Make the Roa NY v. McAleenan, No. 19-cv-2369 (KBJ)

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: KETANJI BROWN JACKSON, United States District Judge
• Citation: 405 F.Supp.3d 1
• Parties: MAKE THE ROAD NEW YORK, et al., Plaintiffs, v. Kevin MCALEENAN, Acting Secretary of the Department of Homeland Security, et al., Defendants.
• Docket Number: No. 19-cv-2369 (KBJ)
• Decision Date: 27 September 2019

405 F.Supp.3d 1

MAKE THE ROAD NEW YORK, et al., Plaintiffs,
v.
Kevin MCALEENAN, Acting Secretary of the Department of Homeland Security, et al., Defendants.

No. 19-cv-2369 (KBJ)

United States District Court, District of Columbia.

Signed September 27, 2019

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Anand Balakrishnan, Lee Gelernt, Michael King Thomas Tan, Omar C. Jadwat, American Civil Liberties Union Foundation, Jonathan K. Youngwood, Joshua Polster, Susannah Geltman, Simpson, Thacher & Bartlett LLP, Celso Perez, ACLU Immigrants' Rights Project, New York, NY, Kristin MacLeod-Ball, Trina Ann Realmuto, American Immigration Council, Brookline, MA, Stephen Bonggyun Kang, American Civil Liberties Union Foundation, San Francisco, CA, Arthur B. Spitzer, Scott Michelman, American Civil Liberties Union of the District of Columbia, Karolina Joanna Walters, American Immigration Council, Washington, DC, for Plaintiffs.

Erez Reuveni, Archith Ramkumar, Kathryne Marie Gray, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

TABLE OF CONTENTS

I. Introduction ...9

II. Background ...12

A. The Immigration And Nationality Act's Expedited Removal Provision...12

B. Agency Implementation Of The INA's Expedited Removal Provision...15

1. Prior Section 1225(b)(1)(A)(iii) Expedited Removal Designations...16

2. Acting DHS Secretary Kevin McAleenan's Notice Of July 23, 2019...17

C. Judicial Review Of Legal Claims Regarding Expedited Removal...19

III. Procedural History ...21

IV. Motions For Preliminary Injunctions In Cases Challenging Agency Action ...22

V. Analysis ...––––24

A. Plaintiffs Have A Likelihood Of Succeeding With Respect To Their Administrative Procedure Act ("APA") Claims...24

1. Plaintiffs Are Likely To Be Able To Demonstrate That Article III's Jurisdictional And Standing Requirements Are Satisfied...25

a. It is likely that this Court has subject-matter jurisdiction to consider Plaintiffs' APA claims under 28 U.S.C. § 1331...25

b. It is likely that Plaintiffs have associational standing...32

2. Plaintiffs Are Likely To Be Able To Establish That The APA Provides A Cause Of Action For Their Claims That DHS Has Committed Procedural Violations...35

a. It is unlikely that the INA provides a cause of action for Plaintiffs' procedural claims...36

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b. It is unlikely that the INA commits to agency discretion the process by which the section 1225(b)(1)(A)(iii) expedited removal designation is to be determined...39

3. Plaintiffs Are Likely To Succeed On The Merits Of Their APA Arguments...44

a. The APA requires that agencies seek public comment prior to rulemaking, and that they conduct their deliberations so as to minimize the risk of reaching arbitrary and capricious conclusions...44

b. It is likely that DHS needed to proceed through notice and comment rulemaking prior to issuing the July 23rd Notice and that no good cause exists for the agency not to have complied with these mandates in this instance...47

c. It is likely that the July 23rd Notice resulted from arbitrary and capricious decision making...53

B. If Plaintiffs' Members Are Subjected To DHS's Expanded Expedited Removal Policy During The Pendency Of This Lawsuit, They Will Suffer Irreparable Harm...60

C. Both The Balance Of The Equities And The Public's Interest Weigh In Favor Of The Issuance Of A Preliminary Injunction...63

D. Defendants' Argument That Any Injunction Can Only Restrict Agency Action As To These Plaintiffs Cannot Be Countenanced...66

VI. Conclusion ...72

I. INTRODUCTION

Administrative agencies have long been required by law to adhere to certain procedural standards when they evaluate options and assess alternatives with respect to the implementation of policy objectives. See, e.g. , 5 U.S.C. § 553(b) – (c) (requiring agencies to provide notice and solicit public participation as part of agency rulemaking, commonly known as "notice and comment"). This is by design; statutory requirements that pertain to how an agency conducts its internal deliberations are intended to promote transparency and to prevent arbitrary decision making by unelected government officials. See Batterton v. Marshall , 648 F.2d 694, 703 (D.C. Cir. 1980) ("The essential purpose of according ... notice and comment opportunities is to reintroduce public participation and fairness to affected parties after governmental authority has been delegated to unrepresentative agencies." (footnote omitted)); see also Wong Yang Sung v. McGrath , 339 U.S. 33, 40–41, 70 S.Ct. 445, 94 L.Ed. 616 (1950), superseded by statute on other grounds (explaining that the Administrative Procedure Act, 5 U.S.C. § 551 et seq. , was enacted to supplant unregulated rule making by independent commissions, and that one of the Act's "fundamental ... purpose[s]" was "to curtail and change the practice of embodying in one person or agency the duties of prosecutor and judge"). Thus, even when an agency has the authority to make a final policy decision, procedural mandates that constrain its decision making processes operate as safeguards of individual liberty, and therefore, are entirely consistent with foundational democratic and constitutional norms.

The instant case requires this Court to determine whether, inter alia , the Department of Homeland Security ("DHS") unlawfully dispensed with core procedural prerequisites when it suddenly announced that the agency was designating undocumented non-citizens who have been in this country for up to two years, and who are located far beyond the border, as eligible for "expedited removal" from the United States.

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Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409, 35,409 (July 23, 2019).¹ Generally speaking, expedited removal is the statutory authorization that enables federal immigration officers to slate certain undocumented non-citizens for rapid deportation "without further hearing or review[.]" 8 U.S.C. § 1225(b)(1)(A)(i).

Prior to July 23, 2019, DHS had authorized expedited removal with respect to undocumented non-citizens who arrived in the United States by land only if such persons were encountered near the border and had been in the country for no longer than 14 days. See 84 Fed. Reg. at 35,409. In a "Notice" that DHS published in the Federal Register on July 23, 2019 (more than two and half years after President Donald Trump issued an executive order that demanded that DHS expand its established expedited removal practices), the agency instantly authorized line immigration-enforcement agents to apply expedited removal to non-citizens encountered anywhere in the United States for up to two years after the non-citizen arrived in the United States, effective immediately. See id. This abrupt change in the official policies that govern DHS's deportation practices is the subject of the legal claims that have been presented to the Court in this case.

Three immigrant-rights organizations—Make the Road New York, La Union Del Pueblo Entero ("LUPE"), and WeCount! (collectively, "Plaintiffs")—have filed the instant lawsuit against DHS, its Secretary, and other agency officials (collectively, "DHS" or "Defendants"). Plaintiffs allege, among other things, that DHS's July 23rd Notice violated the Administrative Procedure Act ("APA"), because the agency did not engage in notice-and-comment rulemaking prior to issuing the July 23rd Notice, and also because DHS failed to take the established flaws in the preexisting expedited removal system into account before it reached the conclusion that the expedited removal process should be applied to a broader category of non-citizens. (See Compl., ECF No. 1, ¶¶ 129–34, 149–51.)²

Before this Court at present is a motion for a preliminary injunction that Plaintiffs have filed "to prevent severe and irreparable harm" to their members while the parties litigate the myriad legal issues that this legal action raises. (Pls.' Mot. for a Prelim. Inj. ("Pls.' Mot."), ECF No. 13, at 2.)³ The array of legal issues that this Court must ultimately decide includes whether the APA even applies to the expedited-removal designations that the DHS Secretary makes under 8 U.S.C. § 1225(b)(1)(A)(iii)(I), and the parties have made various arguments that, at bottom, relate to that key question. As a threshold matter, Plaintiffs contend that this Court

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has subject-matter jurisdiction over their APA challenges under the circumstances that are expressly addressed in the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. , and that at least seven of their members have Article III standing to pursue the instant APA claims. Plaintiffs also assert that they have a likelihood of success on the merits of their claims that DHS has violated the APA, and that without a preliminary injunction to prevent enforcement of the policy change announced in the July 23rd Notice, their members will suffer irreparable harm. Defendants respond that this Court cannot review Plaintiffs' claims consistent with its power under Article III, either because Congress intended to preclude the exercise of...