considered by the proper state authorities before any member will be able to receive the benefits allegedly due him, the UAW can litigate this case without the participation of those individual claimants and still ensure that the remedy, if granted, will inure to the benefit of those members of the association actually injured.”) (internal quotation marks omitted).

Because the Court agrees with Plaintiffs that this action does not rely on the participation of individual IEIYC members, the third requirement is satisfied, and therefore IEIYC has standing to bring this case on behalf of its members.

ii. Plaintiff Arreola

Defendants also contend that “[b]ecause Plaintiff Arreola’s DACA and EAD were reinstated on November 22, 2017, pursuant to this Court’s Order, and he subsequently filed an amended complaint on December 21, 2017, the grounds he asserted for standing in his original complaint are no longer before this Court, and he has failed to establish any injury in the amended complaint ripe for this Court’s adjudication.” Mot. 7:1–14.

This argument uncovers a curious issue within standing doctrine. On one hand, as Defendants correctly note, standing is a jurisdictional issue, see Lujan, 504 U.S. at 559–60, and the Supreme Court has held that “when a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine

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Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

jurisdiction.” Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473–74 (2007); see also Civil Rights Educ. & Enf’t Ctr. v. Hospitality Props. Tr., 867 F.3d 1093, 1102 (9th Cir. 2017) (“[T]he proper focus in determining jurisdiction are the facts existing at the time the complaint under consideration was filed.”) (emphasis in original). From this standpoint, Defendants contend that Arreola lacks standing. The FAC indicates that “Defendants reinstated [his] DACA grant and employment authorization” pursuant to the Court’s preliminary injunction. FAC ¶¶ 86–87. Therefore, Defendants conclude, he no longer has an injury “fairly traceable to the challenged action” and “redressable by a favorable ruling,” Arizona State Leg., 135 S. Ct. at 2663, because his new DACA grant has not been terminated. Under this analysis, Arreola would no longer have standing to challenge the revocation of his DACA grant based on the facts pleaded in the FAC.

The Court notes an immediate problem with this logic and Defendants’ position: if standing needed to be reassessed with the filing of every pleading, then a Court would lose jurisdiction over a case whenever a complaint is filed following the issuance of a preliminary injunction, because presumably then the justiciable controversy would have been (temporarily) redressed. Final injunctive relief would therefore be impossible in cases, like this, where preliminary relief is granted before an amended complaint is filed. It is likely for this reason that, despite Rockwell’s dictates, courts have determined that “Article III standing is evaluated by considering the facts as they existed at the time of the commencement of the action,” even in a case where defendants “challenge [a plaintiff’s] standing, based on the facts as they exist as of the filing of” an amended complaint. McFalls v. Purdue, No. 3:16-cv-2116-SI, 2018 WL 785866, at *8 (D. Or. Feb. 8, 2018); see also Northwest Envtl. Def. Ctr. v. U.S. Army Corps of Eng’rs, No. 3:10-cv-01129-AC, 2013 WL 1294647, at *7 (D. Or. Mar. 27, 2013) (rejecting defendants’ argument that standing should be considered based on facts at the time of an amended complaint and determining that the “inquiry [was] one of mootness, rather than standing”). This position is consistent with the general approach of orienting the standing inquiry at the time an action commenced. See, e.g., Friends of the Earth, 528 U.S. at 180 (“[W]e have an obligation to assure ourselves that [plaintiff] had Article III standing at the outset of the litigation.”); Barry v. Lyon, 834 F.3d 706, 714 (6th Cir. 2016) (“To uphold the constitutional requirement that federal courts hear only active cases or controversies, as required by Article III, section 2 of the federal constitution, a plaintiff must have a personal interest at the commencement of the litigation (standing) that continues throughout the litigation (lack of mootness).”); Becker v. Federal Election Comm’n, 230 F.3d 381, 386 n. 3 (1st Cir. 2000) (rejecting the requirement that “a plaintiff . . . retain [standing] throughout the litigation” because it ignores the language in Lujan and “conflates questions of standing with questions of mootness: while it is true that a plaintiff must have a personal interest at stake throughout the litigation of a case, such interest is to be assessed under the rubric of standing at the commencement of the case, and under the rubric of mootness thereafter”).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

Under this usual approach, because Arreola indisputably had standing at the time the action commenced, the appropriate inquiry at this time is mootness, not standing. See Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1972)) (“A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—‘when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’”); Jackson v. California Dep’t of Mental Health, 399 F.3d 1069, 1072 (9th Cir. 2005) (explaining that “mootness” involves “whether, after the case had been brought, something happened to cause [plaintiff] to lose his continuing interest in the case”). Defendants bear a “heavy burden” in establishing mootness, as the Supreme Court has noted that “the standard we have announced for determining whether a case has been mooted by the defendant’s voluntary conduct is stringent: A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 189 (internal quotation marks omitted). Plaintiffs assert, Defendants do not dispute, and the Court agrees that Defendants cannot meet this burden at this time. As Plaintiffs note, “[t]he factual developments on which the government relies—the reinstatement of Mr. Arreola’s DACA and the issuance of a Notice of Intent to Terminate—are the results of the government’s compliance with this Court’s preliminary injunction,” Opp. 6:8–11, and the Ninth Circuit has emphasized that “a government agency’s moratorium that ‘by its terms was not permanent’ would not moot ‘an otherwise valid claim for injunctive relief.’” White v. Lee, 227 F.3d 1214, 1243 (9th Cir. 2000) (quoting Friends of the Earth, 528 U.S. at 190); see also Rosemere Neighborhood Ass’n v. U.S. Envtl. Prot. Agency, 581 F.3d 1169, 1173 (9th Cir. 2009) (“[T]he mere cessation of illegal activity in response to pending litigation does not moot a case, unless the party alleging mootness can show that the allegedly wrongful behavior could not reasonably be expected to recur.”) (internal quotation marks omitted). Because mootness and not standing is the appropriate inquiry as to Arreola at this stage of litigation, and because Defendants have not demonstrated that their allegedly wrongful conduct will not recur, Arreola retains a continuing interest in this action.

Furthermore, even if the Court were to adopt Defendants’ Rockwell-inspired approach and conclude that standing must be reestablished with the FAC, then Arreola would nevertheless satisfy Article III for the reasons that IEIYC’s members have standing. Like the IEIYC members discussed above, Arreola possesses a credible fear of unlawful conduct; indeed, this concern is illustrated in the FAC, which describes the Notice of Intent to Terminate Arreola received after the Court issued its preliminary injunction and notes that it “misstates the relevant facts of Mr. Arreola’s case in numerous respects, and erroneously alleges among other things that Mr. Arreola admitted to smuggling undocumented immigrants.” FAC ¶¶ 87–89. As discussed above, Arreola “does not have to await the consummation of threatened injury to obtain preventive relief.” Valle del Sol, 732 F.3d at 1015. He possesses a sufficiently credible

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Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

fear as described in the operative pleading, and thus has standing to bring his claims even under the facts as pleaded in the FAC.

In summation, Arreola had standing to bring this action at the time it commenced—an interest that has not been rendered moot in the interim—or, alternatively, he has standing to bring this action under the facts pleaded in the FAC due to his credible fear of unlawful DACA revocation. Either way, Arreola should not be dismissed from this action due to lack of standing.

B. Jurisdiction

i. Section 701(a)(1)

Review under the APA is not permissible if “statutes preclude judicial review.” 5 U.S.C. § 701(a)(1). Accordingly, Defendants argue that two sections of the INA limit the Court’s ability to hear Plaintiffs’ APA claim. See Mot. 9:18–13:2.

a. Section 1252(g)

First, Defendants cite § 1252(g), which mandates that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien.” 8 U.S.C. § 1252(g). The Supreme Court has explained that § 1252(g) is “directed against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 485 n. 9 (1999). Defendants summarize § 1252(g)’s applicability as follows: “A DACA grant is acknowledgement that DHS is not presently pursuing removal against an individual. Thus, when DHS finds an individual has become an enforcement priority and issues an NTA, DACA will logically terminate and such consequence falls squarely within the province of section 1252(g).” Mot. 10:17–21.

However, the Court concludes that Defendants interpret § 1252(g) too broadly, as evidenced by the Supreme Court’s Reno decision. There, in response to the “unexamined assumption that § 1252(g) covers the universe of deportation claims—that it is a ‘zipper’ clause that says ‘no judicial review in deportation cases unless this section provides judicial review,’” the Supreme Court opined that “what § 1252(g) says is much narrower.” Reno, 525 U.S. at 482. It concluded that “[t]he provision applies only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” Id. (emphases in original). Section 1252(g) does not preclude review of “many other decisions or actions that may be part of the deportation process.” Id. Consistent

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Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

with this guidance, the Ninth Circuit has narrowly construed § 1252(g), distinguishing between the narrow category of actions that courts cannot review and those adjacent actions that are within their jurisdiction. In Alcaraz v. Immigration & Naturalization Service, 384 F.3d 1150 (9th Cir. 2004), for example, the Ninth Circuit held that even a claim closely related to the initiation of removal proceedings is not barred by § 1252(g), so long as it does not challenge the decision to commence proceedings itself. See id. at 1160–61. Other Ninth Circuit decisions have similarly “narrowly construed § 1252(g).” Wong v. United States, 373 F.3d 952, 964 (9th Cir. 2004); see also Maharaj v. Ashcroft, 295 F.3d 963, 965 (9th Cir. 2002) (“[T]he reference to ‘execut[ing] removal orders’ appearing in that provision should be interpreted narrowly, and not as referring to the underlying merits of the removal decision.”); Barahona-Gomez v. Reno, 236 F.3d 1115, 1120–21 (9th Cir. 2001) (holding that § 1252(g) does not bar judicial review of decisions or actions that occur during the formal adjudicatory process, because they are separate from the “decision to adjudicate”); Catholic Soc. Servs. v. Immigration & Naturalization Serv., 232 F.3d 1139, 1150 (9th Cir. 2000) (“[Section 1252(g)] applies only to the three specific discretionary actions mentioned in its text, not to all claims relating in any way to deportation proceedings.”); Sulit v. Schiltgen, 213 F.3d 449, 452–53 (9th Cir. 2000) (determining that § 1252(g) did not bar the due process claims of aliens alleging that their green cards were improperly seized without a hearing, that the INS failed to provide them with notice requiring them to surrender for deportation, and that their counsel failed to notify them of the issuance of the court’s decision).

Defendants reference several cases from this and other circuits in which courts have applied § 1252(g) to various actions stemming from removal proceedings. See Sissoko v. Rocha, 509 F.3d 947, 948–50 (9th Cir. 2007) (finding that the district court did not have jurisdiction over a false arrest claim that “arose from defendant’s decision to commence expedited removal proceedings”); Alcaraz, 384 F.3d at 1160–61 (finding that § 1252(g) barred review of the reopening of removal proceedings); Botezatu v. Immigration & Naturalization Serv., 195 F.3d 311, 313 (7th Cir. 1999) (quoting Reno, 525 U.S. at 485) (“[T]he Supreme Court has . . . treat[ed] denial of a stay of deportation as one of ‘various decisions . . . leading up to or consequent upon final orders of deportation’ which was within the scope of § 1252(g).”). However, each of these cases is distinguishable from Plaintiffs’ because each stemmed directly from removal proceedings implicated by § 1252(g). Here, by contrast, Plaintiffs challenge neither the issuance of NTAs nor the CBP’s decisions to commence removal proceedings, review of which would indeed be barred by § 1252(g). Instead, Plaintiffs challenge the USCIS’s separate and independent decision to revoke DACA on the basis of an NTA, which is independent of the limited category of decisions covered by § 1252(g). See Ramirez Medina v. U.S. Dep’t of Homeland Sec., No. C17-0218RSM, 2017 WL 5176720, at *6 (W.D. Wash. Nov. 8, 2017) (“[T]he Court ultimately finds that none of the statutes relied upon by Defendants applies to the narrower issues presented in this case; specifically, whether Defendants complied

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Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

with their own non-discretionary procedures.”); Gonzalez Torres v. U.S. Dep’t of Homeland Sec., No. 17cv1840 JM(NLS), 2017 WL 4340385, at *4–5 (S.D. Cal. Sept. 29, 2017). Defendants caution that this conclusion “render[s] section 1252(g) a dead letter because any individual could seek to enjoin or otherwise challenge the commencement of removal proceedings through this type of creative pleading.” Mot. 10:22–11:1; see also Torres-Aguilar v. Immigration & Naturalization Serv., 246 F.3d 1267, 1271 (9th Cir. 2001) (“[A] petitioner may not create the jurisdiction that Congress chose to remove simply by cloaking [a claim] in constitutional garb.”). The Court does not agree that Plaintiffs’ and the Court’s position on this point constitutes a means of inventively maneuvering around § 1252(g). Fundamentally, the practice that Plaintiffs are challenging under the APA—automatic revocation of DACA—is independent of the decision to commence or adjudicate removal proceedings. This construction is consistent with both the Ninth Circuit’s admonition that § 1252(g) it to be “narrowly construed,” Wong, 373 F.3d at 964, and the cases cited above that did not bar claims that, although related to removal proceedings, were ultimately ancillary to them.

Furthermore, the Ninth Circuit has held that while § 1252(g) precludes review of the three specified discretionary decisions, it does not bar review of legal questions relating to those discretionary decisions. See United States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004) (en banc) (“The district court may consider a purely legal question that does not challenge the Attorney General’s discretionary authority, even if the answer to that legal question—a description of the relevant law—forms the backdrop against which the Attorney General later will exercise discretionary authority.”); Madu v. U.S. Attorney Gen., 470 F.3d 1362, 1368 (11th Cir. 2006) (“While this provision bars courts from reviewing certain exercises of discretion by the attorney general, it does not proscribe substantive review of the underlying legal bases for those discretionary decisions and actions.”). Here, Plaintiffs bring their legal challenges under the APA and the due process clause; specifically, whether automatic revocation of DACA upon the issuance of an NTA violates the APA and the due process clause. This is the sort of purely legal question that, although related to a discretionary decision, is nevertheless permitted.

Because Plaintiffs mount legal challenges to decisions that are not within the limited category of discretionary actions enumerated by the statute, the Court concludes that § 1252(g) does not deprive it of jurisdiction over their claims.

b. Sections 1252(a)(5) and 1252(b)(9)

Next, Defendants contend that “[t]o the extent that Plaintiffs have any viable claims, the REAL ID Act, codified at 8 U.S.C. §§ 1252(a)(5) and 1252(b)(9), bars them from raising those claims in district court, regardless of whether a final order of removal has issued.” Mot. 11:9–11.

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Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

Section 1252(a)(5) requires that “a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter.” 8 U.S.C. § 1252(a)(5). Section 1252(b)(9) further provides that “[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.” 8 U.S.C. § 1252(b)(9). As one court characterized this statutory scheme, it was designed to “put an end to the scattershot and piecemeal nature of the review process that previously had held sway in regard to removal proceedings.” Aguilar v. U.S. Immigration & Customs Enf’t, 510 F.3d 1, 9 (1st Cir. 2007). The Ninth Circuit has characterized § 1252(b)(9) as “a clear statutory prescription against district court review” of certain cases. J.E.F.M. v. Lynch, 837 F.3d 1026, 1038 (9th Cir. 2016).
Defendants’ argument proceeds as follows:
Plaintiffs engaged in criminal conduct, DHS determined their conduct rendered them enforcement priorities, DHS issued each an NTA, the respective NTA caused each Plaintiff’s DACA and EAD to terminate, and Plaintiffs filed this challenge. There can be no doubt that DHS’s discretionary decision to issue NTAs was the direct cause of Plaintiffs’ DACA terminations. Thus, Plaintiffs’ challenges necessarily arise from “action taken or proceedings brought to remove an alien,” for which district courts lack jurisdiction.
Mot. 12:17–13:2. Once again, they paint with too broad a brush and interpret the statute too expansively, in particular the “arising from” language, which Defendants interpret to seemingly include all claims incidentally related to a removal proceeding.4 Although the Supreme Court has explained that the purpose of § 1252(b)(9) is “to consolidate ‘judicial review’ of immigration proceedings into one action in the court of appeals,” it “applies only ‘[w]ith respect to review of an order of removal under subsection (a)(1).’” Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 313 (2001). Section 1252(a)(1), like § 1252(a)(5), refers to “[j]udicial review of a final removal” order. 8 U.S.C. § 1252(a)(1); see also Singh v. Gonzalez, 499 F.3d 969, 978 (9th

4 Defendants would do well to consider the Supreme Court’s recent admonishment that “[i]n past

cases, when confronted with capacious phrases like ‘“arising from,”’ we have eschewed

‘“uncritical literalism”’ leading to results that ‘“no sensible person could have intended.”’”

Jennings, 138 S. Ct. at 840 (quoting Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 942–43

(2016)).

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Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

Cir. 2007) (“By virtue of their explicit language, both §§ 1252(a)(5) and 1252(b)(9) apply only to those claims seeking judicial review of orders of removal.”). Accordingly, § 1252(b)(9)

has built-in limits. By channeling only those questions “arising from any action taken or proceeding brought to remove an alien,” the statute excludes from the [petition for review] process any claim that does not arise from removal proceedings. Accordingly, claims that are independent of or collateral to the removal process do not fall within the scope of § 1252(b)(9).

J.E.F.M., 837 F.3d at 1032.

Plaintiffs do not seek judicial review of orders of removal; indeed, as stated above, their challenges are independent of any removal proceedings, and thus are not inextricably linked with the removal process. See Gonzalez Torres, 2017 WL 4340385, at *5 (“Plaintiff brings a procedural challenge to termination of his DACA status, an issue independent from any removal proceedings.”). It is for this reason that the Court’s citation to the Ninth Circuit’s Singh decision is particularly apt, despite Defendants’ assertion to the contrary. See Mot. 12 n. 8. In Singh, the plaintiff brought ineffective assistance of counsel claims through a habeas petition, which, like the DACA revocation claims here, were fundamentally independent of removal proceedings; the court determined that the challenge was not tied to removal proceedings and hence § 1252(b)(9) did not apply. See Singh, 499 F.3d at 978–79. Defendants suggest that Singh is distinguishable from this case, and point instead to Martinez v. Napolitano, 704 F.3d 620 (9th Cir. 2012), in which the Ninth Circuit determined that an APA claim that “challenge[d] the procedure and substance of an agency determination that is ‘inextricably linked’ to the order of removal . . . is prohibited by section 1252(a)(5).” Id. at 623. However, although Defendants repeatedly characterize this action as “inextricably linked” to removal proceedings, for the reasons discussed throughout this order, the Court disagrees and concludes that Plaintiffs’ claims are independent of removal proceedings for purposes of the jurisdictional statutes.

Furthermore, the Ninth Circuit has held that § 1252(b)(9) does not deprive district courts of jurisdiction where a claim could not have been litigated in removal proceedings and the noncitizen would otherwise “have had no legal avenue to obtain judicial review of [the] claim.” J.E.F.M., 837 F.3d at 1032; see also Mamigonian v. Biggs, 710 F.3d 936, 945 (9th Cir. 2013) (permitting an APA action where the immigration judge “would be without jurisdiction” to adjudicate the claim and so “review would be unavailable” to plaintiff). Defendants themselves seem to note this limitation in their motion, writing that “if the issue is one that can be raised in removal proceedings, and ultimately in a petition for review, then the statute precludes district court review.” Mot. 12:8–10 (emphasis added). The “if” makes all the difference. An immigration judge in a removal proceeding does not have the power to grant or deny deferred

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action, or to review or reverse an agency’s decision to revoke it. See Gonzalez Torres, 2017 WL 4340385, at *6 (“[A]n immigration judge has no jurisdiction to reinstate DACA status.”); see also Napolitano Memo at 2–3 (conveying power to grant DACA to agencies); Matter of Quintero, 18 I. & N. Dec. 348, 350 (B.I.A. 1982) (“[N]either the immigration judge nor the Board may grant [deferred action] status or review a decision of the District Director to deny it.”). Therefore, Plaintiffs could not have challenged the revocation of their DACA statuses at a removal proceeding, and so under Ninth Circuit precedent, jurisdiction is not barred.

In their reply, Defendants allude to “new authorities that give new shape to [their] arguments for why this Court should grant the motion to dismiss,” suggesting that two recent decisions “clarify and reinforce Defendants’ arguments that section 1252 bars this Court’s jurisdiction over the claims asserted here, and instead channels those claims through the Petition for Review process Congress designated.” Reply 1:5–7, 1:11–16. The Court does not agree either that these cases provide novel legal analysis or that they support Defendants’ position.

The first new case cited by Defendants is Jennings v. Rodriguez, 138 S. Ct. 830 (2018), in which the Supreme Court “interpret[ed] three provisions of U.S. immigration law that authorize the Government to detain aliens in the course of immigration proceedings.” Id. at 836. Jennings did not reframe, reconsider, or reinterpret § 1252(b)(9) or § 1252(a)(5). It merely reiterated what previous decisions have already made clear:

[R]espondents are not asking for review of an order of removal; they are not challenging the decision to detain them in the first place or to seek removal; and they are not even challenging any part of the process by which their removability will be determined. Under these circumstances, § 1252(b)(9) does not present a jurisdictional bar.

Id. at 840–41. In reaching this conclusion, the Supreme Court compared § 1252(b)(9) with § 1252(g), noting that both contain similar “arising from” language and thus suggesting a similarly narrow interpretation. See id. (citing Reno, 525 U.S. at 482–83) (“We did not interpret this language to sweep in any claim that can technically be said to ‘arise from’ the three listed actions of the Attorney General. Instead, we read the language to refer to just those three specific actions themselves.”).

Although Defendants contend that “[t]here can be no serious argument here that Plaintiffs are not challenging a part of the process by which their removability will be determined,” Reply 2:18–19, that is precisely the case here, and Jennings consequently supports Plaintiffs’ position. Plaintiffs are not challenging the decision to detain or remove them or any part of the removal process. Instead, they are challenging the separate decision to automatically terminate DACA as

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Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

a consequence of issuing an NTA. Therefore, because that is an independent action that does not directly arise from removal proceedings, § 1252(b)(9) precludes this action no more than it did the action in Jennings.

Furthermore, the Jennings decision emphasizes why § 1252(b)(9) cannot be interpreted as broadly as Defendants urge. The plurality opinion reads in part:

[T]he applicability of § 1252(b)(9) turns on whether the legal questions that we must decide “aris[e] from” the actions taken to remove these aliens.

It may be argued that this is so in the sense that if those actions had never been taken, the aliens would not be in custody at all. But this expansive interpretation of § 1252(b)(9) would lead to staggering results. Suppose, for example, that a detained alien wishes to assert a claim under Bivens . . . based on allegedly inhumane conditions of confinement. Or suppose that a detained alien brings a state-law claim for assault against a guard or fellow detainee. Or suppose that an alien is injured when a truck hits the bus transporting aliens to a detention facility, and the alien sues the driver or owner of the truck. The “questions of law and fact” in all those cases could be said to “aris[e] from” actions taken to remove the aliens in the sense that the aliens’ injuries would never have occurred if they had not been placed in detention. But cramming judicial review of those questions into the review of final removal orders would be absurd.

Interpreting “arising from” in this extreme way would also make claims of prolonged detention effectively unreviewable. By the time a final order of removal was eventually entered, the allegedly excessive detention would have already taken place. And of course, it is possible that no such order would ever be entered in a particular case, depriving that detainee of any meaningful chance for judicial review.

Id. at 840 (citation omitted). This portion of the Supreme Court’s discussion is relevant to this action. The automatic revocation of a DACA grant is, like the hypotheticals articulated above, a consequence of removal that does not “aris[e] from” removal, and so it would be similarly “absurd” to deny Plaintiffs the opportunity to vindicate their rights under the APA and due process clause just because the decision to automatically revoke DACA upon the issuance of an NTA is incidentally related to the commencement of removal proceedings. Jennings suggests both that DACA revocation does not “aris[e] from” removal proceedings for purposes of

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Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

§ 1252(b)(9) and that stripping the Court of jurisdiction over this action would be an unfavorable outcome.5

The second “new authorit[y]” that purportedly “clarify[ies] and reinforce[s] Defendants’ arguments that section 1252 bars this Court’s jurisdiction over” Plaintiffs’ claims, Reply 1:5, 1:12–15, is Castellar v. Nielsen, No. 17-cv-0491-BAS-BGS, 2018 WL 786742 (S.D. Cal. Feb. 8, 2018), a recent district court decision. The Court notes at the outset that a decision from the Southern District is not binding and constitutes at best only persuasive authority. See, e.g., Rush v. Denco Enters., Inc., No. EDCV 11-0030 DOC (DTBx), 2012 WL 3206674, at *3 (C.D. Cal. Aug. 3, 2012) (“[D]istrict courts are not bound by the unpublished decisions of other district courts; even published district court decisions are only persuasive authority.”); Kohler v. Hyatt Corp., No. EDCV 07-782-VAP (CWx), 2008 WL 8779743, at *7 (C.D. Cal. July 23, 2008) (noting that a district court is “not bound by the decisions of sister district courts”). This limited effect notwithstanding, the Court concludes that Castellar presents no novel arguments or interpretations of § 1252, and instead merely rearticulates the points already discussed in this order. To begin, it reiterates that § 1252(g), consistent with the Supreme Court’s decision in Reno and subsequent Ninth Circuit decisions, has limited application: “These decisions reinforce the principle that while a federal court cannot exercise jurisdiction over claims arising from the discrete decisions Section 1252(g) identifies, a federal court’s construction and consequent application of Section 1252(g)’s jurisdictional bar must be narrow.” Id. at *7. It then goes on to analyze §§ 1252(a)(5) and 1252(b)(9), the latter of which is broader than § 1252(g)—an “unmistakable zipper clause,” id. at *11 (quoting Reno, 525 U.S. at 483)—but nevertheless includes the “built-in limit[]” that excludes “claims that are independent of or collateral to the removal process.” Castellar, 2018 WL 786742, at *12 (quoting J.E.F.M., 837 F.3d at 1032). That the Castellar court ultimately concluded that its plaintiffs’ Fourth and Fifth Amendment claims were not “independent of or collateral to removal proceedings” does not alter the Court’s conclusion here that Plaintiffs’ challenge to automatic DACA revocation is independent of removal. Castellar, 2018 WL 786742, at *14.

5 In his concurrence to Jennings, Justice Thomas advocates a more expansive reading of

§ 1252(b)(9) that would generally “prohibit[] courts from reviewing aliens’ claims related to

their removal.” Jennings, 138 S. Ct. at 852. However, even this broader interpretation would

seemingly not preclude claims, like Plaintiffs’, that are independent of removal proceedings. See

id. at 855 (“[M]y conclusion that § 1252(b)(9) covers an alien’s challenge to the fact of his

detention (an action taken in pursuit of the lawful objective of removal) says nothing about

whether it also covers claims about inhumane treatment, assaults, or negligently inflicted injuries

suffered during detention (actions that go beyond the Government’s lawful pursuit of its removal

objective).”) (emphases in original). Here, Plaintiffs are not challenging the fact of removal, but

instead the decision to automatically revoke DACA on that basis.

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Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

Defendants emphasize one aspect of Castellar in particular: that it “addressed and rejected as ‘selective reading’ the assertion that J.E.F.M. permits challenges to be raised in the district court ‘[w]here a plaintiff “would have no legal avenue to obtain judicial review” of his claims.’” Reply 3:22–26 (quoting Castellar, 2018 WL 786742, at *15 n. 6). However, the Court does not endorse this “selective” interpretation of J.E.F.M.; rather, as discussed above, the key inquiry is not whether a plaintiff can obtain judicial review, but rather whether a claim can be reviewed as part of the petition for review process. This is precisely the conclusion drawn by the Castellar court in reconciling J.E.F.M. with cases like Singh: “Both Nadarajah and Singh underscore that when claims cannot be reviewed in a petition for review of a final order of removal, they are not subject to Sections 1252(a)(5) and 1252(b)(9).” Castellar, 2018 WL 786742, at *15 n. 6. That is why the Court’s ability to hear Plaintiffs’ claims is not precluded by §§ 1252(a)(5) and 1252(b)(9). Because an immigration judge in a removal proceeding does not have the power to grant or deny deferred action, or to review or reverse an agency’s decision to revoke it, see Gonzalez Torres, 2017 WL 4340385, at *6, this case, by Castellar’s formulation, is not subject to these sections.

In summation, the two “new” authorities on which Defendants rely in their reply paper do not alter the Court’s analysis or its conclusion. Because Plaintiffs here are not challenging removal proceedings, and because their claims could not have been brought in removal proceedings, §§ 1252(a)(5) and 1252(b)(9) do not apply and do not deprive this Court of jurisdiction.

ii. Section 701(a)(2)

Defendants also contend that another provision of the APA, § 701(a)(2), deprives the Court of subject matter jurisdiction. See Mot. 13:3–15:14.

Although the APA permits judicial review of agency actions where “there is no other adequate remedy in a court,” 5 U.S.C. § 704, it also precludes review of agency decisions that are “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2); see also Lincoln v. Vigil, 508 U.S. 182, 191–92 (1993). Defendants note that the Supreme Court has held that “an agency’s decision not to take enforcement action should be presumed immune from judicial review under § 701(a)(2).” Heckler v. Chaney, 470 U.S. 821, 832 (1985). Similarly, the Supreme Court has also held that “the decision to prosecute is particularly ill-suited to judicial review.” Wayte v. United States, 470 U.S. 598, 607 (1985). Deferred action in the immigration context is “discretionary and reversible.” Arpaio v. Obama, 797 F.3d 11, 17 (D.C. Cir. 2015). Thus, Defendants conclude that “[i]ndividual DACA terminations, especially where based on issuance of NTAs, fall squarely within that category of agency discretion for which judicial review is improper.” Mot. 14:22–24.

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Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

The Court disagrees. The jurisdictional bar cited by Defendants applies only where there is “no meaningful standard against which to judge the agency’s exercise of discretion.” MendezGutierrez v. Ashcroft, 340 F.3d 865, 868 (9th Cir. 2003) (quoting Heckler, 470 U.S. at 830). By contrast, a court can review an agency decision when, like here, there are “statutes, regulations, established agency policies, or judicial decisions that provide a meaningful standard against which to assess” an agency’s action. Mendez-Gutierrez, 340 F.3d at 868; see also ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1069 (9th Cir. 2015) (quoting Spencer Enters., Inc. v. United States, 345 F.3d 683, 688 (9th Cir. 2003); Socop-Gonzalez v. Immigration & Naturalization Serv., 208 F.3d 838, 844 (9th Cir. 2000)) (“Even where statutory language grants an agency ‘unfettered discretion,’ its decision may nonetheless be reviewed if regulations or agency practice provide a ‘meaningful standard by which this court may review its exercise of discretion.’”).

Here, the decision to revoke DACA is governed by both the Napolitano Memo and the DACA SOP, and the Ninth Circuit has repeatedly found that APA jurisdiction exists where “discretion has been legally circumscribed by various memoranda.” Alcaraz, 384 F.3d at 1161; see also Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 719 (9th Cir. 2011) (looking to an agency’s interim certification standards to “supply the standard against which we can judge the agency’s decision-making”); Mendez-Gutierrez, 340 F.3d at 868 (noting that the absence of a specific statute or regulation “does not . . . mean that there are no meaningful standards against which to evaluate” an agency’s decision where other rules and regulations apply). Other courts that have similarly examined the Napolitano Memo and the DACA SOP have also concluded that they contain the sort of detailed policy directives that provide courts with the standards needed to review DACA revocation. See Gonzalez Torres, 2017 WL 4340385, at *5 (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954); Alcaraz, 384 F.3d at 1162) (“Defendants’ failure to follow the termination procedures set forth in the DACA SOP is arbitrary, capricious, and an abuse of discretion.”); Colotl, 261 F. Supp. 3d at 1340 (“Defendants’ argument that § 701(a) of the APA bars this Court from reviewing an agency’s non-discretionary review process fails.”); see also Texas v. United States, 809 F.3d 134, 170 (5th Cir. 2015) (determining that the “grant of lawful presence and accompanying eligibility for benefits is a substantive rule”).

As the Court continues to emphasize, Plaintiffs challenge the decision to automatically terminate DACA on the basis of the issuance of an NTA, not enforcement decisions. Because DACA eligibility and revocation are governed by existing regulations, the Court has a meaningful standard with which to scrutinize the revocation decision, and so judicial review is not barred by § 701(a)(2). See Ramirez Medina, 2017 WL 5176720, at *8 (“Defendants’ alleged failure to follow the procedures detailed in the DACA SOP does not implicate agency discretion.

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Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

Therefore, the jurisdiction-stripping provisions of . . . § 701(a) are not applicable to prevent this Court from determining whether Defendants complied with their non-discretionary procedures.”).

C. APA Claim

Because the Court concludes that it has jurisdiction over Plaintiffs’ claims, it will now consider whether they have pleaded viable causes of action under the APA and due process clause.

Under the APA, “agency action must be based on non-arbitrary, ‘relevant factors.’” Judulang v. Holder, 565 U.S. 42, 55 (2011) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983)). The “courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking.” Judulang, 565 U.S. at 53. “When reviewing an agency action, [the Court] must assess, among other matters, ‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” Id. (quoting State Farm, 463 U.S. at 43).

Defendants argue that automatic DACA termination due to the issuance of an NTA is not impermissibly arbitrary because it is provided for in the DACA SOP and other DHS regulations. See Mot. 19:11–21:8. The Court disagrees with this assertion for several reasons. First, based on the Napolitano Memo and the DACA SOP, a noncitizen’s deportability due to unauthorized presence in the United States—the basis for the NTAs at issue here—provides no relevant basis for terminating DACA. These guidelines enumerate the relevant considerations for a DACA grant, and not only is unauthorized presence an unmentioned factor, but the program was specifically designed for persons without lawful immigration status. See, e.g., DACA SOC at 44 (indicating that an individual “may be favorably considered for DACA if” he/she “[e]ntered without inspection” or his/her “lawful immigration status expired”). The program’s rules also make clear that even noncitizens who are, have been, or will be placed in removal proceedings are nonetheless eligible for DACA. See Napolitano Memo at 2; DACA SOP at 71 (“Individuals in removal proceedings may file a DACA request.”). The same is true for individuals with final removal orders, and even individuals who have “reenter[ed] the United States illegally after having been removed or after leaving voluntarily under an order of removal.” DACA SOP at 74–75.

Furthermore, if an NTA is issued against an applicant while her application is pending with USCIS—even if the NTA is based on a public safety concern—DACA can still be conferred on the applicant. See DACA SOP at 93. In such cases, USCIS is required to review all relevant circumstances, and may still grant a DACA request despite an NTA “[i]f a DACA

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Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

requestor has been placed in proceedings on a ground that does not adversely impact the exercise of prosecutorial discretion.” DACA SOP at 75; see also id. at 74 (“Final removal orders . . . should be reviewed carefully to examine the underlying grounds for removal.”).

There are a few, narrow circumstances when DACA grants can be terminated automatically, without notice and an opportunity to be heard. For example, as the Court previously observed in its order granting Arreola’s motion for a preliminary injunction, automatic termination based on the issuance of an NTA is appropriate “when an NTA is issued after USCIS determines that a disqualifying offense or public safety concern is deemed to be ‘Egregious Public Safety’ [“EPS”].” Arreola Order at 11 (citing DACA SOP at 137). Otherwise, “‘unless there are criminal, national security, or public safety concerns,’ the DACA termination guidelines prescribe the issuance of a Notice of Intent to Terminate and require that ‘[t]he individual should be allowed 33 days to file a brief or statement contesting the grounds cited.’” Arreola Order at 11 (quoting DACA SOP at 137–38) (alteration in original); see also Gonzalez Torres, 2017 WL 4340385, at *3 (“[E]xcept in EPS cases, the DACA SOP requires notice and an ability to contest the [Notice of Termination] before DACA status may be terminated.”). In addition, DACA can also terminate automatically if a DACA recipient travels outside the United States without first receiving advance parole. See DACA SOP, App. I at 2.

However, Defendants point to no provision in the DACA SOP that permits automatic termination as a result of an NTA based solely on unauthorized presence, which is the issue in this action. Instead, they discuss ICE’s and CBP’s authority to issue NTAs, see Mot.19:17–20:12, and note that “there is no provision permitting USCIS to reverse ICE’s decision,” id. 20:8–9, but such assertions are not relevant—the issue is not how or when DHS or its component agencies can issue NTAs, but instead whether USCIS can terminate DACA automatically solely on that basis.6 The Court maintains that it cannot. Although an NTA filed on the basis of an EPS designation can result in automatic DACA termination, see DACA SOP at 137, “if the disqualifying criminal offense is non-EPS” then “[t]he individual should be allowed 33 days to file a brief or statement contesting the grounds cited in the Notice of Intent to Terminate.” Id.; see also Gonzalez Torres, 2017 WL 4340385, at *6 (noting that NTAs based on an EPS designation and NTAs based on unauthorized presence “are not fungible, or ‘flip sides of the same coin’”). Defendants contend that “it takes a particularly strained reading of the

6 Defendants argue that the Court’s conclusion “relies on a starkly oversimplified consideration

of the NTA decision process,” and provide additional information as to how NTAs are issued.

Mot. 21:10–23:4. Again, neither Plaintiffs nor the Court suggest that the NTA process itself is

arbitrary or capricious, but instead that the decision to automatically terminate DACA solely on

the basis of an NTA is inconsistent with the applicable guidelines and regulations.

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Napolitano Memo and DACA SOP to find that ICE and CBP cannot issue NTAs that have the effect of terminating DACA.” Mot. 20:17–19. Despite their insistence, the Court disagrees.7

Accordingly, the Court concludes that automatic revocation on the basis of an NTA is not permitted by the applicable regulations. Given that the issuance of an NTA against a DACA applicant, or even the issuance of a final order of removal against a DACA applicant, does not render the individual ineligible for the program, Defendants’ practice of automatically terminating DACA on this basis is consequently arbitrary and irrational, and Plaintiffs have therefore stated a viable APA claim.

D. Due Process Claim

Lastly, Defendants argue that Plaintiffs cannot state a viable due process claim because they “necessarily lack a protected constitutional interest in their DACA and in the process to terminate DACA because the ultimate result sought—deferred action—is discretionary, and because the Government never expressed a mutual intention to confer a protected benefit in DACA.” Mot. 15:18–21.

As Defendants observe, “[t]he procedural component of the Due Process Clause does not protect everything that might be described as a ‘benefit’: ‘To have a property interest in a benefit, a person clearly must have more than an abstract need or desire’ and ‘more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.’” Town of Castle Rock v. Gonzalez, 545 U.S. 748, 756 (2005) (quoting Board of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). “A person’s belief of entitlement to a government benefit, no matter how sincerely or reasonably held, does not create a property right if that belief is not mutually held by the government. The Supreme Court has explained, ‘[a] constitutional entitlement cannot be created—as if by estoppel—merely because a wholly and expressly discretionary state privilege has been granted generously in the past.’” Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 1020–21 (9th Cir. 2011) (quoting Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981)) (emphasis and alteration in original). Using these principles as a foundation, Defendants conclude that “Plaintiffs possess no lawful status, thus no protected interest in living or working in the United States,” and “[b]ecause DACA is

7 Defendants suggest that “the Court’s . . . interpretation of Defendants’ guidance creates an

absurd scenario in which ICE would institute new administrative removal proceedings against an

individual while that individual seeks additional separate legal process regarding the termination

of their DACA.” Mot. 20:19–22. The Court disagrees that such a result would be absurd, for the

reason emphasized at length throughout this order: because the decision to initiate removal

proceedings is separate from and independent of the decision to revoke DACA.

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Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

discretionary, it does not give rise to a protected right to work in the United States.” Mot. 16:27–17:3.

However, both this analysis and the conclusion Defendants reach mischaracterize the premise of Plaintiffs’ procedural due process claim. It is true, as Defendants argue and the cases they cite support, that discretionary benefits generally do not give rise to a protected property interest. However, Plaintiffs instead argue that “even absent a claim of entitlement to an important benefit, once it is conferred, recipients have a protected property interest that requires a fair process before the government may take that benefit away.” Opp. 14:8–11 (emphasis in original). This is consistent with a line of cases involving the conferral of benefits that do not constitute entitlements of substantive rights. See, e.g., Bell v. Burson, 402 U.S. 535, 539 (1971) (“Once [driver’s] licenses are issued . . . their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without [] procedural due process.”); Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (“The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. . . . The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. . . . Its termination calls for some orderly process, however informal.”); Nnebe v. Daus, 644 F.3d 147, 158 (2d Cir. 2011) (recognizing that “a taxi driver has a protected interest in his license” that requires due process before suspension); Singh v. Bardini, No. C-09-3382 EMC, 2010 WL 308807, at *7 (N.D. Cal. Jan. 19, 2010) (“Even if there is no constitutional right to be granted asylum, that does not necessarily mean that, once granted, asylum status can be taken away without any due process protections.”) (citation omitted). This requirement of due process is especially pronounced in cases where, as here, the conferred benefit engenders substantial reliance. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 348–49 (1976) (“The essence of due process is the requirement that a person in jeopardy of serious loss (be given) notice of the case against him and opportunity to meet it.”) (internal quotation marks omitted); Alaska Airlines, Inc. v. City of Long Beach, 951 F.2d 977, 986 (9th Cir. 1991) (quoting Bell, 402 U.S. at 539) (“A license [permitting flight allocations], which is not the subject of an absolute entitlement but which nevertheless becomes ‘essential in pursuit of a livelihood,’ is ‘not to be taken away without that procedural due process required by the fourteenth amendment.’”); Jones v. City of Modesto, 408 F. Supp. 2d 935, 950–51 (E.D. Cal. 2005) (“Courts have long recognized that licenses which enable one to pursue a profession or earn a livelihood are protected property interests for purposes of a Fourteenth Amendment analysis.”). In short, the fact that there is “no substantive due process right to stay in the United States,” Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003), does not necessarily mean that a DACA recipient is entitled to no process before deferred action is terminated.

Determining the procedure necessary to satisfy procedural due process requirements

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Case 5:17-cv-02048-PSG-SHK Document 79 Filed 04/19/18 Page 30 of 31 Page ID #:2172

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

involves evaluation of three distinct factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews, 424 U.S. at 335. Consideration of these factors confirms that Plaintiffs have pleaded a plausible due process claim. First, Plaintiffs’ FAC demonstrates the significant private interests at stake for DACA recipients, and the deleterious effects of DACA termination. See, e.g., FAC ¶¶ 35–39, 83–84, 111, 131. Second, the practice of automatic termination—which, as discussed above, is in contravention of internal guidelines and regulations—creates an unacceptably high risk of erroneous deprivation. As one court reasoned in the analogous context of asylum rescission,

[T]here is a substantial risk of erroneous deprivation through the procedures utilized by [the agency] in rescinding asylum via a mailed letter. This manner of termination does not account for anything other than post hac notice to the asylee that he or she is no longer entitled to any protection. This method does not account for any errors in transmission, even minor typographical mistakes. Furthermore, there is a great deal of value that is added when the government complies, or comes close to complying, with the dictates of [applicable regulations].

Singh v. Vasquez, No. CV-08-1901-PHX-MHM, 2009 WL 3219266, at *5 (D. Ariz. Sept. 30, 2009). Lastly, Plaintiffs’ experiences as described in the FAC demonstrate the value of “an opportunity to contest the [] determination at a meaningful time,” Villa-Anguiano v. Holder, 727 F.3d 873, 882 (9th Cir. 2013), as their arrests and detentions generated confusion and uncertainty that might have been resolved through the proper process. See, e.g., FAC ¶ 76 (noting that the immigration judge in Arreola’s case questioned the conclusions of the CBP agents who arrested him); id. ¶¶ 110, 130 (noting that Gil and Moreira did not have the opportunities to contest the grounds for DACA termination).8 Accordingly, the three Mathews factors indicate that Plaintiffs

8 The Court agrees with an argument advanced by Plaintiffs in an earlier motion: “The fact that

DHS’ rules already provide for [] basic pre-deprivation protections in most circumstances

reinforces both that the value of such safeguards is high, and that providing such limited process

would not place undue fiscal or administrative burdens on the government.” See Dkt. # 40-1, at

19.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 17-2048 PSG (SHKx)

Date April 19, 2018

Title

Inland Empire – Immigrant Youth Collective et al. v. Kirstjen Nielsen et al.

have plausibly pleaded that a DACA grant is the sort of benefit that, once conferred, entitles a recipient to due process before revocation. See Vasquez, 2009 WL 3219266, at *6 (“To conclude, all of the Mathews factors weigh in favor of a finding that due process requires more than sending an after the fact letter of rescission when the government terminates a grant of asylum.”).9

Defendants argue that, because there is no substantive right to remain in the United States or receive deferred action, Plaintiffs’ due process claim must necessarily fail. However, because Plaintiffs have sufficiently demonstrated that the grant of DACA constitutes a conferred benefit that requires procedural safeguards before it can be terminated, the Court concludes that the due process claim should not be dismissed on this basis.

V. Conclusion

For the foregoing reasons, the Court DENIES Defendants’ motion to dismiss.

IT IS SO ORDERED.

9 Defendants also suggest that Plaintiffs have no property interest in their EADs because “every

individual with employment authorization based on 8 C.F.R. § 274a.12(c), including those with

deferred action, is subject to automatic termination of their EAD upon institution of removal

proceedings in an immigration court.” Mot. 17:24–26. However, although the regulations do

provide for termination of work authorization when an NTA is issued in some cases, see 8

C.F.R. § 274a.14(1)(ii), it also contains an exception for work permits granted to, among others,

“alien[s] who [have] been granted deferred action.” 8 C.F.R. § 274a.12(c)(14); see also Alfaro-

Orellana v. Ilchert, 720 F. Supp. 792, 794 (N.D. Cal. 1989) (noting that § 274a.14(a)(1)(ii) “is

itself ambiguous, because it creates an exception for appropriate work authorizations under

§ 274a.12(c)”).

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 2019 WL 8011739 Only the Westlaw citation is currently available.
United States District Court, C.D. California.
INLAND EMPIRE IMMIGRANT YOUTH COLLECTIVE et al. v.
Kirstjen NIELSEN et al.
Case No. EDCV 17-2048 PSG (SHKx) |
Filed 11/07/2019
Attorneys and Law Firms
Ahilan T. Arulanantham, Dae Keun Kwon, Michael Bryan Kaufman, ACLU Foundation of Southern California, Los Angeles, CA, Michael K. T. Tan, Pro Hac Vice, ACLU Foundation Immigrants Rights Project, New York, NY, David Hausman, Pro Hac Vice, Palo Alto, CA, Jennifer C. Newell, Julie Veroff, Katrina L. Eiland, ACLU Foundation Immigrants Rights Project, San Francisco, CA, for Inland Empire Immigrant Youth Collective et al.
Jeffrey S. Robins, James Joseph Walker, James Joseph Walker, US Department of Justice, Washington, DC, for Kirstjen Nielsen et al.
Proceedings (In Chambers): Order GRANTING Plaintiffs’ motion to stay.
The Honorable Philip S. Gutierrez, United States District Judge
*1 Before the Court is Plaintiffs’1 motion to stay proceedings. See Dkt. # 113 (“Mot.”). Defendants2 (the “Government”) have opposed this motion, see Dkt. # 117 (“Opp.”), and Plaintiffs replied, see Dkt. # 118 (“Reply”). The Court finds the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. Having considered the moving papers, the Court
1

GRANTS the motion.
I. Background This action is brought by a class of undocumented immigrants who allege that the Government unlawfully revoked their status under the Deferred Action for Childhood Arrivals program, otherwise known as DACA, without first giving them notice and an opportunity to challenge the revocation.
A. Factual Background The Court extensively described the history of the DACA program and the factual background of the named Plaintiffs’ individual cases in its previous orders, and it does not repeat that discussion here. See Dkts. # 31 (“Prelim. Inj. Order”); # 62 (“Class Inj. Order”); # 79 (“MTD Order”). For purposes of this motion, it is enough to say that the DACA program grants certain immigrants without legal immigration status a temporary reprieve from the possibility of being removed from the country. See Class Inj. Order at 2. Three of the named plaintiffs in this case are individuals who had their DACA status revoked without notice after they were issued a Notice to Appear (“NTA”) in immigration court. See id. at 2 3. They contend that the practice of revoking DACA without providing “notice, a reasoned explanation, an opportunity to be heard prior to revocation, or a process for reinstatement when the revocation is in error” violates the DACA Standard Operating Procedures (“SOPs”), which “do[ ] not allow for termination without notice in the vast majority of cases,” as well as the Due Process Clause of the Fifth Amendment. Id. at 3. They also argue that the policy is fundamentally illogical because an NTA can be issued (leading to an automatic termination of DACA) simply because a person lacks lawful immigration status a condition that necessarily applies to every DACA recipient. See id.
B. Procedural History

Plaintiffs Inland Empire Immigrant Youth Collective and Arreola originally filed their class action complaint on October 5, 2017, alleging that Defendants’ DACA termination policy violated the Administrative Procedure Act (“APA”) and the Fifth Amendment. See Dkt. # 1. The following month, on November 20, 2017, the Court granted Arreola’s motion for a preliminary injunction, enjoining USCIS’s decision to terminate his DACA. See Prelim. Inj. Order at 15 16.
Plaintiffs then moved to certify a class and for entry of a classwide preliminary injunction. See Class Inj. Order. On February 26, 2018, the Court granted the motion. After a stipulated modification, the Court certified a class of “[a]ll recipients of [DACA] who, after January 19, 2017, have had or will have their DACA grant and employment authorization terminated without notice or an opportunity to respond,” with the exception of certain categories of DACA recipients detailed in the order. See Modified Class Definition, Dkt. # 74. The Court preliminarily enjoined Defendants from, among other things, terminating the DACA status of class members absent a fair procedure that complies with the DHS SOPs and terminating DACA status “based solely on the issuance of an [NTA] that charges the DACA recipient as removable due to his or her presence in the United States without admission or having overstayed a visa.” See Class Inj. Order at 35. Defendants then filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim, which the Court denied. See MTD Order.
*2 After this Court denied Defendants’ motion to dismiss, Defendants appealed to the Ninth Circuit. See Notice of Appeal, Dkt. # 80.3 The Ninth Circuit heard oral argument on June 13, 2019. See Mot. 2:5 6. Shortly thereafter, the Supreme Court granted certiorari in Regents of the University of California v. DHS, 908 F.3d 476 (9th Cir. 2018), cert. granted 139 S.Ct. 2779 (June 28, 2019), another case challenging DHS’s wind-down of the DACA policy. See id. 2:7 13. After the Court granted certiorari, the Ninth Circuit withdrew submission of the appeal in this case and stayed all further proceedings pending the outcome in Regents. See Inland Empire Immigrant Youth Collective v. Nielsen, No. 18-55564, Dkt. # 53 (9th Cir. June 28, 2019). Based on the Ninth Circuit’s decision to stay and the pending appeal in Regents, Plaintiffs now move for a stay in this Court. See generally Mot.
2

II. Legal Standard The Court’s authority to stay a proceeding is “incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). Among the competing interests to be weighed when considering a stay are “the possible damage which may result from the granting of a stay, the hardship or inequity which a party may suffer in being required to go forward, and the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay.” CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962). “The proponent of a stay bears the burden of establishing its need.” Clinton v. Jones, 520 U.S. 681, 708 (1997).
III. Discussion Plaintiffs argue that a stay is appropriate to preserve judicial efficiency. See Mot. 3:9 16. Specifically, the Ninth Circuit decision on the preliminary injunction appeal will conserve judicial resources because it will have a direct bearing on the next stage of this case, summary judgment. See id. Plaintiffs also argue that Defendants are unlikely to suffer harm due to a stay because the preliminary injunction has lasted fifteen months, and Defendants fail to identify any irreparable harm they’ve suffered as a result. See id. 4:1 4. Defendants counter that Plaintiffs do not meet their burden to show that a stay is warranted because they fail to identify any hardship they would suffer from continuing the litigation. See Opp. 2:6 8. Further, the injunction “operationally constrain[s]” Defendants, and Plaintiffs inappropriately propose an effectively indefinite stay. See id. 3:1 4:2.
The Court believes that a stay will advance “the orderly course of justice.” See CMAX, 300 F.2d at 268. The Ninth Circuit stayed its review of the preliminary injunction in this case pending the outcome in Regents, which deals with issues that are substantially similar to those presented in this case. See Mot. 2:14 21; Regents, 908 F.3d at 486. Without guidance from the Ninth Circuit in this case or the Supreme Court in Regents on key legal questions about the reviewability and legality of DACA, the Court cannot properly decide those questions now. See Rivera v. UHS of Delaware, Inc., No. EDCV

15-00863 JGB DTBX, 2018 WL 6332278, at *4 (C.D. Cal. July 13, 2018) (“Absent a stay, the Court may waste significant resources to ultimately conclude Plaintiff lacks standing to bring her PAGA claim.”). Ultimately, because the Ninth Circuit decision is likely to “narrow[ ] the factual and legal issues” in the case, the Court finds a stay proper. See Lockyer v. Mirant Corp., 398 F.3d 1098, 1112 (9th Cir. 2005); see also Yohn v. California Teachers Ass’n, No. SACV 17-202-JLS-DFM, 2017 WL 10439829, at *3 (C.D. Cal. Nov. 13, 2017) (“Finally, the orderly course of justice would be promoted by staying the litigation. Although the Supreme Court’s ruling in Janus may not resolve all of the claims in this lawsuit, it will undoubtedly provide the Court significant guidance in deciding the merits and will therefore ‘simplify[ ] ... issues, proof, and questions of law.’ ”) (quoting CMAX, 300 F.2d at 268).

Lastly, contrary to Defendants’ assertions, the Court is not approving an indefinite stay. See Opp. 3:18 4:2. By contrast to cases that Defendants cite like Dependable Highway, there is a definite timeline here. See id. 3:6 16; Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007). Unlike Dependable Highway, where the district court gave no timeline for when the stay would terminate, and the parallel foreign arbitration had made no progress for two years, this stay will terminate after the Ninth Circuit decides the appeal in this case, which will occur after the Supreme Court decides Regents by mid-next year. See Dependable Highway, 498 F.3d at 1066 67. Given that the stay will only last for a “reasonable time,” it is not effectively indefinite. See id. at 1067.

*3 Moreover, Defendants have not shown that a stay

would cause them damage. Their bare recitation that the

injunction has “operationally constrained” them, without more, is not enough to demonstrate harm. See Opp. 3:1 3. While Defendants are correct that Plaintiffs must explain the need for a stay, courts must also weigh how a stay would damage the nonmoving party. See id. 2:6 8; CMAX,

IV. Conclusion Accordingly, the Court GRANTS Plaintiffs’ motion to stay pending the resolution of the Ninth Circuit appeal in this case.

300 F.2d at 268. Because Defendants have not attempted to show how they would be harmed, this factor also

IT IS SO ORDERED.

weighs in favor of a stay. See Alter v. Walt Disney Co.,

No. CV 16-06644 SJO (EX), 2016 WL 9455627, at *2 (C.D. Cal. Oct. 31, 2016) (“In light of the above, the

All Citations

[c]ourt agrees with [the moving party] that [the non-moving party has] failed to demonstrate a fair

Slip Copy, 2019 WL 8011739

possibility of prejudice.”) (internal quotation marks

omitted).

Footnotes

1

The named plaintiffs in this class action are Jesus Alonso Arreola Robles, Ronan Carlos de Souza Moreira, Jose

Eduardo Gil Robles, and the Inland Empire Immigrant Youth Collective.

2

The Defendants in this case are various Department of Homeland Security officials who are being sued in their

official capacities.

3

In the interim, the Court also issued an order granting Plaintiffs’ request to complete the administrative record with

predecisional documents. See Dkt. # 104 (“AR Order”). In their briefs, both parties report that they have

satisfactorily resolved any outstanding issues related to the administrative record. See Mot. 3:26 28; Opp. 4:5 11.

3

4