University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name Gonzalez Torres v. U.S. Department of Homeland Security IM-CA-0097
Docket / Court 3:17-cv-01840-JM-NLS ( S.D. Cal. )
State/Territory California
Case Type(s) Immigration and/or the Border
Special Collection Civil Rights Challenges to Trump Immigration Enforcement Orders
Case Summary
On Sept. 11, 2017, an individual private plaintiff in San Diego filed this lawsuit in the U.S. District Court for the Southern District of California against the U.S. Department of Homeland Security (DHS). Private counsel from the law firm Arnold & Porter represented the plaintiff.

In ... read more >
On Sept. 11, 2017, an individual private plaintiff in San Diego filed this lawsuit in the U.S. District Court for the Southern District of California against the U.S. Department of Homeland Security (DHS). Private counsel from the law firm Arnold & Porter represented the plaintiff.

In the complaint, plaintiff stated that he had been a two-time DACA recipient since 2013. He alleged that in May 2016, DHS had apprehended him in a raid, detained him for a month, and initiated removal proceedings against him solely for unlawful presence. (DHS claimed the arrest was for alien smuggling.) Because of the removal proceedings, DHS automatically terminated his DACA status (including his employment authorization, leading to his job loss). Plaintiff argued that this automatic status termination, with no notice or opportunity to respond, ran contrary to USCIS's DACA Standard Operating Procedures (SOP) and thus violated the Administrative Procedure Act (APA) as arbitrary, capricious, and an abuse of discretion. He also alleged that it violated his Fifth Amendment due process rights. Plaintiff sought injunctive and declaratory relief for his DACA authorization to be reinstated and not terminated prior to notice and an opportunity to respond, as required in the SOP.

Plaintiff also noted that President Trump had, on Sept. 5, 2017, announced a phase-out of the DACA program but with a renewal option for current DACA holders with a deadline of Oct. 5, 2017. Given this impending deadline, plaintiff also filed a motion for a temporary restraining order (TRO) on the same day as the complaint, requesting an expedited hearing. Judge Jeffrey Miller, who was assigned to this case, scheduled a motion hearing for Sept. 28.

On Sept. 21, DHS responded to plaintiff's TRO motion. The government argued that plaintiff was unlikely to succeed on the merits because plaintiff could challenge removal only in removal proceedings in Immigration Court and not in the District Court; and because DACA and its associated employment authorization were a discretionary program not governed by the Constitution or the APA. Plaintiff replied on Sept. 26.

Judge Miller held a TRO motion hearing on Sept. 28. The next day, he issued a preliminary injunction, enjoining DHS's revocation of plaintiff's DACA status, so that plaintiff could apply for an extension. 2017 WL 4340385 (S.D. Cal. Sept. 29, 2017). In his order, Judge Miller first found that the Court had jurisdiction to review DHS's termination of plaintiff's status, even though it lacked jurisdiction in plaintiff's immigration removal proceeding. Next, Judge Miller held that plaintiff had established a likelihood of success on his claim that DHS's termination of his status without reference to the DACA SOP was arbitrary, capricious, and an abuse of discretion. Further, due to the status termination and loss of employment, plaintiff would suffer irreparable harm.

On Nov. 13, plaintiff moved to modify the preliminary injunction. He explained that USCIS had not yet adjudicated his pending DACA renewal application, but his status would expire on Dec. 22. He asked the Court to modify the preliminary injunction to ensure he would retain his status while USCIS processed the renewal application. DHS responded on Dec. 4, and plaintiff replied on Dec. 7. After a Dec. 12 motion hearing, plaintiff alerted the Court of Dec. 13 a news report that Immigration and Customs Enforcement (ICE) had detained a Pennsylvania DACA recipient after a postal delay with his renewal application had caused his status to lapse. DHS objected to plaintiff introducing the news report.

On Dec. 15, Judge Miller denied plaintiff's motion to modify the preliminary injunction. He stated that DHS had complied with the order by reinstating plaintiff's DACA status and employment authorization and accepting his renewal request. Although DHS intended to terminate his status by Dec. 22, USCIS was also adjudicating his renewal request. Judge Miller concluded that since he had ordered DHS to comply with the APA and SOP, DHS was unlikely to improperly terminate plaintiff's DACA status, detain, or remove him before Dec. 22.

On Dec. 22, DHS then asked the Court for an order dissolving the preliminary injunction and allowing the status termination to take effect.

On Jan. 12, 2018, plaintiff filed an amended complaint and motion for preliminary injunction. By then, DHS had already terminated his DACA status and had denied his renewal application based on the removal proceedings. Plaintiff alleged that these actions violated the APA as they lacked reasoned explanation guided by the DACA SOP. Plaintiff asked for a preliminary injunction vacating and enjoining the purported termination and the
the purported subsequent denial of his renewal application. DHS responded on Feb. 5, and plaintiff replied on Feb. 12.

DHS moved to dismiss on Feb. 23. DHS argued that plaintiff lacked standing after his DACA termination, that the case belonged in removal proceedings rather than before the Court, and that the termination implicated no constitutional interest. Plaintiff responded on Mar. 9, and DHS replied on Mar. 16. The Court held a motion hearing on Mar. 26.

On Apr. 12, Judge Miller granted DHS's Feb. 23 motion to dismiss (without leave to amend the complaint), dissolved the initial preliminary injunction, and denied plaintiff's Jan. 12 motion for a new preliminary injunction. In the order, Judge Miller held that the second revocation of plaintiff's DACA grant complied with the SOP, so that the preliminary injunction could be dissolved. In his view, DHS had considered all relevant factors in determining that plaintiff (due to the allegations of alien smuggling against him, even with no further evidence) was an enforcement priority within the SOP and other agency materials. In addition to seeing no APA violation, Judge Miller also saw no constitutional violation. Though Judge Miller conceded that DACA implicated due process interests, entitling recipients to a notice and hearing before termination, Judge Miller held that plaintiff had in fact received these procedural due process protections.

This case is now closed.

Ava Morgenstern - 04/21/2018


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Issues and Causes of Action
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Issues
Benefit Source
DACA (Deferred Action for Childhood Arrivals)
Constitutional Clause
Due Process
Content of Injunction
Preliminary relief denied
Preliminary relief granted
General
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Immigration/Border
Constitutional rights
Employment
Status/Classification
Undocumented immigrants - rights and duties
Work authorization - criteria
Work authorization - procedures
Plaintiff Type
Private Plaintiff
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Declaratory Judgment Act, 28 U.S.C. § 2201
Defendant(s) U.S. Department of Homeland Security
Plaintiff Description A private plaintiff who received DACA in 2013 but challenged DHS's automatic termination of the status after a May 2016 removal order.
Class action status sought No
Class action status granted No
Prevailing Party Mixed
Public Int. Lawyer No
Nature of Relief Preliminary injunction / Temp. restraining order
None
Source of Relief Litigation
Order Duration 2017 - n/a
Case Closing Year 2018
Case Ongoing No
Additional Resources
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  Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA)
www.dhs.gov
Date: Sep. 5, 2017
By: Department of Homeland Security
[ Detail ] [ External Link ]

  Implementation of Executive Order 13768, "Enhancing Public Safety in the Interior of the United States
The Washington Post
Date: May 22, 2017
By: Jefferson Sessions (U.S. Department of Justice)
[ Detail ] [ External Link ]

  Re: Implementing the President's Border Security and Immigration Enforcement Improvements Policies (Final, 2/20/2017)
dhs.gov
Date: Feb. 20, 2017
By: DHS Secretary John Kelly (United States Department of Homeland Security)
[ Detail ] [ PDF ] [ External Link ]

  Re: Enforcement of the Immigration Laws to Serve the National Interest (Final, 2/20/2017)
dhs.gov
Date: Feb. 20, 2017
By: DHS Secretary John Kelly (United States Department of Homeland Security)
[ Detail ] [ PDF ] [ External Link ]

  Executive Order 13767: Border Security and Immigration Enforcement Improvements
Federal Register
Date: Jan. 27, 2017
By: President Donald Trump (Office of the President)
Citation: 82 Fed. Reg. Presidential Documents 8793 (Jan. 27, 2017)
[ Detail ] [ PDF ]

  Executive Order 13768: Enhancing Public Safety in the Interior of the United States
Federal Register
Date: Jan. 25, 2017
By: President Donald Trump (Office of the President)
[ Detail ] [ PDF ] [ External Link ]

Docket(s)
3:17-cv-1840 (S.D. Cal.)
IM-CA-0097-9000.pdf | Detail
Date: 04/13/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Declaratory and Injunctive Relief [ECF# 1]
IM-CA-0097-0001.pdf | Detail
Date: 09/11/2017
Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Ex Parte Emergency Motion for Temporary Restraining Order and/or Preliminary Injunction; Application for Order Shortening Time and Expedited Hearing Prior to October 2017 [ECF# 2]
IM-CA-0097-0002.pdf | Detail
Date: 09/11/2017
Source: PACER [Public Access to Court Electronic Records]
Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiff's Ex Parte Emergency Motion for temporary Restraining Order and/or Preliminary Injunction [DKT. 2]. [ECF# 9]
IM-CA-0097-0003.pdf | Detail
Date: 09/21/2017
Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Reply in Support of Ex Parte Emergency Motion For Temporary Restraining Order and/or Preliminary Injunction [ECF# 10]
IM-CA-0097-0004.pdf | Detail
Date: 09/25/2017
Source: PACER [Public Access to Court Electronic Records]
Order Granting Motion For Preliminary Injunction [ECF# 12] (2017 WL 4340385 / 2017 U.S.Dist.LEXIS 161406) (S.D. Cal.)
IM-CA-0097-0005.pdf | WESTLAW| LEXIS | Detail
Date: 09/29/2017
Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Notice of Motion and Motion to Modify Order Granting Motion For Preliminary Injunction [ECF# 13]
IM-CA-0097-0006.pdf | Detail
Date: 11/13/2017
Source: PACER [Public Access to Court Electronic Records]
Defendants' Memorandum of Points and Authorities in Opposition to Plaintiff's Motion to Modify Order Granting Motion for Preliminary Injunction [ECF# 18]
IM-CA-0097-0007.pdf | Detail
Date: 12/04/2017
Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Reply in Support of Motion to Modify Order Granting Motion for Preliminary Injunction [ECF# 22]
IM-CA-0097-0008.pdf | Detail
Date: 12/07/2017
Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Ex Parte Application for Leave to File Letter Alerting the Court of News that is Pertinent to Concerns Expressed by the Court at the Hearing on Plaintiff's Motion to Modify Preliminary Injunction [ECF# 26]
IM-CA-0097-0009.pdf | Detail
Date: 12/14/2017
Source: PACER [Public Access to Court Electronic Records]
Defendants' Opposition to Plaintiff's Ex Parte Application [ECF# 27]
IM-CA-0097-0010.pdf | Detail
Date: 12/15/2017
Source: PACER [Public Access to Court Electronic Records]
Order Denying Motion to Modify Preliminary Injunction [ECF# 29] (S.D. Cal.)
IM-CA-0097-0011.pdf | Detail
Date: 12/15/2017
Source: PACER [Public Access to Court Electronic Records]
Defendants' Ex Parte Application for Order Dissolving preliminary Injunction and Permitting Defendants' Termination of Plaintiff's DACA to take Effect the Date it was Issued [ECF# 31]
IM-CA-0097-0012.pdf | Detail
Date: 12/22/2017
Source: PACER [Public Access to Court Electronic Records]
First Amended Complaint for Declaratory and Injunctive Relief [ECF# 38]
IM-CA-0097-0013.pdf | Detail
Date: 01/12/2018
Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Memorandum of Points and Authorities in Opposition to Defendants' Ex Parte Application and in Support of Plaintiff's Motion for Preliminary Injunction [ECF# 39-1]
IM-CA-0097-0014.pdf | Detail
Date: 01/12/2018
Source: PACER [Public Access to Court Electronic Records]
Defendants' Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Preliminary Injunction [ECF# 44]
IM-CA-0097-0015.pdf | Detail
Date: 02/05/2018
Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Reply in Support of Motion for Preliminary Injunction [ECF# 46]
IM-CA-0097-0016.pdf | Detail
Date: 02/12/2018
Source: PACER [Public Access to Court Electronic Records]
Defendants' Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss [ECF# 49-1]
IM-CA-0097-0017.pdf | Detail
Date: 02/23/2018
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Opposition to Defendants’ Motion to Dismiss First Amended Complaint [ECF# 50]
IM-CA-0097-0018.pdf | Detail
Date: 03/09/2018
Source: PACER [Public Access to Court Electronic Records]
Defendants' Reply in Support of Defendants' Motion to Dismiss [ECF# 51]
IM-CA-0097-0019.pdf | Detail
Date: 03/16/2018
Source: PACER [Public Access to Court Electronic Records]
Order Denying Plaintiff's Motion for Preliminary Injunction ;Granting Defendants' Motion to Dissolve Preliminary Injunction; Granting Defendants' Motion to Dismiss [ECF# 55] (2018 WL 1757668) (S.D. Cal.)
IM-CA-0097-0020.pdf | WESTLAW | Detail
Date: 04/12/2018
Source: PACER [Public Access to Court Electronic Records]
Judges Miller, Jeffrey T. (S.D. Cal.)
IM-CA-0097-0005 | IM-CA-0097-0011 | IM-CA-0097-0020 | IM-CA-0097-9000
Stormes, Nita L. (S.D. Cal.) [Magistrate]
IM-CA-0097-9000
Plaintiff's Lawyers Tsitsuashvili, Jaba (California)
IM-CA-0097-0001 | IM-CA-0097-0002 | IM-CA-0097-0004 | IM-CA-0097-0006 | IM-CA-0097-0008 | IM-CA-0097-0009 | IM-CA-0097-0013 | IM-CA-0097-0014 | IM-CA-0097-0016 | IM-CA-0097-0018 | IM-CA-0097-9000
Ulin, John C. (California)
IM-CA-0097-0001 | IM-CA-0097-0002 | IM-CA-0097-0004 | IM-CA-0097-0006 | IM-CA-0097-0008 | IM-CA-0097-0009 | IM-CA-0097-0013 | IM-CA-0097-0014 | IM-CA-0097-0016 | IM-CA-0097-0018 | IM-CA-0097-9000
Defendant's Lawyers Peachey, William Charles (District of Columbia)
IM-CA-0097-0003 | IM-CA-0097-0007 | IM-CA-0097-0010 | IM-CA-0097-0012 | IM-CA-0097-0015 | IM-CA-0097-0017 | IM-CA-0097-0019
Readler, Chad A. (District of Columbia)
IM-CA-0097-0003 | IM-CA-0097-0007 | IM-CA-0097-0010 | IM-CA-0097-0012 | IM-CA-0097-0015 | IM-CA-0097-0017 | IM-CA-0097-0019
Robins, Jeffrey S (District of Columbia)
IM-CA-0097-0003 | IM-CA-0097-0007 | IM-CA-0097-0010 | IM-CA-0097-0012 | IM-CA-0097-0015 | IM-CA-0097-0017 | IM-CA-0097-0019 | IM-CA-0097-9000
Walker, James Joseph (District of Columbia)
IM-CA-0097-9000

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