Vidal v. Nielsen

279 F.Supp.3d 401

Martín Jonathan BATALLA VIDAL et al., Plaintiffs,

v.Kirstjen M. NIELSEN, Secretary, Department of Homeland Security, et al., Defendants.

State of New York et al., Plaintiffs,

v.Donald Trump, President of the United States, et al., Defendants.

16–CV–4756 (NGG) (JO)

17–CV–5228 (NGG) (JO)

United States District Court, E.D. New York.

Signed February 13, 2018

Ajay Saini, New York State Office of the Attorney General, Brooklyn, NY, Lourdes Maria Rosado, Sania Waheed Khan, New York State Office of the Attorney General, Diane Omotayo Lucas, New York, NY, Genevieve C. Nadeau, Abigail Taylor, Pro Hac Vice; Massachusetts Office of the Attorney General, Jonathan B. Miller, Office of the Attorney General, Boston, MA, Marsha Chien, Colleen Melody, Pro Hac Vice; Washington State Attorney General's Office, Seattle, WA, Robert W. Ferguson, Pro Hac Vice; Washington State Attorney General's Office Olympia, WA, Mark F. Kohler, Pro Hac Vice; Hartford, CT, Aaron R. Goldstein, Aleine M. Cohen, Pro Hac Vice; Delaware Department of Justice, Wilmington, DE, Donna H. Kalama, Pro Hac Vice; Department of the Attorney General, Honolulu, HI, Anna P. Crane, Pro Hac Vice; Chicago, IL, Nathanael Blake, Pro Hac Vice; Office of the Iowa Attorney General, Des Moines, IA, Tania Maestas, Pro Hac Vice; Ari Biernoff, New Mexico Attorney General's Office, Santa Fe, NM, Sarah Weston, Scott Kaplan, Pro Hac Vice; Brian Alexander De Haan, Oregon Department of Justice, Portland, OR, Michael Fischer, Jonathan Goldman, Pro Hac Vice; Office of Attorney General, Harrisburg, PA, Adam Roach, Pro Hac Vice; Michael Field, Rebecca Partington, Rhode Island Attorney General, Providence, RI, Julio A. Thompson, Pro Hac Vice; Benjamin Daniel Battles, Vermont Attorney General's Office, Montpelier, VT, Matthew R. McGuire, Pro Hac Vice; Office of the Attorney General, Richmond, VA, for Plaintiffs.

Brad Rosenberg, Rachael Westmoreland, Kate Bailey, Stephen M. Pezzi, U.S. Department of Justice, Washington, DC, Joseph Anthony Marutollo, U.S. Attorney's Office, Brooklyn, NY, for Defendants.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

In 2012, the Department of Homeland Security created the Deferred Action for Childhood Arrivals ("DACA") program. That program permitted certain individuals without lawful immigration status who entered the United States as children to obtain "deferred action"—contingent, discretionary relief from deportation—and authorization to work legally in this country. Since 2012, nearly 800,000 DACA recipients have relied on this program to work, study, and keep building lives in this country.

On September 5, 2017, Defendants announced that they would gradually end the DACA program.¹ (Letter from Jefferson B. Sessions III to Elaine C. Duke (Admin. R. (Dkt. 77–1)² 251) ("Sessions Ltr."); 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" (Sept. 5, 2017) (Admin. R. 252) ("DACA Rescission Memo").) The Department of Homeland Security ("DHS") would consider pending DACA applications and renewal requests, as well as promptly filed renewal requests by DACA beneficiaries whose benefits were set to expire within six months, but would reject all other applications and renewal requests. (DACA Rescission Memo at 4.) Plaintiffs in the above-captioned cases promptly challenged Defendants' decision on a number of grounds, including, most relevant for purposes of this Memorandum and Order, that the decision violated the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (the "APA"). (2d Am. Compl. (Dkt. 60) ); Compl. (Dkt. 1, No. 17–CV–5228).) Plaintiffs now seek a preliminary injunction barring Defendants from ending the DACA program pending a final adjudication of these cases on the merits. (Mem. in Supp. of Mot. for Prelim. Inj. (Dkt. 123–1) ("BV Pls. Mot."); Mem. in Supp. of Mot. for Prelim. Inj. (Dkt. 96–1, No. 17–CV–5228) ("State Pls. Mot.").)

"Congress passed the [APA] to ensure that agencies follow constraints even as they exercise their powers. One of these constraints is the duty of agencies to find and formulate policies that can be justified by neutral principles." FCC v. Fox Television Stations, Inc., 556 U.S. 502, 537, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (Kennedy, J., concurring in part and in the judgment). To that end, the APA authorizes parties harmed by federal agencies to obtain judicial review of agency decisions. 5 U.S.C. § 702. The reviewing court must set aside "action, findings, [or] conclusions" that are, among other things, "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. § 706(2)(A).³ Review under this "arbitrary and capricious" standard is "narrow," and the court may not "substitute its judgment for that of the agency"; instead, the court considers only whether the agency's decision "was the product of reasoned decisionmaking."

Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 52, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (" State Farm"). If the agency decision "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made,’ " the court will uphold the agency's decision. Id. at 43, 103 S.Ct. 2856 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) ). If, however, the agency's decision "relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise," that decision must be set aside. Id.

Review under the arbitrary-and-capricious standard is generally limited to the agency's stated rationale for its decision, State Farm, 463 U.S. at 43, 103 S.Ct. 2856 ; Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam), and to the "full administrative record that was before the [agency] at the time [it] made [its] decision." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (" Overton Park"). The court "may not supply a reasoned basis for the agency's action that the agency itself has not given." State Farm, 463 U.S. at 43, 103 S.Ct. 2856 (citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947) (" Chenery II") ); SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 (L.Ed. 626 1943) (" Chenery I"). Nor may the court uphold agency action based on "post hoc rationalizations of agency action." State Farm, 463 U.S. at 50, 103 S.Ct. 2856 ; see also Williams Gas Processing—Gulf Coast Co., L.P. v. FERC, 373 F.3d 1335, 1345 (D.C. Cir. 2004) (Roberts, J.) ("It is axiomatic that [the court] may uphold agency orders based only on reasoning that is fairly stated by the agency in the order under review; post hoc rationalizations by agency counsel will not suffice." (internal quotation marks and citation omitted) ).

The APA thus sometimes places courts in the formalistic, even perverse, position of setting aside action that was clearly within the responsible agency's authority, simply because the agency gave the wrong reasons for, or failed to adequately explain, its decision. E.g., State Farm, 463 U.S. at 42–43, 48–56, 103 S.Ct. 2856 ; Overton Park, 401 U.S. at 416, 420, 91 S.Ct. 814. Based on the present record, these appears to be just such cases.

Defendants indisputably can end the DACA program. Nothing in the Constitution or the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (the "INA"), requires immigration authorities to grant deferred action or work authorization to individuals without lawful immigration status. The DACA program, like prior deferred-action and similar discretionary relief programs, simply reflected the Obama Administration's determination that DHS's limited enforcement resources generally should not be used to deport individuals who were brought to the United States as children, met educational or military-service requirements, and lacked meaningful criminal records. (Mem. from Janet Napolitano, Sec'y, DHS, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children at 1–2 (June 15, 2012) (Admin. R. 1–2) (the "2012 DACA Memo").) New Administrations may, however, alter or abandon their predecessors' policies, even if these policy shifts may impose staggering personal, social, and economic costs.⁴

The question before the court is thus not whether Defendants could end the DACA program, but whether they offered legally adequate reasons for doing so. Based on its review of the record before it, the court concludes that Defendants have not done so. First, the decision to end the DACA program appears to rest exclusively on a legal conclusion that the program was unconstitutional and violated the APA and INA. Because that conclusion was erroneous, the decision to end the DACA program cannot stand. Second, this erroneous conclusion appears to have relied in part on the plainly incorrect factual premise that courts have recognized "constitutional defects" in the somewhat analogous Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA") program. Third, Defendants' decision appears to be internally contradictory, as the means by which Defendants chose to "wind down" the program (namely, by continuing to adjudicate certain DACA renewal applications) cannot be reconciled with their stated rationale for ending the program (namely, that DACA was unconstitutional). Any of these flaws would support invalidating the DACA rescission as arbitrary and capricious.

Before this court, Defe...