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Guilford College v. Nielsen

United States District Court, M.D. North Carolina

May 5, 2019



          Loretta C. Biggs, United States District Judge.

         Plaintiffs 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. 36.)

         Before 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).[2]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.

         I. BACKGROUND

          Plaintiffs' Complaint alleges that, for over twenty years, F, J, and M nonimmigrant visa holders[3] who entered the United States for “duration of status, ” as opposed to a fixed time period, would begin to accrue unlawful presence[4] “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[5] 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.[6] (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).)

         Plaintiffs' 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. 30.)


         A. Legal Standards

         A Rule 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).

         A 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).

         B. Discussion

          Defendants challenge this Court's jurisdiction based on the threshold issues of standing and ripeness, [7] each of which the Court addresses, in turn, below.

         1. Standing

         “To 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).

         While the instant action has been brought by a number of plaintiffs, [8] “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.[9] (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.)

         Defendants 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).

         In 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 organizational standing.

         Although 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[10] . . . 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 standing.

         In 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))).

         2. Ripeness

         With 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.

         “Ripeness 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).

         In 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.

         With 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.[11] 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 review.

         Having 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.


         A. Legal Standard

         A 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.[12]United States v. South Carolina, 720 F.3d 518, ...

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