United States District Court, D. New Mexico
SOUTHWEST ENVIRONMENTAL CENTER AND B NETWORK FOR HUMAN RIGHTS, Plaintiffs,
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.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS
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
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.
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”). 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.
History of Relevant Immigration Policy
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.”).
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
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
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.”
Family Detention E.O., ” 2018 WL 3046068.
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
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.
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.
motion, Defendants move to dismiss all of Plaintiffs'
claims for lack of standing.
First and Second “Notice and Comment”
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).
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,
“that he has been perceptibly harmed by the challenged
action; not that he can imagine circumstances in which ...