Gondal v. U.S. Dep't of Homeland Sec., 2:18-cv-02322 (ADS)

• Decision Date: 10 December 2018
• Docket Number: 2:18-cv-02322 (ADS)
• Citation: 343 F.Supp.3d 83
• Parties: Waqas GONDAL, (Immigration File #A 204-216-294), Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, and Its Secretary Kirstjen Nielson, and Kristine R. Crandall, Acting Director of the U.S. Citizenship and Immigration Service Lincoln, Nebraska, Deferred Action for Childhood Arrival Application Processing, Defendants.
• Court: U.S. District Court — Eastern District of New York

343 F.Supp.3d 83

Waqas GONDAL, (Immigration File #A 204-216-294), Plaintiff,

v.U.S. DEPARTMENT OF HOMELAND SECURITY, and Its Secretary Kirstjen Nielson, and Kristine R. Crandall, Acting Director of the U.S. Citizenship and Immigration Service Lincoln, Nebraska, Deferred Action for Childhood Arrival Application Processing, Defendants.

2:18-cv-02322 (ADS)

United States District Court, E.D. New York.

Signed December 10, 2018

Peter E. Torres, Counsel for the Plaintiff, 112 East 23^rd Street, Brooklyn, NY 10010

United States Attorney's Office for the Eastern District of New York, Counsel for the Defendants, 610 Federal Plaza, Central Islip, NY 11722, By: Robert B. Kambic, Assistant United States Attorney

MEMORANDUM OF DECISION & ORDER

SPATT, District Judge:

Waqas Gondal ("Gondal" or the "Plaintiff") commenced this action against the United States Department of Homeland Security ("DHS"), DHS Secretary Kirstjen Nielsen, ("Nielsen"), and Acting Director of the United States Citizenship and Immigration Service in Lincoln, Nebraska Kristine R. Crandall ("Crandall") (together, the "Defendants") for failing to approve his renewed Deferred Action for Childhood Arrivals ("DACA") application. The Plaintiff alleges that the Defendants' decision to deny his renewed DACA request violated his due process rights under the Fifth Amendment to the United States Constitution. He seeks a court order granting his DACA renewal application.

Presently before the Court is a motion by the Defendants, pursuant to Federal Rule of Civil Procedure (" FED. R. CIV. P. " or "Rule") 12(b)(1) and 12(b)(6), seeking to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted.

For the following reasons, the Defendants' motion to dismiss is granted.

I. BACKGROUND

Unless otherwise noted, the following facts are drawn from the Plaintiff's complaint, and for the purposes of the instant motion, are construed in favor of the Plaintiff.

A. DACA BACKGROUND

" ‘Deferred action’ refers to an exercise of administrative discretion by the [United States Citizenship and Immigration Service ("USCIS") ] under which [it] takes no action to proceed against an apparently deportable alien based on a prescribed set of factors generally related to humanitarian grounds." Barahona-Gomez v. Reno , 236 F.3d 1115, 1119 n.3 (9th Cir. 2001) (citing 6 C. Gordon, S. Mailman, & S. Yale–Loehr, Immigration Law and Procedure §§ 72.03 [2][a] & [2][h] (1998) ); accord Batalla Vidal v. Duke , 295 F.Supp.3d 127, 137 (E.D.N.Y. 2017) (" Batalla Vidal I ") ("Deferred action, sometimes referred to as nonpriority status, is in effect, an informal administrative stay of deportation, by which immigration authorities decide not to initiate, or decide to halt, removal proceedings for humanitarian reasons or simply for ... convenience[.]" (internal citations and quotation marks omitted) ). As of 2014, there were approximately 11.3 million removable individuals living in the United States. DHS only has the capacity to remove less than four percent of those eligible for removal per year. Id. at 136-37 (internal citations omitted).

On June 15, 2012, DHS issued a memorandum which set forth a Guidance policy that detailed the exercise of prosecutorial discretion to allow certain individuals who were brought to this country as children to remain in the country. Mem. from Janet Napolitano, Sec'y of DHS, to David V. Aguilar, Acting Comm'r, CBP, et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012) (the "2012 Memo"). This policy is frequently referred to as DACA. Eligibility for deferred action is dependent on the individual demonstrating that he or she:

(1) came to the United States under the age of 16, (2) has continuously resided in the United States for at least five years preceding the date of the memorandum (June 15, 2012) and is present in the United States on the date of the memorandum, (3) 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, (4) 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 (5) is not above the age of 30.

Department of Homeland Security's Program of Deferred Action for Childhood Arrivals (DACA), 17 A.L.R. Fed. 3d Art. 3 (2016) (citing 2012 Memo). If approved, applicants are granted renewable two-year terms of deferred action. Decisions are granted on a "case by case basis." 2012 Memo at 2-3. However, the 2012 Memo warned that it "confer[red] no substantive right, immigration status or pathway to citizenship" and noted that the policy involved "the exercise of discretion within the framework of the existing law." 2012 Memo. Recipients are permitted to apply for employment authorization, which allows them to work legally and pay taxes amongst other things. 8 U.S.C. § 1324a(h)(3).

On September 5, 2017, after the arrival of the current presidential administration, the Acting Secretary of DHS, Elaine Duke, issued a memorandum which rescinded the 2012 Memo ("2017 Memo"). In pertinent part, the 2017 Memo stated:

Taking into consideration the Supreme Court's and the Fifth Circuit's rulings in [ United States v. Texas , ––– U.S. ––––, 136 S.Ct. 2271, 195 L.Ed.2d 638 (2016) ], and the September 4, 2017 letter from ... Attorney General [Jeff Sessions], it is clear that the June 15, 2012 DACA program should be terminated. In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum.

2017 Memo. Further, it ordered DHS to reject all applications received after September 5, 2017 as well as reject all renewal applications after October 5, 2017. Id. After the 2017 Memo was published, multiple lawsuits challenging the termination of DACA were filed. Since then, multiple preliminary injunctions have been issued and USCIS has resumed accepting requests to renew deferred action requests. For all intents and purposes, DACA continues to operate on the terms in place before it was rescinded by the 2017 Memo.

B. GONDAL'S APPLICATION

The Plaintiff was born in Pakistan on January 1, 1988. At some point prior to September 2012, Gondal entered the United States. In September 2012, Gondal applied for deferred action under DACA. Three months later, USCIS approved the Plaintiff's request and granted him deferred action for two years. In 2014, Gondal's deferred action renewal was granted for a three-year period.

In July 2015, Gondal applied for advance parole, an immigration document issued by USCIS which enables an alien to be paroled into the United States. USCIS granted the application and provided the Plaintiff with an advance parole document, which allowed him to take a trip to Pakistan in September 2015. Upon his return, Gondal was paroled into the United States.

On or about January 16, 2016, Gondal and a friend, Arshad Mohammad, departed the United States at the Niagara Falls Rainbow Bridge. He carried with him a false identification document with a birthdate of December 20, 1982. The Plaintiff was denied admission to Canada at the Canadian port of entry for presenting false documents. Gondal and his friend then returned to the United States port of entry and requested admission back into the United States. A search of his fingerprint records revealed that the birthdate listed on his fake identification document did not match the birthdate listed in his deferred action materials. During discussions with USCIS, Gondal indicated that he obtained the false document in order to seek a Canadian immigrant visa. The Plaintiff was not issued advance parole prior to that day. Despite this, Gondal was paroled into the United States. See 8 U.S.C. § 1182(d)(5)(A).

In September 2017, Gondal filed a DACA renewal request. On or about November 30, 2017, the Plaintiff received a Notice of Intent to Deny, which explained, in part:

In order to be considered for a renewal of deferred action as a childhood arrival. you are to demonstrate that you have been residing continuously in the United States since the date you submitted your most recent, approved request for DACA until the date of filing your DACA renewal request. Continuous residence is disrupted if you traveled outside the United States on or after August 15. 2012 without advance parole ....

According to information obtained during routine systems checks, it appears that you departed the United States on or about January 16, 2016.

Your departure occurred on or after August 15, 2012. USCIS records do not show that you were issued advance parole for the period of time you were outside the United States. Therefore, you have not established that you may be considered for a renewal of deferred action under this process.

Accordingly, USCIS intends to deny your request for consideration of a renewal of deferred action for childhood arrivals.

Dkt. 1-1 at 2-3. In response to this notice, the Plaintiff and Mohammed, his travel companion, submitted identical affidavits stating that they never left the United States and that the whole incident lasted half an hour. Id. at 4, 6.

On or about December 22, 2017, USCIS issued a decision stating that Gondal "ha[s] not demonstrated that [he] warrant[s] a favorable exercise of prosecutorial discretion and [that USCIS] will not defer action in [his] matter."Id. at 16.

The Plaintiff asserts that USCIS's decision violated his due process rights under the Fifth Amendment of the United States Constitution.

II. DISCUSSION

A. STANDARD OF REVIEW: FED. R. CIV. P. 12( B )(1)

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or...