Aracely v. Nielsen (319 F. Supp. 3d 110, 2018)

United States Court of Appeals for the District of Columbia 2018-07-03

Government Organization and Employees Domestic Security Aliens and Nationality

Citations

Full opinion text

RUDOLPH CONTRERAS, United States District Judge

DENYING DEFENDANTS' MOTION TO TRANSFER VENUE; GRANTING PLAINTIFFS' MOTIONS TO SUPPLEMENT THEIR PRELIMINARY INJUNCTION APPLICATION AND EXHIBITS; AND GRANTING IN PART PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

I. INTRODUCTION

Every day, individuals fleeing persecution and violence in their home countries seek asylum within our borders. And every day, United States immigration officials must determine whether to admit these individuals or reject them. This case concerns what happens to these individuals while their requests for asylum are considered. Plaintiffs undertook perilous journeys to reach our borders, submitted asylum petitions, and were detained in what they claim to be prison-like conditions for an extended period of time while their petitions were evaluated. They contend that their detention without access to a bond hearing before an immigration judge violated their constitutional rights. They also contend that immigration officials routinely and systematically failed to abide by a binding, official agency directive governing parole determinations, and instead applied an unwritten, unconstitutional policy promulgated by top policy makers. In the absence of this unwritten policy, Plaintiffs argue, they would have been conditionally paroled into the United States.

Presently before the Court are two preliminary motions. First, Defendants seek to transfer this litigation's venue from the District of Columbia to the Southern District of Texas. Second, Plaintiffs seek preliminary injunctive relief granting them bond hearings before immigration judges, and compelling Defendants to comply with the official directive and halt the alleged unwritten policy. For the reasons explained below, the Court denies Defendants' motion, and grants Plaintiffs' motion in part.

II. BACKGROUND

A. Statutory and Regulatory Framework

This case concerns statutes and regulations within the scope of the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1101 et seq. The INA sets forth the conditions under which a foreign national may be admitted to and remain in the United States, and it grants the Department of Homeland Security ("DHS") the discretion to initiate removal proceedings. See, e.g., id. §§ 1181-1182, 1184, 1225, 1227-1229, 1306, 1324-25. Within DHS, Immigration and Customs Enforcement ("ICE") is the department that is primarily charged with administering the INA. See 6 U.S.C. §§ 111, 251, 291. The interactions relevant to this action involved ICE officials.

Plaintiffs are "arriving aliens" from outside of the United States who surrendered to ICE at United States ports of entry, sought asylum ("POE asylum seekers"), and were detained pursuant to 8 U.S.C. §§ 1158(a)(1) and 1225(b). Section 1225(b) provides that if a non-citizen "who is arriving in the United States" indicates an intention to apply for asylum or expresses a fear of persecution or torture, the individual must be interviewed to determine whether he or she has a "fear of persecution." 8 U.S.C. § 1225(b)(1)(A)(ii). If the individual is determined to have a credible fear of persecution, he or she "shall be detained for further consideration of the application for asylum." Id. § 1225(b)(1)(B)(ii). ICE officials determined that each Plaintiff had a credible fear of persecution, so Plaintiffs' detentions were governed by § 1225(b)(1)(B)(ii).

An individual detained under § 1225(b)(1)(B)(ii) can be paroled "into the United States temporarily" by the Attorney General "in his discretion." Id. § 1182(d)(5)(A). Agency regulations provide that the Secretary of Homeland Security "may invoke" this parole authority for an individual who is "neither a security risk nor a risk of absconding" and meets one or more of a series of conditions, one of which is that "continued detention is not in the public interest." 8 C.F.R. § 212.5(a), (b)(5). Plaintiffs contend that they met, and continue to meet, this condition.

Parole under § 212.5, however, "shall not be regarded as an admission of the alien." 8 U.S.C. § 1182(d)(5)(A). Instead, when the purpose of the parole has been served, "the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States." Id. Further, immigration judges do not have authority under § 1225(b)(1)(B)(ii) to review ICE's parole decisions for POE Asylum Seekers. See 8 C.F.R. § 1003.19(h)(2)(i)(B). In other words, a POE asylum seeker may be paroled into the United States after passing a credible fear interview, but that individual is still considered an "arriving alien" under the law, ICE may revoke the parole at any time, and ICE's parole determination is not subject to review by an immigration judge.

A 2009 directive issued by ICE sets forth certain procedures that must be utilized and factors that, according to Plaintiffs, must be considered when evaluating parole requests under 8 C.F.R. § 212.5. ICE Directive No. 11002.1: Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture ("Morton Directive" or the "Directive) (Dec. 8, 2009), Pls. Am. Mem. P. & A. Supp. Mot. Prelim. Inj. ("Pls.' Am. Mem.") Ex. 13, ECF No. 74-16. More specifically, the Morton Directive explains how the term "public interest" in § 212.5(b)(5) is to be interpreted. According to the Directive, when an arriving alien found to have a credible fear of persecution establishes, to the satisfaction of ICE, his or her identity and that he or she presents neither a flight risk nor a danger to the community, "[ICE] should, absent additional factors ... parole the alien on the basis that his or her continued detention is not in the public interest." Id. ¶ 8.3.

B. Factual Background and Procedural History

Plaintiffs are three aliens-Mikailu J., Aracely R., and Sadat I.-who came to the United States seeking asylum. The following is a brief description of each Plaintiff's journey to this country.

Aracely R.

Aracely R. fled Guatemala by car in 2016 with her eight-year old daughter. Decl. of Celinda Aracely R. ("Aracely Decl.") ¶ 2, Pls.' Am. Mem. Ex. 1, ECF No. 74-2. While driving through Mexico on the way to the United States, their car overturned, killing Aracely's daughter and severely injuring Aracely's leg. Id. Aracely ultimately reached Hidalgo, Texas, requested asylum at the border, passed her credible fear interview, and was detained under § 1225(b)(1)(B)(ii). Id. ¶ 6. According to Aracely, she submitted to ICE officials two sponsorship letters from family members, and a copy of her national identification card in support of her request for parole. Id. She was detained for nearly a year, despite requesting parole at least once. Id. ; Decl. of Deborah Achim ("Achim Decl.") ¶ 6, Defs.' Opp'n Pls.' Mot. Prelim. Inj. ("Defs.' Opp'n"), ECF No. 63-1. In early 2018 her injured leg required emergency surgery, so she was paroled and permitted to travel to California to receive treatment. Pls.' Am. Mem. at 2 n.4, ECF No. 74-1.

Mikailu J.

Mikailu J. fled Sierra Leone in early 2017. Decl. of Mikailu J. ("Mikailu Decl.") ¶ 4, Pls.' Am. Mem. Ex. 4, ECF No. 74-6. He requested asylum at the Brownsville, Texas port of entry, passed his credible fear interview, and was detained pursuant to § 1225(b)(1)(B)(ii). Id. ¶¶ 5-7. According to Mikailu, he submitted to ICE officials copies of his national identification card, his press card, his school identification card, and a letter from a relative offering him full sponsorship in the United States in support of his requests for parole. Id. ¶ 8. He has been denied parole three times, and is currently detained in the Laredo, Texas Detention Center. Id. ¶¶ 8-9; Achim Decl. ¶ 8.

Sadat I.

Sadat I. fled Ghana in late 2015. Decl. of Sadat I. ("Sadat Decl.") ¶ 4, Pls.' Am. Mem. Ex. 3, ECF No. 74-5. After an arduous journey, Sadat requested asylum at the San Diego, California port of entry, passed his credible fear interview, and was detained pursuant to § 1225(b)(1)(B)(ii). Id. ¶¶ 5-7. According to Sadat, he submitted to ICE officials his national identification card, a copy of his passport, a criminal background check, and sponsorship letters from his uncle and a non-governmental organization in Texas in support of his request for parole. Id. ¶ 8. Although he requested parole, he never received it. Id. ¶¶ 7-8. Plaintiffs do not clearly explain his current status, but it appears that his petition for asylum was denied in 2016, and he remains detained pending a motion in the Eleventh Circuit to re-open his petition. Id. ¶ 11; Pls.' Am. Mem. at 7 n.13. If this is true, his detention is pursuant to § 1231(a)(6) rather than § 1225(b), and his parole is governed by 8 C.F.R. § 241.4 rather than § 212.5. Id.

Former Plaintiffs

In addition to these three individuals, Plaintiffs have submitted declarations from two former plaintiffs, Hatim B. and Junior M., who also requested asylum at a port of entry, passed their credible fear interviews, and were detained without parole. Hatim B. was granted asylum in early 2018 and has been fully released into the United States. See Pls.' Am. Mem. at 9 n.14. Junior M. returned to his home country of Honduras. Id. at 3.

Plaintiffs claim that they were denied parole because of a de facto immigration policy promulgated by high-level officials in Washington D.C. Pls.' Updated Mem. Opp'n Defs.' Mot. Transfer Venue at 4, ECF No. 64. Specifically, Plaintiffs claim that DHS responded to a surge in asylum seekers beginning in 2014 by instituting policies designed to "serve as a deterrent to asylum seekers by forcing them to either endure prolonged detention or risk the grave perils involved in unlawful entries." Third Am. Compl. ("TAC") ¶¶ 42-44, 62, ECF No. 73. Plaintiffs further contend that "to achieve this result, Defendants initiated an unwritten practice and policy, ordering local officials to heavily weight immigration deterrence in deciding parole and similar forms of release." Id. ¶ 52. For instance, and as described in more detail below, Plaintiffs cite data compiled by a non-profit human rights organization, Human Rights First, indicating that the parole release rate of the asylum seekers who crossed a U.S. Port of Entry was 80 percent in 2012, but dropped to 47 percent in 2015. Id. ¶ 56 (citing Human Rights First, Lifeline on Lockdown at 13 (July 2016) ). Plaintiffs argue that "[s]uch planned, systematic denials of parole to eligible POE seekers constitute an official agency policy." TAC ¶ 59. They also suggest that Defendants re-emphasized this policy after the 2016 Presidential election. See Pls.' Am. Mem. at 17-18.

Plaintiffs argue that their parole requests should have been granted under both international and domestic laws. Id. ¶¶ 27, 31. In particular, Plaintiffs cite that the United States adopted Article 2-34 of the 1951 United Nations Convention Relating to the Status of Refugees ("Refugee Convention") and promulgated the Refugee Act of 1980, "which required the United States to establish procedures for noncitizens physically present ... at a port of entry to apply for asylum." Id. ¶¶ 27-28. Article 31 of the Refugee Convention provides that "states shall not impose penalties on refugees for illegal entry or presence." Id. ¶ 26

Defendants are government officials who implemented or enforced the alleged immigration deterrence policy. Id. ¶ 83. The Secretary of Homeland Security and certain ICE officials, including those who "established, developed and promoted the current binding policy" reside in Washington D.C. Defs' Suppl. Brief Mot. Transfer Venue ("Defs. Suppl. Br.") at 6, ECF No. 67. But, some ICE officials, including those who evaluated Plaintiffs' specific parole requests, reside in Texas. Id. at 7.

Plaintiffs filed this suit in late 2017, alleging that (1) ICE's parole denials based on the nation-wide, de facto immigration deterrence policy violates Plaintiffs' First and Fifth Amendment rights under the United States Constitution and is arbitrary and capricious in violation of the Administrative Procedure Act ("APA"); and (2) they are constitutionally entitled to bond hearings before immigration judges. See generally Compl., ECF No. 1 They have since amended their complaint on three occasions due to their changing personal circumstances and the shifting legal landscape, but their core allegations and relief sought have not changed. See generally Am. Compl., ECF No. 7; Second Am. Compl., ECF No. 56; TAC. Shortly after the complaint was filed, Defendants moved to change the litigation's venue to the Southern District of Texas. See generally Mot. Transfer Venue, ECF No. 38. Plaintiffs moved for a preliminary injunction in early February 2018, and they amended that motion in March. See generally Mot. Prelim. Injunction, ECF No. 54; Pls.' First Am. Appl. Prelim. Inj., ECF No. 74. Finally, Plaintiffs moved to amend their preliminary injunction for a third time in late April 2018. See generally Mot. Supp. Appl. Prelim. Injunction, ECF No. 79. Now ripe for the Court's consideration are (1) Defendants' motion to change venue; (2) Plaintiffs' motion to amend their application for a preliminary injunction and update their exhibits in support of that application; and (3) Plaintiffs' motion for a preliminary injunction.

III. LEGAL STANDARDS

A. Venue Transfer

Even when venue is properly laid in a given judicial district, "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). "The idea behind § 1404(a) is that where a 'civil action' to vindicate a wrong-however brought in a court-presents issues and requires witnesses that make one District Court more convenient than another, the trial judge can, after findings, transfer the whole action to the more convenient court." Vasser v. McDonald , 72 F.Supp.3d 269, 281 (D.D.C. 2014) (citing Continental Grain Co. v. Barge FBL-585 , 364 U.S. 19, 26, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960) ). "[T]he main purpose of section 1404(a) is to afford defendants protection where maintenance of the action in the plaintiff's choice of forum will make litigation oppressively expensive, inconvenient, difficult or harassing to defend." Starnes v. McGuire , 512 F.2d 918, 927 (D.C. Cir. 1974) (en banc).

B. Preliminary Injunction

"[A] preliminary injunction is an injunction to protect [the movant] from irreparable injury and to preserve the court's power to render a meaningful decision after a trial on the merits." Select Milk Producers, Inc. v. Johanns , 400 F.3d 939, 954 (D.C. Cir. 2005) (quoting 11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedures § 2947 (2d ed. 1992) ). "[T]he decision to grant injunctive relief is a discretionary exercise of the district court's equitable powers." John Doe Co. v. CFPB , 235 F.Supp.3d 194, 201 (D.D.C. 2017) (quoting Sea Containers Ltd. v. Stena AB , 890 F.2d 1205, 1209 (D.C. Cir. 1989) ). A preliminary injunction is an "extraordinary remedy," and one that is "never awarded as of right." Winter v. Nat'l Res. Def. Council, Inc. , 555 U.S. 7, 9, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

To warrant preliminary injunctive relief, the moving party "must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in his favor, and that an injunction is in the public interest." Id. at 20, 129 S.Ct. 365. Of these factors, likelihood of success on the merits and irreparable harm are particularly crucial. See Sherley v. Sebelius , 644 F.3d 388, 393 (D.C. Cir. 2011) (reading Winter "to suggest if not to hold 'that a likelihood of success is an independent, free-standing requirement for a preliminary injunction' "); Chaplaincy of Full Gospel Churches v. England , 454 F.3d 290, 297 (D.C. Cir. 2006) ("[A] movant must demonstrate at least some injury for a preliminary injunction to issue, for the basis of injunctive relief in federal courts has always been irreparable harm." (internal citations and quotation marks omitted) ).

Furthermore, "if the requested relief 'would alter, not preserve, the status quo,' the court must subject the plaintiff's claim to a somewhat higher standard." Paleteria La Michoacana, Inc v. Productos Lacteos Tocumbo S.A. de C.V. , 901 F.Supp.2d 54, 56 (D.D.C. 2012) (quoting Veitch v. Danzig, 135 F.Supp.2d 32, 35 (D.D.C. 2001) ); see also Singh v. Carter , 185 F.Supp.3d 11, 17 n.3 (D.D.C 2016) ;

Columbia Hosp. for Women Found., Inc. v. Bank of Tokyo-Mitsubishi Ltd. , 15 F.Supp.2d 1, 4 (D.D.C. 1997). Because Plaintiffs seek to alter-not preserve-the status quo, the Court will exercise extreme caution in assessing Plaintiffs' invitation to invoke the court's extraordinary equitable powers. See Allina Health Servs. v. Sebelius, 756 F.Supp.2d 61, 70 n.5 (D.D.C. 2010).

C. Administrative Procedure Act

The APA governs the conduct of federal administrative agencies. 5 U.S.C. §§ 101 - 913. It permits a court to "compel agency action unlawfully withheld or unreasonably delayed," and to "hold unlawful and set aside agency action, findings and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. § 706. The APA provides for judicial review of all "final agency action for which there is no other adequate remedy in court," id. § 704, except when "statutes preclude judicial review" or the "agency action is committed to agency discretion by law," id. § 701(a).

IV. VENUE TRANSFER ANALYSIS

The Court first considers Defendants' motion under 28 U.S.C. § 1404(a) to transfer the action to the Southern District of Texas, and their related argument that Plaintiffs' claims may only be raised through a habeas corpus petition. The Court is unpersuaded by both arguments.

A. Habeas Corpus

The Court first considers whether, as asserted by Defendants during the March 2, 2018 motion hearing and in many of their briefs, Plaintiffs must bring their claims through a habeas petition. Generally, jurisdiction for a core habeas petition challenging present physical confinement lies only in the district of confinement. Rumsfeld v. Padilla , 542 U.S. 426, 443, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004). Thus, if Defendants are correct that Plaintiffs may only seek relief by way of a habeas petition, this Court would likely lack jurisdiction because none of the Plaintiffs are confined in this District.

However, Plaintiffs have not brought their claims by way of a habeas petition, nor are they required to do so. Indeed, "a federal prisoner need bring his claim in habeas only if success on the merits will 'necessarily imply the invalidity of confinement or shorten its duration.' " Davis v. U.S. Sentencing Comm'n , 716 F.3d 660, 666 (D.C. Cir. 2013) (quoting Wilkinson v. Dotson , 544 U.S. 74, 82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) ). "Otherwise, he may bring his claim through a variety of causes of action." Id. Here, Plaintiffs challenge (1) what they claim is a de facto policy of denying parole to asylum seekers, in violation of the APA; and (2) their detention without access to a bond hearing by an immigration judge, in violation of the Constitution. If Plaintiffs are successful and this Court enjoins Defendants from adhering to any such policy and requires that Plaintiffs be given bond hearings, that ruling would not necessarily imply that their confinement is invalid or otherwise should be shorter, because their parole could still be denied for other legitimate reasons.

Indeed, other courts in this jurisdiction facing challenges to similar nation-wide immigration policies have rejected the notion that detainees must proceed through a habeas petition. See R.I.L-R v. Johnson , 80 F.Supp.3d 164, 186 (D.D.C. 2015) ("although Congress has expressly limited APA review over individual deportation and exclusion orders, see 8 U.S.C. § 1252(a)(5), it has never manifested an intent to require those challenging an unlawful, nationwide detention policy to seek relief through habeas rather than the APA."). Although, as Defendants regularly note, many of the relevant cases challenging the government's treatment of asylum seekers lie in habeas, those cases do not stand for the proposition that they could only have been brought as habeas petitions. See Davis , 716 F.3d at 666 (holding that a federal prisoner need not bring an equal protection challenge to his sentence by means of a habeas petition because "[s]uccess would do no more than allow him to seek a sentence reduction, which the district court retains the discretion to deny"). Accordingly, Plaintiffs may proceed on their claims under the APA and the Constitution, and jurisdiction is proper in the District of Columbia.

B. Venue

The Court now turns to its venue analysis. Defendant moves to transfer this case to the Southern District of Texas pursuant to 28 U.S.C. § 1404(a). Section 1404(a)"vests 'discretion in the district court to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness.' " Reiffin v. Microsoft Corp. , 104 F.Supp.2d 48, 50 (D.D.C. 2000) (quoting Stewart Org., Inc. v. Ricoh Corp. , 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) ). When venue is properly laid in this jurisdiction, "[t]ransfer elsewhere under Section 1404(a) must ... be justified by particular circumstances that render [this] forum inappropriate by reference to the considerations specified in that statute. Absent such circumstances, transfer in derogation of properly laid venue is unwarranted." Starnes , 512 F.2d at 925-26.

The statute "directs a district court to take account of factors other than those that bear solely on the parties' private ordering of their affairs. The district court also must weigh in the balance the convenience of the witnesses and those public-interest factors of systemic integrity and fairness that, in addition to private concerns, come under the heading of 'the interest of justice.' " Stewart Org. , 487 U.S. at 30, 108 S.Ct. 2239. However, the precise "standards to be considered in determining whether to grant or deny a section 1404(a) motion to transfer are generally ... left to the discretion of the trial court," SEC v. Page Airways, Inc. , 464 F.Supp. 461, 463 (D.D.C. 1978), which is "broad" but "not untrammeled," Fine v. McGuire , 433 F.2d 499, 501 (D.C. Cir. 1970) (per curiam) (noting that the trial court must "give consideration to the traditional [forum non conveniens] factors, including the plaintiff's choice of forum").

Ultimately, the burden is on the moving party to establish that transfer under § 1404(a) is proper. Montgomery v. STG Int'l, Inc. , 532 F.Supp.2d 29, 32 (D.D.C. 2008) ; Trout Unlimited v. U.S. Dep't of Ag. , 944 F.Supp. 13, 16 (D.D.C. 1996). Accordingly, Defendants must make two showings to justify transfer. First, Defendants must establish that Plaintiffs could have brought the action in the proposed transferee district. Van Dusen v. Barrack , 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). Second, Defendants must demonstrate that considerations of convenience and the interest of justice weigh in favor of transfer to that district. Trout Unlimited , 944 F.Supp. at 16. In evaluating a motion to transfer, a court should weigh several private- and public-interest factors. Sheffer v. Novartis Pharm. Corp. , 873 F.Supp.2d 371, 375 (D.D.C. 2012) (citing Trout Unlimited , 944 F.Supp. at 16 ).

Although the threshold inquiry under the statute is whether the action could have been brought in the proposed transferee district, Blackhawk Consulting LLC v. Fed. Nat'l Mortg. Ass'n , 975 F.Supp.2d 57, 60 (D.D.C. 2013) (citing 28 U.S.C. § 1404(a) ), in this case, Plaintiffs do not dispute that the action could have been brought in the Southern District of Texas. See Pls.' Mem. P. & A. Opp'n Defs.' Mot.

Transfer Venue ("Pls.' Opp'n") at 8, ECF No. 41. Thus, "this Court's only task is to determine whether the private and public interest factors weigh in favor of or against transfer." Pls.' Opp'n at 8; see Sheffer , 873 F.Supp.2d at 375. For the reasons stated below, the Court finds that Defendants have failed to demonstrate that these factors weigh in favor of venue transfer. Accordingly, this Court denies Defendants' motion.

1. Private Interest Considerations

To resolve Defendants' motion, the Court must first consider certain "private-interest factors." Sheffer , 873 F.Supp.2d at 375. These factors roughly break down into three categories: (1) the preferred forum of the parties, (2) the location where the claim arose, and (3) factors of convenience. Id.

a. The Preferred Forum of Each Party

In this case, neither of the parties' forum preferences are entitled to significant weight. Ordinarily, a plaintiff's choice of forum is afforded "considerable deference." S. Utah Wilderness Alliance v. Norton , 315 F.Supp.2d 82, 86 (D.D.C. 2004). However, that choice is "conferred less deference by the court when [it] is not the plaintiff's home forum." Shawnee Tribe v. United States , 298 F.Supp.2d 21, 24 (D.D.C. 2002) (citing Piper Aircraft Co. v. Reyno , 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). Here, two of the three Plaintiffs are currently detained in Texas, and the third is currently located in California. See TAC ¶¶ 76, 79, 80. Plaintiffs claim no specific personal connection to the District of Columbia, nor do they make any argument that it should be considered their home. See Pls. Opp'n at 10. Thus, Plaintiffs' choice of forum does not weigh as strongly against transfer as it would if they resided in the District, and their preference is partly balanced against Defendant's preference for the Southern District of Texas. The parties' respective forum preferences, on balance, weigh only slightly against transfer. See Foote v. Chu , 858 F.Supp.2d 116, 121 (D.D.C. 2012) (where the plaintiffs and defendants resided outside of the District, holding that "the parties' respective forum preferences weigh against transferring the case, although not as strongly as it would if Plaintiff resided in this District.")

b. Location Where the Claims Arose

The parties strongly dispute whether Plaintiffs' claims arose primarily in the District of Columbia or in the Southern District of Texas. The D.C. Circuit has cautioned that "[c]ourts in this circuit must examine challenges to ... venue carefully to guard against the danger that a plaintiff might manufacture venue in the District of Columbia." Cameron v. Thornburgh , 983 F.2d 253, 256 (D.C. Cir. 1993). However, when a plaintiff directly challenges a policy promulgated in the District of Columbia, "the interests of justice could well favor venue [in this District]." Aishat v. DHS , 288 F.Supp.3d 261, 270 (D.D.C. 2018). For example, in Ravulapalli v. Napolitano , a court in this jurisdiction held that the claims in that case arose primarily in the District of Columbia when "officials at the United States Citizen and Immigration Services ("USCIS") Texas Service Center denied Plaintiff's I-485 applications based on policy guidance issued from USCIS headquarters in the District of Columbia." 773 F.Supp.2d 41, 56 (D.D.C. 2011).

This principle is supported, rather than undercut, by Defendants' case law. Defendants filed a Notice of Supplemental Authority directing the Court to Aishat , which they characterized as a recent case in which the District "granted a motion to transfer venue ... with factual circumstances that are analogous to this case." Def.'s Notice Supplemental Auth. at 1, ECF No. 70. But rather than support Defendants' argument, Aishat suggests that venue is proper in this District. In Aishat , the plaintiff sued DHS, USCIS, and agency employees in both Washington D.C. and Texas seeking to compel USCIS to resolve his naturalization application after years of delays by its Dallas Field Office. 288 F.Supp.3d at 264-65. In his briefing, but importantly not in his complaint, the plaintiff argued that USCIS had implemented an agency-wide policy mandating denial or delay of applications from Middle Eastern or South Asian individuals, a group including the plaintiff. Id. at 269-70. The court noted that "[w]ere [the plaintiff] directly challenging [the policy], the [c]ourt agrees that the interests of justice could well favor venue here ... [p]erhaps even challenging the Dallas Field Office's application of [the policy] to him would suffice." Id. at 269 (citing Ravulapalli , 773 F.Supp.2d at 56 ). But because the plaintiff did not raise those challenges in his complaint, they were not entitled to sufficient weight to sustain venue in the District when the plaintiff's core allegations related to his individualized naturalization decision made in Texas. Id.

Here, Plaintiffs emphasize that "[they] are not seeking review of ICE's exercise of discretion in reaching their individualized parole decision." Pls. Opp'n at 8. Rather, Plaintiffs claim that Texas-based Defendants improperly denied parole requests "in compliance with the official policies promulgated by the D.C. based Defendants." Id. ; TAC ¶¶ 52, 96. Plaintiffs argue that their "cause of action therefore arises from this national policy, not the low-level decisions of individual officers who were bound by such policy." Id. at 9. Thus, as discussed in Ravulapalli and Aishat , because Plaintiffs in this case are challenging the application of a purported policy that supposedly emanated from an agency located in the District of Columbia, the Court finds that this factor weighs in favor of retaining venue.

c. Convenience Factors

Next, the Court must consider certain convenience factors. Specifically, the Court considers the convenience of the parties, convenience of witnesses, and ease of access to sources of proof. Here, these factors are in equipoise. Plaintiffs are detained or reside in Texas and California, and Defendants reside in Texas and the District of Columbia. Defs.' Mot. Transfer Venue ("Defs. Motion") at 12, EFC No. 38-1; Pls.' Opp'n at 13. Likewise, it is very likely that important witnesses and documents will likely be found in both Texas and the District of Columbia. Indeed, ICE field officers who participated in Plaintiffs' parole determinations and documents relating to those detentions will likely be located in Texas. Defs. Mot. at 12-13. On the other hand, the government officials who allegedly established, developed, and promoted the policy at the heart of this case, and the documents relating thereto, will likely be found, if at all, in the District of Columbia. Defs. Suppl. Mot. at 6. Therefore, the convenience factors weigh neither in favor of nor against transfer.

2. Public Interest Considerations

The Court next considers certain public-interest considerations. Specifically, it considers (1) the transferee district's familiarity with the governing law; (2) the relative congestion of the courts of the transferor and potential transferee; and (3) the local interest in deciding local controversies at home. Onyeneho v. Allstate Ins. Co. , 466 F.Supp.2d 1, 3 (D.D.C. 2006).

Because this case involves only federal law claims, the first factor does not weigh either for or against transfer because all federal courts are equally competent to resolve such matters. See, e.g., Nat'l Wildlife Fed'n v. Harvey , 437 F.Supp.2d 42, 49 (D.D.C. 2006) (holding that "both courts are competent to interpret the federal statutes involved[,] ... there is no reason to transfer or not transfer based on this factor").

The parties each cite favorable statistical evidence regarding the second factor, but Defendants' statistics are slightly more persuasive. Plaintiffs maintain that "the Southern District of Texas is far more congested than that of the District of Columbia." Pls. Opp'n at 16. Plaintiffs present statistics showing that, as of September 2017, there were 12,497 pending cases in the Southern District of Texas, averaging 658 pending cases per judge, while there were 3,942 cases pending in the District of Columbia, averaging 263 pending cases per judge. Id. Defendants, however, argue that "the chart for 2016 suggests the docket is relatively less congested in the Southern District of Texas," and they present statistics showing that "median length for a civil case that goes to trial in the District of Columbia is 31 months, and in the Southern District of Texas is 24 months." Defs. Mot. at 15. Given the statistics, the Court considers the District of Columbia to be slightly more congested because cases appear to move more slowly in this District. "Those raw statistics, however, may overstate the difference, as they 'provide, at best, only a rough measure of the relative congestion of the dockets in the two districts.' " Aishat v. U.S. Dep't of Homeland Sec. , 288 F.Supp.3d 261, 271 (D.D.C. 2018) (citing United States v. H & R Block, Inc. , 789 F.Supp.2d 74, 84-85 (D.D.C. 2011). Accordingly, this factor weighs only slightly in favor of transfer, and on balance it does not overcome the factors weighing against transfer.

Finally, the potential national significance of this dispute dictates that the third public-interest factor weighs against transferring the case to satisfy a local interest. Defendants argue that "there is a strong local interest for the courts in the Southern District of Texas in deciding [this dispute]," Defs. Mot. at 15-16, because Plaintiffs are or were detained in Texas and most of the discretionary parole determinations were made by federal officials there. But, in determining whether a controversy is local, courts have often considered a variety of different factors other than where Plaintiffs are located or where the challenged decision was made. These other factors include, "whether the decision directly affected the citizens of the transferee state; the location of the controversy, whether the issue involved federal constitutional issues rather than local property laws or statutes; whether the controversy involved issues of state law, whether the controversy has some national significance; and whether there was personal involvement by a District of Columbia official." Otay Mesa Prop. L.P. v. U.S. Dep't of Interior , 584 F.Supp.2d 122, 126 (D.D.C. 2008) (citing Nat'l Wildlife Fed'n , 437 F.Supp.2d at 49 ; Sierra Club v. Flowers , 276 F.Supp.2d 62, 70 (D.D.C. 2003) ).

Plaintiffs have been clear that their challenge is not based on the specific decisions made by federal officials in Texas, but rather upon an alleged national policy promulgated by DHS, which carries with it nationwide significance. Thus, the Court concludes that the Southern District of Texas has no particular localized interest in this litigation. Ravulapalli , 773 F.Supp.2d at 56 (holding that transferee forum had no localized interest where "plaintiffs' claims focus primarily on the policies issued from [D.C.] headquarters that apply to all [regional] offices" (citing Otay Mesa Prop. L.P. , 584 F.Supp.2d at 126-27 ) ).

* * *

After weighing the relevant private and public interest considerations, the Court concludes that, on balance, those considerations favor retaining venue in this District, albeit slightly. Because the injuries perceived by Plaintiffs allegedly stem from policies that were conceived, promoted, and implemented by government officials in the District of Columbia, their claims hold a close connection to this forum. While many of the factors discussed above, including factors of convenience, do not clearly favor one forum over the other, on balance they do not weigh in favor of transfer. Accordingly, the Court concludes that the Defendants have failed to meet their burden to show that considerations of convenience and the interest of justice favor transferring this matter to the Southern District of Texas.

V. ANALYSIS OF PLAINTIFFS' MOTION TO SUPPLEMENT THEIR PRELIMINARY INJUNCTION APPLICATION

The Court next considers whether Plaintiffs may supplement their preliminary injunction application for a second time. In their first amended application, Plaintiffs asked the court to:

1. Enjoin the application of 8 C.F.R. § 1003.19(h)(2)(i)(B) against Plaintiffs, which would deprive them of a bond hearing before an immigration judge;

2. Enjoin Defendants from considering the deterrence of immigration in evaluating Plaintiffs' requests for parole; and

3. Enjoin Defendants from violating ICE Policy Directive 11002.1 in evaluating Plaintiffs' requests for parole.

Pls.'First Am. Appl. Prelim. Inj. at 1-4. In their second amended application ("SAA"), Plaintiffs ask the court to:

1. Enjoin any further detention of the Plaintiffs in the absence of a custody hearing before an immigration judge "which results in a finding that that detention is necessary to prevent flight or serious danger to the community";

2. Enjoin the application of 8 C.F.R. § 1003.19(h)(2)(i)(B), and any related rules which would deprive Plaintiffs of a bond hearing before an immigration judge, against Plaintiffs;

3. Enjoin Defendants from considering immigration deterrence in evaluating Plaintiffs' requests for parole; and

4. Enjoin Defendants from violating ICE Policy Directive 11002.1 in evaluating Plaintiffs' requests for parole.

Pls.' Second Am. Appl. Prelim. Inj. at 2, ECF No. 79-1.

Plaintiffs claim that the SAA is necessary to crystallize the relief sought because "Defendants still would not grant a bond hearing before an immigration judge even if the exclusion clause in 8 C.F.R. § 1003.19(h) were enjoined from application to the Plaintiffs." Pls.' Mot. Suppl. Prayer Relief ("Pls.' Mot. Supp.") ¶ 2 n.1, ECF No. 79. The SAA is therefore intended to "provide for more flexible relief, and thereby prevent continued disputes," by expanding the relief sought with respect to bond hearings. Id. ¶ 3. In support of the SAA, Plaintiffs have adopted in full their previously filed Amended Memorandum in Support of their Application for Preliminary Injunction. Id. ¶ 6.

Defendants assert five reasons why the Court should not grant Plaintiffs' motion. First, "Plaintiffs improperly rely on Federal Rule of Civil Procedure 15" in support of their motion. Def.'s Mot. Opp'n Pls.' Mot. Supp. Prayer Relief ("Def.'s Opp'n Supp.") at 4-5, ECF No. 86. Second, Plaintiffs fail to properly support the SAA with law and facts. Id. at 5-6. Third, the SAA is "a litigation strategy to forestall this Court's consideration of the venue motion." Id. at 6-7. Fourth, the SAA seeks the ultimate relief sought in this case. Id. at 7-8. And fifth, the SAA "is seeking habeas relief, which this Court cannot provide." Id. at 8.

The Court need only address whether Plaintiffs have legal authority to supplement their preliminary injunction application, because Defendants' other four reasons may be swiftly disposed of. While Plaintiffs have not filed a new memorandum of law and facts in support of the SAA, they clearly state that they rely on their previously filed, and fully briefed, memorandum to support it. Pls.' Mot. Supp. ¶ 6. If that memorandum does not justify the requested relief, the Court will deny it. Further, the SAA has had no impact on the timing of the Court's determination of whether the case should be transferred, which should be clear from the fact that the Court is disposing of both motions simultaneously. Next, Defendants' argument that the SAA seeks the ultimate relief sought in this case will be addressed in the Courts' evaluation of the SAA's merits. Finally, as discussed above, Plaintiffs need not bring their claims by way of habeas.

The Court now turns to Defendants' contention that Plaintiffs do not have authority to supplement their preliminary injunction application. Defendants correctly note that a motion is not, under normal circumstances, considered a pleading, which means that Federal Rule 15, addressing pleading amendments, is inapplicable here. Def.'s Opp'n Supp. at 4-5; see Marsh v. Johnson , 263 F.Supp.2d 49, 53-54 (D.D.C. 2003). That is not fatal to the SAA, however, because the Court need not rely on a Federal Rule when exercising its discretion.

The Supreme Court has long recognized that "a district court possesses inherent powers that are 'governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.' " Dietz v. Bouldin , --- U.S. ----, 136 S.Ct. 1885, 1891, 195 L.Ed.2d 161 (2016) (quoting Link v. Wabash R. Co., 370 U.S. 626, 630-631, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) ). Accordingly, the Court has broad discretion to allow a party to amend a motion to "ensure that the case is adjudicated fairly and justly," particularly when "the adverse parties will not be prejudiced by the amendment." 5 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1194 (3d ed. 2018). Defendants vaguely assert that the SAA "does not meet this standard," but they provide no support for that assertion. Def.'s Opp'n Supp. at 5. The SAA has not delayed the Court's resolution of Plaintiffs' motion for a preliminary injunction and Defendants' motion to transfer venue, nor does it meaningfully alter the issues argued in the parties' preliminary injunction briefing. The SAA merely repeats the relief sought in Plaintiffs' previous application, Pls.' First Am. Appl. Prelim. Inj. at 1-2, and clarifies that Plaintiffs seek to enjoin their detention in the absence of a bond hearing before an immigration judge. Pls.' Second Am. Appl. Prelim. Inj. at 2. This clarity will assist the court in ensuring that the case is adjudicated fairly and justly.

Furthermore, "[c]rafting a preliminary injunction is an exercise of discretion and judgment," and in exercising its judgment a court "need not grant the total relief sought by the applicant but may mold its decree to meet the exigencies of the particular case." Trump v. Int'l Refugee Assistance Project , --- U.S. ----, 137 S.Ct. 2080, 2087, 198 L.Ed.2d 643 (2017) (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2947 at 115 (3d ed. 2013) ) (internal quotation marks omitted). This Court's discretion in granting preliminary injunctive relief is therefore not constrained by the relief Plaintiffs explicitly seek, and the SAA does not allow the Court to impose relief that it could not already impose under Plaintiffs' previous application. In light of the Court's discretion, it is unclear how Defendants would be prejudiced by allowing Plaintiffs to refine their request for relief.

* * *

For the reasons stated above, the Court grants Plaintiffs' motion to supplement the prayer for relief in their application for a preliminary injunction. For the same reasons, the Court also exercises its discretion to grant Plaintiffs' recent motion to update their preliminary injunction exhibits. The Court will now address Plaintiffs' motion for a preliminary injunction.

VI. PRELIMINARY INJUNCTION ANALYSIS

Plaintiffs assert (1) that their detention without access to bond hearings before immigration judges violates their Constitutional rights; and (2) that pursuant to a nationwide, unwritten policy, ICE improperly considered immigration deterrence as a factor in evaluating whether they should be paroled under 8 U.S.C. § 1182(d)(5)(A). Plaintiffs seek preliminary injunctive relief in the form of an order (1) requiring that they be provided bond hearings before immigration judges if their detention continues; (2) enjoining ICE officials from considering deterrence as a factor in their parole decisions going forward; and (3) mandating that ICE officials follow the Morton Directive in their parole decisions. See generally Pls.' Second Am. Appl. Prelim. Inj. Defendants argue that even if Plaintiffs' motion overcomes certain threshold obstacles, they have not shown that they are entitled to preliminary injunctive relief. The Court first considers Defendants' justiciability and jurisdictional arguments, then it addresses Plaintiffs' merits arguments. As explained below, the Court concludes that it may review the merits of Plaintiffs' arguments, and it holds that Plaintiffs have met their burden of establishing that, as a preliminary matter, they are entitled to parole determinations in compliance with the Morton Directive, but not that they are entitled to bond hearings before immigration judges.

A. Threshold Issues

Defendants lodge two general threshold objections to this Court's review, and two threshold objections specific to Plaintiffs' APA claims. With respect to the entirety of Plaintiffs' motion, Defendants argue that (1) the Court is statutorily barred from reviewing what Defendants characterize as discretionary decisions by ICE officials; and (2) this suit is moot, because Plaintiffs have already received the relief that they seek under the Morton Directive. Defs.' Opp'n at 2-3. With respect to Plaintiffs' APA claims, Defendants argue that (1) Defendants' alleged policy is not a final agency action subject to APA review; and (2) habeas is an adequate alternate remedy to the APA, such that APA review is improper. Id. The Court disagrees with each objection.

1. The Court's Jurisdiction

Defendants' first challenge to the justiciability of Plaintiffs' suit rests on 8 U.S.C. § 1252(a)(2)(B)(ii), which bars judicial review of discretionary decisions made under the INA. Defendants assert that the Court lacks jurisdiction to consider Plaintiffs' claims because the statutory bar covers judicial review of "the decision to grant or deny parole and the underlying determinations made by ICE in arriving at parole decisions." Defs.' Opp'n at 17. Plaintiffs do not contest that § 1252(a)(2)(B)(ii) bars judicial review of individual parole determinations, and they concede that they "do not ask the Court to interfere with the ultimate parole determination in each of their cases." Pls.' Reply at 12. Rather, they argue that the statutory bar does not prevent the Court from evaluating "Defendants' failure to follow procedures set out in the [Morton Directive] and their unlawful consideration of deterrence as a heavily weighted criterion when evaluating requests for parole." Id. The Court is persuaded by Plaintiffs' interpretation of the provision.

Under § 1252(a)(2)(B)(ii), "no court shall have jurisdiction to review ... any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security," with the exception of determinations regarding eligibility to apply for asylum under § 1158(a). "[T]his subchapter" includes § 1182(d)(5)(A), which provides the Secretary of Homeland Security with authority to parole aliens "in his discretion ... temporarily under such conditions as he may prescribe." See also 8 C.F.R. § 212.5(a), (b). In other words, the parole decisions from which this action arises are discretionary, and are therefore not reviewable by this Court pursuant to § 1252(a)(2)(B)(ii).

While § 1252(a)(2)(B)(ii) undoubtedly bars judicial review of individual parole decisions, courts have declined to apply it to claims challenging the legality of policies and processes governing discretionary decisions under the INA. For instance, in Zadvydas v. Davis , which involved statutory and Constitutional challenges to the legality of the plaintiffs' detention pending removal from the United States, the Supreme Court held that § 1252(a)(2)(B)(ii) did not bar judicial review because the plaintiffs challenged "the extent of the Attorney General's authority under the post-removal-period detention statute ... the extent of that authority is not a matter of discretion." 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Similarly, in Hernandez v. Sessions , the Ninth Circuit held that § 1252(a)(2)(B)(ii) did not bar judicial review of a Constitutional challenge to immigration judges' bond determinations, because the plaintiffs claimed "that the discretionary process itself was constitutionally flawed at their initial bond determinations." 872 F.3d 976, 988 (9th Cir. 2017). Finally, in Jafarzadeh v. Duke , another court in this jurisdiction held that § 1252 did not bar judicial review of APA and Constitutional challenges to USCIS's administration of a "secret" nationwide policy for processing certain immigration-related applications, because the provision did "not encompass plaintiffs' challenge to the process USCIS used to adjudicate [a plaintiff's] application." 270 F.Supp.3d 296, 308-10 (D.D.C. 2017).

The Western District of New York recently applied this principle in Abdi v. Duke , in which the plaintiffs claimed that the same deterrence policy challenged here violated the APA and their Constitutional rights. 280 F.Supp.3d 373, 381 (W.D.N.Y. 2017). The defendants argued in Abdi that § 1252(a)(2)(B)(ii) barred the court from considering plaintiffs' claims and, as is the case here, the plaintiffs claimed that the statutory bar was inapplicable because their challenges related to ICE's procedures in administering parole, rather than the discretionary parole decisions themselves. Id. at 383. Rejecting the defendants' jurisdictional argument, the Abdi court held that review of "the ultimate decision regarding parole ... would plainly fall outside [the] Court's jurisdiction," but "[the plaintiffs] are asking that this Court ensure that [the defendants] comply with certain policies and procedures in making that parole decision-issues that are beyond the jurisdictional bar." Id. at 384.

Here, as in the cases above, Plaintiffs raise Constitutional and statutory challenges to the process by which they were detained, including the policies under which Defendants make parole determinations and the framework by which Plaintiffs are deprived of bond hearings before immigration judges. See generally TAC. And they have made explicitly clear that they are not seeking review of their individual parole determinations, nor are they seeking release from detention. See Pls.' Am. Mem. at 20 ("Plaintiffs challenge the Defendants' deterrence policy , not the individual decisions reached in their parole cases."); Pls.' Reply at 12. The Court is thus persuaded that § 1252(a)(2)(B)(ii) does not bar Plaintiffs' claims. See Damus v. Nielsen , No. 18-578, 313 F.Supp.3d 317, 326-28, 2018 WL 3232515, at *5 (D.D.C. July 2, 2018).

Nearly all of the cases cited by Defendants in support of their argument are inapposite because they involve challenges to the types of individual discretionary decisions which clearly fall within the scope of § 1252(a)(2)(B)(ii), and which are not at issue here. In most of the cited cases, the plaintiff sought to override an individual custody determination made by an agency official. See Altagracia v. Sessions , No. 16-6647, 2017 WL 908211, at *2 (W.D.N.Y. Mar. 7, 2017) ; Milardo v. Kerilikowske , No. 16-MC-99, 2016 WL 1305120, at *6, 9 (D. Conn. Apr. 1, 2016) ; United States v. Bush , No. 12-92, 2015 WL 7444640, at *1 (W.D. Pa. Nov. 23, 2015) ; Dugdale v. U.S. Customs and Border Protection , No. 14-1175, 2015 WL 2124937, at *1 (D.D.C May 6, 2015) ; Naul v. Gonzales , No. 05-4627, 2007 WL 1217987, at *2 (D.N.J. Apr. 23, 2007). Giammarco v. Kerlikowske did not involve a direct challenge to an individual custody determination, but the plaintiff sought authorization for temporary reentry to the United States, which would functionally reverse his individual custody determination. 665 Fed. App'x 24, 25-26 (2d. Cir. 2016).

Defendants do, however, cite one case that is factually similar to this action. In that case, Gebhardt v. Nielsen , the Ninth Circuit held that it lacked jurisdiction to hear the plaintiff's challenge to an agency's standards for evaluating Legal Permanent Residence applications. 879 F.3d 980, 987 (9th Cir. 2018). However, the Gebhardt plaintiff did not claim that the standards at issue were inconsistent with other binding agency policies, as Plaintiffs do here, and the Ninth Circuit acknowledged that it has jurisdiction over challenges to "pattern and practice" claims and Constitutional challenges related to discretionary decisions. Id. The Court is unpersuaded by Defendants' cited authorities.

2. Mootness

Defendants next assert that Plaintiffs lack standing to bring their claims because they "have in fact already received the relief they seek: a parole determination consistent with the [Morton Directive]." Defs.' Opp'n at 16. Defendants neglect to address that Plaintiffs also seek bond hearings before immigration judges, TAC ¶¶ 114-115, and the fact that Plaintiffs have not obtained that relief is alone sufficient to keep this case alive. See, e.g., Schnitzler v. United States , 761 F.3d 33, 37-38 (D.C. Cir. 2014) (reversing a district court's dismissal of a pro se complaint because, among other things, the district court had adopted too narrow a construction of the relief sought and failed to recognize that plaintiff had not received full relief); Singh v. Carter , 185 F.Supp.3d 11, 19 (D.D.C. 2016) (concluding that an offer of a "long-term religious accommodation" did not render moot plaintiff's request for a "permanent religious accommodation" because defendant had not given plaintiff the entire relief sought). Regardless, the Court disagrees that the record provides a basis for a finding of mootness.

Article III of the Constitution permits federal courts to adjudicate only "actual, ongoing controversies." Honig v. Doe , 484 U.S. 305, 317, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). This limitation gives rise to the doctrine of mootness. See Campbell-Ewald Co. v. Gomez , --- U.S. ----, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016). "A case is moot when a party has already obtained all the relief that it has sought." Schnitzler , 761 F.3d at 37 (internal citations and quotation marks omitted). Under such circumstances, a case should be dismissed when "events have so transpired that the decision [of the court] will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future." Pharmachemie B.V. v. Barr Labs., Inc. , 276 F.3d 627, 631 (D.C. Cir. 2002) (internal citation omitted).

"As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot." Campbell-Ewald Co. , 136 S.Ct. at 669 (quoting Chafin v. Chafin , 568 U.S. 165, 172, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013) ); see also Knox v. Serv. Emps. Int'l Union, Local 1000 , 567 U.S. 298, 307, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) ("A case becomes moot only when it is impossible for a court to grant 'any effectual relief whatever' to the prevailing party.") (quoting Erie v. Pap's A.M. , 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) ). Furthermore, a "party's prospects of success on a claim are not pertinent to the mootness inquiry." Looks Filmproduktionen GmbH v. CIA , 199 F.Supp.3d 153, 179 (D.D.C. 2016) (alterations and internal quotation marks omitted) (quoting Schnitzler , 761 F.3d at 39 ).

With regard to Plaintiffs' demand for parole determinations in accordance with the Morton Directive, Defendants conflate merits questions about whether they have properly followed the Directive-a subject of the parties' dispute-with mootness questions about whether this Court can offer meaningful relief. Both the Supreme Court and the D.C. Circuit have cautioned that "prospects of success" on a claim "are not pertinent to the mootness inquiry." Schnitzler , 761 F.3d at 39 n.8 (quoting Chafin , 568 U.S. at 174, 133 S.Ct. 1017 (internal quotation marks omitted) ). Indeed, the Circuit has explained that "[i]n considering possible mootness[, courts] assume that the plaintiffs would be successful on the merits." Judicial Watch, Inc. v. Kerry , 844 F.3d 952, 955 (D.C. Cir. 2016). Here, a decision that this case is moot based on a finding that Defendants provided lawful parole determinations would run afoul of this principle. Cf. Muir v. Navy Fed. Credit Union , 529 F.3d 1100, 1106 (D.C. Cir. 2008) ("[W]hether a statute has been violated 'is a question that goes to the merits ... and not to constitutional standing.' ") (quoting La. Energy & Power Auth. v. FERC, 141 F.3d 364, 367-68 (D.C. Cir. 1998) ). Defendants' self-serving declaration that ICE officials complied with its Directive does not suffice to divest this Court of jurisdiction to determine whether it did so. See, e.g., Schnitzler , 761 F.3d at 39 (explaining that "whether or not the government's policy explanations are reasonable under the [APA] is a merits question, not a question of the court's jurisdiction"); Ramirez v. ICE , No. 18-0508, 310 F.Supp.3d 7, 19-20, 2018 WL 1882861, at *7 (D.D.C. Apr. 18, 2018) (holding that "there was no mootness barrier" to the plaintiffs' suit where ICE claimed that it had already complied with the statutory provision that the plaintiffs argued had been disregarded).

In any event, as explained in detail below, the Court disagrees that the evidence on record shows that Defendants complied with the Morton Directive. Thus, even if this Court could consider the merits of Plaintiffs' claims in assessing whether this case is moot, it would not side with Defendants. The record indicates that Defendants considered factors inconsistent with the Morton Directive in determining whether Plaintiffs were entitled to parole. Accordingly, this Court concludes that there is no mootness barrier to Plaintiffs' suit.

3. Final Agency Action

Defendants next assert that "Plaintiffs cannot invoke the APA as a basis to challenge their ongoing detention because they do not allege any cognizable final agency action promulgating or effecting their alleged deterrence policy that is reviewable under the APA." Defs.' Opp'n at 34. They claim that Plaintiffs' failure to identify a "regulation, letter, memorandum, or other form of written material that comprises [ICE's deterrence policy] ... is fatal to Plaintiffs' claims." Id. The Court rejects this argument, too.

Agency actions are reviewable by a court under the APA only if they are final. See 5 U.S.C. § 704 (establishing reviewability of "final agency action"). Courts take a pragmatic approach to finality. U.S. Army Corps of Eng'rs v. Hawkes Co., Inc. , --- U.S. ----, 136 S.Ct. 1807, 1815, 195 L.Ed.2d 77 (2016). As the Supreme Court established in Bennett v. Spear , a court will find that an agency action is final if two conditions are met: "First, the action must mark the consummation of the agency's decisionmaking process-it must not be of a merely tentative or interlocutory nature... second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow." 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Where there is no final agency action, a plaintiff has no cause of action under the APA.

Despite Defendants' assertions to the contrary, agency action need not be in writing to be judicially reviewable as a final action. See Venetian Casino Resort LLC v. EEOC, 530 F.3d 925, 929 (D.C. Cir. 2008) (entertaining an APA challenge to the agency's "decision ... to adopt [an unwritten] policy of disclosing confidential information without notice" because such a policy is "surely a consummation of the agency's decisionmaking process" and it impacted the plaintiff's rights); R.I.L-R , 80 F.Supp.3d at 184 (holding that ICE's deterrence policy is a final agency action subject to APA review, despite the lack of a writing memorializing the policy); Ramirez , 310 F.Supp.3d at 20-21, 2018 WL 1882861, at *8 (holding that ICE's consistent failure to apply certain factors in making individual custody decisions was a final agency action subject to APA review). A con