Centro Presente v. U.S. Dep't of Homeland Sec.
| Citation | 332 F.Supp.3d 393 |
| Decision Date | 23 July 2018 |
| Docket Number | Civil Action No. 18-10340 |
| Parties | CENTRO PRESENTE, Juan Carlos Vidal, Anne Christine Nicolas, Chris Jean Baptiste, Mercedes Mata, Carolina Mata, Will Arias, Juan Amaya, Maria Guerra, Haitian-Americans United, Inc., Josue Dorfeuille, Natacha Dorfeuille, Yesy Patricia Carbajal, Juan Guerrero, Jaime Yanes and Jose Omar Rodriguez Varela, Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Donald J. Trump, Kirstjen Nielsen and Elaine Costanzo Duke, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Allison S. Ercolano, Carlos J. Perez-Albuerne, Eric J. Marandett, Kevin P. O'Keefe, Natalia Smychkovich, Xing-Yin Ni, Choate, Hall & Stewart, Ivan Espinoza-Madrigal, Pro Hac Vice, Oren M. Sellstrom, Lawyers Committee for Civil Rights and Economic Justice, Oren N. Nimni, Boston, MA, for Plaintiffs.
Joseph C. Dugan, United States Department of Justice, Civil Division, Washington, DC, Rayford A. Farquhar, United States Attorney's Office, Boston, MA, for Defendants.
Plaintiffs Centro Presente, Haitian-Americans United, Inc., Juan Carlos Vidal, Anne Christine Nicolas, Chris Jean Baptiste, Mercedes Mata, Carolina Mata, Will Arias, Juan Amaya, Maria Guerra, Josue Dorfeuille, Natacha Dorfeuille, Yesy Patricia Carbajal, Juan Guerrero, Jaime Yanes and Jose Omar Rodriguez Varela (collectively, "Plaintiffs") have filed this lawsuit against the United States Department of Homeland Security ("DHS"), President Donald J. Trump ("President Trump") in his official capacity, Secretary Kirstjen Nielsen ("Nielsen") in her official capacity and Deputy Secretary Elaine Costanzo Duke ("Duke") in her official capacity (collectively, "Defendants") regarding Defendants' decisions to terminate the designation of Haiti, El Salvador, and Honduras for temporary protected status ("TPS"). D. 21. Defendants have moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim. D. 24. For the following reasons, the Court ALLOWS Defendants' motion to dismiss with respect to the mandamus claim (Count V) and DENIES Defendants' motion to dismiss in all other respects.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’ " Coll. Hill Properties, LLC v. City of Worcester, 821 F.3d 193, 195–96 (1st Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "This standard is ‘not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.’ " Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ). "[W]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." In re Ariad Pharm., Inc. Sec. Litig., 842 F.3d 744, 756 (1st Cir. 2016) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ). In reviewing a motion to dismiss, the Court "accept[s] as true all well-pled facts alleged in the complaint and draw all reasonable inferences in [the plaintiff's] favor." Miller v. Town of Wenham, 833 F.3d 46, 51 (1st Cir. 2016) ().
"Where, as here, a dismissal for want of [subject matter] jurisdiction is based solely on the complaint, we accept ‘the well-pleaded factual averments contained therein and indulg[e] all reasonable inferences in the [plaintiff's] favor.’ " Gordo-Gonzalez v. United States, 873 F.3d 32, 35 (1st Cir. 2017) (quoting Muñiz-Rivera v. United States, 326 F.3d 8, 11 (1st Cir. 2003) ).
Unless otherwise noted, the following facts are drawn from the amended complaint, D. 21, and are accepted as true for the purposes of considering the motion to dismiss.
The fourteen individual plaintiffs are each recipients of TPS. D. 21 ¶¶ 26, 29, 31, 33, 38, 41, 44, 47, 51, 54, 59, 62, 65. Of the fourteen, six are immigrants from El Salvador, four are immigrants from Haiti and four are immigrants from Honduras. Id.
Haitian-Americans United is a non-profit organization founded "to improve the quality of life for Haitians and Haitian-Americans through education, community empowerment, and cultural development." D. 21 ¶ 18. It has a number of members who are Haitian immigrants with TPS status. D. 21 ¶ 20. Centro Presente is a non-profit organization "dedicated to the self-determination and self-sufficiency of the Latin American immigrant community of Massachusetts." D. 21 ¶ 12. Centro Presente has a number of members who are immigrants from El Salvador and Honduras with TPS status. D. 21 ¶ 14.
DHS is the administrative agency charged with administering certain immigration laws and policies, including the TPS program. D. 21 ¶ 70. Nielsen has been the DHS Secretary since December 6, 2017. D. 21 ¶ 71. Duke was the Acting DHS Secretary from July 31, 2017, to December 6, 2017, and thereafter served as Deputy DHS Secretary until her retirement on April 15, 2018. D. 21 ¶ 72. Both have served in the executive branch under President Trump. D. 21 ¶ 69.
The Secretary may grant an individual TPS if two conditions are met: first, the individual is a national of a foreign state that has been designated by the DHS Secretary; and second, the individual meets certain eligibility criteria. 8 U.S.C. § 1254a(a)(1).1 While an individual has TPS, the Secretary may not remove the individual from the United States and must authorize the individual to engage in employment in the United States. Id.
The Secretary may designate a foreign state under the statute only if, "after consultation with appropriate agencies of the Government," the Secretary finds that at least one of three conditions is met: first, that "there is an ongoing armed conflict within the state," such that returning aliens to that state "would pose a serious threat to their personal safety;" second, that "there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected," such that "the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state" and "the foreign state officially has requested designation;" or third, that "there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety," and "permitting the aliens to remain temporarily in the United States" would not be "contrary to the national interest of the United States." 8 U.S.C. § 1254a(b)(1). The effective period of designation "is the period, specified by the [Secretary], of not less than 6 months and not more than 18 months." Id. § 1254a(b)(2). At least sixty days before the end of the effective period of designation, the Secretary, "after consultation with appropriate agencies of the Government, shall review the conditions in the foreign state" to "determine whether the conditions for such designation ... continue to be met." Id. § 1254a(b)(3)(A). The Secretary must publish in the Federal Register "notice of each such determination[,] including the basis for the determination," and the length of any extension. Id. An extension of designation may be for a period of six, twelve, or eighteen months. Id. § 1254a(b)(3)(C). The statute provides that "[t]here is no judicial review of any determination of the [Secretary] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection." Id. § 1254a(b)(5)(A).
In addition to being a national of a foreign state that has been designated, a foreign national must also meet certain individual criteria to qualify for TPS. Among other criteria, the foreign national must have been "continuously physically present in the United States since the effective date of the most recent designation" of the foreign state, id. § 1254a(c)(1)(A)(i) ; the foreign national must not have been convicted of certain categories of criminal offenses, id. § 1254a(c)(2)(A)(iii) ; and the foreign national must not be otherwise inadmissible in certain ways, including being present in the United States without being admitted or paroled into the United States, id. § 1254a(c)(1)(A)(iii) ; § 1254a(c)(2), § 1182(a)(6), or having been previously removed, id. § 1182(a)(9). The criteria for an individual to qualify for TPS is not at issue in this case as the individual plaintiffs have already received TPS. D. 21 ¶¶ 26, 29, 31, 33, 38, 41, 44, 47, 51, 54, 59, 62, 65. Instead, Plaintiffs' claims concern Defendants' actions to change TPS designations for El Salvador, Haiti and Honduras.
There are currently approximately 400,000 TPS recipients residing in the United States, including over 262,500 from El Salvador, approximately 58,550 from Haiti, and approximately 86,000 from Honduras. D. 21 ¶ 7.
On March 1, 2001, then Attorney General John Ashcroft ("Ashcroft") gave El Salvador TPS designation. D. 21 ¶ 83. That designation was based upon a determination that, due to three earthquakes earlier in the year that had resulted in the deaths of at least 1,100 people and the displacement of approximately 1.3 million people, El Salvador would be "unable, temporarily, to handle adequately the return...
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