Greater Bos. Legal Servs. v. United States Dep't of Homeland Sec.

• Decision Date: 13 January 2022
• Docket Number: 21-cv-10083-DJC
• Court: U.S. District Court — District of Massachusetts
• Parties: GREATER BOSTON LEGAL SERVICES, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

GREATER BOSTON LEGAL SERVICES, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

No. 21-cv-10083-DJC

United States District Court, D. Massachusetts

January 13, 2022

MEMORANDUM AND ORDER

DENISE J. CASPER, UNITED STATES DISTRICT JUDGE

I. Introduction Plaintiffs Greater Boston Legal Services, Demissie & Church, Susan Church, Araujo & Fisher, LLC, Annelise M. Araujo, Stefanie Fisher and William E. Graves, Jr. have filed this lawsuit against Defendants United States Department Of Homeland Security (“DHS”), United States Citizenship And Immigration Services (“USCIS”), Immigration and Customs Enforcement (“ICE”), United States Customs And Border Protection (“CBP”) (collectively the “Agencies”) and various senior officials of the Agencies sued in their official capacities alleging a violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. D. 1. Defendants have moved to dismiss. D. 23. For the reasons stated below, the Court ALLOWS the motion in part and DENIES it in part.

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II. Standard of Review

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the Court must determine if the facts alleged “plausibly narrate a claim for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citation omitted). Reading the complaint “as a whole, ” the Court must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the Court must perform a close reading of the claim to distinguish the factual allegations from the conclusory legal allegations contained therein. Id. Factual allegations must be accepted as true, while conclusory legal conclusions are not entitled credit. Id. Second, the Court must determine whether the factual allegations present a “reasonable inference that the defendant is liable for the conduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (citation omitted). In sum, the complaint must provide sufficient factual allegations for the Court to find the claim “plausible on its face.” García-Catalán, 734 F.3d at 103 (citation omitted).

III. Factual Background

Unless otherwise noted, the following facts are drawn from Plaintiffs' complaint, D. 1, and are taken as true for the purpose of resolving the motion to dismiss.

Plaintiffs are individual attorneys, small law firms and nonprofit legal services organizations that represent noncitizens in immigration matters, like bond hearings, removal proceedings, and applications for affirmative asylum and other benefits (e.g., visas, permanent resident status, citizenship). D. 1 ¶¶ 2, 68. The Agencies are responsible for administering and enforcing United States immigration law. Id. ¶ 18. Specifically, USCIS adjudicates requests for benefits, ICE prosecutes removal proceedings in immigration court and CBP enforces laws regarding the entry and exit of people and goods at the U.S. border. Id. ¶¶ 20, 22, 24.

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DHS maintains electronic and paper records concerning each noncitizen that they interact with in these immigration proceedings but, as alleged, follows a policy and practice (the “Policy”) of refusing to turn over records that may aid the noncitizen in these proceedings and directing noncitizens or their counsel to file a Freedom of Information Act (“FOIA”) request. Id. ¶¶ 28-29, 39. For example, when USCIS adjudicates a benefit application (e.g., asylum), it reviews information in a noncitizen's file and assembles records from other agencies (e.g., prior visa applications, interactions with border officials), but does not share these records with noncitizens, although the records could help the noncitizen establish eligibility for the benefit. Id. ¶ 32. Instead, USCIS directs applicants to file a FOIA request for records. Id. Additionally, in adversarial removal proceedings, ICE uses a noncitizen's file, including information from other agencies, but DHS recognizes no obligation to disclose that information to the noncitizen in defending against removal, except in response to a FOIA request. Id. ¶¶ 33, 39. Furthermore, when DHS detains and attempts to remove noncitizens based on prior removal orders, it does not disclose records of the prior removal proceeding to the noncitizen, which establishes the basis for the current proceeding. Id. ¶ 34.

The documents and records the Agencies withhold include (1) Form I-213, which summarizes a noncitizen's immigration record and is often used by ICE as evidence against a noncitizen in immigration court, (2) notes from asylum or credible fear interviews, which ICE uses to cross-examine asylum applicants in immigration court, (3) prior application materials, which can impact eligibility for a benefit or relief from removal, (4) records of prior removal proceedings, (5) visa application materials, which are used to cross-examine noncitizens in immigration court or question noncitizens in USCIS interviews, (6) criminal history records from different jurisdictions that are difficult for noncitizens to obtain, especially if detained, and (7) identification

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documents, like passports, which DHS confiscates. Id. ¶ 35. As to the identity documents, DHS denies bond or other immigration relief because noncitizens cannot establish their identity. Id. Many but not all these documents are contained in a noncitizen's “A-file, ” the primary record of their immigration history. Id. ¶ 36.

When Plaintiffs do file FOIA requests for these records, like the A-file, the Agencies do not meet statutory deadlines for responses, even in instances where faster processing would be required for noncitizens who are scheduled for hearings before immigration judges. Id. ¶¶ 46-48. Recently, USCIS has taken one year or more to respond to FOIA requests for a noncitizen's A-file. Id. ¶ 47. For records not in the A-file, Plaintiffs must submit separate FOIA requests, which are susceptible to the same delays. Id. ¶ 49. Prior to receiving requested documents, noncitizens may face impending deadlines to respond to potentially adverse decisions, like removal. Id. ¶ 50. Some FOIA responses omit relevant documents or redact information that a noncitizen may need for their defense. Id. ¶ 51. The Agencies do not inform noncitizens facing adverse immigration actions about the procedures for using FOIA to obtain records that may assist them. Id. ¶ 61. Given how quickly immigration proceedings can move, FOIA responses often arrive after the underlying immigration matter has ended or the noncitizen has already been removed. Id. ¶¶ 49- 50, 63-66.

Defendants' Policy and FOIA response delays have been an impediment to Plaintiffs' ability to represent noncitizens as they require Plaintiffs to conduct additional work, including interviews with clients, family members and previous attorneys to gather a client's immigration history, FOIA tracking and appeals, and record collection from attorneys and courts. Id. ¶¶ 70- 74. The Policy has also caused Plaintiffs to conduct additional investigation, aimed at anticipating or guessing what records DHS might be withholding and planning to use, to seek continuances

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and to prepare otherwise unnecessary applications. Id. ¶¶ 75-78. In turn, the Policy makes Plaintiffs' representation of noncitizens more costly and time-consuming, prevents Plaintiffs from taking on more cases, and in some cases, requires Plaintiffs to decline a case altogether when it appears futile. Id. ¶¶ 79-83.

IV. Procedural History

Plaintiffs instituted this action on January 15, 2021. D. 1. Defendants then moved to dismiss. D. 23. The Court heard the parties on the pending motion and took the matter under advisement. D. 43.

V. Discussion

A. Zone of Interests

In addition to Article III standing requirements, a “plaintiff [must] show that his claim . . . falls within the zone of interests protected by the law invoked.” Pagán v. Calderon, 448 F.3d 16, 27 (1st Cir. 2006) (citations omitted). To satisfy the inquiry, Plaintiffs must assert an interest that is “‘arguably within the zone of interests to be protected or regulated by the statute' that [Plaintiffs] say[] was violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012) (quoting Ass'n of Data Processing Service Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)).^[1] Here, Plaintiffs allege that Defendants' Policy violates their disclosure obligations in two provisions of the Immigration and Nationality Act (“INA”), 8 U.S.C. §

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1229a(b)(4)(B) and § 1229a(c)(2)(B)), ^[2] a DHS regulation, 8 C.F.R. § 103.2(b)(16), ^[3] and the Due Process Clause. D. 1 ¶¶ 39-40. Defendants assert that Plaintiffs fail the zone of interests test for each. See D. 24 at 10-11.

The zone of interests test “‘is not meant to be especially demanding' . . . in keeping with Congress's ‘evident intent' when enacting the APA ‘to make agency action presumptively reviewable.'” Patchak, 567 U.S. at 225 (quoting Clarke v. Securities Industry Ass'n., 479 U.S. 388, 399 (1987)). Accordingly, the test “does not require any ‘indication of congressional purpose to benefit the would-be plaintiff, '” and the “benefit of any doubt goes to the plaintiff.” Id. In the APA context, “[t]he test forecloses suit only when a plaintiff's ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Id. (internal quotation marks and citation omitted); Conservation L. Found., Inc. v. Jackson, 964 F.Supp.2d 152, 164 (D. Mass. 2013) (explaining that zone of interests test “is particularly generous with respect to claims brought under the APA”) (citations omitted). “In applying the zone of interests test, the Court ‘do[es] not ask whether, in enacting the statutory provision at issue, Congress specifically intended to...