Case: 3:17-cv-1840 As of: 11/18/2019 02:02 PM PST 1 of 9
APPEAL,CLOSED
U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:17−cv−01840−JM−NLS

Gonzalez Torres v. U.S. Department of Homeland Security et al Assigned to: Judge Jeffrey T. Miller Referred to: Magistrate Judge Nita L. Stormes Case in other court: USCA, 18−56037 Cause: 05:0706 Judicial Review of Agency Action
Plaintiff

Date Filed: 09/11/2017 Date Terminated: 04/13/2018 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Alberto Luciano Gonzalez Torres

represented by Jaba Tsitsuashvili 1629 Columbia Road NW 623 Washington, DC 20009 818−458−4319 Email: jtsitsua@gmail.com TERMINATED: 10/02/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Charles Ulin Arnold & Porter Kay Scholer LLP 777 South Figueroa Street 44th Floor Los Angeles, CA 90071−5844 (213) 243−4228 Fax: (213) 243−4199 Email: John.Ulin@arnoldporter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant U.S. Department of Homeland Security

represented by U S Attorney CV U S Attorneys Office Southern District of California Civil Division 880 Front Street Suite 6253 San Diego, CA 92101 (619)557−5662 Fax: (619)557−7122 Email: Efile.dkt.civ@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Joseph Walker Department of Justice Civil Division, Office of Immigration Litigation Ben Franklin Station P. O. Box 868 Washington, DC 20044 202−532−4468 Fax: 202−305−7000 Email: james.walker3@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:17-cv-1840 As of: 11/18/2019 02:02 PM PST 2 of 9

Defendant U.S. Citizenship and Immigration Services
Defendant U.S. Immigration and Customs Enforcement
Defendant U.S. Customs and Border Protection
Defendant

Jeffrey S. Robins Department of Justice, Office of Immigration Litigation 450 5th Street, NW Washington, DC 20001 202−616−1246 Fax: 202−305−7000 Email: jeffrey.robins@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Joseph Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Joseph Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Joseph Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:17-cv-1840 As of: 11/18/2019 02:02 PM PST 3 of 9
DOES 1−10 inclusive

Date Filed 09/11/2017
09/11/2017
09/12/2017 09/13/2017 09/13/2017 09/13/2017 09/13/2017

# Docket Text
1 COMPLAINT against DOES 1−10, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement ( Filing fee $ 400 receipt number 0974−10430694.), filed by Alberto Luciano Gonzalez Torres. (Attachments: # 1 Civil Case Cover Sheet, # 2 Notice Ex Parte emergency motion for TRO, # 3 Memo of Points and Authorities In support of ex parte emergency motion for TRO, # 4 Notice Request for oral argument, # 5 Declaration John C. Ulin, # 6 Exhibit Declaration Exhibit A, # 7 Exhibit Ulin Declaration Exhibit B, # 8 Exhibit Ulin Declaration Exhibit C, # 9 Exhibit Ulin Declaration Exhibit D, # 10 Exhibit Ulin Declaration Exhibit E, # 11 Exhibit Ulin Declaration Exhibit F, # 12 Exhibit Ulin Declaration Exhibit G, # 13 Exhibit Ulin Declaration Exhibit H, # 14 Exhibit Ulin Declaration Exhibit I, # 15 Exhibit Ulin Declaration Exhibit J, # 16 Exhibit Ulin Declaration Exhibit K, # 17 Exhibit Exhibit Ulin Declaration Exhibit L, # 18 Exhibit Ulin Declaration Exhibit M, # 19 Exhibit Ulin Declaration Exhibit N, # 20 Exhibit Ulin Declaration Exhibit O, # 21 Declaration of Plaintiff Alberto Luciano Gonzalez Torres)
The new case number is 3:17−cv−01840−JM−NLS. Judge Jeffrey T. Miller and Magistrate Judge Nita L. Stormes are assigned to the case. (Ulin, John)(anh) (jao). (Entered: 09/12/2017)
2 MOTION for Temporary Restraining Order by Alberto Luciano Gonzalez Torres. (Attachments: # 1 Memo of Points and Authorities In support of ex parte emergency motion for TRO, # 2 Notice Request for oral argument, # 3 Declaration Declaration of John C. Ulin, # 4 Exhibit Ulin Declaration Exhibit A, # 5 Exhibit Ulin Declaration Exhibit B, # 6 Exhibit Ulin Declaration Exhibit C, # 7 Exhibit Ulin Declaration Exhibit D, # 8 Exhibit Ulin Declaration Exhibit E, # 9 Exhibit Ulin Declaration Exhibit F, # 10 Exhibit Ulin Declaration Exhibit G, # 11 Exhibit Ulin Declaration Exhibit H, # 12 Exhibit Ulin Declaration Exhibit I, # 13 Exhibit Ulin Declaration Exhibit J, # 14 Exhibit Ulin Declaration Exhibit K, # 15 Exhibit Ulin Declaration Exhibit L, # 16 Exhibit Ulin Declaration Exhibit M, # 17 Exhibit Ulin Declaration Exhibit N, # 18 Exhibit Ulin Declaration Exhibit O, # 19 Declaration of Plaintiff Alberto Luciano Gonzalez Torres)(anh) (jao). (Entered: 09/12/2017)
3 Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (anh) (jao). (Entered: 09/12/2017)
4 NOTICE of Appearance by Jeffrey S. Robins on behalf of U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement (Robins, Jeffrey)Attorney Jeffrey S. Robins added to party U.S. Citizenship and Immigration Services(pty:dft), Attorney Jeffrey S. Robins added to party U.S. Customs and Border Protection(pty:dft), Attorney Jeffrey S. Robins added to party U.S. Department of Homeland Security(pty:dft), Attorney Jeffrey S. Robins added to party U.S. Immigration and Customs Enforcement(pty:dft) (jpp). (Entered: 09/13/2017)
5 SUMMONS Returned Executed by Alberto Luciano Gonzalez Torres. U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement served. (Ulin, John) (jpp). (Entered: 09/13/2017)
6 SCHEDULING ORDER − Plaintiffs application for a temporary restrainingorder is calendared for oral argument on September 29, 2017, at 1:00 p.m. Defendants shall file a responding brief on or before September 22, 2017, and Plaintiff shall file a reply brief by September 26, 2017. Signed by Judge Jeffrey T. Miller on 9/13/2017.(jpp) (Entered: 09/13/2017)
7 NOTICE of Appearance by Jaba Tsitsuashvili on behalf of Alberto Luciano Gonzalez Torres (Tsitsuashvili, Jaba)Attorney Jaba Tsitsuashvili added to party Alberto Luciano Gonzalez Torres(pty:pla) (jpp). (Entered: 09/13/2017)

Case: 3:17-cv-1840 As of: 11/18/2019 02:02 PM PST 4 of 9

09/14/2017 09/21/2017
09/25/2017 09/28/2017 09/29/2017 11/13/2017 11/14/2017 11/14/2017 11/20/2017
11/21/2017 12/04/2017 12/04/2017

8 AMENDED SCHEDULING ORDER − Plaintiffs application for a temporary restraining order is calendared for oral argument on September 28, 2017, at 10:00 am. Defendants shall file a responding brief on or before September 21, 2017, and Plaintiff a reply brief by September 25, 2017. Signed by Judge Jeffrey T. Miller on 9/14/2017.(jpp) (Entered: 09/14/2017)
9 RESPONSE in Opposition re 2 MOTION for Temporary Restraining Order filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Robins Exhibit Declaration, # 2 Exhibit A: USCIS Form I−821D Instructions, # 3 Exhibit B: DACA SOP Appendix I (Mar. 1, 2016), # 4 Exhibit C: NTA, I−213, G−166, and related documents)(Robins, Jeffrey) (jpp). (Entered: 09/21/2017)
10 REPLY to Response to Motion re 2 MOTION for Temporary Restraining Order filed by Alberto Luciano Gonzalez Torres. (Ulin, John) (Entered: 09/25/2017)
11 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Motion Hearing held on 9/28/2017 re 2 MOTION for Temporary Restraining Order filed by Alberto Luciano Gonzalez Torres. Submitting, 2 MOTION for Temporary Restraining Order. Written order to follow. (Court Reporter/ECR Ellen Simone). (Plaintiff Attorney John Charles Ulin; Jaba Tsitsuashvili). (Defendant Attorney Jeffrey S. Robins). (no document attached) (gac) (Entered: 09/28/2017)
12 ORDER granting 2 Motion for Preliminary Injunction. Signed by Judge Jeffrey T. Miller on 9/29/2017. (jpp) (Entered: 09/29/2017)
13 MOTION Modify order granting motion for preliminary injunction re 12 Order on Motion for TRO by Alberto Luciano Gonzalez Torres. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration, # 3 Exhibit, # 4 Exhibit)(Ulin, John) (jpp). (Entered: 11/13/2017)
14 Ex Parte MOTION for Extension of Time to File Answer re 1 Complaint,,,,, by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit A − Reopening and reinstatement notice, # 2 Exhibit B − DACA renewal request receipt notice, # 3 Exhibit C − Notice of Intent to Terminate)(Robins, Jeffrey) (jpp). (Entered: 11/14/2017)
15 CERTIFICATE OF SERVICE by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement re 14 Ex Parte MOTION for Extension of Time to File Answer re 1 Complaint (Robins, Jeffrey) (jpp). (Entered: 11/14/2017)
16 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 9/28/2017, before Judge Jeffrey T. Miller. Court Reporter/Transcriber: Ellen L. Simone. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 12/11/2017. Redacted Transcript Deadline set for 12/21/2017. Release of Transcript Restriction set for 2/20/2018. (akr) (Entered: 11/20/2017)
17 ORDER granting 14 application for enlargement of time to answer complaint. Defendants shall file their response to the complaint by December 29, 2017. Signed by Judge Jeffrey T. Miller on 11/21/2017. (jpp) (Entered: 11/21/2017)
18 RESPONSE in Opposition re 13 MOTION Modify order granting motion for preliminary injunction re 12 Order on Motion for TRO filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Robins, Jeffrey) (jpp). (Entered: 12/04/2017)
19 CERTIFICATE OF SERVICE by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S.

Case: 3:17-cv-1840 As of: 11/18/2019 02:02 PM PST 5 of 9

12/04/2017 12/05/2017 12/07/2017 12/08/2017 12/08/2017 12/12/2017
12/14/2017
12/15/2017 12/15/2017 12/15/2017

Immigration and Customs Enforcement re 18 Response in Opposition to Motion, (Robins, Jeffrey) (jpp). (Entered: 12/04/2017)
20 Ex Parte MOTION to Shorten Time on Plaintiff's Motion to Modify Preliminary Injunction (Dkt. No. 13) by Alberto Luciano Gonzalez Torres. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Ulin, John) (jpp). (Entered: 12/04/2017)
21 ORDER granting 20 application to Shorten Time on Plaintiffs Motion to Modify Order Granting Motion for Preliminary Injunction (Motion). Plaintiffs shall file a reply brief by December 7, 2017, and oral argument on the Motion is calendared for December 12, 2017 at 1:30pm. Signed by Judge Jeffrey T. Miller on 12/05/2017. (jpp) (Entered: 12/05/2017)
22 REPLY to Response to Motion re 13 MOTION Modify order granting motion for preliminary injunction re 12 Order on Motion for TRO filed by Alberto Luciano Gonzalez Torres. (Ulin, John) (jpp). (Entered: 12/07/2017)
23 Ex Parte MOTION for Leave to File Sur−Reply by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration of Jeffrey S. Robins, # 2 Exhibit A − Proposed Surreply for Filing, # 3 Exhibit Exhibit 1 to Proposed Surreply − Form I−213, # 4 Exhibit Exhibit 2 to Proposed Surreply − ICE Jurisdictional Brief)(Robins, Jeffrey) (jpp). (Entered: 12/08/2017)
24 CERTIFICATE OF SERVICE by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement re 23 Ex Parte MOTION for Leave to File Sur−Reply (Robins, Jeffrey) (jpp). (Entered: 12/08/2017)
25 Minute Order for proceedings held before Judge Jeffrey T. Miller :Motion Hearing held on 12/12/2017, Submitting 13 Motion to Modify order granting motion for preliminary injunction re 12 Order on Motion for TRO filed by Alberto Luciano Gonzalez Torres. Written order to follow. Granting, 23 Ex Parte MOTION for Leave to File Sur−Reply filed by U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Customs and Border Protection, U.S. Citizenship and Immigration Services. [23−2] Sur−Reply by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement filed nunc pro tunc to 12/08/2017. (Court Reporter/ECR Ellen Simone). (Plaintiff Attorney John Chalres Ulin; Jaba Tsitsuashvili).(Defendant Attorney Jeffrey S. Robins). (no document attached) (gac) (Entered: 12/13/2017)
26 Ex Parte MOTION for Leave to File Letter filed as SUPPLEMENTAL DOCUMENT by Alberto Luciano Gonzalez Torres re 13 MOTION Modify order granting motion for preliminary injunction re 12 Order on Motion for TRO , 20 Ex Parte MOTION to Shorten Time on Plaintiff's Motion to Modify Preliminary Injunction (Dkt. No. 13) Ex Parte Application for Leave to File Letter Alerting the Court of News Pertinent to Concerns Expressed by the Court. (Attachments: # 1 Declaration, # 2 Supplement proposed letter alerting the Court of news pertinent to the Court's concerns, # 3 Exhibit, # 4 Exhibit)(Ulin, John) (aef). (Entered: 12/14/2017)
27 OBJECTION by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement re 26 Supplemental Document,, . (Attachments: # 1 Exhibit Motion to Dismiss NTA)(Robins, Jeffrey) (jpp). (Entered: 12/15/2017)
28 CERTIFICATE OF SERVICE by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement re 27 Objection, (Robins, Jeffrey) (jpp). (Entered: 12/15/2017)
29 ORDER Denying 13 Motion to Modify Preliminary Injunction. The Court denies the motion to modify the Order, without prejudice. Signed by Judge Jeffrey T. Miller on 12/15/2017. (aef) (Entered: 12/15/2017)

Case: 3:17-cv-1840 As of: 11/18/2019 02:02 PM PST 6 of 9

12/20/2017
12/22/2017 12/27/2017 12/29/2017 12/29/2017 01/05/2018 01/11/2018 01/12/2018 01/12/2018 01/12/2018 01/22/2018

30 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 12/12/2017, before Judge Jeffrey T. Miller. Court Reporter/Transcriber: Ellen L. Simone. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 1/10/2018. Redacted Transcript Deadline set for 1/22/2018. Release of Transcript Restriction set for 3/20/2018. (akr) (Entered: 12/21/2017)
31 Ex Parte MOTION re 12 Order on Motion for TRO by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Termination Notice, # 2 Declaration)(Robins, Jeffrey) (jpp). (Entered: 12/22/2017)
32 SCHEDULING ORDER − The court calendars 31 Defendants Ex Parte Applicationfor Order Dissolving Preliminary Injunction (Application) as a noticed motion and sets a hearing date of 2/05/2018 at 10:00am. Signed by Judge Jeffrey T. Miller on 12/27/2017.(jpp) (Entered: 12/27/2017)
33 Ex Parte MOTION for Extension of Time to File Answer re 1 Complaint,,,,, , Ex Parte MOTION Re−Notice Hearing re 32 Order,, Set Motion and R&R Deadlines/Hearings, by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Robins, Jeffrey) (jpp). (Entered: 12/29/2017)
34 CERTIFICATE OF SERVICE by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement re 33 Ex Parte MOTION for Extension of Time to File Answer re 1 Complaint,,,,, Ex Parte MOTION Re−Notice Hearing re 32 Order,, Set Motion and R&R Deadlines/Hearings, (Robins, Jeffrey) (jpp). (Entered: 12/29/2017)
35 AMENDED SCHEDULING ORDER − the court grants Defendants ex parte application toenlarge the time to respond to the complaint until January 15, 2018, and recalendars Defendants motion to dissolve the injunction from February 5 to February 12, 2018 at 10:00am. Signed by Judge Jeffrey T. Miller on 1/05/2018. (jpp) (Entered: 01/05/2018)
36 Ex Parte MOTION for Leave to File Excess Pages in Consolidated Memorandum in Opposition to Defendants' Pending Motion and in Support of Plaintiff's Pending Motion by Alberto Luciano Gonzalez Torres. (Attachments: # 1 Declaration)(Ulin, John) (jpp). (Entered: 01/11/2018)
37 ORDER granting 36 Plaintiff's ex parte application for order of 5−page extension of page limit. Signed by Judge Jeffrey T. Miller on 1/12/2018. (jpp) (Entered: 01/12/2018)
38 AMENDED COMPLAINT for Declaratory and Injunctive Relief against All Defendants, filed by Alberto Luciano Gonzalez Torres. (Ulin, John) (jpp). (Entered: 01/12/2018)
39 MOTION for Preliminary Injunction by Alberto Luciano Gonzalez Torres. (Attachments: # 1 Memo of Points and Authorities in Support of Motion for Preliminary Injunction, # 2 Declaration of Plaintiff Alberto Luciano Gonzalez Torres in Support of Motion for Preliminary Injunction, # 3 Declaration of John C. Ulin in Support of Motion for Preliminary Injunction, # 4 Exhibit Exs. A through K, # 5 Exhibit Ex. L, # 6 Exhibit Exs. M through U)(Ulin, John) (jpp). (Entered: 01/12/2018)
40 Ex Parte MOTION to Stay the entire case by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration, # 2 Exhibit Proposed Order)(Robins, Jeffrey) (jpp). (Entered: 01/22/2018)

Case: 3:17-cv-1840 As of: 11/18/2019 02:02 PM PST 7 of 9

01/22/2018 01/30/2018 02/02/2018
02/05/2018 02/05/2018 02/12/2018 02/15/2018 02/20/2018
02/23/2018 03/09/2018 03/16/2018 03/22/2018 03/23/2018

41 CERTIFICATE OF SERVICE by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement re 40 Ex Parte MOTION to Stay the entire case (Robins, Jeffrey) (jpp). (Entered: 01/22/2018)
42 Ex Parte MOTION for Extension of Time to File Answer , Ex Parte MOTION Re−Notice Hearing by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration)(Robins, Jeffrey) (jpp). (Entered: 01/30/2018)
43 ORDER granting 42 Defendants' ex parte application for enlargement of time to answer complaint and request to re−notice hearing. Plaintiffs Motion for Preliminary Injunction (Doc. No. 39 ), currently scheduled for hearing on 2/12/2018, and Defendants Ex Parte Application for Stay of the Entire Case( Doc. No. 40 ) shall both be heard on 2/27/2018 at 10:00am. Answer to complaint due 2/13/2018. Signed by Judge Jeffrey T. Miller on 2/02/2018. (jpp) (Entered: 02/02/2018)
44 RESPONSE in Opposition re 39 MOTION for Preliminary Injunction filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Robins, Jeffrey) (jpp). (Entered: 02/05/2018)
45 CERTIFICATE OF SERVICE by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement re 44 Response in Opposition to Motion, (Robins, Jeffrey) (jpp). (Entered: 02/05/2018)
46 REPLY to Response to Motion re 39 MOTION for Preliminary Injunction filed by Alberto Luciano Gonzalez Torres. (Ulin, John) (jpp). (Entered: 02/12/2018)
47 Ex Parte MOTION for Extension of Time to File Answer re 38 Amended Complaint by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration, # 2 Proof of Service)(Robins, Jeffrey) (jpp). (Entered: 02/15/2018)
48 ORDER granting in part and denying in part 47 application to enlarge time to respond; Scheduling Order. For good cause shown, the court grants the motion to enlarge time and orders Defendants to file their motion to dismiss by February 23, 2018. Plaintiffs response is due March 9, 2018, and Defendants reply is due by March 16, 2018. The court sets a hearing date on the motion for March 26, 2018 at 10:00a.m. In order to promote judicial economy, the court, on its own motion, also continues all pending motions (ECF 31 , 39 ) to March 26, 2018.Signed by Judge Jeffrey T. Miller on 2/20/2018. (jpp) (Entered: 02/20/2018)
49 MOTION to Dismiss by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Memo of Points and Authorities, # 2 Proof of Service)(Robins, Jeffrey) (jpp). (Entered: 02/23/2018)
50 RESPONSE in Opposition re 49 MOTION to Dismiss First Amended Complaint filed by Alberto Luciano Gonzalez Torres. (Ulin, John) (jpp). (Entered: 03/09/2018)
51 REPLY to Response to Motion re 49 MOTION to Dismiss filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Proof of Service)(Robins, Jeffrey) (jpp). (Entered: 03/16/2018)
52 Ex Parte MOTION for Leave to File Sur−Reply and Proposed Sur−Reply in Opposition to Motion to Dismiss First Amended Complaint by Alberto Luciano Gonzalez Torres. (Ulin, John)(acc). (Entered: 03/22/2018)
53 NOTICE of Appearance by James Joseph Walker on behalf of U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement (Walker, James)Attorney James Joseph Walker added to party U.S. Citizenship and Immigration Services(pty:dft), Attorney James Joseph Walker added to party U.S.

Case: 3:17-cv-1840 As of: 11/18/2019 02:02 PM PST 8 of 9

03/26/2018 04/12/2018 04/13/2018 04/30/2018
05/10/2018 05/11/2018 06/25/2018 07/02/2018 07/03/2018

Customs and Border Protection(pty:dft), Attorney James Joseph Walker added to party U.S. Department of Homeland Security(pty:dft), Attorney James Joseph Walker added to party U.S. Immigration and Customs Enforcement(pty:dft) (jpp). (Entered: 03/23/2018)
54 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Motion Hearing held on 3/26/2018. Oral argument held. Court takes Motions, 49 MOTION to Dismiss, 39 MOTION for Preliminary Injunction, 31 Ex Parte MOTION re 12 Order on Motion for TRO under submission. Written order to follow. (Court Reporter/ECR James Pence). (Plaintiff Attorney Jaba Tsitsuashvili; John Charles Ulin). (Defendant Attorney Jeffrey S. Robins; James Joseph Walker). (no document attached) (gac) (Entered: 03/26/2018)
55 ORDER denying Plaintiff's 39 Motion for Preliminary Injunction; Granting Defendants' 49 Motion to dissolve the September 29, 2018 preliminary injunction, and Motion to Dismiss the First Amended Complaint without leave to amend. The Clerk of Court is instructed to close the file. Signed by Judge Jeffrey T. Miller on 4/12/2018. (gac) (sjt). (Entered: 04/12/2018)
56 CLERK'S JUDGMENT. IT IS SO ORDERED AND ADJUDGED that judgment is in favor of U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement against Alberto Luciano Gonzalez by Judge Jeffrey T. Miller on 4/13/2018.(gac) (sjt). (Entered: 04/13/2018)
57 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 3/26/2018, before Judge Jeffrey T. Miller. Court Reporter/Transcriber: James C. Pence−Aviles. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 5/21/2018. Redacted Transcript Deadline set for 5/31/2018. Release of Transcript Restriction set for 7/30/2018. (akr) (Entered: 04/30/2018)
58 MOTION for Reconsideration re 56 Clerk's Judgment, 55 Order on Motion for Preliminary Injunction,, Order on Motion to Dismiss, by Alberto Luciano Gonzalez Torres. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration, # 3 Exhibit)(Ulin, John) (Entered: 05/10/2018)
59 NOTICE of Errata (Missing Table of Contents and Table of Authorities in Memorandum of Points and Authorities) and Corrected Memorandum by Alberto Luciano Gonzalez Torres re 58 MOTION for Reconsideration re 56 Clerk's Judgment, 55 Order on Motion for Preliminary Injunction,, Order on Motion to Dismiss, (Attachments: # 1 Memo of Points and Authorities Corrected Memorandum (Only to Add Table of Contents and Table of Authorities))(Ulin, John) (jpp). (Entered: 05/11/2018)
60 RESPONSE in Opposition re 58 MOTION for Reconsideration re 56 Clerk's Judgment, 55 Order on Motion for Preliminary Injunction,, Order on Motion to Dismiss, filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Walker, James) (jpp). (Entered: 06/25/2018)
61 REPLY to Response to Motion re 58 MOTION for Reconsideration re 56 Clerk's Judgment, 55 Order on Motion for Preliminary Injunction,, Order on Motion to Dismiss, filed by Alberto Luciano Gonzalez Torres. (Attachments: # 1 Exhibit)(Ulin, John) (jpp). (Entered: 07/02/2018)
62 Minute Order by Judge Jeffrey T. Miller: Submitting, 58 MOTION for Reconsideration re 56 Clerk's Judgment, 55 Order on Motion for Preliminary Injunction, Order on Motion to Dismiss. Motion Hearing set for 7/9/2018 10:00 AM before Judge Jeffrey T. Miller is vacated. Written order to follow. (no document attached) (gac) (Entered: 07/03/2018)

Case: 3:17-cv-1840 As of: 11/18/2019 02:02 PM PST 9 of 9

07/20/2018 08/01/2018
08/01/2018 08/03/2018 08/09/2018 10/02/2019
10/02/2019

63 ORDER denying 58 Motion for Reconsideration. Signed by Judge Jeffrey T. Miller on 7/20/2018. (jpp) (Entered: 07/20/2018)
64 NOTICE OF APPEAL to the 9th Circuit as to 56 Clerk's Judgment, 63 Order, 55 Order, by Alberto Luciano Gonzalez Torres. (Filing fee $ 505 receipt number 0974−11511602.) (Notice of Appeal electronically transmitted to US Court of Appeals.) (Ulin, John). (Modified on 8/1/2018: Edited docket text re linked Orders.) (akr). (Entered: 08/01/2018)
65 USCA Case Number 18−56037 for 64 Notice of Appeal to 9th Circuit, filed by Alberto Luciano Gonzalez Torres. (akr) (Entered: 08/01/2018)
66 ORDER of USCA as to 64 Notice of Appeal to 9th Circuit, filed by Alberto Luciano Gonzalez Torres. Based on a review of the USDC docket, this does not appear to be a preliminary injunction appeal. Briefing schedule issued. (Copy to Court Reporters.) (akr) (Entered: 08/06/2018)
67 TRANSCRIPT DESIGNATION AND ORDERING FORM by Alberto Luciano Gonzalez Torres for proceedings held on 9/28/2017, 12/12/2017, and 3/26/2018 re 64 Notice of Appeal to the 9th Circuit. (Ulin, John). (Modified on 8/9/2018: Added designated dates to the docket text.) (akr). (Entered: 08/09/2018)
68 MOTION to Withdraw as Attorney Jaba Tsitsuashvili by Alberto Luciano Gonzalez Torres. (Attachments: # 1 Declaration)(Tsitsuashvili, Jaba) Modified on 10/3/2019. Q.C. Mailer for not obtaining a date or time from the Clerk of the assigned Judge. Filer instructed to withdrawal and obtain a date and time before refiling (sjm). (Entered: 10/02/2019)
69 ORDER ON REQUEST TO WITHDRAW AS ATTORNEY re 68 Motion to Withdraw as Attorney. Attorney Jaba Tsitsuashvili terminated. Signed by Judge Jeffrey T. Miller on 10/2/2019. (sjm) (Entered: 10/02/2019)

 
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1 ARNOLD & PORTER KAYE SCHOLER LLP
2 JOHN C. ULIN (SBN 165524) john.ulin@apks.com
3 JABA TSITSUASHVILI (SBN 309012)
4 jaba.tsitsuashvili@apks.com 777 South Figueroa Street, 44th Floor
5 Los Angeles, CA 90017-5844
6 T: (213) 243-4000 F: (213) 243-4199
7 Attorneys for Plaintiff
8 ALBERTO LUCIANO GONZALEZ TORRES

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11 ALBERTO LUCIANO GONZALEZ

12 TORRES,

Plaintiff,

13

vs.

Case No. --- '17CV1840 JM NLS COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

14 U.S. DEPARTMENT OF

15

HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION

16

SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;

17

U.S. CUSTOMS AND BORDER PROTECTION; Does 1-10, inclusive,

18

Defendants.

19

20

21

22

23

24

25

26

27

28

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1

Plaintiff Alberto Luciano Gonzalez Torres (“Mr. Gonzalez”) brings this

2 Complaint seeking declaratory and injunctive relief.

3

Mr. Gonzalez is a two-time Deferred Action for Childhood Arrivals

4 (“DACA”) and employment authorization recipient. DACA status made him

5 “lawfully present” in the United States for its duration.

6

For the reasons set forth below, Mr. Gonzalez seeks a declaration that

7 Defendants’1 “automatic” termination of his DACA status (and attendant

8 employment authorization and other benefits)—without notice, opportunity to

9 contest, or opportunity to appeal—simultaneous to CBP’s issuance of a Notice to

10 Appear (“NTA”) charging nothing more than unlawful presence in the United

11 States:

12

(1) failed to adhere to the mandatory agency guidelines and policies set forth

13 in DHS’s DACA Standard Operating Procedures (“DACA SOP”);

14

(2) was arbitrary, capricious, and an abuse of discretion, in violation of the

15 Administrative Procedure Act (“APA”); and

16

(3) violated Mr. Gonzalez’s Fifth Amendment Procedural Due Process

17 rights.

18

In each of these ways, the termination of Mr. Gonzalez’s DACA status

19 violated the APA, 5 U.S.C. § 706(2), and must be declared unlawful and set aside.

20 Mr. Gonzalez seeks an order restoring his DACA status and employment

21 authorization while the Government provides him adequate notice of its intent to

22 terminate his benefits, a reasoned basis for its decision, and an opportunity to

23 respond with arguments and evidence demonstrating his continued DACA

24 eligibility and that he merits the Government’s continued favorable exercise of

25 deferred action.

26
27 1 Defendants U.S. Department of Homeland Security (“DHS”), U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs Enforcement
28 (“ICE”), and U.S. Customs and Border Protection (“CBP”) are referred to collectively as “the Government” unless addressed specifically.
1
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1

INTRODUCTION

2

Mr. Gonzalez was born in Mexico and brought to the United States at

3 approximately 8 years old—16 years ago. Since that time, he has never left

4 California, has no criminal history, and has been a productive member of his San

5 Diego community.

6

Mr. Gonzalez attended elementary and middle school in San Diego, where

7 he graduated on time from high school in 2011. In January 2013, the Government

8 granted him permission to live and work in the United States pursuant to its DACA

9 program. The Government renewed Mr. Gonzalez’s DACA status in December

10 2014 until December 22, 2017. Both times, he was subject to the Government’s

11 rigorous biographic and biometric background checks, and paid $495 fees.

12

Prior to receiving DACA status, during the period from 2011 to 2013, Mr.

13 Gonzalez was unable to secure employment because he was unwilling to

14 misrepresent his immigration status. But thanks to his DACA-related employment

15 authorization, Mr. Gonzalez quickly found lawful employment with an airline

16 supply company in 2013. He was tasked with stocking food and supplies on

17 commercial flights for American Airlines. In addition to the rigorous vetting

18 process he had undergone to obtain—and then renew—his DACA status and

19 employment authorization, Mr. Gonzalez’s airline industry job required him to

20 meet strict security protocols, including background checks and drug tests. He

21 passed them all.

22

On May 6, 2016, Mr. Gonzalez was detained by immigration officers while

23 dog-sitting at a house where CBP later alleged that undocumented immigrants

24 were present. The very next day, CBP issued him a Notice to Appear. The NTA’s

25 sole charge was unlawful presence in the United States under Section 212 of the

26 Immigration and Nationality Act (“INA”). See 8 U.S.C. § 1182(a)(6)(A)(i)

27 (“present in the United States without being admitted or paroled”). The NTA did

28 not allege any other criminal or unlawful activity.

2
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1

After two days of questioning, Mr. Gonzalez was virtually ignored for nearly

2 a month in immigration detention. Border Patrol officers apparently lost interest in

3 him and concluded that he was not involved in whatever events they were

4 investigating. Ultimately, an Immigration Judge ordered Mr. Gonzalez released on

5 a bond of only $5,000, after finding that he did not pose a threat to public safety.

6 DHS did not appeal. Since being released over 15 months ago, he has resumed

7 being a productive member of his family and San Diego community—though

8 stripped of his right to lawful employment. To this day, Mr. Gonzalez has never

9 been criminally charged or questioned again by any law enforcement agency or

10 officer in connection with the events of May 6, 2016. He has appeared at every

11 Immigration Court proceeding pursuant to his NTA.

12

On May 23, 2016, USCIS issued Mr. Gonzalez a Notice of Action,

13 informing him that: “On May 7, 2016, Customs and Border Protection (CBP)

14 issued you a Notice to Appear (NTA). USCIS is notifying you that your deferred

15 action as a childhood arrival and your employment authorization terminated

16 automatically as of the date your NTA [for unlawful presence] was issued.”

17

Mr. Gonzalez was a valued employee and productive member of the San

18 Diego community until his DACA status and employment authorization were

19 stripped pursuant to a Government “policy” that did not provide him any notice,

20 opportunity to contest, or opportunity to appeal. Upon his release from detention,

21 Mr. Gonzalez voluntarily informed his employer of his loss of employment

22 authorization. He had to be let go, but the employer asked him to reapply when he

23 regained the right to work.

24

JURISDICTION AND VENUE

25

1. This Court has jurisdiction pursuant to 28 U.S.C. § 1331.

26

2. This Court has remedial authority under the Declaratory Judgment

27 Act, 28 U.S.C. §§ 2201 and 2202, and the APA, 5 U.S.C. §§ 701-706.

28

3
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1

3. Venue is proper in the Southern District of California because a

2 substantial part of the events or omissions giving rise to this action occurred in this

3 District. 28 U.S.C. § 1391(e)(1).

4

PARTIES

5

4. Mr. Gonzalez is a 24-year-old resident of San Diego, California. He

6 was born in Mexico and brought to the United States in or around 2001, when he

7 was approximately 8 years old. Pursuant to its DACA program, the United States

8 Government twice conferred on Mr. Gonzalez the right to live and work in this

9 country—for set periods subject to renewal—after lengthy application processes,

10 rigorous security vetting, and substantial fee payments. In May 2016, the

11 Government terminated Mr. Gonzalez’s DACA status, employment authorization,

12 and attendant benefits without providing him prior notice of its intent to terminate

13 or an opportunity to be heard.

14

5. DHS is a cabinet department of the United States federal government

15 with responsibility for, among other things, administering and enforcing the

16 nation’s immigration laws. Its stated mission is to “safeguard the American

17 people, our homeland, and our values.” U.S. Department of Homeland Security, 18 “Our Mission.”2

19

6. USCIS is a federal agency within DHS “that oversees lawful

20 immigration to the United States.” U.S. Citizenship and Immigration Services, 21 “About Us.”3 USCIS administers the DACA program, including collection of

22 forms, documents, and fees; issuance of DACA approval and employment

23 authorization notices; and issuance of termination notices. USCIS was the agency

24 that “automatically” terminated Mr. Gonzalez’s DACA status and EAD without

25 notice or an opportunity to be heard.

26

7. ICE is a law enforcement agency within DHS that “enforces federal

27 laws governing border control, customs, trade and immigration to promote

28 2 https://www.dhs.gov/our-mission (last visited Sept. 7, 2017). 3 https://www.uscis.gov/aboutus (last visited Sept. 7, 2017).
4
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1 homeland security and public safety.” U.S. Immigration and Customs 2 Enforcement, “Who We Are.”4

3

8. CBP is a law enforcement agency within DHS that “is charged with

4 keeping terrorists and their weapons out of the U.S. while facilitating lawful

5 international travel and trade.” U.S. Customs and Border Protection, “About 6 CBP.”5 CBP issued Mr. Gonzalez’s NTA charging unlawful presence in the

7 United States.

8

9. Defendants Does 1-10 are currently unidentified individuals whose

9 actions, in addition to those of named Defendants, gave rise to Mr. Gonzalez’s

10 claims.

11

STATEMENT OF FACTS

12 Establishment and Terms of the DACA Program

13

10. On June 15, 2012, then-Secretary of Homeland Security Janet

14 Napolitano issued a memorandum establishing the DACA program. See June 15,

15 2012 Memorandum from Janet Napolitano to ICE, CBP, and USCIS, “Exercising

16 Prosecutorial Discretion with Respect to Individuals Who Came to the United 17 States as Children” (“DACA Memo”).6 The DACA Memo explained that the

18 “Nation’s immigration laws . . . are not designed to be blindly enforced without

19 consideration given to the individual circumstances of each case” and that

20 “additional measures are necessary to ensure that our enforcement resources are

21 not expended on . . . low priority cases.”

22

11. Accordingly, the Government enacted a program of deferred action

23 for individuals who were brought to the United States as children and meet specific

24 criteria. Deferred action is a well-established form of administrative action by

25 which the Executive Branch decides, for humanitarian or other reasons, to refrain

26
27 4 https://www.ice.gov/about (last visited Sept. 7, 2017). 5 https://www.cbp.gov/about (last visited Sept. 7, 2017).
28 6 https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretionindividuals-who-came-to-us-as-children.pdf.
5
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1 from seeking an individual’s removal from the country and authorizes his

2 continued lawful presence for a specified period.

3

12. A recipient of deferred action is eligible to receive employment

4 authorization. 8 C.F.R. § 274a.12(c). The DACA Memo directed USCIS to

5 “accept applications to determine whether [DACA recipients] qualify for work

6 authorization during [their] period of deferred action.”

7

13. President Obama explained that the Government instituted DACA

8 because “it makes no sense to expel talented young people, who, for all intents and

9 purposes, are Americans – they’ve been raised as Americans; understand

10 themselves to be part of this country . . . [and] want to staff our labs, or start new

11 businesses, or defend our country.” Accordingly, the President explained that

12 DHS would be “taking steps to lift the shadow of deportation from these young

13 people” and giving them “a degree of relief and hope.” The White House, Office

14 of the Press Secretary, “Remarks by the President on Immigration” (“Obama 15 Remarks”) (June 15, 2012).7

16

14. The DACA Memo established that the following criteria “should be

17 satisfied” for DACA eligibility:

18  came to the United States under the age of 16;

19  continuously resided in the United States for at least 5 years preceding the date

20 of the memorandum and was present in the United States on the date of the

21 memorandum;

22  is currently in school, has graduated from high school, has obtained a general

23 education development certificate, or is an honorably discharged veteran of the

24 Coast Guard or Armed Forces of the United States;

25  has not been convicted of a felony offense, a significant misdemeanor offense,

26 or multiple misdemeanor offenses, and does not otherwise pose a threat to national

27 security or public safety; and

28 7 https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-
president-immigration.
6
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1  is not above the age of 30.

2

15. The DACA Memo also directed that “[n]o individual should receive

3 deferred action . . . unless they first pass a background check.”

4

16. USCIS was tasked with implementing the DACA program, including

5 collection of forms, documents, and fees and issuance of DACA approval and

6 employment authorization notices. It promulgated a public policy document

7 detailing how the DACA program operates. See USCIS, “DACA Frequently 8 Asked Questions” (“DACA FAQ”).8

9

17. Deferred action is available for 2 years, subject to renewal upon

10 reapplication. A DACA recipient must reapply, pass another round of background

11 checks, and pay another $495. Renewal requires that the recipient “met the

12 guidelines for consideration of Initial DACA” and:

13  did not depart the United States on or after August 15, 2012 without advance

14 parole;

15  has continuously resided in the United States since submitting his most recent

16 request for DACA that was approved up to the present time; and

17  has not been convicted of a felony, a significant misdemeanor, or 3 or more

18 misdemeanors, and does not otherwise pose a threat to national security or public

19 safety.

20

18. A DACA recipient “may obtain employment authorization from

21 USCIS provided [he or she] can demonstrate an economic necessity for

22 employment.” DACA FAQ, Q4. Upon approval, the recipient is issued an

23 Employment Authorization Document (“EAD”).

24

19. Even an individual who (1) is in removal proceedings, (2) has a final

25 order of removal, or (3) has a voluntary departure order is eligible to apply for and

26 be granted DACA status. See DACA FAQ, Q10.

27 8 https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-
28 arrivals-process/frequently-asked-questions (updated Sept. 6, 2017; last visited
Sept. 7, 2017).
7
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1 Reaffirmation, Continuation, and Elimination of the DACA Program

2

20. From January to September 5, 2017, the Trump Administration

3 continued to process and grant new DACA applications, renewal applications, and

4 EADs.

5

21. On September 5, DHS announced a plan to phase out the DACA

6 program over a two year period. See Sept. 5, 2017 Memorandum from Elaine C.

7 Duke to ICE, CBP, and USCIS, “Memorandum on Rescission of Deferred Action 8 for Child Arrivals” (“Duke Memo”).9

9

22. The rescission reversed the current Administration’s several public

10 assurances that DACA remained its policy.

11

23. On February 20, 2017, then-Secretary of Homeland Security (and

12 current White House Chief of Staff) John Kelly issued a memorandum setting forth

13 DHS’s immigration enforcement priorities. See Feb. 20, 2017 Memorandum from

14 John Kelly to ICE, CBP, and USCIS, “Enforcement of the Immigration Laws to 15 Serve the National Interest” (“Kelly Memo”).10 The Kelly Memo “immediately

16 rescinded” “all existing conflicting directives, memoranda, or field guidance

17 regarding the enforcement of our immigration laws and priorities for removal,” but

18 specifically exempted the June 15, 2012 DACA Memo.

19

24. On June 15, 2017, DHS issued public guidance, explaining that

20 “DACA recipients will continue to be eligible as outlined in the June 15, 2012

21 memorandum”; EAD recipients “will be eligible to seek a two-year extension upon

22 their expiration”; and “[n]o work permits will be terminated prior to their current

23 expiration dates.” DHS, “Frequently Asked Questions: Rescission of

24 Memorandum Providing for Deferred Action for Parents of Americans and Lawful 25 Permanent Residents (‘DAPA’)” (June 15, 2017).11

26 9 https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca. 27 10 https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-
of-the-Immigration-Laws-to-Serve-the-National-Interest.pdf. 28 11 https://www.dhs.gov/news/2017/06/15/frequently-asked-questions-rescission-
memorandum-providing-deferred-action-parents.
8
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1

25. On April 21, 2017, President Trump—using the common term for

2 undocumented immigrants brought to the United States as children—assured that

3 the Administration is “not after the dreamers.” He was asked, “that’s going to be

4 the policy of your administration to allow the dreamers to stay?” The President

5 responded unequivocally: “Yes. Yes. That’s our policy.” He elaborated: “The

6 dreamers should rest easy. OK? I’ll give you that. The dreamers should rest

7 easy.” Associated Press, “Transcript of AP Interview with Trump” (“Trump 8 Interview”) (published Apr. 23, 2017).12

9 DACA Application and Renewal Process

10

26. A DACA applicant must submit to USCIS: (1) Form I-821D,

11 Consideration of Deferred Action for Childhood Arrivals; (2) Form I-765,

12 Application for Employment Authorization; (3) Form I-765WS, Worksheet

13 establishing economic need for employment; and (4) extensive documentation to

14 establish that he or she meets the DACA Memo’s eligibility criteria and USCIS’s

15 implementing criteria. See DACA FAQ, Q7, Q28-Q41.

16

27. A DACA applicant “must undergo biographic and biometric

17 background checks before USCIS will consider [his or her] request.” DACA FAQ,

18 Q22. This involves checking biographic and biometric information “against a

19 variety of databases maintained by DHS and other federal government agencies.”

20 DACA FAQ, Q23.

21

28. To be considered, an applicant must also pay a $495 fee, which

22 “cannot be waived.” USCIS, “I-821D, Consideration of Deferred Action for 23 Childhood Arrivals.”13

24

29. A DACA renewal applicant must submit the same forms, undergo

25 another round of biographic and biometric background checks, and pay another 26 $495 fee. USCIS, Form I-821D, OMB No. 1615-0124.14

27

28 12 https://www.apnews.com/c810d7de280a47e88848b0ac74690c83. 13 https://www.uscis.gov/i-821d (updated Sept. 5, 2017; last visited Sept. 7, 2017).
9
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1

30. If the background checks or other information indicate that the

2 applicant’s presence “threatens public safety or national security,” deferred action

3 will be denied absent “exceptional circumstances.” Indicators of such a threat

4 include gang membership, participation in certain criminal activities, or

5 participation in activities that threaten the United States. DACA FAQ, Q65.

6

31. In 2015, USCIS further screened all individuals who had been granted

7 DACA status “to identify records that contained information indicating known or

8 suspected gang association.” Apr. 17, 2015 Letter from USCIS Director Leon 9 Rodriguez to Senate Judiciary Chairman Charles E. Grassley.15

10

32. Even an individual (1) in removal proceedings, (2) with a final order

11 of removal, or (3) with a voluntary departure order may apply for and be granted

12 DACA status. See DACA FAQ, Q7. In support, such an individual can provide

13 USCIS with “initial evidence” and “supporting documents” to plead eligibility and

14 controvert Government allegations against that person.

15 The Government’s DACA Termination Guidelines and Policies

16

33. The DACA SOP governs USCIS’s implementation of the DACA

17 program. It incorporates the 2011 USCIS Memo and the relevant procedures set

18 forth therein.

19

34. Under the DACA SOP, “[i]f disqualifying criminal offenses or public

20 safety concerns . . . arise after” DACA status is granted, USCIS must issue the

21 recipient a “Notice of Intent to Terminate” (“NOIT”) and “allow [him or her] 33

22 days to file a brief or statement contesting the grounds cited” therein. DHS,

23 “National Standard Operating Procedures, Deferred Action for Childhood

24 Arrivals” (“DACA SOP”), Chapter 14 (Aug. 28, 2013).

25

26
27 14 https://www.uscis.gov/system/files_force/files/form/i-821dinstr.pdf?download=1 (updated Jan. 9, 2017; expires Jan. 31, 2019; last visited Sept. 7, 2017).
28 15 https://www.judiciary.senate.gov/imo/media/doc/2015-0417%20USCIS%20to%20CEG%20(DACA%20for%20Gang%20Member).pdf.
10
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1

35. The exception to this rule is when USCIS follows a specific protocol

2 for cases involving Egregious Public Safety (“EPS”) concerns. If USCIS suspects

3 that a particular DACA recipient poses an EPS concern, it must send the case to

4 the Background Check Unit (“BCU”) DACA Team for consideration. If BCU

5 suspects an EPS concern, it must refer the case to ICE to make a determination.

6 DACA SOP, Chapter 14; Nov. 7, 2011 USCIS Policy Memorandum (“USCIS 7 Memo”) at 3.16

8

36. “All EPS cases must be referred to ICE” for “an opportunity to decide

9 if, when, and how to issue an NTA . . . . USCIS will not issue an NTA in these

10 cases if ICE declines to issue an NTA. . . . This referral process is utilized in order

11 to give ICE the opportunity to determine the appropriate course of action before

12 USCIS adjudicates the case.” USCIS Memo at 4. If, and only if, ICE issues an

13 NTA on the basis of an EPS concern, USCIS may then terminate an individual’s

14 DACA status without providing prior notice or an opportunity to be heard. ICE’s

15 issuance of an NTA after an EPS referral is meant to allow USCIS to “proceed

16 with adjudication, . . . taking into account the basis for the NTA.” USCIS Memo at

17 4.

18

37. Neither the DACA SOP nor the USCIS Memo authorizes termination

19 without notice when CBP issues an NTA. In that instance, an NOIT and 33 days

20 to respond are required. DACA SOP, Chapter 14 and Appendix I.

21

38. An EPS referral does not require being charged or convicted of any

22 crime. It requires only “information indicat[ing] the alien is under investigation

23 for, has been arrested for (without disposition), or has been convicted of” one of a

24 list of crimes, defined in Section 101 of the INA. USCIS Memo at 3.

25

26

27 16
28 https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_M emoranda/NTA%20PM%20%28Approved%20as%20final%2011-7-11%29.pdf.
11
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1

39. The USCIS Memo suggests that the determination to “investigate” or

2 “arrest without disposition” a DACA recipient for one of the specific crimes may

3 have been made by any single local, state, or federal law enforcement agent.

4

40. USCIS affords a DACA recipient no opportunity to contest the

5 grounds for an EPS referral.

6 The Government’s Representations to DACA Applicants and Recipients

7

41. DACA status confers numerous benefits on a recipient as part of the

8 Government’s recognition that the United States “continue[s] to benefit . . . from

9 the contributions of those young people who have come forward and want nothing

10 more than to contribute to our country and our shared future.” Dec. 30, 2016

11 Letter from then-Secretary of Homeland Security Jeh Charles Johnson to 12 Representative Judy Chu (“Johnson Letter”) at 2.17

13

42. In 2016, over 100 members of Congress sought confirmation that

14 DACA applicants’ personal identifying information would be safeguarded. The

15 Government affirmed that its “representations” that such information would not be

16 used for “other immigration-related purposes . . . must continue to be honored.”

17 The Government understands that “DACA applicants most assuredly relied” on its

18 representations. Dec. 30, 2016 Johnson Letter at 1-2.

19

43. More broadly, the DACA SOP codified the Government’s

20 commitment to the DACA program, effectively limiting the exercise of agency

21 discretion with “nearly 150 pages of specific instructions” for granting, denying,

22 and terminating deferred action. Texas v. U.S., 809 F.3d 134, 173 (5th Cir. 2015)

23 (citing the DACA SOP as evidence that DACA is not a truly discretionary

24 program), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016).

25

44. Executive and Legislative Branch officials from both political parties

26 have reinforced the promises of the DACA program. They have publicly

27 17
28 https://chu.house.gov/sites/chu.house.gov/files/documents/DHS.Signed%20Respon se%20to%20Chu%2012.30.16.pdf.
12
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1 acknowledged that hundreds of thousands of DACA applicants and recipients have

2 relied on the Government (1) to honor the benefits conferred by DACA and (2)

3 implement and enforce it without policies or actions that are arbitrary, capricious,

4 an abuse of discretion, contrary to internal guidelines, or unconstitutional.

5  In January 2017, Speaker of the House Paul Ryan said that the Government

6 must ensure “that the rug doesn’t get pulled out from under” DACA recipients and

7 their families, because they have “organize[d] [their] li[ves] around” the DACA

8 program. CNN, “Transcripts: Town Hall Meeting with House Speaker Paul Ryan” 9 (Jan. 12, 2017).18

10  In February 2017, Arizona Congressman Raul Grijalva called on the

11 Government to “honor its word to protect” those who came forward “expecting”

12 the Government to uphold its “commitment.” Congressional Progressive Caucus,

13 “Congressional Progressive Caucus Leaders Respond to ICE Arrest of DACA 14 Recipient” (Feb. 16, 2017).19

15  In March 2017, then-DHS Secretary Kelly reaffirmed that DACA status “is a

16 commitment . . . by the government towards the DACA person.” Ted Hesson and

17 Seung Min Kim, “Wary Democrats Look to Kelly for Answers on Immigration,” 18 Politico (Mar. 29, 2017).20

19  And in April 2017, President Trump reiterated that “[D]reamers should rest

20 easy.” Apr. 21, 2017 Trump Interview.

21

45. However, on September 5, 2017, DHS announced President Trump’s

22 plan to phase out the DACA program over the next two years. Current DACA

23 recipients whose status expires before March 5, 2018 have until October 5, 2017 to

24 apply to USCIS for a two-year renewal.

25

26 18 https://transcripts.cnn.com/TRANSCRIPTS/1701/12/se.01.html. 27 19 https://cpc-grijalva.house.gov/press-releases/congressional-progressive-caucus-
leaders-respond-to-ice-arrest-of-daca-recipient/. 28 20 https://www.politico.com/story/2017/03/wary-dems-look-to-kelly-for-answers-
on-immigration-236673.
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1 Benefits Conferred by the Government on DACA Recipients

2

46. DACA status confers numerous benefits on a recipient. Chief among

3 them is USCIS’s explanation that a DACA recipient “is authorized by DHS to be

4 present in the United States, and is therefore considered by DHS to be lawfully

5 present during the period deferred action is in effect.” DACA FAQ, Q1; see

6 Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053, 1058-59 (9th Cir. 2014)

7 (“DHS considers DACA recipients not to be unlawfully present in the United

8 States because their deferred action is a period of stay authorized by the Attorney

9 General.”) (citing 8 U.S.C. § 1182(a)(9)(B)(ii) and 8 C.F.R. § 214.14(d)(3)); Texas

10 v. U.S., 809 F.3d at 148 (“[L]awful presence” has “significant legal

11 consequences.”).

12

47. Because DACA recipients are lawfully present, the Government has

13 directed ICE and CBP “to prevent qualifying individuals from being apprehended,

14 placed into removal proceedings, or removed.” DACA FAQ, Q9.

15

48. DACA recipients are also eligible for a DACA-specific EAD “for the

16 period of deferred action,” for which they would otherwise be ineligible. DACA 17 FAQ, Q1; see 8 C.F.R. § 274a.12, Category (c)(33).21

18

49. DACA recipients may apply for certain federal public benefits for

19 which they would otherwise be ineligible, including Social Security retirement

20 benefits, Social Security disability benefits, and Medicare Part A health insurance

21 benefits. See 8 U.S.C. § 1611(b)(2)-(3). They may also be eligible for state public

22 benefits, including a driver’s license or unemployment insurance. See 8 U.S.C. §

23 1621(d). Accord Texas v. U.S., 809 F.3d at 148.

24

50. DACA recipients, by virtue of obtaining Social Security Numbers, are

25 also afforded ancillary benefits that are typically unavailable or difficult to obtain

26 for undocumented immigrants, including opening a bank account, obtaining a

27 21 https://www.uscis.gov/working-united-states/information-employers-
28 employees/employer-information/employment-authorization (updated Jan. 27,
2015; last visited Sept. 7, 2017).
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1 credit card, starting a business, purchasing a home or car, and obtaining financial

2 aid for higher education.

3

51. DACA recipients do not accrue time for unlawful presence for

4 admissibility purposes under 8 U.S.C. § 1182(a)(9)(B)(i). See DACA FAQ, Q5.

5 And—prior to the September 5 change in policy—for certain humanitarian,

6 educational, and employment purposes, recipients could briefly leave the country

7 and legally return, a benefit the Government does not afford to those it does not

8 deem lawfully present. See DACA FAQ, Q57.

9

52. In short, “lawful presence removes the categorical bar” to certain

10 public benefits and participation in several crucial elements of social, civic, and

11 economic life in the United States. Texas v. U.S., 809 F.3d at 148.

12

53. In other words, the Government has taken steps to “lift the shadow of

13 deportation from these young people” and given them “a degree of relief and

14 hope.” June 15, 2012 Obama Remarks. As a result of DACA, hundreds of

15 thousands of Dreamers “have been able to enroll in colleges and universities,

16 complete their education, start businesses that help improve our economy, and give

17 back to our communities as teachers, medical professionals, engineers, and

18 entrepreneurs—all on the books.” Dec. 30, 2016 Johnson Letter at 2.

19 Mr. Gonzalez’s DACA Status and Employment Authorization

20

54. Mr. Gonzalez graduated on time from Altus Charter High School in

21 San Diego in 2011. Despite the support of his family and friends, he was unable to

22 secure lawful employment from 2011 to 2013 because he was unwilling to

23 misrepresent his immigration status to prospective employers.

24

55. In 2013, Mr. Gonzalez learned of the DACA program. He expended

25 significant time and resources filling out the USCIS forms; gathering the necessary

26 supporting evidence and documentation; attending a biometrics appointment where

27 his photograph and fingerprints were taken; and paying the $495 filing fee.

28

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1

56. Mr. Gonzalez provided the Government his birth certificate; school

2 records from childhood to graduation, including report cards and certificates of

3 achievement; several years of his family’s tax returns; and his prior addresses, all

4 of which are in San Diego.

5

57. Ultimately, the Government granted Mr. Gonzalez DACA status and

6 employment authorization on January 22, 2013, valid until January 21, 2015.

7

58. In 2014, Mr. Gonzalez timely applied for renewal of his DACA status

8 and EAD, again complying with the paperwork and biographic and biometric

9 background checks, and paying a second fee. Upon review of these materials, the

10 Government granted Mr. Gonzalez’s renewal application, deeming him lawfully

11 present and authorized to work in the United States until December 22, 2017.

12

59. In 2015, USCIS further screened all individuals who had been granted

13 DACA status “to identify records that contained information indicating known or

14 suspected gang association.” Apr. 17, 2015 Letter from USCIS Director Leon 15 Rodriguez to Senate Judiciary Chairman Charles E. Grassley.22

16

60. The Government therefore confirmed, on at least 3 separate occasions,

17 that Mr. Gonzalez is deserving of DACA benefits and does not pose a threat to

18 national security or public safety.

19

61. In an apparent oversight, on June 25, 2017—over a year after

20 automatically terminating his DACA status and EAD—USCIS sent Mr. Gonzalez

21 a notice to timely submit his DACA and EAD renewal applications ahead of their

22 December expiration.

23 Mr. Gonzalez’s Employment

24

62. With EAD in hand, Mr. Gonzalez sought and quickly obtained

25 employment in 2013. He was hired to perform food and equipment setup and

26 stocking for Gate Gourmet, a provider of airline catering and provision services.

27 Because he was preparing trays that were carried on commercial aircraft, Mr.

28 22 https://www.judiciary.senate.gov/imo/media/doc/2015-04-
17%20USCIS%20to%20CEG%20(DACA%20for%20Gang%20Member).pdf.
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1 Gonzalez’s employer required that he pass additional security tests, including

2 interviews, drug tests, security clearance protocols, and EAD verification. He

3 passed all of them.

4

63. Mr. Gonzalez was a dutiful and trusted employee for nearly 3 years.

5 He was primarily responsible for provisioning 7 flights, 5 nights a week for

6 American Airlines, but was often tasked with helping others who were responsible

7 for Canada Air, Delta, Hawaiian, United, and US Airways. From the time he was

8 hired to the time of his inexplicable arrest and detention, Mr. Gonzalez worked 5

9 nights a week from approximately 7:00 p.m. to 4:00 a.m. Upon coming home to

10 his shared apartment, he often slept most of the day before returning to work in the

11 evening.

12

64. The money Mr. Gonzalez made at Gate Gourmet went toward

13 supporting his family. He was also saving up to buy his own car, but after he was

14 detained, his family was forced to divert those savings to securing his release.

15

65. When Mr. Gonzalez was released from his month-long detention, he

16 voluntarily informed Gate Gourmet that his EAD had been terminated. He had to

17 be let go, but his employer asked him to reapply when his EAD or other

18 employment authorization is restored.

19 Mr. Gonzalez’s Arrest, Detention, and Release

20

66. On May 6, 2016, an acquaintance known to Mr. Gonzalez only as

21 “Adolfo” asked him to come to his home and care for his dogs for the afternoon

22 while Adolfo was out of town. Mr. Gonzalez agreed, having previously done so

23 without issue. His sister dropped him off at Adolfo’s home sometime between

24 11:30 a.m. and 1:00 p.m.

25

67. Mr. Gonzalez entered the unlocked home and was surprised to

26 discover that 2 people were already there. One was a man whom Mr. Gonzalez

27 recognized as “Romeo,” and the other was a woman he did not know.

28

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1

68. Having fed and cleaned up after the dogs, and realizing that others

2 were there to look after them, Mr. Gonzalez considered leaving. But he was

3 without transportation.

4

69. For the rest of the afternoon, Mr. Gonzalez kept to himself, passing

5 the time watching movies and television while he waited for his sister to pick him

6 up and take him to his regular early-evening-to-early-morning work shift. At

7 approximately 4:00 p.m., a law enforcement officer knocked on the front door and

8 asked to enter the house. Mr. Gonzalez felt it was inappropriate to allow them into

9 someone else’s home unless they had a search warrant. He said so to the officers,

10 who stopped trying to enter the house and stopped speaking to him. But Mr.

11 Gonzalez noticed that the officers continued to surround the house.

12

70. About an hour later, a man Mr. Gonzalez did not recognize arrived at

13 the house with the law enforcement officers. He identified himself as the owner

14 and asked Mr. Gonzalez to exit.

15

71. By that time, Mr. Gonzalez knew he would soon have to leave for

16 work. His manager had an unforgiving policy toward tardiness, and Mr. Gonzalez

17 believed he would have little difficulty resolving the situation with law

18 enforcement and being allowed to go to work.

19

72. Mr. Gonzalez (and Romeo) exited the house. Relying on the

20 Government’s assurances—publicly and in his DACA approval notices—that

21 DACA status barred his apprehension as long as he had not committed any crimes,

22 which he had not, Mr. Gonzalez informed the officers of his DACA status and of

23 his need to get to work.

24

73. Mr. Gonzalez had his DACA EAD with C-33 classification with him.

25 He handed it to one of the officers for verification.

26

74. After that officer walked away, a second officer told Mr. Gonzalez

27 that he would be detained. Mr. Gonzalez asked why, to which the officer replied

28

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1 that he was in the country illegally and his DACA status did not matter. A third

2 officer abruptly grabbed Mr. Gonzalez by the arm and handcuffed him.

3

75. Romeo was taken away in handcuffs, and the officer who threatened

4 Mr. Gonzalez with detention and the officer who handcuffed him went inside the

5 house.

6

76. Mr. Gonzalez sat on the front porch—handcuffed—unable to see

7 inside the house. He heard no sounds coming from inside the house. He did not

8 see or hear anyone else go in or out of the house. Within a couple of minutes—

9 without further questioning or explanation—the officer who was checking Mr.

10 Gonzalez’s immigration status put him in a police car and took him away. Mr.

11 Gonzalez did not see that officer speak to or engage with anyone who went inside

12 the house.

13

77. Mr. Gonzalez was taken to a detention facility, where he was

14 questioned by a handful of officers, one at a time. They did not ask any specific or

15 pointed questions. Mr. Gonzalez repeatedly answered to the effect of, “I don’t

16 understand why I’m being detained.”

17

78. During the questioning, officers threatened to detain his family

18 members.

19

79. Seeing and fearing the officers’ hostility and willingness to threaten

20 him and his family for reasons he did not understand, Mr. Gonzalez handed over

21 his phone.

22

80. The officers looked through the contacts and communications, asking

23 who certain names were. Mr. Gonzalez gave them the boring answers: “my soccer

24 buddy,” “my ex-girlfriend,” “my brother,” and so on. Mr. Gonzalez saw the

25 disappointment in the officers’ faces as they scoured the phone’s contents.

26

81. For 2 or 3 days, Mr. Gonzalez was denied food, deliberately woken up

27 with loud bangs by officers (who laughed at his shocked fear), and threatened with

28 detention of his family. After that, the officers apparently lost interest in Mr.

19
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1 Gonzalez. He was transferred to a second facility. For approximately a week he

2 was ignored. No one came to question him, and his requests for an explanation or

3 right to call his family simply went unanswered. Subsequently, Mr. Gonzalez was

4 transferred to a third facility, where he was finally permitted to contact his family

5 after approximately 10 days in detention.

6

82. For the final three or more weeks of Mr. Gonzalez’s detention, law

7 enforcement officers continued to ignore him. The questioning ceased entirely.

8 After the initial 2 days of threats, abuse, and unsubstantiated accusations, officers

9 apparently determined that Mr. Gonzalez had no part in the events at Adolfo’s

10 house that concerned them and was not a person of interest.

11

83. On June 1, 2016—nearly a month after his unwarranted and unlawful

12 arrest and detention—Immigration Judge McSeveney ordered Mr. Gonzalez

13 released from custody on a mere $5,000 bond. The Judge stated that Mr. Gonzalez

14 was not a danger to the public. DHS waived appeal, and Mr. Gonzalez was finally

15 released on June 3, 2016.

16 USCIS’s Automatic Termination of Mr. Gonzalez’s DACA Status and EAD

17

84. On May 7, 2016—the day after Mr. Gonzalez’s arrest—CBP issued

18 him an NTA. Its sole charge is that Mr. Gonzalez is unlawfully present in the

19 United States under Section 212 of the INA, 8 U.S.C. § 1182(a)(6)(A)(i). The

20 NTA made no other allegations of wrongdoing or unlawful behavior, let alone

21 criminality.

22

85. On May 23, 2016, USCIS sent Mr. Gonzalez a Notice of Action,

23 explaining that:

24  “On May 7, 2016, Customs and Border Protection (CBP) issued you a Notice

25 to Appear (NTA).”

26  “USCIS is notifying you that your deferred action as a childhood arrival and

27 your employment authorization terminated automatically as of the date your NTA

28 [for unlawful presence] was issued.”

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1  “An appeal or motion to reopen/reconsider this notice of action may not be filed

2 on behalf of the requestor.”

3

CAUSES OF ACTION

4

COUNT ONE

5

Administrative Procedure Act – Arbitrary and Capricious Action

6

86. Mr. Gonzalez repeats and incorporates by reference each and every

7 preceding allegation as if fully set forth herein.

8

87. This Count seeks declaratory and injunctive relief under the APA.

9

88. The APA provides that courts “shall hold unlawful and set aside

10 agency action, findings, and conclusions found to be arbitrary, capricious, an abuse

11 of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

12

89. The termination of Mr. Gonzalez’s DACA status and work

13 authorization constitutes final agency action that cannot be appealed, as stated in

14 USCIS’s May 23, 2016 Notice of Action.

15

90. Agencies must provide “reasoned explanation[s]” for their actions,

16 and courts must reverse agency actions for which they cannot discern a reason.

17 The Government has provided no explanation—let alone a reasoned one—for its

18 automatic termination of Mr. Gonzalez’s DACA status and EAD in violation of

19 multiple provisions of the DACA SOP and USCIS Memo, which establish the

20 binding process for DACA termination.

21

91. The DACA SOP and USCIS Memo typically require USCIS to issue a

22 DACA beneficiary an NOIT and 33 days to respond before determining whether to

23 terminate DACA status. But USCIS did not provide Mr. Gonzalez with notice or

24 an opportunity to respond before terminating his DACA status. Termination may

25 proceed without notice when USCIS follows the protocol for EPS cases, see supra

26 ¶¶ 34-39, including referral of the case to BCU and ultimately to ICE and the

27 issuance of an NTA by ICE based on alleged EPS concerns. But USCIS did not

28 follow the protocol for EPS cases, nor did ICE issue Mr. Gonzalez an NTA based

21
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1 on a finding that his was an EPS case. Neither the DACA SOP nor the USCIS

2 Memo provides for “automatic” termination without notice when CBP issues an

3 NTA based on unlawful presence. But USCIS terminated Mr. Gonzalez’s DACA

4 status automatically upon CBP’s issuance of an NTA that listed unlawful presence

5 as its sole basis. Moreover, USCIS’s own guidelines make clear that, even upon

6 ICE’s issuance of an NTA in an EPS case, USCIS should proceed by “taking into

7 account the basis for the NTA.” USCIS Memo at 4. By adopting an unwritten

8 “policy” of automatic termination regardless of the basis for an NTA and

9 regardless of the issuing agency, USCIS expressly eschewed any consideration of

10 the basis for the NTA.

11

92. In at least these ways, USCIS’s termination of Mr. Gonzalez’s DACA

12 status violated established procedure for DACA termination and, for that reason,

13 was arbitrary and capricious.

14

93. USCIS’s termination of Mr. Gonzalez’s DACA status was also

15 arbitrary and capricious because USCIS failed to exercise its discretion through

16 reasoned decision-making and merely terminated his status “automatically” based

17 on a CBP officer’s decision to issue an NTA for unlawful presence, which is not

18 even a relevant factor in the determination of DACA eligibility.

19

94. The termination decision is also arbitrary and capricious because: (a)

20 USCIS failed to articulate any reason for terminating DACA benefits; (b) DACA

21 status is expressly available to those who are subject to NTAs and thus cannot

22 terminate automatically upon the issuance of an NTA; (c) it purports to rest on a

23 practice that finds no support in procedures that govern DACA termination and

24 constitutes an abrupt departure from established termination practice; (d) it would

25 make termination hinge on an immigration official’s decision to issue an NTA

26 without any allegation of wrongdoing; and (e) “automatic” termination does not

27 involve the exercise of discretion, which is required before USCIS may terminate

28 DACA status.

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1

95. For all of these reasons, USCIS’s decision to terminate Mr.

2 Gonzalez’s DACA status and work authorization violated the APA and must be set

3 aside as arbitrary, capricious, and an abuse of discretion.

4

COUNT TWO

5

Administrative Procedure Act – Unconstitutional Action

6

96. Mr. Gonzalez repeats and incorporates by reference each and every

7 preceding allegation as if fully set forth herein.

8

97. This Count seeks declaratory and injunctive relief under the APA.

9

98. The APA provides that courts “shall hold unlawful and set aside

10 agency action, findings, and conclusions found to be contrary to constitutional

11 right.” 5 U.S.C. § 706(2)(B). Defendants violated the APA because their

12 termination of Mr. Gonzalez’s DACA status and work authorization violated his

13 rights under the Due Process Clause.

14

99. The termination of Mr. Gonzalez’s DACA status and work

15 authorization constitutes final agency action that cannot be appealed, as stated in

16 USCIS’s May 23, 2016 Notice of Action.

17

100. Aliens who are physically present in the United States are guaranteed

18 the protections of the Due Process Clause. See Zadvydas v. Davis, 533 U.S. 678,

19 693 (2001); U.S. v. Peralta-Sanchez, 847 F.3d 1124, 1131 (9th Cir. 2017) (“[T]he

20 Due Process Clause applies to all ‘persons’ within the United States, including

21 aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”).

22

101. When a person has a protected liberty or property interest, the

23 Constitution constrains government action that deprives the person of that interest

24 without due process. See Nozzi v. Housing Authority of LA, 806 F.3d 1178, 1190-

25 91 (9th Cir. 2015); Mathews v. Eldridge, 424 U.S. 319 (1976).

26

102. DACA status confers a liberty interest to be free from apprehension,

27 arrest, or detention on the basis of immigration status. The term liberty also

28 encompasses the ability to work, raise a family, and “form the other enduring

23
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1 attachments of normal life.” Morrissey v. Brewer, 408 U.S. 471, 482 (1972).

2 Where, as here, an individual reasonably relies on a conferred status to pursue

3 these activities, that status cannot be revoked without due process. See Bell v.

4 Burson, 402 U.S. 535, 539 (1971).

5

103. DACA status also confers property interests, which “extend beyond

6 tangible property and include anything to which a plaintiff has a legitimate claim

7 of entitlement . . . [as] created [by] . . . rules or understandings that secure certain

8 benefits and that support claims of entitlement to those benefits.” Nozzi, 806 F.3d

9 at 1191.

10

104. Mr. Gonzalez possessed a property interest in his DACA status and

11 the numerous benefits conferred by it, including employment authorization,

12 eligibility for federal and state public benefits, and the ability to leave the country

13 and return legally under certain circumstances.

14

105. While the Government may argue that DACA status confers no

15 substantive rights or benefits, “the identification of property interests under

16 constitutional law turns on the substance of the interest recognized, not the name

17 given that interest by the state.” Newman v. Sathyavaglswaran, 287 F.3d 786, 797

18 (9th Cir. 2002). The “mutually explicit understandings” created by the

19 Government’s establishment and continuous operation of the DACA program—

20 under a well-defined framework and highly specific criteria—created a reasonable

21 expectation of entitlement to DACA status and its attendant benefits, which cannot

22 be terminated without due process. Perry v. Sindermann, 408 U.S. 593, 601

23 (1972).

24

106. Even if the Government’s ultimate decision about whether to

25 terminate Mr. Gonzalez’s DACA status is discretionary, its policy and process

26 must be rational and conform to constitutional procedural due process

27 requirements. See Galvin v. Hay, 374 F.3d 739, 758 (9th Cir. 2004) (“[F]ederal

28 officials do not possess discretion to violate constitutional rights.”)

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1

107. The Government’s conduct in depriving Mr. Gonzalez of his protected

2 liberty and property interests is evaluated under the three-part Eldridge test, under

3 which courts must balance (1) the nature of the interest and the degree of potential

4 deprivation, (2) the fairness and reliability of existing procedures and the value of

5 additional procedural safeguards, and (3) the public interest.

6

108. Here, the automatic termination of Mr. Gonzalez’s DACA status,

7 EAD, and other benefits without any notice or opportunity to be heard fails the

8 Eldridge test. First, his protected interests are extremely significant. Second, the

9 existing procedure is a wholly inadequate abrogation of the “essence of due

10 process”—notice and a meaningful opportunity to present one’s case. Eldridge,

11 424 U.S. at 348-49. And third, there is no credible burden associated with

12 adequate procedural safeguards, or public benefit from their absence.

13

109. For all of these reasons, Defendants’ automatic termination of Mr.

14 Gonzalez’s DACA status and work authorization violated his rights under the Due

15 Process Clause and must therefore be set aside as a violation of the APA.

16

COUNT THREE

17

Declaratory Relief

18

110. Mr. Gonzalez repeats and incorporates by reference each and every

19 preceding allegation as if fully set forth herein.

20

111. Mr. Gonzalez seeks a declaration that Defendants’ automatic

21 termination of his DACA status and EAD was arbitrary, capricious, an abuse of

22 discretion, and failed to adhere to the DACA SOP and USCIS Memo.

23

112. Mr. Gonzalez seeks a declaration that (1) he has constitutionally

24 protected liberty and property interests in his DACA status and its attendant

25 benefits, and therefore (2) Defendants’ termination of those interests without notice

26 of a reasoned basis for its decision and a meaningful opportunity to respond was

27 unlawful and invalid.

28

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1

113. Mr. Gonzalez seeks a declaration that, for all these reasons,

2 Defendants’ automatic termination of his DACA status and EAD violated the APA

3 and must be set aside.

4

PRAYER FOR RELIEF

5

WHEREFORE, Mr. Gonzalez prays that this Court grant the following

6 relief:

7

(1) Declare that Defendants’ termination of DACA status and its attendant

8 benefits—without notice, opportunity to contest, or opportunity to appeal—upon

9 CBP’s issuance of a Notice to Appear charging nothing more than unlawful

10 presence in the United States (i) is arbitrary, capricious, and an abuse of discretion;

11 (ii) violates Mr. Gonzalez’s rights under the Due Process Clause; and (iii) as a

12 result, violates the APA and must be set aside;

13

(2) Declare (i) that Mr. Gonzalez has constitutionally protected liberty and

14 property interests in his DACA status and its attendant benefits, and (ii) that

15 Defendants’ termination of those interests was unlawful and invalid;

16

(3) Set aside and enjoin Defendants’ decision to terminate Mr. Gonzalez’s

17 DACA status and EAD;

18

(4) Order Defendants to restore Mr. Gonzalez’s DACA status and attendant

19 benefits, including employment authorization, pending a reconsideration of its

20 termination decision, in which Defendants provide him notice of their intent to

21 terminate, a reasoned basis for that intent, and an opportunity to respond with

22 argument and evidence;

23

(5) Award Mr. Gonzalez reasonable costs and attorneys’ fees; and

24

(6) Grant any other and further relief that this Court deems fit and proper.

25

26

27

28

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1 Dated: September 11, 2017 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/ John C. Ulin John C. Ulin (SBN 165524) john.ulin@apks.com Jaba Tsitsuashvili (SBN 309012) jaba.tsitsuashvili@apks.com ARNOLD & PORTER KAYE SCHOLER LLP 777 South Figueroa Street, 44th Floor Los Angeles, CA 90017-5844 T: (213) 243-4000 F: (213) 243-4199
Attorneys for Plaintiff ALBERTO LUCIANO GONZALEZ TORRES

27
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1

CERTIFICATE OF ELECTRONIC FILING

2

3

I hereby certify that on September 11, 2017, I electronically filed the

4 foregoing document with the Clerk of the Court using CM/ECF.

5

6

/s/ John Ulin

7

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

 
 Case 3:17-cv-01840-JM-NLS Document 2 Filed 09/11/17 PageID.208 Page 1 of 6

1 ARNOLD & PORTER KAYE SCHOLER LLP
2 JOHN C. ULIN (SBN 165524) john.ulin@apks.com
3 JABA TSITSUASHVILI (SBN 309012)
4 jaba.tsitsuashvili@apks.com 777 South Figueroa Street, 44th Floor
5 Los Angeles, CA 90017-5844
6 T: (213) 243-4000 F: (213) 243-4199
7 Attorneys for Plaintiff
8 ALBERTO LUCIANO GONZALEZ TORRES

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11 ALBERTO LUCIANO GONZALEZ

12 TORRES,

Plaintiff,

13

vs.

14 U.S. DEPARTMENT OF

15

HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION

16

SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;

17

U.S. CUSTOMS AND BORDER PROTECTION; Does 1-10, inclusive,

Case No. --- '17CV1840 JM NLS PLAINTIFF’S EX PARTE EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION; APPLICATION FOR ORDER SHORTENING TIME AND EXPEDITED HEARING PRIOR TO OCTOBER 2017 ORAL ARGUMENT REQUESTED

18

Defendants.

19

20

21

22

23

24

25

26

27

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PLAINTIFF’S EX PARTE EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION; APPLICATION FOR ORDER SHORTENING TIME AND EXPEDITED HEARING PRIOR TO OCTOBER 2017

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1

In accordance with Federal Rule of Civil Procedure 65(b), Plaintiff Alberto

2 Luciano Gonzalez Torres (“Mr. Gonzalez”) respectfully moves this Court for a

3 temporary restraining order and/or preliminary injunction. Pursuant to Local Rules

4 7.1(a) and 7.1(e)(5), Mr. Gonzalez respectfully requests waiver of the 28-day

5 notice of motion requirement, and an expedited hearing prior to October 2017. Mr.

6 Gonzalez respectfully requests oral argument (in person or telephonically,

7 consistent with Local Rule 7.1(d)). Proposed orders have been properly submitted,

8 and Defendants are on notice. Mr. Gonzalez also requests that no fewer than seven

9 calendar days prior to the Court’s oral argument date, Defendants produce the

10 USCIS record upon which the determination to terminate Mr. Gonzalez’s Deferred

11 Action for Childhood Arrivals (“DACA”) status and employment authorization

12 was made.

13

For the reasons described below and set forth more fully in Mr. Gonzalez’s

14 accompanying Complaint for Declaratory and Injunctive Relief, Memorandum of

15 Points and Authorities, Declaration, Declaration of John C. Ulin, and exhibits

16 thereto, Mr. Gonzalez respectfully requests that this Court issue a temporary

17 restraining order and/or preliminary injunction temporarily enjoining Defendants’

18 revocation of his DACA status and employment authorization, in order for

19 Defendants to provide Mr. Gonzalez a Notice of Intent to Terminate DACA, an

20 opportunity to respond, and the opportunity to file a timely DACA renewal

21 application in advance of the October 5, 2017 deadline that Defendants imposed on

22 September 5, 2017. These procedures are mandated by Defendants’ internal

23 DACA policies and procedural due process.

24

Good cause exists for this Court to waive the 28-day notice requirement and

25 hold an expedited hearing. On September 5, 2017, Defendant Department of

26 Homeland Security (“DHS”) declared that Defendant United States Citizenship

27 and Immigration Services (“USCIS”) will (1) stop processing any new DACA

28 applications permanently, and (2) will not process any renewal DACA applications
1
PLAINTIFF’S EX PARTE EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION; APPLICATION FOR ORDER SHORTENING TIME AND EXPEDITED HEARING PRIOR TO OCTOBER 2017

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1 filed after October 5, 2017 (for those whose DACA status expires before March 5,

2 2018). Mr. Gonzalez’s DACA status (originally set to expire on December 22,

3 2017) was unlawfully revoked. He seeks this Court’s temporary restoration so that

4 he may apply for renewal. See Coyotl v. Kelly, 2017 WL 2889681, at *13 (N.D.

5 Ga. June 12, 2017) (ordering reinstatement of DACA status pending the

6 Government’s adjudication consistent with the DACA Standard Operating

7 Procedures).

8

As set forth more fully in Mr. Gonzalez’s accompanying Memorandum of

9 Points and Authorities, he satisfies each required element for a temporary

10 restraining order and/or preliminary injunction:

11

1. Mr. Gonzalez is likely to succeed on his claim that USCIS’s automatic

12 termination of his DACA status was arbitrary, capricious, an abuse of discretion,

13 and violated DHS’s DACA National Standard Operating Procedures (“DACA

14 SOP”) and USCIS’s November 7, 2011 Policy Memorandum. USCIS revoked Mr.

15 Gonzalez’s “lawful presence,” employment authorization, and other attendant

16 benefits (including the right to leave the country and lawfully return under certain

17 circumstances)—without any notice, opportunity to be heard, or opportunity to

18 appeal—simultaneous to Customs and Border Protection’s (“CBP”) charge that

19 Mr. Gonzalez was unlawfully present in the United States. That is the height of

20 arbitrary agency action. Because DACA status confers “lawful presence,” such an

21 automatic termination was arbitrary, capricious, and an abuse of discretion. It was

22 in violation of the DACA SOP, which requires a Notice of Intent to Terminate and

23 thirty-three days to respond before DACA termination. USCIS’s automatic

24 termination violated Mr. Gonzalez’s Fifth Amendment Procedural Due Process

25 rights by depriving him of liberty and property interests without any notice.

26

2. Mr. Gonzalez is suffering and will continue to suffer irreparable harm

27 as a result of Defendants’ unlawful termination of his DACA status and

28 employment authorization. Because of that unlawful termination, Mr. Gonzalez
2
PLAINTIFF’S EX PARTE EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION; APPLICATION FOR ORDER SHORTENING TIME AND EXPEDITED HEARING PRIOR TO OCTOBER 2017

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1 has been stripped of “lawful presence” in the United States and was forced to leave

2 his lawful employment in the airline industry. He has been barred from lawful

3 employment for over a year, despite his former employer’s assurance that it would

4 welcome his reapplication upon restoration of his right to work. With DHS’s

5 September 5, 2017 decision to stop accepting DACA renewal applications after

6 October 5, 2017, Mr. Gonzalez is at a highly elevated risk of irreparable harm:

7 Unless Defendants’ unlawful termination of Mr. Gonzalez’s DACA status is

8 enjoined (in order to provide Mr. Gonzalez notice and an opportunity to respond),

9 Mr. Gonzalez will be precluded from submitting a DACA renewal application

10 because of USCIS’s own previous unlawful action.

11

3. The balance of hardships tips heavily in Mr. Gonzalez’s favor, and the

12 public interest is not served by countenancing Defendants’ unlawful and arbitrary

13 stripping of Mr. Gonzalez’s DACA status and employment authorization. The

14 Government stands to lose nothing (and never stood to lose anything) by providing

15 Mr. Gonzalez notice and an opportunity to respond before terminating his DACA

16 status in accordance with its own guidelines and policies and basic principles of

17 procedural due process. Mr. Gonzalez was released from immigration detention

18 fifteen months ago and has never been charged with a crime or further investigated

19 in connection with the events that led to his detention. He was twice granted

20 DACA status after affirmative determinations by the Government that he had a

21 spotless criminal record and that he otherwise posed no public safety threat. Since

22 being released from immigration detention, Mr. Gonzalez has resumed his place as

23 a model member of his family and community. In short, there is no reason to

24 maintain the unlawful revocation of his lawful presence in this country and

25 deprivation of his right to work and pay taxes, as he did for nearly three years as a

26 law-abiding DACA recipient. DHS’s artificial and arbitrary October 5, 2017

27 deadline for DACA renewal applications only makes the need to undo Defendants’

28 unlawful actions all the more pressing.
3
PLAINTIFF’S EX PARTE EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION; APPLICATION FOR ORDER SHORTENING TIME AND EXPEDITED HEARING PRIOR TO OCTOBER 2017

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1

In pursuit of the relief sought here and for purposes of Defendants’

2 subsequent lawful adjudication of Mr. Gonzalez’s DACA termination and renewal,

3 Mr. Gonzalez requests that Defendants immediately present all relevant

4 documents, including but not limited to Mr. Gonzalez’s “A-file” and the entirety of

5 the USCIS record upon which the decision to automatically terminate Mr.

6 Gonzalez’s DACA status and employment authorization was based. See Portland

7 Audubon Soc. v. Endangered Species Committee, 984 F.2d 1534, 1548 (9th Cir.

8 1993) (“Section 706 of the APA provides that judicial review of agency action

9 shall be based on ‘the whole record,’” which “includes everything that was before

10 the agency pertaining to the merits of its decision.”). Mr. Gonzalez has a right to

11 review the agency record that formed the basis of Defendants’ actions, for which

12 Defendants must “articulate a satisfactory explanation,” including a “rational

13 connection between the facts found and the choice made.” Motor Vehicle Mfrs.

14 Assoc. of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

15

Mr. Gonzalez submitted a FOIA request for these documents to Defendant

16 USCIS on July 19, 2017. In nearly two months, USCIS has failed to produce

17 anything or explain the reasons for delay of this simple request. Mr. Gonzalez

18 respectfully requests that the Court order Defendants to produce these documents

19 no fewer than seven calendar days prior to the Court’s oral argument date. Mr.

20 Gonzalez’s request is narrow, simple, in pursuit of his statutory and constitutional

21 rights, and does not place any undue burden on Defendants, who have been on

22 notice of this request for nearly two months. See Smagin v. Yegiazaryan, 2015 WL

23 12762270, at *2 (C.D. Sept. 18, 2015).

24

For all of these reasons, Mr. Gonzalez respectfully requests that this Court

25 order an expedited hearing and grant his motion for a temporary restraining order

26 and/or preliminary injunction temporarily restoring his DACA status and

27 employment authorization prior to October 2017.

28
4
PLAINTIFF’S EX PARTE EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION; APPLICATION FOR ORDER SHORTENING TIME AND EXPEDITED HEARING PRIOR TO OCTOBER 2017

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1 Dated: September 11, 2017 Respectfully submitted,

2

/s/ John C. Ulin

3

John C. Ulin (SBN 165524)

john.ulin@apks.com

4

Jaba Tsitsuashvili (SBN 309012)

5

jaba.tsitsuashvili@apks.com

ARNOLD & PORTER KAYE SCHOLER LLP

6

777 South Figueroa Street, 44th Floor

7

Los Angeles, CA 90017-5844

T: (213) 243-4000

8

F: (213) 243-4199

9 Attorneys for Plaintiff

10

ALBERTO LUCIANO GONZALEZ TORRES

11

12

13

14

15

16

17

18

19

20

21

22

23

24

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27

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5
PLAINTIFF’S EX PARTE EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION; APPLICATION FOR ORDER SHORTENING TIME AND EXPEDITED HEARING PRIOR TO OCTOBER 2017

 
 Case 3:17-cv-01840-JM-NLS Document 9 Filed 09/21/17 PageID.399 Page 1 of 36

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
Attorneys for Defendants

8

9

UNITED STATES DISTRICT COURT

11

SOUTHERN DISTRICT OF CALIFORNIA

12

13

ALBERTO LUCIANO

) Case No. 3:17-CV-01840-JM-(NLS)

14 GONZALEZ TORRES,

)

15

)

Plaintiff,

) DEFENDANTS’ MEMORANDUM

16

) OF POINTS AND AUTHORITIES

17

v.

) IN OPPOSITION TO PLAINTIFF’S

18

U.S. DEPARTMENT OF

) EX PARTE EMERGENCY ) MOTION FOR TEMPORARY

19 HOMELAND SECURITY, et al., ) RESTRAINING ORDER AND/OR

20

) PRELIMINARY INJUNCTION

Defendants.

) [DKT. 2].

21

)

22

23

24

25

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27

28

3:17-CV-01840-JM-(NLS)

Case 3:17-cv-01840-JM-NLS Document 9 Filed 09/21/17 PageID.400 Page 2 of 36

1
2 I.
3 4
5 II.
6 7 8 9 11 12

TABLE OF CONTENTS INTRODUCTION ..................................................................................................... 1
A. Overview of Deferred Action and the DACA Policy............................ 2 B. Factual Background .............................................................................. 5
ARGUMENT ............................................................................................................. 8 A. Standards of Review............................................................................... 8 B. Plaintiff Cannot Sustain the Requirements for Preliminary Relief ........ 9 1. Plaintiff Cannot Demonstrate Imminent, Irreparable Harm ............. 9 2. Plaintiff is not Likley to Succeed on the Merits ............................. 10 a. This Court Lacks Jurisdiction to Review DHS’s Initiation of Removal Proceedings, and any Judicial Challenges to Removal must be Brought in a Petition for Review……… 10

13

i. The Court lacks jurisdiction under 8 U.S.C.

§ 1252(g). ............................................... ……… ..... 11

14

ii. Amy viable claims must be channeled through

15

Plaintiff’s removal proceedings and not this

Court........................................................... …… ..... 15
16

b. Nothing in the Constitution or APA Establishes a Right that

17

Constrains DHS’s Exercise of Discretion ........ ……… ..... 18

18

i. Plaintiff has no Constitutional Interest in Continued

19

DACA or Employment Authorization ............… ..... 18

20

1. Termination of DACA does not Infringe upon

an Established Constituional

21

Interest………………...……………………..19

22

i

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1
2. Termination of DACA does not Infringe upon a

2

Constitutional Interest based on an

Entitlement ……….…………………………20

3
ii. The APA Affords Plaintiff no Actionable Interest

4

Regarding the Termination of DACA or Employment

Authorization.......................................... ……… ..... 23

5
C. The Remaining Preliminary Injunction Factors Favor Defendants ... 25

6

CERTIFICATE OF SERVICE
7

8

9

11

12

13

14

15

16

17

18

19

20

21

22

ii

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1

TABLE OF AUTHORITIES

CASES
2

3 Acura of Bellevue v. Reich, 90 F.3d 1403 (9th Cir. 1996) .......................................................................................... 16
4

5

Aguilar v. Immigration & Customs, Enf’t, 510 F.3d 1 (1st Cir. 2007) ........................................................................ 15, 16, 23

6
Alliance for the Wild Rockies v. Cottrell, 7 632 F.3d 1127 (9th Cir. 2011) ..........................................................................................8

8 Arizona v. United States, 132 S. Ct. 2492 (2012) ..................................................................................................... 2
9
Arpaio v. Obama, 11 797 F.3d 11 (D.C. Cir. 2015)....................................................................................11, 13

12 Bd. of Regents of State Colleges v. Roth, 408 U.S. 564 (1972) .....................................................................................19, 20, 21, 22
13
Blantz v. Cal. Dep’t of Corr. & Rehab., 14 727 F.3d 917 (9th Cir. 2013) ..............................................................................20, 21, 22
15 Carranza, v. I.N.S., 277 F.3d 65 (1st Cir. 2002) ................................................................................ 12, 16, 24
16
Chaudhry v. Holder, 17 705 F.3d 289 (7th Cir. 2013) ............................................................................................2
18
Chavez-Navarro v. Ashcroft, 19 57 F. App’x 349 (9th Cir. 2003).....................................................................................12

20
Chuyon Yon Hong v. Mukasey,
21 518 F.3d 1030 (9th Cir. 2008) ........................................................................................17

22

iii

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1 Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981) ....................................................................................................... 22
2
Coyotl v. Kelly, 3 2017 WL 2889681 (N.D. Ga. June 12, 2017) ..................................................................1
4 De Mercado v. Mukasey, 566 F.3d 810 (9th Cir. 2009) .......................................................................................... 19
5
Earth Island Inst. v. Carlton, 6 626 F.3d 462 (9th Cir. 2010) ............................................................................................8
7 Fabian-Lopez v. Holder, No. 11-71513, 540 F. App’x 760 (9th Cir. Apr. 29, 2013) ............................................ 12
8
Flores-Panso v. Asher, 9 No. C13-1923-TSZ, 2014 WL 1338073 (W.D. Wash. Apr. 2, 2014)............................12
11 Garcia v. Google, Inc., 12 786 F.3d 733 (9th Cir. 2015) ............................................................................................9
13 Gerhart v. Lake Cnty., Mont., 637 F.3d 1013 (9th Cir. 2011) ........................................................................................ 22
14
Glenn v. Newman, 15 614 F.2d 467 (5th Cir. 1980) ..........................................................................................20
16 Goss v. Lopez, 419 U.S. 565 (1975) ....................................................................................................... 20
17
Heckler v. Chaney, 18 470 U.S. 821 (1985) .......................................................................................2, 10, 11, 13
19 Henry Schein, Inc. v. Cook, 191 F. Supp. 3d 1072 (N.D. Cal. 2016)............................................................................8
20
J.E.F.M. v. Lynch, 21 837 F.3d 1026 (9th Cir. 2016) ............................................................................15, 16, 17
22
iv

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1 Kaddoura v. Gonzales, No. C06-1402 RSL, 2007 WL 1521218 (W.D. Wash. May 21, 2007)..........................20
2
Leiva-Perez v. Holder, 3 640 F.3d 962 (9th Cir. 2011) ............................................................................................8
4 Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987) ........................................................................................ 25
5
Martinez v. Napolitano, 6 704 F.3d 620 (9th Cir. 2012) ..........................................................................................16
7 Meghrig v. KFC W., Inc., 516 U.S. 479 (1996) ......................................................................................................... 9
8
Mendez-Garcia v. Lynch, 9 840 F.3d 655 (9th Cir. 2016) ..........................................................................................20
11 Morales de Soto v. Lynch, 12 824 F. 3d. 822 (9th Cir. 2016) ........................................................................................11
13 Morrisey v. Brewer, 408 U.S. 471 (1972) ....................................................................................................... 19
14
Nken v. Holder, 15 556 U.S. 418 (2009) .......................................................................................................25
16 Paul v. Davis, 424 U.S. 693 (1976) ....................................................................................................... 19
17
Perales v. Casillas, 18 903 F.2d 1043 (5th Cir. 1990) ........................................................................................20
19 Perry v. Sindermann, 408 U.S. 593 (1972) ................................................................................................. 20, 21
20
Pilapil v. INS, 21 424 F.2d 6 (10th Cir. 1970) ............................................................................................19
22
v

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1 Plaza Health Labs., Inc. v. Perales, 878 F.2d 577 (2d Cir. 1989) ........................................................................................... 22
2
Quach v. Bank of Am., Nat. Ass’n, 3 No. 12–5037 EJD, 2012 WL 4498873 (N.D. Cal. Sept.28, 2012)...............................8, 9
4 Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ............................................................................................2, passim
5
Rodriguez v. Sessions, 6 No. 15-72487, 2017 WL 695192 (9th Cir. Feb. 22, 2017).............................................12
7 Romeiro de Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985) ........................................................................................ 12
8
Samayoa-Martinez v. Holder, 9 558 F.3d 897 (9th Cir. 2009) ..........................................................................................13
11 Senate of State of Cal. v. Mosbacher, 12 968 F.2d 974 (9th Cir. 1992) ............................................................................................8
13 Shearer v. Bowen, 216 F.3d 108 (5th Cir. 2000) .......................................................................................... 20
14
Sissoko v. Rocha, 15 509 F.3d 947 (9th Cir. 2007) ..........................................................................................14
16 Stanley v. Univ. of S. Cal., 13 F.3d 1313 (9th Cir. 1994) ............................................................................................ 9
17
Tefel v. Reno, 18 180 F.3d 1286 (11th Cir. 1999) ......................................................................................20
19 Torres-Aguilar v. INS, 246 F.3d 1267 (9th Cir. 2001) ........................................................................................ 15
20
United States v. Lee, 21 274 F.3d 485 (8th Cir. 2001) ..........................................................................................24
22
vi

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1 Univ. of Texas v. Camenisch, 451 U.S. 390 (1981) ..................................................................................................... 7, 8
2
Vilchiz-Soto v. Holder, 3 688 F.3d 642 (9th Cir. 2012) ..........................................................................................12

4 Villa-Anguiano v. Holder, 727 F.3d 873 (9th Cir. 2013) .......................................................................................... 23
5
Wayte v. United States, 6 470 U.S. 598 (1985) .......................................................................................................12

7 Winter v. Nat’l Res. Def. Council, 555 U.S. 7 (2008) ............................................................................................................. 8
8
WJA Realty Ltd. P’ship v. Nelson, 9 708 F. Supp. 1268 (S.D. Fla. 1989)................................................................................19

11 Wong v. United States, 12 373 F.3d 952 (9th Cir. 2004) ..........................................................................................14

13 Zixiang Li v. Kerry, 710 F.3d 995 (9th Cir. 2013) .......................................................................................... 14

14

STATUTES

15
5 U.S.C. § 701(a)(2)...........................................................................................................10
16
5 U.S.C. § 702 .................................................................................................................... 10
17
5 U.S.C. § 704 .................................................................................................................... 10
18
5 U.S.C. § 706(2)(A)..........................................................................................................10
19
5 U.S.C. § 706(2)(D)..........................................................................................................10
20
5 U.S.C. § 706(a)(1)...........................................................................................................14
21
8 U.S.C. § 1103(a)(1)...........................................................................................................2
22

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1
8 U.S.C. § 1182(a) ............................................................................................................... 2
2
8 U.S.C. § 1182(a)(6)(A)(i) ................................................................................................. 7
3
8 U.S.C. § 1182(a)(6)(E)(i) .................................................................................................. 6
4
8 U.S.C. § 1227(a) ............................................................................................................... 2
5
8 U.S.C. § 1229a ................................................................................................................ 11
6
8 U.S.C. § 1229(a) ............................................................................................................. 11
7
8 U.S.C. § 1252 .................................................................................................................. 14
8
8 U.S.C. § 1252(g) ..................................................................................................1, passim
9
8 U.S.C. § 1252(a)(2)(B)(ii) ................................................................................................ 1
11
12 8 U.S.C. § 1252(a)(5).............................................................................................15, 16, 17

13 8 U.S.C. § 1252(b)(9).............................................................................................15, 16, 17

14 8 U.S.C. § 1324(a)(1)(A)(iii) ...............................................................................................6

15

REGULATIONS

16 8 C.F.R. § 239.1(a).............................................................................................................23

17 8 C.F.R. § 274a.12(c)(14) ....................................................................................................2

18 8 C.F.R. § 274a.14(a)(1)(ii) ...............................................................................................23

19 8 C.F.R. § 274a.14(a)(2) ....................................................................................................23

20

OTHER AUTHORITIES

21
California Practice Guide: 22 Federal Civil Procedure Before Trial § 13:95 (2010) .................................................8, 9

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1 I. INTRODUCTION

2

Plaintiff Alberto Luciano Gonzalez Torres, (“Plaintiff” or “Mr. Gonzalez”) seeks

3 the extraordinary remedy from this Court of reinstating the DACA that was previously

4 terminated sixteen months ago so he may again seek a favorable exercise of the

5 Government’s prosecutorial discretion. Not only is Plaintiff’s motion for a restraining

6 order an emergency of his own making, but the relief he seeks requires this Court to

7 reject decades of precedent to recognize alleged rights and privileges that have never

8 existed for Plaintiff and similarly situated individuals.

9

Accordingly, Plaintiff cannot prevail on his emergency motion for a temporary

11 restraining order or preliminary injunction because he is not likely to succeed in obtaining

12 review of the Department of Homeland Security’s (“DHS”) discretionary decisions to

13 issue a Notice to Appear to place him in removal proceedings, and thereby automatically

14 terminate his DACA, related employment authorization, and other alleged ancillary

15 benefits.

16

Throughout his Complaint, Plaintiff places substantial and repeated, but misplaced,

17 reliance on Coyotl v. Kelly, 2017 WL 2889681 (N.D. Ga. June 12, 2017). See Dkt. 2-8,

18 Pl.’s Ex. E. Coyotl was both wrongly decided and distinguishable. First, the Coyotl court

19 never explained why the jurisdiction-limiting language of 8 U.S.C. § 1252(g) relates

20 solely to the review of discretionary administrative actions. See id. at 8-10. Coyotl

21 appears to confuse Section 1252(g) with 8 U.S.C. § 1252(a)(2)(B)(ii), which bars judicial

22 review only of certain discretionary determinations. See id. at 8-11. Coyotl is not,

23 therefore, persuasive on the meaning of 8 U.S.C. § 1252(g). Second, Coyotl is factually

24 and procedurally distinguishable. In that case, the termination of DACA did not take

25 place via the issuance of a Notice to Appear (“NTA”). But, as discussed below, Plaintiff’s

26 DACA was automatically terminated by the issuance of an NTA, a process squarely

27 supported by relevant procedures.

28

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1

A. Overview of Deferred Action and the DACA Policy

2

The Immigration and Nationality Act (“INA”) charges the Secretary of Homeland

3 Security “with the administration and enforcement” of the INA and “all other laws

4 relating to the immigration and naturalization of aliens.” 8 U.S.C. § 1103(a)(1).

5 Individuals are removable if, inter alia, “they were inadmissible at the time of entry, have

6 been convicted of certain crimes, or meet other criteria set by federal law.” Arizona v.

7 United States, 132 S. Ct. 2492, 2499 (2012); see 8 U.S.C. §§ 1182(a), 1227(a). The

8 federal government cannot practicably remove every removable alien. Rather, “[a]

9 principal feature of the removal system is the broad discretion exercised by immigration

11 officials.” Arizona, 132 S. Ct. at 2499. DHS, “as an initial matter, must decide whether it

12 makes sense to pursue removal at all.” Id. “At each stage the Executive has discretion to

13 abandon the endeavor.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,

14 483 (1999) (“AADC”). Like other agencies exercising enforcement discretion, DHS must

15 balance a number of factors that are within its expertise. See Heckler v. Chaney, 470 U.S.

16 821, 831 (1985).

17

Deferred action is “a regular practice” in which the Secretary exercises his

18 discretion “for humanitarian reasons or simply for [his] own convenience,” to notify an

19 alien of a non-binding decision to forbear from seeking his removal for a designated

20 period. See AADC, 525 U.S. at 483-84; 8 C.F.R. § 274a.12(c)(14) (“an act of

21 administrative convenience to the government which gives some cases lower priority”).

22 Through “[t]his commendable exercise in administrative discretion, developed without

23 express statutory authorization,” AADC, 525 U.S. at 484 (citations omitted), a removable

24 individual may remain present in the United States so long as DHS continues to forbear.

25

Deferred action does not confer lawful immigration status or provide any defense

26 to removal. Cf. Chaudhry v. Holder, 705 F.3d 289, 292 (7th Cir. 2013) (discussing the

27 difference between “unlawful presence” and “unlawful status” as two distinct concepts).

28

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1 An individual with deferred action remains removable at any time, and DHS has the

2 discretion to revoke deferred action unilaterally. See AADC, 525 U.S. at 484-85.

3

On June 15, 2012, DHS issued a memorandum entitled, “Exercising Prosecutorial

4 Discretion with Respect to Individuals Who Came to the United States as Children”

5 (“DACA Memo”). See Dkt. No. 2-5, Pl.’s Ex. B. That memorandum outlines a policy

6 known as Deferred Action for Childhood Arrivals (“DACA”) that is available to a certain

7 subset of individuals unlawfully present in this country. The DACA Memo states, “[t]his

8 memorandum confers no substantive right, immigration status or pathway to citizenship.

9 Only the Congress, acting through its legislative authority, can confer these rights.” Id. at

11 3. The memo does not address the topics of arrest by DHS or the grounds that DHS will

12 consider in terminating deferred action.

13

In mid-August 2012, USCIS published on its website a webpage entitled,

14 “Frequently Asked Questions,” which is now archived on the USCIS webpage. See Dkt.

15 No. 2-11, Pl.’s Ex. H. These FAQs provide guidance on the DACA policy and state,

16 “DACA is an exercise of prosecutorial discretion and deferred action may be terminated

17 at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion.” Id. at

18 Q:27. The FAQs also explain that the phrase “national security or public safety threat”

19 includes but is not limited to “gang membership, participation in criminal activities, or

20 participation in activities that threaten the United States.” See id. at Q:65. The Form I-

21 821D, entitled, “Instructions for Consideration of Deferred Action for Childhood

22 Arrivals” states, “[i]ndividuals who receive deferred action will not be placed into

23 removal proceedings or removed from the United States for a specified period of time,

24 unless the Department of Homeland Security (DHS) chooses to terminate the deferral.”

25 Exhibit A, Form I-821D Instructions.

26

DHS has provided procedural guidance for terminating deferred action in three

27 circumstances, one of which includes issuing a Notice of Intent to Terminate (“NOIT”)

28 and providing a chance for a DACA recipient to respond, and two in which such notice

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1 and an opportunity to respond is not required. See Dk.t No. 2-9, Pl.’s Ex. F, U.S.

2 Department of Homeland Security, National Standard Operating Procedures, Deferred

3 Action for Childhood Arrivals (“SOP”) (Aug. 28, 2013); Exhibit B, DACA SOP

4 Appendix I (March 1, 2016).

5

Most relevant here is the circumstance wherein a component of DHS, including

6 U.S. Immigration and Customs Enforcement (“ICE”) or U.S. Customs and Border

7 Protection (“CBP”), issues an NTA that commences removal proceedings once filed with

8 an immigration court. CBP or ICE may issue an NTA if the facts and circumstances

9 available at the time an alien is encountered counsel against the continuation of deferred

11 action, including where there is a criminal offense or public safety concern presented.

12 Moreover, USCIS can refer individuals for removal after termination of DACA if USCIS

13 becomes aware of a disqualifying criminal offense or public safety concern deemed to be

14 an Egregious Public Safety (EPS) issue. USCIS’s November 7, 2011, Policy

15 Memorandum identified shared NTA authority between USCIS, ICE, and CBP as a

16 means of ensuring consistency in enforcement. See Dkt. No. 2-10, Pl.’s Ex. G. Nothing in

17 that memorandum limits CBP or ICE from exercising their authority to issue an NTA.

18 Rather, pursuant to the DACA SOP and Appendix I, the issuance of an NTA

19 automatically terminates DACA, with no additional notice or opportunity to respond. See

20 Pl.’s Ex. F; Def.’s Ex. B. USCIS then generally sends a “Notice of Action” to the

21 individual informing him that his deferred action and employment authorization

22 terminated automatically as of the date the NTA was issued. See Def.’s Ex. B. This

23 “Notice of Action” serves an administrative purpose to inform the DACA recipient that

24 his DACA and employment authorization was already automatically terminated due to

25 issuance of an NTA. The Notice of Action does not itself effectuate the termination of

26 DACA and employment authorization.

27

On September 5, 2017, DHS announced a plan to end the DACA policy in an

28 orderly fashion. See “Memorandum on Rescission of Deferred Action for Child Arrivals”

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1 from Elaine C. Duke, Acting Secretary of Homeland Security, to ICE, CBP, and USCIS

2 (Sept. 5, 2017) (“Duke Memo”). See Dkt. 1 at ¶ 21. The memorandum, inter alia,

3 provides that DHS will “adjudicate – on an individual, case by case basis – properly filed

4 pending DACA renewal requests and associated applications for Employment

5 Authorization Documents . . . from current beneficiaries whose benefits will expire

6 between the date of this memorandum and March 5, 2018 that have been accepted by the

7 Department as of October 5, 2017.” Id. (emphasis added).

8

B. Factual Background

9

Plaintiff alleges he first requested deferred action and employment authorization

11 pursuant to DACA in early 2013. Dkt. No. 2-1 at 6. He was granted deferred action and

12 work authorization. Id.; Dkt. 2-12, Pl.’s Ex. I. In 2014, Plaintiff requested renewal of

13 DACA and was once again granted deferred action and employment authorization,

14 effective through December 22, 2017. Id. at 6-7; Dkt. No. 2-13, Pl.’s Ex. J. The approval

15 letter states in relevant part, that “[d]eferred action does not confer or alter any

16 immigration status” and that “[u]nless terminated, this decision to defer removal action

17 will remain in effect for 2 years from the date of this notice,” although the expiration of

18 the notice is three years after issuance. Dkt. No. 2-13. The notice also advises that

19 “[s]ubsequent criminal activity after your case has been deferred is likely to result in

20 termination of your deferred action.” Id.

21

Plaintiff alleges the following: on May 6, 2016, he was taking care of an

22 acquaintance’s dogs at that acquaintance’s house when police knocked on the door

23 around 4:00 p.m. See Dkt. 2-19 ¶¶ 9-11. Plaintiff refused permission for the police to

24 enter the house, asked for a warrant, and asserts that the police did not produce a warrant

25 and stopped talking to him. Id. ¶ 11. At 5:00 p.m., a man Plaintiff did not recognize said

26 he was the owner of the house and asked Plaintiff to exit – Plaintiff complied. Id. ¶ 12-14.

27 Upon leaving the house, Plaintiff was stopped by police; he told the police that he was a

28 DACA recipient, they verified his documents, asked him some questions, and arrested

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1 him. Id. ¶ 14-16. During this encounter, Plaintiff claims that he “sat handcuffed on the

2 front porch for one or two minutes, unable to see or hear anything that happened inside

3 the house . . . . I did not see or hear [the officer] speak to anyone who went inside the

4 house.” Id. ¶ 17.

5

Defendants’ narrative is similar to Plaintiff’s, absent Plaintiff’s omissions. First,

6 Defendants identify that they were investigating an ongoing human smuggling operation

7 and had received information that human smuggling had taken place in the morning at the

8 same house where Defendants found Plaintiff later the same day. See Exhibit C.2 at 2,

9 Record of Deportable/Inadmissible Alien (I-213), Report of Investigation (G-166) and

11 related documents pertaining to Plaintiff and his arrest on May 6, 2016. Defendants’

12 narrative also comports with Plaintiff’s retelling of their arrival at the house on the

13 afternoon of May 6; however, Defendants made specific note that “Gonzalez appeared

14 visibly shaken. When Gonzalez spoke he did so stuttering and it appeared that he had dry 15 mouth, consistent with someone who is nervous.” Id. at 3. Defendants’ narrative similarly

16 reports that Plaintiff left the house when asked by the landlord, and reports Plaintiff’s 17 story that he was at the residence to look after two dogs, did not have the key to the

18 property, and that he was headed to work and was not responsible for anything inside the 19 house. Id. at 3. At this same time, however, Defendants also report that they obtained a 20 ladder from the property owner, identified twelve individuals hiding in the attic of the 21 house, placed those individuals under arrest for being illegally present in the United 22 States, and placed Plaintiff and another individual under arrest for harboring illegal 23 aliens. Id. at 3-4.1

24 1 8 U.S.C. § 1324(a)(1)(A)(iii) criminalizes the conduct of those who “knowing or in
25 reckless disregard of the fact that an alien has come to, entered, or remains in the United
26 States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building
27 or any means of transportation.” 8 U.S.C. § 1182(a)(6)(E)(i) states that “[a]ny alien who at
28 any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.”

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1

Notably, three of those individuals found in the attic specifically identified Plaintiff

2 as having a role in their concealment in the attic of the house. See Exhibit C.3 at 9,

3 Records of Deportable/Inadmissible Alien (I-213) pertaining to other individuals arrested

4 with Plaintiff on May 6, 2016 (identifying two individuals “who lead [sic] the group to a

5 room and instructed them to stay there,” “instructed them to go into the attic and hide,”

6 and who identified Plaintiff as one of those individuals in a six-pack photographic line

7 up); id. at 14 (identifying Plaintiff and his friend through two photographic lineups as the

8 “stash house care-takers,” and stating “that [Plaintiff] instructed all of [the] individuals at

9 the house to enter the attic”); id. at 34 (identifying Plaintiff and his friend through two

11 photographic lineups as the “stash house care-takers).

12

On May 7, 2016, CBP issued Plaintiff an NTA charging him as inadmissible to the

13 United States based on his presence without admission or parole pursuant to 8 U.S.C.

14 § 1182(a)(6)(A)(i). See Dkt. 2-16, Pl.’s Ex. M. That same day, Plaintiff requested that an

15 immigration judge review his custody determination. See Exhibit C.1, Notice to Appear

16 Served on Immigration Court. The NTA was served on the immigration court on May 18,

17 2016. Id. at 1. An immigration judge held a custody hearing on June 1, 2016, and granted

18 Plaintiff release from immigration detention on $5,000 bond. See Dkt. 2-15, Pl.’s Ex. L.

19 Plaintiff was released from custody on June 3, 2016. See Dkt. 2-1 at 9.

20

On September 11, 2017, Plaintiff filed a Complaint seeking an order restoring his

21 DACA and employment authorization, and requiring Defendants to provide him with a

22 further explanation for its decision and an opportunity to respond. See Dkt. No. 1. That

23 same day, Plaintiff filed a motion for a temporary restraining order and/or preliminary

24 injunction seeking to enjoin Defendants’ termination of his DACA so that he could seek

25 renewal of DACA prior to the October 5, 2017, date established for certain DACA

26 recipients to renew their requests as part of the winding down of the DACA policy. See

27 Dkt. No. 2.

28

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1 II. ARGUMENT

2

A. Standards of Review

3

“The purpose of a preliminary injunction is merely to preserve the relative

4 positions of the parties until a trial on the merits can be held.” Univ. of Texas v.

5 Camenisch, 451 U.S. 390, 395 (1981). As a result, it is generally inappropriate at the

6 “preliminary-injunction stage to give a final judgment on the merits.” Id.; see Senate of

7 State of Cal. v. Mosbacher, 968 F.2d 974, 978 (9th Cir. 1992) (holding that “judgment on

8 the merits in the guise of preliminary relief is a highly inappropriate result”).

9

The applicable legal standard for a motion for a temporary restraining order is the

11 same as that for a motion for a preliminary injunction. Henry Schein, Inc. v. Cook, 191 F.

12 Supp. 3d 1072, 1076 (N.D. Cal. 2016). An injunction is “a drastic and extraordinary

13 remedy, which should not be granted as a matter of course.” As the Supreme Court has

14 held, a plaintiff seeking a preliminary injunction “must establish” that: (1) it is likely to

15 succeed on the merits of its claims; (2) it is likely to suffer irreparable harm absent

16 preliminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is in

17 the public interest. Winter v. Nat’l Res. Def. Council, 555 U.S. 7, 20 (2008). Preliminary

18 injunctive relief is an extraordinary remedy never awarded as of right, id. at 20, and the

19 party seeking such relief bears the burden of establishing the prerequisites to this

20 extraordinary remedy. Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010).

21

Alternatively, a party must show “‘serious questions going to the merits’ and a

22 hardship balance that tips sharply toward the plaintiff,” as well as a likelihood of

23 irreparable harm, and that the injunction is in the public interest. Alliance for the Wild

24 Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). Showing “serious questions

25 going to the merits” requires a plaintiff to demonstrate a “substantial case for relief on the

26 merits.” Leiva-Perez v. Holder, 640 F.3d 962, 967-68 (9th Cir. 2011).

27

When a plaintiff seeks an ex parte temporary restraining order, courts also consider

28 the imminence of the alleged irreparable injury, and reject such relief when the

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1 emergency is of the plaintiff’s own making. See, e.g., Quach v. Bank of Am., Nat. Ass’n,

2 No. 12–5037 EJD, 2012 WL 4498873, at *4 (N.D. Cal. Sept.28, 2012) (finding that an ex

3 parte TRO to enjoin a foreclosure sale was not justified where plaintiffs were aware for

4 months of the potential trustee’s sale); William W. Schwarzer, et al., California Practice

5 Guide: Federal Civil Procedure Before Trial § 13:95 (2010) (“An important factor will

6 be whether the applicant could have sought relief earlier by a motion for preliminary

7 injunction, avoiding the necessity for a last-minute TRO. Delay in seeking relief may be

8 evidence of laches . . . or negate the alleged threat of ‘immediate’ irreparable injury . . . .

9 The court has discretion to deny the application on either ground”).

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

B. Plaintiff Cannot Sustain the Requirements for Preliminary Relief.

22

1. Plaintiff Cannot Demonstrate Imminent, Irreparable Harm.

23

The harm that Plaintiff alleges in support of his emergency motion arises from the

24 alleged loss of opportunity to request renewal of his DACA if the Court does not reinstate

25 his previously terminated DACA before October 5, 2017. Dkt. No. 2-1 at 1, 24. The Court

26 should deny Plaintiff’s motion at the outset because the imminence of the harm Plaintiff

27 cites is of his own making. See, e.g., Quach, 2012 WL 4498873, at *4. Defendants

28 terminated Plaintiff’s DACA sixteen months ago. While the winding down of the DACA

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1 policy could impact Plaintiff if he still had DACA, Plaintiff’s failure to raise this action to

2 date is the only reason there is now any urgency to his claim in this Court.

3

While Plaintiff may argue that he could not have foreseen the wind-down of

4 DACA until it was announced on September 5, the fact that he did not move for

5 reinstatement of DACA, and of the benefits ancillary to it, for sixteen months casts doubt

6 on his claim of harm if he cannot renew his DACA after October 5, 2017.

7

2. Plaintiff is not Likely to Succeed on the Merits.

8

Whether viewed as a preliminary or permanent injunction, the Court cannot grant

9 Plaintiff relief because he cannot succeed on the merits of his claims. First, this Court lacks

11 jurisdiction to review Plaintiff’s challenge to DHS’s discretionary determination to issue

12 Plaintiff a Notice to Appear (“NTA”) in removal proceedings, which had the result of terminating

13 his DACA. Additionally, nothing in the APA or constitutional jurisprudence establishes a

14 right to review or constrain DHS’s exercise of discretion or to grant Plaintiff procedural

15 rights other than those available to him through his removal proceedings.

16

a. This Court Lacks Jurisdiction to Review DHS’s Initiation

17

Removal Proceedings, and any Judicial Challenges to Removal Must be Brought in a Petition for Review.

18

The APA permits persons aggrieved by final agency action to obtain judicial

19 review in federal court where “there is no other adequate remedy in a court.” See 5

20 §§ U.S.C. 702, 704. A reviewing court shall set aside agency action found to be

21 “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,”

22 or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D). The

23 APA also precludes judicial review of agency decisions that are “committed to agency

24 discretion by law.” 5 U.S.C. § 701(a)(2). In Heckler v. Chaney, the Supreme Court held

25 that “an agency’s decision not to take enforcement action should be presumed immune

26 from judicial review under § 701(a)(2).” 470 U.S. 821, 832 (1985).

27

Individual DACA decisions fall squarely within that category of agency discretion.

28 A decision to defer action is committed to agency discretion by law because notifying an

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1 alien that DHS has decided to forbear from removing him for a designated period is an

2 exercise of prosecutorial discretion, and a court has no meaningful standard against which

3 to judge the agency’s exercise of discretion to forbear from enforcement for that period.

4 See Heckler, 470 F.3d at 830; see also Morales de Soto v. Lynch, 824 F.3d 822, 828 (9th

5 Cir. 2016) (noting that “the exercise of prosecutorial discretion is a type of government 6 action uniquely shielded from and unsuited to judicial intervention”); Arpaio v. Obama, 7 797 F.3d 11, 16 (D.C. Cir. 2015) (explaining that “[i]n making immigration enforcement

8 decisions, the executive considers a variety of factors”), cert. denied, 136 S. Ct. 900,

9 (2016), reh’g denied, 136 S. Ct. 1250 (2016).

11

Here, Plaintiff cannot establish any likelihood of success on the merits. The INA

12 specifically precludes review of the actions that Plaintiff challenges – the discretionary

13 decision to issue an NTA and terminate Plaintiff’s DACA, the effects of that decision on

14 Plaintiff’s removal proceedings, and the impact on ancillary benefits. Moreover, all of the

15 actions challenged are discretionary actions for which there is no law to apply.

16

i. The Court lacks jurisdiction under 8 U.S.C. § 1252(g).

17

The issuance of an NTA to an alien is a necessary predicate step to commencing

18 removal proceedings under 8 U.S.C. § 1229a. See 8 U.S.C. § 1229(a). Through the INA,

19 as amended by the REAL ID Act of 2005 and codified at 8 U.S.C. § 1252(g), Congress

20 explicitly precluded judicial review of any challenge arising from any decision or action

21 to commence removal proceedings. That statute states, in relevant part:

22

Except as provided in this section and notwithstanding any other provision

23

of law (statutory or nonstatutory), including section 2241 of Title 28, or any

24

other habeas corpus provision, and sections 1361 and 1651 of such title,

no court shall have jurisdiction to hear any cause or claim by or on behalf

25

of any alien arising from the decision or action by the Attorney General to

26

commence proceedings, adjudicate cases, or execute removal orders against

any alien under this chapter.
27

28

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1 8 U.S.C. § 1252(g).2 The Supreme Court explained that § 1252(g) was “directed against a

2 particular evil: attempts to impose judicial constraints upon prosecutorial discretion.”

3 AADC, 525 U.S. at 485 n.9.

4

Applying 8 U.S.C. § 1252(g), the Ninth Circuit has specifically held there is no

5 subject matter jurisdiction to review a decision to grant DACA. See, e.g., Vilchiz-Soto v.

6 Holder, 688 F.3d 642, 644 (9th Cir. 2012) (“[W]e lack jurisdiction to review petitioners’

7 contention that the agency abused its discretion in denying the motion to reopen to seek

8 prosecutorial discretion based on the recent order of President Obama.”); Rodriguez v.

9 Sessions, No. 15-72487, 2017 WL 695192, at *1 (9th Cir. Feb. 22, 2017); Fabian-Lopez

11 v. Holder, No. 11-71513, 540 F. App’x 760, 761 n.2 (9th Cir. Apr. 29, 2013); cf. Flores-

12 Panso v. Asher, No. C13-1923-TSZ, 2014 WL 1338073, at *3 (W.D. Wash. Apr. 2,

13 2014) (adopting recommendation that district courts lack jurisdiction over a claim that a 14 stay of removal is warranted for a petitioner to seek DACA).3

15

This precedent applies to the present case and precludes judicial review of the

16 decision to issue an NTA, which terminated Plaintiff’s DACA, and which was a predicate

17 step to commencing removal proceedings. See, e.g., Samayoa-Martinez v. Holder, 558

18 F.3d 897, 901-02 (9th Cir. 2009) (“Logically, an alien cannot be placed in formal

19 proceedings until those proceedings have been commenced with the filing of the NTA.”).

20
21 2 For example, courts lack jurisdiction to review the timing of the commencement of removal proceedings. See Chavez-Navarro v. Ashcroft, 57 F. App’x 349 (9th Cir. 2003).
22 Moreover, “[a]s a general matter . . . an alien unlawfully in this country has no
23 constitutional right to assert selective enforcement as a defense against his deportation.” AADC, 525 U.S. at 488, 491
24 3 This authority is consistent with earlier case law interpreting the 1981 Operating
25 Instructions, a previous policy that provided guidelines for the exercise of deferred action.
26 That authority concluded that district courts lack jurisdiction to review the district director’s decision not to recommend deferred action. Romeiro de Silva v. Smith, 773 F.2d 1021, 1025
27 (9th Cir. 1985); see also Carranza, v. I.N.S., 277 F.3d 65, 72 (1st Cir. 2002) (supporting
28 “general proscription against judicial review of any aspect” of prosecutorial deliberations) (citing Wayte v. United States, 470 U.S. 598, 607-8 (1985)).

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1

Plaintiff may contend that the present case is distinguishable from these earlier

2 cases because it involves the Government’s decision to issue an NTA, and thereby

3 terminate DACA, rather than a determination as to whether an individual is considered

4 for DACA in the first place. But nothing in the language of 8 U.S.C. § 1252(g) supports

5 such a distinction and both decisions are similar in the relevant respect – they both

6 involve the exercise of prosecutorial discretion. Congress had no reason to preclude

7 judicial review of the favorable exercise of prosecutorial discretion (where individuals

8 self-select whether to request DACA in light of agency guidelines) while permitting

9 judicial review of an agency’s decision to issue an NTA so that it may commence

11 removal proceedings and thereby terminate DACA (where the agency weighs competing

12 factors and allocates its resources). See Heckler, 470 U.S. at 831 (discussing the

13 Executive’s discretion to spend resources on “this violation or another”); Arpaio, 797

14 F.3d at 16, 24 (“Even after they are approved for deferred action . . . beneficiaries are

15 subject to the Department’s overall enforcement priorities”). If anything, the decision to

16 issue an NTA, which results in termination of DACA, is more closely connected with the

17 central purpose of 8 U.S.C. § 1252(g) – to prevent “judicial constraints on prosecutorial

18 discretion.” See AADC, 525 U.S. at 485 n.9. Thus, decisions to issue an NTA and thereby

19 terminate DACA are even further outside the scope of judicial review than determinations

20 of whether to grant DACA in the first place.

21

Additionally, the Court should reject, as contrary to 8 U.S.C. § 1252(g), Plaintiff’s

22 contention that his case is distinguishable from Ninth Circuit case law because he is

23 challenging the Government’s decision-making process rather than the final decision

24 itself. Section 1252(g) is not limited to claims arising from the adjudication of cases. It

25 broadly precludes judicial review of “cause[s] or claim[s]” that arise from the decision “or

26 action” to “commence proceedings” against any alien. See, e.g., Sissoko v. Rocha, 509

27 F.3d 947, 948-50 (9th Cir. 2007) (finding claim of money damages arose from decision

28 or action to commence removal proceedings and was, thus, barred by 8 U.S.C.

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1 § 1252(g)).4 To hold otherwise would render 8 U.S.C. § 1252(g) a dead letter because any

2 alien could seek to enjoin or otherwise challenge the commencement of removal

3 proceedings through this type of creative pleading. Lastly, Plaintiff’s argument that his

4 claims under the APA are not barred by 8 U.S.C. § 1252(g) because they challenge

5 nondiscretionary rather than discretionary duties necessarily fails because 8 U.S.C. 6 § 1252(g) does not distinguish between discretionary and nondiscretionary duties.5 See

7 Silva v. United States, 866 F.3d 938, 940 (8th Cir. 2017) (rejecting contention that

8 § 1252(g) applies only to discretionary decisions of the Secretary, emphasizing that

9 § 1252(g), by its plain language, “makes no distinction between discretionary and

11 nondiscretionary decisions”); see also Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th

12

13 4 In Sissoko, the Ninth Circuit held that because the plaintiff’s detention arose from the

14

decision to commence removal proceedings, Bivens jurisdiction was barred by 8 U.S.C. § 1252(g). Sissoko, 509 F.3d at 949. The court distinguished between these types of claims

15 and those raised in an earlier Ninth Circuit case discussing 8 U.S.C. § 1252(g), Wong v.

16 United States, 373 F.3d 952 (9th Cir. 2004). Id. In Wong, the plaintiff’s counsel expressly disclaimed any challenge to the execution of removal and explained that her claims only
17 implicated “actions other than that removal, or the commencement of proceedings . . .” 373

18 F.3d at 964 (emphasis original). Thus, the claims at issue in Wong did not implicate the

agency’s prosecutorial discretion and did not pose a threat of “obstruction of the institution 19 of removal proceedings or the execution of removal orders . . .” Id. at 970. Wong is clearly

20 distinguishable from the present case in which Plaintiff is directly challenging the decision

21 to issue an NTA and thereby terminate DACA, which predicated the commencement of removal proceedings. As a result, his claims are barred by 8 U.S.C. § 1252(g). See Sissoko,
22 509 F.3d at 949.

23 5 To be sure, in other contexts, courts distinguish between discretionary and

nondiscretionary duties. For example, under 5 U.S.C. § 706(a)(1), a plaintiff can assert an 24 APA claim (akin to a mandamus claim) seeking to compel an agency to perform a duty but

25 only if it is a duty compelled by statute (that is, a matter over which the agency has no

26 discretion). See, e.g., Zixiang Li v. Kerry, 710 F.3d 995, 1003 (9th Cir. 2013). Similarly, there are additional jurisdictional bars contained in different subsections of 8 U.S.C.

27 § 1252. See AADC, 525 U.S. at 486 (“[M]any provisions of IIRIRA are aimed at protecting

28 the Executive’s discretion from the courts – indeed, that can fairly be said to be the theme of the legislation.”) (emphasis omitted).

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1 Cir. 2001) (holding that “a petitioner may not create the jurisdiction that Congress chose

2 to remove simply by cloaking [a claim] in constitutional garb” or “through the facile

3 device of re-characterizing” claims to avoid a clear jurisdictional bar).

4

In sum, regardless of how Plaintiff seeks to frame the issue, 8 U.S.C. § 1252(g)

5 precludes judicial review of the Government’s exercise of its prosecutorial discretion.

6 Accordingly, the decisions of DHS to issue an NTA and place Plaintiff in removal

7 proceedings, and thereby terminate DACA, are not subject to judicial review, and the

8 Court should reject Plaintiff’s motion for preliminary relief.

9

ii. Any viable claims must be channeled through

11

Plaintiff’s removal proceedings and not this Court.

To the extent Plaintiff has any viable claims, the REAL ID Act, codified in 8 U.S.C.
12

§§ 1252(a)(5) and 1252(b)(9), bars him from raising his claims in district court. Under a
13

statutory scheme designed to “put an end to the scattershot and piecemeal nature of the
14

review process,” all claims arising from removal proceedings must be raised in
15

immigration court and channeled through the petition for review process. Aguilar v.
16

Immigration & Customs Enf’t, 510 F.3d 1, 9-10 (1st Cir. 2007). The Ninth Circuit has
17

affirmed this channeling requirement without exception. J.E.F.M. v. Lynch, 837 F.3d
18

1026, 1029 (9th Cir. 2016). Section 1252(a)(5), entitled “[e]xclusive means of review,”
19
requires that “a petition for review filed with an appropriate court of appeals . . . shall be
20

the sole and exclusive means for judicial review of an order of removal . . . .” 8 U.S.C.
21

§ 1252(a)(5). Section 1252(b)(9) provides “[j]udicial review of all questions of law and
22

fact, including interpretation and application of constitutional and statutory provisions,
23
arising from any action taken or proceeding brought to remove an alien from the United
24
States under this subchapter shall be available only in judicial review of a final order
25
under this section.” 8 U.S.C. § 1252(b)(9) (emphasis added).
26
These channeling provisions are not limited to challenges to final orders of removal
27
but preclude review in district court of “any” challenge “arising from any action” taken to
28

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1 remove an alien. See J.E.F.M., 837 F.3d at 1031. The second sentence of Section

2 1252(b)(9) explicitly precludes jurisdiction to review (i) orders, “or [(ii)] such questions

3 of law or fact.” Id. The questions of law and fact described in the preceding sentence

4 modify those “arising from any action taken or proceeding brought to remove an alien

5 from the United States.” Id. Thus, claims arising from “any action taken” to remove an

6 alien from the United States – including the decision to issue an NTA, a necessary action

7 towards commencing removal proceedings, and one that terminates DACA – are

8 channeled through the petition for review process and cannot be brought in federal district

9 court. To hold otherwise would effectively excise the words “any action taken” from the

11 statute. See Aguilar, 510 F.3d at 10; cf. Martinez v. Napolitano, 704 F.3d 620, 623 (9th

12 Cir. 2012) (in the context of an APA claim, ignoring how claim “is framed” for purposes

13 of determining whether claim must be channeled through the petition for review process).

14 Congress’ intent was simple: if the issue is one that can be raised in removal proceedings,

15 and ultimately in a petition for review, then the statute precludes district court review).

16 See J.E.F.M., 837 F.3d at 1034 (citing H.R. Rep. No. 109-72, at 173 (statute was

17 “intended to preclude all district court review of any issue raised in a removal

18 proceeding)); cf. Aguilar, 510 F.3d at 9-10 (“Congress plainly intended to put an end to

19 the scattershot and piecemeal nature of the review process. . . .”).

20

This approach effectuates the general rule precluding simultaneous review of a

21 question by both an administrative body and a federal court. See Acura of Bellevue v.

22 Reich, 90 F.3d 1403, 1408-9 (9th Cir. 1996). Moreover, there is no “general constitutional

23 right” for an alien to review prosecutorial deliberations in order to avert or prevent

24 removal proceedings. See Carranza, 277 F.3d at 72, citing AADC, 525 U.S. at 487-92.

25

Here, Plaintiff challenges the Secretary’s discretionary decision to issue an NTA

26 and thereby terminate his DACA. See Dkt. No. 2-1 at 12 (“USCIS’s decision to terminate

27 his DACA status automatically—i.e., without considering the basis for the NTA or

28 offering Mr. Gonzalez an opportunity to respond—was both in blatant disregard of

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1 established procedures for DACA termination and an arbitrary action that flew in the face

2 of the basic purpose of the DACA program.”). Specifically, Plaintiff argues he has a

3 constitutional interests in deferred action and in employment authorization that are

4 protected by due process. Id. at 21-22. But where Plaintiff challenges Defendants’

5 exercise of prosecutorial discretion to issue an NTA – a predicate step in commencing

6 removal proceedings – which has the effect of terminating deferred action and

7 employment authorization, his challenge necessarily arises from “action taken or

8 proceedings brought to remove an alien.” See 8 U.S.C. §§ 1252(a)(5); 1252(b)(9). In fact,

9 he is challenging the very validity of the “proceedings.” See AADC, 525 U.S. at 484-85

11 (explaining what deferred action is).

12

The Ninth Circuit has made clear that, in the context of a petition for review

13 (“PFR”), it may review alleged constitutional violations – which here are insubstantial –

14 including claims that were not raised in removal proceedings. See, e.g., J.E.F.M., 837

15 F.3d at 1038 (explaining that, even if never raised in removal proceedings, a court of

16 appeals has the authority to resolve questions of constitutional rights); see generally

17 Chuyon Yon Hong v. Mukasey, 518 F.3d 1030 (9th Cir. 2008) (asserting jurisdiction over

18 “Questions of law, and in particular due process challenges to removal orders”). The

19 Ninth Circuit held that taken together, 8 U.S.C. §§ 1252(a)(5) and (b)(9) “mean that any

20 issue – whether legal or factual – arising from any removal-related activity can be

21 reviewed only through the PFR process.” See id. at 1031 (emphases in original). Plaintiff

22 may prefer that his constitutional claims be resolved now rather than at a later date, but

23 his preference provides no basis for this Court to exercise jurisdiction over claims that are

24 subject to a statutory channeling provision. See J.E.F.M., 837 F.3d at 1035-36, 1038.

25

The termination of deferred action due to issuance of an NTA and the

26 commencement of removal proceedings upon filing of the NTA with the immigration court

27 are two ways of saying the same thing – DHS has decided to take action to remove the

28 alien. By arguing that Plaintiff is constitutionally entitled to deferred action (i.e., that DHS

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1 must defer acting to remove him) he is, by definition, arguing that DHS is barred from

2 acting to remove him. Those claims, at least in these circumstances, must be channeled

3 through petitions for review because Congress imposed significant limitations on aliens’

4 ability to challenge decisions and actions related to removal proceedings. See AADC, 525

5 U.S. at 485 n.9.

6

b. Nothing in the Constitution or APA Establishes a Right that

7

Constrains DHS’s Exercise of Discretion.

Even if this Court finds that the INA’s jurisdiction-stripping and channeling
8

provisions might not preclude review of Plaintiff’s claims, the Court should still deny
9

Plaintiff’s motion for emergency relief because Plaintiff’s merits claims fail as a matter
11

of law. Here, Plaintiff can establish neither a constitutional nor an administrative right to
12

receive any process regarding the termination or denial of DACA because deferred
13

action is necessarily an exercise of the Executive’s prosecutorial discretion. Indeed,
14

Plaintiff argues that Defendants’ determinations would be proper if subject to “a process
15

in which USCIS actually exercises its discretion and provides a reasoned explanation
16

that is based on consideration of relevant factors.” Dkt. No. 2-1 at 18. In fact, DHS
17

acted based on that discretion by issuing an NTA based on factors involving Plaintiff’s
18

criminality for harboring, which put Plaintiff into removal proceedings and had the
19

effect of terminating his DACA. See Dkt. Nos. 2-16 and 2-17, Pl.’s Exs. M & N.
20

i. Plaintiff has no Constitutional Interest in Continued

21

DACA or Employment Authorization.

22

Here, Plaintiff asserts both liberty and property interests in the continued receipt

23 of his DACA and seeks procedural due process protections with regard to its

24 termination. See Dkt. No. 2-1 at 21 (asserting a liberty interest in DACA based on “the

25 assurance not to be apprehended or seek removal of DACA recipients based solely on

26 the basis of their deferred action); id. (citing Morrisey v. Brewer, 408 U.S. 471 (1972)

27 (also alleging that a liberty interest “encompasses the ability to work, raise a family, and

28 ‘form the other enduring attachments of life.’”)).

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1

To establish a procedural due process interest, a Plaintiff “clearly must have more

2 than an abstract need or desire for it. He must have more than a unilateral expectation of

3 it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State

4 Colleges v. Roth, 408 U.S. 564, 577 (1972).

5

1. Termination of DACA does not Infringe upon an

6

Established Constitutional Interest.

First, the mere fact that an individual alleges an injury does not result in a loss of
7

liberty. Paul v. Davis, 424 U.S. 693, 712 (1976). The cases on which Plaintiff relies to
8

support an infringement on his liberty interest are inapposite. In Morrissey v. Brewer,
9

408 U.S. 471 (1972), the Supreme Court considered the right of parolees to remain at
11

liberty as long as the conditions of parole were not violated. However, Plaintiff cannot
12

allege that his actual liberty is presently at issue. Similarly, while Plaintiff cites
13

Morrisey to discuss “other enduring attachments of life,” Plaintiff purports that such
14

attachments extend to the ability to work and raise a family. See Dkt. No. 2-1 at 21,
15

citing Morrisey, 408 U.S. at 471. Such extension of constitutional interest would
16

directly conflict with related rulings.
17

Plaintiff’s claims regarding the right to raise a family conflict with the Ninth
18

Circuit’s determination that there is no “right to family unity” to reside in the United
19
States “simply because other members of their family are citizens or lawful permanent
20

residents.” De Mercado v. Mukasey, 566 F.3d 810, 816 (9th Cir. 2009). The same goes
21

for the right of aliens to work in the United States without authorization. See Pilapil v.
22

INS, 424 F.2d 6, 11 (10th Cir. 1970), cert denied, 400 U.S. 908 (1970); WJA Realty Ltd.
23
P’ship v. Nelson, 708 F. Supp. 1268, 1273 (S.D. Fla. 1989) (holding that noncitizens do
24
not have a constitutional right to work without authorization). Thus, there is no judicial
25
review of the decision to terminate work authorization. See Perales v. Casillas, 903
26
F.2d 1043, 1047-48 (5th Cir. 1990) (“[T]here is nothing in the [INA] expressly
27
providing for the grant of employment authorization . . . . to aliens who are the
28

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1 beneficiaries of approved petitions”) (vacating the challenged portion of the injunction);

2 see, e.g., Kaddoura v. Gonzales, No. C06-1402 RSL, 2007 WL 1521218, at *4-5 (W.D.

3 Wash. May 21, 2007) (finding a lack of judicial review). As a matter of law, a plaintiff

4 cannot assert an established constitutional right to DACA or work authorization.

5

2. Termination of DACA does not Infringe upon a

6

Constitutional Interest based on Entitlement.

“To have a property interest in a benefit, a person clearly must have more than an
7

abstract need or desire for it. He must have more than a unilateral expectation of it. He
8

must, instead, have a legitimate claim of entitlement to it.” Blantz v. Cal. Dep’t of Corr.
9

& Rehab., 727 F.3d 917, 922 (9th Cir. 2013) (citing Roth, 408 U.S. at 577); see also
11

Mendez-Garcia v. Lynch, 840 F.3d 655, 665 (9th Cir. 2016) (underscoring that aliens
12

cannot claim a cognizable due process interest in discretionary immigration relief or
13

benefits); Tefel v. Reno, 180 F.3d 1286, 1301 (11th Cir. 1999) (“awarding and then
14

revoking discretionary relief does not offend due process”). A property interest subject to
15

procedural due process protection may arise where such interest is secured by “existing
16

rules or understandings that stem from an independent source . . . .” Roth, 408 U.S. at
17

577. The independent source can be a statute, see Goss v. Lopez, 419 U.S. 565, 572-73
18

(1975); a regulation, see Glenn v. Newman, 614 F.2d 467, 471-72 (5th Cir. 1980),
19
overruled on other grounds by Shearer v. Bowen, 216 F.3d 1080 (5th Cir. 2000); an
20

express or implied contract, see Perry v. Sindermann, 408 U.S. 593, 601-02 (1972); or a
21

mutually explicit understanding. Id. at 602-03. In a pair of companion cases handed down
22

the same day, the Supreme Court explained that “government employees can have a
23
protected property interest in their continued employment if they have a legitimate claim
24
to tenure or if the terms of the employment make it clear that the employee can be fired
25
only for cause.” Blantz, 727 F.3d at 922-23 (comparing Roth, 408 U.S. 576-78, with
26
Perry, 408 U.S. at 599-603).
27

28

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1

For example, when a professor sued for deprivation of property without due

2 process after his employment contract was not renewed, the Court found that the

3 professor lacked a protected property interest in his continued employment because his

4 employment contract was for a fixed one-year term. Blantz, 727 F.3d at 922-23 (citing

5 Roth, 408 U.S. at 566). Similarly, when a nurse sued over her termination, relying on

6 orientation documents that stated “termination can occur as a result of the performance

7 review procedures” detailed in the document, the Ninth Circuit concluded she lacked a

8 property interest in her continued employment because the documents “do not guarantee

9 that every termination must be preceded by a peer review process or any other specified

11 departmental procedures.” Id. at 924.

12

Similarly, nothing in the DACA memoranda, public Q&A, or the DACA SOP

13 indicate any promise of benefits or entitlement to initial or continuing deferred action or

14 DACA-based employment authorization. See, e.g., Dkt. 2-11, Pl.’s Ex. H (USCIS FAQ)

15 (“DACA is an exercise of prosecutorial discretion and deferred action may be

16 terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s

17 discretion.”). Here, the DACA guidance and policies made clear that a recipient of

18 DACA has no constitutionally protected interest in the continuation of DACA or a

19 constitutionally protected interest in notice prior to termination. Specifically, the 2012

20 Memorandum states, “[t]his memorandum confers no substantive right, immigration

21 status or pathway to citizenship. Only the Congress, acting through its legislative

22 authority, can confer these rights.” Dkt. No. 2-5, Pl.’s Ex. B at 3. In addition, the USCIS

23 FAQs specifically state that deferred action can be terminated before it expires,

24 explaining, “DACA is an exercise of prosecutorial discretion and deferred action may

25 be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s

26 discretion.” Dkt. No. 2-11, Pl.’s Ex. H at Q27. The USCIS FAQs further explain that

27 the phrase “national security or public safety threat” includes but is not limited to “gang

28 membership, participation in criminal activities, or participation in activities that

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1 threaten the United States.” See id. at Q:65.6 Reading these documents in context, a 2 DACA recipient does not have a protected property interest in the continuation of his or 3 her DACA or DACA-based employment authorization. See, e.g., Gerhart v. Lake Cnty., 4 Mont., 637 F.3d 1013, 1020-21 (9th Cir. 2011) (“A person’s belief of entitlement to a 5 government benefit, no matter how sincerely or reasonably held, does not create a 6 property right if that belief is not mutually held by the government. The Supreme Court 7 has explained, ‘[a] constitutional entitlement cannot be created—as if by estoppel— 8 merely because a wholly and expressly discretionary state privilege has been granted 9 generously in the past.’ We have similarly held that a government body’s past practice 11 of granting a government benefit is insufficient to establish a legal entitlement to the 12 benefit.” (quoting Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981)) 13 (citations omitted); Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 581 (2d Cir. 14 1989) (observing that, for due process purposes, “the existence of provisions that retain 15 for the [government] significant discretionary authority over the bestowal or 16 continuation of a government benefit suggests that the recipients of such benefits have 17 no entitlement to them”). These policies and guidance are consistent with longstanding 18 authority regarding the exercise of prosecutorial discretion in the context of 19 immigration law. See AADC, 525 U.S. at 484 (recognizing that deferred action is a 20 “commendable exercise in administrative discretion, developed without express 21 statutory authorization”). Accordingly, the Court should deny Plaintiff’s motion for 22 emergency relief because his claims fail as a matter of law.
23 // 24
// 25 26
27 6 Although criminal activity “can” result in termination, it is not the case that “every 28 termination must be 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

ii. The APA Affords Plaintiff no Actionable Interest

Regarding the Termination of DACA or

2

Employment Authorization.

3

Assuming jurisdiction arguendo, there is no basis to conclude that Defendants

4 are required to provide notice to a DACA recipient before issuing an NTA that

5 terminates DACA, or to issue a notice of the termination of that DACA. The USCIS

6 FAQ specifically states that DACA “may be terminated at any time, with or without a

7 Notice of Intent to Terminate, at DHS’s discretion.” Dkt. No. 2-11, Pl.’s Ex. H at

8 Q:27. Contrary to Plaintiff’s assertions, DHS procedural guidance provides for

9 termination of deferred action without issuing a Notice of Intent to Terminate or

11 providing a chance to respond. See Dkt. No. 2-9, Pl.’s Ex. F and Exhibit B.

12

For example, where CBP or ICE issues a Notice to Appear, the DACA guidance

13 provides that DACA terminates automatically. Per Appendix I, the related Employment

14 Authorization Document terminates when removal proceedings are initiated, which were

15 triggered here by the notice. Def.’s Ex. B; 8 C.F.R. § 274a.14(a)(1)(ii), (2). CBP or ICE

16 may decide to issue an NTA, among other reasons, where there is a disqualifying criminal

17 offense or public safety concern, and USCIS will generally issue a Notice of Action

18 informing the individual that his DACA and Employment Authorization Document

19 terminated automatically due to the NTA. Def.’s Ex. B at 2 (“On [Date NTA served on

20 alien], [ICE] issued you a Notice to Appear (NTA). . . . USCIS is notifying you that your

21 deferred action as a childhood arrival and your employment authorization terminated

22 automatically as of the date your NTA was issued.”). The determination to issue the NTA

23 remains within the discretion of the agency. 8 C.F.R. § 239.1(a) (“Any immigration

24 officer, or supervisor thereof, performing an inspection of an arriving alien at a port-of-

25 entry may issue a notice to appear to such alien.”); see, e.g., Villa-Anguiano v. Holder,

26 727 F.3d 873, 878 (9th Cir. 2013) (discussing historic roots of this discretion).

27

Plaintiff’s argument that Defendant’s internal procedures require notice and an

28 opportunity to respond in every DACA termination is incorrect, and it is based on a

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1 selective reading of those procedures. Dkt. No. 2-1 at 5-6, 12-14 (alleging Defendants

2 acted in violation of the Accardi doctrine because they failed to adhere to their own

3 internal operating procedures.) Here, Defendants obtained information through Plaintiff’s

4 arrest and detention process, including interviews with other unlawfully present aliens

5 hiding in the attic of the house where Plaintiff was arrested, which suggested to

6 Defendants that Plaintiff was involved in a human smuggling operation. Exs. D and E.

7 That information led to the discretionary determination to issue an NTA, which

8 simultaneously terminated Plaintiff’s DACA and EAD. See Dkt. No. 2-16, Pl.’s Ex. M;

9 Dkt. No. 2-17, Pl.’s Ex. N. The Notice of Action that Plaintiff received following the

11 NTA was drawn directly from Appendix I of the DACA SOP. See Def.’s Ex. B at 2.

12 Criminal activity that is considered a national security or public safety concern, even

13 without a conviction, is a basis for NTA issuance and resultant DACA termination. See,

14 e.g., Dkt. No. 2-10, Pl.’s Ex.G (investigation and/or arrest for human smuggling makes an

15 unlawful immigrant “a top immigration enforcement priority.”). Defendants, therefore,

16 exercised their discretion to initiate removal proceedings against Plaintiff by issuing an

17 NTA. As prescribed in Chapter 14 and Appendix I of the DACA SOP, the issuance of the

18 NTA immediately terminated Plaintiff’s DACA, with no additional notice or opportunity

19 to respond required. Per Appendix I, the NTA also terminated Plaintiff’s employment

20 authorization. Thus, Plaintiff has no basis to rely on the Accardi doctrine, which requires

21 an agency to comply with its own regulations, to allege a violation of internal operating

22 procedures.

23

Additionally, courts have declined to apply the Accardi doctrine in matters of

24 prosecutorial discretion. See Carranza, 277 F.3d at 72-73 (declining to apply Accardi

25 doctrine in habeas challenge to alleged “failure of the INS to exercise individualized

26 discretion in its decision to initiate deportation proceedings,” observing that “[w]hether or

27 not the INS exercised its discretion is therefore beside any relevant point” as “petitioner

28 did not have a right to demand the exercise of this discretion in the first place”); United

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1 States v. Lee, 274 F.3d 485, 492-93 (8th Cir. 2001) (“Courts have agreed that individuals

2 have no enforceable rights under another internal DOJ policy known as the Petite policy,

3 which restricts federal prosecution of individuals already prosecuted under state law for

4 the same act or acts. Prosecutorial discretion has been treated differently than other types

5 of agency discretion, and the special nature of prosecution is the reason that the Accardi

6 doctrine has not been applied to criminal law enforcement policies and procedures.”). The

7 Accardi doctrine is also inapplicable in the context of internal operating guidelines that

8 preserve the exercise of agency discretion. See Mada-Luna v. Fitzpatrick, 813 F.2d 1006,

9 1009 (9th Cir. 1987) (finding amended Operating Instructions were “general statements of

11 policy” because the instructions preserved the agency’s flexibility and opportunity to

12 make discretionary determinations); id. (“a directive must not establish a binding norm

13 and must leave agency officials free to consider the individual facts in the various cases

14 that arise and to exercise discretion”) (internal citations and quotations omitted). Thus, the

15 Court should deny Plaintiff’s requested relief because there is no basis to conclude that

16 Defendants are required to provide notice to a DACA recipient before issuing an NTA or

17 to issue a notice of the termination of that DACA.

18

C. The Remaining Preliminary Injunction Factors Favor Defendants.

19

Where the Government is the opposing party, the balance of equities and public

20 interest factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009). Defendants have strong

21 interests in enforcing U.S. immigration laws effectively and consistent with the statutory

22 removal scheme. See AADC, 525 U.S. at 490 (“There is always a public interest in prompt

23 execution of removal orders: The continued presence of an alien lawfully deemed

24 removable undermines the streamlined removal proceedings IIRIRA established, and

25 “permit[s] and prolong[s] a continuing violation of United States law.”). These interests

26 outweigh the harms alleged by Plaintiff, especially considering the amount of time that

27 has passed since Defendants first terminated Plaintiff’s DACA and began removal 28 proceedings. For these additional reasons, Plaintiff’s motion should be denied.

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1 Dated: September 21, 2017
2 3 4 5 6 7 8 9 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 District Court Section Office of Immigration Litigation /s/ Jeffrey S. Robins JEFFREY S. ROBINS Assistant Director U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 616-1246 jeffrey.robins@usdoj.gov Attorneys for Defendants
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1

CERTIFICATE OF SERVICE

2

I hereby certify that a copy of the foregoing was served electronically through the

3 CM/ECF to the registered participants on the date of its electronic filing, September 21,
4
2017.
5

6

/s/ Jeffrey S. Robins

7

JEFFREY S. ROBINS

Assistant Director

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 Case 3:17-cv-01840-JM-NLS Document 10 Filed 09/25/17 PageID.544 Page 1 of 16

1 ARNOLD & PORTER KAYE SCHOLER LLP
2 JOHN C. ULIN (SBN 165524) john.ulin@apks.com
3 JABA TSITSUASHVILI (SBN 309012)
4 jaba.tsitsuashvili@apks.com 777 South Figueroa Street, 44th Floor
5 Los Angeles, CA 90017-5844
6 T: (213) 243-4000 F: (213) 243-4199
7 Attorneys for Plaintiff
8 ALBERTO LUCIANO GONZALEZ TORRES

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11 ALBERTO LUCIANO GONZALEZ

12 TORRES,

Plaintiff,

13

vs.

14 U.S. DEPARTMENT OF

15

HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION

16

SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;

17

U.S. CUSTOMS AND BORDER PROTECTION; Does 1-10, inclusive,

18

Defendants.

19

Case No. 3:17-CV-01840 JM (NLS) PLAINTIFF’S REPLY IN SUPPORT OF EX PARTE EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION [Docket No. 2]

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1

TABLE OF CONTENTS

2

Page

3 I. 4 II. 5
6 III. 7
IV. 8

INTRODUCTION ........................................................................................... 1 DEFENDANTS’ JURISDICTIONAL ARGUMENTS RELY ON MISCHARACTERIZATIONS OF MR. GONZALEZ’S CLAIMS AND OF DACA, AND ON MISUNDERSTANDINGS OF LAW ...............1 DEFENDANTS REAFFIRM THE MERITS OF MR. GONZALEZ’S APA CLAIMS.................................................................................................6 THE HARM IMPOSED BY DEFENDANTS IS IRREPARABLE ............10

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
3 Cases
4

Page(s)

5 A. Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007)................................................................................ 4
6 Aguilar v. ICE,
7 510 F.3d 1 (1st Cir. 2007) .................................................................................... 5

8 Alcaraz v. INS,
9 384 F.3d 1150 (9th Cir. 2004).............................................................................. 9

10 Bell v. Burson, 11 402 U.S. 535 (1971) ........................................................................................... 10

12 Chavez-Navarro v. Ashcroft, 13 57 F. App’x 349 (9th Cir. 2003)....................................................................... 3, 9

14 Church of Scientology v. U.S.,

15

920 F.2d 1481 (9th Cir. 1990).............................................................................. 6

16 Coyotl v. Kelly, 2017 WL 2889681 (N.D. Ga. June 12, 2017) ............................................ 3, 6, 10

17

18

Flores-Torres v. Mukasey, 548 F.3d 708 (9th Cir. 2008)................................................................................ 5

19 Gallo v. U.S. Dist. Ct.,
20 349 F.3d 1169 (9th Cir. 2003)............................................................................ 10

21 Gete v. INS, 22 121 F.3d 1285 (9th Cir. 1997).............................................................................. 2

23 In re Javier Luis Medrano-Inocence, 24 2017 WL 1508874 (BIA Mar. 27, 2017).............................................................. 5

25 INS v. St. Cyr, 26 533 U.S. 289 (2001) ............................................................................................. 5
27 INS v. Yang, 519 U.S. 26 (1996) ............................................................................................... 9
28

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1 JEFM v. Lynch, 837 F.3d 1026 (9th Cir. 2016).......................................................................... 4, 5
2 Judulang v. Holder,
3 565 U.S. 42 (2011) ............................................................................................... 9
4 McDonald v. Gonzales,
5 400 F.3d 684 (9th Cir. 2005)................................................................................ 9
6 Medina v. DHS, 7 2017 WL 2954719 (W.D. Wash. Mar. 14, 2017)................................................. 5

8 Nozzi v. Housing Auth. of Los Angeles, 9 806 F.3d 1178 (9th Cir. 2015).............................................................................. 9

10 Ramirez-Perez v. Ashcroft,

11

336 F.3d 1001 (9th Cir. 2003).............................................................................. 3

12 Reno v. AADC, 525 U.S. 471 (1999) ............................................................................................. 4

13

14

Sameena Inc. v. U.S. Air Force, 147 F.3d 1148 (9th Cir. 1998).............................................................................. 9

15 San Luis & Delta-Mendoza Water Auth. v. Jewell,
16 747 F.3d 581 (9th Cir. 2014)................................................................................ 8

17 Shirrod v. Director, 18 809 F.3d 1082 (9th Cir. 2015).............................................................................. 7

19 Sissoko v. Rocha, 20 509 F.3d 947 (9th Cir. 2007)................................................................................ 3

21 Sulit v. Schiltgen, 22 213 F.3d 449 (9th Cir. 2000)................................................................................ 3

23 Texas v. U.S., 809 F.3d 134 (5th Cir. 2015).......................................................................... 6, 10
24

25

Toor v. Lynch, 789 F.3d 1055 (9th Cir. 2015).............................................................................. 7

26 U.S. ex rel Accardi v. Shaughnessy,
27 347 U.S. 260 (1954) ................................................................................. 6, 7, 8, 9

28

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1 U.S. v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (en banc).............................................................. 2
2 Webster v. Doe,
3 486 U.S. 592 (1988) ............................................................................................. 5 4
Statutes 5
8 U.S.C. § 1252(b)(9) ........................................................................................ 1, 4, 5 6 7 8 U.S.C. § 1252(g)......................................................................................... 1, 2, 3, 4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1 I. 2

INTRODUCTION Defendants’ opposition to Mr. Gonzalez’s motion for temporary restraining

3 order and preliminary injunction rests entirely on mischaracterizations of Mr.

4 Gonzalez’s claims, the DACA program, and Defendants’ own mandatory DACA 5 Standard Operating Procedures (“DACA SOP”). Defendants have only reaffirmed 6 the merits of Mr. Gonzalez’s APA claims, and their jurisdictional arguments

7 misconstrue the law.

8 II. DEFENDANTS’ JURISDICTIONAL ARGUMENTS RELY ON

MISCHARACTERIZATIONS OF MR. GONZALEZ’S CLAIMS AND

9

OF DACA, AND ON MISUNDERSTANDINGS OF LAW

10

Defendants’ jurisdictional arguments rest entirely on their repeated

11 misstatement that Mr. Gonzalez is challenging CBP’s “decision to issue an NTA”

12 and therefore cannot bring his claims in federal court. See, e.g., Dkt. No. 9 at 21,

13 25, 33 (docket pagination). Mr. Gonzalez is not challenging CBP’s issuance of an

14 NTA. Nor is he challenging any action that is bound up in his removal

15 proceedings. He is challenging the separate termination of his DACA status and 16 employment authorization without an NOIT or opportunity to respond—in

17 violation of the DACA SOP’s mandatory procedures and due process. Conceding

18 the failure to follow those procedures, Defendants advance the unsupported

19 assertion that CBP issuing an unlawful presence NTA is synonymous with DACA

20 termination, so that 8 U.S.C. §§ 1252(g) and (b)(9) preclude judicial review. But 21 this alleged policy—the sole basis for Defendants’ jurisdictional arguments—has

22 no basis in the DACA SOP. See Dkt. Nos. 1-11; 1-3 at 11-12, 18-20.

23

Since DACA’s inception, Defendants have made clear that an NTA and

24 DACA status are distinct. Their attempt to rewrite the DACA program for this

25 case ignores DHS’s original 2012 DACA Memorandum; USCIS’s DACA FAQ; 26 DHS/USCIS’s DACA approval notices; and DHS’s nondiscretionary DACA SOP

27 termination policies. Specifically: 28

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1

 The DACA Memo and DACA FAQ make clear that being in removal proceedings (or having a removal order) is not mutually exclusive of DACA status.

See Dkt. Nos. 1-7 at 3 (eligibility for “individuals who are in removal 2 proceedings”) (emphasis in original); 1-13 at 5-6 (“open to . . . those in removal
proceedings, with a final order, or with a voluntary departure order”). 3

4

 Mr. Gonzalez’s DACA approval notices distinguish initiation of removal proceedings from termination of DACA status. See Dkt. Nos. 1-14 at 2; 1-15 at 2

(“Information obtained . . . will be used to determine whether termination of

5 deferred action and/or removal proceedings are appropriate.”) (emphasis added).

6

The DACA SOP establishes nondiscretionary termination procedures that

7 are independent of removal proceedings. To obscure the fact that CBP’s issuance

8 of an NTA for unlawful presence is a matter separate from USCIS’s termination of

9 DACA status, Defendants once again attach DACA SOP Appendix I (also attached 10 as part of Exhibit F to Mr. Gonzalez’s motion)—in which form 602 provides for 11 “automatic” termination upon the issuance of an NTA (by USCIS or ICE, but

12 notably not by CBP), see Dkt. Nos. 1-11 at 13-16; 9-3 at 4—but conveniently

13 leave out the policies that dictate when form 602 is to be used. Those policies

14 (included in Mr. Gonzalez’s Exhibit F, Dkt. No. 1-11) require USCIS to adhere to

15 detailed procedures for Egregious Public Safety (“EPS”) cases before issuing an 16 “automatic” termination using form 602. See Dkt. Nos. 1-11 at 13-15 (“Chapter

17 14: DACA Termination”); 1-3 at 11-12, 18-20. Even then, the NTA and the

18 termination of DACA status are distinct events in separate proceedings before

19 different agencies of DHS.

20

Because Mr. Gonzalez challenges USCIS’s failure to honor his procedural

21 rights in DACA termination proceedings that are not part of the removal

22 proceedings against him—and does not challenge CBP’s issuance of an NTA; the

23 merits of any discretionary determination in immigration court; or rights that flow

24 from his removal proceedings—neither § 1252(g) nor (b)(9) bars any of his claims.

25

The Ninth Circuit has consistently held that § 1252(g) does not preclude

26 judicial review of (1) factual and legal determinations made prior to discretionary

27 decisions, or (2) compliance with, or the validity of, procedures that form the 28 backdrop of ultimate discretionary decisions. See Gete v. INS, 121 F.3d 1285,

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1 1291-92 (9th Cir. 1997); U.S. v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004)

2 (en banc) (“district court may consider a purely legal question that does not

3 challenge the Attorney General’s discretionary authority, even if the answer . . .

4 forms the backdrop against which the Attorney General later will exercise

5 discretionary authority”). Moreover, courts “retain jurisdiction to review

6 constitutional claims, even when those claims address [agency] discretionary

7 decision[s].” Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1004 (9th Cir. 2003); see

8 Sulit v. Schiltgen, 213 F.3d 449, 452-53 & n.1 (9th Cir. 2000) (§ 1252(g) did not

9 bar due process claim that green cards were seized without hearing).

10

In short, Ninth Circuit precedent supports the Coyotl court’s holding that §

11 1252(g) does not strip the courts of jurisdiction over claims like Mr. Gonzalez’s,

12 that challenge USCIS’s failure to follow nondiscretionary procedures in DACA

13 termination proceedings, which do not arise from the Attorney General

14 “commenc[ing] proceedings, adjudicat[ing] cases, or execut[ing] removal orders”

15 against an immigrant. That is doubtless why Defendants attempt to re-characterize

16 Mr. Gonzalez’s claims as “directly challenging the decision to issue an NTA.”

17 Dkt. No. 9 at 23 n.4. Defendants cite two Ninth Circuit cases in support of that 18 argument,1 but those cases merely affirm the unremarkable propositions that Mr.

19 Gonzalez may not challenge CBP’s issuance of an NTA before this Court (he is

20 not) or ask the Court to review the result of a DACA termination decision reached

21 in compliance with proper procedures (he is not). The Sissoko court clarified that §

22 1252(g) barred jurisdiction in the “limited context” of that case because the

23 plaintiff was challenging statutorily “mandatory” detention resulting from the

24 commencement of expedited removal proceedings. 509 F.3d at 949-50. For all of

25 the reasons discussed above and in Mr. Gonzalez’s opening brief, no statute,

26 regulation, or policy mandates termination of his DACA status and benefits

27
28 1 I.e., Chavez-Navarro v. Ashcroft, 57 F. App’x 349 (9th Cir. 2003); Sissoko v. Rocha, 509 F.3d 947 (9th Cir. 2007).
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1 because CBP issued him an NTA for unlawful presence. Section 1252(g) does not

2 strip this Court of jurisdiction.

3

Defendants’ § 1252(b)(9) argument fares no better. At its essence, the

4 argument relies on an overly broad—and unsupportable—reading of the Ninth 5 Circuit’s decision in JEFM v. Lynch, 837 F.3d 1026 (9th Cir. 2016), pet. for reh’g 6 en banc filed. In fact, JEFM supports Mr. Gonzalez in this case.

7

The JEFM decision broke with Ninth Circuit and Supreme Court precedent

8 making clear that by its “explicit language,” § 1252(b)(9) “appl[ies] only to those

9 claims seeking judicial review of orders of removal.” A. Singh v. Gonzales, 499 10 F.3d 969, 978-79 (9th Cir. 2007); see Reno v. AADC, 525 U.S. 471, 487 (1999). 11 While the validity of its holding that the statute applies before a removal order is

12 entered may thus be questioned, JEFM reaffirmed that § 1252(b)(9) has “built-in

13 limits.” 837 F.3d at 1032. The statute applies to claims that “arise from” removal

14 proceedings, but does not strip courts of jurisdiction to hear immigrants’ “claims

15 that are collateral to, or independent of, the removal process.” Id.

16

In JEFM, the plaintiff children challenged laws and regulations governing

17 the immigration courts that denied government-appointed counsel to children in

18 removal proceedings. Because the children’s right-to-counsel claims arose from

19 their removal proceedings, id. at 1033 (“bound up in and an inextricable part of the

20 administrative process”), the Ninth Circuit held that § 1252(b)(9) prevented them 21 from bringing those claims in federal court in the first instance. Id. at 1035.

22

Here, by contrast, Mr. Gonzalez’s procedural challenge to his DACA

23 termination is entirely independent from his removal proceedings. He is

24 challenging USCIS’s failure to follow mandatory procedures promulgated separate

25 and apart from the laws and regulations governing immigration court and the 26 removal process. His claims do not exist only by virtue of his removal

27 proceedings. The APA claims he raises in this Court would exist even if 28 Defendants had terminated his DACA status without following their procedures,

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1 but never issued an NTA. In other words—unlike in JEFM—these are procedural

2 protections that Mr. Gonzalez has a right to vindicate even in the absence of 3 removal proceedings.2 See Dkt. No. 1-3 at 10-11, 26-29. Accordingly, §

4 1252(b)(9) does not prevent him from pursuing his claims in this Court. See, e.g.,

5 Flores-Torres v. Mukasey, 548 F.3d 708, 711 (9th Cir. 2008) (upholding

6 jurisdiction over challenge to detention during removal proceedings that was

7 deemed collateral to the removal process); see id. at 711-13 & n.6 (claim may be

8 considered independent of removal proceedings even when its resolution might

9 invalidate the proceedings).

10

Defendants seek nothing less than to circumvent the “strong presumption in

11 favor of judicial review of administrative action.” INS v. St. Cyr, 533 U.S. 289,

12 298 (2001). But their own argument that the INA precludes judicial review of

13 “issues that can be raised in removal proceedings,” Dkt. No. 9 at 25, is fatal to that

14 effort. By the Government’s admission, an Immigration Judge and the BIA cannot

15 reinstate DACA status or compel Defendants to abide by the DACA SOP’s

16 termination procedures. See Medina v. DHS, 2:17-CV-00218, Mar. 18, 2017 Hr’g

17 Tr. at 6-8 (COURT: “[D]oes the immigration judge have the power to reinstate

18 DACA status?” MR. ROBINS: “No, Your Honor.”); In re Javier Luis Medrano-

19 Inocence, 2017 WL 1508874, at *2 (BIA Mar. 27, 2017) (“[W]e have no

20 jurisdiction to grant relief under the [DACA] program.”). Defendants would thus

21 have this Court construe the INA “to deny any judicial forum for a colorable

22 constitutional claim,” Webster v. Doe, 486 U.S. 592, 603 (1988). That cannot be

23 the law because it would raise obvious and “serious constitutional concerns.” Id.;

24 see Aguilar v. ICE, 510 F.3d 1, 11 (1st Cir. 2007) (“§1252(b)(9) is a judicial

25 channeling provision, not a claim-barring one”).

26 2 At least one court has recognized that JEFM did not purport to overturn Ninth
27 Circuit precedent governing claims that are not “wholly intertwined with the
28 removal proceedings.” See Medina v. DHS, 2017 WL 2954719, at *13-16 (W.D. Wash. Mar. 14, 2017) (Report and Recommendation).
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III. DEFENDANTS REAFFIRM THE MERITS OF MR. GONZALEZ’S

1

APA CLAIMS

2

Defendants’ arguments in opposition to the merits of Mr. Gonzalez’s APA

3 claims are equally unavailing. “Pursuant to the Accardi doctrine, an administrative

4 agency is required to adhere to its own internal operating procedures.” Church of 5 Scientology v. U.S., 920 F.2d 1481, 1487 (9th Cir. 1990) (citing U.S. ex rel Accardi 6 v. Shaughnessy, 347 U.S. 260, 268 (1954)). Defendants failed to do so here and

7 thus violated Mr. Gonzalez’s rights under the APA. Defendants attempt to distract

8 from their indisputable misconduct by making bold and incorrect assertions of law,

9 mischaracterizing Mr. Gonzalez’s claims, and raising post hoc justifications for 10 their conduct and factual disputes that are not properly raised before this Court, 11 which only underscore the need for a fair hearing at USCIS. But no amount of

12 obfuscation hides the fact that Defendants acted unlawfully and violated their own

13 mandatory DACA termination procedures by failing to provide Mr. Gonzalez with

14 either an NOIT or any opportunity (let alone 33 days) to respond to the allegations

15 against him before terminating his DACA status and employment authorization.

16

Defendants contend that Mr. Gonzalez was not entitled “to receive any

17 process regarding the termination . . . of DACA because deferred action is

18 necessarily an exercise of . . . prosecutorial discretion.” Dkt. No. 9 at 27. This

19 brash argument flies in the face of established caselaw holding that discretion with

20 respect to DACA applications and terminations is circumscribed by mandatory 21 procedures in DHS’s DACA SOP and the 2011 USCIS Memo it incorporates. See

22 Texas v. U.S., 809 F.3d 134, 173 (5th Cir. 2015); Coyotl v. Kelly, 2017 WL

23 2889681, at *4 (N.D. Ga. June 12, 2017) (DACA SOP is nondiscretionary).

24 Indeed, the Government conceded in Coyotl that these documents “are the

25 guidelines that adjudicators are to apply.” Id. at *4. And they entitle Mr. Gonzalez 26 to an NOIT and opportunity to respond. Dkt. No. 1-3 at 18-29.

27

Defendants cannot avoid the mandates of the DACA SOP’s and 2011

28 USCIS Memo’s detailed procedures for DACA termination by cherry-picking and

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1 mischaracterizing a broadly worded response to a DACA FAQ, see Dkt. No. 9 at

2 32, asking “Can my deferred action under the DACA process be terminated before

3 it expires?” The answer—“DACA is an exercise of prosecutorial discretion and

4 deferred action may be terminated at any time, with or without a Notice of Intent to 5 Terminate, at DHS’s discretion.”—does not suggest that the FAQ supersedes the 6 DACA SOP’s detailed procedures. On the contrary, “at DHS’s discretion” must be

7 understood in the context of those mandatory procedures, which allow for

8 termination without an NOIT only after USCIS and ICE follow a specified

9 procedure that Defendants concede went ignored in Mr. Gonzalez’s case.

10

To defeat Mr. Gonzalez’s APA and Accardi claims, Defendants improperly

11 rely on a mischaracterization of the DACA SOP and post hoc justifications for

12 USCIS’s termination of Mr. Gonzalez’s DACA status without notice. See Shirrod

13 v. Director, 809 F.3d 1082, 1087 n.4 (9th Cir. 2015) (court must “review only what

14 the agency did, not what [it] could have done”); Toor v. Lynch, 789 F.3d 1055,

15 1064 (9th Cir. 2015) (agency action may only be affirmed based on “explanations 16 offered by the agency”). They argue that “where CBP or ICE issues a Notice to

17 Appear, the DACA guidance provides that DACA terminates automatically . . .

18 [p]er Appendix I.” Dkt. No. 9 at 32. But neither Chapter 14 of the DACA SOP—

19 which governs termination—nor Appendix I, on which Defendants purport to rely,

20 says USCIS may terminate DACA status without issuing an NOIT when CBP 21 issues an NTA based solely on unlawful presence. On the contrary, the DACA

22 SOP requires USCIS and ICE to comply with procedures for determining that a

23 particular case raises EPS concerns before termination without notice is permitted.

24 See Dkt. No. 1-11 at 13-16.

25

Defendants concede that they failed to follow those procedures. Nothing in

26 the record indicates that anyone at USCIS ever determined Mr. Gonzalez was an

27 EPS concern or referred his case to ICE, or that ICE ever reviewed his case or 28 issued an NTA based on a determination that it was an EPS case. On the contrary,

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1 CBP (not ICE) issued Mr. Gonzalez’s NTA based solely on unlawful presence

2 without reference to any criminal violation. Under those circumstances, the

3 DACA SOP required that USCIS provide Mr. Gonzalez notice and an opportunity

4 to respond before his DACA status was terminated. See Dkt. No. 1-11 at 13-16.

5

Defendants attempt to justify USCIS’s termination without notice by

6 pointing to notes of interviews with three of the undocumented immigrants

7 allegedly found at the house where Mr. Gonzalez was arrested, who supposedly

8 identified him in a photographic array as having had a role in their concealment.

9 Dkt. No. 9 at 16. Of course, the same interview notes suggest that the other nine 10 individuals—whom CBP also interviewed—did not identify Mr. Gonzalez. For 11 their part, Defendants interviewed Mr. Gonzalez for two days before losing interest

12 in him—allowing him to be released for just $5,000 after a hearing in which an

13 Immigration Judge determined that he was not a public safety concern—and never

14 charged him with a crime or investigated him again for the past 16 months.

15 Ultimately, the factual dispute over Mr. Gonzalez’s involvement with the 16 immigrants found at the house is not part of the procedural claims before this

17 Court; it must be considered by USCIS in a proper termination proceeding in

18 which Mr. Gonzalez—who vigorously contests Defendants’ allegations—has an

19 opportunity to tell his side of the story.

20

In sum: (1) USCIS did not base its termination of DACA on any finding that

21 Mr. Gonzalez was an EPS concern and cannot now rely on that reasoning to justify

22 its unlawful decision not to issue an NOIT, see San Luis & Delta-Mendoza Water

23 Auth. v. Jewell, 747 F.3d 581, 603 (9th Cir. 2014); and (2) the parties’ factual

24 dispute only underscores the wisdom of the DACA SOP’s procedural safeguards.

25

Defendants’ assertion that courts “decline[] to apply the Accardi doctrine in

26 matters of prosecutorial discretion” is simply wrong. Accardi itself was a case

27 about the exercise of discretion in immigration removal proceedings. And courts 28 have applied the Accardi doctrine in a wide variety of enforcement contexts. See,

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1 e.g., INS v. Yang, 519 U.S. 26, 32 (1996); McDonald v. Gonzales, 400 F.3d 684,

2 686 & n.5 (9th Cir. 2005); Sameena Inc. v. U.S. Air Force, 147 F.3d 1148, 1153

3 (9th Cir. 1998). Nor is the Accardi doctrine “inapplicable in the context of internal

4 operating guidelines that preserve the exercise of agency discretion.” Dkt. No. 9 at

5 34. In the Ninth Circuit, the Accardi doctrine extends beyond formal “regulations”

6 to include, e.g., “internal operating procedures,” “handbook[s],” “policy

7 statements,” and other materials that document an agency’s “usual practice.” 8 Alcaraz v. INS, 384 F.3d 1150, 1162 (9th Cir. 2004) (citing cases).3

9

Finally, while the Court should be able to grant this motion based on Mr.

10 Gonzalez’s non-constitutional APA claims, Defendants’ arguments in opposition

11 to his due process claim also miss the mark. While arguing that Mr. Gonzalez

12 lacks a protected property interest in his DACA status and associated benefits,

13 Defendants acknowledge that an individual has a protected property interest in a

14 government benefit where he or she has a “legitimate claim of entitlement” to that

15 benefit. See Nozzi v. Housing Auth. of Los Angeles, 806 F.3d 1178, 1191 (9th Cir.

16 2015). The Ninth Circuit has explained that a person has a protected property right

17 in government benefits where regulations “greatly restrict the discretion of the

18 people who administer those benefits.” Id. There is no question that DACA

19 recipients have a legitimate claim of entitlement to benefits conferred by the

20 program because it is operated under a well-defined framework and governed by

21 specific criteria that greatly restrict the discretion of those who administer it.

22 Indeed, the DACA SOP provides “nearly 150 pages of specific instructions” for

23 managing the program, Texas, 809 F.3d at 173, which are not discretionary and

24

25
26 3 Defendants ignore Mr. Gonzalez’s remaining arbitrary and capricious arguments, see Dkt. No. 1-3 at 20-25, because permitting a CBP official’s issuance of an
27 unlawful presence NTA to simultaneously terminate DACA status (i.e., lawful
28 presence) would so clearly fly in the face of the DACA program’s raison d’être and eliminate its “rational operation.” Judulang v. Holder, 565 U.S. 42, 58 (2011).
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1 apply “to all personnel performing adjudicative functions.” Coyotyl, 2017 WL

2 2889861, at *4.

3

Defendants’ remaining constitutional arguments simply mischaracterize Mr.

4 Gonzalez’s due process claim. He does not premise his claim, for example, on a 5 substantive right “to work in the United States without authorization.” Dkt. No. 9 6 at 28. Rather, his claim is that once certain benefits, like employment

7 authorization, are conferred, they cannot be terminated without due process. Bell

8 v. Burson, 402 U.S. 535, 539 (1971); Gallo v. U.S. Dist. Ct., 349 F.3d 1169, 1179

9 (9th Cir. 2003). And for obvious reasons, Defendants do not even attempt to argue 10 that they afforded Mr. Gonzalez due process in his DACA termination decision. 11 IV. THE HARM IMPOSED BY DEFENDANTS IS IRREPARABLE

12

Defendants argue that this Court should ignore the urgency underlying Mr.

13 Gonzalez’s TRO application as of his own making. Nonsense. Mr. Gonzalez’s

14 urgent need to have his DACA status restored before the October 5 final deadline

15 for DACA renewal applications is solely the result of the current administration’s 16 decision to wind down the DACA program and impose that deadline, which was

17 announced for the first time on September 5. Mr. Gonzalez filed this case and his

18 TRO application just six days later. Defendants also contend that Mr. Gonzalez’s

19 not filing for DACA reinstatement for 16 months “casts doubt on his claim of

20 harm.” Dkt. No. 9 at 19. The Court should reject this cruel argument out of hand. 21 When USCIS terminated Mr. Gonzalez’s DACA status “automatically” and

22 without prior notice, it told him that the decision was final and “[a]n appeal or

23 motion to reopen/reconsider this notice of action may not be filed.” Dkt. No. 1-19

24 at 2. It is the ultimate “Catch-22” for Defendants now to argue that a layperson

25 with a high school education, who was not represented by counsel for most of the 26 time, should be penalized for taking USCIS at its word and not filing suit to

27 challenge the termination at an earlier date. Of course, that is not the law. 28

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PLAINTIFF’S REPLY IN SUPPORT OF EX PARTE EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

Case 3:17-cv-01840-JM-NLS Document 10 Filed 09/25/17 PageID.559 Page 16 of 16

1 Dated: September 25, 2017 Respectfully submitted,

2

/s/ John C. Ulin

3

John C. Ulin (SBN 165524)

john.ulin@apks.com

4

Jaba Tsitsuashvili (SBN 309012)

5

jaba.tsitsuashvili@apks.com

ARNOLD & PORTER KAYE SCHOLER LLP

6

777 South Figueroa Street, 44th Floor

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Los Angeles, CA 90017-5844

T: (213) 243-4000

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F: (213) 243-4199

9 Attorneys for Plaintiff

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ALBERTO LUCIANO GONZALEZ TORRES

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PLAINTIFF’S REPLY IN SUPPORT OF EX PARTE EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

 
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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

10 ALBERTO LUCIANO GONZALEZ CASE NO. 17cv1840 JM(NLS)

TORRES, 11

ORDER GRANTING MOTION FOR

12

v.

Plaintiff, PRELIMINARY INJUNCTION

13 U.S. DEPARTMENT OF HOMELAND SECURITY; U.S.
14 CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION
15 AND CUSTOMS ENFORCEMENT; and U.S. CUSTOMS AND BORDER
16 PROTECTION,

17

Defendants.

18

19

Plaintiff Alberto Luciano Gonzalez Torres moves to enjoin the revocation of the

20 legal status he obtained through the Deferred Action for Childhood Arrivals (“DACA”)

21 program in order to permit him to apply for an extension of his DACA status.

22 Defendants U.S. Department of Homeland Security (“DHS”), U.S. Citizenship and

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

24 and U.S. Customs and Border Protection (“USCBP”) oppose the motion. Having

25 carefully considered the matter presented, the court record, the arguments of counsel

26 and, for the reasons set forth below, the court grants the motion for preliminary

27 injunction. 28 / / /

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1

2

BACKGROUND

3

On September 11, 2017, Plaintiff commenced this declaratory and injunctive

4 relief action seeking a declaration that the automatic termination of his DACA status,

5 without notice or an opportunity to contest the termination, (1) failed to comply with

6 the DACA Standard Operating Procedures (“DACA SOP”); (2) violated the arbitrary,

7 capricious, and abuse of discretion standard of the Administrative Procedure Act

8 (“APA”); and (3) violated Plaintiff’s Procedural Due Process rights under the Fifth

9 Amendment.

10

Plaintiff Obtains DACA Status

11

Plaintiff is a 24-year-old citizen of Mexico who was brought to the United States

12 by his family when he was eight years old. Plaintiff and his family entered the United

13 States without authorization from the Attorney General. Since his entry into the United

14 States, Plaintiff has lived in San Diego, California where he graduated from Altus

15 Charter High School in 2011. From 2011 to 2013 Plaintiff was unable to obtain lawful

16 employment due to his immigration status. Plaintiff has no criminal convictions and

17 had never been arrested until the 2016 detention in this case.

18

In June 2012, the Obama Administration created a program which allowed

19 certain immigrants to avoid deportation and obtain work permits for a period of two

20 years, renewable upon good behavior. The contours of the DACA program were set

21 out in a June 15, 2012 Memorandum from former Secretary of the DHS, Janet

22 Napolitano, and which became known as the “Napolitano Memo.” The Napolitano

23 Memo provided the criteria to be satisfied before an individual could be considered for

24 an exercise of prosecutorial discretion. In broad brush, one qualified for DACA status

25 upon showing that the individual:

26 • entered the United States before their 16th birthday and prior to June 2007;

27 • lived continuously in the United States during the previous five years;

28 • was currently in school, a high school graduate or was honorably discharged

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1

from the military;

2 • was under the age of 31 as of June 15, 2012; and

3 • not have been convicted of a felony, significant misdemeanor, three other

4

misdemeanors, nor posed a threat to national or public safety.

5

The program did not, and still does not, provide lawful status or a path to

6 citizenship, nor, among other things, does it provide eligibility for federal welfare or

7 student aid. (Pls. Exh. B).

8

In early 2013, satisfying all prerequisites for DACA status, Plaintiff applied for,

9 and was granted, DACA status. Having obtained DACA status, Plaintiff was

10 considered “lawfully present” in the country and granted an Employment Authorization

11 Document (“EAD”) and Social Security Number, so that Plaintiff could be lawfully

12 employed. The approval letter issued by USCIS informed Plaintiff that “in the exercise

13 of its prosecutorial discretion, [USCIS] has decided to defer action on” his case for a

14 period of two years. “Deferred action does not confer or alter any immigration status.”

15 (Pl. Exh. I). In 2014, DHS renewed Plaintiff’s DACA status.

16

Upon receipt of DACA status, Plaintiff obtained full-time employment in the

17 airline food packaging industry and worked in that industry from 2013 until May 2016,

18 working the 7:00 p.m. to 4:00 a.m. shift. The hiring process involved interviews, drug

19 tests, background checks, and verification of employment authorization. Plaintiff used

20 a portion of his income to financially support his family. In May 2016, Plaintiff’s

21 DACA status was purportedly revoked by the USCIS in a Notice of Action. Plaintiff

22 informed his employer of the loss of DACA status and was terminated. The employer

23 informed Plaintiff that he could re-apply for employment once he obtains work

24 authorization.

25

Revocation of DACA Status

26

On May 6, 2016, Plaintiff declares that an acquaintance named Adolfo asked

27 him, as he had in the past, to look after his dogs while he was out of town. Plaintiff

28 went to Adolfo’s home, took care of the dogs, and encountered two other individuals

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1 at the home. Plaintiff planned to have his sister pick him up from Adolfo’s house and

2 drive him to work by 7:00 p.m., the shift start time. At 4:00 p.m., a few hours after

3 arriving at Adolfo’s house, USCBP officers knocked on the door and asked Plaintiff

4 if they could search the premises. He informed the USCBP officers that they needed

5 a search warrant to enter the home as he did not believe he “had permission to let them

6 in because it was not my house.” (Gonzalez Decl. ¶11). The Officers did not enter the

7 home, but remained outside.

8

Around 5:00 p.m. a man not known to Plaintiff arrived, represented that he was

9 the owner of the house, and asked Plaintiff to exit his home. Outside the home,

10 Plaintiff was interviewed by USCBP officers and informed them that he possessed

11 DACA status and a valid EAD. According to Plaintiff, he was then arrested,

12 handcuffed, and spent the next two days being “aggressively” interrogated by two

13 officers. The officers asked him about “wrongdoing at the house that I did not

14 understand. I kept asking them for details and telling them, ‘I don’t understand why

15 I’m being detained.’” (Id. ¶18). “No one interrogated [Plaintiff] after those first two

16 or three days,” or after his release from custody.

17

After two or three days, Plaintiff was transferred to another facility. On June 1,

18 2016, Plaintiff was provided with a bond hearing before Immigration Judge

19 McSeveney, and released two days later on a $5,000 bond. In the sixteen months since

20 his release, Plaintiff has not had any law enforcement contacts. At oral argument, the

21 court was advised the matter of Plaintiff’s removal is still pending.

22

To provide additional context to Plaintiff’s declaration, Defendants represent that

23 Plaintiff (and another individual arrested at the searched house) was arrested on May

24 6, 2016, for harboring illegal aliens in violation of 8 U.S.C. §1324(a)(1)(A)(iii) and

25 §1182(a)(6)(E)(i). Once the owner of the home arrived at Adolfo’s residence, the

26 owner consented to permit USCBP agents to search the residence (the renters were not

27 at home). Inside, USCBP discovered 12 illegal aliens (five from China and seven from

28 Mexico) hiding in the attic. The record of Deportable/Inadmissible Alien documents

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1 indicate that three material witnesses identified Plaintiff as the individual who told

2 them to hide in the attic.

3

On May 7, 2016, USCIS issued Plaintiff a Notice to Appear (“NTA”) charging

4 him as “inadmissible” to the United States (i.e. Plaintiff was deemed unlawfully

5 present in the country) pursuant to 8 U.S.C. §1182(a)(6)(A)(i). On May 23, 2016,

6 USCIS provided Plaintiff with a Notice of Action informing him that his DACA status

7 and employment authorization had been automatically terminated as of the date of the

8 NTA (May 7, 2016). The Notice of Action also informed Plaintiff that an appeal or

9 motion to reopen/reconsider “may not be filed.” (Pls. Exh. N).

10

The DACA SOP

11

The DACA SOP issued by DHS sets forth the procedures for adjudicating

12 DACA applications, renewals, and the termination of participation in DACA. In

13 pertinent part, the DACA SOP outlines four procedures to be followed upon

14 termination or revocation of DACA status. First, in the event an immigration officer

15 learns that DACA status was either erroneously or fraudulently issued to a DACA

16 recipient, the agency issues a Notice of Intent to Terminate (“NOIT”) to the recipient.

17 The NOIT provides notice that, upon termination of DACA status, the recipient will

18 lose employment authorization. The DACA SOP provides that the NOIT must inform

19 the recipient that he or she has “33 days to file a brief or statement contesting the

20 grounds cited in the” NOIT. (Pls. Exh.F at 136).

21

Second, the DACA SOP also provides that criminal offenses or public safety

22 concerns deemed to be Egregious Public Safety (“EPS”) cases, as defined in the

23 November 7, 2011 Memorandum for EPS cases (“2011 Memorandum”), may serve as

24 a basis to terminate DACA status. Once the underlying conduct is found to be an EPS

25 case, the officer then forwards the case to the Background Check Unit DACA Team

26 (“BCU”) who, in turn, forwards the case to ICE for application of the 2011

27 Memorandum. In the event ICE accepts the case and issues an NTA, the recipient will

28 automatically lose DACA status. Additionally, upon filing the NTA with EOIR

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1 (Executive Office for Immigration Review), the recipient’s employment authorization

2 terminates automatically. (Id. at 137).

3

Third, in the event ICE does not accept the EPS case, or the underlying offense

4 is non-EPS conduct, BCU DACA Team is instructed to reopen the case and issue a

5 NOIT. The individual then has 33 days to submit a brief contesting the grounds for

6 removal identified in the NOIT.

7

Fourth, in the event USCIS determines, after consulting with ICE, that exercising

8 prosecutorial discretion is not consistent with DHS’s enforcement policies, and ICE

9 does not plan to issue an NTA, the officer refers the matter through the normal chain of

10 command to Headquarters Service Center Operations (“HSCO”). In the event HSCO

11 determines that the case warrants final termination, the DACA recipient must be

12 provided with DACA Form 603, and an opportunity to respond.

13

In short, except in EPS cases, the DACA SOP requires notice and an ability to

14 contest the NOIT before DACA status may be terminated. In EPS cases, DACA status

15 is automatically revoked once ICE accepts the case and issues a NTA. However, as set

16 forth in the November 7, 2011 Policy Memorandum, an NTA can only by issued by

17 USCIS under limited circumstances not applicable here (in cases involving modifying

18 conditions of residency, denial of Form I-829, termination of refugee status, adjustment

19 of status denials, and asylum). (Pls. Exh. G). It is undisputed that Defendants did not

20 comply with any of the specified DACA termination provisions, including the referral

21 of the case to ICE for a decision on the issuance of an NTA.

22

Recent DACA Related Events

23

On September 5, 2017, Defendant DHS announced a plan to eliminate DACA,

24 beginning in March 2018. Current DACA recipients whose status expires on or before

25 March 5, 2018, may apply for a two-year renewal, but renewal applications are due on

26 or before October 5, 2017.

27

In light of the numerous recent government issued memoranda concerning

28 modifications to immigration policies, laws, regulations and procedures, the court notes

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1 that these memoranda preserve the DACA program. For example, on February 20,

2 2017, the Secretary of Homeland Security John F. Kelly issued an implementing

3 Memorandum stating that DHS “will no longer exempt classes or categories of

4 removable aliens from potential enforcement.” However, the memorandum specifically

5 left intact the DACA program. On June 15, 2017, Secretary Kelly issued a

6 memorandum rescinding the Deferred Action for Parents of Americans and Lawful

7 Permanent Residents (“DAPA”), but temporarily leaving the DACA program in place.

8 (Pls. Exh. A).

9

In light of the announced elimination of DACA, and the October 5, 2017 deadline

10 for renewals under DACA, Plaintiff seeks expedited relief to enjoin Defendants from

11 enforcing the termination of his DACA status in order to permit him to file a DACA

12 renewal application. On September 21, 2017, the court entered an Amended Scheduling

13 Order setting the matter for oral argument on September 28, 2017.

14

DISCUSSION

15 Legal Standards

16

To obtain preliminary or temporary injunctive relief, the party must satisfy one

17 of two tests: (1) a combination of probable success and the possibility of irreparable

18 harm, or (2) the party raises serious questions and the balance of hardship tips in its

19 favor. Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987).

20 "These two formulations represent two points on a sliding scale in which the required

21 degree of irreparable harm increases as the probability of success decreases." Id. Under

22 both formulations, however, the party must demonstrate a "fair chance of success on the

23 merits" and a "significant threat of irreparable injury." Id; Miller v. California Pac.

24 Med. Ctr., 19 F.3d 449, 456 (9th Cir. 1994 (en banc). The court also considers the

25 public interest in the issues raised by the parties. Winter v. NRDC, Inc., 555 U.S. 7, 20 26 (2008).1

27

28

1 Pursuant to Fed.R.Civ.P. 65(a), the court treats Plaintiff’s motion as one for

preliminary injunctive relief.

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1 Subject Matter Jurisdiction

2

Defendants contend that the jurisdictional stripping provision of the Immigration

3 and Naturalization Act prevents this court from reviewing Plaintiff’s claim. The statute

4 provides:

5

Except as provided in this section and notwithstanding any other provision

of law (statutory or nonstatutory), including section 2241 of Title 28, or

6

any other habeas corpus provision, and sections 1361 and 1651 of such

title, no court shall have jurisdiction to hear any cause or claim by or on

7

behalf of any alien arising from the decision or action by the Attorney

General to commence proceedings, adjudicate cases, or execute removal

8

orders against any alien under this chapter.

9 8 U.S.C. §1252(g). The parties do not dispute that, as stated in the statute, this court

10 does not have jurisdiction to entertain claims “arising from the decision or action by the

11 Attorney General to commence proceedings, adjudicate cases, or execute removal orders

12 against any alien.” Id. Under this provision, the court is stripped of jurisdiction to

13 entertain Defendants’ ultimate discretionary determination as to Plaintiff’s DACA

14 status. However, Defendants misconstrue §1252(g).

15

Section 1252(g) must be construed narrowly and “applies only to three discrete

16 actions. . . ‘to commence proceedings, adjudicate cases, or execute removal orders.’”

17 Wong v. United States, 373 F.3d 952, 963-64 (9th Cir. 2004); Coyotl v. Kelly, 2017 WL

18 2889681 (N.D. GA. June 12, 2017) (jurisdictional stripping provision does not bar the

19 exercise of jurisdiction over claim that termination of DACA status occurred without

20 following the non-discretionary termination provisions of the DACA SOP); (United

21 States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004) (district court may consider

22 “a purely legal conclusion that does not challenge the Attorney General’s discretionary

23 authority, even if the answer . . . forms the backdrop against which the Attorney General

24 later will exercise discretionary authority”); Ramirez-Perez v. Ashcroft, 336 F.3d 1001,

25 1004 (9th Cir. 2003) (courts “retain jurisdiction to review constitutional claims, even

26 when those claim address [agency] discretion”). Accordingly, this provision does not

27 deprive the court of jurisdiction to entertain Plaintiff’s claim that the termination of his

28 DACA status did not comply with the non-discretionary DACA SOP.

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1

Similarly, the provision related to the review of orders of removal, 8 U.S.C.

2 §1252(b)(9), does not prevent the court from entertaining Plaintiff’s claims. Here, there

3 is no final order of removal entered against Plaintiff and no proceedings have been

4 commenced against Plaintiff. As noted in Sing v. Gonzales, 499 F.3d 969, 978 (9th Cir.

5 2007), §1252(b)(9) “appl[ies] only to those claims seeking judicial review of orders of

6 removal.” Here, Plaintiff brings a procedural challenge to termination of his DACA

7 status, an issue independent from any removal proceedings. Accordingly, this provision

8 does not deprive the court of jurisdiction to entertain Plaintiff’s claim.

9

In sum, the court concludes that it possesses jurisdiction to entertain Plaintiff’s

10 claims.

11 Likelihood of Success on the Merits

12

Both Counts One and Two in the complaint seek relief pursuant to the APA, 5

13 U.S.C. §702, based upon Defendants failure to comply with the DACA SOP when

14 terminating Plaintiff’s DACA status. Under the APA, “[a] person suffering legal wrong

15 because of agency action, or adversely affected or aggrieved by agency action within

16 the meaning of a relevant statute, is entitled to judicial review.” 5 U.S.C. §702. The

17 APA further states “[a]gency action made reviewable by statute and final agency action

18 for which there is no other adequate remedy in a court are subject to judicial review.”

19 Id. § 704. Section 706 instructs the court reviewing agency action to “decide all

20 relevant questions of law, interpret constitutional and statutory provisions, and

21 determine the meaning or applicability of the terms of an agency action.” Not only shall

22 the reviewing court compel agency action unlawfully withheld but shall also “hold

23 unlawful and set aside agency action, findings, and conclusions found to be – (A)

24 arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

25 Id. §§706(1) and (2)(A).

26

The court concludes that Defendants’ failure to follow the termination procedures

27 set forth in the DACA SOP is arbitrary, capricious, and an abuse of discretion. See U.S.

28 ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954) Alcaraz v. INS, 384 F.3d

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1 1150, 1162 (9th Cir. 2004) (an agency’s failure to follow its own procedures is a

2 sufficient ground to set aside agency action). Two of the four DACA SOP termination

3 procedures require the appropriate agency to provide the DACA recipient with a NOIT

4 identifying the grounds for termination and providing 33 days to file a brief or statement

5 contesting the grounds. (Pls. Exh. F at 136-37). Defendants did not comply with this

6 procedure in the DACA SOP. One other means of terminating DACA status is to refer

7 the matter to HSCO which then determines whether the case warrants final termination.

8 If so, the DACA recipient must be provided with DACA Form 603, and an opportunity

9 to respond. Defendants did not comply with this procedure in the DACA SOP. Lastly,

10 while DACA status may be terminated by ICE in an EPS case, the Notice received by

11 Plaintiff identified his presence in the United States without being admitted or paroled

12 in violation of 8 U.S.C. §1182(a)(6)(A)(i) as the grounds for removal. A violation of

13 that provision does not constitute an EPS case because the 2011 Memorandum

14 identifies only certain aggravated felony alien smuggling offenses (8 U.S.C.

15 §1001(a)(43)(N)) as disqualifying criminal conduct. Unlawful presence in violation of

16 §1182(a)(6)(A)(i) is not an aggravated felony. Accordingly, the court concludes that

17 Defendants have failed to follow their own procedures in terminating Plaintiff’s DACA

18 status.

19

Defendants broadly argue that the DHS possesses such broad prosecutorial

20 discretion that they need not follow the DACA SOP in terminating the status of DACA

21 recipients. The court categorically rejects this proposition. While Defendants are

22 granted broad discretion to commence, adjudicate, and execute removal orders, a

23 fundamental principle of federal law is that a federal agency must follow its own

24 procedures. Morton v. Ruiz, 415 U.S. 199, 233-35 (1974) (“[W]here the rights of

25 individuals are affected, it is incumbent upon agencies to follow their own

26 procedures.”); Nicholas v. INS, 590 F.2d 802, 809 (9th Cir.1979) (holding that INS

27 violated its own regulation in processing a non-citizen's request for immigration

28 records); United States v. Heffner, 420 F.2d 809 (4th Cir. 1969) (courts must overturn

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1 agency actions which do not scrupulously follow the regulations and procedures

2 promulgated by the agency itself). In Accardi, 347 U.S. 260, the petitioner alleged that

3 the Board of Immigration Appeals (“BIA”) failed to exercise its discretion in

4 determining his application for suspension of deportation. Id. at 261. Petitioner alleged

5 that the BIA deferred to the decision of the Attorney General and, therefore, did not

6 exercise its own regulatory discretion in determining his application. The BIA denied

7 petitioner’s application allegedly because petitioner’s name was on a list of immigrants

8 the Attorney General wanted deported. The regulatory scheme required the BIA to

9 exercise its own judgment when considering immigration appeals, and not to rely upon

10 the Attorney General’s determinations. The Supreme Court reversed the BIA’s denial

11 of the application and remanded for further proceedings because the BIA allegedly

12 failed to exercise its own discretion as required by its own relevant regulations.

13

Defendants further contend, in essence, the NTA issued by USCBP in connection

14 with removal proceedings for Plaintiff was tantamount to ICE issuing a NTA

15 terminating DACA status pursuant to the DACA SOP. But this position is indefensible

16 for several reasons. First, as discussed elsewhere in this order, the NTA for removal

17 proceedings was predicated upon the “ground” of being illegally present, a charge that

18 is not an aggravated felony for purposes of EPS rules. See 8 U.S.C. §1001(a)(43)(N);

19 Pls. Exh. G at pp. 61-62. Second, contrary to defendants’ position that immigration

20 removal proceedings are the proper forum for Plaintiff to raise his DACA termination

21 status, an immigration judge has no jurisdiction to reinstate DACA status, or to

22 authorize an application for renewal of DACA status, as acknowledged by Defendants

23 at oral argument. Basically, Defendants’ argument that a USCBP issued NTA for

24 removal purposes is the equivalent of an ICE issued NTA for an EPS case under DACA

25 has no basis in law. The two NTAs are not fungible, or “flip sides of the same coin,”

26 as advanced by Defendants at oral argument.

27

Here, Defendants have failed to present any evidence that they complied with the

28 termination of DACA status provisions set forth in the DACA SOP. Moreover, Plaintiff

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1 has made a strong showing that he is likely to prevail on his APA claim that Defendants

2 acted arbitrarily, capriciously, and abused their discretion by failing to follow the

3 DACA SOP.

4

In sum, the court concludes that Plaintiff has made a strong showing that he is

5 likely to prevail on the merits.

6 Procedural Due Process

7

Because the court resolved Plaintiff’s claims based upon a statutory analysis, the

8 court does not reach the claim that Defendants violated his Fifth Amendment procedural

9 due process rights. In any event, the court notes that the remedy for violation of the

10 DACA SOP - - notice and an opportunity to contest administrative action - - is an

11 equivalent remedy available under the due process clause.

12 Irreparable Harm

13

The court concludes that Plaintiff will suffer significant irreparable harm in the

14 absence of an injunction by losing his DACA status and the ability to apply for renewal

15 of that status. The potential harm caused by Defendants’ conduct includes the loss of

16 employment, a core benefit under DACA. The deprivation of employment impacts

17 Plaintiff’s ability to financially provide for himself and his family. See Cleveland Bd.

18 Of Ed. v. Laudermill, 470 U.S. 532, 543 (1985) (loss of livelihood is a severe harm).

19 The loss of DACA status also undermines one’s sense of well-being and subjects

20 Plaintiff to a constant threat of apprehension and possible removal from the only

21 country he has called home. This threatened harm far exceeds any harm suffered by the

22 government. This court is simply requiring Defendants to follow their own procedural

23 dictates for termination of DACA status by essentially giving Plaintiff a meaningful

24 opportunity to be heard before any determination to terminate his DACA status is made.

25

Defendants argue that Plaintiff’s pursuit of a legal remedy 16 months after his

26 DACA status was terminated undermines his claim of irreparable harm. This argument

27 is not persuasive. The precipitating event giving rise to the present action is the

28 September 5, 2017 announcement by DHS that the DACA program is being phased out

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1 and any DACA renewals had to be filed on October 5, 2017. Under these

2 circumstances, Plaintiff’s pursuit of this action is timely.

3

In sum, Plaintiff has demonstrated a significant threat of irreparable harm.

4 The Public Interest

5

The court concludes that the public interest consideration is multi-faceted and

6 difficult to assess in light of the current political situation. There is no doubt that there

7 is strong interest in enforcing U.S. immigration laws effectively and consistently. On

8 the other hand, the public has a strong interest in the fair and even-handed treatment of

9 immigrants. The court also notes that (1) DACA and DACA recipients have strong

10 national support as reflected in numerous public opinion polls, as well as broad political

11 support, and (2) the political process may comprehensively address the DACA program

12 in the foreseeable future.

13

In sum, at the present time, this factor neither strongly favors one side nor the

14 other.

15 The Balance of Equities

16

Applying the Arcamuzi balancing test, Plaintiff has made a strong showing of the

17 likelihood of success on the merits and irreparable harm such that entry of a preliminary

18 injunction is warranted under the circumstances.

19

CONCLUSION

20

For the reasons set forth herein, the court Grants Plaintiff’s Motion for

21 Preliminary Injunction and

22

(1) Orders that Defendants’ May 7, 2016 revocation of Plaintiff’s DACA status

23 is vacated and Defendants are preliminary enjoined from enforcing the said revocation;

24

(2) Orders that Defendants’ termination of Plaintiff’s EAD is vacated and

25 Defendants are preliminarily enjoined from terminating Plaintiff’s employment

26 authorization;

27

(3) Orders that Defendants shall fully comply with the DACA SOP should

28 Defendants elect to reconsider Plaintiff’s DACA status; and

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1

(4) Orders that Defendants accept Plaintiff’s DACA renewal application.

2 Finally, this order is to remain in effect pending further Order of this court.

3

IT IS SO ORDERED.

4 DATED: September 29, 2017

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cc:
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All parties

Hon. Jeffrey T. Miller United States District Judge

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17CV1840

 
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1 ARNOLD & PORTER KAYE SCHOLER LLP
2 JOHN C. ULIN (SBN 165524) john.ulin@apks.com
3 JABA TSITSUASHVILI (SBN 309012)
4 jaba.tsitsuashvili@apks.com 777 South Figueroa Street, 44th Floor
5 Los Angeles, CA 90017-5844
6 T: (213) 243-4000 F: (213) 243-4199
7 Attorneys for Plaintiff
8 ALBERTO LUCIANO GONZALEZ TORRES

9

UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

11 ALBERTO LUCIANO GONZALEZ

12 TORRES,

Plaintiff,

13

vs.

14 U.S. DEPARTMENT OF

15

HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION

16

SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;

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U.S. CUSTOMS AND BORDER PROTECTION; Does 1-10, inclusive,

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Defendants.

19

Case No. 17 CV 1840 JM(NLS) PLAINTIFF’S NOTICE OF MOTION AND MOTION TO MODIFY ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION [Docket No. 12] Hearing: December 18, 2017 Time: 10:00 a.m. Courtroom: 5D Judge: Jeffrey T. Miller

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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO MODIFY ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

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1

TO DEFENDANTS AND THEIR COUNSEL OF RECORD:

2

PLEASE TAKE NOTICE that on December 18, 2017, at 10:00 a.m., or as

3 soon thereafter as the matter may be heard, in the courtroom of the Honorable

4 Jeffrey T. Miller, in the United States District Court for the Southern District of 5 California, located at 221 West Broadway, Courtroom 5D, San Diego, CA 92101, 6 Plaintiff Alberto Luciano Gonzalez Torres will and hereby does move to modify

7 the Court’s September 29, 2017 Order Granting Motion for Preliminary Injunction

8 [Docket No. 12].

9

The Court’s Order reinstated Mr. Gonzalez’s Deferred Action for Childhood

10 Arrivals (“DACA”) status and attendant employment authorization; enjoined

11 Defendants from enforcing their unlawful revocation of Mr. Gonzalez’s DACA

12 status and employment authorization; and required Defendants to accept Mr.

13 Gonzalez’s DACA and employment authorization renewal application. The Order

14 requires Defendants to fully comply with the DACA Standard Operating

15 Procedures (“SOP”) in adjudicating Mr. Gonzalez’s DACA status. Following the 16 Court’s Order, Mr. Gonzalez submitted a timely renewal application, which

17 remains pending before Defendant United States Citizenship and Immigration

18 Services. His current DACA status and employment authorization will expire on

19 December 22, 2017.

20

According to Defendants’ public guidance, DACA renewal applications may

21 remain pending for several months (120 to 150 days from the date of submission).

22 The only reason Mr. Gonzalez did not and could not apply for renewal well in

23 advance of his December 22 expiration date was by virtue of Defendants’ unlawful

24 revocation of his DACA status and employment authorization. Therefore, Mr.

25 Gonzalez respectfully requests that the Court modify its Order to ensure that Mr. 26 Gonzalez retains his DACA status and employment authorization as long as his

27 renewal application remains pending, including any time to respond to a Notice of 28 Intent to Deny his application, and/or during the course of any litigation stemming

1
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1 from Defendants’ denial of his application to ensure full compliance with the

2 DACA SOP and all other applicable laws and guidelines. This modification

3 should not affect any of the Court’s current orders, including the requirement that

4 “Defendants shall fully comply with the DACA SOP should Defendants elect to

5 reconsider Plaintiff’s DACA status.”

6

This motion is based on this Notice of Motion and Motion; the

7 accompanying Memorandum of Points and Authorities and Declaration of John C.

8 Ulin and exhibits thereto; the [Proposed] Order granting the motion; any oral

9 argument heard by the Court; such additional evidence as may be submitted to the

10 Court; and such other matters as the Court deems proper.

11

The parties’ counsel conferred regarding this motion on November 8, 2017.

12 13 Dated: November 13, 2017

Respectfully submitted,

14

/s/ John C. Ulin

15

John C. Ulin (SBN 165524)

john.ulin@apks.com

16

Jaba Tsitsuashvili (SBN 309012)

17

jaba.tsitsuashvili@apks.com

ARNOLD & PORTER KAYE SCHOLER LLP

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777 South Figueroa Street, 44th Floor

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Los Angeles, CA 90017-5844

T: (213) 243-4000

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F: (213) 243-4199

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Attorneys for Plaintiff

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ALBERTO LUCIANO GONZALEZ TORRES

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1

CERTIFICATE OF SERVICE

2

3

I hereby certify that on November 13, 2017, I electronically filed the

4 foregoing document with the Clerk of the Court using CM/ECF. I also certify that 5 the foregoing document should automatically be served on all counsel of record via 6 transmission of Notices of Electronic Filing generated by CM/ECF.

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/s/ John C. Ulin

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1 ARNOLD & PORTER KAYE SCHOLER LLP
2 JOHN C. ULIN (SBN 165524) john.ulin@apks.com
3 JABA TSITSUASHVILI (SBN 309012)
4 jaba.tsitsuashvili@apks.com 777 South Figueroa Street, 44th Floor
5 Los Angeles, CA 90017-5844
6 T: (213) 243-4000 F: (213) 243-4199
7 Attorneys for Plaintiff
8 ALBERTO LUCIANO GONZALEZ TORRES

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11 ALBERTO LUCIANO GONZALEZ

12 TORRES,

Plaintiff,

13

vs.

14 U.S. DEPARTMENT OF

15

HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION

16

SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;

17

U.S. CUSTOMS AND BORDER PROTECTION; Does 1-10, inclusive,

18

Defendants.

19

Case No. 17 CV 1840 JM(NLS) PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO MODIFY ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION [Docket No. 12] Hearing: December 18, 2017 Time: 10:00 a.m. Courtroom: 5D Judge: Jeffrey T. Miller

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO MODIFY ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

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1 I. INTRODUCTION

2

Plaintiff Alberto Luciano Gonzalez Torres (“Mr. Gonzalez”) seeks a

3 modification of the Court’s September 29, 2017 Order granting his motion for a

4 preliminary injunction. Mr. Gonzalez’s Deferred Action for Childhood Arrivals 5 (“DACA”) status and attendant employment authorization (collectively, “DACA 6 status”) are set to expire on December 22, 2017. Had Defendants not unlawfully

7 revoked Mr. Gonzalez’s DACA status, he would have applied for renewal well in

8 advance of his expiration date. But he was barred from applying for renewal until

9 this Court restored his DACA status, and Defendants’ adjudication of his renewal 10 application may stretch well beyond his expiration date. The Court should 11 therefore enjoin the expiration of Mr. Gonzalez’s DACA status and employment

12 authorization pending final resolution of his renewal application, including any

13 time to respond to a Notice of Intent to Deny his application, and/or the litigation

14 of any denial of his application to ensure full compliance with the DACA Standard

15 Operating Procedures (“SOP”) and all other applicable laws and guidelines. 16 II. BACKGROUND

17

On September 29, 2017, the Court granted Mr. Gonzalez’s motion for a

18 preliminary injunction, “enjoin[ing] the revocation of the legal status he obtained

19 through the [DACA] program in order to permit him to apply for an extension of

20 his DACA status.” Dkt. 12 at 1. The Court ordered Defendants to “accept 21 Plaintiff’s DACA renewal application” and “preliminarily enjoined [Defendants]

22 from terminating Plaintiff’s employment authorization” “pending further Order of

23 this Court.” Id. at 13-14. The Court further ordered that “Defendants shall fully

24 comply with the DACA SOP should Defendants elect to reconsider Plaintiff’s

25 DACA status.” Id. at 13.

26

In reaching its decision, the Court held that Mr. Gonzalez “has made a

27 strong showing that he is likely to prevail on his APA claim that Defendants acted 28 arbitrarily, capriciously, and abused their discretion” in revoking his DACA status

1
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1 without following the DACA SOP. Id. at 11-12. The Court “categorically

2 reject[ed]” Defendants’ position that they had not acted unlawfully. Id. at 10.

3

The Court also held that Defendants’ unlawful revocation of Mr. Gonzalez’s

4 DACA status caused him ongoing irreparable harm, in the form of a “constant

5 threat of apprehension” and the “deprivation of employment.” Id. at 12.

6

Mr. Gonzalez submitted a timely DACA renewal application on October 4.

7 It remains pending before Defendant USCIS. Mr. Gonzalez’s “myUSCIS Case

8 Status” webpage indicates that “[a]s of October 25, 2017, [USCIS] is actively

9 reviewing” his application. See Declaration of John C. Ulin (filed concurrently), 10 Ex. A (last visited Nov. 13, 2017). It does not indicate how soon Mr. Gonzalez 11 may expect action in his case. However, USCIS has long urged DACA recipients

12 to apply for renewal 150 to 120 days in advance of their expiration dates to ensure

13 that their DACA status did not lapse during adjudication. See Dkt. 2-11 at 16, Ulin

14 Dec., Ex. H, DACA FAQ, Q49 (“USCIS strongly encourages you to submit your

15 [DACA] renewal request between 150 days and 120 days before the expiration 16 date located on your current . . . DACA approval notice and Employment

17 Authorization Document (EAD).”); id. (“USCIS’ current goal is to process DACA

18 renewal requests within 120 days.”). 120 days from October 4, 2017 is February 1,

19 2018, nearly a month and a half after Mr. Gonzalez’s current DACA status (and

20 right to work) expires.

21

Were it not for Defendants’ unlawful revocation of Mr. Gonzalez’s DACA

22 status, he would have submitted his DACA renewal application well in advance of

23 his current expiration date. Indeed, when Mr. Gonzalez renewed his DACA status

24 in 2014, he did so with over three months to spare, resulting in a renewal that

25 started a month before his initial DACA status even expired. See Dkt. 2-19, 26 Gonzalez Dec. ¶ 4 (explaining that Mr. Gonzalez’s DACA status was renewed on

27 December 24, 2014, approximately a month before his initial status would have 28 expired on January 21, 2015).

2
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1 III. ARGUMENT

2

A. THE COURT HAS BROAD AUTHORITY TO MODIFY THE

TERMS OF ITS EQUITABLE RELIEF IN LIGHT OF THE

3

CIRCUMSTANCES OF THIS CASE

4

The Court should exercise its “wide discretion” to modify the precise terms

5 of its injunction. System Federation No. 91 v. Wright, 364 U.S. 642, 648 (1961);

6 see Taheny v. Wells Fargo Bank, N.A., 2011 WL 864678, at *1 (E.D. Cal. Mar. 10,

7 2011) (“Courts issuing injunctions have inherent power to modify them.”).

8 Modification of an injunction is appropriate as part of the Court’s “continuing

9 supervision [and] continuing willingness to apply its powers and processes on 10 behalf of the party who obtained that equitable relief.” System Federation, 364 11 U.S. at 647; accord State v. Trump, 871 F.3d 646, 654 (9th Cir. 2017) (“The

12 district court has the power to supervise compliance with an injunction and to

13 ‘modify a preliminary injunction in consideration of new facts.’”) (quoting A&M

14 Records Inc. v. Napster, Inc., 284 F.3d 1091, 1096 (9th Cir. 2002)). Modification

15 may also be necessary to “describe in reasonable detail . . . the act or acts 16 restrained or required.” Fed. R. Civ. P. 65(d)(1)(C).

17

The Court “should not hesitate to modify its injunction” as part of its “equity

18 jurisdiction” as required by the circumstances of a given case. U.S. v. Washington,

19 853 F.3d 946, 979 (9th Cir. 2017). As part of this continuing supervision,

20 modification is appropriate when necessary to “achieve the purposes” of an 21 injunction. U.S. v. United Shoe Machinery Corp., 391 U.S. 244, 249 (1968). The

22 prevailing party “can request modification in the future to add, upon competent

23 proof, specific other terms” to the injunction. Columbia Pictures Industries, Inc. v.

24 Fung, 710 F.3d 1020, 1048 (9th Cir. 2013).

25 26

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1

B. MR. GONZALEZ HAS DEMONSTRATED THE NECESSITY

AND PROPRIETY OF A MODIFICATION OF THE TERMS

2

OF THE COURT’S INJUNCTION

3

In accordance with these principles, Mr. Gonzalez is entitled to a

4 modification of the terms of the Court’s injunction. The Court should enter a

5 modified order extending his DACA status until either (1) USCIS approves or

6 denies his renewal application, including during the 33-day period provided by the

7 DACA SOP to respond to a Notice of Intent to Deny, and/or (2) until the resolution

8 of any litigation to ensure full compliance with the DACA SOP and all other

9 applicable laws and guidelines in the event that USCIS denies his renewal

10 application.

11

The Court has already determined that Defendants revoked Mr. Gonzalez’s

12 DACA status unlawfully. And Mr. Gonzalez’s past behavior indicates that he

13 otherwise would have submitted a timely renewal application and prevented the

14 lapse of his DACA status upon its December 22, 2017 expiration—had he not been

15 denied the right to apply for renewal prior to this Court’s September 29 Order.

16 Therefore, to achieve the purposes of the Court’s injunction—i.e., to remedy the

17 irreparable harm suffered by Mr. Gonzalez as a result of Defendants’ unlawful

18 revocation and to provide him a fair adjudication of his renewal application—the

19 Court should modify its injunction.

20

Defendants’ adjudication of Mr. Gonzalez’s renewal application may, by the

21 terms of USCIS’s own public guidance, stretch into February 2018 or beyond.

22 This would unjustly strip Mr. Gonzalez of his DACA status and employment

23 authorization, leaving him in fear of apprehension and unable to work and provide

24 for himself. Such an outcome would defeat the purpose of the Court’s injunction,

25 which is to undo the effects of Defendants’ unlawful revocation of his DACA

26 status. As the Court has already held:

27

Plaintiff will suffer significant irreparable harm in the

absence of an injunction by losing his DACA status . . . .

28

The potential harm caused by Defendants’ conduct

4
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includes the loss of employment, a core benefit under

1

DACA. The deprivation of employment impacts

Plaintiff’s ability to financially provide for himself and

2

his family. The loss of DACA status also undermines

one’s sense of well-being and subjects Plaintiff to a

3

constant threat of apprehension and possible removal

from the only country he has called home. This

4

threatened harm far exceeds any harm suffered by the

government.

5

6 Dkt. 12 at 12. In short, allowing Mr. Gonzalez’s lawful presence and employment

7 authorization to lapse merely because he was barred from applying for renewal

8 early—i.e., as a direct result of Defendants’ unlawful revocation of his DACA

9 status—would cause him the same irreparable harm as the revocation in the first 10 instance and would defeat the purpose of the Court’s injunction. 11 IV. CONCLUSION

12

Mr. Gonzalez respectfully requests that the Court modify its September 29,

13 2017 Order to make clear that Mr. Gonzalez’s DACA status will remain in effect

14 pending final resolution of his renewal application, including the 33-day period

15 provided by the DACA SOP to respond to a Notice of Intent to Deny his 16 application, and/or the litigation of a denial of his application to ensure

17 Defendants’ full compliance with the DACA SOP and all other applicable laws

18 and guidelines. See Coyotl v. Duke, No. 1:17-CV-1670-MHC, Dkt. 54, Order

19 (Oct. 26, 2017) (Declaration of John C. Ulin (filed concurrently), Ex. B) (upon

20 defendants’ denial of plaintiff’s DACA renewal application and motion to dissolve 21 preliminary injunction, court ordering that “Plaintiff’s DACA and employment

22 authorization shall remain in effect . . . until further Order from this Court, which

23 will issue only after Defendants have submitted sufficient proof that they have

24 followed all relevant standard operating procedures regarding the adjudication of

25 Plaintiff’s renewal application and any termination of Plaintiff’s DACA status.”). 26

27 28

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1 Dated: November 13, 2017 Respectfully submitted,

2

/s/ John C. Ulin

3

John C. Ulin (SBN 165524)

john.ulin@apks.com

4

Jaba Tsitsuashvili (SBN 309012)

5

jaba.tsitsuashvili@apks.com

ARNOLD & PORTER KAYE SCHOLER LLP

6

777 South Figueroa Street, 44th Floor

7

Los Angeles, CA 90017-5844

T: (213) 243-4000

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F: (213) 243-4199

9 Attorneys for Plaintiff

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ALBERTO LUCIANO GONZALEZ TORRES

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1

CERTIFICATE OF SERVICE

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3

I hereby certify that on November 13, 2017, I electronically filed the

4 foregoing document with the Clerk of the Court using CM/ECF. I also certify that 5 the foregoing document should automatically be served on all counsel of record via 6 transmission of Notices of Electronic Filing generated by CM/ECF.

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/s/ John C. Ulin

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 Case 3:17-cv-01840-JM-NLS Document 18 Filed 12/04/17 PageID.646 Page 1 of 7

CHAD A. READLER 1 Principal Deputy 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
Attorneys for Defendants

8

9

UNITED STATES DISTRICT COURT

11

SOUTHERN DISTRICT OF CALIFORNIA

12

13

ALBERTO LUCIANO

) Case No. 3:17-CV-01840-JM-(NLS)

14 GONZALEZ TORRES,

)

15

)

Plaintiff,

) DEFENDANTS’ MEMORANDUM

16

) OF POINTS AND AUTHORITIES

17

v.

) IN OPPOSITION TO PLAINTIFF’S

18

U.S. DEPARTMENT OF

) MOTION TO MODIFY ORDER ) GRANTING MOTION FOR

19 HOMELAND SECURITY, et al., ) PRELIMINARY INJUNCTION

20

) [DKT. NO. 13]

Defendants.

)

21

) Hearing: December 18, 2017

22

) Time: 10:00 a.m.

) Courtroom: 5D

23

) Judge: Jeffrey T. Miller

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26

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3:17-CV-01840-JM-(NLS)

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1

The Court should deny Plaintiff’s motion to modify the Court’s September 29,

2 2017 Order because Defendants have already substantially complied with the terms of

3 that Order by providing him additional process, subsequent administrative action in the

4 form of termination or denial of Plaintiff’s DACA renewal request would require the

5 amendment of Plaintiff’s complaint which would supersede the claims on which the

6 Court’s Order was based, and regardless, Plaintiff has never stated a claim regarding his

7 now pending DACA renewal request or the procedures regarding the adjudication of that

8 request.

9

Here, as a result of the Court’s Order at Dkt. No. 12, USCIS has reinstated

11 Plaintiff’s DACA, accepted his DACA renewal request, and issued Plaintiff a Notice of

12 Intent to Terminate (NOIT) his reinstated DACA. Dkt. Nos. 14-1, 14-2, & 14-3.1 At

13 present, there is no final agency action to review. Plaintiff’s response to the NOIT is due

14 on or before December 16, 2017. Dkt. No. 14-3. At the time of this filing, Plaintiff has

15 not yet responded to the NOIT. Assuming that Plaintiff timely responds to the NOIT and

16 his response does not overcome the intended grounds for termination, USCIS anticipates

17 completing the adjudication of its intended termination of Plaintiff’s reinstated DACA

18 and adjudication of his pending DACA renewal request on or before December 22, 2017.

19 Moreover, Plaintiff’s now reinstated DACA would expire on its own on December 22,

20 2017, even if Defendants took no further action with regard to the NOIT.

21
1 Although Defendants have issued Plaintiff a NOIT in this matter, it is important to note 22 that the Court’s Order incorrectly cites the USCIS DACA SOP as requiring that “the
23 DACA recipient must be provided with DACA Form 603, and an opportunity respond,” in cases where “USCIS determines, after consulting with ICE, that exercising
24 prosecutorial discretion is not consistent with DHS’s enforcement policies.” Dkt. No. 12
25 at 6; but see Dkt. No. 2-9 at 14 (where “ICE does not plan to issue an NTA, the officer
26 should refer the case to HQSCOPS, through the normal chain of command, to determine whether or not a NOIT is appropriate.”) (emphasis added). The DACA 603 template
27 referenced by the Court is a termination notice template, not a notice of intent to
28 terminate template. Accordingly, the DACA 603 template does not provide an opportunity to respond.

3:17-CV-01840-JM-(NLS)
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1

Defendants do not dispute the authority of courts to modify injunctions based on

2 changes in fact or law “as required by the circumstances of a given case,” U.S. v.

3 Washington, 853 F.3d 946, 979 (9th Cir. 2017), or the ability of parties to “request

4 modification in the future to add, upon competent proof, specific other terms” to the

5 injunction. Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020, 1048 (9th Cir.

6 2013). The party seeking modification or dissolution of an injunction bears the burden of

7 establishing that a significant change in facts or law warrants revision or dissolution of

8 the injunction. Sharp v. Weston, 233 F.3d 1166, 1170 (9th Cir. 2000).

9

However, Plaintiff mischaracterizes his claim as a motion to modify this Court’s

11 Order.2 Modification is not an appropriate frame with which to view the changed facts of

12 this case. Indeed, a court “cannot grant a preliminary injunction on the basis of claims not

13 asserted.” Garduno's of Ariz., LLC v. Tortilla, Inc., No. 08-CV-1090-DGC(PHx), 2009

14 U.S. Dist. LEXIS 88025, at *3 (D. Ariz. Sept. 8, 2009); see also Stewart v. U.S. I.N.S.,

15 762 F.2d 193, 199 (2d Cir. 1985) (explaining that a party cannot obtain a preliminary

16 injunction for claims not asserted in its pleadings).

17

Additionally, claims for injunctive relief become moot once subsequent events

18 have made clear the conduct alleged as the basis for the requested relief “could not

19 reasonably be expected to recur,” Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 864

20 (9th Cir. 2017), and also where “interim relief or events have completely and irrevocably

21 eradicated the effects of the alleged violation.” Lindquist v. Idaho State Bd. of

22 Corrections, 776 F.2d 851, 854 (9th Cir. 1985) (quoting Los Angeles County v. Davis,

23 440 U.S. 625, 631 (1979)).

24

25
26 2 Unlike the authorities on which Plaintiff relies, nothing in this Court’s Order is vague in its implementation such that clarification via modification is warranted. Indeed, this case
27 is nothing like Records Inc. v. Napster, Inc., 284 F.3d 1091, 1096 (9th Cir. 2002), where
28 the Ninth Circuit approved of district court modification of an injunction where the initial terms of that injunction proved ineffective for the purpose of that injunction.

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1

Even the amendment of a Plaintiff’s complaint in such circumstances would not

2 preserve an existing preliminary injunction because where an “amended complaint

3 supersedes the original complaint,” “the asserted basis for the preliminary injunction is no

4 longer before this court.”). Clay v. Wells Fargo Home Mortg., N.A., No. 2:13-CV-00338-

5 KJM, 2013 WL 1189712, at *2 (E.D. Cal. Mar. 21, 2013). In fact, where an amended

6 complaint supersedes a previous complaint, courts have treated as moot pending motions

7 for injunctive relief and instead permitted parties to refile and address how amendment

8 has impacted the relief requested. See, e.g. La Jolla Cove Inv'rs, Inc. v. GoConnect Ltd.,

9 No. 11CV1907 JLS JMA, 2012 WL 1580995, at *1 (S.D. Cal. May 4, 2012).

11

Plaintiff now asks the Court to modify its Order to “enjoin the expiration of Mr.

12 Gonzalez’s DACA status and employment authorization pending final resolution of his

13 renewal application, including any time to respond to a Notice of Intent to Deny his

14 application, and/or the litigation of any denial of his application to ensure full compliance

15 with the DACA Standard Operating Procedures (“SOP”) and all other applicable laws

16 and guidelines.” Dkt. No. 13-1 at 1. However, Plaintiff necessarily did not challenge a

17 then nonexistent administrative action in his complaint, nor does Plaintiff challenge

18 Defendants’ procedures regarding DACA renewal requests.

19

Rather, the relief Plaintiff seeks in his complaint revolves around U.S. Customs

20 and Border Protection’s May 7, 2016, issuance of a Notice to Appear to Plaintiff and

21 automatic termination of his DACA. Dkt. No. 1 at ¶¶ 84-85. Plaintiff seeks declarations

22 regarding the legality of that DACA termination under the APA and constitution, and

23 injunctive relief “set[ting] aside and enjoin[ing] Defendants’ decision to terminate Mr.

24 Gonzalez’s DACA status and EAD;” and “restoring Mr. Gonzalez’s DACA status and

25 attending benefits . . . pending a reconsideration of its termination decision, in which

26 Defendants provide him notice of their intent to terminate, a reasoned basis for that

27 intent, and an opportunity to respond with argument and evidence.” Dkt. No. 1 at 26.

28

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1

With the reinstatement of Plaintiff’s DACA and employment authorization, the

2 prior DACA termination he challenged is no longer final. Moreover, in issuing a NOIT,

3 Defendants have already provided Plaintiff the notice, basis, and opportunity to respond

4 that he seeks. Notably, the harm Plaintiff cited in support of his preliminary injunction

5 motion – his inability to seek renewal of his DACA were it not reinstated – is not tied to

6 the relief sought in the original complaint, nor could it be. In this way, Plaintiff overstates

7 the purpose of the Court’s injunction when he states that it was to “remedy the irreparable

8 harm suffered by Mr. Gonzalez as a result of Defendants’ unlawful revocation and to

9 provide him a fair adjudication of his renewal application. . . .” Dkt. No. 13-1 at 4.

11 Rather, other than its harm determination, the only thing the Court’s order says about

12 Plaintiff’s renewal application is that Defendants must accept it, which Defendants have

13 done. Dkt. No. 12 at 14; Dkt. No. 14-2.

14

Accordingly, Plaintiff has not asserted a viable basis for this Court to modify its

15 September 29, 2017 Order. First, the additional injunctive relief that Plaintiff now seeks –

16 continuation of his reinstated DACA based on allegations regarding the timing and

17 process of Defendants’ adjudication of his DACA renewal – arise from claims regarding

18 Plaintiff’s DACA renewal request that have never been pled. Second, the relief Plaintiff

19 does seek in his complaint regarding Defendants’ termination of his DACA has already

20 been rendered moot by USCIS’s subsequent actions of reinstating and issuing a NOIT,

21 and will become all the more moot by December 22, 2017, with USCIS’s decision

22 regarding its NOIT or the expiration of Plaintiff’s reinstated DACA in the ordinary 23 course of business.3 The mooting of those claims also moots the underlying preliminary

24 3 The district court in Colotl v. Duke, No. 1:17-CV-1670-MHC (N.D. Ga.), did extend its
25 initial preliminary injunction pending briefing on a second motion for preliminary
26 injunction and defendants’ motion to dismiss the amended complaint. However, that decision is legal error and wholly inconsistent with that court’s contemporaneous finding
27 that: 1) the filing of plaintiff’s amended complaint mooted the prior complaint, and 2)
28 defendants’ motion to dismiss that complaint as moot following adjudication of Plaintiff’s DACA renewal was consistent with that court’s preliminary injunction.

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1 injunction, and the need for Plaintiff to amend his complaint to raise new challenges to

2 the possible termination of his reinstated DACA and denial of his DACA renewal

3 request, would demand that Plaintiff seek new injunctive relief.

4

Additionally, even if the Court finds that Plaintiff’s complaint sufficiently states

5 claims related to Defendants’ adjudication of his DACA renewal request or that

6 Plaintiff’s initial claims are not moot or likely to become moot, the Court should still

7 deny Plaintiff’s modification request because Plaintiff has not demonstrated sufficient

8 harm. Plaintiff argues that allowing his “lawful presence and employment authorization

9 to lapse merely because he was barred from applying for renewal early . . . would cause

11 him the same irreparable harm as the revocation in the first instance and would defeat the

12 purpose of the Court’s injunction.” Dkt. No. 13-1 at 5. However, while Plaintiff asserted

13 in his motion in support of a preliminary injunction that he was working for Gate

14 Gourmet, Dkt. No. 2-1 at 7, he has offered no evidence in support of this motion that he

15 is working anywhere such that a lapse in employment authorization pending a final

16 adjudication of his DACA renewal request or subsequent litigation regarding that request

17 would cause him harm. Further, an order continuing Plaintiff’s receipt of DACA and

18 employment authorization pending adjudication and possible litigation regarding his

19 DACA renewal request would be in direct opposition to preserving the status quo ante,

20 because similarly situated DACA requestors are not afforded an extension of their DACA

21 pending adjudication of their renewal requests. See archived USCIS DACA FAQs 49 and

22 50 at https://www.uscis.gov/archive/frequently-asked-questions#education (stating that

23 renewal requests should be submitted between 150 and 120 days prior to expiration of the

24 individual’s DACA to minimize the possibility DACA will expire before a decision is

25 reached on his or her renewal request). Moreover, while the Court initially found that the

26 balance of factors weighed in Plaintiff’s favor, it is incumbent on the Court to reweigh

27 those factors in light of the additional process Plaintiff has received and cited compliance

28 to the Court’s interpretation of Defendants’ guidance and SOPs. Here, while Plaintiff

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1 may ultimately not be satisfied with the result, the additional process Plaintiff has

2 received markedly diminishes Plaintiff’s ability to suggest he will likely succeed on the

3 merits – and which the Court should find warrants the denial of Plaintiff’s modification

4 motion.

5

Finally, Plaintiff has provided no authority to support his conclusion that he would

6 be entitled to notice and an opportunity to respond to Defendants’ potential denial of his

7 DACA renewal request. Accordingly, to the extent the Court extends its preliminary

8 injunction in the manner sought by Plaintiff, imputing such procedural requirement on

9 Defendants is unfounded and unwarranted.

11

For the above stated reasons, the Court should deny Plaintiff’s modification

12 motion.

13
Dated: December 4, 2017
14
15
16

Respectfully submitted,
CHAD A. READLER Principal Deputy Assistant Attorney General

17

WILLIAM C. PEACHEY

18

Director District Court Section

19

Office of Immigration Litigation

20

/s/ Jeffrey S. Robins

21

JEFFREY S. ROBINS

22

Assistant Director

U.S. Department of Justice

23

P.O. Box 868, Ben Franklin Station

24

Washington, D.C. 20044

25

(202) 616-1246

jeffrey.robins@usdoj.gov

26

27

Attorneys for Defendants

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1 ARNOLD & PORTER KAYE SCHOLER LLP
2 JOHN C. ULIN (SBN 165524) john.ulin@apks.com
3 JABA TSITSUASHVILI (SBN 309012)
4 jaba.tsitsuashvili@apks.com 777 South Figueroa Street, 44th Floor
5 Los Angeles, CA 90017-5844
6 T: (213) 243-4000 F: (213) 243-4199
7 Attorneys for Plaintiff
8 ALBERTO LUCIANO GONZALEZ TORRES

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11 ALBERTO LUCIANO GONZALEZ

12 TORRES,

Plaintiff,

13

vs.

14 U.S. DEPARTMENT OF

15

HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION

16

SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;

17

U.S. CUSTOMS AND BORDER PROTECTION; Does 1-10, inclusive,

18

Defendants.

19

Case No. 17 CV 1840 JM(NLS) PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO MODIFY ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION [Docket No. 13] Hearing: December 18, 2017 Time: 10:00 a.m. Courtroom: 5D Judge: Jeffrey T. Miller

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1

In its Preliminary Injunction Order of September 29, 2017, this Court held

2 that Plaintiff Alberto Luciano Gonzalez Torres (“Mr. Gonzalez”) “made a strong

3 showing that he is likely to prevail on his APA claim that Defendants acted

4 arbitrarily, capriciously, and abused their discretion by failing to follow the DACA 5 SOP” when they terminated his DACA status in May 2016. Dkt. 12 at 12. The 6 Court further concluded that “Plaintiff [would] suffer significant irreparable harm

7 in the absence of an injunction by losing his DACA status and the ability to apply

8 for renewal of that status.” Id. The opinion goes on to explain that Mr. Gonzalez

9 would lose his right to employment, the ability to provide financially for himself 10 and his family, and his sense of well-being, and would be subject “to a constant 11 threat of apprehension and possible removal from the only country he has called

12 home.” Id. For all these reasons, the Court fashioned a remedial order that was

13 intended to redress Defendants’ violations of the APA and to protect Mr. Gonzalez

14 from the harms inflicted as a result of their arbitrary and capricious actions. It

15 vacated the termination of his DACA status, ordered Defendants to comply with 16 the DACA SOP if they elected to reconsider his DACA status, and required

17 Defendants to accept (and presumably consider) his DACA renewal application.

18

In the weeks following the entry of the Preliminary Injunction, it became

19 apparent that the Court’s Order would need to be modified to achieve its goals.

20 Because Defendants had unlawfully terminated his DACA status, Mr. Gonzalez 21 was unable to submit a renewal application until this Court vacated the termination

22 and reinstated his status. As a result, he applied for renewal so close to the end

23 date of his current DACA term that he was likely to see his reinstated status expire

24 weeks or months before USCIS issued a decision on his renewal application.

25 During that time, Mr. Gonzalez would be left without DACA protection and 26 subject to the very harms identified by the Court, all as a direct result of

27 Defendants’ unlawful termination of his DACA status. Accordingly, Mr. Gonzalez 28 brought this motion to modify the Preliminary Injunction, in order to assure that it

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1 would protect him adequately from the irreparable harms it was intended to

2 prevent.

3

Defendants’ opposition to the Motion to Modify only reinforces the need for

4 the requested modification. Defendants explain that on November 13, 2017, 5 roughly six weeks after the Court entered its Preliminary Injunction, they issued 6 Mr. Gonzalez a Notice of Intent to Terminate (“NOIT”) his current DACA status.

7 They further note that Defendant “USCIS anticipates completing the adjudication

8 of its intended termination of Plaintiff’s reinstated DACA and adjudication of his

9 pending DACA renewal request on or before December 22, 2017.” Dkt. 18 at 2 10 (emphasis added). In other words, during the week before Christmas, Defendants 11 intend to (1) terminate Mr. Gonzalez’s DACA status and (2) either deny his DACA

12 renewal application for the same improper reasons, or (as seems more likely

13 because USCIS has not yet issued Mr. Gonzalez a Notice of Intent to Deny the

14 renewal application) declare the application moot because his preexisting DACA

15 status will have been terminated, leaving nothing to renew. It bears emphasis that 16 Defendants have undertaken this entire process so that they can terminate Mr.

17 Gonzalez’s DACA status less than a week before it is already set to expire on

18 December 22.

19

Defendants’ efforts to terminate Mr. Gonzalez’s DACA status and

20 summarily reject his renewal application are arbitrary and capricious, violate the 21 DACA SOP, and are plainly intended to deny him the protections of the

22 Preliminary Injunction. The sole ground for termination in the NOIT is CBP’s

23 issuance of an NTA against him based on unlawful presence in the United States

24 and ICE’s decision to pursue the removal proceedings. But unlawful presence is

25 an irrelevant factor in determining eligibility for DACA status. All DACA 26 applicants are, by definition, unlawfully present. Accordingly, the NOIT is

27 arbitrary and capricious and provides no reasoned basis to which Mr. Gonzalez can 28 respond, and termination on the asserted grounds represents a failure to engage in

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1 the mandatory exercise of discretion that the SOP requires before USCIS can make

2 a determination with respect to DACA status.

3

Mr. Gonzalez is not asking the Court to resolve the merits of these serious

4 APA and constitutional issues on this motion. He notes only that Defendants’ 5 issuance of the NOIT and their subsequent statements in opposition to this motion 6 represent changed circumstances that threaten to deprive him of the intended

7 protections of the Preliminary Injunction. Mr. Gonzalez therefore asks that the

8 Court modify its injunction, as other courts in similar circumstances have done, to

9 enjoin the termination or expiration of his DACA status and denial of his renewal 10 application pending judicial determination (through and including final appellate 11 review) of whether Defendants are complying with the Preliminary Injunction and

12 the law.

13 I. LEGAL STANDARD

14

“Crafting a preliminary injunction is an exercise of discretion and judgment,

15 often dependent as much on the equities of a given case as the substance of the 16 legal issues it presents.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct.

17 2080, 2087 (2017). “The essence of equity jurisdiction has been the power of the

18 [judge] to mould each decree to the necessities of the particular case. Flexibility

19 rather than rigidity has distinguished it.” Weinberger v. Romero-Barcelo, 456 U.S.

20 305, 312 (1982) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); see 21 Northwest Environmental Defense Ctr. v. Gordon, 849 F.2d 1241, 1244-45 (9th

22 Cir. 1988) (“courts of equity have broad discretion in shaping remedies”).

23 Accordingly, a court “may modify the scope of its injunction under its continuing

24 duty to supervise the relief granted if it is informed of new facts that require

25 additional supervisory action.” State v. Trump, -- F. Supp. 3d --, 2017 WL 26 2989048, at *4 (D. Haw. July 13, 2017) (quoting Nat’l Grange of the Order of

27 Patrons of Husbandry v. Cal. State Grange, 182 F. Supp. 3d 1065, 1074 (E.D. Cal. 28 2016)). As circumstances develop subsequent to the entry of a preliminary

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1 injunction, the Court “has a continuing duty to maintain a status quo.” Hoffman

2 for & on Behalf of NLRB v. Beer Drivers & Salesmen’s Local Union No. 888, 536

3 F.2d 1268, 1276 (9th Cir. 1976). These directives flow from the Court’s power to

4 modify its orders when necessary to “achieve the purposes” of an injunction. U.S. 5 v. United Shoe Machinery Corp., 391 U.S. 244, 249 (1968). 6 II. ARGUMENT

7

In their opposition to this motion, Defendants contend that any challenge to

8 their effort to terminate Mr. Gonzalez’s DACA status pursuant to the November

9 13, 2017 NOIT or their subsequent denial (or dismissal) of his DACA renewal 10 application is beyond the scope of the complaint in this case and therefore not 11 subject to the Preliminary Injunction. But Mr. Gonzalez’s Complaint is plainly

12 directed at preventing any termination effort that does not comply with the DACA

13 SOP and assuring a fair consideration of his renewal application. Defendants’

14 strained effort to recharacterize his claims must therefore be rejected out of hand,

15 and the Preliminary Injunction should be modified to assure that Mr. Gonzalez is 16 protected from the harms the Court has found are likely to result from any

17 unlawful efforts to deprive him of DACA status.

18

In similar circumstances, the Ninth Circuit recently affirmed a district

19 court’s modification of the district court’s preliminary injunction in response to

20 “the Government’s restricted reading of” the terms of that injunction (as modified 21 by the Supreme Court). State v. Trump, 871 F.3d 646, 658 (9th Cir. 2017). In that

22 case, the Supreme Court held that the Government could not apply its immigration

23 restrictions to people with a “close familial relationship” to a U.S. citizen and that

24 a mother-in-law “clearly has such a relationship.” Id. at 655. In implementing this

25 directive, the Government excluded a variety of familial relationships without a 26 “persuasive explanation” of why they were not at least as close as that of mother-

27 in-law. Id. Because the “Government unreasonably interpret[ed]” the Supreme 28 Court’s modification, id. at 655, the Ninth Circuit held that the district court “did

4
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1 not err” in changing the precise terms of its injunction to cover several additional

2 relationships, id. at 658.

3

Here, Defendants are “unreasonably interpreting” this Court’s Preliminary

4 Injunction by (1) mischaracterizing Mr. Gonzalez’s complaint, (2) ignoring the

5 DACA SOP, and (3) doing what this Court already made clear is unlawful and

6 “indefensible”—terminating Mr. Gonzalez’s DACA status and denying his

7 renewal application without exercising reasoned discretion, on the sole ground that

8 he received a Notice to Appear in Immigration Court for unlawful presence in the

9 United States, see Dkt. 12 at 9-11.

10

In his Complaint, Mr. Gonzalez seeks “restor[ation of his] DACA status and

11 attendant benefits, including employment authorization, pending a reconsideration

12 of its termination decision, in which Defendants provide him notice of their intent

13 to terminate, a reasoned basis for that intent, and an opportunity to respond with 14 argument and evidence.” Dkt. 1 at 27 (emphasis added).1 While citing this very

15 request, Defendants’ opposition asserts that Mr. Gonzalez’s claims are now moot

16 because USCIS issued him an NOIT (the purported “notice, basis, and opportunity

17 to respond that he seeks”), and because the “basis for the requested relief could not

18 be reasonably expected to recur.” Dkt. 18 at 3-5.

19

But the problem underlying Mr. Gonzalez’s claims is already recurring.

20 Defendants are again attempting to terminate his DACA status and to prevent him

21 from seeking renewal without providing him any reasoned basis for their decision.

22 Defendants are thus violating the DACA SOP, including its requirement that they

23 exercise reasoned discretion in making DACA status determinations. And Mr.

24 Gonzalez is subject to the same irreparable harm identified by the Court, resulting

25 from the same essential conduct that the Court enjoined as arbitrary and capricious.

26

27 1 Mr. Gonzalez’s preliminary injunction motion similarly requested “a proper
28 procedure that accords with DHS and USCIS policies and due process” and sought “the reasons for” any purported termination. Dkt. 2-1 at 8, 31.
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1 The Court would therefore be well within its discretion, and fully justified, in

2 modifying its injunction to protect Mr. Gonzalez from the harms resulting from

3 Defendants’ APA violations and to assure that Defendants do not violate the APA

4 a second time. There is no need for an amended complaint.

5

While Mr. Gonzalez is not seeking adjudication of his APA challenges to

6 Defendants’ renewed effort to deprive him of DACA status on this motion, he has

7 serious concerns that the “process” is already irretrievably tainted. By seeking to

8 terminate his DACA status and deny his renewal application merely because a

9 CBP officer issued Mr. Gonzalez an NTA for unlawful presence and ICE chose to 10 litigate that charge in Immigration Court, Defendants are flouting (1) this Court’s 11 determination that such grounds for termination are “indefensible,” Dkt. 12 at 11,

12 and (2) the DACA SOP’s requirement that where the “DACA requestor has been

13 placed in proceedings on a ground that does not adversely impact the exercise of

14 prosecutorial discretion”—i.e., unlawful presence under 8 U.S.C. §

15 1182(a)(6)(A)(i)—USCIS must “review all derogatory information in its totality 16 and then make an informed assessment regarding the appropriate exercise of

17 prosecutorial discretion,” Dkt. 20-3 at 11 (emphasis added). Unlawful presence is

18 not a relevant factor in the determination of DACA status.

19

Moreover, to the extent that the NOIT purports to terminate Mr. Gonzalez’s

20 DACA status and deny his renewal application because he is suddenly an 21 “enforcement priority,” Defendants have offered no reason for this change in

22 position, which directly contradicts their behavior in previously granting him

23 DACA status twice while he was unlawfully present, and for the last 18 months,

24 during which time they have not investigated him for any unlawful activity and

25 have allowed him to live freely in San Diego. See Dkt. 20 at 10. Indeed, the 26 removal proceedings against Mr. Gonzalez were terminated on November 16,

27 2017. In other words, with respect to Mr. Gonzalez’s current DACA status and his 28 renewal application, Defendants are doing exactly what Mr. Gonzalez’s Complaint

6
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1 and the Court’s Preliminary Injunction seek to prohibit: reconsidering his DACA

2 status without a reasoned basis. See Inland Empire—Immigrant Youth Collective

3 v. Duke, -- F. Supp. 3d --, 2017 WL 5900061, at *6 (C.D. Cal. Nov. 20, 2017)

4 (“the issuance of an NTA charging presence without admission does not provide a

5 reasoned basis for terminating DACA”).

6

Defendants’ claim that their blatantly unlawful actions constitute

7 “substantial[] compli[ance]” with the Court’s Order is both wrong and beside the

8 point. For the reasons outlined above, Defendants have not substantially complied

9 with the Court’s Order or the DACA SOP, but the Court does not need to resolve 10 that substantive question now. Instead, the Court can and should modify its 11 Preliminary Injunction to enjoin the termination or expiration of Mr. Gonzalez’s

12 DACA status pending the final resolution of any judicial challenges to Defendants’

13 efforts to terminate his current DACA status and/or to deny or dismiss his renewal

14 application. Without prejudging any of those issues, the Court would thus preserve

15 the status quo and achieve the purposes of its injunction—i.e., a process in which 16 “true discretion can be exercised in the manner in which that discretion is outlined

17 in the DACA SOP.” Dkt. 20-2 at 34. It would also protect Mr. Gonzalez from the

18 very harms the Court identified as flowing from Defendants’ adjudicated APA

19 violations, which the Preliminary Injunction was intended to prevent.

20 III. CONCLUSION

21

Defendants’ opposition effectively asks the Court to dissolve its Preliminary

22 Injunction on the basis of an illusory promise that “Defendants have already

23 provided Plaintiff the notice, basis, and opportunity to respond that he seeks.” Dkt.

24 18 at 5. In reality, they are asking the Court to countenance their repetition of

25 unlawful action in the form of a sham “procedure.” See Cnty. of Santa Clara v. 26 Trump, -- F. Supp. 3d --, 2017 WL 3086064, at *8-9 (N.D. Cal. July 20, 2017)

27 (denying the Government’s motion for reconsideration of a preliminary injunction 28 where the only basis offered was an “illusory promise” to exercise its power

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1 appropriately). The Court should reject this ruse and should effectuate the

2 purposes of its Preliminary Injunction by modifying its order to enjoin any lapse of

3 Mr. Gonzalez’s DACA status pending a judicial determination (through and

4 including final appeal) of whether Defendants are complying with the DACA SOP, 5 the APA, and due process. 6

7 Dated: December 7, 2017

Respectfully submitted,

8

/s/ John C. Ulin

9

John C. Ulin (SBN 165524)

10

john.ulin@apks.com

Jaba Tsitsuashvili (SBN 309012)

11

jaba.tsitsuashvili@apks.com

12

ARNOLD & PORTER KAYE SCHOLER LLP

777 South Figueroa Street, 44th Floor

13

Los Angeles, CA 90017-5844

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T: (213) 243-4000

F: (213) 243-4199

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Attorneys for Plaintiff

ALBERTO LUCIANO GONZALEZ TORRES

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1

CERTIFICATE OF SERVICE

2

3

I hereby certify that on December 7, 2017, I electronically filed the

4 foregoing document with the Clerk of the Court using CM/ECF. I also certify that 5 the foregoing document should automatically be served on all counsel of record via 6 transmission of Notices of Electronic Filing generated by CM/ECF.

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/s/ John C. Ulin

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1 ARNOLD & PORTER KAYE SCHOLER LLP
2 JOHN C. ULIN (SBN 165524) john.ulin@apks.com
3 JABA TSITSUASHVILI (SBN 309012)
4 jaba.tsitsuashvili@apks.com 777 South Figueroa Street, 44th Floor
5 Los Angeles, CA 90017-5844
6 T: (213) 243-4000 F: (213) 243-4199
7 Attorneys for Plaintiff
8 ALBERTO LUCIANO GONZALEZ TORRES

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11 ALBERTO LUCIANO GONZALEZ

12 TORRES,

Plaintiff,

13

vs.

14 U.S. DEPARTMENT OF

15

HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION

16

SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;

17

U.S. CUSTOMS AND BORDER PROTECTION; Does 1-10, inclusive,

18

Defendants.

19

20

Case No. 17 CV 1840 JM(NLS) PLAINTIFF’S EX PARTE APPLICATION FOR LEAVE TO FILE LETTER ALERTING THE COURT OF NEWS THAT IS PERTINENT TO CONCERNS EXPRESSED BY THE COURT AT THE HEARING ON PLAINTIFF’S MOTION TO MODIFY PRELIMINARY INJUNCTION [Docket No. 13] Hearing: December 12, 2017 Time: 1:30 p.m. Courtroom: 5D Judge: Jeffrey T. Miller

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PLAINTIFF’S EX PARTE APPLICATION FOR LEAVE TO FILE LETTER

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1

Plaintiff Alberto Luciano Gonzalez Torres (“Mr. Gonzalez”) respectfully

2 seeks leave of the Court to file a letter alerting the Court of news that is pertinent to

3 concerns the Court expressed at the December 12, 2017 hearing on Plaintiff’s

4 Motion to Modify the Court’s September 29, 2017 Preliminary Injunction Order.

5 This application is supported by the Declaration of John C. Ulin, the proposed

6 letter, and the news articles referenced therein and attached thereto.

7

At the hearing, the Court expressed concerns about the potential adverse

8 consequences, including immigration detention and removal from the country, that

9 Mr. Gonzalez might face if his DACA status is allowed to lapse pending the

10 Court’s opportunity to review whether Defendants’ current rushed termination

11 process complies with the Court’s Order, the DACA SOP, and the Administrative

12 Procedure Act. Defendants could provide no assurance that Mr. Gonzalez would

13 not be subject to such adverse action. And the day after the hearing, a news report

14 explained that just this week ICE has placed a Pennsylvania DACA recipient in

15 immigration detention after his DACA status lapsed due to Postal Service errors

16 with his renewal application, even though he was awaiting a letter from USCIS

17 inviting him to re-submit his renewal application. See Dara Lind, Exclusive: The

18 Postal Service Kept Him From Renewing His DACA. Now He’s In Immigration

19 Detention, Vox.com (Dec. 13, 2017), available at

20 https://www.vox.com/2017/12/13/16772630/daca-expire-ice-arrest-deport.

21

This report was not published until December 13, 2017 at 1:00 p.m. PST,

22 and Plaintiff’s counsel learned of it at approximately 11:30 p.m. PST. Mr.

23 Gonzalez therefore respectfully requests that the Court consider the attached short

24 proposed letter, attaching the report and briefly addressing the Court’s concerns,

25 which are far from hypothetical.

26

27

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1
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1 2 Dated: December 14, 2017 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/ John C. Ulin John C. Ulin (SBN 165524) john.ulin@apks.com Jaba Tsitsuashvili (SBN 309012) jaba.tsitsuashvili@apks.com ARNOLD & PORTER KAYE SCHOLER LLP 777 South Figueroa Street, 44th Floor Los Angeles, CA 90017-5844 T: (213) 243-4000 F: (213) 243-4199
Attorneys for Plaintiff ALBERTO LUCIANO GONZALEZ TORRES

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PLAINTIFF’S EX PARTE APPLICATION FOR LEAVE TO FILE LETTER

Case 3:17-cv-01840-JM-NLS Document 26 Filed 12/14/17 PageID.777 Page 4 of 4

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CERTIFICATE OF SERVICE

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I hereby certify that on December 14, 2017, I electronically filed the

5 foregoing document with the Clerk of the Court using CM/ECF. I also certify that

6 the foregoing document should automatically be served on all counsel of record via

7 transmission of Notices of Electronic Filing generated by CM/ECF.

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/s/ John C. Ulin

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PLAINTIFF’S EX PARTE APPLICATION FOR LEAVE TO FILE LETTER

Case 3:17-cv-01840-JM-NLS Document 26-1 Filed 12/14/17 PageID.778 Page 1 of 3

1 ARNOLD & PORTER KAYE SCHOLER LLP
2 JOHN C. ULIN (SBN 165524) john.ulin@apks.com
3 JABA TSITSUASHVILI (SBN 309012)
4 jaba.tsitsuashvili@apks.com 777 South Figueroa Street, 44th Floor
5 Los Angeles, CA 90017-5844
6 T: (213) 243-4000 F: (213) 243-4199
7 Attorneys for Plaintiff
8 ALBERTO LUCIANO GONZALEZ TORRES

9

UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

11 ALBERTO LUCIANO GONZALEZ

12 TORRES,

Plaintiff,

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vs.

14 U.S. DEPARTMENT OF

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HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION

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SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;

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U.S. CUSTOMS AND BORDER PROTECTION; Does 1-10, inclusive,

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Defendants.

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Case No. 17 CV 1840 JM(NLS) DECLARATION OF JOHN C. ULIN IN SUPPORT OF PLAINTIFF’S EX PARTE APPLICATION FOR LEAVE TO FILE LETTER ALERTING THE COURT OF NEWS THAT IS PERTINENT TO CONCERNS EXPRESSED BY THE COURT AT THE HEARING ON PLAINTIFF’S MOTION TO MODIFY PRELIMINARY INJUNCTION [Docket No. 13] Hearing: December 12, 2017 Time: 1:30 p.m. Courtroom: 5D Judge: Jeffrey T. Miller

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DECLARATION OF JOHN C. ULIN IN SUPPORT OF PLAINTIFF’S EX PARTE APPLICATION FOR LEAVE TO FILE LETTER

Case 3:17-cv-01840-JM-NLS Document 26-1 Filed 12/14/17 PageID.779 Page 2 of 3

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I, John C. Ulin, declare:

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1. I am an attorney licensed to practice law in the State of California and

3 am admitted to practice in this Court. I am a partner at Arnold & Porter Kaye

4 Scholer LLP, counsel for Plaintiff Alberto Luciano Gonzalez Torres (“Mr. 5 Gonzalez”) in the above-captioned action. I am familiar with the facts and 6 circumstances surrounding this action, and I could and would testify competently

7 as to the matters set forth below.

8

2. Plaintiff’s counsel informed Defendants’ counsel on December 14,

9 2017 via voicemail that Plaintiff would be filing an ex parte application for leave 10 to file a letter with the Court regarding news pertinent to concerns expressed by the 11 Court at the parties’ December 12, 2017 hearing on Mr. Gonzalez’s Motion to

12 Modify the Court’s Preliminary Injunction.

13

3. The report that forms the basis of this request was published the day

14 after the hearing, on December 13, 2017, at 1:00 p.m. PST. Plaintiff’s counsel

15 learned of the report at approximately 11:30 p.m. PST that same day.

16

4. Attached as Exhibit A is a true and correct copy of Dara Lind,

17 Exclusive: The Postal Service Kept Him From Renewing His DACA. Now He’s In

18 Immigration Detention, Vox.com (Dec. 13, 2017), available at

19 https://www.vox.com/2017/12/13/16772630/daca-expire-ice-arrest-deport.

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5. Attached as Exhibit B is a true and correct copy of Jenny Jarvie,

21 Deportations of 'Dreamers' Who've Lost Protected Status Have Surged Under

22 Trump, L.A. Times (Apr. 19, 2017), available at

23 http://www.latimes.com/nation/la-na-daca-deportations-20170419-story.html.

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6. Produced below is a Table of Contents of the above exhibits.

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DECLARATION OF JOHN C. ULIN IN SUPPORT OF PLAINTIFF’S EX PARTE APPLICATION FOR LEAVE TO FILE LETTER

Case 3:17-cv-01840-JM-NLS Document 26-1 Filed 12/14/17 PageID.780 Page 3 of 3

1 Exhibit Tab Exhibit Description

2A 3

Dara Lind, Exclusive: The Postal Service Kept Him From Renewing His DACA. Now He’s In Immigration Detention, Vox.com

4 5B

(Dec. 13, 2017) Jenny Jarvie, Deportations of 'Dreamers' Who've Lost Protected Status Have Surged

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Under Trump, L.A. Times (Apr. 19, 2017)

Exhibit Tab Page 1
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I declare under penalty of perjury under the laws of the United States that

9 the foregoing is true and correct. Executed this 14th day of December, 2017, in

10 Los Angeles, California.

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/s/ John C. Ulin

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DECLARATION OF JOHN C. ULIN IN SUPPORT OF PLAINTIFF’S EX PARTE APPLICATION FOR LEAVE TO FILE LETTER

Case 3:17-cv-01840-JM-NLS Document 26-2 Filed 12/14/17 PageID.781 Page 1 of 3
John C. Ulin John.Ulin@apks.com +1 213.243.4228 +1 213.243.4199 Fax 777 South Figueroa Street Forty-Fourth Floor Los Angeles, CA 90017-5844
December 14, 2017
VIA ECF
The Honorable Jeffrey T. Miller United States District Judge Southern District of California Edward J. Schwartz U.S. Courthouse 940 Front Street, Room 5190 San Diego, California 92101-8917
Re: Gonzalez Torres v. DHS et al., No. 3:17-CV-1840 December 12, 2017 Hearing on Plaintiff’s Motion to Modify Preliminary Injunction [Docket No. 13]
Dear Judge Miller:
Plaintiff Alberto Luciano Gonzalez Torres thanks the Court for devoting significant time and attention to the important question of whether it will enjoin the termination or expiration of his DACA status and benefits, pending judicial consideration of whether Defendants’ current effort to terminate his status through the Notice of Intent to Terminate (“NOIT”) process complies with the DACA Standard Operating Procedures and the Administrative Procedure Act. With the Court’s indulgence, we write to briefly address a few of the concerns that Your Honor raised at Tuesday’s hearing.
First, the Court expressed concern with the pace of Defendants’ effort to terminate Mr. Gonzalez’s DACA status. It questioned the government’s choice to adjudicate an NOIT within the six days before Plaintiff’s DACA status was set to expire anyway on December 22, 2017, and the decision to issue a new NTA immediately after Plaintiff filed his reply brief on this Motion to Modify. The Court asked whether, in the event of a decision to terminate or expiration, Mr. Gonzalez might be detained by ICE or CBP, removed from the United States, or otherwise have the removal action that ICE initiated last week proceed apace, before this Court had the opportunity to determine whether he had a “righteous” objection to the termination process under the APA. The government could give the Court no reassurance that Mr. Gonzalez would not be at risk of those precise consequences in the immediate aftermath of a termination decision or expiration. And yesterday, we learned that at least one DACA recipient whose status lapsed through no fault of his own now finds himself in immigration detention. See Dara Lind, Exclusive: The Postal Service Kept Him From Renewing His DACA. Now He’s In Immigration Detention, Vox.com (Dec. 13, 2017) (attached as Ex. A and available at

Case 3:17-cv-01840-JM-NLS Document 26-2 Filed 12/14/17 PageID.782 Page 2 of 3
https://www.vox.com/2017/12/13/16772630/daca-expire-ice-arrest-deport). Like Mr. Gonzalez, Osman Enriquez applied for DACA renewal in the September 5 to October 5 window provided by DHS’s DACA rescission, but USCIS received his application late due to errors by the Postal Service that impacted many renewal applicants. USCIS ultimately agreed to notify people affected by those errors of the chance to re-submit their applications, but has yet to do so. In the meantime, Mr. Enriquez’s DACA expired, and on Monday ICE officers placed him in immigration detention “after a routine traffic stop” for expired vehicle registration. This story presents a stark example of the serious risks of precipitous adverse action that DACA recipients face once their status is terminated. Indeed, it is consistent with DHS’s own data, which show that removals of people whose DACA status was terminated tripled in the first two months of the current administration. See Jenny Jarvie, Deportations of 'Dreamers' Who've Lost Protected Status Have Surged Under Trump, L.A. Times (Apr. 19, 2017) (attached as Ex. B and available at http://www.latimes.com/nation/la-na-daca-deportations-20170419-story.html).
In short, this Court is right to be concerned about the potential for grievous adverse consequences for Mr. Gonzalez once his DACA status is terminated or expires, including Immigration Court litigation, detention, and even removal. Indeed, the rush by USCIS to terminate Mr. Gonzalez’s DACA status and the rush by ICE to issue an NTA make clear that such a scenario is on the government’s mind. That is the essential reason that Plaintiff asks the Court to enjoin the termination or expiration of his DACA status at least until it has had the opportunity to review the lawfulness of Defendants’ termination process.1
Second, this Court absolutely has the power to modify its Order of September 29, 2017 to assure that it prevents the harms that flow from Defendants’ adjudicated APA violations—i.e., the risk that Mr. Gonzalez will suffer adverse immigration consequences and the loss of employment authorization—because, as noted above, those harms are continuing. As the Ninth Circuit has recognized, “where the violation complained of may have caused continuing harm and where the court can still act to remedy such harm by limiting its future adverse effects,” the court may do so. Northwest Environmental Defense Ctr. v. Gordon, 849 F.2d 1241, 1245 (9th Cir. 1988) (enjoining prospective salmon harvesting practices for the then-future 1989 fishing season to remedy the effects of past violations of fishery management plans during the 1986 fishing season). “The fact that the alleged violation has itself ceased is not sufficient to render a case moot[, a]s long as effective relief may still be available to counteract the effects of the violation.” Id. And“[t]he plaintiff[ is] not required [] to have asked for the precise form of relief that the district court my ultimately grant”—at the time the injunction was requested. The court may fashion or modify its order to redress any harm as to which there may still be effective relief. Id. at 1244-45. Here, as in Gordon, the Court has the power to remedy unlawful conduct that “has present and future consequences,” id.2
1 The preservation of Mr. Gonzalez’s DACA benefits will not necessarily determine any issues in the Immigration Court. It will be up to the Immigration Judge to decide on the proper course of action based on all the circumstances, including his DACA status. 2 While we maintain that these principles should also relieve the Court’s concern that it may not address violations related to Mr. Gonzalez’s renewal application because Mr. Gonzalez’s Complaint may not be broad enough in scope to cover renewal adjudication, the Court need not

Case 3:17-cv-01840-JM-NLS Document 26-2 Filed 12/14/17 PageID.783 Page 3 of 3
Finally, when Defendants acknowledged that, per the terms of the Preliminary Injunction, a decision by USCIS to terminate Mr. Gonzalez’s DACA status would not become effective “until further order of this Court,” the Court suggested that such further order might be a “ministerial act.” Mr. Gonzalez respectfully submits that it would be anything but ministerial. This Court ordered that “Defendants shall fully comply with the DACA SOP should Defendants elect to reconsider Plaintiff’s DACA status[.]” Dkt. 12 at 13. As noted in our briefing in support of this Motion to Modify, there are already significant reasons for concern about whether Defendants are complying with the SOP. The Court’s assessment of Defendants’ compliance with its Preliminary Injunction will necessarily require consideration of whether they have complied with the DACA SOP and, by extension, the Administrative Procedure Act. That process will almost certainly require briefing by the parties, a hearing, and legal analysis by the Court.
For all of these reasons, and as argued in his substantive briefing, Mr. Gonzalez submits that the consideration of Defendants’ compliance with the DACA SOP in connection with their current effort to terminate his DACA status is a serious and potentially complicated matter. Moreover, the risk of non-compliance is increased by the unusual pace at which Defendants seek to adjudicate his NOIT and renewal application. Under these circumstances, the Court should modify its preliminary injunction to prevent the serious harms that could flow from unlawful termination of Mr. Gonzalez’s DACA status—harms that the Court identified in its Preliminary Injunction Order and which the reinstatement of Mr. Gonzalez’s DACA status was intended to prevent. Specifically, the Court should modify the Preliminary Injunction to enjoin the termination or expiration of Mr. Gonzalez’s DACA status and employment authorization, at least until it has reviewed whether Defendants’ pending effort to terminate complies with the DACA SOP and, by extension, the APA.
Respectfully submitted,
/s/ John C. Ulin John C. Ulin (SBN 165524) john.ulin@apks.com Jaba Tsitsuashvili (SBN 309012) jaba.tsitsuashvili@apks.com ARNOLD & PORTER KAYE SCHOLER LLP 777 South Figueroa Street, 44th Floor Los Angeles, CA 90017-5844 T: (213) 243-4000 F: (213) 243-4199
Attorneys for Plaintiff ALBERTO LUCIANO GONZALEZ TORRES
currently reach the renewal issue in order to enjoin the effects of termination pending judicial review of whether the NOIT process complies with the DACA SOP.

Case 3:17-cv-01840-JM-NLS Document 26-3 Filed 12/14/17 PageID.784 Page 1 of 9
EXHIBIT A

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Exclusive: the Postal Service kept him from renewing his DACA. Now he’s in immigration detention.
Pennsylvania father Osman Enriquez was waiting for a letter telling him to reapply.
By Dara Lind dara@vox.com Dec 13, 2017, 4:00pm EST

A former DACA recipient who was waiting to reapply for deportation protections, after his initial application was rejected due to postal service delays, is currently in the custody of Immigration and Customs Enforcement in Pennsylvania, Vox has exclusively learned.
Osman Enriquez, who was picked up by ICE Monday morning after a routine traffic stop, is one of the estimated 12,000 immigrants who have lost their DACA protections since the Trump administration started winding down the program in September.

https://www.vox.com/2017/12/13/16772630/daca-expire-ice-arrest-deport

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In theory, these immigrants were given a chance to apply for one last two-year extension of their protections and work permits. But many missed the tight deadline imposed by the administration — just one month from the day they announced the sunsetting of the program — and others saw their applications rejected by the government for being late, after languishing for weeks at a United States Postal Service processing center in Chicago.
Enriquez is among those immigrants. According to the Trump administration, he’s supposed to wait to be invited to reapply by US Citizenship and Immigration Services. Instead, he’s being put on the road to deportation. (DHS did not respond to a request for comment.)
Enriquez might be the first known case of an immigrant getting detained by ICE after his DACA expired under the administration’s new rules. He’s almost certainly the first known case of an immigrant getting detained while waiting to reapply for DACA renewal.
His presence there is perhaps the most vivid reminder yet that as Congress drags out what to do about DACA recipients, it will probably be too late for some.
RELATED
The Trump administration rejected 4,000 "late" DACA renewals. Some were sitting in its mailbox at the deadline.
Hundreds of immigrants will get to resubmit DACA renewals originally rejected as "late"
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Senate Republicans’ DACA counterproposal doesn’t look like much of a compromise
A typical DACA recipient becomes a detainee Osman Enriquez is a pretty typical DACA recipient. He’s a 27-year-old from Guatemala who graduated from a Lancaster, Pennsylvania, high school and now works in stonemasonry. He was convicted of a “summary offense” (a minor crime) as a juvenile, but it wasn’t enough to stop him from qualifying for, and getting, protection under DACA. His fiancée has a green card, and their son, who’s not quite a year old, was born in the United States.

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When the Trump administration announced on September 5 that it would end DACA, Enriquez’s work permit was set to expire in a little over a month — on October 15. According to the administration, that made him (and 154,000 other DACA recipients whose work permits were set to expire before March 5, 2018) eligible to apply for a twoyear renewal of protections — but only if they got their applications in by October 5.
Enriquez went to the Lancaster office of immigrant advocacy and legal services organization Church World Service for help with his renewal application. According to Carrie Carranza of CWS, his application was mailed September 18. “His application was mailed out at same time as many other DACA applications that have now been approved,” she told Vox on Wednesday.
But Enriquez wasn’t so lucky. His application arrived at the USCIS service center in Chicago on October 10 — three weeks after he mailed it, and five days after the deadline. It was rejected.
At the time, Carranza says, they didn’t really understand what had happened; “We told him, ‘We’re so sorry this happened; you did everything right; it was just a fluke, a debacle, out of your control.’”

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It turns out the scope of the “debacle” was beyond anything she could imagine. It is likely that thousands of DACA renewal applications were mailed in advance of the deadline but were slowed down by USPS delays — including many that were received at government dropboxes on October 5 but were rejected because they were not picked up until the next day.

When reports from the New York Times and Vox highlighted the problem in November, USCIS reversed itself, declaring that immigrants whose DACA renewals had been mailed on time would be given the chance to reapply.

In guidance issued at the end of November (and included in the current FAQs about DACA on the USCIS website), the government says, “The USPS is working with USCIS to identify DACA requests that were received after the deadline due to USPS mail-service delays” — like Enriquez’s.

“As soon as USPS completes its assessment, identifies such requests, and provides this information to USCIS, USCIS will send affected DACA requestors a letter inviting them to resubmit their DACA request. If you receive such a letter, you will have 33 calendar days from the date of the letter to resubmit your request.”

The FAQ estimates that the Postal Service assessment will be done by “mid-December,” and that USCIS will send invitations to reapply about a week after that.

But in the meantime, Enriquez was in limbo. His work permit had expired, but he still had to work to support his family; his driver’s license had expired, because it was only valid as long as he had DACA, but he still needed to drive to get to work.

On Monday morning — six days before his son’s first birthday — as Enriquez drove down Route 83 to his contracting job, he was pulled over by a Pennsylvania State Police officer. The officer told him his vehicle registration had expired. Enriquez’s fiancée says the family thought they had kept their registration current; since Pennsylvania doesn’t put registration-date stickers on license plates, Carranza speculates that the only way the trooper would have known Enriquez’s registration had lapsed would be if she’d run his license plates when he drove by.

Enriquez was ultimately issued a ticket not for the expired registration, but for his expired driver’s license. But in the meantime, Carranza says, the state police officer had called Immigration and Customs Enforcement to come pick up Enriquez. ICE agents took him to

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the York detention center and served him with a notice to appear in immigration court — formally starting deportation proceedings against him.

Two days later, Enriquez is still in detention. Unless something changes, he’ll miss his son’s birthday on Saturday.

The Trump administration made this

inevitable, and only Congress can stop it

from getting worse

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Advocates and Democrats, extrapolating from USCIS numbers, have estimated that 122 immigrants will lose their DACA protections every day between October 5 and March 5. (That doesn’t count the immigrants arrested by ICE despite still having DACA, or whose DACA protections have been stripped from them after an arrest.)

But despite fears that ICE would use the information contained in DACA applications to track down and arrest immigrants, there don’t appear to have been any cases (at least, not any known to the public) in which immigrants who have lost DACA after September have actually been detained. Until now.

But what happened to Enriquez is the inevitable outcome of the way the Trump administration wound down DACA. It gave immigrants an unusually short amount of time to apply for renewal, then enforced stricter-than-usual rules about what counted as a timely application. Their current plan to allow some immigrants affected by mail delays to reapply still puts many immigrants at risk of a gap between one work permit expiring and a new one being issued. And during that time, working, driving, and existing in the US put DACAeligible immigrants at just as much risk of deportation as any other unauthorized immigrant.

You can’t understand the current debate in Congress over how and when to help DACA recipients without understanding this phenomenon. Elected Democrats are extremely aware that people are losing DACA every day, and many moderate Republicans also note that the program is less effective the longer it’s allowed to wind down. But Republican leadership isn’t thinking about the program’s efficacy; it’s focused on the March 5 “deadline” set by the White House, and sees no need to take action before then.

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At present, Democrats are trying to figure out if the urgency of DACA is enough to withhold votes on a must-pass government funding bill days before Christmas — risking a government shutdown — or whether to allow the issue to fall into 2018. If they pick the latter, they’ll have to hope that Republicans see the March 5 deadline as a serious deadline, like a government funding bill, and not a “deadline” like funding the Children’s Health Insurance Program (which Congress has allowed to lapse for 73 days and counting).
And in the meantime, Osman Enriquez, and perhaps others like him, will be waiting in a detention cell for Congress to make up its mind.
CORRECTION: This article originally identified the CWS staffer in Lancaster as “Carrie Hussein,” a name she no longer goes by. Her name is now Carrie Carranza.
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IN THIS STORYSTREAM
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Case 3:17-cv-01840-JM-NLS Document 26-4 Filed 12/14/17 PageID.793 Page 1 of 4
EXHIBIT B

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Deportations of 'Dreamers' who've lost protected status have surged under Trump

President Trump signs an executive order in January on border security and immigration enforcement. (Pablo Martinez Monsivais / Associated Press)

By Jenny Jarvie

APRIL 19, 2017, 4:30 PM
T he number of “Dreamers” deported after being brought illegally to the United States as children and losing their protected status because of criminal behavior appears to have soared in the first few months of the Trump administration.

According to data released this week by the Department of Homeland Security, 43 immigrants whose protection under the Deferred Action for Childhood Arrivals (DACA) program was terminated were deported during the first two months of the Trump presidency, from Jan. 20 to March 25.

That’s a much higher proportion than under President Obama, when former Dreamers were being deported at a rate of about seven a month since the program got underway in September 2012.

President Trump has stated his administration will not target DACA, an Obama-era program that allows immigrants brought into the country illegally as children, who attend school or have graduated, to apply to the

http://www.latimes.com/nation/la-na-daca-deportations-20170419-story.html

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At issue are those former DACA beneficiaries whose protected status was canceled either because of a criminal conviction or gang activity.
Immigrant advocates say the rise in deportations of former Dreamers is likely a result of Trump’s executive orders tightening border security and immigration enforcement.
The Obama administration prioritized deportation of immigrants who were deemed a danger to public safety, convicted of a serious crime, a threat to national security or who had recently crossed the border.
"Given the Trump administration's rhetoric and policies, I'm not surprised that more people are being targeted — including individuals who are longtime residents who pose no danger, contribute to our society and economy, and have U.S. citizen families," said Lucas Guttentag, a former senior advisor at the Department of Homeland Security under Obama who now teaches law at Stanford University.
The Department of Homeland Security says its policies on DACA have not changed.
“The grounds for DACA termination have not changed since the inception of the program,” Gillian Christensen, acting Homeland Security press secretary, said in a statement. She said many of the former DACA beneficiaries deported this year probably had their protected status terminated before Trump became president.
“Individuals who pose a public safety threat due to their criminal history or gang affiliation are subject to DACA revocation,” she said.
Yet it appears clear that those whose DACA protection is terminated are more likely to be a target for deportation now that Trump has set new priorities for enforcement. Under the Obama administration, Guttentag said, someone could have his or her DACA status terminated yet remain a non-priority for removal if not seen to pose a danger or convicted of a serious criminal offense.
“The fact that they abandoned priorities didn’t change DACA,” Guttentag said. “But if a DACA recipient does something to lose eligibility, that could not make him or her vulnerable.”
Under Trump’s Jan. 25 executive order, immigrants in the country illegally can be deported if they are merely charged with a crime, as opposed to having a criminal conviction. All 43 former Dreamers deported since Trump’s inauguration had been convicted of crimes or found to have gang affiliations, Christensen said in an email. She declined to provide any breakdown of the crimes that prompted their DACA status to be revoked.
More than 670 former Dreamers currently face removal proceedings, with 90 detained in custody, according to Homeland Security data.

http://www.latimes.com/nation/la-na-daca-deportations-20170419-story.html

2/3

12/14/2017 Case 3:17-cv-0184D0ep-JorMtat-ioNnsLoSf 'DreDamoecrsu' mwheo'nvet lo2s6t p-r4otecFteidlestdatu1s2ha/1ve4s/u1rg7ed uPndaegr TeruIDmp.7- 9LA6TimPesage 4 of 4 The deportation figures released by the Homeland Security Department show that while 43 former DACA immigrants were deported from Jan. 20 to March 25, 20 were allowed to remain in the country.
While a total of 365 were deported during the four-plus years the DACA program was carried out under Obama, more than 500 were released from immigration custody.
Jessica Vaughan, director of policy studies at the Center for Immigration Studies, a Washington-based research institute that advocates stricter immigration policy, cautioned that it is too early to know how deportations will proceed under Trump.
“We have years of data on Obama policy and only weeks of data on Trump policies,” she said. “But it does appear if you have DACA and it was revoked, you are more likely to be deported under the Trump administration than the Obama administration.”
In addition to deporting former Dreamers with criminal convictions, Vaughan said she would not be surprised if the new administration also starts going after those who have not renewed their DACA status or are found to have obtained it fraudulently.
“The Obama administration put a lot of restraints on ICE,” Vaughan said, referring to the Immigration and Customs Enforcement agency. “The Trump administration is starting from the standpoint that anyone here illegally is potentially subject to deportation. ICE officers are not going to be turning the other way.”
ALSO
A 23-year-old 'Dreamer' sues the Trump administration over his deportation to Mexico
'Dreamer' threatened with deportation in Seattle is released after weeks of detention
Yes, Trump can boost deportations and gut the Dreamer program for young immigrants
Copyright © 2017, Los Angeles Times
This article is related to: Immigration, Donald Trump, Barack Obama, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement

http://www.latimes.com/nation/la-na-daca-deportations-20170419-story.html

3/3

 
 Case 3:17-cv-01840-JM-NLS Document 27 Filed 12/15/17 PageID.797 Page 1 of 4

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
Attorneys for Defendants

8

9

UNITED STATES DISTRICT COURT

11

SOUTHERN DISTRICT OF CALIFORNIA

12

13

ALBERTO LUCIANO

) Case No. 3:17-CV-01840-JM-(NLS)

14 GONZALEZ TORRES,

)

15

)

Plaintiff,

) DEFENDANTS’ OPPOSITION TO

16

) PLAINTIFF’S EX PARTE

17

v.

) APPLICATION [DKT. NO. 22]

18

U.S. DEPARTMENT OF

) ) Courtroom: 5D

19 HOMELAND SECURITY, et al., ) Judge: Jeffrey T. Miller

20

)

Defendants.

)

21

)

22

)

)

23

)

24

)

25

)

)

26

)

27

28

3:17-CV-01840-JM-(NLS)

Case 3:17-cv-01840-JM-NLS Document 27 Filed 12/15/17 PageID.798 Page 2 of 4

1

The Court should deny Plaintiff’s “Ex Parte Application for Leave to File Letter

2 Alerting the Court of News that is Pertinent to Concerns Expressed by the Court at the

3 Hearing on Plaintiff’s Motion to Modify Preliminary Injunction.” Dkt. No. 26. This is the

4 second time Plaintiff has attempted to present an argument to the Court in a matter that

5 serves an improper purpose and by which Defendants would not have the opportunity to 6 respond.1

7

Plaintiff’s ex parte application improperly seeks to present the Court with one

8 newly published news article, a second older article that Plaintiff has not previously cited,

9 as well as letter briefing that contains arguments far in excess of the new article on which

11 Plaintiff bases his ex parte application.

12

In the analogous context of Rule 28(j) letters submitted pursuant to the Fed. R.

13 App. P., arguments raised for the first time in such supplemental authority are deemed

14 waived. Pawlyk v. Wood, 248 F.3d 815, 822 n.5 (9th Cir. 2001) (citations omitted). Here, 15 Plaintiff seeks to respond directly to concerns raised by the Court during the December

16 12, 2017, hearing on Plaintiff’s motion to modify this Court’s September 29, 2017, 17 Order. See Dkt. No. 26-2 at 2 (“we write briefly to address a few of the concerns that

18 Your Honor raised at Tuesday’s hearing”); (“this Court is right to be concerned about the 19 potential for grievous adverse consequences for Mr. Gonzalez once his DACA status is 20 terminated or expires . . .”); id. at 3 (responding to the Court’s suggestion at hearing “that 21 such further order might be a ‘ministerial act,’ by arguing “that it would be anything but 22 ministerial.”); (“the risk of non-compliance is increased by the unusual pace at which 23 Defendants seek to adjudicate his NOIT and renewal application.”). These issues were 24 raised by the Court during the course of a ninety minute hearing on Plaintiff’s motion 25 where the Court acknowledged that it was inquiring and informing itself about issues that

26
1 Plaintiff’s ex parte application also violates Local Rule 83.3(g), in that Plaintiff allowed 27 only thirteen minutes to elapse between his counsel’s message regarding the intended ex 28 parte application and filing with this Court.

3:17-CV-01840-JM-(NLS)
1

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1 were not squarely before the Court in Plaintiff’s motion. These issues appear to have

2 been raised by the Court sua sponte, and Plaintiff does not and cannot point to prior 3 briefing on these issues.2 For this reason alone, the Court should deny Plaintiff’s ex parte

4 application. The Court should also deny Plaintiff’s ex parte application to the extent it

5 submits, discusses, and argues an eight month old article from April 17, 2017, that

6 Plaintiff appears to have never cited in this matter. See Dkt. No. 26-4.

7

The Court should deny Plaintiff’s ex parte application not only because Plaintiff’s

8 argument regarding the newly cited article exceeds the scope of Plaintiff’s prior

9 arguments, and the newly alleged harms are not related to the issues before the Court in

11 Plaintiff’s complaint and the Court’s September 29, 2017, Order, but also because the

12 new article fails to meet the legal standard for judicial notice. Taking judicial notice of

13 publications is not appropriate with respect to “whether the contents of those articles

14 were in fact true.” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954,

15 960 (9th Cir. 2010). “This is because often, the accuracy of information in newspaper

16 articles and press releases cannot be readily determined and/or can be reasonably

17 questioned.” Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1028 (C.D.

18 Cal. 2015), citing Fed. R. Evid. 201.

19

Were the Court to consider the newly cited article for its truth, the Court should

20 also consider the further development in Mr. Enriquez’s case that ICE has moved to

21
2 With regard to the merits of Plaintiff’s new arguments, these arguments are based on 22 Plaintiff’s same misconceptions regarding the claims in his complaint and this Court’s
23 September 29, 2017 Order, and Defendants’ response from prior briefing is unchanged.
24 See Dkt. No. 23-2 at 8 (“Not only are these challenges premature, they are also distinct from the challenge raised in Plaintiff’s complaint to the automatic termination of his DACA
25 based on U.S. Customs and Border Protection’s NTA.”); Dkt. No. 18 at 1 (“Plaintiff has
26 never stated a claim regarding his now pending DACA renewal request or the procedures regarding the adjudication of that request.”); id. at 3 (“Plaintiff necessarily did not
27 challenge a then nonexistent administrative action in his complaint, nor does Plaintiff
28 challenge Defendants’ procedures regarding DACA renewal requests.”).

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1 dismiss the Notice to Appear as improvidently issued. See Exhibit 1. Moreover, the

2 harms Plaintiff asserts regarding Mr. Enriquez at the time of his arrest are different from

3 any harm Plaintiff could assert because Plaintiff is already subject to removal 4 proceedings.3 Accordingly, even if the Court considers the article regarding Mr.

5 Enriquez’s case, it fails to supports Plaintiff’s new arguments regarding hypothetical

6 injuries.

7

For the above stated reasons, the Court should deny Plaintiff’s ex parte application.

8 Dated: December 15, 2017

Respectfully submitted,

9
CHAD A. READLER

11

Acting Assistant Attorney General

12

WILLIAM C. PEACHEY

13

Director

14

District Court Section

15

Office of Immigration Litigation

16

/s/ Jeffrey S. Robins

17

JEFFREY S. ROBINS

Assistant Director

18

U.S. Department of Justice

19

P.O. Box 868, Ben Franklin Station

Washington, D.C. 20044

20

(202) 616-1246

21

jeffrey.robins@usdoj.gov

22
Attorneys for Defendants
23

24 3 Plaintiff was the subject of removal proceedings during most of his litigation before this
25 Court – from the original NTA issuance by CBP in August 2017 until the Immigration
26 Court’s November 17, 2017, termination of proceedings without prejudice on the basis of this Court’s Order reinstating his DACA, and again beginning on December 12, 2017, with
27 the issuance of a new NTA by ICE. A December 15, 2017, call by undersigned counsel to
28 the Executive Office for Immigration Review’s Case Status Number at 1-800-898-7180, states that Plaintiff’s next hearing date in immigration court is March 20, 2018 at 1 p.m.

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EXHIBIT 1

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EXHIBIT 1 003

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 Case 3:17-cv-01840-JM-NLS Document 29 Filed 12/15/17 PageID.808 Page 1 of 4

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10 ALBERTO LUCIANO GONZALEZ CASE NO. 17cv1840 JM(NLS)

TORRES, 11

ORDER DENYING MOTION TO

12

v.

Plaintiff, MODIFY PRELIMINARY INJUNCTION

13 U.S. DEPARTMENT OF HOMELAND SECURITY; U.S.
14 CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION
15 AND CUSTOMS ENFORCEMENT; and U.S. CUSTOMS AND BORDER
16 PROTECTION,

17

Defendants.

18

19

Plaintiff Alberto Luciano Gonzalez Torres moves to modify this court’s

20 September 29, 2017 Order Granting Motion for Preliminary Injunction (“Order”).

21 Plaintiff seeks to enjoin the expiration of the immigration and employment status he

22 obtained pursuant to the Deferred Action for Childhood Arrivals (“DACA”) program.

23 Defendants U.S. Department of Homeland Security, U.S. Citizenship and Immigration

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

25 and Border Protection oppose the motion. Having carefully considered the matter

26 presented, the court record, the arguments of counsel and, for the reasons set forth

27 below, the court denies the motion to modify the Order without prejudice.

28

- 1 -

17CV1840

Case 3:17-cv-01840-JM-NLS Document 29 Filed 12/15/17 PageID.809 Page 2 of 4

1

BACKGROUND

2

The court incorporates its Order as if fully set forth herein. In granting the

3 motion for preliminary injunction, the court enjoined the termination of Plaintiff’s

4 DACA status and employment authorization, required Defendants to comply with the

5 DACA SOP, and ordered Defendants to accept Plaintiff’s DACA renewal application.

6

Defendants represent that they have complied with the Order. Defendants

7 reinstated Plaintiff’s DACA status and employment authorization, accepted his DACA

8 renewal request, and, on November 13, 2017, issued Plaintiff a Notice of Intent to

9 Terminate (“NOIT”). Plaintiff’s response to the NOIT is due on or before December

10 16, 2017. Moreover, Defendants represents that “USCIS anticipates completing the

11 adjudication of its intended termination of Plaintiff’s reinstated DACA” before

12 expiration of Plaintiff’s DACA status on December 22, 2017.

13

THE MOTION

14

The court possesses broad authority to modify preliminary injunctions “as

15 required by the circumstances of a given case.” United States v. Washington, 852 F.3d

16 946, 979 (9th Cir. 2007) (a court “should not hesitate to modify its injunction” as

17 required by the circumstances of the case).

18

Plaintiff seeks to modify the Order to include a provision that would “enjoin the

19 expiration of Mr. Gonzalez’s DACA status and employment authorization pending

20 final resolution of his renewal application,” including the time spent pursuing

21 administrative and legal remedies. (Motion at p.1:11-15). Plaintiff represents that he

22 timely filed a DACA renewal application on October 4, 2017, the processing of the

23 renewal application by USCIS is anticipated to take between 120-150 days (between

24 February and March 2018), and his current DACA status expires on December 22,

25 2017. Should the renewal application not be adjudicated prior to December 22, 2017,

26 Plaintiff fears the loss of his DACA status and employment authorization at that time.

27

Defendants represent that there is no need to modify the Order because Plaintiff

28 has been provided with a NOIT and the opportunity to respond to the NOIT by

- 2 -

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Case 3:17-cv-01840-JM-NLS Document 29 Filed 12/15/17 PageID.810 Page 3 of 4

1 December 16, 2017. Presumably, the Government anticipates the termination of

2 Plaintiff’s DACA status at that time. Defendants anticipate resolving the NOIT and

3 terminating Plaintiff’s DACA status prior to December 22, 2017, thus mooting

4 Plaintiff’s request to extend Plaintiff’s DACA status beyond that date.1 They do not

5 indicate whether Plaintiff’s DACA renewal application will be processed by December

6 22, 2017.2

7

At the outset, the court notes that the Order required Defendants to comply with

8 the DACA SOP in seeking to terminate an individual’s DACA status. To remedy the

9 deficiencies identified by Plaintiff in his complaint, the court required Defendants to

10 reinstate Plaintiff’s DACA status and employment authorization and to accept his

11 DACA renewal application. Plaintiff does not dispute that Defendants have complied

12 with the Order.

13

While Plaintiff validly expresses insecurity with the pace of Defendants’

14 reported processing of DACA renewal applications, Defendants largely respond that,

15 pursuant to the DACA SOP, Plaintiff’s DACA status will be lawfully resolved prior

16 to December 22, 2017, by properly using the procedural safeguards of the

17 Administrative Procedures Act and the DACA SOP. In light of Defendants’

18 representations, the court concludes that there is no reasonable or likely prospect that

19 Defendants will improperly detain or remove Plaintiff or otherwise improperly

20 terminate Plaintiff’s DACA status. At this point in time, Plaintiff fails to meet his

21 burden to show that modification of the Order is appropriate under the current

22 circumstances of the case.

23 1 The court rejects Defendants’ argument that the modification of the Order
24 sought by Plaintiff deals with a new claim falling outside the scope of the present complaint. The court construes Plaintiff’s complaint broadly, as this court is required
25 to do. See Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S. Ct. 1710 (1996) (courts must construe the complaint in the light most favorable to
26 the plaintiff).

27

2 In their December 8, 2017 sur-reply, Defendants represent that ICE issued

Defendant a new NTA (this NTA relates to the removal proceedings commenced

28 against Plaintiff in May 2016), clarifying DHS’s continuing interest in pursuing

Plaintiff’s removal in support of the NOIT process.

- 3 -

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Case 3:17-cv-01840-JM-NLS Document 29 Filed 12/15/17 PageID.811 Page 4 of 4

1

In sum, the court denies the motion to modify the Order, without prejudice.3

2

IT IS SO ORDERED.

3 DATED: December 15, 2017

4

5 6 cc:

All parties

JEFFREY T. MILLER United States District Judge

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27 3 On December 14, 2017, Plaintiff, by means of an ex parte application,
28 submitted to the court a news article concerning the detention of a DACA recipient. (ECF No. 26). This article does not alter the present order.

- 4 -

17CV1840

 
 Case 3:17-cv-01840-JM-NLS Document 31 Filed 12/22/17 PageID.869 Page 1 of 6

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
Attorneys for Defendants

8

9

UNITED STATES DISTRICT COURT

11

SOUTHERN DISTRICT OF CALIFORNIA

12

13

ALBERTO LUCIANO

) Case No. 3:17-CV-01840-JM-(NLS)

14 GONZALEZ TORRES,

)

15

)

Plaintiff,

) DEFENDANTS’ EX PARTE

16

) APPLICATION FOR ORDER

17

v.

) DISSOLVING PRELIMINARY

18

U.S. DEPARTMENT OF

) INJUNCTION AND PERMITTING ) DEFENDANTS’ TERMINATION

19 HOMELAND SECURITY, et al., ) OF PLAINTIFF’S DACA TO TAKE

20

) EFFECT THE DATE IT WAS

Defendants.

) ISSUED.

21

)

22

) Courtroom: 5D

) Judge: Jeffrey T. Miller

23

)

24

)

25

)

)

26

)

27

28

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Case 3:17-cv-01840-JM-NLS Document 31 Filed 12/22/17 PageID.870 Page 2 of 6

1

On December 21, 2017, USCIS issued a final decision that terminated Plaintiff’s

2 reinstated DACA. See Dec. 21, 2017 Termination Notice, Exhibit A. That notice

3 acknowledges that, pursuant to this Court’s September 29, 2017 Order, it cannot take

4 effect until further order of this Court. Id. at 3. Accordingly, Defendants respectfully

5 request that the Court issue an Order dissolving the Court’s September 29, 2017 Order,

6 and alternatively issue a more limited order allowing Defendants’ December 21, 2017, 7 Termination Notice to take effect.1

8

“A party seeking modification or dissolution of an injunction bears the burden of

9 establishing that a significant change in facts or law warrants revision or dissolution of

11 the injunction.” Sharp v. Weston, 233 F.3d 1166, 1170 (9th Cir. 2000); see also Southeast

12 Alaska Conservation Council v. U.S. Army Corps of Eng’s, 272 F.3d 1097, 1101 (9th Cir.

13 2006) (moving party must demonstrate facts have changed sufficiently since court issued

14 its order); see also Rufo v. Inmates of Suffolk C’nty Jail, 502 U.S. 367, 383 (1992) (Rule 15 60(b)(5) movants must show significant change in facts or law) and Bellevue Manor

16 Associates v. United States, 165 F.3d 1249, 1257 (9th Cir. 1999) (Rufo standard applies 17 to all Rule 60(b)(5) petitions brought on equitable grounds); see also McMillen v. Las

18 Vegas Twp. Constable's Office, No. 2:14-CV-00780-APG, 2015 WL 403563, at *7 (D. 19 Nev. Jan. 29, 2015), appeal dismissed (Sept. 15, 2015) (“That fee has now been waived, 20 and McMillen's due process claim is moot. These changed circumstances warrant 21 dissolution of the preliminary injunction.”); but see Sharp Healthcare v. Leavitt, No. 0822 CV-0170 W POR, 2009 WL 790113, at *6 (S.D. Cal. Mar. 25, 2009) (“Plaintiffs are 23 entitled to amend their complaint and have expressed their desire to do so, and therefore 24 it is still possible that they will succeed on the merits.”)

25

26

27 1 USCIS intends to issue a decision on Plaintiff’s DACA renewal request in the next week.
28 That decision is contingent on the newly issued Termination Notice, and as such, a ruling on this ex parte application is needed for both decisions to take effect.

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1

Defendants’ Termination Notice, and actions leading to that notice, are new facts

2 that warrant dissolution of the injunction because Defendants have complied with that

3 order. The Court’s injunction consists of four provisions: (1) vacating Defendants’ May

4 7, 2016 revocation of Plaintiff’s DACA and enjoining enforcement of that revocation; (2)

5 vacating the termination of Plaintiff’s employment authorization and enjoining

6 termination of employment authorization; (3) “that Defendants shall fully comply with

7 the DACA SOP should Defendants elect to reconsider Plaintiff’s DACA status;” and (4)

8 “that Defendants accept Plaintiff’s DACA renewal application.” Dkt. No. 12 at 13-14.

9 Here, as a result of the Court’s September 29, 2017 Order, USCIS reinstated Plaintiff’s

11 DACA, accepted his DACA renewal request, issued Plaintiff a Notice of Intent to

12 Terminate (NOIT) his reinstated DACA, Dkt. Nos. 14-1, 14-2, & 14-3.1, and have now

13 issued a Termination Decision that terminates Plaintiff’s DACA. See Ex. A. That 14 Termination Decision fully complies with the DACA SOP.2

15
16 2 Even if Plaintiff seeks to challenge the substance of Defendants’ new Termination Notice, the dissolution of the present injunction is warranted where Defendants’ actions
17 subsequent to the injunction render the entirety of Plaintiff’s complaint moot. Claims for 18 injunctive relief become moot once subsequent events have made clear the conduct 19 alleged as the basis for the requested relief “could not reasonably be expected to recur,”
Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 864 (9th Cir. 2017), and also where 20 “interim relief or events have completely and irrevocably eradicated the effects of the 21 alleged violation.” Lindquist v. Idaho State Bd. of Corr., 776 F.2d 851, 854 (9th Cir.
1985) (quoting Los Angeles C’nty v. Davis, 440 U.S. 625, 631 (1979)). While Defendants 22 acknowledge that courts must construe a complaint in the light most favorable to the 23 plaintiff, see Dkt. No. 29 at 3, n.1, citing Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 24 1995), cert. dismissed, 116 S. Ct. 1710 (1996), such construction is limited to motions to
dismiss under Fed. R. Civ. P. 12(b)(6). Here, Defendants contend that Plaintiff has 25 received all the relief requested in his complaint and that the final agency action 26 challenged there – the May 7, 2016 DACA revocation – no longer exists. Defendants
intend to move to dismiss Plaintiff’s complaint on these 12(b)(1) grounds on or before 27 December 29, 2017, if Plaintiff does not amend his complaint before then. See, e.g., 28 Elder v. Nat'l Conference of Bar Examiners, No. C 11-00199 SI, 2011 WL 4079623, at

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1

First, USCIS’s Notice of Decision specifically quotes the SOP provision on which

2 it is based:

3

If after consulting with ICE, USCIS determines that exercising prosecutorial

4

discretion after removal has been deferred under DACA is not consistent with

the Department of Homeland Security's enforcement priorities, and ICE does

5

not plan to issue an NTA, the officer should refer the case to HQSCOPS

6

[Headquarters Service Center Operations], through the normal chain of

command, to determine whether or not a NOIT [Notice of Intent to Terminate]

7

is appropriate. If it is determined that the case warrants final termination, the

8

officer will issue DACA 603 - Termination Notice [Enforcement Priority, Not

9

Automatically Terminated] from the Appendix I.

11 See Ex. A at 2 (emphasis added), quoting Dkt. No. 2-9 at 15. Second, USCIS’s

12 Termination Notice demonstrates adherence to all the procedural steps in the SOP

13 guidelines above: consultation with ICE; consideration of whether continuing DACA is

14 inconsistent with DHS’s enforcement priorities; and USCIS’s consideration of Plaintiff’s

15 response and the agency’s voluntary consideration of his supplemental response to that

16 NOIT. Id. In short, the USCIS termination decision states that after consultation with

17 ICE and considering Plaintiff’s response to the NOIT and the totality of the

18 circumstances, USCIS “finds that continuing to exercise prosecutorial discretion to defer

19 removal action against you is not consistent with DHS’s enforcement priorities.

20 Therefore USCIS does not find that you merit a favorable exercise of prosecutorial

21 discretion and will not continue to defer DHS removal action against you under DACA.”

22 Ex. A at 3.

23 //
24
25 //

26

27 *6 (N.D. Cal. Sept. 12, 2011) (“The Court finds that the issues between the parties are
28 moot. Plaintiff has received all of the relief he sought in his complaint. Therefore, the bond should be dissolved and the case DISMISSED.”).

3:17-CV-01840-JM-(NLS)
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1

USCIS has consulted with U.S. Immigration and Customs Enforcement (ICE)

and has determined that exercising prosecutorial discretion to defer removal

2

action in your case is not consistent with DHS’s enforcement priorities. ICE

3

informed USCIS that it considers you an enforcement priority, and that ICE

did not plan to issue an NTA because CBP already issued an NTA to you on

4

May 7, 2016, and that ICE was actively prosecuting your removal based on

5

the CBP-issued NTA, and ICE’s determination that you are an enforcement

6

priority, in immigration court in accordance with INA § 240.

7

Subsequent to issuing you the NOIT, the immigration proceedings that were

8

initiated against you by CBP on May 7, 2016 were terminated on November

17, 2017; however, ICE once again confirmed it still views you as an

9

enforcement priority and issued you a new NTA on December 8, 2017

11

demonstrating that ICE is actively pursuing your removal. DHS records show

12

that you have a master calendar hearing date with an Immigration Judge scheduled for March 20, 2018.

13

14

USCIS received your response to the NOIT on December 18, 2017. Pursuant

to your request, although USCIS was not required to do so, we allowed you

15

to submit a supplemental response on December 19, 2017 to address the ICE-

16

issued NTA on December 8, 2017 that you claimed you had not received.

17

In your response to the NOIT, you provided information concerning your

18

perspective on your encounter with border patrol agents on May 7, 2017. In

19

review of the record as a whole, USCIS notes the following derogatory

information with respect to your case . . . .

20 Ex. A at 2 (emphasis added).

21
For the above stated reasons, the Court should dissolve the Court’s September 29,

22
2017 Order, and issue a allow Defendants’ December 21, 2017, Termination Notice to

23
take effect as of the date on that notice.

24

25 //

26 //
27

28

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1 Dated: December 22, 2017 2 CHAD A. READLER 3 Acting Assistant Attorney General 4 WILLIAM C. PEACHEY 5 Director 6 District Court Section
Office of Immigration Litigation
7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,
/s/ Jeffrey S. Robins JEFFREY S. ROBINS Assistant Director U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 616-1246 jeffrey.robins@usdoj.gov
Attorneys for Defendants

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EXHIBIT A

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1 CHAD A. READLER

Acting Assistant Attorney General

2 WILLIAM C. PEACHEY

Director, District Court Section

3 Office of Immigration Litigation

JEFFREY S. ROBINS 4 Assistant Director

5

U.S. Department of Justice P.O. Box 868, Ben Franklin Station

6

Washington, D.C. 20044 (202) 616-1246

7 Email: jeffrey.robins@usdoj.gov

8 Attorneys for Defendants

9
UNITED STATES DISTRICT COURT
10

11

SOUTHERN DISTRICT OF CALIFORNIA

12

13 ALBERTO LUCIANO 14 GONZALEZ TORRES,

15

Plaintiff,

16

17

v.

18 U.S. DEPARTMENT OF 19 HOMELAND SECURITY, et al.,

20

Defendants.

21

) Case No. 3:17-CV-01840-JM-(NLS) ) ) DECLARATION OF JEFFREY S. ) ROBINS IN SUPPORT OF ) DEFENDANTS’ EX PARTE ) APPLICATION FOR ORDER ) DISSOLVING PRELIMINARY ) INJUNCTION AND PERMITTING ) DEFENDANTS’ TERMINATION ) OF PLAINTIFF’S DACA TO TAKE ) EFFECT THE DATE IT WAS ) ISSUED.

22

23
24 //

25 //

26 //
27 //
28

3:17-CV-01840-JM-(NLS)
1

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1

I, Jeffrey S. Robins, pursuant to 28 U.S.C. § 1746, hereby declare:

2 1. I am employed as an Assistant Director for the Department of Justice, Civil

3 Division, Office of Immigration Litigation, and have been assigned as counsel for

4 Defendants in Gonzalez v. DHS et al., Case No. 3:17-cv-1840-JM-(NLS). As such,

5
I have personal knowledge of the following facts and could testify regarding these

6
facts if called to do so.
7
2. Today, pursuant to Local Rule 7.1(g)(2), I informed Plaintiff’s counsel by e-
8
mail that Defendants would be filing this ex parte application for an order dissolving
9
the preliminary injunction and permitting Defendants’ termination of Plaintiff’s
10
DACA to take effect. Counsel responded that they “plan to oppose this filing and
11
may seek other relief of the termination order.”
12
3. Defendants believe that Plaintiff should submit a response by December 26,
13

2017; Plaintiff has expressed that he should have until December 29, 2017, to
14

15 respond.

16 4. I declare under penalty of perjury that the foregoing is true and correct and

17 that this declaration was executed under the laws of the United States on this 22nd

18 day of December, 2017, in Washington, D.C.

19

/s/ Jeffrey S. Robins

20

JEFFREY S. ROBINS

21

Assistant Director

U.S. Department of Justice

22

P.O. Box 868, Ben Franklin Station

23

Washington, D.C. 20044

(202) 616-1246

24

jeffrey.robins@usdoj.gov

25

26

Attorneys for Defendants

27

28

3:17-CV-01840-JM-(NLS)
2

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1

CERTIFICATE OF SERVICE

2

I hereby certify that a copy of the foregoing, along with the referenced

3
exhibits, was served electronically through the CM/ECF to the registered
4

5 participants.

6

/s/ Jeffrey S. Robins

7

JEFFREY S. ROBINS

8

Assistant Director

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3:17-CV-01840-JM-(NLS)
3

 
 Case 3:17-cv-01840-JM-NLS Document 38 Filed 01/12/18 PageID.896 Page 1 of 46

1 ARNOLD & PORTER KAYE SCHOLER LLP
2 JOHN C. ULIN (SBN 165524) john.ulin@apks.com
3 JABA TSITSUASHVILI (SBN 309012)
4 jaba.tsitsuashvili@apks.com 777 South Figueroa Street, 44th Floor
5 Los Angeles, CA 90017-5844
6 T: (213) 243-4000 F: (213) 243-4199
7 Attorneys for Plaintiff
8 ALBERTO LUCIANO GONZALEZ TORRES

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11 ALBERTO LUCIANO GONZALEZ

12 TORRES,

Plaintiff,

13

vs.

Case No. 17 CV 1840 JM(NLS) FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

14 U.S. DEPARTMENT OF

15

HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION

16

SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;

17

U.S. CUSTOMS AND BORDER PROTECTION; Does 1-10, inclusive,

18

Defendants.

19

20

21

22

23

24

25

26

27

28

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1

Plaintiff Alberto Luciano Gonzalez Torres (“Mr. Gonzalez”) brings this First

2 Amended Complaint seeking declaratory and injunctive relief.

3

Mr. Gonzalez is a two-time Deferred Action for Childhood Arrivals

4 (“DACA”) and employment authorization recipient. DACA status has made him

5 “lawfully present” with the right to work in the United States and offered the

6 opportunity for renewal upon consideration of the DACA eligibility criteria.

7 Crucial to that status and to the consideration for renewal is the fact that—in the 16

8 years he has lived in the United States, since the age of 8—he has never been

9 charged with (let alone convicted of) any crime, in any forum.

10

In May 2016, officers of Defendant CBP arrested Mr. Gonzalez when they

11 encountered him at the home of an acquaintance where CBP claims it later found

12 several undocumented immigrants. Following the arrest, Defendant USCIS

13 unlawfully automatically terminated Mr. Gonzalez’s DACA status. In September

14 2017, this Court vacated and preliminarily enjoined that termination as violating

15 the DACA Standard Operating Procedures (“SOP”) and the Administrative

16 Procedure Act (“APA”).

17

USCIS subsequently issued Mr. Gonzalez a Notice of Intent to Terminate

18 (“NOIT”) his DACA status. Its sole rationale is that he is now an “enforcement

19 priority” because Defendant ICE is litigating Immigration Court removal

20 proceedings against him on the charge of presence in the United States without

21 admission or parole—i.e., the ground for removal that DACA, by definition, exists

22 to defer because DACA recipients are “low priority cases.” Mr. Gonzalez

23 responded to the NOIT, again denying any knowledge of or involvement in any

24 possible wrongdoing associated with the circumstances of his arrest.

25

While the NOIT was pending USCIS’s review, Defendants acknowledged

26 that they “do not take issue with” the fact that Mr. Gonzalez continues to meet all

27 of the DACA eligibility criteria. That very recent admission is significant, as one

28 of those criteria is that a DACA requestor does not “pose[] a threat to national

1
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1 security or public safety.” Defendants’ acknowledgment is therefore inconsistent

2 with USCIS’s sudden labeling of Mr. Gonzalez as an “enforcement priority,” in

3 clear contravention of Defendants’ publicly stated and unambiguous definitions of

4 that term, which make clear that DACA recipients remain low priority cases in the

5 absence of adjudicated disqualifying criminal offenses.

6

On the other hand, Defendants’ acknowledgment that he is not a public

7 safety concern is entirely consistent with (1) the fact that Mr. Gonzalez has never

8 been charged with or convicted of any crime, in any forum; (2) CBP’s

9 abandonment of any investigation of Mr. Gonzalez after two days of aggressive

10 interrogation nearly two years ago; (3) an Immigration Judge’s June 2016

11 determination that he is not a public safety concern and should be released on just

12 $5,000 bond; and (4) DHS’s decision not to object to or appeal that determination

13 or to investigate or take any action against Mr. Gonzalez in the 20 months since he

14 was released from immigration detention, during which time he has resumed his

15 law-biding and productive life in San Diego, the only home he knows.

16

In other words, for over a year and a half, the government has explicitly and

17 implicitly indicated that it does not believe Mr. Gonzalez was involved in any

18 criminal activity related to the circumstances of his arrest or that he is a safety

19 concern. Accordingly, he has never had the opportunity to confront any potentially

20 incriminating evidence against him because he has never been charged with a

21 crime, in Immigration Court or otherwise. Defendants’ decision to label a DACA

22 recipient an enforcement priority in the absence of any “criminal offense” is

23 therefore an unexplained departure from the DACA Standard Operating

24 Procedures and Defendants’ publicly iterated enforcement priority standards,

25 which they have repeatedly affirmed have not changed for DACA recipients and

26 remain governed by the criteria set forth in DHS’s 2012 DACA Memo.

27

The closest Mr. Gonzalez has come to an opportunity to be heard by a

28 neutral arbiter was at his bond hearing, where the Immigration Judge found him

2
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1 credible and determined that he is not a threat to the public before releasing him on

2 $5,000 bond. And he has since disavowed any wrongdoing in a sworn declaration

3 submitted to this Court, and again in his responses to USCIS’s NOIT.

4 Nevertheless, USCIS—acting as judge and jury—has determined through an

5 informal review that his assertions of innocence are “not credible” and that the

6 “record as a whole”—i.e., his mere presence at the house and unsubstantiated

7 identifications of a person “resembling” him by three of the twelve immigrants

8 allegedly present at the house (but not the other nine)—suffice to label him a

9 criminal. On the basis of this violation of the most basic tenets of due process,

10 USCIS has purported to terminate Mr. Gonzalez’s DACA status and employment

11 authorization, and to deny his renewal application.

12

As explained more fully below, Defendants have violated the DACA Memo

13 and DACA SOP, deviated from their own mandatory policies and public

14 pronouncements regarding enforcement priorities without any reason or

15 explanation, and declared Mr. Gonzalez a criminal through an informal

16 determination that contradicts their own behavior and statements. Defendants’

17 actions violate the APA and the Due Process Clause of the Fifth Amendment. The

18 termination of Mr. Gonzalez’s DACA status and the denial of his renewal

19 application must be declared unlawful and unconstitutional and set aside.

20

INTRODUCTION

21

1. Mr. Gonzalez was born in Mexico and brought to the United States at

22 approximately 8 years old—16 years ago. Since that time, he has never left

23 California, has no criminal history, and has been a productive member of his San

24 Diego community.

25

2. Mr. Gonzalez attended elementary and middle school in San Diego,

26 where he graduated on time from high school in 2011. In January 2013,

27 Defendants granted him permission to live and work lawfully in the United States

28 pursuant to the DACA program. Defendants renewed Mr. Gonzalez’s DACA

3
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1 status in December 2014 until December 22, 2017. Both times, he was subject to

2 rigorous biographic and biometric background checks, and paid $465 fees.

3

3. Prior to receiving DACA status, from 2011 to 2013, Mr. Gonzalez

4 was unable to secure employment because he was unwilling to misrepresent his

5 immigration status. But thanks to his DACA-related employment authorization,

6 Mr. Gonzalez quickly found lawful employment with an airline supply company in

7 2013. He was tasked with stocking food and supplies on commercial flights for

8 American Airlines. In addition to the rigorous vetting process he had undergone to

9 obtain—and then renew—his DACA status and employment authorization, Mr.

10 Gonzalez’s airline industry job required him to meet strict security protocols,

11 including background checks and drug tests. He passed them all.

12

4. On May 6, 2016, Mr. Gonzalez was detained by immigration officers

13 while dog-sitting at a house where a CBP officer later alleged that undocumented

14 immigrants were present. The very next day, CBP issued him a Notice to Appear

15 (“NTA”) in Immigration Court. The NTA’s sole charge was unlawful presence in

16 the United States under Section 212 of the Immigration and Nationality Act

17 (“INA”). See 8 U.S.C. § 1182(a)(6)(A)(i) (“present in the United States without

18 being admitted or paroled”). The NTA did not contain any criminal allegations.

19

5. After two days of questioning, Mr. Gonzalez was virtually ignored for

20 nearly a month in immigration detention. CBP officers apparently lost interest in

21 him and concluded that he was not involved in whatever events they were

22 investigating. Ultimately, an Immigration Judge ordered Mr. Gonzalez released on

23 a bond of only $5,000, after finding that he did not pose a threat to public safety.

24 DHS did not object to or appeal the Immigration Judge’s findings or his decision.

25 Since being released over 19 months ago, Mr. Gonzalez has resumed his life as a

26 law-abiding and productive member of his San Diego community. To this day,

27 Mr. Gonzalez has never been criminally charged or questioned again by any law

28

4
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1 enforcement agency or officer in connection with the events of May 6, 2016. He

2 appeared at every Immigration Court proceeding pursuant to his NTA.

3

6. On May 23, 2016, USCIS issued Mr. Gonzalez a “Notice of Action,”

4 informing him that: “On May 7, 2016, Customs and Border Protection (CBP)

5 issued you a Notice to Appear (NTA). USCIS is notifying you that your deferred

6 action as a childhood arrival and your employment authorization terminated

7 automatically as of the date your NTA [for unlawful presence] was issued.”

8

7. On September 29, 2017, this Court vacated and preliminarily enjoined

9 that automatic termination and ordered Defendants to reinstate Mr. Gonzalez’s

10 DACA status and employment authorization, accept his renewal application, and

11 fully comply with the DACA SOP if they wished to reconsider his DACA status.

12 Any termination decision does not take effect until Defendants prove the

13 termination’s lawfulness to the satisfaction of the Court.

14

8. On November 13, 2017, USCIS issued Mr. Gonzalez a Notice of

15 Intent to Terminate (“NOIT”), explaining that it would not independently assess

16 his DACA eligibility because ICE was litigating removal proceedings against him

17 for unlawful presence. After the Immigration Judge terminated Mr. Gonzalez’s

18 removal proceedings without prejudice, ICE issued a new NTA—again charging

19 nothing but unlawful presence.

20

9. The new NTA preceded Mr. Gonzalez’s response to the NOIT, and

21 therefore indicated Defendants’ pre-judgment of whether Mr. Gonzalez might

22 rightfully be deemed an “enforcement priority.” Tellingly, however, the new NTA

23 still does not contain any criminal allegations.

24

10. Therefore, while Defendants purport to have superficially complied

25 with the DACA SOP by issuing an NOIT, their pre-judgment of the case and their

26 decision to label Mr. Gonzalez an “enforcement priority” even though he has never

27 been charged with or convicted of a crime is a violation of the DACA program’s

28 non-prioritization of immigrants without any criminal history and the APA’s

5
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1 proscriptions against arbitrary and capricious action and unexplained policy

2 changes.

3

11. Moreover, Defendants’ revocation—through an informal review and

4 determination of credibility and criminality—of the rights they granted Mr.

5 Gonzalez to live and work in the United States is a blatant due process violation.

6

12. The timing of Defendants’ purported termination is also telling.

7 While they waited six weeks after the Court issued its Preliminary Injunction (and

8 a year and a half after the incident of May 6, 2016) to issue the bare-bones NOIT,

9 Defendants then issued Mr. Gonzalez’s termination notice only three days after

10 receiving his NOIT response, and just one day before his DACA status was set to

11 expire—in a seemingly pre-judged determination, and in an apparent effort to

12 avoid considering his pending renewal application. As this Court warned, it

13 “seems . . . this situation has been prejudged, and that this [NOIT procedure] is just

14 going to be a pretext to get this guy out of the country, terminate his legal status,

15 and [] do what it wanted to do in the beginning by the initial issuance of the NTA.”

16

13. After growing up and obtaining his education in San Diego, Mr.

17 Gonzalez has been a valued employee and productive member of his community.

18 Defendants’ efforts to strip him of protection from removal from the only country

19 he knows are unlawful and unconstitutional and must be set aside.

20

JURISDICTION AND VENUE

21

14. This Court has jurisdiction pursuant to 28 U.S.C. § 1331.

22

15. This Court has remedial authority under the Declaratory Judgment

23 Act, 28 U.S.C. §§ 2201 and 2202, and the APA, 5 U.S.C. §§ 701-706.

24

16. Venue is proper in the Southern District of California because a

25 substantial part of the events or omissions giving rise to this action occurred in this

26 District. 28 U.S.C. § 1391(e)(1).

27

28

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1

PARTIES

2

17. Mr. Gonzalez is a 24-year-old resident of San Diego, California. He

3 was born in Mexico and brought to the United States in or around 2001, when he

4 was approximately 8 years old. Pursuant to the DACA program, Defendants twice

5 conferred on Mr. Gonzalez the right to live and work in this country—for set

6 periods subject to renewal—after lengthy application processes, rigorous security

7 vetting, and substantial fee payments. He is a valued employee with no criminal

8 history.

9

18. DHS is a cabinet department of the United States federal government

10 with responsibility for, among other things, administering and enforcing the

11 nation’s immigration laws. Its stated mission is to “safeguard the American

12 people, our homeland, and our values.” U.S. Department of Homeland Security, 13 “Our Mission.”1

14

19. USCIS is a federal agency within DHS “that oversees lawful

15 immigration to the United States.” U.S. Citizenship and Immigration Services, 16 “About Us.”2 USCIS administers the DACA program, including collection of

17 forms, documents, and fees; issuance of DACA approval and employment

18 authorization notices; and issuance of termination notices. USCIS previously

19 “automatically” terminated Mr. Gonzalez’s DACA status and EAD without notice

20 or an opportunity to be heard, and now purports to unlawfully and

21 unconstitutionally terminate his DACA status and deny his renewal application.

22

20. ICE is a law enforcement agency within DHS that “enforces federal

23 laws governing border control, customs, trade and immigration to promote

24 homeland security and public safety.” U.S. Immigration and Customs 25 Enforcement, “Who We Are.”3

26

27 1 https://www.dhs.gov/our-mission (last visited Dec. 29, 2017).
28 2 https://www.uscis.gov/aboutus (last visited Dec. 29, 2017). 3 https://www.ice.gov/about (last visited Dec. 29, 2017).
7
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1

21. CBP is a law enforcement agency within DHS that “is charged with

2 keeping terrorists and their weapons out of the U.S. while facilitating lawful

3 international travel and trade.” U.S. Customs and Border Protection, “About 4 CBP.”4 CBP issued Mr. Gonzalez’s initial NTA charging unlawful presence in the

5 United States.

6

22. Defendants Does 1-10 are currently unidentified individuals whose

7 actions, in addition to those of named Defendants, gave rise to Mr. Gonzalez’s

8 claims.

9

STATEMENT OF FACTS

10 Establishment and Terms of the DACA Program

11

23. On June 15, 2012, then-Secretary of Homeland Security Janet

12 Napolitano issued a memorandum establishing the DACA program. See June 15,

13 2012 Memorandum from Janet Napolitano to ICE, CBP, and USCIS, “Exercising

14 Prosecutorial Discretion with Respect to Individuals Who Came to the United 15 States as Children” (“DACA Memo”).5 The DACA Memo explained that the

16 “Nation’s immigration laws . . . are not designed to be blindly enforced without

17 consideration given to the individual circumstances of each case” and that

18 “additional measures are necessary to ensure that our enforcement resources are

19 not expended on [] low priority cases but are instead appropriately focused on

20 people who meet our enforcement priorities.” Its purpose is to protect “certain

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

22 country as home [because] these individuals lacked the intent to violate the law.”

23 A DACA recipient who meets certain objectively verifiable criteria is, by

24 definition, a “low priority case” and does not “meet [DHS’s] enforcement

25 priorities.”

26

27 4 https://www.cbp.gov/about (last visited Dec. 29, 2017).
28 5 https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-
individuals-who-came-to-us-as-children.pdf.
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1

24. Accordingly, Defendants enacted a program of deferred action for

2 individuals who were brought to the United States as children and meet specific

3 criteria. Deferred action is a well-established form of administrative action by

4 which the Executive Branch decides, for humanitarian or other reasons, to refrain

5 from seeking an individual’s removal from the country and authorizes his

6 continued lawful presence for a specified period.

7

25. A recipient of deferred action is eligible to receive employment

8 authorization. 8 C.F.R. § 274a.12(c). The DACA Memo directed USCIS to

9 “accept applications to determine whether [DACA recipients] qualify for work

10 authorization during [their] period of deferred action.”

11

26. President Obama explained that “it makes no sense to expel talented

12 young people, who, for all intents and purposes, are Americans – they’ve been

13 raised as Americans; understand themselves to be part of this country . . . [and]

14 want to staff our labs, or start new businesses, or defend our country.”

15 Accordingly, the President explained that DHS would be “taking steps to lift the

16 shadow of deportation from these young people” and giving them “a degree of

17 relief and hope.” The White House, Office of the Press Secretary, “Remarks by 18 the President on Immigration” (“Obama Remarks”) (June 15, 2012).6

19

27. The DACA Memo established that the following DACA criteria:

20  came to the United States under the age of 16;

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

22 date of the memorandum and was present in the United States on the date of the

23 memorandum;

24  is currently in school, has graduated from high school, has obtained a general

25 education development certificate, or is an honorably discharged veteran of the

26 Coast Guard or Armed Forces of the United States;

27

28 6 https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-
president-immigration.
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1  has not been convicted of a felony offense, a significant misdemeanor offense,

2 or multiple misdemeanor offenses, and does not otherwise pose a threat to national

3 security or public safety; and

4  is not above the age of 30.

5

28. The DACA Memo also directed that “[n]o individual should receive

6 deferred action . . . unless they first pass a background check.”

7

29. USCIS was tasked with implementing the DACA program, including

8 collection of forms, documents, and fees and issuance of DACA approval and

9 employment authorization notices. Defendants promulgated a public policy

10 document detailing how the DACA program operates. See USCIS, “DACA 11 Frequently Asked Questions” (“DACA FAQ”).7

12

30. Defendants also developed non-discretionary internal policies for all

13 government personnel implementing the DACA program, known as the DACA

14 Standard Operating Procedures, or “SOP.”

15

31. Until the program’s rescission in September 2017, a DACA recipient

16 could apply for renewal every 2 years. A renewal applicant had to reapply, pass

17 another round of background checks, and pay another $495. Renewal requires that

18 the recipient “met the guidelines for consideration of Initial DACA” and:

19  did not depart the United States on or after August 15, 2012 without advance

20 parole;

21  has continuously resided in the United States since submitting his most recent

22 request for DACA that was approved up to the present time; and

23  has not been convicted of a felony, a significant misdemeanor, or three or more

24 misdemeanors, and does not otherwise pose a threat to national security or public

25 safety.

26

27

28 7 https://www.uscis.gov/archive/frequently-asked-questions (updated Oct. 6, 2017;
last visited Dec. 29, 2017).
10
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1

32. Since DACA’s inception, these objective criteria have served as the

2 determinative basis for USCIS’s individual DACA decisions. See Texas v. U.S.,

3 809 F.3d 134, 171-76 (5th Cir. 2015).

4

33. In 2015, USCIS further screened all individuals who had been granted

5 DACA status “to identify records that contained information indicating known or

6 suspected gang association.” Apr. 17, 2015 Letter from USCIS Director Leon

7 Rodriguez to Senate Judiciary Chairman Charles E. Grassley (“Rodriguez 8 Letter”).8

9

34. A DACA recipient “may obtain employment authorization from

10 USCIS provided [he or she] can demonstrate an economic necessity for

11 employment.” DACA FAQ, Q4. Upon approval, the recipient receives an

12 Employment Authorization Document (“EAD”).

13

35. “An individual who has received deferred action is authorized by

14 DHS to be present in the United States, and is therefore considered by DHS to be

15 lawfully present during the period deferred action is in effect.” DACA FAQ, Q1.

16

36. DACA determinations are separate and independent from any removal

17 proceedings in Immigration Court. Even an individual who (1) is in removal

18 proceedings, (2) has a final order of removal, or (3) has a voluntary departure order

19 is eligible for DACA status. See DACA FAQ, Q10. Indeed, the DACA SOP

20 requires review of DACA eligibility even for individuals who were removed

21 pursuant to a final removal order but illegally reentered the country.

22 Rescission of the DACA Program

23

37. From January to September 5, 2017, the Trump administration

24 continued to process and grant new DACA applications, renewal applications, and

25 EADs.

26

38. On September 5, DHS announced a plan to phase out the DACA

27 program over a two-year period. DACA recipients whose statuses were set to

28 8 https://www.judiciary.senate.gov/imo/media/doc/2015-04-
17%20USCIS%20to%20CEG%20(DACA%20for%20Gang%20Member).pdf.
11
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1 expire before March 6, 2018 were permitted to apply for renewal by October 5,

2 2017. See Sept. 5, 2017 Memorandum from Elaine C. Duke to ICE, CBP, and

3 USCIS, “Memorandum on Rescission of Deferred Action for Child Arrivals” 4 (“Duke Memo”).9

5

39. Before and after the rescission, the administration made clear that the

6 rules governing DACA recipients had not changed, and that DACA recipients

7 would not be deemed enforcement priorities in a manner inconsistent with the

8 DACA program. Indeed, on April 21, 2017, President Trump—using the common

9 term for undocumented immigrants brought to the United States as children—

10 assured that the administration is “not after the dreamers.” He was asked, “that’s

11 going to be the policy of your administration to allow the dreamers to stay?” The

12 President responded unequivocally: “Yes. Yes. That’s our policy.” He

13 elaborated: “The dreamers should rest easy. OK? I’ll give you that. The dreamers

14 should rest easy.” Associated Press, “Transcript of AP Interview with Trump” 15 (“Trump Interview”) (published Apr. 23, 2017).10

16

40. On February 20, 2017, then-Secretary of Homeland Security (and

17 current White House Chief of Staff) John Kelly issued a memorandum setting forth

18 DHS’s immigration enforcement priorities. See Feb. 20, 2017 Memorandum from

19 John Kelly to ICE, CBP, and USCIS, “Enforcement of the Immigration Laws to 20 Serve the National Interest” (“Kelly Memo”).11 The Kelly Memo “immediately

21 rescinded” “all existing conflicting directives, memoranda, or field guidance

22 regarding the enforcement of our immigration laws and priorities for removal,” but

23 specifically exempted the June 15, 2012 DACA Memo.

24

41. The Kelly Memo prioritizes for removal non-DACA recipients who

25 merely “have been charged with any criminal offense that has not been resolved”

26
27 9 https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca. 10 https://www.apnews.com/c810d7de280a47e88848b0ac74690c83.
28 11 https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcementof-the-Immigration-Laws-to-Serve-the-National-Interest.pdf.
12
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1 or allegedly “committed acts which constitute a chargeable criminal offense.” But

2 by the Memo’s own terms, the enforcement priority for individuals subject to an

3 allegation or suspicion of wrongdoing without a conviction or criminal charge does

4 not apply to DACA recipients.

5

42. On February 21, 2017, DHS again unequivocally stated that the Kelly

6 Memo’s enforcement priorities have no bearing on DACA recipients:

7

Q22: Do these memoranda affect recipients of Deferred

Action for Childhood Arrivals (DACA)?

8

A22: No.

9 DHS, “Q&A: DHS Implementation of the Executive Order on Enhancing Public 10 Safety in the Interior of the United States (Feb. 20, 2017).12

11

43. On June 15, 2017, DHS issued more public guidance, explaining that

12 “DACA recipients will continue to be eligible as outlined in the June 15, 2012

13 memorandum.” DHS, “Frequently Asked Questions: Rescission of Memorandum

14 Providing for Deferred Action for Parents of Americans and Lawful Permanent 15 Residents (‘DAPA’)” (June 15, 2017).13

16

44. Following the announcement of the DACA rescission plan, the

17 administration explained that “[d]uring this six-month time, there are no changes

18 that are being made to the program at this point.” The White House, “Press

19 Briefing by Press Secretary Sarah Sanders and Homeland Security Advisor Tom

20 Bossert” (Sept. 8, 2017).

21

45. And again on October 3, 2017, DHS assured the Senate Judiciary

22 Committee regarding its enforcement priorities: “We rely on guidance that was put

23 in place in 2012 when the DACA program was initiated. That’s available on

24 USCIS’s website and will tell you what the priorities are for Immigration and

25 Customs Enforcement and what they are for the Department at large. Those

26
27 12 https://www.dhs.gov/news/2017/02/21/qa-dhs-implementation-executive-orderenhancing-public-safety-interior-united-states.
28 13 https://www.dhs.gov/news/2017/06/15/frequently-asked-questions-rescissionmemorandum-providing-deferred-action-parents.
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1 priorities have not changed.” Testimony of Michael Dougherty, Assistant

2 Secretary of DHS at 01:10:20, “Oversight of the Administration’s Decision to End

3 Deferred Action for Childhood Arrivals,” available at https://bit.ly/2fzVNEY; id.

4 at 01:11:00 (the Kelly Memo “carved out” DACA from its enforcement priorities;

5 “I would tell you in good faith and complete confidence that we are relying on the

6 same priorities that were in place in 2012 and we have not added to them for this 7 population.”).14

8

46. In short, DACA recipients who meet the program’s objectively

9 verifiable criteria—i.e., have no disqualifying criminal convictions and do not pose

10 a threat to national security or public safety—remain “low priority cases.” The

11 government has issued no guidance indicating a change in that position.

12 DACA Application and Renewal Process

13

47. A DACA applicant had to submit to USCIS: (1) Form I-821D,

14 Consideration of Deferred Action for Childhood Arrivals; (2) Form I-765,

15 Application for Employment Authorization; (3) Form I-765WS, Worksheet

16 establishing economic need for employment; and (4) extensive documentation to

17 establish that he or she meets the DACA Memo’s eligibility criteria and USCIS’s

18 implementing criteria. See DACA FAQ, Q7, Q28-Q41.

19

48. A DACA applicant had to “undergo biographic and biometric

20 background checks before USCIS [would] consider [his or her] request.” DACA

21 FAQ, Q22. This involved checking biographic and biometric information “against

22 a variety of databases maintained by DHS and other federal government agencies.”

23 DACA FAQ, Q23.

24

49. To be considered, an applicant also paid a $495 fee, which “cannot be

25 waived.” USCIS, “I-821D, Consideration of Deferred Action for Childhood 26 Arrivals.”15

27 14 https://www.judiciary.senate.gov/meetings/oversight-of-the-administrations-
28 decision-to-end-deferred-action-for-childhood-arrivals. 15 https://www.uscis.gov/i-821d (updated Oct. 6, 2017; last visited Dec. 29, 2017).
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1

50. A DACA renewal applicant had to submit the same forms, undergo

2 another round of biographic and biometric background checks, and pay another 3 $495 fee. USCIS, Form I-821D, OMB No. 1615-0124.16

4

51. If the background checks or other information indicate that the

5 applicant’s presence “threatens public safety or national security,” deferred action

6 will be denied absent “exceptional circumstances.” Indicators of such a threat

7 include gang membership, participation in certain criminal activities, or

8 participation in activities that threaten the United States. DACA FAQ, Q65.

9

52. In 2015, USCIS further screened all individuals who had been granted

10 DACA status “to identify records that contained information indicating known or

11 suspected gang association.” Apr. 17, 2015 Letter from USCIS Director Leon 12 Rodriguez to Senate Judiciary Chairman Charles E. Grassley.17

13

53. Even an individual (1) in removal proceedings, (2) with a final order

14 of removal, or (3) with a voluntary departure order is eligible for DACA status.

15 See DACA FAQ, Q7.

16 DACA Termination Policies

17

54. The DACA SOP governs USCIS’s implementation of the DACA

18 program. It incorporates a 2011 USCIS Memo and the relevant procedures set

19 forth therein.

20

55. Under the DACA SOP, “[i]f disqualifying criminal offenses or public

21 safety concerns . . . arise after” DACA status is granted, USCIS must issue the

22 recipient a “Notice of Intent to Terminate” (“NOIT”) and “allow [him or her] 33

23 days to file a brief or statement contesting the grounds cited” therein. DHS,

24 “National Standard Operating Procedures, Deferred Action for Childhood

25 Arrivals” (“DACA SOP”), Chapter 14 (Aug. 28, 2013).

26
27 16 https://www.uscis.gov/system/files_force/files/form/i-821dinstr.pdf?download=1 (archived content).
28 17 https://www.judiciary.senate.gov/imo/media/doc/2015-0417%20USCIS%20to%20CEG%20(DACA%20for%20Gang%20Member).pdf.
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1

56. The exception to this rule is when USCIS follows a specific protocol

2 for cases involving Egregious Public Safety (“EPS”) concerns. If USCIS suspects

3 that a particular DACA recipient poses an EPS concern, it must send the case to

4 the Background Check Unit (“BCU”) DACA Team for consideration. If BCU

5 suspects an EPS concern, it must refer the case to ICE to make a determination.

6 DACA SOP, Chapter 14; Nov. 7, 2011 USCIS Policy Memorandum (“USCIS 7 Memo”) at 3.18

8

57. “All EPS cases must be referred to ICE” for “an opportunity to decide

9 if, when, and how to issue an NTA . . . . USCIS will not issue an NTA in these

10 cases if ICE declines to issue an NTA. . . . This referral process is utilized in order

11 to give ICE the opportunity to determine the appropriate course of action before

12 USCIS adjudicates the case.” USCIS Memo at 4. If, and only if, ICE issues an

13 NTA on the basis of an EPS concern, USCIS may then terminate an individual’s

14 DACA status without providing prior notice or an opportunity to be heard. ICE’s

15 issuance of an NTA after an EPS referral is meant to allow USCIS to “proceed

16 with adjudication, . . . taking into account the basis for the NTA.” USCIS Memo at

17 4.

18

58. If ICE issues an NTA based on an EPS concern, USCIS will terminate

19 DACA status “automatically,” without an NOIT or opportunity to respond.

20 Neither the DACA SOP nor the USCIS Memo authorizes termination without

21 notice when CBP issues an NTA or in the absence of an EPS determination by

22 ICE. In such instances, an NOIT and 33 days to respond are required. An EPS

23 referral does not require being charged or convicted of any crime. It requires only

24 “information indicat[ing] the alien is under investigation for, has been arrested for

25 (without disposition), or has been convicted of” one of a list of crimes, defined in

26 Section 101 of the INA. USCIS Memo at 3.

27 18
28 https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_M emoranda/NTA%20PM%20%28Approved%20as%20final%2011-7-11%29.pdf.
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1

59. If ICE makes an EPS determination, USCIS affords a DACA recipient

2 no opportunity to contest the grounds.

3

60. An individual who is not suspected of being an EPS concern—but

4 who has committed a “disqualifying criminal offense” or whose continuing DACA

5 status is “not consistent with [DHS’s] enforcement priorities”—must be issued an

6 NOIT with 33 days to “file a brief or statement contesting the grounds cited in the”

7 NOIT.

8 The Government’s Representations to DACA Applicants and Recipients

9

61. DACA status confers numerous benefits on a recipient as part of

10 Defendants’ recognition that the United States “continue[s] to benefit . . . from the

11 contributions of those young people who have come forward and want nothing

12 more than to contribute to our country and our shared future.” Dec. 30, 2016

13 Letter from then-Secretary of Homeland Security Jeh Charles Johnson to 14 Representative Judy Chu (“Johnson Letter”) at 2.19

15

62. In 2016, over 100 members of Congress sought confirmation that

16 DACA applicants’ personal identifying information would be safeguarded. DHS

17 affirmed that its “representations” that such information would not be used for

18 “other immigration-related purposes . . . must continue to be honored.”

19 Defendants understand that “DACA applicants most assuredly relied” on their

20 representations. Dec. 30, 2016 Johnson Letter at 1-2.

21

63. More broadly, the DACA SOP codifies Defendants’ commitment to

22 the DACA program, effectively limiting the exercise of agency discretion with

23 “nearly 150 pages of specific instructions” for granting, denying, and terminating

24 deferred action. Texas v. U.S., 809 F.3d at 173 (citing the DACA SOP as evidence

25 that DACA is not a truly discretionary program), aff’d by an equally divided Court,

26 136 S. Ct. 2271 (2016).

27 19
28 https://chu.house.gov/sites/chu.house.gov/files/documents/DHS.Signed%20Respon se%20to%20Chu%2012.30.16.pdf.
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1

64. Executive and Legislative Branch officials from both political parties

2 have reinforced the promises of the DACA program. They have publicly

3 acknowledged that hundreds of thousands of DACA applicants and recipients have

4 relied on Defendants to (1) honor the benefits conferred by DACA and (2)

5 implement and enforce it without policies or actions that are arbitrary, capricious,

6 an abuse of discretion, contrary to internal policies, or unconstitutional.

7  In January 2017, Speaker of the House Paul Ryan said that the government

8 must ensure “that the rug doesn’t get pulled out from under” DACA recipients and

9 their families, because they have “organize[d] [their] li[ves] around” the DACA

10 program. CNN, “Transcripts: Town Hall Meeting with House Speaker Paul Ryan” 11 (Jan. 12, 2017).20

12  In February 2017, Arizona Congressman Raul Grijalva called on the

13 government to “honor its word to protect” those who came forward “expecting”

14 the government to uphold its “commitment.” Congressional Progressive Caucus,

15 “Congressional Progressive Caucus Leaders Respond to ICE Arrest of DACA 16 Recipient” (Feb. 16, 2017).21

17  In March 2017, then-DHS Secretary Kelly reaffirmed that DACA status “is a

18 commitment . . . by the government towards the DACA person.” Ted Hesson and

19 Seung Min Kim, “Wary Democrats Look to Kelly for Answers on Immigration,” 20 Politico (Mar. 29, 2017).22

21  And in April 2017, President Trump reiterated that “dreamers should rest easy.”

22 Apr. 21, 2017 Trump Interview.

23

65. Defendants’ reassurances that no changes were being made to the

24 DACA program during its wind-down bolstered the mutual understanding that

25

26 20 https://transcripts.cnn.com/TRANSCRIPTS/1701/12/se.01.html. 27 21 https://cpc-grijalva.house.gov/press-releases/congressional-progressive-caucus-
leaders-respond-to-ice-arrest-of-daca-recipient/. 28 22 https://www.politico.com/story/2017/03/wary-dems-look-to-kelly-for-answers-
on-immigration-236673.
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1 DACA confers Constitutionally significant benefits in the form of the right to

2 lawfully live and work in the United States.

3 Benefits Conferred by Defendants on DACA Recipients

4

66. DACA status confers numerous benefits on a recipient. Chief among

5 them is USCIS’s explanation that a DACA recipient “is authorized by DHS to be

6 present in the United States, and is therefore considered by DHS to be lawfully

7 present during the period deferred action is in effect.” DACA FAQ, Q1; see

8 Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053, 1058-59 (9th Cir. 2014)

9 (“DHS considers DACA recipients not to be unlawfully present in the United

10 States because their deferred action is a period of stay authorized by the Attorney

11 General.”) (citing 8 U.S.C. § 1182(a)(9)(B)(ii) and 8 C.F.R. § 214.14(d)(3)); Texas

12 v. U.S., 809 F.3d at 148 (“[L]awful presence” has “significant legal

13 consequences.”).

14

67. Because DACA recipients are lawfully present, DHS and USCIS have

15 directed ICE and CBP “to prevent qualifying individuals from being apprehended,

16 placed into removal proceedings, or removed.” DACA FAQ, Q9.

17

68. In the course of Mr. Gonzalez’s removal proceedings, ICE explained

18 in open court that DACA is “permission” to live in the United States.

19

69. DACA recipients are also eligible for a DACA-specific EAD “for the

20 period of deferred action,” for which they would otherwise be ineligible. DACA 21 FAQ, Q1; see 8 C.F.R. § 274a.12, Category (c)(33).23

22

70. DACA recipients may apply for certain federal public benefits for

23 which they would otherwise be ineligible, including Social Security retirement

24 benefits, Social Security disability benefits, and Medicare Part A health insurance

25 benefits. See 8 U.S.C. § 1611(b)(2)-(3). They may also be eligible for state public

26

27 23 https://www.uscis.gov/working-united-states/information-employers-
28 employees/employer-information/employment-authorization (updated Oct. 24,
2017; last visited Dec. 29, 2017).
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1 benefits, including a driver’s license and unemployment insurance. See 8 U.S.C. §

2 1621(d); accord Texas v. U.S., 809 F.3d at 148.

3

71. DACA recipients, by virtue of obtaining Social Security Numbers, are

4 also afforded ancillary benefits that are typically unavailable or difficult to obtain

5 for undocumented immigrants, including opening a bank account, obtaining a

6 credit card, starting a business, purchasing a home or car, and obtaining financial

7 aid for higher education.

8

72. DACA recipients do not accrue time for unlawful presence for

9 admissibility purposes under 8 U.S.C. § 1182(a)(9)(B)(i). See DACA FAQ, Q5.

10 And—prior to a September 5 change in policy regarding advance parole—for

11 certain humanitarian, educational, and employment purposes, recipients could

12 briefly leave the country and legally return, a benefit that Defendants do not afford

13 to those they does not deem lawfully present. See DACA FAQ, Q57.

14

73. In short, “lawful presence removes the categorical bar” to certain

15 public benefits and participation in several crucial elements of social, civic, and

16 economic life in the United States. Texas v. U.S., 809 F.3d at 148.

17

74. In other words, Defendants have taken steps to “lift the shadow of

18 deportation from these young people” and given them “a degree of relief and

19 hope.” June 15, 2012 Obama Remarks. As a result of DACA, hundreds of

20 thousands of Dreamers “have been able to enroll in colleges and universities,

21 complete their education, start businesses that help improve our economy, and give

22 back to our communities as teachers, medical professionals, engineers, and

23 entrepreneurs—all on the books.” Dec. 30, 2016 Johnson Letter at 2.

24

75. Of course, these benefits were not unilaterally conferred. Defendants

25 granted these benefits in exchange for recipients’ personal, financial, and criminal

26 history information and substantial fee payments, and the expectation of

27 consideration for renewal.

28

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1

76. These benefits, once conferred—and consistently reaffirmed by

2 Defendants’ subsequent policies and public statements—have created a reasonable

3 expectation that Defendants would abide by the terms of the DACA program and

4 would not reverse course on DACA recipients’ status as low priority cases or

5 terminate or deny renewal without disqualifying criminal offenses or stated public

6 safety concerns.

7 Mr. Gonzalez’s DACA Status and Employment Authorization

8

77. Mr. Gonzalez graduated on time from Altus Charter High School in

9 San Diego in 2011. Despite the support of his family and friends, he was unable to

10 secure lawful employment from 2011 to 2013 because he was unwilling to

11 misrepresent his immigration status to prospective employers.

12

78. In 2013, Mr. Gonzalez learned of the DACA program. He expended

13 significant time and resources filling out the USCIS forms; gathering the necessary

14 supporting evidence and documentation; attending a biometrics appointment where

15 his photograph and fingerprints were taken; and paying the $465 filing fee.

16

79. Mr. Gonzalez provided Defendants his birth certificate; school records

17 from childhood to graduation, including report cards and certificates of

18 achievement; several years of his family’s tax returns; and his prior addresses, all

19 of which are in San Diego.

20

80. Ultimately, Defendants granted Mr. Gonzalez DACA status and

21 employment authorization on January 22, 2013, valid until January 21, 2015.

22

81. In 2014, Mr. Gonzalez timely applied for renewal of his DACA status

23 and EAD, again complying with the paperwork and biographic and biometric

24 background checks, and paying the same substantial fee. Upon review of these

25 materials, Defendants granted Mr. Gonzalez’s renewal application, deeming him

26 lawfully present and authorized to work in the United States until December 22,

27 2017 with the expectation of appropriate consideration for renewal.

28

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1

82. In 2015, USCIS further screened all individuals who had been granted

2 DACA status “to identify records that contained information indicating known or

3 suspected gang association.” See Rodriguez Letter, supra.

4

83. Defendants therefore confirmed, on at least three separate occasions,

5 that Mr. Gonzalez is deserving of DACA status and its benefits and does not pose a

6 threat to national security or public safety.

7

84. They reaffirmed these determinations in the course of this litigation,

8 stating on December 8, 2017 that they “do not take issue with [Mr. Gonzalez’s]

9 ability to meet the DACA guidelines going forward.”

10 Mr. Gonzalez’s Employment

11

85. With EAD in hand, Mr. Gonzalez sought and quickly obtained

12 employment in 2013. He was hired to perform food and equipment setup and

13 stocking for Gate Gourmet, a provider of airline catering and provision services.

14 Because he was preparing trays that were carried on commercial aircraft, Mr.

15 Gonzalez’s employer required that he pass additional security tests, including

16 interviews, drug tests, security clearance protocols, and EAD verification. He

17 passed all of them.

18

86. Mr. Gonzalez was a dutiful and trusted employee for nearly three

19 years. He was primarily responsible for provisioning seven flights, five nights a

20 week for American Airlines, but was often tasked with helping others who were

21 responsible for Canada Air, Delta, Hawaiian, United, and US Airways. From the

22 time he was hired to the time of his inexplicable detention, Mr. Gonzalez worked

23 five nights a week from approximately 7:00 p.m. to 4:00 a.m. Upon coming home

24 to his shared apartment, he often slept much of the day before returning to work in

25 the evening.

26

87. Mr. Gonzalez was saving up to buy his own car, but after he was

27 detained, he was forced to divert those savings to securing his release.

28

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1

88. When Mr. Gonzalez was released from his month-long detention, he

2 voluntarily informed Gate Gourmet that his EAD had been terminated. He had to

3 be let go, but his employer asked him to reapply when his EAD or other

4 employment authorization was restored.

5

89. Mr. Gonzalez’s employers have praised his “work ethic, dedication,

6 and consistency.” One of them wrote to USCIS to “recommend that he continue to

7 be provided the opportunity to be gainfully employed here” because he “would

8 [be] highly recommended [] to any future employer.”

9 Mr. Gonzalez’s Detention and Release

10

90. On May 6, 2016, an acquaintance known to Mr. Gonzalez only as

11 “Adolfo” asked him to come to his home and care for his dogs for the afternoon

12 while Adolfo was out of town. Mr. Gonzalez agreed, having previously done so

13 without any issues. He arrived at Adolfo’s home sometime between 11:30 a.m.

14 and 1:00 p.m.

15

91. Mr. Gonzalez entered the unlocked home and was surprised to

16 discover that two people were already there. One was a male acquaintance whom

17 Mr. Gonzalez recognized as “Romeo,” and the other was a woman he did not

18 know.

19

92. Having fed and cleaned up after the dogs, and realizing that others

20 were there to look after them, Mr. Gonzalez considered leaving. But he was

21 without transportation.

22

93. For the rest of the afternoon, Mr. Gonzalez kept to himself, passing

23 the time watching movies and television while he waited for his ride to his regular

24 early-evening-to-early-morning work shift.

25

94. At approximately 4:00 p.m., a law enforcement officer knocked on the

26 front door and asked to enter the house. Mr. Gonzalez felt it was inappropriate to

27 allow anyone into someone else’s home without a search warrant. He said so to

28

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1 the officers, who stopped trying to enter the house and stopped speaking to him.

2 But Mr. Gonzalez noticed that the officers continued to surround the house.

3

95. About an hour later, a man Mr. Gonzalez did not recognize arrived at

4 the house with the law enforcement officers. He identified himself as the owner

5 and asked Mr. Gonzalez to exit.

6

96. By that time, Mr. Gonzalez knew he would soon have to leave for

7 work. His manager had an unforgiving policy toward tardiness, and Mr. Gonzalez

8 believed he would have little difficulty resolving the situation with law

9 enforcement and being allowed to go to work—because he had DACA status and

10 had done nothing wrong.

11

97. Mr. Gonzalez (and Romeo) exited the house. Relying on Defendants’

12 assurances—publicly and in his DACA approval notices—that DACA status

13 barred his apprehension as long as he had not committed any crimes (which he had

14 not) Mr. Gonzalez informed the officers of his DACA status and of his need to get

15 to work.

16

98. Mr. Gonzalez had his valid DACA EAD with C-33 classification with

17 him. He handed it to one of the officers for verification.

18

99. After that officer walked away, a second officer told Mr. Gonzalez

19 that he would be detained. Mr. Gonzalez asked why, to which the officer replied

20 that he was in the country illegally and his DACA status did not matter. A third

21 officer abruptly grabbed Mr. Gonzalez by the arm and handcuffed him.

22

100. Romeo was taken away in handcuffs, and the officer who threatened

23 Mr. Gonzalez with detention and the officer who handcuffed him went inside the

24 house.

25

101. At no point did any officer indicate that their investigation targeted

26 Mr. Gonzalez.

27

102. Mr. Gonzalez sat on the front porch—handcuffed—unable to see

28 inside the house. He heard no sounds coming from inside the house. He did not

24
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1 see or hear anyone else go in or out of the house. Within a couple of minutes—

2 without further questioning or explanation—the officer who was checking Mr.

3 Gonzalez’s immigration status put him in a police car and took him away. Mr.

4 Gonzalez did not see that officer speak to or engage with anyone who went inside

5 the house.

6

103. Mr. Gonzalez was taken to a detention facility, where he was

7 questioned by a handful of officers, one at a time. They did not ask any specific or

8 pointed questions. Mr. Gonzalez repeatedly answered to the effect of, “I don’t

9 understand why I’m being detained.”

10

104. During the questioning, officers threatened to arrest his (unspecified)

11 family members. These threats were not based on any allegations of wrongdoing.

12

105. Seeing and fearing the officers’ hostility and willingness to threaten

13 him and his family for reasons he did not understand, Mr. Gonzalez handed over

14 his phone.

15

106. The officers looked through the contacts and communications, asking

16 who certain names were. Mr. Gonzalez gave them the boring answers: “my soccer

17 buddy,” “my ex-girlfriend,” “my brother,” and so on. He saw the disappointment

18 in the officers’ faces as they scoured the phone’s contents.

19

107. For two or three days, Mr. Gonzalez was denied food, deliberately

20 woken up with loud bangs by officers (who laughed at his shocked fear), and

21 threatened with arrest of his family.

22

108. After that, the officers apparently lost interest in Mr. Gonzalez.

23

109. He was transferred to a second facility. For approximately a week he

24 was ignored. No one came to question him, and his requests for an explanation or

25 right to call his family simply went unanswered.

26

110. Subsequently, Mr. Gonzalez was transferred to a third facility, where

27 he was finally permitted to contact his family after approximately ten days in

28 detention.

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1

111. For the final three weeks or more of Mr. Gonzalez’s detention, law

2 enforcement officers continued to ignore him.

3

112. The questioning ceased entirely. After the initial two days of threats,

4 abuse, and unsubstantiated accusations, the officers apparently concluded what Mr.

5 Gonzalez told them all along: that he had no part in the events at Adolfo’s house

6 that concerned them and was not a person of interest.

7

113. On June 1, 2016—nearly a month after his unwarranted and unlawful

8 detention—Immigration Judge McSeveney ordered Mr. Gonzalez released from

9 custody on a mere $5,000 bond. Judge McSeveney fond him credible and stated

10 that Mr. Gonzalez was not a danger to the public.

11

114. DHS did not object to the Immigration Court’s findings or decision

12 and waived appeal.

13

115. Mr. Gonzalez was finally released on June 3, 2016.

14

116. Mr. Gonzalez has not been questioned or investigated since. Indeed,

15 he has not had a single run-in with law enforcement before or after May 6, 2016.

16

117. On May 7, 2016 (the day after Mr. Gonzalez’s arrest), CBP agent

17 Andrew Bolton issued DHS Form I-213, “Record of Deportable/Inadmissible

18 Alien.” It affirms Mr. Gonzalez’s lack of a criminal record (“None Known”) and

19 gives a narrative of the events of May 6. It alleges that law enforcement officers

20 were “relayed” information that at around 8:30 a.m. (several hours before Mr.

21 Gonzalez arrived at the house) a male individual escorted five individuals who

22 “appeared” to have been “recently smuggled into the United States” into the house.

23 The narrative affirms the presence of Roman Rodriguez (“Romeo”) at the house

24 when officers arrived at approximately 4:20 p.m., and also describes another “male

25 individual, later identified to be the dweller of the detached garage, [who] exited

26 the property through the rear of the house towards an alley.”

27

118. The I-213 describes Mr. Gonzalez as “nervous” when several law

28 enforcement officers descended on him. Among other inaccuracies, it mistakenly

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1 indicates that Mr. Gonzalez told the officers it was up to his sister (who has never

2 had any connection to the house or the circumstances of this case) to give

3 permission to enter the house.

4

119. The narrative affirms that the door to the house was left unlocked and

5 that Mr. Gonzalez “did not even have the key to the property.”

6

120. While the I-213 states that Mr. Gonzalez was “booked for

7 Administrative Alien Smuggling” and was “being processed for removal

8 proceedings,” the May 7, 2016 NTA commencing those proceedings did not

9 charge alien smuggling—the sole stated basis for removal was unlawful presence.

10

121. DHS Form I-831, “Report of Investigation,” also prepared on May 7,

11 2016, details incriminating statements extracted in the course of interviews with

12 everyone encountered at the house that day. Tellingly, although it indicates what

13 the other undocumented immigrants said to incriminate themselves in their

14 interviews, it says nothing about any derogatory information learned in the course

15 of interviewing Mr. Gonzalez, who made every effort to cooperate with the

16 officers and even turned over his phone to them.

17

122. Pursuant to a Freedom of Information Act request submitted by Mr.

18 Gonzalez on July 19, 2017, on December 26, 2017 (after the second purported

19 termination of Mr. Gonzalez’s DACA status) ICE provided more records created

20 contemporaneous to Mr. Gonzalez’s detention. Those records:

21  contain the hand-written notations “No crim” and “First imm app”;

22  under the “Event/Incident Information” heading, describe the “Event Type” as

23 “Administrative Non-Criminal Individual”;

24  under the “Subject Information” heading, describe Mr. Gonzalez’s “Priority” as

25 “N/A” and his “Criminal Type” as “N/A.”

26 USCIS’s Automatic Termination of Mr. Gonzalez’s DACA Status and EAD

27

123. On May 7, 2016—the day after Mr. Gonzalez’s arrest—CBP issued

28 him an NTA. Its sole charge was that Mr. Gonzalez is unlawfully present in the

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1 United States under Section 212 of the INA, 8 U.S.C. § 1182(a)(6)(A)(i). The

2 NTA made no other allegations.

3

124. On May 23, 2016, USCIS sent Mr. Gonzalez a “Notice of Action,”

4 explaining that: “On May 7, 2016, Customs and Border Protection (CBP) issued

5 you a Notice to Appear (NTA). USCIS is notifying you that your deferred action

6 as a childhood arrival and your employment authorization terminated automatically

7 as of the date your NTA [for unlawful presence] was issued.”

8

125. Because this purported automatic termination has no basis in the

9 DACA SOP, see supra ¶¶ 54-60, it violates the APA.

10

126. This Court vacated and preliminarily enjoined the termination as

11 violating the DACA SOP and the APA. In so doing, the Court held that Mr.

12 Gonzalez

13

“will suffer significant irreparable harm in the absence of

14

an injunction by losing his DACA status and the ability

15

to apply for renewal of that status. The potential harm

16

caused by Defendants’ conduct includes the loss of

17

employment, a core benefit under DACA. The

18

deprivation of employment impacts Plaintiff’s ability to

19

financially provide for himself and his family. The loss

20

of DACA status also undermines one’s sense of well-

21

being and subjects Plaintiff to a constant threat of

22

apprehension and possible removal from the only country

23

he has called home.”

24

127. The Court ordered Defendants to reinstate Mr. Gonzalez’s DACA

25 status and EAD and to “fully comply with the DACA SOP should Defendants elect

26 to reconsider Plaintiff’s DACA status.” The Court also required Defendants to

27 accept (and presumably fairly consider) Mr. Gonzalez’s DACA renewal

28 application.

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1

128. The Court’s Preliminary Injunction “order is to remain in effect

2 pending further Order of this court.”

3

129. Defendants must prove the termination’s lawfulness to the satisfaction

4 of the Court, as the harms flowing from the initial unlawful termination have not

5 abated.

6

130. With his current DACA status set to expire on December 22, 2017,

7 Mr. Gonzalez submitted a timely DACA renewal application on October 4, 2017.

8

131. Following a Master Calendar Hearing on November 16, 2017, San

9 Diego Immigration Judge Law terminated Mr. Gonzalez’s removal proceedings

10 without prejudice.

11 The NOIT Process

12

132. On November 13, 2017, USCIS issued Mr. Gonzalez a Notice of

13 Intent to Terminate his DACA status. The NOIT provided Mr. Gonzalez 33 days

14 to “submit any evidence that you feel will overcome the grounds for termination.”

15

133. The NOIT explained: “Since DHS has determined that you are an

16 enforcement priority and ICE has informed USCIS that it is actively pursuing your

17 removal, USCIS will not contemporaneously conclude that removal action should

18 continue to be deferred in your case.”

19

134. The NOIT did not provide any facts in support of the sudden

20 “enforcement priority” assertion. Nor did it cite to any new DHS policy indicating

21 that merely being in removal proceedings for unlawful presence made a DACA

22 recipient an “enforcement priority” rather than a “low priority case” in the absence

23 of a “disqualifying criminal offense” or public safety concern.

24

135. Through his counsel, Mr. Gonzalez responded to the NOIT by

25 explaining that he continues to meet all of the objective DACA eligibility

26 criteria—including Defendants’ determination that he does not pose a threat to

27 national security or public safety—which have governed USCIS’s DACA

28

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1 determinations for over five years, and formed the basis for his two previous

2 DACA grants.

3

136. The response went on to explain that ICE’s litigation of removal

4 proceedings for unlawful presence against a DACA recipient was not a valid basis

5 for USCIS to terminate DACA under the SOP, which requires USCIS to consider

6 eligibility for individuals in removal proceedings and with final orders of removal.

7 In short, he explained that “since DACA’s inception, the litigation of removal

8 proceedings by ICE has never been a bar to USCIS’s adjudication and approval of

9 DACA,” and that termination on that basis would therefore violate the APA.

10 “Consistent with these policies and practices, Mr. Gonzalez respectfully

11 request[ed] that USCIS exercise its independent discretion in this case and

12 continue its deferral of [his] removal.”

13

137. While the NOIT did not give any factual predicate or cite any reversal

14 in policy or guidance in support of the notion that Mr. Gonzalez is now an

15 “enforcement priority,” Mr. Gonzalez’s response posited that the only conceivable

16 basis for such an assertion was his May 6, 2016 arrest, which never led to the filing

17 of any criminal charges in Immigration Court, Federal Court, or State Court.

18

138. In unambiguously denying any knowledge of or involvement in any

19 alleged criminal conduct surrounding the circumstances of that day, the response

20 was unequivocal:

21

“Mr. Gonzalez takes this opportunity to reassert his

22

ignorance of and lack of participation in any alleged

23

criminal conduct, including alien harboring. He was at

24

the house on May 6 to look after the pets of an

25

acquaintance and had nothing to do with any of the

26

alleged undocumented immigrants that CBP allegedly

27

encountered. It is crucial to note that even in CBP’s

28

version of the events, recounted in the I-213 issued the

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1

day after the arrest, Mr. Gonzalez was outside of the

2

house when the individuals were discovered and was not

3

questioned about their presence prior to their discovery.

4

And the officers arrested and took him away before any

5

of those individuals emerged from the house. Once the

6

questioning began at the detention facility, it became

7

clear that Mr. Gonzalez had no idea what the officers

8

were talking about.”

9

139. Mr. Gonzalez’s response also referenced and attached the sworn

10 declaration he submitted to this Court under penalty of perjury, in which he

11 explained (1) his expectation that the officers would let him leave the house and go

12 to work because he had not “committed a crime,” and (2) the fact that the CBP

13 officers indicated their intent to detain him before discovering any alleged

14 criminality on the stated rationale that he “was not in the country legally and [his]

15 DACA status did not matter.”

16

140. Mr. Gonzalez pointed out the arbitrariness of his sudden purported

17 “enforcement priority” label, given: (1) CBP’s abandonment of his case after two

18 days of questioning and a thorough search of his cell phone; (2) Judge

19 McSeveney’s determination that he was credible and should be released on bond

20 because he was not a public safety concern; (3) DHS’s decision not to object to or

21 appeal that determination; and (4) the fact that he has not had an encounter with or

22 been questioned by law enforcement for over a year and a half after his release

23 (and never had a single law enforcement encounter before May 6, 2016).

24

141. Indeed, Mr. Gonzalez made clear that deeming him an “enforcement

25 priority” would be counter to (or an unexplained reversal of) Defendants’ years-

26 long policy of categorizing individuals who meet the DACA eligibility criteria as

27 “low priority cases” in the absence of “disqualifying criminal offenses.”

28

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1

142. And of course, Defendants explained in a filing with this Court as

2 recently as December 8, 2017 that they “do not take issue with [Mr. Gonzalez’s]

3 ability to meet the DACA guidelines going forward.” Those guidelines include the

4 requirement that Mr. Gonzalez has not been convicted of a disqualifying criminal

5 offense and does not “otherwise pose[] a threat to national security or public

6 safety.”

7

143. USCIS permitted Mr. Gonzalez to submit a supplemental response as

8 well, in order to address the new NTA that ICE issued on December 8, 2017,

9 which Mr. Gonzalez did not receive until the day before he submitted his initial

10 response. The new NTA again only charges unlawful presence in the United

11 States, which “does not provide a reasoned basis for terminating DACA.” Inland

12 Empire—Immigrant Youth Collective v. Duke, 2017 WL 5900061, at *6 (C.D. Cal.

13 Nov. 20, 2017).

14

144. Within two or three days of receiving these responses (and just one

15 day before Mr. Gonzalez’s DACA status was set to expire) USCIS issued Mr.

16 Gonzalez’s Termination Notice on December 21, 2017. On the sole basis of that

17 termination decision, USCIS summarily denied Mr. Gonzalez’s renewal

18 application on December 28, 2017.

19

145. Signaling that the decision was pre-determined, USCIS explained that

20 it based its decision on ICE’s issuance of the December 8, 2017 NTA.

21

146. Even though neither NTA against Mr. Gonzalez has contained any

22 criminal allegations, the Termination Notice went on to explain USCIS’s informal

23 determination that Mr. Gonzalez is a criminal because his “claim that [he was]

24 unaware of [the alleged undocumented immigrants’] presence in the home is not

25 credible when [he was] present in the house and three individuals did identify

26 [him] in connection with their smuggling.”

27

147. Of course, nine out of the twelve individuals interviewed did not

28 identify Mr. Gonzalez.

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1

148. More importantly, Mr. Gonzalez has never had an opportunity to

2 confront the circumstances of those three identifications, let alone cross-examine

3 those individuals or the nine individuals who did not identify him, all of whose

4 identities are redacted in the I-831 and who were all placed into removal

5 proceedings and likely have been removed from the country.

6

149. Indeed, Mr. Gonzalez has never had an opportunity to confront any of

7 the suspicions against him in a proper forum, for the simple reason that he has

8 never been charged with a crime in any forum. That is unsurprising, given his

9 repeated claims of innocence and the fact that the law enforcement agencies tasked

10 with investigating the incident seem to have concluded long ago that he was not

11 involved in any alleged criminal act.

12

150. The I-831 indicates that the other suspected caretaker of the house

13 (whose name is redacted but was presumably “Romeo”) was read his Miranda

14 rights. There is no indication that Mr. Gonzalez was read his Miranda rights

15 before being questioned, again indicating that the officers did not view him as a

16 serious target of the criminal investigation (or that the officers violated his

17 Constitutional rights).

18

151. Mr. Gonzalez now faces the revocation of his DACA status and the

19 summary denial of his renewal application—i.e., the significant benefits of being

20 permitted to live and work lawfully in the United States—even though he has

21 never been convicted of (or even charged with) a disqualifying criminal offense (or

22 any criminal offense), in a clear misapplication of Defendants’ own enforcement

23 priority policies and after a USCIS agent’s informal determination of criminality.

24

152. In addition to violating the DACA program rules, Defendants’ process

25 clearly lacks the fairness and reliability required to deprive a person of existing

26 liberty or property interests. Mathews v. Eldridge, 424 U.S. 319 (1976).

27

153. The value of additional procedural safeguards is significant. And

28 those safeguards are readily available to Defendants. Even if Defendants wish to

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1 adjudicate allegations against Mr. Gonzalez and base DACA termination on an

2 administrative finding rather than on a criminal conviction, an obvious available

3 alternative exists: the filing of an NTA charging more than mere unlawful presence

4 and the determination by an Immigration Judge of the charge’s validity.

5

CAUSES OF ACTION

6

COUNT ONE

7

Administrative Procedure Act

8

(Initial May 23, 2016 Automatic Termination)

9

154. Mr. Gonzalez repeats and incorporates by reference each and every

10 preceding allegation as if fully set forth herein.

11

155. The termination of Mr. Gonzalez’s DACA status and employment

12 authorization and summary denial of his renewal application constitute final

13 agency action that cannot be appealed administratively.

14

156. The APA provides that courts “shall hold unlawful and set aside

15 agency action, findings, and conclusions found to be arbitrary, capricious, an abuse

16 of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

17

157. Agencies must provide “reasoned explanation[s]” for their actions,

18 and courts must reverse agency actions for which they cannot discern a reason.

19 Defendants provided no explanation—let alone a reasoned one—for the automatic

20 termination of Mr. Gonzalez’s DACA status and EAD in violation of multiple

21 provisions of the DACA SOP and USCIS Memo, which establish the binding

22 process for DACA termination.

23

158. The DACA SOP and USCIS Memo typically require USCIS to issue a

24 DACA beneficiary an NOIT and 33 days to respond before determining whether to

25 terminate DACA status. But USCIS did not provide Mr. Gonzalez with notice or

26 an opportunity to respond before terminating his DACA status. The SOP provides

27 for termination without notice when USCIS follows the protocol for EPS cases,

28 including referral of the case to BCU and ultimately to ICE and the issuance of an

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1 NTA by ICE based on alleged EPS concerns. But USCIS did not follow the

2 protocol for EPS cases, nor did ICE issue Mr. Gonzalez an NTA based on a finding

3 that his was an EPS case. Neither the DACA SOP nor the USCIS Memo provides

4 for “automatic” termination without notice when CBP issues an NTA based on

5 unlawful presence. But USCIS terminated Mr. Gonzalez’s DACA status

6 automatically upon CBP’s issuance of an NTA that listed unlawful presence as its

7 sole basis. Moreover, USCIS’s own guidelines make clear that, even upon ICE’s

8 issuance of an NTA in an EPS case, USCIS should proceed by “taking into account

9 the basis for the NTA.” USCIS Memo at 4. By adopting an unwritten “policy” of

10 automatic termination regardless of the basis for an NTA and regardless of the

11 issuing agency, USCIS expressly eschewed any consideration of the basis for the

12 NTA.

13

159. In at least these ways, USCIS’s initial automatic termination of Mr.

14 Gonzalez’s DACA status in May 2016 violated established procedures for DACA

15 termination and, for that reason, was arbitrary and capricious.

16

160. USCIS’s initial automatic termination of Mr. Gonzalez’s DACA

17 status was also arbitrary and capricious because USCIS failed to exercise its

18 discretion through reasoned decision-making and merely terminated his status

19 “automatically” based on a CBP officer’s decision to issue an NTA for unlawful

20 presence, which is not even a relevant factor in the determination of DACA

21 eligibility.

22

161. The termination decision was also arbitrary and capricious because:

23 (a) USCIS failed to articulate any reason for terminating DACA benefits; (b)

24 DACA status is expressly available to those who are subject to NTAs and thus

25 cannot terminate automatically upon the issuance of an NTA; (c) it purports to rest

26 on a practice that finds no support in procedures that govern DACA termination

27 and constitutes an abrupt departure from established termination practice; (d) it

28 would make termination hinge on an immigration official’s decision to issue an

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1 NTA without any allegation of wrongdoing; and (e) “automatic” termination does

2 not involve the exercise of discretion, which is required before USCIS may

3 terminate DACA status.

4

162. The harms flowing from Defendants’ unlawful May 2016 termination

5 have not abated.

6

163. For all of these reasons, USCIS’s initial automatic termination of Mr.

7 Gonzalez’s DACA status and work authorization in May 2016 violates the APA

8 and must be permanently vacated and enjoined as arbitrary, capricious, and an

9 abuse of discretion.

10

COUNT TWO

11

Administrative Procedure Act

12 (Purported December 21, 2017 Termination and Purported December 28,

13

2017 Denial)

14

164. Mr. Gonzalez repeats and incorporates by reference each and every

15 preceding allegation as if fully set forth herein.

16

165. The termination of Mr. Gonzalez’s DACA status and employment

17 authorization and summary denial of his renewal application constitute final

18 agency action that cannot be appealed administratively.

19

166. The APA provides that courts “shall hold unlawful and set aside

20 agency action, findings, and conclusions found to be arbitrary, capricious, an abuse

21 of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

22

167. Agencies must provide “reasoned explanation[s]” for their actions,

23 and courts must reverse agency actions for which they cannot discern a reason.

24 When an agency departs from prior action, it must provide “a reasoned analysis for

25 the change.” Motor Vehicle Mfrs. Assoc. v. State Farm Mut. Auto. Ins. Co., 463

26 U.S. 29, 42 (1983); see FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515

27 (2002) (“the agency must show that there are good reasons for the new policy”);

28 Organized Village of Kake v. U.S. Dept. of Agriculture, 795 F.3d 956, 968 (9th Cir.

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1 2015) (the agency must “provide a ‘reasoned explanation . . . for disregarding’ the

2 ‘facts and circumstances’ that underlay its previous decision”) (citations omitted).

3

168. The DACA SOP identifies six permissible bases for DACA

4 termination. Defendants assert that USCIS premised its termination of Mr.

5 Gonzalez’s DACA status on only one of those six bases—that it was “not

6 consistent with [DHS’s] enforcement priorities.” But Mr. Gonzalez does not fit

7 DHS’s own well-defined enforcement priorities with respect to DACA recipients

8 because he satisfies the DACA eligibility criteria and has not either been convicted

9 or otherwise adjudicated guilty of a disqualifying criminal offense and Defendants

10 do not assert that he is either a public safety or a national security concern.

11

169. To the extent that Defendants purport to rely on the Kelly Memo’s

12 definitions of enforcement priorities for non-DACA recipients to revoke Mr.

13 Gonzalez’s DACA status, they are violating its explicit and binding terms. The

14 Kelly Memo exempts DACA recipients from enforcement priority status for

15 merely having “been charged with any criminal offense that has not been resolved”

16 or a suspicion of having “committed acts which constitute a chargeable criminal

17 offense.” Only individuals who do not qualify for DACA status may be

18 considered enforcement priorities on those bases. Asserting that a DACA recipient

19 who is subject to only an allegation or suspicion of criminal misconduct, without a

20 conviction or adverse adjudication in court, violates Defendants’ own binding

21 policies with respect to enforcement priorities and the APA.

22

170. To the extent that Defendants purport to terminate Mr. Gonzalez’s

23 DACA status under their governing DACA Memo and DACA SOP provisions,

24 they are either deliberately disregarding or grossly misreading those provisions. In

25 the absence of a disqualifying criminal offense or public safety concern, the DACA

26 Memo, DACA SOP, DACA FAQ, and other guidance governing administration of

27 the DACA program do not make Mr. Gonzalez an enforcement priority or allow

28 Defendants to terminate his DACA status on the basis of a suspicion of criminal

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1 conduct reviewed by a USCIS officer nearly two years after the fact, in the face of

2 a bare-bones NOIT that did not indicate what facts would inform its review, and in

3 the face of an Immigration Judge’s determination that Mr. Gonzalez was credible

4 and did not present a public safety concern, and Defendants’ agreement that Mr.

5 Gonzalez continues to meet the DACA criteria—including the lack of a

6 disqualifying criminal offense or public safety concern. Defendants therefore have

7 also violated the APA by terminating Mr. Gonzalez’s DACA status without any

8 proper basis in the DACA SOP and/or improperly attempted to adopt bases for

9 termination that do not appear in the DACA SOP informally and sub silentio,

10 which also violates the APA.

11

171. USCIS’s purported termination decision constitutes an unexplained

12 departure from established DACA determination policies and practices. It also

13 purports to permit termination to hinge on an immigration official’s decision to

14 issue an NTA for mere unlawful presence, a charge that is irrelevant to DACA

15 eligibility.

16

172. And because USCIS’s purported summary denial of Mr. Gonzalez’s

17 DACA renewal application is for the sole reason of the unlawful termination

18 (which has yet to even take effect), it has no basis in reasoned decision-making or

19 consideration of relevant factors.

20

173. In at least these ways, USCIS’s termination of Mr. Gonzalez’s DACA

21 status and summary denial of his renewal application violate established

22 procedures and policies for DACA status determinations and are arbitrary,

23 capricious, and an abuse of discretion in violation of the APA.

24

COUNT THREE

25

Due Process Clause of the Fifth Amendment

26

1. Mr. Gonzalez repeats and incorporates by reference each and every

27 preceding allegation as if fully set forth herein.

28

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1

2. The Due Process Clause of the Fifth Amendment provides that “[n]o

2 person shall be . . . deprived of life, liberty, or property, without due process of

3 law.”

4

3. Immigrants who are physically present in the United States are

5 guaranteed the protections of the Due Process Clause. See Zadvydas v. Davis, 533

6 U.S. 678, 693 (2001); U.S. v. Peralta-Sanchez, 847 F.3d 1124, 1131 (9th Cir.

7 2017) (“[T]he Due Process Clause applies to all ‘persons’ within the United States,

8 including aliens, whether their presence here is lawful, unlawful, temporary, or

9 permanent.”).

10

4. When a person has a protected liberty or property interest, the

11 Constitution constrains government action that deprives the person of that interest

12 without due process. See Nozzi v. Housing Authority of LA, 806 F.3d 1178, 1190-

13 91 (9th Cir. 2015); Mathews v. Eldridge, 424 U.S. 319 (1976).

14

5. DACA status confers a liberty interest to be free from apprehension,

15 arrest, or detention on the basis of immigration status. The term liberty also

16 encompasses the ability to work, raise a family, and “form the other enduring

17 attachments of normal life.” Morrissey v. Brewer, 408 U.S. 471, 482 (1972).

18 Where, as here, an individual reasonably relies on a conferred status to pursue

19 these activities, that status cannot be revoked without due process. See Bell v.

20 Burson, 402 U.S. 535, 539 (1971).

21

6. DACA status also confers property interests, which “extend beyond

22 tangible property and include anything to which a plaintiff has a legitimate claim

23 of entitlement . . . [as] created [by] . . . rules or understandings that secure certain

24 benefits and that support claims of entitlement to those benefits.” Nozzi, 806 F.3d

25 at 1191.

26

7. Mr. Gonzalez possesses a property interest in his DACA status and

27 the numerous benefits conferred by it, including employment authorization and

28 eligibility for federal and state public benefits.

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1

8. While Defendants may argue that DACA status confers no substantive

2 rights or benefits, “the identification of property interests under constitutional law

3 turns on the substance of the interest recognized, not the name given that interest

4 by the state.” Newman v. Sathyavaglswaran, 287 F.3d 786, 797 (9th Cir. 2002).

5 The “mutually explicit understandings” created by Defendants’ establishment and

6 continuous operation of the DACA program—under a well-defined framework and

7 highly specific criteria—created a reasonable expectation of entitlement to DACA

8 status and its attendant benefits, and proper consideration for renewal, which

9 cannot be terminated without due process. Perry v. Sindermann, 408 U.S. 593,

10 601 (1972).

11

9. Even if Defendants’ ultimate decision about whether to terminate Mr.

12 Gonzalez’s DACA status is discretionary, its policy and process must be rational

13 and conform to their own policies and Constitutional procedural due process

14 requirements. See Galvin v. Hay, 374 F.3d 739, 758 (9th Cir. 2004) (“[F]ederal

15 officials do not possess discretion to violate constitutional rights.”).

16

10. The adequacy of Defendants’ procedure in attempting to deprive Mr.

17 Gonzalez of his protected liberty and property interests is evaluated under the

18 three-part Eldridge test, under which the Court must balance (1) the nature of the

19 interest and the degree of potential deprivation, (2) the fairness and reliability of

20 existing procedures and the value of additional procedural safeguards, and (3) the

21 public interest.

22

11. Here, the initial automatic termination of Mr. Gonzalez’s DACA

23 status, EAD, and other benefits on May 23, 2016 without any notice or opportunity

24 to be heard obviously fails the Eldridge test. First, his protected interests are

25 extremely significant. Second, the existing procedure of termination without

26 notice is a wholly inadequate abrogation of the “essence of due process”—

27 adequate notice and a meaningful opportunity to present one’s case. Eldridge, 424

28

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1 U.S. at 348-49. And third, there is no credible burden associated with adequate

2 procedural safeguards, or public benefit from their absence.

3

12. Similarly, Defendants’ purported December 21, 2017 termination and

4 December 28, 2017 summary denial of renewal of Mr. Gonzalez’s right to live and

5 work lawfully in the United States fail the Eldridge test. First, his protected

6 interests—the rights that Defendants conferred on him to live and work in the only

7 country he knows after he submitted to extensive screening and paid substantial

8 fees—are extremely significant. Second, the existing procedure of a criminal

9 determination through the informal NOIT process—via a USCIS agent’s

10 determinations of credibility and criminality without a hearing or the ability to

11 confront evidence—is neither fair nor reliable. And the value of a simple

12 additional procedural safeguard—i.e., the issuance of an NTA charging a crime,

13 and an Immigration Judge’s sustaining of that NTA—is tremendous. Third, the

14 public interest and the rights implicated by these determinations heavily outweigh

15 the additional burden of using fair and Constitutionally adequate procedures to

16 adjudicate criminal allegations or suspicions.

17

13. Mr. Gonzalez does not have any DACA-disqualifying criminal

18 offenses. Even if Defendants wish to adjudicate criminal allegations against Mr.

19 Gonzalez only through an administrative proceeding (rather than in a Federal Court

20 prosecution) and to revoke the rights they granted him to live and work lawfully in

21 the United States, they have an administrative avenue for doing so: via the issuance

22 of an NTA alleging a criminal violation as the basis for removal. In the face of

23 such an obvious alternative procedure, the revocation of benefits with serious

24 adverse liberty and property consequences through a USCIS agent’s informal

25 findings of credibility and criminality fails the Eldridge test and is Constitutionally

26 inadequate.

27

14. Because an informal determination of criminality with serious

28 consequences is anathema to our “concept of ordered liberty,” and because

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1 removal from the country in the absence of any culpability would visit such

2 grievous harm, Defendants’ actions “shock the conscience” and also amount to a

3 violation of Mr. Gonzalez’s substantive due process rights. Cnty. of Sacramento v.

4 Lewis, 523 U.S. 833, 847 (1998).

5

15. For all of these reasons, Defendants’ termination of Mr. Gonzalez’s

6 DACA status and employment authorization and summary denial of his renewal

7 application violate his rights under the Due Process Clause of the Fifth

8 Amendment.

9

COUNT FOUR

10

Declaratory Relief

11

16. Mr. Gonzalez repeats and incorporates by reference each and every

12 preceding allegation as if fully set forth herein.

13

17. Mr. Gonzalez seeks a declaration that Defendants’ May 23, 2016

14 automatic termination of his DACA status and EAD failed to adhere to the DACA

15 SOP and USCIS Memo, was arbitrary, capricious, and an abuse of discretion, and

16 violated the Due Process Clause of the Fifth Amendment.

17

18. Mr. Gonzalez seeks a declaration that Defendants’ December 21,

18 2017 termination of his DACA status and employment authorization and

19 December 28, 2017 summary denial of his renewal application fail to adhere to

20 Defendants’ policies, including the DACA Memo, DACA SOP, DACA FAQ,

21 Kelly Memo, and related guidance, and are arbitrary, capricious, and an abuse of

22 discretion.

23

19. Mr. Gonzalez seeks a declaration that (1) he has constitutionally

24 protected liberty and property interests in his DACA status and its attendant

25 benefits, and therefore (2) Defendants’ termination of those interests through an

26 informal determination of criminality does not provide the procedural safeguards

27 mandated by the Due Process Clause of the Fifth Amendment.

28

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1

20. Mr. Gonzalez seeks a declaration that, for all of these reasons,

2 Defendants’ termination of his DACA status and employment authorization, and

3 summary denial of his renewal application, violate the APA and the Due Process

4 Clause of the Fifth Amendment and must be set aside.

5

PRAYER FOR RELIEF

6

WHEREFORE, Mr. Gonzalez prays that this Court grant the following

7 relief:

8

(1) Declare that Defendants’ May 2016 termination of Mr. Gonzalez’s

9 DACA status, EAD, and attendant benefits (i) is arbitrary, capricious, and an abuse

10 of discretion in violation of the APA; (ii) violates Mr. Gonzalez’s rights under the

11 Due Process Clause of the Fifth Amendment; and (iii) as a result, must be set

12 aside;

13

(2) Declare that Defendants’ December 2017 termination of Mr. Gonzalez’s

14 DACA status, EAD, and attendant benefits and summary denial of his renewal

15 application (i) are arbitrary, capricious, and an abuse of discretion in violation of

16 the APA; (ii) violate Mr. Gonzalez’s rights under the Due Process Clause of the

17 Fifth Amendment; and (iii) as a result, must be set aside;

18

(3) Declare (i) that Mr. Gonzalez has constitutionally protected liberty and

19 property interests in his DACA status, EAD, and attendant benefits, and (ii) that

20 Defendants’ purported termination of those interests in both May 2016 and

21 December 2017 was unlawful and invalid;

22

(4) Declare that a denial of Mr. Gonzalez’s renewal application on the same

23 grounds as the December 2017 termination decision violates the APA and the Due

24 Process Clause;

25

(5) Set aside and enjoin Defendants’ decisions to terminate Mr. Gonzalez’s

26 DACA status and EAD in both May 2016 and December 2017 and their summary

27 denial of his renewal application in December 2017;

28

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1

(6) Order Defendants to restore Mr. Gonzalez’s DACA status and EAD

2 pending a termination procedure that comports with the APA and the Due Process

3 Clause and a lawful resolution of his renewal application;

4

(7) Award Mr. Gonzalez reasonable costs and attorneys’ fees; and

5

(8) Grant any other and further relief that this Court deems fit and proper.

6

7 Dated: January 12, 2018

Respectfully submitted,

8 /s/ John C. Ulin

9

John C. Ulin (SBN 165524)

10

john.ulin@apks.com

Jaba Tsitsuashvili (SBN 309012)

11

jaba.tsitsuashvili@apks.com

12

ARNOLD & PORTER KAYE SCHOLER LLP

777 South Figueroa Street, 44th Floor

13

Los Angeles, CA 90017-5844

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T: (213) 243-4000

F: (213) 243-4199

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16

Attorneys for Plaintiff

ALBERTO LUCIANO GONZALEZ TORRES

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1

CERTIFICATE OF ELECTRONIC FILING

2

3

I hereby certify that on January 12, 2018, I electronically filed the foregoing

4 document with the Clerk of the Court using CM/ECF.

5

6

/s/ John Ulin

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1 ARNOLD & PORTER KAYE SCHOLER LLP
2 JOHN C. ULIN (SBN 165524) john.ulin@apks.com
3 JABA TSITSUASHVILI (SBN 309012)
4 jaba.tsitsuashvili@apks.com 777 South Figueroa Street, 44th Floor
5 Los Angeles, CA 90017-5844
6 T: (213) 243-4000 F: (213) 243-4199
7 Attorneys for Plaintiff
8 ALBERTO LUCIANO GONZALEZ TORRES

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11 ALBERTO LUCIANO GONZALEZ

12 TORRES,

Plaintiff,

13

vs.

14 U.S. DEPARTMENT OF

15

HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION

16

SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;

17

U.S. CUSTOMS AND BORDER PROTECTION; Does 1-10, inclusive,

18

Defendants.

19

Case No. 17 CV 1840 JM(NLS) PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ EX PARTE APPLICATION [Docket No. 31] AND IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION Hearing: February 12, 2018 Time: 10:00 a.m. Courtroom: 5D Judge: Jeffrey T. Miller

20

21

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23

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25

26

27

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1 TABLE OF CONTENTS
2

3

Page

4 I. II.
5

INTRODUCTION ........................................................................................... 1 STATEMENT OF FACTS..............................................................................3 A. TERMS OF THE DACA PROGRAM .................................................3

6

B. CONTINUATION OF THE DACA PROGRAM’S TERMS ..............5

7

C. CONSTRAINTS ON DEFENDANTS’ DISCRETION IN IMPLEMENTING THE TERMS OF THE DACA PROGRAM.........7

8

D. MANDATORY DACA TERMINATION GUIDELINES ..................8

9

E. BENEFITS CONFERRED BY DACA STATUS ................................9

F. MR. GONZALEZ’S DACA STATUS AND EMPLOYMENT ........10

10

G. MR. GONZALEZ’S ARREST AND RELEASE...............................11

11

H. USCIS’S UNLAWFUL “AUTOMATIC” TERMINATION OF

MR. GONZALEZ’S DACA STATUS AND EAD............................13

12

I. THE NOIT PROCESS........................................................................13

13 III. ARGUMENT ................................................................................................16

14

A. PRELIMINARY INJUNCTION STANDARD .................................16

B. MR. GONZALEZ IS LIKELY TO SUCCEED ON HIS APA

15

AND CONSTITUTIONAL CLAIMS—OR AT LEAST HAS

RAISED SERIOUS QUESTIONS ABOUT THE

16

LAWFULNESS OF HIS DACA TERMINATION ...........................17

17

1. None of the INA’s Jurisdictional Bars Apply ..........................17

2. Mr. Gonzalez Is Likely to Succeed on the Merits of His

18

APA Claims ..............................................................................18

19

3. Mr. Gonzalez Is Likely to Succeed on the Merits of His Due Process Claims ..................................................................23

20

C. MR. GONZALEZ IS SUFFERING IRREPARABLE HARM ..........28

21

D. THE BALANCE OF EQUITIES FAVORS MR. GONZALEZ, AND AN INJUNCTION IS IN THE PUBLIC INTEREST ..............29

22 IV. CONCLUSION .............................................................................................30

23

24

25

26

27

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1

TABLE OF AUTHORITIES

2 3 CASES

Page(s)

4 Alcaraz v. INS, 5 384 F.3d 1150 (9th Cir. 2004)............................................................................ 18

6 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011)............................................................................ 16
7

8

Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935 (9th Cir. 1987).............................................................................. 17

9 Arizona Dream Act Coalition v. Brewer,
10 757 F.3d 1053 (9th Cir. 2014)............................................................9, 26, 28, 29

11 Armstrong v. Manzo, 12 380 U.S. 545 (1965) ........................................................................................... 27

13 Bell v. Burson, 14 402 U.S. 535 (1971) ........................................................................................... 25

15 Bertelsen v. Hartford Life Ins. Co., 16 1 F. Supp. 3d 1060 (E.D. Cal. 2014) .................................................................. 23

17 Burlington Truck Lines, Inc. v. U.S., 371 U.S. 156 (1962) ........................................................................................... 21
18
19 Castillo v. Cnty. of Los Angeles, 959 F. Supp. 2d 1255 (C.D. Cal. 2013).............................................................. 26
20 Chalk v. U.S. Dist. Ct.,
21 840 F.2d 701 (9th Cir. 1988).............................................................................. 29
22 Cleveland Bd. of Ed. v. Loudermill,
23 470 U.S. 532 (1985) ........................................................................................... 29

24 Cnty. of Sacramento v. Lewis, 25 523 U.S. 833 (1998) ........................................................................................... 27

26 Coyotl v. Kelly, 27 261 F. Supp. 3d 1328 (N.D. Ga. 2017) ................................................ 4, 5, 20, 30

28

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1 Enyart v. Nat’l Conf. of Bar Examiners, Inc., 630 F.3d 1153 (9th Cir. 2011)............................................................................ 29
2 FCC v. Fox TV Stations, Inc.,
3 556 U.S. 502 (2009) ..................................................................................... 18, 21
4 Gete v. INS,
5 121 F.3d 1285 (9th Cir. 1997)...................................................................... 27, 28
6 Goldberg v. Kelly, 7 397 U.S. 254 (1970) ........................................................................................... 27

8 Gonzalez Torres v. DHS, 9 2017 WL 4340385 (S.D. Cal. Sept. 29, 2017) ..................................................... 4

10 Hicks v. Colvin,

11

2016 WL 7436050 (E.D. Ky. Dec. 21, 2016) .................................................... 27

12 Inland Empire—Immigrant Youth Collective v. Duke, 2017 WL 5800061 (C.D. Cal. Nov. 20, 2017) ............................................. 14, 20
13

14

Judulang v. Holder, 565 U.S. 42 (2011) ...........................................................................14, 18, 21, 23

15 Mathews v. Eldridge,
16 424 U.S. 319 (1976) ..................................................................................... 24, 26

17 McDonald v. Gonzales, 18 400 F.3d 684 (9th Cir. 2005)........................................................................ 22, 26

19 Melendres v. Arpaio, 20 695 F.3d 990 (9th Cir. 2012).............................................................................. 28

21 Morrissey v. Brewer, 22 408 U.S. 471 (1972) ........................................................................................... 25

23 Morton v. Ruiz, 415 U.S. 199 (1974) ........................................................................................... 18
24

25

Movsisian v. Ashcroft, 395 F.3d 1095 (9th Cir. 2005)............................................................................ 22

26 Nat’l Parks Conserv. Assoc. v. EPA,
27 788 F.3d 1134 (9th Cir. 2015)............................................................................ 21

28

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1 Newman v. Sathyavaglswaran, 287 F.3d 786 (9th Cir. 2002).............................................................................. 24
2 Nicholas v. INS,
3 590 F.2d 802 (9th Cir. 1979).............................................................................. 22
4 Nozzi v. Housing Auth. of LA,
5 806 F.3d 1178 (9th Cir. 2015)............................................................................ 25
6 NRDC, Inc. v. EPA, 7 966 F.2d 1292 (9th Cir. 1992)............................................................................ 22

8 Olim v. Wakinekona, 9 461 U.S. 238 (1983) ........................................................................................... 26

10 Petition of Guerrero-Morales,

11

512 F. Supp. 1328 (D. Minn. 1981) ................................................................... 23

12 Regents v. DHS, 2018 WL 339144 (N.D. Cal. Jan. 9, 2018) ........................................................ 24
13

14

Rep. of the Philippines v. Marcos, 862 F.2d 1355 (9th Cir. 1988)............................................................................ 17

15 Rodriguez v. Robbins,
16 715 F.3d 1127 (9th Cir. 2013)............................................................................ 30

17 Romeiro de Silva v. Smith, 18 773 F.2d 1021 (9th Cir. 1985)...................................................................... 18, 20

19 Singh v. Bardini, 20 2010 WL 308807 (N.D. Cal. Jan. 19, 2010) ...................................................... 25

21 Texas v. U.S., 22 809 F.3d 134 (5th Cir. 2015)...................................................................... 4, 9, 10

23 Trinidad y Garcia v. Thomas, 683 F.3d 952 (9th Cir. 2012).............................................................................. 24
24

25

U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) ........................................................................................... 18

26 U.S. v. One 1985 Mercedes,
27 917 F.2d 415 (9th Cir. 1990).............................................................................. 22

28

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1 U.S. v. Peralta-Sanchez, 847 F.3d 1124 (9th Cir. 2017)............................................................................ 24
2 U.S. v. Raines,
3 362 U.S. 17 (1960) ............................................................................................. 29 4
U.S. v. Raya-Vaca, 5 771 F.3d 1195 (9th Cir. 2014)............................................................................ 25 6 Winter v. NRDC, Inc., 7 555 U.S. 7 (2008) ............................................................................................... 16 8 Zadvydas v. Davis, 9 533 U.S. 678 (2001) ........................................................................................... 24 10 STATUTES 11 5 U.S.C. § 706(2)(A) ............................................................................................... 18 12 8 U.S.C. § 1182(a)(6)(A)(i) ............................................................................... 13, 14 13
8 U.S.C. § 1252(b)(9) .............................................................................................. 17 14 15 8 U.S.C. § 1252(g)................................................................................................... 17 16 17 18 19 20 21 22 23 24 25 26 27 28
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1 I. INTRODUCTION

2

On December 21, 2017, just three days after receiving Plaintiff Alberto

3 Luciano Gonzalez Torres’s response to USCIS’s Notice of Intent to Terminate

4 (“NOIT”) his Deferred Action for Childhood Arrivals (“DACA”) status and

5 Employment Authorization Document (“EAD”), Defendants terminated Mr.

6 Gonzalez’s status—24 hours before it was set to expire anyway. It was the second

7 time Defendants have attempted to terminate Mr. Gonzalez’s DACA status. In

8 September, this Court vacated and preliminarily enjoined Defendants’ first

9 termination as unlawful and a violation of Defendants’ own DACA Standard

10 Operating Procedures (“SOP”) and the Administrative Procedure Act (“APA”).

11 The Court explained that the harms flowing from Mr. Gonzalez “losing his DACA

12 status and ability to apply for renewal of that status,” including losing the right to

13 live and work lawfully in the United States, were irreparable. Accordingly, the

14 Court ordered, in part, that (1) “Defendants shall fully comply with the DACA

15 SOP should Defendants elect to reconsider Plaintiff’s DACA status,” (2)

16 “Defendants accept Plaintiff’s DACA renewal application,” and (3) the Court’s

17 Preliminary Injunction “is to remain in effect pending further Order of this court.”

18

Six weeks later, USCIS issued Mr. Gonzalez a bare-bones NOIT, seeking to

19 terminate his DACA status and EAD without any explanation of the factors it

20 would consider in reviewing his response. Mr. Gonzalez responded with an

21 explanation of the NOIT’s deficiencies and an explicit and unambiguous denial of

22 any connection to what he surmised USCIS might consider in that review, i.e., its

23 purported suspicion of criminality—which, because he has never been charged

24 with a crime (or even investigated in nearly two years) has never been tested in any

25 competent forum—stemming from his arrest in May 2016 by CBP officers.

26 Ultimately, USCIS purported to terminate Mr. Gonzalez’s DACA status and EAD

27 because: (1) he is in removal proceedings solely for unlawful presence in the

28

1
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1 United States, and (2) his DACA status “is not consistent with [DHS’s]

2 enforcement priorities.”

3

USCIS’s second effort to terminate Mr. Gonzalez’s DACA status

4 demonstrates, yet again, Defendants’ disregard or misreading of the plain language 5 of the Court’s Order, the DACA SOP, and DHS’s publicly defined and reaffirmed 6 “enforcement priorities.” The Court ordered Defendants to “fully” comply with

7 the SOP if they reconsidered Mr. Gonzalez’s DACA status. But Defendants have

8 not complied with the SOP. The issuance of a bare-bones NOIT, an opportunity to

9 respond (without the benefit of knowing which aspects of Mr. Gonzalez’s history 10 would bear on the decision), and the issuance of a termination notice do not 11 constitute compliance, where, as here, Defendants’ stated reasons do not fall within

12 any of the SOP’s clearly defined bases for termination.

13

The SOP’s Termination chapter identifies six potential bases for DACA

14 termination. USCIS’s second purported termination of Mr. Gonzalez’s DACA

15 status fits none of them. Merely being in removal proceedings for unlawful 16 presence does not support termination, given that DACA expressly contemplates

17 extending benefits even to those who have had final orders of removal issued

18 against them. Nor, according to DHS’s own policies, does mere suspicion of

19 wrongdoing flowing from a May 2016 arrest that led to no charge or conviction

20 and has not even been investigated in more than a year and a half, especially in the 21 absence of a stated public safety concern.

22

In short, the DACA SOP does not countenance termination (1) for a DACA

23 recipient with no criminal charges or convictions (2) on the basis of a USCIS

24 officer’s informal evaluation of criminality (3) without any stated public safety

25 concern (4) following an NOIT that did not explain what factors would be 26 considered in its review.

27

Moreover, if the Court determines that USCIS’s purported termination is not

28 a violation of the DACA Memo and DACA SOP or otherwise arbitrary and

2
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1 capricious, the termination and denial of renewal should nevertheless be set aside

2 for failure to comply with the Due Process Clause of the Fifth Amendment. Mr.

3 Gonzalez’s DACA status and EAD confer liberty and property interests, including

4 the right to live and work lawfully in the United States and the opportunity for

5 renewal upon consideration of the DACA criteria. Their termination requires an

6 adequate procedure and a meaningful opportunity to respond, which Mr. Gonzalez

7 has not received. Even if the DACA program could countenance such a result, the

8 Fifth Amendment cannot.

9

The Court should reject Defendants’ motion to dissolve its Preliminary

10 Injunction and their request to permit their unlawful termination of Mr. Gonzalez’s

11 DACA status and EAD to take effect. In addition, Mr. Gonzalez seeks a

12 preliminary injunction vacating and enjoining the purported termination, as well as

13 the purported subsequent denial of his DACA renewal application, which by its

14 own terms is premised on nothing more than the unlawful purported termination.1

15 II. STATEMENT OF FACTS

16

A. TERMS OF THE DACA PROGRAM

17

On June 15, 2012, DHS announced the terms of the DACA program. See

18 Declaration of John C. Ulin (“Ulin Dec.”; filed concurrently), Ex. A, “Exercising

19 Prosecutorial Discretion with Respect to Individuals Who Came to the United

20 States as Children” (“DACA Memo”). The DACA Memo explains that the

21 “Nation’s immigration laws . . . are not designed to be blindly enforced without

22 consideration given to the individual circumstances of each case,” and that

23 “additional measures are necessary to ensure that our enforcement resources are

24 not expended on [] low priority cases but are instead appropriately focused on

25 people who meet our enforcement priorities.” Its purpose is to protect “certain

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

27 1 This request for a preliminary injunction has no bearing on the Court’s current Injunction. Their terms are not mutually exclusive. And the harms at issue here flow
28 both from Defendants’ conduct in November and December 2017 and their unlawful actions in 2016 that gave rise to the current Injunction.
3
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1 country as home [because] these individuals lacked the intent to violate the law.”

2 A DACA recipient who meets the following objectively verifiable criteria is, by

3 definition, a “low priority case” and does not “meet [DHS’s] enforcement

4 priorities.” The relevant criteria are that the recipient: 5  came to the United States under the age of 16; 6  continuously resided in the United States for at least five years preceding the
date of the DACA Memo and was present in the United States on the date of the 7 DACA Memo; 8  is currently in school, has graduated from high school, has obtained a general
education development certificate, or is an honorably discharged veteran of the 9 Coast Guard or Armed Forces of the United States; 10  “has not been convicted of a felony offense, a significant misdemeanor offense,
or multiple misdemeanor offenses,” and does not “otherwise pose[] a threat to 11 national security or public safety”; and 12  is not above the age of 30. 13 DACA renewal applicants must continue to meet these criteria. Both DACA

14 applicants and renewal applicants “must undergo biographic and biometric

15 background checks.” Ulin Dec., Ex. B, “DACA FAQ,” Q22.

16

USCIS is charged with implementing the terms of the DACA program in a

17 manner consistent with the DACA Memo and subsequent DHS guidance. Since

18 DACA’s inception, the objective criteria above have served as the determinative

19 basis for USCIS’s DACA decisions. See Texas v. U.S., 809 F.3d 134, 171-76 (5th

20 Cir. 2015) (“[d]enials are recorded in a ‘check the box’ standardized form, for 21 which USCIS personnel are provided templates”). To govern application,

22 termination, and renewal decisions, Defendants promulgated the DACA SOP and

23 the DACA FAQ. “The SOP states that it is applicable to all personnel performing

24 adjudicative functions and the procedures to be followed are not discretionary.”

25 Coyotl v. Kelly, 261 F. Supp. 3d 1328, 1334 (N.D. Ga. 2017). For these reasons, 26 this Court “categorically reject[ed]” the proposition that Defendants “need not

27 follow the DACA SOP in terminating the status of DACA recipients.” Gonzalez 28 Torres v. DHS, 2017 WL 4340385, at *6 (S.D. Cal. Sept. 29, 2017); see id. at *5

4
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1 (“Defendants’ failure to follow the termination procedures set forth in the DACA

2 SOP is arbitrary, capricious, and an abuse of discretion.”). Defendants themselves

3 have confirmed that conclusion. Coyotl, 261 F. Supp. 3d at 1334 (“confirmation

4 from counsel for Defendants that ‘[t]hey are the guidelines that adjudicators are to

5 apply’”).

6

B. CONTINUATION OF THE DACA PROGRAM’S TERMS

7

DHS began a rescission and wind-down of the DACA program on

8 September 5, 2017. See Ulin Dec., Ex. C, “Memorandum on Rescission of

9 Deferred Action for Childhood Arrivals” (“Rescission Memo”). Before and after

10 the rescission announcement, DHS has explained repeatedly that the rules

11 governing the DACA program and DACA recipients have not changed, and that

12 DACA recipients would not be deemed “enforcement priorities” in a manner that

13 deviates from how that term has been defined in the DACA program since 2012:

14  On February 20, 2017, DHS issued a memorandum defining its new immigration enforcement priorities:
15

With the exception of the June 15, 2012, memorandum

16

entitled “Exercising Prosecutorial Discretion with Respect

to Individuals Who Came to the United States as

17

Children” [i.e., the DACA Memo,] . . . all existing

conflicting directives, memoranda, or field guidance

18

regarding the enforcement of our immigration laws and

priorities for removal are hereby immediately rescinded—to

19

the extent of the conflict.

20 See Ulin Dec., Ex. D, “Enforcement of the Immigration Laws to Serve the

National Interest” (“Kelly Memo”) (emphasis added). 21

22

 The Kelly Memo prioritizes enforcement against individuals who “have been charged with any criminal offense that has not been resolved” or allegedly

“committed acts which constitute a chargeable criminal offense.” But by the 23 Memo’s own terms, the directive that individuals be deemed enforcement

priorities based on alleged offenses or suspicions of wrongdoing, without 24 convictions, adverse judicial adjudications, or even criminal charges, does not

apply to DACA recipients, who continue to be governed by the DACA Memo, 25 DACA SOP, and DACA FAQ. See id. (“Except as specifically noted above

[i.e., as required by the DACA Memo], the Department no longer will exempt 26 classes or categories of removable aliens from potential enforcement.”)

(emphasis added). 27

28

 On February 21, 2017, DHS again unequivocally explained that the Kelly Memo’s enforcement priorities have no bearing on DACA recipients:

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1

Q22: Do these memoranda affect recipients of Deferred

Action for Childhood Arrivals (DACA)?

2

A22: No.

3 Ulin Dec., Ex. E, “Q&A: DHS Implementation of the Executive Order on

Enhancing Public Safety in the Interior of the United States.” 4

5

 On June 15, 2017, DHS issued more public guidance, explaining that “DACA recipients will continue to be eligible as outlined in the June 15, 2012

memorandum.” Ulin Dec., Ex. F, “Frequently Asked Questions: Rescission of 6 Memorandum Providing for Deferred Action for Parents of Americans and

Lawful Permanent Residents (‘DAPA’)” (emphasis added). 7

8

 Following the rescission, on September 8, 2017, the administration explained DHS’s policy that “[d]uring this six-month time, there are no changes that are

being made to the program at this point.” Ulin Dec., Ex. G, “Press Briefing by 9 Press Secretary Sarah Sanders and Homeland Security Advisor Tom Bossert.”

10  And again on October 3, 2017, DHS assured the Senate Judiciary Committee regarding its enforcement priorities:
11

We rely on guidance that was put in place in 2012 when

12

the DACA program was initiated. That’s available on

USCIS’s website and will tell you what the priorities are

13

for Immigration and Customs Enforcement and what they

are for the Department at large. Those priorities have not

14

changed.

15 Testimony of Michael Dougherty, Assistant Secretary of DHS at 01:10:20, “Oversight of the Administration’s Decision to End Deferred Action for
16 Childhood Arrivals,” available at https://bit.ly/2fzVNEY; id. at 01:11:00 (the Kelly Memo “carved out” DACA from its enforcement priorities; “I would tell
17 you in good faith and complete confidence that we are relying on the same priorities that were in place in 2012 and we have not added to them for this
18 population.”).

19

In short, under Defendants’ own binding procedures, DACA recipients who

20 meet the DACA Memo’s objectively verifiable eligibility criteria—i.e., have no 21 disqualifying criminal offenses and do not pose a threat to public safety—remain

22 “low priority cases,” and their removal remains inconsistent with DHS’s

23 enforcement priorities. DHS has made other changes to the DACA program

24 during its wind-down (e.g., elimination of advance parole) and has re-defined

25 enforcement priorities for non-DACA recipients. But it has not instructed ICE or 26 USCIS to re-define the prioritization of DACA recipients for removal. To the

27 contrary, DHS has reaffirmed that DACA recipients will not be prioritized in a 28 manner inconsistent with the DACA program as it has existed since 2012.

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C. CONSTRAINTS ON DEFENDANTS’ DISCRETION IN

1

IMPLEMENTING THE TERMS OF THE DACA PROGRAM

2

DACA recipients and renewal applicants remain subject to the heavily

3 circumscribed discretion of USCIS personnel, who must act in accordance with:

4

(1) DHS’s 2012 DACA Memo, which declares DHS’s non-prioritization of

5 individuals who meet the five objectively verifiable criteria that make a DACA

6 recipient a “low priority” and have always formed the basis for USCIS’s DACA

7 status decisions;

8

(2) Defendants’ DACA SOP, which sets forth the mandatory termination

9 procedures and enumerates the six permissible bases for termination that USCIS

10 personnel must follow with regard to DACA applicants and recipients;

11

(3) USCIS’s November 7, 2011 Policy Memorandum (“Revised Guidance

12 for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases

13 Involving Inadmissible and Removable Aliens”), Ulin Dec., Ex. H (“USCIS

14 Memo”)—which the DACA SOP incorporates as mandatory procedures for certain

15 termination decisions;

16

(4) USCIS’s DACA FAQ document, which (i) explains that DACA

17 recipients are “not unlawfully present”; (ii) directs ICE and CBP “to prevent

18 qualifying individuals from being apprehended, placed into removal proceedings,

19 or removed”; and (iii) requires consideration of the DACA criteria for applicants

20 who are in removal proceedings, have a final order of removal, or have a voluntary 21 departure order, Ulin Dec., Ex. B, “DACA FAQ,” Q1, Q9, Q10; and

22

(5) DHS’s Kelly Memo and accompanying statements explaining its scope,

23 which make clear that the DACA Memo, DAC SOP, DACA FAQ, and any

24 guidelines incorporated or encompassed by those documents continue to govern

25 the rights of DACA recipients and the scenarios in which Defendants may deem 26 them enforcement priorities—i.e., disqualifying criminal history and/or public

27 28

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1 safety concerns, and not alleged offenses or suspicions of wrongdoing without

2 conviction or other neutral adjudication, or stated public safety concerns.

3

D. MANDATORY DACA TERMINATION GUIDELINES

4

DHS’s DACA SOP establishes the terms governing Defendants’

5 implementation of the DACA program and the potential bases for DACA status

6 and EAD termination. See Ulin Dec., Ex. I, Aug. 28, 2013 DACA SOP. As

7 explained by this and other courts, the SOP is binding on all agencies and

8 personnel administering the terms of the program. See, e.g., Dkt. 12 at 5-6. The

9 SOP incorporates the 2011 USCIS Memo, and adopts its mandatory guidelines for 10 certain DACA termination decisions. Ulin Dec., Ex. H, USCIS Memo. Where 11 termination is concerned, Chapter 14 of the DACA SOP and the incorporated 2011

12 USCIS Memo provide six potential bases for termination, and the procedures to be

13 followed when each potential basis is implicated:

14

(1) “If it comes to the attention of an officer that removal was deferred under DACA in error, the officer should reopen the case on Service motion and issue” an

15 NOIT, with 33 days to overcome the “grounds cited.”

16

(2) “If it comes to the attention of an officer that an individual committed fraud in seeking deferral of removal under DACA, the officer should reopen the case on

17 Service motion and issue” an NOIT, with 33 days to overcome the “grounds cited.”

18

(3) Generally, “[i]f disqualifying criminal offenses or public safety concerns . . . arise after” DACA status is granted, the recipient must receive an NOIT and “33

19 days to file a brief or statement contesting the grounds cited.”

20

(4) If USCIS suspects an Egregious Public Safety (“EPS”) concern, it must send the case to the Background Check Unit DACA Team (“BCU”), which must refer

21

the case to ICE. Ulin Dec., Ex. I, Aug. 28, 2013 DACA SOP, Ch. 14; Ex. H at 6163, USCIS Memo. “All EPS cases must be referred to ICE” for “an opportunity to

22

decide if, when, and how to issue an NTA . . . . USCIS will not issue an NTA in these cases if ICE declines to issue an NTA. . . . This referral process is utilized in

23

order to give ICE the opportunity to determine the appropriate course of action before USCIS adjudicates the case.” Id., Ex. H at 61-63, USCIS Memo. ICE’s

24

issuance of an NTA after an EPS referral is meant to allow USCIS to “proceed with adjudication, . . . taking into account the basis for the NTA.” Id. If ICE

25

issues an NTA based on an EPS concern, USCIS will terminate DACA status “automatically,” without an NOIT or opportunity to respond. Neither the DACA

26

SOP nor the USCIS Memo authorizes termination without notice when CBP issues an NTA or in the absence of an EPS determination by ICE. In such instances, an

27 NOIT and 33 days to respond are required.

28

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(5) “If national security concerns arise after removal has been deferred under 1 DACA, the case should go through the [Controlled Application Review and
Resolution Program], through established CARRP protocols.” 2
(6) “If after consulting with ICE, USCIS determines that exercising prosecutorial 3 discretion after removal has been deferred under DACA is not consistent with
[DHS’s] enforcement priorities, and ICE does not plan to issue an NTA, the officer 4 should refer the case to HQSCOPS, through the normal chain of command, to
determine whether or not a[n] NOIT is appropriate.” If USCIS issues an NOIT and 5 “it is determined that the case warrants final termination, the officer will issue
DACA 603 – Termination Notice [Enforcement Priority; Not Automatically 6 Terminated] from the Appendix I.”

7

E. BENEFITS CONFERRED BY DACA STATUS

8

DACA status confers numerous benefits on a recipient. Chief among them

9 is “authoriz[ation] by DHS to be present in the United States, and [] therefore 10 considered by DHS to be lawfully present during the period deferred action is in 11 effect.” Ulin Dec., Ex. B, DACA FAQ, Q1; see Arizona Dream Act Coalition v.

12 Brewer, 757 F.3d 1053, 1058-59 (9th Cir. 2014); Texas v. U.S., 809 F.3d at 148.

13 Because DACA recipients are “lawfully present,” DHS and USCIS have directed

14 ICE and CBP “to prevent qualifying individuals from being apprehended, placed

15 into removal proceedings, or removed.” Ulin Dec., Ex. B, DACA FAQ, Q9.

16

Another “core benefit” (Dkt. 12 at 12) of DACA status is the EAD,

17 conferring the right to lawful employment “for the period of deferred action.” Ulin

18 Dec., Ex. B, DACA FAQ, Q1; see 8 C.F.R. § 274a.12, (c)(33). In addition to the

19 “ability to financially provide for himself and his family” (Dkt. 12 at 12), the EAD

20 provides a DACA recipient a Social Security Number, which opens the door to and 21 encourages investment in ancillary benefits typically unavailable or difficult to

22 obtain for undocumented immigrants, including the ability to open bank accounts,

23 obtain credit cards, start businesses, purchase homes and cars, and obtain state

24 financial aid for higher education. In short, “lawful presence removes the

25 categorical bar” to employment, participation in crucial elements of social, civic, 26 and economic life, and certain public benefits. Texas v. U.S., 809 F.3d at 148.

27 28

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F. MR. GONZALEZ’S DACA STATUS AND EMPLOYMENT 1
Mr. Gonzalez was brought to the United States from Mexico sixteen years 2
ago, as an eight-year-old. He has lived in San Diego ever since. Declaration of 3
Alberto Luciano Gonzalez Torres (“Gonzalez Dec.”) ¶ 1. After graduating on time 4
from Altus Charter High School in 2011, Mr. Gonzalez was unable to secure 5
lawful employment for nearly two years because he was unwilling to misrepresent 6
his immigration status. Id. ¶ 2. 7
But in early 2013, after extensive background and criminal record checks, 8
USCIS granted him DACA status, an EAD, and a Social Security Number. Id. ¶¶ 9
3-4; Ulin Dec., Ex. J (initial DACA approval notice). In late 2014, after more 10
background checks, USCIS granted renewal through December 22, 2017. Id. ¶ 4; 11
Ulin Dec., Ex. K (DACA renewal approval notice).2 12
Mr. Gonzalez quickly obtained lawful employment with Gate Gourmet after 13
being granted DACA status. Id. ¶ 5. Because of the nature of his work (preparing 14
food and equipment for commercial aircraft), he had to pass additional screening, 15
including interviews, drug tests, security clearance protocols, and EAD 16
verification. Id. Mr. Gonzalez was a dutiful and trusted employee for nearly three 17
years. Id. ¶¶ 5-6. He was saving up to buy his own car to more easily commute to 18
work. Id. ¶ 7. When USCIS initially terminated Mr. Gonzalez’s DACA status and 19
EAD, he voluntarily informed his employers, who told him they had to let him go, 20
but asked that he reapply upon restoration of his EAD. Id. ¶ 8. 21
Mr. Gonzalez’s employers have praised his “work ethic, dedication, and 22
consistency.” One of them wrote to USCIS to “recommend that he continue to be 23
provided the opportunity to be gainfully employed here” because he “would [be] 24
highly recommended [] to any future employer.” Ulin Dec., Ex. L at 96 (NOIT 25
response). 26 27 28 2 In 2015, USCIS further screened all DACA recipients for suspected gang
affiliations and found no reason to alter Mr. Gonzalez’s DACA status.
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1

G. MR. GONZALEZ’S ARREST AND RELEASE

2

On May 6, 2016, an acquaintance known to Mr. Gonzalez only as “Adolfo”

3 asked him to come to his house and care for his dogs while Adolfo was out of

4 town. Mr. Gonzalez agreed, having done so in the past without issue. Gonzalez

5 Dec. ¶ 9. He arrived at the house sometime between 11:30 a.m. and 1:00 p.m. Id.

6 ¶ 9. He was surprised to find two other people already at the house—a man Mr.

7 Gonzalez recognized only as “Romeo” and a woman he did not recognize. Id. ¶ 9.

8 After tending to the dogs, Mr. Gonzalez considered leaving them in the care of

9 Romeo and the woman. But without a car, he was unable to leave until his sister

10 arrived to take him to his early-evening-to-early-morning work shift. Id. ¶ 10.

11

At roughly 4:00 p.m., law enforcement officers knocked on the front door.

12 Id. ¶ 11. Mr. Gonzalez explained to the officers that it was not his home and that

13 he could not let them in without a search warrant. Id. ¶ 11. The officers stopped

14 trying to enter the house or speak to Mr. Gonzalez, though they continued to

15 surround the house. Id. ¶ 11. About an hour later, a man Mr. Gonzalez did not

16 recognize arrived, claiming to be the owner and asking Mr. Gonzalez to exit. Id. ¶

17 12. Mr. Gonzalez had to leave for work soon, and he came outside. Id. ¶ 13.

18

Relying on Defendants’ assurances—publicly and in his DACA approval

19 notices—that DACA status barred his apprehension as long as he had not

20 committed any crime, Mr. Gonzalez informed the officers of his DACA status and

21 his need to get to work. Id. ¶ 14. He showed them his EAD with C-33 DACA

22 classification. Id. ¶ 14. Nevertheless, CBP told him he was going to be detained

23 because he was not in the country legally and his DACA status did not matter. Id.

24 ¶ 15. An officer handcuffed him, while two others entered the house. Id. ¶¶ 16-17.

25 A few minutes later—without further questioning or explanation—the first officer

26 put him in a police car and took him away. Mr. Gonzalez did not see or hear that

27 officer speak to or engage with anyone who went inside the house. Id. ¶ 17.

28

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1

Mr. Gonzalez spent the next two days in immigration detention—threatened

2 with vague insinuations of wrongdoing. His repeated refrain was, “I don’t

3 understand why I’m being detained.” Id. ¶ 18. Eventually, Mr. Gonzalez agreed

4 to let officers review his cell phone contacts and communications. As they pored 5 over Mr. Gonzalez’s innocuous contact list and text messages, he saw the 6 disappointment in their faces. Id. ¶ 19. After the initial questioning, Mr. Gonzalez

7 was twice transferred to other detention facilities, where Defendants simply

8 ignored him for nearly a month. The questioning ceased entirely. Id. ¶¶ 21-22.

9 After two days of threats, abuse, unsubstantiated accusations, and a coerced phone

10 search, the officers clearly realized that Mr. Gonzalez was not of any interest.

11

On June 1, 2016, Immigration Judge McSeveney ordered Mr. Gonzalez

12 released on just $5,000 bond after determining that he was not a public safety

13 concern. DHS waived appeal. Mr. Gonzalez was finally released on June 3, 2016.

14 Id. ¶ 23; see Ulin Dec., Ex. M (bond and release order of Immigration Judge).

15

In the course of this litigation, Defendants have subsequently alleged that

16 CBP encountered twelve undocumented immigrants in the attic of the house, and

17 that the next day, three of the twelve identified a person “resembling” Mr.

18 Gonzalez in photo lineups. Tellingly, Defendants neither name the three witnesses

19 who allegedly identified Mr. Gonzalez nor disclose the results of the photo lineups

20 shown to the other nine individuals, who presumably did not identify him. Mr. 21 Gonzalez has repeatedly and unambiguously disavowed any knowledge of or

22 involvement in whatever wrongdoing might have occurred at the house—to CBP

23 officers during his detention, to Immigration Judge McSeveney at his bond

24 hearing, in a sworn declaration submitted to this Court, and in his response to

25 USCIS’s NOIT. Judge McSeveney determined that Mr. Gonzalez was credible 26 and did not present a public safety concern. And Defendants’ own conduct

27 strongly suggests that they concluded long ago that he was not involved. 28

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1

In nearly two years since his release, Mr. Gonzalez has never been charged

2 with a crime or had another encounter with law enforcement. Throughout the

3 course of this litigation, Defendants have made clear that Mr. Gonzalez has not

4 been under investigation for any wrongdoing surrounding the events of May 6,

5 2016 or otherwise since those two days of questioning immediately following his

6 arrest. Indeed, Defendants recently explained on December 8, 2017 that they “do

7 not take issue with [Mr. Gonzalez’s] ability to meet the DACA guidelines going

8 forward” (Dkt. 23-2 at 8), establishing their admission of the obvious: Mr.

9 Gonzalez has no disqualifying criminal offenses and does not pose a threat to

10 national security or public safety.

11

H. USCIS’S UNLAWFUL “AUTOMATIC” TERMINATION OF

MR. GONZALEZ’S DACA STATUS AND EAD

12

On May 7, 2016—just one day after Mr. Gonzalez was arrested—CBP

13 issued him an NTA. Its sole charge was unlawful presence in the United States

14 under 8 U.S.C. § 1182(a)(6)(A)(i). Ulin Dec., Ex. N (NTA). USCIS sent him a

15 “Notice of Action” dated May 23, 2016, purporting to automatically terminate his

16 DACA status and EAD. Ulin Dec., Ex. O (“Notice of Action”). On September 29,

17 2017, this Court vacated and preliminarily enjoined that termination as violating

18 the DACA SOP and the APA. The Court ordered Defendants to “fully comply

19 with the DACA SOP should Defendants elect to reconsider Plaintiff’s DACA

20 status” and to accept his DACA renewal application. Dkt. 12 at 13. Mr. Gonzalez

21 timely submitted a renewal application upon his DACA status reinstatement.

22 I. THE NOIT PROCESS

23

Six weeks after the Court entered its current Preliminary Injunction—and a

24 year and a half after Defendants ceased suspecting or investigating Mr. Gonzalez

25 of criminality—on November 13, 2017, USCIS issued Mr. Gonzalez an NOIT. Its

26 sole stated reasoning is:

27

Since DHS has determined that you are an enforcement

28

priority and ICE has informed USCIS that it is actively

pursuing your removal, USCIS will not contemporaneously

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conclude that removal action should continue to be deferred

1

in your case.

2 Ulin Dec., Ex. P (“NOIT”).

3

Of the six potential bases for DACA termination defined in the DACA SOP,

4 see supra at 8-9, the NOIT cites only number 6 (“exercising prosecutorial

5 discretion after removal has been deferred under DACA is not consistent with the

6 Department of Homeland Security’s enforcement priorities”). The NOIT does not

7 identify the asserted enforcement priorities or any source for them. Nor does it cite

8 a single fact (other than ICE’s litigation of removal proceedings for unlawful

9 presence) on which DHS or USCIS would rely in determining whether Mr. 10 Gonzalez indeed fits DHS’s asserted enforcement priorities.3

11

Mr. Gonzalez timely responded to the NOIT. The response explains that

12 Mr. Gonzalez continues to meet all of the objectively verifiable DACA criteria that

13 have always informed Defendants’ DACA status determinations, including the

14 lack of any disqualifying criminal offenses and Judge McSeveney’s determination

15 that he was credible and did not pose a threat to public safety. Ulin Dec., Ex. L at

16 88, 92 (NOIT response). It goes on to explain Defendants’ apparent agreement

17 with the Immigration Judge’s public safety determination. Id. at 93.

18

The response reminds Defendants that the litigation of removal proceedings

19 for unlawful presence has never been a bar to DACA status under the DACA

20 Memo, DACA SOP, and DACA FAQ, and that the litigation of those proceedings

21 would not “provide a reasoned basis for terminating DACA.” Id. at 89-91 (citing

22 Inland Empire—Immigrant Youth Collective v. Duke, 2017 WL 5800061, at *6-7

23 (C.D. Cal. Nov. 20, 2017) (“IEIYC”); Judulang v. Holder, 565 U.S. 42 (2011)).

24

Forced to address the NOIT’s assertion that he is now an “enforcement

25 priority” even though it “does not explain why” (id. at 93), Mr. Gonzalez’s

26

27 3 On November 16, 2017, the Immigration Judge terminated Mr. Gonzalez’s removal proceedings without prejudice. On December 8, 2017, ICE issued Mr. Gonzalez
28 another NTA. It again alleges nothing but unlawful presence under 8 U.S.C. § 1182(a)(6)(A)(i). Ulin Dec., Ex. Q (NTA).
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1 response recounts the facts surrounding his arrest and release by CBP in May

2 2016, his sworn denials of wrongdoing, and the determinations by Judge

3 McSeveney and DHS that he does not pose a threat to public safety. He explains:

4  He has never been charged with or convicted of any crime in any forum, and therefore does not have a DACA disqualifying (or any other) criminal offense.
5

6

 DHS has been fully aware of his encounter with CBP for more than a year and a half, and has allowed him to continue living freely in San Diego without ever

investigating him further.

7

8

 The Kelly Memo’s declaration that all persons who are not legally present in the United States or have been suspected of some wrongdoing are enforcement

priorities expressly does not apply to DACA recipients—and therefore cannot

9 form the basis of an assertion that Mr. Gonzalez is an enforcement priority

because ICE initiated removal proceedings against him on the sole charge of 10 unlawful presence.

11  “[T]o the extent that the NOIT—which does not even mention any criminal allegations—might be read to import them, Mr. Gonzalez is being deprived of
12 his due process rights, where the termination of DACA and employment authorization (and the liberty and property interests associated with the right to
13 remain in the United States and work lawfully) hinges on un-stated and uncharged criminal suspicions informally adjudicated without the
14 Constitutional and statutory protections of the criminal justice system.” Id. at 94.
15 USCIS issued its purported termination notice within three days of receiving
16 Mr. Gonzalez’s response—on December 21, 2017, the day before his DACA status
17 was set to expire. See Ulin Dec., Ex. R, “Termination Notice.” The Termination
18 Notice belatedly does what the NOIT neglected to do: it explains what facts USCIS
19 deems relevant to its decision on Mr. Gonzalez’s DACA status. It does not,
20 however, explain why—in the absence of any disqualifying criminal offenses or
21 any statement that Mr. Gonzalez poses a threat to public safety—his continued
22 DACA status is “not consistent with the DHS’s enforcement priorities.”
23 The Termination Notice relies on ICE’s litigation of removal proceedings in
24 Immigration Court. And it reflects a USCIS officer’s determination—following an
25 informal consideration—that Mr. Gonzalez’s sworn statements disavowing
26 criminality are “not credible.” Id., Ex. R at 196. That determination is based on
27 three factors: (1) Mr. Gonzalez’s presence at the house; (2) that the arrest record
28

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1 issued the day after the incident describes Mr. Gonzalez as “nervous” when a slew

2 of federal officers descended on him while he was minding his own business; and

3 (3) “that three individuals did identify you in connection with their smuggling.”

4 Id. Of course, it ignores that the same arrest record: (1) explains that whoever

5 allegedly smuggled those individuals into the house did so several hours before

6 Mr. Gonzalez arrived; (2) identifies two other male individuals at the house when

7 the officers arrived; and (3) sheds no light on the circumstances of the three (out of

8 twelve) purported identifications, which have never been examined by Mr.

9 Gonzalez or assessed by a neutral arbiter. See Ulin Dec., Ex. S (DHS Form I-213).

10

The Termination Notice acknowledges that Mr. Gonzalez has “not been

11 charged criminally or in immigration court for any crime related to the events of

12 May 6, 2016.” And USCIS does not dispute that he “meet[s] all other DACA

13 criteria.” Ulin Dec., Ex. R at 196, Termination Notice. Indeed, nowhere does

14 USCIS claim that Mr. Gonzalez poses a threat to national security or public safety.

15 The Termination Notice simply asserts USCIS’s unfettered “ultimate discretion to 16 determine whether deferred action is appropriate in any given case.” Id.4

17 III. ARGUMENT

18

A. PRELIMINARY INJUNCTION STANDARD

19

To obtain a preliminary injunction, a plaintiff must demonstrate that (1) he is

20 likely to succeed on the merits, (2) he is likely to suffer irreparable harm in the

21 absence of preliminary relief, (3) the balance of equities tips in his favor, and (4)

22 an injunction is in the public interest. Winter v. NRDC, Inc., 555 U.S. 7, 20

23 (2008). Under the Ninth Circuit’s sliding scale approach, “[s]erious questions 24 going to the merits and a balance of hardships that tips sharply towards the plaintiff 25 can support issuance of a preliminary injunction, so long as” the irreparable injury 26 and public interest elements are satisfied. Alliance for the Wild Rockies v. Cottrell,

27 4 On December 28, 2017, USCIS issued Mr. Gonzalez a purported denial of his renewal application as well. Even though the Termination Notice has yet to go into
28 effect, the denial notice relies solely on the unlawful termination. See Ulin Dec., Ex. T (purported renewal denial notice).
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1 632 F.3d 1127, 1135 (9th Cir. 2011). In other words, “[i]f the balance of harm tips

2 decidedly toward [Mr. Gonzalez], then [he] need not show as robust a likelihood of

3 success on the merits as when the balance tips less decidedly.” Rep. of the

4 Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988); see Arcamuzi v.

5 Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987) (“fair chance of

6 success on the merits” and a “significant threat of irreparable injury”).

7

B. MR. GONZALEZ IS LIKELY TO SUCCEED ON HIS APA

AND CONSTITUTIONAL CLAIMS—OR AT LEAST HAS

8

RAISED SERIOUS QUESTIONS ABOUT THE LAWFULNESS

OF HIS DACA TERMINATION

9

1. None of the INA’s Jurisdictional Bars Apply

10

This Court has already correctly held that neither 8 U.S.C. § 1252(g) nor 8

11 U.S.C. § 1252(b)(9) strips the Court of jurisdiction to decide the claims at issue

12 here. Section 1252(g) “does not deprive the Court of jurisdiction to entertain

13 Plaintiff’s claim that the termination of his DACA status did not comply with the

14 non-discretionary DACA SOP” because the Court (1) may consider “a purely legal 15 conclusion that does not challenge the Attorney General’s discretionary authority, 16 even if the answer . . . forms the backdrop against which the Attorney General later

17 will exercise discretionary authority,” and (2) “retain[s] jurisdiction to review

18 constitutional claims, even when those claims address [agency] discretion.” Dkt.

19 12 at 8 (citations omitted). And Section 1252(b)(9) does not apply to Mr.

20 Gonzalez’s “procedural challenge to termination of his DACA status, an issue 21 independent from any removal proceedings.” Dkt. 12 at 9.

22

Defendants may argue that Mr. Gonzalez is now challenging the outcome of

23 his DACA termination proceedings. He is not. Mr. Gonzalez is again challenging

24 Defendants’ failure to abide by their own non-discretionary guidelines. He is not

25 asking the Court to define Defendants’ enforcement priorities, but merely to 26 require Defendants to abide by their own existing definitions, as delineated in the

27 DACA Memo, DACA SOP, Kelly Memo, and DHS statements. He also brings 28 constitutional claims over which the Court “retains jurisdiction.”

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2. Mr. Gonzalez Is Likely to Succeed on the Merits of His APA

1

Claims

2

Under the APA, a court must “hold unlawful and set aside agency action,

3 findings, and conclusions found to be arbitrary, capricious, an abuse of discretion,

4 or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). An agency’s

5 failure to follow its own internal policies is a sufficient ground to set aside its
action. U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954); Alcaraz v. 6
INS, 384 F.3d 1150, 1162 (9th Cir. 2004) (collecting cases requiring agencies to 7
“abide by … internal policies,” including in immigration context). Agency action 8 must demonstrate “reasoned decision-making.” Judulang, 565 U.S. at 52-53.

9

a. Defendants Ignored Their Own DACA Termination

10

Policy

Federal agencies must comply with their own guidelines, policies, and 11

procedures “[w]here the rights of individuals are affected.” Morton v. Ruiz, 415 12

U.S. 199, 235 (1974). An agency is “bound by its regulations so long as they 13

remain operative,”—i.e., until the agency properly “repeal[s] them and 14

substitute[s] new rules in their place.” Romeiro de Silva v. Smith, 773 F.2d 1021, 15

1025 (9th Cir. 1985) (discussing INS’s internal deferred action instructions). 16

Unexplained departure from established practice is arbitrary and capricious and 17

must be set aside. FCC v. Fox TV Stations, Inc., 556 U.S. 502, 515 (2009). 18

Chapter 14 of the DACA SOP enumerates six bases for DACA termination. 19

If a DACA termination does not comport with one of those six bases, the 20

termination does not comply with the SOP and is therefore arbitrary action that 21
violates the APA and must be set aside.5 22

Defendants do not assert any of the SOP’s first five bases for termination— 23

error; fraud; EPS concerns; “disqualifying criminal offenses” or “public safety 24

concerns”; or “national security concerns—in Mr. Gonzalez’s NOIT or 25

26 5 As an initial matter, USCIS’s NOIT was deficient under the SOP because it did not provide the “grounds” upon which USCIS intended to terminate Mr. Gonzalez’s
27 DACA status. Without conveying the guidance upon which the determination would be made or the facts that USCIS deemed relevant, Mr. Gonzalez was forced to guess
28 how he might “overcome” the “adverse grounds” that the SOP contemplates an NOIT will contain. Ulin Dec., Ex. I at 80, Aug. 28, 2013 DACA SOP.
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1 Termination Notice. See supra at 13-16. The only asserted basis for his

2 termination is the sixth—that deferred action is “not consistent with DHS’s

3 enforcement priorities.” In making that determination, Defendants departed from

4 their own binding policies and thus violated the APA.

5

DHS has defined a two-tiered system of enforcement priorities via the Kelly

6 Memo, under which the DACA program remains operative:

7

(1) DACA recipients continue to be governed by the DACA Memo and

8 DACA SOP. If a DACA recipient meets the DACA Memo’s objectively verifiable

9 criteria, he or she remains, by definition, a “low priority case.” In other words, that

10 individual is not an enforcement priority. A reversal of that non-priority status

11 requires a finding that:

12  DACA status was conferred in error; or

13  the individual committed fraud in seeking DACA status; or

14  the individual has since been convicted or adjudicated guilty of a disqualifying

15 criminal offense (felony, significant misdemeanor, or multiple misdemeanors) 16 or presents “significant public safety concerns”6; or

17  the individual presents an EPS concern; or

18  the individual presents a national security concern.

19

(2) On the other hand, an individual without DACA status may be an

20 enforcement priority “regardless of the basis for removability” if he has merely

21 “been charged with any criminal offense that has not been resolved” or is

22 suspected of having “committed acts which constitute a chargeable criminal

23 offense.” Ulin Dec., Ex. D at 31, Kelly Memo.

24

Mr. Gonzalez’s Termination Notice does not allege error or fraud, that he

25 has a disqualifying criminal conviction or adverse adjudication, that he presents an

26 EPS or national security concern, or that he presents a public safety concern.

27 Indeed, the word “safety” does not appear in either the NOIT or the Termination

28 6 See Ulin Dec., Ex. U at 209, Apr. 4, 2013 DACA SOP.
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1 Notice; and the word “charge” appears only in acknowledging the lack of any.

2 Rather, Defendants purport to label Mr. Gonzalez an enforcement priority on

3 grounds applicable only to non-DACA recipients—i.e., a USCIS officer’s

4 determination through informal review of an NOIT and response that Mr.

5 Gonzalez’s sworn statements disavowing criminality are “not credible” and the

6 suspicion of that officer and one or more unidentified individuals at ICE that Mr.

7 Gonzalez committed criminal acts, which Defendants notably have neglected even

8 to investigate for nearly two years. This is a failure to follow unambiguous

9 internal rules. Tellingly, the only other basis for the assertion that Mr. Gonzalez is

10 an “enforcement priority” is ICE’s issuance of an NTA against him for nothing

11 more than unlawful presence. Of course, that is not “a reasoned basis for

12 terminating DACA.” IEIYC, 2017 WL 5800061, at *6-7.

13

In short, Defendants have applied the non-DACA definition of “enforcement

14 priority” to a DACA recipient, in violation of their own policies in the Kelly Memo

15 and DACA SOP. See Coyotl, 261 F. Supp. 3d at 1344 n.7 (“Defendants’ attempt

16 to rely on the Kelly Memo to justify their decisions reinforces the arbitrariness of

17 their actions against Plaintiff, when the Kelly Memo expressly exempts the DACA

18 program from its scope.”); compare Ulin Dec., Ex. U at 208, Apr. 4, 2013 DACA

19 SOP (“When a DACA requestor’s RAP sheet indicates an arrest, it is necessary to

20 determine whether the DACA requestor has been convicted of a crime.”)

21 (emphases added), with Ulin Dec., Ex. D at 31, Kelly Memo (prioritizing non-

22 DACA recipients “charged with any criminal offense that has not been resolved”

23 or suspected of “committ[ing] acts which constitute a chargeable criminal 24 offense”) (emphases added).7

25 7 Defendants may argue that defining “enforcement priorities” for DACA recipients
26 by reference to the other bases for termination renders the enforcement priority section of Chapter 14 redundant. Not so. That section simply reflects the well-
27 settled truth that an agency “may repeal [its policies] and substitute new rules in their place.” Romeiro de Silva, 773 F.2d at 1025. But Defendants are “bound by” the
28 existing rules “so long as they remain operative.” Id. Perhaps Defendants would have been within their rights to change the criteria for DACA termination or re-
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b. Defendants’ Action Is Arbitrary and Capricious 1
As Defendants repeatedly remind the Court, DACA status decisions are an 2
exercise of discretion. An agency must exercise discretion through “reasoned 3
decision-making.” Judulang, 565 U.S. at 52-53. A reviewing court must 4
“examin[e] the reasons for agency decisions—or, as the case may be, the absence 5
of such reasons.” Id. at 53. The exercise of discretion exercised pursuant to 6
promulgated rules cannot be a standardless foray. On the contrary, the agency 7
must “cogently explain why it has exercised its discretion in a given manner.” 8
Nat’l Parks Conserv. Assoc. v. EPA, 788 F.3d 1134, 1142 (9th Cir. 2015). 9
Pursuant to those rules, immigration decisions must be based on “relevant factors.” 10
Judulang, 565 U.S. at 55. “An agency may not . . . depart from a prior policy sub 11
silentio or simply disregard rules that are still on the books.” FCC, 556 U.S. at 12
515. And the agency must abide by its stated rationale, not post hoc 13
rationalizations. Burlington Truck Lines, Inc. v. U.S., 371 U.S. 156 (1962). 14
Defendants may disavow having applied the Kelly Memo’s new 15
enforcement priorities, and insist that their attempt to terminate Mr. Gonzalez’s 16
DACA status is based on and comports with the DACA Memo and SOP. Their 17
action remains arbitrary, capricious, and an abuse of discretion all the same. In a 18
single paragraph of the Termination Notice, USCIS (1) acknowledges that Mr. 19
Gonzalez has “not been charged criminally or in immigration court for any crime 20
related to the events of May 6, 2016,” (2) does not dispute that Mr. Gonzalez 21
“meet[s] all other DACA criteria” (which of course includes the lack of any public 22
23 define the prioritization of certain DACA recipients in the Kelly Memo or other
24 guidance. Indeed, they made several other changes to the DACA program, including the elimination of advance parole and the end of accepting applications. But the
25 Kelly Memo and DHS’s subsequent explanations delineate the agency’s tiered priorities and make clear that the DACA guidelines remain operative without any
26 change in DHS’s stated position in the DACA Memo that DACA recipients are “low priority case[s]” and do not “meet [DHS’s] enforcement priorities.” See supra at 6
27 (“We rely on guidance that was put in place in 2012 when the DACA program was initiated. That’s available on USCIS’s website and will tell you what the priorities
28 are for Immigration and Customs Enforcement and what they are for the Department at large. Those priorities have not changed.”).
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1 safety concerns), and (3) tells him that those considerations have no bearing on

2 whether he is an enforcement priority. Ulin Dec., Ex. R at 196, Termination

3 Notice. USCIS’s position amounts to nothing less than assertion of the same

4 unfettered discretion this Court already “categorically reject[ed].” Dkt. 12 at 10.

5

In Nicholas v. INS, 590 F.2d 802 (9th Cir. 1979), the Ninth Circuit explained

6 that an internal deferred action policy with “express criteria” and “periodic review

7 of non-priority status” “clearly and directly affects substantive rights,” including

8 “the ability of an individual subject to its provisions to continue residence in the

9 United States.” Id. at 807-08. Accordingly, “non-priority status” cannot be 10 terminated “at the convenience of the [agency].” Rather, the status depends on the 11 recipient’s continued eligibility under the “relevant” guidelines. Id.; see

12 McDonald v. Gonzales, 400 F.3d 684, 686-87 (9th Cir. 2005) (“Current INS policy

13 is reflected in an INS memo” that “lists five factors for the agent to weigh,” and

14 “[h]ad these instructions been followed in [this] case, it is hard to image that [the

15 plaintiff] would today be facing removal.”).

16

Because Defendants have acknowledged that Mr. Gonzalez has never been

17 convicted of a crime and does not pose a threat to public safety, their decision to

18 rescind his DACA because he is somehow an “enforcement priority” has no basis

19 in “reasoned decision-making,” or factors that are relevant to DACA status

20 decisions. It is based on a USCIS officer’s failure to comply with the DACA 21 Memo and the termination provisions of the DACA SOP. See Movsisian v.

22 Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005) (agency abuses its discretion when it

23 fails to provide a “reasoned explanation for its actions”); NRDC, Inc. v. EPA, 966

24 F.2d 1292, 1305 (9th Cir. 1992) (disparate treatment and departure from “normal .

25 . . process based on . . . unsubstantiated assumption[s]” is “arbitrary and 26 capricious”); U.S. v. One 1985 Mercedes, 917 F.2d 415, 422 (9th Cir. 1990)

27 (“Where the government does not act in a consistent and predictable manner, it 28 runs the risk of violating the [APA] and of having its action invalidated.”).

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1

Moreover, because the allegations in Mr. Gonzalez’s arrest record and

2 Termination Notice have never been tested in a competent forum, the Termination

3 Notice is clearly based on incomplete information, and for that additional reason

4 should be set aside. See Bertelsen v. Hartford Life Ins. Co., 1 F. Supp. 3d 1060 5 (E.D. Cal. 2014) (arbitrary and capricious to revoke—based on incomplete 6 information—eligibility for benefits that was based on previous careful

7 examinations); Petition of Guerrero-Morales, 512 F. Supp. 1328, 1329-30 (D.

8 Minn. 1981) (in reviewing denial of deferred action, court must look not only to

9 evidence supporting administrative finding, but also take into account anything in

10 the record that fairly detracts from its weight).

11

The only judicial determination of Mr. Gonzalez’s credibility resulted in his

12 immediate release from detention and a determination that he poses no threat to

13 public safety. Defendants did not object to or appeal that determination, and have

14 done nothing to impede Mr. Gonzalez’s peaceful return to the San Diego

15 community for nearly two years. He has not even been investigated again after 16 two days of questioning in May 2016. Consistent with those actions, Defendants

17 continue to acknowledge that he does not pose any safety threat. They are simply

18 making the bare assertion that he is an “enforcement priority” in disregard for the

19 DACA Memo and DACA SOP. By purporting to unmoor enforcement priority

20 determinations from the carefully delineated criteria of the DACA Memo and SOP, 21 Defendants seek to impose a “method for disfavoring deportable aliens . . . that

22 neither focuses on nor relates to an alien’s fitness to remain in the country.” That

23 is arbitrary and capricious. Judulang, 565 U.S. at 55.

24

3. Mr. Gonzalez Is Likely to Succeed on the Merits of His Due

Process Claims

25

If the Court believes that the DACA SOP countenances Defendants’ actions,

26

it should nevertheless set aside Mr. Gonzalez’s NOIT and Termination Notice for

27

failure to comply with the Due Process Clause of the Fifth Amendment, which

28

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1 applies to all ‘persons’ within the United States, including aliens, whether their

2 presence here is lawful, unlawful, temporary, or permanent.” U.S. v. Peralta-

3 Sanchez, 847 F.3d 1124, 1131 (9th Cir. 2017); see Zadvydas v. Davis, 533 U.S.

4 678, 693 (2001). The Constitution “imposes constraints on governmental 5 decisions which deprive individuals of ‘liberty’ or ‘property’ interests.” Mathews 6 v. Eldridge, 424 U.S. 319, 332 (1976). DACA status confers both liberty and

7 property interests within the meaning of the Due Process Clause, and any

8 deprivation of those interests must comport with the “essence of due process”:

9 adequate notice and “the opportunity to be heard at a meaningful time and in a

10 meaningful manner.” Id. at 333, 348-49 (emphases added).

11

a. DACA Status Confers Liberty and Property Interests

12

Liberty and property rights are a function of “the substance of the interest

13 recognized, not the name given that interest by the state.” Newman v.

14 Sathyavaglswaran, 287 F.3d 786, 797 (9th Cir. 2002). Defendants have conferred

15 meaningful legal rights on DACA beneficiaries—including lawful presence, 16 employment authorization, and access to certain federal benefits. In so doing, they

17 simultaneously conferred a constitutional right not to be deprived of those interests

18 without due process. See Regents v. DHS, 2018 WL 339144, at *25 (N.D. Cal.

19 Jan. 9, 2018) (“Defendants’ attempt to portray DACA as a program that did not

20 generate reliance interests is unconvincing [because] DACA recipients . . . 21 developed expectations based on the possibility that [they] could renew their

22 deferred action and work authorizations for additional two-year periods.”).

23

The “Constitution itself” confers the “narrow liberty interest” of Defendants’

24 “strict compliance” with the terms of the DACA program. Trinidad y Garcia v.

25 Thomas, 683 F.3d 952, 957 (9th Cir. 2012). More broadly, the most obvious 26 liberty interest conferred by DACA status is the fact that DHS considers a DACA

27 recipient—who, by definition, has lived in the United States since at least 2007— 28 “lawfully present.” As the Ninth Circuit has explained, even a person who “has

24
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1 run some fifty yards into the United States” and is immediately apprehended

2 “confronts the loss of a significant liberty interest.” U.S. v. Raya-Vaca, 771 F.3d

3 1195, 1203 & n.6 (9th Cir. 2014) (emphasis added). Liberty also encompasses the

4 ability to work, raise a family, and “form the other enduring attachments of life.” 5 Morrissey v. Brewer, 408 U.S. 471, 482 (1972). That is what the DACA program 6 conferred when it encouraged undocumented “Dreamers” like Mr. Gonzalez to

7 come forward and weave themselves into the country’s social fabric by seeking

8 employment, starting businesses, and buying homes and cars on the understanding

9 that as long as they kept their word to abide by the law, Defendants would deem

10 them lawfully present.

11

Property interests encompass more than tangible property and include any

12 claim of entitlement that stems from government-created “rules or understandings

13 that secure certain benefits.” Nozzi v. Housing Auth. of LA, 806 F.3d 1178, 1190-

14 91 (9th Cir. 2015). Mr. Gonzalez’s employment authorization is precisely that.

15 From 2011 to 2013, he could not find work because of his immigration status. 16 Defendants remedied that in 2013 by granting him an EAD and Social Security

17 Number, both of which they renewed in 2014. Once Defendants have conferred

18 such a crucial benefit, they are compelled to provide a fair and adequate process

19 before taking it away. See Bell v. Burson, 402 U.S. 535, 539 (1971) (because a

20 driver’s license may become essential to the pursuit of one’s livelihood, it cannot 21 be revoked without due process); Morrissey, 408 U.S. at 482 (parole revocation

22 requires due process because of the implicit promise that it will not be stripped

23 absent a failure to abide by its conditions); Singh v. Bardini, 2010 WL 308807, at

24 *7 (N.D. Cal. Jan. 19, 2010) (“Even if there is no constitutional right to be granted

25 asylum, . . . once granted, asylum status can[not] be taken away without any due 26 process protections.” ) (citation omitted).

27

In short, DACA status creates more than a unilateral expectation of lawful

28 presence and employment authorization—it constitutes Defendants’ “pledge” not

25
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1 to deprive recipients of those interests without due process. Arizona Dream Act

2 Coalition, 757 F.3d at 1066. Extending lawful presence to DACA recipients thus

3 “create[s] a constitutionally protected liberty interest,” Olim v. Wakinekona, 461

4 U.S. 238, 249 (1983), and the EAD creates an equally protected property interest.

5

b. Defendants Have Violated Procedural Due Process

6

The three-part Eldridge test for Procedural Due Process governs the

7 constitutionality of Defendants’ deprivation of Mr. Gonzalez’s liberty and property

8 interests. The Court must balance (1) the nature of Mr. Gonzalez’s interests and

9 the degree of potential deprivation, (2) the fairness and reliability of existing 10 procedures and the value of additional procedural safeguards, and (3) the public 11 interest. 424 U.S. at 335. By purporting to place the determination of whether Mr.

12 Gonzalez committed a crime nearly two years ago in the hands of a USCIS officer

13 via an informal procedure without any hearing, opportunity to confront evidence,

14 or cross-examine witnesses, Defendants have not provided a sufficiently fair and

15 reliable procedure. See McDonald, 400 F.3d at 690 (“[I]n severity [deportation] 16 surpasses all but the most Draconian criminal penalties. We therefore cannot deem

17 wholly irrelevant the long unbroken tradition of the criminal law that harsh

18 sanctions should not be imposed where moral culpability is lacking.”).

19

First, Mr. Gonzalez’s interests could hardly be more significant. DACA

20 termination threatens to completely deprive him, inter alia, of his basic ability to 21 remain in the only country he has ever called home, where he was raised; to avoid

22 removal to an unfamiliar country where he has not lived or even visited since he

23 was a small child; and to earn a living. See Dkt. 12 at 12 (“The [C]ourt concludes

24 that Plaintiff will suffer significant irreparable harm in the absence of an injunction

25 by losing his DACA status.”).

26

Second, “freedom from arbitrary adjudicative procedures is a substantive

27 element of one’s liberty, and due-process safeguards must be analyzed 28 accordingly.” Castillo v. Cnty. of Los Angeles, 959 F. Supp. 2d 1255, 1262 (C.D.

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1 Cal. 2013). In the absence of any criminal charge or adjudication, or a stated

2 public safety concern, it is anything but fair or reliable to allow a USCIS officer to

3 determine Mr. Gonzalez’s credibility or his involvement in criminal conduct via an

4 informal paper process nearly two years after all investigation ceased, especially

5 where Mr. Gonzalez’s ability to defer adverse immigration action hangs in the

6 balance. As an initial matter, Mr. Gonzalez’s NOIT provided the sort of “bare

7 notice” that is “plainly” insufficient to satisfy due process. Gete v. INS, 121 F.3d

8 1285, 1297 (9th Cir. 1997). It simply asserted, without citing to a single fact or

9 source of guidance, that Mr. Gonzalez is an enforcement priority undeserving of

10 continued DACA status. This alone suffices to illustrate the inadequacy of the

11 process used. Id.

12

More troublingly, the Termination Notice deems Mr. Gonzalez a criminal

13 and imposes a serious consequence—the loss of DACA status—despite his

14 repeated and sworn declarations to the contrary. It belatedly identifies the facts

15 that USCIS considers relevant, but offers no opportunity to rebut them. The

16 Supreme Court has explained that in “almost every setting where important

17 decisions turn on questions of fact, due process requires an opportunity to confront

18 and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U.S. 254, 269

19 (1970). Mr. Gonzalez is effectively being labeled a criminal—the paradigm case

20 for the right to confront adverse evidence. In these circumstances, the value of

21 additional safeguards is paramount. See Hicks v. Colvin, 2016 WL 7436050, at *3

22 (E.D. Ky. Dec. 21, 2016) (hearing devoid of opportunity to rebut government’s

23 factual assertions is not meaningful and violates due process) (citing Armstrong v. 24 Manzo, 380 U.S. 545 (1965)).8 However, Defendants have never even identified

25 the witnesses against Mr. Gonzalez, let alone afforded him an opportunity to

26 8 Because an informal determination of criminality with serious consequences is
27 anathema to our “concept of ordered liberty,” and because removal from the country in the absence of any culpability would visit such grievous harm, Defendants’ actions
28 “shock the conscience” and also amount to a violation of Mr. Gonzalez’s substantive due process rights. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 (1998).
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1 confront them, to learn what happened to other people arrested at the house or to

2 “Adolfo,” or to test the circumstances or reliability of the photo lineups Defendants

3 deem so important, or to examine either the three individuals who allegedly

4 identified him in those photo lineups or the nine individuals who did not.

5

Third, Defendants have acknowledged the value of DACA recipients to this

6 country, and have established procedures to protect them. The public interest is

7 not served by arbitrarily stripping Mr. Gonzalez of his EAD, leaving him

8 unemployed and financially vulnerable. “Complying with [their] constitutional

9 obligations . . . would not be unduly burdensome.” Gete, 121 F.3d at 1298. 10 Defendants already have an avenue for administrative review of the credibility of 11 any criminal suspicions against Mr. Gonzalez that does not amount to a full-blown

12 criminal trial, but nevertheless puts the decision in the hands of a competent

13 neutral arbiter whose expertise is actually suited to such determinations and allows

14 Mr. Gonzalez to confront witnesses and test the evidence against him. Defendants

15 can issue an NTA for something more than mere unlawful presence and adjudicate 16 the question of whether Mr. Gonzalez was involved in the alleged criminal activity

17 that forms the basis for his DACA termination in Immigration Court.

18

C. MR. GONZALEZ IS SUFFERING IRREPARABLE HARM

19

Defendants’ termination of Mr. Gonzalez’s DACA status is causing him at

20 least three forms of immediate and irreparable harm. First, he is being deprived of 21 the Government’s recognition of his lawful presence in the only country he has

22 ever called home, Arizona Dream Act Coalition, 757 F.3d at 1058-59, without due

23 process. See Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“It is well-

24 established that the deprivation of constitutional rights unquestionably constitutes

25 irreparable injury.”).

26

Second, he is being stripped of the right to lawful employment, a core

27 benefit of DACA status, leaving him less able to provide for himself and his 28 family. These lost opportunities are the essence of irreparable harm. See

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1 Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 543 (1985) (Supreme Court has

2 “frequently recognized the severity of depriving a person of the means of

3 livelihood”); Enyart v. Nat’l Conf. of Bar Examiners, Inc., 630 F.3d 1153, 1165

4 (9th Cir. 2011). Mr. Gonzalez’s age and socioeconomic status only increase these

5 harms. Arizona Dream Act Coalition, 757 F.3d at 1068 (DACA recipients’

6 injuries heightened by “young age and fragile socioeconomic position”;

7 “[s]etbacks early in their careers are likely to haunt [them] for the rest of their

8 lives”). This is simply “productive time irretrievably lost.” Chalk v. U.S. Dist. Ct.,

9 840 F.2d 701, 710 (9th Cir. 1988).

10

Finally, these concerns are all the more pressing given Defendants’

11 purported denial of Mr. Gonzalez’s DACA renewal application on the sole stated

12 basis of their unlawful purported Termination Notice.

13

D. THE BALANCE OF EQUITIES FAVORS MR. GONZALEZ, AND AN INJUNCTION IS IN THE PUBLIC INTEREST

14

Neither the Government nor the public has an interest in depriving Mr.

15 Gonzalez of the right to remain lawfully present in the only country he knows,

16 work, and pay taxes. U.S. v. Raines, 362 U.S. 17, 27 (1960) (“[T]here is the

17 highest public interest in the due observance of all the constitutional guarantees.”).

18 Mr. Gonzalez has lived in the United States for sixteen years, maintained a clean

19 criminal record, and given Defendants no reason to think he poses any threat to the

20 public—as the Immigration Judge found he did not when releasing him on just 21 $5,000 bond in June 2016, and Defendants reaffirmed when they acknowledged

22 that he satisfies DACA’s eligibility criteria during the course of this litigation and

23 in the purported Termination Notice.

24

Moreover, it is abundantly clear that Mr. Gonzalez’s DACA status was

25 terminated in violation of Defendants’ own binding procedures. The Government 26 has an interest in maintaining adherence to its procedures, and “cannot suffer harm

27 from an injunction that merely ends an unlawful practice.” Rodriguez v. Robbins, 28 715 F.3d 1127, 1145 (9th Cir. 2013).

29
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION AND IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 3:17-cv-01840-JM-NLS Document 39-1 Filed 01/12/18 PageID.982 Page 36 of 37

1

By contrast, Mr. Gonzalez would suffer greatly from the denial of an

2 injunction—by losing Defendants’ recognition of his lawful presence without the

3 basic protections of due process, losing his ability to work “on the books,” and

4 having his DACA renewal application summarily denied. Mr. Gonzalez has a 5 demonstrated history of contributing to the San Diego community and following 6 the law. The public’s interest lies in assuring that he and others who play by the

7 rules are not deprived of their liberty and property interests without due process.

8 See Coyotl, 261 F. Supp. 3d at 1344 n.7 (“Defendants argue that their interest in

9 enforcing immigration laws outweighs any harms alleged by Plaintiff. Defendants’ 10 interest in enforcing immigration laws does not justify them running roughshod 11 over Plaintiff by ignoring their own required procedures prior to undertaking action

12 to deny or terminate her DACA status.”).

13 IV. CONCLUSION

14

For all of these reasons, Defendants’ purported termination of Mr.

15 Gonzalez’s DACA status should be enjoined and set aside. Defendants’ purported

16 denial of his DACA renewal application should also be enjoined because by its

17 own terms it relies on nothing more than the unlawful termination.

18 Dated: January 12, 2018 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,
/s/ John C. Ulin John C. Ulin (SBN 165524) john.ulin@apks.com Jaba Tsitsuashvili (SBN 309012) jaba.tsitsuashvili@apks.com ARNOLD & PORTER KAYE SCHOLER LLP 777 South Figueroa Street, 44th Floor Los Angeles, CA 90017-5844 T: (213) 243-4000 F: (213) 243-4199
Attorneys for Plaintiff ALBERTO LUCIANO GONZALEZ TORRES

30
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION AND IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 3:17-cv-01840-JM-NLS Document 39-1 Filed 01/12/18 PageID.983 Page 37 of 37

1

CERTIFICATE OF ELECTRONIC FILING

2

3

I hereby certify that on January 12, 2018, I electronically filed the foregoing

4 document with the Clerk of the Court using CM/ECF.

5

6

/s/ John Ulin

7

8

9 10 11

12

13

14

15 16

17

18

19

20 21

22

23

24

25 26

27 28

31
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION AND IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

 
 Case 3:17-cv-01840-JM-NLS Document 44 Filed 02/05/18 PageID.1240 Page 1 of 37

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
Attorneys for Defendants

8

9

UNITED STATES DISTRICT COURT

11

SOUTHERN DISTRICT OF CALIFORNIA

12

13

ALBERTO LUCIANO

) Case No. 3:17-CV-01840-JM-(NLS)

14 GONZALEZ TORRES,

)

15

)

Plaintiff,

) DEFENDANTS’ MEMORANDUM

16

) OF POINTS AND AUTHORITIES

17

v.

) IN OPPOSITION TO PLAINTIFF’S

18

U.S. DEPARTMENT OF

) MOTION FOR PRELIMINARY ) INJUNCTION [DKT. 39].

19 HOMELAND SECURITY, et al., )

20

)

Defendants.

)

21

)

22

23

24

25

26

27

28

3:17-CV-01840-JM-(NLS)

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1

TABLE OF CONTENTS

2

3 TABLE OF AUTHORITIES ...............................................................................................ii

4

I. Introduction........................................................................................................ 1

5

6

II. Background ........................................................................................................ 1

7 ARGUMENT ....................................................................................................................... 2
8
I. Standards of Review ......................................................................................... 2
9

11

III. Plaintiff Cannot Sustain the Requirements for Injunctive Relief ...................... 3

12

13

A. Plaintiff is not Likely to Succeed on the Merits ....................................... 3

14

1. This Court Lacks Jurisdiction, and any Judicial

15

Challenges to Removal Must be Brought in a

Petition for Review........................................................................ 3

16

17

a. The INA Limits Review of Plaintiff’s Claims which Arise

18

from DHS’s Decision to Commence and Adjudicate

Plaintiffs’ Removal Proceedings ........................................... 4
19

20

b. Judicial Review of DACA Termination Based on NTA Issuance is

21

also Barred under 5 U.S.C. § 701(a)(2)............................................. 11

22

23

c. Plaintiff Cannot State a Constitutional Claim because the

Termination of DACA and Employment Authorizations does not

24

Implicate a Constitutional Interest .................................................... 13

25

26

27

28

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1

2. Plaintiff is not Likely to Succeed on His Claims Under the

APA or Constitution ........................................................... 16

2

3

a. USCIS’s DACA Termination Fully Complied with Its

SOP and Other Policies................................................ 16

4

5

b. USCIS’s DACA Termination was Neither Arbitrary nor

6

Capricious .................................................................... 18

7
c. Plaintiff Received All the Process He is Due...................... 21
8

9

B. The Remaining Preliminary Injunction Factors Favor Defendants ....... 25

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3:17-CV-01840-JM-(NLS) ii

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1

TABLE OF AUTHORTIES

2

CASES

3

Alcaraz v. INS, 4 384 F.3d 1150 (9th Cir. 2004) ..........................................................................................5

5
6 Ali v. United States, 849 F.3d 510 (1st Cir. 2017) .......................................................................................... 24
7

8 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) .......................................................................................... 2
9

11 Arpaio v. Obama, 12 797 F.3d 11 (D.C. Cir. 2015)................................................................................4, 12, 15

13 Bd. of Regents of State Colleges v. Roth, 14 408 U.S. 564 (1972) .......................................................................................................14

15 Bertelsen v. Hartford Life Ins. Co., 16 1 F. Supp. 3d 1060 (E.D. Cal. 2014) ..............................................................................19

17 Blantz v. Cal. Dep’t of Corr. & Rehab., 18 727 F.3d 917 (9th Cir. 2013) ..........................................................................................14

19
Botezatu v. INS, 20 195 F.3d 311 (7th Cir. 1999) ............................................................................................5
21
Carranza, v. I.N.S., 22 277 F.3d 65 (1st Cir. 2002) ............................................................................................13
23
24 Castillo v. Cnty. of Los Angeles, 959 F. Supp. 2d 1255 (C.D. Cal. 2013)..........................................................................21
25
26 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) ....................................................................................................... 23
27

28

3:17-CV-01840-JM-(NLS) ii

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1 Colotl v. Kelly, 261 F. Supp. 3d 1328 (N.D. Ga. June 12, 2017) .......................................................... 5, 6
2
3 De Mercado v. Mukasey, 566 F.3d 810 (9th Cir. 2009) .......................................................................................... 14
4
5 Earth Island Inst. v. Carlton, 6 626 F.3d 462 (9th Cir. 2010) ............................................................................................2 7 F.C.C. v. Fox Television Stations, Inc., 8 556 U.S. 502 (2009) .................................................................................................20, 21 9 Fabian-Lopez v. Holder, 11 No. 11-71513, 540 F. App’x 760 (9th Cir. Apr. 29, 2013) ..............................................7 12 Garcia v. Holder, 13 No. 07-60271, 320 F. App’x 288 (9th Cir. April 9, 2009).............................................14
14
15 Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) ............................................................................................. 11
16
17 Garcia-Herrera v. Asher, 585 F. App’x 439 (9th Cir. 2014).....................................................................................7
18
19 Gerhart v. Lake Cnty., Mont., 20 637 F.3d 1013 (9th Cir. 2011) ........................................................................................14 21 Gete v. INS, 22 121 F.3d 1285 (9th Cir. 1997) ........................................................................................23 23 Gilbert v. Homar, 24 520 U.S. 924 (1997) .......................................................................................................22 25 Guerreo-Morales, 26 512 F. Supp. 1328 (D. Minn. 1981) 27 aff’d. 399 F.3d 900 (8th Cir. 2005) ...........................................................................19, 20
28
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1 Heckler v. Chaney, 470 U.S. 821 (1985) ................................................................................................passim
2
3 ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270 (1987) ....................................................................................................... 11
4
5 Inland Empire—Immigrant Youth Collective v. Duke, 6 No. EDCV 17–2048, 2017 WL 5900061 (C.D. Cal. Nov. 20, 2017) ............................17
7 J.E.F.M. v. Lynch, 8 837 F.3d 1026 (9th Cir. 2016) ............................................................................10, 11, 21
9 Jeronimo v. U.S. Atty. Gen., 11 330 F. App’x 821 (11th Cir. 2009).................................................................................22
12 Judulang v. Holder, 13 565 U.S. 42 (2011) .........................................................................................................20
14
Ky. Dep’t of Corrs. v. Thompson, 15 490 U.S. 454 (1989) .................................................................................................14, 15
16
Leiva-Perez v. Holder, 17 640 F.3d 962 (9th Cir. 2011) ............................................................................................3
18
19 Lincoln v. Vigil, 508 U.S. 182 (1993) ....................................................................................................... 11
20
21 Martinez v. Napolitano, 704 F.3d 620 (9th Cir. 2012) .......................................................................................... 11
22
23 Mathews v. Diaz, 24 426 U.S. 67 (1976) .........................................................................................................25
25 Mathews v. Eldridge, 26 424 U.S. 319 (1976) .......................................................................................................22
27 McNary v. Haitian Refugee Cir., Inc., 28 498 U.S. 479 (1991) .........................................................................................................6
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1
Mendez-Garcia v. Lynch, 2 840 F.3d 655 (9th Cir. 2016) ..........................................................................................14
3
Morales de Soto v. Lynch, 4 824 F.3d 822 (9th Cir. 2016)...................................................................................... 4, 12
5
Morrissey v. Brewer, 6 408 U.S. 471 (1972) .......................................................................................................14
7
Movsisian v. Ashcroft, 8 395 F.3d 1095 (9th Cir. 2005) ........................................................................................19
9
11 Nat. Res. Def. Council, Inc. v. U.S. E.P.A., 966 F.2d 1292 (9th Cir. 1992) ........................................................................................ 19
12
13 Nicholas v. INS, 590 F.2d 802 (9th Cir. 1979) ........................................................................................ 7, 8
14
15 Nken v. Holder, 16 556 U.S. 418 (2009) .......................................................................................................25
17 Olim v. Wakinekona, 18 461 U.S. 238 (1983) .......................................................................................................14
19 Omar v. McHugh, 20 646 F.3d 13 (D.C. Cir. 2011)..........................................................................................15
21 Pasquini v. Morris, 22 700 F.2d 658 (11th Cir. 1983) ........................................................................................13
23
Perales v. Casillas, 24 903 F.2d 1043 (5th Cir. 1990) ........................................................................................12
25
Pilapil v. INS, 26 424 F.2d 6 (10th Cir. 1970) 27 cert denied, 400 U.S. 908 (1970) ...................................................................................14
28
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1 Raffington v. Cangemi, No. CIV. 04-3846, 2004 WL 2420642 (D. Minn. Oct. 6, 2004) ................................... 19
2
3 Ramirez-Perez v. Ashcroft, 336 F.3d 1001 (9th Cir. 2003) .......................................................................................... 6
4
5 Rank v. Nimmo, 6 677 F.2d 692 (9th Cir. 1982)
cert. denied, 459 U.S. 907 (1982) .................................................................................. 19
7
8 Regents of Univ. of California v. United States Dep’t of Homeland Sec., No. C 17-05211 WHA, 2018 WL 339144 (N.D. Cal. Jan. 9, 2018) ............................. 15
9
11 Reno v. Am.-Arab Anti-Discrimination Comm., 12 525 U.S. 471 (1999) ................................................................................................passim
13 Rodriguez v. Sessions, 14 No. 15-72487, 2017 WL 695192 (9th Cir. Feb. 22, 2017)...............................................7
15 Romeiro de Silva v. Smith, 16 773 F.2d 1021 (9th Cir. 1985) ..................................................................................... 7, 8
17 Sandgathe v. Chater, 18 108 F.3d 978 (9th Cir. 1997) ..........................................................................................24
19 Sanchez v. Holder, 20 No. 15CV0089-GPC, 2015 WL 4249446 (S.D. Cal. July 13, 2015)............................... 7
21 Senate of State of Cal. v. Mosbacher, 22 968 F.2d 974 (9th Cir. 1992) ............................................................................................2
23 Silva v. United States, 24 866 F.3d 938 (8th Cir. 2017) ........................................................................................4, 5
25
Singh v. Bardini, 26 No. 09-cv-3382, 2010 WL 308807 (N.D. Cal. Jan. 19, 2010) .......................................15
27
Singh v. Gonzales, 28 499 F.3d 969 (9th Cir. 2007) ..........................................................................................11
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1 Sissoko v. Rocha, 509 F.3d 947 (9th Cir. 2007) ............................................................................................ 6
2
3 Torres-Aguilar v. INS, 246 F.3d 1267 (9th Cir. 2001) .......................................................................................... 6
4

5 Town of Castle Rock v. Gonzales, 6 545 U.S. 748 (2005) ...................................................................................................4, 13

7 Trinidad y Garcia v. Thomas, 8 683 F.3d 952 (9th Cir. 2012).......................................................................................... 15

9 U.S. v. Raya-Vaca, 11 771 F.3d 1195 (9th Cir. 2014) ........................................................................................15

12 United States v. Armstrong, 13 517 U.S. 456 (1996) .................................................................................................12, 13

14 United States v. Hovsepian, 15 359 F.3d 1144 (9th Cir. 2004) ..........................................................................................5

16
United States v. Lee, 17 274 F.3d 485 (8th Cir. 2001) ..........................................................................................13

18
United States v. One 1985 Mercedes, 19 917 F.2d 415 (9th Cir. 1990) ..........................................................................................19

20

21

Univ. of Texas v. Camenisch, 451 U.S. 390 (1981) ......................................................................................................... 2

22

23 Vasquez v. Aviles, 639 F. App’x 898 (3d Cir. 2016) ...................................................................................... 7
24

25 Velasco-Gutierrez v. Crossland, 732 F.2d 792 (10th Cir. 1984) ........................................................................................ 15
26

27 Vilchiz-Soto v. Holder, 28 688 F.3d 642 (9th Cir. 2012) ............................................................................................7

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1 Walter v. Reno, 145 F.3d 1032 (9th Cir. 1998) .......................................................................................... 6
2
3 Wayte v. United States, 470 U.S. 598 (1985) ................................................................................................. 12, 13
4

5 Wilkinson v. Austin, 6 545 U.S. 209 (2005) .................................................................................................22, 23

7 Winter v. Nat’l Res. Def. Council, 8 555 U.S. 7 (2008) .............................................................................................................2

9 Wong v. United States, 11 373 F.3d 952 (9th Cir. 2004) ........................................................................................6, 7

12 Vasquez v. Aviles, 13 639 F. App’x 898 (3d Cir. 2016) ..................................................................................... 7

14 Vilchiz-Soto v. Holder, 15 688 F.3d 642 (9th Cir. 2012)............................................................................................ 7

16 Zolotukhin v. Gonzales, 17 417 F.3d 1073 (9th Cir.2005) .........................................................................................24

18

STATUTES

19
5 U.S.C. § 701(a)(1).............................................................................................................3
20

21 5 U.S.C. § 701(a)(2)....................................................................................................passim

22 5 U.S.C. § 702......................................................................................................................3
23
24 5 U.S.C. § 704...................................................................................................................... 3
25 5 U.S.C. § 706(2)(A)............................................................................................................3

26 5 U.S.C. § 706(2)(D)............................................................................................................ 3
27
8 U.S.C. § 1252(a)(2)(B)(i)..................................................................................................6
28

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1 8 U.S.C. § 1252(a)(5).........................................................................................................10 2 8 U.S.C. § 1252(b)(9)......................................................................................................... 10
3
8 U.S.C. § 1252(g) ......................................................................................................passim
4
REGULATIONS
5
6 8 C.F.R. § 274a.12(c)(14) ..................................................................................................15 7 8 C.F.R. § 274a. 14(a)(1)(ii) .............................................................................................. 25
8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1 I. Introduction

2

Plaintiff’s Second Amended Complaint challenges U.S. Citizenship and

3 Immigration Services’ (“USCIS”) discretionary termination of his DACA and

4 employment authorization after notice and an opportunity respond. Plaintiff now seeks an

5 injunction setting aside Defendants’ termination of Plaintiff’s DACA, and subsequent

6 denial of his DACA renewal request. Dkt. No. 39-1 at 30.

7

The Court must deny Plaintiff’s motion because the Court should not allow

8 Plaintiff to overturn, even temporarily, a decision clearly based in Defendants’ discretion,

9 exercised in a manner that is fully compliant with Defendants’ established procedures.

11 Nor should the Court recognize constitutional rights where none exist. This Court lacks

12 jurisdiction over Plaintiff’s claims because: the Immigration and Nationality Act (“INA”)

13 precludes review over Defendants’ decision and actions regarding the adjudication of

14 Plaintiff’s removal proceedings – including the termination of DACA – and any claims

15 the INA preserves for review must be channeled through Plaintiff’s removal proceedings;

16 Defendants’ exercise of prosecutorial discretion is not appropriate for judicial review; and

17 the Plaintiff cannot establish a constitutional interest sufficient to proceed on his Due

18 Process claims. Even were the Court to find jurisdiction, Plaintiff cannot demonstrate a

19 likelihood of success on the merits because the process Defendant received and the

20 ultimate decision terminating his DACA were fully compliant with the U.S. Constitution

21 and administrative process. A decision granting Plaintiff the relief he seeks would be

22 tantamount to a finding that Defendants lack the discretion to terminate Plaintiff’s DACA

23 – a proposition that is both unsupported by the corresponding agency guidance, and is

24 also contrary to Ninth Circuit and Supreme Court precedent.

25 II. Background

26

Here, as a result of the Court’s September 29, 2017 Order, USCIS reinstated

27 Plaintiff’s DACA, accepted his DACA renewal request, issued Plaintiff a Notice of Intent

28 to Terminate (NOIT) his reinstated DACA, Dkt. Nos. 14-1 & 14-2; Dkt. No. 39-6 at 191-

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1 192, and have now issued a Termination Decision (“Decision”) that will terminate

2 Plaintiff’s DACA as of December 21, 2017, upon further order of this Court. See Dkt.

3 No. 39-6 at 194-197. That Decision specifically referenced the DACA SOP, Dkt. No. 39-

4 6 at 195 (“If after consulting with ICE, USCIS determines that exercising prosecutorial

5 discretion after removal has been deferred under DACA is not consistent with the

6 Department of Homeland Security's enforcement priorities . . . .”), quoting Dkt. No. 2-9

7 at 15, and goes on to consider Plaintiff’s arguments in response to USCIS’s NOIT before

8 concluding, the agency’s discretion, that termination of DACA is warranted.

9

ARGUMENT

11 I. Standards of Review

12

“The purpose of a preliminary injunction is merely to preserve the relative

13 positions of the parties until a trial on the merits can be held.” Univ. of Texas v.

14 Camenisch, 451 U.S. 390, 395 (1981). As a result, it is generally inappropriate at the

15 “preliminary-injunction stage to give a final judgment on the merits.” Id.; see Senate of

16 State of Cal. v. Mosbacher, 968 F.2d 974, 978 (9th Cir. 1992) (holding that “judgment on

17 the merits in the guise of preliminary relief is a highly inappropriate result”).

18

A plaintiff seeking a preliminary injunction “must establish” that: (1) it is likely to

19 succeed on the merits of its claims; (2) it is likely to suffer irreparable harm absent

20 preliminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is in

21 the public interest. Winter v. Nat’l Res. Def. Council, 555 U.S. 7, 20 (2008). Preliminary

22 injunctive relief is an extraordinary remedy never awarded as of right, id. at 20, and the

23 party seeking such relief bears the burden of establishing the prerequisites to this

24 extraordinary remedy. Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010).

25 Alternatively, a party must show “‘serious questions going to the merits’ and a hardship

26 balance that tips sharply toward the plaintiff,” as well as a likelihood of irreparable harm,

27 and that the injunction is in the public interest. Alliance for the Wild Rockies v. Cottrell,

28 632 F.3d 1127, 1132 (9th Cir. 2011). Showing “serious questions going to the merits”

3:17-CV-01840-JM-(NLS)
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1 requires a plaintiff to demonstrate a “substantial case for relief on the merits.” Leiva-

2 Perez v. Holder, 640 F.3d 962, 967-68 (9th Cir. 2011).

3 III. Plaintiff Cannot Sustain the Requirements for Injunctive Relief.

4 A. Plaintiff is not Likely to Succeed on the Merits.

5

Whether viewed as a preliminary or permanent injunction, the Court cannot grant

6 Plaintiff relief because he cannot succeed on the merits. This Court lacks jurisdiction to

7 review Defendant’s discretionary determination to terminate Plaintiff’s DACA. Additionally,

8 nothing in the Administrative Procedure Act (“APA”) or constitutional jurisprudence

9 establishes a right to review or constrain DHS’s exercise of discretion or to grant Plaintiff

11 procedural rights other than those available to him through his removal proceedings.

12

1. This Court Lacks Jurisdiction, and any Judicial Challenges to Removal

13

Must be Brought in a Petition for Review.

14

The APA permits persons aggrieved by final agency action to obtain judicial review in

15 federal court where “there is no other adequate remedy in a court.” See 5 U.S.C. §§ 702, 704. A

16 reviewing court shall set aside agency action found to be “arbitrary, capricious, an abuse of

17 discretion, or otherwise not in accordance with law,” or “without observance of procedure

18 required by law.” 5 U.S.C. § 706(2)(A), (D). However, the APA precludes judicial review of

19 agency decisions when “statutes preclude judicial review,” or when the decision is “committed

20 to agency discretion by law.” 5 U.S.C. § 701(a)(1), (a)(2); see Heckler v. Chaney, 470 U.S. 821,

21 830 (1985) (explaining that “even where Congress has not affirmatively precluded review,

22 review is not to be had if the statute is drawn so that a court would have no meaningful standard

23 against which to judge the agency's exercise of discretion.”).

24

Congress enacted section 1252(g) to specifically preclude judicial review of the

25 discretionary decision to initiate removal proceedings, and the actions and decisions arising out

26 of such decisions. See Reno v. Am.-Arab Anti-Discrimination Comm. (“AADC”), 525 U.S. 471,

27 483-85 (1999) (finding section 1252(g) also precludes review of the discretionary decision to

28 not initiate removal proceedings). Furthermore, in Heckler, the Supreme Court held that “an

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1 agency’s decision not to take enforcement action should be presumed immune from

2 judicial review under § 701(a)(2).” 470 U.S. 821, 832.

3

Here, the INA specifically precludes review of the actions that Plaintiff challenges.

4 Moreover, the challenged action, an individual DACA decision, falls squarely within that

5 category of actions for which there is no law to apply like: decision implicating

6 prosecutorial discretion. See Heckler, 470 F.3d at 830; see also Morales de Soto v. Lynch,

7 824 F.3d 822, 828 (9th Cir. 2016) (noting that “the exercise of prosecutorial discretion is

8 a type of government action uniquely shielded from and unsuited to judicial

9 intervention”); accord Arpaio v. Obama, 797 F.3d 11, 16 (D.C. Cir. 2015) (explaining that

11 “[i]n making immigration enforcement decisions, the executive considers a variety of

12 factors”), cert. denied, 136 S. Ct. 900, (2016), reh’g denied, 136 S. Ct. 1250 (2016).

13 Contrary to Plaintiff’s arguments, Defendants’ guidance does not curtail the well-

14 recognized discretion with regard to deferred action decisions.

15

Additionally, the Court lacks jurisdiction over Plaintiff’s constitutional claims

16 because Plaintiff necessarily lacks a protected constitutional interest in the DACA

17 termination process, because the ultimate relief he seeks – deferred action – is

18 discretionary. Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005).

19

a. The INA Limits Review of Plaintiff’s Claims which Arise from

20

DHS’s Decision to Commence and Adjudicate Plaintiff’s Removal Proceedings.

21

Through the INA, as amended by the REAL ID Act of 2005 and codified at 8

22 U.S.C. § 1252(g), Congress explicitly eliminated judicial review over “any cause or claim

23 by or on behalf of any alien . . . arising from the decision or action . . . to commence

24 proceedings, adjudicate cases, or execute removal orders against any alien under this

25 chapter.” 8 U.S.C. § 1252(g). Section 1252(g) was “directed against a particular evil:

26 attempts to impose judicial constraints upon prosecutorial discretion.” AADC, 525 U.S. at

27 485 n.9; cf. Silva v. United States, 866 F.3d 938, 940 (8th Cir. 2017) (rejecting contention

28 that section 1252(g) applies only to discretionary decisions of the Secretary).

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1

The fact that Plaintiff frames his claim as a challenge to a DACA determination

2 rather than expressly requesting the enjoining of adjudication of his removal proceedings

3 is irrelevant because section 1252(g) precludes judicial review of “any” claim “arising”

4 from “the decision or action” to adjudicate cases (not just express challenges to the

5 adjudication itself). See, e.g., Alcaraz v. INS, 384 F.3d 1150, 1160-61 (9th Cir. 2004)

6 (finding review of the reopening of removal proceedings, but not the administrative

7 closure of proceedings, was barred from review as an action related to the decision to

8 commence removal); Botezatu v. INS, 195 F.3d 311, 314 (7th Cir. 1999) (citing AADC,

9 525 U.S. at 944 (discussing the scope of section 1252(g) as including “various decisions .

11 . . leading up to order consequent upon final orders of deportation.”)).

12

Additionally, the Court should reject, as contrary to section 1252(g), Plaintiff’s

13 contention that he is challenging the Government’s decision-making process rather than

14 the final decision itself. Dkt. No. 39-1 at 17. Section 1252(g) is not limited to claims

15 arising from the adjudication of cases or that his claims nor is it limited to only

16 discretionary actions. Cf. Silva, 866 F.3d at 940. Defendants disagree with the Court’s

17 prior citation to United States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004), for the

18 proposition that judicial review is preserved for purely legal conclusions. Dkt. No. 12 at

19 8. There, the Ninth Circuit held that section 1252(g) did not apply because “the gravamen

20 of [the alien’s] claim does not arise from the Attorney General’s decision or action to

21 commence proceedings, adjudicate cases, or execute removal orders.” Hovsepian, 359

22 F.3d at 1155 (9th Cir. 2004).1 Additionally, Colotl v. Kelly, 261 F. Supp. 3d 1328 (N.D.

23 Ga. June 12, 2017), is of no assistance here. There, the court noted that section 1252(g)

24

25

26 1 Hovsepian considered a purely legal question preceding a discretionary decision. Here, however, the 27 DACA SOP identifies threshold criteria for DACA consideration, but it does not mandate granting DACA
if those threshold criteria are met. See DACA SOP Chapter 8 at 45 (April 2013 version) (“Individuals may 28 be considered for DACA upon showing that they meet the prescribed guidelines . . .”), available at
https://cliniclegal.org/sites/default/files/attachments/daca_sop_4-4-13.pdf (last visited Feb. 5, 2018).

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1 eliminates “jurisdiction to review the government’s ultimate discretionary determination

2 as to Plaintiff’s DACA [ ].” Colotl, 261 F. Supp. 3d at 1339 (citations omitted).

3

Moreover, Plaintiff’s claim that constitutional claims are preserved

4 notwithstanding section 1252(g) similarly fails. See Dkt. No. 39-1 at 17. On this point,

5 the Court’s prior reliance on Ramirez-Perez v. Ashcroft, 336 F.3d 1001 (9th Cir. 2003), is

6 also misplaced. See Dkt. No. 12 at 8. There, the Ninth Circuit did not even consider

7 section 1252(g) and analyzed only the jurisdiction limitation statute at section

8 1252(a)(2)(B)(i) holding that “[w]hether the BIA’s interpretation of the hardship standard

9 violates due process is not a “judgment regarding the granting of” cancellation of

11 removal relief.” Ramirez-Perez, 336 F.3d at 1005. In contrast, the Ninth Circuit has held

12 that “a petitioner may not create the jurisdiction that Congress chose to remove simply by 13 cloaking [a claim] in constitutional garb.” See Torres-Aguilar v. INS, 246 F.3d 1267, 14 1271 (9th Cir. 2001). And, even for a court to find that section 1252(g) does not preclude 15 review of constitutional claims, those claims must “not arise from ‘a decision or Action 16 by the Attorney General to commence proceedings, adjudicate cases, or execute removal 17 orders against any alien,’ but instead constitute ‘general collateral challenges to 18 unconstitutional practices and policies used by the agency.’” Walter v. Reno, 145 F.3d 19 1032, 1052 (9th Cir. 1998) (quoting McNary v. Haitian Refugee Cir., Inc., 498 U.S. 479 20 (1991)). Rather, claims that fall within the limitations of section 1252(g) are not subject 21 to review, even if cast as constitutional claims. See Sissoko v. Rocha, 509 F.3d 947, 951 22 (9th Cir. 2007) (finding no jurisdiction over constitutional tort claim because the 23 plaintiff’s detention arose from the decision to commence removal proceedings).2

24 2 In Sissoko, the Ninth Circuit distinguished between these types of claims and those raised in an earlier 25 Ninth Circuit case discussing 8 U.S.C. § 1252(g), Wong v. United States, 373 F.3d 952 (9th Cir. 2004). In
Wong, plaintiff’s counsel expressly disclaimed any challenge to the execution of removal and explained 26 that her claims only implicated “actions other than that removal, or the commencement of proceedings . . 27 .,” 373 F.3d at 964, for which the court held that the claims at issue in Wong did not implicate the agency’s
prosecutorial discretion and did not pose a threat of “obstruction of the institution of removal proceedings 28 or the execution of removal orders . . . .” Id. at 970. Wong is distinguishable where Plaintiff is in removal
proceedings and DACA termination could have a direct result in his removal from the United States.

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1

Courts have held that section 1252(g) applies to bar jurisdiction over DACA

2 determinations. See Garcia-Herrera v. Asher, 585 F. App’x 439, 440 (9th Cir. 2014)

3 (holding under section 1252(g) that petitioner’s challenge to ICE’s decision not to delay

4 his removal proceeding pending the adjudication of his DACA request constituted a

5 challenge to ICE’s decision to execute a removal order); Vasquez v. Aviles, 639 F. App’x

6 898, 901 (3d Cir. 2016) (finding no jurisdiction to review a denial of a DACA request

7 because “that decision involves the exercise of prosecutorial discretion not to grant a

8 deferred action.”); see also Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012)

9 (“[W]e lack jurisdiction to review petitioners’ contention that the agency abused its

11 discretion in denying the motion to reopen to seek prosecutorial discretion based on the

12 recent order of President Obama.”); Rodriguez v. Sessions, No. 15-72487, 2017 WL

13 695192, at *1 (9th Cir. Feb. 22, 2017); Fabian-Lopez v. Holder, No. 11-71513, 540 F.

14 App’x 760, 761 n.2 (9th Cir. Apr. 29, 2013); cf. Sanchez v. Holder, No. 15CV0089-GPC

15 WVG, 2015 WL 4249446 (S.D. Cal. July 13, 2015) (district court lacked jurisdiction to

16 stay removal and make determination on deferred action eligibility).

17

This recent authority is consistent with earlier case law interpreting the 1981

18 Operating Instructions, a previous policy that provided guidelines for the exercise of

19 deferred action. That authority concluded that district courts lack jurisdiction to review

20 the district director’s decision not to recommend deferred action. Romeiro de Silva v.

21 Smith, 773 F.2d 1021, 1025 (9th Cir. 1985). Plaintiff ignores that holding and instead

22 relies on Nicholas v. INS, 590 F.2d 802 (9th Cir. 1979) for the purported reviewability of

23 an internal deferred action policy with “‘express criteria’ and ‘periodic review of non-

24 priority status’ [that] ‘clearly and directly affects substantive rights,’ including ‘the ability

25 of an individual subject to its provisions to continue residence in the United States.’” Dkt.

26 No. 39-1, citing Nicholas, 590 F.2d at 807-08.3 There, the Ninth Circuit held that the five

27 3 Notably, even in Nicholas, the Court ultimately denied the appeal on Nicholas’ claim to eligibility for 28 non-priority status as defined in the INS’s 1978 Operating Instructions because he could not meet his

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1 express humanitarian factors in the 1978 Operating Instructions,4 the effect of a grant of

2 such non-priority status to provide an indefinite delay in deportation, and the directive

3 nature of the language (“‘In Every case’” where relief is appropriate, the District Director

4 ‘Shall recommend’ deferred action category”), made it “obvious that this procedure exists

5 out of consideration for the convenience of the petitioner, and not that of the INS.” Id. at

6 806-07. While the Ninth Circuit considered periodic review an important factor, it

7 conditioned its analysis in consideration that “the Instruction plainly contemplates a

8 scheme where the status would preclude any deportation as long as the relevant

9 humanitarian factors are still compelling, rather than being subject to termination at the

11 convenience of the INS.” Id. at 807.

12

In contrast to Nicholas, Romeiro de Silva’s request for deferred action was denied

13 after “[t]he INS district director considered each of these factors.” Romeiro de Silva, 773

14 F.2d at 1023. The Ninth Circuit, however, acknowledged the weight of authority finding

15 that deferred action determinations under the 1978 operating instructions unreviewable,

16 and held that under the 1981 Operating Instructions “the district court lacked jurisdiction

17 to review the district director’s decision not to recommend deferred action status for

18 Romeiro de Silva,” because “it is no longer possible to conclude that [the instruction] is

19 intended to confer any benefit upon aliens, rather than [to operate] merely for the INS’s

20 own convenience.” Id. at 1024-25.

21

The Supreme Court’s decision in AADC held that section 1252(g) applied to bar

22 these same types deferred action determinations. AADC, 525 U.S. at 483-87 (“At each

23
24 burden to show that the Government’s decision “deviated from an established pattern without reason” notwithstanding the presence of humanitarian factors. 590 F.2d at 808. Nicholas’s request was verbally
25 denied, apparently without further explanation or process. Id. at 804.

26 4 “When determining whether a case should be recommended for deferred action category, consideration 27 should include the following: (1) advanced or tender age; (2) many years’ presence in the United States;
(3) physical or mental condition requiring care or treatment in the United States; (4) family situation in 28 the United States effect of expulsion; (5) criminal, immoral, or subversive activities or affiliations recent
conduct.” Nicholas, 590 F.2d at 806-807, citing 1978 INS Operating Instruction at 103.1(a)(1)(ii).

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1 stage the Executive has discretion to abandon the endeavor, and at the time IIRIRA was

2 enacted the INS had been engaging in a regular practice (which had come to be known as

3 “deferred action”) of exercising that discretion for humanitarian reasons or simply for its

4 own convenience.”). There, the Government ended prior grants of deferred action by

5 charging, and then pursuing deportation for only routine status violations against six of

6 the eight plaintiffs. Id. at 474. Importantly, the Court held that aliens unlawfully in the

7 United States and subject to deferred action had “no constitutional right to assert selective

8 enforcement as a defense against his deportation,” under the First or Fifth Amendments

9 to the U.S. Constitution. Id. at 489.

11

Here, the similarities to both the policies and procedures addressed by the Ninth

12 Circuit and Supreme Court are too strong for the Court to reason around Congress’s clear

13 intent. Plaintiff’s claims are barred by section 1252(g) because he is asserting claims

14 arising from the commencement of and adjudication of his removal proceedings. Because

15 Plaintiff claims that it was improper for DHS to terminate his DACA because “ICE’s

16 litigation of removal proceedings for unlawful presence against a DACA recipient was

17 not a valid basis for USCIS to terminate DACA under the SOP,” and “removal from the

18 country in the absence of any culpability would visit such grievous harm,” Dkt. No. 38 at

19 ¶¶ 136; 14, he is necessarily challenging the “commencement” and “adjudicat[ion]” of

20 his ongoing removal proceedings. See 8 U.S.C. § 1252(g). Indeed, because the denial of

21 DACA is a step “leading up to” a final order of removal, it is squarely within the scope of

22 section 1252(g). Id. Plaintiff’s effort to shroud his claims in procedural terms is further

23 undone by his challenge to ICE’s identification of Plaintiff as a removal priority and

24 decision to pursue his removal because “[o]nly individuals who do not qualify for DACA

25 status may be considered enforcement priorities [based on the Kelly Memo].” Dkt. No.

26 38 ¶ 169. Finally, were the Court to find that a final removal against Plaintiff could not be

27 executed based in some way on his claimed entitlement to DACA, then the issues raised

28 here are certainly those for which this Court lacks jurisdiction.

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1

Regardless of how Plaintiff frames the issue, section 1252(g) precludes judicial

2 review of the Government’s exercise of its prosecutorial discretion. Accordingly, the

3 decisions of DHS to issue an NTA and place Plaintiff in removal proceedings, and thereby

4 terminate DACA, and subsequent decision to terminate Plaintiff’s DACA following advance

5 notice and an opportunity to respond are not subject to judicial review, and the Court should

6 reject Plaintiff’s motion for preliminary relief. To hold otherwise would render section

7 1252(g) a dead letter because any individual could seek to enjoin or otherwise challenge

8 the commencement of removal proceedings through this type of creative pleading.

9

To the extent that Plaintiff has any viable claims, the REAL ID Act, codified at 8

11 U.S.C. §§ 1252(a)(5) and 1252(b)(9), bars him from raising those claims in district court,

12 even before a final order of removal issues. Section 1252(a)(5), entitled “[e]xclusive

13 means of review,” requires that “a petition for review filed with an appropriate court of

14 appeals . . . shall be the sole and exclusive means for judicial review of an order of

15 removal . . . .” 8 U.S.C. § 1252(a)(5). Section 1252(b)(9) provides “[j]udicial review of

16 all questions of law and fact, including interpretation and application of constitutional

17 and statutory provisions, arising from any action taken or proceeding brought to remove

18 an alien from the United States under this subchapter shall be available only in judicial

19 review of a final order under this section.” 8 U.S.C. § 1252(b)(9) (emphasis added); see,

20 e.g., J.E.F.M. v. Lynch, 837 F.3d 1026, 1038 (9th Cir. 2016) (district court lacked

21 jurisdiction over challenge to adequacy of removal procedures, and instead court of

22 appeals has authority to resolve questions of constitutional rights on review of a final

23 removal order).

24

Section 1252(b)(9) is “a clear statutory prescription against district court review”

25 of challenges arising from removal proceedings for plaintiffs who had not yet received

26 final orders of removal. J.E.F.M., 837 F.3d at 1035-38. While the Court acknowledged

27 that “an unrepresented minor in immigration proceedings poses an extremely difficult

28 situation,” it also found “these considerations cannot overcome a clear statutory

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1 prescription against district court review. Relief is through review in the court of appeals 2 or executive or congressional action.” Id. at 1036-38.5

3

Here, Plaintiff challenges the Secretary’s discretion to terminate DACA following

4 the decision to issue Plaintiff an NTA. See Dkt. No. 39-1 at 1-2; Dkt. 38 ¶¶ 136; 14. Thus,

5 Plaintiff’s challenge necessarily arises from “action taken or proceedings brought to

6 remove an alien,” for which district courts lack jurisdiction. Accordingly, this Court

7 should find that Plaintiff cannot show either a likelihood of success or that the law and

8 facts clearly favor his position. Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015).

9

b. Judicial Review of DACA Termination Based on NTA Issuance is

also Barred under 5 U.S.C. § 701(a)(2).

11

There is no judicial review under the APA of decisions that “courts traditionally

12 have regarded as ‘committed to agency discretion.’” Lincoln v. Vigil, 508 U.S. 182, 192

13 (1993) (quoting 5 U.S.C. § 701(a)(2)). These decisions are typically unreviewable

14 because there exists “no meaningful standard against which to judge the agency’s

15 exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830 (1985). This bar applies

16 even when “the agency gives a ‘reviewable’ reason for otherwise unreviewable action.”

17 ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 283 (1987) (“BLE”). The decisions

18 committed to executive discretion include “an agency’s exercise of enforcement power,”

19 including resource allocation and overall priorities. Chaney, 470 U.S. at 831. As there is

20 “no meaningful standard against which to judge the agency’s exercise of discretion” in

21 weighing these factors, an agency’s exercise of enforcement powers is “presumed

22 immune from judicial review under § 701(a)(2).” Id. at 830, 832.

23

24 5 The Court’s previous reliance on Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007), is misplaced. Dkt. No.

25

31 at 7. Singh challenged ineffective assistance of counsel through habeas, and the court held that section 1252(b)(9) did not apply because the challenge was not tied to removal proceedings. Singh, 499 F.3d at

26 978-79. 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 the statute. See 27 Aguilar, 510 F.3d at 10; cf. Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012) (an APA claim

28

“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

Just as “the decision whether or not to prosecute” presumptively “rests entirely in

2 [the prosecutor’s] discretion,” United States v. Armstrong, 517 U.S. 456, 464 (1996)

3 (citation omitted), an agency’s decision to bring a civil enforcement action is generally

4 not open to judicial scrutiny. Considerations such as the Chaney factors are equally

5 present in enforcement decisions as in nonenforcement decisions. See Chaney, 470 U.S.

6 at 831; see also Wayte v. United States, 470 U.S. 598, 607-8 (1985) (“[T]he decision to

7 prosecute is particularly ill-suited to judicial review”).

8

One form of that broad discretion is deferred action, a “discretionary and

9 reversible” decision to notify an alien that DHS has chosen not to seek his removal for a

11 specific period of time. Arpaio v. Obama, 797 F.3d 11, 17 (D.C. Cir. 2015). Like other

12 agency nonenforcement decisions, grants of deferred action rest on a complex balancing

13 of policy considerations that cannot serve as “meaningful standard against which to judge

14 the agency’s exercise of discretion.” Chaney, 470 U.S. at 831. The converse is equally

15 true: denials of deferred action are also committed to agency discretion. See AADC, 525

16 U.S. at 485 (treating “‘no deferred action’ decisions” as “discretionary determinations”).

17 Because “[g]ranting an illegally present alien permission to remain and work in this

18 country” is fundamentally “a dispensation of mercy,” there are “no standards by which

19 judges may patrol its exercise.” Perales v. Casillas, 903 F.2d 1043, 1051 (5th Cir. 1990)

20 (INS’s decision not to grant pre-hearing voluntary departures and work authorizations to

21 a group of aliens was non-justiciable). Thus, individual DACA terminations fall squarely

22 within that category of agency discretion for which judicial review is improper. See

23 Chaney, 470 F.3d at 830; see also Morales, 824 F.3d at 822 (explaining that the exercise

24 of prosecutorial discretion is different from other types of agency action).

25

Here, Plaintiff is challenging DHS’s exercise of its enforcement power, including

26 specifically the factors it relied on, and argues that instead of seeking to remove him from

27 this country, DHS should decide to continue to defer action with respect to him. See, e.g.,

28 Dkt. No. 39-1 at 20 (“Defendants have applied the non-DACA definition of ‘enforcement

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1 priority’ to a DACA recipient;”) Id. at 26 (“DACA termination threatens to completely

2 deprive him, inter alia, of his basic ability to remain in the only country he has ever

3 called home.”). This is a classic challenge to DHS’s exercise of its prosecutorial

4 discretion. See Chaney, 470 U.S. at 831. There is no meaningful standard to judge

5 whether DHS should continue to defer action as to Plaintiff and, instead, prioritize the

6 removal of other aliens. See id.6 Indeed, Plaintiff’s tortured reading of the DACA SOP

7 along with the Kelly Memo would render meaningless the specific termination ground

8 that continuation of deferred action is not consistent with DHS’s enforcement priorities.

9 See Dkt. No. 39-1 at 19-22. Rather, this type of enforcement decision involves a

11 balancing of factors, including factors as to how to allocate agency resources, that is

12 committed to agency discretion by law. See id., Armstrong, 517 U.S. at 464. The question

13 for DHS was not whether it could continue to exercise its discretion in favor of the

14 Plaintiff, but rather whether it should have under the circumstances of this case. Because

15 this type of discretionary determination is committed to DHS by law, this Court lacks

16 jurisdiction to review Plaintiff’s claims.

17

c. Plaintiff Cannot State a Constitutional Claim because the

18

Termination of DACA and Employment Authorizations does not Implicate a Constitutional Interest.

19
Plaintiffs cannot have a protected constitutional interest in DACA because it purely
20

discretionary. See, e.g., Velasco-Gutierrez v. Crossland, 732 F.2d 792, 798 (10th Cir.
21

1984) (holding that deferred action guidance “places no effective limitations on official
22

discretion, and thus creates no protected liberty interest in deferred action”); cf. Arpaio,
23
797 F.3d at 17 (quoting DACA Memo for the proposition that “deferred action remains
24

25 6 It is irrelevant for this Court’s jurisdiction that DHS has guidance regarding grants of deferred action under DACA. The existence of criteria that an agency is to consider is not enough to provide a meaningful
26 standard of review, see Pasquini v. Morris, 700 F.2d 658, 659 (11th Cir. 1983), and, moreover, the exercise 27 of prosecutorial discretion is not amenable to judicial review even when an agency has established
procedures. See Carranza, v. I.N.S., 277 F.3d 65, 72-3 (1st Cir. 2002); United States v. Lee, 274 F.3d 485, 28 492 (8th Cir. 2001) (reversing a finding that a criminal defendant can force the Department of Justice to
comply with its death penalty protocol); Wayte, 470 U.S. at 607-8.

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1 discretionary and reversible, and ‘confers no substantive right, immigration status or

2 pathway to citizenship.’”)

3

The Supreme Court has held that, for due process purposes, a benefit “is not a

4 protected entitlement” where “government officials may grant or deny it in their

5 discretion.” Castle Rock, 545 U.S. at 756. For Due Process purposes, statutes or

6 regulations limit discretion only when they contain “‘explicitly mandatory language’”—

7 i.e., “specific directives to the decisionmaker that if the regulations’ substantive

8 predicates are present, a particular outcome must follow.” Ky. Dep’t of Corrs. v.

9 Thompson, 490 U.S. 454, 462–63 (1989) (citation omitted). Nor does the provision of

11 certain procedures by an agency itself give rise to a federal constitutional dimension. See,

12 e.g., Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983) (“[a] liberty interest . . . cannot be

13 the right to demand needless formality. Process is not an end in itself. Its constitutional

14 purpose is to protect a substantive interest to which the individual has a legitimate claim

15 of entitlement.”).

16

Neither the constitution nor Congress provides an individual in unlawful status a

17 protected interest in family reunification, living or working in the United States, or in

18 discretionary relief from removal. See De Mercado v. Mukasey, 566 F.3d 810, 816 (9th

19 Cir. 2009). Garcia v. Holder, No., 07-60271, 320 F. App’x 288, 290 (9th Cir. April 9,

20 2009); Pilapil v. INS, 424 F.2d 6, 11 (10th Cir. 1970), cert denied, 400 U.S. 908 (1970).7

21 Nor can Plaintiff claim an entitlement in this case that creates a Constitutional interest.

22 “To have a property interest in a benefit, a person clearly must have more than an abstract

23 need or desire for it. He must have more than a unilateral expectation of it. He must,

24 instead, have a legitimate claim of entitlement to it.” Blantz v. Cal. Dep’t of Corr. &

25 Rehab., 727 F.3d 917, 922 (9th Cir. 2013) (citing Bd. of Regents of State Colleges v.

26 Roth, 408 U.S. 564, 577 (1972)); see also Mendez-Garcia v. Lynch, 840 F.3d 655, 665

27

28 7 While Plaintiff cites Morrissey v. Brewer, 408 U.S. 471 (1972), to discuss “other enduring attachments of life,” the extensions that Plaintiff argues for here conflict with the cited rulings.

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1 (9th Cir. 2016) (underscoring that aliens cannot claim a cognizable due process interest in

2 discretionary immigration relief or benefits). Even a practice of “generously” granting a

3 “wholly and expressly discretionary state privilege” does not create a legal entitlement to

4 that benefit. See Regents of Univ. of Cal. v. United States Dep’t of Homeland Sec.

5 (“Regents”), No. C 17-05211 WHA, 2018 WL 339144, at *4 (N.D. Cal. Jan. 9, 2018)

6 (citing Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1020-21 (9th Cir. 2011)) (“A

7 person’s belief of entitlement to a government benefit, no matter how sincerely or

8 reasonably held, does not create a property right if that belief is not mutually held by the 9 government.”).8

11

The DACA policy and related guidance create no such mutually held expectation

12 regarding the terms for termination, id., nor do they contain no “explicitly mandatory 13 language,” Thompson, 490 U.S. at 462–63. The policy is codified in no statute or 14 regulation.9 Its source—the DACA Memo—describes it as a “policy” for the “exercise of 15 prosecutorial discretion.” Dkt. No. 39-4 at 3; see Omar v. McHugh, 646 F.3d 13, 22 (D.C. 16 Cir. 2011) (the “use of the word ‘policy’”—“rather than a word such as ‘right’— 17 reinforces the conclusion that Congress did not intend to create an ‘entitlement’”). And 18 the agency’s public guidance makes clear that, under DACA, deferred action “may be 19 terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s

20

21 8 Plaintiff’s reliance on cases that discuss violations of non-discretionary procedures in agency

22 regulations are inapposite where deferred action and related employment authorization are discretionary

concepts not tied to statute or regulation. See Dkt. No. 39-1 at 24-25 (citing United States v. Raya-Vaca, 23 771 F.3d 1195, 1203 & n.6 (9th Cir. 2014) (liberty interest arising from risk of removal on an expedited

24 removal order, not the loss of something conferred by a discretionary policy)); Trinidad y Garcia v. Thomas, 683 F.3d 952, 957 (9th Cir. 2012) (“An extraditee thus possesses a narrow liberty interest: that

25 the Secretary comply with her statutory and regulatory obligations [to consider an extraditees’ torture

26

claim].”); Singh v. Bardini, No. 09-cv-3382, 2010 WL 308807, at *7 (N.D. Cal. Jan. 19, 2010) (addressing questions of regulatory procedures for asylum termination outside of removal proceedings).

27 9 The only regulation that references deferred action, 8 C.F.R. § 274a.12(c)(14), long predates the DACA 28 policy, and only allows aliens with deferred action to apply for employment authorization if they can
demonstrate an economic need for employment.

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1 discretion.” Dkt. No. 39-4 at 5; see also Arpaio, 797 F.3d at 17 (noting that the grant of

2 deferred action is discretionary).

3

Because DACA is discretionary and “may be terminated at any time, with or

4 without” notice, Plaintiff necessarily cannot have a legitimate claim of entitlement to the

5 favorable exercise of discretion regarding DACA. Even assuming arguendo that deferred

6 action is viewed as a benefit, Plaintiff lacks any protected constitutional interest in

7 deferred action. See Castle Rock, 545 U.S. at 756; Velasco-Gutierrez, 732 F.2d at 798.

8

2. Plaintiff is Not Likely to Succeed on His Claims under the

9

APA or Constitution.

a. USCIS’s DACA Termination Fully Complied with its

11

SOP and Other Policies.

12

Plaintiff can state no claim under the APA because USCIS’s Decision fully

13 complied with its SOP and other policies, and the APA in general. First, USCIS’s

14 Decision specifically quotes the SOP provision on which it is based. Dkt. No. 39-6 at

15 195. Second, USCIS’s Decision demonstrates adherence to all the procedural steps in the

16 cited SOP guidelines: consultation with ICE; consideration of whether continuing DACA

17 is inconsistent with DHS’s enforcement priorities; and USCIS’s consideration of

18 Plaintiff’s response and the agency’s voluntary consideration of his supplemental

19 response to that NOIT. Id. Following that review, USCIS found “that continuing to

20 exercise prosecutorial discretion to defer removal action against you is not consistent

21 with DHS’s enforcement priorities. Therefore USCIS does not find that you merit a

22 favorable exercise of prosecutorial discretion and will not continue to defer DHS removal

23 action against you under DACA.” Id. at 3.

24

Plaintiff, without citation, attempts to reconstruct the DACA SOP to argue that:

25 “[i]f a DACA recipient meets the DACA Memo’s objectively verifiable criteria, he or she

26 remains, by definition, a ‘low priority case.’ In other words, that individual is not an

27 enforcement priority.” Dkt. No. 39-1 at 19. Plaintiff goes on to paraphrase the various

28 grounds for DACA termination discussed in the SOP, but omits the ground applied to

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1 him: “Enforcement Priority.” Id. at 19; see also Dkt. No. 39-4 at 79-81. Notably, this

2 DACA termination provision was in the August 2013 version of the SOP, well before the

3 Kelly Memo issued in January 2017. Accordingly, Plaintiff cannot support his claim that

4 “Defendants purport to label Mr. Gonzalez an enforcement priority on grounds applicable

5 only to non-DACA recipients. . . . This is a failure to follow unambiguous internal rules.”

6 Dkt. No. 39-1 at 20. While Defendants maintain that the operative DACA SOP allows for

7 a fluid definition of enforcement priorities and that nothing precludes Defendants from

8 determining an individual is an enforcement priority on a case-by-case basis, the Court

9 need not even consider those arguments to find that Plaintiff cannot succeed here because

11 Plaintiff’s alleged role in an alien smuggling enterprise is clearly identified as an

12 enforcement priority in USCIS’s 2011 NTA guidance. See Dkt. No. 39-4 at 62.

13

Plaintiff next argues that “ICE’s issuance of an NTA against him for nothing more

14 than unlawful presence” is not “‘a reasoned basis for terminating DACA.’” Dkt. No. 39-1

15 at 20 (citing Inland Empire—Immigrant Youth Collective v. Duke, No. EDCV 17–2048,

16 2017 WL 5900061, at *6-7 (C.D. Cal. Nov. 20, 2017) (“IEIYC”)). While Defendants

17 disagree with the court’s grant of a preliminary injunction in IEIYC, it followed the

18 automatic termination of DACA based on NTA issuance alone, which is no longer the

19 case here. Moreover, Defendants’ Termination makes clear that it is based on more than

20 “ICE’s issuance of an NTA against him for nothing more than unlawful presence.” Dkt.

21 No. 39-1 at 20. Rather, USCIS stated:

22

USCIS does not rely solely on the ground listed in the charging document as

it may not reflect all derogatory information and/or the assessment of whether

23

or not you are considered an enforcement priority.

24 Dkt. No. 39-6 at 196. Accordingly, Plaintiff has not and cannot demonstrate that

25 Defendants have ignored their own DACA termination policy.10

26

27 10 Plaintiff also appears to argue that the DACA SOP requires a criminal conviction to support DACA termination, whereas the Kelly Memo prioritizes charged or suspected criminal conduct. Dkt. No. 39-1

28 at 20, citing Dkt. No. 39-6 at 208. However, even the provision that Plaintiff cites only supports a

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1

b. USCIS’s DACA Termination was Neither Arbitrary Nor

Capricious.

2

Plaintiff also challenges USCIS’s Decision as arbitrary and capricious because

3 USCIS’s discretion is not based on “reasoned decision-making,” and that USCIS has

4 improperly departed “from a prior policy sub silentio or simply disregard[ed] rules that

5 are still on the books.” Dkt. No. 39-1 (citations omitted). Additionally, Plaintiff accuses

6 USCIS’s termination of amounting “to nothing less than assertion of the same unfettered

7 discretion this Court already “categorically reject[ed].” Id., citing Dkt. No. 12 at 10.

8

As an initial matter, Plaintiff misrepresents this Court’s prior order. The position

9 that the Court “categorically rejected” was what the Court characterized as Defendants’

11 argument that “DHS possesses such broad prosecutorial discretion they need not follow

12 the DACA SOP in terminating the status of DACA recipients.” Id. The Court’s prior

13 conclusion then has no application to Defendants exercise of the discretion provided by

14 the SOP – to terminate DACA where a recipient is deemed to be an enforcement priority.

15

Indeed, Plaintiff’s arguments make it clear that he is not challenging the process by

16 which USCIS terminated his DACA, but he is instead challenging how USCIS exercised

17 its discretion – an action for which this Court lacks jurisdiction. Plaintiff’s arbitrary and

18 capricious analysis suffers from the same flaw as his argument about Defendants’

19 compliance with the SOP – he concludes that USCIS failed “to comply with the DACA

20 Memo and the termination provision of the DACA SOP,” Dkt. No. 39-1 at 22, but offers

21

22 requirement that USCIS adjudicators investigate beyond a RAP sheet to ascertain whether a DACA
23 requestor has actually been convicted of a crime. Id. Notably the same SOP provision that Plaintiff cites 24 indicates that certain criminal conduct may render an individual “not eligible for consideration of
DACA,” but states that “the requestor’s entire offense history can be considered along with other facts 25 to determine whether, under the totality of the circumstances, he/she warrants an exercise of
prosecutorial discretion.” Id. at 204. Ultimately, the DACA SOP is silent as to the factors USCIS is to 26 use in DACA termination decisions based where an individual is determined to be an enforcement 27 priority, and the DACA SOP and related guidance support that DACA may be terminated on a
discretionary case-by-case basis even where a DACA recipient otherwise meets the guidelines. Dkt. No. 28 39-4 at 81; id. at 11 (“DACA is an exercise of prosecutorial discretion and deferred action may be
terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion.”).

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1 no cogent explanation why USCIS’s Termination fails in this regard. Indeed, Plaintiff

2 again states, without citation, that “[b]ecause Defendants have acknowledged that Mr.

3 Gonzalez has never been convicted of a crime and does not pose a threat to public safety,

4 their decision to rescind his DACA because he is somehow an ‘enforcement priority’ has

5 not basis is reasoned decision-making.” Id. However, where Plaintiff has not and cannot

6 demonstrate that Defendants’ discretion to determine that he is an enforcement priority is

7 constrained by his lack of conviction of public safety concern, his argument fails.

8

Plaintiff also attempts to add requirements to Defendants’ discretionary exercise by

9 analogy to other cases. However, none of these cases change the nature of USCIS’s

11 discretion regarding DACA termination on enforcement priority grounds. See Dkt. No.

12 39-1 at 22-23. In Movsisian v. Ashcroft, 395 F.3d 1095 (9th Cir. 2005), the Ninth Circuit

13 held that the Board of Immigration Appeals (“BIA”) abused its discretion when it denied

14 a motion to reopen without articulating any reasons. 395 F.3d at 1098. In Natural

15 Resources Defense Council, Inc. v. U.S. E.P.A., 966 F.2d 1292 (9th Cir. 1992), the Ninth

16 Circuit was not reviewing an exercise of discretion, but instead found arbitrary and

17 capricious an agency rulemaking that relied on an “unsubstantiated assumption.” Id. at

18 1305. Nor was the Ninth Circuit reviewing a discretionary action in United States v. One

19 1985 Mercedes, 917 F.2d 415 (9th Cir. 1990), where it cited the unremarkable

20 proposition that “agency policy must be implemented and rules enforced consistently and

21 predictably.” Id. at 423. Rather, key to the Ninth Circuit’s holding in One 1985 Mercedes

22 was that the claimant there “must establish that the policy in question had the force and

23 effect of law, i.e., that the policy ‘(1) prescribe[d] substantive rules—not interpretive

24 rules, general statements of policy or rules of agency organization, procedure or

25 practice—and, (2) conform[ed] to certain procedural requirements.’” Id. (citing Rank v.

26 Nimmo, 677 F.2d 692, 698 (9th Cir. 1982), cert. denied, 459 U.S. 907 (1982)) (emphasis

27 in original). That Bertelsen v. Hartford Life Insurance Co., 1 F. Supp. 3d 1060 (E.D. Cal.

28 2014), found that an administrative decision denying disability benefits was arbitrary and

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1 capricious because it was based on incomplete information following previous careful

2 examinations is of no help to Plaintiff here because the standards demanding such

3 explanation in the decision were based on statute and regulation and case law interpreting

4 those requirements. Id. at 1071. And finally, Plaintiff’s reliance on In re Guerreo-

5 Morales, 512 F. Supp. 1328 (D. Minn. 1981), is misplaced where subsequent controlling

6 authority analyzes guidance more like the DACA policy to find no jurisdiction over

7 deferred action decisions. See, e.g., Raffington v. Cangemi, No. CIV. 04-3846, 2004 WL

8 2420642, at *5 (D. Minn. Oct. 6, 2004) (recognizing that revised Operating Instructions

9 superseded In re Guerreo-Morales), aff’d. 399 F.3d 900 (8th Cir. 2005). In contrast to

11 this authority, here, USCIS articulated its reasons for termination in a manner consistent

12 with the DACA SOP. Here, while Plaintiff may disagree with USCIS’s assessment of the

13 facts, USCIS’s Decision is not based on an unsubstantiated assumption. Here, not only is

14 the policy that Plaintiff challenges not a substantive rule that has conformed to no

15 procedural requirement, but Plaintiff fails to even allege that Defendant has applied its

16 enforcement priority DACA termination provision inconsistently or unpredictably. Thus,

17 Plaintiff’s claim is not bolstered by citation to inapposite authority.

18

Additionally, Plaintiff’s reliance on Judulang v. Holder, 565 U.S. 42, 53 (2011), to

19 argue that Defendants’ NOIT indicates a failure to engage (or potentially engage) in

20 “reasoned decision-making,” also lacks merit. Dkt. No. 39-1 at 18-23. In Judulang, the

21 Supreme Court held that “[b]y hinging a deportable alien’s eligibility for discretionary

22 relief on the chance correspondence between statutory categories - a matter irrelevant to

23 the alien's fitness to reside in this country - the BIA has failed to exercise its discretion in

24 a reasoned manner.” Judulang, 565 U.S. at 54. Plaintiff’s claims are unlike the Judulang

25 Court’s concerns about the relationship of the exercise of discretion to the purpose of the

26 immigration laws. Here, Plaintiff cannot show that the approach of the DACA

27 termination SOP regarding individuals identified as enforcement priorities is untied from

28 the non-statutory and non-regulatory DACA policy and guidance that allow for case-by-

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1 case discretionary determinations whether individuals have become enforcement

2 priorities after their receipt of DACA. Indeed, the only way for Plaintiff to attempt to

3 make this argument is for him to inaccurately re-characterize the Termination. Neither

4 the plain text of the Termination nor the circumstances that gave rise to the NTA issuance

5 support Plaintiff’s re-characterization. See Dkt. No. 39-6 at 194-97.

6

Finally, Plaintiff can also not prevail on his passing citations to F.C.C. v. Fox

7 Television Stations, Inc., 556 U.S. 502 (2009), and conclusory analysis that

8 “[u]nexplained departure from established practice is arbitrary and capricious and must

9 be set aside,” Dkt. No. 39-1 at 18, 21. Rather, Defendants’ conclusion that Plaintiff is

11 now an enforcement priority is not a change in policy that calls for the application of Fox,

12 556 U.S. at 514–16. In Fox, the Supreme Court held that the APA “makes no distinction .

13 . . between initial agency action and subsequent agency action undoing or revising that

14 action.” Fox, 556 U.S. at 515 (reversing on this basis). Instead, what the Supreme Court

15 required in Fox is that when reviewing changes in agency policy, an agency must

16 “display awareness that it is changing position” and must show that there are “good

17 reasons for the new policy.” Fox, 556 U.S. at 515. Fox only applies to changes in agency

18 policy. See 556 U.S. at 514 (holding that when an agency changes policy, it must show

19 no more than that it “examine[d] the relevant data and articulate a satisfactory

20 explanation for its action.”).

21

Here, USCIS’s policies regarding DACA termination and enforcement priorities

22 have not changed – USCIS has merely changed its view regarding how its existing

23 discretion should be exercised in Plaintiff’s case. Moreover, even if Fox applied here, the

24 Termination displays an awareness to terminate an existing grant of DACA (“USCIS

25 finds that continuing to exercise prosecutorial discretion to defer removal action against

26 you is not consistent with the DHS’s enforcement priorities”), and provides good reasons

27 for the intended termination (“USCIS does not find that you merit a favorable exercise of

28

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1 prosecutorial discretion and will not continue to defer DHS removal action against you

2 under DACA.”). Dkt. No. 39-6 at 196.

3

c. Plaintiff Received All the Process He is Due.

4

Where the alleged deprivation at the center of Plaintiff’s claim is removal from the

5 United States that have impacted the termination of his DACA, Plaintiff must challenge

6 the initiation of removal proceedings through the course of those removal proceedings.

7 e.g., J.E.F.M., 837 F.3d at 1038. And, Plaintiff’s claim for “freedom from arbitrary

8 adjudicative procedures,” Dkt. No. 39-1 at 26 (citing Castillo v. Cnty. of Los Angeles, 959

9 F. Supp. 2d 1255, 1262 (C.D. Cal. 2013)), cannot be sustained where the adjudicative

11 procedures he challenges allow for such discretion.

12

Even if the Court finds that Plaintiff can plead a viable constitutional claim, here,

13 he fails on the merits of that that claim because he has received all the process he is due.

14 “Due process is flexible and calls for such procedural protections as the particular

15 situation demands.” Gilbert v. Homar, 520 U.S. 924, 930 (1997). There are three factors

16 to balance in determining what process is constitutionally due: 1) the private interest

17 affected; 2) the risk of erroneous deprivation of such interest and the probable value of

18 additional procedural safeguards; and 3) the government interest at stake. Id. at 931–2

19 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

20

First, Plaintiff’s interest in the continuation of a discretionary policy that could

21 delay his removal from the United States is minimal. Such interest must be evaluated

22 within the context of Plaintiff’s unlawful status in the United States and the overall

23 discretionary nature of DACA policy, and the nature of his alleged criminal conduct. In

24 this way, Plaintiff’s interest in the process by which USCIS exercises its discretion

25 adjudicating DACA, if more than minimal, must still be evaluated on the basis that it is

26 “part and parcel of the DHS’s authority” to “initiat[e] removal proceedings on aliens

27 without authority to remain in the United States.” Jeronimo v. U.S. Atty. Gen., 330 F.

28 App’x 821, 823–24 (11th Cir. 2009); see also Wilkinson v. Austin, 545 U.S. 209, 225–29

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1 (2005) (“Prisoners held in lawful confinement have their liberty curtailed by definition,

2 so the procedural protections to which they are entitled are more limited than in cases 3 where the right at stake is the right to be free from confinement at all.”).11

4

Second, the process Plaintiff received is sufficient to avoid the risk of erroneous

5 deprivation. Indeed, “[w]hen a government-created property interest is at stake, due

6 process principles require at least notice and an opportunity to respond in some manner,

7 whether in writing or at an oral hearing, before termination of that interest.” Cleveland

8 Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). That notice and opportunity to

9 respond “are among the most important procedural mechanisms for avoiding erroneous

11 deprivations.” Wilkinson, 545 U.S. at 226 (citations omitted). Here, Plaintiff argues that

12 USCIS offers no opportunity to rebut the facts that USCIS considers relevant, and that

13 additional safeguards are paramount in his circumstance because he “is effectively being

14 labeled a criminal.” Dkt. No. 39-1 at 27.

15

There can be no dispute, however, that Plaintiff has had notice and an opportunity

16 to respond. Dkt. No. 39-6 at 191-2. Plaintiff was also constructively on notice that his

17 arrest on allegations of alien harboring gave rise to CBP’s NTA and was considered in

18 USCIS’s adjudicatory process. This information has been conveyed at various times, in

19 the course of Plaintiff’s removal proceedings. See Dkt. No. 23-2 at 10-11. These

20 statements gave Plaintiff actual notice regarding the basis for USCIS’s issuance of the

21 NOIT. See Dkt. No. 39-6 at 191-192 (“USCIS has consulted with U.S. Immigration and

22 Customs Enforcement (ICE) and has determined that exercising prosecutorial discretion

23 to defer removal action in your case is not consistent with DH’s enforcement priorities.

24 ICE does not plan to issue you an NTA because CBP already issued an NTA to you on

25 May 7, 2016, and ICE has informed USCIS that it is actively pursuing your removal.”).

26
27 11 Plaintiff’s reliance on MacDonald, Dkt. 39-1 at 26 (citing 400 F.3d at 690), is misplaced because the Court there specifically considered the threat of deportation as the harsh sanction at issue. Here, Plaintiff
28 should not be allowed to disassociate his DACA challenge from his removal proceedings but allege harm from the risk of removal.

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1 Additionally, Plaintiff cannot argue that he has not received sufficiently constructive

2 notice of why he is an enforcement priority and that his opportunity to respond has been

3 impeded, or that his is prejudiced by the lack of such notice because Plaintiff addressed 4 these facts in his response to USCIS’s NOIT. See Dkt. No. 39-5 at 91, 93-94.12

5

Nor can Plaintiff show that the lack of additional process he seeks has prejudiced

6 him. See Zolotukhin v. Gonzales, 417 F.3d 1073, 1076 (9th Cir.2005); Ali v. United

7 States, 849 F.3d 510, 515 (1st Cir. 2017) (“There is no reason to think that, if an

8 evidentiary hearing occurred, USCIS would not continue to rely on its own official

9 records contemporaneous to the 1999 interview, as well as Lewis’ signature affirming 11 what appears to be her own handwritten statement . . . .”).13 Like in Ali, Plaintiff has not

12 given any reason to think that additional process would result in a different outcome. 13 Indeed, Plaintiff has offered no explanation for his nervous conduct described by Border 14 Patrol Agents when Plaintiff was in the house, and only offers his self-serving statement. 15 That declaration refers to Plaintiff’s sister, the acquaintance he allegedly dog-sat for, 16 Adolfo, and two people in the house when he arrived, a woman, and a man named 17 Romeo, who he has seen before, see Dkt. No. 39-5 at 178-181, but Plaintiff included no 18 statements from any of these potential witnesses to USCIS. Additionally, while Plaintiff 19 seeks to examine all twelve individuals arrested at the house, Dkt. No. 39-1 at 12 20 (“Tellingly, Defendants neither name the three witnesses who allegedly identified Mr. 21 Gonzalez nor disclose the results of the photo lineups shown to the other nine individuals, 22 who presumably did not identify him.”), Plaintiff ignores USCIS’s statement that “the I-

23
24 12 Plaintiff’s analogy to Gete v. INS, 121 F.3d 1285, 1297 (9th Cir. 1997), to argue that Defendants’ termination here is based on a similarly “bare” notice lacks merit. Dkt. No. 39-1 at 28. Here, Plaintiff
25 was on direct notice of the reason for his DACA termination, based on an enforcement priority finding, and Defendants specifically cited to the grounds and procedures in the Notice of Intent to Terminate.
26
27 13 Notably, even if Plaintiff’s challenge to the Termination was reviewable, review would be based on substantial evidence – “more than a mere scintilla but less than a preponderance; it is such relevant
28 evidence as a reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (citation and internal quotations marks omitted).

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1 213 records for all the individual detained for being present in the United States without

2 admission do not indicate that all 12 individuals were asked to identify you in the

3 photographic line-up”). Dkt. No. 39-6 at 196. Accordingly, Plaintiff cannot succeed on

4 the merits of his due process claim because Plaintiff cannot show additional process

5 likely to result in a different result to Defendants’ exercise of discretion.

6

Finally, when assessing the constitutionality of the process provided to Plaintiff,

7 the Court should also consider the strong state interest in maintaining discretion to

8 enforce U.S. immigration laws effectively and consistent with the statutory removal

9 scheme. See AADC, 525 U.S. at 490 (“There is always a public interest in prompt

11 execution of removal orders. . . .”); cf. Mathews v. Diaz, 426 U.S. 67, 79–80 (1976) (“In

12 the exercise of its broad power over naturalization and immigration, Congress regularly

13 makes rules that would be unacceptable if applied to citizens.”).

14

Here, the process Plaintiff has received is more than adequate given the ultimately

15 discretionary policy at issue, a record that sufficiently supports Defendants’ concerns

16 regarding Plaintiff’s alleged criminal conduct, and the Government’s strong interest

17 regarding immigration enforcement.

18 B. The Remaining Preliminary Injunction Factors Favor Defendants.

19

Where the Government is the opposing party, the balance of equities and public

20 interest factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009). This balancing in large

21 part mirrors the discussion of the Governmental interest in opposition to the merits of

22 Plaintiff’s constitutional claim. Notably, it would be inappropriate for the Court to enjoin

23 the Government from terminating Plaintiff’s DACA where the Government exercised its

24 discretion in conformity with all applicable guidance and policies, and indeed, there are no

25 applicable statutes or regulations.14

26

27 14 The relief Plaintiff seeks with regard to the reinstatement of his employment authorization is all the 28 more troubling because the termination of employment authorization is tied to commencement of
removal proceedings, not to the termination of Plaintiff’s DACA. See 8 C.F.R. § 274a.14(a)(1)(ii).

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1 Dated: February 5, 2018
2 3 4 5 6 7 8 9 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 District Court Section Office of Immigration Litigation /s/ Jeffrey S. Robins JEFFREY S. ROBINS Assistant Director U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 616-1246 jeffrey.robins@usdoj.gov Attorneys for Defendants
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1 ARNOLD & PORTER KAYE SCHOLER LLP
2 JOHN C. ULIN (SBN 165524) john.ulin@apks.com
3 JABA TSITSUASHVILI (SBN 309012)
4 jaba.tsitsuashvili@apks.com 777 South Figueroa Street, 44th Floor
5 Los Angeles, CA 90017-5844
6 T: (213) 243-4000 F: (213) 243-4199
7 Attorneys for Plaintiff
8 ALBERTO LUCIANO GONZALEZ TORRES

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11 ALBERTO LUCIANO GONZALEZ

12 TORRES,

Plaintiff,

13

vs.

14 U.S. DEPARTMENT OF

15

HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION

16

SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;

17

U.S. CUSTOMS AND BORDER PROTECTION; Does 1-10, inclusive,

18

Defendants.

19

Case No. 17 CV 1840 JM(NLS) PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION [Docket No. 39] Hearing: February 27, 2018 Time: 10:00 a.m. Courtroom: 5D Judge: Jeffrey T. Miller

20

21

22

23

24

25

26

27

28

PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 3:17-cv-01840-JM-NLS Document 46 Filed 02/12/18 PageID.1280 Page 2 of 17

1 2 3 I. 4 II. 5
III. 6
IV. 7 8 V. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS Page
INTRODUCTION ..................................................................................... 1 THIS COURT’S JURISDICTIONAL RULINGS ARE LAW OF THE CASE; DEFENDANTS IMPROPERLY SEEK RECONSIDERATIONERROR! BOO THE APA DOES NOT PRECLUDE REVIEW............................................ 4 DEFENDANTS IGNORED THE DACA MEMO’S AND DACA SOP’S DEFINITIONS OF ENFORCEMENT PRIORITIES .................................... 7 IF DEFENDANTS’ ACTIONS COMPORT WITH THE DACA MEMO AND SOP, THEY VIOLATE DUE PROCESS............................................ 9

i
PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

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1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 A. Singh v. Gonzalez, 499 F.3d 969 (9th Cir. 2007)..............................................................................3
5 Aguilar v. ICE,
6 510 F.3d 1 (1st Cir. 2007) ..................................................................................4

7 Alcaraz v. INS, 384 F.3d 1150 (9th Cir. 2004)............................................................................4
8 Batalla Vidal v. Duke,
9 2017 WL 5201116 (E.D.N.Y. Nov. 9, 2017)..................................................4, 5

10 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)...........................................................................................4
11 Coyotl v. Kelly,
12 261 F. Supp. 3d 1328 (N.D. Ga. 2017)...........................................................1, 2

13 DHS v. Regents, No. 17-1003 (Jan. 18, 2018).............................................................................10
14 Flores-Torres v. Mukasey,
15 548 F.3d 708 (9th Cir. 2008)..............................................................................2

16 Heckler v. Chaney, 470 U.S. 821 (1985).......................................................................................5, 6
17 IEIYC v. Duke,
18 2017 WL 5900061 (C.D. Cal. Nov. 20, 2017)....................................................1

19 INS v. St. Cyr, 533 U.S. 289 (2001)...........................................................................................4
20 INS v. Yang,
21 519 U.S. 26 (1996).............................................................................................5

22 JEFM v. Lynch, 837 F.3d 1026 (9th Cir. 2016)............................................................................4
23 Judulang v. Holder,
24 565 U.S. 42 (2011).............................................................................................7

25 Mayweathers v. Terhune, 136 F. Supp. 2d 1152 (E.D. Cal. 2001) ..............................................................2
26 Morales de Soto v. Lynch,
27 824 F.3d 822 (9th Cir. 2016)..............................................................................6

28 Newman v. Sathyavaglswaran, 287 F.3d 786 (9th Cir. 2002)............................................................................10

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Nicholas v. INS, 1 590 F.2d 802 (9th Cir. 1979)..............................................................................6 2 Nozzi v. Housing Auth. of LA,
806 F.3d 1178 (9th Cir. 2015)..........................................................................10 3
Perry v. Sindermann, 4 408 U.S. 593 (1972).........................................................................................10 5 Ramirez Medina v. DHS,
2017 WL 5176720 (W.D. Wash. Nov. 8, 2017) ...........................................1, 10 6
Robbins v. Reagan, 7 780 F.2d 37 (D.C. Cir. 1985) .............................................................................4 8 Romeiro de Silva v. Smith,
773 F.2d 1021 (9th Cir. 1985)........................................................................6, 8 9
Schering Corp. v. Ill. Antibiotics Co., 10 89 F.3d 357 (7th Cir. 1996)................................................................................2 11 Shirrod v. Director,
809 F.3d 1082 (9th Cir. 2015)............................................................................9 12
Sissoko v. Rocha, 13 509 F.3d 947 (9th Cir. 2007)..............................................................................3 14 Texas v. U.S.,
809 F.3d 134 (5th Cir. 2015)..............................................................................6 15
Toor v. Lynch, 16 789 F.3d 1055 (9th Cir. 2015)............................................................................9 17 Torres-Aguilar v. INS,
246 F.3d 1267 (9th Cir. 2001)............................................................................3 18
U.S. v. Hovsepian, 19 359 F.3d 1144 (9th Cir. 2004)....................................................................1, 2, 3 20 Webster v. Doe,
486 U.S. 592 (1988)...........................................................................................4 21
Wedges/Ledges of Calif., Inc. v. Phoenix, 22 24 F.3d 56 (9th Cir. 1994)................................................................................10 23 Statutes 24 5 U.S.C. § 701(a)(2)................................................................................................4 25 5 U.S.C. § 706 ........................................................................................................5 26 6 U.S.C. § 202(5)....................................................................................................8 27 8 U.S.C. § 1252(a)(5)..............................................................................................3 28 8 U.S.C. § 1252(b)(9) .........................................................................................1, 3
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8 U.S.C. § 1252(g) ..........................................................................................1, 2, 3 1
Rules 2
L.R. 7.1.i.2..............................................................................................................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
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1 I. INTRODUCTION

2

Defendants seek to foreclose any judicial review of Mr. Gonzalez’s APA and

3 constitutional claims by asking this Court to reconsider its jurisdictional determinations.

4 On the merits, Defendants seek to convert the term “enforcement priorities,” which is

5 clearly defined in DACA’s governing documents, into a standardless phrase that would

6 allow them to terminate benefits whenever they feel like it. The Court should reject this

7 unsupportable misreading of their governing procedures. And if Defendants are

8 characterizing their policies correctly, they have applied them in a way that violates Mr.

9

Gonzalez’s right to due process. II. THIS COURT’S JURISDICTIONAL RULINGS ARE LAW OF THE

10

CASE; DEFENDANTS IMPROPERLY SEEK RECONSIDERATION

11

This Court correctly determined that neither 8 U.S.C. § 1252(g) nor 8 U.S.C. §

12 1252(b)(9) deprives it of jurisdiction over claims that Defendants violated their own

13 mandatory policies and procedures, the APA, and the Constitution in purporting to

14 terminate Mr. Gonzalez’s DACA status through a process that—as the Court noted and

15 Defendants conceded—is not subject to review in immigration court. Dkt. 12 at 8-9

16 (docket pagination throughout); Sept. 28, 2017 Hr’g Tr. at 16. Every court to address

17 the issue has reached the same conclusion. See IEIYC v. Duke, 2017 WL 5900061

18 (C.D. Cal. Nov. 20, 2017); Ramirez Medina v. DHS, 2017 WL 5176720 (W.D. Wash.

19 Nov. 8, 2017); Coyotl v. Kelly, 261 F. Supp. 3d 1328 (N.D. Ga. 2017). But Defendants

20 rehash the same losing arguments rejected by the Ninth Circuit, which has held that a

21 federal court has jurisdiction to “consider a purely legal question that does not challenge

22 the Attorney General’s discretionary authority, even if the answer … forms the

23 backdrop against which the Attorney General later will exercise discretionary

24 authority.” U.S. v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004). Defendants’

25 arguments fail—again.

26

First, this Court’s decisions regarding the effects of Sections 1252(g) and

27 1252(b)(9) are law of the case, which “requires that when a court decides on a rule, it

28 should ordinarily follow that rule during the pendency of the matter” in the absence—as

here—of “a change in controlling authority or the need to correct a clearly erroneous

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1 decision which would work a manifest injustice.” Mayweathers v. Terhune, 136 F.

2 Supp. 2d 1152, 1153-54 (E.D. Cal. 2001). While the Court’s order was preliminary,

3 neither the law nor anything relevant to the Court’s jurisdictional determinations has

4 changed. See id. (prior preliminary injunction established law of the case). Mr.

5 Gonzalez is still not challenging any of the “narrow[]” and “discrete actions” in Section

6 1252(g), Dkt. 12 at 8; and he is still not “seeking judicial review of [an] order[] of

7 removal,” id. at 9. He is again asserting that Defendants have violated their mandatory

8 DACA procedures, and his claims still do not bear on the validity of his NTA or 9 challenge his immigration court removal proceedings.1 There is no reason to disturb 10 this Court’s decision.2

11

Second, Defendants inappropriately seek reconsideration of the Court’s rulings.

12 See Dkt. 44 at 16, 17, 22 n.5 (“Defendants disagree”; “prior reliance … is also

13 misplaced”; “previous reliance … is misplaced”). Too late. See L.R. 7.1.i.2 (“any

14 motion or application for reconsideration must be filed within 28 days after the entry of

15 the ruling, order or judgment sought to be reconsidered”). In this Court, reconsideration

16 is “disfavored unless a party shows there is new evidence, a change in controlling law,

17 or establishes that the Court committed a clear error in the earlier ruling.” Nothing of

18 the sort has happened.

19

Third, regardless of the above, Defendants are wrong. On Section 1252(g),

20 Hovsepian, 359 F.3d at 1155, controls. There, “the only thing standing between [the

21 plaintiff] and deportation [was] the district court’s order barring the INS from

22 commencing deportation proceedings” on particular grounds. Id. Because he sought “a

23 description of the relevant law” (applied to his criminal convictions) that would “form[]

24 1 An Immigration Judge’s past or future discretionary decision to terminate or close

Mr. Gonzalez’s immigration court removal proceedings after being apprised of his 25 situation does not change the fact that his claims in this Court are entirely collateral to

26

and independent of the removal proceedings. Indeed, a claim may be independent of removal proceedings even when its resolution might invalidate the proceedings. See

Flores-Torres v. Mukasey, 548 F.3d 708, 711-13 & n.6 (9th Cir. 2008). 27 2 These principles are particularly apt given Defendants’ decision not to appeal the

28

Court’s legal determinations. See Schering Corp. v. Ill. Antibiotics Co., 89 F.3d 357, 358 (7th Cir. 1996) (“Under the doctrine of the law of the case, a ruling by the trial

court, in an earlier stage of the case, that could have been but was not challenged on

appeal is binding in subsequent stages of the case.”).

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1 the backdrop against which the Attorney General later will exercise discretionary

2 authority,” the district court had jurisdiction—even though he sought an injunction

3 against the very commencement of removal proceedings. Id. Mr. Gonzalez is not

4 asking this Court to undo his NTA. He is asking the Court to (1) “consider a purely

5 legal question” (how does the DACA program define “enforcement priorities” for

6 termination purposes?) (2) “that does not challenge … discretionary authority” (to

7 commence proceedings, adjudicate cases, or execute removal orders). And “even if the

8 answer … forms the backdrop against which the Attorney General later will exercise

9 discretionary authority” (whether a person in Mr. Gonzalez’s situation fits the

10 definition), this Court has jurisdiction.

11

Sissoko v. Rocha, 509 F.3d 947 (9th Cir. 2007) confirms that Mr. Gonzalez’s

12 claims are properly before this Court. There, the Ninth Circuit held that Section 1252(g)

13 barred jurisdiction in the “limited context” of a challenge to detention that was

14 statutorily “mandatory” upon the commencement of expedited removal proceedings,

15 and therefore “arose from” that commencement. By contrast, it is not “mandatory” that

16 the commencement of removal proceedings for unlawful presence terminates DACA

17 status, so Mr. Gonzalez’s challenge to Defendants’ actions does not “arise from” that

18 commencement. See Dkt. 12 at 11.

19

Defendants’ reliance on Torres-Aguilar v. INS, 246 F.3d 1267 (9th Cir. 2001) is

20 also misplaced. On a petition for review, the Ninth Circuit simply explained that the

21 petitioner had not alleged a “colorable” due process claim because he did “not contend

22 that he was prevented from presenting his case before the immigration judge or the

23 BIA, denied a full and fair hearing before an impartial adjudicator[,] or otherwise

24 denied a basic due process right.” Id. at 1271. Mr. Gonzalez has alleged all of these, and

25 made clear that he is not challenging any of the three discrete actions in Section

26 1252(g). See Dkt. 39-1 at 29-34.

27

This Court should again quickly dispose of Defendants’ reliance on Sections

28 1252(a)(5) and 1252(b)(9). The “explicit language” of those provisions “appl[ies] only

to those claims seeking judicial review of orders of removal.” A. Singh v. Gonzalez, 499
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1 F.3d 969, 978 (9th Cir. 2007). They do not apply to “claims that are collateral to, or

2 independent of, the removal process.” JEFM v. Lynch, 837 F.3d 1026, 1032 (9th Cir.

3 2016). Mr. Gonzalez is not challenging any part of the immigration court process. His

4 claims are not “bound up in and an inextricable part of the [immigration court]

5 administrative process.” Id. at 1033; Aguilar v. ICE, 510 F.3d 1, 11 (1st Cir. 2007)

6 (“arises from” requires tighter nexus than “related to”).

7

Finally, this Court must not abandon its role and construe the INA “to deny any

8 judicial forum for a colorable constitutional claim,” raising “serious constitutional

9 concerns.” Webster v. Doe, 486 U.S. 592, 603 (1988); cf. JEFM, 837 F.3d at 1035

10 (Plaintiffs “have not been denied all forms of meaningful judicial review.”). III. THE APA DOES NOT PRECLUDE REVIEW
11 Defendants’ assertion that 5 U.S.C. § 701(a)(2) precludes review of Mr.
12 Gonzalez’s claims is an equally unavailing effort to circumvent the “strong
13 presumption in favor of judicial review of administrative action.” INS v. St. Cyr, 533
14 U.S. 289, 298 (2001). Section 701(a)(2) only precludes judicial review “to the extent
15 that” a particular “action is committed to agency discretion by law.” It is a “very narrow
16 exception” that “applies in those rare instances where … in a given case there is no law
17 to apply.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971);
18 Robbins v. Reagan, 780 F.2d 37, 45 (D.C. Cir. 1985) (“absolutely no guidance as to
19 how [] discretion is to be exercised”). This Court already disposed of Defendants’
20 arguments by making clear that the DACA SOP provides law for Defendants to apply
21 and “categorically reject[ing]” that “DHS possesses such broad prosecutorial discretion
22 that they need not follow the DACA SOP in terminating the status of DACA
23 recipients.” Dkt. 12 at 10.
24 Law to apply may be found in “internal operating procedures,” “policy
25 statement[s],” and “usual practice.” Alcaraz v. INS, 384 F.3d 1150, 1162 (9th Cir.
26 2004).3 Defendants cannot seriously contend—in the face of mounting judicial 27
determinations and their own admissions—that the DACA Memo, DACA SOP, 28
3 Indeed, “DHS’s prior statements” regarding the operation of DACA provide law to apply. Batalla Vidal v. Duke, 2017 WL 5201116, at *11 (E.D.N.Y. Nov. 9, 2017).
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1 DACA FAQ, and other DHS statements, memos, and policy directives do not provide

2 law to apply with respect to DACA status decisions and enforcement priority

3 determinations. Even if Defendants had unfettered discretion over similar decisions

4 before DACA, their establishment of and adherence to binding procedures, definitions,

5 and restrictions brings their compliance squarely within the purview of 5 U.S.C. § 706.

6 INS v. Yang, 519 U.S. 26, 32 (1996) (“Though the agency’s discretion is unfettered at

7 the outset, if it announces and follows—by rule or by settled course of adjudication—a

8 general policy by which its exercise of discretion will be governed, an irrational

9 departure from that policy (as opposed to an avowed alteration of it) could constitute

10 action that must be overturned” under the APA.). In addition, it is “well-established that

11 even where agency action is committed to agency discretion by law, review is still

12 available to determine if the Constitution has been violated.” Batalla Vidal, 2017 WL

13 5201116, at *11.

14

Against this backdrop, Defendants attempt to reframe Mr. Gonzalez’s claims as

15 a challenge to the exercise of prosecutorial discretion—i.e., to ICE’s decision to issue

16 an NTA for unlawful presence, which Mr. Gonzalez is not challenging here —rather

17 than to their termination of his DACA status in violation of the DACA SOP.

18 Defendants’ cases regarding challenges to discretionary decisions not to enforce are

19 inapposite and shed no light on whether the DACA program is bereft of “judicially

20 manageable standards” to judge Defendants’ compliance with their own mandatory

21 policies and defined enforcement priorities when they decided to enforce the

22 termination provisions against Mr. Gonzalez. Heckler v. Chaney, 470 U.S. 821, 830

23 (1985). In Heckler, the Supreme Court explained that enforcement decisions are

24 reviewable when governed by “clearly defined factors.” Id. at 834. Regardless of the

25 extent of Defendants’ discretion to issue an NTA for unlawful presence to a DACA

26

27

28

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1 recipient, DACA termination is governed by clearly defined factors in the DACA 2 Memo and SOP.4 And Defendants’ invocation of a “complex balancing of policy

3 considerations,” Dkt. 44 at 23, is a red herring. Nothing about reading the DACA

4 SOP’s and the Kelly Memo’s definitions of who does and does not constitute an

5 enforcement priority is “peculiarly within [USCIS’s] expertise.” Heckler, 470 U.S. at

6 831. Indeed, if the phrase “enforcement priorities” is as standardless as Defendants

7 claim, no balancing of anything would be required before stripping a DACA recipient

8 of his status. That cannot be the law.

9

Finally, Defendants’ attempt to equate the DACA SOP with the 1981 deferred

10 action instructions at issue in Romeiro de Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985)

11 ignores two dispositive distinctions. First, like the 1978 version at issue in Nicholas v.

12 INS, 590 F.2d 802 (9th Cir. 1979), DACA status confers substantive benefits and is

13 premised on humanitarian concerns:

14 • Defendants have taken affirmative steps and expended significant resources to, e.g., (1) conduct an “ongoing review of pending removal cases [and] offer[]
15 administrative closure to many of them,” Dkt. 39-4 at 2; (2) operate a special hotline “staffed 24 hours a day, 7 days a week” to assist DACA-eligible individuals in
16 removal proceedings, id. at 10; and (3) establish the comprehensive SOP to greatly circumscribe discretion regarding DACA status.
17 • The DACA Memo opens by explaining that DHS intends to protect “certain young people who were brought to this country as children and know only this country as
18 home,” and “lacked the intent to violate the law.” Dkt. 39-4 at 2.

19

Second, as Defendants have conceded, the DACA Memo and SOP are replete

20 with mandatory language. See, e.g., id. at 2-3 (“necessary to ensure” non-prioritization;

21 “USCIS is directed to begin implementing this process within 60 days”; “USCIS

22 process shall also be available to individuals subject to a final order of removal”).

23 Hence, the DACA SOP’s objectively verifiable criteria have been the determinative

24 basis for USCIS’s DACA decisions since its inception. Texas v. U.S., 809 F.3d 134,

25 171 (5th Cir. 2015). The DACA program provides ample law to apply, and Defendants’

26 4 Therefore, Morales de Soto v. Lynch, 824 F.3d 822 (9th Cir. 2016) has no
27 application here. To secure the favorable exercise of prosecutorial discretion, the

28

plaintiff was challenging a valid reinstatement of removal issued in immigration court, and her claims were entirely bound up in what was happening in her removal

proceedings. Id. at 825. By contrast, Mr. Gonzalez is not challenging any agency’s

decision to issue an NTA or prosecute that NTA in immigration court.

6

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1 efforts to deprive it of meaning by asserting the right to terminate DACA whenever and

2 however they please are contrary to law and logic.

IV. DEFENDANTS IGNORED THE DACA MEMO’S AND DACA SOP’S

3

DEFINITIONS OF ENFORCEMENT PRIORITIES

4

Defendants’ arguments on the merits hinge on erroneous assertions and post hoc

5 rationalizations: (1) that Mr. Gonzalez has not identified how the DACA SOP defines

6 “enforcement priorities” for DACA recipients, Dkt. 44 at 27-28; (2) that “the DACA

7 SOP is silent as to the factors USCIS is to use in DACA termination decisions based

8 where an individual is determined to be an enforcement priority,” Dkt. 44 at 29 n.10;

9 (3) that the law and the DACA program permit Defendants’ unfettered discretion to

10 deem a DACA recipient an enforcement priority for any reason, and USCIS is not 11 “constrained by his lack of conviction o[r] public safety concern,” Dkt. 44 at 305; and

12 (4) that Mr. Gonzalez must be an enforcement priority “based on his alleged role in an

13 alien smuggling enterprise” because the 2011 USCIS Memo (Dkt. 39-4, Ex. H)

14 identifies circumstances where ICE may find a DACA recipient an Egregious Public

15 Safety (“EPS”) concern, Dkt. 44 at 28.

16

As Mr. Gonzalez already explained—no matter the definition of enforcement

17 priorities that may apply to individuals outside the scope of the DACA Memo, or

18 perhaps even facially-DACA-eligible individuals who do not have DACA status—

19 pursuant to the DACA SOP, a DACA recipient is, by definition, a “low priority”

20 individual as long as he continues to meet the objectively verifiable DACA criteria. In

21 other words, DACA status, once granted, cannot be terminated without a disqualifying

22 criminal conviction, a public safety concern finding, a national security concern finding,

23 or an EPS finding. The DACA SOP is not silent regarding what is required for a

24 DACA recipient to be deemed an enforcement priority. Rather, it speaks simply and

25 clearly: “these” individuals (i.e., who meet the DACA criteria) are distinct from “those

26 who meet

27 5 Defendants admit, as they did in his purported termination notice, that Mr. Gonzalez
28 does not have a criminal offense and is not a public safety concern or an EPS concern. Their effort to terminate his DACA status is not based on “relevant factors,” but a failure to exercise “reasoned decisionmaking.” Judulang, 565 U.S. at 52-53, 55.
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1 DHS’s enforcement priorities.” Apr. 4, 2013 DACA SOP at 18.6

2

Defendants claim that this plain reading of the DACA SOP “would render

3 meaningless the specific termination ground that continuation of deferred action is not

4 consistent with DHS’s enforcement priorities.” Dkt. 44 at 24. Mr. Gonzalez already

5 explained why this argument fails. See Dkt. 39-1 at 26 n.7. The enforcement priority

6 termination ground reflects the reality that DHS may “repeal” its current enforcement

7 priority policies for DACA beneficiaries and “substitute new rules in their place.”

8 Romeiro de Silva, 773 F.2d at 1025. But until then, Defendants remain “bound by” the

9 “operative” rules, under which Mr. Gonzalez—as a DACA recipient without any

10 criminal charge or conviction, or finding that he is a public safety concern—is not an

11 enforcement priority. Id.; see Dkt. 39-1 at 11-12 (DHS explaining that DACA’s

12 enforcement priority terms remain unchanged). In truth, it is Defendants’ argument that

13 the enforcement priority termination ground is standardless and leaves their personnel

14 without “constrain[t]” that would render meaningless all of the other DACA

15 termination grounds. Why have specifically delineated termination categories if, as

16 Defendants assert, enforcement priority means whatever a USCIS officer wants it to

17 mean?

18

Moreover, Defendants’ unmoored approach would run afoul of DHS’s statutory

19 obligation to “establish[] national immigration enforcement policies and priorities.” 6

20 U.S.C. § 202(5). It is Defendants’ burden to define the “enforcement priorities” that

21 justify DACA termination, and they have done so in the DACA Memo and SOP. They

22 defined DACA recipients who meet the SOP’s objectively verifiable criteria as low

23 priority cases and enumerated a series of events—criminal convictions, findings of

24 public safety or national security concern, or EPS findings—that could make them an

25 enforcement priority. Including additional language that permits termination when

26 continued DACA status is not consistent with Defendants’ enforcement priorities does

27 6 Indeed, “for DACA,” USCIS “references” the DACA Memo to ensure compliance
28 with the SOP. Apr. 4, 2013 DACA SOP at 16. Therefore, DACA enforcement priorities must also be defined by “reference” to the DACA Memo, which exempts a DACA recipient who meets its objective criteria from enforcement priority status.
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1 not relieve Defendants of their obligation to say what those priorities are and to

2 terminate DACA only when an individual falls within one of the defined categories.

3 Defendants argue an untenable reading of the termination provision that would swallow 4 the proverbial rule. The Court should reject the argument out of hand.7

5

Finally, the Court may not consider Defendants’ post hoc explanation that Mr.

6 Gonzalez is an enforcement priority by reference to the EPS section of the 2011 USCIS

7 Memo. Nearly two years after first attempting to terminate Mr. Gonzalez’s DACA

8 status, Defendants have never found that he was an EPS case. ICE never did it. CBP

9 never did it. And neither did USCIS. It is therefore not a proper ground for termination

10 to raise before this Court, which may only consider “explanations offered by the

11 agency.” Toor v. Lynch, 789 F.3d 1055, 1064 (9th Cir. 2015). Defendants either did not

12 consider the EPS ground or concluded, as the judge who released him 21 months ago

13 did, that Mr. Gonzalez does not present any public safety concern, let alone an

14 egregious one. See Shirrod v. Director, 809 F.3d 1082, 1087 n.4 (9th Cir. 2015) (court

15 must “review only what the agency did, not what [it] could have done”). Defendants’

16 post hoc rationalization also makes no sense. In an EPS case, they would not have

17 issued Mr. Gonzalez an NOIT, but would have “automatically” terminated his DACA

18 status. The enforcement priority ground of the DACA SOP is the only one before this

19 Court. The DACA Memo and SOP define that ground. And Defendants ignored that

20 definition.

V. IF DEFENDANTS’ ACTIONS COMPORT WITH THE DACA MEMO

21

AND SOP, THEY VIOLATE DUE PROCESS

22

No matter what the SOP permits, the Constitution cannot countenance DACA

23 status termination (1) on the basis of a USCIS officer’s determination on a paper record

24 that Mr. Gonzalez is a criminal, (2) after an Immigration Judge found him credible, so

25 that he has resumed his law-abiding life in San Diego, (3) nearly two years after he was

26 arrested without any charges, further investigation beyond two days after his arrest in

27 May 2016, prior or subsequent law enforcement encounters, or public safety concerns,

28 7 Defendants have not come forward with a definition. Should the Court disagree with Mr. Gonzalez’s (and the SOP’s) definition, it should ensure that Defendants bear the burden of illuminating the correct definition, as is their statutory obligation.
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1 (4) without the opportunity to know the facts that would guide the termination decision,

2 confront evidence or witnesses, or rebut factual allegations, and (5) without any chance

3 to be heard by a neutral arbiter, rather than the same one who had already issued him a

4 seemingly pre-determined notice of intent to terminate. See Dkt. 39-1 at 32-34.

5

Once granted, Mr. Gonzalez has a constitutionally protected interest in DACA

6 status—the result of a deal with the government, not unilateral expectation. At least one

7 court has rejected DHS’s assertion “that there can be no violation of [a DACA

8 recipient’s] Due Process rights because no process is actually due”:

9

In creating the DACA policy/program, the federal government recognized that there were thousands of young people unlawfully present in our country,

10

that lacked the intent to violate the law, and that had contributed to our country in significant ways, and that its immigration enforcement resources

11

should not be spent on low priority cases such as those. The policy then set forth criteria to be considered when determining whether to grant DACA to

12

an applicant. These criteria established a quid pro quo from the federal government to the potential applicants—i.e., you (applicant) make yourself

13

known to us (federal government) and pass rigorous background checks, etc., and in return you will be considered for DACA, which in turn will

14

allow you the opportunity to remain in the country, work, and potentially receive other state benefits. Ramirez Medina, 2017 WL 5176720, at *9.

15

Defendants’ behavior is not consonant with a program that exists solely for the

16 administrative convenience of the government, but rather one that confers benefits

17 based on “mutually explicit understandings.” Perry v. Sindermann, 408 U.S. 593, 601

18 (1972). Indeed, DHS recently explained that it views DACA status as “confer[ring]

19 affirmative benefits.” Pet. for Writ of Cert. at 12, DHS v. Regents, No. 17-1003 (Jan.

20 18, 2018), available at https://goo.gl/Tjvaqg.

21

DACA’s well-defined framework, specific operating procedures, and mandatory

22 language “greatly restrict the discretion of the people who administer it” and underscore

23 the property interests conferred by DACA status. Nozzi v. Housing Auth. of LA, 806

24 F.3d 1178, 1191 (9th Cir. 2015); Wedges/Ledges of Calif., Inc. v. Phoenix, 24 F.3d 56,

25 63 (9th Cir. 1994). And the DACA Memo’s boilerplate that it “confers no substantive

26 right” is not determinative. The question “turns on the substance of the interest

27 recognized, not the name given that interest by the state.” Newman v.

28 Sathyavaglswaran, 287 F.3d 786, 797 (9th Cir. 2002).

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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/ John C. Ulin John C. Ulin (SBN 165524) john.ulin@apks.com Jaba Tsitsuashvili (SBN 309012) jaba.tsitsuashvili@apks.com ARNOLD & PORTER KAYE SCHOLER LLP 777 South Figueroa Street, 44th Floor Los Angeles, CA 90017-5844 T: (213) 243-4000 F: (213) 243-4199
Attorneys for Plaintiff ALBERTO LUCIANO GONZALEZ TORRES

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PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

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CERTIFICATE OF ELECTRONIC FILING

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I hereby certify that on February 12, 2018, I electronically filed the foregoing

4 document with the Clerk of the Court using CM/ECF.

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/s/ John Ulin

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PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

 
 Case 3:17-cv-01840-JM-NLS Document 49-1 Filed 02/23/18 PageID.1307 Page 1 of 30

CHAD A. READLER 1 Acting Assistant Attorney General

2

WILLIAM C. PEACHEY Director, District Court Section

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Office of Immigration Litigation JEFFREY S. ROBINS

4

Assistant Director U.S. Department of Justice

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P.O. Box 868, Ben Franklin Station Washington, D.C. 20044

6 (202) 616-1246 Email: jeffrey.robins@usdoj.gov

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Attorneys for Defendants

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALBERTO LUCIANO

) Case No. 3:17-CV-01840-JM-(NLS)

14 GONZALEZ TORRES,

)

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) DEFENDANTS’ MEMORANDUM

Plaintiff,

) OF POINTS AND AUTHORITIES

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) IN SUPPORT OF DEFENDANTS’

17

v.

) MOTION TO DISMISS

)

18 19

U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,

) )

DATE: TIME: CTRM:

March 26, 2018 10:00 a.m. 5D

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) Hon. Jeffrey T. Miller

Defendants.

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1

TABLE OF CONTENTS

2

3
4 TABLE OF AUTHORITIES ...............................................................................................ii

5 INTRODUCTION ............................................................................................................... 1

6 BACKGROUND ................................................................................................................. 2

7 ARGUMENT ....................................................................................................................... 3

8

I. Standard of Review ............................................................................................. 3

9

11

A. Dismissal pursuant to Fed. R. Civ. P. 12(b)(1) ....................................... 3

12

B. Dismissal pursuant to Fed. R. Civ. P. 12(b)(6) ....................................... 4

13

II. Plaintiff Lacks Standing to Raise Claims Regarding the Enjoined

14

May 2016 Termination of his DACA ................................................................. 4

15
III. This Court Lacks Jurisdiction, and any Judicial Challenges to Removal Must

16

be Brought in a Petition for Review ................................................................... 5

17

A. The INA Limits Review of Plaintiff’s Claims which Arise from

18

DHS’s Decision to Commence and Adjudicate Plaintiff’s

19

Removal Proceedings .............................................................................. 6

20

B. Judicial Review of Discretionary DACA Termination after Advance

Notice and an Opportunity Respond is also Barred under 5 U.S.C.

21

§ 701(a)(2) ............................................................................................. 13

22

23

C. Plaintiff Cannot State a Constitutional Claim because the

Termination of DACA and Employment Authorizations does not

24

Implicate a Constitutional Interest ........................................................ 18

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1

TABLE OF AUTHORITIES

2

CASES

3
Aguilar v. United States Immigration & Customs Enforcement, 4 510 F.3d 10 (1st Cir. 2007) ............................................................................................ 13

5
Alcaraz v. INS, 6 384 F.3d 1150 (9th Cir. 2004) ..........................................................................................6

7
Arizona v. California, 8 460 U.S. 605 (1983) .........................................................................................................2
9
11 Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015)...................................................................................passim
12

13 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................................... 4
14

15 Bd. of Regents of State Colleges v. Roth, 16 408 U.S. 564 (1972) .......................................................................................................19

17 Bell Atl. Corp. v. Twombly, 18 550 U.S. 544 (2007) .....................................................................................................3, 4

19 Berrigan v. Sigler, 20 499 F.2d 514 (D.C. Cir. 1974)..........................................................................................2

21 Biggs v. Terhune, 22 334 F.3d 910 (9th Cir. 2003) ............................................................................................1

23
Blantz v. Cal. Dep’t of Corr. & Rehab., 24 727 F.3d 917 (9th Cir. 2013) ..........................................................................................19
25
Botezatu v. INS, 26 195 F.3d 311 (7th Cir. 1999) ............................................................................................7
27

28

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1 Carranza, v. I.N.S., 277 F.3d 65 (1st Cir. 2002) ............................................................................................ 15
2
3 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ..................................................................................................... 3
4
5 Clay v. Wells Fargo Home, 6 No. 13-CV-338-KJM(GGHx),
2013 U.S. Dist. LEXIS 39689 (E.D. Cal. Mar. 21, 2013) ............................................... 4
7
Colotl v. Kelly, 8 261 F. Supp. 3d 1328 (N.D. Ga. June 12, 2017) ..............................................................7
9
11 De Mercado v. Mukasey, 566 F.3d 810 (9th Cir. 2009) .......................................................................................... 19
12
13 Fabian-Lopez v. Holder, No. 11-71513, 540 F. App’x 760 (9th Cir. Apr. 29, 2013) .............................................. 9
14
15 Forziano v. Indep. Grp. Home Living Program, Inc., 16 613 F. App’x 15 (2d Cir. 2015)........................................................................................4
17 Garcia v. Google, Inc., 18 786 F.3d 733 (9th Cir. 2015) ..........................................................................................13
19 Garcia v. Holder, 20 No., 07-60271, 320 F. App’x 288 (9th Cir. April 9, 2009)............................................19
21 Garcia-Herrera v. Asher, 22 585 F. App’x 439 (9th Cir. 2014).....................................................................................8
23
Gerhart v. Lake Cnty., Mont., 24 637 F.3d 1013 (9th Cir. 2011) ........................................................................................19
25
Heckler v. Chaney, 26 470 U.S. 821 (1985) ................................................................................................passim
27
28 ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270 (1987) ....................................................................................................... 13
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1
Inland Empire—Immigrant Youth Collective v. Duke, 2 No. EDCV 17–2048, 2017 WL 5900061 (C.D. Cal. Nov. 20, 2017) ............................17
3
J.E.F.M. v. Lynch, 4 837 F.3d 1026 (9th Cir. 2016) ........................................................................................12
5
6 Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454 (1989) ........................................................................................... 18, 19, 20
7
8 La Jolla Cove Inv’rs, Inc. v. GoConnect Ltd., No. 11CV1907 JLS JMA, 2012 WL 1580995 (S.D. Cal. May 4, 2012) ......................... 4
9
11 Lincoln v. Vigil, 12 508 U.S. 182 (1993) .......................................................................................................13
13 Lujan v. Defenders of Wildlife, 14 504 U.S. 555 (1992) .........................................................................................................3
15 Martinez v. Napolitano, 16 704 F.3d 620 (9th Cir. 2012) ..........................................................................................13
17 McNary v. Haitian Refugee Cir., Inc., 18 498 U.S. 479 (1991) .........................................................................................................8
19
Mendez-Garcia v. Lynch, 20 840 F.3d 655 (9th Cir. 2016) ..........................................................................................19
21
Morales de Soto v. Lynch, 22 824 F.3d 822 (9th Cir. 2016) .................................................................................. 5, 6, 14
23
Morrissey v. Brewer, 24 408 U.S. 471 (1972) .......................................................................................................19
25
Nicholas v. INS, 26 590 F.2d 802 (9th Cir. 1979) ......................................................................................9, 10
27
28 O’Shea v. Littleton, 414 U.S. 488 (1974) ......................................................................................................... 3
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1
Olim v. Wakinekona, 2 461 U.S. 238 (1983) .......................................................................................................19
3
Omar v. McHugh, 4 646 F.3d 13 (D.C. Cir. 2011)..........................................................................................20
5
6 Oregon Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin., 860 F.3d 1228 (9th Cir. 2017) .......................................................................................... 3
7
8 Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365 (1978) ......................................................................................................... 3
9
11 Pasquini v. Morris, 12 700 F.2d 658 (11th Cir. 1983) ........................................................................................15
13 Perales v. Casillas, 14 903 F.2d 1043 (5th Cir. 1990) ........................................................................................14
15 Pilapil v. INS, 16 424 F.2d 6 (10th Cir. 1970)
cert denied, 400 U.S. 908 (1970) ................................................................................... 19
17
18 PNC Equip. Fin., LLC v. California Fairs Fin. Auth., 19 No. CV1106248MMMDTBX, 2012 WL 12506870 (C.D. Cal. Feb. 9, 2012)................1
20 Ramirez-Perez v. Ashcroft, 21 336 F.3d 1001 (9th Cir. 2003) ..........................................................................................8
22 Regents of Univ. of Cal. v. United States Dep’t of Homeland Sec., 23 No. C 17-05211 WHA, 2018 WL 339144 (N.D. Cal. Jan. 9, 2018)..............................19
24
Reno v. Am.-Arab Anti-Discrimination Comm., 25 525 U.S. 471 (1999) ................................................................................................passim
26
Report Cactus Corner, LLC v. U.S. Dep’t of Agric., 27 346 F.Supp.2d 1075 (E.D. Cal. 2004) 28 aff’d, 450 F.3d 428 (9th Cir. 2006) .................................................................................. 1
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1 Rockwell Int’l Corp. v. United States, 549 U.S. 457 (2007) ......................................................................................................... 4
2
3 Rodriguez v. Sessions, No. 15-72487, 2017 WL 695192 (9th Cir. Feb. 22, 2017)............................................... 9
4

5 Romeiro de Silva v. Smith, 6 773 F.2d 1021 (9th Cir. 1985) ................................................................................... 9, 10

7 Sanchez v. Holder, 8 No. 15CV0089-GPCWVG, 2015 WL 4249446 (S.D. Cal. July 13, 2015) ..................... 9

9 Silva v. United States, 11 866 F.3d 938 (8th Cir. 2017) ........................................................................................6, 7

12 Singh v. Bardini, 13 No. 09-cv-3382, 2010 WL 308807 (N.D. Cal. Jan. 19, 2010) .......................................20

14 Singh v. Gonzales, 15 499 F.3d 969 (9th Cir. 2007) ..........................................................................................13

16
Sissoko v. Rocha, 17 509 F.3d 947 (9th Cir. 2007) ............................................................................................8

18
Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 19 873 F.2d 1221 (9th Cir. 1989) ..........................................................................................3

20

21

Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730 (9th Cir. 1979) ............................................................................................ 3

22

23 Torres-Aguilar v. INS, 246 F.3d 1267 (9th Cir. 2001) .......................................................................................... 8
24

25 Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) ............................................................................................. 6, 18, 20
26

27 Trinidad y Garcia v. Thomas, 28 683 F.3d 952 (9th Cir. 2012).......................................................................................... 20

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1 United States v. Alexander, 106 F.3d 874 (9th Cir. 1997) ............................................................................................ 2
2
3 United States v. Armstrong, 517 U.S. 456 (1996) ................................................................................................. 14, 15
4
5 United States v. Hovsepian, 6 359 F.3d 1144 (9th Cir. 2004) ..........................................................................................7
7 United States v. Lee, 8 274 F.3d 485 (8th Cir. 2001) ..........................................................................................15
9 United States v. Raya-Vaca, 11 771 F.3d 1195 (9th Cir. 2014) ........................................................................................20
12 Vasquez v. Aviles, 13 639 F. App’x 898 (3d Cir. 2016)......................................................................................9
14
Velasco-Gutierrez v. Crossland, 15 732 F.2d 792 (10th Cir. 1984) ..................................................................................18, 20
16
Vilchiz-Soto v. Holder, 17 688 F.3d 642 (9th Cir. 2012) ............................................................................................9
18
19 Walt Disney Productions v. Filmation, 628 F. Supp. 871 (C.D. Cal. 1986) ................................................................................... 2
20
21 Walter v. Reno, 145 F.3d 1032 (9th Cir. 1998) .......................................................................................... 8
22
23 Wayte v. United States, 24 470 U.S. 598 (1985) .................................................................................................14, 15
25 Wong v. United States, 26 373 F.3d 952 (9th Cir. 2004) ............................................................................................8
27
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1

STATUTES

2 5 U.S.C. § 701(a)(1).............................................................................................................5

3
5 U.S.C. § 701(a)(2).................................................................................................5, 13, 14
4
5 5 U.S.C. § 702......................................................................................................................5

6 5 U.S.C. § 704...................................................................................................................... 5
7
5 U.S.C. § 706(2)(A)............................................................................................................5
8
9 5 U.S.C. § 706(2)(D)............................................................................................................ 5

11 8 U.S.C. § 1252(a)(B)(i) ......................................................................................................8
12
8 U.S.C. § 1252(a)(5).........................................................................................................12
13

14 8 U.S.C. § 1252(b)(9)......................................................................................................... 12

15 8 U.S.C. § 1252(g) ......................................................................................................passim
16
REGULATIONS
17
18 8 C.F.R. § 274a.12(c)(14) ..................................................................................................20

19

RULES

20 Fed. R. Civ. P. 12(b)(1)....................................................................................................1, 3
21
22 Fed. R. Civ. P. 12(b)(6)........................................................................................................3

23 Fed. R. Evid. 201 ................................................................................................................. 1
24

25

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1 INTRODUCTION

2

Plaintiff’s First Amended Complaint (“FAC”) challenges both Defendants’

3 automatic termination of his DACA in May 2016 when U.S. Customs and Border

4 Protection issued him a Notice to Appear following his arrest on allegations of alien

5 harboring, and U.S. Citizenship and Immigration Services’ (“USCIS”) subsequent

6 discretionary termination of his DACA and employment authorization after notice and an

7 opportunity respond. Dkt. No 38. At the heart of Plaintiff’s claim is the bald assertion that

8 Plaintiff cannot be an enforcement priority because “DACA recipients are ‘low priority

9 cases.’” Dkt. No. 38 at 1.

11

The Court must dismiss Plaintiff’s FAC. First, Plaintiff lacks standing to challenge

12 Defendants’ initial termination of his DACA through issuance of an NTA. As a result of

13 the Court’s September 29, 2017 Order Granting Motion for Preliminary Injunction

14 (“September 29, 2017 Order”), USCIS reinstated Plaintiff’s DACA, accepted his DACA

15 renewal request, issued Plaintiff a Notice of Intent to Terminate (“NOIT”) his reinstated

16 DACA, Dkt. Nos. 14-1 & 14-2; Dkt. No. 38 at ¶¶ 132-134; 39-6 at ¶¶ 191-192, and

17 issued a Termination Decision (“Decision”) that will terminate Plaintiff’s DACA as of 18 December 21, 2017, upon further order of this Court. See Dkt. No. 39-6 at 194-197.1

19 Thus, the initial termination of Plaintiff’s DACA is no longer a final agency action, and

20 amendment of his complaint after Defendants’ subsequent termination of his DACA

21 precludes Plaintiff from establishing standing over the initial termination.

22

23 1 Although Plaintiff neither cites nor attaches USCIS’s NOIT or Termination Decision to his amended complaint, the Court may take judicial notice of those documents and Defendants’ policies and guidance

24 under Federal Rule of Evidence 201, as agency materials, see Report Cactus Corner, LLC v. U.S. Dep't of

25

Agric., 346 F.Supp.2d 1075, 1100 (E.D. Cal. 2004) aff’d, 450 F.3d 428 (9th Cir. 2006), and materials from proceedings in other tribunals, see Biggs v. Terhune, 334 F.3d 910, 915 n.3 (9th Cir. 2003). For ease of

26 reference, Defendants refer to previously docketed versions of these materials found at Dkt. Nos. 14 and

39. Courts may consider documents subject to judicial notice in deciding a Rule 12(b)(1) facial attack. 27 See, e.g., PNC Equip. Fin., LLC v. California Fairs Fin. Auth., No. CV1106248MMMDTBX, 2012 WL

28 12506870, at *6 (C.D. Cal. Feb. 9, 2012).

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1

This Court also lacks jurisdiction over Plaintiff’s claims because: the Immigration

2 and Nationality Act (“INA”) precludes review over Defendants’ decision and actions

3 regarding the adjudication of Plaintiff’s removal proceedings – including the termination

4 of DACA – and any claims the INA preserves for review must be channeled through

5 Plaintiff’s removal proceedings; Defendants’ exercise of prosecutorial discretion is not

6 appropriate for judicial review; and the Plaintiff cannot establish a constitutional interest 7 sufficient to proceed on his Due Process claims.2

8 BACKGROUND

9

Here, as a result of the Court’s September 29, 2017 Order, USCIS reinstated

11 Plaintiff’s DACA, accepted his DACA renewal request, issued Plaintiff a Notice of Intent

12 to Terminate (NOIT) his reinstated DACA, Dkt. Nos. 14-1 & 14-2; Dkt. No. 39-6 at 19113 192, and issued a Termination Decision (“Decision”) that will terminate Plaintiff’s 14 DACA as of December 21, 2017, upon further order of this Court. See Dkt. No. 39-6 at 15 194-197. That Decision specifically referenced the DACA SOP, Dkt. No. 39-6 at 195 (“If 16 after consulting with ICE, USCIS determines that exercising prosecutorial discretion after 17 removal has been deferred under DACA is not consistent with the Department of 18 Homeland Security's enforcement priorities . . . .”), quoting Dkt. No. 2-9 at 15, and goes 19 on to consider Plaintiff’s arguments in response to USCIS’s NOIT before concluding, the 20 agency’s discretion, that termination of DACA is warranted.

21

22

23 2“The decision of a trial or appellate court whether to grant or deny a preliminary injunction does not

24 constitute the law of the case for the purposes of further proceedings and does not limit or preclude the

25

parties from litigating the merits. . . .” Berrigan v. Sigler, 499 F.2d 514, 518 (D.C. Cir. 1974); see also Walt Disney Productions v. Filmation, 628 F. Supp. 871, 879 (C.D. Cal. 1986) (stating that appraisal of

26 the “likelihood of success” standard is not a final decision on the merits). Moreover, the doctrine itself is

a guide to the Court’s discretion rather than a limit on the Court’s jurisdiction. See United States v. 27 Alexander, 106 F.3d 874, 876 (9th Cir. 1997), citing Arizona v. California, 460 U.S. 605, 618 (1983).

28

Courts may depart from this doctrine in cases, inter alia, of clear error or changed circumstances – both of which Defendants contend are applicable here. Alexander, 106 F.3d at 876.

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1

ARGUMENT

2 I. Standard of Review

3

A. Dismissal pursuant to Fed. R. Civ. P. 12(b)(1)

4

Because federal courts have limited jurisdiction, a court must dismiss any case if it

5 lacks subject matter jurisdiction over the claims. Fed. R. Civ. P. 12(b)(1); Owen Equip. &

6 Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). “A federal court is presumed to lack

7 jurisdiction in a particular case unless the contrary affirmatively appears.” Stock W., Inc.

8 v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).

9 The elements necessary to establish standing “must be supported in the same way as any

11 other matter on which the plaintiff bears the burden of proof.” Lujan v. Defenders of

12 Wildlife, 504 U.S. 555, 561 (1992). Moreover, when the issue of jurisdiction is separable

13 from the merits of the case, no presumption of truthfulness attaches to a plaintiff’s

14 allegations, and the plaintiff bears the burden of proving that jurisdiction exists. Thornhill

15 Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).

16

The “irreducible constitutional minimum of standing” to assert federal court

17 jurisdiction requires “the plaintiff must have suffered an injury in fact . . . which is . . .

18 concrete and particularized, . . . the injury has to be fairly traceable to the challenged

19 action of the defendant, and . . . it must be likely . . . that the injury will be redressed by a

20 favorable decision.” Lujan, 504 U.S. at 560 (internal citations and modifications omitted).

21 “Allegations of possible future injury do not satisfy the requirements of Art[icle] III.”

22 Oregon Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin., 860 F.3d

23 1228, 1235 (9th Cir. 2017), citing Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1141

24 (2013). Finally, while an imminent future harm may establish standing, the harm alleged

25 cannot be the result of plaintiff’s own unlawful conduct. Id. at 1042, quoting O’Shea v.

26 Littleton, 414 U.S. 488, 497 (1974).

27

28

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1

B. Dismissal pursuant to Fed. R. Civ. P. 12(b)(6)

2

To survive dismissal under Rule 12(b)(6), “the complaint must allege sufficient

3 facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

4 550 U.S. 544, 555-56 (2007). Although the Court must accept as true all well-pleaded

5 factual allegations when determining the legal sufficiency of a claim, it need not credit

6 “legal conclusion couched as a factual allegation.” Id. at 555. “Threadbare recitals of the

7 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

9 II. Plaintiff Lacks Standing to Raise Claims Regarding the Enjoined May 2016

11

Termination of his DACA.

12

When “a plaintiff files a complaint in federal court and then voluntarily amends the

13 complaint, courts look to the amended complaint to determine jurisdiction.” Rockwell

14 Int’l Corp. v. United States, 549 U.S. 457, 473 (2007); see also Forziano v. Indep. Grp.

15 Home Living Program, Inc., 613 F. App’x 15, 17 (2d Cir. 2015) (citations omitted) (“The

16 district court properly assessed the plaintiffs’ standing to request an injunction based on

17 the amended complaint, which ‘supercede[d] the original, and render[ed] it of no legal

18 effect.’”); Clay v. Wells Fargo Home, N.A., No. 13-CV-338-KJM(GGHx), 2013 U.S.

19 Dist. LEXIS 39689, at *7 (E.D. Cal. Mar. 21, 2013) (“As the amended complaint

20 supersedes the original complaint, and the asserted basis for the preliminary injunction is

21 no longer before the court, the pending motion is moot.”); La Jolla Cove Inv’rs, Inc. v.

22 GoConnect Ltd., No. 11CV1907 JLS JMA, 2012 WL 1580995, at *1 (S.D. Cal. May 4,

23 2012) (“Noting that an amended complaint supersedes any previous complaint, the Court

24 denied the pending motions as moot, but permitted La Jolla Cove to refile its motion for a

25 preliminary injunction, directing it to ‘address[ ] how the amendments impact the relief

26 requested.’”).

27

Defendants previously argued that this claim, and the Court’s injunction based on

28 this claim, became moot upon the reinstatement of Plaintiff’s DACA, Dkt. No. 31 at 2,

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1 n.2. However, by amending his complaint after the May 2016 termination was no longer

2 in effect the question of mootness turns into one of standing. Now, Plaintiff Gonzalez

3 lacks standing to challenge a procedural and final agency action that he is no longer

4 subject to because Defendants, in compliance with this Court’s Order, reinstated

5 Plaintiff’s DACA and then terminated it again with advance notice and an opportunity to

6 respond specifically based on procedures identified in U.S. Citizenship and Immigration

7 Service’s DACA Standard Operating Procedures. See, e.g., Forziano, 613 F. App’x at 17.

8 III. This Court Lacks Jurisdiction, and any Judicial Challenges to Removal Must

9

be Brought in a Petition for Review.

The Administrative Procedure Act (“APA”) permits persons aggrieved by final agency
11

action to obtain judicial review in federal court where “there is no other adequate remedy in a
12

court.” See 5 U.S.C. §§ 702, 704. A reviewing court shall set aside agency action found to be
13

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or
14

“without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D). However, the
15

APA precludes judicial review of agency decisions when “statutes preclude judicial review,” or
16

when the decision is “committed to agency discretion by law.” 5 U.S.C. § 701(a)(1), (a)(2); see
17

Heckler v. Chaney, 470 U.S. 821, 830 (1985) (explaining that “even where Congress has not
18

affirmatively precluded review, review is not to be had if the statute is drawn so that a court
19
would have no meaningful standard against which to judge the agency's exercise of
20

discretion.”).
21

Congress enacted section 1252(g) to specifically preclude judicial review of the
22

discretionary decision to initiate removal proceedings, and the actions and decisions arising out
23
of such decisions. See Reno v. Am.-Arab Anti-Discrimination Comm. (“AADC”), 525 U.S. 471,
24
483-85 (1999) (finding section 1252(g) also precludes review of the discretionary decision to
25
not initiate removal proceedings). Furthermore, in Heckler, the Supreme Court held that “an
26
agency’s decision not to take enforcement action should be presumed immune from
27
judicial review under § 701(a)(2).” 470 U.S. 821, 832.
28

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1

Here, the INA specifically precludes review of the actions that Plaintiff challenges.

2 Moreover, the challenged action, an individual DACA decision, falls squarely within that

3 category of actions for which there is no law to apply, as it is a decision implicating

4 prosecutorial discretion. See Heckler, 470 F.3d at 830; see also Morales de Soto v. Lynch,

5 824 F.3d 822, 828 (9th Cir. 2016) (noting that “the exercise of prosecutorial discretion is

6 a type of government action uniquely shielded from and unsuited to judicial

7 intervention”); accord Arpaio v. Obama, 797 F.3d 11, 16 (D.C. Cir. 2015) (explaining that

8 “[i]n making immigration enforcement decisions, the executive considers a variety of

9 factors”), cert. denied, 136 S. Ct. 900, (2016), reh’g denied, 136 S. Ct. 1250 (2016).

11 Contrary to Plaintiff’s arguments, Defendants’ guidance does not curtail the well-

12 recognized discretion with regard to deferred action decisions.

13

Additionally, the Court lacks jurisdiction over Plaintiff’s constitutional claims

14 because Plaintiff necessarily lacks a protected constitutional interest in the DACA

15 termination process, because the ultimate relief he seeks – deferred action – is

16 discretionary. Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005).

17

A. The INA Limits Review of Plaintiff’s Claims which Arise from DHS’s

18

Decision to Commence and Adjudicate Plaintiff’s Removal Proceedings.

Through the INA, as amended by the REAL ID Act of 2005 and codified at 8
19

U.S.C. § 1252(g), Congress explicitly eliminated judicial review over “any cause or claim
20

by or on behalf of any alien . . . arising from the decision or action . . . to commence
21

proceedings, adjudicate cases, or execute removal orders against any alien under this
22

chapter.” 8 U.S.C. § 1252(g). Section 1252(g) was “directed against a particular evil:
23

attempts to impose judicial constraints upon prosecutorial discretion.” AADC, 525 U.S. at
24

485 n.9; cf. Silva v. United States, 866 F.3d 938, 940 (8th Cir. 2017) (rejecting contention
25

that section 1252(g) applies only to discretionary decisions of the Secretary).
26

The fact that Plaintiff frames his claim as a challenge to a DACA determination
27

rather than expressly requesting the enjoining of adjudication of his removal proceedings
28

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1 is irrelevant because section 1252(g) precludes judicial review of “any” claim “arising”

2 from “the decision or action” to adjudicate cases (not just express challenges to the

3 adjudication itself). See, e.g., Alcaraz v. INS, 384 F.3d 1150, 1160-61 (9th Cir. 2004)

4 (finding review of the reopening of removal proceedings, but not the administrative

5 closure of proceedings, was barred from review as an action related to the decision to

6 commence removal); Botezatu v. INS, 195 F.3d 311, 314 (7th Cir. 1999) (citing AADC,

7 525 U.S. at 944 (discussing the scope of section 1252(g) as including “various decisions .

8 . . leading up to order consequent upon final orders of deportation.”)).

9

To the extent Plaintiff’s reply brief will likely reiterate arguments made in his

11 Motion for Preliminary Injunction, the Court should reject, as contrary to section 1252(g),

12 Plaintiff’s contention that he is challenging the Government’s decision-making process 13 rather than the final decision itself. Dkt. No. 39-1 at 23.3 Section 1252(g) is not limited to 14 claims arising from the adjudication of cases nor is it limited to only discretionary actions. 15 Cf. Silva, 866 F.3d at 940. Defendants disagree with the Court’s prior citation to United 16 States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004), for the proposition that judicial 17 review is preserved for purely legal conclusions. Dkt. No. 12 at 8. There, the Ninth 18 Circuit held that section 1252(g) did not apply because “the gravamen of [the alien’s] 19 claim does not arise from the Attorney General’s decision or action to commence 20 proceedings, adjudicate cases, or execute removal orders.” Hovsepian, 359 F.3d at 1155 21 (9th Cir. 2004).4 Additionally, Colotl v. Kelly, 261 F. Supp. 3d 1328 (N.D. Ga. June 12, 22 2017), is of no assistance here. There, the court noted that section 1252(g) eliminates

23 3 Where Plaintiff has offered arguments in his brief in support of his motion for preliminary injunction 24 [Dkt. No. 39-1] that address Defendants’ arguments against his amended complaint [Dkt. No. 38],
Defendants reference that motion in anticipation of Plaintiff’s likely incorporation of those arguments in 25 response to Defendants’ arguments herein.

26 4 Hovsepian considered a purely legal question preceding a discretionary decision. Here, however, the

DACA SOP identifies threshold criteria for DACA consideration, but it does not mandate granting DACA 27 if those threshold criteria are met. See DACA SOP Chapter 8 at 45 (April 2013 version) (“Individuals may

28

be considered for DACA upon showing that they meet the prescribed guidelines . . .”), available at https://cliniclegal.org/sites/default/files/attachments/daca_sop_4-4-13.pdf (last visited Feb. 5, 2018).

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1 “jurisdiction to review the government’s ultimate discretionary determination as to

2 Plaintiff’s DACA [ ].” Colotl, 261 F. Supp. 3d at 1339 (citations omitted).

3

Moreover, Plaintiff’s claim that constitutional claims are preserved

4 notwithstanding section 1252(g) similarly fails. See Dkt. No. 39-1 at 23. On this point,

5 the Court’s prior reliance on Ramirez-Perez v. Ashcroft, 336 F.3d 1001 (9th Cir. 2003), is

6 also misplaced. See Dkt. No. 12 at 8. There, the Ninth Circuit did not even consider

7 section 1252(g) and analyzed only the jurisdiction limitation statute at section

8 1252(a)(2)(B)(i) holding that “[w]hether the BIA’s interpretation of the hardship standard

9 violates due process is not a “judgment regarding the granting of” cancellation of

11 removal relief.” Ramirez-Perez, 336 F.3d at 1005. In contrast, the Ninth Circuit has held

12 that “a petitioner may not create the jurisdiction that Congress chose to remove simply by 13 cloaking [a claim] in constitutional garb.” See Torres-Aguilar v. INS, 246 F.3d 1267, 14 1271 (9th Cir. 2001). And, even for a court to find that section 1252(g) does not preclude 15 review of constitutional claims, those claims must “not arise from ‘a decision or Action 16 by the Attorney General to commence proceedings, adjudicate cases, or execute removal 17 orders against any alien,’ but instead constitute ‘general collateral challenges to 18 unconstitutional practices and policies used by the agency.’” Walter v. Reno, 145 F.3d 19 1032, 1052 (9th Cir. 1998) (quoting McNary v. Haitian Refugee Cir., Inc., 498 U.S. 479 20 (1991)). Rather, claims that fall within the limitations of section 1252(g) are not subject 21 to review, even if cast as constitutional claims. See Sissoko v. Rocha, 509 F.3d 947, 951 22 (9th Cir. 2007) (finding no jurisdiction over constitutional tort claim because the 23 plaintiff’s detention arose from the decision to commence removal proceedings).5

24 5 In Sissoko, the Ninth Circuit distinguished between these types of claims and those raised in an earlier 25 Ninth Circuit case discussing 8 U.S.C. § 1252(g), Wong v. United States, 373 F.3d 952 (9th Cir. 2004). In
Wong, plaintiff’s counsel expressly disclaimed any challenge to the execution of removal and explained 26 that her claims only implicated “actions other than that removal, or the commencement of proceedings . . 27 .,” 373 F.3d at 964, for which the court held that the claims at issue in Wong did not implicate the agency’s
prosecutorial discretion and did not pose a threat of “obstruction of the institution of removal proceedings 28 or the execution of removal orders . . . .” Id. at 970. Wong is distinguishable where Plaintiff is in removal

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1

Courts have held that section 1252(g) applies to bar jurisdiction over DACA

2 determinations. See Garcia-Herrera v. Asher, 585 F. App’x 439, 440 (9th Cir. 2014)

3 (holding under section 1252(g) that petitioner’s challenge to ICE’s decision not to delay

4 his removal proceeding pending the adjudication of his DACA request constituted a

5 challenge to ICE’s decision to execute a removal order); Vasquez v. Aviles, 639 F. App’x

6 898, 901 (3d Cir. 2016) (finding no jurisdiction to review a denial of a DACA request

7 because “that decision involves the exercise of prosecutorial discretion not to grant a

8 deferred action.”); see also Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012)

9 (“[W]e lack jurisdiction to review petitioners’ contention that the agency abused its

11 discretion in denying the motion to reopen to seek prosecutorial discretion based on the

12 recent order of President Obama.”); Rodriguez v. Sessions, No. 15-72487, 2017 WL

13 695192, at *1 (9th Cir. Feb. 22, 2017); Fabian-Lopez v. Holder, No. 11-71513, 540 F.

14 App’x 760, 761 n.2 (9th Cir. Apr. 29, 2013); cf. Sanchez v. Holder, No. 15CV0089-GPC

15 WVG, 2015 WL 4249446 (S.D. Cal. July 13, 2015) (district court lacked jurisdiction to

16 stay removal and make determination whether deferred action was warranted).

17

This recent authority is consistent with earlier case law interpreting the 1981

18 Operating Instructions, a previous policy that provided guidelines for the exercise of

19 deferred action. That authority concluded that district courts lack jurisdiction to review

20 the district director’s decision not to recommend deferred action. Romeiro de Silva v.

21 Smith, 773 F.2d 1021, 1025 (9th Cir. 1985). Plaintiff ignores that holding and instead

22 relies on Nicholas v. INS, 590 F.2d 802 (9th Cir. 1979) for the purported reviewability of

23 an internal deferred action policy with “‘express criteria’ and ‘periodic review of non-

24 priority status’ [that] ‘clearly and directly affects substantive rights,’ including ‘the ability

25 of an individual subject to its provisions to continue residence in the United States.’” Dkt.

26

27 28 proceedings and DACA termination could have a direct result in his removal from the United States.

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1 No. 39-1 at 28, citing Nicholas, 590 F.2d at 807-08.6 There, the Ninth Circuit held that 2 the five express humanitarian factors in the 1978 Operating Instructions,7 the effect of a

3 grant of such non-priority status to provide an indefinite delay in deportation, and the

4 directive nature of the language (“‘In Every case’” where relief is appropriate, the District

5 Director ‘Shall recommend’ deferred action category”), made it “obvious that this

6 procedure exists out of consideration for the convenience of the petitioner, and not that of

7 the INS.” Id. at 806-07. While the Ninth Circuit considered periodic review an important

8 factor, it conditioned its analysis in consideration that “the Instruction plainly

9 contemplates a scheme where the status would preclude any deportation as long as the

11 relevant humanitarian factors are still compelling, rather than being subject to termination

12 at the convenience of the INS.” Id. at 807.

13

In contrast to Nicholas, Romeiro de Silva’s request for deferred action was denied

14 after “[t]he INS district director considered each of these factors.” Romeiro de Silva, 773

15 F.2d at 1023. The Ninth Circuit, however, acknowledged the weight of authority finding

16 that deferred action determinations under the 1978 operating instructions unreviewable,

17 and held that under the 1981 Operating Instructions “the district court lacked jurisdiction

18 to review the district director’s decision not to recommend deferred action status for

19 Romeiro de Silva,” because “it is no longer possible to conclude that [the instruction] is

20 intended to confer any benefit upon aliens, rather than [to operate] merely for the INS’s

21 own convenience.” Id. at 1024-25.

22 6 Notably, even in Nicholas, the Court ultimately denied the appeal on Nicholas’ claim to eligibility for
23 non-priority status as defined in the INS’s 1978 Operating Instructions because he could not meet his
24 burden to show that the Government’s decision “deviated from an established pattern without reason” notwithstanding the presence of humanitarian factors. 590 F.2d at 808. Nicholas’s request was verbally
25 denied, apparently without further explanation or process. Id. at 804.

26 7 “When determining whether a case should be recommended for deferred action category, consideration

should include the following: (1) advanced or tender age; (2) many years’ presence in the United States; 27 (3) physical or mental condition requiring care or treatment in the United States; (4) family situation in

28

the United States effect of expulsion; (5) criminal, immoral, or subversive activities or affiliations recent conduct.” Nicholas, 590 F.2d at 806-807, citing 1978 INS Operating Instruction at 103.1(a)(1)(ii).

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1

The Supreme Court’s decision in AADC held that section 1252(g) applied to bar

2 these same types of deferred action determinations. AADC, 525 U.S. at 483-87 (“At each

3 stage the Executive has discretion to abandon the endeavor, and at the time IIRIRA was

4 enacted the INS had been engaging in a regular practice (which had come to be known as

5 “deferred action”) of exercising that discretion for humanitarian reasons or simply for its

6 own convenience.”). There, the Government ended prior grants of deferred action by

7 charging, and then pursuing deportation for only routine status violations against six of

8 the eight plaintiffs. Id. at 474. Importantly, the Court held that aliens unlawfully in the

9 United States and subject to deferred action had “no constitutional right to assert selective

11 enforcement as a defense against his deportation,” under the First or Fifth Amendments

12 to the U.S. Constitution. Id. at 489.

13

Here, the similarities to both the policies and procedures addressed by the Ninth

14 Circuit and Supreme Court are too strong for the Court to reason around Congress’s clear

15 intent. Plaintiff’s claims are barred by section 1252(g) because he is asserting claims

16 arising from the commencement of and adjudication of his removal proceedings. Because

17 Plaintiff claims that it was improper for DHS to terminate his DACA because “ICE’s

18 litigation of removal proceedings for unlawful presence against a DACA recipient was

19 not a valid basis for USCIS to terminate DACA under the SOP,” and “removal from the

20 country in the absence of any culpability would visit such grievous harm,” Dkt. No. 38 at

21 ¶¶ 136; 14 [of Count Three],8 he is necessarily challenging the “commencement” and

22 “adjudicat[ion]” of his ongoing removal proceedings. See 8 U.S.C. § 1252(g). Indeed,

23 because the denial of DACA is a step “leading up to” a final order of removal, it is

24 squarely within the scope of section 1252(g). Id. Plaintiff’s effort to shroud his claims in

25 procedural terms is further undone by his challenge to ICE’s identification of Plaintiff as

26 a removal priority and decision to pursue his removal because “[o]nly individuals who do

27

28 8 Plaintiff’s Amended Complaint restarts paragraph numbering with paragraph 1 under Count Three on page 39, following paragraph 173 under Count Two. See Dkt. No. 38.

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1 not qualify for DACA status may be considered enforcement priorities [based on the

2 Kelly Memo].” Dkt. No. 38 ¶ 169. Finally, were the Court to find that a final removal

3 against Plaintiff could not be executed based in some way on his claimed entitlement to

4 DACA, then the issues raised here are certainly those for which this Court lacks

5 jurisdiction.

6

Regardless of how Plaintiff frames the issue, section 1252(g) precludes judicial

7 review of the Government’s exercise of its prosecutorial discretion. Accordingly, the

8 decisions of DHS to issue an NTA and place Plaintiff in removal proceedings, and thereby

9 terminate DACA, and subsequent decision to terminate Plaintiff’s DACA following advance

11 notice and an opportunity to respond are not subject to judicial review, and the Court should

12 reject Plaintiff’s motion for preliminary relief. To hold otherwise would render section

13 1252(g) a dead letter because any individual could seek to enjoin or otherwise challenge

14 the commencement of removal proceedings through this type of creative pleading.

15

To the extent that Plaintiff has any viable claims, the REAL ID Act, codified at 8

16 U.S.C. §§ 1252(a)(5) and 1252(b)(9), bars him from raising those claims in district court,

17 even before a final order of removal issues. Section 1252(a)(5), entitled “[e]xclusive

18 means of review,” requires that “a petition for review filed with an appropriate court of

19 appeals . . . shall be the sole and exclusive means for judicial review of an order of

20 removal . . . .” 8 U.S.C. § 1252(a)(5). Section 1252(b)(9) provides “[j]udicial review of

21 all questions of law and fact, including interpretation and application of constitutional

22 and statutory provisions, arising from any action taken or proceeding brought to remove

23 an alien from the United States under this subchapter shall be available only in judicial

24 review of a final order under this section.” 8 U.S.C. § 1252(b)(9) (emphasis added); see,

25 e.g., J.E.F.M. v. Lynch, 837 F.3d 1026, 1038 (9th Cir. 2016) (district court lacked

26 jurisdiction over challenge to adequacy of removal procedures, and instead court of

27 appeals has authority to resolve questions of constitutional rights on review of a final

28 removal order).

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1

Section 1252(b)(9) is “a clear statutory prescription against district court review”

2 of challenges arising from removal proceedings for plaintiffs who had not yet received

3 final orders of removal. J.E.F.M., 837 F.3d at 1035-38. While the Court acknowledged

4 that “an unrepresented minor in immigration proceedings poses an extremely difficult

5 situation,” it also found “these considerations cannot overcome a clear statutory

6 prescription against district court review. Relief is through review in the court of appeals 7 or executive or congressional action.” Id. at 1036-38.9

8

Here, Plaintiff challenges the Secretary’s discretion to terminate DACA following

9 the decision to issue Plaintiff an NTA. See Dkt. No. 38 ¶¶ 136, 158. Thus, Plaintiff’s

11 challenge necessarily arises from “action taken or proceedings brought to remove an

12 alien,” for which district courts lack jurisdiction. Accordingly, this Court should find that 13 Plaintiff cannot show either a likelihood of success or that the law and facts clearly favor 14 his position. Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015).

15

B. Judicial Review of Discretionary DACA Termination After Advance

16

Notice and an Opportunity to Respond is also Barred under 5 U.S.C. § 701(a)(2).

17

There is no judicial review under the APA of decisions that “courts traditionally
18

have regarded as ‘committed to agency discretion.’” Lincoln v. Vigil, 508 U.S. 182, 192
19
(1993) (quoting 5 U.S.C. § 701(a)(2)). These decisions are typically unreviewable
20

because there exists “no meaningful standard against which to judge the agency’s
21

exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830 (1985). This bar applies
22

even when “the agency gives a ‘reviewable’ reason for otherwise unreviewable action.”
23

24 9 The Court’s previous reliance on Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007), is misplaced. Dkt. No.

25

31 at 7. Singh challenged ineffective assistance of counsel through habeas, and the court held that section 1252(b)(9) did not apply because the challenge was not tied to removal proceedings. Singh, 499 F.3d at

26 978-79. 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 the statute. See 27 Aguilar, 510 F.3d at 10; cf. Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012) (an APA claim

28

“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 ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 283 (1987) (“BLE”). The decisions

2 committed to executive discretion include “an agency’s exercise of enforcement power,”

3 including resource allocation and overall priorities. Chaney, 470 U.S. at 831. As there is

4 “no meaningful standard against which to judge the agency’s exercise of discretion” in

5 weighing these factors, an agency’s exercise of enforcement powers is “presumed

6 immune from judicial review under § 701(a)(2).” Id. at 830, 832.

7

Just as “the decision whether or not to prosecute” presumptively “rests entirely in

8 [the prosecutor’s] discretion,” United States v. Armstrong, 517 U.S. 456, 464 (1996)

9 (citation omitted), an agency’s decision to bring a civil enforcement action is generally

11 not open to judicial scrutiny. Considerations such as the Chaney factors are equally

12 present in enforcement decisions as in nonenforcement decisions. See Chaney, 470 U.S.

13 at 831; see also Wayte v. United States, 470 U.S. 598, 607-8 (1985) (“[T]he decision to

14 prosecute is particularly ill-suited to judicial review”).

15

One form of that broad discretion is deferred action, a “discretionary and

16 reversible” decision to notify an alien that DHS has chosen not to seek his removal for a

17 specific period of time. Arpaio v. Obama, 797 F.3d 11, 17 (D.C. Cir. 2015). Like other

18 agency nonenforcement decisions, grants of deferred action rest on a complex balancing

19 of policy considerations that cannot serve as “meaningful standard against which to judge

20 the agency’s exercise of discretion.” Chaney, 470 U.S. at 831. The converse is equally

21 true: denials of deferred action are also committed to agency discretion. See AADC, 525

22 U.S. at 485 (treating “‘no deferred action’ decisions” as “discretionary determinations”).

23 Because “[g]ranting an illegally present alien permission to remain and work in this

24 country” is fundamentally “a dispensation of mercy,” there are “no standards by which

25 judges may patrol its exercise.” Perales v. Casillas, 903 F.2d 1043, 1051 (5th Cir. 1990)

26 (INS’s decision not to grant pre-hearing voluntary departures and work authorizations to

27 a group of aliens was non-justiciable). Thus, individual DACA terminations fall squarely

28 within that category of agency discretion for which judicial review is improper. See

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1 Chaney, 470 F.3d at 830; see also Morales, 824 F.3d at 822 (explaining that the exercise

2 of prosecutorial discretion is different from other types of agency action).

3

Here, Plaintiff is challenging DHS’s exercise of its enforcement power, including

4 specifically the factors it relied on, and argues that instead of seeking to remove him from

5 this country, DHS should decide to continue to defer action with respect to him. See, e.g.,

6 Dkt. No. 38 at ¶ 136 (“Mr. Gonzalez respectfully request[ed] that USCIS exercise its

7 independent discretion in this case and continue its deferral of [his] removal.”); id. at ¶ 13

8 (“Defendants’ efforts to strip him of protection from removal from the only country he

9 knows are unlawful and unconstitutional and must be set aside”). This is a classic

11 challenge to DHS’s exercise of its prosecutorial discretion. See Chaney, 470 U.S. at 831.

12 There is no meaningful standard to judge whether DHS should continue to defer action as 13 to Plaintiff and, instead, prioritize the removal of other aliens. See id.10 Indeed, Plaintiff’s 14 tortured reading of the DACA SOP along with the Kelly Memo would render 15 meaningless the specific termination ground that continuation of deferred action is not 16 consistent with DHS’s enforcement priorities. See Dkt. No. 38 at ¶¶ 40-42. Rather, this 17 type of enforcement decision involves a balancing of factors, including factors as to how 18 to allocate agency resources, that is committed to agency discretion by law. See Chaney, 19 470 U.S. at 831; Armstrong, 517 U.S. at 464. The question for DHS was not whether it 20 could continue to exercise its discretion in favor of the Plaintiff, but rather whether it 21 should have under the circumstances of this case. Because this type of discretionary 22 determination is committed to DHS by law, this Court lacks jurisdiction to review 23 Plaintiff’s claims.

24

25

10 It is irrelevant for this Court’s jurisdiction that DHS has guidance regarding grants of deferred action under DACA. The existence of criteria that an agency is to consider is not enough to provide a meaningful

26 standard of review, see Pasquini v. Morris, 700 F.2d 658, 659 (11th Cir. 1983), and, moreover, the exercise

of prosecutorial discretion is not amenable to judicial review even when an agency has established 27 procedures. See Carranza, v. I.N.S., 277 F.3d 65, 72-3 (1st Cir. 2002); United States v. Lee, 274 F.3d 485,

28

492 (8th Cir. 2001) (reversing a finding that a criminal defendant can force the Department of Justice to comply with its death penalty protocol); Wayte, 470 U.S. at 607-8.

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1

Plaintiff can state no claim under the APA because USCIS’s Decision fully

2 complied with its SOP and other policies, and the APA in general. First, USCIS’s

3 Decision specifically quotes the SOP provision on which it is based. Dkt. No. 39-6 at

4 195. Second, USCIS’s Decision demonstrates adherence to all the procedural steps in the

5 cited SOP guidelines: consultation with ICE; consideration of whether continuing DACA

6 is inconsistent with DHS’s enforcement priorities; and USCIS’s consideration of

7 Plaintiff’s response and the agency’s voluntary consideration of his supplemental

8 response to that NOIT. Id. Following that review, USCIS found “that continuing to

9 exercise prosecutorial discretion to defer removal action against you is not consistent

11 with DHS’s enforcement priorities. Therefore USCIS does not find that you merit a

12 favorable exercise of prosecutorial discretion and will not continue to defer DHS removal

13 action against you under DACA.” Id. at 3.

14

Plaintiff, without citation, attempts to reconstruct the DACA SOP to argue that:

15 “DACA recipients who meet the program’s objectively verifiable criteria—i.e., have no

16 disqualifying criminal convictions and do not pose a threat to national security or public

17 safety—remain ‘low priority cases.’” Dkt. No. 38 at ¶ 46. Plaintiff goes on to paraphrase

18 the various grounds for DACA termination discussed in the SOP, but omits the ground

19 applied to him: “Enforcement Priority.” Id. at ¶¶ 54-60; see also Dkt. No. 39-4 at 79-81.

20 Notably, this DACA termination provision was in the August 2013 version of the SOP,

21 well before the Kelly Memo issued in February 2017. Accordingly, Plaintiff cannot

22 support his claim that “deeming him an ‘enforcement priority’ would be counter to (or an

23 unexplained reversal of) Defendants’ yearslong [sic] policy of categorizing individuals

24 who meet the DACA eligibility criteria as ‘low priority cases’ in the absence of

25 ‘disqualifying criminal offenses.’” Dkt. No. 38 at ¶ 141. While Defendants maintain that

26 the operative DACA SOP allows for a fluid definition of enforcement priorities and that

27 nothing precludes Defendants from determining an individual is an enforcement priority

28 on a case-by-case basis, the Court need not even consider those arguments to find that

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1 Plaintiff cannot succeed here because Plaintiff’s alleged role in an alien smuggling

2 enterprise is clearly identified as an enforcement priority in USCIS’s 2011 NTA

3 guidance. See Dkt. No. 39-4 at 62.

4

Plaintiff next argues that “ICE’s issuance of an NTA against him for nothing more

5 than unlawful presence” is not “‘a reasoned basis for terminating DACA.’” Dkt. No. 38

6 at ¶ 143 (citing Inland Empire—Immigrant Youth Collective v. Duke, No. EDCV 17–

7 2048, 2017 WL 5900061, at *6-7 (C.D. Cal. Nov. 20, 2017) (“IEIYC”)). While

8 Defendants disagree with the court’s grant of a preliminary injunction in IEIYC, it

9 followed the automatic termination of DACA based on NTA issuance alone, which is no

11 longer the case here. Moreover, Defendants’ Termination makes clear that it is based on

12 more than “ICE’s issuance of an NTA against him for nothing more than unlawful 13 presence.” Dkt. No. 38 at ¶ 143. Rather, USCIS stated:

14

USCIS does not rely solely on the ground listed in the charging document as

15

it may not reflect all derogatory information and/or the assessment of whether or not you are considered an enforcement priority.

16 Dkt. No. 39-6 at 196. Accordingly, Plaintiff has not and cannot demonstrate that

17 Defendants have ignored their own DACA termination policy.11

18

19

20 11 Plaintiff also appears to argue that the DACA SOP requires a criminal conviction to support DACA termination, whereas the Kelly Memo prioritizes charged or suspected criminal conduct. Dkt. No. 39-1

21 at 20, citing Dkt. No. 39-6 at 208. However, even the provision that Plaintiff cites only supports a

requirement that USCIS adjudicators investigate beyond a RAP sheet to ascertain whether a DACA 22 requestor has actually been convicted of a crime. Id. Notably the same SOP provision that Plaintiff cites

23 indicates that certain criminal conduct may render an individual “not eligible for consideration of DACA,” but states that “the requestor’s entire offense history can be considered along with other facts

24 to determine whether, under the totality of the circumstances, he/she warrants an exercise of

25

prosecutorial discretion.” Id. at 204. Ultimately, the DACA SOP is silent as to the factors USCIS is to use in DACA termination decisions where an individual is determined to be an enforcement priority, and

26 the DACA SOP and related guidance support that DACA may be terminated on a discretionary case-by-

case basis even where a DACA recipient otherwise meets the guidelines. Dkt. No. 39-4 at 81; id. at 11 27 (“DACA is an exercise of prosecutorial discretion and deferred action may be terminated at any time,

28 with or without a Notice of Intent to Terminate, at DHS’s discretion.”).

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1

Indeed, Plaintiff’s arguments make clear that he is not challenging the process by

2 which USCIS terminated his DACA, but he is instead challenging USCIS’s ultimate

3 decision of how to exercise its discretion – an action for which this Court lacks

4 jurisdiction. Plaintiff’s arbitrary and capricious analysis suffers from the same flaw as his

5 argument about Defendants’ compliance with the SOP – he concludes that “the automatic

6 termination of his DACA status and EAD failed to adhere to the DACA SOP and USCIS 7 Memo” Dkt. No. 38 at ¶ 17 [of Count Four],12 but offers no cogent explanation why

8 USCIS’s Termination fails in this regard. Indeed, Plaintiff again states, without citation,

9 that Defendants “decision to label Mr. Gonzalez an “enforcement priority” even though

11 he has never been charged with or convicted of a crime is a violation of the DACA

12 program’s non-prioritization of immigrants without any criminal history and the APA’s 13 proscriptions against arbitrary and capricious action and unexplained policy 14 changes” Id. at ¶ 10. However, where Plaintiff has not and cannot demonstrate that 15 Defendants’ discretion to determine that he is an enforcement priority is constrained by 16 his lack of a conviction or public safety concern, his argument fails.

17

C. Plaintiff Cannot State a Constitutional Claim because the Termination of

18

DACA and Employment Authorization does not Implicate a Constitutional Interest.

19
Plaintiffs cannot have a protected constitutional interest in DACA because it purely
20

discretionary. See, e.g., Velasco-Gutierrez v. Crossland, 732 F.2d 792, 798 (10th Cir.
21

1984) (holding that deferred action guidance “places no effective limitations on official
22

discretion, and thus creates no protected liberty interest in deferred action”); cf. Arpaio,
23
797 F.3d at 17 (quoting DACA Memo for the proposition that “deferred action remains
24
discretionary and reversible, and ‘confers no substantive right, immigration status or
25
pathway to citizenship.’”).
26

27

28 12 Plaintiff’s Amended Complaint restarts paragraph numbering with paragraph 1 under Count Three on page 39, following paragraph 173 under Count Two. See Dkt. No. 38.

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1

The Supreme Court has held that, for due process purposes, a benefit “is not a

2 protected entitlement” where “government officials may grant or deny it in their

3 discretion.” Castle Rock, 545 U.S. at 756. For Due Process purposes, statutes or

4 regulations limit discretion only when they contain “‘explicitly mandatory language’”—

5 i.e., “specific directives to the decisionmaker that if the regulations’ substantive

6 predicates are present, a particular outcome must follow.” Ky. Dep’t of Corrs. v.

7 Thompson, 490 U.S. 454, 462–63 (1989) (citation omitted). Nor does the provision of

8 certain procedures by an agency itself give rise to a federal constitutional dimension. See,

9 e.g., Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983) (“[a] liberty interest . . . cannot be

11 the right to demand needless formality. Process is not an end in itself. Its constitutional

12 purpose is to protect a substantive interest to which the individual has a legitimate claim

13 of entitlement.”).

14

Neither the constitution nor Congress provides an individual in unlawful status a

15 protected interest in family reunification, living or working in the United States, or in

16 discretionary relief from removal. See De Mercado v. Mukasey, 566 F.3d 810, 816 (9th

17 Cir. 2009). Garcia v. Holder, No., 07-60271, 320 F. App’x 288, 290 (9th Cir. April 9,

18 2009); Pilapil v. INS, 424 F.2d 6, 11 (10th Cir. 1970), cert denied, 400 U.S. 908 (1970).13

19 Nor can Plaintiff claim an entitlement in this case that creates a Constitutional interest.

20 “To have a property interest in a benefit, a person clearly must have more than an abstract

21 need or desire for it. He must have more than a unilateral expectation of it. He must,

22 instead, have a legitimate claim of entitlement to it.” Blantz v. Cal. Dep’t of Corr. &

23 Rehab., 727 F.3d 917, 922 (9th Cir. 2013) (citing Bd. of Regents of State Colleges v.

24 Roth, 408 U.S. 564, 577 (1972)); see also Mendez-Garcia v. Lynch, 840 F.3d 655, 665

25 (9th Cir. 2016) (underscoring that aliens cannot claim a cognizable due process interest in

26 discretionary immigration relief or benefits). Even a practice of “generously” granting a

27

28

13 While Plaintiff cites Morrissey v. Brewer, 408 U.S. 471 (1972), to discuss “other enduring attachments of life,” the extensions that Plaintiff argues for here conflict with the cited rulings.

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1 “wholly and expressly discretionary state privilege” does not create a legal entitlement to

2 that benefit. See Regents of Univ. of Cal. v. United States Dep’t of Homeland Sec.

3 (“Regents”), No. C 17-05211 WHA, 2018 WL 339144, at *4 (N.D. Cal. Jan. 9, 2018)

4 (citing Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1020-21 (9th Cir. 2011)) (“A

5 person’s belief of entitlement to a government benefit, no matter how sincerely or

6 reasonably held, does not create a property right if that belief is not mutually held by the 7 government.”).14

8

The DACA policy and related guidance create no such mutually held expectation

9 regarding the terms for termination, id., nor do they contain “explicitly mandatory

11 language,” Thompson, 490 U.S. at 462–63. The policy is codified in no statute or 12 regulation.15 Its source—the DACA Memo—describes it as a “policy” for the “exercise of 13 prosecutorial discretion.” Dkt. No. 39-4 at 3; see Omar v. McHugh, 646 F.3d 13, 22 (D.C. 14 Cir. 2011) (the “use of the word ‘policy’”—“rather than a word such as ‘right’— 15 reinforces the conclusion that Congress did not intend to create an ‘entitlement’”). And 16 the agency’s public guidance makes clear that, under DACA, deferred action “may be 17 terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s 18 discretion.” Dkt. No. 39-4 at 5; see also Arpaio, 797 F.3d at 17 (noting that the grant of 19 deferred action is discretionary).

20

21 14 Plaintiff’s reliance in his motion for preliminary injunction on cases that discuss violations of nondiscretionary procedures in agency regulations are inapposite where deferred action and related
22 employment authorization are discretionary concepts not tied to statute or regulation. See Dkt. No. 39-1 at 24-25 (citing United States v. Raya-Vaca, 771 F.3d 1195, 1203 & n.6 (9th Cir. 2014) (liberty interest
23 arising from risk of removal on an expedited removal order, not the loss of something conferred by a 24 discretionary policy)); Trinidad y Garcia v. Thomas, 683 F.3d 952, 957 (9th Cir. 2012) (“An extraditee
thus possesses a narrow liberty interest: that the Secretary comply with her statutory and regulatory 25 obligations [to consider an extraditees’ torture claim].”); Singh v. Bardini, No. 09-cv-3382, 2010 WL
308807, at *7 (N.D. Cal. Jan. 19, 2010) (addressing questions of regulatory procedures for asylum 26 termination outside of removal proceedings).

27 15 The only regulation that references deferred action, 8 C.F.R. § 274a.12(c)(14), long predates the DACA

28

policy, and only allows aliens with deferred action to apply for employment authorization if they can demonstrate an economic need for employment.

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1

Because DACA is discretionary and “may be terminated at any time, with or

2 without” notice, Plaintiff necessarily cannot have a legitimate claim of entitlement to the

3 favorable exercise of discretion regarding DACA. Even assuming arguendo that deferred

4 action is viewed as a benefit, Plaintiff lacks any protected constitutional interest in

5 deferred action. See Castle Rock, 545 U.S. at 756; Velasco-Gutierrez, 732 F.2d at 798.

6
Dated: February 23, 2018
7
8
9

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General

11

WILLIAM C. PEACHEY

12

Director District Court Section

13

Office of Immigration Litigation

14

/s/ Jeffrey S. Robins

15

JEFFREY S. ROBINS

16

Assistant Director

U.S. Department of Justice

17

P.O. Box 868, Ben Franklin Station

18

Washington, D.C. 20044

19

(202) 616-1246

jeffrey.robins@usdoj.gov

20

21

Attorneys for Defendants

22

23

24

25

26

27

28

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 Case 3:17-cv-01840-JM-NLS Document 50 Filed 03/09/18 PageID.1339 Page 1 of 23

1 ARNOLD & PORTER KAYE SCHOLER LLP

2 JOHN C. ULIN (SBN 165524) john.ulin@arnoldporter.com
3 JABA TSITSUASHVILI (SBN 309012)

4 jaba.tsitsuashvili@arnoldporter.com 777 South Figueroa Street, 44th Floor
5 Los Angeles, CA 90017-5844

6 T: (213) 243-4000 F: (213) 243-4199
7

8

Attorneys for Plaintiff ALBERTO LUCIANO GONZALEZ TORRES

9

10

UNITED STATES DISTRICT COURT

11

SOUTHERN DISTRICT OF CALIFORNIA

12 ALBERTO LUCIANO GONZALEZ

13 TORRES,

Plaintiff,

14

vs.

15 U.S. DEPARTMENT OF

16 HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION
17 SERVICES; U.S. IMMIGRATION

18

AND CUSTOMS ENFORCEMENT; U.S. CUSTOMS AND BORDER

19 PROTECTION; Does 1-10, inclusive,

20

Defendants.

Case No. 17 CV 1840 JM(NLS)
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT [Docket No. 49]
Hearing: March 26, 2018 Time: 10:00 a.m. Courtroom: 5D Judge: Jeffrey T. Miller

21

22

23

24

25

26

27

28

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT

Case 3:17-cv-01840-JM-NLS Document 50 Filed 03/09/18 PageID.1340 Page 2 of 23

1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION ....................................................................................... 1
4 II. BACKGROUND ......................................................................................... 2

5 III. ARGUMENT............................................................................................... 4

6

A. LEGAL STANDARDS ..................................................................... 4

B. MR. GONZALEZ HAS ARTICLE III STANDING TO

7

CHALLENGE DEFENDANTS’ MAY 2016 AUTOMATIC

TERMINATION OF HIS DACA STATUS....................................... 4

8

C. THIS COURT’S JURISDICTIONAL RULINGS ARE LAW OF

9

THE CASE, AND NO CLEAR ERROR OR CHANGED CIRCUMSTANCES WARRANT A DIFFERENT OUTCOME ....... 5

10

D. NEITHER SECTION 1252(g) NOR SECTION 1252(b)(9)

STRIPS THE COURT OF JURISDICTION OVER CLAIMS

11

REGARDING THE DACA SOP’S TERMINATION

PROVISIONS.................................................................................... 7

12

1. Section 1252(g)........................................................................ 7

13

2. Section 1252(b)(9) ..................................................................10

14

E. SECTION 701(a)(2) DOES NOT PRECLUDE REVIEW OF CLAIMS REGARDING THE DACA SOP’S TERMINATION

15

PROVISIONS ...................................................................................11

F. ONCE GRANTED, DACA STATUS CONFERS

16

CONSTITUTIONALLY PROTECTED INTERESTS......................15

17 IV. CONCLUSION ..........................................................................................17

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 A. Singh v. Gonzales,

499 F.3d 969 (9th Cir. 2007)............................................................................7, 10

5

Aguilar v. ICE,

6

510 F.3d 1 (1st Cir. 2007) ....................................................................................10

7 Alcaraz v. INS,

384 F.3d 1150 (9th Cir. 2004)..........................................................................7, 11

8

Anderson v. Evans,

9

371 F.3d 475 (9th Cir. 2004)..................................................................................5

10 Ashcroft v. Iqbal,

556 U.S. 662 (2009)...............................................................................................4

11

ASSE Intern., Inc. v. Kerry,

12

803 F.3d 1059 (9th Cir. 2015)..............................................................................11

13 Batalla Vidal v. Duke,

2017 WL 5201116 (E.D.N.Y. Nov. 9, 2017)........................................................12

14

Bell Atl. Corp. v. Twombly,

15

550 U.S. 544 (2007)...............................................................................................4

16 Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971).............................................................................................11

17

Coyotl v. Kelly,

18

261 F. Supp. 3d 1328 (N.D. Ga. 2017)....................................................... 2, 12, 14

19 DHS v. Regents,

No. 17-1003 (U.S. Jan. 18, 2018).........................................................................15

20

Flores-Torres v. Mukasey,

21

548 F.3d 708 (9th Cir. 2008)..................................................................................6

22 Hawaii ex rel. Louie v. HSBC Bank Nevada, N.A.,

761 F.3d 1027 (9th Cir. 2014)............................................................................4, 9

23

Heckler v. Chaney,

24

470 U.S. 821 (1985).............................................................................................13

25 IEIYC v. Duke,

2017 WL 5900061 (C.D. Cal. Nov. 20, 2017)........................................................1

26

IEIYC v. Nielsen,

27

2018 WL 1061408 (C.D. Cal. Feb. 26, 2018)........................................... 1, 7, 9, 12

28 INS v. St. Cyr, 533 U.S. 289 (2001).......................................................................................10, 11

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1 INS v. Yang,

519 U.S. 26 (1996)...............................................................................................12

2

JEFM v. Lynch,

3

837 F.3d 1026 (9th Cir. 2016)..............................................................................10

4 Kaur v. Holder,

561 F.3d 957 (9th Cir. 2009)................................................................................16

5

Leite v. Crane Co.,

6

749 F.3d 1117 (9th Cir. 2014)................................................................................4

7 Madu v. U.S. Atty. Gen.,

470 F.3d 1362 (11th Cir. 2006)..............................................................................9

8

Mayweathers v. Terhune,

9

136 F. Supp. 2d 1152 (E.D. Cal. 2001) ..................................................................6

10 Mendez-Gutierrez v. Ashcroft,

340 F.3d 865 (9th Cir. 2003)................................................................................11

11

Morales de Soto v. Lynch,

12

824 F.3d 822 (9th Cir. 2016)................................................................................13

13 Newman v. Sathyavaglswaran,

287 F.3d 786 (9th Cir. 2002)................................................................................16

14

Nicholas v. INS,

15

590 F.2d 802 (9th Cir. 1979)................................................................................14

16 Nozzi v. Housing Auth. of LA,

806 F.3d 1178 (9th Cir. 2015)..............................................................................16

17

Perry v. Sindermann,

18

408 U.S. 593 (1972).............................................................................................15

19 Ramirez Medina v. DHS,

2017 WL 5176720 (W.D. Wash. Nov. 8, 2017) ........................................... 1, 2, 15

20

Robbins v. Reagan,

21

780 F.2d 37 (D.C. Cir. 1985) ...............................................................................11

22 Romeiro de Silva v. Smith,

773 F.2d 1021 (9th Cir. 1985)..............................................................................14

23

Schering Corp. v. Ill. Antibiotics Co.,

24

89 F.3d 357 (7th Cir. 1996)....................................................................................6

25 Sissoko v. Rocha,

509 F.3d 947 (9th Cir. 2007)..................................................................................8

26

Snyder & Assocs. Acquisitions LLC v. U.S.,

27

859 F.3d 1152 (9th Cir. 2017)................................................................................4

28 Texas v. U.S., 809 F.3d 134 (5th Cir. 2015)................................................................................14

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Case 3:17-cv-01840-JM-NLS Document 50 Filed 03/09/18 PageID.1343 Page 5 of 23

1 Torres-Aguilar v. INS,

246 F.3d 1267 (9th Cir. 2001)................................................................................9

2

U.S. v. Hovsepian,

3

359 F.3d 1144 (9th Cir. 2004)........................................................................7, 8, 9

4 Webster v. Doe,

486 U.S. 592 (1988).............................................................................................10

5

Wedges/Ledges of Calif., Inc. v. Phoenix,

6

24 F.3d 56 (9th Cir. 1994)....................................................................................16

7 Statutes

8 5 U.S.C. § 701(a)(2).................................................................................... 1, 5, 11, 15

9 5 U.S.C. § 706 ..........................................................................................................12

10 6 U.S.C. § 202(5)......................................................................................................13

11 8 U.S.C. § 1252(a)(1)................................................................................................10

12 8 U.S.C. § 1252(b)(9) ................................................................................... 1, 5, 7, 10

13 8 U.S.C. § 1252(g) .............................................................................................passim

14 Other Authorities

15 L.R. 7.1.i.2..................................................................................................................7

16 Rule 12(b)(1) ..........................................................................................................1, 4

17 Rule 12(b)(6) .................................................................................................... 2, 4, 16

18

19

20

21

22

23

24

25

26

27

28

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1 I. INTRODUCTION

2

In his First Amended Complaint (“FAC”), Plaintiff Alberto Luciano Gonzalez

3 Torres (“Mr. Gonzalez”) asserts APA and constitutional claims arising from

4 Defendants’ unlawful attempt to terminate his DACA status, employment

5 authorization, and other benefits without complying with the procedures governing

6 DACA termination. In their Motion to Dismiss (“MTD”), Defendants repeat

7 meritless jurisdictional arguments previously rejected by this Court and otherwise

8 attempt to mischaracterize Mr. Gonzalez’s claims in this case, all in an effort to

9 convince the Court to foreclose any judicial review of the serious legal violations

10 asserted in the FAC. The Court has already told Defendants that it has jurisdiction to

11 consider Mr. Gonzalez’s claims—a decision Defendants chose not to challenge on

12 appeal. Nothing has changed since the Court made that decision in September, and

13 Defendants’ MTD should be denied in its entirety.

14

In granting Mr. Gonzalez’s first motion for a preliminary injunction under the

15 original complaint, this Court made clear that the arguments Defendants raise in

16 support of their motion under Rule 12(b)(1) fail under controlling Ninth Circuit law.

17 The Court held that neither 8 U.S.C. § 1252(g) nor 8 U.S.C. § 1252(b)(9) strips it of

18 jurisdiction to decide claims challenging the termination of DACA status. Dkt. 12 at

19 8-9 (docket pagination throughout). In addition, the Court explained that the DACA

20 SOP provides mandatory procedures governing the termination of DACA status, id.

21 at 9-11, which constitute law to apply and render 5 U.S.C. § 701(a)(2) inapplicable

22 here. These conclusions regarding the Court’s jurisdiction to decide claims premised

23 on the unlawful termination of DACA status are law of the case. They are also

24 clearly correct and apply with full force to the FAC. Unsurprisingly, every court to

25 consider these issues has agreed with this Court’s determinations. See IEIYC v. Duke,

26 2017 WL 5900061 (C.D. Cal. Nov. 20, 2017) (“IEIYC I”); IEIYC v. Nielsen, 2018

27 WL 1061408 (C.D. Cal. Feb. 26, 2018) (“IEIYC II”); Ramirez Medina v. DHS, 2017

28

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1 WL 5176720 (W.D. Wash. Nov. 8, 2017); Coyotl v. Kelly, 261 F. Supp. 3d 1328

2 (N.D. Ga. 2017).

3

Defendants’ Rule 12(b)(6) argument that Mr. Gonzalez cannot state a

4 constitutional claim as to the termination of his DACA status is also at odds with

5 settled law and the operation of the DACA program. To hold otherwise would

6 countenance the perverse notion that Defendants may terminate DACA status on a

7 whim or without regard to DACA’s governing documents—which this Court has

8 rightly rejected, see Dkt. 12 at 10. The only court to decide, so far, whether DACA

9 status, once granted, confers constitutionally protected interests squarely held that it

10 does and rejected Defendants’ contrary position. See Ramirez Medina, 2017 WL

11 5176720, at *9.

12

For all of these reasons, the MTD should be denied in its entirety.

13 II. BACKGROUND
14 Mr. Gonzalez has provided a comprehensive “Statement of Facts” in his
15 pending motion for a preliminary injunction, calendared for hearing by the Court on
16 the same day as Defendants’ MTD. See Dkt. 39-1 at 9-22. In the interest of brevity,
17 that entire history is not recounted here. In short, Mr. Gonzalez alleges in his FAC
18 that Defendants’ first termination of his DACA status in May 2016, which this Court
19 previously declared unlawful, and their purported second termination of his DACA
20 status in December 2017—following the Court’s preliminary injunction and USCIS’s
21 issuance of a bare-bones Notice of Intent to Terminate (“NOIT”)—must both be set
22 aside under the APA for violating the mandatory terms of the DACA SOP and being
23 arbitrary and capricious. In addition, because Defendants’ purported denial of Mr.
24 Gonzalez’s DACA renewal application was premised solely on their unlawful
25 December 2017 termination, it too must be set aside. And if the Court determines
26 that Defendants have not violated the DACA SOP or acted in an arbitrary and
27 capricious manner, they have nevertheless violated Mr. Gonzalez’s procedural and
28

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1 substantive due process rights by issuing him an NOIT with no indication of what

2 facts USCIS would consider in deciding whether to terminate his DACA status, and

3 then adjudging him a criminal and imposing serious consequences—i.e., the loss of

4 DACA status and attendant benefits—based on, inter alia, a bureaucrat’s informal

5 suspicion of wrongdoing, without any hearing, presentation of evidence, opportunity

6 to confront witnesses or challenge the photographic lineup upon which Defendants

7 apparently place great reliance, or criminal charges ever having been filed against

8 him in any forum.

9

As this Court will recall, DACA termination decisions (1) are made by USCIS

10 (a division of the Department of Homeland Security) and are independent of any

11 proceedings before the Immigration Court (which is part of the Department of

12 Justice); and (2) are governed by the mandatory requirements of the DACA Memo

13 and SOP. DACA status may be granted to a person in removal proceedings or with a

14 final order of removal, and it may be properly terminated even if a DACA recipient is

15 never issued a Notice to Appear (“NTA”) in Immigration Court. Mr. Gonzalez’s

16 claims would persist even if no NTA existed against him, and USCIS’s termination of

17 his DACA status is not a mandatory consequence of the NTA against him. Mr.

18 Gonzalez’s claims in this case therefore do not challenge or arise from ICE’s decision

19 to issue an NTA. And his challenges to USCIS’s repeated violations of the DACA

20 SOP are collateral to the Immigration Court process.

21

The manner in which Defendants have operated the DACA program for nearly

22 six years makes clear that DACA does not exist solely for the administrative

23 convenience of the government, but rather confers benefits based on mutually explicit

24 understandings. DACA status is based on a quid pro quo between the DACA

25 beneficiary and the government—the DACA beneficiary hands over significant

26 personal information, pays large fees, and passes rigorous background checks; the

27 government assures lawful presence, employment authorization, and other benefits, in

28 the absence of a disqualifying criminal offense or public safety or national security

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1 concern. DACA status, once granted, thus confers constitutionally protected

2 interests.

3 III. ARGUMENT
4 A. LEGAL STANDARDS
5 In evaluating Defendants’ MTD under Federal Rules of Civil Procedure
6 12(b)(1) and 12(b)(6), the Court must “accept as true all facts alleged in the [FAC]
7 and construe them in the light most favorable to [Mr. Gonzalez].” Snyder & Assocs.
8 Acquisitions LLC v. U.S., 859 F.3d 1152, 1156-57 (9th Cir. 2017). The Court must
9 resolve Defendants’ “facial attack” under Rule 12(b)(1) by “determin[ing] whether
10 the allegations are sufficient as a legal matter to invoke the court’s jurisdiction.”
11 Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). As a “general rule,” the
12 plaintiff is “master of a complaint for jurisdictional purposes.” Hawaii ex rel. Louie
13 v. HSBC Bank Nevada, N.A., 761 F.3d 1027, 1040 (9th Cir. 2014). The Court must
14 deny Defendants’ Rule 12(b)(6) argument if the FAC contains “sufficient factual
15 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
17 U.S. 544, 570 (2007)).
18

19

B. MR. GONZALEZ HAS ARTICLE III STANDING TO

CHALLENGE DEFENDANTS’ MAY 2016 AUTOMATIC

20

TERMINATION OF HIS DACA STATUS

21

Mr. Gonzalez maintains standing to seek a final declaratory judgment and

22 permanent injunction against Defendants’ automatic termination of his DACA status

23 in May 2016. The harms flowing from Defendants’ unlawful actions in May 2016

24 are inextricably linked to Mr. Gonzalez’s ongoing injuries. Defendants’ desire to

25 vindicate the lawfulness and propriety of that initial termination is shaping their

26 actions with respect to Mr. Gonzalez’s reinstated DACA status and his DACA

27 renewal application. Indeed, by its own terms, Mr. Gonzalez’s NOIT explains

28 Defendants’ view that the NOIT and opportunity to respond were “not strictly

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1 required by the DACA SOP” and were provided only “to comply with the court

2 order” in this case. Dkt. 39-6 at 10. Because the unlawful May 2016 termination

3 informs Defendants’ current actions—i.e., the sham procedure by which they have

4 purported to terminate Mr. Gonzalez’s DACA status for a second time—the harms

5 flowing from the initial termination are ongoing and must be remedied by a final

6 declaratory judgment and permanent injunction. See Anderson v. Evans, 371 F.3d

7 475, 479 (9th Cir. 2004) (where “[p]recedential harms continue to flow from the

8 government’s action,” a claim is not moot).

9

C. THIS COURT’S JURISDICTIONAL RULINGS ARE LAW OF

10

THE CASE, AND NO CLEAR ERROR OR CHANGED

CIRCUMSTANCES WARRANT A DIFFERENT OUTCOME

11

This Court correctly determined last September that neither 8 U.S.C. § 1252(g)

12

nor 8 U.S.C. § 1252(b)(9) deprives it of jurisdiction over claims that Defendants

13

violated their own mandatory policies and procedures, the APA, and the Constitution

14

in purporting to terminate Mr. Gonzalez’s DACA status through a process that—as

15

the Court noted and Defendants conceded—is not subject to review in Immigration

16

Court. See Dkt. 12 at 8-9; Sept. 28, 2017 Hr’g Tr. at 16. The Court also disposed of

17

Defendants’ reliance on 5 U.S.C. § 701(a)(2)—which creates a narrow exception to

18

the presumption of judicial review of agency action—by making clear that the DACA

19

SOP provides law to apply to Mr. Gonzalez’s challenge and “categorically

20

reject[ing]” Defendants’ assertion that “DHS possesses such broad prosecutorial

21

discretion that they need not follow the DACA SOP in terminating the status of

22

DACA recipients.” Dkt. 12 at 10.

23

Defendants contend that the Court should reconsider these determinations

24

because of “clear error” and “changed circumstances.” Dkt. 49-1 at 11 n.2. Not so.

25

The Court’s jurisdictional rulings were correct, as explained below, and consistent

26

with the results in other cases challenging DACA status determinations. And the

27

relevant circumstances have not changed: Mr. Gonzalez is still not challenging any

28

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1 of the three specific actions enumerated in Section 1252(g), but rather Defendants’

2 failure to comply with the clear and mandatory terms of the DACA Memo and SOP;

3 his claims are still collateral to the Immigration Court process; and the DACA SOP

4 still provides the relevant law that Defendants must apply in making DACA

5 termination determinations. Defendants’ arguments that the Court should revisit its

6 jurisdictional rulings should be rejected for at least the following reasons:

7

First, this Court’s decisions regarding Sections 1252(g) and 1252(b)(9) are law

8 of the case, which “requires that when a court decides on a rule, it should ordinarily

9 follow that rule during the pendency of the matter” in the absence—as here—of “a

10 change in controlling authority or the need to correct a clearly erroneous decision

11 which would work a manifest injustice.” Mayweathers v. Terhune, 136 F. Supp. 2d

12 1152, 1153-54 (E.D. Cal. 2001). While the Court’s order was preliminary, neither

13 the law nor anything relevant to the Court’s jurisdictional determinations has changed

14 since September 2017. See id. (prior preliminary injunction established law of the

15 case). Mr. Gonzalez is still not challenging any of the “narrow[]” and “discrete

16 actions” in Section 1252(g), Dkt. 12 at 8; and he is still not “seeking judicial review

17 of [an] order[] of removal,” id. at 9. He is again asserting that Defendants have

18 violated their mandatory DACA procedures, and his claims still do not bear on the 19 validity of his NTA or challenge his Immigration Court removal proceedings.1 There

20 is no reason to disturb this Court’s decision that Sections 1252(g) and 1252(b)(9) do

21 not deprive it of jurisdiction. Far from “working a manifest injustice,” the Court 22 correctly applied the law.2

23

24

1 An Immigration Judge’s past or future discretionary decision to terminate or administratively close Mr. Gonzalez’s removal proceedings after being apprised of

25

his situation does not change the fact that his claims in this Court are entirely collateral to and independent of the removal proceedings. Indeed, a claim may be

26

independent of removal proceedings even when its resolution might invalidate the proceedings. See Flores-Torres v. Mukasey, 548 F.3d 708, 711-13 & n.6 (9th Cir.

27 2008).

28

2 These principles are particularly apt given Defendants’ decision not to appeal the Court’s legal determinations. See Schering Corp. v. Ill. Antibiotics Co., 89 F.3d 357,

358 (7th Cir. 1996) (“Under the doctrine of the law of the case, a ruling by the trial

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1

Second, Defendants’ MTD inappropriately seeks reconsideration of the Court’s

2 rulings. See Dkt. 49-1 at 16, 17, 22 n.5 (“Defendants disagree with the Court’s prior

3 citation to United States v. Hovsepian”; “the Court’s prior reliance on Ramirez-Perez

4 v. Ashcroft … is also misplaced”; “[t]he Court’s previous reliance on Singh v.

5 Gonzales … is misplaced”). The motion comes too late. See L.R. 7.1.i.2 (“any

6 motion or application for reconsideration must be filed within 28 days after the entry

7 of the ruling, order or judgment sought to be reconsidered”). Moreover, in this Court,

8 reconsideration is “disfavored unless a party shows there is new evidence, a change in

9 controlling law, or establishes that the Court committed a clear error in the earlier

10 ruling.” None of those factors is present here.

11

D. NEITHER SECTION 1252(g) NOR SECTION 1252(b)(9) STRIPS

12

THE COURT OF JURISDICTION OVER CLAIMS REGARDING

THE DACA SOP’S TERMINATION PROVISIONS

13

Even beyond the insurmountable procedural barriers they face, Defendants’

14

jurisdictional arguments are wrong on the merits.

15

16

1. Section 1252(g)

17

The Ninth Circuit has made clear that “even a claim closely related to the

18 initiation of removal proceedings is not barred by [Section] 1252(g), so long as it

19 does not challenge the decision to commence proceedings itself.” IEIYC II, 2018 WL

20 1061408, at *15 (citing Alcaraz v. INS, 384 F.3d 1150, 1160-61 (9th Cir. 2004)).

21

U.S. v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) is illustrative and controlling.

22 There, “the only thing standing between [the plaintiff] and deportation [was] the

23 district court’s order barring the INS from commencing deportation proceedings” on

24 particular grounds. Id. at 1155. Because he sought “a description of the relevant

25 law” (as applied to his criminal convictions) that would “form[] the backdrop against

26 which the Attorney General later will exercise discretionary authority,” the Ninth

27

28 court, in an earlier stage of the case, that could have been but was not challenged on appeal is binding in subsequent stages of the case.”).

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1 Circuit held that the district court had jurisdiction—even though the plaintiff sought

2 an injunction against the commencement of removal proceedings. Id. In the FAC,

3 Mr. Gonzalez is not asking this Court to undo his NTA. Indeed, he is not challenging

4 any aspect of the Immigration Court proceedings against him in this case. He is

5 asking this Court to (1) “consider a purely legal question” (was the termination of his

6 DACA status unlawful—i.e., how does the DACA program define “enforcement

7 priorities” for termination purposes?) (2) “that does not challenge [Defendants’]

8 discretionary authority” (to commence proceedings, adjudicate cases, or execute

9 removal orders). Id. And “even if the answer … forms the backdrop against which

10 the Attorney General later will exercise discretionary authority,” this Court has

11 jurisdiction. Id. at 1155.

12

Sissoko v. Rocha, 509 F.3d 947 (9th Cir. 2007) confirms that Mr. Gonzalez’s

13 claims are properly before this Court. There, the Ninth Circuit held that Section

14 1252(g) barred jurisdiction in the “limited context” of a challenge to detention that

15 was statutorily “mandatory” upon the commencement of expedited removal

16 proceedings, and therefore “arose from” that commencement. Id. at 949-50. By

17 contrast, it is not “mandatory” that the commencement of removal proceedings for

18 unlawful presence terminates DACA status—as made clear by this Court and every

19 other to address the issue—so Mr. Gonzalez’s challenge to USCIS’s actions does not

20 “arise from” that commencement. See Dkt. 12 at 11.

21

To sidestep this clear Ninth Circuit law, Defendants (1) assert that “the denial

22 of DACA is a step ‘leading up to’ a final order of removal,” (2) mischaracterize Mr.

23 Gonzalez’s claims as a challenge to ICE’s “decision to pursue his removal,” and (3)

24 caution that “were the Court to find that a final removal against [Mr. Gonzalez] could

25 not be executed based in some way on his claimed entitlement to DACA, then the

26 issues raised here are certainly those for which this Court lacks jurisdiction.” Dkt.

27 49-1 at 20-21. Each of these arguments is meritless.

28

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1

Point (1) is simply wrong. Immigration Court proceedings and DACA status

2 operate independently—i.e., a person with a final order of removal may receive

3 DACA status, see Dkt. 39-4 at 3, and a person who has never been issued an NTA

4 may have his DACA status properly terminated, id. at 90. Point (2) ignores the text

5 of the FAC, which challenges “USCIS’s purported termination decision” and “a

6 USCIS agent’s determinations of credibility and criminality without a hearing or the

7 ability to confront evidence.” Dkt. 38 at 39, 42 (emphases added). Mr. Gonzalez is

8 “master of [his] complaint,” Hawaii ex rel. Louie, 761 F.3d at 1040, and nowhere in

9 the FAC does he seek to undo ICE’s actions. Finally, point (3) both (a)

10 mischaracterizes the relief Mr. Gonzalez seeks in the FAC—which does not ask the

11 Court to make any finding about the enforceability of a speculative, future removal

12 order that an Immigration Judge might issue against him—and (b) ignores the fact

13 that this Court has jurisdiction over questions of law “even if the answer … forms the

14 backdrop against which the Attorney General later will exercise discretionary

15 authority,” Hovsepian, 359 F.3d at 1155. Indeed, “[w]hile [Section 1252(g)] bars

16 courts from reviewing certain exercises of discretion by the attorney general, it does

17 not proscribe substantive review of the underlying legal bases for those discretionary

18 decisions and actions.” IEIYC II, 2018 WL 1061408, at *16 (quoting Madu v. U.S.

19 Atty. Gen., 470 F.3d 1362, 1368 (11th Cir. 2006)).

20

Defendants’ reliance on Torres-Aguilar v. INS, 246 F.3d 1267 (9th Cir. 2001)

21 is similarly misplaced. There, on a petition for review, the Ninth Circuit simply

22 explained that the petitioner had not alleged a “colorable” due process claim because

23 he did “not contend that he was prevented from presenting his case before the

24 immigration judge or the BIA, denied a full and fair hearing before an impartial

25 adjudicator[,] or otherwise denied a basic due process right.” Id. at 1271. Mr.

26 Gonzalez’s FAC does allege, inter alia, that he was prevented from presenting his

27 case before an impartial adjudicator, and makes clear that he is not challenging any of

28 the three discrete actions in Section 1252(g). See Dkt. 38 at 39-43.

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1

2. Section 1252(b)(9)

2

The Court should again quickly dispose of Defendants’ reliance on Sections

3 1252(a)(5) and 1252(b)(9). The “explicit language” of those provisions “appl[ies]

4 only to those claims seeking judicial review of orders of removal.” A. Singh v.

5 Gonzales, 499 F.3d 969, 978 (9th Cir. 2007); see INS v. St. Cyr, 533 U.S. 289, 313

6 (2001) (same). They do not apply to “claims that are collateral to, or independent of,

7 the removal process.” JEFM v. Lynch, 837 F.3d 1026, 1032 (9th Cir. 2016). Because

8 Mr. Gonzalez is not and never has been subject to an order of removal and is not

9 challenging any part of the Immigration Court proceedings in this Court, his claims

10 are not “bound up in and an inextricable part of [that] administrative process.” Id. at

11 1033; see Aguilar v. ICE, 510 F.3d 1, 11 (1st Cir. 2007) (“arises from” requires

12 tighter nexus than “related to”).

13

In JEFM, the Ninth Circuit explained that Section 1252(b)(9) does not deprive

14 district courts of jurisdiction where a claim could not have been litigated in removal

15 proceedings, thus providing “no legal avenue to obtain judicial review of [the]

16 claim.” 837 F.3d at 1032. Accordingly, this Court explained that “contrary to

17 [D]efendants’ position that immigration removal proceedings are the proper forum

18 for Plaintiff to raise his DACA termination status, an immigration judge has no

19 jurisdiction to reinstate DACA status, or to authorize an application for renewal of

20 DACA status, as acknowledged by Defendants at oral argument.” Dkt. 12 at 11.

21 Therefore, this Court should again reject Defendants’ cynical invitation to construe

22 the INA “to deny any judicial forum for [Mr. Gonzalez’s] colorable constitutional

23 [and APA] claim[s].” Webster v. Doe, 486 U.S. 592, 603 (1988). Such a reading of 24 the statute would raise “serious constitutional concerns.” Id.3

25

26

3 To be clear, Defendants assert the radical position that Mr. Gonzalez’s claims are not reviewable in any court, at any time. To the extent they posit that a

27

constitutional challenge may be appropriate on a Petition for Review in the Court of Appeals following the Immigration Court removal process, see Dkt. 49-1 at 22, they

28

ignore that the Court of Appeals (1) would lack an adequate record on which to address Mr. Gonzalez’s claims and (2) is institutionally ill-suited and statutorily

prohibited to “order the taking of additional evidence,” 8 U.S.C. § 1252(a)(1).

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1

E. SECTION 701(a)(2) DOES NOT PRECLUDE REVIEW OF

CLAIMS REGARDING THE DACA SOP’S TERMINATION

2

PROVISIONS

3

Defendants’ assertion that 5 U.S.C. § 701(a)(2) precludes review of Mr.

4 Gonzalez’s claims is an equally unavailing effort to circumvent the “strong

5 presumption in favor of judicial review of administrative action.” St. Cyr, 533 U.S. at

6 298. Section 701(a)(2) only precludes judicial review “to the extent that” a particular

7 “action is committed to agency discretion by law.” It is a “very narrow exception”

8 that “applies in those rare instances where … in a given case there is no law to

9 apply.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).

10 It only applies where the agency has “absolutely no guidance as to how [] discretion

11 is to be exercised.” Robbins v. Reagan, 780 F.2d 37, 45 (D.C. Cir. 1985) (emphasis

12 added). In the Ninth Circuit, law to apply may be found in “internal operating

13 procedures,” “policy statement[s],” and “usual practice”—i.e., “where discretion has

14 been legally circumscribed by various memoranda.” Alcaraz, 384 F.3d at 1161-62.

15 The absence of a specific statute or regulation “does not … mean that there are no

16 meaningful standards against which to evaluate” an agency’s actions. Mendez-

17 Gutierrez v. Ashcroft, 340 F.3d 865, 868 (9th Cir. 2003); see ASSE Intern., Inc. v.

18 Kerry, 803 F.3d 1059, 1069 (9th Cir. 2015) (“Even where statutory language grants

19 an agency ‘unfettered discretion,’ its decision may nonetheless be reviewed if

20 regulations or agency practice provide a ‘meaningful standard by which this court

21 may review its exercise of discretion.’”).

22

Here, the question before the Court is whether the DACA Memo and SOP

23 provide any guidance as to how USCIS must make DACA termination

24 determinations. They plainly do. This Court already disposed of Defendants’

25 arguments by making clear that the DACA SOP provides law to apply and

26 “categorically reject[ing]” that “DHS possesses such broad prosecutorial discretion

27 that they need not follow the DACA SOP in terminating the status of DACA

28 recipients.” Dkt. 12 at 10. Every other court to address the issue has reached the

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1 same conclusion. See IEIYC II, 2018 WL 1061408, at *14-15 (citing this Court’s

2 order and collecting cases; explaining that “the decision to revoke DACA is governed

3 by both the Napolitano [DACA] Memo and the DACA SOP”); Batalla Vidal v. Duke,

4 2017 WL 5201116, at *11 (E.D.N.Y. Nov. 9, 2017) (“DHS’s prior statements”

5 regarding the operation of DACA provide law to apply).

6

Defendants cannot seriously contend—in the face of mounting judicial

7 determinations and their own admissions—that the DACA Memo, DACA SOP,

8 DACA FAQ, and other DHS statements, memos, and policy directives do not provide

9 law to apply with respect to DACA termination determinations. See Coyotl, 261 F.

10 Supp. 3d at 1334 (“confirmation from counsel for Defendants that ‘[t]hey are the

11 guidelines that adjudicators are to apply’”). Even if Defendants had unfettered

12 discretion over similar deferred action decisions before DACA, their establishment of

13 and adherence to binding procedures, definitions, and restrictions brings their

14 compliance squarely within the purview of 5 U.S.C. § 706. See INS v. Yang, 519

15 U.S. 26, 32 (1996) (“Though the agency’s discretion is unfettered at the outset, if it

16 announces and follows—by rule or by settled course of adjudication—a general

17 policy by which its exercise of discretion will be governed, an irrational departure

18 from that policy (as opposed to an avowed alteration of it) could constitute action that

19 must be overturned” under the APA.). In addition, it is “well-established that even

20 where agency action is committed to agency discretion by law, review is still

21 available to determine if the Constitution has been violated.” Batalla Vidal, 2017

22 WL 5201116, at *11.

23

Against this backdrop, Defendants attempt to reframe Mr. Gonzalez’s claims as

24 a challenge to the exercise of prosecutorial discretion—i.e., to ICE’s decision to issue

25 an NTA for unlawful presence, which the FAC does not challenge—rather than to

26 USCIS’s termination of his DACA status in violation of the DACA Memo and SOP.

27 The effort fails. Defendants’ cases regarding challenges to discretionary decisions

28 not to enforce are inapposite and shed no light on whether the DACA program is

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1 bereft of “judicially manageable standards” to judge Defendants’ compliance with

2 their own mandatory policies and defined enforcement priorities when they decided

3 to enforce the termination provisions against Mr. Gonzalez. Heckler v. Chaney, 470

4 U.S. 821, 830 (1985).

5

In Heckler, the Supreme Court explained that enforcement decisions are

6 reviewable when governed by “clearly defined factors.” Id. at 834. Regardless of the

7 extent of Defendants’ discretion to issue an NTA for unlawful presence to a DACA

8 recipient, DACA termination is governed by clearly defined factors in the DACA 9 Memo and SOP.4 And Defendants’ invocation of a “complex balancing of policy

10 considerations,” Dkt. 49-1 at 23, is a red herring. Nothing about reading the DACA

11 SOP’s and the Kelly Memo’s definitions of who does and does not constitute an

12 enforcement priority is “peculiarly within [USCIS’s] expertise.” Heckler, 470 U.S. at

13 831. Indeed, if the phrase “enforcement priorities” is as standardless as Defendants

14 claim, no balancing of anything would be required before stripping a DACA recipient

15 of his status. That cannot be the law.

16

Moreover, Defendants’ unmoored approach would run afoul of DHS’s

17 statutory obligation to “establish[] national immigration enforcement policies and

18 priorities,” 6 U.S.C. § 202(5), against which such determinations must be made. It is

19 Defendants’ burden to define the “enforcement priorities” that justify DACA

20 termination, and they have done so in the DACA Memo and SOP. They defined

21 DACA recipients who meet the DACA Memo’s and SOP’s objectively verifiable

22 criteria as low priority cases and enumerated a series of events—criminal convictions,

23 findings of public safety or national security concern, or EPS findings—that could

24 make them an enforcement priority. Including additional language that permits

25

26

4 Therefore, Morales de Soto v. Lynch, 824 F.3d 822 (9th Cir. 2016) has no application here. There, to secure the favorable exercise of prosecutorial discretion,

27

the plaintiff was challenging a valid reinstatement of removal issued in Immigration Court, and her claims were entirely bound up in what was happening in her removal

28

proceedings. Id. at 825. By contrast, in the FAC Mr. Gonzalez is not challenging any agency’s decision to issue an NTA or prosecute that NTA in Immigration Court.

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1 termination when continued DACA status is not consistent with Defendants’

2 enforcement priorities does not relieve Defendants of their obligation to say what

3 those priorities are and to terminate DACA only when an individual falls within one

4 of the defined categories. Defendants argue an untenable reading of the termination

5 provision that would swallow the proverbial rule. The Court should reject the

6 argument out of hand.

7

Finally, Defendants’ attempt to equate the DACA SOP with the 1981 deferred

8 action instructions at issue in Romeiro de Silva v. Smith, 773 F.2d 1021 (9th Cir.

9 1985) ignores two dispositive distinctions. First, like the 1978 version at issue in

10 Nicholas v. INS, 590 F.2d 802 (9th Cir. 1979), DACA status confers substantive

11 benefits and is premised on humanitarian concerns:

12

• DACA status confers lawful presence, the right to work in the United States, and

13

access to various federal and state benefits.

14 • Defendants have taken affirmative steps and expended significant resources to, e.g., (1) conduct an “ongoing review of pending removal cases [and] offer[]

15

administrative closure to many of them,” Dkt. 39-4 at 2; (2) operate a special

hotline “staffed 24 hours a day, 7 days a week” to assist DACA-eligible

16

individuals in removal proceedings, id. at 10; and (3) establish the comprehensive

SOP to greatly circumscribe discretion regarding DACA status.

17 • The DACA Memo opens by explaining that DHS intends to protect “certain young

18

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

home” and “lacked the intent to violate the law.” Dkt. 39-4 at 2.

19

Second, as Defendants have conceded, the DACA Memo and SOP are replete

20 with mandatory language. See Coyotl, 261 F. Supp. 3d at 1334 (“confirmation from

21 counsel for Defendants that ‘[t]hey are the guidelines that adjudicators are to

22 apply’”); see, e.g., Dkt. 39-4 at 2-3 (“necessary to ensure” non-prioritization of

23 individuals who meet the DACA criteria). The DACA Memo’s and SOP’s

24 objectively verifiable criteria have therefore been the determinative basis for USCIS’s

25 DACA decisions since its inception. See Texas v. U.S., 809 F.3d 134, 171-76 (5th

26 Cir. 2015). The DACA Memo and SOP provide ample law for USCIS to apply and

27 against which this Court may judge USCIS’s actions when making DACA status and

28 termination determinations. Defendants’ efforts to deprive those standards of

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1 meaning by asserting the right to terminate DACA whenever and however they

2 please are contrary to law and logic. Section 701(a)(2) imposes no barrier to this

3 Court’s consideration of Mr. Gonzalez’s claims.

4

F. ONCE GRANTED, DACA STATUS CONFERS

5

CONSTITUTIONALLY PROTECTED INTERESTS

6

Once granted, Mr. Gonzalez has a constitutionally protected interest in his

7 DACA status, which is the result of a deal with the government, not unilateral

8 expectation. So far, the only court to directly address whether DACA status, once

9 conferred, may be terminated without any process under the Fifth Amendment has

10 rejected DHS’s assertion “that there can be no violation of [a DACA recipient’s] Due

11 Process rights because no process is actually due”:

12

In creating the DACA policy/program, the federal government

recognized that there were thousands of young people unlawfully present

13

in our country, that lacked the intent to violate the law, and that had

contributed to our country in significant ways, and that its immigration

14

enforcement resources should not be spent on low priority cases such as

those. The policy then set forth criteria to be considered when

15

determining whether to grant DACA to an applicant. These criteria

established a quid pro quo from the federal government to the potential

16

applicants—i.e., you (applicant) make yourself known to us (federal

government) and pass rigorous background checks, etc., and in return

17

you will be considered for DACA, which in turn will allow you the

opportunity to remain in the country, work, and potentially receive other

18

state benefits.

Ramirez Medina, 2017 WL 5176720, at *9.

19

Defendants’ behavior in operating DACA for the last six years is not consonant

20

with a program that exists solely for the administrative convenience of the

21

government, but rather one that confers benefits based on “mutually explicit

22

understandings.” Perry v. Sindermann, 408 U.S. 593, 601 (1972). Indeed, DHS

23

recently explained that it views DACA status as “confer[ring] affirmative benefits.”

24

Pet. for Writ of Cert. at 12, DHS v. Regents, No. 17-1003 (U.S. Jan. 18, 2018),

25

available at https://goo.gl/Tjvaqg.

26

DACA’s well-defined framework, specific operating procedures, and

27

mandatory language “greatly restrict the discretion of the people who administer it”

28

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1 and underscore the property interests conferred by DACA status. Nozzi v. Housing

2 Auth. of LA, 806 F.3d 1178, 1191 (9th Cir. 2015); Wedges/Ledges of Calif., Inc. v.

3 Phoenix, 24 F.3d 56, 63 (9th Cir. 1994). And the DACA Memo’s boilerplate that it

4 “confers no substantive right” is plainly not determinative. The question “turns on

5 the substance of the interest recognized, not the name given that interest by the state.”

6 Newman v. Sathyavaglswaran, 287 F.3d 786, 797 (9th Cir. 2002).

7

The precise process that is due in Mr. Gonzalez’s circumstances need not be

8 determined on Defendants’ MTD, which by its nature only addresses the threshold

9 question of whether any process is due at all. But Mr. Gonzalez emphasizes here that

10 the Constitution cannot countenance a DACA status termination:

11

• on the basis of a USCIS officer’s suspicion, on a paper record, that Mr. Gonzalez

12

engaged in criminal misconduct;

13 • after an Immigration Judge found him credible and not a threat to public safety,

and released him on a $5,000 bond to resume his law-abiding life in San Diego;

14 • nearly two years after he was arrested but never charged, with no further

15

investigation beyond the two days of questioning following his May 2016 arrest,

and no prior or subsequent law enforcement encounters or public safety concerns;

16 • without Mr. Gonzalez having the opportunity to know the facts that would guide

17

the termination decision, to test the evidence against him or confront adverse

witnesses, or rebut factual allegations; and

18 • without his having a hearing or any chance to persuade a neutral arbiter, rather

19

than the same one who had already issued him a seemingly pre-determined notice

of intent to terminate.

20

See Dkt. 39-1 at 32-34; Kaur v. Holder, 561 F.3d 957, 960-62 (9th Cir. 2009)

21

(summary stating only that “reliable confidential sources have reported that [the

22

immigrant] has conspired to engage in alien smuggling; has attempted to obtain

23

fraudulent documents; and has engaged in immigration fraud by conspiring to supply

24

false documents for others” was “fundamentally unfair and violated her due process

25

rights”). Based on the allegations of the FAC, Mr. Gonzalez has stated a plausible

26

constitutional claim that must survive Defendants’ motion under Rule 12(b)(6).

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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT

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1 IV. CONCLUSION

2

For the reasons stated herein, and in Mr. Gonzalez’s briefing in support of his

3 pending motion for a preliminary injunction, see Dkt. 39-1, 46, his briefing in support

4 of his original motion for preliminary injunction, see Dkt. 2-1, 10, and this Court’s

5 Order of September 29, 2017, see Dkt. 12, Defendants’ MTD should be denied in its

6 entirety.

7 8 Dated: March 9, 2018

Respectfully submitted,

9

/s/ John C. Ulin

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John C. Ulin (SBN 165524) john.ulin@arnoldporter.com

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Jaba Tsitsuashvili (SBN 309012)

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jaba.tsitsuashvili@arnoldporter.com ARNOLD & PORTER KAYE SCHOLER LLP

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777 South Figueroa Street, 44th Floor

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Los Angeles, CA 90017-5844 T: (213) 243-4000

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F: (213) 243-4199

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Attorneys for Plaintiff

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ALBERTO LUCIANO GONZALEZ TORRES

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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT

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CERTIFICATE OF ELECTRONIC FILING

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I hereby certify that on March 9, 2018, I electronically filed the foregoing

4 document with the Clerk of the Court using CM/ECF.

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/s/ John Ulin

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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT

 
 Case 3:17-cv-01840-JM-NLS Document 51 Filed 03/16/18 PageID.1362 Page 1 of 12

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
Attorneys for Defendants

8

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALBERTO LUCIANO

) Case No. 3:17-CV-01840-JM-(NLS)

14 GONZALEZ TORRES,

)

15

) DEFENDANTS’ REPLY IN

Plaintiff,

) SUPPORT OF DEFENDANTS’

16

) MOTION TO DISMISS

17

v.

)

18

U.S. DEPARTMENT OF

) DATE: ) TIME:

March 26, 2018 10:00 a.m.

19 HOMELAND SECURITY, et al., ) CTRM: 5D

20

) Hon. Jeffrey T. Miller

Defendants.

)

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3:17-CV-01840-JM-(NLS)

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1 I.
2

Plaintiff Cannot Overcome his Lack of Standing to Raise Claims Regarding the Enjoined May 2016 Termination of his DACA.
In his response to Defendants’ Motion to Dismiss, Plaintiff argues that there is an

3 ongoing harm from the initial termination of his DACA in May 2016 that confers

4 standing to ask the Court essentially to enjoin that termination a second time. See Dkt.

5
No. 50 at 10. However, Plaintiff cites to Anderson v. Evans, 371 F.3d 475, 479 (9th Cir.

6 2004), for the proposition that a claim is not mooted where “precedential harms continue

7 to flow from the government’s action.” Id. Anderson is inapposite for two reasons. First,

8 Anderson does not address standing at all, certainly not in the specific context of a

9 plaintiff who filed an amended complaint after receiving the relief requested in his

11 original complaint. Second, the “precedential harms” finding from Anderson on which

12 Plaintiff relies is specifically based on a regulation that requires “[t]he precedential

13 effects of past agency decisions must be considered when an agency determines whether

14 an environmental impact statement (EIS) is required.” Anderson, 371 F.3d at 479, citing

15 40 C.F.R. § 1508.27. That regulation is not applicable here.

16

Here, Mr. Gonzales had his DACA reinstated, and was issued a Notice of Intent to

17 Terminate in which Defendants provided “a reasoned basis for that intent, and an

18 opportunity to respond with argument and evidence.” Compl., Prayer for Relief ¶ 4; Dkt.

19 No. 49-1 at 13-14. Plaintiff’s disagreement with the outcome of the process he sought and

20 received does not establish standing to again challenge the now-reversed May 2016

21 termination of his DACA, which is no longer a final agency action or live controversy.

22 II. This Court Lacks Jurisdiction to Hear a Challenge to the Discretionary

23

Decision to Terminate DACA.

24

In finding jurisdiction to grant Plaintiff his first preliminary injunction, this Court

25 held that “[u]nder [8 U.S.C. § 1252(g)], the court is stripped of jurisdiction to entertain

26 Defendants’ ultimate discretionary determination as to Plaintiff’s DACA status.” Dkt.

27 No. 12 at 8. The Court found only that “this provision does not deprive the court of

28 jurisdiction to entertain Plaintiff’s claim that the termination of his DACA status did not

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1 comply with the non-discretionary DACA SOP.” Id. Although Plaintiff incorrectly

2 asserts that the first preliminary injunction is the law of the case, Dkt. No. 50 at 6, 11,

3 there is a “general practice” that a Court “should ordinarily follow [the rules it previously

4 decided on] during the pendency of the matter.” Id., citing Mayweathers v. Terhune, 136 5 F. Supp. 2d 1152, 1153-54 (E.D. Cal. 2001).1 Defendants agree that this Court should

6 rely on its previous section 1252(g) findings to inform its decision here, albeit under the

7 changed circumstances that existed at the time the amended complaint and new motion

8 were filed.

9

The Court previously found jurisdiction on the basis that Defendants had not

11 complied with the procedural requirements of the DACA SOP. Any defect in that process

12 was cured with Defendants’ reinstatement of Plaintiff’s DACA and EAD; issuance of a

13 Notice of Intent to Terminate that included an opportunity to respond with arguments and

14 evidence; and issuance of a decision that invoked DHS’s discretion to terminate DACA

15 and specifically cited the section of the DACA SOP that permitted termination in this

16 circumstance. See Dkt. Nos. 49 at 11; 44 at 12-13. Plaintiff now seeks to overturn that

17 discretionary decision, an action this Court has already found it lacks jurisdiction to do.2

18 Dkt. No. 12 at 8. Plaintiff’s argument that nothing “relevant to the Court’s jurisdictional

19 determinations has changed since September 2017” is manifestly incorrect. Id. at 11.

20

Under the new facts of the amended complaint, the Court should find again that it

21 lacks jurisdiction to hear a challenge to the discretionary decision to terminate DACA.

22 1 Plaintiff’s argument that Defendants’ arguments should now be barred because there was no appeal of
23 the Court’s first preliminary injunction lacks merit. Here, Plaintiff filed an amended complaint based on his new circumstances, such that the first injunction is no longer operative for appeal. See Rockwell Int'l
24 Corp. v. United States, 549 U.S. 457, 473 (2007) (“[C]ourts look to the amended complaint to determine
25 jurisdiction.”).

26 2 Plaintiff’s reliance on United States v. Hovsepian, remains misplaced. Hovsepian reaffirmed that “the

district court may consider a purely legal question that does not challenge the Attorney General's 27 discretionary authority.” See 359 F.3d 1144, 1155 (9th Cir. 2004). Plaintiff here is directly “asking this

28

Court. . . how does the DACA program define ‘enforcement priorities’ for termination purposes?” Dkt. No. 50 at 13 (emphasis in original). Because the definition and application of enforcement priorities to

an individual is a discretionary authority vested in DHS, Hovsepian does not apply to Plaintiff’s claims.

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1 III. Plaintiff continues to misstate the Ninth Circuit on section 1252(b)(9).

2

As to Plaintiff’s assertions that the Court should follow its prior finding that

3 jurisdiction is not barred under section 1252(b)(9), Defendants continue to respectfully

4 assert that finding was incorrect, and offer additional authority (both controlling and

5 persuasive) to support their argument. See Mayweathers, 136 F. Supp. 2d at 1154

6 (“Grounds justifying departure from the law of the case include substantially different

7 evidence, a change in controlling authority, or any error in the court's prior decision.”).

8 Plaintiff argues once again that because section 1252(b)(9) “applies only to those claims

seeking judicial review of orders of removal,” that he is not barred from raising a
9

11 challenge related to his removal proceedings because he is not subject to a final order of

12 removal. Dkt. No. 50 at 15, citing J.E.F.M. v. Lynch, 837 F.3d 1026, 1032 (9th Cir.

13 2016), Singh v. Gonzales, 499 F.3d 969, 978 (9th Cir. 2007); INS v. St. Cyr, 533 U.S.

289, 313 (2001). Plaintiff also misleadingly argues again that J.E.F.M. found that claims
14

could not be barred from district court review if they could not have been litigated in
15

removal proceedings. Dkt. No. 50 at 15, citing J.E.F.M., 837 F.3d at 1032.
16

Both claims are taken out of context, applied incorrectly here, and are thoroughly
17

unsupported by a proper reading of J.E.F.M. and the case law of the Supreme Court and
18

the Ninth Circuit. See J.E.F.M., 837 F.3d at 1031-32 (“The Supreme Court has thus
19

characterized § 1252(b)(9) as a ‘zipper’ clause, [] explaining that the statute’s purpose ‘is
20

to consolidate judicial review of immigration proceedings into one action in the court of
21

appeals[.]”), quoting Reno v. Am.–Arab Anti–Discrimination Comm. (AAADC), 525 U.S.
22

471, 483 (1999) and INS v. St. Cyr, 533 U.S. 289, 313 & n.37 (2001).
23

Furthermore, another court in this District recently found that sections 1252(a)(5)
24

and (b)(9) barred jurisdiction of constitutional and APA claims related to removal
25

activity, regardless of whether a final order had issued or whether the claims could be
26

adjudicated by an immigration judge. See Castellar v. Nielsen, No. 17-CV-0491-BAS-
27

BGS, 2018 WL 786742, at *15 (S.D. Cal. Feb. 8, 2018) (specifically rejecting the finding
28

in Medina v. DHS, No. C17-218-RSM-JPD, 2017 WL 2954719, at *14 (W.D. Wash.

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1 Mar. 14, 2017), that J.E.F.M. was in conflict with Singh or Nadarajah).3 Plaintiffs in

2 Castellar raised Fourth and Fifth Amendment and APA claims regarding the delay

3 between when they were first detained and when they were first brought before an

4 immigration judge. Id. at *4-6. Plaintiffs raised the same three arguments plaintiff here

5 raises: 1. “their claims are independent of the substantive merits of their removal

6 proceedings;” 2. “because their claims do not require judicial review of a final order of

7 removal, they may assert them now;” and 3. their claims “cannot be meaningfully heard

8 in the administrative process.” Id. at *12, *14, *15. The Court rejected all three claims:

9

Neither the statute, nor its interpretation by the Ninth Circuit identifies an

11

exception to the channeling function of Section 1252(b)(9) based on whether the asserted claims go to the “substantive merits” of a removal proceeding. []

12

To the contrary, the Ninth Circuit has clarified, “Congress intended to channel

13

all claims arising from the removal proceedings . . . to the federal courts of

appeals.” J.E.F.M., 837 F.3d at 1033. So long as the claims arise from the

14

removal proceeding or any action taken to remove an alien, they are swept up

15

by Section 1252(b)(9).

16 Id. at *14 (emphasis added in original).

17

The jurisdictional channeling function of Section 1252(b)(9) is not defeated

simply because Plaintiffs are at a stage of the removal proceedings at which

18

no final order of removal has issued against them. Aliens cannot “bypass the

19

immigration courts and directly proceed to district court,” but rather “must

20

exhaust the administrative process before they can access the federal courts”

when their claims arise from removal proceedings.

21 Id. at *15, quoting J.E.F.M., 837 F.3d at 1029.

22
The Ninth Circuit further explained that notwithstanding the inability of an

23

immigration judge or the BIA to order court-appointed counsel and

24

notwithstanding a failure to raise such a claim in removal proceedings, the

court of appeals would have authority to consider such a constitutional claim.

25

Id. at *15, quoting J.E.F.M., 837 F.3d at 1038 (internal citation omitted).

26

27

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

A. Section 1252(b)(9) still applies before a final order of removal issues.

2

Recent Supreme Court authority supports the proposition that section 1252(b)(9)

3 works to bar district court jurisdiction over a claim “challenging the decision to . . . seek

4 removal,” although plaintiffs lacked final orders of removal. Jennings v. Rodriguez, 138

5 S. Ct. 830, 841 (2018). In his concurrence, Justice Thomas explained:

6

The text of this provision is clear. Courts generally lack jurisdiction over “all

questions of law and fact,” both “constitutional” and “statutory,” that “aris[e]

7

from” an “action taken or proceeding brought to remove an alien.” If an alien

8

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

9

jurisdiction “otherwise provided” in § 1252.

11 id. at 853-54 (Thomas, J. concurring) (emphasis added). Thus, section 1252(b)(9) does

12 not lie feckless until a final order of removal issues, but rather acts as a channeling

13 provision throughout the removal process to “put an end to the scattershot and piecemeal

14 nature of the review process.” Aguilar v. Immigration & Customs Enf’t, 510 F.3d 1, 9-10

15 (1st Cir. 2007) (cited favorably throughout J.E.F.M., 837 F.3d 1026). In J.E.F.M., the

16 Ninth Circuit explicitly acknowledged that the plaintiffs “are at various stages of the

17 removal process: some are waiting to have their first removal hearing, some have already

18 had a hearing, and some have been ordered removed in absentia.” 837 F.3d at 1029.

19 There can be no dispute that a final order of removal is not a predicate for section

20 1252(b)(9)’s jurisdictional bar over any claim arising out of removal proceedings.

21

B. Plaintiff is incorrect that section 1252(b)(9) does not bar constitutional

22

claims from district court review.

23

Plaintiff also cites this Court’s prior finding, also based on J.E.F.M., that, because

24 “an immigration judge has no jurisdiction to reinstate DACA status, or to authorize an

25 application for renewal of DACA status,” section 1252(b)(9) cannot bar a district court

26 from hearing a DACA challenge. Dkt. No. 50 at 15, citing Dkt. No. 12 at 11. Plaintiff is

27 correct that J.E.F.M. acknowledged that the claim in Singh v. Gonzales, 499 F.3d 969 28 (9th Cir. 2007), could proceed in district court because “Singh would have had no legal
avenue to obtain judicial review of [his] claim.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1032

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1 (9th Cir. 2016). However, the J.E.F.M. Court also explained that the reason Singh could

2 not obtain relief in removal proceedings was because his ineffective assistance of counsel

3 claim arose after those proceedings had ended. Id., citing Singh, 499 F.3d at 974. Thus, it

4 was literally impossible for him to have raised the claim in removal proceedings. The

5 J.E.F.M. Court further explained in great detail that the inability of the immigration judge

6 to relieve a constitutional claim is absolutely not a valid reason to ignore the

7 jurisdictional bar of 1252(b)(9). Id. at 1032-33. In fact, the Singh Court denied Singh’s

8 second ineffective assistance of counsel claim because it “arose before a final order of

9 removal entered and [] could and should have been brought before the agency.” Id. at

11 1032, citing Singh, 499 F.3d at 974 (emphasis added). The J.E.F.M. Court went on to

12 explain, in considering a minor’s right to counsel in removal proceedings:

13

It is true that at present neither the immigration judge nor the Board of

14

Immigration Appeals has authority to order court-appointed counsel. But the question at hand is a legal one involving constitutional rights. Even if not

15

raised in the proceedings below, the court of appeals has authority to consider

16

the issue because it falls within the narrow exception for “constitutional

challenges that are not within the competence of administrative agencies to

17

decide” and for arguments that are “so entirely foreclosed . . . that no remedies

18

[are] available as of right” from the agency.

19 Id. at 1038. As explained above, the court in Castellar arrived at the same conclusion

20 under similar circumstances, 2018 WL 786742 at *15, and this Court should as well.4

21

C. Plaintiff’s Efforts to Reason Around Section 1252(b)(9) Should Fail.

22

In addition to challenging the applicability of section 1252(b)(9), Plaintiff also tries

23 to circumvent that provision by alleging that his “claims would persist even if no NTA

24 existed against him, and USCIS’s termination of his DACA status is not a mandatory

25

26 4 Plaintiff’s assertion that it is Defendants’ position that Mr. Gonzalez’s DACA termination claim is not
reviewable “in any court, at any time” pursuant to section 1252(g) is correct and unremarkable, as this 27 Court found the same in its first Preliminary Injunction Order. Dkt. No. 12 at 8. However, even if the

28

Court finds there is jurisdiction to consider the claim, Castellar, J.E.F.M., and Jennings are unequivocal that Congress explicitly prohibited this Court from hearing the claim.

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1 consequence of the NTA against him.”5 Dkt. No. 50 at 8. However, Plaintiff has not

2 shown how, had no NTA issued against him, he would have lost his DACA by some

3 independent way. Theoretically, USCIS could have learned of Plaintiff’s criminal charges

4 and initiated a review process and ultimately decided to terminate his DACA but not

5 initiate removal proceedings, but that is simply not the situation here. Whether the Court

6 agrees that it was permissible, it is indisputable that Defendants terminated Plaintiff’s

7 DACA based on ICE’s finding him an enforcement priority and pursuing removal against

8 him. See Dkt. 44 at 12-13. His challenges to that decision cannot be distinguished from a

9 challenge to an action related to his removal proceedings such that section 1252(b)(9) 11 would not bar this Court’s jurisdiction. Castellar, 2018 WL 786742 at *14.6

12 IV. Plaintiff misstates important case holdings to assert APA jurisdiction.

13

A. Heckler v. Chaney does not support jurisdiction under 5 U.S.C. § 701(a)(2).

14

In challenging Defendants’ argument that 5 U.S.C. § 701(a)(2) precludes review of

15 the challenged actions here, Plaintiff misleadingly claims that the Supreme Court in

16 Heckler v. Chaney “explained that enforcement decisions are reviewable when governed

17 by ‘clearly defined factors.’” Dkt. 50 at 18, citing Chaney, 470 U.S. at 834. However, the

18 Supreme Court in that passage was actually recounting a finding of reviewability under

19 section 701(a)(1), where “the language of the [Labor-Management Reporting and

20

21 5 Plaintiff’s reliance on the Ninth Circuit’s holding in Sissoko is misplaced. Dkt. No. 50 at 8. The

22

mandatory nature of Sissoko’s detention as a “direct[] result[] from the decision to commence proceedings against him” supports Defendants’ position that the termination of his DACA—as a direct

23 result of the initiation of removal proceedings against him—is similarly barred by section 1252(g). Sissoko v. Rocha, 509 F.3d 947, 950 (9th Cir. 2007). Sissoko illustrates that section 1252(g) applies to

24 claims arising out of the decision to initiate removal proceedings.

25 6 Plaintiff’s reliance on Flores-Torres v. Mukasey, 548 F.3d 708 (9th Cir. 2008), to support

26 distinguishing his claims from his removal proceedings is inapposite. See Dkt. 50 at 61 n.1. Flores-

Torres involved a habeas petitioner who brought a claim of U.S. citizenship to challenge his detention 27 under 8 U.S.C. § 1226. 548 F.3d at 709. The Ninth Circuit reasoned that because sections 1226 and 1252

28

authorize the detention (and removal) of aliens, the petitioner could bring his “non-frivolous claim of citizenship” in district court. Id. at 712. Plaintiff’s claim here is premised on his lack of U.S. citizenship,

thus his claims may not arise outside of the jurisdiction-limiting provisions of section 1252.

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1 Disclosure Act] indicated that the Secretary was required to file suit if certain ‘clearly

2 defined’ factors were present.” 470 U.S. 821, 834 (emphasis added); discussing Dunlop v.

3 Bachowski, 421 U.S. 560 (1975). The Heckler Court further explained, “Our textual

4 references to the ‘strong presumption’ of reviewability in Dunlop were addressed only to

5 the § (a)(1) exception; we were content to rely on the Court of Appeals' opinion to hold

6 that the § (a)(2) exception did not apply.” Id.

7

Defendants maintain that subsection (a)(1) applies here because section 1252 bars

8 jurisdiction, and thus the holding in Chaney Plaintiff relies on is entirely inapposite.

9 Defendants contend that subsection (a)(2) also applies because there is no requirement that

11 DACA be granted, or retained once granted, based on any factors, clearly defined or

12 otherwise. As Defendants have addressed in detail, the DACA SOP provides no standards

13 for determining who is an enforcement priority, and the ultimate decision to grant, deny,

14 or terminate DACA is left entirely to agency discretion. See, e.g., DACA SOP, Dkt. No.

15 39-6 at 195. Unremarkably, there is a variety of guidance that helps Defendants assess

16 who is an enforcement priority, that guidance changes over time, and that guidance does

17 not curtail individualized determinations that consider factors outside operative guidance.

18 See Arpaio v. Obama, 797 F.3d 11, 16 (D.C. Cir. 2015) (“In making immigration

19 enforcement decisions, the executive considers a variety of factors”); see also Dkt. No.

20 39-5 at 56 (“The decision whether to defer action in a particular case is individualized and

21 discretionary, taking into account the nature and severity of the underlying criminal,

22 national security, or public safety concerns.”). Plaintiff cannot show that the guidance he

23 references specifically curtails Defendants’ exercise of discretion to determine that an

24 individual is an enforcement priority.

25

B. Plaintiff’s Romeiro da Silva analysis is wrong and misleading.

26

Plaintiff equates the DACA SOP instructions for considering a grant of deferred

27 action to the 1978 INS instructions that were found in Nicholas to constrict discretion, on 28 the basis that these two documents have “two dispositive distinctions” from the 1981
version of deferred action instructions that were found not to constrict the agency’s

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1 discretion. Dkt. No. 50 at 19-20. Plaintiff claims the 1978 version and the DACA SOP

2 both confer “substantive benefits and [are] premised on humanitarian concerns,” and that

3 both “are replete with mandatory language,” id., and, by silence, implies the 1981

4 instructions have neither. However, the Romeiro de Silva Court held only that the 1981

5 instructions had changed the referral language from 1978 (“the district director . . . shall

6 recommend consideration for deferred action”) to 1981 (“[t]he district director may, in

7 his discretion, recommend consideration of deferred action”). Romeiro de Silva v. Smith,

8 773 F.2d 1021, 1023 n.1 (emphasis added). Similarly, the DACA SOP repeatedly states

9 an individual who meets DACA criteria may be considered for a DACA grant. See, e.g.,

11 Dkt. 39-5 at 24. The Court should reject Plaintiff’s attempt to discredit this controlling

12 authority.

13 V. Plaintiff fails to support his Due Process claims.

14

Plaintiff cites only to the denial of a motion to dismiss in Medina for its holding

15 that a DACA grant confers a due process right on a DACA recipient. See Medina v. DHS,

16 No. C17-0218RSM, 2017 WL 5176720, at *9 (W.D. Wash. Nov. 8, 2017). The court

17 there found that the plaintiff raised “a plausible due process claim,” but left unanswered

18 the questions of “[w]hat process is due, and whether Plaintiff received such process.” Id.

19 Importantly, the question in that case was whether the government could terminate

20 DACA without notice or an opportunity to respond. Id. (“[T]he government emphasized

21 that it is allowed to withdraw DACA at any time for no reason at all. [] That cannot be.”).

22

Having received notice of the government’s intent to terminate his DACA, and an

23 opportunity to respond, Plaintiff here makes a much more invasive claim that he has a

24 mutually explicit understanding with the government that USCIS is required to define

25 enforcement priorities and to terminate DACA only when an individual falls within that

26 definition. See Dkt. No. 50 at 18-19. Such a construction does not exist in the DACA 27 SOP or DACA Memo, and is contradicted by the agency’s core discretionary authority to 28 determine who is an enforcement priority and when to initiate removal proceedings. See
Jeronimo v. U.S. Atty. Gen., 330 F. App’x 821, 823–24 (11th Cir. 2009).

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1

Plaintiff claims that enforcement priorities are defined in the DACA Memo and

2 DACA SOP by virtue of those documents defining what makes an individual a “low

3 priority” for immigration enforcement. See Dkt. 50 at 18. However, Plaintiff’s logic that

4 an enforcement priority definition can be reverse engineered from a list of criteria that

5 enables an individual to be considered for deferred action simply does not follow. As the

6 DACA SOP explains, the criteria provide guidance for who may ultimately be considered

7 for DACA, they do not establish entitlement to DACA. While a finding that someone is

8 an enforcement priority may encompass findings that also establish a person no longer

9 meets the DACA guidelines, it also may not.

11

For example, the DACA SOP guidance considers whether deferred action under

12 DACA is warranted, in part, by considering whether an individual has been convicted of

13 “a felony offense, a significant misdemeanor offense, or multiple misdemeanors,” see

14 Dkt. No. 39-5 at 56; while also instructing that DACA may be terminated due to, among

15 other things, a finding of EPS that may be based on “information [that] indicates the alien

16 is under investigation for, has been arrested for (without disposition), or has been

17 convicted of” a list of enumerated criminal actions. See Dkt. No. 39-4 at 69-70, 89; see

18 also Dkt No. 39-6 at 32 (“A DACA requestor’s criminal record may give rise to

19 significant public safety concerns even where there is not a disposition of conviction.”).

20

Because the enforcement priority finding is completely discretionary, committed to

21 the judgment of DHS officers, and tied directly to the decision to initiate removal

22 proceedings, Plaintiff cannot show that he is entitled to any process in this Court to

23 challenge that finding.

24

25

26

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1 Dated: March 16, 2018
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Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General WILLIAM C. PEACHEY Director District Court Section Office of Immigration Litigation /s/ Jeffrey S. Robins JEFFREY S. ROBINS Assistant Director U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 616-1246 jeffrey.robins@usdoj.gov Attorneys for Defendants
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UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10 ALBERTO LUCIANO GONZALEZ CASE NO. 17cv1840 JM(NLS)

TORRES, 11

ORDER DENYING PLAINTIFF’S

12

v.

Plaintiff, MOTION FOR PRELIMINARY INJUNCTION; GRANTING

DEFENDANTS’ MOTION TO

13

DISSOLVE PRELIMINARY

14 U.S. DEPARTMENT OF HOMELAND SECURITY; U.S.

INJUNCTION; GRANTING DEFENDANTS’ MOTION TO DISMISS

15 CITIZENSHIP AND IMMIGRATION

SERVICES; U.S. IMMIGRATION

16 AND CUSTOMS ENFORCEMENT;

and U.S. CUSTOMS AND BORDER

17 PROTECTION,

18

Defendants.

19 Plaintiff Alberto Luciano Gonzalez Torres seeks a preliminary injunction to
20 enjoin Defendants from terminating the legal status obtained by Plaintiff pursuant to
21 the Deferred Action for Childhood Arrivals (“DACA”) program. Defendants U.S.
22 Department of Homeland Security (“DHS”), U.S. Citizenship and Immigration Services
23 (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”), and U.S. Customs
24 25 and Border Protection (“CBP”) oppose the motion and separately move to dissolve this
court’s September 29, 2017 Order Granting Motion for Preliminary Injunction 26 27 (“Order”) and to dismiss the First Amended Complaint (“FAC”) for failure to state a
claim. Having carefully considered the matter presented, the court record, the 28

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1 arguments of counsel and, for the reasons set forth below, the court denies the motion

2 for preliminary injunction, grants the motion to dissolve the original preliminary

3 injunction, and grants the motion to dismiss the FAC without leave to amend.

4

BACKGROUND

5

On September 11, 2017, Plaintiff commenced this declaratory and injunctive

6 relief action seeking a declaration that the automatic termination of his DACA status

7 on May 7, 2016, without notice or an opportunity to contest the termination, (1) failed

8 to comply with the DACA Standard Operating Procedures (“DACA SOP”); (2) violated

9 the arbitrary, capricious, and abuse of discretion standard of the Administrative

10 Procedure Act (“APA”); and (3) violated Plaintiff’s Procedural Due Process rights 11 under the Fifth Amendment. (ECF 1).1

12

Following oral argument on Plaintiff’s motion for a temporary restraining order,

13 on September 29, 2017, the court granted the motion for injunctive relief and

14 provisionally ordered: (1) the reinstatement of Plaintiff’s DACA status; (2) the

15 reinstatement of Plaintiff’s employment authorization; (3) the Defendants to comply

16 with the DACA Standard Operating Procedures (“SOP”) “should Defendants elect to

17 reconsider Plaintiff’s DACA status;” and, (4) Defendants to accept Plaintiff’s DACA

18 renewal application. (ECF 12). Defendants complied with the Order by reinstating

19 Plaintiff’s DACA status and employment authorization, and accepting his DACA

20 renewal application. The parties dispute whether the second DACA termination

21 violated the DACA SOP.

22

On November 13, 2017, USCIS issued Plaintiff a second Notice of Intent to

23 Terminate (“NOIT”) informing him, among other things, that his DACA status was

24 being revoked because he was an enforcement priority in light of his suspected

25 involvement with alien smuggling. The central issue relevant to the present motions

26 is whether Defendants complied with the DACA SOP when terminating Plaintiff’s

27

28

1 Citations refer to the Electronic Case File Docket Number (“ECF”) and, where

applicable, to an Exhibit or to the scanned header page number.

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1 DACA status a second time, after this court had invalidated Defendants’ initial

2 termination of Plaintiff’s DACA status. After providing Plaintiff with notice and an

3 opportunity to respond to the NOIT, on December 21, 2017, Defendants revoked and

4 terminated Plaintiff’s DACA status for a second time.

5

The FAC, filed on January 12, 2018, alleges four claims for relief arising out of

6 the revocation of his DACA status: (1) violation of the APA, based upon the May 2016

7 DACA violation; (2) violation of the APA, based upon the December 21, 2017 DACA

8 violation; (3) violation of the due process clause of the Fifth Amendment; and (4)

9 declaratory relief, seeking a declaration that the revocation of his DACA was unlawful.

10 The following provides background relevant to the parties’ arguments.

11

Plaintiff Obtains DACA Status

12

Plaintiff is a 24-year-old citizen of Mexico who was brought to the United States

13 by his family when he was eight years old. Plaintiff and his family entered the United

14 States without authorization from the Attorney General. Since his entry into the United

15 States, Plaintiff has lived in San Diego, California where he graduated from Altus

16 Charter High School in 2011. From 2011 to 2013, Plaintiff was unable to obtain lawful

17 employment due to his immigration status. Plaintiff has no criminal convictions and

18 had never been arrested until the 2016 detention in this case.

19

In June 2012, the Obama Administration created the DACA program which

20 allowed certain immigrants to avoid deportation and obtain work permits for a period

21 of two years, renewable upon good behavior. The contours of the DACA program

22 were set out in a June 15, 2012 Memorandum from former Secretary of the DHS, Janet

23 Napolitano, and which became known as the “Napolitano Memo.” The Napolitano

24 Memo provided the criteria to be satisfied before an individual could be considered for

25 an exercise of prosecutorial discretion. In broad brush, one qualified for DACA status

26 upon showing that the individual:

27 - entered the United States before his or her 16th birthday and prior to June 2007;

28 - lived continuously in the United States during the previous five years;

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1 - was currently in school, a high school graduate or was honorably discharged

2

from the military;

3 - was under the age of 31 as of June 15, 2012; and

4 - had not been convicted of a felony, significant misdemeanor, three or more

5

misdemeanors, nor posed a threat to national or public safety.

6 The program did not, and still does not, provide lawful status or a path to citizenship,

7 nor does it provide eligibility for federal welfare or student aid. (ECF 39-4, Exh. A).

8

In early 2013, satisfying all prerequisites for DACA status, Plaintiff applied for,

9 and was granted, DACA status. Having obtained DACA status, Plaintiff was

10 considered “lawfully present” in the country and granted an Employment Authorization

11 Document (“EAD”) and Social Security Number, which allowed Plaintiff to be

12 lawfully employed. The approval letter issued by USCIS informed Plaintiff that “in the

13 exercise of its prosecutorial discretion, [USCIS] has decided to defer action on” his

14 case for a period of two years. “Deferred action does not confer or alter any

15 immigration status.” (Id. Exh. I). In 2014, DHS renewed Plaintiff’s DACA status.

16

Upon receipt of DACA status, Plaintiff obtained full-time employment in the

17 airline food packaging industry and worked in that industry from 2013 until May 2016,

18 working the 7:00 p.m. to 4:00 a.m. shift. The hiring process involved interviews, drug

19 tests, background checks, and verification of employment authorization. Plaintiff used

20 a portion of his income to financially support his family. In May 2016, Plaintiff’s

21 DACA status was purportedly revoked by the USCIS in a Notice of Action. Plaintiff

22 informed his employer of the loss of DACA status and was, in turn, terminated by his

23 employer. Plaintiff’s employer did, however, inform Plaintiff he could re-apply for

24 employment once he obtained work authorization.

25

The First Revocation of Plaintiff’s DACA Status

26

On May 6, 2016, Plaintiff declares that an acquaintance named Adolfo asked

27 him, as he had in the past, to look after his dogs while he was out of town. Plaintiff

28 went to Adolfo’s home, took care of the dogs, and encountered two other individuals

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1 at the home. Plaintiff planned to have his sister pick him up from Adolfo’s house and

2 drive him to work by 7:00 p.m., the shift start time. At 4:00 p.m., a few hours after

3 arriving at Adolfo’s house, USCBP officers knocked on the door and asked Plaintiff

4 if they could search the premises. He informed the USCBP officers that they needed

5 a search warrant to enter the home as he did not believe he “had permission to let them

6 in because it was not my house.” (ECF 39-2, Gonzalez Decl. ¶11). The Officers did

7 not enter the home, but remained outside.

8

Around 5:00 p.m. a man not known to Plaintiff arrived, represented that he was

9 the owner of the house, and asked Plaintiff to exit his home. Outside the home,

10 Plaintiff was interviewed by USCBP officers and informed them that he possessed

11 DACA status and a valid EAD. According to Plaintiff, he was then arrested,

12 handcuffed, and spent the next two days being “aggressively” interrogated by two

13 officers. The officers asked him about “wrongdoing at the house that I did not

14 understand. I kept asking them for details and telling them, ‘I don’t understand why

15 I’m being detained.’” (Id. ¶18). “No one interrogated [Plaintiff] after those first two

16 or three days,” or after his release from custody.

17

After two or three days, Plaintiff was transferred to another facility. On June 1,

18 2016, Plaintiff was provided with a bond hearing before Immigration Judge

19 McSeveney, and released two days later on a $5,000 bond. Since his release, Plaintiff

20 has not had any law enforcement contacts.

21

To provide additional context to Plaintiff’s declaration, Defendants represent that

22 Plaintiff (and another individual arrested at the searched house) was arrested on May

23 6, 2016, for harboring illegal aliens in violation of 8 U.S.C. §1324(a)(1)(A)(iii) and

24 §1182(a)(6)(E)(i). Once the owner of the home arrived at Adolfo’s residence, the

25 owner consented to permit USCBP agents to search the residence (the renters were not

26 at home). Inside, USCBP discovered 12 illegal aliens (five from China and seven from

27 Mexico) hiding in the attic. The record of Deportable/Inadmissible Alien documents

28 indicate that three material witnesses identified Plaintiff as the individual who told

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1 them to hide in the attic.

2

On May 7, 2016, USCIS issued Plaintiff a Notice to Appear (“NTA”) charging

3 him as “inadmissible” to the United States (i.e. Plaintiff was deemed unlawfully

4 present in the country) pursuant to 8 U.S.C. §1182(a)(6)(A)(i). On May 23, 2016,

5 USCIS provided Plaintiff with a Notice of Action informing him that his DACA status

6 and employment authorization had been automatically terminated as of the date of the

7 NTA (May 7, 2016).

8

The DACA SOP

9

The DACA SOP issued by DHS sets forth the procedures for adjudicating

10 DACA applications, renewals, and the termination of participation in DACA. Among

11 other things, the DACA SOP provision at issue here provides for termination of DACA

12 status in the event the recipient is considered an enforcement priority by USCIS, after

13 consultation with ICE:

14

If after consulting with ICE, USCIS determines that exercising

prosecutorial discretion after removal has been deferred under DACA is

15

not consistent with the Department of Homeland Security's enforcement

priorities, and ICE does not plan to issue an NTA, the officer should refer

16

the case to HQSCOPS, through the normal chain of command, to

determine whether or not a NOIT is appropriate. If it is determined that

17

the case warrants final termination, the officer will issue DACA 603 -

Termination Notice [Enforcement Priority; Not Automatically

18

Terminated] from the Appendix I.

19 In addition, the DACA recipient must be provided with notice and an ability to contest

20 the NOIT before DACA status may be terminated.

21

Recent DACA Related Events

22

On September 5, 2017, Defendant DHS announced a plan to eliminate DACA,

23 beginning in March 2018. DACA recipients whose status would expire on or before

24 March 5, 2018, could have applied for a two-year renewal, but renewal applications 25 were due on or before October 5, 2017. (ECF 39-4, Exh. C).2

26

27

2 The court notes that two federal courts have enjoined the termination of the

DACA program. See Batalla-Vidal v. Nielsen, 16cv4756 (E.D.N.Y. February 13,

28 2018); Regent of University of Cal. v. DHS, 17cv05221 WHA (N.D. Cal. January 9,

2018).

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1

On February 20, 2017, Secretary of Homeland Security John Kelly issued a

2 memorandum entitled Enforcement of the Immigration Laws to Serve the National

3 Interest (the “Kelly Memo).” The Kelly Memo prioritizes enforcement against

4 individuals who “have been charged with any criminal offense that has not been

5 resolved” or allegedly “committed acts which constitute a chargeable criminal offense.”

6 The Kelly Memo also provides that DHS is authorized to commence enforcement

7 actions against removable aliens.

8

Unless otherwise directed, Department personnel may initiate

enforcement actions against removable aliens encountered during the

9

performance of their official duties and should act consistently with the

President's enforcement priorities identified in his Executive Order and

10

any further guidance issued pursuant to this memorandum. Department

personnel have full authority to arrest or apprehend an alien whom an

11

immigration officer has probable cause to believe is in violation of the

immigration laws. They also have full authority to initiate removal

12

proceedings against any alien who is subject to removal under any

provision of the INA, and to refer appropriate cases for criminal

13

prosecution.

14 (ECF 39-4, Exh. D at 4). The Memo also highlights that prosecutorial discretion

15 should be exercised on a case-by-case basis:

16

The exercise of prosecutorial discretion with regard to any alien who is

subject to arrest, criminal prosecution, or removal in accordance with law

17

shall be made on a case-by-case basis in consultation with the head of the

field office component, where appropriate, of CBP, ICE, or USCIS that

18

initiated or will initiate the enforcement action, regardless of which entity

actually files any applicable charging documents: CBP Chief Patrol

19

Agent, CBP Director of Field Operations, ICE Field Office Director, lCE

Special Agent-in-Charge, or the USCIS Field Office Director, Asylum

20

Office Director or Service Center Director.

21

In light of the numerous recent government issued memoranda concerning

22 modifications to immigration policies, laws, regulations and procedures, the court notes

23 that these memoranda preserve the DACA program. On June 15, 2017, Secretary Kelly

24 issued a memorandum rescinding the Deferred Action for Parents of Americans and

25 Lawful Permanent Residents (“DAPA”), but temporarily leaving the DACA program

26 in place. (ECF 39-4, Exh. I).

27

The Second Revocation of Plaintiff’s DACA Status

28

As noted above, following this court’s September 29, 2017 Order granting

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1 injunctive relief, Defendants reinstated Plaintiff’s DACA status and employment

2 authorization. Thereafter, on December 21, 2017, USCIS issued Plaintiff a NOIT,

3 informing him that his DACA status was being terminated. The NOIT informed

4 Plaintiff that USCIS had consulted with ICE and “determined that exercising

5 prosecutorial discretion to defer removal action in your case is not consistent with

6 DHS’s enforcement policies.” (ECF 39-6). In support of its decision, USCIS cited the

7 following DACA SOP to support its position:

8

If after consulting with ICE, USCIS determines that exercising

prosecutorial discretion after removal has been deferred under DACA is

9

not consistent with the Department of Homeland Security's enforcement

priorities, and ICE does not plan to issue an NTA, the officer should refer

10

the case to HQSCOPS, through the normal chain of command, to

determine whether or not a NOIT is appropriate. If it is determined that

11

the case warrants final termination, the officer will issue DACA 603 -

Termination Notice [Enforcement Priority; Not Automatically

12

Terminated] from the Appendix I.

13

The NOIT articulated Plaintiff’s involvement in “what appeared to be a

14 smuggling event” on May 6, 2017. The NOIT provided Plaintiff with notice that he

15 was an enforcement priority in light of his suspected criminal activity. The NOIT also

16 identified Plaintiff’s involvement in suspected alien smuggling, including statements

17 by several of the illegal immigrants that Plaintiff directed them to hide in the attic when

18 the CBP officers arrived on the site.

19

On December 14, 2017, Plaintiff filed a response to the NOIT. In the main, the

20 response represented that Plaintiff continued to satisfy all objectively verifiable DACA

21 criteria. Notably, Plaintiff denies any involvement in alien smuggling.

22

The Termination Notice

23

After receipt of Plaintiff’s response to the NOIT, on December 21, 2017, USCIS

24 issued a Termination Notice to Plaintiff. The Termination Notice informed Plaintiff

25 that USCIS consulted with ICE and determined that exercising prosecutorial discretion

26 was “not consistent with the DHS’s enforcement priorities.” (ECF 39-6). In reaching

27 the conclusion to revoke Plaintiff’s DACA status, the Termination Notice repeated and

28 expanded upon the “derogatory information” concerning the alien smuggling events

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1 of May 6, 2016. The Termination Notice referred to the I-213 forms (Record of

2 Deportable/Inadmissible Alien) which identified Plaintiff’s purported involvement in

3 alien smuggling activities. Plaintiff was also informed that he would have the

4 opportunity to contest his removal in Immigration Court pursuant to INA §240.

5

Pending Immigration Proceedings

6

On May 7, 2016, CBP provided Plaintiff with a Notice to Appear (“NTA”),

7 thereby commencing removal proceedings against him pursuant to INA §240. On

8 November 7, 2016, the immigration proceedings against Plaintiff were terminated.

9 However, “ICE once again confirmed it still views [Plaintiff] as an enforcement

10 priority and issued [Plaintiff] a new NTA on December 8, 2017.” (Pls. Exh. R).

11 Plaintiff had a hearing scheduled before an Immigration Judge calendared for March

12 20, 2018, but that date has been continued.

13

Procedural History of This Action

14

On September 29, 2017, the court granted Plaintiff’s Motion for Preliminary

15 Injunction and (1) vacated Defendants’ initial DACA revocation; (2) reinstated

16 Plaintiff’s employment authorization; (3) instructed Defendants to comply with the

17 DACA SOP, in the event Defendants were to elect to revoke Plaintiff’s DACA status;

18 and (4) ordered Defendants to accept Plaintiff’s DACA renewal application. The

19 dispute amongst the parties centers on whether the second revocation of Plaintiff’s

20 DACA status complied with the DACA SOP.

21

DISCUSSION

22 Legal Standards

23

Preliminary Injunction

24

To obtain preliminary or temporary injunctive relief, the party must satisfy one

25 of two tests: (1) a combination of probable success and the possibility of irreparable

26 harm, or (2) the party raises serious questions and the balance of hardship tips in its

27 favor. Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987).

28 "These two formulations represent two points on a sliding scale in which the required

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1 degree of irreparable harm increases as the probability of success decreases." Id.

2 Under both formulations, however, the party must demonstrate a "fair chance of

3 success on the merits" and a "significant threat of irreparable injury." Id; Miller v.

4 California Pac. Med. Ctr., 19 F.3d 449, 456 (9th Cir. 1994 (en banc). The court also

5 considers the public interest in the issues raised by the parties. Winter v. NRDC, Inc.,

6 555 U.S. 7, 20 (2008).

7

Review under the APA

8

Under the APA, “[a] person suffering legal wrong because of agency action, or

9 adversely affected or aggrieved by agency action within the meaning of a relevant

10 statute, is entitled to judicial review.” 5 U.S.C. §702. The APA further states

11 “[a]gency action made reviewable by statute and final agency action for which there

12 is no other adequate remedy in a court are subject to judicial review.” Id. § 704.

13 Section 706 instructs the court reviewing agency action to “decide all relevant

14 questions of law, interpret constitutional and statutory provisions, and determine the

15 meaning or applicability of the terms of an agency action.” Not only shall the

16 reviewing court compel agency action unlawfully withheld but shall also “hold

17 unlawful and set aside agency action, findings, and conclusions found to be – (A)

18 arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

19 Id. §§706(1) and (2)(A).

20

Motion to Dismiss

21

Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in

22 "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir.

23 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a

24 "cognizable legal theory" or sufficient facts to support a cognizable legal theory.

25 Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Courts should

26 dismiss a complaint for failure to state a claim when the factual allegations are

27 insufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp.

28 v. Twombly, 550 U.S. 544, 555 (2007) (the complaint’s allegations must “plausibly

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1 suggest[]” that the pleader is entitled to relief); Ashcroft v. Iqbal, 556 U.S. 662 (2009)

2 (under Rule 8(a), well-pleaded facts must do more than permit the court to infer the

3 mere possibility of misconduct). “The plausibility standard is not akin to a ‘probability

4 requirement,’ but it asks for more than a sheer possibility that a defendant has acted

5 unlawfully.” Id. at 678. Thus, “threadbare recitals of the elements of a cause of action,

6 supported by mere conclusory statements, do not suffice.” Id. The defect must appear

7 on the face of the complaint itself. Thus, courts may not consider extraneous material

8 in testing its legal adequacy. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th

9 Cir. 1991). The courts may, however, consider material properly submitted as part of

10 the complaint. Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1555

11 n.19 (9th Cir. 1989).

12

Finally, courts must construe the complaint in the light most favorable to the

13 plaintiff. Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116

14 S. Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in

15 the complaint, as well as reasonable inferences to be drawn from them. Holden v.

16 Hagopian, 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of

17 law and unwarranted inferences are insufficient to defeat a Rule 12(b)(6) motion. In

18 Re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).

19 The APA Claim

20

The determinative issue raised in all three pending motions is whether the second

21 DACA revocation complied with the DACA SOP. In its September 29, 2017 Order,

22 the court instructed Defendants to “fully comply with the DACA SOP should

23 Defendants elect to reconsider Plaintiff’s DACA status.” (ECF 12; Order at p.13:27-

24 28). Defendants then issued a new NOIT to Plaintiff, afforded him an opportunity to

25 respond, considered Plaintiff’s response, and terminated Plaintiff’s DACA status as of

26 December 22, 2017, subject to further order of this court. Defendants represent that

27 the record demonstrates they complied with the provisions of the DACA SOP such that

28 the agencies’ conduct was neither arbitrary, capricious, nor a violation of law. Plaintiff

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1 takes a contrary view.

2

Defendants assert that they fully complied with the following DACA SOP in

3 revoking Plaintiff’s DACA status a second time:

4

If after consulting with ICE, USCIS determines that exercising

prosecutorial discretion after removal has been deferred under DACA is

5

not consistent with the Department of Homeland Security's enforcement

priorities, and ICE does not plan to issue an NTA, the officer should refer

6

the case to HQSCOPS, through the normal chain of command, to

determine whether or not a NOIT is appropriate. If it is determined that

7

the case warrants final termination, the officer will issue DACA 603 -

Termination Notice [Enforcement Priority; Not Automatically

8

Terminated] from the Appendix I.

9

Defendants make a substantial showing that they complied with this DACA

10 SOP. The NOIT identifies the above provision of the DACA SOP as the ground for

11 terminating Plaintiff’s DACA status, and represents that USCIS consulted with ICE

12 and determined that “exercising prosecutorial discretion to defer removal action in your

13 case is not consistent with DHS’s enforcement policies.” (ECF at 39-6). The basis for

14 Defendants’ argument that Plaintiff is an “enforcement priority” arises from Plaintiff’s

15 purported involvement with alien smuggling on May 6, 2016.

16

Plaintiff challenges and seeks to limit the term “enforcement priority,” as applied

17 to DACA recipients, to mean “a disqualifying criminal conviction, a public safety

18 concern finding, a national security concern finding or an EPS (Egregious Public

19 Safety) finding.” (Reply at p.7:20-23). In other words, because Plaintiff has not been

20 convicted of a crime, he contends that he is not an enforcement priority and, therefore,

21 he has been wrongfully dispossessed of his DACA status. Further, Plaintiff argues that

22 he is entitled to retain his “low enforcement priority” status under DACA. This

23 argument is unpersuasive.

24

While DACA expressly identifies that DACA recipients are considered low

25 enforcement priority, the DACA SOP identifies several ways that a DACA recipient

26 loses that protected status. Not only does the DACA SOP identify that a DACA

27 recipient loses DACA status once the recipient becomes an enforcement priority, but

28 the Kelly Memo expressly identifies that alien individuals who “have committed acts

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1 which constitute a chargeable criminal offense” are enforcement priorities. (ECF 39-4,

2 Exh.D at p. 31).3 Furthermore, the November 7, 2011 USCIS Notice to Appear

3 guidelines identify that an alien’s alleged role in alien smuggling (a violation of INA

4 §§101(a)(43)(N) and (O))is one of the offenses that triggers the characterization of an

5 alien as a “top immigration enforcement priority,” even without a conviction. (ECF 39-

6 4 at 61-62).

7

The arbitrary and capricious standard of 5 U.S.C. §706(2)(A) is a narrow one.

8 Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 418 U.S. 281, 285

9 (1974). The court’s role under the APA is to determine whether the agency considered

10 all relevant factors and whether there has been a clear error of judgment. “Although

11 this inquiry into the facts is to be searching and careful, the ultimate standard of review

12 is a narrow one. The court is not empowered to substitute its judgment for that of the

13 agency.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971). The

14 agency must articulate a “rational connection between the facts found and the choice

15 made.” Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962).

16

Here, the court concludes that Defendants considered all relevant factors in

17 determining that Plaintiff was an enforcement priority within the meaning of the

18 DACA SOP and Kelly Memo. The record before the court reveals that relevant

19 agencies (USCIS, ICE, and CBP) consulted with each other and determined that

20 Plaintiff committed acts which constitute a chargeable criminal offense. Defendants

21 determined that several of the material witness aliens detained on May 6, 2016,

22 identified Plaintiff as one of the individuals actively engaged in human trafficking

23 conduct. The Termination Notice rationally articulates Plaintiff’s perceived

24 involvement in human trafficking, in violation of relevant statutes and regulations, and

25 therefore, supports Defendants’ determination that Plaintiff engaged in conduct

26 3 While the government does not rely on the Kelly Memo to buttress its decision,
27 the Kelly Memo is instructive in that it expressly instructs that DHS “no longer will exempt classes or categories of removable aliens from potential enforcement,” and
28 highlights that ICE, CBP, and USCIS have the discretion “to prioritize enforcement activities.” Id.

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1 constituting a chargeable criminal offense. See Judulang v, Holder, 562 U.S. 42, 52-53

2 (2011) (an agency must exercise reasoned decision-making).

3

The DACA SOP, the Kelly Memo, and the INA provide a clear indication that

4 the Defendant agencies possess substantial discretion to determine whether the

5 revocation of an individual’s DACA status is consistent with DHS’s enforcement

6 priorities. The DACA program specifically provides that ICE and USCIS possess the

7 discretion to determine whether the continued exercise of prosecutorial discretion is

8 consistent with DHS’s enforcement priorities in any particular case. (ECF 39-4 at 81).

9 The INA also provides that “[t]he Attorney General shall be charged with the

10 administration and enforcement” of the statute and that the “determination and ruling

11 by the Attorney General with respect to all questions of law shall be controlling.” 8

12 U.S.C. § 1103(a)(1). The court notes that some deference is due Defendants’

13 interpretations and determinations under the circumstances of this case, particularly

14 where agency action is committed to agency discretion by law. See 5 U.S.C. §701(a);

15 8 U.S.C. §1252(g). Judicial deference to the Executive Branch is especially

16 appropriate in the immigration context. See I.N.S. v. Aguirre-Aguirre, 526 U.S. 415,

17 425 (1999). Here, the court cannot conclude that Defendants violated the APA by

18 determining that Plaintiff’s involvement in alien smuggling made him an enforcement

19 priority for purposes of the DACA program. Defendants articulated a rational

20 connection between Plaintiff’s involvement with alien smuggling and the decision to

21 revoke Plaintiff’s DACA status.

22

Additionally, Plaintiff makes the argument that the allegations in Plaintiff’s

23 arrest record have yet to be tested in a competent forum. However, this is not the

24 appropriate forum to test the veracity of Defendants’ underlying assertions that Plaintiff

25 engaged in conduct that constituted a violation of the immigration laws. Pursuant to

26 8 U.S.C. §1252(g) and 5 U.S.C. §701(a)(2), this court lacks jurisdiction to entertain a

27 determination on the merits of Plaintiff’s alleged criminal conduct. See Rodriguez v.

28 Sessions, 677 Fed.Appx. 447, ––––, 2017 WL 695192, at *1 (9th Cir. 2017) (“We lack

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1 jurisdiction to consider [the plaintiff's] eligibility for Deferred Action for Childhood

2 Arrivals.”); Vasquez v. Aviles, 639 Fed.Appx. 898, 901 (3rd Cir. 2016) (“[Section

3 1252(g) ] deprives all courts of jurisdiction to review a denial of DACA relief because

4 that decision involves the exercise of prosecutorial discretion not to grant a deferred

5 action.”); Fabian-Lopez v. Holder, 540 Fed.Appx. 760, 761 n.2 (9th Cir. 2013)

6 (determining that Section 1252(g) deprived the court of jurisdiction to consider the

7 plaintiff's DACA eligibility). Plaintiff may obtain review of this claim by filing a

8 petition for review with the Ninth Circuit. See 8 U.S.C. §1252(a)(5).

9

In the prior Order, the court concluded that Defendants violated the APA when

10 they failed to comply with the DACA SOP. The court did not reach, nor does it now,

11 the merits of Plaintiff’s underlying conduct on May 6, 2016. Defendants have made

12 a sufficient showing that they followed the DACA SOP, consulted with the appropriate

13 agencies, issued a DACA compliant Notice of Termination, provided Plaintiff with the

14 opportunity to respond to the Notice of Termination, considered Plaintiff’s response,

15 and provided Plaintiff a Termination Notice explaining the reasons for the termination

16 of his DACA status. Under APA review, the court cannot conclude that such agency

17 action was arbitrary, capricious, or a violation of law under 5 U.S.C. §706(2)(A)

18 because Defendants complied with the DACA SOP.

19 The Constitutional Claim

20

The bedrock principle underlying procedural due process is clear: “Parties whose

21 rights are to be affected are entitled to be heard; and in order that they may enjoy that

22 right they must be notified.” Baldwin v. Hale, 1 Wall 223, 233 (1863). Equally

23 fundamental to the right to notice is the opportunity to be heard at a meaningful time

24 in a meaningful manner. Armstrong v. Manzo, 380 U.S. 545, 552 (1965); Mathews v.

25 Eldridge, 424 U.S. 319, 332 (1976). When protected liberty or property interests are

26 implicated, the individual is entitled to “some kind of prior hearing” before the

27 termination of such interests. Board of Regent of State Colleges v. Roth, 408 U.S. 564,

28 (1972).

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1

The court is unpersuaded by Defendants’ argument that DACA is purely

2 discretionary such that recipients of DACA possess no liberty, property, or other

3 constitutional interest. The Napolitano Memo provides five criteria that must be

4 satisfied before an illegal immigrant qualifies to obtain DACA status (entered the

5 United States before their 16th birthday and prior to June 2007; lived continuously in

6 the United States during the previous five years; was currently in school, a high school

7 graduate or was honorably discharged from the military; was under the age of 31 as of

8 June 15, 2012; and not have been convicted of a felony, significant misdemeanor, three

9 or more misdemeanors, nor posed a threat to national or public safety). Once these

10 objective and non-discretionary criteria are satisfied, the DACA recipient enjoys

11 significant liberty and property interests, including the right to obtain lawful

12 employment authorization and the right to be considered lawfully present in the United

13 States.

14

In light of the liberty and property interests at stake, the court concludes that

15 Plaintiff, under the Due Process Clause of the Fifth Amendment, is entitled to notice

16 of a DACA termination hearing and an opportunity to meaningfully respond to the

17 notice of DACA termination before DACA status is revoked. These are the same

18 procedural due process protections that DACA specifically provides for and which

19 were afforded to Plaintiff. Accordingly, Plaintiff cannot prevail on his Fifth

20 Amendment claims.4

21 Motion to Dissolve Preliminary Injunction

22

The Preliminary Injunction entered on September 29, 2017: (1) vacated

23 Defendants’ initial DACA revocation; (2) reinstated Plaintiff’s employment

24 authorization; (3) instructed Defendants to comply with the DACA SOP, in the event

25

26 4 The court does not accept Plaintiff’s contention that procedural due process
27 requires something akin to a formal judicial proceeding wherein Plaintiff has the opportunity to present evidence and cross-examine witnesses. The court also notes
28 Plaintiff may seek judicial review of his claims by filing a petition for review pursuant to 8 U.S.C. §1252.

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1 Defendants were to elect to revoke Plaintiff’s DACA status; and (4) ordered

2 Defendants to accept Plaintiff’s DACA renewal application. For the above stated

3 reasons, Defendants fully complied with the injunction, including the manner in which

4 they revoked Plaintiff’s DACA status a second time. Accordingly, the court grants the

5 motion to dissolve the September 29, 2017 preliminary injunction.

6 Motion for Preliminary Injunction

7

In light of the court’s conclusion that Defendants did not violate the APA by

8 revoking Plaintiff’s DACA status a second time, Plaintiff fails to make the requisite

9 showing of a likelihood of success on the merits. Accordingly, the court denies

10 Plaintiff’s motion for a preliminarily injunction.

11 Motion to Dismiss

12

Defendants move to dismiss all four claims alleged in the FAC. The first two

13 claims for violation of APA arise from the May 2016 and December 2017 revocations

14 of Plaintiff’s DACA status, respectively. As Plaintiff has received a remedy for the

15 May 2016 violation of the DACA SOP, this claim is now moot. Dismissal is

16 appropriate on the second cause of action because the second DACA revocation, for

17 the above stated reasons, did not violate the APA. The third claim for violation of the

18 Fifth Amendment also fails because Plaintiff received the Notice of Intent to

19 Terminate, an opportunity to respond, and an informed Notice of Termination. For the

20 above stated reasons, nothing more is required by the Fifth Amendment. The fourth

21 claim for declaratory relief, for the above stated reasons is moot. Accordingly, the

22 court grants the motion to dismiss the action with prejudice.

23

In sum, the court denies Plaintiff’s motion for a preliminary injunction, grants

24 Defendants’ motion to dissolve the September 29, 2018 preliminary injunction, and

25 grants Defendants motion to dismiss the FAC without leave to amend. The Clerk of

26 Court is instructed to close the file.

27 DATED: April 12, 2018

28
Hon. Jeffrey T. Miller United States District Judge

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

10 ALBERTO LUCIANO GONZALEZ CASE NO. 17cv1840 JM(NLS)

TORRES, 11

ORDER DENYING MOTION FOR

12

v.

Plaintiff, RECONSIDERATION

13 U.S. DEPARTMENT OF HOMELAND SECURITY; U.S.
14 CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION
15 AND CUSTOMS ENFORCEMENT; and U.S. CUSTOMS AND BORDER
16 PROTECTION,

17

Defendants.

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19

Plaintiff Alberto Luciano Gonzalez Torres moves for reconsideration of this

20 court’s April 12, 2018 order denying Plaintiff’s motion for preliminary injunction,

21 granting Defendants’ motion to dissolve the original preliminary injunction, and

22 granting Defendants’ motion to dismiss the First Amended Complaint without leave

23 to amend (the “Order”).1 Defendants U.S. Department of Homeland Security (“DHS”),

24 U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs

25 Enforcement (“ICE”), and U.S. Customs and Border Protection (“CBP”) oppose the

26 motion. Pursuant to Local Rule 7.1(d)(1), the court finds the matters presented

27 appropriate for resolution without oral argument. For the reasons set forth below, the

28 1The court incorporates the Order herein.

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Case 3:17-cv-01840-JM-NLS Document 63 Filed 07/20/18 PageID.1563 Page 2 of 4

1 court denies the motion for reconsideration.

2

DISCUSSION

3

Reconsideration is generally appropriate “if the district court (1) is presented

4 with newly discovered evidence, (2) committed clear error or the initial decision was

5 manifestly unjust, or (3) if there is an intervening change in controlling law. . . . There

6 may also be other, highly unusual circumstances warranting reconsideration." School

7 Dist. No. 1J, Multnomah County, Oregon v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.

8 1993) (citations omitted); Fed.R.Civ.P. 60(b).

9

Plaintiff raises several arguments previously addressed in the Order, and only

10 briefly discussed herein. In the main, Plaintiff contends that the court committed clear

11 error by concluding, under APA review, that Defendants’ challenged conduct was

12 neither arbitrary, capricious nor contrary to law. Defendants complied with DACA in

13 revoking Plaintiff’s DACA status by concluding, in their discretion, that he constituted

14 an enforcement priority based upon his involvement in alien smuggling (i.e. conduct

15 that violated 8 U.S.C. §1324(a)(1)(A)(iii) and §1182(a)(6)(E)(i)).2 Plaintiff seeks to

16 limit Defendants’ ability to exercise their discretion in determining DHS’s enforcement

17 priority to only those situations where the DACA recipient possesses a disqualifying

18 criminal conviction, a public safety concern finding, a national security concern finding

19 or an EPS (Egregious Public Safety) finding. For the reasons set forth in the Order,

20 the court rejects this argument.3

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22

2 The court again highlights that the veracity or falsity of Plaintiff’s involvement

in human trafficking is not an issue before the court. Defendants’ proffer of proof

23 supports their conclusion that Plaintiff engaged in conduct that violated 8 U.S.C.

§1324(a)(1)(A)(iii) and §1182(a)(6)(E)(i).

24

3 The court further notes that Congress authorizes the Attorney General to

25 exercise broad discretion in the immigration context, see I.N.S. v. Aguirre-Aguirre, 526

U.S. 415, 425 (1999), including the determination of deportability based upon

26 circumstances not involving a criminal conviction, an EPS finding, a public safety

threat determination, or a national security threat determination. For example, those

27 circumstances may include the change in immigration status, involvement in alien

smuggling, marriage fraud, drug abuse, etc. See 8 U.S.C. §1227. Contrary to

28 Plaintiff’s arguments, the so-called Kelly Memo neither expands nor limits DHS’s

authority to exercise its discretion in determining enforcement priorities under the INA

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1

Plaintiff also argues that the November 17, 2017 NOIT, (ECF 39-6 at 9-10),

2 violated his due process rights by failing to provide him with adequate notice of the

3 “events or facts [DHS] w[as] relying on” in revoking his DACA status. Plaintiff

4 correctly asserts that the NOIT does not directly inform him of the basis and

5 circumstances for revocation of his DACA status. However, the NOIT made express

6 reference to this action and the first revocation of his DACA status. In any event, by

7 means of the on-going administrative proceedings and this action, Plaintiff does not

8 dispute that he had actual notice of the underlying basis and circumstances for

9 terminating his DACA status. Similarly, there is no showing that he suffered any

10 prejudice by such omission.

11

Finally, Plaintiff contends that his substantive due process rights were violated

12 because of the “determination of criminality made by a non-neutral arbiter.” (Motion

13 at p.25:6-7). Notably, Plaintiff cites scant authority to support this conclusion.

14

In every case in which a plaintiff challenges the actions of an executive

official under the substantive component of the Due Process Clause, he

15

must demonstrate both that the official's conduct was

conscience-shocking, [], and that the official violated one or more

16

fundamental rights that are “deeply rooted in this Nation's history and

tradition, and implicit in the concept of ordered liberty, such that neither

17

liberty nor justice would exist if they were sacrificed.”

18 Moran v. Clarke, 296 F.3d 638, 651 (8th Cir. 2002) (quoting Washington v.

19 Glucksberg, 521 U.S. 702, 720–21 (1997)). Here, there is no indication that

20 Defendants engaged in any conscience-shocking or clearly arbitrary and unreasonable

21 conduct, or that factual determinations by duly constituted administrative bodies made

22 in the ordinary and normal course of an administrative proceeding violate the concept

23 of “ordered liberty.” Accordingly, Plaintiff cannot prevail on his substantive due

24 process claim.

25 / / /

26 / / /

27 / / /

28 and DACA.

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In sum, the motion for reconsideration is denied.

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IT IS SO ORDERED.

3 DATED: July 20, 2018

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All parties

Hon. Jeffrey T. Miller United States District Judge

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UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

AUG 3 2018

ALBERTO LUCIANO GONZALEZ TORRES,
Plaintiff-Appellant,
v.

No. 18-56037

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

D.C. No. 3:17-cv-01840-JM-NLS Southern District of California, San Diego

U.S. DEPARTMENT OF HOMELAND SECURITY; et al.,

ORDER

Defendants-Appellees.

Based on a review of the district court docket, this does not appear to be a preliminary injunction appeal.
Accordingly, the following briefing schedule shall govern this appeal: The mediation questionnaire is due August 8, 2018. The transcript shall be ordered no later than August 30, 2018. The transcript shall be filed by the court reporter no later than October 1, 2018. The opening brief and excerpts of record are due

KAM/MOATT

Case 3:17-cv-01840-JM-NLS Document 66 Filed 08/03/18 PageID.1573 Page 2 of 2
November 8, 2018; the answering brief is due December 10, 2018; and the optional reply brief is due within 21 days after service of the answering brief.
FOR THE COURT: MOLLY C. DWYER CLERK OF COURT By: Katherine Milton Deputy Clerk Ninth Circuit Rule 27-7

KAM/MOATT

2

18-56037