J.L. v. Cissna, Case No. 18-cv-04914-NC

Decision Date15 March 2019
Docket NumberCase No. 18-cv-04914-NC
Citation374 F.Supp.3d 855
CourtU.S. District Court — Northern District of California
Parties J.L., M.D.G.B., J.B.A., and M.G.S., on behalf of themselves and all others similarly situated, Plaintiffs, v. Lee Francis CISSNA, Director, United States Citizenship and Immigration Services, et al., Defendants.

Sirena Peleka Castillo, Adrianne Elizabeth Marshack, Allison Claire Nelson, Kathleen Elizabeth Ingra Wise, Matthew P. Kanny, Michael Gregory Nordon, Manatt Phelps, Phillips LLP, Judith Maura London, Mary Tanagho Ross, Sara Lynn Van Hofwegen, Public Counsel, Los Angeles, CA, Keith Lee Wurster, Lawyer's Committee for Civil Rights of the San Francisco, San Francisco, CA, Matthew Brent Golper, Manatt, Phelps and Phillips, LLP, Costa Mesa, CA, for Plaintiffs J.L., G.B., M.D, J.B.A.

Michael Gregory Nordon, Sirena Peleka Castillo, Manatt Phelps Phillips, LLP, Los Angeles, CA, Matthew Brent Golper, Manatt, Phelps and Phillips, LLP, Costa Mesa, CA, for Plaintiff M.G.S.

Ari Nazarov, Elianis N. Perez, Nicole Joann Thomas-Dorris, Catherine McGann Reno, Katelyn Masetta-Alvarez, Kenneth John Ian, Lauren Fascett, U.S. Department of Justice Office of Immigration Litigation, District Court Section, Washington, DC, Michael Thomas Pyle, United States Attorney's Office, San Jose, CA, for Defendants Director Lee Francis Cissna, Secretary Kirstjen M. Nielsen, Director Robert Cowan, United States Citizenship and Immigration Services.

Elianis N. Perez, Catherine McGann Reno, Katelyn Masetta-Alvarez, Kenneth John Ian, Lauren Fascett, Nicole Joann Thomas-Dorris, U.S. Department of Justice Office of Immigration Litigation, District Court Section, Washington, DC, Michael Thomas Pyle, United States Attorney's Office, San Jose, CA, for Defendant United States Department of Homeland Security.

Re: Dkt. No. 91

NATHANAEL M. COUSINS, United States Magistrate JudgePlaintiffs are young immigrants seeking Special Immigrant Juvenile ("SIJ") status. They allege that defendants—the United States Department of Homeland Security ("DHS"), the United States Citizenship and Immigration Services ("USCIS"), and individual officers in charge of those departments—adopted an unlawful policy that prevents them from obtaining that status. The Court previously granted Plaintiffs' motion for preliminary injunction and motion for class certification. See Dkt. Nos. 49, 112. Defendants now move to dismiss the amended complaint, arguing that they complied with the Administrative Procedure Act, did not violate due process, and the Court lacks subject matter jurisdiction. See Dkt. No. 91. For the reasons explained below, the Court DENIES Defendants' motion to dismiss.

I. Background
A. Statutory and Factual Background

The statutory and factual background is well-known to the parties. Because that background has not changed since the Court's February 1, 2019, order granting class certification, the Court will not recount the SIJ statutory framework or Plaintiffs' factual allegations here. See Dkt. No. 112; see also Dkt. No. 49.

B. Procedural Background

On October 24, 2018, the Court granted Plaintiffs' motion for a preliminary injunction and enjoined Defendants from denying SIJ status on the grounds that California Probate Courts do not have jurisdiction to issue SIJ guardianship orders. See Dkt. No. 49.

Plaintiffs amended their complaint on November 20, 2018, alleging claims for: (1) violation of the Fifth and Fourteenth Amendment Due Process Clause; (2) violation of the Immigration and Nationality Act, 8 U.S.C. § 1101, pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 706 ; (3) arbitrary and capricious actions, 5 U.S.C. § 706 ; (4) failure to conduct notice-and-comment rulemaking, 5 U.S.C. § 553 ; (5) violation of the Due Process Clause under the APA, 5 U.S.C. § 706 ; and (6) declaratory judgment. See Dkt. No. 70 ("FAC").

Plaintiffs then moved for class certification under Federal Rule of Civil Procedure 23(b)(2). See Dkt. No. 71. The Court certified a class of SIJ petitioners with California Probate Court guardianship orders on February 1, 2019. See Dkt. No. 112 at 20.

While Plaintiffs' motion for class certification was pending, Defendants moved to dismiss the first amended complaint. See Dkt. No. 91. That motion is now fully briefed (see Dkt. Nos. 109, 115) and was heard on March 6, 2019 (see Dkt. No. 136). All parties have consented to the jurisdiction of a magistrate judge. See Dkt. Nos. 14, 26, 141.

II. Legal Standard

A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001). On a motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the non-movant. Cahill v. Liberty Mut. Ins. Co. , 80 F.3d 336, 337–38 (9th Cir. 1996). The Court, however, need not accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Secs. Litig. , 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint need not allege detailed factual allegations, it must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when it "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

In contrast, the Court may consider materials beyond the allegations in the complaint on a motion to dismiss for lack of subject matter jurisdiction. See Robinson v. U.S. , 586 F.3d 683, 685 (9th Cir. 2009). "[N]o presumptive truthfulness attaches to plaintiff's allegations" and the Court "may hear evidence regarding jurisdiction and resolv[e] factual disputes where necessary." Id. (internal quotation marks and citations omitted).

III. Discussion
A. Final Agency Action

Under the APA, courts can review agency actions "so long as the decision challenged represents a ‘final agency action for which there is no other adequate remedy in court.’ " W. Radio Serv. Co. v. U.S. Forest Serv. , 578 F.3d 1116, 1122 (9th Cir. 2009) (quoting Webster v. Doe , 486 U.S. 592, 599, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) ); see also 5 U.S.C. § 704.

An agency action is final if (1) it "marks the consummation of the agency's decision-making process—it must not be of a merely tentative or interlocutory nature" and (2) is "one by which rights or obligations have been determined, or from which legal consequences will flow." Bennett v. Spear , 520 U.S. 154, 177–78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal citations and quotations omitted). The Ninth Circuit approaches the finality requirement "in a pragmatic and flexible manner." Havasupai Tribe v. Provencio , 906 F.3d 1155, 1163 (9th Cir. 2018) (internal quotations omitted).

Defendants argue that plaintiffs M.G.S., M.D.G.B., and J.B.A. must be dismissed because their SIJ petitions remain pending. See Dkt. No. 91 at 19. As a result, according to Defendants, there has been no final agency action as to those plaintiffs and the Court lacks subject matter jurisdiction to review their claims. Id.

The Court disagrees. As explained in the Court's prior orders, Plaintiffs do not challenge USCIS's adjudication of each individual SIJ petition. See, e.g. , Dkt. No. 49 at 21; Dkt. No. 112 at 15. Plaintiffs instead challenge Defendants' adoption of a new requirement for SIJ eligibility. Defendants' reliance on Spencer Enters., Inc. v. U.S. , 345 F.3d 683 (9th Cir. 2003) and Abboud v. I.N.S. , 140 F.3d 843 (9th Cir. 1998) is not persuasive. Both Spencer and Abboud challenged specific adjudications, not an underlying government policy. See Spencer , 345 F.3d at 686 (challenging INS's denial of plaintiff's immigrant investor petition); Abboud , 140 F.3d at 845 (challenging INS's denial of plaintiff's application for an immigrant visa).

Under the first Bennett prong, "the challenged agency action must represent the consummation of the agency's decisionmaking process." Or. Natural Desert Ass'n v. U.S. Forest Serv. , 465 F.3d 977, 984 (9th Cir. 2006). It "must not be of a merely tentative or interlocutory nature." Bennett , 520 U.S. at 178, 117 S.Ct. 1154. Instead, the court must determine whether the agency "has rendered its last word on the matter." Or. Natural Desert , 465 F.3d at 977 (quoting Whitman v. Am. Trucking Ass'n , 531 U.S. 457, 478, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) ).

As the Court explained in its October 24, 2018, order granting a preliminary injunction, USCIS's revision of its Consolidated Handbook of Adjudication Procedures ("CHAP") and its subsequent implementation of the new SIJ requirement satisfies the first Bennett requirement. See Dkt. No. 49 at 22. USCIS's legal determination that the SIJ statute requires state courts to have the power to actually reunify petitioners with their parents marks the consummation of its decision-making process. The administrative record shows that USCIS's Office of Chief Counsel promulgated legal guidance regarding the SIJ statute in February 26, 2018. See Dkt. No. 133 ("CAR") at 103–04. That guidance was then adopted and published in the CHAP. See CAR 106, 107–18.

Navajo Nation v. United States Dept. of Interior , 819 F.3d 1084, 1089 (9th Cir. 2016) is directly on point. In Navajo Nation , the National Park Service determined that federal law applied to assorted Native American remains and archaeological items and started an inventory process to provide for the ultimate disposition of those items. The Ninth Circuit held that "[the Park Service's] legal determination that [federal law] appl[ied] to the remains and objects ... marked the consummation of the agency's decisionmaking process as to that issue." Id. at 1091 (internal quotation marks omitted)....

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