State Of New York et al v. Donald Trump et al

Filing 215

MEMORANDUM & ORDER, For the reasons stated above, Defendants' motions to dismiss the Batalla Vidal Plaintiffs' third amended complaint and the State Plaintiffs' amended complaint (Dkt. #207 in No. 16-CV-4756; No. #71 in No. 17-CV-5228) are GRANTED IN PART and DENIED IN PART. The Batalla Vidal Plaintiffs' first, third, and fourth claims for relief are dismissed, and the second claim for relief is dismissed to the extent it alleges that Defendants weakened DHS's information-use policy. The sixth claim for relief is dismissed in part, as stated above. The State Plaintiffs' fifth and sixth claims for relief are dismissed. So Ordered by Judge Nicholas G. Garaufis on 3/29/2018. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

MARTIN JONATHAN BATALLA VIDAL et al,
Plaintiffs,
MEMORANDUM & ORDER

-against-

16-CV-4756 (NGG) (JO)

KIRSTJEN M.NIELSEN, Secretary, Department of
Homeland Security, et al..
Defendants.
■X

STATE OF NEW YORK et al.

Plaintiffs,
MEMORANDUM & ORDER

-against-

17-CV-5228 (NGG) (JO)
DONALD TRUMP, President of the United States, et al.
Defendants.
-X

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiffs in the above-captioned cases challenge Defendants' decisions to end the
Deferred Action for Childhood Arrivals ("DACA") program and. Plaintiffs allege, to relax the
restrictions on federal authorities' use of DACA applicants' personal information for
immigration-enforcement purposes. The court assumes familiarity with the factual and

procedural history of these cases and in particular with its November 9, 2017, Memorandum and

Order (the "November 9 M&O")
(Dkt. 104),^ which granted in part and denied in part

Defendants' motion to dismiss these cases for lack of subject-matter jurisdiction,^ and its
February 13, 2018, Amended Memorandum and Order (the "February 13 M&O")
(Dkt. 254),
which granted Plaintiffs' motions for a preliminary injunction barring Defendants from
terminating the DACA program in its entirety. Before the court are Defendants' motions to
dismiss the Batalla Vidal Plaintiffs' third amended complaint pursuant to Rules 12(b)(1) and
12(b)(6) ofthe Federal Rules of Civil Procedure and to dismiss the State Plaintiffs' amended
complaint pursuant to Rule 12(b)(6). (3d Am. Compl.("BV TAG")
(Dkt. 113); Am. Compl.
("State Pis. AC")
(Dkt. 71, No. 17-CV-5228); Defs. Mem. in Supp. of Mot. to Dismiss the BV
TAG("BV MTD")
(Dkt. 207-1); Defs. Mem.in Supp. of Mot. to Dismiss the State Pis. AC
("State MTD")
(Dkt. 71-1); see also Pis. Mem.in Opp'n to Mot. to Dismiss the BV TAG("BV
Pis. Opp'n")(Dkt. 240); Pis. Mem.in Opp'n to Mot.to Dismiss the State Pis. AC ("State Pis.
Opp'n)(Dkt. 202, No. 17-CV-5228).) For the reasons that follow. Defendants' motions are
GRANTED IN PART and DENIED IN PART.

' All record citations refer to the docket in Batalla Vidal v. Nielsen. No. 16-CV-4756(E.D.N.Y.), except as
otherwise noted. For ease ofreference, the court refers to the Department of Homeland Security as"DHS," the
Department of Justice as"DOJ," and U.S. Citizenship and Immigration Services as "USCIS."

^ In the November 9 M&O,the court dismissed for lack ofstanding the fourth claim asserted in the Batalla Vidal
Plaintiffs' second amended complaint, which alleged that Defendants violated the Due Process Clause ofthe Fifth
Amendment by failing to provide individualized written notice to certain DACA recipients that they needed to
renew their DACA benefits by October 5,2017. (2d Am. Compl.(Dkt. 60) 160-65; Nov.9 M&O at 37-38.) The
court also dismissed for lack ofstanding the State Plaintiffs' notice and information-use-policy claims. (Nov.9
M&O at 38-46.) While the Batalla Vidal Plaintiffs reassert a notice claim in their third amended complaint(3d Am.

Compl.("BV TAC")
(Dkt. 113) 188-94), they concede that they do so only to preserve the claim for appeal and
that, under the reasoning ofthe November 9 M&O,this claim should be dismissed (Pis. Mem. in Opp'n to Mot. to
Dismiss the BV TAC("BV Pis. Opp'n")(Dkt. 240)at 4 n.5). Accordingly, the Batalla Vidal Plaintiffs' fourth claim
for relief is DISMISSED.

I.

LEGAL STANDARDS

A.

Rule 12(b)(1)

A Rule 12(b)(1) motion tests the court's subject-matter jurisdiction to hear a claim or
case.

Fed. R. Civ. P. 12(b)(1). Under Rule 12(b)(1), the court must dismiss a claim "when

the ... court lacks the statutory or constitutional power to adjudicate it." Makarova v. United
States. 201 F.3d 110,113(2d Cir. 2000). When considering a Rule 12(b)(1) motion, the court
"must take all uncontroverted facts in the complaint... as true, and draw all reasonable

inferences in favor ofthe party asserting jurisdiction." Tandon v. Captain's Cove Marina of
Bridgeport. Inc.. 752 F.3d 239,243(2d Cir. 2014). Nevertheless,"the party asserting subject
matter jurisdiction 'has the burden of proving by a preponderance of the evidence that it exists.'"
Id.(quoting Makarova. 201 F.3d at 113).
B.

Rule 12(b)(6)

A Rule 12(b)(6) motion tests the legal adequacy ofthe plaintiffs complaint. To survive a
Rule 12(b)(6) motion,the complaint must "contain sufficient factual matter, accepted as true, to
'state a claim to reliefthat is plausible on its face.'" Ashcroft v. Jqbal. 556 U.S. 662,678(2009)

(quoting Bell Atl. Corp. v. Twomblv. 550 U.S. 544,570(2007)). In considering the sufficiency
ofthe complaint, the court "accept[s] all [well-pleaded] factual allegations in the complaint as
true, and draw[s] all reasonable inferences in the plaintiffs favor," Chambers v. Time Warner.
Inc.. 28 2 F.3d 147,152(2d Cir. 2002), but does need not to credit "[tjhreadbare recitals ofthe
elements ofa cause ofaction, supported by mere conclusory statements," Iqbal. 556 U.S. at 678.

Determining "plausibility" is a "context-specific task," id. at 679, which "depends on a host of
considerations: the full factual picture presented by the complaint, the particular cause of action
and its elements, and the existence of alternative explanations so obvious that they render

plaintiffs inferences unreasonable," L-7 Designs. Inc. v. Old Navy, LLC.647 F.3d 419,430(2d
Cir. 2011).

The court's review of a Rule 12(b)(6) motion is generally limited to "the facts alleged in
the complaint, documents attached to the complaint as exhibits, and documents incorporated by
reference in the complaint," as well as documents "integral" to the complaint. DiFolco v.
MSNBC Cable LLC.622 F.3d 104, 111 (2d Cir. 2010).
II.

DISCUSSION

The court first analyzes Plaintiffs' claims challenging the decision to end the DACA
program,then turns to the Batalla Vidal Plaintiffs' claims challenging Defendants'(1) alleged
changes to the policy regarding the protection ofDACA applicants' personal information (the
"information-use policy")(BV TAC

177-82); and (2)rejections ofDACA renewal requests

that were delayed due to postal errors, received late in the day on October 5, 2017, or contained
"real or perceived clerical errors"(id fl 199-205).
A.

DACA Rescission

Plaintiffs have stated a claim that the decision to end the DACA program was

substantively arbitrary and capricious, in violation of Section 706(2)(A) ofthe Administrative
Procedure Act("APA"),5 U.S.C. § 706(2), and substantially motivated by discriminatory
animus, in violation ofthe equal-protection principle inherent in the Fifth Amendment's Due
Process Clause. Plaintiffs have not, however, stated a claim that the rescission ofthe DACA

program was invalid because it was not implemented through notice-and-comment rulemaking,

nor have they stated a claim that Defendants violated the Regulatory Flexibility Act,5 U.S.C.
§ 601 et seq.("RFA"), by failing to consider the rescission's impact on small entities.

1.

Substantive APA

Plaintiffs challenge the decision to end the DACA program as substantively "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C.
§ 706(2)(A). (BV TAG IK 177-82; State Pis. Am. Compl. UK 253-56.) In its February 13 M&O,
the court found that Plaintiffs were likely to succeed on the merits ofthis claim. For the reasons

stated in that opinion, Defendants' motion to dismiss these claims is DENIED.^ Additionally,
the court notes that it would be inappropriate to dismiss Plaintiffs' substantive APA claims at

this stage ofthe litigation, as "there is a strong suggestion" that the administrative record
previously produced by Defendants is incomplete,"entitling [Plaintiffs] to discovery regarding
the completeness ofthe record." (Dec. 27,2017, USCA Order(Dkt. 210)at 2-3 (quoting Dopico

V. Goldschmidt 687 F.2d 644,654(2d Cir. 1982)).)^

^ Defendants have also contested whether Make the Road New York("MRNY")and the State Plaintiffs fall within
the APA's "zone of interests." (BV MTD at 12; State MTD at 20-21.) These Plaintiffs fall within the zone of

interests ofthe Immigration and Nationality Act such that they may bring suit under the APA. DACA recipients are
members, clients, and employees of MRNY,an organization that advocates for immigrants' rights. (BV TAG 46,
49-50; BV Pis. Opp'n at 6-7.) At the very least, the State Plaintiffs employ a number ofDACA recipients. (Nov.9
M&O at 38-40; State Pis. Opp'n at 3-6.) Plaintiffs' interests in the decision to end the DACA program are thus not
'"so marginally related to or inconsistent with the purposes implicit in the [Immigration and Nationality Act] that it
cannot reasonably be assumed that' Congress authorized [those] plaintiff[s] to sue." Lexmark Int'l. Inc. v. Static
Control Components. Inc.. 134 S. Ct. 1377, 1389(2014)(quoting Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak. 567 U.S. 209,225(2012)1: see also Clarke v. Sec. Indus. Ass'n.479 U.S. 388,399

(1987). Defendants rely on Federation for American Immigration Reform. Inc. v. Reno.93 F.3d 897(D.C. Cir.
1996)("FAIR"), but that case held only that members ofan anti-immigration group lacked statutory standing, based
on their generalized objections to immigration, to challenge a decision to accord reliefto Cuban immigrants. S^jd
at 900-04. Unlike in FAIR. Plaintiffs in the above-captioned cases are directly affected by Defendants' actions. See
Regents ofthe Univ. of Calif, v. DHS.279 F. Supp. 3d 1011, 1036 n.l2(N.D. Cal. 2018).
Record-related discovery remains stayed pending the Second Circuit's ruling on Defendants' interlocutory appeal
from the November 9 M&O. (See Jan. 8, 2017, Mem.& Order(Dkt. 233)at 9-10.) The court reiterates that
Defendants vigorously sought that interlocutory appeal before reversing course and conceding that the Second

Circuit should hold Defendants' petitions for leave to appeal in abeyance pending this court's ruling on Plaintiffs'
motions for a preliminary injunction and Defendants' motions to dismiss. (Reply in Supp. of Pet. for Permission to
Appeal(Dkt. 28, Nielsen v. Vidal, No. 18-122(2d Cir.)) at 2; see also Feb. 13 M&O at 21 & n.6.) The Second
Circuit thereafter agreed to hold these petitions for leave to file in abeyance pending this court's ruling on the
pending motions. (USCA Jan. 31, 2018, Order(Dkt. 249).)

2.

Procedural APA

Plaintiffs next claim that the decision to end the DACA program was procedurally

defective, in violation of Section 706(2)(D) ofthe APA,because the Department of Homeland
Security("DHS")did not use notice-and-comment rulemaking to rescind the program. These
claims raise challenging questions but are ultimately unavailing.
Under the APA,an agency generally must use notice-and-comment procedures to make

any "rule." 5 U.S.C. § 553.^ The APA exempts from this requirement, however,"general
statements of policy," among other types ofrule. Id. § 553(b)(A). The parties dispute whether
the memorandum announcing the rescission ofthe DACA program (the"DACA Rescission

Memo")
(Mem.from Elaine C. Duke, Acting Sec'y, DHS,Rescission of the June 15,2012
Memorandum Entitled "Exercising Prosecutorial Discretion with Respect to Individuals Who
Came to the United States as Children"(Dkt. 77-1 at ECF p.252))is a "general statement of

policy" exempt from notice-and-comment rulemaking requirements or instead a "legislative
rule" subject to these requirements. (Compare BV MTD at 18-20, and State MTD at 28-31, with
BV Pis. Opp'n at 12-16, and State Pis. Opp'n at 15-19.) The DACA Rescission Memo was not
formulated through notice-and-comment rulemaking, so if it is a legislative rule, it is invalid.
See 5 U.S.C. §§ 553, 706(2)(D).

As the court has already noted, the line between legislative rules and non-legislative rules
"is enshrouded in considerable smog." (Feb. 13 M&O at 30(quoting Noel v. Chapman. 508
F.2d 1023,1030(2d Cir. 1975)).) See also NatT Mining Ass^n v. McCarthv. 758 F.3d 243,251

(D.C. Cir. 2014)(characterizing the inquiry for determining whether an agency action is a

^ The APA defines "rule" as "the whole or part ofan agency statement ofgeneral or particular applicability and
future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure,
or practice requirements of an agency." 5 U.S.C. § 551(4).

legislative rule, an interpretive rule, or a general statement of policy as "quite difficult and
confused"). There are, however, general principles to guide the court's inquiry. Ifthe rule alters
the rights or obligations of regulated parties "or produces other significant effects on private
interests," it is legislative. White v. Shalala. 7 F.3d 296,303(2d Cir. 1993)(citation omitted);
see also Chrvsler Corp. v. Brown. 441 U.S. 281,302(1979)(legislative rules "affect[] individual
rights and obligations"(citation omitted)); Lewis-Mota v. Sec'v of Labor. 469 F.2d 478,482(2d
Cir. 1972). The D.C. Circuit has summarized what makes a "legislative" rule:
An agency action that purports to impose legally binding obligations
or prohibitions on regulated parties—and that would be the basis for
an enforcement action for violations of those obligations or

requirements—is a legislative rule. An agency action that sets forth
legally binding requirements for a private party to obtain a permit or
license is a legislative rule.
Nat'l Mining Ass'n. 758 F,3d at 251-52.

If, however,the rule does not alter regulated parties' rights and obligations but instead
"educat[es].,. agency members in the agency's work," or is "directed primarily at the staff of
an agency describing how it will conduct agency discretionary functions," the rule is a general
policy statement. Noel. 508 F.2d at 1030 (first quoting Henry Friendly, The Federal
Administrative Agencies 145-46(1962), and then quoting Arthur E. Bonfield, Some Tentative
Thoughts on Public Participation in the Making of Interpretative Rules and General Statements

of Policv Under the APA.23 Admin. L. Rev. 101,115 (1971)); see also Lincoln v. Vigil. 508
U.S. 182,197(1993)(general statements of policy are "issued by an agency to advise the public
prospectively ofthe manner in which the agency proposed to exercise a discretionary power"
(quoting Chrvsler. 441 U.S. at 302 n.31)); Nat'l Mining Ass'n. 758 F.3d at 252("An agency
action that merely explains how the agency will enforce a statute or regulation—^in other words.

how it will exercise its broad enforcement discretion or permitting discretion under some extant
statute or rule—^is a general statement of policy.")-

The Second Circuit's decision in Noel helps reveal the uncertain boundary between

legislative rules and general statements of policy. In NoeL two Haitian nationals unlawfully
present in the United States and subject to orders of deportation married U.S. lawful permanent
residents and sought "extended voluntary departure," a form of discretionary relieffrom
deportation that would have enabled them to remain in this country for up to two years while
waiting for visas. 508 F.2d at 1024. Between 1968 and 1972, it was the practice ofthe New
York District Director for Immigration and Naturalization Services("INS")routinely to grant

extended voluntary departure to such Western Hemisphere aliens who were present in this
country and married to permanent resident aliens. Id at 1025. In 1972, however,INS issued a
directive stating that such aliens "should not routinely be granted extended departure time, but
rather should be offered that privilege only in those cases where compelling circumstances
warranted the relief." Id at 1025-26. The plaintiffs argued, among other things, that this
directive was a legislative rule that was invalid because it was not made through notice-and-

comment rulemaking. Id at 1029. The Second Circuit rejected this argument, concluding that
the directive was a "general statement of policy" exempt from notice-and-comment

requirements. Id First, the Second Circuit noted that the directive did not purport to amend an
existing regulation vesting the district director v^th sole discretion to extend deportable aliens'
time in the United States or otherwise to oust him of this discretion. Id at 1030. Instead, the

directive only offered "a statement by the agency of its general policy as a guideline for the
District Directors" in their exercise ofthis discretion. Id Second,the directive did not

"change[] the existing right ofthe [aliens] to have their applications for extensions oftime to

8

depart authorized in the sole discretion ofthe district director," because those aliens remained

eligible to seek deferred voluntary departure, albeit only on the more limited basis of hardship.

Like the directive at issue in Nod,the DACA Rescission Memo appears to be a general

statement of policy, not a legislative rule. The DACA Rescission Memo does not deprive
individuals of a substantive right to receive deferred action or work authorization, or to have
these benefits renewed for additional terms. As the memorandum that launched the DACA

program (the "2012 DACA Memo")states clearly, no such rights exist. (Mem. from Janet
Napolitano, Sec'y» DHS,"Exercising Prosecutorial Discretion with Respect to Individuals Who
Came to the United States as Children"("2012 DACA Memo")
(Dkt. 77-1 at ECF p.l).) Instead,

the decision to grant or deny an individual deferred action and work authorization continues to

lie within immigration authorities' discretion. Like the 2012 DACA Memo,the DACA
Rescission Memo offers guidance to DHS employees as to how the agency intends to exercise
this discretion prospectively: Whereas the 2012 DACA Memo advises DHS staff to consider
exercising prosecutorial discretion with respect to individuals meeting certain identified criteria
(such as age of entry into the United States and absence of a meaningful criminal record), the
DACA Rescission Memo directs those staff not to consider those criteria when exercising their

prosecutorial discretion. The DACA Rescission Memo is thus "directed primarily at the staff of
[DHS]describing how it will conduct agency discretionary functions." Noel. 508 F.2d at 1030
(internal quotation marks and citation omitted).
It is true that, if the DACA Rescission Memo were to take effect, hundreds ofthousands

ofindividuals would no longer have the opportunity to seek deferred action and work
authorization through the DACA program. As Defendants note, however,the DACA Rescission

Memo does not purport to strip immigration authorities ofthe ability to grant deferred action and
work authorization, but only provides that they should not do based on the criteria identified in
the 2012 DACA Memo,or on the submission of DACA application materials. (BV MTD at 7

("[A]s was true before implementation ofthe DACA Policy in 2012, deferred action remains
available on an individualized basis.").) At least in theory, individuals who would have been
eligible for deferred action and work authorization under the DACA program may still qualify
for those benefits based on their individual circumstances. As a practical matter, the DACA
Rescission Memo almost certainly means that fewer individuals will receive for deferred action
and work authorization. But the directive at issue in Noel surely reduced the number of aliens

eligible for discretionary relief, too, and that did not render the directive a legislative rule. See
Noel. 508 F.2d at 1025-26.

Plaintiffs contend that the DACA Rescission Memo nevertheless is a legislative rule

because it binds DHS's discretion and requires the agency to reject all DACA applications and
renewal requests not meeting certain criteria. (BV Pis. Opp'n at 12-14; State Pis. Opp'n at 1519.) As Plaintiffs point out, a number of courts outside this circuit—^most notably the D.C.
Circuit—^have determined whether a rule is legislative at least partly by looking to whether the
rule constrains the agency's own discretion. See, e.g.. Clarian Health W.. LLC v. Hargan. 878

F.3d 346,357(D.C. Cir. 2017). In this view, a rule "'cabining ... an agency's prosecutorial
discretion can in fact rise to the level ofa substantive, legislative rule' when it 'is in purpose or
likely effect one that narrowlv limits administrative discretion.'" Ass'n ofIrritated Residents v.
EPA.494 F.3d 1027, 1034(D.C. Cir. 2007)fauoting Cmtv. Nutrition Inst. v. Young.818 F.2d
943,948(D.C. Cir. 1987)(per curiam)). Plaintiffs note that the DACA Rescission Memo

10

mandates the rejection of certain DACA applications, and therefore contend that the memo
eliminates DHS's discretion to consider those applications and thus constitutes a legislative rule.
While there is some force to Plaintiffs' arguments,they are unavailing. As an initial

matter, it is not clear to this court that an agency's compliance with its stated policy is reason to
deem that policy a legislative rule. Because one might expect functional organizations generally
to abide by their own policies, treating general compliance with internal policies as evidence that
those policies were in fact legislative rules risks writing the "general statements of policy"

exception to notice-and-comment rulemaking out ofthe APA.^ Moreover,it is important to
remember that the DACA Rescission Memo purports to end a program that was itself created by
a policy statement. Plaintiffs' view that Defendants must use notice and comment to stop what
started without notice and comment is not only counterintuitive, but also at odds with the general

principle that the procedures needed to repeal or amend a rule as the same ones that were used to
make the rule in the first place.

Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199,1206

(2015)("Because an agency is not required to use notice-and-comment procedures to issue an
initial interpretive rule, it is also not required to use those procedures when it amends or repeals

that interpretive rule.") To whatever extent the DACA Rescission Memo is in fact "binding" on
DHS,the court cannot agree that this prospective limitation on the agency's exercise ofits
discretion renders the memo a legislative rule.

Accordingly, Defendants' motion to dismiss Plaintiffs' notice-and-comment claims is
GRANTED.

^ For an insightful argument why the "practically binding" standard is inconsistent with the Supreme Court's
decision in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council. 435 U.S. 519(1978), see
Cass R. Sunstein,"Practically Binding": General Policy Statements and Notice-and-Comment Rulemaking. 68
Admin. L. Rey. 491 (2016).
11

3.

RFA

Plaintiffs also assert claims under the RPA. (BV TAC

183-87; State Pis. Am.Compl.

266-73.) Among other things, that statute provides that when an agency engages in
rulemaking, it must consider the impact of the rule on "small entities." 5 U.S.C. §§ 603(a),
604(a). The Batalla Vidal Plaintiffs claim that the DACA Rescission Memo violated the RFA
because it failed to consider the impact ofthe rescission on Plaintiff Make the Road New York
("MRNY")and similar small entities(BV TAC

184-85), while the State Plaintiffs contend

that DHS failed to consider the impact on "small businesses, small nonprofits, and small
governmental jurisdictions." (State Pis. Am. Compl.

266-73).

These claims are also unavailing. The RFA only requires an agency to publish an initial
or final regulatory flexibility analysis when the agency is required to use notice-and-comment

rulemaking procedures. 5 U.S.C. §§ 603(a), 604(a); U.S. Telecom Ass'n v. FCC.400 F.3d 29,
42(D.C. Cir. 2005). Because DHS was not required to use notice and comment to rescind the

DACA program, it was not required to conduct a regulatory flexibility analysis in connection
with that decision.

Accordingly, Defendants' motion to dismiss Plaintiffs' RFA claims is GRANTED.
4.

Equal Protection

The court next turns to Plaintiffs' claims that the decision to end the DACA program

violated the U.S. Constitution because it was substantially motivated by racial animus against
Latinos and,in particular, Mexicans. (BV TAC

195-98; State Pis. Am. Compl.

233-39.)

Defendants move to dismiss these claims on the grounds that Plaintiffs have failed to plausibly
allege that the DACA rescission was motivated by unlawful animus. (E.g.. State MTD at 31-34.)
The court concludes, however, that Plaintiffs have alleged sufficient facts to raise a plausible

12

inference that the DACA rescission was substantially motivated by unlawful discriminatory
purpose.

The Equal Protection Clause ofthe Fourteenth Amendment to the U.S. Constitution

generally prohibits government officials from discriminating on the basis ofrace. U.S. Const,

amend. XIV,§ 1. Although the Equal Protection Clause by its terms applies to states, the
Supreme Court has long recognized that the Due Process Clause ofthe Fifth Amendment

generally prohibits racial discrimination by the federal government as well. Boiling v. Shame.

347 U.S.497,498-500(1954). In order to state an equal-protection claim based on racial

discrimination. Plaintiffs must allege "that a government actor intentionally discriminated

against them on the basis ofrace." Havden v. Countv of Nassau. 180 F.Sd 42,48(2d Cir. 1999).
Where,as here. Plaintiffs challenge facially neutral official action, they may support this claim
by alleging either that the facially neutral action "is applied in a discriminatory fashion," or that

"it was motivated by discriminatory animus and its application results in a discriminatory effect."
14(first citing Yick Wo v. Hopkins. 118 U.S. 356, 373-74(1886), and then citing Vill. of
Arlington Heights v. Metro. Hons. Dev. Corp.. 429 U.S. 252,264-65(1977)(^"Arlington
Heights")). Only the latter theory is at issue here, as Plaintiffs argue that the DACA Rescission

Memo both disadvantages and was intended to disadvantage certain racial groups. (BY TAC f
197; State Pis. Am. Compl.H 235-36.) The court discusses each element ofan equal-protection
claim in turn.

a)

Effect

Plaintiffs allege that the rescission ofthe DACA program would have a disparate impact
on Latinos and especially Mexicans. (BY TAC If 197.) The State Plaintiffs allege that 78
percent ofDACA recipients are Mexican nationals. (State Pis. Am. Compl. If 6.) Indeed,

13

according to USCIS data attached to the State Plaintiffs' amended complaint, ofthe 793,026
individuals whose initial DACA applications were approved between 2012 and June 30, 2017,

more than 78 percent originated in Mexico, and at least 93 percent originated in Latin America
as a whole. (USCIS,Number of Form 1-82ID, Consideration of Deferred Action for Childhood

Arrivals(Dkt. 55-1 at ECF p.2).)^ These allegations are sufficient to raise a plausible inference
that the end ofthe DACA program would have a disproportionally adverse effect on Latinos and
especially Mexicans.

Relying heavily on United States v. Armstrong. 517 U.S. 456(1996), Defendants argue
that Plaintiffs bear a "rigorous" or especially "heavy burden" to survive a motion to dismiss, and
thus that allegations ofthe outsized impact of the DACA rescission on Latino/a individuals and
especially Mexicans are insufficient to plead discriminatory effect. (BV MTD at 20-21; State

MTD at 32(characterizing the prevalence of Mexican nationals among DACA recipients as "an
unsurprising accident of geography, not evidence of discrimination").) Armstrong is, however,

inapposite. In that case, the Court considered the initial showing that a criminal defendant

asserting a "selective prosecution" claim under the Equal Protection Clause must make before
obtaining discovery pursuant to Rule 16 ofthe Federal Rules of Criminal Procedure. This is,

however, a civil case, the pleading standards for which are set forth in Twomblv and Iqbal.
Moreover, as the court has previously explained. Plaintiffs are not asserting a "selective-

deportation" claim, which might be analogized to the selective-prosecution claim at issue in
Armstrong. (Nov.9 M&O at 28-31.) Rather than alleging that they in particular are being
targeted for removal because oftheir race—in which case judicial review oftheir suit would

' file lists the number of DACA applications approved for the top 25 countries oforigin for DACA recipients,
This
not for all countries from which DACA recipients originate. (Id.)

14

presumably be limited by 8 U.S.C. § 1252(g),

Reno v. Am.-Arab Anti-Discrimination

Comm..525 U.S. 471 (1999)—^Plaintiffs allege that the categorical decision to end the DACA

program, which provided them with some limited assurance that they would not be deported, was
motivated by unlav^l animus.

Regents ofthe Univ. of Calif, v. DHS.No. 17-CV-5211

(WHA),2018 WL 401177, at *6 n.3(N.D. Cal. Jan. 12, 2018)("Regents 12(by6^ Order")
(rejecting Defendants' attempt to characterize similar challenges as selective-prosecution
claims).

Defendants also argue that the court should dismiss the Batalla Vidal Plaintiffs' equalprotection claim because, among other things, it fails to offer particularized allegations ofthe
discriminatory impact ofthe DACA rescission on Latino/a and especially Mexican individuals.
Ifthe court were considering Batalla Vidal Plaintiffs' third amended complaint on its own,the
court might agree. The Batalla Vidal Plaintiffs' allegation that "[t]he DACA Termination targets
Latinos and,in particular, Mexicans, and will have a disparate impact on these groups"(BV

TAC ^ 197)appears to be a fairly conclusory "recital[] ofthe elements of a cause of action,"
which the court need not accept as true. Iqbal. 556 U.S. at 678. Their fellow Plaintiffs have,
however, alleged particularized facts in support ofthis allegation. More importantly, the court
takes judicial notice ofthe USCIS data referenced above, which may be considered on a Rule
12(b)(6) motion. Kramer v. Time Warner Inc.. 937 F.2d 767,773(2d Cir. 1991). The court
declines to dismiss the Batalla Vidal Plaintiffs' equal-protection claim simply because they did

not append the same data to their third amended complaint. Both sets of Plaintiffs have
adequately alleged that the rescission ofthe DACA program has a disproportionate impact on
Latino/a and especially Mexican individuals.

15

b)

Purpose

To establish discriminatory motivation. Plaintiffs must ultimately show that "invidious
discriminatory purpose was a motivating factor" in the decision. Arlington Heights. 429 U.S. at
266. In other words,they must show that Defendants "selected or reaffirmed a particular course

of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an
identifiable group." Personnel Adm'r v. Feenev, 442 U.S. 256,279(1979). But they "need not
prove that the 'challenged action rested solely on racially discriminatory purposes.'" Havden v.
Paterson. 594 F.3d 150, 163(2d Cir. 2010)(quoting Arlington Heights,429 U.S. at 265).
"Because discriminatory intent is rarely susceptible to direct proof, litigants may make 'a

sensitive inquiry into such circumstantial and direct evidence of intent as may be available.'" Id.
(quoting Arlington Heights. 429 U.S. at 266). In "extreme" cases, a facially neutral law may
have such a "clear" disparate impact,"unexplainable on grounds other than race," that evidence
of disparate impact alone may suffice to show discriminatory purpose. Arlington Heights. 429

U.S. at 266 (citing, e.g., Yick Wo, 118 U.S. at 356, and Gomillion v. Lightfoot, 364 U.S. 339
(I960)). In the absence ofsuch a pattern, however,"impact alone is not determinative, and the
[c]ourt must look to other evidence" to determine if the challenged action was motivated by
discriminatory purpose. Id This evidence may include,for example,(1)"[t]he historical

background ofthe decision ... particularly if it reveals a series of official actions taken for
invidious purposes";(2)"[t]he specific sequence ofevents leading up to the challenged
decision";(3)"[d]epartures from the normal procedural sequence," which "might afford
evidence that improper purposes are playing a role";(4)"[s]ubstantive departures ...

particularly ifthe factors usually considered important by the decisionmaker strongly favor a
decision contrary to the one reached";(5)"[t]he legislative or administrative history...

16

especially where there are contemporary statements by members ofthe decisionmaking body,
minutes ofits meetings, or reports"; and(6)"[i]n some extraordinary circumstances," testimony
of official decisionmakers. Id. at 266-68; see also Havden v. Paterson. 594 F.3d at 163.

To establish discriminatory purpose. Plaintiffs identify a disheartening number of
statements made by President Donald Trump that allegedly suggest that he is prejudiced against
Latinos and, in particular, Mexicans. (BV TAC

89-99; State Pis. Am. Compl.Iff 57-77.)

These comments include(1)then-candidate Trump's assertions that Mexican immigrants are not

Mexico's "best," but are "people that have lots of problems,""the bad ones,""criminals, drug
dealers,[and] rapists"(BV TAC

91-93; State Pis. Am. Compl. TIK 58-59);(2) Trump's

characterization ofindividuals who protested outside a campaign rally as "thugs who were flying
the Mexican flag"(State Pis. Am. Compl.^ 61);(3) Trump's statements that a U.S.-bom federal
judge of Mexican descent could not fairly preside over a lawsuit against Trump's for-profit
educational company because the judge was "Mexican" and Trump intended to build a wall
along the Mexican border(BV TAC ^ 96; State Pis. Am. Compl.

62); and(4)pre- and post-

Inauguration characterizations of Latino/a immigrants as criminals,"animals," and "bad
hombres"(BV TAC HI 97,99; State Pis. Am. Compl. HH 65-66, 70).

Accepting Plaintiffs' non-conclusory allegations as true and reading all reasonable
inferences in their favor, the court concludes that these allegations are sufficiently racially
charged, recurring, and troubling as to raise a plausible inference that the decision to end the
DACA program was substantially motivated by discriminatory animus. Although the use of
racial slurs, epithets, or other racially charged language does not violate equal protection per se.

it can be evidence that official action was motivated by unlawful discriminatory purposes. See,
e.g.. Williams v. Bramer. 180 F.3d 699, 706(5th Cir. 1999); Smith v. Thomburg. 136 F.3d 1070,

17

1089-90(6th Cir. 1998); Freeman v. Arpaio. 125 F.3d 732,738 n.6(9th Cir. 1997), overruled in
part on other grounds bv Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008); All v.
Connick. 136 F. Supp. 3d 270,279-80(E.D.N.Y. 2015)(collecting cases). The court is aware of
no authority holding that this rule does not apply simply because the speaker is, or is running to
be,the President ofthe United States. The court expresses no view as to whether these

statements(which as Defendants note, are not directly connected to the DACA rescission) would
ultimately suffice to provide that the rescission was motivated by discriminatory animus; that is a
question for summary judgment or trial. The court concludes only that Plaintiffs have alleged

sufficient facts to raise a plausible inference that the DACA rescission violated equal protection,
and thus to withstand a motion to dismiss.^

Defendants do not defend the President's comments but argue instead that the court
should simply ignore them. First, Defendants suggest that because the President's statements
were "almost all made before he took the oath of office and [were not] made in connection with

the[DACA rescission]," these comments "do not tend to show the existence of both
discriminatory intent and discriminatory effect." (State MTD at 33.) Defendants cite no

authority for the proposition that, to state an equal-protection claim, a plaintiff must point to
some evidence that simultaneously demonstrates both discriminatory intent and discriminatory

effect, or that evinces discriminatory bias directly in connection with the challenged official
action. To the contrary, Arlington Heights states that courts may consider the background of

® Because the comments identified above are sufficient to raise a plausible inference ofdiscriminatory purpose, the
court need not decide whether Plaintiffs' remaining allegations support an inference of discriminatory purpose. For
example, Plaintiffs allege or argue in their briefs that the President decided to pardon former Maricopa County,
Arizona, Sheriff Joe Arpaio(BV TAG ^ 98; State Pis. Am. Compl. 67-69), that he has made offensive statements
about Muslims, Native Americans,transgender individuals, and "shithole countries"(BV Pis. Opp'n at 19-20), and

that, during the campaign,then candidate Trump retweeted a post apparently criticizing former Florida governor Jeb
Bush for speaking "Mexican"(BV TAG If 95). The court observes, however, that these allegations would seem to
offer only weak support, at best, for the notion that the President's alleged decision to end the DAGA program was
motivated by desire to harm Latinos and especially Mexicans.
18

facially neutral decisions to smoke out whether they were covertly motivated by discriminatory
purposes. 429 U.S. at 267.

The court recognizes that searching for evidence of discriminatory motivation in

campaign-trail statements is potentially fraught. Old statements may say little about what lay
behind a later decision. Statements made in the throes of a heated race may be "contradictory or

inflammatory," and considering them may indeed incentivize litigants in future cases to embark
on an "evidentiary snark hunt" in search of past comments indicative ofsome sort of bias.
Washington v. Trump,858 F.3d 1168, 1173-74(9th Cir. 2017)(Kozinski, J., dissenting from

denial of reh'g en banc);^Regents nrbUb") Order. 2018 WL 401177, at *7(recognizing that

consideration ofcampaign statements "can readily lead to mischiefin challenging the policies of
a new administration"). Moreover, an equal-protection claim brought against the President raises

difficult questions of whether—and,if so,for how long—^any Executive action
disproportionately affecting a group the President has slandered may be considered
constitutionally suspect.

While these are all good reasons to tread lightly, the court does not see why it must or

should bury its head in the sand when faced with overt expressions of prejudice. Arlington
Heights calls for a "sensitive inquiry into such circumstantial and direct evidence ofintent as

may be available," and campaign-trail statements by the official allegedly responsible for a
challenged policy would seem to fall squarely within this inquiry. Ct IntT Refugee Assistance
Project V. Trump.883 F.3d 233,266(4th Cir. 2018)(en banc)(declining to consider pre-election
statements while noting that they "certainly provide relevant context when examining the
purpose" of a challenged Presidential proclamation suspending entry ofindividuals from
specified countries), pet, for cert, docketed. No. 17-1270. At the very least, one might

19

reasonably infer that a candidate who makes overtly bigoted statements on the campaign trail
might be more likely to engage in similarly bigoted action once in office.
Defendants' attempts to pass the buck to Acting Secretary Duke are no more persuasive.
Defendants argue that the President's statements are legally irrelevant because Acting Secretary
Duke "was the only official vested with authority...to make the decision at issue," and
Plaintiffs do not point to similarly objectionable statements by her. (BV MTD at 22; State MTD
at 34.) To the extent Defendants argue that Plaintiffs have insufficiently alleged racial animus on

the part of Acting Secretary Duke or the Attorney General,the court is inclined to agree:
Plaintiffs have not identified statements by Acting Secretary Duke or the Attorney General that
would give rise to an inference of discriminatory motive. Although the Batalla Vidal Plaintiffs
insinuate that the Attorney General referred to immigrants as "filth"(BV TAG H 100; BV Pis.

Opp'n at 20), his prepared remarks make clear that this term was used only to refer to
international drug-trafficking cartels and the gang MS-13(Dep't of Justice, Press Release,
Attorney General Jeff Sessions Delivers Remarks Announcing the Department of Justice's
Renewed Commitment to Criminal Immigration Enforcement(Apr. 11, 2017),

https://www.justice.gov/opa/speech/attomey-general-jeff-sessions-delivers-remarks-announcingdepartment-justice-s-renewed). This comment therefore does not support a plausible inference
that the Attomey General was motivated by racial discrimination when he advised that Acting
Secretary Duke end the DACA program.

The court rejects, however. Defendants' remarkable argument that the President
apparently cannot be liable for rescinding the DACA program because only Acting Secretary
Duke had the legal authority to end that program. (State MTD at 34.) Our Constitution vests
"executive Power" in the President, not in the Secretary of DHS, who reports to the President

20

and is removable by him at will. U.S. Const., art. II, § 1, cl. 1. This position appears to be at
odds with the stated position of the President himself, who tweeted that if Congress were unable
to "legalize DACA," he would "revisit this issue," implying that he (correctly) understands that
he has ultimate authority over the program. (Donald J. Trump(@realDonaldTrump),
Twitter.com (Sept. 5,2017 7:38 PM),

https://twitter.eom/realdonaldtrump/status/905228667336499200.) If, as Plaintiffs allege.
President Trump himself directed the end ofthe DACA program (e.g.. State Pis. Am. Compl.
16), it would be surprising if his "discriminatory intent [could] effectively be laundered by
being implemented by an agency under his control"(BV Pis. Opp'n at 18). As courts have
recognized in far more mundane contexts, liability for discrimination will lie when a biased

individual manipulates a non-biased decision-maker into taking discriminatory action. Cf.
Vasquez v. Empress Ambulance Serv.. Inc.. 835 F.3d 267,272-73(2d Cir. 2016)(discussing
"cat's paw" liability, under which an organization may be held liable for employment

discrimination when a prejudiced subordinate manipulates an unbiased superior into taking
adverse employment action); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107,
126 & n.18(2d Cir. 2004)(applying cat's-paw theory to equal-protection claim).
Accordingly, Defendants' motion to dismiss Plaintiffs' equal-protection claims is
DENIED.

B.

Information-Use Policy

Next,the court considers whether the Batalla Vidal Plaintiffs state a claim regarding

Defendants' alleged changes to DHS's information-use policy.^ The court concludes that they

'
Although the State Plaintiffs also asserted similar claims under the Fifth Amendment and principles ofequitable
estoppel (State Pis. Am. Compl.

240-52), the court previously dismissed these claims for lack ofstanding(Nov.9

M&O at 41-46).
21

have not done so, because materials attached to their third amended complaint refute their

allegation that Defendants have changed that policy to make it easier to use DACA applicants'
information for immigration-enforcement purposes.

The Batalla Vidal Plaintiffs contend that Defendants essentially tricked them into

exposing themselves and their family members to a heightened risk of deportation. To apply for
DACA,individuals disclosed "extensive sensitive and personal information" about themselves
and, often, their family members,to immigration authorities. (BV TAG KK 77-79.) They did so,

the third amended complaint alleges, because "Defendants consistently represented ... that the
information they provided would be protected from disclosure to U.S. Immigrations and
Customs Enforcement("ICE")and Customers and Border Protection("CBP")for immigration

enforcement proceedings against them and their family members or guardians, except in limited,

delineated circumstances." (Id. ^ 80.)'*^ Plaintiffs contend that, as part ofthe DACA rescission,
however,"DHS has changed its policy ...to remove the limitations on using [this] information

for immigration-enforcement purposes." (Id. K 156.) In particular. Plaintiffs attach to the third

In particular, the DACA application form provided as follows:
Information provided in this request is protected from disclosure to ICE and
rCBPl for the purpose of immigration enforcement proceedings unless the
requestor meets the criteria for the issuance ofa Notice to Appear or a referral to
ICE under the criteria set forth in USCIS' Notice to Appear guidance .... The

information may be shared with national security and law enforcement agencies,
including ICE and CBP,for purposes other than removal, including for assistance
in the consideration of deferred action for childhood arrivals request itself[sic],
to identify or prevent fraudulent claims, for national security purposes, or for the
investigation or prosecution ofa criminal offense. The above information sharing
clause covers familv members and guardians, in addition to the requestor.

This policy, which may be modified, superseded, or rescinded at any time without
notice, is not intended to, does not, and may not be relied upon to create any right
or benefit, substantive or procedural, enforceable at law by any party in any
administrative, civil, or criminal matter.

(Form 1-82ID, Consideration of Deferred Action for Childhood Arrivals(Dkt. 113-1 at ECF p.6)at ECF p.25
(emphasis added).)

22

amended complaint a document offrequently asked questions published by USCIS on November
30,2017(the "November 30 FAQs"), which states that "[information provided to USCIS for the
DACA process will not make you an immigration priority for that reason alone. That
information will only be proactivelv provided to ICE or CBP if the requestor meets the criteria
for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS'
Notice to Appear guidance." (USCIS, Frequently Asked Questions: Rejected DACA Requests
(Last Reviewed/Updated 11/30/2017) C'Nov. 30 FAQs")(Dkt. 113-1 at ECF p.65) at Q5

(emphasis added).) The Batalla Vidal Plaintiffs contend that this alleged change violated Section
706(2)(A)ofthe APA. (Id

179, 181.)

Defendants argue that this claim should be dismissed because they have not, in fact,

changed the information-use policy. (BV MTD at 2, 5, 17-18.) Ordinarily, the court would not
resolve such a factual dispute on a motion to dismiss. But "where a conclusory allegation in the
complaint is contradicted by a document attached to the complaint, the document controls and
the allegation is not accepted as true." Amidax Trading Grp. v. S.W.I.F.T. SCRL.671 F.3d 140,

147(2d Cir. 2011)(per curiam)(discussing Rule 12(b)(1) motions); Kardovich v. Pfizer. Inc., 97
F. Supp. 3d 131,140-41 (E.D.N.Y. 2015). Here, the November 30 FAQs, which are attached to

Plaintiffs' complaint, state expressly that the DACA "information-sharing policy has not
changed in any way since it was first announced, including as a result ofthe Sept. 5,2017 memo
starting a wind-down ofthe DACA policy." (Nov. 30 FAQs at Q5; see also USCIS,Frequently
Asked Questions: Rejected DACA Requests(Last Reviewed/Updated 12/07/2017)("Dec.7

FAQs")(Dkt. 113-1 at ECF p.68) at Q5.) While the Batalla Vidal Plaintiffs argue that the court
should not credit Defendants' unsworn representation that there has been no change to the
information-sharing policy, they do not answer Defendants' argument that they have effectively

23

pleaded themselves out ofcourt by relying on a document that contradicts their otherwiseunsupported allegation of a change to DHS's information-use policy, (Compare BV MTD at 1718, vMl BV Pis. Opp'n at 10 n.l 1.)

Accordingly, Defendants' motion to dismiss the Batalla Vidal Plaintiffs' substantive
APA claim, to the extent that claim alleges that Defendants arbitrarily and capriciously changed

DHS's information-use policy, is GRANTED.*'
To be clear, the court holds only that the Batalla Vidal Plaintiffs have not plausibly

alleged that DHS actually changed its information-sharing policy. Ifthese Plaintiffs were to
allege additional facts giving the lie to Defendants' assertion that there has been no change to

this policy, they may have a compelling claim to relief. Two other district courts have already
denied Defendants' motions to dismiss similar claims.

CASA de Maryland v. U.S. DHS. —

F. Supp. 3d—,2018 WL 1156769, at *14-15(D. Md.2018)(estoppel); Resents 12rb¥61 Order.
2018 WL 401177, at *4-5 (substantive due process). The U.S. District Court for the District of
Maryland has specifically enjoined Defendants from using DACA applicants' personal
information for immigration-enforcement purposes except as authorized by established DHS

policy or in camera review,

Am. Order(Dkt. 49), CASA de Marvland v. U.S. DHS.No.

8:17-CV-2942(RWT)
(D. Md. Mar. 15,2018).
C.

Procedural Due Process

Finally, the court tums to the newly asserted claim in the Batalla Vidal Plaintiffs' third
amended complaint, in which MRNY challenges Defendants' processing ofrenewal requests
submitted pursuant to the DACA Rescission Memo. MRNY states a claim with respect to some

" The court notes, however, that two other district courts have denied Defendants' motions to dismiss similar
claims. See CASA de Marvland v. U.S. DHS.— F. Supp. 3d—,2018 WL 1156769, at *14-15(D. Md.2018)

(estoppel); Regents nrbYdl Order. 2018 WL 401177, at *4-5 (substantive due process).
24

categories ofDACA recipients whose renewal requests were allegedly unfairly denied in
September or October 2017, but not others.

In the DACA Rescission Memo,Acting Secretary Duke stated that DACA recipients
whose deferred action and work authorization were set to expire before March 5,2018,could

request a final two-year extension oftheir benefits, (DACA Rescission Memo at 4,) In
particular, DHS would "adjudicate—on an individual, case by case basis—^properly filed
pending DACA renewal requests and associated applications for Employment Authorization
Documents from current beneficiaries that have been accepted by the Department as ofthe date
ofthis memorandum,and fi*om current beneficiaries whose benefits will expire between

[September 5,2017] and March 5,2018 that have been accepted by[DHS]as of October 5,
2017," (Id)

According to MRNY,Defendants implemented this directive in a series of unfair ways.
First, MRNY alleges, Defendants rejected applications that were delivered to USCIS P.O, boxes
late in the day on October 5 but not retrieved by USCIS staff and taken to separate USCIS
"lockboxes" until the following day, (BV TAC

115-20,) Second, Defendants allegedly

rejected as untimely certain renewal requests that were delivered after October 5 due to unusual
U,S, Postal Service delays, (Id

121-22; see also Liz Robbins,Post Office Fails to Deliver on

Time, and DACA Applications Get Rejected. N,Y, Times(Nov, 10,2017)(Dkt, 113-1 at ECF
p,49),) Third, Defendants allegedly rejected renewal requests that were received before October
5 "but had been returned to the applicant due to real or perceived clerical errors," (BV TAC

^ 123,) For example, USCIS allegedly rejected one MRNY member's DACA renewal request
because a USCIS employee misread the date on her application-fee check as "2012,"rather than

"2017," (Id H 124,) DHS invited some ofthese applicants to refile corrected applications, but

25

when they did so, DHS rejected the refiled requests as untimely. (Id

123,127) According to

MRNY,this deviated from DHS's prior practice ofallowing individuals whose DACA

applications were rejected for minor clerical errors to correct those errors or submit further
evidence in support oftheir applications within a given period oftime. (Id K 123)
On November 15, 2017, Defendants indicated that USCIS would reconsider certain

applications that were delayed in the mail or improperly rejected. (Id 1129(citing Defs. Nov.
15, 2017, Letter Regarding USCIS Guidance(Dkt. 108).) USCIS allegedly stated that it would
reach out to individuals whose applications were rejected as untimely due to mail delays and

provide them instructions on how to resubmit their applications. (BV TAC

130.) USCIS

allegedly has not, however, created an equivalent process for individuals whose applications

were rejected due to real or perceived minor clerical errors. (Id

132-34.) MRNY contends

that this "arbitrary and unfair implementation ofthe October 5,2017[DACA renewal request]
deadline violates the Due Process Clause ofthe Fifth Amendment" by depriving DACA
recipients of a liberty or property interest without the process to which they are entitled. (Id

Kl 199-205.)
1.

Standing

Defendants first move to dismiss this claim for lack of standing, arguing that MRNY has

not alleged that its clients or members suffered an injury-in-fact because "the injuries on which

[it]... relies have been remedied." (Id at 10.)^^ This argument is meritless.

Defendants do not contest that MRNY has organizational standing to assert this claim. "[A]n association has
standing to bring suit on behalfof its members when:(a) its members would otherwise have standing to sue in thenown right;(b)the interests it seeks to protect are germane to the organization's purpose; and(c)neither the claim
asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash.
State Apple Advert. Comm'n.432 U.S. 333,343(1977). MRNY specifically alleges in the third amended
complaint that a number of its members' and clients' DACA renewal requests were denied due to the alleged
processing errors discussed above. (BV TAC 54-56, 118-24, 127-29, 134.) Ensuring that DACA renewal
requests are adjudicated in a fair and orderly manner is clearly consistent with MRNY's purpose of"empowering
immigrant. Latino/a, and working-class communities in New York." (Id If 45.) The court is not aware ofany
26

As their submissions make clear, Defendants have not, in fact, remedied all injuries

incurred by DACA recipients whose renewal requests were allegedly improperly rejected. For
MRNY clients and members whose applications arrived late on October 5,"the agency will
identify those individuals affected and invite them to resubmit their DACA requests," and "those
not yet contacted .., may affirmatively reach out to the agency, explain their situation, and
resubmit their request for reconsideration." (Id.(citing Dec. 7 FAQs at Q3).) For individuals
whose requests were delayed due to postal-service errors and subsequently rejected as imtimely,
"USPS is working with USCIS to identify DACA requests that were received after the deadline
due to USPS mail-service delays." (Id at 11 (quoting Dec. 7 FAQs at Q8).) Once such requests
are identified,"USCIS will send affected DACA requestors a letter inviting them to resubmit

their DACA request." (Id (quoting Dec. 7 FAQs at Q8).) And individuals whose requests were
rejected due to perceived clerical errors "may contact the agency and explain the error believed

to have been made";"[ijdentification of'clear error in the processing of a renewal request' mav
result in the agency 'exercising its discretion to review the request again.'" (Id (quoting Dec. 7

FAQs at Q7(emphasis added and alterations adopted)).) Thus, with respect to each category of

allegedly wronged MRNY client or member. Defendants' supposed "remedy" is either that
USCIS intends to address the injury in the future or that it will allow the injured party to ask it to
reconsider its decision. The court commends Defendants for taking steps to redress the allegedly

wrongful denials ofthese DACA renewal requests. But Defendants err to the extent they
contend that, because they have stated that they may reconsider these denials, MRNY members
and clients whose applications were denied have not suffered injuries-in-fact.

Wong v.

reason why this claim or the relief requested by MRNY requires the participation ofindividual DACA requestors.
Accordingly, the court concludes that MRNY has associational standing to assert this claim.

27

Daines. 582 F. Supp, 2d 475,479(S.D.N.Y. 2008)(failure to exhaust administrative remedies

does not implicate Article III injury-in-fact).^^ MRNY has standing to assert this claim on behalf
of its members and clients who were adversely affected by Defendants' allegedly wrongful
adjudication oftheir DACA renewal requests.
Nor is this claim moot. Although Defendants have reconsidered their denial of at least
one MRNY member's DACA renewal request(e.g.. BV TAG ^ 120; BV MTD at 10 n.3),

MRNY appears that many ofits members and clients still await relief(BV Pis. Opp'n at 17-18).
Even if Defendants had taken action to right all these alleged wrongs,"[a] defendant's voluntary
cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case" unless it is
"'absolutely clear that the allegedly wrongful behavior could not reasonably be expected to
recur.'" Friends ofthe Earth. Inc. v. Laidlaw Bnvtl. Servs.(TOO.Inc.. 528 U.S. 167,174, 189

(2000)(quoting United States v. Concentrated Phosphate Export Ass'n. 393 U.S. 199,203
(1968)). Defendants offer no such assurances here.

Accordingly, Defendants' motion to dismiss the Batalla Vidal Plaintiffs' sixth claim for
relief is DENIED,to the extent it seeks to dismiss this claim for lack of subject-matter
jurisdiction.
2.

Merits

Next, Defendants contend that MRNY has failed to state a procedural-due-process claim
based on the allegedly wrongful denials of certain DACA recipients' renewal requests. (BV
MTD at 22-25.) The court agrees in part and disagrees in part.

Defendants also contend that the court should require MRNY to exhaust administrative remedies before filing
suit in federal court. (BV MTD at 11-12.) As the Batalla Vidal Plaintiffs note, however(BV Pis. Opp'n at 3,5),
Defendants identify no statute that would require them to exhaust administrative remedies before filing suit. See
Darbv v. Cisneros. 509 U.S. 137, 153-54(1993).

28

"A procedural due process claim is composed oftwo elements:(1)the existence of a
property or liberty interest that was deprived and (2)deprivation ofthat interest without due
process." Bryant v. N.Y. State Educ. Dep't. 692 F.3d 202, 218(2d Cir. 2012).
Defendants focus on the first element, contending that MRNY has not identified a

constitutionally protected liberty or property interest "for the simple reason that DACA
recipients have no... interest in deferred action." (BV MTD at 23.) They correctly argue that
only benefits to which a person has a "legitimate claim ofentitlement" can support a

constitutionally protected liberty or property interest. (Id.(quoting Town of Castle Rock v.
Gonzales. 545 U.S. 748,756(2005)).) Because the decision to grant deferred action and work
authorization is ultimately discretionary, they say, there can be no constitutionally protected

liberty or property interest in receiving DACA benefits. (Id. at 23-24; see also 2012 DACA
Memo at 4.)

This argument is partly true. "In determining whether a given benefits regime creates a
'legitimate claim of entitlement' to such benefits, we ask whether the statutes and regulations
governing the distribution of benefits 'meaningfully channel[] official discretion by mandating a

defined administrative outcome.'" Barrows v. Burwell. Ill F.3d 106, 113(2d Cir. 2015)

(quoting Kapps v. Wing,404 F.3d 105, 113(2d Cir. 2005)). The 2012 DACA Memo only sets
out criteria for DHS staffs consideration, and there is no guarantee that fulfillment ofthese
criteria will result in a grant of deferred action or work authorization. Under the memo,the
decision to grant or deny those benefits is entirely as a matter of DHS's discretion. Because

DHS is not effectively required to grant any particular DACA renewal requests, MRNY cannot
state a procedural-due-process claim challenging the denial of its members' and clients' requests.
Cf. Yuen Jin v. Mukasev. 538 F.3d 143, 156-57(2d Cir. 2008)(petitioners for asylum lack

29

liberty or property interest in discretionary relief). While the denial ofthose requests may affect
some DACA recipients' liberty interests(a question the court need not decide), any such liberty
interests are ultimately contingent on DACA beneficiaries' receipt of renewed deferred action, to
which they have no "legitimate entitlement."

Defendants' argument is also something of a red herring. MRNY contends not only that
Defendants improperly denied its members' and clients' renewal requests, but that Defendants'
implementation ofthe October 5 deadline improperly denied MRNY's members and clients of

the opportunity to be considered for renewal. (BV Pis. Opp'n at 23.) As MRNY points out, the
DACA Rescission Memo clearly stated that USCIS "will adjudicate ... properly filed pending

DACA renewal requests and associated applications for Employment Authorization Documents

...from current beneficiaries whose benefits will expire between [September 5, 2017] and
March 5, 2018 that have been accepted by[DHS]as of October 5, 2017." (DACA Rescission
Memo at 4(emphasis added);
^BV Pis. Opp'n at 23.) While the ultimate decision to grant or

deny a renewal request is discretionary, this language makes clear that USCIS would at least

consider every "properly filed" and timely "accepted" renewal request. MRNY has therefore
sufficiently alleged that its affected members and clients had a legitimate entitlement to submit
their renewal requests. ^Yuen Jin. 538 F.3d at 161 n.l (Sack, J., concurring in part and in the
judgment)("Although asylum is a discretionary form of relief, and the Due Process Clause does

not protect benefits that government officials may grant or deny in their discretion, every asylum
applicant is nonetheless entitled to due process in establishing her eligibility for that form of
relief."(internal quotation marks and citations omitted and alteration adopted)).
MRNY has also sufficiently alleged that at least some ofits members and clients were

deprived of cognizable interests in the consideration oftheir DACA renewal requests without

30

due process oflaw. With respect to individuals whose requests were rejected because they were
delivered to USCIS P.O. boxes on October 5 but not transferred to the appropriate "lockbox"

until the following day, the DACA Rescission Memo was at least ambiguous as to which
applications would be deemed "accepted ... as of October 5,2017." (DACA Rescission Memo
at 4.) The DACA Rescission Memo did not state that applications had to be received at a USCIS

P.O. box by mid- to late aftemoon to be "accepted," or that only those applications redelivered to
a designated USCIS "lockbox" by October 5 would be deemed "accepted," raising the possibility
that MRNY may be able to show that the denial of these requests violated due process. See
Mever v. Jinkosolar Holdings Co.. 761 F.3d 245,249(2d Cir. 2014)(stating that, on a Rule

12(b)(6) motion,"dismissal is appropriate only where [plaintiffs] can prove no set offacts
consistent with the complaint that would entitle them to relief). Likewise, MRNY has stated a
claim on behalf ofindividuals whose requests were rejected because USCIS staffincorrectly
deemed them to be marred by clerical errors. Such applications were,in fact,"properly filed," as

the DACA Rescission Memo required, but were only rejected due to errors by USCIS staff. It is
hard to see how such denials comport with due process.

MRNY has not stated a claim, however, with respect to DACA recipients whose requests
were rejected as untimely after being delayed by the U.S. Postal Service. The court sympathizes
with the plight ofthese individuals and commends Defendants for voluntarily taking steps to
address this unfortunate situation. The DACA Rescission Memo states, however, that only

"properly filed" and "accepted" requests would be considered. It is common for mailing
deadlines to be calculated based on when something is postmarked, not when it is actually
delivered to the recipient. But USCIS's stated decision to use a "delivery rule," rather than a

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"mailbox rule," to determine which requests were timely does not violate the Due Process
Clause.

Likewise, MRNY has not stated a claim with respect to individuals whose renewal
requests were rejected due to actual(as opposed to incorrectly perceived) clerical errors. In light
ofthe human consequences ofthe decision to grant or deny an individual a renewal ofDAGA
benefits, it may seem overparticular to deny a renewal request because someone "forg[ot] to
check a box,forg[ot] to sign or sign[ed] in the wrong place, or submitt[ed] a check for what

applicants previously had to pay for DACA renewal." (BV TAG H 141.) The court hopes that
USGIS will review these applications sympathetically, understanding the gravity oftaking away
someone's livelihood and tentative protection against deportation simply because he or she
forgot to check a box on a multi-page form. The court cannot, however, require USGIS to do so,
because due process oflaw does not require the agency to accept incomplete or incorrect renewal
requests.

Accordingly, Defendants' motion to dismiss the Batalla Vidal Plaintiffs' sixth claim for
relieffor failure to state a claim is GRANTED IN PART and DENIED IN PART. MRNY has

adequately alleged that the rejection of DAGA renewal requests that arrived late in the day on
October 5,2017, or that were erroneously deemed to contain minor clerical errors, violated
procedural due process. MRNY has not, however, stated a procedural-due-process claim on

behalfof requestors whose applications arrived after October 5 due to postal delays or actually
contained minor clerical errors.

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III.

CONCLUSION

For the reasons stated above, Defendants' motions to dismiss the Batalla Vidal Plaintiffs'

third amended complaint and the State Plaintiffs' amended complaint(Dkt. 207 in No. 16-CV4756; No. 71 in No. 17-CV-5228)are GRANTED IN PART and DENIED IN PART. The
Batalla Vidal Plaintiffs' first, third, and fourth claims for relief are dismissed, and the second

claim for relief is dismissed to the extent it alleges that Defendants weakened DHS's

information-use policy. The sixth claim for relief is dismissed in part, as stated above. The State
Plaintiffs' fifth and sixth claims for relief are dismissed.
SO ORDERED.

s/Nicholas G. Garaufis

:holas g.garauf^

Dated: Brooklyn, New York
March

United States District Judi

2018

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