Crane v. Napolitano

920 F.Supp.2d 724

Christopher L. CRANE, et al., Plaintiffs,

v.Janet NAPOLITANO, in her official capacity as Secretary of Homeland Security, et al., Defendants.

Civil Action No. 3:12–cv–03247–O.

United States District Court,

N.D. Texas,

Dallas Division.

Jan. 24, 2013.

Peter Michael Jung, Dallas, TX, Kris W. Kobach, Kobach Law LLC, Kansas City, KS, for Plaintiff.

Adam David Kirschner, United States Department of Justice, Bradley Heath Cohen, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

REED O'CONNOR, District Judge.

Before the Court are Defendants' Motion to Dismiss and Memorandum in Support (ECF No. 23), Plaintiffs' Response to Defendants' Motion to Dismiss (ECF No. 30), Appendix to Plaintiffs' Response to Defendants' Motion to Dismiss (ECF No. 31), and Defendants' Reply to Plaintiffs' Response to Defendants' Motion to Dismiss (ECF No. 33). Having considered the motion, the related briefing, the evidence presented by counsel, and the applicable law, the Court finds that Defendants' Motion to Dismiss (ECF No. 23) should be and is hereby GRANTED in part and DENIED in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

The United States Department of Homeland Security (“DHS”) is a Cabinet-level department of the United States government created in 2002 for the purpose of coordinating and unifying national homeland security efforts. Creation of the Department of Homeland Security, http:// www. dhs. gov/ creation- department- homeland- security (last visited Jan. 23, 2013). Defendant Janet Napolitano is the current Secretary of DHS. Pls.' Am. Compl. ¶ 22, ECF No. 15. DHS is charged with, among other things, protecting our nation's border security, cybersecurity, and economic security, preventing human trafficking and terrorism, and safeguarding civil rights and civil liberties. Topics, http:// www. dhs. gov/ topics (last visited Jan. 23, 2013). DHS is also responsible for overseeing citizenship and immigration in the United States. Id. The United States Citizenship and Immigration Services (“USCIS”) oversees lawful immigration in the United States. Citizenship & Immigration Overview, http:// www. dhs. gov/ topic/ citizenship- and- immigration- overview (last visited Jan. 23, 2013). Defendant Alejandro Mayorkas is the current Director of USCIS. Pls.' Am. Compl. ¶ 24, ECF No. 15. USCIS grants immigration and citizenship benefits, promotes an awareness and understanding of citizenship, and ensures the integrity of our immigration system. Citizenship & Immigration Overview, http:// www. dhs. gov/ topic/ citizenship- and- immigration- overview (last visited Jan. 23, 2013). The United States Immigration and Customs Enforcement (“ICE”) is the principal investigative arm of DHS, and its primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration. Overview, http:// www. ice. gov/ about/ overview (last visited Jan. 23, 2013). Defendant John Morton is the current Director of ICE. Pls.' Am. Compl. ¶ 23, ECF No. 15. ICE receives an annual appropriation from Congress to remove individuals who are unlawfully present in the United States. Immigration Enforcement Overview, http:// www. dhs. gov/ topic/ immigration- enforcement- overview (last visited Jan. 23, 2013).

On June 17, 2011, Defendant Morton issued a Memorandum entitled “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” (the “Morton Memorandum”). Pls.' Am. Compl. ¶ 28, ECF No. 15. The Morton Memorandum provides ICE personnel “guidance on the exercise of prosecutorial discretion to ensure that the agency's immigration enforcement resources are focused on the agency's enforcement priorities,” which include “the promotion of national security, border security, public safety, and the integrity of the immigration system.” Morton Mem. at 1, 2, available at http:// www. ice. gov/ doclib/ secure- communities/ pdf/ prosecutorial- discretionmemo. pdf. The Morton Memorandum sets out several factors that ICE officers, agents, and attorneys should consider when determining whether an exercise of prosecutorial discretion may be warranted for a particular alien. See Morton Mem. at 4o5, available at http:// www. ice. gov/ doclib/ secure- communities/ pdf/ prosecutorial- discretionmemo. pdf.

On June 15, 2012, Defendant Napolitano issued a Directive entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (the “Directive”). Pls.' Am. Compl. ¶¶ 2, 29, ECF No. 15; Pls.' Am. Compl. Ex. 1 (Directive), ECF No. 15–1. The Directive sets forth to what extent, in the exercise of prosecutorial discretion, DHS should enforce immigration laws “against certain young people who were brought to this country as children and know only this country as home.” Pls.' Am. Compl. Ex. 1 (Directive), at 1, ECF No. 15–1. The Directive instructs ICE officers to refrain from placing certain aliens who are unlawfully present in the United States into removal proceedings. It also directs ICE officers to facilitate granting deferred action to aliens who are unlawfully present in the United States and are already in removal proceedings but not yet subject to a final order of removal. Pls.' Am. Compl. ¶ 2, ECF No. 15; Pls.' Am. Compl. Ex. 1 (Directive), at 2, ECF No. 15–1. The Directive also instructs USCIS to accept applications to determine whether the individuals who receivedeferred action are qualified for work authorization during the period of deferred action. Pls.' Am. Compl. ¶ 2, ECF No. 15; Pls.' Am. Compl. Ex. 1 (Directive), at 3, ECF No. 15–1. To qualify for deferred action under the Directive, the alien must satisfy the following criteria:

• came to the United States under the age of sixteen;

• has continuously resided in the United States for at least five years preceding the date of [the Directive] and is present in the United States on the date of [the Directive];

• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;

• has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and

• is not above the age of thirty.

Pls.' Am. Compl. Ex. 1 (Directive), at 1, ECF No. 15–1.

In July 2012, DHS issued the “ERO Supplemental Guidance: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” which directs DHS personnel to implement the terms of the Directive. Pls.' Am. Compl. ¶ 30, ECF No. 15. In early August 2012, DHS issued a document entitled “National Standard Operating Procedures (SOP): Deferred Action for Childhood Arrivals (DACA) (Form I–821D and Form I–765),” which explains how DHS will process applications for deferred action under the Directive. Id. ¶ 31. On August 15, 2012, DHS began accepting requests for consideration of deferred action and applications for employment authorization pursuant to the Directive. Id. ¶ 32.

Several ICE Deportation Officers and Immigration Enforcement Agents (the “ICE Agent Plaintiffs”) ¹ and the state of Mississippi, by and through Governor Phil Bryant, filed this lawsuit on August 23, 2012, to challenge the constitutional and statutory validity of the Directive and the Morton Memorandum. See generally Pls.' Compl., ECF No. 1; Pls.' Am. Compl., ECF No. 15. Plaintiffs assert that the Directive violates (1) federal statutes requiring the initiation of removals; (2) federal law by conferring a non-statutory form of benefit—deferred action—to more than 1.7 million aliens, rather than a form of relief or benefit that federal law permits on such a large scale; (3) federal law by conferring the legal benefit of employment authorization without any statutory basis and under the false pretense of “prosecutorial discretion”; (4) the constitutional allocation of legislative power to Congress; (5) the Article II, Section 3, constitutional obligation of the executive to take care that the laws are faithfully executed; and (6) the Administrative Procedure Act through conferral of a benefit without regulatory implementation. Pls.' Am. Compl. ¶¶ 67–116, ECF No. 15. Plaintiffs' causes of action 1, 2, 4, 5, and 6 challenge the portions of the Directive and Morton Memorandum that require ICE officers to exercise prosecutorial discretion and defer action against aliens who satisfy the Directive's criteria. Plaintiffs' third cause of action challenges the portion of the Directive that permits USCIS to issue employment authorization to Directive-eligible aliens during the period of deferred action. According to the Amended Complaint, the ICE Agent Plaintiffs' supervisors have instructed them that an alien only needs to claim he is covered by the Directive to be released and offered the benefits of the Directive. Id. ¶ 33. The ICE Agent Plaintiffs are prohibited from demanding proof that an alien meets the Directive's criteria. Id.

Plaintiffs contend that the Directive commands ICE officers to violate federal law and to violate their oaths to uphold and support federal law. ²Id. ¶¶ 4, 37–46. As a result, the ICE Agent Plaintiffs have expressed their desire not to follow the Directive, but they believe they will be disciplined or suffer other adverse employment consequences if they arrest or issue a Notice to Appear in removal proceedings (“NTA”) ³ to an alien who satisfies the factors for deferred action set out in the Directive. Id. ¶ 49. The state of Mississippi contends that the beneficiaries of the Directive who remain in the state will impose a net fiscal cost on the state, including increased costs of education, healthcare, arresting, prosecuting and...