Ramos et al v. Nielsen et al
Filing
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ORDER - ABBREVIATED ORDER by Judge Edward M. Chen Denying 20 Defendants' Motion to Dismiss. (emcsec, COURT STAFF) (Filed on 6/25/2018)
Case 3:18-cv-01554-EMC Document 34 Filed 06/25/18 Page 1 of 5
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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CRISTA RAMOS, et al.,
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Plaintiffs,
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KIRSTJEN NIELSEN, et al.,
Docket No. 20
Defendants.
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United States District Court
Northern District of California
ABBREVIATED ORDER DENYING
DEFENDANTS’ MOTION TO DISMISS
v.
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Case No. 18-cv-01554-EMC
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After careful consideration of the parties‟ submissions and arguments at the hearing, the
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Court issues this abbreviated disposition DENYING Defendants‟ motion to dismiss. A reasoned
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opinion setting forth the Court‟s analysis will be issued separately in the near future.
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A.
Jurisdictional Bar
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The Court has subject matter jurisdiction to hear this case. The Temporary Protected
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Status (“TPS”) statute provides that “[t]here is no judicial review of any determination of the
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Attorney General with respect to the designation, or termination or extension of a designation, of a
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foreign state under this subsection.” 8 U.S.C. § 1254a(b)(5)(A) (emphasis added). That
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jurisdictional bar does not apply to Plaintiffs‟ claims. There is a strong presumption that agency
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actions and constitutional claims are reviewable in federal court absent clear and convincing
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evidence of Congressional intent to the contrary. See, e.g., Webster v. Doe, 486 U.S. 592, 603
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(1988); KOLA, Inc. v. U.S., 882 F.2d 361, 363 (9th Cir. 1989). Properly construed, the word
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“determination” in Section 1254a refers to an individual designation, termination, or extension of
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a designation with respect to a particular country, not to Defendants‟ adoption of general policies
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or practices employed in making such determinations. See, e.g., McNary v. Haitain Refugee Ctr.,
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Inc., 498 U.S. 479, 492 (1991) (“[T]he reference to „a determination‟ describes a single act rather
Case 3:18-cv-01554-EMC Document 34 Filed 06/25/18 Page 2 of 5
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than a group of decisions or a practice or procedure employed in making decisions.”); Reno v.
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Catholic Social Servs., Inc., 509 U.S. 43, 55 (1993) (statute barring judicial review of “a
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determination” does not “preclude[] [an] action challenging the legality of a regulation”); see also
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Proyecto San Pablo v. I.N.S., 189 F.3d 1130, 1138 (9th Cir. 1999). Plaintiffs challenge
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Defendants‟ adoption of a new rule employed in the evaluation of whether to extend or terminate a
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TPS designation. They do not challenge the substantive factual determinations to terminate TPS
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status of the four countries. Plaintiffs‟ challenge is not to a “determination” within the scope of
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Section 1254a. Defendants‟ motion to dismiss for lack of subject matter jurisdiction under Rule
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12(b)(1) is DENIED.1
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B.
Administrative Procedure Act Claim (Fourth Count): Plaintiffs allege that Defendants
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United States District Court
Northern District of California
Claims on the Merits
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departed from prior agency practice by changing whether (or the extent to which) subsequent
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events are considered when evaluating whether to terminate or extend TPS status. The
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Administrative Procedure Act requires an agency to provide a “reasoned explanation” for
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departures from prior agency practice or policies. See, e.g., Federal Commc’ns Comm’n v. Fox
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Televisions Stations, Inc., 556 U.S. 502, 515-16 (2009); Cal. Public Utilities Comm’n v. Fed.
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Energy Reg. Comm’n, 879 F.3d 966, 977 (9th Cir. 2018) (a longstanding policy may be “evinced
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in a series of . . . decisions and statements”). Defendants have not provided such an explanation as
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they deny any change has occurred. Plaintiffs plausibly allege that a change has occurred and thus
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state a claim of non-compliance with the APA. The Court DENIES Defendants‟ motion to
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dismiss.
Equal Protection Claim (Second Count): Plaintiffs allege that both: (1) the decision to
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terminate TPS for Haiti, Nicaragua, El Salvador, and Sudan, and (2) Defendants‟ alleged change
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in rule, were motivated by racial animus. Government action motivated by racial animus is
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subject to strict scrutiny and courts may look beyond a facially-neutral policy to consider, e.g.,
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Defendants‟ challenge to jurisdiction is legal, not fact-based: Defendants contend that even if
there was a change in the Department‟s interpretation and application of TPS criteria, jurisdiction
would be barred as a matter of law under § 1254a(b)(5)(A).
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Case 3:18-cv-01554-EMC Document 34 Filed 06/25/18 Page 3 of 5
“[t]he specific sequence of events leading up [to] the challenged decision,” “[d]epartures from the
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normal procedural sequence,” “and “statements by members of the decisionmaking body.” See
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Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267-68 (1977). Although the
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Secretary of Homeland Security is the decisionmaker designated by statute, Plaintiffs have
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plausibly pled that President Trump made statements which a reasonable observer could construe
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as evidence of racial bias animus against non-white immigrants, and that he thereafter influenced
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and tainted DHS‟s decision-making process with regard to TPS. Cf. Poland v. Chertoff, 494 F.3d
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1174 (9th Cir. 2007) (in employment discrimination case, subordinate‟s animus may be imputed to
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the decisionmaker when the subordinate influenced or was involved in the decisionmaking
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process). The prohibition on racial animus under the Due Process clause‟s Equal Protection
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United States District Court
Northern District of California
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guarantee applies to executive action in the immigration context. See Kwai Fun Wong v. U.S., 373
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F.3d 952, 974-75 (9th Cir. 2004) (“We cannot countenance that the Constitution would permit
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immigration officials to engage in such behavior as rounding up all immigration parolees of a
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particular race solely because of a consideration such as skin color. Although Congress has
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plenary power to create immigration law, and the judicial branch must defer to executive and
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legislative branch decisionmaking in that area, that power is subject to important limitations.”).
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As to the claim that the scope of judicial review is very narrow where the challenge is to selective
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prosecution under Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (“AADC”),
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AADC only applies to challenges to decisions whether to criminally prosecute or deport an alien.
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Defendants‟ termination of TPS “do[es] not implicate the Attorney General‟s . . . discretion to
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choose to deport one person rather than another among those who are illegally in the country.”
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See Kwai Fun Wong, 373 U.S. at 970.
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The Court recognizes that the law in this area is developing and decisions from the
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Supreme Court and Courts of Appeals could alter the equal protection analysis. The Court may
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order supplemental briefing or entertain a motion for reconsideration if appropriate. Defendants‟
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motion to dismiss is provisionally DENIED.
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Due Process Claims of U.S. Citizen Children and TPS-Holders (First and Third
Counts): Plaintiffs have a liberty interest protected by the Fifth Amendment not to be removed
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Case 3:18-cv-01554-EMC Document 34 Filed 06/25/18 Page 4 of 5
from the United States, not to be separated from their families, and not to be forced to make a
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choice between the two. See Bridges v. Wixon, 326 U.S. 135, 155 (1945) (observing that
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deportation “visits a great hardship on the individual and deprives him of the right to stay and live
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in this land of freedom”); Ching v. Mayorkas, 725 F.3d 1149, 1157 (9th Cir. 2013) (“The right to
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live with and not be separated from one‟s immediate family is a right that ranks high among the
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interests of the individual and that cannot be taken away without procedural due process.”
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(quotation omitted)); Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008) (recognizing
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protected liberty interest in “[f]reedom of personal choice in matters of marriage and family life is,
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of course, one of the liberties protected by the Due Process Clause”). However, Plaintiffs have not
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cited any case in which the government‟s countervailing interest in enforcing immigration laws in
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United States District Court
Northern District of California
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a lawful and otherwise constitutional manner has been overcome by individual liberty interests in
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a substantive due process challenge. See, e.g., Gebhardt v. Nielsen, 879 F.3d 980, 988 (9th Cir.
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2018). Although it is questionable whether Plaintiffs can establish such a broad Due Process
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claim, to the extent Plaintiffs state a claim that the Department‟s actions in this case violate Equal
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Protection and/or the APA, they have commensurately stated Due Process claims; the government
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has no justifiable interest in unlawful law enforcement. Cf. Smith v. City of Fontana, 818 F.2d
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1411, 1419-20 (9th Cir. 1987) (state had “no legitimate interest in interfering with [protected]
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liberty interest [in familial relations] through the use of excessive force by police officers”),
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overruled on other grounds, Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n.1 (9th Cir.
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1999); Diaz v. Brewer, 656 F.3d 1008, 1015 (9th Cir. 2011) (noting that “a bare . . . desire to harm
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a politically unpopular group [is] not [a] legitimate state interest” (citation and quotation omitted)).
For these reasons, Defendants‟ motion to dismiss is DENIED.
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C.
Production of Administrative Records and Discovery
As stated on the record, Defendants shall produce the administrative records for the TPS
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termination of Sudan and Nicaragua within 10 days, and for El Salvador and Haiti one week later.
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The administrative record is not limited to “formal recommendations.” Rather, the
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“„whole‟ administrative record . . . consists of all documents and materials directly or indirectly
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considered by agency decision-makers and includes evidence contrary to the agency‟s position.”
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Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (citation and quotation
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omitted, emphasis in original). It must “include[] everything that was before the agency pertaining
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to the merits of its decision.” Portland Audobon Soc. v. Endangered Species Comm., 984 F.2d
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1534, 1548 (9th Cir. 1993). It must also include materials “indirectly considered,” i.e., those
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materials relied on by subordinates who directly advised the ultimate decision-maker. See In re
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United States, 875 F.3d 1200, 1207-8 (9th Cir. 2017), reversed on other grounds, 138 S.Ct. 443
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(2017).
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Deliberative material that was relied upon directly or indirectly is presumptively part of the
administrative record. If Defendants invoke the deliberative process privilege, they must produce
a detailed privilege log identifying the excluded material and the basis for privilege with the
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United States District Court
Northern District of California
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administrative record. The parties should note that this privilege is qualified, not absolute, and
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that any assertion thereof will be subject to review accordingly. See Desert Survivors v. U.S.
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Dept. of the Interior, 231 F.Supp.3d 368, 380-86 (N.D. Cal. 2017).
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Finally, as discussed on the record, Defendants shall respond to Plaintiffs‟ Interrogatory
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No. 1 and Requests for Production Nos. 1, 4, 6, and 7 within 14 days of the hearing date. The
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parties shall meet-and-confer with respect to Plaintiffs‟ remaining discovery requests, including
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the scope of a Rule 30(b)(6) deposition.
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This order disposes of Docket Nos. 20 and 28.
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IT IS SO ORDERED.
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Dated: June 25, 2018
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______________________________________
EDWARD M. CHEN
United States District Judge
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