L.F.O.P. v. Mayorkas

656 F.Supp.3d 274

L.F.O.P., E.C.C., J.C.C., F.M., M.U.Z., A.J.L.N., M.M.S.S., A.P., G.M.,individually and as representatives of a similarly situated class, Plaintiffs, v. Alejandro MAYORKAS, in his capacity as Secretary of the United States Department of Homeland Security,United States Department of Homeland Security, Ur Mendoza Jaddou,in her capacity as Director of the United States Citizenship and Immigration Services,and the United States Citizenship and Immigration Services, Defendants.

CIVIL ACTION NO. 4:21-11556-TSH

United States District Court, D. Massachusetts

Signed February 8, 2023

Susan B. Church, Demissie & Church, Cambridge, MA, Deirdre Marie Giblin, Heather Yountz, Iris Gomez, Massachusetts Law Reform Institute, Boston, MA, Elizabeth A. Badger, PAIR Project, Boston, MA, Kenneth R. Berman, Mariel T. Smith, Nutter, McClennen & Fish, LLP, Boston, MA, for Plaintiffs L.F.O.P., E.C.C., J.C.C.

Deirdre Marie Giblin, Massachusetts Law Reform Institute, Boston, MA, Kenneth R. Berman, Mariel T. Smith, Nutter, McClennen & Fish, LLP, Boston, MA, for Plaintiff F.M.

Kenneth R. Berman, Mariel T. Smith, Nutter, McClennen & Fish, LLP, Boston, MA, for Plaintiffs M.U.Z., A.J.L.N., M.M.S.S., A.P., G.M.

Alexa S. White, Office of Immigration Litigation, Washington, DC, Katelyn Masetta-Alvarez, DOJ-Civ, Oil-Dcs, Washington, DC, Annapurna Balakrishna, U.S. Attorney's Office, Civil Division, Boston, MA, for Defendants.

ORDER AND MEMORANDUM ON DEFENDANTS' MOTION TO DISMISS (Docket No. 74)

HILLMAN, DISTRICT JUDGE

Various noncitizens (collectively "plaintiffs") with "Special Immigrant Juvenile" status ("SIJs") bring this action against various defendants, challenging the policy of defendant United States Citizenship and Immigration Services ("USCIS") to not allow SIJs a particular route to apply for Employment Authorization Documents ("EADs"). Defendants move to dismiss for failure to state a claim. (Docket No. 74). For the reasons discussed below, that motion is granted.

Background

1. Statutory Background

In 1990, Congress passed the Immigration Act of 1990, creating SIJ status. 8 U.S.C. § 1101(a)(27)(J). Under that statute, one receives SIJ status by (1) being declared dependent on a juvenile court (2) having an administrative or judicial proceeding finding it would not be in the juvenile's best interest to be returned to the previous country they lived in and (3) receiving consent from the secretary of DHS.

The following year, Congress passed a law that clarified that SIJs "shall be deemed, for purposes of [§ 1255(a)], to have been paroled into the United States." 8 U.S.C. § 1255(h) ("section 1255(h)"). Section 1255(a) allows paroled noncitizens to apply for lawful permanent resident status. The most common way to be "paroled" is via 8 U.S.C. § 1182(d)(5) ("section 1182(d)(5)"), where a noncitizen petitions the Attorney General, who has wide discretion to grant or deny petitions.

There are dozens of situations in which noncitizens are eligible for EADs. The three relevant to this case are described in subsections "(c)(9)," "(c)(11)" and "(c)(14)" of 8 C.F.R. § 274a.12.

(c)(9) allows any noncitizen, including an SIJ, who has an application pending for lawful permanent resident status to apply for EADs. However, USCIS has interpreted 1255(a) to bar applications for lawful permanent resident status when there are no visas available—which also bars applications for EADs under (c)(9). Plaintiffs do not challenge that interpretation. If a visa is not available for a particular SIJ, they may not apply for adjustment of status and therefore cannot apply for EADs via (c)(9). However, both parties agree that, until 2015 or thereabouts, there were enough visas for SIJs from the plaintiffs' home countries that this was not a bar to those SIJs using (c)(9) to apply for EADs.

(c)(11) allows, subject to exceptions not relevant to this case, a noncitizen "paroled into the United States temporarily for urgent humanitarian reasons or significant public benefit pursuant to section 212(d)(5) of the Act" to apply for EADs. 212(d)(5) is codified at 8 U.S.C. § 1182(d)(5)—section 1182(d)(5), discussed above.

(c)(14) allows a noncitizen "who has been granted deferred action" to apply for EADs. Deferred action is an "act of administrative convenience to the government which gives some cases lower priority." Id.

2. The Policy

In an earlier phase of this litigation, plaintiffs alleged that USCIS had a policy of refusing to entertain applications for EADs on the basis of (c)(11) when submitted by SIJs. USCIS has promulgated a policy document while this litigation was pending. USCIS, Policy Alert-2022-10 (March 7, 2022) ("Policy Alert"). The Policy Alert notes that "SIJ classification does not render a noncitizen lawfully present, does not confer lawful status, and does not result in eligibility to apply for employment authorization." Id. at 1. It also concedes that because of visa unavailability, "the protection that Congress intended to afford SIJs through adjustment of status is often delayed for years, leaving this especially vulnerable population in limbo," id., opining that "Congress likely did not envision that SIJ petitioners would have to wait years before a visa became available, since for many years after implementation of the program, SIJs did have visas immediately available," id. To "further[ ] congressional intent to provide humanitarian protection for abused, neglected, or abandoned noncitizen children" USCIS declares it will offer deferred action and thus access to EADs via (c)(14) on a case-by-case basis. Id.

USCIS goes on to clarify that "[t]his guidance is controlling and supersedes any prior guidance on the topic." Id. at 2. Furthermore, "USCIS will not publish Federal Register notices requesting public comment because public notice is not required for internal policy clarifications. This policy update is based on our interpretation of the applicable terms in the Code of Federal Regulations and the Immigration and Nationality Act." Id. at 3.

3. The Plaintiffs

The plaintiffs are all SIJs from Central American countries who filed for EADs under (c)(11). (TAC, at ¶¶ 17-25). At the time of the complaint, the applications had either been denied or were pending. Since then, based on the policy described above, their applications have been granted, mostly under (c)(14). Plaintiffs acknowledge that all named individual plaintiffs have been offered EADs. (Docket No. 109). However, plaintiffs also identify The Political Asylum/Immigrant Representation Project ("PAIR"), a non-profit that offers legal services to noncitizens, as an organizational plaintiff in their motion to amend. (Docket No. 88, at ¶ 14).

To summarize, SIJs from the plaintiffs' home countries are currently not eligible to apply for EADs via (c)(9) because there are no available visas. SIJs in general are not eligible to apply for EADs via (c)(11) because of the policy described above. Many—though not all—SIJs are eligible to apply for EADs via (c)(14) because they have been granted deferred action.

Standard of Review

In evaluating a Rule 12(b)(6) motion to dismiss, the Court must determine "whether, construing the well-pleaded facts of the complaint in the light most favorable to the plaintiff[ ], the complaint states a claim for which relief can be granted." Cortés-Ramos v. Martin-Morales, 956 F.3d 36, 41 (1st Cir. 2020) (quoting Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 7 (1st Cir. 2011)). The complaint must allege "a plausible entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679, 129 S.Ct. 1937.

Analysis

1. Mootness and Standing

Defendants argue the plaintiffs' claims are moot. A case is moot where it is "impossible for a court to grant any effectual relief whatever to the prevailing party." Chafin v. Chafin, 568 U.S. 165, 172, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013) (citing Knox v. Serv. Emp's., 567 U.S. 298, 307, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012)). Plaintiffs want to be able to apply for EADs under (c)(11), not (c)(14). Defendants argue that EADs issued via (c)(14) are superior because they last longer and therefore plaintiffs are arguing they are injured by lack of access to an inferior work authorization—that is, they are not injured at all. That misframes the injury. EADs issued via (c)(11) would connect plaintiffs' EADs to their status as SIJs rather than to their status as recipients of deferred action. SIJ status is more stable than deferred action—more than an "act of administrative convenience to the government which gives some cases lower priority." (c)(14); see, e.g., Osorio-Martinez v. Attorney General, 893 F.3d 153, 166-78 (3d Cir. 2018). The new policy of converting (c)(11) applications to (c)(14) applications harms the plaintiffs by tying their EADs to the less-stable deferred action status even when they request their EADs be tied to their SIJ status. Therefore, it is possible "for a court to grant [ ] effectual relief." By ordering USCIS to consider plaintiffs' (c)(11) applications, these plaintiffs would have their EADs tied to a more stable status. Some SIJs might still opt to apply for EADs via (c)(14) and receive a longer employment authorization tied to a less stable status—but it would be their choice to do so. To be clear, this Court does not understand the plaintiffs to be arguing that deferred action might be revoked by a future administration, and therefore the issue is not moot; that argument is foreclosed. See generally Calvary Chapel of Bangor v. Mills, 52 F.4th 40 (1st Cir. 2022). Instead, it is...