J.O.P. v. U.S. Dep't of Homeland Sec.
| Decision Date | 03 June 2020 |
| Docket Number | Case No.: GJH-19-1944 |
| Parties | J.O.P., et al., Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
Pursuant to the Administrative Procedure Act, 5 U.S.C. § 551 et seq. ("APA"), and the Due Process Clause of the Fifth Amendment to the United States Constitution, a group of undocumented immigrants who entered the United States as unaccompanied children ("Plaintiffs") bring this action against the U.S. Department of Homeland Security and several of its officials and components ("Defendants") alleging that the government unlawfully modified policies governing treatment of asylum applications by unaccompanied immigrant children in a May 2019 Memorandum. On August 2, 2019, the Court granted Plaintiffs' Motion for a Temporary Restraining Order enjoining enforcement of the new Memorandum, ECF No. 54, and on October 15, 2019 granted Plaintiffs' consent motion converting the Order into a preliminary injunction. ECF Nos. 70, 71. Several overlapping motions are now before the Court, including Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment as to the Complaint, ECF No. 73, Plaintiffs' Motion to Enforce the Preliminary Injunction, ECF No. 75, and Defendants' Motion to Dismiss the Amended Complaint, ECF No. 101. No hearing is necessary. See Loc. R. 105.6 (D. Md.). For the following reasons, each of these motions will be denied, while three pending procedural motions, ECF Nos. 74, 92, 93, will be granted.
Because of the unusual posture of this action, the Court begins by describing the complex procedural history of the case before turning to the statutory and regulatory regime at issue and Plaintiffs' specific allegations.
Pseudonymous Plaintiffs J.O.P. (by and through next friend, G.C.P.), M.A.L.C., M.E.R.E., and K.A.R.C. filed a Complaint on July 1, 2019, against the U.S. Department of Homeland Security ("DHS"), its then-Acting Secretary Kevin McAleenan, U.S. Citizenship and Immigration Services ("USCIS"), and USCIS's Acting Director Kenneth Cuccinelli, alleging that a change in Defendants' policy with respect to asylum applications filed by unaccompanied alien children violated the APA and the Due Process Clause of the Fifth Amendment to the U.S. Constitution. ECF No. 1.1 Plaintiffs simultaneously filed a Motion for a Temporary Restraining Order ("TRO"). ECF No. 14. Both the Complaint and the TRO Motion were accompanied by several exhibits. See ECF Nos. 3, 15. Each of the Plaintiffs also submitted a personal declaration describing their departures from their countries of birth and their arrivals in the United States. ECF Nos. 16, 18, 19, 20.
The Court held a hearing on the TRO Motion on July 19, 2019. ECF Nos. 43, 53. On August 2, 2019, the Court issued a Memorandum Opinion and an Order granting the TRO. ECF Nos. 54, 55. The Court's decision was based on the allegations in the Complaint, Plaintiffs' affidavits, and the exhibits accompanying the TRO Motion. See ECF No. 54. In its Order, theCourt enjoined Defendants from enforcing the new asylum policy, which was set forth in a USCIS memorandum dated May 31, 2019, and ordered Defendants to retract any adverse asylum decisions already rendered under that policy. ECF No. 55. On August 9, 2019, Defendants filed a Motion for Extension of Time to comply with the Court's order because of logistical challenges in reviewing decisions that may have been rendered under the policy. ECF No. 57. Following a teleconference, ECF No. 59, the Court extended the TRO to September 3, 2019, ECF No. 60, and accordingly denied Defendants' Motion as moot, ECF No. 114.
The Court extended the TRO two additional times at the parties' joint request. ECF Nos. 63, 66. On October 9, 2019, Plaintiffs filed a consent motion to convert the TRO into a preliminary injunction, ECF No. 70, which the Court granted on October 15, 2019, ECF No. 71. On November 13, 2019, Defendants filed a Motion to Dismiss or, in the Alternative, for Summary Judgment with respect to Plaintiffs' Complaint, seeking entry of a final judgment order containing the language in the preliminary injunction. ECF No. 73. The Motion also asserted that Defendants had conceded to the relief requested in the Complaint by consenting to the injunction. Id. Defendants' Memorandum in Support of the Motion additionally argued that the case was moot as a result of Defendants' concessions. ECF No. 73-1. On November 21, 2019, Plaintiffs filed an unopposed Motion for Extension of Time to Respond to Defendants' Motion to Dismiss and to File an Amended Complaint. ECF No. 74.2
The following day, Plaintiffs filed a Motion to Enforce the Preliminary Injunction, asserting that Defendants were failing to fully comply with the Court's Order by continuing to implement some portions of the May 2019 USCIS memorandum. ECF Nos. 75, 76. Plaintiffs attached and cited a number of materials, including declarations from two former USCIS asylumofficers and from three attorneys who have represented asylum applicants. ECF Nos. 78, 79, 80, 81, 82. On December 19, 2019, Defendants filed an Opposition to the Motion to Enforce, ECF No. 88, and attached a Declaration from a current asylum officer, ECF No. 88-1. On December 20, 2019, Plaintiffs filed an Amended Complaint that added a new Plaintiff, E.D.G., replaced former Defendant McAleenan with new Acting DHS Secretary Chad Wolf, and added as Defendants U.S. Immigration & Customs Enforcement ("ICE") and its Acting Director Matthew T. Albence. ECF No. 91.
As with the original Complaint, Plaintiffs attached several exhibits and filed a motion for permission for new Plaintiff E.D.G. to proceed under a pseudonym and omit his home address from the caption of the pleading, ECF No. 92, and to seal a copy of the Amended Complaint containing that information, ECF No. 93.3 Plaintiffs simultaneously filed an Opposition to Defendants' motion to dismiss or for summary judgment, ECF No. 95, attaching multiple exhibits, see ECF No. 96. On January 3, 2020, Defendants filed a Motion to Dismiss the Amended Complaint, which also attached and cited multiple exhibits. ECF No. 101. On January 10, 2020, Defendants filed a Reply in support of their motion to dismiss or for summary judgment with respect to the original Complaint. ECF No. 104. On January 24, Plaintiffs filed a Reply in support of their motion to enforce the preliminary injunction, ECF No. 107, attaching and citing additional exhibits, see ECF Nos. 107-1, 108. Plaintiffs simultaneously filed an Opposition to the Motion to Dismiss the Amended Complaint, ECF No. 109. Defendants filed a Reply in Support of the Motion to Dismiss on February 10, 2020. ECF No. 111.
Review of the parties' extensive filings demonstrates that there is some ambiguity as to what is contained in the "record" presently before the Court. One aspect of the issue is easilyresolved, however. Defendants have not opposed Plaintiffs' filing of their Amended Complaint, ECF No. 91, and have instead moved to dismiss it on substantive grounds, ECF No. 101. The Amended Complaint will thus be treated as the operative pleading for this action. Accordingly, the allegations it contains will be presumed to be true for purposes of assessing Defendants' Motion to Dismiss, ECF No. 101, and the Court includes those allegations in the following background discussion.
While the Court's prior Memorandum Opinion, ECF No. 54, described the statutory and regulatory regime at issue in this case, it is useful to again review it in some depth. In 2002, Congress enacted the Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 ("HSA"). Among other provisions, the HSA assigned the care of "unaccompanied alien children who are in Federal custody by reason of their immigration status" to the Director of the Office of Refugee Resettlement of the Department of Health and Human Services ("HHS"). See id. § 462(a), (b), codified at 6 U.S.C. § 279(a), (b). The statute defines "unaccompanied alien child" ("UAC") as a child who: "(A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom-- (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody." Id. § 462(g), codified at 6 U.S.C. § 279(g).
In 2008, Congress enacted the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ("TVPRA"). Pub. L. No. 110-457, 122 Stat. 5044. Among a variety of provisions establishing protections for at-risk immigrant children, the statute provides that any federal agency that apprehends or discovers a UAC must notify HHS within 48 hours and must transfer custody of the child to HHS within 72 hours. Id. § 235(b), codified at 8 U.S.C.§ 1232(b)(2), (3). Importantly, the TVPRA also provides that USCIS asylum officers "shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child." Id. § 235(d)(7)(B), codified at 8 U.S.C. § 1158(b)(3)(C). Demonstrating the significance of this provision to the issues raised in the parties' pending motions requires a brief overview of the regime governing asylum claims.
By regulation, the Department of Justice has established the Executive Office for Immigration Review ("EOIR"). See 8 C.F.R. § 1003.0. Within EOIR is the Office of the Chief Immigration Judge, a DOJ component consisting of a Chief Immigration Judge and other immigration judges ("IJs"), who are appointed by the Attorney General to conduct specified classes of immigration proceedings. See id. §§ 1003.9, 1003.10. These include hearings under section 240 of the Immigration and Nationality Act ("INA"), which concern "the inadmissibility or deportability of an alien." 8 U.S.C. § 1229a(a)(1)....
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