United States District Court, M.D. North Carolina
GUILFORD COLLEGE, GUILFORD COLLEGE INTERNATIONAL CLUB, THE NEW SCHOOL, FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT, HAVERFORD COLLEGE, THE AMERICAN FEDERATION OF TEACHERS, JIA YE, and SEN LI, Plaintiffs,
KEVIN MCALEENAN, U.S. DEPARTMENT OF HOMELAND SECURITY, L. FRANCIS CISSNA, and U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants.
MEMORANDUM OPINION AND ORDER
Loretta C. Biggs, United States District Judge.
initiated this action seeking declaratory and injunctive
relief for Defendants' alleged violations of the
Administrative Procedure Act (the “APA”), 5
U.S.C. § 701 et seq. (ECF Nos. 1, 14.)
Specifically, Plaintiffs' lawsuit relates to the U.S.
Citizenship and Immigration Services'
(“USCIS”) issuance and application of the August
9, 2018 Policy Memorandum, PM-602-1060.1, titled
“Accrual of Unlawful Presence and F, J, and M
Nonimmigrants, ” (the “August 2018 Policy
Memorandum” or the “Policy Memorandum”).
(ECF Nos. 1, 14.) On January 28, 2019, the Court entered an
Order temporarily restraining Defendants from applying the
August 2018 Policy Memorandum to the individual Plaintiffs,
Jia Ye (“Ye”) and Sen Li (“Li”)
(collectively, “Individual Plaintiffs”), pending
the Court's resolution of the below motions. (ECF No.
the Court are: (i) Plaintiffs' Motion for Preliminary
Injunction and Partial Summary Judgment, (ECF No. 15); and
(ii) Defendants' Motion to Dismiss, (ECF No.
30).The Court heard oral arguments on April 4,
2019. For the reasons set forth herein, the Court grants in
part and denies in part Plaintiffs' Motion for
Preliminary Injunction and Partial Summary Judgment, and
Defendants' Motion to Dismiss will be denied.
Plaintiffs' Complaint alleges that, for over twenty
years, F, J, and M nonimmigrant visa holders who entered the
United States for “duration of status, ” as
opposed to a fixed time period, would begin to accrue
unlawful presence “on the day after a government
official or immigration judge adjudicates the individual as
out-of-status.” (ECF No. 14 ¶¶ 5-6.) On
August 9, 2018, Defendants issued the subject Policy
Memorandum which provides, in part, that, for F, J,
and M nonimmigrant visa holders, the USCIS was
“changing its policy on how to calculate unlawful
presence” under the Immigration and Nationality Act
(the “INA”). (ECF No. 14-1 at 4; see ECF
No. 14 ¶ 97.) Plaintiffs allege that “[p]ursuant
to this new policy, USCIS will start the unlawful presence
clock not on the date that an individual on an F, J,
or M visa is adjudicated as being out-of-status. Instead,
USCIS will backdate ‘unlawful presence' to
[begin] the date on which the underlying facts that gave rise
to the status violation occurred.” (ECF No. 14 ¶
98.) Plaintiffs further allege that this action is harmful
because any individual who is “unlawfully
present” in the United States for a period longer than
180 days is barred from reentry into the United States for a
period of either three or ten years. (Id. ¶ 87
(citing 8 U.S.C. § 1182(a)(9)(B)(i)(I)).) Plaintiffs
allege that “many more international students and
employees will be subject to a three- or ten-year reentry bar
as compared with the previous regulatory framework, even in
the absence of any bad faith or . . . knowing conduct.”
(Id. ¶ 138 (footnote added).)
Complaint alleges four causes of action, namely, that the
August 2018 Policy Memorandum is invalid because: (1) the
Policy Memorandum was issued without complying with the
rulemaking procedures mandated by the APA; (2) the Policy
Memorandum is arbitrary and capricious under the APA; (3) the
Policy Memorandum conflicts substantively with the statutory
text of the INA; and (4) the Policy Memorandum violates the
Due Process Clause of the Fifth Amendment. (Id.
¶¶ 185-221.) Plaintiffs' Motion for Preliminary
Injunction and Partial Summary Judgment is based only on the
first and third causes of action. (ECF No. 15 at 2.)
Defendants, on the other hand, move to dismiss
Plaintiffs' Complaint for lack of jurisdiction pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure, or,
in the alternative, for failure to state a claim upon which
relief may be granted, pursuant to Rule 12(b)(6). (ECF No.
DEFENDANTS' MOTION TO DISMISS
12(b)(1) motion to dismiss for lack of subject-matter
jurisdiction raises the question of “whether [the
plaintiff] has a right to be in the district court at all and
whether the court has the power to hear and dispose of [the]
claim.” Holloway v. Pagan River Dockside Seafood,
Inc., 669 F.3d 448, 452 (4th Cir. 2012). The burden of
establishing subject-matter jurisdiction is on the plaintiff.
Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th
Cir. 1999). When evaluating a Rule 12(b)(1) motion, the court
may consider evidence outside the pleadings and should grant
the motion “only if the material jurisdictional facts
are not in dispute and the moving party is entitled to
prevail as a matter of law.” Id. (quoting
Richmond, Fredericksburg & Potomac R.R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991)). Once a court
determines it lacks subject-matter jurisdiction over a claim,
the claim must be dismissed. See Jones v. Calvert Grp.,
Ltd., 551 F.3d 297, 301 (4th Cir. 2009).
motion made under Rule 12(b)(6) challenges the legal
sufficiency of the facts in the complaint, specifically
whether the complaint satisfies the pleading standard set
forth in Rule 8 of the Federal Rules of Civil Procedure.
Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.
2009). Rule 8(a)(2) requires a “short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). While a complaint
need not contain detailed factual allegations, “a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration in original). Rather, the “[f]actual
allegations must be enough to raise a right to relief above
the speculative level.” Id. In other words, to
survive a Rule 12(b)(6) motion to dismiss, “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570).
Defendants challenge this Court's jurisdiction based on
the threshold issues of standing and ripeness,  each of which the
Court addresses, in turn, below.
establish standing under Article III of the Constitution, a
plaintiff must ‘allege (1) an injury that is (2) fairly
traceable to the defendant's allegedly unlawful conduct
and that is (3) likely to be redressed by the requested
relief.'” Bostic v. Schaefer, 760 F.3d
352, 370 (4th Cir. 2014) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 590 (1992)). Where, as here,
Plaintiffs sue to vindicate procedural rights-such as the
right to have proposed regulatory action comply with the
requirements of the APA-“they must establish the agency
action threatens their concrete interest.” Mendoza
v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014).
“Once that threshold is satisfied, [however, ] the
normal standards for immediacy and redressability are
relaxed.” Id.; see Hodges v. Abraham,
300 F.3d 432, 444 (4th Cir. 2002) (“Pursuant to the
Court's decision in [Lujan], a person entitled
to a ‘procedural right,' . . . can thereby possess
Article III standing ‘without meeting all the normal
standards for redressability and immediacy.'”
(quoting Lujan, 504 U.S. at 572 n.7)). “[I]f
the plaintiffs can demonstrate a causal relationship between
the final agency action and the alleged injuries, the court
will assume[ ] the causal relationship between the procedural
defect and the final agency action.” Mendoza,
754 F.3d at 1010 (second alteration in original) (internal
quotation marks omitted).
the instant action has been brought by a number of
plaintiffs,  “the Supreme Court has made it clear
that ‘the presence of one party with standing is
sufficient to satisfy Article III's case-or-controversy
requirement.” Bostic, 760 F.3d at 370 (quoting
Rumsfeld v. Forum for Acad. & Institutional Rights,
Inc., 547 U.S. 47, 52 n.2 (2006)). Here, the Court finds
that Individual Plaintiffs-Ye and Li- have standing to sue.
Specifically, Ye and Li have sufficiently alleged injury
arising from the August 2018 Policy Memorandum. Both
individual Plaintiffs are foreign nationals who entered the
United States on F-1 nonimmigrant student visas, and
subsequently either graduated, or withdrew, from school. (ECF
No. 16-1 ¶¶ 4, 10; ECF No. 16-2 ¶¶ 4,
10.) Ye and Li have been recruited by the U.S. Army to enter
the Military Accessions Vital to National Interest
(“MAVNI”) program because they both
“possess language skills in high demand by the [U.S.]
military.” (ECF No. 16-1 ¶ 6; ECF No. 16-2 ¶
6.) In exchange for their enlistment in the U.S. Army through
the MAVNI program, Individual Plaintiffs would be granted
United States citizenship. (ECF No. 16-1 ¶ 6; ECF No.
16-2 ¶ 6.) Ye and Li have each signed an enlistment
contract with the Army and they are awaiting orders to report
to Basic Combat Training. (ECF No. 16-1 ¶¶ 7-8; ECF No.
16-2 ¶¶ 7, 9.) Individual Plaintiffs were
“told by the Army not to leave the United States while
[they] wait for basic training.” (ECF No. 16-2 ¶
8; see ECF No. 16-1 ¶ 9.)
argue that because, to date, neither Ye nor Li has received
an official determination that he is out of status,
“[it] remains entirely speculative whether [Individual
Plaintiffs] will ever find themselves inadmissible”
under the INA. (ECF No. 32 at 16.) Defendants further argued
at the April 4 hearing that “something actually needs
to happen to [Individual Plaintiffs] before they can go into
court.” (Tr. at 43.) However, the Supreme Court has
made clear that “where threatened action by
government is concerned, we do not require a
plaintiff to expose himself to liability before bringing suit
to challenge the basis for the threat.” MedImmune,
Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007).
Here, pursuant to the new policy set forth in the Policy
Memorandum which started the accrual of unlawful presence for
out-of-status nonimmigrants on August 9, 2018, it is likely
that Individual Plaintiffs are presently accruing unlawful
presence given that they are no longer enrolled in a course
of study. (ECF No. 14-1 at 4-5.) Ye's 180-day clock
expired on February 5, 2019, and Li's expired on February
20, 2019. (Compare ECF No. 16-1 ¶ 10,
and ECF No. 16-2 ¶ 10, with ECF No.
14-1 at 4-5.) Consequently, Ye and Li are likely to be
subject to at least a three-year reentry bar if they are
later adjudged to be out of status. Therefore, based on the
allegations and the evidence presently before the Court, the
change in policy set forth in the August 2018 Policy
Memorandum directly affects Ye and Li's concrete
interest, i.e., their ability to depart the United
States and return without imposition of a reentry bar.
Moreover, this could occur to each individual Plaintiff
absent any notice that departing the United States would
result in a bar to their reentry. Accordingly, the Court
concludes that Individual Plaintiffs have sufficiently
alleged harms to their concrete interests traceable to the
August 2018 Policy Memorandum which will likely be redressed
by the relief requested by Plaintiffs. Thus, at this
preliminary phase, Individual Plaintiffs have met their
burden of demonstrating standing to challenge the August 2018
Policy Memorandum in this action. See, e.g.,
NAACP v. Trump, 298 F.Supp.3d 209, 224 n.9 (D.D.C.
2018) (holding that an undocumented individual to whom the
government had extended deferred action under the Deferred
Action for Childhood Arrivals (“DACA”) policy
“clearly satisfies the irreducible constitutional
minimum of standing” to challenge the government's
rescission of the DACA program). See also Washington v.
Trump, 847 F.3d 1151, 1159 (9th Cir.) (citing
Lujan, 504 U.S. at 561) (“At this very
preliminary stage of the litigation, the [Plaintiffs] may
rely on the allegations in their Complaint and whatever other
evidence they submitted in support of their TRO motion to
meet their burden.”), cert. denied Golden v.
Washington, 138 S.Ct. 448 (2017).
addition to the individual Plaintiffs, an organizational
plaintiff may have standing to sue in two ways: (i) on its
own behalf (organizational standing); or (ii) on behalf of
its members (representational or associational standing).
See White Tail Park, Inc. v. Stroube, 413 F.3d 451,
458 (4th Cir. 2005). A plaintiff may establish organizational
standing “when it seeks redress for an injury suffered
by the organization itself.” Id. An injury is
cognizable, for organizational standing purposes, when the
plaintiff alleges that “a defendant's practices
have hampered an organization's stated objectives causing
the organization to divert its resources as a result.”
Action NC v. Strach, 216 F.Supp.3d 597, 616 (M.D.
N.C. 2016) (citing Havens Realty Corp. v. Coleman,
455 U.S. 363, 379 (1982)). The American Federation of
Teachers (the “AFT”) alleges that “[s]ince
the new DHS rules were announced, [it] has invested
resources to address and mitigate the immediate and imminent
harm to its members.” (ECF No. 16-4 ¶ 14 (emphasis
added).) However, there are no allegations by the AFT to
reflect whether such investment constitutes a diversion of
resources away from other advocacy activity. See Action
NC, 216 F.Supp.3d at 616. Nor are there allegations that
such investment has impaired the AFT's ability to advance
its mission by causing a drain on its resources. See
Havens Realty Corp., 455 U.S. at 379 (explaining that
where defendant's practices “have perceptibly
impaired” an organization's mission, causing a
drain on the organization's resources, “there can
be no question that the organization has suffered injury in
fact”); Lane v. Holder, 703 F.3d 668, 674 (4th
Cir. 2012) (“An organization may suffer an injury in
fact when a defendant's actions impede its efforts to
carry out its mission.”). As a result, the AFT has
failed to sufficiently allege facts necessary to demonstrate
the AFT has failed to establish standing in its own right, it
may establish “representational standing” to sue
on its members' behalf by alleging facts that demonstrate
the following: “(1) its own members would have standing
to sue in their own right; (2) the interests the organization
seeks to protect are germane to the organization's
purpose; and (3) neither the claim nor the relief sought
requires the participation of individual members in the
lawsuit.” S. Walk at Broadlands Homeowner's
Ass'n, Inc. v. Open Band at Broadlands, LLC, 713
F.3d 175, 184 (4th Cir. 2013) (quoting Md. Highways
Contractors Ass'n v. Maryland, 933 F.2d 1246, 1251
(4th Cir. 1991)). Applying Supreme Court precedent, the
Fourth Circuit has held that the first requirement of
representational standing-demonstrating that an
organization's members would have standing to sue in
their own right-requires an organization to “make
specific allegations establishing that at least one
identified member had suffered or would suffer
harm.” Id. (quoting Summers v. Earth
Island Inst., 555 U.S. 488, 498 (2009)). In this case,
“AFT is a national labor union . . . [with] over 3, 000
affiliated local unions . . . throughout the United States
and three [of its] territories.” (ECF No. 16-4 ¶ 3
(footnote added).) Its members include individuals present in
the United States on F and J visas, and its “mission
includes advancing the interests of its members, including
supporting commonsense policies that promote immigration
opportunities for individuals who wish to serve as
teachers.” (ECF No. 14 ¶¶ 47-48, 181-82.)
“To fulfill this mission, AFT advocates for its
members' interests before government bodies and in
court.” (Id. ¶ 182.) The AFT has
submitted the declarations of three individuals, each of whom
are members of affiliated local unions who are presently in
the United States on an F-1 or J-1 visa. (ECF Nos. 16-5,
16-6, 16-7.) Each declarant fears that he or she would suffer
harm under the new policy for calculating unlawful presence
as set forth in the August 2018 Policy Memorandum. (ECF Nos.
16-5, 16-6, 16-7.) Further, the interests the AFT seeks to
protect in this action are germane to its stated purpose of
“advocating for the civil rights of its members.”
(ECF No. 14 ¶¶ 47-49; ECF No. 16-4 ¶ 5.) Also,
the Complaint alleges that “[n]either the claims
asserted nor the relief requested in this lawsuit requires
participation of individual AFT members.” (ECF No. 14
¶ 183.) The Court therefore finds that AFT has alleged
sufficient facts to demonstrate that it has representational
light of the Court's findings that Individual Plaintiffs
and the AFT have standing which is sufficient for this Court
to exercise jurisdiction over this action, at this time, the
Court need not reach the issue whether the remaining
plaintiffs-Guilford College, Guilford College International
Club, The New School, Foothill-De Anza Community College
District, and Haverford College-likewise have standing.
See Bostic, 760 F.3d at 370; Ezell v. City of
Chicago, 651 F.3d 684, 696 n.7 (7th Cir. 2011)
(“Where at least one plaintiff has standing,
jurisdiction is secure and the court will adjudicate the case
whether the additional plaintiffs have standing or
not.” (citing Vill. of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 264 (1977))).
respect to the issue of ripeness, Defendants argue, in
pertinent part, that this matter is not ripe given that that
“there has not yet been final agency action” as
to Individual Plaintiffs and “it remains entirely
speculative” whether these Plaintiffs will be subject
to the Policy Memorandum. (ECF No. 32 at 21, 22.) Plaintiffs
argue, on the other hand, that they “do not challenge
any particular, individual unlawful-presence determinations
that have yet to take place[;] [r]ather, they bring an APA
challenge against USCIS's global, binding policy,
memorialized in the August 2018 directive, ” and, as
such, this matter is ripe for adjudication. (ECF No. 33 at
6.) The Court agrees with Plaintiffs.
is a justiciability doctrine designed to prevent the courts,
through avoidance of premature adjudication, from entangling
themselves in abstract disagreements over administrative
policies, and also to protect the agencies from judicial
interference until an administrative decision has been
formalized and its effects felt in a concrete way by the
challenging parties.” Nat'l Park Hosp.
Ass'n v. Dep't of the Interior, 538 U.S. 803,
807-08 (2003) (internal quotation marks omitted). Thus,
ripeness is essentially a question of timing. Blanchette
v. Conn. Gen. Ins. Corps., 419 U.S. 102, 140 (1974).
evaluating ripeness, courts must consider “(1) the
fitness of the issues for judicial decision and (2) the
hardship to the parties of withholding court
consideration.” Cooksey v. Futrell, 721 F.3d
226, 240 (4th Cir. 2013) (quoting Nat'l Park Hosp.
Ass'n, 538 U.S. at 808). With respect to fitness,
“[a] case is fit for judicial decision when the issues
are purely legal and when the action in controversy is final
and not dependent on future uncertainties.” Miller
v. Brown, 462 F.3d 312, 319 (4th Cir. 2006). In this
case, Plaintiffs' claims, which relate to the validity of
the August 2018 Policy Memorandum, present legal questions.
Further, the agency action in controversy, i.e.,
promulgating the August 2018 Policy Memorandum, is final,
having taken effect on August 9, 2018, (ECF No. 14-1 at 4).
This matter is therefore “fit for judicial
decision.” Miller, 462 F.3d at 319.
respect to hardship, courts consider “the immediacy of
the threat and the burden imposed” on a plaintiff.
Charter Fed. Sav. Bank v. Office of Thrift
Supervision, 976 F.2d 203, 208-09 (4th Cir. 1992).
Plaintiffs contend that, pursuant to the August 2018 Policy
Memorandum, Individual Plaintiffs face the immediate threat
of the likely imposition of a reentry bar were they to depart
the United States. (ECF No. 16 at 9.) To that end, at the
April 4 hearing, Defendants argued that, without Individual
Plaintiffs having left the country, this matter is not ripe.
(Tr. at 42.) Under Defendants' reasoning, however, were
Individual Plaintiffs to wait until they departed the United
States, any bar to their reentry would not be subject to
judicial review under the doctrine of consular
nonreviewability. See Macena v. U.S. Citizenship &
Immigration Servs., Civ. A. No. TDC-14-3464, 2015 WL
6738923, at *4 (D. Md. Nov. 2, 2015). While the injury faced
by a plaintiff “must be certainly impending, ”
“[w]e do not require parties to operate beneath the
sword of Damocles until the threatened harm actually befalls
them.” Iowa League of Cities v. E.P.A., 711
F.3d 844, 867 (8th Cir. 2013) (internal quotation marks
omitted)). Accordingly, the Court finds that based on
Plaintiffs' allegations, the implementation of the August
2018 Policy Memorandum presents an immediate threat and
burden on Individual Plaintiffs. See Pashby v.
Delia, 709 F.3d 307, 317 (4th Cir. 2013) (“For a
claim to be ripe, it must involve an administrative decision
[that] has been formalized and its effects felt in a concrete
way by the challenging parties.'” (alteration in
original) (internal quotation marks omitted)). The Court
therefore concludes that this matter is ripe for judicial
determined that at least one plaintiff has standing to sue
and that this matter is ripe for adjudication,
Defendants' motion to dismiss is denied. The Court will
next proceed to consider whether entry of a preliminary
injunction is warranted.
PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
preliminary injunction is an extraordinary remedy involving
the exercise of a very far-reaching power that is only to be
employed in limited circumstances. MicroStrategy Inc. v.
Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001).
Whether to grant a preliminary injunction is in the sound
discretion of the court. Westmoreland Coal Co. v.
Int'l Union, United Mine Workers of Am., 910 F.2d
130, 135 (4th Cir. 1990). Courts generally issue preliminary
injunctions in order to prevent irreparable harm and to
preserve the ability of the court to render meaningful relief
on the merits.United States v. South
Carolina, 720 F.3d 518, ...