1 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MASSACHUSETTS COALITION FOR 

IMMIGRATION REFORM, et al., 

Plaintiffs,

v. 

U.S. DEPARTMENT OF HOMELAND 

SECURITY, et al., 

Defendants.

Case No. 1:20-cv-3438 (TNM)

MEMORANDUM AND ORDER

The Massachusetts Coalition for Immigration Reform (MCIR) and six individuals 

(collectively, the Coalition) challenge the Biden Administration’s immigration actions—on 

environmental grounds. The Coalition contends that three federal agencies have not complied 

with the National Environmental Policy Act (NEPA), which requires agencies to perform 

environmental impact analysis before taking certain actions. According to the Coalition, the 

agencies’ disregard of NEPA caused environmental harm. The agencies move to dismiss all 

claims for lack of subject matter jurisdiction and for failure to state a claim.

At this initial stage, the Court finds that it has jurisdiction. But the Court dismisses two 

claims: that the DHS’s Instruction Manual violates NEPA and the Administrative Procedure Act 

(APA) (Count I) and that the Biden Administration should have prepared a “programmatic” 

environmental analysis of its immigration-related actions (Count XI). The Manual does not 

qualify as “final agency action” so this Court cannot hear an APA challenge to it. And the 

Coalition’s programmatic challenge is not reviewable under the APA because it is not a 
2

“discrete” agency action. The Coalition’s remaining claims survive the Government’s Rule 

12(b)(6) objections. 

I. 

The National Environmental Policy Act (NEPA) requires agencies to conduct 

environmental impact analysis before undertaking “major Federal actions significantly affecting 

the quality of the human environment.” 42 U.S.C. § 4332(2)(C). “Major federal actions” 

include “new and continuing activities . . . financed, assisted, conducted, regulated, or approved 

by federal agencies” and new agency rules, regulations, and policies. 40 C.F.R. § 1508.1(q)(2). 

In a recommendation or report proposing a major Federal action that significantly affects the 

environment, agencies must include a detailed statement—called an Environmental Impact 

Statement (EIS)—about the action’s projected environmental effects, the feasibility of 

alternatives, and more. See 42 U.S.C. § 4332(2)(C)(i-v). Instead of an EIS, an agency may

conduct a preliminary Environmental Assessment (EA) to determine whether a particular action 

might significantly impact the environment at all. If the answer is yes, an EIS becomes 

necessary. See 40 C.F.R. § 1501.5.

These “action-forcing” provisions of NEPA and accompanying regulations require

agencies to take a “hard look” at the environmental consequences of their actions. Robertson v. 

Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Agencies must also share any EIS 

with the public, see 42 U.S.C. § 4332(2)(C)(v), so that potentially affected individuals can 

comment. See Competitive Enter. Inst. v. Nat’l Highway Traffic Safety Admin., 901 F.2d 107, 

123 (D.C. Cir. 1990). Though NEPA “simply prescribes the necessary process” without 

“mandat[ing] particular results,” its “procedures are almost certain to affect the agency’s 

substantive decision.” Robertson, 490 U.S. at 350.
3

Plaintiff MCIR is a non-partisan group whose members have both professional and 

recreational interests in the quality of the environment. See Am. Compl. (“Compl.”) ¶¶ 26–30, 

ECF No. 17. And MCIR believes that mass immigration has had “distinctly negative effects on 

[the] environment.” Id. ¶¶ 25–26. Indeed, MCIR contends that “[i]f NEPA should apply to any 

government policy, it should be to federal policies that induce population growth.” Id. ¶ 13. 

MCIR alleges that changes to immigration policies “between the Trump and Biden 

administrations . . . ha[ve] already had a profound influence on the ‘human environment.’” Id. ¶ 

14 (quoting 42 U.S.C. § 4332).

One of the many policies MCIR alleges should have received NEPA review is DHS’s 

decision to end construction on the southern border wall. See id. ¶ 108. But according to MCIR, 

the Biden Administration has not conducted NEPA analysis before changing wide swaths of 

policy impacting population growth. See id. ¶¶ 13–14. Because NEPA requires agencies to 

“engage in environmentally informed decision-making” by publishing an EA or EIS and 

soliciting public comment, MCIR alleges that the Biden Administration’s ongoing failure to do 

so “denie[s] [Americans] a seat at the table.” Id. ¶ 13, 26. 

Six individual plaintiffs join MCIR’s suit. See id. ¶¶ 31–36. These individuals similarly 

espouse personal and professional interests in their local environment. See id. Two of the 

individual plaintiffs reside near the southern border and allege harm from the Government’s 

repeated failure to perform NEPA analysis. See id. ¶¶ 197–218. 

For example, Plaintiff Chance Smith—who manages a cattle ranch near the southern 

border—claims that increased border crossings disrupt his enjoyment of his ranch and the 

surrounding environment. See id. ¶¶ 35–36; 201–04. Smith alleges that border crossers have set 

fires, destroying land integral to Smith’s cattle ranch, and that they have left trash, campsites, 
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and other refuse on his land. See id. ¶¶ 203–04. Smith concludes that if the Government had 

properly conducted NEPA analysis before changing its immigration policies, the environmental 

consequences may have been different because the public would not be “in the dark about the 

scale of the environmental consequences.” Id. ¶ 205.

The Coalition sued the Department of Homeland Security (DHS), the Department of 

State (DOS), and the Department of Justice (DOJ) (collectively, the Government) for their 

failure to conduct NEPA analysis before taking certain federal immigration actions that allegedly

cause environmental impacts. See id. ¶¶ 38–41. Each agency has its own NEPA procedures. 

See id. ¶¶ 57, 61, 64. The crux of the Coalition’s claim is that the Government failed to follow 

these procedures by neglecting to perform an EIS or EA before making or changing immigration 

policies. See, e.g., id. ¶¶ 22, 71. 

The Coalition claims that the following actions required NEPA analysis: ending 

construction of the southern border wall (Count II); terminating the “Remain in Mexico” Policies 

(Count III); allowing border patrol agents to grant permission to aliens to stay in the country, and 

helping them board buses to other states (Count IV); preventing immigration officials from 

detaining and removing aliens (Count V); ending the practice of fining aliens for failing to leave 

the country (Count VI); reinstating administrative closure in immigration courts (Count VII); and 

expanding various refugee programs (Counts VIII, IX, and X). See id. ¶¶ 226–52. The 

Coalition also alleges that DHS’s Instruction Manual violates NEPA because it does not require 

NEPA compliance for immigration-related actions (Count I), and that the Government’s failure 

to “prepare a programmatic EIS” for all the actions in Counts II-X violated NEPA (Count XI). 

See id. ¶¶ 220–25, 253–57. The Coalition seeks declaratory relief as to Counts I and XI, and 

injunctive relief for the rest. See Compl. at 112. 
5

The Government argues that the Court should dismiss all counts under Federal Rule of 

Civil Procedure 12(b)(1), on standing grounds, and under Rule 12(b)(6) because they are 

unreviewable under the APA. See Gov’t Mot. to Dismiss (Gov’t MTD), ECF No. 19. That

Motion is now ripe.

II. 

To sue in federal court, a plaintiff must show injury, causation, and redressability. Lujan 

v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). The injury must be concrete, particularized, 

and actual or imminent. Id. at 560. “At the pleading stage, general factual allegations of injury 

resulting from the defendant’s conduct may suffice.” Id. at 561. The Court “presumes that 

general allegations embrace those specific facts that are necessary to support the claim.” Lujan 

v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990). 

To seek prospective injunctive relief, a plaintiff must allege facts sufficient to show an 

imminent threat of future injury. See In re Navy Chaplaincy, 697 F.3d 1171, 1176 (D.C. Cir. 

2012). A plaintiff must also show a causal connection between his injury and the challenged 

conduct. Id. And it must be likely that a favorable decision will redress the injury. Lujan, 504 

U.S. at 561. Only one plaintiff needs standing to press each claim. See Mountain States Legal 

Found. v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996). 

When a plaintiff sues under a statute, the Court must also determine whether he “falls 

within the class of plaintiffs whom Congress has authorized to sue.” Lexmark Int’l, Inc. v. Static 

Control Components, Inc., 572 U.S. 118, 128 (2014). To assess so-called “prudential standing” 

the Court interprets the statute to analyze whether it encompasses the injuries a plaintiff claims. 

See id. at 127. If so, a plaintiff falls within the statute’s “zone-of-interests.” See id. And “[t]he 

zone of interests test is not meant to be especially demanding.” Cement Kiln Recycling Corp. v. 
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EPA, 255 F.3d 855, 871 (D.C. Cir. 2001) (cleaned up). If a plaintiff brings an APA claim 

involving another statute, a claim need only “arguably” fall within the statute’s zone of protected 

interests. Id. at 870. 

To avoid dismissal, “a complaint must contain sufficient factual matter, accepted as true, 

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fed. R. Civ. Pro. 

12(b)(6). A claim is plausible when it “allow[s] the court to draw the reasonable inference that 

the defendant is liable for the misconduct alleged.” Id. And the Court must draw all such 

inferences in the plaintiff’s favor. See Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 

(D.C. Cir. 2015). The Court treats any documents attached to the Complaint—like individual 

declarations—“as if they are part of the complaint.” In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 

2005). 

NEPA does not provide for judicial review. Challenges to compliance with it therefore 

proceed under the Administrative Procedure Act (APA). See Fund for Animals, Inc. v. U.S. 

Bureau of Land Mgmt., 460 F.3d 13, 18 (D.C. Cir. 2006). The APA permits judicial review of 

all “final agency action” unless a “statute preclude[s] judicial review” or “agency action is 

committed to agency discretion by law.” 5 U.S.C. §§ 701(a), 704. Agency action is final if it is 

the “consummation of the agency’s decisionmaking process” and determines “rights and 

obligations” or imposes “legal consequences.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997). 

Congress may preclude judicial review through express statutory language or the structure of the 

statutory scheme. See Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984). And an action is 

committed to agency discretion by law if the statute’s terms are so broad that the Court “would 

have no meaningful standard against which to judge the agency’s exercise of discretion.” 
7

Heckler v. Chaney, 470 U.S. 821, 830 (1985). The Court analyzes motions to dismiss on the 

grounds that an action is committed to agency discretion by law under Rule 12(b)(6). See Sierra 

Club v. Jackson, 648 F.3d 848, 853–54 (2011).

III. 

The Government contends that the Coalition lacks Article III standing, see Gov’t MTD at

9–16, and that the Coalition’s injuries lie outside NEPA’s “zone of interests,” see Gov’t Reply in 

Support of Mot. to Dismiss at 5–6 (Gov’t MTD Reply). 

A plaintiff must establish standing at each phase of litigation. See Scenic Am., Inc. v. 

U.S. Dep’t of Transp., 836 F.3d 42, 48 (D.C. Cir. 2016). But the Coalition’s burden to prove 

standing at this stage is lighter than it will be at summary judgment. Cal. Cattlemen’s Ass’n v. 

U.S. Fish & Wildlife Serv., 369 F. Supp. 3d 141, 145 (D.D.C. 2019); see also Osborn v. Visa 

Inc., 797 F.3d 1057, 1063 (D.C. Cir. 2015) (“A plaintiff’s burden to demonstrate standing grows 

heavier at each stage of the litigation.”). 

The Coalition bears the burden of establishing constitutional standing and that its claims 

are within NEPA’s zone-of-interests. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009); 

Gunpowder Riverkeeper v. FERC, 807 F.3d 267 (D.C. Cir. 2015). For each claim, if at least one 

plaintiff has constitutional standing and satisfies the zone-of-interests requirement, the case may 

proceed. See Mountain States, 92 F.3d at 1232. 

The Court finds that Plaintiff Chance Smith has constitutional standing as to all Counts

and that his claims fall within NEPA’s zone-of-interests. Smith lives and works on the southern 

border, where he operates a cattle ranch. See Compl. ¶ 200; see also Smith Decl. ¶¶ 5–7, ECF 

No. 22-1. Smith alleges that the Government’s immigration policies have caused direct 

environmental harm to the land where he lives and works. See, e.g., id. ¶¶ 200–05; Smith Decl. 
8

¶¶ 9–12, 18. He contends that if the Government had conducted NEPA analysis before 

performing such actions, the environmental harm he witnesses could have been mitigated. See 

id. ¶ 205; see also Smith Decl. ¶ 19–20. As detailed below, Smith alleges facts sufficient to meet

the tripartite test for constitutional standing, as well as NEPA’s zone-of-interests requirement. 

For the injury-in-fact element of standing, Smith claims a procedural right under NEPA. 

Pls.’ Opp’n to Mot. to Dismiss (Pls.’ Opp’n) at 5, ECF No. 22. As the D.C. Circuit has 

explained, the “archetypal procedural injury” is “an agency’s failure to prepare a statutorily 

required environmental impact statement before taking action with potential adverse 

consequences to the environment.” Nat’l Parks Conservation Ass’n v. Manson, 414 F.3d 1, 5 

(D.C. Cir. 2005). So too here. Every count in the Complaint challenges the Government’s 

failure to conduct an EIS or EA before taking a major federal action pertaining to immigration. 

See Compl. ¶¶ 220–57.

To be sure, alleging a bare procedural injury is not enough. Spokeo, Inc. v. Robins, 578 

U.S. 330, 341 (2016). Smith must also show that deprivation of his procedural rights under 

NEPA impairs his concrete environmental interests. See Summers, 555 U.S. at 496; see also City 

of Dania Beach, Fla. v. FAA, 485 F.3d 1181, 1185–86 (D.C. Cir. 2007). The Court finds that he

does. 

Smith contends that increased illegal immigration across the southern border has harmed

his ranch and the surrounding environment. See Smith Decl. ¶ 14. More, he alleges that border 

crossers set fire to land he leases and left trash, campsites, and blankets in their wake. See id. ¶¶ 

9, 14, 17. They even buried a gun in his backyard. See id. ¶ 10. And Smith claims that his 

heightened awareness of trespassers on and around his land has impaired his enjoyment of the 

outdoors. See id. ¶ 14; Cf. Cal. Cmtys. Against Toxics v. EPA, 928 F.3d 1041, 1049 (D.C. Cir. 
9

2019) (explaining that individualized fears of health and environmental consequences which 

change one’s behavior can establish injury-in-fact). Smith has also shown that the Government’s 

failure to follow NEPA procedures posed a “distinct risk to his particularized interests given the 

location of his home.” City of Dania Beach, 485 F.3d at 1186 (cleaned up) (finding that a man 

living next to a runway who alleged increased noise, jet exhaust smell, and residue stated an 

injury-in-fact under NEPA). 

The Government argues that these injuries are too conjectural and speculative to establish 

injury-in-fact. See Gov’t MTD at 12–13. Not so for now. The Court’s duty to accept wellpleaded facts in the Complaint as true may seem to conflict with the instruction that injuries 

which are “too speculative will not suffice to invoke the federal judicial power.” Osborn, 797 

F.3d at 1064. Courts reconcile that perceived tension by “distinguishing allegations of facts, 

either historical or otherwise demonstrable, from allegations that are really predictions.” Id. 

(quoting United Transp. Union v. ICC, 891 F.2d 908, 912 (D.C. Cir. 1989) (cleaned up)). So the 

Court does not reject allegations as too speculative—even when pled as part of a chain of 

events—if they can be proven true or false later in the litigation. See id. at 1064–65. 

Smith also satisfies the standing requirement for injunctive relief because he alleges facts 

showing he will be “wronged again,” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983), if 

the Government does not conduct environmental analysis before taking similar immigrationrelated actions. See, e.g., Compl. ¶ 93–96 (discussing how immigration is projected to increase 

and that it will continue to affect the environment); Smith Decl. ¶ 17 (expressing concerns about

the current and future environmental impact of border crossings on ranch land). 

Smith also pleads facts sufficient to show causation at this preliminary stage. To survive 

a motion to dismiss, “general factual allegations of injury resulting from the defendant’s conduct 
10

may suffice.” See Lujan, 504 U.S. at 561. Smith need not “prove that if he had received the 

procedure the substantive result would have been altered.” Sugar Cane Growers Coop. of Fla. v. 

Veneman, 289 F.3d 89, 94 (D.C. Cir. 2002). Rather, facts supporting a “substantial probability” 

that the Government’s failure to conduct any environmental analysis “created a demonstrable 

risk[] or caused a demonstrable increase in an existing risk of injury to [his] particularized 

interests” suffice. Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 669 (D.C. Cir. 1996). 

Smith has adequately alleged facts tending to show that non-compliance with NEPA 

“caused a demonstrable increase in existing risk of injury” to his environmental interests. For 

example, he alleges that border crossers “are extremely attentive to the promises” immigration 

officials make. Compl. ¶ 198; see also Smith Decl. ¶ 5. As such, he argues aliens “come if they 

believe they are being encouraged by our government” and “do not come if they know they will 

be kept out.” Compl. ¶ 198. Smith also alleges that the Government has ordered immigration 

officials to “stand down” and to release aliens into the country. See id. ¶ 199. Not surprisingly,

the number of border crossers has skyrocketed since President Biden’s inauguration. See Compl. 

¶ 200; Smith Decl. ¶ 13; Pls.’ Opp’n at 8–9. 

The Government argues that Smith fails to allege facts sufficient to support causation. 

See Gov’t MTD at 15–16. To be sure, causation is more difficult to prove if it is the “result of 

the independent action of some third party not before the court.” Lujan, 504 U.S. at 560–61; see 

also Arpaio v. Obama, 797 F.3d 11, 20–21 (D.C. Cir. 2015). But the Court “does not exclude 

injury produced by determinative . . . effect upon the action of someone else.” Bennett, 520 U.S. 

at 169. Excluding such injuries risks unduly narrowing the causation inquiry to circumstances 

where the “defendant’s actions are the very last step in the chain of causation.” See id. at 168–

69. 
11

More, the Government largely relies on cases decided at summary judgment for its 

argument about causation. See, e.g., Gov’t MTD at 16 (citing Whitewater Draw Nat. Res. 

Conservation Dist. v. Mayorkas, 5 F.4th 997 (9th Cir. 2021), which affirmed dismissal on 

standing grounds at summary judgment); see also id. (citing Fla. Audubon Soc’y, 94 F.3d 658

(same)). Viewing those decisions as controlling here on the issue of causation would be 

improper. See Osborn, 797 F.3d at 1065–66 (criticizing district court for relying on cases 

decided at summary judgment in holding that plaintiffs lack standing). This is so because a 

motion to dismiss “is not the occasion for evaluating the empirical accuracy” of a theory. Id. 

So long as the facts Smith alleges are “specific, plausible, and susceptible to proof at trial, 

they pass muster for standing purposes at the pleading stage.” Id. at 1066. Smith need not, as 

the Government argues, prove that the actions he challenges causes the immigration that is 

harming his surrounding environment. See Gov’t MTD at 16–17. Rather, at this stage he need 

only allege facts that he can prove at summary judgment. See Osborn, 797 F.3d at 1065–66. 

The Court finds that he clears this comparatively low bar.

Because Smith claims a procedural injury, the Court relaxes the normal standards for

redressability and immediacy. See Lujan, 504 U.S. at 573, n.7; see also Manson, 414 F.3d at 5. 

The D.C. Circuit has noted that procedural injuries are “easily redressable, as a court may order 

the agency to undertake the procedure.” Fla. Audubon Soc’y, 94 F.3d at 668. And Smith pleads 

facts to suggest that the relief sought could redress these injuries. See, e.g., Smith Decl. 21

(alleging that if the Government “had to be open and transparent” and “consider the 

consequences and answer to the American pubic before it carried out these actions, the Biden 

Administration might well have changed its mind.”). 
12

Smith also alleges injuries within NEPA’s zone of interests. “The zone of interests 

protected by the NEPA is, as its name implies, environmental.” Gunpowder Riverkeeper, 807 

F.3d at 274; see also Mountain States, 92 F.3d at 1235–36 (noting that NEPA’s “sweeping list of 

interests” includes even “aesthetic and environmental interests in the quality of public lands”). 

Smith alleges environmental injuries: trash and campsites left on his land, man-made fires, and 

more. See, e.g., Compl. ¶¶ 198–205; Smith Decl. ¶¶ 9–10, 14, 17. Though the Government 

provides an illustrative list of which injuries fall outside NEPA’s zone of interests, see Gov’t 

MTD Reply at 5, the list does not include the environmental injuries which Smith alleges. 

Smith’s alleged injuries “have a sufficiently close connection to the physical environment” to fall 

within NEPA’s zone of interests. Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 

766, 778 (1983).

For all these reasons, the Court finds that Smith has constitutional standing to bring the

claims, and that his alleged injuries fall within NEPA’s zone-of-interests.

IV. 

The Government also argues (1) that claims about the DHS Instruction Manual are 

unreviewable under the APA because the Manual is not final agency action (Count I); (2) that the 

APA forecloses the Coalition’s broad programmatic challenge (Count XI); (3) that the Court 

cannot hear the Coalition’s claims about administrative closure because another federal statute 

bars review (Count VII); (4) that DOS’s actions to resettle refugees are unreviewable because 

DOS is merely carrying out Presidential directives (Count VIII), (5) that DHS’s NEPA waiver 

under the Trump Administration continues to apply, and even if it doesn’t, ceasing construction 

is not a major federal action subject to NEPA (Count II), and (6) that the remaining claims fail to 

state a claim under the APA because they are either not final agency action or they are 
13

committed to agency discretion by law (Counts III, IV–VI, IX-X). See id. at 17–44. The Court 

addresses each argument in turn. 

A.

The Coalition alleges in Count I that DHS’s Instruction Manual, which implements

NEPA, is arbitrary and capricious because it “omits any mention of immigration policy,” 

therefore violating NEPA’s implementing regulations. See Compl. ¶¶ 220–25 (citing 40 C.F.R. 

§ 1505.1(b) and § 1507.3(b)(2)), which require agencies to adopt NEPA procedures for 

“principal programs” and “typical actions” likely to have significant environmental effects). The 

Government counters that the Instruction Manual is not “final agency action,” and so it is

unreviewable under the APA. See Gov’t MTD Reply at 17–21. 

Section 704 of the APA permits review of “final agency action.” Agency action is final 

if it is the “consummation of the agency’s decisionmaking process,” rather than a tentative or 

interlocutory decision, and if it determines “rights and obligations” or imposes “legal 

consequences.” Bennett, 520 U.S. at 177–78 (cleaned up). Each of these requirements “must be 

satisfied independently for agency action to be final.” Soundboard Ass’n v. FTC, 888 F.3d 1261, 

1267 (D.C. Cir. 2018). The Ninth Circuit recently held that DHS’s NEPA Instruction Manual 

fails both requirements. See Whitewater Draw, 5 F.4th at 1008–09. The Court agrees. 

An agency action that is the “last word on [a] matter,” marks the consummation of the 

agency’s decision-making process. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 478 (2001). 

Typically, the agency must “arrive[] at a definitive position on the issue that inflicts an actual, 

concrete injury.” Darby v. Cisneros, 509 U.S. 137, 144 (1993) (cleaned up). And the agency’s 

own treatment of the action can show that it is not the culmination of the agency’s consideration 
14

of an issue. See Holistic Candlers & Consumers Ass’n v. FDA, 664 F.3d 940, 944 (D.C. Cir. 

2012). 

The Manual is not DHS’s “last word” on anything. See Whitman, 531 U.S. at 478. 

Rather, DHS’s Instruction Manual “establish[es] the policy and procedures DHS follows to 

comply with” NEPA. See Gov’t MTD, Ex. B at III-1. For example, the Manual lists actions that 

normally require NEPA review, see, e.g., id. at V-9, and it explains that DHS components decide 

what level of NEPA analysis is appropriate, see, e.g., id. at IV-1. In other words, the Manual 

helps DHS’s components make NEPA decisions; it does not tell them how—or when—they 

must do so. Indeed, though the Manual says that NEPA applies to “the majority of” DHS 

actions, it allows components to categorically exclude some, see id. at V-1, V-2, or “otherwise 

decide to prepare an EA for any action at any time,” see id. at V-4. 

As the Ninth Circuit held, “[t]his is not the stuff of final agency decisionmaking.” 

Whitewater Draw, 5 F.4th at 1009. DHS has not “arrived at a definitive position on the issue 

that inflicts an actual, concrete injury,” Darby, 509 U.S. at 144, with the Manual because 

individual components within the agency ultimately decide whether an EIS or EA is warranted. 

See, e.g., Gov’t MTD, Ex. B at IV-1; see also Holistic Candlers, 664 F.3d at 944 (holding that 

FDA warning letters did not conclude the agency’s decisionmaking process because they were 

merely a preliminary step that “may lead to enforcement action” if firms didn’t correct 

violations). 

The Coalition responds that the Manual’s publication in the Federal Register after a 

period of review and comment renders it the culmination of the agency’s decision-making 

process. But publication in the Federal Register is not dispositive; Bennett’s test is. See, e.g., 

Nat’l Ass’n of Home Builders v. Norton, 298 F. Supp. 2d 68, 79 (D.D.C. 2003) (holding that an 
15

agency’s guidance document published in the Federal Register is not final agency action because 

it fails Bennett’s test), aff’d, 415 F.3d 8 (D.C. Cir. 2005). 

The Manual is not the end of DHS’s decision-making process about whether

environmental analysis is required under NEPA; it is the beginning. 

But even if the Manual were the end of DHS’s decision-making, it is not final agency 

action because it creates no new obligations and has no legal consequences. See Bennett, 520 

U.S. at 156. 

In deciding whether agency action creates new rights and obligations, the Court looks to 

whether the agency action at issue “had direct and appreciable legal consequences” on regulated 

entities. See Sierra Club v. EPA, 955 F.3d 56, 63 (D.C. Cir. 2020); see also Nat’l Min. Ass’n v. 

McCarthy, 758 F.3d 243, 252 (D.C. Cir. 2014). But agency action that “merely clarifies 

[regulated entities’] existing duties under the [statute] and explains the process [the agency] 

suggests” does not impose legal obligations. See Catawaba Cnty. v. EPA, 571 F.3d 20, 34 (D.C. 

Cir. 2009). In Sierra Club, for example, the D.C. Circuit held that the EPA’s guidance document 

on “Significant Impact Levels” for pollutants did not create new obligations or impose legal 

consequences. See 955 F.3d at 63–64. The Circuit reasoned that EPA’s guidance imposes no 

“obligations, prohibitions, or restrictions on regulated entities” and “does not subject [regulated 

entities] to new penalties or enforcement risks.” Id. at 63. “Paramount” in the Circuit’s decision 

that the guidance did not impose legal obligations “is the amount of discretion [regulated 

entities] retain” under EPA’s guidance. Id. at 64. So too here. 

DHS’s Manual by its terms “implements”—rather than augments or alters—NEPA’s 

preexisting requirements. See, e.g., Gov’t MTD, Ex. B at V-1; see also Whitewater Draw, 5 

F.4th at 1009. Its general instructions do not bind DHS or any of its components to a particular 
16

decision. See generally id. As explained, components remain free to categorically exclude 

actions from environmental analysis, or not. More, there are no consequences if a component 

were to violate the Manual’s procedures. Nor could there be, because a violation of the Manual 

is really a violation of NEPA itself. The Manual thus merely “clarifies” existing duties under 

NEPA and “explains the process [DHS] suggests” for compliance. Catawaba Cnty., 571 F.3d at 

34. 

The Coalition’s arguments to the contrary are unpersuasive. That the Manual includes 

mandatory language that components “must” follow in implementing NEPA, see Pls.’ Opp’n at 

27, does not mean that the Manual imposes these requirements, rather than NEPA itself. See 

Whitewater Draw, 5 F.4th at 1009. More, just because the Manual “integrates NEPA” with other 

federal laws does not mean it creates new substantive legal obligations or alters NEPA’s 

preexisting legal regime as to DHS. And the Manual’s illustrative list of actions that “normally” 

receive an EIS, see Pls.’ Opp’n at 28, does not bind DHS components to act similarly in the 

future. Finally, that the Manual includes certain “categorical exclusions,” see Pls.’ Opp’n at 28, 

does not add to or diminish DHS’s NEPA obligations. The Manual itself does not command

DHS components to invoke an exclusion for a certain action, and the Coalition has challenged no

individual categorical exclusion here. Thus, the Manual does not alter the existing NEPA regime 

nor create new substantive legal obligations. 

Because the Manual fails both parts of Bennett’s test for final agency action, this Court 

cannot review it under the APA.1

 

1 The Coalition tries to save the Manual’s lack of finality by arguing that it is a rule under 5 

U.S.C. § 551(4). See Pls.’ Opp’n at 24. Though the APA defines “agency action” to include an 

“agency rule,” Bennett prescribes the test for “final agency action” and, as explained, the Manual 

does not qualify. 
17

B. 

The Coalition also challenges the Government’s failure to “prepare a programmatic EIS” 

for what it calls their “population growth agenda.” Compl. ¶¶ 105–06, 254–57 (Count XI). The 

Coalition contends that an EIS was necessary because the Government’s actions—which include 

ending construction of the southern border wall, the reinstatement of administrative closure in 

immigration courts, and other diffuse policy changes, see id. ¶¶ 220–257—“work 

synergistically” to form a “coherent plan of national scope,” id. ¶¶ 105, 255. The Government 

counters that Supreme Court precedent forecloses such broad, programmatic challenges. 

Though the APA permits review of final agency action, the challenged agency action 

must be “discrete.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004). “The limitation 

to discrete agency action precludes . . . broad programmatic attack[s].” Id. In Lujan v. National 

Wildlife Federation, for example, the Court rejected a challenge to 1,250 individual agency 

actions which plaintiffs challenged as the agency’s “land withdrawal review program.” See 497 

U.S. at 890. The Court explained that the “program” plaintiffs challenged was not “a single 

[agency] order or regulation” or even “a completed universe of particular [agency] orders and 

regulations.” Id. Rather, plaintiffs lumped more than a thousand agency actions together, called 

it a “program,” and challenged it in Court. See id. The Court noted that “the offices of the 

[agency] or the halls of Congress” are better suited to resolve such a broad challenge, because

that is “where programmatic improvements are normally made.” Lujan, 497 U.S. at 891; see 

also Norton, 542 U.S. at 64–65. So too here. 

The Ninth Circuit recently rejected a similar programmatic challenge to numerous

immigration-related agency actions. See Whitewater Draw, 5 F.4th at 1010–11. As here, 

plaintiffs claimed that DHS implements certain “programs” in violation of NEPA including 
18

“employment-based immigration” and “long-term nonimmigrant visas.” See id. The Ninth 

Circuit held that Lujan foreclosed such challenges because plaintiffs challenged a collection of

DHS actions regulating immigration, not a discrete agency action. See id. More, the Ninth 

Circuit explained that plaintiffs failed to name “any regulations, rules, orders, public notices, or 

policy statements that authorize or enforce these ‘programs.’” Id. at 1010. Plaintiffs’ inability to 

pinpoint any such authority showed that were not challenging a discrete agency action. Id.; see 

also Arizona v. Mayorkas, No. 21-cv-00617-PHX-DWL, 2022 WL 357348, at *4–5 (D. Ariz. 

Feb. 7, 2022) (dismissing a similar programmatic challenge combining several of the same 

claims the Coalition brings here). 

The Coalition’s argument in Count XI similarly fails to identify discrete agency action. 

Indeed, the programmatic attack essentially lumps together all actions in the ten prior counts to 

argue that they are one “program”: the “Biden Population Actions.” See Compl. ¶ 256. Yet, as 

Lujan and Whitewater Draw underscore, labeling diffuse actions a “program” does not a 

program make. More, because the Coalition challenges the Government’s failure to comply with 

NEPA for each action individually, the controversy “has been reduced to more manageable 

proportions,” Lujan, 497 U.S. at 891, and its programmatic challenge is duplicative. 

The Court will dismiss the Coalition’s programmatic challenge (Count XI) as 

unreviewable under the APA. 

C. 

The Coalition argues in Count VII that DOJ’s decision to reinstate “administrative 

closure”2 in immigration courts should have received environmental analysis under NEPA. See 

2 Administrative closure is a docket management tool that allows immigration judges to remove 

cases from their active calendar without deciding the merits. See Compl. ¶¶ 113–16 (describing 

the practice); see also Gov’t MTD at 35 n.13. 
19

Compl. ¶¶ 242–43. The Government argues that the Immigration and Nationality Act (INA) 

divests this Court of jurisdiction to hear this claim because it channels challenges “arising from” 

immigration proceedings into the circuit courts. See Gov’t MTD at 35–37. 

Federal district courts have jurisdiction over “all civil actions arising under the 

Constitution, law, or treaties of the United States.” 28 U.S.C. § 1331. Congress may limit this 

broad grant of jurisdiction “by establishing an alternative statutory scheme for administrative and 

judicial review.” Am. Fed’n of Gov’t. Emps., AFL-CIO v. Trump, 929 F.3d 748, 754 (D.C. Cir. 

2019). The Government contends that the INA creates such a scheme. 

The INA provides that “[j]udicial review of all questions of law and fact . . . arising from 

any action taken or proceeding brought to remove an alien from the United States . . . shall be 

available only in judicial review of a final order under this section.” 8 U.S.C. § 1252(b)(9). And 

it explains that “a petition for review filed with an appropriate court of appeals in accordance 

with this section shall be the sole and exclusive means for judicial review of an order of removal 

entered or issued[.]” Id. § 1252(a)(5). The Government contends that these provisions work in 

tandem to bar the Coalition’s NEPA challenge. See Gov’t MTD at 36. This is so, it argues, 

because the Attorney General essentially intervened in an ongoing removal proceeding (Matter 

of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021)) to issue an opinion that immigration judges may 

again use administrative closure. See id. As a result, the Government concludes that the

Attorney General’s opinion “aris[es] from” a removal proceeding and is thus reviewable only 

through “a petition for review filed with an appropriate court of appeals.” §§ 1252(b)(9), (a)(5). 

Not so. By its terms, § 1252(a)(5) channels into the courts of appeals “petition[s] for 

review . . . of an order of removal.” (emphasis added). The Coalition does not challenge an 

order of removal; it challenges the lack of NEPA analysis before the Attorney General reinstated
20

administrative closure. See Compl. ¶¶ 113–16; see also O.A. v. Trump, 404 F. Supp. 3d 109, 126 

(D.D.C. 2019) (holding that § 1252(a)(5) did not bar a challenge to a generally applicable rule 

because it is not “an order of removal.”). Section 1252(a)(5) therefore does not channel the type 

of claim the Coalition raises here. 

So too for § 1252(b)(9). Though this provision exists “to consolidate ‘judicial review’ of 

immigration proceedings into one action in the court of appeals . . . it applies only ‘[w]ith respect 

to review of an order of removal under subsection (a)(1).” I.N.S. v. St. Cyr, 533 U.S. 289, 313 

(2001) (quoting 8 U.S.C. § 1252(b)). As explained, the Coalition challenges the Attorney 

General’s NEPA compliance, not an order of removal. 

More, the Supreme Court recently explained that the phrase “arising from” in 

§ 1252(b)(9) should not be read with “uncritical literalism . . . leading to results that no sensible 

person could have intended.” Jennings v. Rodriguez, 138 S. Ct. 830, 840 (2018) (plurality op.)

(cleaned up). In Jennings, aliens challenged statutory provisions requiring detention without a 

bond hearing. Id. at 839. The plurality explained that § 1252(b)(9) did not deprive it of 

jurisdiction even though the aliens had at one time been subject to removal proceedings and did 

not raise their claims during that process. Id. at 840. The Court reasoned that just because a 

removal proceeding was the but-for cause of the aliens’ claimed injuries, it proves too much to 

say that such injuries “arise from” the removal proceedings themselves. See id. Adopting this 

logic would render whole categories of claims “effectively unreviewable” because it could be 

possible that “no such [final] order [of removal] would ever be entered in a particular case, 

depriving that [person] of any meaningful chance of judicial review.” Id.; see also St. Cyr, 533 

U.S. at 313 (explaining that § 1252(b)(9) “does not bar [] jurisdiction over removal orders not 

subject to judicial review” under the INA in the first place).
21

To be sure, circuit courts have at times described § 1252(b)(9) as “vise-like in grip . . . 

swallowing up virtually all claims that are tied to removal proceedings” including “policies-andpractices challenges.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016). But St. Cyr and 

Jennings control here. Members of the Coalition will never be subject to a removal proceeding 

under the INA. So there will never be a final order of removal through which they could 

challenge the lack of environmental analysis before the Attorney General’s reinstatement of 

administrative closure. Cf. O.A., 404 F. Supp. 3d at 130 (“[I]f there is no final order of removal, 

there is nothing into which to fold the precedent challenges,” and § 1252(b)(9) is inapplicable).

Even though the new administrative closure regime technically “arises from” a removal 

proceeding, this does not end the inquiry. See Jennings, 138 S. Ct. at 840; see also O.A., 404 F. 

Supp. 3d at 109. Adopting the Government’s reading of § 1252(b)(9) would flout the Supreme 

Court’s instruction to “eschew uncritical literalism” when interpreting “arising from” in the INA. 

Jennings, 138 S. Ct. at 840. 

The Court therefore finds that it has jurisdiction to hear the Coalition’s claim in Count 

VII and that it states a claim under the APA. At this preliminary stage, the Court accepts the 

Coalition’s factual allegations as true, see Iqbal, 556 U.S. at 678, and “presum[es] that general 

allegations embrace those specific facts that are necessary to support [a] claim,” Lujan, 504 U.S. 

at 561 (cleaned up). 

D.

The Coalition contends in Count VIII that DOS’s actions to resettle refugees were

arbitrary and capricious because DOS did not first conduct NEPA analysis. See Compl. ¶¶ 119–

23, 245–46. The Government counters that this claim is unreviewable because DOS is merely 

carrying out Presidential directives, and the APA does not waive sovereign immunity. See Gov’t
22

MTD at 38–39. But the Government misstates the object of the Coalition’s challenge. So its 

arguments to dismiss Count VIII fail. 

Though the Coalition notes that President Biden raised the refugee admission ceiling, see 

Compl. ¶ 119, it does not challenge that action. Instead, the Coalition argues that DOS’s actions 

to resettle refugees—specifically its request for proposals from charitable organizations 

throughout the country—should have received NEPA analysis. See, e.g., Pls.’ Opp’n at 36–37

(explaining that the challenge is to “the final decisions by DOS” which includes “[t]he setting of 

terms and the award to specific grantees of these contracts” which “will have environmental 

impacts.”). Even though, as the Government notes, the INA gives the President plenary 

authority to admit refugees, see Gov’t MTD at 38, the Coalition is not challenging the number of 

refugees, but that DOS is resettling them in partnership with NGOs with no NEPA analysis, see

Compl. ¶¶ 121–24; Pls.’ Opp’n 36–37.

The Court finds that the Coalition states a claim under the APA in Count VII at this 

preliminary stage. The Court must accept the Coalition’s factual allegations as true, and finds 

that it states a claim for relief that is plausible on its face. See Iqbal, 556 U.S. at 678. 

E.

Next up is the Coalition’s contention in Count II that DHS should have conducted a 

NEPA analysis before suspending construction on the southern border wall. See, e.g., Compl. ¶ 

227–28; Smith Decl. ¶ 12, 18–20. The Government counters that this claim should be dismissed 

because DHS waived NEPA review for border wall projects during the Trump Administration. 

See Gov’t MTD at 22–23. Alternatively, it argues that the termination of border wall 

construction is “not a major federal action affecting the environment” sufficient to trigger NEPA 

review. See id.
23

Both sides agree that the Illegal Immigration Reform and Immigration Responsibility Act 

(IIRIRA) allowed DHS to waive NEPA analysis when beginning border wall construction during 

the Trump Administration. See Gov’t MTD at 23; Pls.’ Opp’n at 20–21. They disagree about 

whether DHS’s waiver is still in force. The Trump DHS waived NEPA analysis “with respect to 

the construction of physical barriers and roads.” See Gov’t MTD at 23; Pls.’ Opp’n at 21

(quoting Determination Pursuant to Section 102 of the IIRIRA, as Amended, 85 FR 14961, 

14,962–63 (Mar. 16, 2020) (“DHS Waiver”)). 

The Government contends that a decision to stop construction is a decision “with respect 

to” construction, so the waiver continues to cover DHS actions. Gov’t MTD at 23. The 

Coalition counters that Congress only delegated waiver authority to DHS in Section 102(c) of 

IRRIRA “to ensure expeditious construction of [] barriers and roads.” Pub. L. No. 109-13, § 

102(c). The Coalition also argues that the waiver must be read in its broader context, which 

includes the Secretary’s justification for the waiver: “an acute and immediate need to construct 

physical barriers and roads in the vicinity of the border of the United States in order to prevent 

unlawful entries.” Pls.’ Opp’n at 21 (quoting DHS Waiver). 

The Court agrees with the Coalition. The Government cites Center for Biological 

Diversity v. Trump, 453 F. Supp. 3d 11(D.D.C. 2020), to support their claim that the waiver 

continues to bind the Biden DHS. See Gov’t MTD at 23. But that case dealt with a NEPA 

challenge to decisions DHS made during the Trump Administration—the same administration 

that had waived NEPA. See Ctr. for Biological Diversity, 453 F. Supp. 3d at 35–36. This case 

and the others the Government cites, see Gov’t MTD at 23-24, do not hold—or even suggest—

that a prior administration’s waiver extends to the next administration when it wants to cancel 

the project. Cf. Nat’l Audubon Soc’y, Inc. v. Watt, 678 F.2d 299, 307 (D.C. Cir. 1982) (declining 
24

to construe an agreement by one administration about NEPA analysis to “bind the parties [in a 

new administration] long after it has served its principal purpose.”). It is highly doubtful that the 

justification for an action can also explain its opposite or that the waiver of provisos to build 

something also would cover a stop-work order. 

The Government’s alternative argument for dismissal also fails. It contends that ending 

border wall construction “does not alter the substantive environmental status quo” and is thus not 

a “major Federal action[] . . . significantly affecting the quality of the human environment.” 

Gov’t MTD at 24. Perhaps that may prove to be true. 

But the Coalition alleges that ending construction has harmed the land and the 

surrounding environment. It claims, for instance, that border crossers left trash and buried a gun 

on Plaintiff Smith’s property. See Smith Decl. ¶¶ 9–10. The Coalition also alleges that border 

crossers burned land that Plaintiff Smith leases. See id. ¶¶ 17–18. So taking the Coalition’s

allegations as true, “terminating the wall . . . [did not] leave the world as it is,” as the 

Government claims. See Pls.’ Opp’n at 22. The actions of which the Coalition complains were 

not occurring when the wall was being built. See, e.g., Smith Decl. ¶ 6–8, 12–14. 

The Court finds that the Coalition states a claim under the APA in Count II at this 

preliminary stage. The Coalition alleges sufficient facts, taken as true, to state a claim for relief 

under NEPA and the APA that is plausible on its face. See Iqbal, 556 U.S. at 678.

F.

In Count III, the Coalition challenges the DHS’s termination of four “Remain in Mexico” 

policies3 without first performing NEPA analyses. These policies are the Migrant Protection 

3 The Government correctly notes that what the Coalition labels the “Remain in Mexico” policy 

is four separate policies, only one of which—the Migrant Protection Protocols—is called 

“Remain in Mexico.” See Gov’t MTD at 25.
25

Protocols (MPP), the Asylum Cooperative Agreements, Prompt Asylum Claim Review, and the 

Humanitarian Asylum Review Process. The Government argues that the DHS’s termination of 

the MPP is not reviewable under the APA because it is committed to agency discretion by law. 

See Gov’t MTD at 26 (quoting 5 U.S.C. § 701(a)(2)). It also argues that the Asylum Cooperative 

Agreements are not reviewable under the APA.

4

 

For its claim about the MPP, the Coalition relies on a June 2021 DHS memorandum. See 

Compl. ¶ 109 n.48; Pls.’ Opp’n at 30. While this case was pending, the Northern District of

Texas vacated the June Memorandum, see 554 F. Supp. 3d 818, and DHS issued a replacement 

memorandum in October, see Biden v. Texas, 142 S. Ct. 2528, 2537 (2022). The Supreme Court 

recently held that this October memorandum is final agency action reviewable under the APA. 

See id. at 2544–45. Here, the Government contends that the Coalition’s NEPA challenge is 

barred because DHS’s rescission of the MPP is an action committed to agency discretion by law. 

Though the Supreme Court did not address this argument in Texas, the Fifth Circuit held that 

DHS’s rescission of the MPP was not committed to agency discretion by law. See Texas v. 

Biden, 10 F.4th 538, 550–51 (5th Cir. 2021). 

Even so, the Coalition does not challenge rescission of the MPP on its face. Rather, it

challenges DHS’s failure to conduct NEPA analysis before doing so. See Pls.’ Opp’n at 31. 

DHS’s decision—or not—to conduct NEPA analysis does not fit into the narrow category of 

decisions committed to agency discretion by law. This category applies only in the “rare 

4 The Government concedes that the Coalition’s challenges to the Prompt Asylum Claim 

Review and Humanitarian Asylum Review Process polices are reviewable. See Gov’t MTD at 

25–26 n.6 (citing Las Ams. Immigrant Advoc. Ctr. v. Wolf, 507 F. Supp. 3d 1, 9 (D.D.C. 2020) 

(finding that these policies are reviewable under the APA)). But it argues that because the 

Coalition has not articulated how the termination of the policies will impact it, it lacks standing 

to challenge them. For the reasons stated in Part III.A of this Memorandum, the Court finds that 

Smith has standing to press these claims.
26

circumstances where the relevant statute ‘is drawn so that a court would have no meaningful 

standard against which to judge the agency’s exercise of discretion.’” Lincoln v. Vigil, 508 U.S. 

182, 191 (1993) (quoting Heckler, 470 U.S. at 830). But an agency’s compliance—or not—with 

NEPA is an assessment courts make all the time. The Government’s argument that civil and 

criminal enforcement decisions fall outside NEPA’s definition of major federal actions, see 

Gov’t MTD at 27, does not help its cause. As explained, the Coalition is not challenging the 

recission of the MPP itself, but the decision to rescind it without performing NEPA analysis. See 

Pls.’ Opp’n at 31.5

The Government also argues that Congress stripped courts of jurisdiction to hear the 

Coalition’s claims about DHS’s rescission of the Asylum Cooperative Agreements (ACAs). See 

Gov’t MTD at 29. But the provisions the Government cites, see 8 U.S.C. § 1158(a)(2)(A) and 

(a)(3), are inapplicable because—again—the Coalition is not challenging the end of the ACAs 

themselves, but rather the decision not to conduct NEPA analysis before doing so. 

The Court finds it has jurisdiction to hear the challenge to the ACAs, and that the 

Coalition states a claim under the APA as to the other programs in Count III. At this preliminary 

stage, the Court accepts the Coalition’s factual allegations as true, see Iqbal, 556 U.S. at 678, and 

“presum[es] that general allegations embrace those specific facts that are necessary to support [a] 

claim,” Lujan, 504 U.S. at 561 (cleaned up). 

5 Though the Government raises a parade of horribles which may result if NEPA is required for 

enforcement decisions, that argument falls flat. See Gov’t MTD at 28. NEPA analysis is 

required for major federal actions, and the Coalition contends that the rescission of the MPP was 

one such action. See Pls.’ Opp’n at 31. So the Court breaks no new ground here. 
27

G.

Counts IV–VI, IX, and X allege that DHS should have conducted NEPA analysis before 

changing policies related to detention, removal, fines, and the use of parole authority to aid 

refugees. See Compl. ¶¶ 233–40. The Government levies the same objection to all of these 

claims: that they are committed to agency discretion by law and therefore unreviewable under 

the APA. See Gov’t MTD at 30–31; see also 5 U.S.C. § 701(a)(2). 

For example, the Coalition argues in Count V that DHS should have conducted NEPA 

analysis before changing the criteria for detaining and removing aliens. See id. ¶¶ 111–12, 236–

37. DHS announced this policy in a February 2021 Memorandum, which instructs immigration 

officials as to the criteria they should use when determining whether to detain or remove aliens. 

See id. ¶ 111. 

The Court takes judicial notice of the following facts related to the Coalition’s claim in 

Count V. The Southern District of Texas has enjoined the February Guidance the Coalition 

challenges here. See Texas v. United States, 555 F. Supp. 3d 351 (S.D. Tex. 2021). While 

DHS’s appeal was pending, it issued Final Guidance in September 2021 rescinding the February 

Guidance. See Mem. from Tae D. Johnson, Acting Director, U.S. Immigr. and Customs Enf’t, to 

All ICE Employees (Sept. 30, 2021), https://www.ice.gov/doclib/news/guidelinescivilimmigrationlaw.pdf. The States challenging the February Guidance in Texas then amended 

their Complaint to challenge the September Guidance, and sued in another forum. Now, the 

Fifth and Sixth Circuits disagree about whether the States have standing and whether the 

September Guidance is valid under the APA. Compare Texas v. United States, 40 F.4th 205 (5th 

Cir. 2022), with Arizona v. Biden, 40 F.4th 375 (6th Cir. 2022). The Supreme Court has granted 
28

certiorari to decide these questions. See Order, United States v. Texas, 22–58, 2022 WL 

2841804 (U.S. July 21, 2022). 

Here, the Coalition has not sought leave to amend its complaint to challenge the 

September Guidance. Nor has the Government contended that the Coalition’s challenge to the 

February Guidance is moot, and that is its “heavy burden” to prove. Zukerman v. USPS, 961 

F.3d 431, 441–42 (D.C. Cir. 2020) (analyzing whether a rescinded USPS policy, though replaced 

by a rule, can still keep causing injury). In any event, the Coalition’s challenge to the February 

Guidance differs from the issues pending at the Supreme Court because it alleges that DHS 

should have performed NEPA analysis before issuing the Guidance. See, e.g., Compl. ¶¶ 236–

37. 

The Government counters that DHS’s enforcement decisions are not reviewable because 

they are committed to agency discretion by law. See Gov’t MTD at 30–31 (citing 5 U.S.C. § 

701(a)(2)). The Government levies the same charge against Counts IV, VI, IX, and X. But as 

the Coalition points out, nowhere does it challenge DHS’s individual enforcement decision to 

fine (or not), to parole (or not), or to deport (or not). See Pls.’ Opp’n 33–35. Nor could it 

because Heckler v. Chaney would likely bar such challenges. See 470 U.S. at 831 (holding that 

that an agency’s decision not to prosecute or enforce is committed to agency discretion by law 

and is therefore unsuitable for judicial review). The Coalition instead challenges the way DHS 

adopted general enforcement policies. See, e.g., Compl. ¶¶ 236–37; Pls.’ Opp’n at 33–34 

(“Defendants ignore that Plaintiffs are simply not challenging either the grant or denial of parole 

to any individual alien, but rather, [] the decisions to create these programs . . . without NEPA 

review.”). 
29 

The Court finds that the Coalition states a claim under the APA in Counts IV–VI, IX, and 

X at this preliminary stage. The Court must accept the Coalition’s factual allegations as true, and 

finds that it states a claim for relief that is plausible on its face. See Iqbal, 556 U.S. at 678. 

V. 

In sum, the Court has jurisdiction over all but two of the Coalition’s claims. The 

Coalition’s burden to prove standing is lighter here than it will be at summary judgment. See 

Osborn, 797 F.3d at 1063. For now, the Court accepts the Coalition’s factual allegations as true, 

see Iqbal, 556 U.S. at 678, and “presum[es] that general allegations embrace those specific facts 

that are necessary to support [a] claim,” Lujan, 504 U.S. at 561 (cleaned up). At summary 

judgment, however, the Coalition must offer admissible evidence affirmatively establishing its 

standing to proceed and entitlement to vindication on the merits. See id. at 561. For these 

reasons, the Government’s Motion to Dismiss, ECF No. 19, is GRANTED as to Counts I and XI 

and DENIED in all other respects. 

SO ORDERED.

 

Dated: August 11, 2022 TREVOR N. McFADDEN, U.S.D.J.