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Claudia Sarahi RUEDA VIDAL, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. Citizenship and Immigration Service; Immigrations and Customs Enforcement; Customs and Border Protection; Border Patrol; Tracy Renaud, in her official capacity; Kathy A. Baran, in her official capacity; Andrew K. Bolton; and Daniel Brightman, Defendants.
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT [67, 69]
On March 22, 2019, Plaintiff Claudia Sarahi Rueda Vidal (“Rueda”) filed a First Amended Complaint (“FAC”) against the following Defendants: U.S. Department of Homeland Security (“DHS”); U.S. Citizenship and Immigration Services (“USCIS”); U.S. Immigration and Customs Enforcement (“ICE”); U.S. Customs and Border Protection (“CBP”); U.S. Border Patrol (“USBP”); Lee Francis Cissna, Director of USCIS, in his official capacity; Kathy A. Baran, Director of USCIS California Service Center, in her official capacity; Andrew K. Bolton; and Daniel Brightman.1 [Doc. # 35.]
As relevant to the Federal Agency Defendants, the FAC alleges the following causes of action: (1) Count One, Administrative Procedure Act (“APA”)—Arbitrary and Capricious Action against all of the Federal Agency Defendants except CBP and USBP; (2) Count Two, APA—Unconstitutional Action against all of the Federal Agency Defendants except CBP and USBP; and (3) Count Eight, a declaratory relief claim against all Defendants. See FAC at 32–49 [Doc. # 35].2 Upon the Federal Agency Defendants’ Motion to Dismiss (“MTD”), the Court dismissed the APA arbitrary and capricious claim under 5 U.S.C. section 701(a)(2) but permitted the APA unconstitutional action claim to proceed under 5 U.S.C. section 706(2)(C). MTD Order at 16 [Doc. # 48].
On April 27, 2020, Rueda filed a Motion for Summary Judgment (“MSJ”) against the Federal Agency Defendants.3 [Doc. # 67.] The same day, the Federal Agency Defendants filed their MSJ. [Doc. # 69.] Both motions are fully briefed, and the Court held a videotelephonic hearing on June 19, 2020. The parties submitted supplemental briefing on whether the U.S. Supreme Court's recent decision in Department of Homeland Security v. Regents of the University of California, ––– U.S. ––––, 140 S. Ct. 1891, 207 L.Ed.2d 353 (2020), had any effect on the Court's jurisdiction to review Rueda's APA arbitrary and capricious claim. See Pl.’s Supp. Br. [Doc. # 83]; Defs.’ Supp. Br. [Doc. # 84].
For the reasons stated below, the Court GRANTS in part and DENIES in part each MSJ.
EVIDENTIARY STANDARD AND REQUEST FOR JUDICIAL NOTICE
In support of her MSJ, Rueda submits her own declaration dated April 27, 2020, and seeks judicial notice of:
1. The June 12 Memorandum by the DHS Secretary establishing the DACA program (“DACA Memo”);
2. The DACA National Standard Operating Procedure (“DACA SOP”);
3. The September 5, 2017 Memorandum by the DHS Secretary seeking to rescind the DACA program (“Rescission Memo”);
4. DACA application approval rate statistics as of September 30, 2019 (“DACA Statistics”);
5. Fifty-two news articles published between April 25, 2017 and July 26, 2017 regarding Plaintiff's advocacy and arrest;
6. A sampling of Tweets using the #FreeClaudia hashtag;
7. Nine news articles regarding the detention and/or deportation of immigration activists, not Plaintiff;
8. The Amended Complaint in Ravidath Lawrence Ragbir et al. v. Ronald D. Vitiello et al., S.D.N.Y No. CV 18-01159-PKC.
[Doc. ## 67-3, 67-4.]
Defendants oppose the Court's consideration of Rueda's supplemental declaration and judicial notice of each exhibit, arguing that the Court can only review evidence from the administrative record that was before the agency when it made its decision. Defs.’ Opp. at 16 [Doc. # 73] (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). But that rule pertains to APA challenges to agency action that are allegedly “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” not challenges to agency action alleged to be “contrary to constitutional right [or] without observance of procedure required by law.” 5 U.S.C. § 706(2). The Court made clear in its MTD Order that Count Two survived because it is a constitutional claim and dismissed Count One, the APA arbitrary or capricious claim. Accordingly, Defendants’ argument that the arbitrary or capricious standard should apply is misplaced. See Defs.’ Opp. at 15–16.4
Where “plaintiffs have a constitutional claim that exists outside of the APA, then the APA's administrative record requirement does not govern the availability of discovery,” and, by extension, to consideration of other extra-record evidence. State v. U.S. Dep't of Homeland Sec., No. CV 19-04975-PJH, ––– F.Supp.3d ––––, –––– – ––––, 2020 WL 1557424, at *13–14 (N.D. Cal. Apr. 1, 2020) (collecting cases and granting discovery on plaintiff's constitutional claims). There is no controlling authority as to whether constitutional claims governed by the APA should be decided on the administrative record without additional evidence. Id. at ––––, 2020 WL 1557424, at *14 (“Most courts decline to draw a bright line or categorical rule and instead examine the particular facts of the claims involved and the discovery requested.”). The Court thus examines the necessity of additional evidence on a case by case basis.
Rueda's April 27, 2020 supplemental declaration provides background on Rueda's experiences relevant to her First Amendment retaliation claim. [Doc. # 67-3.] The declaration merely provides a streamlined account of certain events on which Rueda's constitutional claim relies. The Court shall consider these facts as disputed where Defendants have disputed the facts themselves and not solely the timing and format of their introduction.
As for Rueda's request for judicial notice, Federal Rule of Evidence 201 permits a court to take judicial notice of facts not subject to reasonable dispute and “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Campbell v. PricewaterhouseCoopers, LLP, 642 F.3d 820, 824 n.3 (9th Cir. 2011) (citing Fed. R. Evid. 201(b)). The Court has already taken judicial notice of the DACA Memo, DACA SOP, and Rescission Memo, based upon Defendants’ request in support of their MTD. See MTD Order at 2. The Court need not judicially notice them a second time. Fanni v. Northrop Grumman Corp., No. CV 98-5197-DT (AIJx), 2000 WL 35905106, at *7 (C.D. Cal. Apr. 10, 2000), aff'd, 23 F. App'x 782 (9th Cir. 2001) (“Having already taken judicial notice of such documents ․ this Court need not repeat its reasons for taking judicial notice of them. As having been judicially noticed by this Court, they are already a part of the record of this action.”). Defendants cannot now oppose inclusion of exhibits in the record that they themselves first placed there.
The Court notices the Tweets and news articles only to “indicate what was in the public realm at the time, not whether the contents of those articles were in fact true.” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010). In addition, because courts “may take judicial notice of ‘matters of public record,’ ” the Court also takes judicial notice of the DACA Statistics and the Amended Complaint in Ravidath Lawrence Ragbir et al. v. Ronald D. Vitiello et al., S.D.N.Y No. CV 18-01159-PKC. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (citation omitted). Defendants do not dispute the accuracy of the statistics generated by Defendant USCIS, and documents on file in federal or state courts are considered undisputed matters of public record. Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012).
Rueda's Request for Judicial Notice (“RJN”) is GRANTED.
FACTUAL BACKGROUND 5
A. Deferred Action for Childhood Arrivals (“DACA”)
The DACA program was established in 2012 by the DHS Secretary's DACA Memo. PSUF at ¶ 6. The DACA Memo sets forth the following criteria for eligibility: an applicant must show he or she (1) arrived in the United States before age 16; (2) has five years continuous residence in the United States; (3) meets certain educational or military service requirements; (4) has no significant criminal convictions and does not “otherwise pose a threat to national security or public safety”; and (5) is younger than 30. PSUF at ¶ 3. The DACA Memo states that the Government “should” defer action “against individuals who meet the above criteria.” PSUF at ¶ 4.
In 2017, the Government sought to rescind DACA via the Rescission Memo, but that rescission was enjoined by several courts, including the Ninth Circuit. See Regents of the Univ. of California v. U.S. Dep't of Homeland Sec., 908 F.3d 476, 510 (9th Cir. 2018), rev'd in part, vacated in part, ––– U.S. ––––, 140 S. Ct. 1891, 207 L.Ed.2d 353 (2020); PSUF at ¶ 7. According to the Rescission Memo, the “USCIS has not been able to identify specific denial cases where an applicant appeared to satisfy the programmatic categorical criteria as outlined in the [DACA Memo], but still had his or her application denied based solely upon discretion.” RJN, Ex. 3 (Rescission Memo) at 37 n.1 [Doc. # 67-4]; PSUF at ¶ 5.
As of September 30, 2019, the Government approved 2,508,958 DACA applications after case review and denied 98,868, and 38,595 were still pending. RJN, Ex. 4 (DACA Statistics) [Doc. # 67-4]; PSUF at ¶ 70.
B. Plaintiff's Background and Arrest
Rueda's mother, Teresa Vidal Jaime, brought her to the United States from Mexico in 2001, when she was six years old. PSUF at ¶¶ 12–13. Since then, Rueda has lived in East Los Angeles, for most of that time in an apartment in Boyle Heights with her mother, father, sister, and at times, other family members. Rueda is financially supported by her mother. DSUF at ¶ 2.6
As of the events of this case in 2017, Rueda was a college student at the California State University at Los Angeles, and she has since graduated. PSUF at ¶ 14; Rueda Supp. Decl. at ¶ 4 [Doc. # 67-3]. From 2012 to 2016, Rueda worked with the Los Angeles Immigrant Youth Coalition, an organization “that helps undocumented youth [and] families end criminalization of immigrants” through outreach and education programs for undocumented youth, such as “Know Your Rights” workshops, and building relationships with Los Angeles area high schools. CAR 0053 (Rueda's resumé); PSUF at ¶¶ 15–16.
Prior to the events of this litigation, Rueda's only encounters with law enforcement consisted of two arrests at peaceful protests. PSUF at ¶ 17. On April 24, 2017, USBP officers and Los Angeles County sheriffs searched Rueda's parents’ Boyle Heights apartment, finding $630,000 in cash and 33 pounds of cocaine, and arrested her parents and uncle. CAR 0380 (CBP Investigation Report). The officers report that Rueda was sleeping on the couch and present for the arrests, though Plaintiff asserts she was not home when the search began and arrived at the apartment later. CAR 0380-81; 0092. According to the report, the officers suspected that Rueda's parents were involved in a transnational criminal organization (“TCO”) they referred to as the “Rueda TCO.” CAR 0381.
Following her mother's placement in immigration detention proceedings, Rueda organized community action in protest against her mother's detention, including a letter-writing campaign, a rally, and call line for people to contact ICE and CBP on her mother's behalf. She also spoke to the media about her mother's arrest and spoke publicly at a Sheriff's Civilian Oversight Commission meeting. Her mother was released on bond on May 12, 2017. Rueda Supp. Decl. at ¶ 6. Defendants dispute Rueda's characterization of her activities following her mother's arrest, but information from the administrative record and contemporaneous news articles confirm Rueda's advocacy and her mother's release. See DSUF at ¶ 7; RJN, Ex. 5–57 [Doc. # 67-4]; CAR 0054-56, 0081-82, 0095 (letters describing Rueda's “outspoken advocacy”); CAR 0231, 0262 (letters specifically referring to Rueda's efforts towards her mother's release).
On May 17, 2017, USBP officers surrounded and arrested Rueda in the early morning outside of her aunt's home, where she had been living since her parents’ arrest. PSUF at ¶ 19; CAR 0079 (Rueda DACA Decl.). The officers’ report indicates that they arrested her for “violation of her non-immigrant status and being a beneficiary of the Rueda TCO.” CAR 0381. Rueda asserts that when the plainclothes officers asked for her name and she gave it, an officer responded, “That's her.” Rueda Supp Decl. at ¶ 9. Defendants dispute Rueda's description of the encounter. The USBP officers issued Rueda a Notice to Appear on May 18, 2020, indicating DHS's intention to begin removal proceedings. DSUF at ¶ 4. Defendants held her in detention for approximately three weeks. PSUF at ¶ 20.
On June 9, 2017, an Immigration Judge—citing the high likelihood that Rueda's then-forthcoming DACA application would be granted and the lack of evidence to justify her detention—released her without bond. PSUF at ¶ 23. The Immigration Judge found she was not a flight risk or threat to public safety and described her as a “prime candidate” for DACA whose application was “likely to succeed.” PSUF at ¶ 24. In support of Rueda's bond determination application, 45 elected officials, leaders of local and national organizations, university professors and administrators, high school teachers, and other community members wrote letters describing her as a highly valued asset to the community. PSUF at ¶¶ 25–27.
Rueda also submitted a letter signed by 87 immigrant, civil rights, faith based, and legal service providers and another letter signed by 84 faith leaders. PSUF at ¶¶ 28–42.
C. Plaintiff's DACA Application
Rueda filed her DACA application on June 16, 2017. PSUF at ¶ 43.7 The first line of the resumé Rueda submitted with her DACA application described her as a “Youth Organizer/Volunteer” who “helps undocumented youth & families end criminalization of immigrants.” CAR 0053; DSUF at ¶ 28. Rueda's declaration submitted in support of her application asserts that after she found out that her mother was being taken into immigration detention, she immediately “contacted groups and lawyers and publicly started calling for Border Patrol to release [her] mom” and gathered letters of support from individuals and organizations. DSUF at ¶ 7.
Letters of support in the administrative record mention Plaintiff's advocacy work. One by Los Angeles City Councilmember Gilbert Cedillo described his concern regarding “signs that suggest that she was arrested either in retaliation for her outspoken advocacy, or as collateral to an investigation that does not implicate her.” CAR 0055. Another by Los Angeles County Supervisor Hilda Solis also noted her concern by the “appearance that immigration enforcement agencies may be targeting individuals who are involved in immigrant rights activism.” CAR 0082. Fellow Los Angeles County Supervisor Sheila Kuehl described similar concerns. CAR 0201. Other letters specifically mentioned Plaintiff's campaign for her mother's release. See, e.g., CAR 0231, 0262. For example, the letter signed by 84 faith leaders in support of her release from immigration detention states that the undersigned “are worried that circumstances of Claudia's arrest suggest that she was targeted for arrest at least in part as a result of her dignified defense of her mother, who had previously been arrested by CBP.” CAR 0217–18. In a similar letter, the executive director of the National Day Laborer Organizing Network asserted that “[t]o the community, the arrest of Claudia apparently occurred in retaliation against the advocacy work she led on behalf of her mother.” CAR 0231.
On June 29, 2017, Dwain Holmes, Supervisory Border Patrol Agent of San Diego Sector Prosecutions, sent an email to the “DACA Terminations” email address at USCIS. PSUF at ¶ 59. The full e-mail reads as follows:
I've sent e-mails to this e-mail address before in order to cancel an individual's DACA due to being placed into proceedings and being an enforcement priority. The below individual has been placed into removal proceedings and from what I understand has applied for DACA. She does not currently have DACA. I've attached a copy of the NTA that was filed with the immigration court and her next court date is November 8, 2017. If I have sent this to the wrong place as she does not currently have DACA to terminate, please let me know. I can also provide more information if needed.
DSUF at ¶ 41; CAR 0122. USCIS officer Khanh (Connie) Nguyen responded that she was reviewing Plaintiff's case. In response, Holmes offered to provide Nguyen with a “report of investigation should [she] need it in the adjudication[ ] of this case.” CAR 0121. Nguyen accepted the offer, and Holmes sent the report.
In her next e-mail to Holmes, Nguyen informed him that she planned to refer the case to USCIS “HQ” and recommend a denial. She also stated that she could word the case analysis differently if Holmes wanted to keep the report from being accessed through a Freedom of Information Act (“FOIA”) request. CAR 0121. After Holmes requested to keep the report from being “FOIA-able” due to information in the report about individuals being investigated, Nguyen e-mailed Holmes that she would “rewrite [her] analysis” so the report could not be “FOIA-able” and, once she had USCIS HQ's concurrence, to “deny [Plaintiff's] DACA immediately on discretionary ground[s].” CAR 0120. The remainder of the e-mail chain involved Holmes requesting follow-up and Nguyen updating him on the case's progress.
On August 17, 2017, Nguyen submitted a Request for Adjudicative Guidance (“RAG”) regarding Rueda's application to USCIS HQ Service Center Operations (“SCOPS”), noting her concern that “Requestor lives at the stash house where CBP arrested her parents while in possession of cocaine and bulk cash. Should she be granted DACA?” and recommending denying the application. CAR 0123–24; PSUF at ¶ 61; DSUF at ¶ 11. The stated reason for the recommendation was that “[a]lthough there is no evidence that requestor has ever been directly involved in her parents’ [alleged criminal] operation, she has lived with them into adulthood,” and “CBP classifies her as an associate to the Rueda TCO by virtue of familial relation in [REDACTION].” CAR 0123-24; PSUF at ¶ 62. The RAG further notes:
Since the requestor has lived into adulthood at both addresses being targeted by the investigation, it is very likely that she is aware of her parents’ criminal activities and is a beneficiary of the profits from their TCO. As such, it appears that her case does not warrant prosecutorial discretion.
PSUF at ¶ 69; CAR 0124. SCOPS concurred with the RAG's recommendation to issue a discretionary denial. DSUF at ¶ 12.
On October 4, 2017, Nguyen conducted a routine Deconfliction check as part of the background check process. DSUF at ¶ 14. The Deconfliction report described the details of Rueda's parents’ arrest and noted that Rueda “arrived at the scene during the arrest” and that Border Patrol agents later encountered her at a second house affiliated with the alleged TCO. DSUF at ¶¶ 17–19. The report also states that “[a]ffiliation with drug trafficking organization is an EPS [Egregious Public Safety] concern ․ and will affect DACA Eligibility.” DSUF at ¶ 20.
On October 19, 2017, USCIS issued a denial letter informing Rueda that “USCIS has determined, in its unreviewable discretion, that you have not demonstrated that you warrant a favorable exercise of prosecutorial discretion and it will not defer action in your matter.” DSUF at ¶ 22; CAR 0016. In denying her DACA application, Defendants did not contend that Rueda herself posed a threat to national security or public safety. PSUF at ¶ 63. Under the DACA SOP, a denial based on public safety concerns would have contained the language “you do not warrant a favorable exercise of prosecutorial discretion because of public safety concerns.” PSUF at ¶ 64. Rueda's denial did not contain that language. PSUF at ¶ 65.
Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Material facts are those that may affect the outcome of the case. Nat'l Ass'n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505.
The moving party bears the initial burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial burden, Rule 56(c) requires the nonmoving party to “go beyond the pleadings and by [his or] her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(c), (e)); see also Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010) (en banc) (“Rule 56 requires the parties to set out facts they will be able to prove at trial.”). “In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). “Rather, it draws all inferences in the light most favorable to the nonmoving party.” Id.
A court presented with cross-motions for summary judgment should review each motion separately, giving the nonmoving party for each motion the benefit of all reasonable inferences from the record. Center for Bio-Ethical Reform, Inc. v. Los Angeles Cnty. Sheriff Dep't, 533 F.3d 780, 786 (9th Cir. 2008).
Rueda moves for summary judgment on Count Two of her FAC asserting unconstitutional agency action, arguing that based on the uncontroverted facts, her DACA application was denied on grounds that violate the First and Fifth Amendments. Under the APA, the Court shall “hold unlawful and set aside agency action, findings, and conclusions found to be ․ contrary to constitutional right ․ [or] without observance of procedure required by law.” 5 U.S.C. § 706(2). Defendants do not dispute that denial of her DACA application constitutes a final agency action. In addition, in her supplemental briefing, Rueda argues that the Court should reconsider its decision to dismiss Count One of her FAC, asserting arbitrary and capricious agency action, as unreviewable under the APA, 5 U.S.C. § 701(a)(2), in light of Department of Homeland Security v. Regents of the University of California, ––– U.S. ––––, 140 S. Ct. 1891, 207 L.Ed.2d 353 (2020). Pl.’s Supp. Br. at 4–6.
Defendants move for summary judgment on the grounds that (1) the Court lacks jurisdiction to hear this challenge to a discretionary agency action under the APA, 5 U.S.C. § 701(a)(2), or the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252(g), and (2) Rueda cannot prevail on the merits of her constitutional claim under Count Two. Defs.’ MSJ at 18–23. Defendants argue that Regents has no effect on the reviewability of Count One under the APA. Defs.’ Supp. Br. at 3–6.
The Court considers first the arguments relating to Count Two before addressing its jurisdiction over Count One.
1. Count Two: Unconstitutional Action under the APA
For the same reasons previously discussed in its August 28, 2019 Order on Defendants’ Motion to Dismiss, neither the APA nor the INA bar the Court's review of Rueda's constitutional claim against Defendants.8
Generally, Section 701(a)(2) of the APA, which provides that agency action “committed to agency discretion by law” is not subject to judicial review, does not apply to claims alleging that a federal agency violated the federal constitution. MTD Order at 16 (citing Allen v. Milas, 896 F.3d 1094, 1107–08 (9th Cir. 2018)). As discussed in more detail below, the record supports Rueda's claim that Defendants denied her DACA application for reasons that violate her First and Fifth Amendment rights to familial association and raises triable issues of fact regarding whether Defendants denied her DACA application in retaliation for protected activity under the First Amendment. The Court thus need not consider Regents’ limited discussion of individual DACA decisions and reaffirms that Count Two is subject to judicial review because it asserts constitutional violations. See Regents, 140 S. Ct. at 1906.
For the same reason, the INA section 1252(g) does not deprive this Court of jurisdiction over Rueda's claim because the evidence suggests sufficiently outrageous unconstitutional conduct to warrant review. Under the Supreme Court's decision in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (“AADC”), the Court “evaluate[s] the gravity of the constitutional right affected; the extent to which the plaintiff's conduct or status that forms the basis for the alleged discrimination is actually protected; the egregiousness of the Government's alleged conduct; and the plaintiff's interest in avoiding selective treatment, as balanced against the Government's discretionary prerogative.” MTD Order at 10 (quoting Ragbir v. Homan, 923 F.3d 53, 69 (2d Cir. 2019), vacated on other grounds sub nom. Pham v. Ragbir, ––– U.S. ––––, 141 S. Ct. 227, 208 L.Ed.2d 1 (2020)).9
Defendants misstate the conclusion in the Court's MTD Order regarding the gravity of the constitutional right affected. See Defs.’ MSJ at 18. It is correct that Rueda has no due process right to a grant of DACA. Id. But Rueda has substantive rights protected by the First and Fifth Amendments, and Defendants do not dispute that Rueda is entitled to those constitutional protections. See Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (“Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”); Bridges v. Wixon, 326 U.S. 135, 148, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945) (“Freedom of speech and of press is accorded aliens residing in this country.”). Because violations of her rights to political speech and familial association are implicated in her DACA denial, Rueda has asserted sufficiently outrageous conduct to pose the “rare case” described in AADC that does not evade judicial review. 525 U.S. at 491, 119 S.Ct. 936; see also Ragbir, 923 F.3d at 69. The Court therefore has jurisdiction to consider the merits of Rueda's claim that the denial of her DACA application was an unconstitutional agency action. To the extent Defendants’ MSJ seeks judgment on their behalf on Count II due to lack of jurisdiction, the MSJ is DENIED.
2. Count One: Arbitrary and Capricious Action under the APA
Rueda contends that Defendants’ decision to deny her DACA application was arbitrary and capricious, and is reviewable under Department of Homeland Security v. Regents of the University of California, ––– U.S. ––––, 140 S. Ct. 1891, 207 L.Ed.2d 353 (2020). The Court does not find Rueda's argument sufficiently persuasive to alter its conclusion that Section 701(a)(2) of the APA bars judicial review of that claim. See MTD Order at 13–16.
The Court acknowledges that some of its reliance on Romeiro De Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985), describing a former iteration of deferred action policy, is weakened in light of Regents. In Romeiro, the Ninth Circuit found that the district court lacked jurisdiction to review an operating instruction concerning the Immigration and Naturalization Services’ (“INS”) deferred action program because it was not “possible to conclude that the instruction is intended to confer any benefit upon aliens, rather than to operate merely for INS's own convenience.” Romeiro, 773 F.2d at 1024 (citation and internal quotation marks and brackets omitted) (citation added); see MTD Order at 15. In Regents, the Supreme Court used markedly different language to describe the program created by the 2012 DACA Memo, which confers affirmative immigration relief and eligibility for work authorization, Social Security, and Medicare—“benefits attendant to deferred action” which confirm that “DACA is more than simply a non-enforcement policy.” Regents, 140 S. Ct. at 1906. The Supreme Court concluded that because DACA established a process to confer affirmative relief and benefits—the type of benefits “courts often are called upon to protect”—the creation and rescission of the program provided a “focus for judicial review.” Id. (quoting Heckler v. Chaney, 470 U.S. 821, 831–32, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985)). Thus, because the rescission of the DACA program and its benefits was unlike the individual non-enforcement decision at issue in Chaney, the Supreme Court was obligated to review whether the agency's decision was arbitrary or capricious. Id.
Because Regents focused on DHS's rescission of the entire program, not any individual adjudication of a DACA application, the Supreme Court did not scrutinize the role of discretion in rendering an individual DACA decision. The Supreme Court briefly describes USCIS's “standardized review process” as part of proceedings that are “effectively adjudications” which confer affirmative immigration relief. Id. (citation and internal quotation marks omitted). But it also acknowledges that the agency maintains discretion to grant or deny an individual DACA application. See id. at 1914 (noting that immigration officials may “give salient weight to any reliance interests engendered by DACA when exercising individualized enforcement discretion”). Moreover, despite its holding that the DACA program conferred substantial benefits to individuals, the Supreme Court did not disturb the Ninth Circuit's conclusion that “there is no protected entitlement in ․ the initial grant of deferred action under DACA.” See Regents of the Univ. of Cal. v. U.S. Dep't of Homeland Sec., 908 F.3d 476, 514 (9th Cir. 2018), rev'd in part and vacated in part on other grounds, ––– U.S. ––––, 140 S. Ct. 1891, 207 L.Ed.2d 353 (2020). Without new binding authority or evidence that individual DACA decisions are in fact non-discretionary acts conferring a protected entitlement, this Court declines to reconsider its prior conclusion that the discretion accorded to USCIS to decide each DACA application on a case-by-case basis renders individual decisions unreviewable under Section 701(a)(2) of the APA. See MTD Order at 15–16. Defendants’ discretionary denial of Rueda's DACA application thus cannot be reviewed under the arbitrary and capricious standard.
B. First Amendment Retaliation
Rueda contends that Defendants violated her First Amendment rights by denying her DACA application in retaliation for her political speech and advocacy. See FAC at ¶ 141 [Doc. # 35]. To demonstrate retaliation in violation of the First Amendment, a plaintiff must establish:
(1) [she] engaged in constitutionally protected activity; (2) as a result, [she] was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action.
Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010). With regard to the third element, “causation is understood to be but-for causation, without which the adverse action would not have been taken.” Hartman v. Moore, 547 U.S. 250, 260, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). Under the framework set forth in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), a plaintiff must first show that her “constitutionally protected ․ conduct was a ‘substantial’ or ‘motivating’ factor in the defendants’ ․ decisions.” Allen v. Iranon, 283 F.3d 1070, 1074 (9th Cir. 2002) (quoting Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568). After making that showing, the burden shifts to the defendants to prove “ ‘by a preponderance of the evidence that [they] would have reached the same decision ․ even in the absence of the [plaintiff's] protected conduct.’ ” Id. (quoting Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568).
The Court first addresses Defendants’ argument that Rueda's claim fails because she has no constitutionally protected interest in receiving DACA. Defendants are correct that Rueda has no entitlement to receive DACA. See Regents, 908 F.3d at 514. But it is well-established that “even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny [her] the benefit for any number of reasons, there are some reasons upon which the government may not rely.” Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Notably, the government may not deny a benefit “on a basis that infringes [her] constitutionally protected interests—especially, [her] interest in freedom of speech.” Id.; see Bella Lewitzky Dance Found. v. Frohnmayer, 754 F. Supp. 774, 785 (C.D. Cal. 1991) (“Plaintiffs cannot and do not claim any ‘right’ to an NEA grant ․ [but] the government may not place restrictions on disbursement of those grants that ․ cause a chilling effect in violation of the First Amendment”). Whether a plaintiff has “a vested property right” to the benefit “is irrelevant to such a challenge.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 903 (9th Cir. 2007). Rueda therefore may bring her First Amendment retaliation claim even in the absence of a vested interest in DACA benefits.
As for the elements of a retaliation claim, Defendants do not contest that Rueda has satisfied the first and second prongs and argue only that she cannot show but-for causation. Defs.’ Opp. at 23. Indeed, Rueda's protests and advocacy are constitutionally protected speech activity, and denial of a benefit that would have deferred action in her pending removal proceedings and permitted her to obtain work authorization and other benefits constitutes an adverse action. See RJN, Ex. 1 (DACA Memo) at 19 (describing benefits of DACA status); Ford v. City of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013), abrogated on other grounds by Nieves v. Bartlett, ––– U.S. ––––, 139 S. Ct. 1715, 204 L.Ed.2d 1 (2019) (finding that a retaliatory law enforcement act such as a seizure would chill a person of ordinary firmness from engaging in future First Amendment activity).
Defendants assert the following infirmities with Rueda's causation evidence: (1) she has not sufficiently shown that decisionmakers were aware of her protected activity; (2) the evidence in the record is insufficient to show animus; and (3) the sole reason Rueda's application was denied was her residence with her parents and association by proxy to their alleged criminal enterprise. See Defs.’ MSJ at 24–26; Defs.’ Opp. to Pl.’s MSJ at 10–11; Defs.’ Reply to MSJ at 13–14, 16–17. On the record before the Court, however, none of Defendants’ arguments succeed.
First, Rueda has sufficiently shown that decisionmakers were aware of her protected activity. The administrative record contains direct evidence that USCIS was aware that Rueda engaged in advocacy for undocumented immigrants, including her mother, due to the references to such protected activity in her resumé, the letters submitted on her behalf expressing concern that she had been arrested in retaliation for her activism, and her declaration in support of her DACA application. See, e.g., DSUF at ¶ 7; CAR 0217–18, 0231, 0233, 0262. Via the judicially noticed #FreeClaudia Tweets and news articles about her advocacy and arrest, Rueda also provided circumstantial evidence that USBP officer Holmes, who was involved in her arrest and detention, was aware of her protected speech when he emailed the “DACA Terminations” email address on June 29, 2017, to request that Rueda's DACA application be terminated because she had become an “enforcement priority.” PSUF at ¶ 59. Indeed, the media attention, including eight articles in the Los Angeles Times between May 18 and June 20, 2017, indicates a high level of publicity around her case. See RJN, Ex. 5–68.
Second, Rueda has established a genuine dispute of material fact with regard to retaliatory animus. Circumstantial evidence may create a genuine dispute of material fact as to retaliatory motive when, in addition to the defendants’ knowledge, the plaintiff provides evidence of at least one of the following: (1) proximity in time between the protected action and the allegedly retaliatory adverse action; (2) additional evidence that the defendant expressed opposition to his speech; or (3) additional evidence that the defendant's proffered explanations for the adverse action were false and pretextual. Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 751–52 (9th Cir. 2001); see Allen, 283 F.3d at 1074 (holding that in First Amendment retaliation cases, a plaintiff may establish causation without “any distinction between direct and circumstantial evidence.”). The proximity in time between Rueda's outspoken advocacy on behalf of her mother's release in April 2017, her arrest in May 2017, and Holmes’ email exchange with USCIS officer Nguyen seeking to terminate Rueda's DACA application in June and July 2017, gives rise to an inference of retaliatory motive that precludes summary judgment. Defendants are correct that neither the timing of the DACA denial nor the previously redacted e-mails between Holmes and Nguyen require an inference of retaliatory animus. See Defs.’ MSJ at 26–28. It is uncontroversial that “the length of time, considered without regard to its factual setting, is not enough by itself to justify a grant of summary judgment.” Coszalter v. City of Salem, 320 F.3d 968, 978 (9th Cir. 2003). But temporal proximity, combined with circumstantial evidence of Defendants’ knowledge of Rueda's protected activity, may create a genuine dispute of material fact. See Keyser, 265 F.3d at 751. Another piece of circumstantial evidence giving rise to an inference of retaliatory animus is the fact that CBP and USBP officers traveled from San Diego to Los Angeles “to search for specific targets associated to the Rueda TCO” and managed only to arrest Rueda under circumstances indicating that she was the sole target of the search. CAR 0394 (DHS Encounter Details). This fact raises the plausible inference that Rueda was targeted because of her protected speech. Moreover, given the overwhelming success rate of typical DACA applications, it is also plausible that USCIS decisionmakers would not have denied her DACA application were it not for Holmes’ outreach to Nguyen emphasizing that Rueda is as an “associate” of a criminal organization due to her presence at her family homes. PSUF at ¶ 62; CAR 0126. On this accumulation of circumstantial evidence, the Court concludes that Rueda has met her burden under the Mt. Healthy framework to show that there is a triable issue of fact as to whether her protected speech was a substantial or motivating factor in her DACA denial. See Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568.
Given Rueda's showing, the burden shifts to Defendants to show, by a preponderance of the evidence, that they would have taken the same actions absent the protected conduct. Id. Under the but-for causation standard, even if USCIS's denial of Rueda's DACA application was “colored by some degree of bad [retaliatory] motive,” it “does not amount to a constitutional tort if that action would have been taken anyway.” Hartman, 547 U.S. at 260, 126 S.Ct. 1695. According to Defendants, it was “eminently reasonable” for USCIS to exercise its discretion to deny Rueda's DACA application because she chose, as an adult, to live in her parents’ home, where large quantities of cocaine and cash were seized. See Defs.’ Opp. at 11. Although the exact investigative report Holmes gave to Nguyen is not identified in the record, the redacted CBP report in the record of the investigation into the Rueda TCO that mentions Rueda's arrest describes Rueda as a “beneficiary of the Rueda TCO,” CAR 0382, and the DHS “Encounter Details” on Rueda's arrest describes her as “associated to the Rueda TCO by virtue of familial relations,” CAR 0394. The reason Nguyen gave for recommending denial in her Request for Adjudicative Guidance to USCIS superiors was that “it is very likely that [Rueda] is aware of her parents’ criminal activities and is a beneficiary of the profits from their TCO,” although Nguyen also notes that “there is no evidence that [Rueda] has ever been directly involved in her parents’ TCO operation.” CAR 0124, 0404. Defendants do not identify any other reason to deny Rueda's DACA application other than her residence into adulthood at her parents’ home.
For the reasons discussed below, Rueda has established that her familial association is an unconstitutional ground on which to deny her DACA application. On this record, there is circumstantial evidence giving rise to an inference that Defendants were motivated by retaliatory animus or, if their explanation is taken at face value, that they intentionally violated Rueda's First and Fifth Amendment right to familial association. Genuine disputes of material fact over Defendants’ true motivation for their DACA denial thus preclude summary judgment for either side on this facet of Rueda's APA claim.
C. First and Fifth Amendment Right to Familial Association
Rueda argues that her DACA denial interfered with her fundamental rights to familial association under the Fifth and First Amendment and thereby violated her right to equal protection and due process. See Pl.’s MSJ at 14-27; FAC at ¶¶ 142–43.10 Defendants’ MSJ focuses on her Fifth Amendment equal protection argument and asserts that Rueda failed to raise a substantive due process claim in her FAC. Defs.’ Opp. at 15–16.
The FAC clearly states that the denial of Rueda's DACA application “violated the First Amendment's and Fifth Amendment's prohibitions against adverse government action based on familial or other associations.” FAC at ¶ 142. Although Rueda did not use the “magic words” “substantive due process,” she raised such a claim by stating the relevant facts and invoking the “Fifth Amendment's prohibitions.” Id.; see also Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008) (“Notice pleading requires the plaintiff to set forth in his complaint claims for relief, not causes of action, statutes or legal theories.”).
In addition, as discussed above, the Court's MTD Order concluded that the alleged violation of Rueda's First and Fifth Amendment familial association rights constituted a sufficiently “ ‘outrageous’ basis for discrimination” to justify the Court's jurisdiction. MTD Order at 10 (quoting Ragbir, 923 F.3d at 69). In the same Order, the Court concluded that Plaintiff's equal protection claim survived based on her allegations of violations of a “fundamental right to familial association.” Id. at 22 (citing Part IV.A.1.a of the MTD Order). Defendants thus were on notice of Rueda's argument that denial of her DACA application based solely on her familial associations violated both her rights to substantive due process and equal protection.11 The Court addresses Rueda's substantive due process arguments before turning to her equal protection claim.
The fundamental right of familial association has appeared in different contexts. See Keates v. Koile, 883 F.3d 1228, 1235 (9th Cir. 2018) (noting that the right to familial association relies variously on the Fourteenth, First, and Fourth Amendments). In the context of the right of family members to live together in one household, the Supreme Court held that a housing ordinance restricting habitation of a dwelling to single families of only immediate relatives violated the “sanctity of the family,” which falls within the “full scope of the liberty guaranteed by the Due Process Clause.” Moore v. City of E. Cleveland, 431 U.S. 494, 502–04, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977). Although the Court cautioned that appropriate limits on substantive due process are necessary, it found that “bonds uniting the members of the nuclear family,” as well as extended family, are “deeply rooted in this Nation's history and tradition.” Id. at 503–04, 97 S.Ct. 1932. The Supreme Court has also found family relationships further rooted in the First Amendment, which “protects those relationships, including family relationships, that presuppose ‘deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life.’ ” Bd. of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 545, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 619–20, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)). In light of the importance of family relationships as an “intrinsic element of personal liberty,” Roberts, 468 U.S. at 620, 104 S.Ct. 3244, courts have also described a liberty interest in familial companionship. For example, in Curnow By & Through Curnow v. Ridgecrest Police, 952 F.2d 321 (9th Cir. 1991), the Ninth Circuit stated that a “child's interest in her relationship with a parent is sufficiently weighty by itself to constitute a cognizable liberty interest,” citing an earlier Ninth Circuit opinion finding that parents had a due process right to the companionship and society of their 22-year-old son. Id. at 325 (citing Smith v. City of Fontana, 818 F.2d 1411, 1419 (9th Cir. 1987), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999)). Children have a similar interest in associating with their parents, free from official deprivation. See Lemire v. California Dep't of Corr. & Rehab., 726 F.3d 1062, 1075 (9th Cir. 2013) (“Parents and children may assert Fourteenth Amendment substantive due process claims if they are deprived of their liberty interest in the companionship and society of their child or parent through official conduct.”). This right to familial association also applies to the relationship between adult children and their parents. See Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1106 (9th Cir. 2014). This associational interest includes, for example, a father's right not to be terminated from employment due to the choices of his son. Kipps v. Caillier, 205 F.3d 203, 206 (5th Cir. 2000).
A separate category of cases establishes that government action “directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice.” Plyler v. Doe, 457 U.S. 202, 220, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). In Plyler, the Supreme Court has held that a state cannot deprive children of public education due to their parents’ or their own undocumented status. Id. It relied upon a case invalidating classifications that burden children born out of wedlock for the sake of punishing the illicit relations of their parents, stating:
“[V]isiting ․ condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the ․ child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the ․ child is an ineffectual—as well as unjust—way of deterring the parent.”
Id. (quoting Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972) (footnote omitted) (ellipses in original)).
Indeed, even outside the familial context, in American jurisprudence, “guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity ․, that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment.” Scales v. United States, 367 U.S. 203, 224–25, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961). In short, “the doctrine of ‘guilt by association’ ․ has no place here.” Elfbrandt v. Russell, 384 U.S. 11, 19, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966).
In light of these precedents underscoring the fundamental nature of the parent-child relationship and the bedrock principle of personal guilt, the Court concludes that the Constitution protects the right of a child to associate with a parent without being tainted by the parent's crime absent her own participation in it, and that this right is implicated in this case. The administrative record indicates that Rueda's DACA application was denied because she “has lived into adulthood” at her parents’ addresses and “it is very likely that she is aware of her parents’ criminal activities and is a beneficiary of the profits from their TCO.” CAR 0392. While specifying that “there is no evidence that requestor has ever been directly involved in her parents’ [alleged criminal] operation,” the USCIS officer explicitly noted that “CBP classifies her as an associate to the Rueda TCO by virtue of familial relation.” CAR 0123-24 No other reason was identified for denying Rueda's application, such as a finding that she was a threat to public safety or that she herself had engaged in some wrongdoing. Defendants characterize this decision as appropriate consideration of “the facts of Ms. Rueda's close ties to her family's criminal organization” and that she “made a choice, as an adult, to live in a stash house with large quantities of drugs and drug money, along with several members of a criminal drug organization, some of whom happen to be related to her.” Defs’ MSJ at 14; Defs.’ Reply to MSJ at 17. But there is no evidence in the record indicating that Rueda was aware of the drugs and cash allegedly belonging to Rueda's father and uncle, or that Rueda made any choice besides the choice to live from childhood to young adulthood in her parents’ home.
“[I]n order to state a substantive due process claim, plaintiffs must allege conduct that “shock[s] the conscience and offend[s] the community's sense of fair play and decency.” ” Regents, 908 F.3d at 518, rev'd on other grounds, ––– U.S. ––––, 140 S. Ct. 1891, 207 L.Ed.2d 353 (2020) (quoting Sylvia Landfield Tr. v. City of Los Angeles, 729 F.3d 1189, 1195 (9th Cir. 2013)); see also Ms. L. v. U.S Immigration & Customs Enf't, 302 F. Supp. 3d 1149, 1165 (S.D. Cal. 2018); Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1079 (9th Cir. 2011); Pl.’s MSJ at 26. The Supreme Court has emphasized that the context of any official conduct must be considered in determining whether conduct shocks the conscience, and “conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.” Cnty. Of Sacramento v. Lewis, 523 U.S. 833, 849–53, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).
There is no doubt here that Defendants intended to deny Plaintiff's DACA application due to her association with her parents. Defendants have not proffered any other state interest justifying their actions. They do not deny that there is no evidence of Rueda's personal wrongdoing, or even of her knowledge of her father's and uncle's alleged criminal activity. Instead, they admit that they seek to deny benefits to an adult child who may benefit from her parents’ alleged violation of the law. See Defs.’ Reply at 17. A similar logic applies, however, to all successful DACA applicants: teenagers or young adults brought to the United States unlawfully as children by their parents. Given the vast majority of DACA applications granted, Rueda's unique denial indicates that she was tainted by her familial relationships untethered to any wrongdoing on her part, which would be both “illogical and unjust,” given “the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing.” Plyler, 457 U.S. at 220, 102 S.Ct. 2382 (citation and internal quotation marks omitted).
In short, Defendants have visited the sins of the parent upon the daughter. Defendants have burdened Rueda's fundamental rights in a manner that is “arbitrary, or conscience shocking, in a constitutional sense.” Lewis, 523 U.S. at 847, 118 S.Ct. 1708 (citation omitted). No disputed facts material to this claim preclude granting summary judgment for Rueda and denying summary judgment for Defendants on her claim that agency action violated her Fifth and First Amendment familial association rights. Rueda's MSJ, as it relates to Count Two—her substantive due process claim under the Fifth and First Amendments—is GRANTED, and Defendants’ MSJ as it relates to the same claim is DENIED.
D. Fifth Amendment Equal Protection
Although the Fifth Amendment does not contain an equal protection clause, courts have long held it to “forbid discrimination that is ‘so unjustifiable as to be violative of due process.’ ” Weinberger v. Wiesenfeld, 420 U.S. 636, 638, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975) (quoting Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964)); see also Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954) (“[T]he concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive[,]” although “ ‘equal protection of the laws’ is a more explicit safeguard of prohibited unfairness than ‘due process of law[.]’ ”) (citation omitted).
Rueda's equal protection argument is based not on any discriminatory classification, but on Defendants’ impingement on her fundamental right to familial association, to which she argues the Court must apply strict scrutiny. See Pl.’s MSJ at 17; Pl.’s Reply to MSJ at 13 [Doc. # 74] (“[Rueda] bases her equal protection argument on proof that Defendants violated her constitutional rights by denying her DACA because she chose to live with her parents.”); Honolulu Wkly., Inc. v. Harris, 298 F.3d 1037, 1047 (9th Cir. 2002) (“We apply strict scrutiny if the governmental enactment ‘targets a suspect class or burdens the exercise of a fundamental right.’ ” (citation omitted)); Denney v. Drug Enf't Admin., 508 F. Supp. 2d 815, 836 (E.D. Cal. 2007) (“Since plaintiff has pled a claim that he has been discriminated against in a way that impacts a fundamental right, the court applies strict scrutiny to the challenged government action.”). In opposing her argument, Defendants appear to misconstrue her claim as implicating a right to “family unity,” rather than engaging Rueda's actual argument that she should not be discriminated against based on her parents’ actions and for exercising her fundamental liberty interest in her familial relationships. See Defs.’ Opp. at 20 (citing De Mercado v. Mukasey, 566 F.3d 810, 816 n.5 (9th Cir. 2009) (immigrants have no “right to family unity” to reside in the United States “simply because other members of their family are citizens or lawful permanent residents”)).
Instead, as was clear from Rueda's pleading, the Court's MTD Order, and Rueda's MSJ, Rueda's equal protection claim explicitly rests on the First and Fifth Amendments’ protection of the right to familial relationships. Courts have applied heightened scrutiny to such claims. For example, the Supreme Court held that “when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.” Moore, 431 U.S. at 499, 97 S.Ct. 1932; see also Zablocki v. Redhail, 434 U.S. 374, 388, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (“When a statutory classification significantly interferes with the exercise of a fundamental right [in this case, the right to marry], it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.”). More recently, however, courts have applied strict scrutiny, “the most exigent level of inquiry,” to government action that “substantially interferes with close familial relationships.” Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of New York, 502 F.3d 136, 143 (2d Cir. 2007).
Here, the Court need not decide whether strict scrutiny is necessary, because even under the slightly less demanding scrutiny described in Moore and Zablocki, Defendants have not identified an “important” government interest in denying Rueda's DACA application due to the fact that she lived with her parents in an apartment where criminal activity occurred. It bears repeating that the administrative record did not contain evidence that Rueda was aware of her parents’ criminal activities, CAR 0392, and the USCIS officer stated in her Request for Adjudicative Guidance that “there is no evidence that requestor has ever been directly involved in her parents’ [alleged criminal] operation,” CAR 0123-24. Without an important, much less compelling, government interest in burdening Rueda's fundamental right to associate with her own parents, Defendants’ denial of her DACA application based solely on her familial association violates the Fifth Amendment's guarantee of equal protection.
No triable facts material to this claim remain and even viewing the evidence in the light most favorable to Defendants does not alter this assessment. The Court thus GRANTS Rueda's MSJ and DENIES Defendants’ MSJ as to her Count Two equal protection claim.12
In light of the foregoing, the Court issues the following rulings:
1. Plaintiff's MSJ is GRANTED on Count Two of her FAC based on Defendants’ violation of her First and Fifth Amendment rights to familial association and Fifth Amendment right to equal protection;
2. Defendants’ MSJ is GRANTED as to Count Eight for declaratory judgment; and
3. The Cross-MSJs are DENIED in all other respects.
It is hereby ORDERED that USCIS will fully and appropriately evaluate Plaintiff's DACA application in accordance with the DACA Memo, DACA SOP, and the APA, without unconstitutional consideration of Plaintiff's familial associations. Within 14 days from the date of this Order, the parties shall file a Joint Status Report regarding how they wish to proceed on any remaining claims and, if necessary, propose new final pretrial conference and trial dates.
IT IS SO ORDERED.
1. Defendants DHS, USCIS, ICE, CBP, USBP, Cissna, and Baran are referred to herein as the “Federal Agency Defendants,” whereas Defendants Bolton and Brightman are referred to as “the Individual Defendants.” Tracy Renaud is automatically substituted for Cuccinelli as a party in accordance with Federal Rule of Civil Procedure 25(d). Renaud serves as Senior Official Performing the Duties of the Director of USCIS. At the time the MSJ was briefed, Kenneth T. Cucinelli was the Senior Official Performing the Duties of the Director of USCIS. See Defs.’ MSJ at 8 n.1 [Doc. # 69]. There is no information before the Court regarding the current Director of USCIS California Service Center.On August 28, 2019, the Court denied in part and granted in part the Individual Defendants’ motion to dismiss, finding they were not entitled to qualified immunity on Rueda's Fourth Amendment claim but were entitled to qualified immunity on her First Amendment claim. [Doc. # 48.] The Individual Defendants appealed the denial of qualified immunity on the Fourth Amendment claim. The Ninth Circuit reversed the Court's decision and remanded it for consideration of whether leave to amend the Complaint should be granted. [Doc. # 87.] On December 11, 2020, the parties filed a Joint Status Report noting that Rueda does not seek to amend her Complaint as against the Individual Defendants, and no further action is required against the Individual Defendants until a final Judgment is entered. [Doc. # 90.]
2. All page references herein are to page numbers inserted by the CM/ECF system.
3. There is some confusion surrounding which parties are involved in these cross-MSJs. Plaintiff's MSJ states that she is moving for summary judgment on Count Two against Defendants DHS, USCIS, ICE, CBP, and USBP, but the only claim in Plaintiff's FAC against CBP and USBP is Count Eight, for declaratory judgment. See FAC at ¶ 204. Count Two is brought against DHS, USCIS, ICE, Cuccinelli, and Baran—notably, not CBP and USBP—but Plaintiff fails to mention Cuccinelli or Baran in her MSJ. See FAC at ¶ 139; Pl.’s MSJ at 2. Defendants’ MSJ, on the other hand, is filed on behalf of all of the Federal Agency Defendants: DHS, USCIS, ICE, CBP, USBP, Cucinelli, and Baran. In light of Rueda's request that judgment be entered in her favor on Count Two, the Court construes Rueda's MSJ as brought also against the heads of USCIS and USCIS California Service Center in their official capacities.
4. In challenges to agency actions as arbitrary or capricious, a “ ‘strong showing of bad faith or improper behavior’ ” justifies consideration of extra-record evidence. Dep't of Commerce v. New York, ––– U.S. ––––, 139 S. Ct. 2551, 2574, 204 L.Ed.2d 978 (2019) (quoting Overton Park, 401 U.S. at 420, 91 S.Ct. 814). The extra-record evidence itself may show the bad faith or improper behavior necessary to justify the evidence's consideration. See id. (finding the order of extra-record discovery to be “premature” but “ultimately justified in light of the expanded administrative record”).
6. In her declaration supporting her DACA application, Rueda asserted that her mother works at a bakery and helped her pay for her education and that money is tight for her family. CAR 0092 (Rueda DACA Decl. at ¶ 3). There is no evidence that Rueda is also supported by her father other than an inference that he, along with other family members, pays rent on the Boyle Heights apartment. See DSUF at ¶ 2.
7. She asserts that she had not previously applied due to lack of funds for the application fee. Rueda Supp. Decl. at ¶ 13.
8. Based on the constitutional doubt doctrine discussed in its earlier Order, the Court declines to engage with Rueda's argument that Section 1252(g) does not apply because her claim does not implicate any of the three actions covered by that statute. See Pl.’s Opp. to Defs.’ MSJ at 12; MTD Order at 9–11.
9. The Supreme Court vacated the Second Circuit's finding of habeas jurisdiction in Ragbir in light of Department of Homeland Security v. Thuraissigiam, ––– U.S. ––––, 140 S. Ct. 1959, 207 L.Ed.2d 427 (2020). Thuraissigiam held that a related section of the INA, section 1252(e), which limits judicial review of asylum applications in habeas corpus proceedings, did not violate the Suspension Clause. Pham v. Ragbir, ––– U.S. ––––, 141 S. Ct. 227, 208 L.Ed.2d 1 (2020). Thuraissigiam did not address section 1252(g), the jurisdictional statute at issue here.
10. The Court dismissed Plaintiff's procedural due process claims because “ ‘[d]iscretionary immigration relief gives rise to no substantive interest protected by the Due Process Clause.’ ” MTD Order at 22 (quoting Mendez-Garcia v. Lynch, 840 F.3d 655, 669 (9th Cir. 2016)) (internal quotation marks omitted).
11. In their Opposition to Rueda's MSJ and at the hearing, Defendants requested another opportunity to brief the substantive due process argument. The Court concludes that additional briefing is not necessary for two reasons. First, the equal protection and substantive due process analyses in this action are intertwined, and Defendants had the opportunity to address the issue. In fact, Defendants’ Reply in support of their MSJ addresses Rueda's arguments regarding her First and Fifth Amendment fundamental rights to familial association. See Defs.’ Reply at 16-17. Second, Defendants asserted at the hearing that they would not raise new arguments and would “take the same position as on the equal protection claim that ․ [Rueda] just [has not] shown that ․ the decision itself is not based on Ms. Rueda's decision to live with her family.” June 19, 2020 Hearing Tr. at 13:13-21 [Doc. # 85]. The Court sees no reason to retread that ground in supplemental briefing.
12. Plaintiff's FAC also asserts a cause of action for declaratory judgment against all Defendants. FAC at ¶ 204. Because Plaintiff did not discuss this claim in her MSJ and did not respond to Defendants’ arguments that declaratory relief does not “serve any purpose if the Court finds for Ms. Rueda on the substantive claims under Count Two,” the Court GRANTS Defendants’ MSJ as to Count Eight for declaratory judgment because it is superfluous. See Defs.’ Opp. at 31–32.
DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
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Docket No: Case No. CV 18-9276 DMG (PLAx)
Decided: April 30, 2021
Court: United States District Court, C.D. California.
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