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Southwest Environmental Center v. Sessions

United States District Court, D. New Mexico

November 20, 2018

JEFFERSON BEAUREGARD SESSIONS III, in his official capacity as Attorney General of the United States; KRISTJEN NIELSEN, in her official capacity as Secretary of the U.S. Department of Homeland Security; JAMES N. MATTIS, in his official capacity as Secretary of the U.S. Department of Defense; and ALEX M. AZAR II, in his official capacity as Secretary of the U.S. Department of Health and Human Services, Defendants.


         THIS MATTER comes before the court upon Defendants' Motion to Dismiss, filed August 27, 2018 (Doc. 16). This lawsuit is an attempted challenge under the Administrative Procedure Act (“APA”) to the U.S. Department of Justice's (“DOJ”) enforcement authority to prioritize and prosecute illegal entry offenses and the U.S. Department of Homeland Security's (“DHS”)

         corresponding temporary detention policy for migrant families entering this country illegally pending family members' criminal or immigration proceedings. Am. Compl. ¶¶ 15, 34-50. Having reviewed the parties' pleadings and the applicable law, the Court finds that Defendants' motion is well-taken and, therefore, is GRANTED.[1]


         Plaintiffs' challenge focuses on these recent attempts by Defendants to overhaul national immigration policy:

• DOJ's Memorandum on Zero-Tolerance for Offenses Under 8 U.S.C. § 1325(a) (April 6, 2018) (hereinafter “Zero-Tolerance Memo” or “zero-tolerance policy”).[2] See 2018 WL 1666622, U.S. DOJ, News Release (“Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry”); and
• Office of the Pres., Executive Order Affording Congress an Opportunity to Address Family Separation (June 20, 2018) (hereinafter “Temporary Family Detention E.O.” or “temporary detention policy”), 2018 WL 3046068.

         I. History of Relevant Immigration Policy

         A significant number of aliens who unlawfully enter the United States without any documentation allowing for their admission are subject to a process commonly referred to as “expedited removal, ” codified at 8 U.S.C. § 1225(b), which provides an accelerated removal process for certain aliens. 69 Fed. Reg. 48, 877 (Aug. 11, 2004). Congress has explicitly mandated the detention of individuals who are in the expedited removal process and have not been found to have a credible fear of persecution. See 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.”).

         Individuals in DHS custody are subject to immigration proceedings under the Immigration and Nationality Act (“INA”) and also may be subject to criminal prosecution, either for criminal immigration violations or for other criminal violations-for example, 8 U.S.C. §§ 1324 (alien smuggling), 1325 (unlawful entry), and 1326 (unlawful entry after removal). These immigration statutes give DHS discretion to refer individuals to DOJ for prosecution based on the particularized facts and circumstances of each individual case.

         An increase in unauthorized individuals illegally crossing the Southwest border prompted DOJ on April 6, 2018 to issue a “Memorandum for Federal Prosecutors along the Southwest Border” (“Zero-Tolerance Memo”) that provides guidance to those prosecutors on how to exercise their prosecutorial discretion with respect to illegal entry enforcement consistent with DOJ priorities. See 2018 WL 1666622, U.S. DOJ, News Release (Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry”). Specifically, it directs Southwest border prosecutors to accept for prosecution, to the extent practicable, all § 1325(a) offenses referred by DHS for prosecution. Whether a person is prosecuted for such crime after a referral by DHS is a decision made by DOJ, and is subject to DOJ's prosecutorial discretion. See United States v. Batchelder, 442 U.S. 114, 124 (1979) (“Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion.”).

         At the inception of DOJ's Zero-Tolerance Policy, DHS referred for prosecution adults it had cause to believe unlawfully entered this country on the Southwest border. These adults were transferred to U.S. Marshals Service pretrial custody, and any children traveling with those adults would remain in DHS immigration custody or would be classified as an unaccompanied alien child and transferred to the custody of the Department of Health and Human Services Office of Refugee Resettlement. DHS was not able to swiftly reunite some adults with their children upon completion of the adult's criminal proceedings. In June 2018, the President addressed this situation and signed an Executive Order which would keep migrant families together during criminal and immigration proceedings to the extent permitted by law, while also maintaining rigorous enforcement of immigration laws. See Temporary Family Detention E.O. The Executive Order halted family separation generally and created the “Temporary Detention Policy for Families Entering This Country Illegally.” It directed DHS to:

• maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members”;
• called for the Secretary of Defense “to take all legally available measures to provide to DHS any existing facilities available for the housing and care of alien families, ” and
• and construct such facilities if necessary and consistent with law.”

         Temporary Family Detention E.O., ” 2018 WL 3046068.

         II. Plaintiffs' Lawsuit

         Plaintiffs are two community organizations that have longstanding interests in resisting the militarization of the border region and advocating on behalf of immigrant communities in southern New Mexico and far-west Texas. The Border Network for Human Rights (“BNHR”) is a self-described advocacy group that organizes marginalized border communities in the region around El Paso, Texas and Las Cruces, New Mexico to defend and promote human and civil rights in the border region. Doc. 10, ¶22. Plaintiff Southwest Environmental Center (“SWEC”) is a non-profit conservation organization dedicated to the protection and restoration of native wildlife and their habitats in the Southwest.

         In the Amended Motion for Preliminary Injunction (Doc. 11), Plaintiffs urge the Court to invalidate the executive branch's exercise of prosecutorial discretion and enjoin federal prosecutors from enforcing the criminal law and DHS from enforcing the immigration law. They claim that the Zero-Tolerance Policy is causing or will imminently cause, irreparable humanitarian harm, particularly to families and children who are being detained for extended periods in prison-type environments and in addition, cause irreparable harm to the communities and environment of the Southwest in that it will require Defendants to construct and operate dozens of new detention facilities in this region. Put simply, Plaintiffs urge the Court to enjoin DOJ from prosecuting illegal entry offenses to stop the building of new detention facilities which will house detainees during prosecution of those offenses. Plaintiffs contend that the zero-tolerance policy and the temporary detention policy for family migrants who entered illegally must be set aside because the policies are in fact substantive rules that were issued without offering the public notice of the opportunity to comment on it.

         The Amended Complaint contains three claims for relief:

(1) Notice and Comment Violation under the APA, 5 U.S.C. ¶553 regarding Defendants' zero-tolerance policy;
(2) Notice and Comment Violation regarding Defendants' temporary detention policy; and
(3) Violation under the Freedom of Information Act, 5 U.S.C. ¶552(a)(1) (“FOIA”)

         In this motion, Defendants move to dismiss all of Plaintiffs' claims for lack of standing.


         I. First and Second “Notice and Comment” Claims-Standing

         Under Article III of the United States Constitution, federal courts are only authorized to hear “cases” and “controversies.” U.S. Const. art. III, § 2. The “case-or-controversy requirement is satisfied only where a plaintiff has standing.” Sprint Communications Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 273 (2008). The constitutional minimum of standing contains three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

         (1) Injury-in-Fact: a plaintiff must have suffered an “injury-in-fact” that is both: (a) “concrete and particularized”; and (b) “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560. (internal quotation marks omitted). Allegations of possible future injury do not suffice; rather, “[a] threatened injury must be certainly impending to constitute injury in fact.” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (quotation omitted). Thus, a plaintiff must allege, ‚Äúthat he has been perceptibly harmed by the challenged action; not that he can imagine circumstances in which ...

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