505 F.Supp.3d 164
E.D.N.Y2020Background
- DHS announced the Migrant Protection Protocols (MPP) in Dec. 2018, directing certain noncitizen entrants to be returned to Mexico to await U.S. immigration proceedings.
- Four migrant plaintiffs crossed between ports of entry, were later apprehended in the U.S. interior, and were returned to Mexico under MPP; relatives in New York joined the suit.
- Plaintiffs sought a preliminary injunction to rescind their return orders and allow re-entry, alleging violations of 8 U.S.C. § 1225(b)(2)(C), 8 C.F.R. §§ 1001.1(q) and 235.3(d), the APA (notice-and-comment and arbitrary-and-capricious), Accardi, the Rehabilitation Act, and the Fifth Amendment.
- Defendants moved to stay the action pending the Supreme Court’s review in Wolf v. Innovation Law Lab; the court stayed claims overlapping with that certiorari grant (notice-and-comment and Accardi/procedural claims) but allowed other claims to proceed.
- On the remaining (unstayed) claims the court denied the preliminary injunction because plaintiffs failed to show a likelihood of success on the merits: the court construed “arriving on land” broadly, rejected plaintiffs’ regulatory-limit arguments, found the Rehabilitation Act claim abandoned/untimely as pleaded, and rejected the substantive due process theory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / Venue (NY relatives) | Relatives (e.g., Adrianza) suffer concrete, redressable injury from separation and thus can anchor venue in E.D.N.Y. | Relatives lack Article III standing and cannot anchor venue because relief depends on migrants ultimately prevailing on asylum claims. | Adrianza has present Article III interest in family reunification; venue is proper. |
| Stay pending Innovation Law Lab | Opposes stay; seeks prompt adjudication and injunction. | Stay the case (or at least overlapping claims) because Supreme Court review will control notice-and-comment/related issues. | Stay granted for notice-and-comment rule and Accardi/procedural claims; denied as to other claims. |
| Scope of 8 U.S.C. § 1225(b)(2)(C) (“arriving on land”) | MPP plaintiffs were no longer "arriving" when apprehended after entering; statute thus not applicable to them. | "Arriving" is an ongoing process; statute covers aliens apprehended shortly after crossing. | Plaintiffs not likely to succeed; court interprets "arriving on land" to include recently apprehended entrants and finds record insufficient to show they were outside that category. |
| 8 C.F.R. § 1001.1(q) and § 235.3(d) (port-of-entry limit) | Regulations limit "arriving aliens" / return authority to those at ports of entry, so MPP returns of between-port entrants exceed regulatory bounds. | Statute expressly permits returns "whether or not at a designated port of arrival," and the regs do not repeal or cabin that statutory authority; agency practice and BIA decisions support broader authority. | Plaintiffs unlikely to succeed; regs do not reasonably read to bar returns outside ports and do not override the statute. |
| APA / Arbitrary-and-Capricious claim based on regulatory departure | Returning non-port entrants departs from agency regulations without reasoned explanation. | There is no regulatory prohibition to depart from; agency acted within statutory discretion. | Plaintiffs fail to show arbitrary or capricious action because there was no unexplained departure from binding regulations. |
| Rehabilitation Act (A.Y.B.O., Ms. Doe) | Returns denied meaningful access to federal programs based on disability; injunction required. | Rehabilitation Act provides no private cause of action here; plaintiffs point to APA only belatedly. | Standalone Rehabilitation Act claim abandoned; belated APA framing not considered on preliminary record. |
| Substantive due process / state-created danger (Ms. Doe) | Returning Ms. Doe to Mexico exposed her to grave harm and violated substantive due process. | Immigration removals are committed to political branches; state-created-danger doctrine does not apply to removals. | Claim unlikely to succeed: courts generally do not apply state-created-danger in immigration-removal context; alternatively, plaintiffs did not show conscience-shocking deliberate indifference. |
Key Cases Cited
- Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (treatment of detention statutes in immigration context).
- Clark v. Martinez, 543 U.S. 371 (2005) (administrative transfer of functions between agencies).
- Accardi v. Shaughnessy, 347 U.S. 260 (1954) (agency must follow its own binding rules/procedures).
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (deference to reasonable agency interpretations of genuinely ambiguous regulations).
- Mazurek v. Armstrong, 520 U.S. 968 (1997) (preliminary injunction is extraordinary relief).
- Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) (preliminary injunction standard requires likelihood of success and irreparable harm).
- Innovation Law Lab v. Wolf, 951 F.3d 1073 (9th Cir. 2020) (district-court injunction against MPP; certiorari granted).
- County of Sacramento v. Lewis, 523 U.S. 833 (1998) ("conscience-shocking" standard for substantive due process).
- Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) (unexplained agency inconsistency and deference principles).
- Department of Homeland Security v. Thuraissigiam, 140 S. Ct. 1959 (2020) (judicial limits on immigration-related habeas and plenary power comments).