                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA



 ANSLEY DAMUS, et al.,

          Plaintiffs,
                 v.                                        Civil Action No. 18-578 (JEB)
 KIRSTJEN M. NIELSEN, et al.,

          Defendants.


                                   MEMORANDUM OPINION

        Does the Department of Homeland Security have a policy or practice of detaining

asylum-seekers in violation of its own guidance or regulations? The Court issued an Opinion on

July 2, 2018, finding a likelihood that Defendants do have such a policy, leading it to enter a

preliminary injunction. The Opinion did not, however, rule on DHS’s Motion to Dismiss, which

was filed amid briefing on preliminary relief. The parties now ask the Court to resolve that

Motion.

        As the Government has acknowledged, most of its arguments in favor of dismissal of

Plaintiffs’ Administrative Procedure Act claims are foreclosed by the prior Opinion. The

question that remains is whether Defendants’ actions also violate the Due Process Clause. The

Court, however, need not weigh in on this thorny constitutional issue. The “cardinal principle of

judicial restraint” is that “if it is not necessary to decide more, it is necessary not to decide

more.” PDK Labs., Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (concurring opinion of

Roberts, J.). Since a decision on the extent of the asylum-seekers’ due-process rights will not at

this point affect the outcome of this case, avoidance is the proper course. The Court will,

accordingly, deny the Motion to Dismiss this count, but it will do so without prejudice; as a


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result, in the event the constitutional claim ultimately becomes germane to adjudicating the rights

of the parties, the Court may revisit it. Separately, the Court will grant DHS’s Motion to Dismiss

two individual Defendants from this case.

I.     Background

       The circumstances underlying this litigation were recounted at length in the Court’s prior

Opinion. See Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018). Only a short summary is

thus needed to set the stage. The Court begins with a refresher on the legal landscape and then

turns to the procedural history of this case.

       Under the Immigration and Nationality Act, non-citizens who seek asylum upon their

arrival in the United States are referred to interviews to determine whether they have a credible

fear of persecution or torture in their home countries. See 8 U.S.C. § 1225(b)(1)(A)(ii). If the

interviewing officer finds that such a fear exists, the individual “shall be detained for further

consideration of the application for asylum.” Id. § 1225(b)(1)(B)(ii). This detention authority,

however, is not “entirely inflexible.” Damus, 313 F. Supp. 3d at 323. Instead, asylum-seekers

who are not security or flight risks can be paroled into the United States “for urgent humanitarian

reasons or significant public benefit.” 8 C.F.R. § 212.5(b). In a 2009 Directive, Immigration and

Customs Enforcement explained that parole would be appropriate under these provisions when

an asylum-seeker establishes his identity and demonstrates that he is neither a flight risk nor a

danger to the public. See ECF No. 22-1 (ICE Directive 11002.1), ¶ 6.2. This Directive also

requires individualized assessments, written notices of the process, and explanations of decisions

denying parole. Id., ¶¶ 6.1, 6.5.

       In March 2018, nine asylum-seekers who were detained after being denied parole filed

this suit. See ECF No. 3 (Compl.), ¶¶ 1–2. On behalf of a class of similarly situated Plaintiffs,




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they asserted that five particular ICE Field Offices were not providing the individualized

determinations required by the 2009 Directive. Id., ¶¶ 14–17. In support, they pointed to parole-

denial rates at those offices nearing 100%, an almost complete reversal from the minimal denial

rates maintained in the previous administration. Id., ¶¶ 37–39. Plaintiffs alleged that these

actions violated the Administrative Procedure Act and the Due Process Clause. Id., ¶¶ 66–80.

Soon thereafter, they filed motions for provisional class certification and for a preliminary

injunction, which the Government opposed. See ECF Nos. 11 & 17. The Government also filed

a Motion to Dismiss. See ECF No. 22 (MTD). Granting the asylum-seekers’ motions, the Court

entered an Order enjoining DHS from “denying parole to any provisional class members absent

an individualized determination, through the parole process, that such provisional class member

presents a flight risk or a danger to the community.” ECF No. 33 (PI Order) at 1. DHS’s

Motion, meanwhile, was held in abeyance. See Minute Order of July 10, 2019. After

subsequent proceedings in which Plaintiffs were granted limited discovery related to the

Government’s compliance with the injunction, see ECF Nos. 41 & 52, the parties now ask the

Court to rule on Defendants’ Motion.

II.     Legal Standard

        In evaluating their Motion to Dismiss, the Court must “treat the complaint’s factual

allegations as true . . . and must grant [P]laintiff[s] ‘the benefit of all inferences that can be

derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.

Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)); see also

Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253–54 (D.C. Cir. 2005). The Court need

not accept as true, however, “a legal conclusion couched as a factual allegation,” nor an inference




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unsupported by the facts set forth in the Complaint. See Trudeau v. FTC, 456 F.3d 178, 193

(D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

        Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a

complaint fails “to state a claim upon which relief can be granted.” Although “detailed factual

allegations” are not necessary to withstand a Rule 12(b)(6) motion, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted). For a plaintiff to survive

a 12(b)(6) motion, the facts alleged in the complaint “must be enough to raise a right to relief

above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).

III.    Analysis

        The Court first addresses the Government’s arguments in favor of dismissing the APA

claims, all of which were addressed by the prior Opinion. It then moves on to the due-process

count and two individual Defendants.

        A. APA Claims

        There is no need to linger on the APA claims, since DHS’s objections on that score were

squarely rejected in the Court’s Opinion granting the motion for a preliminary injunction.

Defendants contend that these causes of action should be dismissed because (1) the Court lacks

jurisdiction under the INA to grant Plaintiffs relief; and (2) the claims are unsupported by

sufficient factual allegations. See MTD at 10–15. As to the first, the Court previously

concluded that the “alleged jurisdictional hurdles [we]re easily cleared by the asylum-seekers,

and that their claims [could] therefore proceed.” Damus, 313 F. Supp. 3d at 327. With regard to

the second, the Court found, based on the “drastic decline in parole-grant rates at the five ICE

Field Offices, and the affidavits by the named Plaintiffs and their counsel regarding the




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processing of their parole applications,” that “Plaintiffs have demonstrated a likelihood of

success on the merits of their [] claim that Defendants are not abiding by their own policies and

procedures.” Id. at 341. As the Government acknowledged in a recent status conference, see

Status Conf. of Feb. 7, 2019, these conclusions foreclose its only arguments for dismissing these

claims.

          B. Due-Process Claim

          The Opinion did not, conversely, resolve Defendants’ position on the due-process claim.

The Government asserts that it should be dismissed because Plaintiffs, as non-citizens detained

upon their arrival into the United States, have no due-process rights beyond those bestowed on

them by Congress. See MTD at 16 (citing Shaughnessy v. United States ex rel. Mezei, 345 U.S.

206, 212 (1953)). The Court found it unnecessary to rule on this claim for purposes of the

preliminary injunction because the asylum-seekers achieved all the relief they then sought

through victory on their APA claims. Likewise, it need not decide the merits of it now. This is

so for two reasons. First, the merits of the constitutional cause of action rise and fall in relevant

part with the merits of Plaintiffs’ APA claims. And second, the asylum-seekers request the same

relief from both. Resolving the matter will therefore have no ultimate effect on the relative

success of the parties or the breadth of relief awarded. The Court will thus adhere to the

“longstanding principle of judicial restraint requir[ing] that courts avoid reaching constitutional

questions in advance of the necessity of deciding them.” Camreta v. Greene, 563 U.S. 692, 705

(2011) (citations omitted).

                     The Merits

          To start, under the facts alleged, Plaintiffs cannot prevail on their due-process claim

without also prevailing on their APA ones. The linchpin of their APA argument is that DHS has a




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policy or practice of failing to provide asylum-seekers the individualized parole determinations

required by law. See Compl., ¶¶ 66–74; ECF No. 17 (PI Motion) at 16–32; ECF No. 24 (Opp. to

MTD) at 3–15. There is little question that such a policy or practice, if it exists, would violate

the APA. The crux of the asylum-seekers’ due-process claim is the same: DHS’s allegedly

unconstitutional practice of “refus[ing] to provide individualized parole determinations.” PI

Mot. at 39 (formatting modified). In order to succeed on their due-process claim, therefore, the

asylum-seekers must prove that DHS has a policy or practice of refusing to provide

individualized parole determinations. Yet once they have so proven, they will have necessarily

prevailed on their APA claim. Resolving the legal dispute about Plaintiffs’ constitutional rights is

thus unnecessary to determining who will triumph on the merits in this case.

       Besides being unnecessary, deciding the due-process claim would be no walk in the park.

Courts across the country have divided on the right answer. Compare Rosales-Garcia v. Holland,

322 F.3d 386, 411–15 (6th Cir. 2003) (en banc) (holding that persons subject to immigration

detention upon arrival in United States are protected by Due Process Clause), and Perez v.

Decker, 2018 WL 3991497, at *3–4 (S.D.N.Y. Aug. 20, 2018) (same), with Borrero v. Aljets, 325

F.3d 1003, 1005–08 (8th Cir. 2003) (holding that persons detained at border do not have

judicially enforceable due-process rights), and Aracely, R. v. Nielsen, 319 F. Supp. 3d 110, 144

(D.D.C. 2018) (concluding that due process does not entitle asylum-seekers to individual

hearings). Last year, with the issue squarely teed up, the Supreme Court declined to resolve it.

See Jennings v. Rodriguez, 138 S. Ct. 830, 851 (2018). These disagreements counsel against this

Court’s weighing in unnecessarily, particularly when the parties have given it less than ten total

pages of briefing. See PI Mot. at 36–41; MTD at 15–17; Opp. at 16–17.




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                   Relief

       Plaintiffs also seek equivalent relief on their due-process and APA claims. If they win on

the latter, the asylum-seekers will presumably obtain permanent injunctive relief requiring DHS

to provide them with the individualized parole determinations required by the Parole Directive.

See Compl., ¶ c. As the crux of the former is that the Due Process Clause requires individualized

parole determinations, the relief they would be accorded if successful would also be the parole

determinations to which they claim to be entitled. See Salazar v. Buono, 559 U.S. 700, 718

(2010) (“A court must find prospective relief that fits the remedy to the wrong or injury that has

been established.”).

       Plaintiffs, the Court acknowledges, do briefly hint at a different due-process claim that

may seek potentially broader relief. In opposing dismissal of several individual Defendants —

an issue the Court addresses below — they say in a footnote that “Plaintiffs’ complaint also

includes a claim that Due Process requires a custody hearing before an immigration judge as a

neutral decision-maker when detention becomes unreasonably prolonged.” Opp. at 17 n.5.

Based on the parties’ positions and filings throughout this case, however, the Court is not

convinced that Plaintiffs are really pursuing such a claim. As far as the Court can tell, the

footnote is the only place this theory is mentioned in any briefing. The silence in their motion

for class certification is particularly notable. The proposed class, which the Court provisionally

certified, includes some asylum-seekers who have not been detained for a prolonged period and

thus would not be entitled to the relief sought for this claim. But “Rule 23(b)(2)” — the basis for

certification here — “applies only when a single injunction or declaratory judgment would

provide relief to each member of the class.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360




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(2011). A class drawn to include persons detained for any amount of time may face difficulty

pursuing a class-wide claim hinging on prolonged detention.

         As to the Complaint, it implies that Plaintiffs may have a separate due-process claim in a

single legal assertion: “[P]articularly where detention is prolonged, due process requires a

custody hearing before a neutral-decision maker to determine if detention is necessary.” Compl.,

¶ 79. It also requests that the Court “[e]nter an order enjoining Defendants from subjecting

Plaintiffs and proposed class members to prolonged detention absent a custody hearing before an

immigration judge.” Id., ¶ d. But that is it. Considered as a whole, the Court finds that the

asylum-seekers have not pursued a constitutional claim based on prolonged detention. The

broader relief to which they might be entitled from such a claim thus does not necessitate a

decision on the due-process issue. “If there is one doctrine more deeply rooted than any other in

the process of constitutional adjudication, it is that we ought not to pass on questions of

constitutionality unless such adjudication is unavoidable.” Spector Motor Serv. v. McLaughlin,

323 U.S. 101, 105 (1944). The Court, accordingly, will not decide the due-process question

today.

         One outside possibility is worth flagging: that the nature of the claims being litigated in

this case will matter for determining the propriety of discovery. The general rule, of course, is

that discovery is not available in an APA case — instead, such cases are litigated on the basis of

the administrative record. See Air Transp. Ass’n of America v. Nat’l Mediation Bd., 663 F.3d

476, 487 (D.C. Cir. 2011). No such rule exists in constitutional cases. At this point, though, the

Court is skeptical that any difference in the substantive basis of the claims will matter to the

availability of discovery. See Bellion Spirits, LLC v. United States, 335 F. Supp. 3d 32, 41–45

(D.D.C. 2018). In any event, if the nature of the claims is dispositive in a subsequent discovery




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motion, the Court can consider the Government’s arguments in favor of dismissing the due-

process claim at that point. For now, the proper course is to deny the Motion to Dismiss without

prejudice.

       C. Individual Defendants

       The Court last turns to the Government’s independent argument that certain individual

Defendants — namely, the Attorney General and the Director of the Executive Office for

Immigration Review — should be dismissed. See MTD at 17–18. Plaintiffs oppose on the

ground that they maintain a separate due-process claim seeking bond hearings for asylum-

seekers in prolonged detention and that such hearings would be supervised by the Attorney

General and EOIR Director. See Opp. at 17 n.5. As the Court has just explained, however, it is

not persuaded that Plaintiffs are pursuing any such claim. The Court thus agrees with the

Government that those individual Defendants should be dismissed.

IV.    Conclusion

       For these reasons, the Court will grant in part and deny in part Defendants’ Motion to

Dismiss. A separate Order so stating will issue this day.

                                                            /s/ James E. Boasberg
                                                            JAMES E. BOASBERG
                                                            United States District Judge
Date: February 28, 2019




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