J.L. et al v. Lee Francis Cissna et al, No. 5:2018cv04914 - Document 142 (N.D. Cal. 2019)
Court Description: ORDER DENYING DEFENDANTS' MOTION TO DISMISS. Re: Dkt. No. 91 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 3/15/2019)
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J.L. et al v. Lee Francis Cissna et al Doc. 142 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 United States District Court Northern District of California 11 12 J.L., M.D.G.B., J.B.A., and M.G.S., on behalf of themselves and all others similarly situated, Plaintiffs, 13 v. 16 ORDER DENYING DEFENDANTS’ MOTION TO DISMISS Re: Dkt. No. 91 14 15 Case No.18-cv-04914-NC LEE FRANCIS CISSNA, Director, United States Citizenship and Immigration Services, et al., Defendants. 17 18 19 20 21 22 23 24 25 26 27 Plaintiffs are young immigrants seeking Special Immigrant Juvenile (“SIJ”) status. They allege that defendants—the United States Department of Homeland Security (“DHS”), the United States Citizenship and Immigration Services (“USCIS”), and individual officers in charge of those departments—adopted an unlawful policy that prevents them from obtaining that status. The Court previously granted Plaintiffs’ motion for preliminary injunction and motion for class certification. See Dkt. Nos. 49, 112. Defendants now move to dismiss the amended complaint, arguing that they complied with the Administrative Procedure Act, did not violate due process, and the Court lacks subject matter jurisdiction. See Dkt. No. 91. For the reasons explained below, the Court DENIES Defendants’ motion to dismiss. 28 Dockets.Justia.com 1 I. 2 A. Statutory and Factual Background The statutory and factual background is well-known to the parties. Because that 3 4 background has not changed since the Court’s February 1, 2019, order granting class 5 certification, the Court will not recount the SIJ statutory framework or Plaintiffs’ factual 6 allegations here. See Dkt. No. 112; see also Dkt. No. 49. 7 United States District Court Northern District of California Background B. Procedural Background 8 On October 24, 2018, the Court granted Plaintiffs’ motion for a preliminary 9 injunction and enjoined Defendants from denying SIJ status on the grounds that California 10 Probate Courts do not have jurisdiction to issue SIJ guardianship orders. See Dkt. No. 49. 11 Plaintiffs amended their complaint on November 20, 2018, alleging claims for: (1) 12 violation of the Fifth and Fourteenth Amendment Due Process Clause; (2) violation of the 13 Immigration and Nationality Act, 8 U.S.C. § 1101, pursuant to the Administrative 14 Procedure Act (“APA”), 5 U.S.C. § 706; (3) arbitrary and capricious actions, 5 U.S.C. 15 § 706; (4) failure to conduct notice-and-comment rulemaking, 5 U.S.C. § 553; (5) violation 16 of the Due Process Clause under the APA, 5 U.S.C. § 706; and (6) declaratory judgment. 17 See Dkt. No. 70 (“FAC”). Plaintiffs then moved for class certification under Federal Rule of Civil Procedure 18 19 23(b)(2). See Dkt. No. 71. The Court certified a class of SIJ petitioners with California 20 Probate Court guardianship orders on February 1, 2019. See Dkt. No. 112 at 20. 21 While Plaintiffs’ motion for class certification was pending, Defendants moved to 22 dismiss the first amended complaint. See Dkt. No. 91. That motion is now fully briefed 23 (see Dkt. Nos. 109, 115) and was heard on March 6, 2019 (see Dkt. No. 136). All parties 24 have consented to the jurisdiction of a magistrate judge. See Dkt. Nos. 14, 26, 141. 25 II. 26 Legal Standard A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal 27 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). On a 28 motion to dismiss, all allegations of material fact are taken as true and construed in the 2 United States District Court Northern District of California 1 light most favorable to the non-movant. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337– 2 38 (9th Cir. 1996). The Court, however, need not accept as true “allegations that are 3 merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 4 Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint need 5 not allege detailed factual allegations, it must contain sufficient factual matter, accepted as 6 true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 7 550 U.S. 544, 570 (2007). A claim is facially plausible when it “allows the court to draw 8 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft 9 v. Iqbal, 556 U.S. 662, 678 (2009). 10 In contrast, the Court may consider materials beyond the allegations in the 11 complaint on a motion to dismiss for lack of subject matter jurisdiction. See Robinson v. 12 U.S., 586 F.3d 683, 685 (9th Cir. 2009). “[N]o presumptive truthfulness attaches to 13 plaintiff’s allegations” and the Court “may hear evidence regarding jurisdiction and 14 resolv[e] factual disputes where necessary.” Id. (internal quotation marks and citations 15 omitted). 16 III. Discussion 17 18 A. Final Agency Action Under the APA, courts can review agency actions “so long as the decision 19 challenged represents a ‘final agency action for which there is no other adequate remedy in 20 court.’” W. Radio Serv. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1122 (9th Cir. 2009) 21 (quoting Webster v. Doe, 486 U.S. 592, 599 (1988)); see also 5 U.S.C. § 704. 22 An agency action is final if (1) it “marks the consummation of the agency’s 23 decision-making process—it must not be of a merely tentative or interlocutory nature” and 24 (2) is “one by which rights or obligations have been determined, or from which legal 25 consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (internal 26 citations and quotations omitted). The Ninth Circuit approaches the finality requirement 27 “in a pragmatic and flexible manner.” Havasupai Tribe v. Provencio, 906 F.3d 1155, 1163 28 (9th Cir. 2018) (internal quotations omitted). 3 1 2 because their SIJ petitions remain pending. See Dkt. No. 91 at 19. As a result, according 3 to Defendants, there has been no final agency action as to those plaintiffs and the Court 4 lacks subject matter jurisdiction to review their claims. Id. 5 United States District Court Northern District of California Defendants argue that plaintiffs M.G.S., M.D.G.B., and J.B.A. must be dismissed The Court disagrees. As explained in the Court’s prior orders, Plaintiffs do not 6 challenge USCIS’s adjudication of each individual SIJ petition. See, e.g., Dkt. No. 49 at 7 21; Dkt. No. 112 at 15. Plaintiffs instead challenge Defendants’ adoption of a new 8 requirement for SIJ eligibility. Defendants’ reliance on Spencer Enters., Inc. v. U.S., 345 9 F.3d 683 (9th Cir. 2003) and Abboud v. I.N.S., 140 F.3d 843 (9th Cir. 1998) is not 10 persuasive. Both Spencer and Abboud challenged specific adjudications, not an underlying 11 government policy. See Spencer, 345 F.3d at 686 (challenging INS’s denial of plaintiff’s 12 immigrant investor petition); Abboud, 140 F.3d at 845 (challenging INS’s denial of 13 plaintiff’s application for an immigrant visa). 14 Under the first Bennett prong, “the challenged agency action must represent the 15 consummation of the agency’s decisionmaking process.” Or. Natural Desert Ass’n v. U.S. 16 Forest Serv., 465 F.3d 977, 984 (9th Cir. 2006). It “must not be of a merely tentative or 17 interlocutory nature.” Bennett, 520 U.S. at 178. Instead, the court must determine whether 18 the agency “has rendered its last word on the matter.” Or. Natural Desert, 465 F.3d at 977 19 (quoting Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 478 (2001)). 20 As the Court explained in its October 24, 2018, order granting a preliminary 21 injunction, USCIS’s revision of its Consolidated Handbook of Adjudication Procedures 22 (“CHAP”) and its subsequent implementation of the new SIJ requirement satisfies the first 23 Bennett requirement. See Dkt. No. 49 at 22. USCIS’s legal determination that the SIJ 24 statute requires state courts to have the power to actually reunify petitioners with their 25 parents marks the consummation of its decision-making process. The administrative 26 record shows that USCIS’s Office of Chief Counsel promulgated legal guidance regarding 27 the SIJ statute in February 26, 2018. See Dkt. No. 133 (“CAR”) at 103–04. That guidance 28 was then adopted and published in the CHAP. See CAR 106, 107–18. 4 United States District Court Northern District of California 1 Navajo Nation v. United States Dept. of Interior, 819 F.3d 1084, 1089 (9th Cir. 2 2016) is directly on point. In Navajo Nation, the National Park Service determined that 3 federal law applied to assorted Native American remains and archaeological items and 4 started an inventory process to provide for the ultimate disposition of those items. The 5 Ninth Circuit held that “[the Park Service’s] legal determination that [federal law] 6 appl[ied] to the remains and objects . . . marked the consummation of the agency’s 7 decisionmaking process as to that issue.” Id. at 1091 (internal quotation marks omitted). 8 There, as here, the underlying dispute in the district court was not the agency’s application 9 of the law to specific cases. See id. at 1092. Because the dispute was over whether the 10 Park Service properly applied federal law, the agency’s legal determination was a 11 justiciable final action. Id. 12 Defendants’ characterization of USCIS’s actions as mere “guidance” or 13 “centralization” does not change the analysis. In Alaska v. United States E.P.A., 244 F.3d 14 748, 750 (9th Cir. 2001), the Ninth Circuit found irrelevant that the EPA had not actually 15 commenced enforcement actions against the plaintiffs. It was enough that the enforcement 16 orders were “unalterable.” Id.; see also Or. v. Ashcroft, 368 F.3d 1118, 1147 (9th Cir. 17 2004) (Wallace, J., concurring in part) (“nonbinding, pre-enforcement, interpretive rule” 18 may satisfy the first Bennett requirement). More recently, in California Sea Urchin 19 Commission v. Bean, 828 F.3d 1046, 1049–50 (9th Cir. 2016), the Ninth Circuit held that 20 both the Fish and Wildlife Service’s establishment of failure criteria and its application of 21 that criteria could satisfy the consummation requirement. 22 Defendants further argue that Plaintiffs fail to satisfy the first Bennett prong because 23 Plaintiffs have not pointed to a “formal procedure” for changing the CHAP. Dkt. No. 91 at 24 22. This argument is backwards. The APA specifically requires agencies to follow certain 25 formal procedures when engaging in substantive rulemaking. See 5 U.S.C. § 553. 26 Agencies are not required to follow those procedures when engaging in interpretive 27 rulemaking. Id. But whether those procedures apply is a question of law suitable for 28 judicial review. Defendants cannot avoid review by unilaterally claiming that its 5 1 rulemaking was merely a clarification of the law and pointing to its lack of a formal 2 process as proof. United States District Court Northern District of California 3 Likewise, Defendants’ related argument that its adoption of the new SIJ 4 requirement is interpretive and therefore not a final agency action “puts the cart before the 5 horse.” See Faith Int’l Adoptions v. Pompeo, 345 F. Supp. 3d 1314, 1325 (W.D. Wash. 6 2018). “To allow [the] State to avoid review of its action by simply claiming that its 7 interpretation was correct would constitute an end-run around the judicial process, which 8 exists precisely to assess such claims.” Id. In short, the Court finds that the first Bennett 9 prong is satisfied. 10 The second Bennett prong is satisfied when “rights or obligations have been 11 determined” or “legal consequences will flow” from the agency action. Bennett, 520 U.S. 12 at 178; see also Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 264 (9th Cir. 1990) (final 13 agency action must “impose an obligation, deny a right, or fix some legal relationship”). 14 “[A]n agency action may be final if it has a ‘direct and immediate . . . effect on the day-to- 15 day business’ of the subject party.” Or. Natural Desert, 465 F.3d at 987 (quoting Ukiah 16 Valley, 911 F.2d at 264)). Courts must “consider ‘whether the [action] has the status of 17 law or comparable legal force, and whether immediate compliance with its terms is 18 expected.’” Id. (alteration in original). 19 Oregon Natural Desert Association is instructive. There, the Forest Service issued 20 annual operating instructions to various ranchers wishing to graze their livestock on federal 21 land. See Or. Natural Desert, 465 F.3d at 981. The Ninth Circuit held that the instructions 22 satisfied the second Bennett prong because the Forest Service could “issue a Notice of 23 Non-Compliance” if ranchers failed to comply with the instructions. Id. at 987. “[T]hat 24 [a] violation can prompt the Forest Service to take enforcement action against the non- 25 complying permittee is a show of the [instructions’] ‘legal force’ and the Forest Service’s 26 expectation of ‘immediate compliance with its terms.’” Id. at 988. 27 28 Similarly, in Navajo Nation, the Park Service’s determination that federal law applied to assorted Native American remains and archaeological items satisfied Bennett’s 6 1 second requirement because “its decision to apply [federal law] necessarily determined at 2 least some of the Navajo Nation’s property rights in the remains and objects.” 819 F.3d at 3 1093. The Ninth Circuit further reasoned “that the Park Service’s unexplained decision to 4 apply NAGPRA to the remains and objects necessarily forecloses the Nation’s argument 5 that it has complete ownership of the remains and objects pursuant to its treaty rights.” Id. United States District Court Northern District of California 6 Here, “legal consequences will flow” from USCIS’s determination that California 7 Probate Courts do not have jurisdiction over any SIJ petitioner over the age of 18 seeking a 8 guardianship order under California Probate Code § 1510.1 (see CAR at 112–113). 9 Bennett, 520 U.S. at 178. USCIS determined that “California law does not appear to 10 provide [California Probate] courts with the power and legal authority to make decisions 11 about a parent’s ability to have custody of an individual over 18.” CAR at 113. Because 12 USCIS requires SIJ petitioners to “establish [that] the court had the power and legal 13 authority under state law to place the petitioner under the custody of the parent[,]” 14 USCIS’s legal determination effectively forecloses the possibility that any California 15 petitioner with a guardianship order under § 1510.1 will succeed in their SIJ petition. Id. 16 Finally, Defendants rely on two out-of-circuit cases to argue that their interpretation 17 of the SIJ statute is not a reviewable final action. See Dkt. No. 115 at 10. Neither of these 18 cases considered the Bennett doctrine and proceeded directly to the merits of the 19 challengers’ APA claims. See Perez v. Cissna, 914 F.3d 846, 851 (4th Cir. 2019); 20 Budhathoki v. Nielsen, 898 F.3d 504, 509 (5th Cir. 2018). Accordingly, the Court will not 21 consider those cases here and will discuss them in connection with the merits of Plaintiffs’ 22 claims below. 23 24 25 26 Because Defendants’ adoption of their new SIJ requirement satisfies both prongs of the Bennett test, it is a judicially reviewable final agency action. B. REAL ID Act of 2005 The REAL ID Act of 2005 precludes district courts from “hear[ing] any cause or 27 claim by or on behalf of any alien arising from the decision or action by the Attorney 28 General to commence proceedings, adjudicate cases, or execute removal orders against any 7 United States District Court Northern District of California 1 alien . . . .” 8 U.S.C. § 1252(g). Likewise, § 1252(f)(1) “prohibits federal courts from 2 granting classwide injunctive relief against the operation of §§ 1221 – 123[2].” Jennings 3 v. Rodriguez, --- U.S. ----, 138 S. Ct. 830, 851 (2018) (citing Reno v. American-Arab Anti- 4 Discrimination Comm., 525 U.S. 471, 481 (1999)). Section 1252(f)(1), however, does not 5 affect jurisdiction over statutory claims that “seek to enjoin the operation of the 6 immigration . . . statutes, but to enjoin conduct . . . not authorized by the statutes.” 7 Rodriguez v. Hayes, 591 F.3d 1105, 1120 (9th Cir. 2010), accord Jennings, 138 S. Ct. at 8 851. 9 Neither § 1252(g) nor § 1252(f) apply in this case. Section 1252(g) applies 10 narrowly and does not “refer[] to all claims arising from deportation proceedings.” 11 American-Arab Anti-Discrimination Comm., 525 U.S. at 482. Rather, § 1252(g) only 12 limits the Court’s jurisdiction over Defendants’ decision to “commence proceedings, 13 adjudicate cases, or execute removal orders.” See id.; see also 8 U.S.C. § 1252(g). Here, 14 Plaintiffs challenge Defendants’ allegedly unlawful application of the SIJ statute, not 15 Defendants’ decision to seek their removal, which is beyond the reach of § 1252(g). Cf. 16 Jennings, 138 S. Ct. at 841 (Section 1252(b)(9) does not bar jurisdiction when “[Plaintiffs] 17 are not asking for review of an order of removal; they are not challenging the decision to . . 18 . seek removal; and they are not even challenging any part of the process by which their 19 removability will be determined.”). 20 As to § 1252(f), Defendants construe Plaintiffs’ request for injunctive relief as 21 seeking blanket protection from removal. See Dkt. No. 151 at 16–17. The Court, 22 however, does not read Plaintiffs’ request for relief so broadly. Plaintiffs seek to enjoin 23 Defendants from removing class members on the basis of the challenged conduct, i.e., 24 denying SIJ status because the California Probate Court issued a guardianship order under 25 California Probate Code § 1510.1. See Dkt. No. 109 at 20. In any case, § 1252(f) does not 26 prohibit injunctive relief directed at violations of a statute and that is all that Plaintiffs seek 27 here. See Rodriguez, 591 F.3d at 1120. 28 8 1 United States District Court Northern District of California 2 C. Arbitrary and Capricious Agency Action A court reviews final agency actions under the “arbitrary and capricious” standard 3 of the APA, 5 U.S.C. § 702(2)(A). See Friends of Endangered Species v. Jantzen, 760 4 F.2d 976, 980–81 (9th Cir. 1985). Under the APA, the court “shall” set aside any agency 5 decision that it finds “arbitrary, capricious, an abuse of discretion, or otherwise not in 6 accordance with law.” 5 U.S.C. § 702(2)(A). 7 An agency action is arbitrary and capricious if “the agency has relied on factors 8 which Congress has not intended it to consider, entirely failed to consider an important 9 aspect of the problem, offered an explanation for its decision that runs counter to the 10 evidence before the agency, or is so implausible that it could not be ascribed to a 11 difference in view or the product of agency expertise.” Motor Vehicles Mfrs. Ass’n v. State 12 Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 13 Review under the “arbitrary and capricious” standard is narrow, and the reviewing 14 court “is not to substitute its judgment for that of the agency” and “should uphold a 15 decision of less than ideal clarity if the agency’s path may reasonably be discerned.” 16 F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513–14 (2009). Despite this narrow 17 scope of review, the court’s inquiry must be “searching and careful.” Marsh v. Or. 18 Natural Res. Council, 490 U.S. 360, 378 (1989). Ultimately, “the agency must articulate a 19 rational connection between the facts found and the conclusions made.” Or. Natural Res. 20 Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997) (citing U.S. v. Louisiana-Pac. Corp., 21 967 F.2d 1372, 1376 (9th Cir. 1992)). 22 Defendants contend that their statutory interpretations are reasonable and entitled to 23 deference. See Dkt. No. 91 at 27. According to Defendants, SIJ petitioners must establish 24 that the juvenile court issuing a guardianship order have the authority make the required 25 determination that family reunification is no longer viable. To have that authority, 26 Defendants reason, the juvenile court must have jurisdiction to determine whether a parent 27 could regain custody and to order reunification if warranted. This is so because the state 28 court guardianship order will permanently deprive the parent of their custodial rights. 9 United States District Court Northern District of California 1 Defendants’ interpretation is not reasonable. As a threshold matter, the Court notes 2 that the SIJ regulations are outdated and parts of it are no longer good law. As explained 3 in the Court’s prior orders, Congress amended the SIJ statute in 2008 with the Trafficking 4 Victims Protection Reauthorization Act. See Pub. L. No. 110-457 § 235(d), 122 Stat. 5044 5 (2008). In that statute, Congress explicitly removed the requirement that immigrant 6 juveniles seeking SIJ status must be “deemed eligible by [a juvenile] court for long-term 7 foster care due to abuse, neglect, or abandonment.” Id. § 235(d)(1)(A). Congress replaced 8 that requirement with the condition that the immigrant seeking SIJ status could not be 9 “reunifi[ed] with 1 or both of [her] parents . . . due to abuse, neglect, abandonment, or a 10 similar basis found under state law.” Id. Despite this change, however, the very first 11 section of the SIJ regulation continues to state that “[e]ligible for long-term foster care 12 means that a determination has been made by the juvenile court that family reunification is 13 no longer a viable option.” 8 C.F.R. § 204.11(a). The regulation also continues to tether 14 SIJ eligibility to “ha[ving] been deemed eligible by the juvenile court for long-term foster 15 care.” Id. § 204.11(c)(4). Defendants’ continued reliance on outdated regulations is 16 plainly unreasonable. 17 In response, Defendants argue that the TVPRA merely clarified that SIJ petitioners 18 no longer need to be eligible for long-term foster care. See Dkt. No. 91 at 13; see also 19 CAR 63–64. Defendants maintain that the SIJ regulations’ family reunification 20 requirement continue to have force. Id. But the only mention of a “family reunification” 21 requirement is found in § 204.11(a). See 8 U.S.C. § 204.11(a). That section contains 22 definitions of relevant terms, including a definition of “[e]ligible for long-term foster care” 23 as “a determination has been made by the juvenile court that family reunification is no 24 longer a viable option.” Id. By eliminating the “long-term foster care” requirement, 25 Congress naturally eliminated the definition of a now-defunct term. 26 Even if the TVPRA did not significantly change the law, California Probate Courts 27 have competent jurisdiction to make the required custody determinations. California Code 28 of Civil Procedure § 155(a) states: “[a] superior court has jurisdiction under California law 10 1 to make judicial determinations regarding the custody and care of children within the 2 meaning of the federal Immigration and Nationality Act . . . which includes, but is not 3 limited to, the juvenile, probate, and family court divisions of the superior court.” 4 California law further authorizes its probate courts to find that the SIJ petition was 5 “[l]egally committed to, or placed under the custody of, a state agency or department, or an 6 individual or entity appointed by the court.” Cal. Code Civ. Proc. § 155(b)(1). And 7 California Probate Code § 1510.1 authorizes California Probate Courts to “appoint a 8 guardian of the person for an unmarried individual who is 18 years of age or older, but 9 who has not yet attained 21 years of age” if the petitioner consents. United States District Court Northern District of California 10 Defendants maintain that these statutory grants of jurisdiction are not enough 11 because California law only permits its courts to make factual findings regarding 12 reunification. See Dkt. No. 115 at 14. It is not clear, however, why the reunification 13 finding must be a legal conclusion. As the California Supreme Court recently explained, a 14 reunification finding is inherently factual because it does not “grant . . . parental rights or 15 to order [the parent] to fulfill parental responsibilities.” Bianka M. v. Sup. Ct., 5 Cal. 5th 16 1004, 1021–22 (2018). This reasoning is bolstered by the fact that nothing in the statutory 17 language suggests that the state court must also have the authority to compel reunification. 18 See 8 U.S.C. § 1101(a)(27)(J). Rather, the only legal finding required under the SIJ statute 19 is a finding of dependency or guardianship. See 8 U.S.C. § 1101(a)(27)(J)(i). And 20 California law explicitly authorizes its probate courts to appoint a guardian for SIJ 21 petitioners with their consent. 22 Defendants cite two out-of-circuit cases in support of their position. Setting aside 23 the fact that neither case analyzes California law, both cases are also distinguishable. First, 24 in Budhathoki, the Fifth Circuit held that Texas child support orders did not satisfy the SIJ 25 statute even though those orders found that reunification with at least one of the 26 petitioner’s parents was not viable. 898 F.3d at 515. The Fifth Circuit reasoned that 27 “before a state court ruling constitutes a dependency order [within the meaning of the SIJ 28 statute], it must in some way address custody or at least supervision.” Id. at 513. Texas 11 1 child support orders, however, did no more “than impose a financial obligation on 2 parents.” Id. Thus, SIJ petitioners could not rely on those orders to obtain SIJ status. Id. In contrast, California guardianship orders address custody or supervision. See Cal. United States District Court Northern District of California 3 4 Prob. Code § 2351(a). Defendants correctly note that guardians appointed under 5 California Probate Code § 1510.1 are severely limited in what decisions they can make for 6 the petitioner. See id. § 1510.1(c) (“This section does not authorize the guardian to 7 abrogate any of the rights that a person who has attained 18 years of age may have as an 8 adult under state law . . . without the ward’s express consent.”). But § 1510.1(c) does not 9 alter the fact that guardians have legal custody of the petitioner; that section speaks to the 10 petitioner’s personal rights, not his or her legal status. Id.; see also id. § 2351(a) (“the 11 guardian or conservator . . . has the care, custody, and control of, and has charge of the 12 education of, the ward . . . This control shall not extend to personal rights retained by the 13 conservatee . . . unless specifically limited by court order.”) (emphasis added). Of course, 14 if a guardian appointed under § 1510.1 can effectively make no decisions for the petitioner 15 whatsoever, that may be strong evidence that the guardianship order is not bona fide. See 16 8 U.S.C. § 1101(a)(27)(J)(iii) (Secretary of Homeland Security must “consent[] to the 17 grant of special immigrant juvenile status . . .”). This does not mean, however, that 18 California Probate Courts are unable to enter valid guardianship orders for SIJ petitioners 19 or that all guardianship orders entered under § 1510.1 are invalid. Perez v. Cissna, 914 F.3d 846, 856 (4th Cir. 2019) is similarly distinguishable. 20 21 There, an SIJ petitioner used a temporary custody order to apply for SIJ status. Id. at 850. 22 That order, however, did not state “that the finding related to reunification was intended to 23 last to the age of majority”1 and “was simply to preserve the status quo.” Id. at 856. 24 Guardianship orders under § 1510.1, however, are not temporary.2 25 26 27 28 1 In Perez, the age of majority was relevant because the parties agreed that the state court did not have jurisdiction over the petitioner once he turned 18. Id. at 850. 2 Perez was decided by a divided panel. The dissent opined that the “plain and ordinary meaning” of “custody” includes no temporal limits. Perez, 914 F.3d at 862–63 (King, J., dissenting). Because there was no evidence that Congress sought to exclude temporary custody orders, the dissent concluded that USCIS’s decision was unlawful. See id. at 863. 12 In sum, Defendants’ interpretation of the SIJ statute reads in an additional 1 2 requirement. Because that interpretation is contrary to federal and California law, 3 Plaintiffs have stated a claim. 4 D. The APA requires a federal agency to follow prescribed notice and comment 5 6 procedures before promulgating substantive rules. See 5 U.S.C. § 553. Agencies must 7 publish a “[g]eneral notice of proposed rule making . . . in the Federal Register” and “give 8 interested persons an opportunity to participate in the rule making . . . .” Id. §§ 553(b), (c). 9 Those procedures do not apply to “interpretive rules, general statements of policy, or rules 10 United States District Court Northern District of California Notice-and-Comment Rulemaking of agency organization, procedure, or practice.” Id. § 553(b)(A). 11 Citing § 552, Defendants argue that they have complied with the APA because their 12 Policy Manual is available to the public. See Dkt. No. 32. However, Plaintiffs do not take 13 issue with Defendants’ compliance with § 552. Plaintiffs’ notice-and-comment claim 14 arises under § 553. See FAC ¶ 103. And, as explained in the Court’s prior order, 15 Defendants’ current interpretation of the SIJ statute, crystallized for the first time in its 16 February 26, 2018, legal guidance (see CAR 103–04) and the updated CHAP (see id. at 17 107–118), constitutes a substantive rule subject to the notice-and-comment procedures of 18 § 553.3 See Dkt. No. 49 at 17–20. 19 E. Fifth and Fourteenth Amendment Due Process “The Due Process Clause of the Fourteenth Amendment imposes procedural 20 21 constraints on governmental decisions that deprive individuals of liberty and property 22 interests.” Nozzi v. Hous. Auth. of City of Los Angeles, 806 F.3d 1178, 1190 (9th Cir. 23 24 25 26 27 28 Elsewhere in Defendants’ motion, they argue that their interpretation of the SIJ statute is not subject to the APA’s requirements because USCIS’s pre-2018 adjudications granting SIJ petitions supported by § 1510.1 guardianship orders were simply erroneous. See Dkt. No. 91 at 20; see also Dkt. No. 115 at 9 (citing R.L. Inv. Ltd. Partners v. I.N.S., 86 F. Supp. 2d 1014, 1024–25 (D. Haw. 2000), aff’d 273 F.3d 874 (9th Cir. 2001)). Thus, Defendants argue, those unpublished, prior adjudications are non-precedential. Id. Even if this were true, however, the fact remains that Defendants’ current interpretation of the SIJ statute was put into practice for the first time in 2018. This interpretation is a substantive rule not authorized by the SIJ statute. Defendants must therefore comply with the APA’s noticeand-comment procedures. 13 3 1 2015). Thus, the government violates procedural due process when (1) the plaintiff has a 2 protected property or liberty interest; and (2) the government fails to provide adequate 3 procedural safeguards. Id. at 1191, 1192. United States District Court Northern District of California 4 Here, Defendants only argue that Plaintiffs do not have a protectable liberty or 5 property interest in SIJ classification because SIJ classification does not confer any 6 benefits and SIJ relief is discretionary. See Dkt. No. 91 at 33. 7 “The property interests that due process protects extend beyond tangible property 8 and include anything to which a plaintiff has a ‘legitimate claim of entitlement.’” Nozzi, 9 806 F.3d at 1190 (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569– 10 70 (1972)). “Property interests . . . are created and their dimensions are defined by existing 11 rules or understandings that stem from an independent source such as state law-rules or 12 understandings that secure certain benefits . . . .” Roth, 408 U.S. at 577. “Although a 13 benefit is not a protected entitlement if government officials may grant or deny it in their 14 discretion, a legitimate claim of entitlement may exist where there are rules or mutually 15 explicit understandings that support [a plaintiff’s] claim of entitlement to the benefit . . . .” 16 Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 514 (9th Cir. 17 2018) (internal citations and quotation marks omitted). 18 Here, SIJ status confers a large swath of various benefits that may constitute a 19 protectable property interest. Cf. Ressler v. Pierce, 692 F.2d 1212, 1215–16 (9th Cir.1982) 20 (“In addition, [the plaintiff] has a constitutionally protected ‘property’ interest in Section 8 21 benefits by virtue of her membership in a class of individuals whom the Section 8 program 22 was intended to benefit.”). For example, SIJ designees are exempt from a variety of 23 grounds for removal, such as “being found to be a ‘public charge,’ lacking a ‘valid entry 24 document,’ or having ‘misrepresented a material fact’—while seeking admission into the 25 United States.” Osorio-Martinez v. Attorney General U.S.A., 893 F.3d 153, 171 (3d Cir. 26 2018) (citing 8 U.S.C. §§ 1182(a), 1255(h)(2)(A)). SIJ designees are also granted access 27 to federally-funded education and preferential status for employment-based green cards. 28 Id. (citing 8 U.S.C. §§ 1232(d)(4)(A), 1153(b)). 14 Whether Plaintiffs have a legitimate claim of entitlement to SIJ classification, 1 2 however, presents a closer question. The SIJ statute provides that the Secretary of 3 Homeland Security must “consent[] to the grant of special immigrant juvenile status . . .” 4 8 U.S.C. § 1101(a)(27)(J)(iii). At least one court has reasoned that this consent 5 requirement makes SIJ classification discretionary. See Yu v. Brown, 92 F. Supp. 2d 1236, 6 1252 (D.N.M. 2000) (“[A]pplicants must . . . seek a favorable exercise of INS discretion. 7 This shift from non-discretionary to discretionary relief has certainly impaired the legal 8 rights possessed by [petitioners] . . . .”). On the other hand, the SIJ regulations prescribe a series of “rules or mutually United States District Court Northern District of California 9 10 explicit understandings that support [a plaintiff’s] claim of entitlement to the benefit . . .” 11 Perry v. Sindermann, 408 U.S. 593, 601 (1972). In particular, the SIJ regulations state 12 that “[a]n alien is eligible for classification as a special immigrant under section 13 101(a)(27)(J) of the Act if the alien” meets all six eligibility criteria. 8 C.F.R. § 204.11(c). 14 Similarly, USCIS’s policy manual states that “USCIS generally consents to the grant of 15 SIJ classification when the order includes or is supplemented by a reasonable factual basis 16 for all of the required findings.” CAR at 90 (emphasis added). Plaintiffs have plausibly alleged that they have a protected property interest in SIJ 17 18 status. Whether the Secretary’s consent function is truly discretionary or if it is strictly 19 controlled by a set of rules or mutually explicit understandings raises questions of fact that 20 cannot be resolved at this stage of the proceedings. Cf. Regents of the Univ. of Cal., 908 21 F.3d at 515 (“All these points might have revealed a question of fact as to whether a 22 mutually explicit understanding of presumptive renewal existed—thereby avoiding 23 dismissal on the pleadings—if plaintiffs were bringing a claim that, for example, their 24 individual DACA renewals were denied for no good reason.”). 25 /// 26 /// 27 /// 28 /// 15 1 IV. Conclusion 2 For the foregoing reasons, the Court DENIES Defendants’ motion to dismiss. 3 IT IS SO ORDERED. 4 5 6 7 Dated: March 15, 2019 _____________________________________ NATHANAEL M. COUSINS United States Magistrate Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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