313 F. Supp. 3d 317
D.C. Cir.2018Background
- Nine named arriving noncitizen asylum-seekers (and a proposed class) were found to have a credible fear of persecution under 8 U.S.C. § 1225(b) but were denied parole and remained detained at five ICE Field Offices (Detroit, El Paso, Los Angeles, Newark, Philadelphia).
- Since 2009 ICE has had a Parole Directive describing procedures and minimum protections for parole decisions (individualized determinations, written notice in a language applicant understands, parole interview within 7 days, written reasons for denial).
- Plaintiffs allege a near-universal collapse in parole grant rates at the five offices after the 2017 change in administration—statistics show parole grants fell from over 90% historically to near zero—indicating a systematic refusal to follow the Directive.
- Plaintiffs filed a putative class action seeking declaratory and injunctive relief under the APA and the Fifth Amendment; they moved for a preliminary injunction and provisional class certification; defendants moved to dismiss (the court reserved on dismissal).
- The district court provisionally certified the class and granted a preliminary injunction ordering ICE to follow the Parole Directive procedures pending litigation, finding plaintiffs likely to succeed on an Accardi-based APA claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court has jurisdiction to review alleged systematic noncompliance with ICE Parole Directive | Plaintiffs: challenge is to agency practice/policy (not individual discretionary determinations) and thus not blocked by INA jurisdictional bars | Defendants: challenges intrude on discretionary parole decisions and are barred by INA § 1252 provisions and § 1252(f)(1) | Court: jurisdiction exists for claims challenging agency-wide failure to follow its own procedures; § 1252 bars individual discretionary-review only and § 1252(f)(1) does not bar injunctions that require compliance with agency guidance rather than enjoin statutory operation |
| Whether the Parole Directive can be enforced under Accardi/APA § 706(2) | Plaintiffs: Directive is binding agency guidance that confers procedural protections; Accardi doctrine allows suit where agency fails to follow its own rules | Defendants: Directive’s disclaimer and internal nature mean it isn’t legally binding and plaintiffs lack a cause of action under the APA | Court: Accardi applies; plaintiffs may bring APA claim to enforce agency compliance with internal guidance that protects individuals; agency concession that Directive is binding reinforced this conclusion |
| Whether plaintiffs showed likelihood of success on the merits (ICE violating the Directive) | Plaintiffs: near-zero parole grant rates, supporting declarations from detainees and counsel, and boilerplate denial letters show systematic noncompliance with Directive | Defendants: statistics are incomplete/cherry-picked; individualized determinations continue; declarations show compliance | Held: Court found Plaintiffs’ statistical and testimonial record persuasive that the five Field Offices likely are not implementing individualized determinations and thus plaintiff likely to succeed on Accardi claim |
| Whether preliminary injunctive relief is warranted (irreparable harm, balance, public interest) | Plaintiffs: detention without Directive protections causes irreparable harm to asylum-seekers; injunction enforces existing agency obligation; balance favors release/process and public interest requires agency compliance | Defendants: alternative remedies exist (redetermination), and court intrusion into enforcement harms government interests | Held: Court found irreparable harm, public interest and equities favor plaintiffs and granted preliminary injunction requiring ICE to follow Directive procedures pending litigation |
Key Cases Cited
- United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) (agencies must follow their own valid regulations and procedures)
- Morton v. Ruiz, 415 U.S. 199 (1974) (agency must follow internal procedures that affect individual rights)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (§ 1252(a) does not categorically bar review of claims challenging the scope of agency authority)
- Winter v. NRDC, 555 U.S. 7 (2008) (standards for preliminary injunction: likelihood of success, irreparable harm, balance of equities, public interest)
- Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (class certification commonality and requirement that a common contention drive resolution)
- Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) (agency pronouncement becomes binding if intended to create enforceable norms)