Crane v. Napolitano

• Decision Date: 23 April 2013
• Docket Number: Civil Action No. 3:12-cv-03247-O
• Parties: CHRISTOPHER L. CRANE et al., Plaintiffs, v. JANET NAPOLITANO, in her official capacity as Secretary of Homeland Security, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

CHRISTOPHER L. CRANE et al., Plaintiffs,

v.JANET NAPOLITANO, in her official capacity as Secretary of Homeland Security, et al., Defendants.

Civil Action No. 3:12-cv-03247-O

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

SO ORDERED: April 23, 2013

MEMORANDUM OPINION AND ORDER

Before the Court are Plaintiffs' Application for Preliminary Injunctive Relief (ECF No. 24), Brief in Support of Plaintiffs' Application for Preliminary Injunctive Relief (ECF No. 26), Defendants' Opposition to Plaintiffs' Application for Preliminary Injunctive Relief (ECF No. 34), Plaintiffs' Reply Brief in Support of Plaintiffs' Application for Preliminary Injunctive Relief (ECF No. 36), and Appendix to Plaintiffs' Reply in Support of Application for Preliminary Injunction (ECF No. 37). The Court held a hearing on this matter on April 8, 2013. See Electronic Minute Entry, Apr. 8, 2013, ECF No. 53. For the reasons set forth below, the Court concludes that Plaintiffs are likely to succeed on the merits of their claim that the Directive and related provisions of the Morton Memorandum violate 8 U.S.C. § 1225(b)(2)(A), but the Court defers ruling on Plaintiffs' Application for Preliminary Injunction (ECF No. 24) until the parties have provided the Court with additional briefing.

I. FACTUAL AND PROCEDURAL BACKGROUND

The United States Department of Homeland Security ("DHS") is a Cabinet-level department of the United States government created in 2002 for the purpose of coordinating and unifying national homeland security efforts. Creation of the Department of Homeland Security, http://www.dhs.gov/creation-department-homeland-security (last visited Apr. 23, 2013). Defendant Janet Napolitano is the current Secretary of DHS. Pls.' Am. Compl. ¶ 22, ECF No. 15. DHS is charged with, among other things, protecting our nation's border security, cybersecurity, and economic security, preventing human trafficking and terrorism, and safeguarding civil rights and civil liberties. Topics, http://www.dhs.gov/topics (last visited Apr. 23, 2013). DHS is also responsible for overseeing citizenship and immigration in the United States. Id. The United States Citizenship and Immigration Services ("USCIS") oversees lawful immigration in the United States. Citizenship & Immigration Overview, http://www.dhs.gov/topic/citizenship-and-immigration-overview (last visited Apr. 23, 2013). Defendant Alejandro Mayorkas is the current Director of USCIS. Pls.' Am. Compl. ¶ 24, ECF No. 15. USCIS grants immigration and citizenship benefits, promotes an awareness and understanding of citizenship, and ensures the integrity of our immigration system. Citizenship & Immigration Overview, http://www.dhs.gov/topic/citizenship-and-immigration-overview (last visited Apr. 23, 2013). The United States Immigration and Customs Enforcement ("ICE") is the principal investigative arm of DHS, and its primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration. Overview, http://www.ice.gov/about/overview (last visited Apr. 23, 2013). Defendant John Morton is the current Director of ICE. Pls.' Am. Compl. ¶ 23, ECF No. 15. ICE receives an annual appropriationfrom Congress to remove individuals who are unlawfully present in the United States. Immigration Enforcement Overview, http://www.dhs.gov/topic/immigration-enforcement-overview (last visited Apr. 23, 2013).

On June 17, 2011, Defendant Morton issued a Memorandum entitled "Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens" (the "Morton Memorandum"). Pls.' Am. Compl. ¶ 28, ECF No. 15. The Morton Memorandum provides ICE personnel "guidance on the exercise of prosecutorial discretion to ensure that the agency's immigration enforcement resources are focused on the agency's enforcement priorities," which include "the promotion of national security, border security, public safety, and the integrity of the immigration system." Morton Mem. at 1, 2, available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf. The Morton Memorandum sets out several factors that ICE officers, agents, and attorneys should consider when determining whether an exercise of prosecutorial discretion may be warranted for a particular alien. See Morton Mem. at 4-5, available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.

On June 15, 2012, Defendant Napolitano issued a Directive entitled "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children" (the "Directive"). Pls.' Am. Compl. ¶¶ 2, 29, ECF No. 15; Pls.' Am. Compl. Ex. 1 (Directive), ECF No. 15-1. The Directive sets forth to what extent, in the exercise of prosecutorial discretion, DHS should enforce immigration laws "against certain young people who were brought to this country as children and know only this country as home." Pls.' Am. Compl. Ex. 1 (Directive), at 1, ECF No. 15-1. The Directive instructs ICE officers to refrain from placing certain aliens who are unlawfullypresent in the United States into removal proceedings. It also directs ICE officers to facilitate granting deferred action to aliens who are unlawfully present in the United States and are already in removal proceedings but not yet subject to a final order of removal. Pls.' Am. Compl. ¶ 2, ECF No. 15; Pls.' Am. Compl. Ex. 1 (Directive), at 2, ECF No. 15-1. The Directive also instructs USCIS to accept applications to determine whether the individuals who receive deferred action are qualified for work authorization during the period of deferred action. Pls.' Am. Compl. ¶ 2, ECF No. 15; Pls.' Am. Compl. Ex. 1 (Directive), at 3, ECF No. 15-1. To qualify for deferred action under the Directive, the alien must satisfy the following criteria:

• came to the United States under the age of sixteen;

• has continuously resided in the United States for at least five years preceding the date of [the Directive] and is present in the United States on the date of [the Directive];

• 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.

Pls.' Am. Compl. Ex. 1 (Directive), at 1, ECF No. 15-1.

In July 2012, DHS issued the "ERO Supplemental Guidance: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children," which directs DHS personnel to implement the terms of the Directive. Pls.' Am. Compl. ¶ 30, ECF No. 15. In early August 2012, DHS issued a document entitled "National Standard Operating Procedures (SOP): Deferred Action for Childhood Arrivals (DACA) (Form I-821D and Form I-765)," which explains how DHS will process applications for deferred action under the Directive. Id. ¶ 31. OnAugust 15, 2012, DHS began accepting requests for consideration of deferred action and applications for employment authorization pursuant to the Directive. Id. ¶ 32.

Several ICE Deportation Officers and Immigration Enforcement Agents¹ filed this lawsuit on August 23, 2012, to challenge the constitutional and statutory validity of the Directive and the Morton Memorandum. See generally Pls.' Compl, ECF No. 1; Pls.' Am. Compl, ECF No. 15. Plaintiffs assert that the Directive violates (1) federal statutes requiring the initiation of removals; (2) federal law by conferring a non-statutory form of benefit—deferred action—to more than 1.7 million aliens, rather than a form of relief or benefit that federal law permits on such a large scale; (3) the constitutional allocation of legislative power to Congress; (4) the Article II, Section 3, constitutional obligation of the Executive to take care that the laws are faithfully executed; and (5) the Administrative Procedure Act through conferral of a benefit without regulatoryimplementation.² Pls.' Am. Compl. ¶¶ 67-80, 92-116, ECF No. 15. Plaintiffs challenge the portions of the Directive and Morton Memorandum that require ICE officers to exercise prosecutorial discretion and defer action against aliens who satisfy the Directive's criteria.

Plaintiffs contend that the Directive commands ICE officers to violate federal law and to violate their oaths to uphold and support federal law.³ Id. ¶¶ 4, 37-46. As a result, Plaintiffs have expressed their desire not to follow the Directive, but they believe they will be disciplined or suffer other adverse employment consequences if they arrest or issue a Notice to Appear in removal proceedings ("NTA")⁴ to an alien who satisfies the factors for deferred action set out in the Directive. Id. ¶ 49. Plaintiffs seek a declaratory judgment from this Court finding the Directive unlawful and in violation of the Constitution. Pls.' Am. Compl. ¶¶ A-E, ECF No. 15. Plaintiffs correspondingly request the Court to vacate the Directive and relevant provisions of the Morton Memorandum. Id. Plaintiffs ultimately seek a permanent injunction preventing the implementation of the Directive and preventing DHS from taking any adverse action against Plaintiffs for failure to follow the Directive. Id. ¶ F.

Plaintiffs filed their Application for Preliminary Injunction on November 28, 2012, asking the Court to preliminarily enjoin Defendants from implementing and enforcing the Directive andrelated provisions of the Morton Memorandum. See generally Pls.' Appl. Prelim. Inj., ECF No. 24. Defendants filed their Opposition on December 19, 2012, and Plaintiffs filed their Reply on January 2, 2013. See generally Defs.' Opp'n Appl. Prelim. Inj., ECF No. 34; ...