Case 1:17-cv-01670-MHC Document 8 Filed 05/18/17 Page 1 of 28

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

JESSICA M. COLOTL COYOTL,

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Plaintiff,

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vs.

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JOHN F. KELLY, Secretary,

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Department of Homeland Security;

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MARK J. HAZUDA, Director, Nebraska )

Service Center, U.S. Citizenship and )

Immigration Services; JAMES

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McCAMENT, Acting Director, U.S. )

Citizenship and Immigration Services; )

THOMAS D. HOMAN, Acting Director, )

U.S. Immigration and Customs

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Enforcement; SEAN W. GALLAGHER, )

Atlanta Field Office Director, U.S.

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Immigration and Customs Enforcement. )

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Defendants.

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Case No. 1:17-cv-1670-MHC
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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INTRODUCTION 1. Plaintiff Jessica Mayeli Colotl Coyotl (“Plaintiff” or “Ms. Colotl”), originally from Mexico, is a resident of Georgia who was first brought to this country as a child nearly eighteen years ago. For the past seven years, federal immigration authorities have repeatedly granted her permission to live and work in this country, most recently pursuant to the Deferred Action for Childhood Arrivals (“DACA”) program. However, Defendants have unlawfully stripped Ms. Colotl of her deferred action status without notice, without process, and without a reasoned explanation for their actions. 2. Ms. Colotl is an extraordinary young woman who has worked hard to pursue an education and has made substantial contributions to her community. She graduated with honors from Lakeside High School in DeKalb County, Georgia, and earned a Bachelor’s degree from Kennesaw State University in Kennesaw, Georgia, where she was named to the President’s List based on her academic performance, and was a founding member of her college’s chapter of the Lambda Theta Alpha Sorority. Since graduating from college in 2011, she has worked as a paralegal and dreams of going to law school and becoming a lawyer. Ms. Colotl is widely recognized as an outstanding and remarkable young role model who has devoted herself to community service and activism.
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3. Created in June 2012, the DACA program was designed to provide a lifeline to young undocumented immigrants, like Ms. Colotl, who came to the United States as children.
4. As former President of the United States Barack Obama explained when the DACA program was first announced, these young immigrants “are Americans in their heart, in their minds, in every single way but one: on paper.”1 He recognized that “it makes no sense” to deport “[t]hese [] young people who study in our schools , . . . play in our neighborhoods, [are] friends with our kids, [and] pledge allegiance to our flag.”2
5. Recognizing that the government must prioritize its limited law enforcement resources, the Department of Homeland Security (“DHS”) created the DACA program to allow young undocumented immigrants who satisfy certain age, educational, and other requirements to remain in the United States without fear of deportation for a specified, renewable two-year period, and thus continue to contribute to their communities.
6. Like all DACA recipients, Ms. Colotl has passed a criminal background check and has been found—in her case twice—to have satisfied each of the

1 President Barack Obama, Remarks on Immigration Reform, 2012 DAILY COMP. PRES. DOC. 1 (June 15, 2012), available at http://www.gpo.gov/fdsys/pkg/DCPD-201200483/pdf/DCPD-201200483.pdf.

2

Id.

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applicable eligibility criteria for DACA—in 2013, when she initially applied, and again in 2015, when DHS granted her first renewal request.
7. The current administration has continued the DACA program. Recently both President Donald Trump and DHS Secretary John Kelly have reaffirmed DHS’ policy not to prioritize young immigrants granted DACA for immigration enforcement. President Trump has described DACA recipients as “absolutely incredible kids,” explaining that it would be “very, very rough” to deport them, since they were brought to the United States as children.3
8. Because of the DACA program, Ms. Colotl and hundreds of thousands of young immigrants like her have been able to complete their educations, begin careers, and live meaningful and productive lives in the United States.
9. Yet notwithstanding the President’s and DHS Secretary’s assurances— and despite the fact that Ms. Colotl’s circumstances have not changed during the four years she has been a DACA recipient—DHS recently terminated Ms. Colotl’s DACA and denied her application for renewal on the grounds that she does not meet the program’s eligibility criteria.
3 Nolan D. McCaskill, Trump says he will treat Dreamers ‘with heart’, Politico, Feb. 16, 2017, http://www.politico.com/story/2017/02/trump-pressconference-dreamers-heart-235103.
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10. Contrary to DHS’ new position, Ms. Colotl remains eligible for DACA, as she continues to satisfy the program’s education and residency requirements and she has no disqualifying criminal history.
11. Ms. Colotl has received no meaningful explanation from DHS as to why she is suddenly disqualified when her circumstances have not changed. Nor has DHS provided Ms. Colotl with any opportunity to contest the government’s actions, in violation of its own procedures.
12. The revocation and nonrenewal of Ms. Colotl’s DACA have deprived her of her ability to work and the assurance that she will be permitted to remain in the country she knows as her home.
13. The government’s decisions to terminate Ms. Colotl’s DACA and deny her renewal application, without meaningful explanation or process, and in violation of the program’s enumerated eligibility criteria, violates the Administration Procedure Act, 5 U.S.C. §§ 553, 706, et al., as well as the Due Process Clause of the Fifth Amendment to the U.S. Constitution. Ms. Colotl therefore asks that the Court: declare the government’s actions unlawful; order that the government re-adjudicate her application for DACA under the program’s existing eligibility criteria using a fair procedure; and, comply with its own rules and restore her DACA, pending the outcome of the government’s decision.
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JURISDICTION AND VENUE 14. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343 over Plaintiff’s claims under the U.S. Constitution and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. The Court has authority to grant declaratory relief under 28 U.S.C. §§ 2201 and 2202. 15. Venue is proper in this Court under 28 U.S.C. § 1391(e) because Defendants John F. Kelly, James McCament, Mark J. Hazuda, Thomas D. Homan, and Sean W. Gallagher are Officers of the United States acting in their official capacities, and DHS, U.S. Immigration and Customs Enforcement (“ICE”), and the United States Citizenship and Immigration Services (“USCIS”), are agencies of the United States. Additionally, Plaintiff resides in this judicial district.
EXHAUSTION 16. There are no additional administrative remedies available for Plaintiff to exhaust. There is no administrative appeal of USCIS’ decision that Plaintiff is no longer eligible for DACA.
PARTIES 17. Ms. Colotl, a resident of Georgia, is a 28-year-old native and citizen of Mexico who has lived in the United States since she was first brought here in 1999, when she was 11 years old. From May 2010 to May 2017—for the past seven
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years—federal immigration authorities have granted her permission to live and work in the United States in the form of deferred action.
18. Defendant John F. Kelly is sued in his official capacity as Secretary of DHS. As DHS Secretary, Mr. Kelly is responsible for the administration and enforcement of the immigration laws of the United States.
19. Defendant James McCament is sued in his official capacity as Acting Director of USCIS. As Director of USCIS, Defendant McCament is responsible for the overall administration of USCIS and the implementation of the immigration laws of the United States.
20. Defendant Mark J. Hazuda is sued in his official capacity as Director of the USCIS Nebraska Service Center. As Director of the Nebraska Service Center, Mr. Hazuda is responsible for the overall administration of the USCIS Nebraska Service Center and the decisions that it issues.
21. Defendant Thomas D. Homan is sued in his official capacity as Acting Director of ICE. In this position, Mr. Homan is responsible for the overall administration of ICE and operation of ICE’s immigration enforcement and detention activities.
22. Defendant Sean W. Gallagher is sued in his official capacity as Director of the ICE Field Office in Atlanta, Georgia. As Field Office Director, Mr.
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Gallagher is responsible for the administration of the Atlanta Field Office and operation of the office’s immigration enforcement and detention activities.
BACKGROUND Deferred Action and the DACA Program
23. Deferred action is a longstanding form of administrative action by which the federal Executive Branch decides, for humanitarian or other reasons, to refrain from seeking a noncitizen’s removal and to authorize her continued presence in the United States. A grant of deferred action indicates that the noncitizen’s presence in the United States is known to the federal government, and that the federal government has made a determination, based on a review of the individual’s case, to allow her to remain in the United States for a specified period. Recipients of deferred action are also eligible to receive employment authorization under federal law upon a showing of economic necessity. See 8 C.F.R. § 274a.12(c)(14). For decades, the federal government has used deferred action to authorize numerous groups of immigrants to live and work in the United States for a temporary period.
24. On June 15, 2012, the former DHS Secretary announced a new deferred action program—the DACA program—for young immigrants who came to the United States as children and are present in the country without a formal immigration status. The DACA program was established to allow these young
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immigrants to remain in the United States without fear of deportation for a specified, renewable period.
25. In announcing the DACA program, the DHS Secretary explained that “[o]ur Nation’s immigration laws . . . are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways.”4
26. President Obama elaborated that the federal government decided to make deferred action available to young immigrants because “it makes no sense . . . to expel these young people who want to staff our labs or start new businesses or defend our country.”5 These individuals are “talented young people, who, for all intents and purposes, are Americans—they’ve been raised as Americans, understand themselves to be part of this country.” The DACA program is intended
4 Memorandum from Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (“Napolitano Memo”) 2 (June 15, 2012), available at http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretionindividuals-who-came-to-us-as-children.pdf. 5 President Barack Obama, Remarks on Immigration Reform, 2012 DAILY COMP. PRES. DOC. 1 (June 15, 2012), available at http://www.gpo.gov/fdsys/pkg/DCPD-201200483/pdf/DCPD-201200483.pdf.
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“to lift the shadow of deportation from these young people” and “to mend our Nation’s immigration policy to make it more fair, more efficient, and more just.”6
27. Under DACA, young immigrants who entered the United States as children and who meet educational and residency requirements may apply for deferred action. The DHS Secretary’s guidance provides that noncitizens are eligible for DACA if they:
 were under the age of 31 as of June 15, 2012;  came to the United States before reaching their 16th birthday;  have continuously resided in the United States since June 15, 2007, up
to the present time;  were physically present in the United States on June 15, 2012, and at
the time of making the request for consideration of deferred action with USCIS;  entered without inspection before June 15, 2012, or had an expired lawful immigration status as of June 15, 2012;  are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a GED certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;

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Id.

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 have not been convicted of a felony, significant misdemeanor,7 or
three or more other misdemeanors; and,  do not otherwise pose a threat to national security or public safety.8
28. If a DACA applicant satisfies these eligibility criteria, the agency may
grant him or her deferred action on a case-by-case basis. The eligibility criteria
themselves are not discretionary.
29. The DACA application process includes extensive criminal background
checks.
30. Under the DACA program, deferred action is available for a period of
two years, subject to renewal, and applicants who are approved may obtain work authorization, and if such authorization is granted, a Social Security Number.9
Noncitizens granted work authorization are issued federal employment
authorization documents or EADs. A decision to grant or deny a deferred action
application or renewal is separate and independent from any removal proceedings 7 A significant misdemeanor is a conviction that meets the following criteria: an offense of “domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or . . . [a conviction] for which the individual was sentenced to time in custody of more than 90 days.” See USCIS, Consideration of Deferred Action for Childhood Arrivals Process, Frequently Asked Questions (May 14, 2017), available at https://www.uscis.gov/humanitarian/consideration-deferred-actionchildhood-arrivals-process/frequently-asked-questions. 8 Napolitano Memo at 2; USCIS, Consideration of Deferred Action for Childhood Arrivals Process, supra note 6. 9 See id.
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in immigration court to determine whether a noncitizen should be deported from the United States. Although noncitizens with DACA or other types of deferred action generally will not be placed in removal proceedings so long as the deferred action grant has not been terminated or revoked, the granting of deferred action has no formal impact on removal proceedings. A noncitizen who is in removal proceedings can apply for DACA separately and simultaneously.10 If that application is granted, the removal proceedings nevertheless continue unless the immigration judge takes action to administratively close or terminate the proceeding. Further, an immigration judge has no power to grant or deny deferred action, or to review or reverse USCIS’ decision to deny deferred action. President Trump’s Reaffirmation of the DACA Program
31. Since President Trump took office in January 2017, USCIS has continued to process and grant new DACA applications, and has also continued to grant renewals of DACA.
32. On February 20, 2017, the DHS Secretary, Defendant Kelly, issued a memorandum setting forth enforcement priorities that DHS would follow in its enforcement of the immigration laws.11 Although that memorandum rescinded
10 Napolitano Memo at 2. 11 See Memorandum from John Kelly, Enforcement of the Immigration Laws to Serve the National Interest 2 (Feb. 20, 2017), available at
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other existing guidance concerning immigration enforcement priorities, the memorandum expressly kept the DACA guidance in place.12 DHS also issued a “Q&A” document concerning this memorandum which states (at Question 22):
Q22: Do these memoranda affect recipients of Deferred Action for Childhood Arrivals (DACA)? A22: No.13 33. Consistent with his administration’s continuation of the DACA program, both before and after taking office, President Trump has made multiple statements indicating his view that undocumented immigrants who were brought here by their parents should not be targeted for removal. 34. For example, in an interview with TIME magazine in December 2016, President-elect Trump stated that he was “going to work something out” for undocumented immigrants who were brought to this country as children. He explained: “They got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful
https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-ofthe-Immigration-Laws-to-Serve-the-National-Interest.pdf. 12 See id. 13 See Q&A: DHS Implementation of the Executive Order on Enhancing Public Safety in the Interior of the United States, Feb. 21, 2017, https://www.dhs.gov/news/2017/02/21/qa-dhs-implementation-executive-orderenhancing-public-safety-interior-united-states.
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jobs.” President-elect Trump said that he will do something that will “make people happy and proud.”14
35. On the same day as his inauguration, January 20, 2017, President Trump
reportedly told Senator Richard J. Durbin, regarding the DACA program, that “we don’t want to hurt those kids.”15
36. When President Trump was asked, on January 25, 2017, whether young
immigrants who were brought here by their parents should be worried about
deportation, he responded, “They shouldn’t be very worried. They are here
illegally. They shouldn’t be very worried. I do have a big heart. We’re going to
take care of everybody. . . . Where you have great people that are here that have done a good job, they should be far less worried.”16
37. On April 21, 2017, an Associated Press reporter asked President Trump,
“that’s going to be the policy of your administration to allow the dreamers to
stay?,” using the term “dreamers” which is commonly used to refer to young
14 Michael Scherer, 2016 Person of the Year: Donald Trump, TIME Magazine, Dec. 7, 2016, available at http://time.com/time-person-of-the-year-2016-donaldtrump/. 15 Michael D. Shear & Julie Hirschfeld Davis, Trump’s Improvised Path to a Month of Executive Action, N.Y. Times, Jan. 21, 2017, available at https://www.nytimes.com/2017/01/21/us/politics/trump-presidency-executiveaction.html. 16 Transcript of Interview by David Muir with President Trump, ABC News, Jan. 25, 2017, http://abcnews.go.com/Politics/transcript-abc-news-anchor-davidmuir-interviews-president/story?id=45047602.
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undocumented immigrants who were brought here as children. President Trump’s response was unequivocal: “Yes. Yes. That’s our policy.” He elaborated: “The dreamers should rest easy. OK? I’ll give you that. The dreamers should rest easy.”17 Ms. Colotl’s Life in the United States
38. Jessica Colotl was born in Mexico and entered the United States without inspection in September 1999, when she was 11 years old. She has lived in the United States continuously since her arrival—indeed, this country is the only place she can call home.
39. Ms. Colotl attended public school in Georgia. She graduated from Lakeside High School in DeKalb County, Georgia, in May 2006 with a 3.8 GPA, having taken several advanced placement classes.
40. That fall, she enrolled in Kennesaw State University (“KSU”), majoring first in pre-med and eventually in political science. While at KSU, Ms. Colotl was named to the President’s List based on her academic performance. She was also actively involved in various student organizations, such as the Hispanic Scholarship Fund and the Mexican American Student Alliance. She was a founding member of the campus’ Epsilon Chapter of Lambda Theta Alpha
17 Transcript of AP Interview with President Trump, Associated Press, Apr. 23, 2017, https://apnews.com/c810d7de280a47e88848b0ac74690c83.
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sorority, an organization dedicated to the needs of Latinas and women. The sorority aims to develop strong women leaders, promote unity through charitable and educational programs, and engage in political, social, and cultural activities.
41. Ms. Colotl’s college professors have described her as an “outstanding” and “exemplary” person of “unblemished integrity.” They have commended her for displaying “determination,” “grace,” and “focus” in difficult circumstances. Ms. Colotl’s professors and sorority sisters have also recognized her for “contribut[ing] positively to” and “making [her] community a better place.”
42. Ms. Colotl graduated from KSU in May 2011 with a Bachelor’s degree in political science, with a legal studies concentration, and a minor in French.
43. Since graduating, she has worked as an administrative assistant, receptionist, legal assistant, and ultimately paralegal at Kuck Immigration Partners LLC. She aspires to attend law school and become an immigration lawyer.
44. Ms. Colotl also has continued to devote her time to community service. She volunteers for the Annual Latino Youth Leadership Conference, a yearly conference hosted by the Latin American Association that aims to motivate Latino youth to finish high school and go on to college. The director of that program has described Ms. Colotl as a “remarkable person” who is “honest, dependable,” and a “powerful role model” to students. For several years, Ms. Colotl has regularly
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donated blood platelets at the Northside Hospital in Atlanta, Georgia. She is also a member of Saint Patrick’s Catholic Church in Norcross, Georgia.
45. Ms. Colotl remains active in her sorority. She has raised funds for St. Jude Children’s Hospital—her sorority’s national philanthropic project—through the annual Saint Jude Walk. From 2015 to 2016, she served as her sorority’s Area Finance Coordinator, overseeing the funds for chapters at five separate universities in Georgia, as well as her sorority’s alumnae chapter. Ms. Colotl also helps mentor new sorority sisters.
46. For the past several years, Ms. Colotl has been a passionate advocate for immigration reform. For example, this past April, Ms. Colotl travelled to Washington D.C. to lobby her members of Congress for immigration reform. She has been a frequent speaker at campus and community events on her experiences with the immigration system and on immigrants’ rights issues. Currently Ms. Colotl is taking a class with the Georgia Association for Latino Elected Officials to develop her leadership skills and promote civil engagement within the Latino and other under-represented communities. Ms. Colotl’s Arrest in 2010 and Participation in a Pretrial Diversion Program
47. On March 29, 2010, while a senior in college months away from graduation, Ms. Colotl was pulled over by campus police for allegedly blocking
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traffic while waiting for a parking space. She was unable to produce a driver’s license.18
48. The next day, she was arrested on the charges of impeding the flow of traffic and driving without a license, and booked into the Cobb County jail. After a trial, a jury found her not guilty of impeding the flow of traffic, but guilty of driving without a license, a misdemeanor. She served a total of three days in jail.
49. Subsequently the Cobb County Sherriff additionally charged Ms. Colotl with allegedly making a false statement when she was booked into the county jail on the traffic violation charges. The felony charge stated that Ms. Colotl provided a false address during booking.
50. However, Ms. Colotl never made any false statement during the booking process. When she was being booked, a Cobb County Sheriff’s Department officer recorded address information contained on a vehicle insurance card that the officer took from Ms. Colotl’s purse. The officer never asked Ms. Colotl to provide any address information, and she never made any statement to the officer regarding her address.
18 Ms. Colotl was not eligible to obtain a driver’s license at that time in Georgia due to her lack of a formal immigration status. However, routine activities such as attending school and church were effectively impossible without the ability to drive in Georgia, given the limited public transportation infrastructure.
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51. The address the officer recorded was, in fact, her permanent home address while she attended school. However, Ms. Colotl’s parents subsequently moved from the address in April 2010.
52. In February 2011, Ms. Colotl was indicted on the false information charge. Ms. Colotl entered a plea of not guilty. The District Attorney then exercised his discretion to offer Ms. Colotl the option of entering into his office’s pretrial diversion program as an alternative to prosecution, which would result in dismissal of the charge. Although the charge was not justified, Ms. Colotl decided that, rather than undertaking the risk and expense of going to trial again, she would resolve the case by agreeing to perform community service. Ms. Colotl was informed that she would not be required to enter a guilty plea in order to participate. Although a form that Ms. Colotl was required to sign as part of the diversion program contained a boilerplate statement acknowledging that the participant “understand[s] that by [her] participation in the program [she is] admitting guilt,” that form was never filed with the court and Ms. Colotl never admitted to any facts that would support any such charge.
53. Ms. Colotl successfully completed the diversion program, and the false statement charge was dismissed in January 2013. Ms. Colotl was never convicted of the charge and the judge never ordered any punishment or penalty.
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54. Ms. Colotl has had no other criminal history or contact with law enforcement. Ms. Colotl’s Immigration Proceedings
55. Ms. Colotl’s traffic violation arrest in March 2010 also resulted in her being referred to the immigration authorities and placed in removal proceedings.
56. ICE initiated removal proceedings against her on the grounds that she had entered the United States without inspection and was present in the country in violation of law. Ms. Colotl was detained for approximately a month.
57. On April 28, 2010, Ms. Colotl appeared in the Atlanta Immigration Court and accepted an order of voluntary departure, permitting her to leave the United States within 30 days and thereby avoid a final order of removal. See 8 U.S.C. § 1229c.
58. As explained below, although Ms. Colotl was granted voluntary departure, Ms. Colotl did not depart the United States because DHS subsequently granted her deferred action status. As a result of her initial grant of deferred action in 2010, Ms. Colotl was released from detention in May 2010.
59. In 2014, Ms. Colotl returned to immigration court and filed a motion to reopen her prior removal proceedings to enable her to travel outside of the country to visit her ailing mother in Mexico. In her motion, Ms. Colotl requested administrative closure of her removal proceedings, which would allow her to leave
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the country and return without the risk of being barred from reentering the United States.
60. After the immigration judge denied Ms. Colotl’s motion to reopen in January 2015, Ms. Colotl appealed to the Board of Immigration Appeals (“BIA”). On October 6, 2016, the BIA granted Ms. Colotl’s appeal, reopened her removal case, and remanded to the immigration judge to grant administrative closure.
61. The immigration judge ignored the BIA’s order and did not administratively close the proceedings. The immigration judge did so despite Ms. Colotl’s repeated motions to the immigration court and a hearing on Ms. Colotl’s request in January 2017.
62. Ms. Colotl was unable to travel to Mexico to visit her mother as a result. Ms. Colotl’s Grants of Deferred Action from 2010 to 2017
63. While her removal proceedings were pending in 2010, members of Ms. Colotl’s community, including the President of Kennesaw State University, fellow students, and members of her sorority, rallied around her, urging ICE to allow her to remain in the United States and finish her undergraduate studies. Her case attracted nationwide attention in the media.
64. On May 5, 2010, ICE granted Ms. Colotl deferred action, permitting her to remain in the United States for one year.
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65. DHS continued to renew Ms. Colotl’s deferred action status during the following seven years, including pursuant to the DACA program, and was granted work authorization in relation to each of her grants of deferred action. In total, Defendants determined that Ms. Colotl was eligible for deferred action five separate times over the course of seven years. Each time she applied for deferred action and DACA, Ms. Colotl expressly disclosed to DHS all relevant information regarding the criminal proceedings arising out of her 2010 arrest. And each time, Defendants found Ms. Colotl eligible for deferred action, including issuing her two consecutive DACA grants for a total of four years.
66. Specifically, after her initial 2010 deferred action grant, ICE renewed Ms. Colotl’s deferred action status for additional one-year periods on May 3, 2011, and again on April 30, 2012.
67. Ms. Colotl then received two consecutive two-year DACA grants on July 1, 2013, and May 19, 2015, until May 18, 2017.
68. In December 2016, Ms. Colotl submitted her application to renew her DACA to USCIS and, again, included the same relevant information about the criminal proceedings arising from her 2010 arrest. Because Ms. Colotl’s criminal history does not disqualify her from eligibility for DACA, she was eligible for DACA when she applied for renewal in 2016 and remains eligible to this day.
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69. On May 2, 2017, however, USCIS denied Ms. Colotl’s application to renew her DACA. Ms. Colotl has yet to receive a copy of USCIS’s decision denying her DACA application.
70. On May 3, 2017, USCIS terminated Ms. Colotl’s DACA and employment authorization. The termination notice states—without any further explanation—that “USCIS has determined that exercising prosecutorial discretion in your case is not consistent with the Department of Homeland Security’s enforcement priorities.” Although DHS has failed to provide Ms. Colotl with a meaningful explanation of its termination decision, the agency has stated to multiple news outlets that, in its view, she is not eligible for the program due to disqualifying criminal history—specifically, that Ms. Colotl has a felony conviction for immigration purposes. DHS’ new position, however, is both inconsistent with its prior determinations and factually and legally incorrect.
71. Further, in terminating Ms. Colotl’s DACA, DHS did not comply with its own procedures. Those procedures explicitly provide that if, after DHS grants an individual DACA, it comes to DHS’ attention that the grant was in error, the agency should reopen the case, issue a “Notice of Intent to Terminate,” and afford the DACA recipient 33 days to file a brief or statement contesting the grounds cited in the Notice of Intent to Terminate. DHS procedures provide that the agency should issue a termination notice only if the adverse grounds are not overcome, or
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the agency does not receive a response. However, USCIS failed to provide Ms. Colotl with a Notice of Intent to Terminate or an opportunity to present arguments and evidence before issuing the notice of termination.
72. As a result of USCIS’ termination decision, Ms. Colotl was forced to stop working immediately and had to return her work permit to the immigration authorities.
73. Ms. Colotl has suffered and will continue to suffer significant and irreparable harm because of Defendants’ decisions, acts, and failures to act as described herein.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF (Administrative Procedure Act) 74. The foregoing allegations are repeated and incorporated as though fully set forth herein. 75. Ms. Colotl satisfies the DACA program’s eligibility criteria, as evidenced by her prior grant of DACA status and renewal of that status. 76. The government’s decisions to revoke Ms. Colotl’s DACA and deny her renewal application on the grounds that she is does not meet the eligibility criteria are arbitrary and capricious and contrary to law. 5 U.S.C. § 706(2)(A). 77. The government’s decisions are arbitrary and capricious and contrary to law because they misapply the mandatory DACA eligibility criteria and violate
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DHS’ own procedures for terminating DACA. Further, the government has failed to provide a reasoned explanation for its change in position.
SECOND CLAIM FOR RELIEF (Administrative Procedure Act) 78. The foregoing allegations are repeated and incorporated as though fully set forth herein. 79. The Administrative Procedure Act (“APA”), 5 U.S.C. § 553, requires that before a federal agency promulgates a new rule, the agency must publish in the Federal Register a general notice of proposed rulemaking and provide an opportunity for comment by interested parties. See 5 U.S.C. § 553 (b), (c). A substantive rule must be published at least 30 days prior to its effective date. See 5 U.S.C. § 553(d). 80. Ms. Colotl satisfies the eligibility criteria for the DACA program, as demonstrated by her prior grant of DACA status and the renewal of that status. 81. To the extent the government’s adverse decisions in Ms. Colotl’s case reflects a change in the DACA eligibility criteria, such a change failed to satisfy the notice and comment requirements of the APA. 5 U.S.C. §§ 553(b), (c). Any such change also failed to provide the 30-day notice period required by 5 U.S.C. § 553(d).
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THIRD CLAIM FOR RELIEF (Due Process Clause of the Fifth Amendment to the U.S. Constitution) 82. The foregoing allegations are repeated and incorporated as though fully set forth herein. 83. The Due Process Clause of the Fifth Amendment to the United States Constitution prevents the government from depriving individuals of a liberty or property interest without due process of law. 84. Defendants revoked Ms. Colotl’s DACA and, consequently, her work authorization, and denied her renewal request without providing her with a constitutionally adequate process. 85. Defendants have violated Ms. Colotl’s due process rights by revoking her DACA and denying her renewal application without providing her with adequate notice of intent to terminate, a reasoned explanation for their decision, and an opportunity to respond, and to present arguments and evidence to demonstrate that she continues to meet DACA’s eligibility requirements.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully prays this Court to:
a. Declare Defendants’ decision terminating Ms. Colotl’s DACA and denying her application for renewal of DACA to be unconstitutional and contrary to law;
b. Enter an order restoring Ms. Colotl’s DACA pending Defendants’ readjudication of her application under DACA’s existing eligibility requirements;
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c. Enter an order requiring Defendants to comply with its own procedures and provide Ms. Colotl adequate notice, a reasoned basis for its decision, and an opportunity for her to respond, and to present arguments and evidence demonstrating her eligibility for DACA;
d. Enter an order enjoining Defendants from arresting or detaining Ms. Colotl during the pendency of this action and until Ms. Colotl’s DACA eligibility can be re-adjudicated;
e. Award Plaintiff’s counsel reasonable attorneys’ fees under the Equal Access to Justice Act, and any other applicable statute or regulation; and
f. Grant such further relief as the Court deems just, equitable, and appropriate.

Dated: May 18, 2017
Jennifer Chang Newell* Katrina L. Eiland* ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Phone: (415) 343-0770 Fax: (415) 395-0950
Michael K. T. Tan* Lee Gelernt* ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor

Respectfully submitted,
/s/ Danielle M. Claffey Danielle M. Claffey Georgia State Bar No. 222292 Charles H. Kuck Georgia State Bar No. 429940 KUCK IMMIGRATION PARTNERS LLC 365 Northridge Road, Suite 300 Atlanta, GA 30350 Phone: (404) 816-8611 Fax: (404) 816-8615
Sean J. Young*# AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 33057
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Case 1:17-cv-01670-MHC Document 8 Filed 05/18/17 Page 28 of 28

New York, NY 10004 Phone: (212) 549-2660 Fax: (212) 549-2654

Phone: (770) 303-8111 Fax: (770) 303-0060

Attorneys for Plaintiff
*Application for admission Pro Hac Vice forthcoming #Georgia bar application pending

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Case 1:17-cv-01670-MHC Document 19-2 Filed 06/05/17 Page 1 of 2
Exhibit 1

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1

 
 Case 1:17-cv-01670-MHC Document 19 Filed 06/05/17 Page 1 of 22

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

JESSICA M. COLOTL COYOTL,

)

)

Plaintiff,

)

)

vs.

)

)

JOHN F. KELLY, Secretary,

)

Department of Homeland Security; )

MARK J. HAZUDA, Director, Nebraska )

Service Center, U.S. Citizenship and )

Immigration Services; JAMES

)

McCAMENT, Acting Director, U.S. )

Citizenship and Immigration Services; )

THOMAS D. HOMAN, Acting Director, )

U.S. Immigration and Customs

)

Enforcement; SEAN W. GALLAGHER, )

Atlanta Field Office Director, U.S.

)

Immigration and Customs Enforcement. )

)

Defendants.

)

Case No. 1:17-cv-1670-MHC

REPLY IN SUPPORT OF PLAINTIFF’S EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

Case 1:17-cv-01670-MHC Document 19 Filed 06/05/17 Page 2 of 22
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................................................................... ii INTRODUCTION ......................................................................................................... 1 ARGUMENT .................................................................................................................2
I. NO STATUTE PRECLUDES JUDICIAL REVIEW.....................................2 II. THE ELIGIBILITY DETERMINATION IS REVIEWABLE UNDER
THE APA, AND THE GOVERNMENT DOES NOT CONTEST THAT ITS DETERMINATION WAS ARBITRARY, CAPRICIOUS, AND CONTRARY TO LAW......................................................................................7 A. This Court Must Evaluate the Government’s Actions Based on Its
Contemporaneous Rationale, Which the Government Now Concedes Was Mistaken. ...........................................................................................................7 B. The DACA Eligibility Determination Is Not Committed to Agency Discretion by Law Because the Eligibility Criteria Provide Law to Apply. .....................................................................................9 C. The Government’s Change in Position Is Arbitrary and Capricious. ......11 III. THE GOVERNMENT PROVIDES NO RESPONSE TO MS. COLOTL’S DUE PROCESS ARGUMENT THAT ALTHOUGH DACA IS DISCRETIONARY, ONCE GRANTED SHE IS ENTITLED TO A FAIR PROCESS FOR REVOCATION...................................................................12 IV. THE REMAINING INJUNCTION FACTORS FAVOR PLAINTIFF......14 CONCLUSION............................................................................................................15
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TABLE OF AUTHORITIES
Cases Aguilar v. ICE,
510 F.3d 1 (1st Cir. 2007)............................................................................................4 Bell v. Burson,
402 U.S. 535 (1971) ...................................................................................................13 Califano v. Sanders,
430 U.S. 99 (1977).......................................................................................................8 Chalk v. U.S. Dist. Ct.,
840 F.2d 701 (9th Cir. 1988) .....................................................................................14 Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402 (1971).....................................................................................................8 Enyart v. Nat’l Conference of Bar Exam’rs, Inc.,
630 F.3d 1153 (9th Cir. 2011) ...................................................................................14 Heckler v. Chaney,
470 U.S. 821 (1985) ............................................................................................ 10, 11 INS v. St. Cyr,
533 U.S. 289 (2001).....................................................................................................2 JEFM v. Lynch,
837 F.3d 1026 (9th Cir. 2016) .....................................................................................4 Madu v. U.S. Atty. Gen.,
470 F.3d 1362 (11th Cir. 2006) ...............................................................................2, 5 Matter of Quintero,
18 I. & N. Dec. 348 (BIA 1982) ..................................................................................4 Mejia Rodriguez v. DHS,
562 F.3d 1137 (11th Cir. 2009) ...................................................................................6 Padilla v. Adm’r., FAA,
662 Fed. Appx. 743 (11th Cir. 2016).........................................................................10 Pasquini v. Morris,
700 F.2d 658 (11th Cir. 1983) ...................................................................................13 Perez v. USCIS,
774 F. 3d 960 (11th Cir. 2014) ....................................................................................6 Reno v. American-Arab Anti-Discrimination Committee
525 U.S. 471 (1999) .................................................................................................4, 5 Robbins v. Reagan,
780 F.2d 37 (D.C. Cir. 1985) .......................................................................................9 SEC v. Chenery Corp.,
318 U.S. 80 (1943).......................................................................................................8 ii

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Steenholdt v. FAA, 314 F.3d 633 (D.C. Cir. 2003)...................................................................................10
Texas v. United States, 787 F.3d 733 (5th Cir. 2015) .......................................................................................5
Texas v. United States, 809 F. 3d 134 (5th Cir. 2015) ....................................................................................11
Wolf Lake Terminals, Inc. v. Mut. Marine Ins. Co., 433 F. Supp. 2d 933 (N.D. Ind. 2005) .......................................................................10
Statutes 5 U.S.C. § 701(a)(2)........................................................................................................9 8 U.S.C. § 1252……………………………………………………………………...6, 7 8 U.S.C. § 1252 (a)(1).....................................................................................................2 8 U.S.C. § 1252(a)(1)......................................................................................................2 8 U.S.C. § 1252(a)(2)(B) ................................................................................................2 8 U.S.C. § 1252(b) ..........................................................................................................2 8 U.S.C. § 1252(b)(9)..........................................................................................2, 3, 4, 6 8 U.S.C. § 1252(g) ..............................................................................................2, 4, 5, 6 8 USC 1101(a)(48)(A) ....................................................................................................8 Rules Fed. R. Evid. 902(5)......................................................................................................10
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INTRODUCTION The government now concedes that Ms. Colotl has no felony conviction for immigration purposes. See Opp. 17 n.10. Yet it does not contest that it revoked her Deferred Action for Childhood Arrivals (“DACA”) on precisely that mistaken ground. The government also concedes that its DACA policies have not changed. It does not suggest that any facts relevant to Ms. Colotl’s DACA eligibility have changed. Yet it has never provided an explanation for its abrupt change in position. Indeed, the government never disputes that its decision to strip Ms. Colotl of DACA was arbitrary, capricious, and contrary to law. Instead, the government asks this Court to avoid the merits on jurisdictional and other grounds. It mischaracterizes Ms. Colotl’s claims as challenges to removal. It also incorrectly portrays those claims as challenges to the agency’s ultimate exercise of discretion, rather than to nondiscretionary eligibility determinations, which are routinely reviewed under the Administrative Procedure Act (“APA”). Ms. Colotl’s request for relief is straightforward: this Court should restore the status quo by temporarily enjoining the revocation of Ms. Colotl’s DACA—an adjudication that is wholly distinct from her removal proceedings—pending an eligibility determination that complies with the APA and due process.
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ARGUMENT I. NO STATUTE PRECLUDES JUDICIAL REVIEW.
The government contends that 8 U.S.C. §§ 1252(g) and 1252(b)(9)—each of which purports to limit jurisdiction over certain challenges relating to removal proceedings—bar this court from exercising jurisdiction.1 Neither contention is correct. None of Ms. Colotl’s claims seek to challenge the validity of any removal order, the adequacy of any removal proceedings, or even the initiation of any such proceedings. See INS v. St. Cyr, 533 U.S. 289, 298 (2001) (emphasizing “the strong presumption in favor of judicial review of administrative action”).
As the Supreme Court has explained, the purpose of § 1252(b)(9) is “to consolidate ‘judicial review’ of immigration proceedings into one action in the court of appeals, but it applies only ‘[w]ith respect to review of an order of removal under subsection [1252] (a)(1).’” Id. at 313 (citation omitted) (quoting 8 U.S.C. § 1252(b)). Critically, § 1252(b)(9) does not apply to matters that are “not subject to judicial review under § 1252(a)(1)”—which governs judicial review of removal orders. Id. Accord Madu v. U.S. Atty. Gen., 470 F.3d 1362, 1367 (11th Cir. 2006) (“Because section 1252(b)(9) applies only ‘[w]ith respect to review of an order of removal,’ and this case does not involve review of an order of removal, we find that section
1 The government apparently concedes that 8 U.S.C. § 1252(a)(2)(B) does not preclude review here. See Opp. 12 n.5.
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1252(b)(9) does not apply to this case.”) (citation omitted). Thus, § 1252(b)(9) is intended to ensure that issues that can be adjudicated in a deportation proceeding are resolved there, rather than in piecemeal, separate litigation.
Here, § 1252(b)(9) is inapplicable because Ms. Colotl’s challenge is collateral to, and independent of, any removal proceedings. Indeed, the government takes the position that “[d]eferred action does not . . . provide any defense to removal,” and “[a]n individual with deferred action remains removable at any time.” Opp. 2, 3. Although noncitizens with DACA or other types of deferred action generally will not be placed in removal proceedings so long as the deferred action grant has not been terminated or revoked, as the government’s assertions reflect, the granting of deferred action has no formal impact on removal proceedings. A noncitizen who is in removal proceedings can apply for DACA separately and simultaneously.2 If that application is granted, the removal proceedings nevertheless continue unless the immigration judge (“IJ”) closes or terminates the proceeding. Notably, an IJ has no power to grant or deny deferred action, or to review or reverse the immigration agency’s decision to deny deferred action. A noncitizen seeking to challenge the denial of a deferred action application could not do so in immigration court. See DACA Memo at 2-3; Matter of
2 Declaration of Charles H. Kuck (“Kuck Decl.”) ¶ 12, Ex. 11 at 2 (Janet Napolitano, Memorandum on Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (“DACA Memo”) (June 15, 2012)).
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Quintero, 18 I. & N. Dec. 348, 350 (BIA 1982). See also Aguilar v. ICE, 510 F.3d 1, 11-12 (1st Cir. 2007) (explaining that § 1252(b)(9) does not preclude “claims that cannot effectively be handled through the available administrative process”).3
Section 1252(g) also does not apply because Ms. Colotl is not challenging any decision to “commence” or “adjudicate” removal proceedings. As the Supreme Court explained in Reno v. American-Arab Anti-Discrimination Committee, (“AADC”), “what § 1252(g) says is” quite “narrow[].” 525 U.S. 471, 482 (1999). “The provision applies only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” Id. (first emphasis added). See also id. (§ 1252(g) does not preclude review of “many other decisions or actions that may be part of the deportation process”).
Notably, Ms. Colotl’s removal proceedings were initiated in 2010—long before she first received DACA in 2013—and were reopened in 2016 notwithstanding her DACA status. Accordingly, when the government terminated her DACA status earlier this year, that termination in no way “commence[d]” any removal proceedings against her. And under the government’s position, “[d]eferred action does not . . . provide any
3 Thus, even assuming the case was decided correctly, JEFM v. Lynch, 837 F.3d 1026 (9th Cir. 2016), is inapposite because the determination at issue here is entirely independent of the immigration court process.
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defense to removal” (Opp. 2), so if Ms. Colotl is able to obtain readjudication of her DACA status, that would have no necessary impact on her removal proceedings.
Although AADC indicated that § 1252(g) was “designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations,” 525 U.S. at 485 (emphasis added), Ms. Colotl does not challenge any discretionary decision not to defer action. See Madu, 470 F.3d at 1368 (explaining that § 1252(g) “does not proscribe substantive review of the underlying legal bases for those discretionary decisions and actions”). Rather, she challenges the government’s legally erroneous determination that her criminal history constitutes a felony conviction, its failure to provide a reasoned explanation for its change in position, and its failure to afford her adequate process. See Texas v. United States, 787 F.3d 733, 755 (5th Cir. 2015) (holding that § 1252(g) was inapplicable to states’ APA challenge to 2014 deferred action program because the challenge “does not ‘aris[e] from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien’”) (quoting 8 U.S.C. § 1252(g)). Thus, § 1252(g) does not preclude review of Ms. Colotl’s challenge.4
4 Although Ms. Colotl has requested a temporary prohibition of her arrest or detention, that request for equitable relief aims to preserve the status quo. None of her claims are aimed at challenging the government’s ultimate authority to arrest or detain her.
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Indeed, applying the jurisdictional provisions of § 1252, the Eleventh Circuit has held that APA challenges to the Department of Homeland Security’s (“DHS”) denials of affirmative discretionary benefits that are collateral to a noncitizen’s removal proceedings may be brought in district court. For example, in Mejia Rodriguez v. DHS, 562 F.3d 1137 (11th Cir. 2009) (per curiam), the Court permitted a noncitizen’s APA challenge to denial of Temporary Protected Status (“TPS”), even though the noncitizen had also been placed in removal proceedings. The Eleventh Circuit explained that “[t]he majority of the provisions of § 1252” did not apply to preclude review in that case because they “concern limitations on and procedures governing judicial review of final orders of removal,” and “[t]he denial of an application for TPS is not a final order of removal.” Id. at 1145 n.15. Similarly, in Perez v. USCIS, the Eleventh Circuit affirmed the district court’s jurisdiction over an APA challenge to the denial of an adjustment of status application even though the noncitizen had been placed in removal proceedings. 774 F.3d 960, 965-67 (11th Cir. 2014). See also id. (noting that “the IJ lacked jurisdiction to adjudicate or to readjudicate Perez’s application for adjustment of status” and “the [Board of Immigration Appeals] also lacked jurisdiction”). Neither of the courts in Mejia Rodriguez or Perez would have had jurisdiction over the noncitizens’ APA challenges if either § 1252(g) or § 1252(b)(9) precluded review. Defendants have no response to
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these controlling Eleventh Circuit cases, which concluded that the multiple
jurisdiction stripping provisions of 8 U.S.C. § 1252 did not preclude the noncitizens’ APA challenges to denials of immigration benefits.5
II. THE ELIGIBILITY DETERMINATION IS REVIEWABLE UNDER THE APA, AND THE GOVERNMENT DOES NOT CONTEST THAT ITS DETERMINATION WAS ARBITRARY, CAPRICIOUS, AND CONTRARY TO LAW.
A. This Court Must Evaluate the Government’s Actions Based on Its Contemporaneous Rationale, Which the Government Now Concedes Was Mistaken.
The government now concedes that Ms. Colotl’s diversion agreement is not a
conviction for immigration purposes. Opp. 17 n.10. Yet the government’s previous,
incorrect conclusion that that diversion agreement was a conviction was its
contemporaneous explanation for finding Ms. Colotl ineligible for DACA. See Second
Kuck Decl. ¶ 3, Ex. 2 (ICE Statement to Press). This Court should vacate that
determination as arbitrary, capricious and contrary to law.
It is black letter law that courts review agency action according to the
contemporaneous reasons given by the agency, and disregard post hoc rationalizations
5 Rather than grapple with these controlling cases, the government cites inapposite cases concerning challenges to removal orders or the initiation of removal proceedings. Opp. 12-14. It also cites two unpublished, non-precedential decisions holding conclusorily that where a noncitizen challenges his removal based on potential eligibility for DACA, the court has no jurisdiction to review the claim. Opp. 13-14 (citing cases). However, Ms. Colotl’s claims do not seek to block any removal order.
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presented during litigation. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977); see also SEC v. Chenery Corp., 318 U.S. 80, 87 (1943). Here, DHS announced publicly that Ms. Colotl’s DACA had been rescinded because she had been convicted of a felony. See Br. 9; Kuck Decl. ¶¶ 26-30, Exs. 25-29. In fact, the government specifically and incorrectly announced to the press that “Ms. Colotl’s DACA was terminated on May 3, 2017, after verification of her felony admission. Under INA 101(a)(48)(A) and 8 USC 1101(a)(48)(A) Ms. Colotl’s admission of guilt to a felony offense is considered a conviction for immigration purposes.” Second Kuck Decl. ¶ 3, Ex. 2. Indeed, the government does not contest that it found Ms. Colotl ineligible for DACA on this ground.6
The government has conceded that its only contemporaneous explanation for revoking Ms. Colotl’s DACA was mistaken, has not denied that it previously relied on that explanation, and has offered no other explanation. The government also concedes that neither its DACA policies nor Ms. Colotl’s facts have changed. The government fails to explain why applying the same DACA policies to the same facts has resulted
6 DHS’ statement in its termination notice that Ms. Colotl’s DACA was “not consistent with [DHS’s] enforcement priorities” reinforces that the agency determined that her supposed felony conviction made her an enforcement priority. See Kuck Decl. ¶ 11, Ex. 10 at 6; see also Opp. 6-7 (noting DHS’ position that Ms. Colotl’s “criminal history ma[de] her an enforcement priority”).
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in an opposite conclusion. It is therefore unsurprising that the government does not
contest that, if Ms. Colotl’s claims are reviewable, the government’s reversal is arbitrary, capricious, and contrary to law.7
B. The DACA Eligibility Determination Is Not Committed to Agency Discretion by Law Because the Eligibility Criteria Provide Law to Apply.
The DACA eligibility criteria provide law to apply, and the government’s
contention that that determination is “committed to agency discretion by law,” 5
U.S.C. § 701(a)(2), is therefore incorrect. “The mere fact that a statute grants broad
discretion to an agency does not render the agency’s decisions completely
nonreviewable under the ‘committed to agency discretion by law’ exception unless the
statutory scheme, taken together with other relevant materials, provides absolutely no
guidance as to how that discretion is to be exercised.” Robbins v. Reagan, 780 F.2d
37, 45 (D.C. Cir. 1985) (per curiam).
Here, the government does not dispute that the DACA memorandum, Frequently Asked Questions, and Standard Operating Procedures (“SOP”)8 govern the
7 Furthermore, the government’s account of DHS’s actions is questionable. The government asserts that Ms. Colotl’s DACA was terminated on May 3, 2017 and her renewal application was denied five days later, on May 8, 2017. See Opp. 7. That decision purports to deny Ms. Colotl’s renewal application on the grounds that because her DACA was recently terminated, she no longer “warrants a favorable exercise of prosecutorial discretion.” Walker Decl. ¶ 6, Ex. E.3. However, according to the DHS website, Ms. Colotl’s renewal application was denied on May 2, 2017— one day prior to the termination of her DACA status. Second Kuck Decl. ¶ 2, Ex. 1.
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DACA eligibility determination and in particular, whether Ms. Colotl has a felony
conviction. The D.C. Circuit has explained that “judicially manageable standards by
which to judge the agency’s action . . . may be found in formal and informal policy
statements and regulations as well as in statutes.” Steenholdt v. FAA, 314 F.3d 633,
639 (D.C. Cir. 2003) (citation and internal quotation marks omitted); accord Padilla
v. Adm’r., FAA, 662 Fed. Appx. 743, 745 (11th Cir. 2016). The DACA memo and
accompanying materials are, at a minimum, “informal policy statements” that provide
law to apply, and the government never suggests otherwise.
The proposition from Heckler v. Chaney, 470 U.S. 821 (1985), Opp. 22, that an
agency’s nonenforcement decisions are presumptively committed to agency discretion
is uncontroversial but inapposite: Ms. Colotl challenges her DACA eligibility
determination, not any enforcement decision in removal proceedings. See Br. 11-19.
Indeed, in Heckler, the Court noted that even enforcement decisions are reviewable
8 The SOP that Plaintiff included with her Motion was dated April 2013, and was produced in April 2014 in response to a Freedom of Information of Act (“FOIA”) request. See LexisNexis Legal Newsroom Immigration Law, DACA SOP (April 2013), https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/ 2014/04/03/daca-sop-april-2013.aspx?Redirected=true; Wolf Lake Terminals, Inc. v. Mut. Marine Ins. Co., 433 F. Supp. 2d 933, 944 (N.D. Ind. 2005) (government’s production of documents via FOIA authenticates those documents under Fed. R. Evid. 902(5)). Curiously, the SOP filed by the government is dated August 2013, but was never produced publicly despite the FOIA request, raising questions about its operative nature. The government should be required to produce the entire version of the SOP to Plaintiff, rather than selectively disclosing only those portions it deems helpful.
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where they are governed by “clearly defined factors” like the DACA eligibility criteria. 470 U.S. at 834 (citation and internal quotation marks omitted). And the Fifth Circuit expressly found that the DACA memorandum created nondiscretionary eligibility standards. See Texas v. United States, 809 F. 3d 134, 170-73 (5th Cir. 2015); see also Br. 12.9
In sum, the government fails to address the simple reason why the DACA eligibility determination—not the ultimate DACA decision—is reviewable under the APA: the eligibility criteria provide the “meaningful standard against which to judge the agency’s exercise of discretion” required by Heckler, 470 U.S. at 830.
C. The Government’s Change in Position Is Arbitrary and Capricious. The government has conceded that its contemporaneous reason for terminating Ms. Colotl’s DACA was mistaken. See Point II.A, supra. Yet the government has not even provided a post hoc rationalization of its eligibility determination. The government instead relies on its boilerplate statement that continuing Ms. Colotl’s DACA “is not consistent with the Department of Homeland Security’s enforcement
9 Even if the government were to contend that it deemed Ms. Colotl an “enforcement priority” for a reason other than its mistaken conclusion that her diversion agreement constituted a conviction, the decision was still an eligibility determination: noncitizens who fall within the enforcement priorities are ineligible for DACA. DACA Memo at 2 (noting that DACA is intended for “low priority” cases); Texas, 809 F.3d at 175 n.140. In any case, the government has not provided even a post hoc explanation of why Ms. Colotl is an enforcement priority here.
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priorities.” Opp. 17; Kuck Decl. ¶ 11, Ex. 10. Yet as the government itself asserts, there has been no “change in policy or . . . in the DACA guidelines,” Opp. 23, and the DHS Memorandum announcing the agency’s new enforcement priorities on February 20, 2017 expressly did not alter DACA. See Br. 4; Kuck Decl. ¶ 14, Ex. 13 (“Q22: Do these memoranda affect recipients of Deferred Action for Childhood Arrivals (DACA)? A22: No.”). The government therefore could only revoke Ms. Colotl’s DACA pursuant to the existing criteria. Under those criteria—as the government twice before concluded when presented with the same facts—Ms. Colotl is not an enforcement priority.
In sum, the government now concedes that its previous determination that Ms. Colotl has a felony conviction was contrary to law, and has provided no explanation whatsoever for its change in position. There is no question that the government has violated the APA. Accordingly, this Court should remand Ms. Colotl’s DACA application to the agency for readjudication under the correct criteria. III. THE GOVERNMENT PROVIDES NO RESPONSE TO MS. COLOTL’S
DUE PROCESS ARGUMENT THAT ALTHOUGH DACA IS DISCRETIONARY, ONCE GRANTED SHE IS ENTITLED TO A FAIR PROCESS FOR REVOCATION. The government fails to address Ms. Colotl’s argument, based on a controlling line of cases, that even absent a claim of entitlement, once an important benefit is conferred, recipients have a protected property interest that requires a fair process
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before the government may take that benefit away. See Br. 20 (citing, inter alia, Bell v. Burson, 402 U.S. 535, 539 (1971)). Thus, even though DACA is ultimately discretionary, once granted, the government cannot take it away without due process.
The government makes no attempt to refute this principle. Instead, it cites a series of cases holding that, as a general matter, a discretionary benefit does not give rise to a protected property interest. See Opp. 19, 20-21 (citing cases). But Ms. Colotl never makes that contention, and none of those cases involve the revocation of a discretionary benefit that has already been conferred.
The government further argues that the DACA guidance does not give rise to a protected interest, see Opp. 19-21, but again this argument is a red herring. Ms. Colotl does not argue that the DACA program itself establishes a protected interest. Nor does she argue that she has a substantive right to a grant of DACA or work authorization. Compare, e.g., Pasquini v. Morris, 700 F.2d 658, 661 (11th Cir. 1983); Opp. 8 (suggesting that Plaintiff asserts a “due process right to the receipt of DACA”). Instead, she argues only that, having previously granted her DACA, the government may not strip her of it without a fair procedure.
Finally, the government does not even attempt to suggest that its actions satisfied due process. Indeed, the government could not since—as it concedes, see Opp. 4-5—Ms. Colotl was stripped of DACA without any process whatsoever. This is
13

Case 1:17-cv-01670-MHC Document 19 Filed 06/05/17 Page 18 of 22
especially true given that DHS already provides a procedure whereby DACA recipients are afforded a reasoned explanation of DHS’ actions and an opportunity to present arguments and evidence. See Br. 21-22; Kuck Decl. ¶ 15, Ex. 14 at 3, 8-9.
In sum, the termination of Ms. Colotl’s DACA status in the absence of a fair process violates her due process rights. IV. THE REMAINING INJUNCTION FACTORS FAVOR PLAINTIFF.
The government fails to refute Ms. Colotl’s showing of irreparable harm. First, contrary to the government’s assertions, see Opp. 25, Ms. Colotl has not suffered a mere loss of income. She has also suffered the “loss of opportunity to pursue her chosen profession” as a paralegal, develop professional experience, and work toward her ultimate goals of attending law school and becoming an immigration attorney. See Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 630 F.3d 1153, 1165 (9th Cir. 2011); see also Br. 23-24. This “productive time irretrievably lost” constitutes irreparable harm—as does her emotional distress in the interim. Chalk v. U.S. Dist. Ct., 840 F.2d 701, 709-10 (9th Cir. 1988). The government does not even address these harms, much less refute them. Second, the government seeks to dismiss the threat of Ms. Colotl’s detention as “speculative.” Opp. 24. However, the
14

Case 1:17-cv-01670-MHC Document 19 Filed 06/05/17 Page 19 of 22
government essentially concedes that she could be taken into immigration custody in the near future. See id.10
Finally, the government does not dispute that requiring it to comply with the APA and the Constitution would serve the public interest. See Br. 25. Nor does it dispute the interests of Ms. Colotl’s friends, clients, family, coworkers, and community in the proper adjudication of her DACA application. See Br. 24-25. Nor does the government explain how re-adjudicating Ms. Colotl’s DACA application under its own standards would cause the agency harm—especially when it has such review procedures already in place.11 See Br. 24. And although the government certainly has an interest in the enforcement of the immigration laws, the agencies administering those laws are required to act lawfully. In sum, the remaining factors support a temporary restraining order.
CONCLUSION For the foregoing reasons, Plaintiff’s motion for a temporary restraining order should be GRANTED.
10 Should the government provide assurances to the Court that Ms. Colotl will not be detained during the pendency of these proceedings, then Plaintiff would agree that the threat of detention is “speculative.”
11 The government cites no authority for the sweeping proposition that the last two factors merge when it is the defendant. Opp. 25. That would render the final two injunctive factors a nullity in any case involving a federal agency.
15

Case 1:17-cv-01670-MHC Document 19 Filed 06/05/17 Page 20 of 22

Dated: June 5, 2017
Jennifer Chang Newell+ Katrina L. Eiland+ ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Phone: (415) 343-0770 Fax: (415) 395-0950
Michael K. T. Tan* Lee Gelernt* ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2660 Fax: (212) 549-2654

Respectfully submitted,
/s/ Charles H. Kuck Charles H. Kuck Georgia State Bar No. 429940 Danielle M. Claffey Georgia State Bar No. 222292 KUCK IMMIGRATION PARTNERS LLC 365 Northridge Road, Suite 300 Atlanta, GA 30350 Phone: (404) 816-8611 Fax: (404) 816-8615
Sean J. Young*# AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 33057 Phone: (770) 303-8111 Fax: (770) 303-0060

Attorneys for Plaintiff

*Application for admission Pro Hac Vice forthcoming + Application for admission Pro Hac Vice pending #Georgia bar application pending

16

Case 1:17-cv-01670-MHC Document 19 Filed 06/05/17 Page 21 of 22
CERTIFICATE OF COMPLIANCE
I certify that the documents to which this certificate is attached have been
prepared with one of the font and point selections approved by the Court in Local
Rule 5.1B for documents prepared by computer.
/s/ Charles H. Kuck Charles H. Kuck Georgia State Bar No. 429940 KUCK IMMIGRATION PARTNERS LLC 365 Northridge Road, Suite 300 Atlanta, GA 30350 Phone: (404) 816-8611 Fax: (404) 816-8615

Case 1:17-cv-01670-MHC Document 19 Filed 06/05/17 Page 22 of 22

CERTIFICATE OF SERVICE I hereby certify that on June 5, 2017, I electronically filed the foregoing with the Clerk of the Court Using the CM/ECF system which will automatically send email notification of such filing to the following attorney of record:

Jeffrey Robins Assistant Director United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 616-1246 Facsimile: (202) 305-7000 Email: Jeffrey.robins@usdoj.gov

Respectfully submitted, /s/ Charles H. Kuck Charles H. Kuck Georgia State Bar No. 429940 KUCK IMMIGRATION PARTNERS LLC 365 Northridge Road, Suite 300 Atlanta, GA 30350 Phone: (404) 816-8611 Fax: (404) 816-8615

Case 1:17-cv-01670-MHC Document 19-3 Filed 06/05/17 Page 1 of 2
Exhibit 2

Case 1:17-cv-01670-MHC Document 19-3 Filed 06/05/17 Page 2 of 2
From: Cox, Bryan D <Bryan.D.Cox@ice.dhs.gov> Sent: Wednesday, May 10, 2017 10:13 AM Subject: Colotl statement
Here you go. Can quote statement to me by name on the record. Everything else is useable officially attributable to ICE in general. STATEMENT: “Jessica Colotl, an unlawfully present Mexican national, admitted guilt to a felony charge in August 2011 of making a false statement to law enforcement in Cobb County, Georgia. Ms. Colotl was subsequently allowed to enter a diversionary program by local authorities; however, under federal law her guilty plea is considered a felony conviction for immigration purposes.”
BACKGROUND INFORMATION:
Ms. Colotl’s DACA was terminated on May 3, 2017, after verification of her felony admission.
Under INA 101(a)(48)(A) and 8 USC 1101(a)(48)(A) Ms. Colotl’s admission of guilt to a felony offense is considered a conviction for immigration purposes regardless of any subsequent diversionary program. Both the Board of Immigration Appeals and the 11thCircuit have addressed this definition of conviction in the context of state rehabilitative statutes, such as the one involved in this case.
Aliens granted deferred action from deportation are not protected by any kind of legal status, but are typically given a lower level of enforcement priority. A decision to grant deferred action may be revoked by DHS at any time, particularly in the case of someone who commits a crime or is otherwise found to pose a national security or public safety threat. Deferred action does not, in any way, prevent DHS from moving forward with execution of a removal order. Since the start of Deferred Action for Childhood Arrivals (DACA) in 2012, DHS has terminated deferred action for approximately 1,500 recipients due to criminality or gang affiliation concerns.
Bryan D. Cox Southern Region Communications Director (Spokesman) U.S. Immigration and Customs Enforcement (404) 346-2287 Office (504) 329-2588 Mobile bryan.d.cox@ice.dhs.gov
1

Case 1:17-cv-01670-MHC Document 19-1 Filed 06/05/17 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

JESSICA M. COLOTL COYOTL, Plaintiff,
vs. JOHN F. KELLY, et al.,
Defendants.

) ) ) ) ) Case No. 1:17-cv-1670-MHC ) ) ) ) )

SECOND DECLARATION OF CHARLES H. KUCK IN SUPPORT OF PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER
I, Charles H. Kuck, upon my personal knowledge and in accordance with 28 U.S.C. § 1746, hereby declare as follows:
1. I am an attorney with Kuck Immigration Partners LLC and counsel of record for Plaintiff in this action. I am licensed in the State of Georgia and have been admitted to practice before this Court. As a witness, I could and would testify competently as to the matters set forth below.
2. Attached as Exhibit 1, and previously filed at Dkt. No. 17, Ex. E, is a true and correct screenshot of the US Citizenship and Immigration Services case status web page (https://egov.uscis.gov/casestatus/mycasestatus.do) indicating that the agency denied Ms. Colotl’s Deferred Action for Childhood Arrivals application on May 2, 2017.
3. Attached as Exhibit 2 is a true and correct copy of an email statement from Bryan D. Cox, Southern Region Communications Director, U.S. Customs and Immigration Enforcement, on May 10, 2017. I have redacted the name of the reporter.

Case 1:17-cv-01670-MHC Document 19-1 Filed 06/05/17 Page 2 of 2
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, based on my personal knowledge. Executed at Atlanta, Georgia on June 5, 2017.
/s/ Charles H. Kuck Charles H. Kuck Georgia State Bar No. 429940 KUCK IMMIGRATION PARTNERS LLC 365 Northridge Road, Suite 300 Atlanta, GA 30350 Phone: (404) 816-8611 Fax: (404) 816-8615
2

 
 4months,CLOSED,TRO
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:17−cv−01670−MHC

Colotl Coyotl v. Kelly et al Assigned to: Judge Mark H. Cohen Cause: 05:702 Administrative Procedure Act
Plaintiff Jessica M. Colotl Coyotl

Date Filed: 05/09/2017 Date Terminated: 05/25/2018 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant
represented by Charles H. Kuck Kuck Immigration Partners LLC −Atl Suite 300 365 Northridge Road Atlanta, GA 30350 404−816−8611 Fax: 404−816−8615 Email: ckuck@immigration.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle M. Claffey Kuck Immigration Partners LLC −Atl Suite 300 365 Northridge Road Atlanta, GA 30350 404−816−8611 Fax: 404−816−8615 Email: dconley@immigration.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Hausman American Civil Liberties Union Foundation−NY 125 Broad Street 18th Floor New York, NY 10004 212−549−2549 Email: dhausman@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Chang Newell American Civil Liberties Union Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 415−343−0774 Email: jnewell@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katrina L. Eiland American Civil Liberties Union Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 415−343−0782

V. Defendant John F. Kelly Secretary, Department of Homeland Security TERMINATED: 10/26/2017
Defendant Mark J. Hazuda Director, Nebraska Service Center, U.S. Citizenship and Immigration Services
Defendant

Email: keiland@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean Young ACLU of Georgia Foundation 1100 Spring St. NW Suite 640 Atlanta, GA 30309 770−303−8111 Fax: 770−303−0060 Email: syoung@acluga.org ATTORNEY TO BE NOTICED
represented by James Walker United States of Justice−Civil Division LSB/OIL−DCS P.O. Box 868 Washington, DC 20044 (202)532−4468 Email: James.Walker3@usdoj.gov ATTORNEY TO BE NOTICED
Jeffrey S. Robins Office of the United States Attorney−DC Civil Division −Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Office of Immigration Litigation
Washington, DC 20044 202−616−1246 Email: jeffrey.robins@usdoj.gov ATTORNEY TO BE NOTICED
Sheetul Sheth Wall Office of the United States Attorney−Immigration P.O. Box 868 Ben Franklin Station 450 5th Street NW
Washington, DC 20044 202−598−2668 Email: Sheetul.S.Wall2@usdoj.gov ATTORNEY TO BE NOTICED
represented by James Walker (See above for address) ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) ATTORNEY TO BE NOTICED
Sheetul Sheth Wall (See above for address) ATTORNEY TO BE NOTICED

Lori Scialabba Acting Director, U.S. Citizenship and Immigration Services TERMINATED: 05/18/2017
Defendant Alfie Owens Chief Counsel, Atlanta Office of Principal Legal Advisor, U.S. Immigration and Customs Enforcement TERMINATED: 05/18/2017
Defendant Sirce Owen Deputy Chief Counsel, Atlanta Office of Principal Legal Advisor, U.S. Immigration and Customs Enforcement TERMINATED: 05/18/2017
Defendant James McCament Acting Director, U.S. Citizenship and Immigration Services TERMINATED: 10/26/2017
Defendant Thomas D. Homan Acting Director, U.S. Immigration and Customs Enforcement
Defendant Sean W. Gallagher Atlanta Field Office Director, U.S. Immigration and Customs Enforcement

represented by James Walker (See above for address) ATTORNEY TO BE NOTICED
Sheetul Sheth Wall (See above for address) ATTORNEY TO BE NOTICED
represented by James Walker (See above for address) ATTORNEY TO BE NOTICED
Sheetul Sheth Wall (See above for address) ATTORNEY TO BE NOTICED
represented by James Walker (See above for address) ATTORNEY TO BE NOTICED
Sheetul Sheth Wall (See above for address) ATTORNEY TO BE NOTICED
represented by James Walker (See above for address) ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) ATTORNEY TO BE NOTICED
Sheetul Sheth Wall (See above for address) ATTORNEY TO BE NOTICED
represented by James Walker (See above for address) ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) ATTORNEY TO BE NOTICED
Sheetul Sheth Wall (See above for address) ATTORNEY TO BE NOTICED
represented by James Walker (See above for address) ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) ATTORNEY TO BE NOTICED
Sheetul Sheth Wall

Defendant
Elaine C. Duke Secretary, Department of Homeland Security
Defendant
L. Francis Cissna Director, U.S. Citizenship and Immigration Services

(See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey S. Robins (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey S. Robins (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/09/2017
05/10/2017 05/10/2017 05/10/2017 05/10/2017 05/10/2017 05/10/2017 05/18/2017
05/18/2017
05/22/2017 05/22/2017 05/22/2017

# Docket Text
1 COMPLAINT filed by Jessica M. Colotl Coyotl. ( Filing fee $ 400 receipt number 113E−7136348.) (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A, # 3 Exhibit A2, # 4 Exhibit A3, # 5 Exhibit A4, # 6 Exhibit A5, # 7 Exhibit B, # 8 Exhibit C, # 9 Exhibit D, # 10 Exhibit E, # 11 Exhibit F, # 12 Exhibit G, # 13 Exhibit H)(jpa) Please visit our website at http://www.gand.uscourts.gov/commonly−used−forms to obtain Pretrial Instructions which includes the Consent To Proceed Before U.S. Magistrate form. Modified on 5/25/2017. Exhibits restricted to due confidential information. Atty to file a notice with redacted exhibits. (jtj) (Entered: 05/10/2017)
2 Summons Issued as to Alfie Owens. (jpa) (Additional attachment(s) added on 5/10/2017: # 1 Corrected Summons) (jpa). (Entered: 05/10/2017)
3 Summons Issued as to John F. Kelly. (jpa) (Additional attachment(s) added on 5/10/2017: # 1 Corrected Summons) (jpa). (Entered: 05/10/2017)
4 Summons Issued as to Lori Scialabba. (jpa) (Additional attachment(s) added on 5/10/2017: # 1 Corrected Summons) (jpa). (Entered: 05/10/2017)
5 Summons Issued as to Sirce Owen, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Attorney General, # 2 U.S. Attorney)(jpa) (Additional attachment(s) added on 5/10/2017: # 3 Sirce Corrected Summons, # 4 U.S. Attorney Corrected Summons, # 5 Attorney General Corrected Summons) (jpa). (Entered: 05/10/2017)
6 Summons Issued as to Mark J. Hazuda. (jpa) (Additional attachment(s) added on 5/10/2017: # 1 Corrected Summons) (jpa). (Entered: 05/10/2017)
7 STANDING ORDER regarding civil litigation. Signed by Judge Mark H. Cohen on 5/10/17. (jpa) (Entered: 05/10/2017)
8 First AMENDED COMPLAINT for Declaratory and Injunctive Relief against Mark J. Hazuda, John F. Kelly, James McCament, Thomas D. Homan, Sean W. Gallagher, filed by Jessica M. Colotl Coyotl.(Claffey, Danielle) Please visit our website at http://www.gand.uscourts.gov/commonly−used−forms to obtain Pretrial Instructions which includes the Consent To Proceed Before U.S. Magistrate form. (Entered: 05/18/2017)
*** Party Lori Scialabba (Acting Director, U.S. Citizenship and Immigration Services), Sirce Owen (Deputy Chief Counsel, Atlanta Office of Principal Legal Advisor, U.S. Immigration and Customs Enforcement) and Alfie Owens (Chief Counsel, Atlanta Office of Principal Legal Advisor, U.S. Immigration and Customs Enforcement) terminated. (jpa) (Entered: 05/22/2017)
9 APPLICATION for Admission of Katrina L. Eiland Pro Hac Vice (Application fee $ 150, receipt number 113E−7161371)by Jessica M. Colotl Coyotl. (Claffey, Danielle) (Entered: 05/22/2017)
10 PROPOSED SUMMONS filed by Jessica M. Colotl Coyotl on James McCament (Claffey, Danielle) (Entered: 05/22/2017)
11 PROPOSED SUMMONS filed by Jessica M. Colotl Coyotl on Sean W. Gallagher (Claffey, Danielle) (Entered: 05/22/2017)

05/22/2017 05/23/2017 05/23/2017
05/23/2017 05/23/2017 05/24/2017 05/25/2017 05/26/2017 05/31/2017 05/31/2017

12 PROPOSED SUMMONS filed by Jessica M. Colotl Coyotl on Thomas D. Homan (Claffey, Danielle) (Entered: 05/22/2017)
13 Electronic Summons Issued as to Sean W. Gallagher, Thomas D. Homan, James McCament. (Attachments: # 1 Homan summons, # 2 McCament summons)(jpa) (Entered: 05/23/2017)
14 First MOTION for Temporary Restraining Order and/or Preliminary Injunction and REQUEST to Waive the Usual Procedures IMMEDIATE HEARING REQUESTED with Brief In Support by Jessica M. Colotl Coyotl. (Attachments: # 1 Brief Memorandum of Law, # 2 Affidavit Colotl Declaration, # 3 Affidavit Kuck Declaration, # 4 Exhibit Ex 1: Consent Order Dismissing Charges, # 5 Exhibit Ex 2: Criminal Docket, # 6 Exhibit Ex 3: Dead Docket Notice, # 7 Exhibit Ex 4: Plea and Arraignment, # 8 Exhibit Ex 5: Velez Letter of Recommendation, # 9 Exhibit Ex 6: Figueroa Letter in Support, # 10 Exhibit Ex 7: Silva Letter in Support, # 11 Exhibit Ex 8: BIA Decision and Order, # 12 Exhibit Ex 9: DHS Supplemental Brief in Immigration Court, # 13 Exhibit Ex 10: DHS Second Supplemental Brief in Immigration Court, # 14 Exhibit Ex 11: Napolitano Memorandum, # 15 Exhibit Ex 12: Kelly Memorandum, # 16 Exhibit Ex 13: DHS Q & A, # 17 Exhibit Ex 14: DACA Standard Operating Procedures Excerpts, # 18 Exhibit Ex 15: President Obama Remarks, # 19 Exhibit Ex 16: President Trump DACA Remarks Politico Article, # 20 Exhibit Ex 17: USCIS DACA FAQ, # 21 Exhibit Ex 18: President Trump DACA Remarks Time Article, # 22 Exhibit Ex 19: President Trump DACA Remarks New York Times Article, # 23 Exhibit Ex 20: President Trump DACA Remarks ABC News Article, # 24 Exhibit Ex 21: President Trump DACA Remarks AP Article, # 25 Exhibit Ex 22: 2012 DACA Application, # 26 Exhibit Ex 23: 2015 DACA Renewal Application, # 27 Exhibit Ex 24: 2016 DACA Renewal Application, # 28 Exhibit Ex 25: AP Article about Ms. Colotl, # 29 Exhibit Ex 26: Atlanta Journal−Constitution Article about Ms. Colotl, # 30 Exhibit Ex 27: NPR Morning Edition Article about Ms. Colotl, # 31 Exhibit Ex 28: WXIA Article about Ms. Colotl, # 32 Exhibit Ex 29: New York Times Article about Ms. Colotl, # 33 Text of Proposed Order Proposed Order)(Kuck, Charles) . Added MOTION for Preliminary Injunction,MOTION on 5/23/2017 (jpa). (Entered: 05/23/2017)
Notification of Docket Correction re 14 First MOTION for Temporary Restraining Order and/or Preliminary Injunction IMMEDIATE HEARING REQUESTED MOTION for Preliminary Injunction. Three part motion docketed as one. Added Motion for Preliminary Injunction and Motion to Waive the Usual Procedures. (jpa) (Entered: 05/23/2017)
15 APPLICATION for Admission of Jennifer Chang Newell Pro Hac Vice (Application fee $ 150, receipt number 113E−7164783)by Jessica M. Colotl Coyotl. (Claffey, Danielle) (Entered: 05/23/2017)
16 NOTICE of Appearance by Jeffrey S. Robins on behalf of Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan, John F. Kelly, James McCament (Robins, Jeffrey) (Entered: 05/24/2017)
MINUTE ORDER re 14 MOTION for Temporary Restraining Order. The Court orders the Defendants to file a response brief on 5/31/17. Plaintiff shall file a reply brief on 6/5/17. Hearing on the motion for temporary restraining order is set on 6/8/17 at 10:00 AM in courtroom 1905 by CRD by direction of the Court. Approved by Judge Mark H. Cohen on 5/25/17. (jgs) (Entered: 05/25/2017)
17 NOTICE Of Filing Redacted Exhibits to Complaint by Jessica M. Colotl Coyotl re 1 Complaint,, Redacted Exhibits (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Kuck, Charles) (Entered: 05/26/2017)
NOTICE of Hearing on Motion re: 14 First MOTION for Temporary Restraining Order and/or Preliminary Injunction IMMEDIATE HEARING REQUESTED MOTION for Preliminary Injunction Motion Hearing set for 6/8/2017 at 10:00 AM in ATLA Courtroom 1905 before Judge Mark H. Cohen. (jgs) (Entered: 05/31/2017)
18 RESPONSE in Opposition re 14 First MOTION for Temporary Restraining Order and/or Preliminary Injunction IMMEDIATE HEARING REQUESTED MOTION for Preliminary Injunction filed by Sean W. Gallagher, Mark J. Hazuda, Thomas D.

06/05/2017 06/06/2017 06/08/2017
06/08/2017 06/08/2017 06/08/2017 06/08/2017 06/09/2017 06/12/2017 06/12/2017
06/12/2017

Homan, John F. Kelly, James McCament. (Attachments: # 1 Declaration in Support of Exhibits, # 2 All Exhibits)(Robins, Jeffrey) (Entered: 05/31/2017)
19 REPLY to Response to Motion re 14 First MOTION for Temporary Restraining Order and/or Preliminary Injunction IMMEDIATE HEARING REQUESTED MOTION for Preliminary Injunction Reply filed by Jessica M. Colotl Coyotl. (Attachments: # 1 Affidavit Declaration of Charles H. Kuck, # 2 Exhibit Screenshot of DHS Website, # 3 Exhibit ICE Statement)(Kuck, Charles) (Entered: 06/05/2017)
20 NOTICE of Appearance by Sheetul Sheth Wall on behalf of Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan, John F. Kelly, James McCament, Sirce Owen, Alfie Owens, Lori Scialabba (Wall, Sheetul) (Entered: 06/06/2017)
21 Minute Entry for proceedings held before Judge Mark H. Cohen: Motion Hearing held on 6/8/2017 re 14 First MOTION for Temporary Restraining Order and/or Preliminary Injunction IMMEDIATE HEARING REQUESTED MOTION for Preliminary Injunction filed by Jessica M. Colotl Coyotl. The Court heard from counsel and took the matter under advisement. The Defendant shall provide any applicable SOP sections not presently in the record by end of business today. The Court will take the matter under advisement and issue a ruling next week. (Court Reporter Judith Wolff)(jpa) (Entered: 06/08/2017)
22 ORDER directing the Clerk to unseal the documents and make the case filings to the public through PACER. Signed by Judge Mark H. Cohen on 6/8/17. (jpa) Modified on 6/13/2017 in order to correct typo (anc). (Entered: 06/08/2017)
23 NOTICE of Appearance by James Walker on behalf of Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan, John F. Kelly, James McCament, Sirce Owen, Alfie Owens, Lori Scialabba (Attachments: # 1 Certificate of Service)(Walker, James) (Entered: 06/08/2017)
24 PROVISIONALLY SEALED NOTICE Of Filing Additional exhibits per Courts Minute Entry by Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan, John F. Kelly, James McCament, Sirce Owen, Alfie Owens, Lori Scialabba (Attachments: # 1 Exhibit Additional exhibits)(Walker, James) (Entered: 06/08/2017)
25 MOTION for Leave to File Matters Under Seal re: 24 Notice of Filing, Additional Exhibits with Brief In Support by Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan, John F. Kelly, James McCament, Sirce Owen, Alfie Owens, Lori Scialabba. (Walker, James) (Entered: 06/08/2017)
26 RESPONSE re 24 Notice of Filing, of Supplemental Exhibits filed by Jessica M. Colotl Coyotl. (Kuck, Charles) (Entered: 06/09/2017)
Submission of 14 First MOTION for Temporary Restraining Order and/or Preliminary Injunction IMMEDIATE HEARING REQUESTED MOTION for Preliminary Injunction, submitted to District Judge Mark H. Cohen. (jpa) (Entered: 06/12/2017)
27 DOCUMENT FILED IN ERROR TRANSCRIPT of Proceedings held on 6/8/17 (Emergency Motion For TRO), before Judge Mark H. Cohen. Court Reporter/Transcriber Judith M. Wolff, Telephone number 404−215−1317. 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. Redaction Request due 7/3/2017. Redacted Transcript Deadline set for 7/13/2017. Release of Transcript Restriction set for 9/11/2017. (Attachments: # 1 Notice of Filing Transcript) (pjm) Modified on 6/13/2017 (jpa). (Entered: 06/12/2017)
28 ORDER granting in part the 14 Motion for TRO and/or for a Preliminary Injunction. It is hereby ORDERED that USCIS's decision to terminate Plaintiff's status under the Deferred Action for Childhood Arrivals program memorialized in the May 3, 2017, Termination Notice is preliminarily enjoined. This preliminary injunction also applies to enjoin Defendants' termination of Plaintiff's employment authorization, which was included as a portion of the May 3, 2017, Termination Notice. It is further ORDERED that USCIS's decision to deny Plaintiff's renewal application for DACA status memorialized in the May 8, 2017, Decision is preliminarily enjoined. It is further ORDERED that Defendants shall reconsider the termination of Plaintiff's DACA

06/12/2017
06/13/2017 06/13/2017 06/13/2017 06/20/2017 06/20/2017 06/20/2017 06/21/2017 06/23/2017 06/26/2017

status and re−adjudicate Plaintiffs renewal application in a manner consistent with the Department of Homeland Security's Standard Operating Procedures and this Order. It is further ORDERED that Plaintiff's DACA status, including her employment authorization, is reinstated pending Defendants' re−adjudication of Plaintiff's renewal application and reconsideration of the termination of Plaintiff's DACA status. This Order shall remain effective until further Order from this Court, which will issue only after Defendants have submitted sufficient proof that they have followed all relevant standard operating procedures regarding the adjudication of Plaintiff's renewal application and any termination of Plaintiff's DACA status. Signed by Judge Mark H. Cohen on 6/12/17. (jpa) (Entered: 06/12/2017)
29 TRANSCRIPT of Proceedings held on 6/8/17 (Emergency Motion for TRO), before Judge Mark H. Cohen. Court Reporter/Transcriber Judith M. Wolff, Telephone number 404−215−1317. 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. Redaction Request due 7/3/2017. Redacted Transcript Deadline set for 7/13/2017. Release of Transcript Restriction set for 9/11/2017. (Attachments: # 1 Notice of Filing) (jpa) (Entered: 06/13/2017)
APPROVAL by Clerks Office re: 9 APPLICATION for Admission of Katrina L. Eiland Pro Hac Vice (Application fee $ 150, receipt number 113E−7161371). Attorney Katrina L. Eiland added appearing on behalf of Jessica M. Colotl Coyotl (pmb) (Entered: 06/13/2017)
APPROVAL by Clerks Office re: 15 APPLICATION for Admission of Jennifer Chang Newell Pro Hac Vice (Application fee $ 150, receipt number 113E−7164783). Attorney Jennifer Chang Newell added appearing on behalf of Jessica M. Colotl Coyotl (pmb) (Entered: 06/13/2017)
MINUTE ORDER granting [9 & 15] Applications for Admission Pro Hac Vice for Katrina L. Eiland and Jennifer Chang Newell by CRD by direction of the Court. Approved by Judge Mark H. Cohen on 6/13/17. (jgs) (Entered: 06/13/2017)
30 NOTICE Of Filing Additional exhibits per Courts Minute Entry by Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan, John F. Kelly, James McCament, Sirce Owen, Alfie Owens, Lori Scialabba (Attachments: # 1 Exhibit F − DACA SOP, # 2 Exhibit G − Appx D, # 3 Exhibit H − Appx E, # 4 Exhibit I − Appx F, # 5 Exhibit J − Appx J, # 6 Exhibit K − FAQ)(Walker, James) (Entered: 06/20/2017)
31 SEALED NOTICE Of Filing Partially sealing additional exhibits to comply with Courts Minute Entry by Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan, John F. Kelly, James McCament, Sirce Owen, Alfie Owens, Lori Scialabba re 30 Notice of Filing, (Attachments: # 1 Exhibit F − DACA SOP, # 2 Exhibit K − FAQ)(Walker, James) Modified on 6/21/2017 (jpa). (Entered: 06/20/2017)
32 MOTION for Leave to File Matters Under Seal re: 31 Notice of Filing, with Brief In Support by Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan, John F. Kelly, James McCament, Sirce Owen, Alfie Owens, Lori Scialabba. (Attachments: # 1 Brief in support, # 2 Text of Proposed Order to seal exhibits)(Walker, James) (Entered: 06/20/2017)
33 ORDER granting 32 Motion for Leave to File Matters Under Seal. It is further ordered that the 25 Motion for Leave to File Matters Under Seal is withdrawn. To the extent any documents associated with the previously filed motion to seal were provisionally sealed, those documents shall remain sealed. Signed by Judge Mark H. Cohen on 6/21/17. (jpa) (Entered: 06/21/2017)
34 MOTION for Reconsideration re 28 Order on Motion for TRO, Order on Motion for Preliminary Injunction, Order on Motion for Miscellaneous Relief, with Brief In Support by Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan, John F. Kelly, James McCament. (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2)(Robins, Jeffrey) Modified on 6/26/2017 to edit text (jpa). (Entered: 06/23/2017)
35 MOTION for Extension of Time File Response re: 34 MOTION for Reconsideration re 28 Order on Motion for TRO, Order on Motion for Preliminary Injunction, Order on

06/27/2017 07/10/2017 07/14/2017
07/24/2017
07/24/2017
07/25/2017 07/28/2017 07/31/2017 08/14/2017
08/15/2017 08/17/2017 08/21/2017 08/21/2017 08/21/2017 10/02/2017
10/16/2017 10/25/2017

Motion for Miscellaneous Relief, with Brief In Support by Jessica M. Colotl Coyotl. (Attachments: # 1 Text of Proposed Order)(Eiland, Katrina) Modified on 6/27/2017 to edit text (jpa). (Entered: 06/26/2017)
36 ORDER granting 35 Motion for Extension of Time through 7/14/17 for Plaintiff to file a response to the 34 MOTION for Reconsideration. Signed by Judge Mark H. Cohen on 6/27/17. (jpa) (Entered: 06/28/2017)
37 NOTICE of Appearance by Sean Young on behalf of Jessica M. Colotl Coyotl (Attachments: # 1 Certificate of Service)(Young, Sean) (Entered: 07/10/2017)
38 RESPONSE in Opposition re 34 MOTION for Reconsideration re 28 Order on Motion for TRO, Order on Motion for Preliminary Injunction, Order on Motion for Miscellaneous Relief,,,,,,,,,,,,,,,,,, filed by Jessica M. Colotl Coyotl. (Attachments: # 1 Affidavit Declaration of Katrina E. Eiland)(Eiland, Katrina) (Entered: 07/14/2017)
39 REPLY to Response to Motion re 34 MOTION for Reconsideration re 28 Order on Motion for TRO, Order on Motion for Preliminary Injunction, Order on Motion for Miscellaneous Relief,,,,,,,,,,,,,,,,,, filed by Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan, John F. Kelly, James McCament. (Robins, Jeffrey) (Entered: 07/24/2017)
40 Consent MOTION for Extension of Time to File Answer re 8 Amended Complaint, by Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan, John F. Kelly, James McCament. (Attachments: # 1 Text of Proposed Order)(Robins, Jeffrey) (Entered: 07/24/2017)
41 ORDER granting 40 Motion for Extension of Time to Answer; Defendants' Answers to the amended complaint due 8/14/2017. Signed by Judge Mark H. Cohen on 7/25/17. (jpa) (Entered: 07/25/2017)
42 Request for Leave of Absence for the following date(s): 8/7/17, 8/8/17, 8/9/17, 8/10/17, 8/11/17, by Jeffrey S. Robins. (Robins, Jeffrey) (Entered: 07/28/2017)
43 ORDER denying 34 Motion for Reconsideration. Signed by Judge Mark H. Cohen on 7/31/17. (jpa) (Entered: 07/31/2017)
44 MOTION to Stay Proceedings Pending Further Administrative Action with Brief In Support by Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan, John F. Kelly, James McCament. (Attachments: # 1 Exhibit Declaration of Neil M. Jacobson, # 2 Text of Proposed Order)(Robins, Jeffrey) (Entered: 08/14/2017)
45 ORDER that Plaintiff shall file a response to the 44 MOTION to Stay on or before 8/18/17. Signed by Judge Mark H. Cohen on 8/15/17. (jpa) (Entered: 08/15/2017)
46 RESPONSE re 44 MOTION to Stay Proceedings Pending Further Administrative Action filed by Jessica M. Colotl Coyotl. (Eiland, Katrina) (Entered: 08/17/2017)
Submission of 44 MOTION to Stay Proceedings Pending Further Administrative Action, submitted to District Judge Mark H. Cohen. (jpa) (Entered: 08/21/2017)
47 ORDER granting in part the 44 Motion to Stay. Defendants' responsive pleading to Plaintiff's Amended Complaint is extended through and including October 2, 2017. Signed by Judge Mark H. Cohen on 8/21/17. (jpa) (Entered: 08/21/2017)
Set Deadlines/Hearings: Defendants' answers due 10/2/2017. (jpa) (Entered: 08/21/2017)
48 MOTION for Extension of Time to File Answer with Brief In Support by Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan, John F. Kelly, James McCament, Sirce Owen, Alfie Owens, Lori Scialabba. (Attachments: # 1 Text of Proposed Order Proposed order granting extension of time)(Walker, James) (Entered: 10/02/2017)
49 ORDER GRANTING 48 Motion for Extension of Time to Answer. Defendants' Answer due 10/30/2017. Signed by Judge Mark H. Cohen on 10/16/17. (bnw) (Entered: 10/16/2017)
50 NOTICE by Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan, John F. Kelly, James McCament re 28 Order on Motion for TRO,,,,,,, Order on Motion for Preliminary Injunction,,,,,,, Order on Motion for Miscellaneous Relief,,,,,,

10/25/2017 10/26/2017 10/26/2017
10/26/2017
10/26/2017 11/01/2017 11/03/2017 11/03/2017 11/06/2017 11/07/2017 11/08/2017 11/08/2017

(Attachments: # 1 Exhibit, # 2 Exhibit)(Robins, Jeffrey) (Entered: 10/25/2017)
51 Emergency MOTION to Dismiss Amended Complaint, Emergency MOTION for Order Dissolving Preliminary Relief with Brief In Support by Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan, John F. Kelly, James McCament. (Attachments: # 1 Brief Memorandum in Support)(Robins, Jeffrey) (Entered: 10/25/2017)
52 APPLICATION for Admission of David Hausman Pro Hac Vice (Application fee $ 150, receipt number 113E−7469876)by Jessica M. Colotl Coyotl. (Claffey, Danielle) (Entered: 10/26/2017)
53 Second AMENDED COMPLAINT against All Defendants, filed by Jessica M. Colotl Coyotl. (Attachments: # 1 Exhibit Plaintiffs Response to Defendants Notice of Intent to Deny)(Eiland, Katrina) Please visit our website at http://www.gand.uscourts.gov/commonly−used−forms to obtain Pretrial Instructions which includes the Consent To Proceed Before U.S. Magistrate form. (Entered: 10/26/2017)
54 ORDER: It is hereby ORDERED that Plaintiff file a response to Defendants' October 25, 2017, filings no later than November 1, 2017, and that Defendants file any reply to such response no later than November 6, 2017. 51 Emergency Motion to Dismiss Plaintiffs Amended Complaint or, in the Alternative, Dissolve Preliminary Relief Hearing is set for 11/9/2017 at 01:30 PM in ATLA Courtroom 1905 before Judge Mark H. Cohen. As stated in this Court's June 12, 2017, Order, Plaintiff's DACA and employment authorization shall remain in effect until such time as this Court issues a ruling on Defendants' Emergency Motion. See Order for more details. Signed by Judge Mark H. Cohen on 10/26/17. (bnw) (Entered: 10/26/2017)
55 RESPONSE re 50 Notice (Other), Notice of Compliance filed by Jessica M. Colotl Coyotl. (Eiland, Katrina) (Entered: 10/26/2017)
56 Second MOTION for Preliminary Injunction and Opposition to the Motion to Dissolve by Jessica M. Colotl Coyotl. (Attachments: # 1 Brief Memorandum in Support, # 2 Affidavit Declaration of Katrina Eiland, # 3 Exhibit Exhibit 1, # 4 Exhibit Exhibit 2, # 5 Exhibit Exhibit 3, # 6 Text of Proposed Order Proposed Order)(Eiland, Katrina) (Entered: 11/01/2017)
APPROVAL by Clerks Office re: 52 APPLICATION for Admission of David Hausman Pro Hac Vice (Application fee $ 150, receipt number 113E−7469876). Attorney David Hausman added appearing on behalf of Jessica M. Colotl Coyotl (pmb) (Entered: 11/03/2017)
MINUTE ORDER granting 52 Application for Admission Pro Hac Vice of David Housman by CRD by direction of the Court. Approved by Judge Mark H. Cohen on 11/3/17. (jgs) (Entered: 11/03/2017)
57 RESPONSE in Opposition re 56 Second MOTION for Preliminary Injunction and Opposition to the Motion to Dissolve filed by Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan, John F. Kelly, James McCament. (Attachments: # 1 Exhibit Declaration of Alexander R. King)(Robins, Jeffrey) (Entered: 11/06/2017)
58 STIPULATION re 53 Amended Complaint, by Jessica M. Colotl Coyotl. (Attachments: # 1 Text of Proposed Order)(Eiland, Katrina) (Entered: 11/07/2017)
59 ORDER re 58 Stipulation filed by Jessica M. Colotl Coyotl: It is hereby ORDERED that Plaintiff's 53 Second Amended Complaint is deemed filed, and that Defendants' time to answer the Second Amended Complaint is extended to 12/22/17. Signed by Judge Mark H. Cohen on 11/8/17. (bnw) (Entered: 11/08/2017)
60 ORDER: It is hereby ORDERED as follows: (1) Defendants' 51 Emergency Motion to Dismiss Plaintiffs Amended Complaint or, in the Alternative, Dissolve Preliminary Relief is DENIED WITHOUT PREJUDICE; (2) The hearing previously scheduled for November 9, 2017, is cancelled; (3) Once Defendants file an answer or otherwise respond to the Second Amended Complaint on or before December 22, 2017, the Court will set a date for a hearing on the remaining pending motions, if necessary; and (4) The terms of this Court's June 12, 2017, preliminary injunction shall remain in effect until further Order of the Court. Signed by Judge Mark H. Cohen on 11/8/17. (bnw) (Entered: 11/08/2017)

11/20/2017 11/21/2017 11/28/2017 12/22/2017
12/26/2017 01/05/2018 01/09/2018 01/09/2018
01/12/2018
01/22/2018 02/02/2018 02/02/2018 02/07/2018 02/08/2018 02/14/2018

61 REPLY to Response to Motion re 56 Second MOTION for Preliminary Injunction and Opposition to the Motion to Dissolve filed by Jessica M. Colotl Coyotl. (Eiland, Katrina) (Entered: 11/20/2017)
Submission of 56 Second MOTION for Preliminary Injunction and Opposition to the Motion to Dissolve, submitted to District Judge Mark H. Cohen. (jpa) (Entered: 11/21/2017)
62 NOTICE by Jessica M. Colotl Coyotl Notice of Supplemental Authority (Attachments: # 1 Exhibit Exhibit A)(Eiland, Katrina) (Entered: 11/28/2017)
63 STIPULATION for Enlargement of Time, Entry of Briefing Schedule, and Enlargement of Page Limits by L. Francis Cissna, Elaine C. Duke, Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan. (Attachments: # 1 Text of Proposed Order)(Robins, Jeffrey) Modified on 12/26/2017 to remove all cap (btql). (Entered: 12/22/2017)
64 ORDER: This Court hereby GRANTS the terms of that 63 Stipulation. See Order for more details. Signed by Judge Mark H. Cohen on 12/26/17. (bnw) (Entered: 12/26/2017)
65 STIPULATION for enlargement of time and revision of briefing schedule by L. Francis Cissna, Elaine C. Duke, Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan. (Attachments: # 1 Text of Proposed Order)(Robins, Jeffrey) (Entered: 01/05/2018)
Submission of 65 Stipulation, submitted to District Judge Mark H. Cohen. (jpa) (Entered: 01/09/2018)
66 ORDER GRANTING 65 Stipulation. Defendants' responsive pleading to Plaintiff's Second Amended Complaint is extended to January 12, 2018; The Count enters the following briefing schedule: Plaintiff's opposition and cross motion: February 20, 2018. Defendants' opposition and reply: March 13, 2018. Plaintiff's reply: March 27, 2018. Signed by Judge Mark H. Cohen on 1/9/18. (jpa) (Entered: 01/09/2018)
67 MOTION to Dismiss, or, in the alternative, MOTION for Summary Judgment with Brief In Support by L. Francis Cissna, Elaine C. Duke, Sean W. Gallagher, Mark J. Hazuda, Thomas D. Homan. (Attachments: # 1 Brief Memorandum in Support, # 2 Statement of Material Facts, # 3 Exhibit Administrative Record Part 1, # 4 Exhibit Administrative Record Part 2)(Robins, Jeffrey) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− Modified on 1/16/2018 to term part of the motion (jpa). (Entered: 01/12/2018)
68 Administrative Order Staying Civil Proceedings in Light of Lapse Appropriations. Signed by Judge Thomas W. Thrash, Jr on 1/22/2018. (btql) (Entered: 01/23/2018)
Submission of 67 MOTION to Dismiss MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION for Summary Judgment , submitted to District Judge Mark H. Cohen. (bnw) (Entered: 02/02/2018)
Notification of Docket Correction re Submission to District Judge of 67 : Clerk's error. Submission Premature. (bnw) (Entered: 02/02/2018)
69 STIPULATION re 67 MOTION to Dismiss MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION for Summary Judgment to hold briefing schedule in abeyance by Jessica M. Colotl Coyotl. (Attachments: # 1 Text of Proposed Order)(Eiland, Katrina) (Entered: 02/07/2018)
70 ORDER re 69 Stipulation: It is hereby ORDERED that the briefing schedule for Defendants' Motion to Dismiss and Alternative Motion for Summary Judgment, (see 66 ), is held in abeyance pending further motion from the parties or order of the Court. Signed by Judge Mark H. Cohen on 2/8/18. (bnw) (Entered: 02/08/2018)
Submission of 67 MOTION to Dismiss MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION for Summary Judgment , submitted to District Judge Mark H. Cohen. (bnw) (Entered: 02/14/2018)

02/15/2018 05/09/2018
05/18/2018 05/21/2018 05/25/2018 05/25/2018
05/25/2018

Notification of Docket Correction re Submission to District Judge. Clerk's error. Submission premature. (bnw) (Entered: 02/15/2018)
71 ORDER: It is hereby ORDERED that the parties submit a joint status report within the (10) days of the date of this Order indicating whether this case will be resolved by settlement or whether a revised schedule for motions and briefs should be set. Signed by Judge Mark H. Cohen on 5/9/18. (bnw) (Entered: 05/09/2018)
72 STATUS REPORT re 71 Order Joint Status Report In Response to the Court's May 9, 2018 Order by Jessica M. Colotl Coyotl. (Eiland, Katrina) Modified on 5/21/2018 to edit text (bnw). (Entered: 05/18/2018)
Submission of 72 Status Report to District Judge Mark H. Cohen. (bnw) (Entered: 05/21/2018)
73 STIPULATION of Dismissal and Settlement by Jessica M. Colotl Coyotl. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order Proposed Order)(Eiland, Katrina) (Entered: 05/25/2018)
74 ORDER re 73 Stipulation. Having read and considered the Joint Stipulation of Settlement and Dismissal, and pursuant to the Parties' Stipulation, this Court dismisses Plaintiff's Second Amended Complaint with prejudice, with each party bearing its own costs including attorneys' fees. Signed by Judge Mark H. Cohen on 5/25/18. (bnw) (Entered: 05/25/2018)
Civil Case Terminated. (bnw) (Entered: 05/25/2018)

 
 Case 1:17-cv-01670-MHC Document 28 Filed 06/12/17 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

JESSICA M. COLOTL COYOTL,

Plaintiff,
V.
JOHN F. K E L L Y , Secretary, Department of Homeland Security; M A R K J . HAZUDA, Director, Nebraska Service Center, U.S. Citizenship and Immigration Services; JAMES McCAMENT, Acting Director, U.S. Citizenship and Immigration Services; THOMAS D. HOMAN, Acting Director, U.S. Immigration and Customs Enforcement; and SEAN W. G A L L A G H E R , Atlanta Field Office Director, U.S. Immigration and Customs Enforcement,

CIVIL ACTION FILE NO. 1:17-CV-1670-MHC

Defendants.

ORDER

This case comes before the Court on Plaintiff Jessica M . Colotl Coyotl's

Emergency Motion for a Temporary Restraining Order and/or for a Preliminary

Injunction [Doc. 14] ("PL's Mot."). Plaintiff seelcs an order from this Court that

temporarily enjoins the revocation of her deferred action immigration status under

the Deferred Action for Childhood Arrivals ("DACA") program pending an

Case 1:17-cv-01670-MHC Document 28 Filed 06/12/17 Page 2 of 33
eligibility determination that comports with the Administrative Procedure Act ("APA") and the Due Process Clause of the Fifth Amendment. First Am. Compl. For Declaratory & Injunctive Relief [Doc. 8] ("Am. Compl.") ^f^ 74-85. I. BACKGROUND
A. Plaintiff Jessica Colotl Plaintiff is a twenty-eight-year-old citizen of Mexico, who has lived continuously in the United States since she first entered here without inspection in 1999 when she was eleven years old. Decl. of Jessica M . Colotl Coyotl dated May 22, 2017 [Doc. 14-2] ("Colotl Decl") Tj 1; Am. Compl. ^ 17. She graduated from Lakeside High School in DeKalb County, Georgia, in May 2006, with honors. Colotl Decl. 2. She then earned a bachelor's degree in political science from Kennesaw State University in 2011, where she was named to the President's List for her academic performance. Id. Tf^f 3-4. While attending college, she was active in several student organizations, including the Hispanic Scholarship Fund and the Mexican American Student Alliance. Id. ^ 3. She also helped found the Epsilon Alpha Chapter of the Lambda Theta Alpha sorority, an organization dedicated to the needs of Latinas and women. Id. Since graduating. Plaintiff has worked at a local law firm and aspires to attend law school and become an immigration lawyer. I d ^5. She has also
2

Case 1:17-cv-01670-MHC Document 28 Filed 06/12/17 Page 3 of 33
continued to remain active in the community, volunteering for the Annual Latino Youth Leadership Conference, donating blood platelets at Northside Hospital in Atlanta, Georgia, and fundraising for St. Jude Children's Hospital. Id, 6-7. She is also a member of a church in Norcross, Georgia and remains active in her
sorority. jW, IfTf 6-7. Plaintiff has advocated for immigration reform locally and in
Washington, D.C. I d ^ j S . B. Plaintiffs Arrest and Criminal Proceeding On March 29, 2010, Plaintiff was pulled over by campus police for allegedly
blocking traffic while waiting for a parking space. Id, 1| 9; Am. Compl. ^ 47. She had no driver's license because she is ineligible to obtain one in Georgia due to her immigration status. Colotl Decl. ^ 9. The next day, Plaintiff was arrested on charges of impeding the flow of traffic and driving without a license, and booked into the Cobb County jail. I d T| 10; Am. Compl. ^ 48. After a jury trial, Plaintiff was acquitted of impeding the flow of traffic, but found guilty of the misdemeanor offense of driving without a license, for which she served three days in jail and paid a fme. Colotl Decl. 10; Am. Compl. ^ 48.
In February 2011, Plaintiff was indicted for allegedly making a false statement during the process whereby she was booked into the Cobb County jail on the earlier traffic violation charges. Colotl Decl. ^11; Am. Compl. *1| 52. It was
3

Case 1:17-cv-01670-MHC Document 28 Filed 06/12/17 Page 4 of 33
alleged that Plaintiff knowingly provided a false address during booking; although she never told an officer her address, an officer recorded address information from a vehicle insurance card that the officer took from her purse. Colotl Decl. IfH 1112. The address the officer recorded from Plaintiffs insurance card was, in fact, her correct permanent home address at that time. Id, ^ 13. Her parents moved from that address one month later, in April 2010. Id,
Plaintiff entered a plea of not guilty to the false statement charge and the District Attorney offered her the option of entering into a pre-trial diversion program as an alternative to prosecution, whereby she would not be required to enter a guilty plea and the charge would be dismissed upon completion of her community service. Id, ^ 14; Am. Compl. ^ 52. Plaintiff elected to enter the diversion program and signed a "Diversion Agreemenf containing a statement acknowledging that her participation in the program constituted an admission of guilt to the charge against her. Diversion Agreement [Doc. 14-25] at 84-87. Plaintiff successfully completed the diversion program, and the false statement charge was dismissed in January 2013. See Order dated Jan. 9, 2013 [Doc. 14-4] (dismissing criminal case against Plaintiff). Plaintiff has no other criminal history. Colotl Decl. ^ 18.
4

Case 1:17-cv-01670-MHC Document 28 Filed 06/12/17 Page 5 of 33
C. Plaintiffs Removal Proceeding After Plaintiffs arrest in March 2010, she was referred to U.S. Immigration and Customs Enforcement ("ICE"), which initiated removal proceedings. Id. ^ 19;
Am. Compl. Iflf 55-56. Plaintiff was placed in immigration detention during the
removal proceedings, where she was detained for approximately one month. Colotl Dec. ^ 20. On April 28, 2010, she accepted an order of voluntary departure, which permitted her to leave the United States within thirty days without the entry of a deportation order. Id, If 21; Am. Compl. Tf 57. After receiving her voluntary departure order, Plaintiff was granted deferred action status by the U.S. Department of Homeland Security ("DHS"), resulting in her release from detention and allowing her to remain in the United States to complete her undergraduate degree. Colotl Decl. Tf 22; Am. Compl. Tf 58.
On July 15, 2014, Plaintiff moved the immigration court to reopen her removal proceeding and administratively close the case. See Decision of Board of Immigration Appeals ("BIA") dated Oct. 6, 2016 [Doc. 14-11] ("BIA Decision"); Am. Compl. Tf 59. The immigration judge denied her request on January 26, 2015, and Plaintiff appealed. BIA Decision; Am. Compl. Tf 60. The BIA sustained Plaintiffs appeal, reversed the immigration judge's decision, reopened Plaintiffs removal proceeding, and remanded the case to the immigration court for
5

Case 1:17-cv-01670-MHC Document 28 Filed 06/12/17 Page 6 of 33
administrative closure. BIA Decision; Am. Compl. ^ 60. Although her immigration case was remanded to the immigration court on October 6, 2016, with an order to administratively close the case, no action has been taken to close that case and it remains pending as of the date of this Order. Am. Compl. Tf 61. On March 29, 2017, ICE counsel filed a brief in opposition to Plaintiffs motion to reopen her removal proceeding and administratively close her case, making the following argument: "[0]n February 20, 2017, the Department [of Homeland Security] issued a memorandum, titled 'Enforcement of the Immigration Laws to Serve the National Interest.' Due to the respondent's criminal history, she is an enforcement priority under this memorandum." DHS's Suppl. Br. on Eligibility for Relief [Doc. 14-12] (filed in Plaintiffs removal proceeding) at 3.
D. Plaintiffs Deferred Action Status From 2010-2017 Plaintiff has been on deferred action status from May 5, 2010, until May 3, 2017, the last four years of which have been under the DACA program. Colotl Decl. Tf 22; Am. Compl. Tf 17. Plaintiff first received deferred status under DACA on July 1, 2013. Colotl Decl. Tf 29. She applied for and received a renewal of her DACA status on May 19, 2015, which remained valid through May 18, 2017. I d Plaintiff also applied for and received work authorization in conjunction with the grants of deferred action and DACA. I d T^ 30. Each of Plaintiff s applications for
6

Case 1:17-cv-01670-MHC Document 28 Filed 06/12/17 Page 7 of 33
DACA disclosed all relevant information regarding her criminal history, including a copy of her pre-trial diversion agreement. Id. Tf 32.
Plaintiffs latest application for a renewal of her DACA status and work authorization was submitted on December 19, 2016. Id, Tf 31. On May 2, 2017, Plaintiffs renewal application was denied. I d Tf 33; Am. Compl. Tf 69. Although Plaintiff did not receive notice on May 2, 2017, that her DACA renewal application was denied, DHS's website that day indicated that her DACA renewal application was denied and that a decision notice was mailed to her "that explains why we denied your case and your options." Screenshot of U.S. Citizen and Immigration Services ("USCIS") website [Doc. 19-2].
Subsequently, on May 3, 2017, USCIS issued a notice of termination of Plaintiffs DACA status and employment authorization. See Termination Notice Doc. 1-11] at 7, attached as an Ex. to DHS's Second Suppl. Br. in PL's removal proceeding; Colotl Decl. Tf 34. The May 3, 2017, Termination Notice provided that: "USCIS has determined that exercising prosecutorial discretion in your case is not consistent with the Department of Homeland Security's enforcement priorities." Termination Notice; Colotl Decl. Tf 34; Am. Compl. Tf 70. The Termination Notice did not contain any further explanation of the decision and
7

Case 1:17-cv-01670-MHC Document 28 Filed 06/12/17 Page 8 of 33
made no reference to the denial of Plaintiff s DACA renewal application one day earher.^ Termination Notice; Colotl Decl. T| 34; Am. Compl. Tf 70.
On May 8, 2017, USCIS issued a "Decision" as to Plaintiffs DACA renewal application indicating that her "previous request for DACA was terminated on May 3, 2017," and stating that "USCIS has determined, in its unreviewable discretion, that you have not demonstrated that you warrant a favorable exercise of prosecutorial discretion and it will not defer action in your matter." Decision [Doc. 18-2]. Plaintiff has been provided no opportunity to contest either the May 3, 2017, Termination Notice or the May 8, 2017, Decision.
E . The DACA Program On June 15, 2012, former Secretary of Homeland Security Janet Napolitano announced the creation of the DACA program. Memorandum from Janet Napolitano dated June 15, 2012 [Doc. 14-14] ("Napolitano Memo"). In her memorandum, Napolitano provided DHS with guidelines regarding the exercise of ^ Several media outlets previously reported that a USCIS spokesperson publicly stated that Plaintiffs DACA status was terminated because of her guilty plea associated with her entry into the pre-trial diversion program. See, e.g., Kate Brumback, Protection from Deportation Revoked for Former Cause Celebre, Associated Press, May 10, 2017 [Doc. 14-28]; Jeremy Redmon, Trump Administration Strips Georgia Woman of Reprieve from Deportation, Atlanta Journal-Constitution, May 10, 2017 [Doc. 14-29]. However, Defendants now acknowledge that "Plaintiffs pre-trial diversion agreement was not a conviction for immigration purposes." Mem. of Law in Opp'n to PL's Mot. [Doc. 18] ("Defs.' Resp.")at 17n.l0.
8

Case 1:17-cv-01670-MHC Document 28 Filed 06/12/17 Page 9 of 33
its prosecutorial discretion to focus enforcement efforts away from low priority cases, including individuals who came to the United States as children. Id, The Napolitano Memo listed the following five criteria that must be satisfied before an individual can be considered for an exercise of prosecutorial discretion under DACA:
• came to the United States under the age of sixteen; • has continuously resided in the United States for a least five
years preceding the date of this memorandum and is present in the United States on the date of this memorandum; • is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; • has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and • is not above the age of thirty. Id. Individuals must also pass a criminal background check to be eligible for DACA. Id, at 2. Under the DACA program, deferred action is provided for a renewable period of two years, and DACA recipients are eligible to apply for work authorization during the period of deferred action. Id, at 3; see also 8 C.F.R.
9

Case 1:17-cv-01670-MHC Document 28 Filed 06/12/17 Page 10 of 33
§ 274a.l2(c)(14) (permitting USCIS to establish a specific period for employment authorization for aliens who have been granted deferred action).
The National Standard Operating Procedures ("SOP") issued by DHS describe the procedures to be followed in adjudicating DACA requests and terminating DACA status. See National Standard Operating Procedures (SOP), Deferred Action for Childhood Arrivals (DACA), Version dated Apr. 4, 2013 [Doc. 14-17] ("April 4 SOP"), and Version dated Aug. 25, 2013 [Docs. 18-2 & 241] ("August 28 SOP").^ The SOP states that it is applicable to all personnel performing adjudicative functions and the procedures to be followed are not discretionary. April 4 SOP at 16; Tr. of Mot. for Prelim. Inj. Hr'g [Doc. 27] at 29 (including the confirmation from counsel for Defendants that "[t]hey are the guidelines that adjudicators are to apply.").
^ In their response to Plaintiffs motion. Defendants attached a revised portion of Chapter 14 ofthe SOP dated August 28, 2013, as well as an Appendix to the SOP dated December 29, 2015. [Doc. 18-2 at 59-70.] At the June 8, 2017, hearing on Plaintiffs motion, the Court provided Defendants until the end of that day to provide a more complete version ofthe SOP, which was filed provisionally under seal based upon Defendants' contention that they had insufficient time to redact those portions of the SOP that may reveal privileged or sensitive law enforcement information. See Defs.' Mot. to File Supp. Exs. Under Seal [Doc. 25]. The Court will rule on Defendants' motion to seal by a separate order. Nevertheless, citations to the April 4 SOP reflect that there has been no change to the cited provisions in the August 28 SOP.
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1. The SOP Requirements Relating to DACA Applications

Chapter 8 ofthe SOP, entitled "adjudication of the DACA Request,"

indicates that

Officers will NOT deny a DACA request solely because the DACA requestor failed to submit sufficient evidence with the request (unless there is sufficient evidence in our records to support a denial). As a matter of policy, officers will issue an RFE [Request for Evidence] or a Notice of Intent to Deny (NOID).

I f additional evidence is needed, issue an RFE whenever possible.

When an RFE is issued, the response time given shall be 87 days.

>l< * H«
When a NOID is issued, the response time given shall be 33 days.

April 4 SOP at 45. The SOP also states that: "In general, the officer shall issue a

denial whenever the requestor's response to a Request for Evidence (RFE) or

Notice of Intent to Deny (NOID) is insufficient to establish eligibility. There may

be exceptions when a NOID or second RFE is appropriate after an initial RFE."

I d at 105.

To clarify these directives, DHS issued an intemal question and answer

section specifically pertaining to DACA applications:
Question: Should centers deny a DACA request without first issuing an RFE or NOID?

Answer:

In general, SCOPS [Service Center Operations] requires the Centers to issue either an RFE or NOID before
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denying a DACA request. An RFE is appropriate when the record lacks sufficient evidence to demonstrate that the requestor satisfies one or more of the guidelines, and a NOID is appropriate when the record contains evidence that the requestor clearly does not satisfy one or more of the guidelines (e.g., disqualifying action/event).
However, the Centers may deny a DACA request without first issuing an RFE or NOID when the record contains irrefutable evidence that the requestor:
» Is deceased. • Was in immigration detention at the time of filing,
remains in immigration detention as of the date the 1-82ID is adjudicated, and • ICE indicates that it does not intend to
physically release the requestor within 30 days; or • ICE confirms the individual is an enforcement priority. • At the time of filing, was under age 15 and was not in removal proceedings, did not have a final removal order, or did not have a voluntary departure order. • Did not arrive in the United States before reaching his/her 16* birthday. • Was age 31 or older on 6/15/2012. • Was convicted of a felony that poses a threat to public safety, as described on pages 3 & 4 of the 11/7/2011 NTA Memorandum. • Already received deferred action as a childhood arrival from USCIS or ICE. • Acquired lawful immigration status after 6/15/2012 and is in a lawful immigration status as of the date the 1-82ID is adjudicated. ® Was a lawful permanent resident on 6/15/2012.
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• Was under an order of voluntary departure or deportation, exclusion, or removal and was physically removed by ICE or voluntarily departed the U.S. while their form 1-82ID was pending with USCIS and such departure was witnessed by a DHS official.
® USCIS records show that the requestor's previous DACA request (initial or renewal) was terminated on the basis of 1) issuance of an NTA; 2) travel outside of the U.S. without advance parole; 3) being an enforcement priority/public safety concem; or 4) fraud.
When the Centers deny a DACA request without issuing an RFE or NOID, they will include a brief executive summary of the decision in the A-file.
Please see the DACA SOP and Intemal FAQs for additional information about handling procedures for these scenarios. I f you believe a straight denial is appropriate for a particular case that does not fall within one of the categories identified above, please send a Request for Adjudicative Guidance to the HQSCOPS [Headquarters Service Center Operations] DACA mailbox.
DHS Intemal FAQ: NOID vs. Denial updated Sept. 2, 2015 [Doc. 24-1], submitted
as Ex. K to Defs.' Resp. (emphasis in original).
^ DACA SOP Appendix E (NOIDS) contains language to be used in Notice of Intent to Deny letters under different factual circumstances. See DACA SOP, Appendix E [Doc. 24] ("App. E") submitted as Ex. H to Defs.' Resp. For example, the DACA SOP contemplates sending a Notice of Intent to Deny to an applicant who has been convicted of three or more non-significant misdemeanors, id. at 8, and to an applicant who has been convicted of one significant misdemeanor. Id, at
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In summary, the SOP provides that, in the usual circumstance, an application for an initial or renewed DACA status should not be denied without the issuance of a Request for Evidence or a Notice of an Intent to Deny, either of which provides time for the applicant to respond prior to fmal action being taken. There are several listed scenarios under which a DACA application can be denied without first issuing a RFE or NOID, but Defendants have not presented any evidence that any of those listed scenarios applies to Plaintiff. Finally, if the adjudicator believes that a "straight denial" without the opportunity for an applicant to respond is "appropriate," and the situation is not covered by any of the listed scenarios, a "Request for Adjudicative Guidance" must be made; moreover, if a denial of a request is made without providing the applicant with an opportunity to respond, a "brief executive summary" of that decision must be placed in the file.
2. The SOP Requirements Relating to DACA Terminations Chapter 14 of the SOP, entitled "DACA Termination," provides as follows: I f 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 a Notice of Intent to Terminate, unless there are criminal, national security, or public safety concerns (see below). The individual should be allowed 33 days to file a brief or statement contesting the grounds cited in the Notice of Intent to Terminate. The 10. There is no suggested language concerning an applicant who has been convicted of one non-significant misdemeanor.
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Notice of Intent to Terminate should include a statement that i f deferred action for childhood arrivals is terminated, any associated employment authorization granted during the period of deferred action will be terminated for cause.
I f the adverse grounds are not overcome, or no response is received to the Notice of Intent to Terminate, the officer should prepare a Termination Notice and seek supervisory review of the draft Termination Notice, prior to issuance. The Termination Notice should indicate that the individual's employment authorization is terminated for cause as of the date of the notice.
August 28 SOP at 136. However, i f it comes to light that an applicant is granted
DACA status in error due to, among other things, a disqualifying criminal offense,
the SOP provides as follows:
I f disqualifying criminal offenses or public safety concems, which are deemed to be EPS [Egregious Public Safety], arise after removal has been deferred under DACA, the officer should forward the case to the BCU [Background Check Unit] DACA Team who, in tum, will refer the case to ICE and follow the handling procedures outlined in the November 7, 2011 NTA [Notice to Appear] memorandum for EPS cases. I f ICE accepts the case, the issuance of the NTA will result in the termination of DACA. Upon the filing of the NTA with EOIR [Executive Office for Immigration Review], the individual's employment authorization terminates automatically.
I f ICE does not accept the case or if the disqualifying criminal offense is non-EPS per the November 7, 2011 NTA memorandum, the BCU DACA Team should reopen the case on Service motion and issue a Notice of Intent to Terminate. The individual should be allowed 33 days to file a brief or statement contesting the grounds cited in the Notice of Intent to Terminate. The Notice of Intent to Terminate should include a statement that i f deferred action for childhood arrivals is terminated, any associated employment authorization
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granted during the period of deferred action will be terminated for cause.
I f the adverse grounds are not overcome, or no response is received to the Notice of Intent to Terminate, the officer should prepare a Termination Notice and seek supervisory review of the draft Termination Notice prior to issuance. The Termination Notice should indicate that the individual's employment authorization is terminated for cause as of the date of the notice. Consequently, the Class of Admission (COA) code in CIS [Central Index System] should be changed to DAT (Deferred Action Terminated) for employment verification purposes. Additionally, the BCU DACA Team should forward the individual's name to ERO [Enforcement and Removal Operations^.
I d at 137.
In another circumstance.
I f after consulting with ICE, USCIS determines that exercising prosecutorial discretion after removal has been deferred under DACA is not consistent with the Department of Homeland Security's enforcement priorities, and ICE does not plan to issue an NTA, the officer should refer the case to HQSCOPS [Headquarters Service Center Operations], though the normal chain of command, to determine whether or not a NOIT is appropriate. I f it is determined that the case warrants final termination, the officer will issue DACA 603—Termination Notice . . . .
I d at 138.
In summary, the SOP provides that, in the usual circumstance, a termination
of an individual's DACA status will not occur without prior notice to that
individual. In the situation where USCIS determines that the continued exercise of
prosecutorial discretion after removal has been deferred "is not consistent with 16

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DHS's] enforcement priorities," the matter must be referred to a more senior authority for a determination of whether a notice of intent to termination "is appropriate."
F. The Preliminary Injunction Hearing At the hearing on Plaintiffs motion held on June 8, 2017, counsel for Defendants confirmed that Plaintiff has at all relevant times met all five DACA program eligibility criteria delineated in the Napolitano Memo and that there has been no change with respect to those criteria since Plaintiff initially obtained deferral under DACA on July 1, 2013. THE COURT: Under the Secretary Napolitano's memo - let me pull that out here - of June 15, 2012, there are five criteria listed that need to be satisfied before an individual is even considered for the exercise of prosecutorial discretion under DACA. It's true, is it not, that the plaintiff fulfilled those criteria during the period of time that she was granted DACA status and then renewed DACA status the first time, is that correct? MR. ROBINS: Yes. THE COURT: All right. Are any of those five criteria, did something occur prior to the current decisions which are before the Court? And that is, not to renew her DACA status in particular, but also to terminate her DACA status where she no longer M f i l l s one of these all five of those criteria. MR. ROBINS: No, I don't believe so, your Honor.
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Tr. of Mot. for Prelim. Inj. Hr'g at 30. Counsel for Defendants also admitted that there was no disqualifying criminal offense or egregious public safety concem that arose after Plaintiffs removal was deferred. Id. at 33.
Counsel for Defendants indicated that the only change that has occurred since Plaintiff initially received her DACA status and had that status renewed is the issuance of a Memorandum from the current Secretary of DHS, John Kelly, on February 20, 2017, entitled "Enhancing Public Safety in the Interior of the United States" [Doc. 18-2 at 48-53] ("Kelly Memo"). Tr. of Mot. for Prelim. Inj. Hr'g at 40-41. Although the Kelly Memo purports to rescind and supersede "all existing conflicting directives, memoranda, or field guidance regarding the enforcement of our immigration laws and priorities for removal," it specifically excludes "the June 15, 2012, memorandum entitled 'Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,'" i.e., the Napolitano Memo. Kelly Memo at 2.
In addition, DHS has published on its website a series of questions and answers related to how the Kelly Memo will be implemented operationally. See printout of DHS website dated May 18, 2017 [Doc 14-16]. The document poses the question: "Do these memoranda affect recipients of Deferred Action for
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Childhood Arrivals (DACA)?" The answer is clear and unambiguous: "No." Id. at 9.
Counsel for Defendants was unable to provide the Court the actual reason for the decisions to terminate Plaintiffs DACA status and deny her renewal application. Tr. of Mot. for Prelim. Inj. Hr'g at 42-45. Counsel for Defendants confirmed that Plaintiffs pre-trial diversion agreement is not considered to be a conviction for immigration purposes, but speculated that USCIS may have considered Plaintiffs misdemeanor conviction of driving without a license (which Defendants were aware of since 2010) as well as the Kelly Memo (which, as stated above, specifically excludes the DACA Program). Likewise, Defendants were unable to confirm that DHS's Standard Operating Procedures under the DACA program were followed with respect to the review of Plaintiff s renewal application or the decision to terminate her DACA status. See id, at 33-34, 42-43. IL SUBJECT MATTER JURISDICTION
The first issue which must be determined is whether the Court has jurisdiction to hear this case. Plaintiff alleges that the Court has jurisdiction pursuant to: (1) 28 U.S.C. §§ 1331, 1343; (2) 5 U.S.C. § 701 et seq. (the APA);'^
The APA does not provide the Court with an independent basis for subject matter jurisdiction. See Califano v. Sanders, 430 U.S. 99, 106-07 (1977). I f at all, subject matter jurisdiction is proper under the APA only in combination with the Court's
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and (3) authority to grant declaratory relief under 28 U.S.C. §§ 2201, 2202 (the Declaratory Judgment Act). See Am. Compl. ^ 14. Defendants argue the Immigration and Nationality Act ("INA") explicitly precludes review of (1) the discretionary decision to terminate Plaintiffs DACA status, (2) the effects of that decision on Plaintiffs removal proceeding, and (3) any subsequent decision to take Plaintiff into custody during the pendency of her removal proceeding and any appeals. Defs.' Resp. at 10-16. Specifically, Defendants argue that two provisions within the INA, 8 U.S.C. §§ 1252(g) and 1252(b)(9), strip this Court of subject matter jurisdiction to hear Plaintiffs case. Defendants also contend that the APA does not permit judicial review of cases where agency action is committed to agency discretion by law.
Section 1252(g) provides that "no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attomey General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter." See also Gupta v. McGahey, 709 F.3d 1062, 1066 (11th Cir. 2013) (affirming the district court's dismissal
federal question jurisdiction under 28 U.S.C. § 1331. 14A Charles A. Wright, Arthur C. Miller & Edward H. Cooper, Federal Practice and Procedure § 3659, at 51 (3d ed. 1998). The federal question statute confers jurisdiction on the district courts over actions "arising under" federal law. 28 U.S.C. § 1331.
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pursuant to § 1252(g) after finding that the plaintiff was challenging "actions taken to commence removal proceedings.").
Section 1252(b)(9) ("Requirements for review of orders of removal") states that, with respect to review of an order of removal under the INA:
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a fmal order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact. 8 U.S.C. § 1252(b)(9). The Court agrees with Defendants that § 1252(g) strips this Court of jurisdiction to review the govemment's ultimate discretionary determination as to Plaintiffs DACA status. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 485 (1999) ("Section 1252(g) seems clearly designed to give some measure of protection to 'no deferred action' decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed."); see also Rodriguez v. Sessions, No. 1572487, 2017 WL 695192, at *1 (9th Cir. Feb. 22, 2017) ("We lack jurisdiction to
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Case 1:17-cv-01670-MHC Document 28 Filed 06/12/17 Page 22 of 33
consider [the plaintiffs] eligibility for Deferred Action for Childhood Arrivals."); Vasquez v. Aviles , 639 F. App'x 898, 901 (3rd Cir. 2016) ("[Section 1252(g)] deprives all courts of jurisdiction to review a denial of DACA relief because that decision involves the exercise of prosecutorial discretion not to grant a deferred action.") (citing Reno, 525 U.S. at 485); Fabian-Lopez v. Holder, 540 F. App'x 760, 761 n.2 (9th Cir. 2013) (determining that Section 1252(g) deprived the court of jurisdiction to consider the plaintiffs DACA eligibility); Tinoco v. Johnson, No. C 15-02801 WHA, 2015 WL 4396351, at *1 (N.D. Cal. July 17, 2015) ("Federal courts, however, lack subject-matter jurisdiction to determine DACA eligibility, as stated in 8 U.S.C. § 1252(g) " ) . However, the Court fmds that neither of the statutes relied upon by Defendants applies to the narrower issue also presented by this case; specifically, whether Defendants complied with their own procedures to (1) adjudicate Plaintiffs DACA renewal application, and (2) terminate Plaintiffs DACA status.
Section 1252(b)(9) relates to the review of orders of removal. Although Plaintiff is involved in an on-going removal proceeding that ultimately may result in an order regarding her removal from this country, there has been no such order issued. Similarly, the Court is not deprived of jurisdiction by § 1252(g) to consider whether Defendants followed their own procedures in denying Plaintiffs
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application for DACA renewal or terminating her DACA status. Section 1252(g) only strips district courts of jurisdiction to hear cases involving a "decision or action . . . to commence proceedings, adjudicate cases, or execute removal orders." As the Supreme Court explained in Reno, § 1252(g) does not apply to the entire universe of deportation-related claims, but instead
applies only to three discrete actions that the Attorney General may take: her "decision or action" to ''commence proceedings, adjudicate cases, or execute removal orders." There are of course many other decisions or actions that may be part of the deportation process-such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the fmal order that is the product of the adjudication, and to refuse reconsideration of that order. Reno, 525 U.S. at 482 (emphasis in original); see also Alvarez v. U.S. Immigration & Customs Enforcement, 818 F.3d 1194, 1202 (11th Cir. 2016) (stating that Reno "instructs us to narrowly interpret § 1252(g)—a command that our sister circuits have applied in subsequent cases."). In this case, a removal proceeding was commenced against Plaintiff in May 2010, but that decision to commence the proceedings is not presently before the Court. Likewise, there has been no adjudication in Plaintiffs removal proceeding nor is there any order to be executed. Accordingly, the Court fmds that neither of these statutes divests this Court of jurisdiction to hear Plaintiffs challenge to the non-discretionary process
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by which her DACA renewal application was determined and the nondiscretionary process by which her DACA status was terminated.
Likewise, Defendants' argument that § 701(a) of the APA bars this Court from reviewing an agency's non-discretionary review process fails. The Eleventh Circuit's decision in Perez v. U.S. Bureau of Citizenship & Immigration Servs. (USCIS), 774 F.3d 960 (11th Cir. 2014), illustrates the important distinction between challenges to an agency's ultimate discretionary decision and challenges to non-discretionary administrative determinations. In Perez, the plaintiff challenged a determination regarding his eligibility to apply to adjust his immigration status. Id, at 963. The court recognized that while the "ultimate decision whether to grant adjustment of status under the [Cuban Adjustment Act] is discretionary[,] . . . USCIS initial statutory-eligibility decisions, which are made before the discretionary decision whether to grant adjustment of status, are purely legal questions that do not implicate agency discretion." Id, at 965 (citing Mejia Rodriguez v. U.S. Dep't of Homeland Sec, 562 F.3d 1137, 1143-44 (11th Cir. 2009) (citation omitted). Put another way, "simply because the Secretary has the ultimate discretionary authority to grant an immigration benefit does not mean that every determination made by USCIS regarding an alien's application for that benefit is discretionary, and hence not subject to review." Mejia Rodriguez, 562
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F.3d at 1143. Similarly, in this case. Defendants' failure to follow the procedures detailed in the DACA SOP does not implicate agency discretion. Therefore, the jurisdiction-stripping provisions of 8 U.S.C. §§ 1252(g) and 1252(b)(9) and 5 U.S.C. § 701(a) are not applicable to prevent this Court from determining whether DHS complied with its non-discretionary procedures. III. PRELIMINARY INJUNCTION - STANDARD OF REVIEW^
To obtain a preliminary injunction, a movant must demonstrate: (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered i f the injunction is not granted; (3) that the threatened injury to movant absent an injunction outweighs the harm to Defendants if an injunction is granted; and (4) that granting the injunction would not disserve the public interest. Scott v. Roberts, 612 F.3d 1279, 1290 (11th Cir. 2010); Project Vote, Inc. v. Kemp, 208 F. Supp. 3d 1320, 1348 (N.D. Ga. 2016). "The likelihood of success on the merits is generally considered the most important of the four factors." Furman v. Cenlar FSB, No. l:14-CV-3253-AT, 2015 WL 11622463, at ^ (N.D. Ga. Aug. 26, 2015) (citation and quotation omitted); see also Garcia-Mir v. Meese, 781 F.2d 1450, ^ This Court conducted a hearing on Plaintiffs motion on June 8, 2017, after notice to all parties and an opportunity for both sides to submit briefs. Accordingly, as both parties had notice of the motion and appeared at the hearing, this Court considers Plaintiffs motion as a motion for preliminary injunction. See FED. R. Crv. P. 65(a).
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1453 (11th Cir. 1986) ("Ordinarily the first factor is the most important."). A preliminary injunction is "an extraordinary and drastic remedy" and should be granted only when the movant clearly carries the burden of persuasion as to each of the four prerequisites. Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 ( l l t h Cir. 2003). The purpose of a preliminary injunction is to maintain the status quo until the court can enter a final decision on the merits ofthe case. Bloedom v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011). IV. ANALYSIS
A. Substantial Likelihood of Success Count I of Plaintiff s Amended Complaint seeks relief pursuant to § 706(2)(A) of the APA based on Defendants' decisions to deny her renewal application and terminate her DACA status, both of which Plaintiff alleges were made in a manner that was not consistent with Defendants' non-discretionary procedures. Plaintiff argues that she is likely to succeed on the merits of this claim because these decisions violated DHS's own procedures and were, therefore,
arbitrary, capricious, and contrary to law. Am. Compl. Tjlf 74-77. The Court
agrees. The APA provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof" 5 U.S.C. § 702. The APA further states "[ajgency action 26

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made reviewable by statute and fmal agency action for which there is no other adequate remedy in a court are subject to judicial review." Id. § 704. An agency action is fmal when two conditions are met: (1) "the action must mark the consummation of the agency's decisionmaking process [ ]—it must not be of a merely tentative or interlocutory nature"; and (2) "the action must be one by which rights or obligations have been determined, or from which legal consequences will flow." Mejia Rodriguez, 562 F.Sd at 1145 (citation and internal quotation marks omitted). A reviewing judge shall "compel agency action unlawflilly withheld or unreasonably delayed" and set aside agency actions found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(1), (2)(A).
Perez, 774 F.Sd at 965.
As explained above, the DACA SOP specifically details three procedures by
which a person's DACA status can be terminated. Although Defendants were
unable to inform the Court which process was followed in this case, i f any, the
record before the Court reveals that their efforts fell short under any of the three
scenarios. Under the first scenario, the govemment would issue a Notice of Intent
to Terminate ("NOIT"), which would in tum grant the applicant/recipient thirty-
three days to contest the grounds cited in the Notice. Plaintiff was given no such
notice or opportunity to contest the decision in this case.
Under the second scenario, the DACA SOP provides that DACA status can
be terminated upon the discovery that it was granted in error due to a disqualifying
criminal offense which is deemed to present an "Egregious Public Safety" concem.
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August 28 SOP at 137. Defendants, however, have foreclosed this as a viable option in this case by admitting that Plaintiffs pre-trial diversion agreement in this case was not a "conviction" that would render her ineligible for DACA treatment, see Defs.' Resp. at 17 n. 10, and admitted in open Court that this matter did not involve an "Egregious Public Safety" concern.
The third scenario provides that DACA status can be terminated without notice
[i]f after consulting with ICE, USCIS determines that exercising prosecutorial discretion after removal has been deferred under DACA is not consistent with the Department of Homeland Security's enforcement priorities, and ICE does not plan to issue an NTA [notice to Appear], the officer should refer the case to HQSCOPS [Headquarters Service Center Operations], though the normal chain of command, to determine whether or not a NOIT [Notice of Termination] is appropriate. August 28 SOP at 138. However, there is no indication in the record before the Court that this process of referring the case to multiple entities for various determinations prior to termination—which it appears may allow termination of Plaintiffs DACA status without notice—was followed by Defendants. Defendants apparently also failed to follow the DACA SOP in their adjudication of Plaintiff s renewal application. The DACA SOP regarding DACA applications requires that a DACA applicant be provided a notice of intent to deny the application, or a request from the govemment for more evidence from the
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applicant, along with an opportunity for the applicant to respond, before a denial of the application is issued. See April 4 SOP at 3, 8. Appendix E to the DACA SOP even includes Notice of Intent to Deny form letters to be sent to applicants who, for example, are convicted of three misdemeanors or of one significant misdemeanor. App. E at 8, 10. At most, the record reveals that Plaintiffs only relevant criminal offense was her misdemeanor conviction of driving without a license. However, no notice of intent to deny her application was issued to Plaintiff in this case and she was not afforded an opportunity to respond to the decision to deny her renewal application.
It is also evident that nothing in the record before the Court indicates that there is irrefutable evidence that Plaintiff falls under one of the enumerated criteria that would permit USCIS to deny her request for renewal of her DACA status without notice. In addition, the record lacks any evidence that a request for adjudicative guidance was made to justify a "straight denial" of a request to renew under DACA when there was no record evidence to support such a denial.
Defendants place great reliance upon the Kelly Memo in an effort to justify their determinations with respect to Plaintiffs DACA status. However, the Kelly Memo, by its own terms, has no application to the DACA program.
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Because Defendants have failed to present any evidence that they complied with their own administrative processes and procedures with regard to the termination of Plaintiff s DACA status and the denial of her renewal application, Plaintiff has shown that she is likely to prevail on her claim that Defendants violated the APA.^ Plaintiff is entitled to at least the process afforded in Defendants' own procedures with regard to the termination of her DACA status as well as the adjudication of her renewal application.
B. Irreparable Injury in the Absence of an Injunction I f an injunction is not entered to prevent Plaintiffs DACA status from being terminated or not renewed because of Defendants' failure to follow its own procedures. Plaintiff will suffer irreparable harm. Prior to Defendants' actions. Plaintiffs DACA status meant that it was unlikely that she would be removed from the United States. Now that her DACA status has been unlawfully terminated, she faces the real potential of removal, particularly because Defendants have seen fit to deny her that status without offering evidence that the denial was made in
^ Because the Court concludes that Plaintiff is likely to succeed on the merits of her First Claim of Relief in her Amended Complaint, which alleges that Defendants' actions were arbitrary and capricious in violation of the APA by failing to renew and terminating her DACA status in contravention of DHS's own procedures, it is unnecessary to consider Plaintiffs second and third claims for relief in conjunction with her motion for preliminary injunction.
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accordance with their own procedures. In addition, Plaintiffs emotional distress caused by this insecurity is another factor in determining that Plaintiff will suffer irreparable injury without the entry of a preliminary injunction which compels Defendants to comply with DHS's SOP prior to denying Plaintiff her application to renew her DACA status or terminating that status.
C. The Threatened Injury to Plaintiff Outweighs Any Harm to Defendants and Does Not Disserve the Public Interest.
The Court fmds that the harm to Plaintiff in the absence of an injunction will exceed any harm suffered by Defendants because of the grant of a preliminary injunction. By granting an injunction until the merits of the underlying dispute are adjudicated, the Court is simply requiring Defendants to comply with DHS's written procedures as to the adjudication of DACA applications and the termination of DACA status. There can be no harm to Defendants in requiring them to follow their own written guidelines, but the harm to Plaintiff by Defendants' failure to do so is significant.^ Furthermore, because the public has an
Defendants argue that their interest in enforcing immigration laws outweighs any harms alleged by Plaintiff Defendants' interest in enforcing immigration laws does not justify them running roughshod over Plaintiff by ignoring their own required procedures prior to undertaking action to deny or terminate her DACA status. Defendants admit that Plaintiffs pre-trial diversion proceeding does not constitute a criminal conviction under immigration law, there is nothing in Plaintiffs history that classifies her as an egregious public safety risk, and there has been no change in circumstances since the last time Plaintiffs DACA status
31

Case 1:17-cv-01670-MHC Document 28 Filed 06/12/17 Page 32 of 33
interest in govemment agencies being required to comply with their own written guidelines instead of engaging in arbitrary decision making, Plaintiff has made the requisite showing that the pubhc interest would be served by this Court's entry of a preliminary injunction enjoining Defendants from failing to comply with their written operating procedures. V. CONCLUSION
For the foregoing reasons. Plaintiffs Emergency Motion For a Temporary Restraining Order and/or for a Preliminary Injunction [Doc. 14] is GRANTED IN PART as follows.
It is hereby ORDERED that USCIS's decision to terminate Plaintiffs status under the Deferred Action for Childhood Arrivals program memorialized in the May 3, 2017, Termination Notice is preliminarily enjoined. This preliminary injunction also applies to enjoin Defendants' termination of Plaintiff s employment authorization, which was included as a portion of the May 3, 2017, Termination Notice.
was renewed. Defendants' attempt to rely on the Kelly Memo to justify their decisions reinforces the arbitrariness of their actions against Plaintiff, when the Kelly Memo expressly exempts the DACA program from its scope. Defendants have presented no evidence to this Court which justifies the failure to follow their own procedural guidelines prior to denying Plaintiffs application for renewal of her DACA status and terminating that status.
32

Case 1:17-cv-01670-MHC Document 28 Filed 06/12/17 Page 33 of 33
It is further O R D E R E D that USCIS's decision to deny Plaintiffs renewal application for DACA status memorialized in the May 8, 2017, Decision is preliminarily enjoined.
It is further ORDERED that Defendants shall reconsider the termination of Plaintiffs DACA status and re-adjudicate Plaintiffs renewal application in a manner consistent with the Department of Homeland Security's Standard Operating Procedures and this Order.
It is further ORDERED that Plaintiffs DACA status, including her employment authorization, is reinstated pending Defendants' re-adjudication of Plaintiffs renewal application and reconsideration of the termination of Plaintiff s DACA status. This Order shall remain effective until further Order from this Court, which will issue only after Defendants have submitted sufficient proof that they have followed all relevant standard operating procedures regarding the adjudication of Plaintiff s renewal application and any termination of Plaintiff s DACA status.
I T IS SO ORDERED this 12th day of June, 2017.
MARIC H. COHEN United States District Judge
33

 
 Colotl Coyotl v. Kelly et al, Docket No. 1_17-cv-01670 (N.D. Ga. May 09, 2017), Court Docket

Multiple Documents

Part

Description

1

19 pages

2

Civil Cover Sheet

3

Exhibit A

4

Exhibit A2

5

Exhibit A3

6

Exhibit A4

7

Exhibit A5

8

Exhibit B

9

Exhibit C

10

Exhibit D

11

Exhibit E

12

Exhibit F

13

Exhibit G

14

Exhibit H

© 2019 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 1

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 1 of 19

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

JESSICA M. COLOTL COYOTL , )

)

Plaintiff-petitioner,

)

)

vs.

)

)

JOHN F. KELLY, Secretary,

)

Department of Homeland Security; )

MARK J. HAZUDA, Director, Nebraska )

Service Center, U.S. Citizenship and )

Immigration Services, LORI

)

SCIALABBA, Acting Director, U.S. )

Citizenship and Immigration Services; )

ALFIE OWENS, Chief Counsel, Atlanta )

Office of Principal Legal Advisor, U.S. )

Immigration and Customs Enforcement; )

SIRCE OWEN, Deputy Chief Counsel, )

Atlanta Office of Principal Legal

)

Advisor, U.S. Immigration and Customs )

Enforcement.

)

Case No.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Defendants-respondents.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiff, Ms. Jessica Mayeli Colotl Coyotl, (“Plaintiff”) challenges Defendants’ determination to revoke her current DACA approval and to deny her extension of DACA on the unfounded theory that Plaintiff is not eligible for a

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 2 of 19
renewal of her status pursuant to an application for Consideration of Deferred Action for Childhood Arrivals (“DACA”). Defendant United States Citizenship and Immigration Services’ (“USCIS”) and the Defendants acting on behalf of USCIS and U.S. Immigration and Customs Enforcement (“ICE”) revoked Ms. Colotl’s current DACA and denied her renewal application claiming that “exercising prosecutorial discretion” in this case is not consistent with the Department of Homeland Security’s (“DHS”) enforcement priorities. Defendants are scapegoating Plaintiff and arbitrarily changing the process for DACA, for reasons outside the scope of Ms. Colotl’s clear eligibility for a renewal of her temporary status – it appears the DHS is using Ms. Colotl as a test case to revoke DACA, exceeding its discretionary authority in an arbitrary and capricious manner.
Plaintiff seeks a declaration that the Defendants’ decision violated the Administrative Procedure Act (“APA”) because it was arbitrary and capricious. Plaintiff also respectfully petitions this Court for declaratory and a preliminary and permanent injunction to compel Defendants and their subordinates to find that Plaintiff is in fact eligible for a renewal of her DACA status. As a result of Defendants’ improper acts, the Court should order Defendants to unrevoke and reopen and approve Ms. Colotl’s DACA status. Plaintiff alleges as follows:
2

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 3 of 19
JURISDICTION 1. This action arises under the Immigration and Nationality Act of 1952
("INA"), 8 U.S.C. § 1255, and 8 U.S.C. § 1254. This Court has jurisdiction over this action under 28 U.S.C. § 1331 (federal question), the INA, and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. The APA provides a waiver of sovereign immunity as well as a cause of action. 5 U.S.C. § 702. Plaintiff seeks relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et. seq. (declaratory relief). 2. Additionally, the scope of review compels this Court to hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A).
STANDING 3. The APA affords a right of review to a person who is “adversely affected or
aggrieved by agency action.” 5 U.S.C. § 702. Defendants’ arbitrary and capricious termination of Ms. Colotl’s DACA status and denial of her renewal application has adversely affected Ms. Colotl’s ability to remain lawfully present in the United States, work with valid authorization, and remain eligible for any and all future applications before USCIS. Ms. Colotl
3

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 4 of 19
thus falls within the APA’s standing provisions. VENUE
4. Venue is proper in this Court under 28 U.S.C. § 1391(e) because Defendants John F. Kelly, Lori Scialabba, Mark J. Hazuda, Alfie Owens and Sirce Owen are Officers of the United States acting in their official capacities, and the Department of Homeland Security (“DHS”), U.S. Immigration and Customs Enforcement (“ICE”) and the United States Citizenship and Immigration Services (“USCIS”), are agencies of the United States. Additionally, Plaintiff resides in this judicial district. EXHAUSTION
5. There are no additional administrative remedies available for Plaintiff to exhaust.
6. There is no administrative appeal of the U.S. Citizenship and Immigration Service’s decision that the Plaintiff is no longer eligible for DACA status. DEFENDANTS
7. Defendant, John F. Kelly, is sued in his official capacity as Secretary of Department of Homeland Security ("DHS"). As Secretary of DHS, Mr.
4

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 5 of 19
Kelly is responsible for the administration and enforcement of the immigration laws of the United States. 8. Defendant, Lori Scialabba, is sued in her official capacity as Acting Director of the United States Citizenship and Immigration Services ("USCIS"). As Director of USCIS, Ms. Scialabba is responsible for the overall administration of USCIS and the implementation of the immigration laws of the United States. 9. Defendant, Mark J. Hazuda, is sued in his official capacity as Director of the USCIS Nebraska Service Center. As Director of the Nebraska Service Center, Mr. Hazuda is responsible for the overall administration of the USCIS Nebraska Service Center and the decisions that are issued. 10.Defendant, Alfie Owens, is sued in her official capacity as Chief Counsel of the Office of the Principal Legal Advisor for U.S. Immigration and Customs Enforcement Office in Atlanta, Georgia. As Chief Counsel, Ms. Owens is responsible for the overall administration of the ICE Office of the Chief Counsel and the decisions that are issued. 11.Defendant, Sirce Owen, is sued in her official capacity as Deputy Chief Counsel of the Office of the Principal Legal Advisor for U.S. Immigration
5

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 6 of 19
and Customs Enforcement Office in Atlanta, Georgia. As Deputy Chief Counsel, Ms. Owens is second in command for the administration of the ICE Office of the Chief Counsel and the decisions that are issued.
STATUTORY AND REGULATORY BACKGROUND 12.On June 15, 2012, the DHS implemented Deferred Action for Childhood
Arrivals (“DACA”) authorizing individuals who arrived in the U.S. before turning 16, were present before June 15, 2007, under age 31 on June 15, 2012, had graduated from high school or obtained a GED, and who had not been convicted of three or more misdemeanors, a significant misdemeanor, or an aggravated felony, authorization to remain in the U.S. for a period of two years. 13.As a result of Defendants’ finding, Defendants have stripped Plaintiff of her ability to remain lawfully present in the United States in valid DACA status. These actions have exacted grief, hardship, impossibility of obtaining other official documents, inability to continue to work lawfully in the U.S., and an imminent threat of removal back to Mexico.
FACTUAL BACKGROUND 14. On September 28, 1999, Ms. Colotl entered the United States without
6

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 7 of 19
inspection at age 11, and she has remained continuously in the U.S. since that time. See Exhibit A, Copy of Initial DACA Application. 15. On January 9, 2013, the criminal charge of Making a False Statement pend5ing against Ms. Colotl was dismissed through a Pre-Trial Diversion program. Ms. Colotl did not enter a guilty plea before the charge was dismissed. Id. Ms. Colotl only pled guilty to Driving Without a License violation which is considered a minor traffic violation for DACA purposes. 16. On July 1, 2013, Ms. Colotl’s initial DACA Application was approved and was valid from July 1, 2013 through June 30, 2015. See Exhibit B, Copy of DACA Approval Notice. 17.On February 5, 2015, Ms. Colotl submitted an application to renew her DACA status. It was approved and is valid from May 19, 2015 through May 18, 2017. See Exhibit C, Copy of DACA Approval Notice. 18. On December 19, 2016, Ms. Colotl submitted an application to renew her DACA status. See Exhibit D, Copy of I-821D Receipt Notice. 19. On May 2, 2017, USCIS denied Ms. Colotl’s Application to renew her DACA status. Ms. Colotl has yet to receive the notice by mail. See Exhibit E, Copy of USCIS Case Status Update.
7

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 8 of 19
20. On May 3, 2017, USICS issued a Termination Notice of Ms. Colotl’s current DACA status stating that, “USCIS has determined that exercising prosecutorial discretion in your case is not consistent with the Department of Homeland Security’s enforcement priorities.” See Exhibit F, Copy of DHS Supplemental Brief with Termination Notice. Notably, Ms. Colotl only has a copy of the Termination Notice because it was transmitted to the Office of Chief Counsel for U.S. Immigration and Customs Enforcement (“ICE”) in Atlanta on the same day the Notice was issued, apparently to Deputy Chief Counsel Sirce Owen (who seems to have been in direct contact with USCIS officials adjudicating Plaintiff’s DACA renewal), who then used the Notice to file a supplemental brief requesting that the Immigration Court enter an order of removal to Mexico. Id.
21.By way of background, during the time that Ms. Colotl has held DACA status, she has also been in removal proceedings. On October 6, 2016, the Board of Immigration Appeals (“BIA”) reopened and remanded her prior removal order to the Immigration Judge with an order to administratively close the case. See Exhibit G, Copy of BIA Decision.
22. In spite of the order from the BIA to administratively close the case, the
8

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 9 of 19
Immigration Judge set a hearing for January 9, 2017, and at that hearing asked the DHS to brief their position on the issue of administrative closure while promising to issue a decision no later than January 16, 2017. 23.On March 29, 2017, the DHS submitted an opposition to the administrative closure based on the new enforcement priority and Ms. Colotl’s criminal history which is limited to a guilty plea for the minor traffic offense of Driving Without a License. See Exhibit H, Copy of DHS Opposition. 24. To date, the Immigration Judge has failed to issue the order closing her case in spite of the BIA’s specific demand to issue the order.
LEGAL FRAMEWORK 25. The INA limits judicial review of discretionary decisions under 8 U.S.C. §
1252(a)(2)(B)(ii) and specifies the following: Matters not subject to judicial review (B) Denials of discretionary relief Notwithstanding any other provision of law and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review-
9

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 10 of 19
(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or
(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title. Id. § 1252(a)(2)(B)(i) and (ii). Notably, the DACA rules promulgated by the DHS do not fall within this statute and thus are not precluded from judicial review. 26.Further, in an Eleventh Circuit Decision issued in 2009, the Court also reasoned that just because the Secretary of Homeland Security has the ultimate discretionary authority to issue a decision in particular cases, does not mean that every determination is discretionary, and hence not subject to review. See Mejia Rodriguez v. Department of Homeland Security, 562 F.3d 1137 (11th Cir. 2009). 27.The Eleventh Circuit cites to a Third Circuit case wherein the Court states that the jurisdiction-stripping language applies only to a narrower category
10

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 11 of 19
of decisions where Congress has taken the additional step to specify that the sole authority for the action is within the Attorney General’s discretion. See Alaka v. Attorney General, 456 F.3d 88, 95-96 (3d Cir. 2006); accord Nethagani v. Mukasey, 532 F.3d 150, 154-55 (2d Cir.2008) (“[W]hen a statute authorizes the Attorney General to make a determination, but lacks additional language specifically rendering that determination to be within his discretion the decision is not one that is ‘specified to be in the discretion of the Attorney General’ for purposes of § 1252(a)(2)(B)(ii).”). There is no statute that gives specific authority to the DHS over discretionary decisions of DACA applications, and it is certainly not included in Section 1252(a)(2)(B)(ii) of the INA. Therefore, USCIS’ denial of Ms. Colotl’s DACA status is reviewable by this Court. 28. Additionally, in determining whether the decision denying Ms. Colotl’s DACA renewal was arbitrary, capricious, and an abuse of discretion under 5 U.S.C. 706(2)(A) the Court “must determine whether the agency considered the relevant data and rationally explained its decision.” Ariz. Pub. Serv. Co. v. U.S. EPA, 562 F.3d 1116, 1122 (10th Cir. 2009). See also Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 497 (2004) (“Even when an agency explains its decision with less than ideal clarity, a reviewing court
11

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 12 of 19
will not upset the decision on that account if the agency's path may reasonably be discerned.”) (internal quotations omitted). There is no way to reasonably discern the denial and termination of Ms. Colotl’s DACA status in that her two previous DACA applications were approved without question based on the same exacts facts – thus, the recent denial and termination of her status was clearly an abuse of USCIS’ discretion. 29.Finally, the reviewing court may also set aside agency action as arbitrary if the agency failed to follow its own precedent. See Galvez-Vergara v. Gonzales, 484 F.3d 798, 802-03 (5th Cir. 2007). In the instant case, USCIS did an about face and denied an application for which Plaintiff was clearly eligible and that had previously been approved on two prior occasions. Plaintiff suspects this may have been because the Atlanta Office of Chief Counsel lost the Motion to Reopen at the BIA and was seeking to prevail in another way.
CLAIMS FOR RELIEF FIRST CAUSE OF ACTION 30. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 29 above.
12

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 13 of 19
31. Ms. Colotl has been aggrieved by agency action under the Administrative Procedures Act. 5 U.S.C. §§ 701 et seq.
32. The documents Ms. Colotl submitted with her DACA renewal application entitled her to a renewal of her previously accorded DACA status.
33.Defendants acted arbitrarily, capriciously, and contrary to law in violation of the Administrative Procedure Act and 5 U.S.C. § 706(2)(A) by denying Plaintiff’s DACA renewal application.
34. Plaintiff has suffered and will continue to suffer significant and irreparable harm because of Defendants’ policies, procedures, acts and failures to act as described herein. SECOND CAUSE OF ACTION
35. Plaintiffs re-alleges and incorporates by reference paragraphs 1 through 34 above.
36. Plaintiff has suffered a “legal wrong” or has been “adversely affected or aggrieved” by agency action. 5 U.S.C. § 702. Plaintiff is a person aggrieved by agency action, for which there is no other adequate remedy in a court. 5 U.S.C. § 704.
13

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 14 of 19
THIRD CAUSE OF ACTION 37. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 36
above. 38. Defendants owe Plaintiff a clear and certain duty to reopen and approve the
application for renewal of her DACA status. 39. Defendants owe Plaintiff a clear and certain duty to find that she is in fact
eligible for DACA status. 40. Plaintiff has no other adequate remedy.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully requests that this Court:
1. Assume jurisdiction over this action; 2. Issue preliminary and permanent injunction finding that Plaintiff is
eligible for DACA status and terminating any actions for removal against her; 3. Declare that Plaintiff is eligible for DACA status and order USCIS to reopen and approve her Application; 4. Award Plaintiff reasonable costs and attorney's fees under the Equal Access to Justice Act; and
14

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 15 of 19
5. Award such further relief as the Court deems just or appropriate. RESPECTFULLY SUBMITTED this 9th day of May, 2017.
KUCK IMMIGRATION PARTNERS LLC, /s/ Charles H. Kuck Charles H. Kuck, Esq. Georgia State Bar No. 429940 Danielle M. Claffey, Esq. Georgia State Bar No. 222292 365 Northridge Road, Suite 300 Atlanta, GA 30350 Phone: (404) 816-8611 Fax: (404) 816-8615 Attorneys for Plaintiff
15

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 16 of 19
CERTIFICATE OF SERVICE
This is to certify that on this 9th day of May, 2017, the foregoing COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF and its accompanying Exhibits were served by First Class Mail, postage pre-paid, on:
John F. Kelly Secretary, Department of Homeland Security 425 I Street Washington, D.C. 20536
Lori Scialabba, Acting Director U.S. Citizenship and Immigration Services 20 Massachusetts Avenue, NW Washington, DC 20529
Mark J. Hazuda, Director, Nebraska Service Center, U.S. Citizenship and Immigration Services 850 S. Street Lincoln, NE 68508
Alfie Owens, Chief Counsel U.S. Department of Homeland Security U.S. Immigration and Customs Enforcement Office of the Chief Counsel 180 Ted Turner Drive SW, Suite 332 Atlanta, Georgia 30303
Sirce Owen, Deputy Chief Counsel U.S. Department of Homeland Security U.S. Immigration and Customs Enforcement Office of the Chief Counsel 180 Ted Turner Drive SW, Suite 332 Atlanta, Georgia 30303
16

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 17 of 19
John A. Horn, U.S. Attorney Federal District Court, Northern District of Georgia The United States Attorney’s Office Richard B. Russell Federal Building 75 Ted Turner Drive, Suite 600 Atlanta, Georgia 30303-3309
KUCK IMMIGRATION PARTNERS LLC, /s/ Charles H. Kuck Charles H. Kuck, Esq. Georgia State Bar No. 429940 Danielle M. Claffey, Esq. Georgia State Bar No. 222292 365 Northridge Road, Suite 300 Atlanta, GA 30350 Phone: (404) 816-8611 Fax: (404) 816-8615 Attorneys for Plaintiff
17

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 18 of 19

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

JESSICA M. COLOTL COYOTL,

)

)

Plaintiff-petitioner,

)

)

vs.

)

)

JOHN F. KELLY, Secretary,

)

Department of Homeland Security; )

MARK J. HAZUDA, Director, Nebraska )

Service Center, U.S. Citizenship and )

Immigration Services, LORI

)

SCIALABBA, Acting Director, U.S. )

Citizenship and Immigration Services; )

ALFIE OWENS, Chief Counsel, Atlanta )

Office of Principal Legal Advisor, U.S. )

Immigration and Customs Enforcement; )

SIRCE OWEN, Deputy Chief Counsel, )

Atlanta Office of Principal Legal

)

Advisor, U.S. Immigration and Customs )

Enforcement.

)

Case No.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Defendants-respondents.

LIST OF EXHIBITS Exhibit A Copy of Initial DACA Application Exhibit B Copy of DACA Approval Notice Exhibit C Copy of DACA Approval Notice
18

Case 1:17-cv-01670-MHC Document 1 Filed 05/09/17 Page 19 of 19
Exhibit D Copy of I-821D Receipt Notice Exhibit E Copy of USCIS Case Status Update Exhibit F Copy of DHS Supplemental Brief with Termination Notice Exhibit G Copy of BIA Decision Exhibit H Copy of DHS Opposition
19

Colotl Coyotl v. Kelly et al, Docket No. 1_17-cv-01670 (N.D. Ga. May 09, 2017), Court Docket
General Information

Court Federal Nature of Suit Docket Number Status

United States District Court for the Northern District of Georgia; United States District Court for the Northern District of Georgia
Other Statutes - Administrative Procedure Act/Review or Appeal of Agency Decision[899]
1:17-cv-01670
CLOSED

© 2019 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 21

 
 Case 1:17-cv-01670-MHC Document 43 Filed 07/31/17 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFGEORGIA
ATLANTA DIVISION

JESSICA M. C O L O T L COYOTE,

Plaintiff,
V.
JOHN F. K E L L Y , Secretary, Department of Homeland Security; M A R K J . HAZUDA, Director, Nebraska Service Center, U.S. Citizenship and Immigration Services; JAMES McCAMENT, Acting Director, U.S. Citizenship and Immigration Services; THOMAS D. HOMAN, Acting Director, U.S. Immigration and Customs Enforcement; and SEAN W. G A L L A G H E R , Atlanta Field Office Director, U.S. Immigration and Customs Enforcement,

CIVIL ACTION FILE NO. 1:17-CV-1670-MHC

Defendants.

ORDER

Defendants have filed a Motion for Reconsideration of this Court's June 12,

2017, Order granting a preliminary injunction. Defs.' Mot. For Recons. [Doc. 34".

Defendants describe their motion as follows:

Defendants move to reconsider one narrow portion of this Court's June 12, 2017 Preliminary Injunction Order - the portion of the order that expressly interprets the scope of the February 20, 2017

Case 1:17-cv-01670-MHC Document 43 Filed 07/31/17 Page 2 of 8
Memorandum issued by Secretary John ICelly entitled "Enforcement of Immigration Law to Serve the National Interest" ("Kelly Memo") and implicitly construes the June 15, 2012, Deferred Action for Childhood Arrivals (DACA) Memorandum. Specifically, Defendants respectfully request that this Court delete the final sentence on page 29 of its Order and delete or otherwise modify footnote 7. Mem. In Supp. of Defs.' Mot. For Recons. [Doc. 34-1] ("Defs.' Br.") at 1-2.' Under the Local Rules of this Court, "[m]otions for reconsideration shall not be filed as a matter of routine practice[,]" but only when "absolutely necessary." LR 7.2E, NDGa. Such absolute necessity arises only when there is "(1) newly discovered evidence; (2) an intervening development or change in controlling law; or (3) a need to correct a clear error of law or fact." Bryan v. Murphy, 246 F. Supp. 2d 1256, 1258-59 (N.D. Ga. 2003). A motion for reconsideration may not be used "to present the court with arguments already heard and dismissed or to repackage familiar arguments to test whether the court will change its mind." Id. at 1259. Nor may it be used "to offer new legal theories or evidence that could have been presented in conjunction with the previously filed motion or response, unless a reason is given for failing to raise the issue at an earlier stage in the
' For purposes of this Order, the "Napolitano Memo" refers to the June 15, 2012, memorandum issued by former Secretary of Homeland Security Janet Napolitano in which the DACA program was created [Doc. 14-14]. The "Kelly Memo" refers to the February 20, 2017, memorandum issued by current Secretary of Homeland Security John Kelly entitled, "Enhancing Public Safety in the Interior of the United States." [Doc. 18-2] at 48-53.
2

Case 1:17-cv-01670-MHC Document 43 Filed 07/31/17 Page 3 of 8
litigation." Adler v. Wallace Comput. Servs., Inc.. 202 F.R.D. 666, 675 (N.D. Ga. 2001). Finally, "[a] motion for reconsideration is not an opportunity for the moving party . . . to instruct the court on how the court 'could have done it better' the first time." Pres. Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Eng'rs. 916 F. Supp. 1557, 1560 (N.D. Ga. 1995). " I f a party presents a motion for reconsideration under any of these circumstances, the motion must be denied." Bryan, 246 F. Supp. 2d at 1259; see also, Brogdon ex rel. Cline v. Nat'l Healthcare Corp., 103 F. Supp. 2d 1322, 1338 (N.D. Ga. 2000).
Defendants acknowledge they are not seeking to reargue the merits ofthe case which led to the Court's entry of a preliminary injunction; rather, they seek a modification of the June 12, 2017, Order based on their contention that it was improper for this Court to "opine" on the "issue" of "the scope of the Kelly memo and whether the June 15, 2012, DACA Memorandum permits consideration of prevailing enforcement priorities and other discretionary factors" because the issue was not raised by Plaintiff in her Amended Complaint or her motion for preliminary injunction. I d at 2-3, 10-12. Defendants also contend that this Court "improperly substitute[d] the Court's interpretation [of the Kelly Memo] for that of the Department of Homeland Security." I d at 13.
3

Case 1:17-cv-01670-MHC Document 43 Filed 07/31/17 Page 4 of 8
Although Defendants call into question two small portions of this Court's
June 12, 2017, Order based upon the alleged failure of Plaintiffs to raise any issue
with respect to the Kelly Memo in their complaint or motion,^ it was Defendants
themselves who attempted to rely on the Kelly Memo as an explanation of their
actions with respect to Plaintiff At the hearing on Plaintiffs motion for a
preliminary injunction. Defendants denied that Plaintiffs prior pre-trial diversion
agreement played a role in any decisions with respect to her DACA status. Tr. of
Emergency Mot. For TRO and/or Prelim. Inj. Hr'g [Doc. 29] ("Tr.") at 4-5.
Defendants then indicated that Plaintiffs conviction for driving without a license
"could and, we believe, was considered by DHS [the Department of Homeland
Security] in its decision making." Id, at 5. The following colloquy between the
Court and Defendants' counsel then occurred:
^ Defendants' position on this point is inaccurate. Plaintiff referenced the Kelly Memo in her Amended Complaint and her motion for injunctive relief, contending that it appeared inconsistent with Defendants' current position with respect to Plaintiff Am. Compl. [Doc. 8] T| 32; PL's Mot. For TRO/Prelim. Inj. [Doc. 14-1] at 4. In her motion for preliminary injunction, Plaintiff also cited to a brief filed by counsel for Immigration and Customs Enforcement ("ICE") in opposition to Plaintiffs motion to reopen her removal proceeding and administratively close her case, in which ICE counsel made the following argument: "[0]n February 20, 2017, the Department [of Homeland Security] issued a memorandum, titled 'Enforcement ofthe Immigration Laws to Serve the National Interest.' Due to the respondent's criminal history, she is an enforcement priority under this memorandum." DHS's Suppl. Br. on Eligibility for Relief [Doc. 14-12] (filed as Ex. 9 to PL's Mot. For TRO/Prelim. Inj.).
4

Case 1:17-cv-01670-MHC Document 43 Filed 07/31/17 Page 5 of 8
TliE COURT: Okay. So is it the defendant's position that the reason for their denying her a renewal of her DACA status and the reason for terminating her DACA status is because of her driving without a license conviction? MR. ROBINS: That is an element of the decision. THE COURT: Is that the only element? MR. ROBINS: No, I don't believe so. THE COURT: What do you believe? MR. ROBINS: Well, there is a number of elements that the agency considered in the course of how it chose to exercise its discretion based on the enforcement priorities which are annotated in the president's 2000 - I'm sorry, in the Kelly memo, from February of this year.
145-6.
Later in the hearing, Defendants admitted that Plaintiff still satisfies the five criteria contained in the Napolitano memo to enable her to be considered for an exercise of prosecutorial discretion and be approved for the DACA program. Id, at 30; see Napolitano Memo at 1. In an effort to determine the precise reason for Defendants' actions with respect to Plaintiff (particularly given the Kelly Memo's statement that it has no application to the DACA program), the Court then engaged in a discussion with Defendants' counsel, continuing to eliminate grounds that could have supported the renewal or termination of Plaintiff s DACA status. Tr. at 31-
5

Case 1:17-cv-01670-MHC Document 43 Filed 07/31/17 Page 6 of 8
36. Defendants then represented that they exercised prosecutorial discretion
to terminate Plaintiffs DACA status based on the Kelly Memo. Id, at 40.
THE COURT: So, basically, the only thing you're telling me today that happened between the last time she was renewed and now is the Kelly memo? That's why she's not been renewed and been terminated, because of the Kelly memo? Is that what you're telling the Court?
MR. ROBINS: In part, your Honor. It is because of the Kelly memo and the decision, in the agency's discretion, to terminate DACA on the basis of the Kelly memo.
THE COURT: Tell me what provision of the Kelly memo means that she loses her DACA status and is terminated?
MR. ROBINS: Well, your Honor, just to be clear - and there actually are a number of points with regard to the Court's discussion of termination process that I really would like to go back to clarify, as well. So can I do that, briefly?
THE COURT: Answer my question first.
MR. ROBINS: Yes.
TEDE COURT: You've just told me that the Kelly memo is a big piece of this, so I want to get reference as to what in the Kelly memo has caused this to occur?
MR. ROBINS: And I just want to be clear, again, your Honor, that there is nothing in the Kelly memo that demands a specific result. In each and every case of adjudicating an individual's request for DACA, and the decision with regard to the termination of that, that is an individualized factor. And I ' l l get to the Kelly memo in my very next sentence.
=1= * =i< *
6

Case 1:17-cv-01670-MHC Document 43 Filed 07/31/17 Page 7 of 8
With regard to the Kelly memorandum, I , your Honor, based on USCIS's decision, am unable to point to the specific grounds that were considered. There is some bit of speculation based on the record and the facts before the Court here. I mean, I just want to acknowledge that, because I am, your Honor, I am not privy to the agency's internal operations, nor do I necessarily believe those are appropriate, but THE COURT: You're the lawyer defending them. MR. ROBINS: Yes, your Honor. But the exercise of their discretion is, ultimately, the exercise of their discretion. I d at 40-43. Contrary to Defendants' position in the present Motion for Reconsideration, there is nothing in the Court's June 12, 2017, Order which purports to analyze or interpret any provision of the Kelly Memo, other than to state the obvious: The Kelly Memo, by its own terms, supersedes and rescinds "all existing conflicting directives, memoranda, or field guidance regarding the enforcement of our immigration laws and priorities for removal" "with the exception of the June 12, 2012, memorandum entitled 'Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children" (i.e., the Napolitano Memo). Kelly Memo at 2. That is why the Court stated in its Order: "[T]he Kelly Memo, by its own terms, has no application to the DACA program." June 12, 2017, Order [Doc. 28] at 29. Moreover, footnote 7 of that Order merely
7

Case 1:17-cv-01670-MHC Document 43 Filed 07/31/17 Page 8 of 8

summarizes Defendants' own representations that were made at the prehminary

injunction hearing and referenced in the transcript excerpts cited above.

In summary, reconsideration of this Court's June 12, 2017, order is not

required because Defendant has failed to present evidence or argument that there

has been newly discovered evidence, an intervening development or change in

controlling law, or a need to coiTect a clear error of law or fact. See Bryan, 246 F.

Supp. at 1258-59. In addition, it was not improper for the Court to raise the fact

that the Kelly Memo, by its own terms, specifically excepts the Napolitano Memo

from its coverage because Defendants themselves raised the applicability ofthe

Kelly Memo as a basis for their decision not to renew and to tenninate Plaintiffs

DACA status. Finally, because nothing in the Court's Order purports to interpret

any provision contained in the Kelly Memo, there is no need for the Court to aher

or delete the last sentence on page 29 of the Order or the language in footnote 7.

Therefore, it is hereby ORDERED that Defendants' Motion for

Reconsideration [Doc. 34] is DENIED.

IT IS SO ORDERED this 31

, 2017.

MARICH. COHEN United States District Judge
8

 
 Case 1:17-cv-01670-MHC Document 60 Filed 11/08/17 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERNDISTRICT OF GEORGIA
ATLANTA DIVISION

JESSICA M. COLOTL COYOTL,

Plaintiff,
V.
E L A I N E C. D U K E , Acting Secretary, Department of Homeland Security; M A R K J. HAZUDA, Director, Nebraska Service Center, U.S. Citizenship and Immigration Services; L . FRANCIS CISSNA, Director, U.S. Citizenship and Immigration Services; THOMAS D. HOMAN, Acting Director, U.S. Immigration and Customs Enforcement; and SEAN W. G A L L A G H E R , Atlanta Field Office Director, U.S. Immigration and Customs Enforcement,

CIVIL ACTION FILE NO. 1:17-CV-1670-MHC

Defendants.

ORDER

On June 12, 2017, this Court entered a preliminary injunction enjoining

Defendants' termination of Plaintiff s status under the Deferred Action for

Childhood Arrivals ("DACA") program (as well as the termination of her

employment authorization) based upon Defendants' failure to comply with their

own administrative processes and procedures with regard to the denial of her

Case 1:17-cv-01670-MHC Document 60 Filed 11/08/17 Page 2 of 7
DACA status. Order of June 12, 2017 [Doc. 28]. The Court ordered Defendants to "reconsider the termination of Plaintiffs DACA status and re-adjudicate Plaintiffs renewal application in a manner consistent with the Department of Homeland Security's Standard Operating Procedures and this Order." Id. at 33. The Court also clearly indicated that the preliminary injunction would remain effective "until further Order from this Court, which will issue only after Defendants have submitted sufficient proof that they have followed all relevant standard operating procedures regarding the adjudication of Plaintiff s renewal application and any termination of Plaintiff s DACA status." Id.
After denying Defendants' motion for reconsideration [Doc. 43], Defendants moved to stay all proceedings in this case pending further administrative action "Doc. 44], and this Court granted a stay of proceedings in order for Defendants to delay filing a responsive pleading to Plaintiff s Amended Complaint until October 2, 2017 [Doc. 47]. Defendants then asked for a second extension of time until October 30, 2017, for the same purpose [Doc. 48], which this Court granted [Doc. 49].
On October 25, 2017, Defendants filed with this Court the following: (1) aNotice of Comphance with this Court's June 12, 2017, Order; (2) an Emergency Motion to Dismiss Plaintiffs Amended Complaint or, in the
2

Case 1:17-cv-01670-MHC Document 60 Filed 11/08/17 Page 3 of 7
Alternative, Dissolve Preliminary Relief; and (3) a request for an expedited hearing
on their emergency motion. [Docs. 50, 51.] Defendants assert that they have re-
adjudicated Plaintiffs request for renewal of her DACA status and denied her
request "consistent with the Court's interpretation of USCIS's DACA Standard
Operating Procedures." Mem. in Supp. of Defs.' Mot. to Dismiss PL's Am.
Compl. [Doc. 51-1] at 9. Attached to Defendants' Notice of Compliance are
USCIS's August 18, 2017, "Notice of Intent to Deny" and October 23, 2017,
"Decision," both of which contain the following:
While your re-opened renewal request was pending, U.S. Immigration and Customs Enforcement (ICE) informed USCIS of the following: that ICE opposed your motions to administratively close your case with the Executive Office for Immigration Review; that on July 10, 2017, an Immigration Judge denied your motion to administratively close your proceedings; that ICE is actively seeking a final order of removal against you in immigration proceedings; and that ICE intends to remove you if an administratively final order of removal is issued.
Deferred action is not a form of protection from removal; rather it is merely an acknowledgement that the Department of Homeland Security does not at this time intend to pursue removal. Since ICE informed USCIS that is was actively pursuing your removal, USCIS did not contemporaneously conclude that removal action should continue to be deferred in your case.
Accordingly, USCIS [has] determined, in its unreviewable discretion, that you did not warrant a favorable exercise of prosecutorial discretion.
3

Case 1:17-cv-01670-MHC Document 60 Filed 11/08/17 Page 4 of 7
Exs. 1 & 2 attached to Notice of Compliance [Docs. 50-1 & 50-2]. Given the purported "emergency" nature of Defendants' motion and request, on October 26, 2017, the Court ordered expedited briefing on Defendants' motion and set a hearing for November 9, 2017 [Doc. 54].
After this Court signed its October 26, 2017, Order, Plaintiff filed a Second Amended Complaint that same day.^ The Second Amended Complaint alleges that Defendants' most recent decision to deny Plaintiffs DACA status again violates the Administrative Procedure Act and Defendants' own procedures for adjudicating DACA apphcations. Second Am. Compl. [Doc. 53] ^^j 91, 93. Plaintiff also has filed an opposition to Defendants' motion to dissolve the Court's preliminary injunction and, as an alternative, a second motion for a preliminary injunction based on her Second Amended Complaint [Doc. 56]. Defendants filed a response in opposition thereto [Doc. 57] alleging, in part, that Plaintiff s Second Amended Complaint has been filed in violation of Rule 15(a)(2) of the Federal Rules of Civil Procedure. Subsequently, the parties filed a Joint Stipulation to the Filing of Plaintiff s Second Amended Complaint [Doc. 58], in which Defendants consent to the filing of the Second Amended Complaint and Plaintiff agrees to ^ Although the Clerk docketed Plaintiffs Second Amended Complaint prior to docketing this Court's Order, that order actually was signed prior to the filing of Plaintiffs pleading.
4

Case 1:17-cv-01670-MHC Document 60 Filed 11/08/17 Page 5 of 7
extend Defendants' time to answer or otherwise respond to the Second Amended Complaint to December 22, 2017.
Defendants have failed to explain what the "emergency" is that would require the Court to now consider their motion to dismiss Plaintiff s Amended Complaint, particularly when Plaintiff has now filed a Second Amended Complaint to challenge the most recent action taken by Defendants to decline to renew her DACA status.^ Defendants have consented to the filing of the Second Amended Complaint, which is now the operative complaint in this case. This renders the original complaint moot, as well as Defendants' Emergency Motion to Dismiss. See Dresdner Banlc, A.G. v. MA^ Qlvmpia Village, 463 F.3d 1210, 1215 (11th Cir. 2006) (holding that an amended pleading supersedes the former pleading); Luster V. Audax Grp., LP, No. l:15-CV-489-MHC, 2016 WL 7426572, at *2 (N.D. Ga. Oct. 4, 2016) (denying a motion to dismiss the first amended complaint because it was rendered moot by the filing of a second amended complaint). In addition, the fact that there is a pending removal proceeding against Plaintiff by ICE fails to ^ In their emergency motion, Defendants alleged that "[g]ood cause exists to waive the usual time requirements and hold an expedited hearing because Plaintiffs reopened, reinstated, and twice-extended DACA and employment authorization expires after October 31, 2017." Defs.' Emergency Mot. to Dismiss PL's Am. Compl. [Doc. 51] at 2. However, by the terms of this Court's June 12, 2017, preliminary injunction. Defendants are enjoined from terminating Plaintiffs DACA and employment authorization until ftirther order of this Court.
5

Case 1:17-cv-01670-MHC Document 60 Filed 11/08/17 Page 6 of 7
create an emergency when there has been an open removal proceeding at least since October 6, 2016 [Doc. 14-11]. Although ICE indicated in March 2017 that Plaintiff was "an enforcement priority" due to her "criminal history" [Doc. 14-12], Defendants admitted at this Court's preliminary injunction hearing that there was no disqualifying criminal history that arose after Plaintiff obtained DACA status.
Given Defendants' most recent decision on Plaintiffs DACA status and Plaintiffs challenge of that decision in the Second Amended Complaint, including her renewed request for a preliminary injunction, it is premature to hold a hearing in this matter until all parties have had an opportunity to frilly brief these issues. Therefore, it is hereby ORDERED as follows:
(1) Defendants' Emergency Motion to Dismiss Plaintiffs Amended Complaint or, in the Alternative, Dissolve Preliminary Relief [Doc. 51] is DENIED WITHOUT PREJUDICE;
(2) The hearing previously scheduled for November 9, 2017, is cancelled; (3) Once Defendants file an answer or otherwise respond to the Second
Amended Complaint on or before December 22, 2017, the Court will set a date for a hearing on the remaining pending motions, i f necessary; and (4) The terms of this Court's June 12, 2017, preliminary injunction shall remain in effect until ftirther Order of the Court.
6

Case 1:17-cv-01670-MHC Document 60 Filed 11/08/17 Page 7 of 7 I T IS SO ORDERED this 8th day of November, 2017.
MARKH. COHEN United States District Judge
7

 
 Part 1 2 3

Colotl Coyotl v. Kelly et al, Docket No. 1_17-cv-01670 (N.D. Ga. May 09, 2017), Court Docket
Multiple Documents
Description 4 pages Exhibit A Text of Proposed Order Proposed Order

© 2019 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 1

Case 1:17-cv-01670-MHC Document 73-1 Filed 05/25/18 Page 1 of 7
Exhibit A

Case 1:17-cv-01670-MHC Document 73-1 Filed 05/25/18 Page 2 of 7

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGlA
ATLANTA DIVISION

JESSICA M. COLOTL COYOTL, )

)

Plaintiff,

)

) No. 1:.17-cv-1670-MHC

v.

)

)

l(IRSTJEN M. NIELSEN, Secretary, )

Department ofHOmeland Security; )

LOREN MILLER, Director, Nebraska )

Service Center, U.S. Citizenship and )

Immigration Services; L. FRANCIS )

CISSNA, Dlrectot"t U.S. Citizenship .)

and Immigra,tion Services; THOMAS )

D. HOMAN, Deputy Director and )

Senior Official Perfonning the Duties )

ofthe Director, U.S. Immigration and )

Customs Enforcement; SEAN W.

)

GALLAGHER, Atlanta Field Office )

Director, U.S. Immigration and

)

Customs Enforcement,

J

)

____________D_e_f_e_n_d_a_n_t_s._____________ ))

SETTLEMENT AGREEMENT Thi~ Settlement Agreement ("Agreement") is entered into between the following parti_es (the "Parties''): Plaintiff Jessica M. Colotl Coyotl ("Ms. Colotlh or "Plaintiff') and Defendants Kirstjen M. Nielsen, Secretary, Department of Homeland Security; Loren Millel', Director, Nebraska Service Center, U.S.

Case 1:17-cv-01670-MHC Document 73-1 Filed 05/25/18 Page 3 of 7
Cit~zenship and Immigratipn Services; L. Francis Cissna, Director, U.S. Citizenship and Immigration Services~ Thomas D. Homan, Deputy Director and, Senior Official Performing the Duties ofthe Director, U.S. Immigration and
Customs tnforcetnent; and Sean W. Gallagher, Atlanta Field Office Director, u~s.
Immigration and Customs Enforcement ("Defendants"). WHEREAS the Parties to this Agreement propose to fully and finally
resolve their dispute pursuant to this Agreement without the furthe1· costs, burdens, and risks of litigation;
NOW THEREFORE, in ·consideration ofth~ foregoing ;md the mutual covenants contained herein, the Parties agree as follows:
1. The U.S. Citizenship and Immigration Services ("USCIS") will grant~· Col-otl's May 2017·Deferred Action for Childhood Arrivals ("DACA,) renewal request, (IOE090237.2810 I IOE09023728ll), including her application for work authorization, and administratively clos(! as duplicat~ve her February 2018 DACA renewal request (10E0903960982 n0£0903960983) and refund its associated filing fee~ such that her DACA and ~ociated Employment Authorization Document (hEAD") will be v~lici from the date of approval through May 9, 20 19. USCtS will grant Ms. Colotl's May 2017 DACA renewal request and related EAD applicatio.n as
2

Case 1:17-cv-01670-MHC Document 73-1 Filed 05/25/18 Page 4 of 7
.soon as possible, but no later than two busines$ days after execution ofthe Agteernent, and will make diligent efforts to ensure that the EAD and approval notice a:re maile9 before May 29, 2018.
2. USCIS wiU continue to exercise its discretionary authority tQ defer action. with respect to Plaintiff until at least May 9, 2019, and not issue a new Notice ofTerinination ("NOT'') or Notice of Intent to Terminate ("NOlT'!) during that time period unless Piaintifftakes part in conduct, or USCIS ~
I '
discovers or becomes aware ofnew information, that renders her unable to
continue to meet the DACA guidelines as defmed in the DACA Frequently Asked Questions, found at https://www.uscis.gov/archive/fi·equently-asked-
' questions, or that renders her an enforcement priority under the Departme;nt
ofHomelartd Security's ("DHS") previous enforcement priority guidelin~s
set forth in the Nove.lllber 20, ~014, memorandum entitled, 'Policies for the I
Apprehension, Detention and Removal of Undocumented Immigtants.' ' 3. If Ms. Colotl is ordered removed and her removal order becomes final, Df' iS
will not ex~c\lte on the removalerder while Ms. Colotl's DACA is valid I
through May 9, 2019. 4. Ms. Colotl, on behalfof herself, her guardians, heirs executors,
administrators, and assigns,. agrees to unconditionally release the United ;
3

Case 1:17-cv-01670-MHC Document 73-1 Filed 05/25/18 Page 5 of 7
State.s, its .agencies, officers, agents, employees, and attorneys (the "Govetnllient") of any and all claims, demands~ rights, and causes of actiqn of whatever kina and nature, whether for personal injuries, damage to property, or economic losses, whether known or unknown, whether arisin~ under common law, statute, or the U.S. Constitution, whether for monetary damages or injunctive relief, that challenge any Government actions which took place between May 2, 2017 j to present, inclusive, and include without
I
limitation, ali claims that she is Cl,lrrently asserting against the U.S. Government and its agents in the U.S. District Court tbr the Northern District of Georg1a. This release does not cover claims challenging Government conduct that arises subsequent to the date of this agreement. 5. The Parties agree to bear their own costs and fees under the Equal Access'to Justice Act or any other prov·ision of law. 6. Within four days ·ofUSCIS granting Ms. Colotl's DACA renewal and EAD in accordance with Paragraph 1, the Parties will file a Stipulation of Settlement and Dismissal in the above-captioned matter pursuaht to Federal Rule of Civil Procedure 4l(a)(l){A)(ii). The Stipulation of Settlement and Dism.issaJ will State that the Parties agree that this action should be dismi·ssed, with each party to bear its own fees and costs.
4

Case 1:17-cv-01670-MHC Document 73-1 Filed 05/25/18 Page 6 of 7
7. The terms ofthis Agreement are in no way intended to be, and should not;be
constmed as, an admission of liability or fault on the part of the United •
States, its agehcies, officers, employees, or attorneys.
8. This Agreement shall be binding upon and inure to the benefit ofthe Part.~es
hereto and their re.spective successors and assignees. 9. This Agreement is the final expression of the Parties' voluntary, full, fina1,
and complete settlement agteement. 10.Th1s Agreement may not be altered, modified, withdrawn, waived,
rescinded, or supplemented ·exc~pt by written instrument executed by duly authorized representatives of both parties. ll.This Agreement shal1 become effective when signed by all ofthe individlJals
listed below. The Agreement may be executed in counterparts. Facsimile br
electronically scanned pages are as effective ~;ts an original. 12.The undersigned counsel represent that they are authorized to make this
Agreem~nt on behalf of their clients. 13.This Agreement is governed by the laws ofthe United States. This
Agreement shall be deemed to have been drafted by all Patties to this
I
Agreement and sha:ll not, therefore, be construed against any Party as the author or drafter ofthe Agreement.
5
..

Case 1:17-cv-01670-MHC Document 73-1 Filed 05/25/18 Page 7 of 7
j /Ur~ (/J.j.{o! r6
unsel for Defendants Date
6

Colotl Coyotl v. Kelly et al, Docket No. 1_17-cv-01670 (N.D. Ga. May 09, 2017), Court Docket
General Information

Court Federal Nature of Suit Docket Number Status

United States District Court for the Northern District of Georgia; United States District Court for the Northern District of Georgia
Other Statutes - Administrative Procedure Act/Review or Appeal of Agency Decision[899]
1:17-cv-01670
CLOSED

© 2019 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 9