S.A. v. Trump

• Decision Date: 10 December 2018
• Docket Number: Case No. 18-cv-03539-LB
• Citation: 363 F.Supp.3d 1048
• Parties: S.A., et al., Plaintiffs, v. Donald J. TRUMP, et al., Defendants.
• Court: U.S. District Court — Northern District of California

363 F.Supp.3d 1048

S.A., et al., Plaintiffs,

v.Donald J. TRUMP, et al., Defendants.

Case No. 18-cv-03539-LB

United States District Court, N.D. California, San Francisco Division.

Signed December 10, 2018

Daniel B. Asimow, Matthew Harrison Fine, Arnold & Porter Kaye Scholer LLP, San Francisco, CA, John A. Freedman, David Jonathan Weiner, Arnold and Porter Kaye Scholer LLP, Washington, DC, Justin Bryan Cox, National Immigration Law Center, Atlanta, GA, Kathryn Claire Meyer, Linda Evarts, Mariko Hirose, International Refugee Assistance Project, New York, NY, for Plaintiffs.

Wendy M. Garbers, Alison E. Daw, United States Attorney's Office, Northern District of California, San Francisco, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

Re: ECF Nos. 31, 32

LAUREL BEELER, United States Magistrate Judge

TABLE OF CONTENTS

INTRODUCTION...1053

STATEMENT...1056

1.The Immigration and Nationality Act and Parole Generally...1056

2.The Complaint...1056

2.1 September–December 2014: The Creation of the CAM ParoleProgram...1056

2.2 2014–2016: The Operation of the CAM Program...1057

2.3 2015–Present: Donald Trump's Statements RegardingLatinos...1059

2.4 January 2017: Executive Order 13,767...1061

2.5 January 2017: The Alleged "Secret Shutdown" of the CAM Program...1061

2.6 February 2017: The KellyMemorandum...1063

2.7 August 2017: Termination of the CAM ParoleProgram...1064

3.The AdministrativeRecord...1065

3.1 2014–2016: The Record Regarding the Operation of the CAM ParoleProgram...1065

3.2 August 2017: The Record Regarding the Termination of the CAM ParoleProgram...1070

STANDARD OFREVIEW...1074

1.Administrative Procedure ActClaims...1074

2.Other Claims...1075

ANALYSIS...1076

1. Standing...1076

2.Administrative Procedure Act...1077

2.1 Termination of the CAM Parole Program GoingForward...1077

2.1.1 Whether termination violated the APA for failure to articulate a "satisfactory explanation"...1078

2.1.2 Whether termination violated the APA for failure to provide explanations in the Federal Register...1084

2.1.3 Whether termination violated the APA for failure to take into account "serious reliance interests"...1085

2.1.4 Whether termination violated the APA for failure to "consider an important aspect of the problem"...1087

2.1.5 Whether DHS's decision to stop processing CAM Program applications from January 2017 to August 2017 was a "secret shutdown" of the Program that violated the APA...1088

2.2 Rescinding Conditional Approvals of Parole...1089

3.DueProcess...1091

4.EqualProtection...1093

5.EquitableEstoppel...1096

CONCLUSION...1096

INTRODUCTION

Under the Immigration and Nationality Act("INA"), the Secretary of Homeland Security has discretion to parole foreign nationals into the United States "temporarily" and "only on a case-by-case basis for urgent humanitarian reasons or significant public benefit[.]"

8 U.S.C. § 1182(d)(5)(A).Parole does not constitute admission in a valid immigration or nonimmigrant status, but it allows a foreign national to enter and physically be present in the United States.

In 2014, the government instituted a program called the Central American Minors ("CAM") Program, which allowed parents who were lawfully present in the United States to apply to bring their children and other qualifying family members in three countries — Honduras, Guatemala, and El Salvador, collectively known as the "Northern Triangle" — to reunite with them in the United States.A goal of the Program was to discourage children from making the long and dangerous journey from the Northern Triangle to the United States to try to reunite with their parents; the Program sought to achieve this goal by allowing applicant parents to apply for their beneficiary children while their children remained in their original countries.¹

The CAM Program had two components: a refugee component and a parole component.U.S. Citizenship and Immigration Services ("USCIS"), an agency within the U.S. Department of Homeland Security("DHS"), first evaluated beneficiaries to see if they qualified for refugee status (which, among other things, requires persecution or a well-founded fear of persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion").If the beneficiaries qualified, USCIS referred them for approval as refugees under the CAM Refugee Program.If they did not qualify, USCIS automatically considered them for parole into the United States under the CAM Parole Program.

By the end of 2016, USCIS had interviewed over 5,500 beneficiaries.It approved 99% for either refugee resettlement or parole under the CAM Program: it approved approximately 30% interviewed beneficiaries as refugees and approximately 99% of the remaining beneficiaries (69% out of 70%) for parole.Over 1,335 beneficiaries arrived in the United States.

In January 2017, following a change in presidential administrations, incoming president Donald Trump issued an Executive Order that (among other things) directed the Secretary of Homeland Security to "take all appropriate action" to ensure that DHS exercised its parole authority "only on a case-by-case basis" and "only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole."DHS stopped processing CAM Program applications — including the applications for beneficiaries who had been conditionally approved for parole and were awaiting processing to finalize their arrangements to travel to the United States — and began a review of the CAM Parole Program.In August 2017, DHS announced that it was terminating the CAM Parole Program.It also announced that it was rescinding parole for the approximately 2,700 beneficiaries who had been conditionally approved for parole but who had not yet traveled to the United States.²It stated that those individuals, and other individuals who wanted to apply for parole, could still do so independent of the CAM Parole Program but that it would no longer award parole through the Program.

The plaintiffs in this case — applicant parents lawfully residing in the United States who applied to the CAM Program, their beneficiary children in Northern Triangle countries, and the nonprofit immigrant-rights organization CASA — filed this putative class-action lawsuit against President Trump, DHS, USCIS, the Secretary of Homeland Security, the Director of USCIS, the State Department, the Secretary of State, and the United States, alleging that the government's termination of the CAM Parole Program and its rescinding of conditional approvals of parole were unlawful.The plaintiffs bring the following four categories of claims:

1. claims under the Administrative Procedure Act("APA"), arguing that the government's termination of the CAM Parole Program and rescinding of conditional approvals for parole were arbitrary and capricious,

2. a claim under the Due Process Clause, arguing that the applicant-parent plaintiffs have a constitutionally protected liberty interest in the companionship and society of their family members in Central America, and that the government deprived them of this liberty interest without due process by terminating the CAM Parole Program in an arbitrary, irrational, and unlawful manner,

3. a claim under the equal-protection component of the Due Process Clause, arguing that the government's termination of the CAM Parole Program was substantially motivated by discriminatory animus by President Trump and the Trump Administration toward Latinos, and

4. a claim for equitable estoppel, arguing that the government engaged in affirmative misconduct by publicly representing between January 2017 and August 2017 that the CAM Parole Program was still in operation, when it actually had been secretly terminated.

The putative class is all applicants and beneficiaries who applied for the CAM Program before August 16, 2017, who were denied refugee status under the CAM Refugee Program, and who then were denied parole under the CAM Parole Program due to its termination.³

The plaintiffs moved for a preliminary injunction (1) enjoining the government from terminating the CAM Parole Program and (2) requiring the government to reinstate the conditional approvals of parole that were rescinded pursuant to that termination.The defendants moved to dismiss the complaint.

This order addresses the defendants' motion to dismiss.(The court will address the plaintiffs' motion for a preliminary injunction in a separate order.)The court denies the motion to dismiss the plaintiffs' APA claims as they relate to the government's mass-rescinding conditional approvals of parole made under the CAM Parole Program.In all other respects, the court grants the defendants' motion to dismiss.

STATEMENT

1.The Immigration and Nationality Act and Parole Generally

The INA provides that the Secretary of Homeland Security "may, [subject to certain exceptions], in [her] discretion parole into the United States temporarily under such conditions as [s]he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States[.]"⁴8 U.S.C. § 1182(d)(5)(A).The INA also provides that "such parole of such alien shall not be regarded as an admission of the alien[.]"Id.The INA further provides that "when the purposes of such parole shall, in the opinion of the [Secretary], have been served[,] the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States."Id.The Secretary's parole authority is in turn delegated to various DHS officials.8 C.F.R. § 212.5(a).

2.The Complaint

2.1 September–December 2014: The Creation of the CAM Parole Program

The government first proposed the CAM Program on September 18, 2014, as part of the President's annual recommendations to Congr...