Bautista–perez v. Holder

745 F.Supp.2d 948

Jose BAUTISTA–PEREZ, et al., Plaintiffs,

v.Eric H. HOLDER, Jr., Attorney General of the United States, and Janet Napolitano, Secretary of Homeland Security, Defendants.

No. C07–4192 TEH.

United States District Court, N.D. California.

Sept. 15, 2010.

Jonathan Myles Kaufman, The Law Offices of Jonathan M. Kaufman, San Francisco, CA, Linda Mary Dardarian, Jessica Stella Ramey Stender, Lin Yee Chan, Rachel Elizabeth Brill, Goldstein Demchak Baller Borgen & Dardarian, Oakland, CA, for Plaintiff.Brian A. Mizoguchi, U.S. Department of Justice, J. Max Weintraub, Office of Immigration Litigation, John H. Roberson, Shelley Weger, William J. Howard, United States Department of Justice, Elizabeth Anne Speck, Jeanne E. Davidson, Department of Justice, Washington, DC, Ila Casy Deiss, United States Attorney's Office, San Francisco, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

THELTON E. HENDERSON, District Judge.

This matter came before the Court on July 19, 2010, on the motion to dismiss filed by Defendants Eric Holder, the Attorney General of the United States, and Janet Napolitano, Secretary of Homeland Security (collectively, “Defendants”). Plaintiffs are nationals of El Salvador, Honduras, and Nicaragua who allege that United States Citizenship and Immigration Services (“USCIS” or “the Service”) ¹ unlawfully charged them a biometric services fee to register for Temporary Protected Status (“TPS”) when no new biometric data was collected from them. Defendants ask the Court to dismiss Plaintiffs' Second Amended Complaint (“SAC”) for failure to state a claim, on the grounds that the allegedly unlawful fee was in fact authorized by Congress.

For the reasons set forth below, Defendants' motion is GRANTED, and Plaintiffs' SAC is DISMISSED with leave to amend.

BACKGROUNDI. The TPS Program

TPS is a temporary immigration benefit established by Congress in 1990 for nationals of foreign states experiencing “extraordinary and temporary conditions” such as armed conflict or environmental disaster. Immigration Act of 1990, Pub. L. No. 101–649, § 302, 104 Stat. 4978, 5030 (1990) (codified at 8 U.S.C. § 1254a).² The statute empowers the Attorney General—now the Secretary of Homeland Security ³—to designate such countries for TPS if they are “unable, temporarily, to handle adequately the return” of their alien nationals, or if their nationals cannot return “in safety.” 8 U.S.C. § 1254a(b)(1). The Attorney General designated Honduras and Nicaragua for TPS in 1999, 64 Fed. Reg. 524 (Jan. 5, 1999), 64 Fed. Reg. 526 (Jan. 5, 1999), and El Salvador in 2001, 66 Fed. Reg. 14214 (Mar. 9, 2001). The designations for all three countries have been extended repeatedly since that time, and remain in effect today. See 8 U.S.C. § 1254a(b)(3)(C) (allowing a country's TPS designation to be extended for 6, 12, or 18 months so long as “the Attorney General does not determine” that the country “no longer meets the conditions for designation”); see also 75 Fed. Reg. 24734 (May 5, 2010) (extending designation of Honduras through January 5, 2012); 75 Fed. Reg. 24737 (May 5, 2010) (extending designation of Nicaragua through January 5, 2012); 75 Fed. Reg. 39556 (July 9, 2010) (extending designation of El Salvador through March 9, 2012).

TPS is available to aliens who have resided continuously in the United States—regardless of immigration status—since their country's designation, as long as they are admissible as an immigrant and not otherwise disqualified. 8 U.S.C. § 1254a(a)(5), (c)(1)(A), (c)(2). Aliens are ineligible for TPS if they have been convicted of certain crimes—including any felony or two or more misdemeanors—or if they are subject to other drug and security-related bars. Id. § 1254a(c)(1)(A)(iii), (c)(2)(A)(iii), (c)(2)(B)(i). Once granted TPS, an individual may receive employment authorization and remain in the United States as long as his or her status remains valid. Id. § 1254a(a)(1)-(2).

Following a country's designation, any nationals of that country who reside in the United States and seek to qualify for TPS must register “to the extent and in a manner which the Attorney General establishes.” 8 U.S.C. § 1254a(c)(1)(A)(iv). The initial registration period lasts no less than 180 days. Id. Once granted TPS, an alien must re-register annually “in a form and manner specified by the Attorney General,” or the status will be withdrawn. Id. § 1254a(c)(3)(C). In practice, USCIS requires those who receive TPS to re-register every time their country is re-designated, usually every 18 months. See, e.g., 75 Fed. Reg. at 24734 (setting forth “procedures necessary for nationals of Honduras ... with TPS to re-register”); id. at 24737 (Nicaragua); id. at 39556 (El Salvador).

II. Fees Charged for TPS

Congress allows USCIS to charge a “reasonable fee as a condition of registering an alien” for TPS, but has capped that fee at $50. 8 U.S.C. § 1254a(c)(1)(B). Since 1998, USCIS has also charged a fee to cover fingerprinting and biometric services for TPS applicants.⁴ That fee, which has increased gradually over time, has been set at $80 since 2007. 72 Fed. Reg. 41888, 41890 (Aug. 1, 2007). In 2009, Congress clarified that, “[i]n addition to collection of registration fees” described in § 1254a(c)(1)(B), “fees for fingerprinting services, biometric services, and other necessary services may be collected when administering” the TPS program. Department of Homeland Security Appropriations Act of 2010, Pub. L. No. 111–83, § 549, 123 Stat. 2142 (2009) (codified at 8 U.S.C. § 1254b) (“section 549”). Section 549 was explicitly retroactive to 1998, when the Service first charged TPS applicants for fingerprinting. Id. A separate work authorization fee has been allowed since 1991, and is currently set at $340. See Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102–232, § 304(b)(2), 105 Stat. 1733, 1749 (1991) (codified at 8 U.S.C. § 1254a(c)(1)(B)); 8 C.F.R. § 103.7(b)(1).

An initial applicant for TPS is therefore charged (1) a registration fee of $50.00; (2) a “biometric services fee” of $80.00 (if the applicant is 14 years of age or older); and (3) a $340.00 fee to apply for work authorization, if desired. 8 C.F.R. §§ 103.7(b)(1), 244.6. The registration fee is charged only once, upon the initial application for TPS. 8 C.F.R. § 103.7(b)(1) (prescribing fee “not to exceed $50” for “filing an initial application for Temporary Protected Status” (emphasis added)). However, USCIS charges the biometric services fee for every registration and re-registration. See, e.g., 75 Fed. Reg. at 24736 (requiring “all applicants 14 years of age or older” to “submit a biometric services fee” when registering or re-registering for TPS as a Honduran national).

III. Plaintiffs' Payment of Biometric Services Fees

Plaintiffs are eight nationals of El Salvador, Honduras, and Nicaragua who registered for TPS between the years 2002 and 2006 and have continued to re-register since that time. According to the SAC filed on May 11, 2010, each Plaintiff has been required to remit a biometric services fee every time he or she has applied or reapplied for TPS. In the second half of 2007, seven Plaintiffs received notices that, although their previously captured biometrics could be reused, the biometric services fee they had paid would not be refunded. The notice received by Plaintiff Jose Bautista Perez, dated July 27, 2007, reads as follows:

U.S. Citizenship and Immigration Services (USCIS) has received your Form I–821 (Application for Temporary Protected Status) and is currently processing your application. This notice informs you that USCIS is able to reuse your previously captured fingerprints and other biometrics. USCIS will run the same security checks and use your biometric data as in the past, however, it is not necessary for you to appear at a USCIS Application Support Center (ASC) for a biometrics appointment. The biometrics fee will not be refunded.

Pls.' Request for Judicial Notice (Doc. 147–1), Exh. 1.⁵ Since that time, Plaintiffs have continued to pay the biometric services fee for their subsequent re-registrations. It is this fee—charged when no new biometric data is collected—that Plaintiffs challenge.

When the Service first began charging a fingerprinting fee in 1998, it was set “at $25 per individual who requires fingerprinting.” 63 Fed. Reg. 12979, 12982 (Mar. 17, 1998) (emphasis added). An entry titled “For fingerprinting by the Service” was added to the provision of the Code of Federal Regulations governing fees for immigration services: “A service fee of $25 will be charged by the Service for fingerprinting each applicant, petitioner, sponsor, or other individual who is required to complete Form FD–258 [fingerprint card] in connection with an application or petition for an immigration benefit (other than asylum) and whose residence is in the United States.” Id. at 12986 (codified at 8 C.F.R. § 103.7(b)(1)) (emphasis added). The fee applied only to “fingerprinting by the Service,” and therefore was not charged of applicants residing abroad who were fingerprinted at U.S. consular offices or military installations. Id. at 12981.

The fee was raised three times from 2001 through 2007, during which time the definition of the services provided for that fee evolved. In 2002, the Service stated “that it was not recovering the full costs of the fingerprint program” with the $25 fee. 66 Fed. Reg. 41456, 41459 (Aug. 8, 2001). After conducting a study to “determine the actual cost of fingerprinting individuals,” id., the Service decided to charge $50 “for the fingerprinting of applicants who apply for certain immigration and naturalization benefits,” 66 Fed. Reg. 65811, 65815 (Dec. 21, 2001) (setting $50 fee “For Fingerprinting by the Service”) (emphasis added). In 2004, the fingerprinting fee was renamed a “biometric fee” to “better describe the services provided under this fee,” which included...