S.A. v. Trump
This text of 363 F. Supp. 3d 1048 (S.A. v. Trump) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
LAUREL BEELER, United States Magistrate Judge *1053TABLE OF CONTENTS
INTRODUCTION...1053
STATEMENT...1056
1. The Immigration and Nationality Act and Parole Generally...1056
2. The Complaint...1056
2.1 September-December 2014: The Creation of the CAM Parole Program...1056
2.2 2014-2016: The Operation of the CAM Program...1057
2.3 2015-Present: Donald Trump's Statements Regarding Latinos...1059
2.4 January 2017: Executive Order 13,767...1061
2.5 January 2017: The Alleged "Secret Shutdown" of the CAM Program...1061
2.6 February 2017: The Kelly Memorandum...1063
2.7 August 2017: Termination of the CAM Parole Program...1064
3. The Administrative Record...1065
3.1 2014-2016: The Record Regarding the Operation of the CAM Parole Program...1065
3.2 August 2017: The Record Regarding the Termination of the CAM Parole Program...1070
STANDARD OF REVIEW...1074
1. Administrative Procedure Act Claims...1074
2. Other Claims...1075
ANALYSIS...1076
1. Standing...1076
2. Administrative Procedure Act...1077
2.1 Termination of the CAM Parole Program Going Forward...1077
2.1.1 Whether termination violated the APA for failure to articulate a "satisfactory explanation"...1078
2.1.2 Whether termination violated the APA for failure to provide explanations in the Federal Register...1084
2.1.3 Whether termination violated the APA for failure to take into account "serious reliance interests"...1085
2.1.4 Whether termination violated the APA for failure to "consider an important aspect of the problem"...1087
2.1.5 Whether DHS's decision to stop processing CAM Program applications from January 2017 to August 2017 was a "secret shutdown" of the Program that violated the APA...1088
2.2 Rescinding Conditional Approvals of Parole...1089
3. Due Process...1091
4. Equal Protection...1093
5. Equitable Estoppel...1096
CONCLUSION...1096
INTRODUCTION
Under the Immigration and Nationality Act ("INA"), the Secretary of Homeland Security has discretion to parole foreign nationals into the United States "temporarily" and "only on a case-by-case basis for urgent humanitarian reasons or significant public benefit[.]"
*1054
In 2014, the government instituted a program called the Central American Minors ("CAM") Program, which allowed parents who were lawfully present in the United States to apply to bring their children and other qualifying family members in three countries - Honduras, Guatemala, and El Salvador, collectively known as the "Northern Triangle" - to reunite with them in the United States. A goal of the Program was to discourage children from making the long and dangerous journey from the Northern Triangle to the United States to try to reunite with their parents; the Program sought to achieve this goal by allowing applicant parents to apply for their beneficiary children while their children remained in their original countries.1
The CAM Program had two components: a refugee component and a parole component. U.S. Citizenship and Immigration Services ("USCIS"), an agency within the U.S. Department of Homeland Security ("DHS"), first evaluated beneficiaries to see if they qualified for refugee status (which, among other things, requires persecution or a well-founded fear of persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion"). If the beneficiaries qualified, USCIS referred them for approval as refugees under the CAM Refugee Program. If they did not qualify, USCIS automatically considered them for parole into the United States under the CAM Parole Program.
By the end of 2016, USCIS had interviewed over 5,500 beneficiaries. It approved 99% for either refugee resettlement or parole under the CAM Program: it approved approximately 30% interviewed beneficiaries as refugees and approximately 99% of the remaining beneficiaries (69% out of 70%) for parole. Over 1,335 beneficiaries arrived in the United States.
In January 2017, following a change in presidential administrations, incoming president Donald Trump issued an Executive Order that (among other things) directed the Secretary of Homeland Security to "take all appropriate action" to ensure that DHS exercised its parole authority "only on a case-by-case basis" and "only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole." DHS stopped processing CAM Program applications - including the applications for beneficiaries who had been conditionally approved for parole and were awaiting processing to finalize their arrangements to travel to the United States - and began a review of the CAM Parole Program. In August 2017, DHS announced that it was terminating the CAM Parole Program. It also announced that it was rescinding parole for the approximately 2,700 beneficiaries who had been conditionally approved for parole but who had not yet traveled to the United States.2 It stated that those individuals, *1055and other individuals who wanted to apply for parole, could still do so independent of the CAM Parole Program but that it would no longer award parole through the Program.
The plaintiffs in this case - applicant parents lawfully residing in the United States who applied to the CAM Program, their beneficiary children in Northern Triangle countries, and the nonprofit immigrant-rights organization CASA - filed this putative class-action lawsuit against President Trump, DHS, USCIS, the Secretary of Homeland Security, the Director of USCIS, the State Department, the Secretary of State, and the United States, alleging that the government's termination of the CAM Parole Program and its rescinding of conditional approvals of parole were unlawful. The plaintiffs bring the following four categories of claims:
1. claims under the Administrative Procedure Act ("APA"), arguing that the government's termination of the CAM Parole Program and rescinding of conditional approvals for parole were arbitrary and capricious,
2.
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LAUREL BEELER, United States Magistrate Judge *1053TABLE OF CONTENTS
INTRODUCTION...1053
STATEMENT...1056
1. The Immigration and Nationality Act and Parole Generally...1056
2. The Complaint...1056
2.1 September-December 2014: The Creation of the CAM Parole Program...1056
2.2 2014-2016: The Operation of the CAM Program...1057
2.3 2015-Present: Donald Trump's Statements Regarding Latinos...1059
2.4 January 2017: Executive Order 13,767...1061
2.5 January 2017: The Alleged "Secret Shutdown" of the CAM Program...1061
2.6 February 2017: The Kelly Memorandum...1063
2.7 August 2017: Termination of the CAM Parole Program...1064
3. The Administrative Record...1065
3.1 2014-2016: The Record Regarding the Operation of the CAM Parole Program...1065
3.2 August 2017: The Record Regarding the Termination of the CAM Parole Program...1070
STANDARD OF REVIEW...1074
1. Administrative Procedure Act Claims...1074
2. Other Claims...1075
ANALYSIS...1076
1. Standing...1076
2. Administrative Procedure Act...1077
2.1 Termination of the CAM Parole Program Going Forward...1077
2.1.1 Whether termination violated the APA for failure to articulate a "satisfactory explanation"...1078
2.1.2 Whether termination violated the APA for failure to provide explanations in the Federal Register...1084
2.1.3 Whether termination violated the APA for failure to take into account "serious reliance interests"...1085
2.1.4 Whether termination violated the APA for failure to "consider an important aspect of the problem"...1087
2.1.5 Whether DHS's decision to stop processing CAM Program applications from January 2017 to August 2017 was a "secret shutdown" of the Program that violated the APA...1088
2.2 Rescinding Conditional Approvals of Parole...1089
3. Due Process...1091
4. Equal Protection...1093
5. Equitable Estoppel...1096
CONCLUSION...1096
INTRODUCTION
Under the Immigration and Nationality Act ("INA"), the Secretary of Homeland Security has discretion to parole foreign nationals into the United States "temporarily" and "only on a case-by-case basis for urgent humanitarian reasons or significant public benefit[.]"
*1054
In 2014, the government instituted a program called the Central American Minors ("CAM") Program, which allowed parents who were lawfully present in the United States to apply to bring their children and other qualifying family members in three countries - Honduras, Guatemala, and El Salvador, collectively known as the "Northern Triangle" - to reunite with them in the United States. A goal of the Program was to discourage children from making the long and dangerous journey from the Northern Triangle to the United States to try to reunite with their parents; the Program sought to achieve this goal by allowing applicant parents to apply for their beneficiary children while their children remained in their original countries.1
The CAM Program had two components: a refugee component and a parole component. U.S. Citizenship and Immigration Services ("USCIS"), an agency within the U.S. Department of Homeland Security ("DHS"), first evaluated beneficiaries to see if they qualified for refugee status (which, among other things, requires persecution or a well-founded fear of persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion"). If the beneficiaries qualified, USCIS referred them for approval as refugees under the CAM Refugee Program. If they did not qualify, USCIS automatically considered them for parole into the United States under the CAM Parole Program.
By the end of 2016, USCIS had interviewed over 5,500 beneficiaries. It approved 99% for either refugee resettlement or parole under the CAM Program: it approved approximately 30% interviewed beneficiaries as refugees and approximately 99% of the remaining beneficiaries (69% out of 70%) for parole. Over 1,335 beneficiaries arrived in the United States.
In January 2017, following a change in presidential administrations, incoming president Donald Trump issued an Executive Order that (among other things) directed the Secretary of Homeland Security to "take all appropriate action" to ensure that DHS exercised its parole authority "only on a case-by-case basis" and "only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole." DHS stopped processing CAM Program applications - including the applications for beneficiaries who had been conditionally approved for parole and were awaiting processing to finalize their arrangements to travel to the United States - and began a review of the CAM Parole Program. In August 2017, DHS announced that it was terminating the CAM Parole Program. It also announced that it was rescinding parole for the approximately 2,700 beneficiaries who had been conditionally approved for parole but who had not yet traveled to the United States.2 It stated that those individuals, *1055and other individuals who wanted to apply for parole, could still do so independent of the CAM Parole Program but that it would no longer award parole through the Program.
The plaintiffs in this case - applicant parents lawfully residing in the United States who applied to the CAM Program, their beneficiary children in Northern Triangle countries, and the nonprofit immigrant-rights organization CASA - filed this putative class-action lawsuit against President Trump, DHS, USCIS, the Secretary of Homeland Security, the Director of USCIS, the State Department, the Secretary of State, and the United States, alleging that the government's termination of the CAM Parole Program and its rescinding of conditional approvals of parole were unlawful. The plaintiffs bring the following four categories of claims:
1. claims under the Administrative Procedure Act ("APA"), arguing that the government's termination of the CAM Parole Program and rescinding of conditional approvals for parole were arbitrary and capricious,
2. a claim under the Due Process Clause, arguing that the applicant-parent plaintiffs have a constitutionally protected liberty interest in the companionship and society of their family members in Central America, and that the government deprived them of this liberty interest without due process by terminating the CAM Parole Program in an arbitrary, irrational, and unlawful manner,
3. a claim under the equal-protection component of the Due Process Clause, arguing that the government's termination of the CAM Parole Program was substantially motivated by discriminatory animus by President Trump and the Trump Administration toward Latinos, and
4. a claim for equitable estoppel, arguing that the government engaged in affirmative misconduct by publicly representing between January 2017 and August 2017 that the CAM Parole Program was still in operation, when it actually had been secretly terminated.
The putative class is all applicants and beneficiaries who applied for the CAM Program before August 16, 2017, who were denied refugee status under the CAM Refugee Program, and who then were denied parole under the CAM Parole Program due to its termination.3
The plaintiffs moved for a preliminary injunction (1) enjoining the government from terminating the CAM Parole Program and (2) requiring the government to reinstate the conditional approvals of parole that were rescinded pursuant to that termination. The defendants moved to dismiss the complaint.
This order addresses the defendants' motion to dismiss. (The court will address the plaintiffs' motion for a preliminary injunction in a separate order.) The court denies the motion to dismiss the plaintiffs' APA claims as they relate to the government's mass-rescinding conditional approvals of parole made under the CAM Parole Program. In all other respects, the court grants the defendants' motion to dismiss.
*1056STATEMENT
1. The Immigration and Nationality Act and Parole Generally
The INA provides that the Secretary of Homeland Security "may, [subject to certain exceptions], in [her] discretion parole into the United States temporarily under such conditions as [s]he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States[.]"4
2. The Complaint
2.1 September-December 2014: The Creation of the CAM Parole Program
The government first proposed the CAM Program on September 18, 2014, as part of the President's annual recommendations to Congress on proposed refugee admissions for the following year, pursuant to
The CAM Program was structured as a dual refugee/parole program.6 Under the CAM Refugee Program, certain Central American parents lawfully living in the United States could apply for their minor children and qualifying family members to be considered for refugee resettlement while the family members were still in in Honduras, Guatemala, and El Salvador.7 Minor children and qualifying family members could be accepted as refugees if they could establish that they qualified for resettlement under U.S. law, that is, by demonstrating that they had a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion.8 Under the CAM Parole Program, minors and qualifying family members who were considered under the CAM Refugee Program but did not meet the specific eligibility criteria for refugee admission were automatically considered for parole pursuant to
*1057In November 2014, the Departments of State and Homeland Security released a fact sheet regarding the program (the "November 2014 Fact Sheet").10 The fact sheet stated in part:
Beginning in December 2014, a parent lawfully present in the United States will be able to file Department of State form DS-7699 requesting a refugee resettlement interview for unmarried children under 21 in El Salvador, Guatemala, or Honduras. Under certain circumstances, if the second parent resides with the child in the home country and is currently married to the lawfully present parent in the United States, the second parent may be added to the child's petition and considered for refugee status, and if denied refugee status, for parole....
....
DHS will conduct interviews with each child to determine whether he or she is eligible for refugee status and admissible to the United States....
Applicants found by DHS to be ineligible for refugee status in the United States will be considered on a case-by-case basis for parole, which is a mechanism to allow someone who is otherwise inadmissible to come to the United States for urgent humanitarian reasons or significant public benefit. An individual considered for parole may be eligible for parole if DHS finds that the individual is at risk of harm, he/she clears all background vetting, there is no serious derogatory information, and someone has committed to financially support the individual while he/she is in the United States.... Parole is temporary and does not confer any permanent legal immigration status or path to permanent legal immigration status in the United States.11
The CAM Program began accepting applications on December 1, 2014.12 In mid-2016, the government expanded the CAM Program to allow additional immediate family members of qualifying minor children to apply as "derivative" beneficiaries.13
2.2 2014-2016: The Operation of the CAM Program
Individuals had to apply to the CAM Refugee Program before they could be considered for the CAM Parole Program. The process was as follows.
First, a parent lawfully residing in the United States had to file an application with the assistance of a "resettlement agency" (a nonprofit organization partially *1058funded by the government to welcome refugees into the country) and provide proof of identity, proof of legal status in the United States, and a passport photo of the beneficiary child.14 Second, the International Organization for Migration ("IOM") - the intergovernmental organization that the State Department contracted to run its Resettlement Support Center in Latin America - invited the child to come to the capital of the country where the child was located so that IOM could interview the child, take the child's biometric data and background information, prepare a case file, and initiate security checks.15 Third, USCIS verified the relationship between parent and child through documentary evidence and DNA tests.16 (The parent had to pay for DNA testing, but USCIS reimbursed the parent if the testing confirmed a parent-child relationship.17 ) Fourth, USCIS conducted an interview with the child in the country capital.18 Fifth, after confirming security-check results and DNA-test results, USCIS made a determination on the refugee application and notified beneficiaries of that determination by either a decision letter or a phone call.19 For beneficiaries who received letters, if refugee status was denied, the letter checked one of several boxes to explain the reason for the denial and outlined the process to request a review of the refugee determination.20 The letter then indicated whether the child was eligible for the CAM Parole Program.21
If USCIS approved a beneficiary for the CAM Parole Program, the letter said:
You have been conditionally approved for parole into the United States. Final approval is conditioned upon successful completion of any remaining clearances that are required in the screening process. These clearances include medical examination by a U.S. approved panel physician, completion of security clearance procedures, and verification of family relationships. Please see attached information sheet for next steps that must be completed for you to be paroled into the United States.22
If USCIS conditionally approved a beneficiary for parole, the beneficiary had to undergo a medical examination in the country capital at the parent's expense.23 USCIS told the beneficiary that "IOM will contact your relative in the United States to collect payment for the medical exam" and that "[a]fter receiving payment, IOM will contact you to arrange your exam."24 If the beneficiary cleared the examination, he or she received a medical clearance valid for six months.25
Next, USCIS told the beneficiary that "[i]f the medical results clear, IOM will contact your relatives in the United States to arrange for your flight" and that "[a]fter IOM receives payment for your travel, [it] will submit the travel itinerary to USCIS."26 After receiving the travel-itinerary form from IOM, USCIS "will ... [p]erform *1059final security checks, [e]nsure the medical exam results remain valid until date of travel, and [v]erify that your relative still has a qualifying legal presence in the United States."27 "[I]f we decide that you have met all requirements for parole under this program, we will issue Form I-512L, Authorization for Parole of an Alien Into the United States" and that "IOM will give you this document and your plane ticket the day you fly to the United States."28
Finally, after travel arrangements were made, the beneficiary traveled to a U.S. port of entry, where DHS Customs and Border Protection could authorize parole for a period of up to two years.29 USCIS told the beneficiary that it "will consider CAM parole extension requests for the duration of the program."30
During the approximately two-and-a-half years that the CAM Program was in operation, more than 13,000 people applied, at least 1,627 individuals were able to settle in the United States as refugees, and an additional 1,465 people were able to enter the United States as parolees.31
2.3 2015-Present: Donald Trump's Statements Regarding Latinos
Donald Trump launched his 2016 presidential campaign with the claim that Latin America was "not sending their best" people to the United States: "They're sending people that have lots of problems, and they're bringing those problems with us. They're bringing drugs. They're bringing crime. They're rapists.... It's coming from all over ... Latin America."32 Candidate Trump continued to categorize Latinos as gang members, killers, and rapists in promising to deport and exclude Latinos from the country.33
The complaint lists five examples of statements by Candidate Trump or President-Elect Trump before his inauguration:
1. "On August 21, 2015, when asked to respond to a report that two of his supporters had urinated on a sleeping Latino man and then beat him with a metal pole, Candidate Trump responded, 'people who are following me are passionate. They love this country and want this country to be great again. They are passionate.' "
2. "In May 2016, Candidate Trump referred to anti-Trump protestors who carried the Mexican flag on Twitter as 'criminals' and 'thugs.' "
3. "In June 2016, Candidate Trump stated that Judge Gonzalo Curiel [of the Southern District of California] could not be fair in presiding over a lawsuit because he was 'Hispanic.' "
4. "In October 2016, during a presidential debate, then-candidate Trump responded to a question about immigration by referring to Latino immigrants as 'bad hombres' and promising that 'we're going to get them out.' "
5. "In December 2016, President-Elect Trump referred to an article about a recent crime wave on Long Island and said 'They come from Central America. They're tougher than any people you've ever met.... They're killing and raping everybody out there. They're illegal. And they are finished.' "34
*1060The complaint lists eleven examples of statements by President Trump after his inauguration:
1. "On January 25, 2017, shortly after signing executive orders calling for immediate construction of a wall along the southern U.S. border and withholding federal funds from 'sanctuary' cities, President Trump condemned the 'unprecedented surge' of migrants from Central America for eroding safety in the United States, claiming that these two orders 'will save thousands of lives.' "
2. "On January 27, 2017, newly-inaugurated President Trump and Mexico's President Peña Nieto discussed President Trump's proposal for a border wall over the phone. During that transcribed conversation, President Trump once again referred to Mexicans as 'tough hombres.' "
3. "On February 3, 2017, during a visit to the Customs and Border Protection training center, President Trump said 'You know they're bad. They're pouring in from El Salvador, Guatemala, Honduras, Mexico, all over. They're just pouring into our country!' "
4. "In February 2017, President Trump said 'What has been allowed to come into our country, when you see gang violence that you've read about like never before, and all of the things - much of that is people that are here illegally ... They're rough and they're tough ... So we're getting them out.' "
5. "On June 21, 2017, President Trump implied that thousands of immigrants are members of the Central American gang MS-13. He said 'These are true animals. We are moving them out of the country by the thousands, by the thousands.' "
6. "Similarly, on June 28, 2017, President Trump suggested that the MS-13 gang had taken over swaths of U.S. territory, and said: 'They are bad people. And we've gotten many of them out already ... We're actually liberating towns, if you can believe that we have to do that in the United States of America. But we're doing it, and we're doing it fast.' "
7. "On August 25, 2017, President Trump pardoned former Maricopa County Sheriff Joe Arpaio, who was to be sentenced for criminal contempt for failing to comply with a federal judge's order to stop racially profiling Latinos. Before issuing the pardon, President Trump asked rhetorically, 'Was Sheriff Joe convicted for doing his job?' After issuing the pardon, President Trump sent a tweet calling Mr. Arpaio 'an American patriot.' "
8. "On September 5, 2017, in conjunction with the Administration's announcement of the termination of the DACA [Deferred Action for Childhood Arrivals] program, President Trump issued a statement decrying 'the massive surge of unaccompanied minors from Central America including, in some cases, young people who would become members of violent gangs throughout our country, such as MS-13.' "
9. "On January 11, 2018, President Trump infamously referred to El Salvador as a 'shithole country' during a meeting with lawmakers about immigration, asking 'Why are we having all these people from shithole countries come here?' He then suggested that the United States should bring more people *1061from countries such as Norway, which has an overwhelmingly white population."
10. "In February 2018, President Trump claimed that immigrants from El Salvador, Guatemala, Honduras, and Mexico are 'just pouring into our country.... These countries are not our friends, you know. We think they're our friends, and we send them massive aid ... and they're pouring drugs into our country and they're laughing at us' - returning to his common refrain that Central Americans are somehow gaming the U.S. immigration system."
11. "In May 2018, President Trump said of people crossing the Mexican border into the United States: 'You wouldn't believe how bad these people are. These aren't people. These are animals.' "35
2.4 January 2017: Executive Order 13,767
On January 20, 2017, Donald Trump was inaugurated as president of the United States.
On January 25, 2017, President Trump issued Executive Order 13,767, entitled Border Security and Immigration Enforcement Improvements. Exec. Order No. 13,767,
Section 1.Purpose. Border security is critically important to the national security of the United States. Aliens who illegally enter the United States without inspection or admission present a significant threat to national security and public safety. Such aliens have not been identified or inspected by Federal immigration officers to determine their admissibility to the United States. The recent surge of illegal immigration at the southern border with Mexico has placed a significant strain on Federal resources and overwhelmed agencies charged with border security and immigration enforcement, as well as the local communities into which many of the aliens are placed.
....
Sec. 11.Parole, Asylum, and Removal. It is the policy of the executive branch to end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens.
(a) The Secretary [of Homeland Security] shall immediately take all appropriate action to ensure that the parole and asylum provisions of Federal immigration law are not illegally exploited to prevent the removal of otherwise removable aliens.
....
(d) The Secretary shall take appropriate action to ensure that parole authority under section 212(d)(5) of the INA ( 8 U.S.C. 1182(d)(5) ) is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.
2.5 January 2017: The Alleged "Secret Shutdown" of the CAM Program
Shortly after President Trump took office in January 2017, the government took *1062the following actions with respect to the CAM Program.
Interviews: USCIS stopped interviews of all CAM Program beneficiaries, thereby blocking all CAM Program applications at the interview stage from being processed.37 Within the first seven days of the Trump presidency, USCIS cancelled more than 2,000 CAM Program interviews that were scheduled to take place in January, February, and March 2017.38 The interviews were cancelled in anticipation of an Executive Order suspending the U.S. Refugee Admissions Program - what would later become Executive Order 13,769, Protecting the Nation from Foreign Terrorist Entry into the United States, issued on January 27, 2017.39 While the Order was enjoined in part on February 3, 2017, USCIS did not reinstate CAM Program interviews.40 Instead, USCIS confirmed on February 3, 2017, that all USCIS interviews in El Salvador, Honduras, and Guatemala through the end of March 2017 were cancelled.41
Issuing determinations: The government stopped issuing decisions to CAM Program beneficiaries who had been interviewed.42 The government did not notify the public that it was doing so.43
Medical examinations: The government stopped scheduling medical examinations for CAM Program beneficiaries who had been interviewed and received a determination before January 2017 that they were conditionally approved for parole.44 The government did not notify the public or CAM Program participants that it was doing so.45 IOM continued to solicit and accept funds from Program applicants during this time.46
Travel to the United States: The government blocked travel to the United States for CAM Program beneficiaries who had been interviewed, received a determination that they were conditionally approved for parole, and cleared their medical examinations.47 On or about January 22, 2017 (two days after President Trump took office), an IOM employee told one of the plaintiffs in this case that IOM had received new orders that all CAM Program cases were frozen for 120 days and that no CAM Program case could be processed because the government had changed its position and IOM had to wait for orders from the new administration.48 IOM continued to solicit and accept payments for plane tickets from CAM Program applicants during this time.49
The government did not notify the public that it was shutting down the CAM Parole Program.50 The USCIS program webpage for CAM Program participants stated that "[c]urrently there is no planned end date for the CAM parole program" and "[t]here is currently no filing deadline for this program."51 The USCIS program *1063webpage for conditionally approved CAM Program beneficiaries stated, "[w]e encourage your relative to book the travel within the time period suggested by IOM to avoid additional processing delays and costs if the medical exam or security checks expire."52 A State Department website discussing the CAM Program expansion stated that "[a] qualifying, lawfully present parent who filed a CAM AOR [affidavit of relationship] from December 1, 2014, through November 30, 2016, and wishes to request access for expanded category relatives will need to file an amended DS-7699 prior to September 30, 2017" and that "[a]n amended AOR form filed on or before this date will be processed regardless of where the qualifying child is in the process as long as the relationships of the expanded category relatives can be verified through DNA testing."53 At least five webpages controlled by USCIS, the State Department, and the U.S. embassies in El Salvador and Honduras represented that the CAM Program continued to be in operation.54 IOM contacted at least one of the plaintiffs in this case after the government allegedly "shut down" the CAM Parole Program to tell her that she needed to send $2,500 for her daughter's and grandson's plane tickets and that they would be able to travel to the United States after payment was received.55 IOM may have accepted payments from other plaintiffs for plane tickets as well.56 These participants never received travel arrangements to the United States.57
2.6 February 2017: The Kelly Memorandum
On February 17, 2017, then-Secretary of Homeland Security John Kelly issued a memorandum (the "Kelly Memo") to the Acting Commissioner of U.S. Customs and Border Protection, the Acting Director of U.S. Immigration and Customs Enforcement, the Acting Director of USCIS, the Acting General Counsel of DHS, the Acting Assistant Secretary for International Affairs, and the Acting Undersecretary for Management.58 The memorandum stated in part:
This memorandum implements the Executive Order entitled "Border Security and Immigration Enforcement Improvements," issued by the President on January 25, 2017, which establishes the President's policy regarding effective border security and immigration enforcement through faithful execution of the laws of the United States. It implements new policies designed to stem illegal immigration and facilitate the detection, apprehension, detention, and removal of aliens who have no lawful basis to enter or remain in the United States. It constitutes guidance to all Department personnel, and supersedes all existing conflicting policy, directives, memoranda, and other guidance regarding this subject matter, except as otherwise expressly stated in this memorandum.
....
*1064K. Proper Use of Parole Authority Pursuant to Section 212(d)(5) of the INA
The authority to parole aliens into the United States is set forth in section 212(d)(5) of the INA [8 U.S.C. § 1182 (d)(5) ], which provides that the Secretary may, in his discretion and on a case-by-case basis, temporarily parole into the United States any alien who is an applicant for admission for urgent humanitarian reasons or significant public benefit. Upon careful scrutiny, the statutory language appears to strongly counsel in favor of using the parole authority sparingly and only in individual cases where, after careful consideration of the circumstances, parole is necessary because of demonstrated urgent humanitarian reasons or significant public benefit.
The practice of granting parole to certain aliens in pre-designated categories in order to create immigration programs not established by Congress, has contributed to a border security crisis, undermined the integrity of the immigration laws and the parole process, and created an incentive for additional illegal immigration.
Therefore, the Director of USCIS, the Commissioner of CBP, and the Director of ICE shall ensure that, pending the issuance of final regulations clarifying the appropriate use of the parole power, appropriate written policy guidance and training is provided to employees within those agencies exercising parole authority, including advance parole, so that such employees are familiar with the proper exercise of parole under section 212(d)(5) of the INA and exercise such parole authority only on a case-by-case basis, consistent with the law and written policy guidance.59
2.7 August 2017: Termination of the CAM Parole Program
On August 16, 2017, the government publicly announced the termination of the CAM Parole Program by publishing a notice in the Federal Register.60 The notice stated in part:
As of August 16, 2017, USCIS will no longer consider or authorize parole under the CAM Parole Program. In addition, USCIS will notify individuals who have been conditionally approved for parole under this program and who have not yet traveled that the program has been terminated and their conditional approval for parole has been rescinded....
Although DHS is terminating the CAM Parole Program, individuals who have been paroled into the United States under the CAM Parole program will maintain parole until the expiration of that period of parole unless there are other grounds for termination of parole under DHS regulations at 8 CFR 212.5(e).
Termination of the Central American Minors Parole Program ,
This discretionary change in policy does not preclude such individuals from applying for parole consideration independent of the CAM program by filing USCIS Form I-131, Application for Travel Document, consistent with the instructions for that form. Parole will only be issued on a case-by-case basis and only where the applicant demonstrates an urgent humanitarian or a significant public benefit reason for parole and that applicant merits a favorable exercise of discretion. Any alien may request parole to *1065travel to the United States, but an alien does not have a right to parole.
.... [Individuals who were conditionally approved for parole under the CAM Parole Program] may apply for parole consideration independent of the CAM program by filing USCIS Form I-131, Application for Travel Document, consistent with the instructions for that form.
After this announcement, "IOM told CAM Parole Program beneficiaries whose conditional approval for parole was rescinded - all of whom had been previously deemed ineligible for refugee resettlement under the CAM Refugee Program - that they could file a request for review ('RFR') of the denial of refugee status within 90 days of the notice of the rescission."61 Many affected CAM Parole Program beneficiaries filed RFRs, including several of the plaintiffs here.62 Many of those who filed RFRs in 2017 or early 2018 have not yet received decisions on their RFRs.63
3. The Administrative Record
In connection with their motion to dismiss the plaintiffs' APA claims, the defendants filed the administrative record pursuant to
3.1 2014-2016: The Record Regarding the Operation of the CAM Parole Program
As noted above, the government began accepting applications for the CAM Program on December 1, 2014.
On December 5, 2014, the State Department issued press guidance regarding the CAM Program (the "December 2014 Guidance").65 The guidance stated in part:
Key Messages:
• As part of the effort to address the underlying causes of this migration, the Administration has launched an "in-country" refugee and parole processing for certain minors in El Salvador, Guatemala, and Honduras. This program will allow parents who are lawfully present in the United States to request U.S. resettlement for children under the age of 21 who are still in one of these three countries.
• We are establishing in-country processing in El Salvador, Guatemala, and Honduras to provide a safe, legal, and orderly alternative to the dangerous journey that some children are currently undertaking to join parents in the United States.
• This program is part of the Administration's integrated and comprehensive approach to addressing the underlying economic and security challenges facing Central American countries with increased unlawful migration across the southwest U.S. border last summer.
• Our goal in the United States and in Central America is to extend protection to those with legitimate humanitarian claims while *1066providing an effective deterrent for irregular migration driven by dangerous criminal smuggling networks.
• Taken together with the efforts of Central American leaders and other key stakeholders to address the underlying causes of migration , this measure will help end the practice of sending children on this dangerous journey.66
....
• This program is one of many measures the United States is putting in place to help reduce the number of parents and others who are paying smugglers to lead minors on the dangerous journey to the United States. It offers a real alternative to children who may have legitimate claims to refugee status.
• The Departments of State and Homeland Security launched new public information campaigns, in coordination with the Central American governments, warning about the dangers of irregular migration and delivering the message that unaccompanied children are not given a "permiso" or permit to stay in the United States upon arrival at the border, and many will ultimately be returned to their country of origin.
In November 2015, the State Department issued additional press guidance regarding the CAM Program (the "November 2015 Guidance").67 The guidance stated in part:
Key Messages:
• The Central American Minors program provides a safe, legal, and orderly alternative to the dangerous journey that some children *1068have undertaken to join their parents in the United States.
• While the program launched 11 months ago, most of the approximately 5,000 applications received so far have come in the last three to four months.
....
Q: What is the goal of the Central American Minors Program?
• We established the program in 2014 to provide a safe, legal, and orderly alternative to the dangerous journey that some children are currently undertaking to join their parents in the United States.
• Our goal is to protect families with legitimate humanitarian claims while discouraging people from sending their children on the dangerous journey to the United States.
....
Q: What is the current status of application processing?
• The U.S. Department of Homeland Security recently completed its first round of 90 interviews in Central America and has conditionally approved approximately 12 percent for refugee admission; about 84 percent were recommended for parole. Approximately 1 percent were denied and approximately 2 percent are undergoing additional review.
....
*1067Q. Will the Administration consider ending this program, given the low refugee approval rate?
• This program has just begun. No assumptions or conclusions should be made about longer-term trends and outcomes based on the limited sample of cases to date.
• We will continue the program in FY2016. This program was designed as a hybrid refugee/parole program, and 96% of the first set of applicants were approved for either refugee admission or parole.68
In November 2015, USCIS issued an information sheet regarding the CAM Parole Program.69 The info sheet stated in part:
Individuals who applied for, but were denied, refugee status under the in-country refugee program in Guatemala, Honduras, or El Salvador, are considered for parole into the United States under the CAM parole program. This Fact Sheet describes key parts of the process of obtaining parole for conditionally approved applicants.
General Parole Information
The Secretary of Homeland Security may, in his or her discretion, parole any foreign national applying for admission to the United States into the United States temporarily for urgent humanitarian reasons or significant public benefit. (See Immigration and Nationality Act (INA) Section 212(d)(5) ). Parole allows an individual, who may be inadmissible or otherwise ineligible for a visa or refugee status, to come to and stay in the United States for a temporary period.
A person who has been paroled ("parolee") is not admitted into the United States for purposes of immigration law. Parole allows an individual to be lawfully present in the United States temporarily and to apply for work authorization. Although a parolee is lawfully present in the United States for the time period authorized, parole is by nature temporary and does not confer or lead to legal immigration status in the United States.
....
Parole Termination or Expiration
Your parole status may be terminated if:
• You depart the United States;
• You violate any laws of the United States; or
• The DHS Secretary in his discretion decides to terminate parole.70
In February 2016, the State Department issued additional press guidance regarding the CAM Program (the "February 2016 Guidance").71 The guidance stated in part:
Key Messages:
• The Central American Minors program provides a safe, legal, and orderly alternative to the dangerous journey that some children have undertaken to join their parents in the United States.
• While the program launched 13 months ago, most of the approximately 6,500 applications received so far have come in the last six months. To date, the Department has performed its initial screening of nearly 3,000 of these applicants, and DHS has completed more than 600 final interviews.
• Forty-eight individuals have arrived in the United States via the program so far, 37 from El Salvador and 11 from Honduras.
....
Q: What is the goal of the Central American Minors Program?
• We established the program in 2014 with the goal to protect families with legitimate humanitarian claims while discouraging people from sending their children on the dangerous journey to the United States.
• Ensuring the safety of people in the region and deterring the exploitation of undocumented migrants requires cooperation and partnership. Central American governments must take the lead on creating better economic, social, governance and security conditions in their countries, and we are commit[t]ed to helping them, as evidenced by Congress's FY 2016 appropriation of up to $750 million in foreign assistance.
Q. Will the Administration consider ending this program, given the low rates?
• We will continue the program in FY2016. No assumptions or conclusions should be made about long-term outcomes based on the limited sample of cases to date.
• This program was designed as a hybrid refugee/parole program, and 98 percent of applicants interviewed to date were approved for either refugee admission or parole.72
In May 2016, the State Department issued additional press guidance regarding the CAM Program (the "May 2016 Guidance").73 The guidance stated in part:
Key Messages:
• The Central American Minors program provides a safe, legal, and orderly alternative to the dangerous journey that some children have undertaken to join their parents in the United States.
• While the program launched in December 2014, most of the approximately 8,500 applications received so far have come in the last nine months. To date, the Department has performed its initial screening of more than 5,500 of these applicants, and DHS has completed more than 1,500 final interviews. The number of final interviews will increase significantly over the next six months.
*1069• More than three hundred individuals have arrived in the United States via the program so far.
....
Q: What is the goal of the Central American Minors Program?
• We established the program in December 2014 with the goal to protect families with legitimate humanitarian claims while discouraging people from sending their children on the dangerous journey to the United States.
....
Q. Will the Administration consider ending this program, given the low rates?
• The Central American Minors pro[g]ram is an important part of our efforts to protect Central Americans at risk of harm and expand resettlement opportunities in the region. We have no plans to end the program.
• Although the program took some time to get started, we continue to receive a number of applications and more than 300 children have arrived to the United States via the program so far.
• This program was designed as a hybrid refugee/parole program, and 98 percent of applicants interviewed to date were approved for either refugee admission or parole.74
In July 2016, the State Department issued additional press guidance regarding the CAM Program (the "July 2016 Guidance").75 The guidance stated in part:
Q. What are the current statistics on CAM applications and arrivals?
• While the program launched in December 2014, most of the approximately 9,500 applications received so far have come in the last nine months.
• To date, the Department of State has performed its initial screening of more than 6,800 of these applicants, and the Department of Homeland Security has completed 2,900 final interviews and decisions.
• Out of these, 99% (2,884) have been approved either for refugee resettlement or for parole. We expect that the number of final interviews will increase significantly over the next six months.
• More than 600 individuals have arrived in the United States via the program so far and we expect the pace of arrivals to increase as those approved to come to the United States complete the necessary post-decision steps for arrival.
Q. How many individuals have qualified for refugee status under the existing program compared to parole?
• 267 have entered the US as refugees and another 400 have entered under parole.
....
Q: What is the goal of the Central American Minors Program?
• We launched the program in December 2014 with the goal of protecting children with legitimate humanitarian claims while discouraging people from placing their children in the hands of smugglers *1070for a dangerous journey to the United States.
• We also believe it is critical for Central American governments to take the lead on creating better economic, social, governance and security conditions in their countries, and we are commi[t]ted to helping them, as evidenced by Congress's FY 2016 appropriation of up to $750 million in foreign assistance to Central America, and our FY 2017 budget proposal.[ ]76
In November 2016, the State Department issued additional press guidance about the CAM Program (the "November 2016 Guidance").77 The guidance stated that 99% of CAM Program participants that had been interviewed were approved for either refugee resettlement or parole:
Q. What are the current statistics on CAM applications and arrivals?
• The program launched in December 2014 and has received approximately 10,400 applications.
• To date, the Department of State has performed its initial screening of nearly 9,000 of these applicants, and the Department of Homeland Security has interviewed more than 5,500 individuals.
• Out of these, 99 percent have been approved either for refugee resettlement or for parole.
• More than 1335 individuals have arrived in the United States via the program so far.78
The guidance noted that there was no guarantee, and the State Department could not speculate, about whether the CAM Program would continue after President-Elect Trump was inaugurated.79
3.2 August 2017: The Record Regarding the Termination of the CAM Parole Program
As noted above, the government announced the termination of the CAM Parole Program on August 16, 2017.
On August 15, 2017, the USCIS issued leadership guidance regarding the termination of the CAM Program ("2017 Leadership Guidance").80 The guidance stated in part:
Termination of the Central American Minors (CAM) Parole Program
Effective Aug. 16, 2017, USCIS will no longer automatically consider or offer parole for individuals in El Salvador, Guatemala, and Honduras under the Central American Minor (CAM) Parole program. Individuals who have been conditionally approved for parole under this program and have not yet traveled will be notified that their conditional offer of parole has been rescinded. Refugee processing under the CAM Refugee program continues. DHS parole regulations at8 CFR § 212.5 continue to apply.
....
Reason for Termination
In accordance with section 11 of President Trump's Executive Order entitled Border Security and Immigration Enforcement Improvements , Acting Secretary of Homeland Security Elaine Duke has decided to rescind the program, *1071which automatically considered for parole all individuals found ineligible for refugee status under the in-country refugee program in Guatemala, Honduras, or El Salvador. The CAM Parole program was implemented as part of an integrated strategy to address factors contributing to increases in migration from Central America to the United States. However, as indicated by the executive order, DHS is pursuing a new strategy to secure the U.S. southern border.81
USCIS issued a contemporaneous document captioned "RTQ [response to queries]: Termination of CAM Parole Program" (the "2017 RTQ") setting out talking points for USCIS to respond to inquiries about the end of the CAM Program.82 The RTQ stated in part:
Talking points:
• Effective immediately, USCIS will no longer consider or offer parole under the CAM Parole program.
....
• USCIS will issue notices to individuals conditionally offered parole under the CAM Parole program, who have not yet traveled, notifying them that the CAM Parole program has been terminated and their conditional offer of parole has been rescinded.
....
If asked only:
Q1: Why did it take the government so long to notify these individuals that their conditional offer of parole was rescinded?
A1: Executive Order 13767, issued on Jan. 25, 2017, instructed DHS to take appropriate action to ensure that its parole policies are not illegally exploited and that parole is granted "only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole." Then-Secretary of Homeland Security John Kelly issued an implementing memorandum on Feb. 20, 2017, directing DHS to undertake a review of its various parole policies. Since that time, we conducted a careful review of the Central American Minors (CAM) Parole program, and Acting Secretary of Homeland Security Elaine Duke decided to terminate the program. As stated in the Federal Register notice, we are notifying the affected public, including individuals who were conditionally approved for parole but have not yet traveled or who have already been paroled into the United States.
...
Q3: When did USCIS stop processing applications for parole?
A3: While the CAM program was under review, USCIS ceased considering or offering parole or further processing individuals who had been conditionally approved for parole under the program. The agency ceased these actions in February 2017.
Q3a: Why did DHS wait until August to terminate the program if it stopped processing individuals for the program back in February?
*1072A3a: Following the issuance of the President's Executive Order, then-Secretary of Homeland Security John Kelly issued an implementing memorandum on Feb. 20, 2017, directing DHS to undertake a review of its various parole policies. Since that time, we conducted a careful review of the Central American Minors (CAM) Parole program, and Acting Secretary of Homeland Security Elaine Duke decided to terminate the program upon completion of that review.
Q4: What happened to individuals who received notification that they were conditionally approved for parole pending successful completion of background and medical checks? Will the process continue for them? How many people will this affect?
A4: All conditionally approved applicants for parole under the CAM Parole program without confirmed travel arrangements to the United States will be sent notices of the CAM Parole program's termination, including notification that they will not receive parole under the program. There are approximately 2,700 individuals currently conditionally approved. Any individual who received access to the CAM Refugee/Parole program for whom a final parole determination had not yet been issued is no longer being considered for parole under the program
Q5: Even though DHS is terminating the CAM Parole program, is parole still available to affected individuals?
A5: Potentially. This termination of the CAM Parole program does not preclude such individuals from applying for parole consideration independent of the CAM Parole program by filing USCIS Form I-131, Application for Travel Document, consistent with the instructions for that form. Parole will only be issued on a case-by-case basis and only where the applicant demonstrates an urgent humanitarian or a significant public benefit reason for parole and that applicant merits a favorable exercise of discretion. Any foreign national may request parole to travel to the United States, but a foreign national does not have a right to parole.
Q6: Why is the program being terminated?
A6: Executive Order 13767, Border Security and Immigration Enforcement Improvements , issued on Jan. 25, 2017, instructed DHS to take appropriate action to ensure that parole is granted "only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole." Former Secretary of Homeland Security John Kelly then issued an implementing memorandum on Feb. 20, 2017, directing DHS to undertake a review of its parole guidance. Since that time, DHS conducted a careful review of the Central American Minors (CAM) Parole program and has decided to terminate the program. The decision to terminate the program was made because the CAM Parole program provided parole very broadly and not in accordance with the statu[t]e and the President's Executive Order.
Q7: By eliminating this program, do you anticipate there will be an upswing in the number of UACs [unaccompanied alien children] who attempt to enter the United States illegally?
A7: The CAM Refugee program is unaffected by the termination of the CAM Parole program and will continue to provide a means through which vulnerable children in-country may be considered for resettlement to the United States. DHS continues to work with other Executive Branch agencies and the governments of the Northern Triangle countries and Mexico to discourage irregular *1073migration and secure the U.S. southern border.
....
Q10: What percentage of those approved under CAM were refugees vs parolees?
A10: As of July 13, 2017, 7,306 CAM applicants had been interviewed by USCIS. Of the cases that have been issued decisions, 30% have been approved as refugees, 69% have been recommended for parole, and 1% were denied for both refugee status and parole.
....
Q14: How does eliminating the CAM Parole program contribute to the security and prosperity of the Northern Triangle? Or the United States?
A14: The decision to terminate the CAM Parole program was made by the Acting Secretary of Homeland Security as a result of the program review undertaken following issuance of Executive Order 13767, Border Security and Immigration Enforcement Improvements. DHS recognizes the need to make progress on economic and security priorities, and is currently working with U.S. interagency, foreign, and non-government counterparts on next steps for engagement to advance objectives and deliverables from the June 15-16 Conference on Prosperity and Security in Central America.
Q15: Are there any other meaningful routes of relief for these individuals? Is humanitarian parole a realistic option?
A15: The termination of CAM parole does not impact the CAM Refugee program, which continues to assist vulnerable children in-country who qualify as refugees. Additionally, the termination of the CAM Parole program does not preclude individuals from applying for parole consideration by following the standard parole application process. USCIS will still consider such applications for parole on a case-by-case basis and will authorize parole only where the applicant demonstrates an urgent humanitarian or a significant public benefit reason for parole and merits a favorable exercise of discretion.
Q16: For applicants who were conditionally approved, wasn't it determined that they are at significant risk? Does the United States believe that these children are no longer in danger?
A16: The review and subsequent termination of the CAM Parole Program is unrelated to the risk of harm that USCIS evaluates within each CAM Parole case. Additionally, the termination of the CAM Parole program does not preclude individuals from applying for parole consideration by following the standard parole application process. USCIS will still consider such applications for parole on a case-by-case basis and will authorize parole only where the applicant demonstrates an urgent humanitarian or a significant public benefit reason for parole and merits a favorable exercise of discretion.83
USCIS told CAM Program participants that the termination of the CAM Parole Program did not preclude them from applying for parole independent of the Program by filing a USCIS Form I-131.84 USCIS told participants that "[p]arole will *1074only be issued on a case-by-case basis and only where the applicant demonstrates by filing USCIS Form I-131, an urgent humanitarian or a significant public benefit reason for parole and that the applicant merits a favorable exercise of discretion."85 USCIS additionally told participants that they could submit a Request for Review of their denied refugee cases within 90 days of when their conditional offer of parole was rescinded, even if their RFRs would have otherwise been untimely.86 USCIS additionally told participants that it would refund them for any expenses they may have paid for travel arrangements or for medical exams that had not been completed (but not for medical exams that had been completed).87
STANDARD OF REVIEW
1. Administrative Procedure Act Claims
The APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."
The APA provides that "[t]he reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be - (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]"
"Nevertheless, to withstand review[,] 'the agency must articulate a rational connection between the facts found and the conclusions reached.' " Sierra Club ,
"[W]ith respect to [an] APA claim, [a c]ourt may consider matters outside the pleadings without converting [a m]otion to [d]ismiss to a motion for summary judgment." Herguan Univ. v. Immigration & Customs Enforcement ,
2. Other Claims
In evaluating the defendants' motion to dismiss the plaintiffs' non-APA claims, the court is limited to considering the complaint, documents incorporated into the complaint by reference, and matters of which it may take judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd. ,
A complaint must contain a "short and plain statement of the claim showing that *1076the pleader is entitled to relief" to give the defendant "fair notice" of what the claims are and the grounds upon which they rest. See Fed. R. Civ. P. 8(a)(2) ; Twombly ,
To survive a motion to dismiss, a complaint must contain sufficient factual allegations, which when accepted as true, " 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal ,
ANALYSIS
1. Standing
Federal-court jurisdiction extends only to "cases" and "controversies." Raines v. Byrd ,
The government argues that the beneficiary-children plaintiffs currently residing outside of the United States lack standing.88 The government also argues that *1077CASA lacks standing to pursue relief on its own behalf.89 The government does not dispute that the applicant-parent plaintiffs residing in the United States have standing based on their interests in being reunited with their family members.90 Accord Trump v. Hawaii , --- U.S. ----,
2. Administrative Procedure Act
DHS's termination of the CAM Parole Program can be seen as two related but distinct agency actions: (1) terminating the Program going forward for participants who had never been approved for parole and (2) rescinding conditional approvals of parole that had been made under the Program before its termination. Cf. Regents of Univ. of Cal. v. U.S. Dep't of Homeland Sec. ,
2.1 Termination of the CAM Parole Program Going Forward
The plaintiffs argue that government's actions in terminating the CAM Parole Program violated the APA for the following reasons:
1. the government failed to articulate a satisfactory explanation for its actions, including a rational connection between the facts found and the choice made,91
2. the government failed to provide its reasons for its actions in the Federal Register,92
3. a failure by the government to take into account "serious reliance interests engendered by longstanding policies" violates the APA, and the government failed to take into account serious reliance interests in the CAM Parole Program,93
4. a failure by the government to consider "an important part of the problem" violates the APA, and the government failed to consider "an important part of the problem" by failing to consider the country conditions in Northern Triangle countries *1078and the risk that children from those countries face,94 and
5. the government's decision in January or February 2017 to cease processing CAM Parole Program applications, while not publicly announcing that it was terminating the CAM Parole Program, was a "secret shutdown" that violated the APA.95
The court addresses each argument in turn.
2.1.1 Whether termination violated the APA for failure to articulate a "satisfactory explanation"
The plaintiffs argue that an agency must "articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made."96
"The reviewing court should not attempt itself to make up for [agency] deficiencies." Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co. ,
From its inception, the CAM Program granted parole broadly. Throughout its operation, the Program approved approximately 99% of beneficiaries who were interviewed and considered for parole.97 The Program also was expanding geometrically and approving increasing numbers of beneficiaries for parole.98
*1079Following the 2016 presidential election and the change in presidential administrations, the government changed its policy views on parole. In January 2017, President Trump issued Executive Order 13,767, which expressed a policy view that the parole provision in the INA had been "abuse[d]" and that "[i]t is the policy of the executive branch to end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens." Exec. Order No. 13,767, 82 Fed. Reg. at 8795. President Trump directed then-Secretary of Homeland Security John Kelly to "take appropriate action to ensure that parole authority under section 212(d)(5) of the INA ( 8 U.S.C. 1182(d)(5) ) is exercised only on a case-by-case basis in accordance with the plain language of the statute[.]" Id. at 8796.
In February 2017, Secretary Kelly issued a memorandum directing that parole authority should be used "sparingly and only in individual cases where, after careful consideration of the circumstances, parole is necessary because of demonstrated urgent humanitarian reasons or significant public benefit."99 The Kelly Memo expressed a policy view that "[t]he practice of granting parole to certain aliens in pre-designated categories in order to create immigration programs not established by Congress, has contributed to a border security crisis, undermined the integrity of the immigration laws and the parole process, and created an incentive for additional illegal immigration."100
Following the issuance of the Kelly Memo, DHS conducted a review of the CAM Parole Program.101 DHS found that as of July 13, 2017, the CAM Program had approved 99% of the beneficiaries who had been interviewed as refugees or recommended them for parole (30% as refugees, 69% for parole) and that only 1% had been denied both refugee status and parole.102 DHS's review determined that "the CAM Parole program provided parole very broadly and not in accordance with the statu[t]e and the President's Executive Order."103
Following that review, DHS decided to terminate the CAM Parole Program and rescind conditional parole approvals for beneficiaries who had not yet entered the United States.104 (It allowed beneficiaries who already had entered the United States to remain for the duration of their authorized *1080parole and additionally allowed beneficiaries who had not entered the United States to apply for parole independent of the CAM Parole Program by filing a Form I-131.105 ) It recognized that the previous administration had implemented the CAM Parole Program "as part of an integrated strategy to address factors contributing to increases in migration from Central America to the United States," but it noted that "as indicated by [President Trump's] executive order, DHS is pursuing a new strategy to secure the U.S. southern border."106
There is "a rational connection between facts found and conclusions made" by DHS. Cf. Friends of the Santa Clara River ,
The plaintiffs cite to cases where courts have found that the government's attempts to terminate aspects of the Deferred Action for Childhood Arrivals ("DACA") or the Temporary Protected Status ("TPS") programs were arbitrary and capricious under the APA and argue that the termination of the CAM Parole Program similarly violates the APA. Those situations are distinct and distinguishable.
Under the DACA program, DHS declined to pursue removal proceedings against undocumented immigrants who came to the United States as children, have clean criminal records, and meet various educational or military-service requirements. Regents III ,
By claiming that court decisions had left the DACA program legally unsupportable - instead of saying that it disagreed with DACA based on its own policy choices - DHS tried to rescind the program *1081(which is popular and supported by a majority of Americans) without taking political responsibility for doing so. The DACA courts that have held that DHS's attempts to terminate DACA were arbitrary and capricious did so in large part because DHS tried to blame the courts for its decision instead of assuming responsibility and accountability itself. As the Ninth Circuit explained:
[P]ublic accountability for agency action can only be achieved if the electorate knows how to apportion the praise for good measures and the blame for bad ones. Without knowing the true source of an objectionable agency action, "the public cannot 'determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.' "....
.... When an agency justifies an action solely with an assertion that the law prohibits any other course, it shifts responsibility for the outcome from the Executive Branch to Congress (for making the law in question) or the courts (for construing it). If the Executive is correct in its interpretation of the law, then the public is correct to blame the other two branches for any resulting problems. But if the Executive is wrong, then it avoids democratic accountability for a choice that was the agency's to make all along.... "[A]n official cannot claim that the law ties her hands while at the same time denying the courts' power to unbind her. She may escape political accountability or judicial review, but not both."
Regents III ,
Here, by contrast, the government and DHS are assuming accountability and responsibility for terminating the CAM Parole Program on policy grounds. This is a crucial distinction. President Trump announced his new policy on parole in Executive Order 13,767 : "It is the policy of the executive branch to end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens." Exec. Order 13,767, 82 Fed. Reg. at 8795. Secretary Kelly similarly memorialized that DHS policy's views were that "[t]he practice of granting parole to certain aliens in pre-designated categories in order to create immigration programs not established by Congress, has contributed to a border security crisis, undermined the integrity of the immigration laws and the parole process, and created an incentive for additional illegal immigration."107 The government recognized that it was changing policy qua policy.108 The issue that was present in the DACA cases - trying to shift responsibility to the courts for the decision to rescind a popular program instead of the agency itself claiming responsibility - is not present in the same way here.
Another factor that distinguishes this case from the DACA cases is that (in the opinion of many DACA courts), the government's legal assessment and analyses of DACA were wrong as a matter of law. Regents III ,
The legislative history of the parole provision indicates that Congress intended that temporary admission be granted infrequently.... ["]The parole provisions were designed to authorize the Attorney General to act only in emergent, individual, and isolated situations, such as the case of an alien who requires immediate medical attention, and not for the immigration of classes or groups outside of the limit of the law.["]
Mason v. Brooks ,
[t]he text of section 212(d)(5) [8 U.S.C. § 1182 (d)(5) ] is clear that the parole authority was intended to be used on a case-by-case basis to meet specific needs, and not as a supplement to Congressionally-established immigration policy. In recent years, however, parole has been used increasingly to admit entire categories of aliens who do not qualify for admission under any other category in immigration law, with the intent that they will remain permanently in the United States. This contravenes the intent of section 212(d)(5), but also illustrates why further, specific limitations on the Attorney General's discretion are necessary.
H.R. Rep. No. 104-469, at 140 (1996). The court cannot say that DHS's view - that the parole statute counsels in favor of awarding parole sparingly - is legally erroneous, or that its decision to terminate a program that awarded parole broadly was based on a flawed legal analysis in the same way that its attempt to terminate DACA were.111
The plaintiffs analogize to the TPS cases, but those are distinguishable too. The TPS program is a humanitarian program that authorizes DHS to temporarily permit nationals from certain countries to live and work in the United States when an ongoing armed conflict, environmental disaster, or other conditions prevent the safe return of those persons to their country of origin. See 8 U.S.C. § 1254a(b)(1)(A)-(C). Prior administrations (both Republican and Democratic) evaluated whether to extend TPS status for countries beyond the period of their initial designation by considering both the originating conditions that led to the countries' initial designations and subsequent intervening events that prevented safe return of the countries' nationals. See Ramos v. Nielsen ,
DHS's termination of the CAM Parole Program does not violate the APA for lack of a satisfactory explanation.
2.1.2 Whether termination violated the APA for failure to provide explanations in the Federal Register
The plaintiffs fault DHS for not providing its reasons for terminating the CAM Parole Program in the Federal Register notice announcing the termination of the Program.113
In reviewing agency action to determine whether it is arbitrary or capricious, a court is not limited to the Federal Register. The APA provides that courts must review "the whole record,"
Agency rules that are subject to the notice-and-comment provisions of
DHS's termination of the CAM Parole Program does not violate the APA for failure to provide its explanations in the Federal Register.
2.1.3 Whether termination violated the APA for failure to take into account "serious reliance interests"
The plaintiffs argue that agency action is arbitrary and capricious if the agency fails to take into account the "serious reliance interests engendered by longstanding policies," citing Encino Motorcars LLC v. Navarro , --- U.S. ----,
CAM Parole Program participants who had not been conditionally approved for parole (for themselves, in the case of beneficiaries, or for their family members, in the case of applicants), and individuals who never applied to the Program, do not have a "serious reliance interest" in being approved for parole. Parole is at the discretion of DHS,
*1086To the extent that the plaintiffs argue that parole may be discretionary in theory but that in practice, the CAM Parole Program awarded parole (or refugee status) in 99% of cases and participants therefore had a right to rely on an expectation that they would be awarded parole, their argument fails. As the plaintiffs acknowledge, USCIS told participants that applications would be considered for parole "on a case-by-case basis,"116 and nothing in the CAM Parole Program materials suggested that parole was guaranteed. A liberal award of parole in the past under the Program does not create a "serious reliance interest" in being approved for parole under the Program that DHS had to take into account. See Regents II , 298 F.Supp.3d at 1311 ("An agency's past practice of generally granting a government benefit is also insufficient to establish a legal entitlement.") (citing Gerhart v. Lake Cty. ,
To the extent that the plaintiffs argue that CAM Parole Program participants relied on the opportunity to apply for parole (as opposed to a right to receive parole), the plaintiffs have not pleaded why the termination of the Program implicates "serious reliance interests." Participants can still apply for parole by filing a Form I-131. The plaintiffs have not shown that a reliance interest in the CAM Parole Program in particular (as opposed to other opportunities to apply for parole) was a "serious reliance interest" that DHS had to take into account. Also, the plaintiffs do not establish how DHS did not sufficiently take into account those reliance interests by allowing participants to apply for parole through a different mechanism, a Form I-131. See Termination of the Central American Minors Parole Program , 82 Fed. Reg. at 38,927.
To the extent that the plaintiffs argue that CAM Parole Program participants who did not receive a decision on their applications had "serious reliance interests" because they paid costs to participate in the Program, the court disagrees. There were no fees to apply to the CAM Parole Program.117 Parents had to pay the cost of *1087DNA testing, but USCIS refunded those costs if DNA testing confirmed a familial relationship (and the plaintiffs do not allege that they were denied refunds of DNA-testing costs).118 Participants incurred costs for medical exams and travel arrangements only after USCIS conditionally approved beneficiaries for parole, so participants who did not receive a decision did not incur those costs.119
Participants did incur costs for tolls, gas, and food to travel to their country capitals.120 While these costs might be consequential for participants, the court concludes that they do not create a "serious reliance interest" that DHS had to take into account. The costs were discrete, short-term costs. If these isolated costs were "serious reliance interests," then every agency action potentially would be subject to an APA challenge on a theory that the agency failed to take into account some cost that someone, somewhere, might have incurred because of an agency program. Cf. Encino Motorcars , 136 S.Ct. at 2126 (discussing "serious reliance interests" in the context of "longstanding policies" and, specifically, a labor-law regulatory interpretation that was in place for over two decades; a chanced interpretation "could necessitate systemic, significant changes" to employment agreements throughout an industry); Regents I , 279 F.Supp.3d at 1046 (discussing "serious reliance interests" in the context of DACA over the course of years); Batalla Vidal II , 279 F.Supp.3d at 431 (same).
DHS's termination of the CAM Parole Program going forward does not violate the APA for failure to take into account "serious reliance interests."
2.1.4 Whether termination violated the APA for failure to "consider an important aspect of the problem"
The plaintiffs argue that agency action is arbitrary and capricious if the agency "entirely failed to consider an important aspect of the problem."121 Neither side addresses the standard for determining "the problem" and its "important aspects."
In the Ninth Circuit, "[w]hether an agency has overlooked 'an important aspect of the problem' ... turns on what a relevant substantive statute makes 'important.' " Or. Nat. Res. Council v. Thomas ,
The plaintiffs argue that "important aspect[s] of the problem" are (1) reliance interests and (2) conditions in the Northern Triangle countries.122 The court addressed the first issue in the previous *1088section. Regarding the second issue, the plaintiffs argue that "conditions in the Northern Triangle that led to the inception of the CAM program have only worsened" and that "[t]hese country conditions predictably result in Central American children undertaking the dangerous journey by land to the United States and seeking relief at the border," and the defendants failed to consider these factors.123
The parole statute,
DHS's termination of the CAM Parole Program does not violate the APA for failure to consider "important aspects of the problem."
2.1.5 Whether DHS's decision to stop processing CAM Program applications from January 2017 to August 2017 was a "secret shutdown" of the Program that violated the APA
DHS stopped processing CAM Program applications between January 2017 but did not announce the termination of the CAM Parole Program until August 2017. The plaintiffs characterize this as a "secret shutdown" of the Program that was arbitrary and capricious and violated the notice requirements in
*10892.2 Rescinding Conditional Approvals of Parole
The analysis is different with respect to DHS's decision to rescind all conditional approvals of parole that it issued before it terminated the CAM Parole Program in August 2017. Program participants who received conditional approvals of parole (and made arrangements based on those approvals) had more serious reliance interests than individuals who never received approvals. The court holds that DHS's failure to take into account and address those more serious reliance interests when it mass-rescinded parole for those participants was arbitrary and capricious.
The government first argues that those participants do not have reliance interests because their parole approvals were only "conditional."124 But as the plaintiffs plead in their complaint and as the administrative record confirms, the only steps following conditional approval to travel to the United States and be fully paroled were nondiscretionary ones: the completion of a medical exam, final security checks, and making travel arrangements.125 (By contrast, participants who had never been approved were subject to discretionary decisions.) This distinction means that CAM Parole Program participants with approved applications for parole had "serious reliance interests." The government argues that the Secretary of Homeland Security retained discretion to rescind parole for participants who had conditionally approval.126 But that does not mean that participants with approval had no reliance interests in their parole. Cf. Batalla Vidal II , 279 F.Supp.3d at 432 (while DHS could in its discretion rescind DACA at any time,"it *1090does not follow that [beneficiaries] had no reliance interests therein, such that Defendants were free to end the DACA program without considering such interests") (emphasis in original) (citing Encino Motorcars , 136 S.Ct. at 2124-26 ).
The government next argues that it took reliance interests into account because it did not rescind parole for beneficiaries who had arrived in the United States.127 The court cannot see how this decision for beneficiaries in the United States takes into account the serious reliance interests of participants with conditional approval who had not arrived or whose family members had not arrived in the United States. The government also argues that it considered reliance interests when it offered to refund fees that participants paid for medical examinations and plane tickets.128 This does not address the participants' reliance interests in the parole approvals. It also does not adequately address the fees paid because the government offered refunds only for medical exams that were not completed but did not offer refunds for exams that were completed.129
The court holds that when DHS mass-rescinded the conditional parole approvals of CAM Parole Program participants, it did not adequately take into account and address the participants' serious reliance interests. Consequently, its actions in mass-rescinding approvals were arbitrary and capricious and must be set aside under the APA.
The "serious reliance interests" requirement does not mean that DHS lacks the authority to rescind conditional approvals of parole for CAM Parole Program participants, notwithstanding the participants' reliance on their approvals. DHS has that authority. It has the authority to rescind parole even from Program beneficiaries who have arrived in the United States and similarly has the authority to rescind conditional approvals of applications where the beneficiaries are still outside the United States. See
When it mass-rescinded conditional approvals, DHS failed to take into account and address the serious reliance interests of CAM Parole Program participants whom it had approved. Its mass-rescission was arbitrary and capricious in violation of the APA.130
*1091* * *
For the foregoing reasons, the court denies the defendants' motion to dismiss the plaintiffs' APA claims as they relate to the government's mass-rescinding of conditional approvals of parole. The court otherwise grants the defendants' motion to dismiss the plaintiffs' APA claims.
3. Due Process
The plaintiffs bring a claim on behalf of the plaintiffs in the United States for violation of due process.131
The Due Process Clause of the Fifth Amendment provides that no person may be "deprived of life, liberty, or property, without due process of law[.]" U.S. Const. amend. V. " 'A threshold requirement to a substantive or procedural due process claim is the plaintiff's showing of a liberty or property interest protected by the Constitution.' " Regents III ,
In Gebhardt v. Nielsen ,
Plaintiff's theory is that he has a fundamental right to reside in the United States with his non-citizen relatives. But that theory runs headlong into Congress' plenary power over immigration. We acknowledge, of course, that individuals have a strong interest in living with their family members. But that interest cannot be so fundamental that it overrides Congress' plenary power in this domain. As we have said before, the generic right to live with family is "far removed" from the specific right to reside in the United States with non-citizen family members.... We therefore conclude that Plaintiff's substantive due process claim is not colorable, and we decline to consider it further.
*1092The plaintiffs' authorities do not change this conclusion. The plaintiffs cite Justice Kennedy's concurring opinion in Kerry v. Din , --- U.S. ----,
The plaintiffs also cite Bustamante v. Mukasey ,
By contrast to the spousal immigrant visas in Bustamante , there is no statutorily created protected interest in parole. Wong ,
4. Equal Protection
The plaintiffs bring a claim on behalf of the plaintiffs in the United States for violation of equal protection.135
The Due Process Clause of the Fifth Amendment incorporates a guarantee of equal protection and prohibits unjustified discrimination by federal actors. United States v. Navarro ,
The termination of the CAM Parole Program and the rescission of conditional approvals of parole affect the admission of foreign nationals into the United States.137 As the Supreme Court held in Trump v. Hawaii , "a circumscribed inquiry applies to any constitutional claim concerning the entry of foreign nationals." Trump ,
The Trump case is instructive here. That case involved a challenge to the government's so-called "travel ban," a presidential proclamation limiting entry by foreign nationals from eight countries; most of the countries are predominately Muslim. Trump ,
In rejecting the plaintiffs' challenge, the Supreme Court wrote that "[f]or more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a 'fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.' " Trump ,
The test that the Supreme Court applied in evaluating the presidential proclamation was whether "it is impossible to 'discern a relationship to legitimate state interests' " and "the policy is 'inexplicable by anything but animus.' " Id. at 2420-21. The Court held that the proclamation was premised on legitimate purposes, namely, "preventing entry of [foreign] nationals who cannot be adequately vetted and inducing other nations to improve their practices." Id. at 2421. The Court upheld the proclamation as "a facially neutral policy denying certain foreign nationals the privilege of admission." Id. at 2423.
While the Court considered President Trump's statements about Muslims, see id. at 2420, it declined to credit the plaintiffs' argument that President Trump's statements supported a constitutional challenge to the proclamation:
The entry suspension is an act that is well within executive authority and could have been taken by any other President - the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation.... [T]he Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim.
Id. at 2423.
The plaintiffs' challenge here to the termination of the CAM Parole Program is analogous to the Trump plaintiffs' challenge to the presidential proclamation. In both cases, plaintiffs residing in the United States challenge government policies that prevent their foreign relatives from entering the United States.138 In both cases, "[i]t cannot be said that it is impossible to 'discern a relationship to legitimate state interests' or that the policy is 'inexplicable by anything but animus.' " Cf. Trump ,
Citing cases that do not involve the admission of foreign nationals into the United States, the plaintiffs argue that the court should infer from President Trump's anti-Latino statements that the government acted with discriminatory animus and thus violated their equal-protection rights. Their arguments might carry more weight in the context of a program like the DACA or TPS programs that involve only individuals located in the United States. Cf. Regents III ,
The government has facially legitimate and bona fide reasons for terminating the CAM Parole Program. Because the court cannot test those reasons by balancing them against the plaintiffs' constitutional interests, cf. Trump ,
5. Equitable Estoppel
The parties dispute whether equitable estoppel can be pleaded as an affirmative claim or whether it is only an affirmative defense.141 The court need not resolve this question because the plaintiffs have not pleaded the elements of equitable estoppel as either a claim or defense.
Equitable estoppel requires that (among other things) the government engaged in "affirmative misconduct," which the Ninth Circuit has defined to mean a "deliberate lie" or "a pattern of false promises." Socop-Gonzalez v. INS ,
The plaintiffs allege that during the time between January and August 2017, when the government was purportedly engaged in a "secret shutdown" of the CAM Parole Program, (1) government web pages continued to represent that the Program was active and that participants should not delay in paying for plane tickets,142 and (2) IOM contacted participants to solicit and accept payments for plane tickets.143 This does not plead a deliberate lie or a pattern of false promises on the part of the government, as opposed to (for example) the government's negligently failing to update its websites and inform IOM of the purported shutdown (or IOM's not getting the message and inadvertently providing participants with incorrect information). The plaintiffs have not pleaded that the government engaged in a deliberate lie or a pattern of false promises, and the court thus dismisses their equitable-estoppel claim.
CONCLUSION
The court grants in part and denies in part the defendants' motion to dismiss. The court denies the motion to dismiss the plaintiffs' APA claims as they relate to the government's mass-rescinding conditional approvals of parole made under the CAM Parole Program. In all other respects, the court grants the defendants' motion to dismiss.144
IT IS SO ORDERED.
Related
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363 F. Supp. 3d 1048, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sa-v-trump-cand-2018.