Balde v. Duke

• Court: District Court, District of Columbia
• Decided: July 3, 2018
• Docket: Civil Action No. 2017-1976
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ARACELY, R., et al., : : Plaintiffs, : Civil Action No.: 17-1976 (RC) : v. : Re Document Nos.: 38, 55, 61, 75, 79, : 89, 90 KIRSTJEN NIELSEN, : SECRETARY, UNITED STATES : DEPARTMENT OF : HOMELAND SECURITY, et al., : : Defendants. :

MEMORANDUM OPINION

DENYING DEFENDANTS’ MOTION TO TRANSFER VENUE; GRANTING PLAINTIFFS’ MOTIONS TO SUPPLEMENT THEIR PRELIMINARY INJUNCTION APPLICATION AND EXHIBITS; AND GRANTING IN PART PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

I. INTRODUCTION

Every day, individuals fleeing persecution and violence in their home countries seek

asylum within our borders. And every day, United States immigration officials must determine

whether to admit these individuals or reject them. This case concerns what happens to these

individuals while their requests for asylum are considered. Plaintiffs undertook perilous

journeys to reach our borders, submitted asylum petitions, and were detained in what they claim

to be prison-like conditions for an extended period of time while their petitions were evaluated.

They contend that their detention without access to a bond hearing before an immigration judge

violated their constitutional rights. They also contend that immigration officials routinely and

systematically failed to abide by a binding, official agency directive governing parole

determinations, and instead applied an unwritten, unconstitutional policy promulgated by top

1 policy makers. In the absence of this unwritten policy, Plaintiffs argue, they would have been

conditionally paroled into the United States.

Presently before the Court are two preliminary motions. First, Defendants seek to

transfer this litigation’s venue from the District of Columbia to the Southern District of Texas.

Second, Plaintiffs seek preliminary injunctive relief granting them bond hearings before

immigration judges, and compelling Defendants to comply with the official directive and halt the

alleged unwritten policy. For the reasons explained below, the Court denies Defendants’

motion, and grants Plaintiffs’ motion in part.

II. BACKGROUND

A. Statutory and Regulatory Framework

This case concerns statutes and regulations within the scope of the Immigration and

Nationality Act (“INA”). See 8 U.S.C. § 1101 et seq. The INA sets forth the conditions under

which a foreign national may be admitted to and remain in the United States, and it grants the

Department of Homeland Security (“DHS”) the discretion to initiate removal proceedings. See,

e.g., id. §§ 1181–1182, 1184, 1225, 1227–1229, 1306, 1324–25. Within DHS, Immigration and

Customs Enforcement (“ICE”) is the department that is primarily charged with administering the

INA. See 6 U.S.C. §§ 111, 251, 291. The interactions relevant to this action involved ICE

officials.

Plaintiffs are “arriving aliens” from outside of the United States who surrendered to ICE

at United States ports of entry, sought asylum (“POE asylum seekers”), and were detained

pursuant to 8 U.S.C. §§ 1158(a)(1) and 1225(b). 1 Section 1225(b) provides that if a non-citizen

1 “Arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-

2 “who is arriving in the United States” indicates an intention to apply for asylum or expresses a

fear of persecution or torture, the individual must be interviewed to determine whether he or she

has a “fear of persecution.” 2 8 U.S.C. § 1225(b)(1)(A)(ii). If the individual is determined to

have a credible fear of persecution, he or she “shall be detained for further consideration of the

application for asylum.” Id. § 1225(b)(1)(B)(ii). ICE officials determined that each Plaintiff had

a credible fear of persecution, so Plaintiffs’ detentions were governed by § 1225(b)(1)(B)(ii).

An individual detained under § 1225(b)(1)(B)(ii) can be paroled “into the United States

temporarily” by the Attorney General “in his discretion.” Id. § 1182(d)(5)(A). 3 Agency

regulations provide that the Secretary of Homeland Security “may invoke” this parole authority

for an individual who is “neither a security risk nor a risk of absconding” and meets one or more

of a series of conditions, one of which is that “continued detention is not in the public interest.” 8

C.F.R. § 212.5(a), (b)(5). 4 Plaintiffs contend that they met, and continue to meet, this condition.

entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.” 8 C.F.R. § 1.2. 2 A credible fear of persecution is defined as follows: “there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under [8 U.S.C. § 1158].” 8 U.S.C. § 1225(b)(1)(B)(v). 3 Plaintiff Sadat I. was initially detained under § 1225(b) and denied parole, but an immigration judge subsequently rejected his asylum petition. He is currently seeking to re-open his petition, at which point he will be eligible for discretionary release under 8 C.F.R. § 241.4. Plaintiffs claim that ICE’s release determinations under this provision “have been equally impacted by Defendants’ new policy of heavily weighing immigration deterrence.” Pls.’ Am. Mem. at 7 n.13. That claim is discussed below. 4 Section 212.5(b) governs parole of the following subgroups of POE asylum seekers: (1) aliens who have serious medical conditions, where continued detention would not be appropriate; (2) women who have been medically certified as pregnant; (3) certain juveniles; (4) aliens who will be witnesses in proceedings being, or to be, conducted by judicial, administrative, or legislative bodies in the United States; or (5) aliens whose continued detention

3 Parole under § 212.5, however, “shall not be regarded as an admission of the alien.” 8

U.S.C. § 1182(d)(5)(A). Instead, when the purpose of the parole has been served, “the alien shall

forthwith return or be returned to the custody from which he was paroled and thereafter his case

shall continue to be dealt with in the same manner as that of any other applicant for admission to

the United States.” Id. Further, immigration judges do not have authority under §

1225(b)(1)(B)(ii) to review ICE’s parole decisions for POE Asylum Seekers. See 8 C.F.R. §

1003.19(h)(2)(i)(B). In other words, a POE asylum seeker may be paroled into the United States

after passing a credible fear interview, but that individual is still considered an “arriving alien”

under the law, ICE may revoke the parole at any time, and ICE’s parole determination is not

subject to review by an immigration judge.

A 2009 directive issued by ICE sets forth certain procedures that must be utilized and

factors that, according to Plaintiffs, must be considered when evaluating parole requests under 8

C.F.R. § 212.5. ICE Directive No. 11002.1: Parole of Arriving Aliens Found to Have a Credible

Fear of Persecution or Torture (“Morton Directive” or the “Directive) (Dec. 8, 2009), Pls. Am.

Mem. P. & A. Supp. Mot. Prelim. Inj. (“Pls.’ Am. Mem.”) Ex. 13, ECF No. 74-16. More

specifically, the Morton Directive explains how the term “public interest” in § 212.5(b)(5) is to

be interpreted. According to the Directive, when an arriving alien found to have a credible fear

of persecution establishes, to the satisfaction of ICE, his or her identity and that he or she

presents neither a flight risk nor a danger to the community, “[ICE] should, absent additional

is not in the public interest. Because of a severe bone infection that Plaintiffs claim was not properly treated during her detention, Plaintiff Aracely I. was ultimately paroled under § 212.5(b)(1). She may, however, be re-detained at any point under § 1182(d)(5)(A).

4 factors . . . parole the alien on the basis that his or her continued detention is not in the public

interest.” Id. ¶ 8.3.

B. Factual Background and Procedural History

Plaintiffs are three aliens—Mikailu J., Aracely R., and Sadat I.—who came to the United

States seeking asylum. The following is a brief description of each Plaintiff’s journey to this

country.

Aracely R.

Aracely R. fled Guatemala by car in 2016 with her eight-year old daughter. Decl. of

Celinda Aracely R. (“Aracely Decl.”) ¶ 2, Pls.’ Am. Mem. Ex. 1, ECF No. 74-2. While driving

through Mexico on the way to the United States, their car overturned, killing Aracely’s daughter

and severely injuring Aracely’s leg. Id. Aracely ultimately reached Hidalgo, Texas, requested

asylum at the border, passed her credible fear interview, and was detained under §

1225(b)(1)(B)(ii). Id. ¶ 6. According to Aracely, she submitted to ICE officials two sponsorship

letters from family members, and a copy of her national identification card in support of her

request for parole. Id. She was detained for nearly a year, despite requesting parole at least

once. Id.; Decl. of Deborah Achim (“Achim Decl.”) ¶ 6, Defs.’ Opp’n Pls.’ Mot. Prelim. Inj.

(“Defs.’ Opp’n”), ECF No. 63-1. In early 2018 her injured leg required emergency surgery, so

she was paroled and permitted to travel to California to receive treatment. Pls.’ Am. Mem. at 2

n.4, ECF No. 74-1.

Mikailu J.

Mikailu J. fled Sierra Leone in early 2017. Decl. of Mikailu J. (“Mikailu Decl.”) ¶ 4,

Pls.’ Am. Mem. Ex. 4, ECF No. 74-6. He requested asylum at the Brownsville, Texas port of

entry, passed his credible fear interview, and was detained pursuant to § 1225(b)(1)(B)(ii). Id. ¶¶

5 5–7. According to Mikailu, he submitted to ICE officials copies of his national identification

card, his press card, his school identification card, and a letter from a relative offering him full

sponsorship in the United States in support of his requests for parole. Id. ¶ 8. He has been

denied parole three times, and is currently detained in the Laredo, Texas Detention Center. Id.

¶¶ 8–9; Achim Decl. ¶ 8.

Sadat I.

Sadat I. fled Ghana in late 2015. Decl. of Sadat I. (“Sadat Decl.”) ¶ 4, Pls.’ Am. Mem.

Ex. 3, ECF No. 74-5. After an arduous journey, Sadat requested asylum at the San Diego,

California port of entry, passed his credible fear interview, and was detained pursuant to §

1225(b)(1)(B)(ii). Id. ¶¶ 5–7. According to Sadat, he submitted to ICE officials his national

identification card, a copy of his passport, a criminal background check, and sponsorship letters

from his uncle and a non-governmental organization in Texas in support of his request for parole.

Id. ¶ 8. Although he requested parole, he never received it. Id. ¶¶ 7–8. Plaintiffs do not clearly

explain his current status, but it appears that his petition for asylum was denied in 2016, and he

remains detained pending a motion in the Eleventh Circuit to re-open his petition. Id. ¶ 11; Pls.’

Am. Mem. at 7 n.13. If this is true, his detention is pursuant to § 1231(a)(6) rather than §

1225(b), and his parole is governed by 8 C.F.R. § 241.4 rather than § 212.5. Id.

Former Plaintiffs

In addition to these three individuals, Plaintiffs have submitted declarations from two

former plaintiffs, Hatim B. and Junior M., who also requested asylum at a port of entry, passed

their credible fear interviews, and were detained without parole. Hatim B. was granted asylum in

early 2018 and has been fully released into the United States. See Pls.’ Am. Mem. at 9 n.14.

Junior M. returned to his home country of Honduras. Id. at 3.

6 Plaintiffs claim that they were denied parole because of a de facto immigration policy

promulgated by high-level officials in Washington D.C. Pls.’ Updated Mem. Opp’n Defs.’ Mot.

Transfer Venue at 4, ECF No. 64. Specifically, Plaintiffs claim that DHS responded to a surge in

asylum seekers beginning in 2014 by instituting policies designed to “serve as a deterrent to

asylum seekers by forcing them to either endure prolonged detention or risk the grave perils

involved in unlawful entries.” Third Am. Compl. (“TAC”) ¶¶ 42–44, 62, ECF No. 73. Plaintiffs

further contend that “to achieve this result, Defendants initiated an unwritten practice and policy,

ordering local officials to heavily weight immigration deterrence in deciding parole and similar

forms of release.” Id. ¶ 52. For instance, and as described in more detail below, Plaintiffs cite

data compiled by a non-profit human rights organization, Human Rights First, 5 indicating that

the parole release rate of the asylum seekers who crossed a U.S. Port of Entry was 80 percent in

2012, but dropped to 47 percent in 2015. Id. ¶ 56 (citing Human Rights First, Lifeline on

Lockdown at 13 (July 2016)). Plaintiffs argue that “[s]uch planned, systematic denials of parole

to eligible POE seekers constitute an official agency policy.” TAC ¶ 59. They also suggest that

Defendants re-emphasized this policy after the 2016 Presidential election. See Pls.’ Am. Mem.

at 17–18.

Plaintiffs argue that their parole requests should have been granted under both

international and domestic laws. Id. ¶¶ 27, 31. In particular, Plaintiffs cite that the United States

adopted Article 2−34 of the 1951 United Nations Convention Relating to the Status of Refugees

(“Refugee Convention”) and promulgated the Refugee Act of 1980, “which required the United

5 According to its webpage, “Human Rights First is a non-profit, nonpartisan international human rights organization based in New York, Washington D.C., Houston, and Los Angeles.” Human Rights First, https://www.humanrightsfirst.org/about (last visited March 9, 2018).

7 States to establish procedures for noncitizens physically present . . . at a port of entry to apply for

asylum.” 6 Id. ¶¶ 27−28. Article 31 of the Refugee Convention provides that “states shall not

impose penalties on refugees for illegal entry or presence.” Id. ¶ 26

Defendants are government officials who implemented or enforced the alleged

immigration deterrence policy. 7 Id. ¶ 83. The Secretary of Homeland Security and certain ICE

officials, including those who “established, developed and promoted the current binding policy”

reside in Washington D.C. Defs’ Suppl. Brief Mot. Transfer Venue (“Defs. Suppl. Br.”) at 6,

ECF No. 67. But, some ICE officials, including those who evaluated Plaintiffs’ specific parole

requests, reside in Texas. Id. at 7.

Plaintiffs filed this suit in late 2017, alleging that (1) ICE’s parole denials based on the

nation-wide, de facto immigration deterrence policy violates Plaintiffs’ First and Fifth

Amendment rights under the United States Constitution and is arbitrary and capricious in

violation of the Administrative Procedure Act (“APA”); and (2) they are constitutionally entitled

to bond hearings before immigration judges. See generally Compl., ECF No. 1 They have since

amended their complaint on three occasions due to their changing personal circumstances and

6 The complaint also cites other treaties ratified by the United States, including the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Degrading or Inhuman Punishment. TAC ¶ 29. 7 Named Defendants include: Kirstjen Nielsen, Secretary of Homeland Security; Thomas Homan, Acting Director of ICE; Matthew Albence, ICE Executive Associate Director of Enforcement and Removal Operations; Phillip Miller, ICE Deputy Executive Assistant Director of Enforcement and Removal Operations; Nathalie Asher, ICE Assistant Director of Field Operations for Enforcement and Removal Operations; Tae Johnson, ICE Assistant Director for Custody Management for Enforcement and Removal Operations; Daniel Bible, ICE Field Office Director for Enforcement and Removal Operations; Janie Bennet, ICE Assistant Field Office Director, Port Isabel Detention Center; Fnu Aguirre, ICE officer; William Oestreich, ICE officer; Andrew Huron, ICE Assistant Field Office Director, South Texas Detention Center; Fnu Groll, ICE Officer; Robert Cerna, ICE Assistant Field Office Director, Laredo Detention Center; Fnu Gamez, ICE Officer; John Doe, ICE Headquarters Post Order Detention Unit; and Health Simon, ICE Headquarters Post Order Detention Unit.

8 the shifting legal landscape, but their core allegations and relief sought have not changed. See

generally Am. Compl., ECF No. 7; Second Am. Compl., ECF No. 56; TAC. Shortly after the

complaint was filed, Defendants moved to change the litigation’s venue to the Southern District

of Texas. See generally Mot. Transfer Venue, ECF No. 38. Plaintiffs moved for a preliminary

injunction in early February 2018, and they amended that motion in March. See generally Mot.

Prelim. Injunction, ECF No. 54; Pls.’ First Am. Appl. Prelim. Inj., ECF No. 74. Finally,

Plaintiffs moved to amend their preliminary injunction for a third time in late April 2018. See

generally Mot. Supp. Appl. Prelim. Injunction, ECF No. 79. Now ripe for the Court’s

consideration are (1) Defendants’ motion to change venue; (2) Plaintiffs’ motion to amend their

application for a preliminary injunction and update their exhibits in support of that application;

and (3) Plaintiffs’ motion for a preliminary injunction.

III. LEGAL STANDARDS

A. Venue Transfer

Even when venue is properly laid in a given judicial district, “[f]or the convenience of

parties and witnesses, in the interest of justice, a district court may transfer any civil action to

any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). “The idea

behind § 1404(a) is that where a ‘civil action’ to vindicate a wrong—however brought in a

court—presents issues and requires witnesses that make one District Court more convenient than

another, the trial judge can, after findings, transfer the whole action to the more convenient

court.” Vasser v. McDonald, 72 F. Supp. 3d 269, 281 (D.D.C. 2014) (citing Continental Grain

Co. v. Barge F.B.L. 585, 364 U.S. 19, 26 (1960)). “[T]he main purpose of section 1404(a) is to

afford defendants protection where maintenance of the action in the plaintiff’s choice of forum

9 will make litigation oppressively expensive, inconvenient, difficult or harassing to defend.”

Starnes v. McGuire, 512 F.2d 918, 927 (D.C. Cir. 1974) (en banc).

B. Preliminary Injunction

“[A] preliminary injunction is an injunction to protect [the movant] from irreparable

injury and to preserve the court’s power to render a meaningful decision after a trial on the

merits.” Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 954 (D.C. Cir. 2005) (quoting

11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedures

§ 2947 (2d ed. 1992)). “[T]he decision to grant injunctive relief is a discretionary exercise of the

district court’s equitable powers.” John Doe Co. v. CFPB, 235 F. Supp. 3d 194, 201 (D.D.C.

2017) (quoting Sea Containers Ltd. v. Stena AB, 890 F.2d 1205, 1209 (D.C. Cir. 1989)). A

preliminary injunction is an “extraordinary remedy,” and one that is “never awarded as of right.”

Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 9 (2008).

To warrant preliminary injunctive relief, the moving party “must establish that he is

likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of the equities tips in his favor, and that an injunction is in the

public interest.” Id. at 20. Of these factors, likelihood of success on the merits and irreparable

harm are particularly crucial. See Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011)

(reading Winter “to suggest if not to hold ‘that a likelihood of success is an independent, free-

standing requirement for a preliminary injunction’”); Chaplaincy of Full Gospel Churches v.

England, 454 F.3d 290, 297 (D.C. Cir. 2006) (“[A] movant must demonstrate at least some

injury for a preliminary injunction to issue, for the basis of injunctive relief in federal courts has

always been irreparable harm.” (internal citations and quotation marks omitted)).

10 Furthermore, “if the requested relief ‘would alter, not preserve, the status quo,’ the court

must subject the plaintiff's claim to a somewhat higher standard.” Paleteria La Michoacana, Inc

v. Productos Lacteos Tocumba S.A. de C.V., 901 F. Supp. 2d 54, 56 (D.D.C. 2012) (quoting

Veitch v. Danzig, 135 F. Supp. 2d 32, 35 (D.D.C. 2001)); see also Singh v. Carter, 185 F. Supp.

3d 11, 17 n.3 (D.D.C 2016); Columbia Hosp. for Women Found., Inc. v. Bank of Tokyo–

Mitsubishi Ltd., 15 F. Supp. 2d 1, 4 (D.D.C. 1997). Because Plaintiffs seek to alter—not

preserve—the status quo, the Court will exercise extreme caution in assessing Plaintiffs’

invitation to invoke the court's extraordinary equitable powers. See Allina Health Servs. v.

Sebelius, 756 F. Supp. 2d 61, 70 n.5 (D.D.C. 2010).

C. Administrative Procedure Act

The APA governs the conduct of federal administrative agencies. 5 U.S.C. §§ 101–913.

It permits a court to “compel agency action unlawfully withheld or unreasonably delayed,” and

to “hold unlawful and set aside agency action, findings and conclusions found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706. The

APA provides for judicial review of all “final agency action for which there is no other adequate

remedy in court,” id. § 704, except when “statutes preclude judicial review” or the “agency

action is committed to agency discretion by law,” id. § 701(a).

IV. VENUE TRANSFER ANALYSIS

The Court first considers Defendants’ motion under 28 U.S.C. § 1404(a) to transfer the

action to the Southern District of Texas, and their related argument that Plaintiffs’ claims may

only be raised through a habeas corpus petition. The Court is unpersuaded by both arguments.

11 A. Habeas Corpus

The Court first considers whether, as asserted by Defendants during the March 2, 2018

motion hearing and in many of their briefs, Plaintiffs must bring their claims through a habeas

petition. Generally, jurisdiction for a core habeas petition challenging present physical

confinement lies only in the district of confinement. Rumsfeld v. Padilla, 542 U.S. 426, 443

(2004). Thus, if Defendants are correct that Plaintiffs may only seek relief by way of a habeas

petition, this Court would likely lack jurisdiction because none of the Plaintiffs are confined in

this District.

However, Plaintiffs have not brought their claims by way of a habeas petition, nor are

they required to do so. Indeed, “a federal prisoner need bring his claim in habeas only if success

on the merits will ‘necessarily imply the invalidity of confinement or shorten its duration.’”

Davis v. U.S. Sentencing Comm’n, 716 F.3d 660, 666 (D.C. Cir. 2013) (quoting Wilkinson v.

Dotson, 544 U.S. 74, 82 (2005)). “Otherwise, he may bring his claim through a variety of causes

of action.” Id. Here, Plaintiffs challenge (1) what they claim is a de facto policy of denying

parole to asylum seekers, in violation of the APA; and (2) their detention without access to a

bond hearing by an immigration judge, in violation of the Constitution. If Plaintiffs are

successful and this Court enjoins Defendants from adhering to any such policy and requires that

Plaintiffs be given bond hearings, that ruling would not necessarily imply that their confinement

is invalid or otherwise should be shorter, because their parole could still be denied for other

legitimate reasons.

Indeed, other courts in this jurisdiction facing challenges to similar nation-wide

immigration policies have rejected the notion that detainees must proceed through a habeas

petition. See R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 186 (D.D.C. 2015) (“although Congress

12 has expressly limited APA review over individual deportation and exclusion orders, see 8 U.S.C.

§ 1252(a)(5), it has never manifested an intent to require those challenging an unlawful,

nationwide detention policy to seek relief through habeas rather than the APA.”). Although, as

Defendants regularly note, many of the relevant cases challenging the government’s treatment of

asylum seekers lie in habeas, those cases do not stand for the proposition that they could only

have been brought as habeas petitions. See Davis, 716 F.3d at 666 (holding that a federal

prisoner need not bring an equal protection challenge to his sentence by means of a habeas

petition because “[s]uccess would do no more than allow him to seek a sentence reduction,

which the district court retains the discretion to deny”). Accordingly, Plaintiffs may proceed on

their claims under the APA and the Constitution, and jurisdiction is proper in the District of

Columbia.

B. Venue

The Court now turns to its venue analysis. Defendant moves to transfer this case to the

Southern District of Texas pursuant to 28 U.S.C. § 1404(a). Section 1404(a) “vests ‘discretion in

the district court to adjudicate motions for transfer according to an individualized, case-by-case

consideration of convenience and fairness.’” Reiffin v. Microsoft Corp., 104 F. Supp. 2d 48, 50

(D.D.C. 2000) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). When venue

is properly laid in this jurisdiction, “[t]ransfer elsewhere under Section 1404(a) must . . . be

justified by particular circumstances that render [this] forum inappropriate by reference to the

considerations specified in that statute. Absent such circumstances, transfer in derogation of

properly laid venue is unwarranted.” Starnes, 512 F.2d at 925–26.

The statute “directs a district court to take account of factors other than those that bear

solely on the parties’ private ordering of their affairs. The district court also must weigh in the

13 balance the convenience of the witnesses and those public-interest factors of systemic integrity

and fairness that, in addition to private concerns, come under the heading of ‘the interest of

justice.’” Stewart Org., 487 U.S. at 30. However, the precise “standards to be considered in

determining whether to grant or deny a section 1404(a) motion to transfer are generally . . . left

to the discretion of the trial court,” SEC v. Page Airways, Inc., 464 F. Supp. 461, 463 (D.D.C.

1978), which is “broad” but “not untrammeled,” Fine v. McGuire, 433 F.2d 499, 501 (D.C. Cir.

1970) (per curiam) (noting that the trial court must “give consideration to the traditional [forum

non conveniens] factors, including the plaintiff's choice of forum”).

Ultimately, the burden is on the moving party to establish that transfer under § 1404(a) is

proper. Montgomery v. STG Int’l, Inc., 532 F. Supp. 2d 29, 32 (D.D.C. 2008); Trout Unlimited

v. U.S. Dep’t of Ag., 944 F. Supp. 13, 16 (D.D.C. 1996). Accordingly, Defendants must make

two showings to justify transfer. First, Defendants must establish that Plaintiffs could have

brought the action in the proposed transferee district. Van Dusen v. Barrack, 376 U.S. 612, 616

(1964). Second, Defendants must demonstrate that considerations of convenience and the

interest of justice weigh in favor of transfer to that district. Trout Unlimited, 944 F. Supp. at 16.

In evaluating a motion to transfer, a court should weigh several private- and public-interest

factors. Sheffer v. Novartis Pharm. Corp., 873 F. Supp. 2d 371, 375 (D.D.C. 2012) (citing Trout

Unlimited, 944 F. Supp. at 16).

Although the threshold inquiry under the statute is whether the action could have been

brought in the proposed transferee district, Blackhawk Consulting LLC v. Fed. Nat’l Mortg.

Ass’n, 975 F. Supp. 2d 57, 60 (D.D.C. 2013) (citing 28 U.S.C. § 1404(a)), in this case, Plaintiffs

do not dispute that the action could have been brought in the Southern District of Texas. See

Pls.’ Mem. P. & A. Opp’n Defs.’ Mot. Transfer Venue (“Pls.’ Opp’n”) at 8, ECF No. 41. Thus,

14 “this Court’s only task is to determine whether the private and public interest factors weigh in

favor of or against transfer.” Pls.’ Opp’n at 8; see Sheffer, 873 F. Supp. 2d at 375. For the

reasons stated below, the Court finds that Defendants have failed to demonstrate that these

factors weigh in favor of venue transfer. Accordingly, this Court denies Defendants’ motion.

1. Private Interest Considerations

To resolve Defendants’ motion, the Court must first consider certain “private-interest

factors.” Sheffer, 873 F. Supp. 2d at 375. These factors roughly break down into three

categories: (1) the preferred forum of the parties, (2) the location where the claim arose, and (3)

factors of convenience. 8 Id.

a. The Preferred Forum of Each Party

In this case, neither of the parties’ forum preferences are entitled to significant weight.

Ordinarily, a plaintiff’s choice of forum is afforded “considerable deference.” S. Utah

Wilderness Alliance v. Norton, 315 F. Supp. 2d 82, 86 (D.D.C. 2004). However, that choice is

“conferred less deference by the court when [it] is not the plaintiff’s home forum.” Shawnee

Tribe v. United States, 298 F. Supp. 2d 21, 24 (D.D.C. 2002) (citing Piper Aircraft Co. v. Reyno,

454 U.S. 235 (1981). Here, two of the three Plaintiffs are currently detained in Texas, and the

third is currently located in California. See TAC ¶¶ 76, 79, 80. Plaintiffs claim no specific

personal connection to the District of Columbia, nor do they make any argument that it should be

considered their home. See Pls. Opp’n at 10. Thus, Plaintiffs’ choice of forum does not weigh

as strongly against transfer as it would if they resided in the District, and their preference is

8 The private-interest considerations are typically described as including: (1) the plaintiff's choice of forum; (2) the defendant's preferred forum; (3) the location where the claim arose; (4) the convenience of the parties; (5) the convenience of the witnesses; and (6) ease of access to sources of proof. Sheffer, 873 F. Supp. 2d at 375.

15 partly balanced against Defendant’s preference for the Southern District of Texas. The parties’

respective forum preferences, on balance, weigh only slightly against transfer. See Foote v. Chu,

858 F. Supp. 2d 116, 121 (D.D.C. 2012) (where the plaintiffs and defendants resided outside of

the District, holding that “the parties' respective forum preferences weigh against transferring the

case, although not as strongly as it would if Plaintiff resided in this District.”)

b. Location Where the Claims Arose

The parties strongly dispute whether Plaintiffs’ claims arose primarily in the District of

Columbia or in the Southern District of Texas. The D.C. Circuit has cautioned that “[c]ourts in

this circuit must examine challenges to . . . venue carefully to guard against the danger that a

plaintiff might manufacture venue in the District of Columbia.” Cameron v. Thornburgh, 983

F.2d 253, 256 (D.C. Cir. 1993). However, when a plaintiff directly challenges a policy

promulgated in the District of Columbia, “the interests of justice could well favor venue [in this

District].” Aishat v. DHS, 288 F. Supp. 3d 261, 270 (D.D.C. 2018). For example, in Ravulapalli

v. Napolitano, a court in this jurisdiction held that the claims in that case arose primarily in the

District of Columbia when “officials at the United States Citizen and Immigration Services

(“USCIS”) Texas Service Center denied Plaintiff’s I-485 applications based on policy guidance

issued from USCIS headquarters in the District of Columbia.” 773 F. Supp. 2d 41, 56 (D.D.C.

2011).

This principle is supported, rather than undercut, by Defendants’ case law. Defendants

filed a Notice of Supplemental Authority directing the Court to Aishat, which they characterized

as a recent case in which the District “granted a motion to transfer venue . . . with factual

circumstances that are analogous to this case.” Def.’s Notice Supplemental Auth. at 1, ECF No.

70. But rather than support Defendants’ argument, Aishat suggests that venue is proper in this

16 District. In Aishat, the plaintiff sued DHS, USCIS, and agency employees in both Washington

D.C. and Texas seeking to compel USCIS to resolve his naturalization application after years of

delays by its Dallas Field Office. 288 F. Supp. 3d at 264–65. In his briefing, but importantly not

in his complaint, the plaintiff argued that USCIS had implemented an agency-wide policy

mandating denial or delay of applications from Middle Eastern or South Asian individuals, a

group including the plaintiff. Id. at 269–70. The court noted that “[w]ere [the plaintiff] directly

challenging [the policy], the [c]ourt agrees that the interests of justice could well favor venue

here . . . [p]erhaps even challenging the Dallas Field Office's application of [the policy] to him

would suffice.” Id. at 269 (citing Ravulapalli, 773 F. Supp. 2d at 56). But because the plaintiff

did not raise those challenges in his complaint, they were not entitled to sufficient weight to

sustain venue in the District when the plaintiff’s core allegations related to his individualized

naturalization decision made in Texas. Id.

Here, Plaintiffs emphasize that “[they] are not seeking review of ICE’s exercise of

discretion in reaching their individualized parole decision.” Pls. Opp’n at 8. Rather, Plaintiffs

claim that Texas-based Defendants improperly denied parole requests “in compliance with the

official policies promulgated by the D.C. based Defendants.” Id.; TAC ¶¶ 52, 96. Plaintiffs

argue that their “cause of action therefore arises from this national policy, not the low-level

decisions of individual officers who were bound by such policy.” Id. at 9. Thus, as discussed in

Ravulapalli and Aishat, because Plaintiffs in this case are challenging the application of a

purported policy that supposedly emanated from an agency located in the District of Columbia,

the Court finds that this factor weighs in favor of retaining venue.

17 c. Convenience Factors

Next, the Court must consider certain convenience factors. Specifically, the Court

considers the convenience of the parties, convenience of witnesses, and ease of access to sources

of proof. Here, these factors are in equipoise. Plaintiffs are detained or reside in Texas and

California, and Defendants reside in Texas and the District of Columbia. 9 Defs.’ Mot. Transfer

Venue (“Defs. Motion”) at 12, EFC No. 38-1; Pls.’ Opp’n at 13. Likewise, it is very likely that

important witnesses and documents will likely be found in both Texas and the District of

Columbia. Indeed, ICE field officers who participated in Plaintiffs’ parole determinations and

documents relating to those detentions will likely be located in Texas. Defs. Mot. at 12−13. On

the other hand, the government officials who allegedly established, developed, and promoted the

policy at the heart of this case, and the documents relating thereto, will likely be found, if at all,

in the District of Columbia. Defs. Suppl. Mot. at 6. Therefore, the convenience factors weigh

neither in favor of nor against transfer. 10

2. Public Interest Considerations

The Court next considers certain public-interest considerations. Specifically, it considers

(1) the transferee district’s familiarity with the governing law; (2) the relative congestion of the

9 Given that Plaintiffs lodge APA claims against the District of Columbia-based individual Defendants in their official capacities, related to an alleged national policy, it is unclear that it was necessary for them to name the Texas-based individual Defendants in this action. 10 The Court finds it somewhat ironic that Plaintiffs’ Texas-based attorneys seek to litigate this case in the District of Columbia, while Defendants’ District of Columbia-based attorneys seek to litigate this case in Texas. Regardless, “the location of counsel ‘carries little, if any, weight in an analysis under § 1404(a).’” Reiffin v. Microsoft Corp., 104 F. Supp. 2d 48, 52 n.7 (D.D.C. 2000) (quoting Vencor Nursing Centers, L.P. v. Shalala, 63 F. Supp. 2d 1, 6 n. 4 (D.D.C. 1999)).

18 courts of the transferor and potential transferee; and (3) the local interest in deciding local

controversies at home. Onyeneho v. Allstate Ins. Co., 466 F. Supp. 2d 1, 3 (D.D.C. 2006).

Because this case involves only federal law claims, the first factor does not weigh either

for or against transfer because all federal courts are equally competent to resolve such matters.

See, e.g., Nat'l Wildlife Fed'n v. Harvey, 437 F. Supp. 2d 42, 49 (D.D.C. 2006) (holding that

“both courts are competent to interpret the federal statutes involved[,] . . . there is no reason to

transfer or not transfer based on this factor”).

The parties each cite favorable statistical evidence regarding the second factor, but

Defendants’ statistics are slightly more persuasive. Plaintiffs maintain that “the Southern

District of Texas is far more congested than that of the District of Columbia.” Pls. Opp’n at 16.

Plaintiffs present statistics showing that, as of September 2017, there were 12,497 pending cases

in the Southern District of Texas, averaging 658 pending cases per judge, while there were 3,942

cases pending in the District of Columbia, averaging 263 pending cases per judge. Id.

Defendants, however, argue that “the chart for 2016 suggests the docket is relatively less

congested in the Southern District of Texas,” and they present statistics showing that “median

length for a civil case that goes to trial in the District of Columbia is 31 months, and in the

Southern District of Texas is 24 months.” Defs. Mot. at 15. Given the statistics, the Court

considers the District of Columbia to be slightly more congested because cases appear to move

more slowly in this District. “Those raw statistics, however, may overstate the difference, as

they ‘provide, at best, only a rough measure of the relative congestion of the dockets in the two

districts.’” Aishat v. U.S. Dep’t of Homeland Sec., 288 F. Supp. 3d 261, 271 (D.D.C. 2018)

(citing United States v. H & R Block, Inc., 789 F. Supp. 2d 74, 84–85 (D.D.C. 2011).

19 Accordingly, this factor weighs only slightly in favor of transfer, and on balance it does not

overcome the factors weighing against transfer.

Finally, the potential national significance of this dispute dictates that the third public-

interest factor weighs against transferring the case to satisfy a local interest. Defendants argue

that “there is a strong local interest for the courts in the Southern District of Texas in deciding

[this dispute],” Defs. Mot. at 15−16, because Plaintiffs are or were detained in Texas and most of

the discretionary parole determinations were made by federal officials there. But, in determining

whether a controversy is local, courts have often considered a variety of different factors other

than where Plaintiffs are located or where the challenged decision was made. These other factors

include, “whether the decision directly affected the citizens of the transferee state; the location of

the controversy, whether the issue involved federal constitutional issues rather than local

property laws or statutes; whether the controversy involved issues of state law, whether the

controversy has some national significance; and whether there was personal involvement by a

District of Columbia official.” Otay Mesa Prop. L.P. v. U.S. Dep’t of Interior, 584 F. Supp. 2d

122, 126 (D.D.C. 2008) (citing Nat'l Wildlife Fed'n, 437 F. Supp. 2d at 49; Sierra Club, 276 F.

Supp. 2d at 70).

Plaintiffs have been clear that their challenge is not based on the specific decisions made

by federal officials in Texas, but rather upon an alleged national policy promulgated by DHS,

which carries with it nationwide significance. Thus, the Court concludes that the Southern

District of Texas has no particular localized interest in this litigation. Ravulapalli, 773 F. Supp.

2d at 56 (holding that transferee forum had no localized interest where “plaintiffs’ claims focus

primarily on the policies issued from [D.C.] headquarters that apply to all [regional] offices”

(citing Otay Mesa Prop. L.P., 584 F. Supp. 2d at 126−27)).

20 * * *

After weighing the relevant private and public interest considerations, the Court

concludes that, on balance, those considerations favor retaining venue in this District, albeit

slightly. Because the injuries perceived by Plaintiffs allegedly stem from policies that were

conceived, promoted, and implemented by government officials in the District of Columbia, their

claims hold a close connection to this forum. While many of the factors discussed above,

including factors of convenience, do not clearly favor one forum over the other, on balance they

do not weigh in favor of transfer. Accordingly, the Court concludes that the Defendants have

failed to meet their burden to show that considerations of convenience and the interest of justice

favor transferring this matter to the Southern District of Texas.

V. ANALYSIS OF PLAINTIFFS’ MOTION TO SUPPLEMENT THEIR PRELIMINARY INJUNCTION APPLICATION

The Court next considers whether Plaintiffs may supplement their preliminary injunction

application for a second time. In their first amended application, Plaintiffs asked the court to:

1. Enjoin the application of 8 C.F.R. § 1003.19(h)(2)(i)(B) against Plaintiffs, which

would deprive them of a bond hearing before an immigration judge;

2. Enjoin Defendants from considering the deterrence of immigration in evaluating

Plaintiffs’ requests for parole; and

3. Enjoin Defendants from violating ICE Policy Directive 11002.1 in evaluating

Plaintiffs’ requests for parole.

Pls.’First Am. Appl. Prelim. Inj. at 1–4. In their second amended application (“SAA”),

Plaintiffs ask the court to:

21 1. Enjoin any further detention of the Plaintiffs in the absence of a custody hearing

before an immigration judge “which results in a finding that that detention is

necessary to prevent flight or serious danger to the community”;

2. Enjoin the application of 8 C.F.R. § 1003.19(h)(2)(i)(B), and any related rules

which would deprive Plaintiffs of a bond hearing before an immigration judge,

against Plaintiffs;

3. Enjoin Defendants from considering immigration deterrence in evaluating

4. Enjoin Defendants from violating ICE Policy Directive 11002.1 in evaluating

Pls.’ Second Am. Appl. Prelim. Inj. at 2, ECF No. 79-1.

Plaintiffs claim that the SAA is necessary to crystallize the relief sought because

“Defendants still would not grant a bond hearing before an immigration judge even if the

exclusion clause in 8 C.F.R. § 1003.19(h) were enjoined from application to the Plaintiffs.” Pls.’

Mot. Suppl. Prayer Relief (“Pls.’ Mot. Supp.”) ¶ 2 n.1, ECF No. 79. The SAA is therefore

intended to “provide for more flexible relief, and thereby prevent continued disputes,” by

expanding the relief sought with respect to bond hearings. Id. ¶ 3. In support of the SAA,

Plaintiffs have adopted in full their previously filed Amended Memorandum in Support of their

Application for Preliminary Injunction. Id. ¶ 6.

Defendants assert five reasons why the Court should not grant Plaintiffs’ motion. First,

“Plaintiffs improperly rely on Federal Rule of Civil Procedure 15” in support of their motion.

Def.’s Mot. Opp’n Pls.’ Mot. Supp. Prayer Relief (“Def.’s Opp’n Supp.”) at 4–5, ECF No. 86.

Second, Plaintiffs fail to properly support the SAA with law and facts. Id. at 5–6. Third, the

22 SAA is “a litigation strategy to forestall this Court’s consideration of the venue motion.” Id. at

6–7. Fourth, the SAA seeks the ultimate relief sought in this case. Id. at 7–8. And fifth, the

SAA “is seeking habeas relief, which this Court cannot provide.” Id. at 8.

The Court need only address whether Plaintiffs have legal authority to supplement their

preliminary injunction application, because Defendants’ other four reasons may be swiftly

disposed of. While Plaintiffs have not filed a new memorandum of law and facts in support of

the SAA, they clearly state that they rely on their previously filed, and fully briefed,

memorandum to support it. Pls.’ Mot. Supp. ¶ 6. If that memorandum does not justify the

requested relief, the Court will deny it. Further, the SAA has had no impact on the timing of the

Court’s determination of whether the case should be transferred, which should be clear from the

fact that the Court is disposing of both motions simultaneously. Next, Defendants’ argument that

the SAA seeks the ultimate relief sought in this case will be addressed in the Courts’ evaluation

of the SAA’s merits. Finally, as discussed above, Plaintiffs need not bring their claims by way

of habeas.

The Court now turns to Defendants’ contention that Plaintiffs do not have authority to

supplement their preliminary injunction application. Defendants correctly note that a motion is

not, under normal circumstances, considered a pleading, which means that Federal Rule 15,

addressing pleading amendments, is inapplicable here. Def.’s Opp’n Supp. at 4–5; see Marsh v.

Johnson, 263 F. Supp. 2d 49, 53–54 (D.D.C. 2003). That is not fatal to the SAA, however,

because the Court need not rely on a Federal Rule when exercising its discretion.

The Supreme Court has long recognized that “a district court possesses inherent powers

that are ‘governed not by rule or statute but by the control necessarily vested in courts to manage

their own affairs so as to achieve the orderly and expeditious disposition of cases.’” Dietz v.

23 Bouldin, 136 S.Ct. 1885, 1891 (2016) (quoting Link v. Wabash R. Co., 370 U.S. 626, 630–631

(1962)). Accordingly, the Court has broad discretion to allow a party to amend a motion to

“ensure that the case is adjudicated fairly and justly,” particularly when “the adverse parties will

not be prejudiced by the amendment.” 5 C. Wright, A. Miller, & M. Kane, Federal Practice and

Procedure § 1194 (3d ed. 2018). Defendants vaguely assert that the SAA “does not meet this

standard,” but they provide no support for that assertion. Def.’s Opp’n Supp. at 5. The SAA has

not delayed the Court’s resolution of Plaintiffs’ motion for a preliminary injunction and

Defendants’ motion to transfer venue, nor does it meaningfully alter the issues argued in the

parties’ preliminary injunction briefing. The SAA merely repeats the relief sought in Plaintiffs’

previous application, Pls.’ First Am. Appl. Prelim. Inj. at 1–2, and clarifies that Plaintiffs seek to

enjoin their detention in the absence of a bond hearing before an immigration judge. Pls.’

Second Am. Appl. Prelim. Inj. at 2. This clarity will assist the court in ensuring that the case is

adjudicated fairly and justly.

Furthermore, “[c]rafting a preliminary injunction is an exercise of discretion and

judgment,” and in exercising its judgment a court “need not grant the total relief sought by the

applicant but may mold its decree to meet the exigencies of the particular case.” Trump v. Int’l

Refugee Assistance Project, 137 S.Ct. 2080, 2087 (2017) (quoting 11A C. Wright, A. Miller, &

M. Kane, Federal Practice and Procedure § 2947 at 115 (3d ed. 2013)) (internal quotation marks

omitted). This Court’s discretion in granting preliminary injunctive relief is therefore not

constrained by the relief Plaintiffs explicitly seek, and the SAA does not allow the Court to

impose relief that it could not already impose under Plaintiffs’ previous application. In light of

the Court’s discretion, it is unclear how Defendants would be prejudiced by allowing Plaintiffs to

refine their request for relief.

24 * * *

For the reasons stated above, the Court grants Plaintiffs’ motion to supplement the prayer

for relief in their application for a preliminary injunction. For the same reasons, the Court also

exercises its discretion to grant Plaintiffs’ recent motion to update their preliminary injunction

exhibits. The Court will now address Plaintiffs’ motion for a preliminary injunction.

VI. PRELIMINARY INJUNCTION ANALYSIS

Plaintiffs assert (1) that their detention without access to bond hearings before

immigration judges violates their Constitutional rights; and (2) that pursuant to a nationwide,

unwritten policy, ICE improperly considered immigration deterrence as a factor in evaluating

whether they should be paroled under 8 U.S.C. § 1182(d)(5)(A). Plaintiffs seek preliminary

injunctive relief in the form of an order (1) requiring that they be provided bond hearings before

immigration judges if their detention continues; (2) enjoining ICE officials from considering

deterrence as a factor in their parole decisions going forward; and (3) mandating that ICE

officials follow the Morton Directive in their parole decisions. See generally Pls.’ Second Am.

Appl. Prelim. Inj. Defendants argue that even if Plaintiffs’ motion overcomes certain threshold

obstacles, they have not shown that they are entitled to preliminary injunctive relief. The Court

first considers Defendants’ justiciability and jurisdictional arguments, then it addresses

Plaintiffs’ merits arguments. As explained below, the Court concludes that it may review the

merits of Plaintiffs’ arguments, and it holds that Plaintiffs have met their burden of establishing

that, as a preliminary matter, they are entitled to parole determinations in compliance with the

Morton Directive, but not that they are entitled to bond hearings before immigration judges.

25 A. Threshold Issues

Defendants lodge two general threshold objections to this Court’s review, and two

threshold objections specific to Plaintiffs’ APA claims. With respect to the entirety of Plaintiffs’

motion, Defendants argue that (1) the Court is statutorily barred from reviewing what Defendants

characterize as discretionary decisions by ICE officials; and (2) this suit is moot, because

Plaintiffs have already received the relief that they seek under the Morton Directive. 11 Defs.’

Opp’n at 2–3. With respect to Plaintiffs’ APA claims, Defendants argue that (1) Defendants’

alleged policy is not a final agency action subject to APA review; and (2) habeas is an adequate

alternate remedy to the APA, such that APA review is improper. Id. The Court disagrees with

each objection.

1. The Court’s Jurisdiction

Defendants’ first challenge to the justiciability of Plaintiffs’ suit rests on 8 U.S.C.

§ 1252(a)(2)(B)(ii), which bars judicial review of discretionary decisions made under the INA.

Defendants assert that the Court lacks jurisdiction to consider Plaintiffs’ claims because the

statutory bar covers judicial review of “the decision to grant or deny parole and the underlying

11 Defendants raise one additional standing argument, based on their claim that “Plaintiffs seek a court order compelling the Executive to release them into the United States,” among other relief. Defs.’ Opp’n at 26. They argue that “[t]o the extent Plaintiffs are seeking release or a hearing before an immigration judge that will functionally result in release, Plaintiffs lack standing to seek such relief.” Id. at 22. While it may be true that this Court cannot order Plaintiffs released into the United States, the Court does not read Plaintiffs’ complaint or application for a preliminary injunction to seek such relief. And Plaintiffs explicitly deny that they seek release. See Pls.’ Reply Defs.’ Opp’n (“Pls.’ Reply”) at 11, ECF No. 72 (“[S]uccess for the Plaintiffs in this case will not necessarily mean immediate release from detention or a shorter stay in detention.”). Also if, as Defendants claim, ICE officials adhere strictly to the Morton Directive and do not apply deterrence as a factor in making parole determinations, it is unclear why additional review would “functionally result in release” for Plaintiffs. Defs.’ Opp’n at 22 Regardless, the Court will not interpret Plaintiffs’ action to seek relief that it does not clearly seek. Cf. Caterpillar Inc. v. Williams, 482 U.S. 386, 394–95 (1987) (noting that plaintiffs are “masters of the complaint,” free to choose the relief they seek).

26 determinations made by ICE in arriving at parole decisions.” Defs.’ Opp’n at 17. Plaintiffs do

not contest that § 1252(a)(2)(B)(ii) bars judicial review of individual parole determinations, and

they concede that they “do not ask the Court to interfere with the ultimate parole determination

in each of their cases.” Pls.’ Reply at 12. Rather, they argue that the statutory bar does not

prevent the Court from evaluating “Defendants’ failure to follow procedures set out in the

[Morton Directive] and their unlawful consideration of deterrence as a heavily weighted criterion

when evaluating requests for parole.” Id. The Court is persuaded by Plaintiffs’ interpretation of

the provision.

Under § 1252(a)(2)(B)(ii), “no court shall have jurisdiction to review . . . any other

decision or action of the Attorney General or the Secretary of Homeland Security the authority

for which is specified under this subchapter to be in the discretion of the Attorney General or the

Secretary of Homeland Security,” with the exception of determinations regarding eligibility to

apply for asylum under § 1158(a). “[T]his subchapter” includes § 1182(d)(5)(A), which

provides the Secretary of Homeland Security with authority to parole aliens “in his discretion . . .

temporarily under such conditions as he may prescribe.” See also 8 C.F.R. § 212.5(a), (b). In

other words, the parole decisions from which this action arises are discretionary, and are

therefore not reviewable by this Court pursuant to § 1252(a)(2)(B)(ii).

While § 1252(a)(2)(B)(ii) undoubtedly bars judicial review of individual parole

decisions, courts have declined to apply it to claims challenging the legality of policies and

processes governing discretionary decisions under the INA. For instance, in Zadvydas v. Davis,

which involved statutory and Constitutional challenges to the legality of the plaintiffs’ detention

pending removal from the United States, the Supreme Court held that § 1252(a)(2)(B)(ii) did not

bar judicial review because the plaintiffs challenged “the extent of the Attorney General's

27 authority under the post-removal-period detention statute . . . the extent of that authority is not a

matter of discretion.” 533 U.S. 678, 688 (2001). Similarly, in Hernandez v. Sessions, the Ninth

Circuit held that § 1252(a)(2)(B)(ii) did not bar judicial review of a Constitutional challenge to

immigration judges’ bond determinations, because the plaintiffs claimed “that the discretionary

process itself was constitutionally flawed at their initial bond determinations.” 872 F.3d 976,

988 (9th Cir. 2017). Finally, in Jafarzadeh v. Duke, another court in this jurisdiction held that §

1252 did not bar judicial review of APA and Constitutional challenges to USCIS’s

administration of a “secret” nationwide policy for processing certain immigration-related

applications, because the provision did “not encompass plaintiffs' challenge to the process

USCIS used to adjudicate [a plaintiff's] application.” 270 F. Supp. 3d 296, 308–10 (D.D.C.

2017).

The Western District of New York recently applied this principle in Abdi v. Duke, in

which the plaintiffs claimed that the same deterrence policy challenged here violated the APA

and their Constitutional rights. 280 F. Supp. 3d 373, 381 (W.D.N.Y. 2017). The defendants

argued in Abdi that § 1252(a)(2)(B)(ii) barred the court from considering plaintiffs’ claims and,

as is the case here, the plaintiffs claimed that the statutory bar was inapplicable because their

challenges related to ICE’s procedures in administering parole, rather than the discretionary

parole decisions themselves. Id. at 383. Rejecting the defendants’ jurisdictional argument, the

Abdi court held that review of “the ultimate decision regarding parole . . . would plainly fall

outside [the] Court’s jurisdiction,” but “[the plaintiffs] are asking that this Court ensure that [the

28 defendants] comply with certain policies and procedures in making that parole decision—issues

that are beyond the jurisdictional bar.” Id. at 384. 12

Here, as in the cases above, Plaintiffs raise Constitutional and statutory challenges to the

process by which they were detained, including the policies under which Defendants make

parole determinations and the framework by which Plaintiffs are deprived of bond hearings

before immigration judges. See generally TAC. And they have made explicitly clear that they

are not seeking review of their individual parole determinations, nor are they seeking release

from detention. See Pls.’ Am. Mem. at 20 (“Plaintiffs challenge the Defendants’ deterrence

policy, not the individual decisions reached in their parole cases.”); Pls.’ Reply at 12. The Court

is thus persuaded that § 1252(a)(2)(B)(ii) does not bar Plaintiffs’ claims. See Damus v. Nielsen,

No. 18-578, 2018 WL 3232515, at *5 (D.D.C. July 2, 2018).

Nearly all of the cases cited by Defendants in support of their argument are inapposite

because they involve challenges to the types of individual discretionary decisions which clearly

fall within the scope of § 1252(a)(2)(B)(ii), and which are not at issue here. In most of the cited

cases, the plaintiff sought to override an individual custody determination made by an agency

official. See Altagracia v. Sessions, No. 16-6647, 2017 WL 908211, at *2 (W.D.N.Y. Mar. 7,

12 Defendants argue that this Court should not accord Abdi any weight because in that case the defendants argued that the Morton Directive was not legally enforceable, while here Defendants claim that they have been complying with the Directive. Defs.’ Opp’n at 21–22. This argument fails for multiple reasons. First, as Plaintiffs note, § 1252(a)(2)(B)(ii)’s jurisdictional bar is triggered by the type of challenge raised, not the arguments raised in defense. Pls.’ Reply at 13 n.5. Second, contrary to Defendants’ argument, the Abdi court noted that the defendants had claimed to be following the Morton Directive in similar litigation, and it relied in part on that fact in holding that the jurisdictional bar did not apply. Abdi, 280 F. Supp. 3d at 384–85 (“Petitioners allege that Respondents have violated and continue to violate the Morton Directive that they claim to be following.”). And third, an important predicate of Plaintiffs’ action is that ICE is bound by the Morton Directive. Defendants’ claim that the Directive is “binding” and zealously followed, rather than unenforceable, undercuts their argument that compliance is discretionary for purposes of § 1252(a)(2)(B)(ii). Defs.’ Opp’n at 2.

29 2017); Milardo v. Kerilikowske, No. 16-MC-99, 2016 WL 1305120, at *6, 9 (D. Conn. Apr. 1,

2016); United States v. Bush, No. 12-92, 2015 WL 7444640, at *1 (W.D. Pa. Nov. 23, 2015);

Dugdale v. U.S. Customs and Border Protection, No. 14-1175, 2015 WL 2124937, at *1 (D.D.C

May 6, 2015); Naul v. Gonzales, No. 05-4627, 2007 WL 1217987, at *2 (D.N.J. Apr. 23, 2007).

Giammarco v. Kerlikowske did not involve a direct challenge to an individual custody

determination, but the plaintiff sought authorization for temporary reentry to the United States,

which would functionally reverse his individual custody determination. 665 Fed. App’x 24, 25–

26 (2d. Cir. 2016).

Defendants do, however, cite one case that is factually similar to this action. In that case,

Gebhardt v. Nielsen, the Ninth Circuit held that it lacked jurisdiction to hear the plaintiff’s

challenge to an agency’s standards for evaluating Legal Permanent Residence applications. 879

F.3d 980, 987 (9th Cir. 2018). However, the Gebhardt plaintiff did not claim that the standards

at issue were inconsistent with other binding agency policies, as Plaintiffs do here, and the Ninth

Circuit acknowledged that it has jurisdiction over challenges to “pattern and practice” claims and

30 Constitutional challenges related to discretionary decisions. Id. 13 The Court is unpersuaded by

Defendants’ cited authorities. 14

2. Mootness

Defendants next assert that Plaintiffs lack standing to bring their claims because they

“have in fact already received the relief they seek: a parole determination consistent with the

[Morton Directive].” Defs.’ Opp’n at 16. Defendants neglect to address that Plaintiffs also seek

bond hearings before immigration judges, TAC ¶¶ 114–115, and the fact that Plaintiffs have not

obtained that relief is alone sufficient to keep this case alive. See, e.g., Schnitzler v. United

States, 761 F.3d 33, 37–38 (D.C. Cir. 2014) (reversing a district court’s dismissal of a pro se

complaint because, among other things, the district court had adopted too narrow a construction

of the relief sought and failed to recognize that plaintiff had not received full relief); Singh v.

Carter, 185 F. Supp. 3d 11, 19 (D.D.C. 2016) (concluding that an offer of a “long-term religious

accommodation” did not render moot plaintiff’s request for a “permanent religious

13 Defendants also rely upon Loa-Herrera v. Trominski in support of their argument that the Court lacks jurisdiction to hear Plaintiffs’ challenges. In that case, the Fifth Circuit vacated portions of the district court’s order related to the Constitutionality of the Immigration and Naturalization Service’s (ICE’s predecessor) parole determinations, stating that “the manner in which [the agency’s] discretionary judgment is exercised, and whether the procedural apparatus supplied satisfies regulatory, statutory, and constitutional constraints—is not . . . subject to review.” 231 F.3d 984, 991 (5th Cir. 2000) As Plaintiffs note, Pls.’ Reply at 14 n.6, that case involved a different INA jurisdictional bar, 8 U.S.C. 1226(e). Loa-Herrera, 231 F.3d at 991. Further, another court in this jurisdiction has declined to follow Loa-Herrera, noting that it provides “little explanation of its reasoning,” and that it cuts against the weight of the case law. See R.I.L-R, 80 F. Supp. 3d at177. For those reasons, this Court also declines to follow Loa- Herrera. 14 Defendants also argue that § 1182(d)(5)(A) establishes that parole determinations are “committed to agency discretion by law,” and thus unreviewable under the APA. Defs.’ Opp’n at 37 (citing Oryszak v. Sullivan, 576 F.3d 522, 525–26 (D.C. Cir. 2009); see 5 U.S.C. § 701(a)(2). Again, Defendants are correct that this Court may not second guess ICE officials’ individual parole determinations. It may, however, review whether ICE has allegedly implemented an unconstitutional, unwritten policy that contradicts existing, binding policy.

31 accommodation” because defendant had not given plaintiff the entire relief sought). Regardless,

the Court disagrees that the record provides a basis for a finding of mootness.

Article III of the Constitution permits federal courts to adjudicate only “actual, ongoing

controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988). This limitation gives rise to the

doctrine of mootness. See Campbell–Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016). “A case

is moot when a party has already obtained all the relief that it has sought.” Schnitzler, 761 F.3d

at 37 (internal citations and quotation marks omitted). Under such circumstances, a case should

be dismissed when “events have so transpired that the decision [of the court] will neither

presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in

the future.” Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 631 (D.C. Cir. 2002) (internal

citation omitted).

“As long as the parties have a concrete interest, however small, in the outcome of the

litigation, the case is not moot.” Campbell–Ewald Co., 136 S. Ct. at 669 (quoting Chafin v.

Chafin, 568 U.S. 165, 172 (2013)); see also Knox v. Serv. Emps. Int’l Union, Local 1000, 567

U.S. 298, 307 (2012) (“A case becomes moot only when it is impossible for a court to grant ‘any

effectual relief whatever’ to the prevailing party.”) (quoting Erie v. Pap’s A.M., 529 U.S. 277,

287 (2000)). Furthermore, a “party’s prospects of success on a claim are not pertinent to the

mootness inquiry.” Looks Filmproduktionen GmbH v. CIA, 199 F. Supp. 3d 153, 179 (D.D.C.

2016) (alterations and internal quotation marks omitted) (quoting Schnitzler, 761 F.3d at 39).

With regard to Plaintiffs’ demand for parole determinations in accordance with the

Morton Directive, Defendants conflate merits questions about whether they have properly

followed the Directive—a subject of the parties’ dispute—with mootness questions about

whether this Court can offer meaningful relief. Both the Supreme Court and the D.C. Circuit

32 have cautioned that “prospects of success” on a claim “are not pertinent to the mootness

inquiry.” Schnitzler, 761 F.3d at 39 n.8 (quoting Chafin, 568 U.S. at 174 (internal quotation

marks omitted)). Indeed, the Circuit has explained that “[i]n considering possible mootness[,

courts] assume that the plaintiffs would be successful on the merits.” Judicial Watch, Inc. v.

Kerry, 844 F.3d 952, 955 (D.C. Cir. 2016). Here, a decision that this case is moot based on a

finding that Defendants provided lawful parole determinations would run afoul of this principle.

Cf. Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1106 (D.C. Cir. 2008) (“[W]hether a statute

has been violated ‘is a question that goes to the merits . . . and not to constitutional standing.’”)

(quoting La. Energy & Power Auth. v. FERC, 141 F.3d 364, 367–68 (D.C. Cir. 1998)).

Defendants’ self-serving declaration that ICE officials complied with its Directive does not

suffice to divest this Court of jurisdiction to determine whether it did so. See, e.g., Schnitzler,

761 F.3d at 39 (explaining that “whether or not the government’s policy explanations are

reasonable under the [APA] is a merits question, not a question of the court’s jurisdiction”);

Ramirez v. ICE, No. 18-0508, 2018 WL 1882861, at *7 (D.D.C. Apr. 18, 2018) (holding that

“there was no mootness barrier” to the plaintiffs’ suit where ICE claimed that it had already

complied with the statutory provision that the plaintiffs argued had been disregarded).

In any event, as explained in detail below, the Court disagrees that the evidence on record

shows that Defendants complied with the Morton Directive. Thus, even if this Court could

consider the merits of Plaintiffs’ claims in assessing whether this case is moot, it would not side

with Defendants. The record indicates that Defendants considered factors inconsistent with the

Morton Directive in determining whether Plaintiffs were entitled to parole. Accordingly, this

Court concludes that there is no mootness barrier to Plaintiffs’ suit.

33 3. Final Agency Action

Defendants next assert that “Plaintiffs cannot invoke the APA as a basis to challenge their

ongoing detention because they do not allege any cognizable final agency action promulgating or

effecting their alleged deterrence policy that is reviewable under the APA.” Defs.’ Opp’n at 34.

They claim that Plaintiffs’ failure to identify a “regulation, letter, memorandum, or other form of

written material that comprises [ICE’s deterrence policy] . . . is fatal to Plaintiffs’ claims.” Id.

The Court rejects this argument, too.

Agency actions are reviewable by a court under the APA only if they are final. See 5

U.S.C. § 704 (establishing reviewability of “final agency action”). Courts take a pragmatic

approach to finality. U.S. Army Corps of Eng’rs v. Hawkes Co., Inc., 136 S. Ct. 1807, 1815

(2016). As the Supreme Court established in Bennett v. Spear, a court will find that an agency

action is final if two conditions are met: “First, the action must mark the consummation of the

agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. . .

second, the action must be one by which rights or obligations have been determined, or from

which legal consequences will flow.” 520 U.S. 154, 177–78 (1997). Where there is no final

agency action, a plaintiff has no cause of action under the APA.

Despite Defendants’ assertions to the contrary, agency action need not be in writing to be

judicially reviewable as a final action. See Venetian Casino Resort LLC v. EEOC, 530 F.3d 925,

929 (D.C. Cir. 2008) (entertaining an APA challenge to the agency’s “decision . . . to adopt [an

unwritten] policy of disclosing confidential information without notice” because such a policy is

“surely a consummation of the agency’s decisionmaking process” and it impacted the plaintiff’s

rights); R.I.L-R, 80 F. Supp. 3d at 184 (holding that ICE’s deterrence policy is a final agency

action subject to APA review, despite the lack of a writing memorializing the policy); Ramirez,

34 2018 WL 1882861, at *8 (holding that ICE’s consistent failure to apply certain factors in making

individual custody decisions was a final agency action subject to APA review). A contrary rule

“would allow an agency to shield its decisions from judicial review simply by refusing to put

those decisions in writing.” Grand Canyon Tr. v. Pub. Serv. Co. of N.M., 283 F. Supp. 2d 1249,

1252 (D.N.M. 2003). “Denying review of agency action that is essentially conceded but

ostensibly unwritten would fly in the face of the Supreme Court's instruction that finality be

interpreted ‘pragmatic[ally].’” R.I.L-R, 80 F. Supp. 3d at 184 (quoting FTC v. Standard Oil Co.

of Cal., 449 U.S. 232, 239 (1980)). Here, Plaintiffs allege that the deterrence policy has been in

effect for years, and that it has had “profound and immediate consequences” for Plaintiffs whose

parole was declined due to its consideration. Id.

Furthermore, Defendants seem to ignore that Plaintiffs also seek relief for the agency’s

consideration of deterrence in making their individual parole decisions. See TAC ¶ 137. An

agency action is reviewable “to the extent that, specific ‘final agency action’ has an actual or

immediately threatened effect.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 894 (1990). Here,

Plaintiffs allege that Defendants took specific, discrete steps when evaluating their parole status

and that those steps have harmed them. The rejections of Plaintiffs’ parole requests—

purportedly upon consideration of an improper factor—are agency actions that have actual or

immediately threatened effects. Cf. Bark v. U.S. Forest Serv., 37 F. Supp. 3d 41, 50–51 (D.D.C.

2014) (rejecting challenge to “a generalized, unwritten administrative ‘policy,’” but permitting

challenge to five specific purported applications of that alleged policy); RCM Techs., Inc. v.

DHS, 614 F. Supp. 2d 39, 43–46 (D.D.C. 2009) (finding no agency action in a challenge to

DHS’s purported policy of requiring foreign occupational and physical therapists to have

master’s degrees in order to obtain H–1B visas, but intimating that the specific denial of a visa

35 application made pursuant to the alleged policy would be justiciable). The Court concludes that

Defendants’ alleged deterrence policy is susceptible to APA review as a “final agency action.”

4. Adequate Remedy

Finally, Defendants assert that Plaintiffs may not bring their APA claims in this court

because they have another adequate remedy in the form of a habeas petition. See Defs.’ Opp’n at

37–39 (citing 5 U.S.C. § 704, which exempts from judicial review an agency action for which

there is an “adequate remedy in a court”). They claim that “because a habeas claim could

provide Plaintiffs the relief requested, another adequate remedy exists, precluding Plaintiffs’

APA claims.” Id. at 39. The Court agrees that Plaintiffs could have brought a habeas claim, but

it disagrees that the possibility of habeas relief precludes Plaintiffs’ APA claims.

“Section 704 reflects Congress’ judgment that ‘the general grant of review in the APA’

ought not ‘duplicate existing procedures for review of agency action’ or ‘provide additional

judicial remedies in situations where Congress has provided special and adequate review

procedures.’” Citizens for Responsibility & Ethics in Wash. (“CREW”) v. DOJ, 846 F.3d 1235,

1244 (D.C. Cir. 2017) (quoting Bowen v. Massachusetts, 487 U.S. 879, 903 (1988)). However,

the Supreme Court has explained that “[t]he exception that was intended to avoid such

duplication should not be construed to defeat the central purpose of providing a broad spectrum

of judicial review of agency action.” Bowen, 487 U.S. at 903. “When considering whether an

alternative remedy is ‘adequate’ and therefore preclusive of APA review, [courts] look for ‘clear

and convincing evidence’ of ‘legislative intent’ to create a special, alternative remedy and

thereby bar APA review.” CREW, 846 F.3d at 1244 (quoting Garcia v. Vilsack, 563 F.3d 519,

523 (D.C. Cir. 2009)).

36 In R.I.L-R, a court in this jurisdiction addressing a very similar action held that habeas

was not an adequate remedy foreclosing an APA challenge. 80 F. Supp. 3d at 185. The

plaintiffs challenged ICE’s deterrence policy—the same policy Plaintiffs challenge here—under

the APA, claiming that it was contrary to law when used as a factor in custody determinations

because it violated the INA. Id. at 174. The defendants argued that the plaintiffs failed to state a

claim under the APA because habeas was an “adequate remedy” available to them apart from

APA review. Id. at 185. In rejecting the defendants’ argument, the court held that “although

Congress has expressly limited APA review over individual deportation and exclusion

orders, see 8 U.S.C. § 1252(a)(5), it has never manifested an intent to require those challenging

an unlawful, nationwide detention policy to seek relief through habeas rather than the APA.” Id.

at 186.

The Court is persuaded by this reasoning, and Defendants have not identified a

compelling reason why APA and habeas review may not coexist. They have not put forth “clear

and convincing evidence of legislative intent to create a special, alternative remedy and thereby

bar APA review” in lieu of habeas. CREW, 846 F.3d at 1244 (internal quotation marks omitted).

Plaintiffs’ case, therefore, may proceed under the APA.

B. Merits

Having determined that there are no justiciability, jurisdictional, or APA threshold

barriers to considering Plaintiffs’ motion for preliminary injunctive relief, the Court next

assesses the merits of that motion. As detailed above, a preliminary injunction is “an

extraordinary remedy that may only be awarded upon a clear showing that the [movant] is

entitled to such relief.” Winter, 555 U.S. at 22. The movant “must establish that he is likely to

succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary

37 relief, that the balance of the equities tips in his favor, and that an injunction is in the public

interest.” Id. at 20.

Plaintiffs seek a preliminary injunction requiring Defendants to (1) stop detaining

Plaintiffs in the absence of bond hearings before immigration judges; (2) stop applying any rules

and regulations that would deprive Plaintiffs of such bond hearings; (3) stop considering

immigration deterrence as a factor in evaluating Plaintiffs’ parole requests; and (4) comply with

the Morton Directive in evaluating Plaintiffs’ parole requests. See Second Am. Appl. Prelim.

Inj. at 2. Having considered the governing legal principles, the Court concludes that Plaintiffs

are not likely to succeed on the merits of their demand for bond hearings before immigration

judges, and it therefore denies Plaintiffs’ motion for preliminary injunctive relief requiring such

hearings. However, the Court concludes that Plaintiffs’ evidence of an unwritten deterrence

policy contradicting the Morton Directive outweighs Defendants’ self-serving declaration to the

contrary; that Plaintiffs have suffered and are suffering irreparable harm as a result of the policy;

that Plaintiffs’ harm outweighs any potential harm to the government caused by preliminary

injunctive relief; and that such relief is in the public interest. Finding that Plaintiffs have carried

their burden as to all four preliminary injunction factors, the Court thus grants Plaintiffs’ motion

for preliminary injunctive relief regarding ICE’s consideration of their parole requests.

1. Likelihood of Success on the Merits 15

a. Detention Without a Bond Hearing

The first core component of Plaintiffs’ suit is their argument that, despite their status as

arriving aliens, they have a constitutional right to bond hearings before immigration judges.

15 Along with the arguments evaluated below, Plaintiffs appear to directly challenge their detention in “prison-like conditions,” by way of freestanding First and Fifth Amendment claims.

38 Defendants raise a series of constitutional and statutory arguments for why Plaintiffs are not

entitled to such bond hearings. Based on the current state of the law—which is rapidly

changing—the Court concludes that while Plaintiffs are entitled to a certain degree of

Constitutional protection, detention pursuant to 8 U.S.C. § 1225(b) is sufficiently finite that

Plaintiffs are not likely to succeed on the merits of this issue.

Plaintiffs’ current access to bond hearings

Both parties agree that the INA and its implementing regulations, on their face, do not

provide Plaintiffs with access to bond hearings before immigration judges. Pls.’ Am. Mem. at 6;

Defs.’ Resp. Opp’n Pls.’ Am. Mem. (“Defs.’ Am. Opp’n”) at 7, ECF No. 77. As explained

above, Plaintiffs are, in the case of Mikailu J., or were, in the case of Aracely R. and Sadat I.,

“arriving aliens” who sought asylum under 8 U.S.C. § 1225(b)(1)(A)(ii), passed their credible

fear interviews conducted pursuant to § 1225(b)(1)(B)(i), and submitted asylum petitions. Defs.’

Am. Opp’n at 7. Under the INA, an arriving alien who passes a credible fear interview and

submits an asylum petition “shall be detained for further consideration of the application for

asylum” (emphasis added). 8 U.S.C. § 1225(b)(1)(B)(ii). The statutory text does not authorize a

bond hearing before an immigration judge. Moreover, 8 C.F.R. § 1003.19(h)(2)(i) states that “an

immigration judge may not redetermine conditions of custody imposed by the Service with

respect to . . . [a]rriving aliens in removal proceedings, including aliens paroled after arrival

pursuant to section 212(d)(5) of the Act,” which governs the parole at issue here. Accordingly,

in order to grant Plaintiffs’ request for bond hearings, the Court must either read such a

See TAC ¶ 123. As Defendants note, it is unclear whether POE asylum seekers have sufficient connections to the United States to entitle them to First Amendment protections. Defs.’ Opp’n at 32 n.6; see United States v. Verdugo-Urquidex, 494 U.S. 259, 265–66 (1990). Regardless, the Court need not address these claims now, given the relief it is granting.

39 requirement into 8 U.S.C. § 1225(b), as courts in other jurisdictions have done, or find § 1225(b)

unconstitutional insofar as it deprives a certain class of individuals of bond hearings before

immigration judges. As explained below, courts no longer have the power to read a bond

hearing requirement into § 1225(b), and, under the current legal landscape, Plaintiffs are unlikely

to successfully argue that the statute is unconstitutional.

Development of due process rights for arriving aliens

The Court first considers the amount of due process to which arriving aliens, such as

Plaintiffs, are entitled. The Supreme Court has issued a series of opinions on this issue. Under

this line of cases, it is clear that arriving aliens are not afforded the same Constitutional rights as

individuals who are already present in the United States—including individuals who are present

illegally—but they are afforded some rights.

Defendants urge the Court to follow a 1953 decision, Shaughnessy v. United States ex rel.

Mezei, because they argue it describes “the standard framework for understanding rights of aliens

under the Constitution.” Defs.’ Opp’n at 28. Mezei involved a once-lawfully admitted alien who

left the United States, returned after a trip abroad, was refused admission, and was indefinitely

detained on Ellis Island because the Government could not find another country to accept him.

345 U.S. 206, 208–09 (1953). The Court held that the plaintiff's indefinite detention did not

violate the Constitution because he was “treated,” for constitutional purposes, “as if stopped at

the border.” Id. at 215–16. As an alien with no right to be in the United States, the Court held

that the plaintiff was not entitled to constitutional protections that could have granted him release

into the country. Id. at 216.

Plaintiffs, on the other hand, urge the Court to more closely follow Zadvydas, in which

the Court contemplated how to apply Mezei’s principles to the rights of aliens under the INA.

40 Pls.’ Am. Mem. at 34–38. In Zadvydas, the Court considered the due process protections owed

to an alien who is found to be unlawfully present in the United States, who is subject to a final

order of removal, and who cannot be removed within the 90-day statutory “removal period”

during which time the alien normally is held in custody. 533 U.S. at 682. After the statutory

removal period has expired, 8 U.S.C. § 1231(a)(6) states that certain categories of aliens “may be

detained beyond the removal period and, if released, shall be subject to [certain] terms of

supervision.” 16 Id. The Court noted that § 1231(a)(6) does not set a limit on the length of time

beyond the statutory removal period that an alien may be detained, and it concluded that such a

provision “permitting indefinite detention of an alien would raise a serious constitutional

problem,” particularly when the provision authorizes civil, rather than criminal detention. Id. at

688–90. Applying the Constitutional avoidance doctrine, the Court interpreted § 1231(a)(6) to

require that aliens detained within its scope are entitled to bond hearings every six months before

immigration judges, during which the government must demonstrate that continued detention is

necessary. Id. at 701–02. 17

In Zadvydas, the Court was careful to note, however, that § 1231(a)(6) covers aliens who

have entered the United States, sometimes lawfully, and then are removed, rather than aliens

who are considered to have never entered the country. Id. at 693. It explained:

16 The categories include inadmissible aliens, criminal aliens, aliens who have violated their nonimmigrant status conditions, and aliens removable for certain national security or foreign relations reasons, as well as any alien “who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal.” 8 U.S.C. § 1231(a)(6); see also 8 C.F.R. § 241.4(a). 17 Plaintiffs suggest that Sadat I. is currently detained under § 1231(a)(6) and has been denied the bond hearing required by Zadvydas. Pls.’ Am. Mem. at 6 n.12. However, this claim is not included in Plaintiffs’ complaint, so it is beyond the scope of the Court’s ability to grant relief here. See Fares v. Smith, 249 F. Supp. 3d 115, 125 (D.D.C. 2017) (“[I]t is axiomatic that Plaintiffs cannot amend their Complaint via their briefs.”).

41 The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law. It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.

Id. 18

The Court further refined the due process rights afforded to aliens detained under the

INA, in Demore v. Kim. In that case, the respondent—a resident alien—was undergoing removal

proceedings under another provision of the INA, § 1226(c), and had not yet been issued a final

order of removal. 538 U.S. 510, 513 (2003). Because the respondent had been convicted of

certain crimes, he was subject to mandatory pre-removal detention without an individualized

determination that “he posed either a danger to society or a flight risk.” Id. at 514–15 (citing §

1226(c)).

In holding that the detention period mandated by § 1226(c) was constitutional, the Court

found it significant that the plaintiff had been convicted of a crime, but it also relied heavily on

the brevity of the alien's detention, repeatedly framing the issue as one involving the alien's

detention for the “limited” or “brief” period of his removal proceedings. Demore, 538 U.S. at

511, 523, 526, 531; see id. at 511 (“The INS detention of respondent, a criminal alien who has

conceded that he is deportable, for the limited period of his removal proceedings, is governed by

these cases.” (emphasis added)). It noted that detention under § 1226(c) “lasts roughly a month

18 In a related case cited by Plaintiffs, Clark v. Martinez, the Supreme Court extended Zadvydas to inadmissible aliens subject to removal under § 1231(a)(6). 543 U.S. 371, 378 (2005). However, the Court’s holding was based on statutory interpretation, rather than Constitutional principles. Id. (holding that the statute applies to both inadmissible and removable aliens and cannot be interpreted to apply differently to these different categories of aliens).

42 and a half in the vast majority of cases in which it is invoked, and about five months in the

minority of cases in which an alien chooses to appeal.” Id. at 530. And it relied on the

detention’s brevity in distinguishing the case from Zadvydas. Id. at 528 (“While the period of

detention at issue in Zadvydas was ‘indefinite’ and ‘potentially permanent,’ the detention here is

of a much shorter duration.” (citations omitted)).

Finally, in February 2018, the Court applied this line of cases to arriving aliens detained

under § 1225(b), the provision at issue here. In Jennings v. Rodriguez, the Supreme Court

addressed a Ninth Circuit decision interpreting § 1225(b) to limit detention of arriving aliens to

six-month periods, after which they are entitled to bond hearings. 138 S. Ct. 830, 839 (2018).

The Court found that the Ninth Circuit misapplied the canon of constitutional avoidance, because

its reading of § 1225(b) was implausible. 138 S. Ct. at 842. It explained that “[r]ead most

naturally, §§ 1225(b)(1) and (b)(2) mandate detention of applicants for admission until certain

proceedings have concluded.” Id. It also rejected the argument that those provisions contain an

implicit six-month limit on the length of detention, observing that “nothing in the statutory text

imposes any limit on the length of detention” or “even hints that those provisions restrict

detention after six months.” Id. at 842, 843. As to the canon of constitutional avoidance, the

Court held that “[s]potting a constitutional issue does not give a court the authority to rewrite a

statute as it pleases . . . [i]nstead, the canon permits a court to ‘choos[e] between competing

plausible interpretations of a statutory text.’” Id. at 843. The Court remanded the action to the

Ninth Circuit for a determination of whether 1225(b) is constitutional on its face. Id. at 851.

When read together, these opinions delineate a basic framework for evaluating INA’s

various detention provisions. Under the framework, a detention provision is more likely to be

constitutionally problematic if it has the following characteristics: (1) it authorizes indefinite

43 detention, with no clearly defined end point; (2) it applies to aliens who are considered under the

law to have entered the United States, whether legally or illegally; and (3) it applies to aliens

who may not have been accused or convicted of a crime. Plaintiffs note that, applying this

framework, courts in other jurisdictions have interpreted 1225(b) to authorize detention for what

they view as a constitutionally reasonable amount of time, after which the government must

make an individualized inquiry into whether detention is still necessary. See Abdi, 280 F. Supp.

3d at 391–93 (collecting cases); Ahad v. Lowe, 235 F. Supp. 3d 676, 688 (M.D. Pa. 2017)

(holding that the plaintiff POE asylum seeker, detained under 1225(b) for 20 months, was

entitled to a bond hearing); Maldonado v. Macias, 150 F. Supp. 3d 788, 812 (W.D. Tex. 2015)

(granting habeas relief to § 1225(b) detainee after two years' detention). The Court will apply

this framework to Plaintiffs here.

Plaintiffs are unlikely to succeed on their request for bond hearings

Having considered the legal principles laid out above, the Court is not persuaded that

Plaintiffs are likely to successfully argue that they have a due process right to individualized

bond hearings before immigration judges. Unlike the class of aliens considered in Zadvydas,

who could have legally resided in the United States before being detained, Plaintiffs are arriving

aliens, considered under the law to have never entered the United States. 19 See 8 U.S.C. §

1225(b). Furthermore, unlike the statute evaluated in Zadvydas, which authorized potentially

indefinite detention, § 1225(b)(1)(B)(ii), under which Plaintiffs are or were detained, authorizes

detention only until an asylum seeker’s asylum petition is approved or denied. According to

19 This includes Aracely R., even though she was paroled into the United States. See 8 U.S.C. § 1182(d)(5)(A).

44 Defendants, Mikailu J.’s asylum petition was denied within a year of arriving at the border, 20

Defs.’ Opp’n at 10, as was Sadat I.’s, id. at 11. Their circumstances suggest a more abbreviated

detention period than the period faced by the Zadvydas plaintiffs, and Plaintiffs have not

provided data on the average length of detention under § 1225(b)(1)(B)(ii). These factual

differences render Plaintiffs’ detention less constitutionally problematic than the plaintiffs’

detention in Zadvydas.

Further, after Jennings, courts may no longer read a bond hearing requirement into §

1225(b), as the courts did in the cases cited by Plaintiffs. Jennings, 138 S. Ct. at 851. While

Mezei may be under siege, it is still good law, and it dictates that for an alien who has not

effected an entry into the United States, “[w]hatever the procedure authorized by Congress is, it

is due process as far as an alien denied entry is concerned.” Mezei, 345 U.S. at 212 (internal

quotation marks omitted). Under the high threshold established when a party seeks preliminary

injunctive relief that alters the status quo, and considering the current legal landscape, the Court

concludes that Plaintiffs have not sufficiently demonstrated that they are likely to succeed on the

merits of this issue.

b. Alleged Improper Deterrence Policy

The second core component of Plaintiffs’ suit is that ICE has adopted an unwritten,

unlawful parole policy aimed at deterring immigration. In Plaintiffs’ amended complaint, this

claim finds voice in three distinct theories under the APA: (1) the policy contradicts the Morton

Directive, rendering it arbitrary and capricious, TAC ¶ 137(D); (2) the policy “impacts

substantive rights but has not passed through any required rule-making procedures,” also

20 Mikailu J. remains detained under § 1225(b)(1)(B)(ii) pending an appeal of his asylum petition denial. Pls.’ Am. Reply at 7.

45 rendering it arbitrary and capricious, TAC ¶ 137(A); and (3) the policy violates the INA and the

Constitution, and is thus contrary to law, TAC ¶¶ 137(B)–(C). Plaintiffs also challenge the

policy by way of a freestanding Fifth Amendment claim. TAC ¶ 115. Because the Court

concludes that Plaintiffs’ first APA theory, standing alone, warrants preliminary injunctive relief

with respect to Plaintiffs’ parole determinations, it need not reach Plaintiffs’ other theories. The

Court will begin with a discussion of the alleged deterrence policy’s existence. It will then

analyze Plaintiffs’ likelihood of success on their APA claims arising from the policy.

Existence of a Policy

Plaintiffs maintain that Defendants developed and implemented an unwritten policy

directing ICE officials to consider immigration deterrence as a factor in evaluating individual

POE asylum seekers’ parole requests. Pls.’ Am. Mem. at 17–20. They also argue that they were

repeatedly denied parole because of this policy, despite their clear eligibility under the Morton

Directive. Id. at 21. And they argue that this policy was applied with renewed vigor after the

2016 Presidential election. Pls.’ Am. Mem. at 17–18. Defendants deny that any such policy

exists. Defs.’ Am. Opp’n at 20–22. Plaintiffs’ assertions, however, find support in the record.

First, Plaintiffs’ briefs and exhibits reference government policy statements and orders

that they claim tend to suggest a deterrence policy. For instance, in 2014, then-Secretary of

Homeland Security Jeh Johnson announced before Congress the implementation of an

“aggressive deterrence strategy” aimed at discouraging migration to the United States. Human

Rights First, Lifeline on Lockdown, Pls.’ Am. Mem. Ex. 16 at 9, ECF No. 74-19 (citing a July 10,

2014 statement by Secretary Johnson before the Senate Appropriations Committee). Also in

2014, Secretary Johnson issued a policy memorandum establishing that individuals detained at

ports of entry, among other categories of immigrants, should be considered a “category 1

46 enforcement priority,” which mandated increased focus on their detention. Decl. of Eleanor

Acer (“Acer Decl.”) ¶ 16, Pls.’ Am. Mem. Ex. 11, ECF No. 74-14; Lifeline on Lockdown at 10.

Similarly, in early 2017, President Trump issued Executive Order No. 13767, entitled “Border

Security and Immigration Enforcement Improvements,” which instructs the Secretary of

Homeland Security to construct additional detention facilities, “end the abuse of parole and

asylum provisions currently used to prevent the lawful removal of removable aliens,” and issue

new policy guidance “including the termination of the practice commonly known as ‘catch and

release.’” See generally Pls.’ Am. Mem. Ex. 14, ECF No. 74-17. And in then-Secretary of

Homeland Security John Kelly’s memorandum implementing that Executive Order, Secretary

Kelly stated that “[t]he practice of granting parole to certain aliens in pre-designated categories .

. . created an incentive for additional illegal immigration.” Pls.’ Am. Mem. Ex. 15 at 9, ECF No.

74-18. In urging ICE to attack this incentive by re-examining its parole determinations,

Secretary Kelly was in effect urging ICE to deter immigration.

Second, Plaintiffs’ submissions reference public statements by high level government

officials, and news articles quoting government sources, indicating the existence of a deterrence

policy influencing all aspects of DHS’s administration of the INA. For instance, Plaintiffs’

recent Motion to Present Three Exhibit Updates includes an interview with former Secretary

Kelly, who is now the White House Chief of Staff, in which Mr. Kelly stated that “a big name of

the game is deterrence” when it comes to prosecutorial discretion in enforcing the INA.

Proposed Ex. 26 at 4, ECF No. 89-1. 21

21 Moreover, several recent news articles allege that the current presidential administration has sought to deter immigration—both legal and illegal—through the enforcement of INA provisions unrelated to parole determinations. See Julia Ainsley, Trump Admin Discussed Separating Moms, Kids to Deter Asylum-Seekers in Feb. 2017, NBC News (June 18,

47 Third, Plaintiffs note that the government has referenced a deterrence policy in other

litigations. See R.I.L-R, 80 F. Supp. 3d at 175 (noting that the government has claimed that “ICE

officials are required to follow the binding precedent contained in Matter of D---J---, 23 I. & N.

Dec. 572 (2003), in which then-Attorney General John Ashcroft held that deterrence of mass

migration should be considered in making custody determinations under [a different INA

provision]”). While Defendants have not admitted to a deterrence policy here, as they did in

their R.I.L-R briefing, id., they do not contest that the government has referenced such a policy

before other courts.

Fourth, Plaintiffs have provided declarations and reports from immigration lawyers, non-

governmental organizations, and other experts who claim that the alleged deterrence policy

causes ICE officials to deny parole to POE asylum seekers who would otherwise qualify for

2018, 3:43 PM), https://www.nbcnews.com/politics/immigration/trump-admin-discussed- separating-moms-kids-deter-asylum-seekers-feb-n884371 (discussing notes from a “town hall” held for ICE asylum officers in February 2017 in which the agency’s asylum chief allegedly “laid out a number of policies specifically intended to lower the number of immigrants claiming asylum”); John Haltiwanger, John Kelly Proposed Separating Children From Their Parents to Deter Illegal Immigration Last Year, and Now the Trump Administration Can’t Get Its Story Straight, Business Insider, (June 18, 2018, 1:04 PM), http://www.businessinsider.com/kelly- proposed-family-separation-to-deter-illegal-immigration-in-2017-2018-6 (discussing the administration’s “inconsistent justifications” for its recent shift towards “zero tolerance” immigration law enforcement, and quoting former Secretary Kelly as stating that he “would do almost anything to deter the people from Central America to getting on this very, very dangerous network that brings them up through Mexico into the United States.”); Tal Kopan, Exclusive: Trump Admin Thought Family Separations Would Deter Immigrants. They Haven’t., CNN Politics, (June 18, 2018, 12:25 PM), https://www.cnn.com/2018/06/18/politics/family- separation-deterrence-dhs/index.html (describing “internal [DHS] documents obtained by CNN” evaluating a “Prosecution Initiative” designed to deter immigration by referring all adults caught illegally crossing the border to the Department of Justice for prosecution); John Burnett, To Curb Illegal Immigration, DHS Separating Families at the Border, NPR (Feb. 27, 2018, 7:41 AM), https://www.npr.org/2018/02/27/589079243/activists-outraged-that-u-s-border-agents-separate- immigrant-families (quoting an ICE executive associate director as stating that “[w]e need to realize that stopping this flow [of asylum seekers] and preventing these crossings is the best thing that we can do right now”).

48 parole under the Morton Directive. For instance, Eleanor Acer, the Senior Director for Refugee

Protection at Human Rights First, stated that:

“[t]hese practices of preventing release or severely restricting options for release of individuals who meet the criteria for parole, despite the clear directions provided in the 2009 asylum parole directive, are part of a policy to deter individuals from coming to the United States to seek asylum, and to in effect punish those who already have done so.”

Acer Decl. ¶ 1, 23. Similarly, Bethany Carson, an immigration researcher at Grassroots

Leadership, stated that she has observed a trend “that the majority of detained individuals who . .

. came through ports of entry are not assigned a bond by ICE and are not paroled.” Decl. of

Bethany Carson (“Carson Decl.”) ¶ 1, 22, Pls.’ Am. Mem. Ex. 8, ECF No. 74-11. And in a

Human Rights First survey of immigration attorneys who had been in the field for more than ten

years, 90 percent stated that “ICE denied parole despite asylum seekers providing ample

evidence to establish their identities and prove that they did not pose a flight risk or security

risk.” Acer Decl. ¶ 18. In a similar survey, nearly half of the participants agreed that Secretary

Johnson’s 2014 policy memorandum caused an increase in parole denials. Lifeline on Lockdown

at 20. According to Human Rights First, the research indicates that “many asylum seekers have

been denied parole even when they meet [the Morton Directive] criteria.” Id. at 13. Finally,

according to a different Human Rights First report, ICE “largely refused to release asylum

seekers from detention on parole” in the first eight months following the issuance of President

Trump’s 2017 Executive Order. Human Rights First, Judge and Jailer: Asylum Seekers Denied

Parole in Wake of Trump Executive Order, Pls.’ Am. Mem. Ex. 17 at 1, ECF No. 74-20.

Fifth, Plaintiffs provide data that they claim suggests an abrupt decline in the percentage

of successful parole requests by POE asylum seekers in the years since the Morton Directive was

implemented. A Human Rights First report indicates that in 2010, ICE detained, without parole,

49 percent of asylum seekers with positive credible fear determinations, while in 2014 ICE 49 detained 84 percent of these individuals. Acer Decl. ¶ 19. Eunice Lee, the Co-Legal Director of

the Center for Gender & Refugee Studies at the University of California Hastings College of

Law, provided more detailed statistics indicating a marked drop in the parole grant rate of certain

ICE detention centers from 2016 to 2017. Decl. of Eunice Lee (“Lee Decl.”) ¶ 1, 5–6, Pls.’ Am.

Mem. Ex. 10, ECF No. 74-13. For instance, according to her research, the parole grant rate for

the Port Isabel, Texas Detention Center was approximately 35% in 2016, and approximately 9%

in 2017. Id. ¶¶ 5–6. Similarly, the parole grant rate for the South Texas Detention Center was

approximately 50% in 2016, and approximately 26% in 2017. Id. Anne Daher, a Staff Attorney

at the Center for Gender & Refugee Studies, stated that the combined parole denial rate for the

Detroit, El Paso, Los Angeles, Newark, and Philadelphia ICE Field Offices from January 2011

through December 2013 was 8%, while the combined parole denial rate for those Field Offices in

February 2017 was over 96%. Pls.’ Mot. Present Three Ex. Updates, Proposed Ex. 27 at 11–13,

ECF No. 89-2. 22

Finally, Plaintiffs have described their own experiences with the alleged policy.

According to Sadat I., when he was first detained at a United States port of entry, the guards told

him and the other detainees that they were being punished for entering the United States

“without legal documents.” Sadat I. Decl. ¶ 6. He also claims to have been held in a cold cell

called the “Ice Box” as a form of punishment because—he was allegedly told by the guards—the

detainees should not have come to the United States, and the Ice Box experience would convince

them to tell their friends not to come. Id. And he claims that at one point he was told that he

would be released on parole, but in November 2017 he was abruptly told that this was no longer

22 Because this Proposed Exhibit contains multiple declarations with overlapping paragraph numbers, the Court cites to the page numbers automatically generated by ECF.

50 possible because of “[the] election.” Id. ¶ 11. Finally, ICE officials allegedly initially

determined that Aracely R. was deemed eligible for parole, but this determination was abruptly

cancelled and her parole request was denied, purportedly because of the deterrence policy. See

Pls.’ Am. Mem. at 18 n.19; see also Ex. 23, ECF No. 74-22.

Defendants put forth three rebuttal arguments. First, they provide the declaration of

Deborah Achim, the Deputy Field Office Director in ICE’s San Antonio Field Office, who states,

without elaborating, that “ICE does not have a policy of relying on deterrence as a factor in

parole determinations.” Achim Decl. ¶ 1, 4. Second, they argue that the fact that Plaintiff Hatim

B. was granted asylum and Plaintiff Aracely R. was granted parole “is significant evidence that

there is no policy of deterrence.” Defs.’ Am. Opp’n at 21. Third, they point out that Plaintiffs

assert that the alleged deterrence policy was formulated in 2014, but the data they rely upon

shows a decline in parole grant rates beginning as far back as 2010, before the alleged policy was

hatched. Id. They argue that “Plaintiffs’ faulty timeline cuts into the essential inference

undergirding the entire case.” Id. None of these arguments is sufficient to rebut Plaintiffs’

evidence.

First, Ms. Achim’s self-serving declaration is not sufficient to discredit Plaintiffs’

substantial volume of evidence indicating the existence of a deterrence policy outside the scope

of the Morton Directive influencing parole determinations. Her conclusory denial of a policy,

without elaboration, fails to acknowledge that Defendants have conceded that a deterrence policy

existed in the past. See R.I.L-R, 80 F. Supp. 3d at 175. Defendants fail to explain when such a

policy ceased to exist and why, despite the policy’s alleged discontinuation, parole numbers

continue to plummet. While it is true that Plaintiffs have not supplied a statement from an

individual with firsthand knowledge of the alleged policy, they have supplied sufficient

51 circumstantial evidence to suggest that they are likely to establish the existence of a deterrence

policy as the litigation progresses.

Second, the changed circumstances of Hatim B. and Aracely R., if anything, support

rather than discredit Plaintiffs’ contentions because they were repeatedly denied parole under 8

C.F.R. § 212.5(b)(5), despite apparently falling within the Morton Directive’s scope. Hatim B.

requested asylum in early 2017, he presented affidavits and a birth certificate, he presented a

letter of sponsorship from a local shelter for asylum seekers, he presented a background check

indicating no criminal history, and he was still denied parole twice before his asylum was

granted by an immigration judge. Decl. of Hatim B. (“Hatim Decl.”) ¶¶ 5–6, Pls.’ Am. Mem.

Ex. 2, ECF No. 74-4; Achim Decl. ¶ 5. Aracely R. was denied parole under § 212.5(b)(5) until

her medical condition became so severe that she required emergency surgery, warranting parole

under § 212.5(b)(1). See Aracely Decl. ¶ 6; Decl. of Dr. Marsha Griffin, Pls.’ Am. Mem. Ex. 6,

ECF No. 74-9; Decl. of Dr. Mike Krosin, Pls.’ Am. Mem. Ex. 12, ECF No. 74-15. Their

circumstances suggest that ICE denied their parole pursuant to the alleged deterrence policy until

it was forced to release them.

Third, the mere fact that ICE officials may have been disregarding the Morton Directive

before Plaintiffs can pinpoint evidence of a deterrence policy, in 2014, does not undercut

Plaintiffs’ argument that such a policy existed. The fact that a policy was “openly announced

and recognized” in 2014 does not establish that it did not exist before then. TAC ¶ 43.

Furthermore, Plaintiffs have put forth evidence that the alleged policy was re-emphasized after

the 2016 Presidential election, resulting in an additional drop in the parole grant rate. As the

litigation progresses, Plaintiffs will have the opportunity to further refine the period during which

Defendants’ alleged deterrence policy has been in place, and Defendants will have the

52 opportunity to rebut Plaintiffs’ evidence. At this stage, Plaintiffs’ unrebutted statistical evidence

of a significant decline in parole grants is sufficient to outweigh Defendants’ weak challenge.

See Damus, 2018 WL 3232515, at *15.

Having considered the evidence presented by both parties, the Court is satisfied that

Plaintiffs are likely to show that Defendants have implemented a policy of taking immigration

deterrence into account when making individual parole determinations for POE asylum seekers,

and that this policy likely played a significant role in the repeated denials of Plaintiffs’ parole

requests. Discovery may show otherwise, but Plaintiffs have met the threshold required to obtain

a preliminary injunction.

Likelihood of Success

Having determined that Plaintiffs are likely to show that ICE officials considered

immigration deterrence when making parole determinations, the Court will determine whether

Plaintiffs are likely to successfully challenge that policy under the APA. Plaintiffs assert that the

policy is inconsistent with the parole factors established by the Morton Directive, and is

therefore arbitrary and capricious under the APA. Pls.’ Am. Mem. at 29–32. Defendants, on the

other hand, argue that “[b]ecause the [Morton Directive] is not a regulation, it lacks the force of

law and cannot sustain either a constitutional claim or claim based on a question of law.” Defs.’

Am. Opp’n at 20. The Court is unconvinced by Defendants’ arguments. It concludes that

Plaintiffs have demonstrated that they are likely to succeed in showing that Defendants’ failure

to comply with the Morton Directive in declining their parole requests was arbitrary and

capricious, in violation of the APA.

An agency is bound to adhere to its own regulations. This principle was first established

by the Supreme Court in U.S. ex rel. Accardi v. Shaughnessy. See 347 U.S. 260 (1954). In that

53 case, an alien challenged the U.S. Board of Immigration Appeals’ decision to deny his

application to suspend deportation, arguing that the Attorney General prejudiced the Board’s

decision in contravention of regulations directing the Board to exercise its own discretion. 347

U.S. at 261–62. Agreeing with the alien, the Court ordered a new Board hearing because of “the

Board’s alleged failure to exercise its own discretion, contrary to existing valid regulations.” Id.

at 268 (emphasis in original). 23

The Supreme Court expanded this principle to cover internal agency policies in Morton v.

Ruiz, which involved a dispute over whether Native Americans were eligible for certain federal

benefits. See 415 U.S. 199, 204–06 (1974). An internal agency manual dictated that the

eligibility requirements should have been published in the Federal Register by the agency

administering the benefits program, but the agency had not published them. Id. at 234–35. The

Court held that the agency’s failure to comply with its internal manual was arbitrary and

capricious under the APA because “[w]here the rights of individuals are affected, it is incumbent

upon agencies to follow their own procedures . . . even where the internal procedures are

possibly more rigorous than otherwise would be required.” Id. at 235.

These principles dictate that agency actions may be arbitrary and capricious when they do

not comply with binding internal policies governing the rights of individuals. For instance, in

Doe v. Hampton, the physically disabled plaintiff challenged her termination because the

defendant agency failed to comply with an internal manual dictating that the agency should

23 In this jurisdiction, there is one line of cases based on the “Accardi” doctrine, and another line of cases under the APA concerning whether agencies must abide by their policy statements and other internal documents. See Wilkinson v. Legal Servs. Corp., 27 F. Supp. 2d 32, 65 (D.D.C. 1998) (describing the Accardi doctrine and its intersection with the APA). However, “the coexistence” of the two doctrines “has been for the most part benign,” because “under either theory, enforceable rules are those to which the agency intends to be bound.” Id.

54 reassign the plaintiff or grant her leave without pay before terminating her. See 566 F.2d 265,

280 (D.C. Cir. 1977). In directing the district court to resolve whether the agency was bound to

its manual, the D.C. Circuit noted that “some unpublished provisions may be binding [on the

agency] if so intended [by the agency] . . . as ascertained by an examination of the provision’s

language, its context, and any available extrinsic evidence.” Id. at 281. 24 Similarly, in Abdi, a

case Plaintiffs rely upon heavily, the court held that the plaintiffs could successfully challenge

ICE’s failure to comply with the Morton Directive because “the [Morton Directive]—like the

procedure at issue in Morton—affects the rights of individuals.” 280 F. Supp. 3d at 388–89; see

also INS v. Yang, 519 U.S. 26, 31–32 (1996) (“Though the agency’s discretion is unfettered at

the outset, if it announces and follows—by rule or by settled course of adjudication—a general

policy by which its exercise of discretion will be governed, an irrational departure from that

policy (as opposed to an avowed alteration of it) could constitute action that must be overturned

as ‘arbitrary, capricious, [or] an abuse of discretion’”); Lopez v. FAA, 318 F.3d 242, 246–48

(D.C. Cir. 2003) (“[A]gencies cannot ‘relax or modify’ regulations that provide the only

safeguard individuals have against unlimited agency discretion in hiring and termination.”);

Ravulapalli v. Napolitano, 773 F. Supp. 2d 41, 53–54 (D.D.C. 2011) (holding that the plaintiff

stated an APA claim based on the allegation that the defendant failed to follow internal policy

guidelines directing its review of the plaintiff’s visa petition); Damus, 2018 WL 3232515, at *14.

The Morton Directive’s provisions make clear that it governs the rights of POE asylum

seekers requesting parole, and therefore that it can support an APA claim under Morton. See 415

U.S. at 235. The Directive lays out specific factors to be applied when making individual parole

24 The Doe court did not address an APA challenge, but the Court finds its reasoning instructive for evaluating whether an internal agency policy may support such a challenge.

55 determinations, and it establishes procedural rights for asylum seekers in connection with the

parole process. The Directive states that its purpose is to “ensure transparent, consistent, and

considered ICE parole determinations for arriving aliens seeking asylum in the United States.”

Morton Directive ¶ 1. More specifically, it purports to explain “how [8 C.F.R. § 212.5(b)(5)] is

to be interpreted by DRO when it decides whether to parole arriving aliens determined to have a

credible fear.” Id. ¶ 4.4. 25

The Directive states that “when an arriving alien . . . establishes to the satisfaction of

DRO his or her identity and that he or she presents neither a flight risk nor danger to the

community, DRO should, absent additional factors . . . parole the alien on the basis that his or

her continued detention is not in the public interest.” Id. ¶ 6.2. The Directive proceeds to

explain how a parole applicant may establish his or her identity and prove that he or she is not a

flight risk or a danger to the community. Id. ¶ 8.3. It also explains that the “additional factors”

that may be considered include “serious adverse foreign policy consequences that may result if

the alien is released or overriding law enforcement interests.” Id. ¶ 8.3(4). In addition, the

Directive establishes a serious of procedural requirements for ICE officials making parole

determinations. Id. ¶¶ 6.1, 6.2, 6.5–6.7. By its text, the Directive imposes procedural and

substantive obligations under which “its exercise of discretion will be governed,” and the rights

of parole seekers will be impacted. Yang, 519 U.S. at 31–32.

25 As a reminder for the reader, 8 C.F.R. § 212.5(b) governs parole of the following subgroups of POE asylum seekers: (1) aliens who have serious medical conditions, where continued detention would not be appropriate; (2) women who have been medically certified as pregnant; (3) certain juveniles; (4) aliens who will be witnesses in proceedings being, or to be, conducted by judicial, administrative, or legislative bodies in the United States; or (5) aliens whose continued detention is not in the public interest. § 212.5(b)(1)–(b)(5). Plaintiffs believe that, pursuant to the Morton Directive, they fall within subgroup (5).

56 Further, Plaintiffs persuasively contend that Defendants have indicated an intent to be

bound by the Morton Directive. First, the Morton Directive itself indicates that ICE officials

must comply with its guidance. It establishes a quality assurance procedure, including

nationwide monthly compliance analyses, and it states that “[a]ny significant or recurring

deficiencies identified during this monthly analysis should be explained to the affected Field

Office, which will take appropriate corrective action.” Morton Directive ¶ 8.11. Second, the

government represented to the Supreme Court in February 2017, in support of its position that

bond hearings are not required for detained POE asylum seekers, that “the existing framework

provides more than sufficient process” because the Morton Directive “provides for notice to the

alien, an interview, the opportunity to respond and present evidence, a custody determination . . .

supervisory review, and further parole consideration based upon changed circumstances or new

evidence.” Supplemental Reply Brief for Petitioners at 6–7, Jennings v. Rodriguez, No. 15–1204

(brief filed Feb. 21, 2017). Third, in his 2017 memorandum implementing Executive Order No.

13767, described above, Secretary Kelly stated that “the Ice [Directive] . . . shall remain in full

force and effect,” and that it “shall be implemented in a manner consistent with its plain

language.” Pls.’ Am. Mem. Ex. 15 at 9–10. Fourth, in declining a public interest group’s

request for rulemaking regarding POE asylum seekers’ custody determinations, ICE’s General

Counsel stated that “DHS’s parole decisions are governed by [the Morton Directive], which

establish extensive procedural safeguards.” Pls.’ Am. Mem. Ex. 24 at 8, ECF No. 74-23.

Finally, Defendants refer to the Morton Directive as “very binding, written guidance” in their

briefing. Defs.’ Opp’n at 2. Defendants cannot have their cake and eat it too by claiming that

the Morton Directive provides sufficient procedural protection to avoid Constitutional concerns,

57 while also claiming that ICE officials are not obligated to follow its mandates. See Hampton,

566 F.2d at 281.

Defendants urge the Court to weigh heavily the Directive’s disclaimer that it “is not

intended to, shall not be construed to, may not be relied upon to, and does not create, any rights,

privileges, or benefits, substantive or procedural, enforceable by any party against the United

States.” Morton Directive ¶ 10. They argue that this language insulates the Directive from

forming the basis of Plaintiffs’ APA claims. Defs.’ Opp’n at 7 n.2. The Court is not convinced

that an agency can avoid challenges based on a policy that appears to be binding and that impacts

the rights of individuals, simply by including a boilerplate disclaimer. See Damus, 2018 WL

3232515, at *14.

In support of their contention, Defendants rely on a 1981 Supreme Court decision,

Schweiker v. Hansen. Defs.’ Am. Opp’n at 20. In Schweiker, the Court held that a government

employee’s “minor breach” of an agency’s internal agency guidelines did not justify the Court

estopping the agency’s denial of certain benefits to the plaintiff, where that denial likely would

not have occurred without the breach. 450 U.S. 785, 789–90 (1981), superseded by statute on

other grounds, Budget Reconciliation Act of 1989, Pub. L. No. 101-239, § 10302, 103 Stat.

2481.. The Court relied heavily on the manual’s internal nature, stating that if a “minor breach of

such a manual suffices to estop petitioner, then the Government is put at risk that every alleged

failure by an agent to follow instructions to the last detail in one of a thousand cases will deprive

it of the benefit of the written application requirement.” Id. (citation and internal quotation

marks omitted). Similarly, in a case not cited by Defendants, the D.C. Circuit held that U.S.

Department of Justice’s internal guidelines for issuing subpoenas to news media were not

binding on the government because the guidelines had very similar disclaimer language to the

58 Morton Directive and they related to prosecutorial discretion. In re Grand Jury Subpoena,

Judith Miller, 438 F.3d 1141, 1152 (D.C. Cir. 2006). The Court noted that “[g]iven the nature of

the guidelines themselves, and the function they govern, we conclude that the guidelines provide

no enforceable rights to any individuals, but merely guide the discretion of the prosecutors.” Id.

at 1153.

These cases are factually distinguishable. The internal manual provision at issue in

Schweiker merely dictated that employees should advise individuals about certain benefits when

those individuals made oral inquiries—it did not mandate specific rights or procedures. See 450

U.S. at 789–90. The Supreme Court noted that “at worst, [the agency employee’s] conduct did

not cause respondent to take action, or fail to take action, that respondent could not correct at any

time.” Id. (internal citations omitted). Here, however, the Morton Directive identifies specific

factors and procedural requirements governing the deprivation of Plaintiffs’ liberty, a decision

over which they have very little control. And in both Schweiker and Judith Miller, there was no

evidence that the agency relied upon the relevant internal guidelines in litigation, nor that it

otherwise intended to be bound by them. See Abdi, 280 F. Supp. 3d at 389 (“In short,

Respondents cite no case law that would compel the conclusion that agencies can avoid

application of Accardi by simply disclaiming any binding effect in the directive itself.”). The

Court therefore declines to follow those cases here. 26

26 Defendants also correctly note that agency officials are entitled to a presumption that they have properly discharged their duties. Defs.’ Opp’n at 35; see United States v. Chem. Found., Inc., 272 U.S. 1, 14–15 (1926) (citations omitted). However, the presumption may be rebutted by clear evidence to the contrary. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007) (citations omitted). As discussed above, the Court concludes that Plaintiffs have put forth sufficient evidence that ICE officials failed to properly apply the Morton Directive when making parole determinations, and that they applied an improper factor. Defendants are therefore not entitled to the “presumption of regularity.” Chem. Found., 272 U.S. at 14–15.

59 Having determined that the Morton Directive is binding on Defendants, the Court

concludes that Defendants’ deterrence policy does not align with the Directive’s parole decision

factors. The Directive mandates that an alien’s “continued detention is not in the public

interest,” and therefore that the alien should be paroled if the alien’s identity can be established

and he or she presents “neither a flight risk nor danger to the community.” Morton Directive ¶

6.2. Immigration deterrence, which is directed at third parties that have not yet travelled to this

country, does not relate to an individual parole applicant’s flight risk or danger to the

community. And while the Directive allows officials to consider “exceptional, overriding

factors,” including “serious adverse foreign policy consequences that may result if the alien is

released or overriding law enforcement interests,” Id. ¶ 8.3(4), Defendants have not characterized

their denial of Plaintiffs’ parole requests as addressing a “serious foreign policy consequence” or

an “overriding law enforcement interest.” In considering deterrence as a factor in parole

determinations, ICE officials are therefore circumventing the factors laid out in the binding

Directive. 27 Because Plaintiffs have demonstrated the incompatibility of the deterrence policy

and the Directive, they have met their burden of showing a likelihood of success on the merits of

their APA challenge to Defendants’ deterrence policy. 28 See Venetian Casino Resort, 530 F.3d

27 While Plaintiffs focus on Defendants’ alleged failure to apply the parole factors laid out in the Morton Directive, there is evidence in the record that Defendants also failed to adhere to the Directive’s procedural requirements. For instance, the Directive requires that an ICE official conduct a parole interview “no later than seven days following a finding that an arriving alien has a credible fear,” Morton Directive ¶ 8.2, but some Plaintiffs claim to have not received an interview. See Aracely Decl. ¶ 6; Hatim Decl. ¶ 5. Similarly, the Directive requires that if ICE denies parole to a POE asylum seeker, it must provide that individual with a letter that includes “a brief explanation of the reasons for denying parole.” Morton Directive ¶ 8.2. However, certain of Plaintiffs’ parole rejection letters contain boilerplate language that does not sufficiently explain why parole was denied. See generally Pls.’ Am. Mem. Ex. 23. 28 As noted above, Plaintiff Sadat I.’s status is unclear. The Morton Directive is binding only as to 8 C.F.R. § 212.5(b)(5). To the extent Sadat I. is eligible for parole under a different

60 at 934–35 (“To maintain two irreconcilable policies, one of which . . . apparently enables the

agency . . . to circumvent the other . . . is arbitrary and capricious agency action.”) (citation

omitted). 29

2. Irreparable Harm

The Court next considers whether Plaintiffs have met their burden of showing irreparable

harm. The parties agree that Plaintiff Mikailu J.’s current detention is covered by the Morton

Directive, and that Plaintiffs Sadat I. and Arcely R. were at one time detained under 8 U.S.C. §

1182(d)(5)(A), and therefore could have been paroled under the Directive. Plaintiffs argue that

(1) their alleged constitutional injuries are per se irreparable; and (2) they have suffered—and

will continue to suffer—negative physical and mental effects of detention, subpar medical and

psychiatric care, and economic burdens imposed on them and their families as a result of their

detentions. See Pls.’ Am. Mem. at 8–13. Defendants disagree, arguing that preliminary

injunctive relief is inappropriate because (1) Plaintiffs seek an injunction that would require the

regulation, Plaintiffs have not presented sufficient evidence for the Court to conclude that they are likely to succeed in challenging that regulation. 29 The Court notes that Defendants’ deterrence policy also raises Constitutional questions, insofar as it is used to justify Plaintiffs’ civil detention. Civil detention is justified “in certain special and narrow nonpunitive circumstances, where a special justification, such as harm- threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690 (citations and internal quotation marks omitted). The Supreme Court has held that detention of noncitizens awaiting immigration proceedings may be justified to (1) prevent their flight; or (2) protect the community from aliens found to be especially dangerous. See id. Civilly detaining Plaintiffs because it may deter immigration “appears out of line with analogous Supreme Court decisions.” R.I.L-R, 80 F. Supp. 3d at 188–89 (enjoining ICE’s deterrence policy when used to justify the detention of a different class of asylum seekers than Plaintiffs; noting that “[t]he justifications for detention previously contemplated by the Court relate wholly to characteristics inherent in the alien himself or in the category of aliens being detained . . . . The Government here advances an entirely different sort of interest”). In light of the uncertainty regarding the due process rights of aliens considered to have never entered the United States, and because Plaintiffs are entitled to preliminary injunctive relief on the basis of their APA claims alone, the Court declines to address the policy’s Constitutionality here.

61 Court to provide the same relief as Plaintiffs’ complaint requests; and (2) Plaintiffs “waited

months before filing for relief from detention.” Defs.’ Opp’n at 40–43. Plaintiffs’ argument

carries the day.

“The concept of irreparable harm does not readily lend itself to definition.” Judicial

Watch, Inc. v. DHS, 514 F. Supp. 2d 7, 10 (D.D.C. 2007). Nonetheless, the D.C. Circuit has laid

out “several well known and indisputable principles” that should underlie a court’s analysis.

Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam). First, the party seeking

preliminary injunctive relief must demonstrate that the claimed injury is “both certain and great”

and “actual and not theoretical.” Id. Second, the movant “must show that ‘the injury

complained of [is] of such imminence that there is a ‘clear and present’ need for equitable relief

to prevent irreparable harm.’” Id. (alterations in original) (quoting Ashland Oil, Inc. v. FTC, 409

F. Supp. 297, 307 (D.D.C. 1976)). Finally, the injury must be “beyond remediation.”

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006).

In light of these legal principles, the Court concludes that Plaintiffs have met their burden

of showing irreparable harm. Plaintiffs allege various physical and psychological impairments

that have resulted from or worsened due to their prolonged detention. For instance, Plaintiffs

describe symptoms of increasing mental distress. See generally Aracely Decl. ¶ 19 (“I must

admit that my depression is very bad now”); Sadat Decl. ¶ 27 (“Some days I am so despondent

and without hope that I do not want to do anything at all”); Decl. of Andrea Northwood ¶¶ 5, 8–

22, Pls.’ Am. Mem Ex. 7, ECF No. 74-10 (describing the impact “of prolonged detention on the

mental health of asylum seekers who have experienced significant and repeated trauma”).

Plaintiffs also describe symptoms of increasing physical distress. See generally Aracely Decl. ¶

15 (describing an infection due to poor sanitation); Hatim Decl. ¶ 11 (describing “debilitating”

62 stomach problems due to poor diet); Sadat Decl. ¶ 19; Mikailu Decl. ¶ 22 (describing “stabbing

chest pains” and vomiting); see generally Carson Decl.; Decl. of Clara Long, Pls.’ Am. Mem.

Ex. 9, ECF No. 74-12. Plaintiff Sadat I. further claims that the privacy and safety restrictions

imposed during his detention impaired his ability to fully prepare his asylum petition. Sadat

Decl. ¶ 10.

Courts in this and other jurisdictions have found that deprivations of physical liberty of

the type suffered by Plaintiffs are the sort of actual and imminent injuries that constitute

irreparable harm. See Abdi, 280 F. Supp. 3d at 405–06 (collecting cases); Seretse–Khama v.

Ashcroft, 215 F. Supp. 2d 37, 53 n.20 (D.D.C. 2002) (same); Damus, 2018 WL 3232515, at *17.

Courts have likewise recognized that the “major hardship posed by needless prolonged

detention” is a form of irreparable harm. R.I.L–R, 80 F. Supp. 3d at 191 (quoting Rodriguez v.

Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013)). And, where a plaintiff requests injunctive relief

mandating that an agency comply with a process that, if completed could secure the plaintiff’s

freedom or could alleviate harsh conditions of confinement, the harm from detention surely

cannot be remediated after the fact. See id.

Defendants’ arguments to the contrary are unavailing. Defendants first complain that

Plaintiffs’ request for a preliminary injunction overlaps substantially with the complete relief

requested in this case. See Defs.’ Opp’n at 41–43. Defendants do not explain, however, why

this might lessen the harm associated with each additional day Plaintiffs endure purportedly

inappropriate detention. See id. The Court fails to see why it should deny relief on the basis that

Plaintiffs might eventually secure release after this Court addresses all facets of their complaint.

See Ramirez, 2018 WL 1882861, at *18.

63 As for Defendants’ argument that Plaintiffs’ delay in filing the motion for a preliminary

injunction cuts against their contention that they have suffered irreparable harm, see Defs.’

Opp’n at 42, the Court also finds this ground insufficient to justify denying Plaintiffs’ motion.

The record shows that Plaintiffs filed their initial motion for a preliminary injunction

approximately four months after they filed the complaint. The rapidly changing legal landscape

governing the rights of asylum seekers has dictated multiple rounds of additional briefing and

amendments to Plaintiffs’ complaint, which delayed resolution of Plaintiffs’ application. The

Court does not believe that the delay “substantially undermines Plaintiffs’ contentions that

continued detention would harm them.” Ramirez, 2018 WL 1882861, at *18.

3. Balancing of the Equities and Public Interest

Finally, Plaintiffs contend that their irreparable harm in the absence of a preliminary

injunction outweighs any harm claimed by Defendants should the injunction be granted. Pls.’

Am. Mem. at 43–44. According to Plaintiffs, they have significant liberty interests at stake, and

continued detention without proper parole determinations would result in mental and emotional

harm and “a waste of taxpayer funding.” Id. On the other hand, in support of their argument that

the balance of equities weighs against granting a preliminary injunction, Defendants cite (1) the

fact that an injunction would alter, rather than preserve, the status quo; and (2) the public’s

interest in enforcement of the United States’ immigration laws. See Defs.’ Opp’n at 43–44. The

Court concludes that the balance of the hardships and public interest considerations favor

Plaintiffs.

In determining whether to grant a preliminary injunction “courts must balance the

competing claims of injury and must consider the effect on each party of the granting or

withholding of the requested relief.” Winter, 555 U.S. at 24 (internal quotation marks omitted)

64 (quoting Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987)). “In exercising their sound

discretion, courts . . . should [also] pay particular regard for the public consequences in

employing the extraordinary remedy of injunction.” Id. (quoting Weinberger v. Romero–

Barcelo, 456 U.S. 305, 312 (1982)). These considerations merge into one factor when the

government is the non-movant. See Nken v. Holder, 556 U.S. 418, 435 (2009).

It is unclear to the Court how the relief requested will negatively impact Defendants,

because it is relatively minor. If granted, Defendants must only apply the Morton Directive in

evaluating Plaintiffs’ parole requests, without considering immigration deterrence as a factor

weighing in favor of denial. Defendants need not grant parole unless warranted by the

evaluation. If, as Defendants claim, the Morton Directive is already consistently applied and

there is no policy of deterrence, the new parole determinations can pose no harm to them. See

Ramirez, 2018 WL 1882861, at *18 (holding that the balance of equities favored the plaintiffs

where the defendants were not required to offer a “change in placement, unless warranted by [the

court’s required assessment],” and noting that “while [the defendants] are constrained by

Congress’s mandate, they have quite a bit of discretion in determining how to weigh the factors

and whether to provide a less restrictive setting”).

By contrast, denying the opportunity for parole determinations that comply with binding

ICE policy denies Plaintiffs an avenue through which to secure their liberty, even if only

temporarily. As courts in this jurisdiction have recognized, “[t]he public interest is served when

administrative agencies comply with their obligations under the APA.” R.I.L-R, 80 F. Supp. 3d

at 191 (citing N. Mariana Islands v. United States, 686 F. Supp. 2d 7, 21 (D.D.C. 2009));

Klayman v. Obama, 957 F. Supp. 2d 1, 43 (D.D.C. 2013)); Damus, 2018 WL 3232515, at *17.

65 Defendants’ arguments to the contrary are unpersuasive. First, it is true that some district

courts in this Circuit apply a rule under which “where an injunction is mandatory—that is, where

its terms would alter, rather than preserve, the status quo by commanding some positive act—the

moving party must meet a higher standard than in the ordinary case by showing clearly that he or

she is entitled to relief or that extreme or very serious damage will result from the denial of the

injunction.” Columbia Hosp., 15 F. Supp. 2d at 4 (citation and internal quotation marks

omitted). Assuming such a rule applies, in this Court’s estimation, Plaintiffs have carried their

burden. Continued detention, where Plaintiffs might otherwise be eligible for conditional parole,

constitutes serious potential damage that merits an injunction.

Second, Defendants correctly state that the public has an interest in the enforcement of

immigration laws, but that interest does not favor denying Plaintiffs’ motion. While DHS surely

has substantial discretion in the area of immigration, cf. Arizona v. United States, 567 U.S. 387,

396, 408 (2012) (“A principal feature of the removal system is the broad discretion exercised by

immigration officials.”), Plaintiffs have identified a specific, binding agency policy constraining

ICE’s discretion. The public interest surely does not cut in favor of permitting an agency to fail

to comply with its own binding policies impacting the rights of individuals. See Jacksonville

Port Auth. v. Adams, 556 F.2d 52, 58–59 (D.C. Cir. 1977) (recognizing that “there is an

overriding public interest . . . in the general importance of an agency’s faithful adherence to its

statutory mandate”). Accordingly, the balance of interests weighs in favor of granting

preliminary injunctive relief to Plaintiffs.

* * *

In sum, the Court concludes that Plaintiffs have met their burden of showing that

preliminary injunctive relief is warranted. Plaintiffs have shown that it is likely that they will

66 succeed on the merits of their claims because they have supplied evidence tending to show that

Defendants have considered immigration deterrence when making parole determinations, in

contravention of binding agency policy. Plaintiffs have also shown that they would suffer

irreparable harm in the absence of a preliminary injunction, and that a balancing of the equities

and public interest considerations favor granting their requested relief. Accordingly, the Court

orders Defendants to re-evaluate Plaintiff Mikailu J. for parole in strict compliance with the

Morton Directive, including its procedural requirements, and without considering immigration

deterrence, within two weeks of the date of the order accompanying this Opinion. Should

Plaintiff Aracely R.’s parole be revoked, Defendants shall similarly re-evaluate her parole

request.

VII. CONCLUSION

For the forgoing reasons, the Court hereby ORDERS:

1. Defendants’ Motion to Transfer Venue (ECF No. 38) is DENIED.

2. Plaintiffs’ Motion to Supplement the Prayer for Relief in their Application for a

Preliminary Injunction (ECF No. 79) is GRANTED.

3. Plaintiffs’ Motion to Present Three Exhibit Updates (ECF No. 89) is GRANTED.

4. Plaintiffs’ Application for a Preliminary Injunction (ECF No. 79-1) is GRANTED IN

PART. Defendants shall re-evaluate Plaintiff Mikailu J. for parole in strict

compliance with the Morton Directive, including its procedural requirements, and

without considering immigration deterrence, within two weeks of the date of the order

accompanying this Opinion. Should Plaintiff Aracely R.’s parole be revoked,

Defendants shall similarly re-evaluate her parole request.

67 5. Plaintiffs’ Sealed Motions for Leave to File Documents Under Seal (ECF Nos. 55, 75,

and 90) are GRANTED.

6. Defendants’ Motion to Hold in Abeyance Briefing on Preliminary Injunction (ECF

No. 61) is DENIED AS MOOT.

Dated: July 3, 2018 RUDOLPH CONTRERAS United States District Judge