Las Ams. Immigrant Advocacy Ctr. v. Biden

• Decision Date: 24 November 2021
• Docket Number: Case No. 3:19-cv-02051-IM
• Parties: LAS AMERICAS IMMIGRANT ADVOCACY CENTER; Catholic Legal Immigration Network, Inc.; Innovation Law Lab; Santa Fe Dreamers Project ; Southern Poverty Law Center; and Asylum Seeker Advocacy Project, Plaintiffs, v. Joseph R. BIDEN, in his official capacity as President of the United States; Merrick B. Garland, in his official capacity as Attorney General of the United States; U.S. Department of Justice; Executive Office for Immigraion Review; and David L. Neal, in his official capacity as EOIR Director of the United States, Defendants.
• Court: U.S. District Court — District of Oregon

571 F.Supp.3d 1173

LAS AMERICAS IMMIGRANT ADVOCACY CENTER; Catholic Legal Immigration Network, Inc.; Innovation Law Lab; Santa Fe Dreamers Project ; Southern Poverty Law Center; and Asylum Seeker Advocacy Project, Plaintiffs,

v.Joseph R. BIDEN, in his official capacity as President of the United States; Merrick B. Garland, in his official capacity as Attorney General of the United States; U.S. Department of Justice; Executive Office for Immigraion Review; and David L. Neal, in his official capacity as EOIR Director of the United States,¹ Defendants.

Case No. 3:19-cv-02051-IM

United States District Court, D. Oregon.

Signed November 24, 2021

Stephen W. Manning, Jordan Cunnings, and Tess Hellgren, Innovation Law Lab, The Oregon Trail Building, 333 SW 5th Avenue, Suite 200, Portland, OR 97204; Thomas R. Johnson, Bryan D. Beel, Heidee Stoller, Nathan R. Morales, and Alletta S. Brenner, Perkins Coie LLP, 1120 NW Couch Street, 10th Floor, Portland, OR 97209; Melissa Crow, Southern Poverty Law Center, 1101 17th Street, NW, Suite 705, Washington, DC 20036; Rebecca M. Cassler and Gracie H. Willis, Southern Poverty Law Center, 150 East Ponce de Leon Avenue, Suite 340, Decatur, GA 30030. Attorneys for Plaintiffs.

Brian C. Ward, Elissa Fudim, Erez Reuveni, U.S. Department of Justice, Civil Division, PO Box 868, Ben Franklin Station, Washington, DC 20044. Attorneys for Defendants.

Gary M. Berne, Keith S. Dubanevich, Stoll Stoll Berne Lokting & Shlachter, PC, 209 SW Oak Street, Fifth Floor, Portland, OR 97204. Attorneys for amicus curiae, Former Immigration Judges.

Cody B. Hoesly, Larkins Vacura, LLP, 121 SW Morrison Street, Suite 700, Portland, OR 97204. Attorneys for amicus curiae, Professors of Immigration Law, Civil Procedure and Administrative Law.

OPINION AND ORDER

IMMERGUT, District Judge.

When this Court considered Defendants' Motion to Dismiss, ECF 24, the Court declined to dismiss claims aside from those seeking enjoinder of "asylum-free zones," ECF 79. Upon further and more developed briefing, this Court has reconsidered the issues and decides as follows. Because this Court finds no implied private rights of action and no equitable bases for jurisdiction, Plaintiffs' first and second claims, premised on the Take Care Clause and Immigration and Nationality Act's Case-by-Case Adjudication Standards and Impartial Adjudicator Requirement are DISMISSED. As a result, the Motion to Compel, ECF 108, is DENIED as moot. Plaintiffs' remaining claims, three through six, are not affected by this ruling.

BACKGROUND

Plaintiffs are nonprofit organizations which serve individuals in the immigration court system. ECF 1 at ¶¶ 17–22. They allege, broadly, that Defendants have adopted certain policies and practices that have rendered it nearly impossible for Plaintiffs to deliver legal services to their clients because the immigration court system has been modified to be biased and grossly inefficient. Id. at ¶¶ 1–14. The allegations focus on three policies or practices that Plaintiffs have identified: (1) "asylum-free zones," (2) the Enforcement Metrics Policy, and (3) the family docketing ("FAMU") directive. Id. These allegations give rise to six claims for relief: (1) the asylum-free zones and the immigration court backlog violate the Take Care Clause of the U.S. Constitution and the Immigration and Nationality Act ("INA"); (2) the administration of the immigration courts violates the INA's "impartial adjudicator" requirement; (3) the Enforcement Metrics Policy violates the Administrative Procedure Act ("APA") because it is unlawful; (4) the Enforcement Metrics Policy violates the APA because it is arbitrary and capricious; (5) the FAMU directive violates the APA because it is unlawful; and (6) the FAMU directive violates the APA because it is arbitrary and capricious. Id. at 53–62. Plaintiffs seek injunctive and declaratory relief to end these programs and to implement any necessary corrective actions. Id. at 63.

Defendants filed a motion to dismiss, ECF 24, and Plaintiffs filed a motion for a temporary restraining order, ECF 28. This Court denied the temporary restraining order. ECF 52. This Court denied Defendant's motion to dismiss, except for those claims seeking enjoinder of the asylum-free zones. ECF 79. Defendants then moved for reconsideration, ECF 84, which this Court denied, ECF 89. Plaintiffs then filed a motion to compel discovery beyond the administrative record. ECF 108. This Court then requested supplemental briefing on whether the Take Care Clause, U.S. Const. art. II § 3, or § 1229a of the INA provide a private cause of action. ECF 112; see also ECF 116 (Defendants' brief); ECF 120 (Plaintiffs' brief). This Court now considers this supplemental briefing. See Fed. R. Civ. P. 54(b) (explaining that "any order ... that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities").

STANDARDS

A. Implied Private Rights of Action

"[T]he fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person." Touche Ross & Co. v. Redington , 442 U.S. 560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (internal quotation marks omitted) (quoting Cannon v. Univ. of Chi. , 411 U.S. 677, 688, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1979)). "Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress." Alexander v. Sandoval , 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). "Congress may so empower litigants expressly or implicitly." UFCW Loc. 1500 Pension Fund v. Mayer , 895 F.3d 695, 699 (9th Cir. 2018).

The Supreme Court in Cort v. Ash , 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), set out a four-factor test to determine whether a private right is implied in a federal statute:

First, we consider whether the plaintiff is one of the class for whose especial benefit the statute was enacted. Second, we examine legislative history to see if we can discern any intent either to create or to deny a right of action under the statute. Third, we weigh whether implying a right of action would be consistent with the purposes of the legislative scheme. Finally, we determine whether the cause of action is one traditionally relegated to state law, so that it would be inappropriate to infer a cause of action based solely on federal law.

Parks Sch. of Bus., Inc. v. Symington , 51 F.3d 1480, 1484 (9th Cir. 1995).² The "critical inquiry" is Congress's intent. Id. The Supreme Court has clarified that where Congress has not expressly created such a right, "[t]he judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy" and that "[s]tatutory intent on this latter point is determinative." Sandoval , 532 U.S. at 286, 121 S.Ct. 1511 ; see also Lil' Man in the Boat, Inc. v. City & County of San Francisco , 5 F.4th 952, 958 (9th Cir. 2021) ("If Congress does not provide a private right of action explicitly within a statute's text, we must determine whether Congress implied one."); McGreevey v. PHH Mortg. Corp. , 897 F.3d 1037, 1044 (9th Cir. 2018) (explaining that while the Cort factors remain "relevant," the "focus now is on" the question of remedy). A court should not imply a private right "except where ineluctable inferences arise from the [statute] to compel such a finding" Misc. Serv. Workers, Drivers & Helpers, Teamsters Loc. No. 427 v. Philco-Ford Corp., WDL Div. , 661 F.2d 776, 781 (9th Cir. 1981).

"The decision to recognize an implied cause of action under a statute involves somewhat different considerations than when the question is whether to recognize an implied cause of action to enforce a provision of the Constitution itself." Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 1856, 198 L.Ed.2d 290 (2017). Unlike when Congress enacts a statute, "[w]ith respect to the Constitution, ... there is no single, specific congressional action to consider and interpret." Id. The Supreme Court has instructed that "[w]hen a party seeks to assert an implied cause of action under the Constitution itself ... separation-of-powers principles are or should be central to the analysis." Id. at 1857. The Supreme Court has also, however, cautioned that "[i]n both statutory and constitutional cases, our watchword is caution," and the Supreme Court has been "reluctant to create new causes of action" in constitutional cases. Hernandez v. Mesa , ––– U.S. ––––, 140 S. Ct. 735, 742, 206 L.Ed.2d 29 (2020) (noting so in a Bivens action).

DISCUSSION

A. Take Care Clause

Plaintiffs' first claim for relief states that "[t]he Attorney General has violated the Take Care Clause because he has suspended the INA's case-by-case adjudication standards through the abuse of authority and mismanagement of the immigration courts." ECF 1 at ¶ 197. Plaintiffs argue that this "has resulted in the persistence and proliferation of ... the immigration court backlog." Id. Plaintiffs seek "a judicial determination as to the rights and obligations of the parties," and "injunctive relief requiring the Attorney General to comply with his duties as prescribed by Congress." Id. at ¶¶ 199–200; see also id. at 63 (prayer for relief). Plaintiff does not root this claim in a statutory cause of action but proceeds instead under the Take Care Clause.

In supplemental briefing requested by this Court, Defendants argue that the Take Care Clause, U.S. Const. Art. II, § 3, "does not create a private cause of action against the President or any other defendant." ECF 116 at 6. Defendants primarily rely on a recent out-of-circuit case, City of Columbus v. Trump , in which that court declined to find the Take Care Clause creates a private right of action. 453 F. Supp. 3d 770, 800 (D. Md. 2020) ; see also ECF...