Guilford Coll. v. McAleenan

• Citation: 389 F.Supp.3d 377
• Decision Date: 03 May 2019
• Docket Number: 1:18CV891
• Court: U.S. District Court — Middle District of North Carolina
• Parties: GUILFORD COLLEGE, Guilford College International Club, The New School, Foothill-De Anza Community College District, Haverford College, The American Federation of Teachers, Jia Ye, and Sen Li, Plaintiffs, v. Kevin MCALEENAN, U.S. Department of Homeland Security, L. Francis Cissna, and U.S. Citizenship and Immigration Services, Defendants.

389 F.Supp.3d 377

GUILFORD COLLEGE, Guilford College International Club, The New School, Foothill-De Anza Community College District, Haverford College, The American Federation of Teachers, Jia Ye, and Sen Li, Plaintiffs,

v.Kevin MCALEENAN,¹ U.S. Department of Homeland Security, L. Francis Cissna, and U.S. Citizenship and Immigration Services, Defendants.

1:18CV891

United States District Court, M.D. North Carolina.

Signed May 3, 2019

Michael B. Kimberly, Paul W. Hughes, McDermott Will & Emery LLP, Washington, DC, Cory S. Menees, Mayer Brown LLP, Charlotte, NC, for Plaintiffs.

Joshua S. Press, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

Loretta C. Biggs, United States District Judge Plaintiffs initiated this action seeking declaratory and injunctive relief for Defendants' alleged violations of the Administrative Procedure Act (the "APA"), 5 U.S.C. § 701 et seq. (ECF Nos. 1, 14.) Specifically, Plaintiffs' lawsuit relates to the U.S. Citizenship and Immigration Services' ("USCIS") issuance and application of the August 9, 2018 Policy Memorandum, PM-602-1060.1, titled "Accrual of Unlawful Presence and F, J, and M Nonimmigrants," (the "August 2018 Policy Memorandum" or the "Policy Memorandum"). (ECF Nos. 1, 14.) On January 28, 2019, the Court entered an Order temporarily restraining Defendants from applying the August 2018 Policy Memorandum to the individual Plaintiffs, Jia Ye ("Ye") and Sen Li ("Li") (collectively, "Individual Plaintiffs"), pending the Court's resolution of the below motions. (ECF No. 36.)

Before the Court are: (i) Plaintiffs' Motion for Preliminary Injunction and Partial Summary Judgment, (ECF No. 15); and (ii) Defendants' Motion to Dismiss, (ECF No. 30).² The Court heard oral arguments on April 4, 2019. For the reasons set forth herein, the Court grants in part and denies in part Plaintiffs' Motion for Preliminary Injunction and Partial Summary Judgment, and Defendants' Motion to Dismiss will be denied.

I. BACKGROUND

Plaintiffs' Complaint alleges that, for over twenty years, F, J, and M nonimmigrant visa holders³ who entered the United States for "duration of status," as opposed to a fixed time period, would begin to accrue unlawful presence⁴ "on the day after a government official or immigration judge adjudicates the individual as out-of-status." (ECF No. 14 ¶¶ 5–6.) On August 9, 2018, Defendants issued the subject Policy Memorandum⁵ which provides, in part, that, for F, J, and M nonimmigrant visa holders, the USCIS was "changing its policy on how to calculate unlawful presence" under the Immigration and Nationality Act (the "INA"). (ECF No. 14-1 at 4; see ECF No. 14 ¶ 97.) Plaintiffs allege that "[p]ursuant to this new policy, USCIS will start the unlawful presence clock not on the date that an individual on an F, J, or M visa is adjudicated as being out-of-status. Instead, USCIS will backdate ‘unlawful presence’ to [begin] the date on which the underlying facts that gave rise to the status violation occurred." (ECF No. 14 ¶ 98.) Plaintiffs further allege that this action is harmful because any individual who is "unlawfully present" in the United States for a period longer than 180 days is barred from reentry into the United States for a period of either three or ten years.⁶ (Id. ¶ 87 (citing 8 U.S.C. § 1182(a)(9)(B)(i)(I) ).) Plaintiffs allege that "many more international students and employees will be subject to a three- or ten-year reentry bar as compared with the previous regulatory framework, even in the absence of any bad faith or ... knowing conduct." (Id. ¶ 138 (footnote added).)

Plaintiffs' Complaint alleges four causes of action, namely, that the August 2018 Policy Memorandum is invalid because: (1) the Policy Memorandum was issued without complying with the rulemaking procedures mandated by the APA; (2) the Policy Memorandum is arbitrary and capricious under the APA; (3) the Policy Memorandum conflicts substantively with the statutory text of the INA; and (4) the Policy Memorandum violates the Due Process Clause of the Fifth Amendment. (Id. ¶¶ 185–221.) Plaintiffs' Motion for Preliminary Injunction and Partial Summary Judgment is based only on the first and third causes of action. (ECF No. 15 at 2.) Defendants, on the other hand, move to dismiss Plaintiffs' Complaint for lack of jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, or, in the alternative, for failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6). (ECF No. 30.)

II. DEFENDANTS' MOTION TO DISMISS

A. Legal Standards

A Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction raises the question of "whether [the plaintiff] has a right to be in the district court at all and whether the court has the power to hear and dispose of [the] claim." Holloway v. Pagan River Dockside Seafood, Inc. , 669 F.3d 448, 452 (4th Cir. 2012). The burden of establishing subject-matter jurisdiction is on the plaintiff. Evans v. B.F. Perkins Co. , 166 F.3d 642, 647 (4th Cir. 1999). When evaluating a Rule 12(b)(1) motion, the court may consider evidence outside the pleadings and should grant the motion "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id. (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United States , 945 F.2d 765, 768 (4th Cir. 1991) ). Once a court determines it lacks subject-matter jurisdiction over a claim, the claim must be dismissed. See Jones v. Calvert Grp., Ltd. , 551 F.3d 297, 301 (4th Cir. 2009).

A motion made under Rule 12(b)(6) challenges the legal sufficiency of the facts in the complaint, specifically whether the complaint satisfies the pleading standard set forth in Rule 8 of the Federal Rules of Civil Procedure. Francis v. Giacomelli , 588 F.3d 186, 192 (4th Cir. 2009). Rule 8(a)(2) requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While a complaint need not contain detailed factual allegations, "a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (alteration in original). Rather, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. In other words, to survive a Rule 12(b)(6) 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.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ).

B. Discussion

Defendants challenge this Court's jurisdiction based on the threshold issues of standing and ripeness,⁷ each of which the Court addresses, in turn, below.

1. Standing

"To establish standing under Article III of the Constitution, a plaintiff must ‘allege (1) an injury that is (2) fairly traceable to the defendant's allegedly unlawful conduct and that is (3) likely to be redressed by the requested relief.’ " Bostic v. Schaefer , 760 F.3d 352, 370 (4th Cir. 2014) (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 590, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). Where, as here, Plaintiffs sue to vindicate procedural rights—such as the right to have proposed regulatory action comply with the requirements of the APA—"they must establish the agency action threatens their concrete interest." Mendoza v. Perez , 754 F.3d 1002, 1010 (D.C. Cir. 2014). "Once that threshold is satisfied, [however,] the normal standards for immediacy and redressability are relaxed." Id. ; see Hodges v. Abraham , 300 F.3d 432, 444 (4th Cir. 2002) ("Pursuant to the Court's decision in [ Lujan ], a person entitled to a ‘procedural right,’ ... can thereby possess Article III standing ‘without meeting all the normal standards for redressability and immediacy.’ " (quoting Lujan , 504 U.S. at 572 n.7, 112 S.Ct. 2130 )). "[I]f the plaintiffs can demonstrate a causal relationship between the final agency action and the alleged injuries, the court will assume[ ] the causal relationship between the procedural defect and the final agency action." Mendoza , 754 F.3d at 1010 (second alteration in original) (internal quotation marks omitted).

While the instant action has been brought by a number of plaintiffs,⁸ "the Supreme Court has made it clear that ‘the presence of one party with standing is sufficient to satisfy Article III's case-or-controversy requirement." Bostic , 760 F.3d at 370 (quoting Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. , 547 U.S. 47, 52 n.2, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) ). Here, the Court finds that Individual Plaintiffs—Ye and Li— have standing to sue. Specifically, Ye and Li have sufficiently alleged injury arising from the August 2018 Policy Memorandum. Both individual Plaintiffs are foreign nationals who entered the United States on F-1 nonimmigrant student visas, and subsequently either graduated, or withdrew, from school. (ECF No. 16-1 ¶¶ 4, 10; ECF No. 16-2 ¶¶ 4, 10.) Ye and Li have been recruited by the U.S. Army to enter the Military Accessions Vital to National Interest ("MAVNI") program because they both "possess language skills in high demand by the [U.S.] military." (ECF No. 16-1 ¶ 6; ECF No. 16-2 ¶ 6.) In exchange for their enlistment in the U.S. Army through the MAVNI program, Individual Plaintiffs would be granted United States citizenship. (ECF No. 16-1 ¶ 6; ECF No. 16-2 ¶ 6.) Ye and Li have each signed an enlistment contract with the Army and they are awaiting orders to report to Basic Combat Training.⁹ (ECF No. 16-1 ¶¶ 7–8; ECF No. 16-2 ¶¶ 7, 9.) Individual Plaintiffs were "told by the Army not to leave the United States while [they] wait for basic training." (ECF No. 16-2 ¶ 8; see ...