343 F. Supp. 3d 83
E.D.N.Y.2018Background
- Plaintiff Waqas Gondal, a DACA recipient, applied for DACA renewal in Sept. 2017; USCIS issued a Notice of Intent to Deny based on travel on Jan. 16, 2016 without advance parole and later denied renewal.
- Gondal had previously been granted DACA (2012) and renewals (including 2014) and had been paroled on return from an earlier trip to Pakistan with advance parole; the 2016 incident involved use of a false ID at a Canadian port and subsequent parole into the U.S.
- Gondal submitted affidavits denying he left the U.S. for more than a brief time and responded to USCIS’s Notice of Intent to Deny, but DHS denied his renewal as a discretionary "no deferred action" decision.
- Gondal sued DHS and individual officials alleging violation of his Fifth Amendment procedural due process rights and sought an order granting his DACA renewal and work authorization.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6); the court considered whether §1252(g) deprives it of jurisdiction and whether Gondal stated a procedural due process (and implicitly APA) claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under 8 U.S.C. § 1252(g) | Gondal framed claim as procedural due process over USCIS procedures, not a challenge to discretionary denial | §1252(g) bars judicial review of "no deferred action" discretionary decisions, divesting courts of jurisdiction over DACA denials | Court: §1252(g) bars review of the merits of discretionary DACA denials, but does not bar jurisdiction over legal procedural-due-process challenges to agency procedures prior to the discretionary decision; court nonetheless found relief unavailable on the merits |
| Existence of protected property/liberty interest | Gondal asserted a property interest in employment authorization and a liberty interest in being approved under DACA | Defendants: DACA and work authorization are discretionary; no legitimate claim of entitlement exists | Court: No protected property or liberty interest; DACA confers no entitlement because it is discretionary prosecutorial action |
| Adequacy of procedural protections afforded | Gondal alleged insufficient explanation and process for denial; sought review and issuance of renewal | Defendants: USCIS provided notice and opportunity to respond; procedures were constitutionally adequate | Court: Gondal failed to plausibly allege a procedural due process violation; USCIS provided notice and opportunity to respond, so claim fails |
| APA claim / amendment to complaint | Gondal raised APA arguments in briefing | Defendants: Complaint contains no APA claim; plaintiff did not move to amend | Court: Will not treat briefing as amendment; no APA claim is before the court; dismissal with prejudice |
Key Cases Cited
- Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (§1252(g) limits review of prosecutorial discretion decisions such as "no deferred action" rulings)
- Barahona-Gomez v. Reno, 236 F.3d 1115 (9th Cir. 2001) (defines "deferred action" as prosecutorial discretion not to proceed against removable aliens)
- Batalla Vidal v. Duke, 295 F. Supp. 3d 127 (E.D.N.Y. 2017) (discusses DACA as discretionary relief and criteria versus entitlement)
- Regents of the Univ. of California v. U.S. Dep't of Homeland Sec., 908 F.3d 476 (9th Cir. 2018) (distinguishes programmatic DACA litigation from challenges to individual "no deferred action" decisions)
- Perez v. U.S. Bureau of Citizenship & Immigration Servs., 774 F.3d 960 (11th Cir. 2014) (procedural due process claim can challenge non-discretionary procedures used before an agency's discretionary decision)