Castanon Nava et al v. Department of Homeland Security et al
Filing
88
MEMORANDUM Opinion and Order. The court denies Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(1) and Federal Rule of Civil Procedure 12(b)(6) 66 . Defendants are directed to file their answers within 28 days. Status hearing set for 3/5/2020 at 9:00 a.m. Signed by the Honorable Rebecca R. Pallmeyer on 1/24/2020. Notice mailed by judge's staff (ntf, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARGARITO CASTAÑON NAVA, et al.
Plaintiffs,
v.
DEPARTMENT OF HOMELAND
SECURITY, et al.,
Defendants.
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Case No. 18 C 3757
Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Five Individual Plaintiffs (Margarito Castañon Nava, John Doe, Miguel Cortes Torres,
Guillermo Hernandez Hernandez, and Erick Rivera Sales) and two Organizational Plaintiffs (the
Illinois Coalition for Immigrant and Refugee Rights and Organized Communities Against
Deportations) filed this putative class action to ensure that Defendant U.S. Immigration and
Customs Enforcement (ICE) "complies with its clear statutory obligations under 8
U.S.C. § 1357(a)(2) when conducting warrantless arrests."
(Second Am. Compl. [58] ¶ 1.) 1
Plaintiffs Nava, Hernandez, and Sales also seek, on behalf of a proposed sub-class, to ensure
that ICE complies with the Fourth Amendment when making traffic stops. Before the court is
Defendants' motion to dismiss the Second Amended Complaint for lack of jurisdiction or, in the
alternative, for failure to state a claim. For the following reasons, Defendants' motion is denied.
BACKGROUND
The court takes the following facts from the allegations in Plaintiffs' Second Amended
1
In addition to ICE, Defendants are the U.S. Department of Homeland Security
(DHS), Acting DHS Secretary Kevin McAleenan, Acting ICE Director Ronald D. Vitiello, and Field
Office Director of the ICE Chicago Field Office Ricardo Wong. (On April 11, 2019, pursuant to
Federal Rule of Civil Procedure 25(d), Plaintiffs substituted Acting DHS Secretary McAleenan for
former DHS Secretary Kirstjen Nielsen. (See Pls.' Opp. to Defs.' Mot. to Dismiss ("Pls.' Opp.")
[74], 1 n.1.) On December 18, 2018, pursuant to Federal Rule of Civil Procedure 25(d), Plaintiffs
substituted Acting ICE Director Vitiello for former Acting ICE Director Thomas D. Homan. (See
Second Am. Compl. n.1.).)
Complaint.
Defendant DHS is responsible for enforcing federal laws governing border control,
customs, trade, and immigration. (Second Am. Compl. ¶ 24.) Defendant ICE is the component
of DHS charged with enforcing federal immigration law. (Id. ¶ 25.) Under the Immigration and
Nationality Act (INA), immigration officials may conduct warrantless arrests, but only if the officials
have "reason to believe" that the potential arrestee (1) "is in the United States in violation of [an
immigration] law or regulation" and (2) "is likely to escape before a warrant can be obtained for
his arrest." 8 U.S.C. § 1357(a)(2). Courts equate "reason to believe" under the INA with probable
cause.
See, e.g., United States v. Cantu, 519 F.2d 494, 496 (7th Cir. 1975); Moreno v.
Napolitano, 213 F. Supp. 3d 999, 1007 (N.D. Ill. 2016) ("[T]he phrase 'reason to believe'
in § 1357(a)(2) requires the equivalent of probable cause, see Cantu, 519 F.2d at 496, which in
turn requires a particularized inquiry.").
Plaintiffs allege that "[i]n recent months, ICE has been conducting indiscriminate, largescale immigration sweeps, principally targeting states and localities that have adopted so-called
'sanctuary laws,' which limit state and local participation in civil immigration enforcement."
(Second Am. Compl. ¶ 29.) This lawsuit arises from a large-scale ICE enforcement action that
occurred in the Chicago area during a week-long period in May 2018. (Id. ¶ 32.) Plaintiffs allege
that ICE arrested 156 people during that time. (Id.) They further allege that by ICE's own account,
106 of the arrests were "at-large collateral arrests"—meaning "arrests of individuals for whom ICE
lack[ed] an arrest warrant." (Id. ¶¶ 4, 32 (internal quotation marks omitted).) According to the
Second Amended Complaint, the collateral arrests included those of the Individual Plaintiffs in
this action, all of whom have lived in the Chicago area for at least four and as many as thirty years.
(See id. ¶¶ 5, 8, 17-21.) Plaintiffs allege that ICE arrested and detained each Individual Plaintiff
"without a warrant or an individualized determination that he is a flight risk," in violation of 8
U.S.C. § 1357(a)(2). (Id. ¶¶ 17-21.) They allege, further, that ICE's actions reflect a widespread
policy and practice of violating the INA in this manner.
2
In Count I of the Second Amended Complaint, Plaintiffs assert a claim for violations of the
Administrative Procedure Act (APA), 5 U.S.C. §§ 101-913, which governs the conduct of federal
administrative agencies. Specifically, Plaintiffs allege that "ICE's policy and practice of making
warrantless arrests without the required individualized flight risk analysis is 'final agency action'
that is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'"
(Second Am. Compl. ¶ 97 (quoting 5 U.S.C. §§ 704, 706(2)(A)). Plaintiffs also allege that the
same policy and practice is "'final agency action' that is 'in excess of statutory jurisdiction,
authority, or limitations' under § 1357(a)(2)." (Second Am. Compl. ¶ 98 (quoting 5 U.S.C. §§ 704,
706(2)(C)).)
In addition to their APA claim, Plaintiffs assert a claim under the Fourth Amendment of the
U.S. Constitution. (See Second Am. Compl., Count II.) This claim is based on ICE's traffic stops
of four Individual Plaintiffs, which ultimately led to their arrests and detention. (See id. ¶¶ 37, 42,
47, 52, 101-113.) 2 Plaintiffs allege that ICE officers have authority to stop a vehicle only if they
have "reasonable suspicion of an immigration violation" by a driver or passenger. (Id. ¶¶ 7375 (citing 8 U.S.C. §§ 1357(a)(4), (a)(5), which describe circumstances in which ICE officials can
make criminal arrests and do not "include the authority to issue traffic citations").) According to
the Second Amended Complaint, ICE officers stopped the Individual Plaintiffs without reasonable
suspicion that they, or any other individuals in the vehicles, had violated an immigration law. (See,
e.g., id. ¶¶ 104, 106, 108.) Plaintiffs allege, further, that the ICE officers stopped the Individual
Plaintiffs' vehicles merely because the drivers and passengers therein appeared to be Hispanic.
(See, e.g., id. ¶¶ 9, 104, 108.) And Plaintiffs allege that ICE's actions reflect a policy and practice
of violating the Fourth Amendment while conducting traffic stops. (See id. ¶¶ 109-110.)
As indicated above, Plaintiffs in this action include not only five individuals, but also two
2
ICE officers stopped the fifth Individual Plaintiff while he was walking down a
sidewalk. (See id. ¶ 9.)
3
organizations: the Illinois Coalition for Immigrant and Refugee Rights (ICIRR) and Organized
Communities Against Deportations (OCAD).
ICIRR is a nonprofit, statewide organization
"dedicated to promoting the rights of immigrants and refugees to full and equal participation" in
"civic, cultural, social, and political life." (Second Am. Compl. ¶ 22.) Its work includes "educat[ing]
and organiz[ing] immigrant and refugee communities to assert their rights; promot[ing] citizenship
and civic participation; monitor[ing], analyz[ing], and advocat[ing] on immigrant-related issues;
provid[ing] support and information during times of crisis; and educat[ing] the public about the
contributions of immigrants and refugees." (Id.) OCAD, too, is a nonprofit organization. (Id. ¶ 23.)
It "organizes against deportations, detention, criminalization, and incarceration, of black, brown,
and immigrant communities in Chicago."
(Id.)
Among other things, OCAD participates in
"grassroots organizing, legal and policy work, [and] direct action" to "defend its communities,
challenge the institutions that target and dehumanize them," and help "its communities thrive,
work, and organize with happiness and without fear." (Id.) Like ICIRR, OCAD "provid[es]
information and education about [community members'] rights and provid[es] support during times
of crisis." (Id.)
ICIRR and OCAD (hereinafter, the Organizational Plaintiffs) allege that they "have had to
divert considerable, additional resources to" counteract the effects of Defendants' allegedly illegal
actions. (Id. ¶¶ 94, 112; see also id. ¶¶ 6, 72.) For example, according to the Second Amended
Complaint, a telephone hotline that the Organizational Plaintiffs operate jointly "has experienced
nearly a 50% increase in call volume from those seeking help trying to find loved ones detained
by ICE, those seeking information about their rights, and those reporting the increased ICE raids
throughout the community." (Id. ¶ 72; see also June 2018 Decl. of Lawrence Benito, CEO and
Executive Director of ICIRR, Ex. D to Second. Am. Compl. ("Benito Decl.") [58-5], ¶ 12 ("In the
last month alone we have received 836 inbound calls, which is an increase of almost 50% over
the previous month when no raids were reported."); June 2018 Decl. of Xanat Sobrevilla, CoFounder of OCAD, Ex. E to Second Am. Compl. ("Sobrevilla Decl.") [58-6] ¶¶ 7-9 (stating that the
4
marked increase in calls to the hotline began on May 19, 2018).) Plaintiffs allege that to answer
the calls and provide the support that the callers request, the Organizational Plaintiffs have had
to "hire and train new staff," give additional "Know Your Rights" presentations, and "develop other
strategies to defend the rights of the communities they serve." (Second Am. Compl. ¶ 72; see
Benito Decl. ¶ 12 (stating that "historically, the hotline has been staffed by 3 operators from
OCAD," but that "as a result of the flood of calls, we have had to pull multiple ICIRR staff members
off other duties to deal with call backlogs. We are also now in the process of trying to train up to
10 more operators, so that we can meet the needs of affected families in light of ICE's escalating
enforcement"); Benito Decl. ¶ 13 (stating that ICIRR has received more community requests for
"Know Your Rights" programs "[a]s a result of the increase in ICE enforcements," and has had to
"expend more personnel time" and "re-work" the programs to meet those needs).)
Plaintiffs further allege that to meet the increased need for services, the Organizational
Plaintiffs “have been forced to seek emergency donations from their benefactors," an effort which
has imposed additional cost in “time and resources."
(Second Am. Compl. ¶ 72; see also
Sobrevilla Decl. ¶ 12 (stating that OCAD sought emergency grants to hire additional staff who
could answer telephone hotline calls and "follow up with the families"); Benito Decl. ¶ 17 (ICIRR
has devoted "[o]ver 20 hours of staff time . . . to preparing grant applications and funding
pitches").) Finally, Plaintiffs allege that "[t]he increased need for [the Organizational Plaintiffs']
services as a result of ICE's tactics has caused [them] to either place a hold on or abandon [their]
efforts on other projects and programming . . . ." (Second Am. Compl. ¶ 72; see also, e.g.,
Sobrevilla Decl. ¶ 12 (stating that OCAD's "staff had to divert their time and resources to
answering [hotline] calls instead of focusing on [their] planned work" concerning a "Chicago Gang
Database").)
Plaintiffs seek to represent a class (the Main Class) under Federal Rule of Civil Procedure
23(b)(2) comprising "[a]ll current and future persons whom ICE arrests or has arrested without
having a warrant, within the area of responsibility of the ICE Chicago Field Office, who remain
5
detained." (Id. ¶ 82.) Plaintiffs Nava, Hernandez, and Sales—each of whom ICE arrested and
detained following a traffic stop—also seek to represent a sub-class under Federal Rule of Civil
Procedure 23(c)(5) comprising "[a]ll members of the Main Class who were subject to a traffic stop
initiated by ICE officers within the area of responsibility of the Chicago Field Office." (Id. ¶ 83.)
Plaintiffs seek declaratory relief, including an order stating that the challenged conduct violates
the INA and the Fourth Amendment; injunctive relief, including orders prohibiting Defendants from
engaging in the challenged conduct and requiring them to adopt policies that will ensure they
follow the relevant laws; and attorneys' fees and costs. (See id., Prayer for Relief.)
In their briefs on this motion, Defendants report that ICE executed arrest warrants for the
Individual Plaintiffs after they took them into custody, and later initiated proceedings to remove
each of them from the United States. (Defs.' Mem. in Supp. of Mot. to Dismiss ("Defs.' Mot.") [661], 4.) ICE ultimately released the Individual Plaintiffs from custody on bond, but Defendants
assert that “[n]one of the five named plaintiffs is a citizen or national of the United States, and
they are all unlawfully present in the United States." (Id.) Plaintiffs do not respond to these
contentions. and the court presumes that the Individual Plaintiffs' removal proceedings remain
pending.
DISCUSSION
A.
Defendants' Rule 12(b)(1) Motion
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the
existence of subject matter jurisdiction. See FED. R. CIV. P. 12(b)(1). The party invoking federal
jurisdiction bears the burden of establishing that jurisdiction is proper. See Remijas v. Neiman
Marcus Grp., LLC, 794 F.3d 688, 691 (7th Cir. 2015); Schmidt v. Waterstone Bank SSB, 753 F.
App'x 414, 416 (7th Cir. 2019). When a defendant challenges the sufficiency of the allegations
concerning subject matter jurisdiction, the court accepts all well-pleaded factual allegations as
true and draws all reasonable inferences in favor of the plaintiff. See Remijas, 794 F.3d at 691;
Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 2009); see also Silha
6
v. ACT, Inc., 807 F.3d 169, 174 (7th Cir. 2015) (stating that "when evaluating a facial challenge
to subject matter jurisdiction under Rule 12(b)(1), a court should use Twombly-Iqbal's 'plausibility'
requirement, which is the same standard used to evaluate facial challenges to claims under Rule
12(b)(6)"). If a defendant factually challenges the basis for federal jurisdiction, however, the court
"may properly look beyond the jurisdictional allegations of the complaint and view whatever
evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction
exists." Apex Digital, 572 F.3d at 444; see also id. (explaining that "a factual challenge lies where
the complaint is formally sufficient but the contention is that there is in fact no subject matter
jurisdiction" (internal quotation marks omitted)).
"When facts relevant to subject-matter
jurisdiction are disputed, the plaintiff must establish those facts by a preponderance of the
evidence." Miller v. Fryzel, 499 F. App'x 601, 603 (7th Cir. 2013); see also Laurens v. Volvo Cars
of N. Am., LLC, 868 F.3d 622, 625 (7th Cir. 2017) ("If a defendant raises a factual challenge to
standing, the plaintiff bears the burden of proving standing by a preponderance of the evidence.").
1.
Subject Matter Jurisdiction Under 8 U.S.C. § 1252(b)(9)
Defendants argue that Section 1252(b)(9) of the INA, in conjunction with Section
1252(a)(5), deprives this court of jurisdiction over Plaintiffs' claims. Section 1252(a)(5) provides,
in relevant part, that "a petition for review filed with an appropriate court of appeals . . . shall be
the sole and exclusive means for judicial review of an order of removal entered or issued under
any provision of this chapter." 8 U.S.C. § 1252(a)(5). Section 1252(b)(9), in turn, provides that
"[j]udicial review of all questions of law and fact, including interpretation and application of
constitutional and statutory provisions, arising from any action taken or proceeding brought to
remove an alien from the United States . . . shall be available only in judicial review of a final order
under this section." 8 U.S.C. § 1252(b)(9). Defendants effectively characterize Plaintiffs' claims
as raising questions of law and fact that arise from actions taken to remove non-citizens. (See,
e.g., Defs.' Mot. 11.) As a result, Defendants maintain, Plaintiffs can obtain judicial review of their
claims only by filing a petition for review of a final removal order with a U.S. court of appeals.
7
(See id. at 8-13.) Plaintiffs, on the other hand, contend that their claims do not fall within Section
1252(b)(9)'s jurisdictional bar because they "challenge ICE's illegal actions that occurred before
the removal process began." (Pls.' Opp. 5.) For the following reasons, the court concludes that
Section 1252(b)(9) does not operate as a jurisdictional bar in this case.
The U.S. Supreme Court recently addressed the jurisdiction-channeling function of
Section 1252(b)(9) in Jennings v. Rodriguez, 138 S. Ct. 830 (2018). In a three-Justice plurality
opinion written by Justice Alito, the Court held that Section 1252(b)(9) did not deprive it of
jurisdiction over the plaintiffs' claims that they were entitled to periodic bond hearings while they
were detained for removal proceedings. See id. at 839-40. 3 Justice Alito stated, first, that the
Court would "assume for the sake of argument that the actions taken with respect to all [plaintiffs],"
including their detention, "constitute 'action[s] taken . . . to remove [them] from the United States.'"
Id. at 840 (quoting 8 U.S.C. § 1252(b)(9)). "On that assumption," Justice Alito continued, "the
applicability of § 1252(b)(9) turns on whether the legal questions that [the Court] must decide
'aris[e] from' the actions taken to remove" the plaintiffs. Id. at 840. He concluded that Section
1252(b)(9) did not strip the Court of jurisdiction because the plaintiffs were not (1) "asking for
review of an order of removal"; (2) "challenging the decision to detain them in the first place or to
seek removal"; or (3) "challenging any part of the process by which their removability [would] be
determined." Id. at 841; see also Nielsen v. Preap, 139 S. Ct. 954, 961-62 (2019) (three-Justice
3
Chief Justice Roberts and Justice Kennedy joined Justice Alito's opinion. On the
merits, the Court reversed the Ninth Circuit's determination that Sections 1225(b), 1226(a), and
1226(c) of the INA "limit the permissible length of an alien's detention without a bond hearing."
Jennings, 138 S. Ct. at 842. Justices Breyer, Ginsburg, and Sotomayor dissented on the merits
but agreed that Section 1252(b)(9) did not deprive the Court of jurisdiction. See id. at 876 (Breyer,
J., dissenting). Justices Thomas and Gorsuch concurred in part and concurred in the judgment
but opined that the Court lacked jurisdiction. See id. at 855. And Justice Kagan took no part in
deciding the case. A majority of the Court, therefore, agreed that it had jurisdiction in the
circumstances presented, but the Court's reasoning was fractured. The dissenting Justices
interpreted Section 1252(b)(9) more narrowly than Justice Alito; in their view, the provision applies
only when claims seek review of an order of removal under Section 1252(a)(1). See id. at 876
(Breyer, J., dissenting).
8
plurality) (where plaintiffs' claims had these same three characteristics, Section 1252(b)(9) did not
deprive the Court of jurisdiction to decide whether "criminal aliens who are not arrested
immediately upon release are thereby exempt from mandatory detention under [8
U.S.C. § 1226(c)]").
Justice Alito noted that the Court was not providing a "comprehensive interpretation" of
Section 1252(b)(9). Jennings, 138 S. Ct. at 841. And he cautioned against reasoning that
questions of law and fact "'aris[e] from' actions taken to remove the aliens in the sense that the
aliens' injuries would never have occurred if they had not been placed in detention." Id. at 840.
Such an "expansive" and "extreme" interpretation of Section 1252(b)(9), he stated, would create
absurd results—such as "cramming judicial review" of Bivens claims "based on allegedly
inhumane conditions of confinement" "into the review of final removal orders." Id. 4 An overly
expansive interpretation of the provision "would also make claims of prolonged detention
effectively unreviewable." Id. A narrower interpretation of the provision, Justice Alito added, finds
support in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999). There,
the Court construed "arising from" in Section 1252(g) of the INA to reference only the "three
specific actions" listed in the provision rather than "sweep in any claim that can technically be said
to 'arise from'" those three actions. Jennings, 138 S. Ct. at 840 (citing Reno, 525 U.S. at 482-83).
Justice Thomas would have dismissed the Jennings plaintiffs' claims for lack of
jurisdiction. See Jennings, 138 S. Ct. at 855 (Thomas, J., concurring in part and concurring in
the judgment). In his view, Section 1252(b)(9)'s jurisdictional bar applied "because detention is
an 'action taken . . . to remove' an alien" and "even the narrowest reading of 'arising from' must
cover claims that directly challenge such actions." Id. at 855 (quoting 8 U.S.C. § 1252(b)(9)).
4
In a Bivens action, a plaintiff can file a lawsuit for damages when a person acting
under color of federal law allegedly deprived him or her of a constitutionally protected right. See
generally Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971); see also, e.g., Case v. Milewski, 327 F.3d 564, 568 (7th Cir. 2003).
9
Justice Alito’s opinion expressly rejected this position, reiterating that "[t]he question is not
whether detention is an action taken to remove an alien but whether the legal questions in this
case arise from such an action." Id. at 841 n.3. The legal questions that the Jennings plaintiffs
raised, Justice Alito stated, "are too remote from the actions taken to fall within the scope
of § 1252(b)(9)." Id.
Defendants argue that Section 1252(b)(9) operates as a jurisdictional bar in this case, first,
because "the questions raised by Plaintiffs—whether ICE's arrests violated the Fourth
Amendment or INA—challenge 'the decision to detain them in the first place or to seek removal.'"
(Defs.' Mot. 11 (quoting Jennings, 138 S. Ct. at 841).) Defendants emphasize that Plaintiffs'
claims differ from those in Jennings because they do not "challeng[e] the procedural rights of
detainees or circumstances of detention." (Defs.' Mot. 11 (citing, inter alia, Aguilar v. U.S.
Immigration & Customs Enforcement Chi. Field Office, 346 F. Supp. 3d 1174, 1184 (N.D. Ill. 2018)
(holding that because plaintiffs challenged only "the circumstances of their detention, § 1252(b)(9)
[did] not apply")).) Plaintiffs respond that Section 1252(b)(9) does not deprive the court of
jurisdiction because Plaintiffs do not "challenge the decision to initiate the removal process" nor
any other aspect of removal proceedings. (Pls.' Opp. 5.) "Rather, [they] challenge ICE's illegal
actions that occurred before the removal process began." (Id.) The Seventh Circuit has not yet
applied or interpreted the jurisdictional holding in Jennings. Based on the authority that is
available, however, the court finds Plaintiffs' argument more persuasive.
Plaintiffs allege that ICE made traffic stops based solely on race-based assumptions that
drivers and passengers were non-citizens, in violation of the Fourth Amendment. Accepting this
allegation as true, the stops were illegal and their purpose was, at best, to investigate whether
random individuals were removable, when it was equally likely that they were U.S. citizens. An
illegal stop conducted before the government has any legitimate reason to believe that the subject
is removable cannot be an "action taken . . . to remove an alien . . . under" the INA.
8
U.S.C. § 1252(b)(9) (emphasis added). Plaintiffs also allege that ICE violated Section 1357(a)(2)
10
of the INA when it effectuated warrantless arrests without conducting the statutorily required flightrisk analysis. This claim constitutes a challenge to conduct that, Plaintiffs assert, exceeds the
bounds of what Congress authorized under the INA. Significantly, in Jennings, the Court's
discussion of detention as an action taken to remove a non-citizen appears to have contemplated
lawful detention. See Jennings, 138 S. Ct. at 854, 855 (Thomas, J., concurring in part and
concurring in the judgment) (stating that "detention during removal proceedings" is
"congressionally authorized" and that "[t]he phrase 'any action taken . . . to remove an alien from
the United States' must at least cover congressionally authorized portions of the deportation
process that necessarily serve the purpose of ensuring an alien's removal" (quoting 8
U.S.C. § 1252(b)(9))); id. at 841 n.3 (Alito, J.) (assuming, for the sake of argument, that detention
is an action taken to remove a non-citizen for purposes of Section 1252(b)(9)). Crediting Plaintiffs'
allegation that ICE detained them in violation of the INA, their challenge is not to congressionallyauthorized action taken for the purpose of removal, and Section 1252(b)(9) therefore does not
operate as a jurisdictional bar. See Tun-Cos v. Perrotte, No. 1:17-cv-943 (AJT/TCB), 2018 WL
3616863, at *6 (E.D. Va. Apr. 5, 2018) (Section 1252(b)(9) did not bar jurisdiction over plaintiffs'
Fourth and Fifth Amendment claims based on illegal targeting, stopping, and searching, including
because the claims challenged actions that were not lawfully aimed at ensuring removal), rev'd
and remanded on other grounds, 922 F.3d 514 (4th Cir. 2019).
Even assuming that the stops and detentions in this case were actions taken to remove
Plaintiffs from the United States under the INA, the factual and legal questions that Plaintiffs raise
are, as Plaintiffs contend, "collateral to the removal process." (Pls.' Opp. 9.) That is, they "are
too remote from" removal actions "to fall within the scope of § 1252(b)(9)," and therefore do not
"arise from" them. Jennings, 138 S. Ct. at 841 n.3. Defendants resist this conclusion, arguing
that Plaintiffs' claims "require an assessment of ICE's evidence of removability for each
individual." (Defs.' Reply [75], 3; see also id. at 3 & n.4 (arguing that because Plaintiffs do not
"challenge ICE's statutory authority generally," but instead "allege that ICE exceeded its authority
11
in specific individuals' cases," the claims "require a case-by-case analysis as to the basis for ICE's
reason to believe that each named plaintiff was present in the United States in violation of the law
at the time of his or her arrest").) As already discussed, however, Plaintiffs' Fourth Amendment
claim concerns conduct by ICE officers that allegedly occurred before they had any reason to
believe that the Individual Plaintiffs had violated an immigration law, and before the government
had initiated removal proceedings against them. In these circumstances, the question whether
ICE's alleged racial profiling violated Plaintiffs' Fourth Amendment rights cannot be said to have
a close relation to removal proceedings, and "cramming judicial review" of that question into an
appellate court's review of a final removal order "would be absurd." Jennings, 138 S. Ct. at 840.
Similarly, Plaintiffs claim that ICE violated the INA by failing to make particularized determinations
that the Individual Plaintiffs were "likely to escape before a warrant [could] be obtained" for their
arrests. 8 U.S.C. § 1357(a)(2). The prescribed particularized determination of a detainee's flight
risk is not substantively related to the question whether a non-citizen can lawfully be removed
from the United States. Rather, Plaintiffs' INA-based claim raises questions of law and fact that
are quite remote from the issue of the Individual Plaintiffs' removability. Section 1252(b)(9),
therefore, does not deprive the court of jurisdiction.
The rationale of Torres-Tristan v. Holder, 656 F.3d 653 (7th Cir. 2011), supports this
conclusion. There, the Seventh Circuit held that it lacked jurisdiction under 8 U.S.C. § 1252(a)(1)
and (a)(5) to review orders by U.S. Citizenship and Immigration Services denying the petitioner's
request for U-Visas and waivers of inadmissibility. Id. at 655. In discussing the contours of its
jurisdiction to review "a final order of removal" under Sections 1252(a)(1) and (a)(5), the Seventh
Circuit stated that "[a]ncillary determinations made outside the context of a removal
proceeding . . . are not subject to direct review." Id. at 658. Although the Seventh Circuit was
interpreting provisions that grant rather than limit jurisdiction, this statement has direct implications
for Section 1252(b)(9). Namely, if a court of appeals may not make "ancillary determinations" on
direct review of a final removal order, then it makes little sense for Section 1252(b)(9) to deprive
12
district courts of jurisdiction over such determinations. See, e.g., Immigration & Naturalization
Serv. v. St. Cyr, 533 U.S. 289, 313 (2001) (stating that the purpose of Section 1252(b)(9) "is to
consolidate judicial review of immigration proceedings into one action in the court of appeals"
(internal quotation marks omitted)). Moreover, the Seventh Circuit implied in dicta that Section
1252(b)(9)'s jurisdictional bar applies whenever a claim is "inextricabl[y] link[ed]" to a removal
order, but not when it is collateral to such an order. See Torres-Tristan, 656 F.3d at 662.
Defendants themselves cite a Ninth Circuit case—which relies on Torres-Tristan—for this very
proposition. (See Defs.' Mot. 8 & n.3 (citing J.E.F.M. v. Lynch, 837 F.3d 1026, 1032 (9th Cir.
2016)).) Here, Plaintiffs' claims are collateral to, not inextricably intertwined with, a removal order.
Defendants contend that just three types of claims are truly "collateral" to the removal
process: claims for ineffective assistance of counsel based on conduct that occurs after a final
order of removal is issued; claims for "unconstitutionally prolonged detention"; and "certain claims
challenging bond procedures." (Defs.' Mot. 8-9 n.3 (stating that the Ninth Circuit has recognized
only these types of "collateral" claims).) The statute itself does not delineate what is "collateral,"
however, and in reversing the Ninth Circuit in Jennings, Justice Alito expressly left the question
of Section 1252(b)(9)'s scope to another day. See Jennings, 138 S. Ct. at 841 (stating that the
Court was not "attempt[ing] to provide a comprehensive interpretation" of the circumstances under
which the provision removes jurisdiction).
Plaintiffs also cite, in addition to Torres-Tristan, two district court cases that are more
directly on point. Although the cases are not binding on this court, their conclusions regarding
the court's jurisdiction over claims similar to Plaintiffs' are instructive. The first case, Roy v. County
of Los Angeles, involved claims concerning immigration detainers. No. CV 12-09012-AB (FFMx),
2018 WL 914773, at *2 (C.D. Cal. Feb. 7, 2018). Immigration detainers are requests that ICE
issues "to federal, state, and local law enforcement agencies," asking those agencies to keep a
detained individual in custody for "up to 48 hours beyond the time he or she would otherwise be
released" so that ICE can "assume custody." Id. The plaintiffs in Roy alleged, among other
13
things, that ICE violates the Fourth Amendment by issuing detainers "based solely upon the use
of . . . electronic databases" that "are inaccurate and incomplete." Id. at *16. They also alleged
that "ICE's practice of issuing detainers without making any assessment of flight risk violates"
Section 1357(a)(2) of the INA. Id. Before Jennings was decided, the court determined that these
claims did not "arise from" removal proceedings, and jurisdiction was not lacking, because the
plaintiffs "were not subject to ongoing removal proceedings at the time that ICE issued detainers
against them, and the detainers were not based upon a final order of removal signed by a judge."
Id. at *18 (emphasis added). Defendants moved for reconsideration of this issue in light of
Jennings, but the district court denied the request, noting the language in Jennings discouraging
an expansive interpretation of "arising from." See Roy, No. CV 12-09012-AB (FFMx), slip op. at
8-9 (C.D. Cal. Apr. 18, 2018). In the second case Plaintiffs cite, also pre-Jennings, the plaintiff
challenged "ICE officers' actions in connection with his arrest, initial detention, and four-hour
interrogation"—actions the officers allegedly took even after they learned that the plaintiff was a
DACA beneficiary and thus could not "be arbitrarily arrested and detained because of [his]
immigration status." Medina v. U.S. Dep't of Homeland Sec., No. C17-218-RSM-JPD, 2017 WL
2954719, at *1, *15 (W.D. Wash. Mar. 14, 2017). 5 The plaintiff also alleged "that in arresting him
and then interrogating him after confirming that he was a DACA beneficiary, the ICE officers were
motivated by racial animus and false assumptions." Id. at *15. The court determined that "[n]one
of these constitutional claims challenge the removal process or a final order of removal," and thus
that it had jurisdiction over them. Id.
Like the plaintiffs in Roy and Medina, Plaintiffs here challenge the allegedly illegal means
through which ICE arrested and detained them before the government had initiated removal
proceedings. Defendants make no mention of Roy or Medina. Instead, they point to CancinoCastellar v. Nielsen, 338 F. Supp. 3d 1107 (S.D. Cal. 2018), where the court determined that it
5
DACA, or Deferred Action for Childhood Arrivals, is a U.S. immigration policy
announced in 2012. See id. at *1-2.
14
lacked jurisdiction under Section 1252(b)(9) to decide whether the Fourth Amendment "permit[s]
the Government to detain individuals without prompt judicial determination of whether probable
cause justifies their detention." Id. at 1115-16 (internal quotation marks omitted). CancinoCastellar does not directly support Defendants’ position because in that case, the plaintiffs sought
"a procedural safeguard by which [their] removability . . . [would be] immediately reviewable by
an [immigration judge]." Id. at 1116 (internal quotation marks omitted). Here, Plaintiffs are not
challenging any aspect of their removability and are not arguing for an institutional safeguard not
called for by statute. (See Pls.' Opp. 5.)
Separately, Defendants argue that Section 1252(b)(9) operates as a jurisdictional bar
because the issues Plaintiffs raise "are cognizable in a petition for review at the end of removal
proceedings." (Defs.' Mot. 11 (citing Cancino-Castellar, 338 F. Supp. 3d at 1114); see also Defs.'
Mot. 12 (arguing that "challenges to the lawfulness of ICE's actions in an arrest are routinely
raised in removal proceedings and reviewed by courts in conjunction with a petition for review of
a final order of removal").) Whatever the availability of review in that context, it does not satisfy
Plaintiffs' concerns here because the government will not necessarily enter final removal orders
against each of the Individual Plaintiffs in this action.
Moreover, the government will not
necessarily even initiate removal proceedings against every individual that Defendants arrest and
detain pursuant to the policies and practices that Plaintiffs challenge. In either scenario, Plaintiffs
would have no opportunity to bring their claims in any forum. Defendants contend that the latter
scenario "is irrelevant because it describes a hypothetical situation not covered by Plaintiffs'
allegations." (Defs.' Reply 4 n.5.) Viewed in the light most favorable to Plaintiffs, however, the
allegations permit an inference that ICE's alleged practices will likely cause at least some U.S.
citizens (or lawful permanent residents) to be stopped and/or detained. Those individuals fall
within the proposed class definitions, and the government would not commence removal
proceedings against them.
The risk that Section 1252(b)(9) would operate in this case to
completely bar, rather than merely channel, certain Plaintiffs' claims is therefore real. And as
15
Justice Alito suggested in Jennings, courts should be reluctant to apply Section 1252(b)(9) when
it would have this effect. See Jennings, 138 S. Ct. at 840 (cautioning against an "expansive"
interpretation of "arising from" because it could make claims "effectively unreviewable," and
recognizing the possibility that a final order of removal might never "be entered in a particular
case," thus "depriving that detainee of any meaningful chance for judicial review"). Here, the risk
that certain Plaintiffs could be precluded from presenting their claims in any forum weighs in favor
of a finding that Section 1252(b)(9) does not deprive the court of jurisdiction.
Plaintiffs, moreover, argue that even if they could raise their claims in proceedings
challenging a final removal order, they would not have a meaningful opportunity to obtain the relief
they seek—specifically, "declarations that ICE violates the constitution and the INA, and
injunctions to prohibit further unconstitutional stops and improper arrests and require ICE to adopt
policies that comply with its legal obligations." (Pls.' Opp. 12.) Defendants cite several cases in
which immigration courts, or appellate courts adjudicating challenges to final removal orders,
considered challenges to ICE's arrest- and detention-related conduct; the availability of those
forums, Defendants suggest, militate against a finding that the court has jurisdiction. (See Defs.'
Mot. 12; Defs.' Reply 4.) But the plaintiffs in every one of those cases challenged ICE's conduct
as a means to suppress evidence concerning their removability. See Immigration & Naturalization
Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1034 (1984); Sanchez v. Sessions, 885 F.3d 782, 786
(4th Cir. 2018); Slavov v. Holder, 501 F. App'x 551, 554-55 (7th Cir. 2013); Oliva-Ramos v.
Attorney Gen. of U.S., 694 F.3d 259, 264, 274 (3d Cir. 2012); Gutierrez-Berdin v. Holder, 618
F.3d 647, 652-53 (7th Cir. 2010); Martinez Camargo v. Immigration & Naturalization Serv., 282
F.3d 487, 489-90, 492-93 (7th Cir. 2002); Matter of Toro, 17 I. & N. Dec. 340, 341-43 (BIA 1980).
As already noted, Plaintiffs in this case do not challenge their removability.
If anything,
Defendants' cited cases reinforce the concept that removal proceedings have a singular focus—
removability—and are not structured to provide declaratory and injunctive relief aimed at systemwide reforms. See, e.g., Lopez-Mendoza, 468 U.S. at 1040 ("[A] deportation hearing is intended
16
to provide a streamlined determination of eligibility to remain in this country, nothing more."); see
also Aguilar v. U.S. Immigration & Customs Enforcement, 510 F.3d 1, 11 (1st Cir. 2007)
("[R]emoval proceedings are confined to determining whether a particular alien should be
deported.")
For the foregoing reasons, the court concludes that Section 1252(b)(9) does not deprive
it of jurisdiction to adjudicate Plaintiffs' claims.
2.
Subject Matter Jurisdiction Under 8 U.S.C. § 1252(g)
Defendants next argue that Section 1252(g) of the INA deprives the court of subject matter
jurisdiction. Section 1252(g) provides, with certain exceptions not applicable here, that "no court
shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the
decision or action by the Attorney General to commence proceedings, adjudicate cases, or
execute removal orders against any alien under this chapter." 8 U.S.C. § 1252(g). According to
Defendants, Section 1252(g) applies here because Plaintiffs "challenge aspects of ICE's decision
to arrest them in order to commence removal proceedings against them." (Defs.' Mot. 14.)
Jennings appears to defeat this argument as well; Justice Alito cautioned that courts should not
interpret Section 1252(g) "to sweep in any claim that can technically be said to 'arise from' the
three listed actions of the Attorney General," but rather should "read the language to refer to just
those three specific actions themselves." Jennings, 138 S. Ct. at 841; see Reno, 525 U.S. at 482
("There are of course many other decisions or actions that may be part of the deportation
process," such as a "decision[] to open an investigation" or "surveil the suspected violator," but
"[i]t is implausible that the mention of three discrete events along the road to deportation was a
shorthand way of referring to all claims arising from deportation proceedings"). Relatedly, the
Supreme Court has stated that "Section 1252(g) was directed against a particular evil: attempts
to impose judicial constraints upon prosecutorial discretion." Reno, 525 U.S. at 485 n.9.
In this case, Plaintiffs challenge "ICE's actions and policies—or lack thereof—regarding
the manner in which it stopped and arrested Plaintiffs." (Pls.' Opp. 13.) This conduct "occurred
17
well before" the government decided to initiate removal proceedings against Plaintiffs (id.), and
therefore does not arise from the prosecutorial decisions listed in Section 1252(g). The cases
Defendants cite in support of its contrary position do not change the court's conclusion because
each of those cases, unlike this one, constituted a challenge to a final removal order. See
Hamama v. Adducci, 912 F.3d 869, 872-73 (6th Cir. 2018); Sharif ex rel. Sharif v. Ashcroft, 280
F.3d 786, 787 (7th Cir. 2002); Botezatu v. Immigration & Naturalization Serv., 195 F.3d 311, 313
(7th Cir. 1999); cf. Silva v. United States, 866 F.3d 938, 939 (8th Cir. 2017) (action "seek[ing]
compensation for harm allegedly arising from an unlawful removal"). The claims in these cases
therefore arose from at least one of the prosecutorial decisions specifically mentioned in Section
1252(g): the execution of a removal order. See, e.g., Sharif, 280 F.3d at 787 (plaintiffs' request
for writ of habeas corpus "that would stop the INS from implementing . . . removal orders," even
if construed as a request for stay of removal, arose from the Attorney General's decision "to
execute a removal order," and the district court properly concluded that it lacked jurisdiction under
Section 1252(g)). Section 1252(g) does not strip the court of jurisdiction over Plaintiffs' claims
here, which do not challenge the government's decision to "commence proceedings, adjudicate
cases, or execute removal orders" against any alien." 8 U.S.C. § 1252(g).6
3.
Administrative Procedure Act
Plaintiffs bring their INA-based claim under the Administrative Procedure Act, which
provides for judicial review of all "final agency action for which there is no other adequate remedy
in a court," id. § 704, except when "statutes preclude judicial review" or the "agency action is
committed to agency discretion by law," id. § 701(a). Where judicial review is available, the APA
permits a court to "hold unlawful and set aside agency action . . . found to be arbitrary, capricious,
6
In a footnote, Defendants argue that the court "lacks jurisdiction to grant classwide injunctive relief pursuant to 8 U.S.C. § 1252(f)(1)." (Defs.' Mot. 14-15 n.5.) Because the
court has not determined whether it can properly grant class certification in this case, the court
need not address this issue here.
18
an abuse of discretion, or otherwise not in accordance with law," or agency action that is "in
excess of statutory jurisdiction, authority, or limitations." 5 U.S.C. §§ 706(2)(A), (C).
Defendants argue that the court lacks jurisdiction to hear Plaintiffs' APA claim because,
according to Defendants, "the INA precludes . . . judicial review." (Defs.' Mot. 19.) For reasons
already explained, however, the court has concluded that the INA does not preclude judicial
review. Defendants next contend that the court lacks jurisdiction under the APA because by
Defendants' account, the agency actions at issue are not "final" and "Plaintiffs have an adequate
remedy in immigration court." (Defs.' Mot. 19-20.) This argument falls flat as well because the
requirements set forth in Section 704 of the APA are not jurisdictional. See Matushkina v. Nielsen,
877 F.3d 289, 292 n.1 (7th Cir. 2017); see also Dhakal v. Sessions, 895 F.3d 532, 538 n.9 (7th
Cir. 2018) ("[B]ecause the APA is not a jurisdiction-conferring statute, [the] elements of a claim
under the APA . . . are not jurisdictional." (quoting Haines v. Fed. Motor Carrier Safety Admin.,
814 F.3d 417, 424 (6th Cir. 2016)). Defendants advance these same arguments in moving to
dismiss Plaintiffs' APA claim under Rule 12(b)(6), and the court addresses them later in this
opinion.
4.
Organizational Standing
Defendants move to dismiss the Organizational Plaintiffs' claims under Rule 12(b)(1) for
lack of standing. Standing "is an essential and unchanging part of the case-or-controversy
requirement of Article III" of the United States Constitution. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992). Here, the Organizational Plaintiffs assert standing on their own behalf
rather than representational standing to sue on behalf of their members. (See Pls.' Opp. 15). "To
bring suit in its own right, an organization must itself satisfy the requirements of standing."
Milwaukee Police Ass'n v. Bd. of Fire & Police Comm'rs of City of Milwaukee, 708 F.3d 921, 926
(7th Cir. 2013); see also, e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982) ("In
determining whether [an organization] has standing under the Fair Housing Act, we conduct the
same inquiry as in the case of an individual."). Accordingly, the Organizational Plaintiffs must
19
allege that (1) they have suffered or will suffer a concrete and particularized injury that is actual
or imminent; (2) the injury is fairly traceable to the Defendants' actions; and (3) it is likely that the
injury will be "redressed by a favorable decision." Lujan, 504 U.S. at 560-61; see also, e.g.,
Common Cause Ind. v. Lawson, 937 F.3d 944, 949 (7th Cir. 2019).
The Organizational Plaintiffs contend that they have established standing with "wellpleaded facts showing that [they were] forced to divert organizational resources in response to
[Defendants'] unlawful practices."
(Pls.' Opp. 15.)
As previously noted, they allege that
Defendants' practices caused a near-50 percent increase in calls to their telephone hotline from
individuals seeking information and assistance concerning ICE's large-scale enforcement actions
in the Chicago area.
(See, e.g., Second Am. Compl. ¶ 72; Benito Decl. ¶ 12; Sobrevilla
Decl. ¶¶ 7-9.) According to the Organizational Plaintiffs, the influx of calls forced them to "pull
multiple . . . staff members off other duties," hire new staff, revise and give additional "Know Your
Rights" presentations, and raise extra funds to pay for these efforts. (See Benito Decl. ¶¶ 12-13;
Second Am. Compl. ¶ 72.) The Organizational Plaintiffs also allege that to complete this extra
work, they had to postpone or abandon other programs.
(See Second Am. Compl. ¶ 72;
Sobrevilla Decl. ¶ 12; see also Pls.' Opp. 16-17 (arguing that the "strain on [the Organizational
Plaintiffs'] resources to counteract the effects of ICE's unlawful raids has perceptibly impaired
[their] counseling services for their communities").)
In advancing their diversion-of-resources theory, the Organizational Plaintiffs rely on the
Supreme Court's decision concerning organizational standing in Havens, 455 U.S. at 379. One
of the plaintiffs in that case was a non-profit organization that advocated for "equal opportunity in
housing." Id. at 368. Its "activities included the operation of a housing counseling service, and
the investigation and referral of complaints concerning housing discrimination."
Id.
The
organization sued a realty corporation under the Fair Housing Act for allegedly "steering"
prospective African-American renters away from their apartment buildings. See id. at 368-69.
According to the organization, it suffered an actual injury because the defendant's practices
20
allegedly "frustrated [its] counseling and referral services, with a consequent drain on resources."
Id. at 369. The Supreme Court agreed. See id. at 379. If the alleged steering practices "have
perceptibly impaired HOME's ability to provide counseling and referral services," the Court
stated, "there can be no question that the organization has suffered injury in fact." Id. The Court
explained that "[s]uch concrete and demonstrable injury to the organization's activities—with the
consequent drain on the organization's resources—constitutes far more than simply a setback to
the organization's abstract social interests." Id.
Defendants contend that the Organizational Plaintiffs have not alleged a concrete and
particularized injury because, in Defendants' view, the practices Plaintiffs challenge "do not
frustrate [the Organizational Plaintiffs'] missions, but rather permit [them] to pursue, if not fulfill
their purpose[s]." (Defs.' Mot. 18; see also id. (emphasizing that the Organizational Plaintiffs' selfdescribed purposes include "providing support and information during times of crisis,"
"advocat[ing] for policies that protect immigrant families from deportation," and "organiz[ing]
against deportations" (quoting Second Am. Compl. ¶¶ 22-23)).) In this vein, Defendants contend
that the public used the telephone hotline "as it was designed and intended," and argue that the
uptick in calls and its toll on resources do not constitute an injury-in-fact. (Defs.' Reply 6-7.)
Rather, Defendants argue, the Organizational Plaintiffs have alleged only an abstract interest in
a problem, which is insufficient to confer standing. (See Defs.' Mot. 16-17; Havens, 455 U.S.
379.)
The court pauses to note that although Defendants appear to argue that they are asserting
a factual challenge to standing, they conflate the legal standards for facial versus factual
challenges. (Compare Defs.' Mot. 15 (arguing that the Organizational Plaintiffs must establish
standing by a preponderance of the evidence); Defs.' Reply 5 (same); with Defs.' Reply 6 (stating
that the Twombly-Iqbal standard governs the inquiry and arguing that the Organizational Plaintiffs
"have not alleged a plausible basis for standing" (emphasis added)).) Defendants’ core argument,
though, is that the Organizational Plaintiffs "have not alleged a concrete and particularized injury
21
that could be redressed by the equitable relief sought." (Defs.' Mot. 18-19.) Moreover, as
discussed below, Defendants have not presented "external facts" that cast doubt on the court's
jurisdiction. Apex Digital, 572 F.3d at 444. Accordingly, Defendants' Rule 12(b)(1) motion
presents a facial challenge to standing. See, e.g., Silha, 807 F.3d at 173 ("Defendants' Rule
12(b)(1) motion is properly understood as a facial challenge because they contend that Plaintiffs'
complaint lacks sufficient factual allegations to establish standing."). The court therefore accepts
all well-pleaded factual allegations as true and draws all reasonable inferences in the
Organizational Plaintiffs' favor. See id.; Remijas, 794 F.3d at 691.
The Organizational Plaintiffs allege that they have "had to devote significant
resources . . . to counteract" Defendants' alleged misconduct, which in turn has "impaired [their]
ability to provide" other services. Havens, 455 U.S. at 379; see, e.g., Second Am. Compl. ¶ 72.
These allegations, if true, are sufficient to establish a concrete and particularized injury. See
Havens, 455 U.S. at 379. Indeed, contrary to Defendants' arguments, the Organizational Plaintiffs
can establish standing by alleging that due to Defendants' alleged action, they must devote more
resources to certain kinds of work they were already doing. In Havens, for example, the plaintiff's
regular activities included "the investigation and referral of complaints concerning housing
discrimination." Id. at 368. The Supreme Court ascertained an injury based on allegations that
the plaintiff had to "devote significant resources to" exactly that—"identify[ing] and counteract[ing]"
defendant's alleged housing discrimination—which in turn frustrated the plaintiff's ability to
conduct its other regular activities. Id. at 379.
The Seventh Circuit's decision in Crawford v. Marion County Election Board, 472 F.3d 949
(7th Cir. 2007), cited by neither side here, supports this reading of Havens. In Crawford, the court
held that a voting law, which would likely discourage supporters of the Democratic Party from
going to the polls, inflicted an actual injury on the Democratic Party by "compelling [it] to devote
resources" to getting those supporters to the polls. Id. at 951 (citing Havens, 455 U.S. at 378).
More recently, in a case decided after Defendants' motion to dismiss was fully briefed, the
22
Seventh Circuit squarely rejected the exact argument Defendants make here. See Lawson, 937
F.3d at 953-54.
In Lawson, the defendant state officials argued that the voting-rights
organizations that brought suit had not suffered actual injuries because the conduct at issue
(alleged violations of the National Voter Registration Act) simply gave the plaintiff organizations
"more of the work they were created to do." Id. The Seventh Circuit disagreed and determined
that the organizations had pleaded "concrete injuries" under Havens.
Id. at 954 (where
organizations alleged that defendant's conduct would force them to "undertake . . . extra efforts"
that fell within their mission and "reduce or eliminate their work in certain areas," they pleaded an
injury-in-fact). The court in Lawson recognized that organizations do not "have standing based
solely on the baseline work they are already doing." Id. at 955. Rather, "[t]he question is what
additional or new burdens are created by the [actions] the organization is challenging . . . . [An
organization] must show that the disruption is real and its response is warranted." Id. The
Organizational Plaintiffs here allege that Defendants' actions increased their workload and "cost[]
them time and money they would have spent differently or not spent at all." Id. at 954; see, e.g.,
Second Am. Compl. ¶ 72; Benito Decl. ¶¶ 12-13; Sobrevilla Decl. ¶ 12. They also allege that they
had to take on the extra work to meet the needs of their community members. See Lawson, 937
F.3d at 955; Second Am. Compl. ¶ 72; Benito Decl. ¶¶ 12-13. Accordingly, the Organizational
Plaintiffs have pleaded an injury-in-fact that confers standing.
Defendants cite several cases that they argue compel the opposite conclusion, but each
is distinguishable. In Keep Chicago Livable v. City of Chicago, 913 F.3d 618, 625 (7th Cir. 2019),
the court determined than an organization had pleaded a "mere interest in a problem," not an
actual injury.
But it reached that conclusion because the organization alleged only that
"uncertainty" concerning the constitutionality of an ordinance "burden[ed] [its] education and
advocacy mission." Id. at 624. Moreover, the organization framed its claims "in terms of injury to
an individual's constitutional rights," not in terms of "injury to the organization."
Id.
The
Organizational Plaintiffs in this case allege that they suffered injuries distinct from those the
23
Individual Plaintiffs suffered. (See, e.g., Second Am. Compl. ¶¶ 72, 94, 112.) In addition, they
allege that Defendants' actions increased their workload and forced them to direct time and money
away from some of their normal activities. The Organizational Plaintiffs, therefore, allege more
than an abstract interest in a legal issue. 7 In H.O.P.E., Inc. v. Eden Management, LLC, 128 F.
Supp. 3d 1066 (N.D. Ill. 2015), another case Defendants rely upon, the court noted that an
organization's diversion of resources as an "opportunity cost" of a defendant's alleged
discrimination can confer standing, but determined that the plaintiff could not seek shelter in that
theory because it could not trace its diversion of resources to the defendant. See id. at 1078-79.
As discussed below, the Organizational Plaintiffs do not have a traceability problem. Finally, in
Citizens for Responsibility and Ethics in Washington v. Trump, 276 F. Supp. 3d 174 (S.D.N.Y.
2017), vacated and remanded on other grounds, 939 F.3d 131 (2d Cir. 2019), the court indeed
rejected plaintiff's diversion-of-resources theory of standing and determined that its injuries were
"self-inflicted." Id. at 189-91. But there, the plaintiff "fail[ed] to allege either that Defendant's
actions ha[d] impeded its ability to perform a particular mission-related activity, or that it was
forced to expend resources to counteract and remedy the adverse consequences or harmful
effects of Defendant's conduct." Id. at 190. The Organizational Plaintiffs in this action allege both.
Next, Defendants argue that the Organizational Plaintiffs do not have standing because
they have failed to show a causal connection between their alleged injuries and "the specific ICE
practices at issue."
(Defs.' Mot. 17-18; see also Defs.' Reply 7; Lujan, 504 U.S. at 560.)
Specifically, Defendants contend that "given the purpose of the [telephone] hotline, any increase
or change in ICE enforcement of immigration laws could result in an increase in calls." (Defs.'
Mot. 18; see also Defs.' Reply 7 (arguing that the Organizational Plaintiffs "do not specify a
7
For this reason, Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S.
26, 40 (1976), Milwaukee Police Association v. Flynn, 863 F.3d 636, 639 (7th Cir. 2017), and
Muro v. Target Corporation, 580 F.3d 485, 491 (7th Cir. 2009)—which Defendants cite for the
proposition that an interest in a legal issue, on its own, is insufficient to confer organizational
standing—likewise do not tip the scales in Defendants' favor.
24
timeframe for the increased volume of calls they received" resulting from the actions at issue).)
According to Defendants, therefore, the Organizational Plaintiffs' allegations that the challenged
conduct caused their injuries are speculative and conclusory, and the court should not credit them.
The court does not read the Organizational Plaintiffs' allegations as mere speculation that their
injuries are traceable to the practices they challenge. The CEO and Executive Director of ICIRR,
for example, stated in a June 2018 affidavit that "[i]n the last month," when ICE allegedly
conducted the large-scale enforcement action at issue in this case, the hotline received 50 percent
more calls than it did in the previous month, "when no raids were reported." (Benito Decl. ¶ 12;
see also Sobrevilla Decl. ¶¶ 7-9 (stating that the increase in hotline calls began on May 19, 2018).)
In addition, the Organizational Plaintiffs allege that the additional calls were coming from people
who were reporting large-scale ICE enforcement actions or trying to find family members that ICE
had detained. (See Second Am. Compl. ¶ 72.) There may, of course, be other reasons for the
spike in calls—but this would defeat Plaintiffs' claims as unsupported factually, not as a pleading
deficiency.
Defendants also argue that the Organizational Plaintiffs "affirmatively directed" community
members to call the hotline with information concerning ICE's enforcement actions, and therefore
created "alternative causation" for the increase in calls. (Defs.' Reply 8 (citing archived version
of OCAD website).) But Defendants raised this argument on reply, so it is waived. See Campos
v. Cook Cnty., 932 F.3d 972, 976 n.2 (7th Cir. 2019) ("Parties waive arguments which they
develop for the first time in a reply brief.") Even if Defendants had not waived the argument, it
would make no difference because for purposes of causation, "[w]hat matters is whether the
organizations' activities were undertaken because of the challenged [action], not whether 'they
are voluntarily incurred or not.'" Lawson, 937 F.3d at 956 (quoting Fla. State Conference of
N.A.A.C.P v. Browning, 522 F.3d 1153, 1166 (11th Cir. 2008).) The Organizational Plaintiffs
allege that the challenged conduct "creat[ed] more work for them," and that "is sufficient . . . for
causation." Lawson, 937 F.3d at 956. It is also sufficient "for the redressability element of
25
standing" because absent the challenged conduct, there would "be less drain on [the
Organizational Plaintiffs'] resources." Id. Finally, as discussed at length above, Plaintiffs seek
injunctive and declaratory relief that does not require "suppressing evidence in immigration court
proceedings" or "enjoining removal proceedings altogether." (See Defs.' Mot. 16.) Accordingly,
Defendants' argument that this court can redress the Organizational Plaintiffs' alleged injuries
only by violating the INA lacks merit. (See id.)
For the foregoing reasons, the court denies Defendants' motion to dismiss the
Organizational Plaintiffs' claims for lack of standing.
B.
Defendants' Rule 12(b)(6) Motion
Defendants also move to dismiss Plaintiffs' APA claim under Federal Rule of Civil
Procedure 12(b)(6).
In assessing a motion to dismiss for failure to state a claim under
Rule12(b)(6), a court accepts all well-pleaded facts in a plaintiff's complaint as true and views
them in the light most favorable to the plaintiff. See United States ex rel. Berkowitz v. Automation
Aids, Inc., 896 F.3d 834, 839 (7th Cir. 2018). To survive a motion to dismiss, the complaint must
contain sufficient factual information to "state a claim to relief that is plausible on its face." Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when "the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice." (Id.)
Defendants argue that Plaintiffs fail to state a claim under the APA because they have not
sufficiently pleaded "final agency action." (See Defs.' Mot. 19 (quoting 5 U.S.C. § 704).) For an
agency action to be final, "two conditions must be satisfied." Bennett v. Spear, 520 U.S. 154, 177
(1997). "First, the action must mark the 'consummation' of the agency's decisionmaking process."
Id. at 177-78 (quoting Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948)).
The action "must not be of a merely tentative or interlocutory nature." Bennett, 520 U.S. at 178.
26
"[S]econd, the action must be one by which 'rights or obligations have been determined,' or from
which 'legal consequences will flow.'"
Id. (quoting Port of Bos. Marine Terminal Ass'n v.
Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)); see also, e.g., Dhakal, 895 F.3d at 539
("The core question is whether the agency has completed its decisionmaking process, and
whether the result of that process is one that will directly affect the parties." (quoting Franklin v.
Mass., 505 U.S. 788, 797 (1992)). Courts approach the APA's finality requirement flexibly and
pragmatically. See U.S. Army Corps of Eng'rs v. Hawkes Co., 136 S. Ct. 1807, 1815 (2016);
Dhakal, 895 F.3d at 539.
Defendants contend, first, that Plaintiffs have not sufficiently pleaded final agency action
because they offer only "amorphous" descriptions of ICE practices and then allege, without
support, that ICE implemented a policy to make warrantless arrests in violation of 8
U.S.C. § 1357(a)(2). (See Defs.' Mot. 20-21 (quoting Bark v. U.S. Forest Serv., 37 F. Supp. 3d
41, 50 (D.D.C. 2014)).) Relatedly, Defendants argue that Plaintiffs are asking the court to
"extrapolate a few individual specific allegations into a generalized conclusion" that ICE
implemented such a policy. (Defs.' Reply 9.) The court understands Defendants to be arguing
that Plaintiffs are making a "generalized complaint about agency behavior"—which cannot give
rise to a cause of action—rather than challenging discrete agency action, which can. Bark, 37 F.
Supp. 3d at 51 (internal quotation marks omitted); see, e.g., Norton v. S. Utah Wilderness Alliance
(SUWA), 542 U.S. 55, 62-63 (2004) (agency actions as defined in the APA are "circumscribed"
and "discrete").
The court sees Plaintiffs' claim differently and is satisfied that Plaintiffs challenge discrete
agency action. Plaintiffs challenge ICE's alleged policy and practice of failing to comply with a
specific, mandatory, unambiguous statutory provision.
(See Second Am. Compl. ¶¶ 97-98
(alleging that ICE has a "policy and practice of making warrantless arrests without
the . . . individualized flight risk analysis" required by Section 1357(a)(2) of the INA).) Taken as
true and viewed in the light most favorable to Plaintiffs, the allegations permit an inference that
27
this policy exists—at least in the context of large-scale enforcement actions in the Chicago area—
and that ICE adopted it around May 2018. (See, e.g., id. ¶ 31 (alleging that ICE implemented a
large-scale enforcement action in New York in April 2018, which it called "Operation Keep Safe");
id. ¶ 32 (alleging that the "Chicago phase of 'Operation Keep Safe,'" from which this litigation
arises, began in May 2018 and "bears many of the hallmarks of" the New York phase and similar
enforcement actions in California in 2018); id. ¶ 32 (alleging that "ICE concedes that 106 of the
156" arrests in May 2018 were made without warrants; concedes that about half of the people
arrested "had no criminal records"; and states that it will continue implementing large-scale
enforcement actions that will "inevitably result in additional [warrantless] arrests" (internal
quotation marks omitted)).) The fact that Plaintiffs have not identified a written policy does not
change this conclusion because "agency action need not be in writing to be judicially reviewable
as a final action." Aracely, R. v. Nielsen, 319 F. Supp. 3d 110, 138 (D.D.C. 2018) (citing Venetian
Casino Resort LLC v. Equal Emp't Opportunity Comm'n, 530 F.3d 925, 929, 931 (D.C. Cir. 2008)
(adjudicating challenge to agency's "decision . . . to adopt [an unwritten] policy of disclosing
confidential information without notice")); see also, e.g., R.I.L.-R v. Johnson, 80 F. Supp. 3d 164,
184 (D.D.C. 2015) (court can review an unwritten agency policy).
Moreover, Plaintiffs challenge ICE's specific application of the alleged policy to the
Individual Plaintiffs and others similarly situated. (See id. ¶¶ 5, 8, 17-21 (alleging that ICE officers
failed to conduct the statutorily required flight-risk analysis in arresting all five Individual Plaintiffs
without warrants); id. ¶ 63 (alleging that the arrests of the Individual Plaintiffs "reflect a pattern of
behavior . . . that [ICE] has openly stated it will continue using"); see also Pls.' Opp. 20 ("Violating
the unambiguous statutory requirements of the INA is a final agency action subject to review
under the APA.").) An agency action is reviewable "to the extent that, specific 'final agency action'
has an actual or immediately threatened effect." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 894
(1990). Here, Plaintiffs allege that ICE officers acted in a discrete, specific manner when they
conducted warrantless arrests of the Individual Plaintiffs and others similarly situated, and they
28
allege that those actions harmed them. These allegations sufficiently plead discrete agency
actions. See, e.g., Aracely, R., 319 F. Supp. 3d at 139 (ICE's "rejections of Plaintiffs' parole
requests—purportedly upon consideration of an improper factor"—are agency actions that have
actual or immediately threatened effects); Ramirez v. U.S. Immigration & Customs Enforcement,
310 F. Supp. 3d 7, 21-22 (D.D.C. 2018) (determining that "[t]he placements of [plaintiffs] in ICE
adult detention facilities—purportedly without mandated consideration of less restrictive
placements—are agency actions"); R.I.L.-R, 80 F. Supp. 3d at 184 ("ICE's consideration of an
allegedly impermissible factor in making custody determinations" is "particularized agency action"
reviewable under the APA).
Because Plaintiffs challenge the adoption of an alleged policy that allows Defendants to
violate a specific statutory provision, as well as specific applications of that policy, their APA claim
is unlike that in Bark, where the court could not discern any specific policy from the record. See
37 F. Supp. 3d at 51. 8 For the same reasons, it is distinguishable from SUWA and Lujan, which
concerned broad programmatic attacks. See SUWA, 542 U.S. at 65-66 (plaintiff asked the court
to "enter [a] general order[] compelling compliance with [a] broad statutory mandate[]":
"continu[ing] to manage [land] . . . in a manner so as not to impair the suitability of such areas for
preservation as wilderness"); Lujan, 497 U.S. at 890 (plaintiff challenged "the entirety of" a "land
withdrawal review program" that encompassed an agency's "operations . . . in reviewing
withdrawal revocation applications," "classif[ying] . . . public lands", and "developing land use
8
Lightfoot v. District of Columbia, 273 F.R.D. 314 (D.D.C. 2011), which Defendants
also cite, see Defs.' Mot. 21, does not concern agency action under the APA. In Lightfoot, former
employees brought a putative class action in which they alleged that the District of Columbia
violated their Due Process rights in terminating their disability benefits. See id. at 316. The court
granted the District's motion to decertify the class. See id. The court determined, among other
things, that in alleging a "wide variety of practices" and calling them "systemic failures," the
plaintiffs failed both to identify the offending "policy or custom" and establish that it was common
to the class. See id. at 326 (internal quotation marks omitted). As already discussed, Plaintiffs in
this case have sufficiently pleaded a specific policy. And the question whether Plaintiffs have
properly brought their case as a class action is not presently before the court.
29
plans"). Nor are Plaintiffs asking the court to assume that a policy exists based on allegations
"that Defendants took certain action with respect to" only one plaintiff. Pearl River Union Free
Sch. Dist. v. King, 214 F. Supp. 3d 241, 260 (S.D.N.Y. 2016); see Defs.' Mot. 22 (citing same).
Rather, as noted, Plaintiffs allege that ICE applied the policy in five specific cases, and likely in
numerous others. (See Second Am. Compl. ¶¶ 5, 8, 17-21, 32, 63.) 9
Defendants also contend that Plaintiffs have not pleaded final agency action because,
according to Defendants, ICE officers' "decisions to stop, question, and eventually arrest the
[Individual Plaintiffs] were aspects of the initiation of removal proceedings before an immigration
judge and not the consummation of the administrative decision-making process." (Defs.' Mot. 20;
see also Defs.' Reply 9-10.) This argument, too, lacks force because it improperly merges the
decision to make an arrest with the decision to initiate removal proceedings. In the circumstances
alleged, the decisions are separate. Indeed, Plaintiffs allege that when ICE officers act pursuant
to the challenged policy, they do not yet have a basis to suspect that the arrestees are in fact
removable from the United States.
Viewing the allegations in the light most favorable to
Plaintiffs—and applying the APA's finality requirement pragmatically—Plaintiffs sufficiently plead
that ICE "consummat[ed] [its] decisionmaking process" by making arrests in violation of Section
1357(a)(2) and pursuant to an agency policy. Bennett, 520 U.S. at 177 (quoting Chi. & S. Air
Lines, 333 U.S. at 113.) Likewise, Plaintiffs sufficiently plead that ICE's decisionmaking process
had "legal consequences." Bennett, 520 U.S. at 178 (quoting Rederiaktiebolaget Transatlantic,
400 U.S. at 71). Among other things, Plaintiffs allege that ICE's decisions caused the Individual
9
Plaintiffs also argue that they have pleaded agency action in the form of a failure
to act—specifically, ICE's alleged failure to make statutorily required, particularized flight-risk
determinations. (See Pls.' Opp. 20.) "Agency action" under the APA does, indeed, include "failure
to act," 5 U.S.C. § 551(13), and the APA allows a court to "compel agency action unlawfully
withheld or unreasonably delayed," id. § 706(1). But Plaintiffs do not assert a claim under Section
706(1) (see generally Second Am. Compl.); their briefing on this point is undeveloped; and they
argue that ICE's affirmative violation of Section 1357(a)(2)'s "unambiguous statutory
requirements" is the "final agency action" they challenge. (See Pls.' Opp. 20.) The court,
therefore, does not address the viability of Plaintiffs' "failure to act" theory.
30
Plaintiffs and others similarly situated to lose their freedom. Plaintiffs, therefore, sufficiently plead
final agency action.
Ample case law supports this conclusion. See, e.g., Arcady R., 319 F. Supp. 3d at 139
(ICE's alleged policy of improperly considering deterrence as a factor in reviewing parole
requests, which ICE purportedly applied to plaintiffs, was a final agency action); Ramirez, 310 F.
Supp. 3d at 22-23 (plaintiffs identified final agency action in alleging that "ICE placed them in adult
detention facilities without considering less restrictive placements as required by" statute); R.I.L.R, 80 F. Supp. 3d at 185 ("ICE's consideration of an allegedly impermissible factor in making
custody determinations" had "profound and immediate consequences for Central American
asylum seekers detained as a result," and was a final agency action); cf. Moreno, 213 F. Supp.
3d at 1008-09 (determining that ICE violated Section 706(2)(C) of the APA by issuing detainers
for warrantless arrests without making the required individualized flight-risk determinations under
8 U.S.C. § 1357(a)(2), but parties appear not to have disputed whether plaintiffs pleaded final
agency action).
In a final push for dismissal, Defendants contend that if the court finds Plaintiffs have
sufficiently pleaded final agency action, "every immigration arrest" would be "collaterally attacked
and litigated in Federal District Court, rather than in Immigration Court and petitions for review in
Circuit Court as provided by Congress." (Defs.' Reply 10 (citing 8 U.S.C. § 1252(a)(5) and § 1252
(b)(9)).) But as already discussed, where, as here, claims raise factual and legal issues that are
remote from the issue of removability, the INA does not channel them into immigration court and
limit review to consideration of final removal orders. Accordingly, the court's conclusion that
Plaintiffs have identified final agency action should have no effect on the INA's jurisdictionchanneling function. Plaintiffs have pleaded final agency action subject to judicial review, and the
court denies Defendants' Rule 12(b)(6) motion to dismiss Plaintiffs' APA claim.
31
CONCLUSION
For the foregoing reasons, the court denies Defendants' Motion to Dismiss Plaintiffs'
Second Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(1) and Federal
Rule of Civil Procedure 12(b)(6) [66]. Defendants are directed to file their answers within 28 days.
ENTER:
Dated: January 24, 2020
_________________________________________
REBECCA R. PALLMEYER
United States District Judge
32
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