NWDC Resistance v. Immigration & Customs Enforcement, CASE NO. C18-5860JLR
| Decision Date | 08 October 2020 |
| Docket Number | CASE NO. C18-5860JLR |
| Citation | 493 F.Supp.3d 1003 |
| Parties | NWDC RESISTANCE and Coalition of Anti-Racist Whites, Plaintiffs, v. IMMIGRATION & CUSTOMS ENFORCEMENT, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
Ambika K. Doran, Bruce EH Johnson, Rachel H. Herd, Robert E. Miller, Davis Wright Tremaine, Seattle, WA, Sejal Zota, Pro Hac Vice, Just Futures Law, Canton, MA, for Plaintiffs.
Katie Denise Fairchild, Sarah K. Morehead, US Attorney's Office, Seattle, WA, for Defendants.
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS
THIS MATTER is before the Court on Defendants Immigration & Customs Enforcement, Acting Director of ICE Matthew T. Albence, and Acting Secretary of the Department of Homeland Security Chad F. Wolf's (collectively, "ICE") Motion to Dismiss for lack of subject matter jurisdiction [Dkt. # 41]. Plaintiffs La Resistencia (formerly NWDC Resistance) and Coalition of Anti-Racist Whites are immigration advocacy organizations. They claim that ICE has a policy and practice of targeting undocumented immigration activists in retaliation for their protected speech. They do not seek to intervene in any particular removal proceeding, or to reverse any specific removal decision, but instead ask the Court to enjoin ICE's "selective enforcement" policy as unconstitutional.
ICE seeks dismissal on three grounds: (1) 8 U.S.C. § 1252(g) strips District Courts of jurisdiction over "any cause or claim" arising from decisions to commence removal proceedings, adjudicate cases, or execute removal orders; (2) 8 U.S.C. § 1252(a)(5) and (b)(9) require challenges seeking review of such decisions to be made in the appropriate court of appeals; and (3) the plaintiffs lack organizational or associational1 standing to assert these claims on behalf of third parties. Having considered the motion, the parties’ submissions concerning the motion, the relevant portions of the record, and the applicable law, the Court DENIES ICE's motion to dismiss.
Plaintiffs plausibly contend that since January 2017, ICE has engaged in a policy and practice of targeting outspoken activists who publicly criticize U.S. immigration law, policy and enforcement. Their operative First Amended Complaint includes numerous2 examples of such targeting. Maru Mora-Villalpando is the president of La Resistencia. The FAC and Mora-Villalpando's Declaration establish that she was issued a Notice to Appear because of her "anti-ICE protests." La Resistencia and Maru Mora-Villalpando claim that such tactics are discriminatory and unconstitutional, and that they have had the perhaps intended effect of disrupting and discouraging member activists and their speech. Plaintiffs plausibly claim that they rely on family members for information about detainees, and that as the result of ICE's practice, those family members are afraid to speak. Plaintiffs argue that the fear caused by selective enforcement has forced them to cancel events, limit interactions with the media, and required them to divert resources from activism to defending members facing removal proceedings.
Plaintiffs claim that discovery has demonstrated the accuracy of their allegations. As detailed in Exhibits attached to the Declaration of Robert Miller [Dkt. #s 49 and 51], internal ICE emails confirmed they believed La Resistencia and Maru Mora-Villalpando were the "instigators of all the turmoil surrounding the NWDC for the past several years," [Dkt. # 51, p. 8 (Ex. A at 7)], and that Maru Mora-Villalpando was responsible for "almost all meaningful protests over the past decade." [Id. at p. 16, Ex. C at 3]. ICE concluded "placing her into proceedings might take away some of her clout," ], even though she was otherwise a "low priority" under new enforcement policies. [Id. at p. 15, Ex. C at 2].
Plaintiffs sued in October 2018, and filed their FAC in December 2018 [Dkt. # 13]. They assert First Amendment and Fifth Amendment (Due Process and Equal Protection) claims. They also claim that the selective enforcement policy violated applicable Executive Orders on immigration and speech, and thus the Administrative Procedure Act. They seek a Declaratory Judgment that ICE's selective enforcement policy violates the First and Fifth Amendments, and a permanent injunction prohibiting ICE from selectively enforcing the immigration laws against any individual in retaliation for protected political speech.
ICE moved to dismiss the complaint under the "first to file" rule, arguing that the same challenge to ICE's selective enforcement policy was being litigated in an earlier-filed case, Ragbir v. Vitiello, et al. , 1:18-cv-01159 (S.D.N.Y.). [Dkt. # 19]. Plaintiffs’ FAC describes ICE's treatment of Ragbir as an example of the selective enforcement at the core of its claims, but he is not a plaintiff in this case. The Court determined that, despite some overlap, the parties and the claims in the two cases were sufficiently different to avoid dismissal under the first to file rule. It denied ICE's Motion in May 2019. [Dkt. # 30].
ICE now argues that the Court does not have jurisdiction over Plaintiffs’ claims, which it argues seek to interfere in removal proceedings related to Maru Mora-Villalpando and other activists identified and described in the FAC. It also argues the Plaintiffs do not have standing to challenge the allegedly unconstitutional policy.
The issues are addressed in turn.
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6), the court construes the complaint in the light most favorable to the non-moving party. See Livid Holdings Ltd. v. Salomon Smith Barney, Inc. , 416 F.3d 940, 946 (9th Cir. 2005) ; see also Wolfe v. Strankman , 392 F.3d 358, 362 (9th Cir. 2004). Generally, the court must accept as true all well-pleaded allegations of material fact and draw all reasonable inferences in favor of the plaintiff. See Wyler Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998).
A complaint must be dismissed under Fed. R. Civ. P. 12(b)(1) if, considering the factual allegations in the light most favorable to the plaintiff, the action: (1) does not arise under the Constitution, laws, or treaties of the United States, or does not fall within one of the other enumerated categories of Article III, Section 2, of the Constitution; (2) is not a case or controversy within the meaning of the Constitution; or (3) is not one described by any jurisdictional statute. United Transp. Union v. Burlington N. Santa Fe R. Co. , No. C06-5441 RBL, 2007 WL 26761, at *2 (W.D. Wash. Jan. 2, 2007), aff'd , 528 F.3d 674 (9th Cir. 2008).
The plaintiffs bear the burden of proving the existence of subject matter jurisdiction, Stock West, Inc. v. Confederated Tribes , 873 F.2d 1221, 1225 (9th Cir. 1989), but they have no obligation to provide facts beyond the complaint, where, as here, defendants have introduced no evidence contesting any of the allegations. Ryan v. Salisbury , 382 F. Supp. 3d 1031, 1047 (D. Haw. 2019) (quoting Doe v. Holy See , 557 F.3d 1066, 1073 (9th Cir. 2009) ).
ICE's primary argument is that 8 U.S.C. § 1252(g) ’s "plain language" deprives the district courts of jurisdiction over "any cause or claim" arising from decisions to commence or execute removal orders:
8 U.S.C. § 1252(g) (emphasis added). ICE argues Plaintiffs’ claim it is "selectively enforcing" immigration law against them necessarily seeks to challenge precisely those decisions, and that the Court therefore has no jurisdiction over them. It relies on Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (" AADC "), which involved a group of aliens targeted for removal by INS. They claimed INS was selectively enforcing immigration laws against them because they were affiliated with a "politically unpopular group," the Popular Front for the Liberation of Palestine. The AADC plaintiffs claimed INS's selective enforcement—commencing removal proceedings against them—violated their First and Fifth Amendment constitutional rights.
The Supreme Court explained that Section 1252(g) must be read narrowly, and held that it eliminates jurisdiction concerning (only) three discrete actions that the Attorney General has the discretion to take: "the decision or action to commence proceedings, adjudicate cases, or execute removal orders[.]" AADC , 525 U.S. at 482-83, 119 S.Ct. 936. Because the plaintiffs sought to enjoin removal proceedings that had been commenced against them, Section 1252(g) applied and it deprived the District Court of jurisdiction to hear their claims.
ICE cites several subsequent cases similarly and consistently holding that an alien who is the subject of removal proceedings cannot sue in District Court to challenge the exercise of ICE's discretion to determine whether and when to carry out these three discrete, discretionary actions. See Gebreslasie v. United States Citizenship & Immigration Servs. , 778 F. App'x 532, 533 (9th Cir. 2019) ; Balogun v. Barr , No. 18-56258, 2019 WL 4729845 (9th Cir. July 30, 2019) ; and Palacios-Bernal v. Barr , No. 5:19-cv-01963-RGK-MAA, 2019 WL 5394019 (C.D. Cal. Oct. 22, 2019). Each case involved an alien plaintiff challenging one of the three actions enumerated in Section 1252(g), directed against him or her. In each case, the Court held that the claim was barred.
ICE argues...
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