S.A. v. Trump (363 F. Supp. 3d 1048, 2018)

United States District Court for the Northern District of California 2018-12-10

Government Organization and Employees Domestic Security Aliens and Nationality

Citations

Full opinion text

LAUREL BEELER, United States Magistrate Judge TABLE OF CONTENTS

INTRODUCTION...1053

STATEMENT...1056

1. The Immigration and Nationality Act and Parole Generally...1056

2. The Complaint...1056

2.1 September-December 2014: The Creation of the CAM Parole Program...1056

2.2 2014-2016: The Operation of the CAM Program...1057

2.3 2015-Present: Donald Trump's Statements Regarding Latinos...1059

2.4 January 2017: Executive Order 13,767...1061

2.5 January 2017: The Alleged "Secret Shutdown" of the CAM Program...1061

2.6 February 2017: The Kelly Memorandum...1063

2.7 August 2017: Termination of the CAM Parole Program...1064

3. The Administrative Record...1065

3.1 2014-2016: The Record Regarding the Operation of the CAM Parole Program...1065

3.2 August 2017: The Record Regarding the Termination of the CAM Parole Program...1070

STANDARD OF REVIEW...1074

1. Administrative Procedure Act Claims...1074

2. Other Claims...1075

ANALYSIS...1076

1. Standing...1076

2. Administrative Procedure Act...1077

2.1 Termination of the CAM Parole Program Going Forward...1077

2.1.1 Whether termination violated the APA for failure to articulate a "satisfactory explanation"...1078

2.1.2 Whether termination violated the APA for failure to provide explanations in the Federal Register...1084

2.1.3 Whether termination violated the APA for failure to take into account "serious reliance interests"...1085

2.1.4 Whether termination violated the APA for failure to "consider an important aspect of the problem"...1087

2.1.5 Whether DHS's decision to stop processing CAM Program applications from January 2017 to August 2017 was a "secret shutdown" of the Program that violated the APA...1088

2.2 Rescinding Conditional Approvals of Parole...1089

3. Due Process...1091

4. Equal Protection...1093

5. Equitable Estoppel...1096

CONCLUSION...1096

INTRODUCTION

Under the Immigration and Nationality Act ("INA"), the Secretary of Homeland Security has discretion to parole foreign nationals into the United States "temporarily" and "only on a case-by-case basis for urgent humanitarian reasons or significant public benefit[.]"

8 U.S.C. § 1182(d)(5)(A). Parole does not constitute admission in a valid immigration or nonimmigrant status, but it allows a foreign national to enter and physically be present in the United States.

In 2014, the government instituted a program called the Central American Minors ("CAM") Program, which allowed parents who were lawfully present in the United States to apply to bring their children and other qualifying family members in three countries - Honduras, Guatemala, and El Salvador, collectively known as the "Northern Triangle" - to reunite with them in the United States. A goal of the Program was to discourage children from making the long and dangerous journey from the Northern Triangle to the United States to try to reunite with their parents; the Program sought to achieve this goal by allowing applicant parents to apply for their beneficiary children while their children remained in their original countries.

The CAM Program had two components: a refugee component and a parole component. U.S. Citizenship and Immigration Services ("USCIS"), an agency within the U.S. Department of Homeland Security ("DHS"), first evaluated beneficiaries to see if they qualified for refugee status (which, among other things, requires persecution or a well-founded fear of persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion"). If the beneficiaries qualified, USCIS referred them for approval as refugees under the CAM Refugee Program. If they did not qualify, USCIS automatically considered them for parole into the United States under the CAM Parole Program.

By the end of 2016, USCIS had interviewed over 5,500 beneficiaries. It approved 99% for either refugee resettlement or parole under the CAM Program: it approved approximately 30% interviewed beneficiaries as refugees and approximately 99% of the remaining beneficiaries (69% out of 70%) for parole. Over 1,335 beneficiaries arrived in the United States.

In January 2017, following a change in presidential administrations, incoming president Donald Trump issued an Executive Order that (among other things) directed the Secretary of Homeland Security to "take all appropriate action" to ensure that DHS exercised its parole authority "only on a case-by-case basis" and "only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole." DHS stopped processing CAM Program applications - including the applications for beneficiaries who had been conditionally approved for parole and were awaiting processing to finalize their arrangements to travel to the United States - and began a review of the CAM Parole Program. In August 2017, DHS announced that it was terminating the CAM Parole Program. It also announced that it was rescinding parole for the approximately 2,700 beneficiaries who had been conditionally approved for parole but who had not yet traveled to the United States. It stated that those individuals, and other individuals who wanted to apply for parole, could still do so independent of the CAM Parole Program but that it would no longer award parole through the Program.

The plaintiffs in this case - applicant parents lawfully residing in the United States who applied to the CAM Program, their beneficiary children in Northern Triangle countries, and the nonprofit immigrant-rights organization CASA - filed this putative class-action lawsuit against President Trump, DHS, USCIS, the Secretary of Homeland Security, the Director of USCIS, the State Department, the Secretary of State, and the United States, alleging that the government's termination of the CAM Parole Program and its rescinding of conditional approvals of parole were unlawful. The plaintiffs bring the following four categories of claims:

1. claims under the Administrative Procedure Act ("APA"), arguing that the government's termination of the CAM Parole Program and rescinding of conditional approvals for parole were arbitrary and capricious,

2. a claim under the Due Process Clause, arguing that the applicant-parent plaintiffs have a constitutionally protected liberty interest in the companionship and society of their family members in Central America, and that the government deprived them of this liberty interest without due process by terminating the CAM Parole Program in an arbitrary, irrational, and unlawful manner,

3. a claim under the equal-protection component of the Due Process Clause, arguing that the government's termination of the CAM Parole Program was substantially motivated by discriminatory animus by President Trump and the Trump Administration toward Latinos, and

4. a claim for equitable estoppel, arguing that the government engaged in affirmative misconduct by publicly representing between January 2017 and August 2017 that the CAM Parole Program was still in operation, when it actually had been secretly terminated.

The putative class is all applicants and beneficiaries who applied for the CAM Program before August 16, 2017, who were denied refugee status under the CAM Refugee Program, and who then were denied parole under the CAM Parole Program due to its termination.

The plaintiffs moved for a preliminary injunction (1) enjoining the government from terminating the CAM Parole Program and (2) requiring the government to reinstate the conditional approvals of parole that were rescinded pursuant to that termination. The defendants moved to dismiss the complaint.

This order addresses the defendants' motion to dismiss. (The court will address the plaintiffs' motion for a preliminary injunction in a separate order.) The court denies the motion to dismiss the plaintiffs' APA claims as they relate to the government's mass-rescinding conditional approvals of parole made under the CAM Parole Program. In all other respects, the court grants the defendants' motion to dismiss.

STATEMENT

1. The Immigration and Nationality Act and Parole Generally

The INA provides that the Secretary of Homeland Security "may, [subject to certain exceptions], in [her] discretion parole into the United States temporarily under such conditions as [s]he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States[.]" 8 U.S.C. § 1182(d)(5)(A). The INA also provides that "such parole of such alien shall not be regarded as an admission of the alien[.]" Id. The INA further provides that "when the purposes of such parole shall, in the opinion of the [Secretary], have 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. The Secretary's parole authority is in turn delegated to various DHS officials. 8 C.F.R. § 212.5(a).

2. The Complaint

2.1 September-December 2014: The Creation of the CAM Parole Program

The government first proposed the CAM Program on September 18, 2014, as part of the President's annual recommendations to Congress on proposed refugee admissions for the following year, pursuant to 8 U.S.C. § 1157(d) and (e). The annual Presidential Determination on Refugee Admissions incorporated these recommendations and provided that people in Honduras, Guatemala, and El Salvador "may, if otherwise qualified, be considered refugees for the purpose of admission to the United States within their countries of nationality or habitual residence." Presidential Determination on Refugee Admissions for Fiscal Year 2015 , 79 Fed. Reg. 69,753, 69,753 -54 (Sept. 30, 2014).

The CAM Program was structured as a dual refugee/parole program. Under the CAM Refugee Program, certain Central American parents lawfully living in the United States could apply for their minor children and qualifying family members to be considered for refugee resettlement while the family members were still in in Honduras, Guatemala, and El Salvador. Minor children and qualifying family members could be accepted as refugees if they could establish that they qualified for resettlement under U.S. law, that is, by demonstrating that they had a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion. Under the CAM Parole Program, minors and qualifying family members who were considered under the CAM Refugee Program but did not meet the specific eligibility criteria for refugee admission were automatically considered for parole pursuant to 8 U.S.C. § 1182(d)(5).

In November 2014, the Departments of State and Homeland Security released a fact sheet regarding the program (the "November 2014 Fact Sheet"). The fact sheet stated in part:

Beginning in December 2014, a parent lawfully present in the United States will be able to file Department of State form DS-7699 requesting a refugee resettlement interview for unmarried children under 21 in El Salvador, Guatemala, or Honduras. Under certain circumstances, if the second parent resides with the child in the home country and is currently married to the lawfully present parent in the United States, the second parent may be added to the child's petition and considered for refugee status, and if denied refugee status, for parole....

....

DHS will conduct interviews with each child to determine whether he or she is eligible for refugee status and admissible to the United States....

Applicants found by DHS to be ineligible for refugee status in the United States will be considered on a case-by-case basis for parole, which is a mechanism to allow someone who is otherwise inadmissible to come to the United States for urgent humanitarian reasons or significant public benefit. An individual considered for parole may be eligible for parole if DHS finds that the individual is at risk of harm, he/she clears all background vetting, there is no serious derogatory information, and someone has committed to financially support the individual while he/she is in the United States.... Parole is temporary and does not confer any permanent legal immigration status or path to permanent legal immigration status in the United States.

The CAM Program began accepting applications on December 1, 2014. In mid-2016, the government expanded the CAM Program to allow additional immediate family members of qualifying minor children to apply as "derivative" beneficiaries.

2.2 2014-2016: The Operation of the CAM Program

Individuals had to apply to the CAM Refugee Program before they could be considered for the CAM Parole Program. The process was as follows.

First, a parent lawfully residing in the United States had to file an application with the assistance of a "resettlement agency" (a nonprofit organization partially funded by the government to welcome refugees into the country) and provide proof of identity, proof of legal status in the United States, and a passport photo of the beneficiary child. Second, the International Organization for Migration ("IOM") - the intergovernmental organization that the State Department contracted to run its Resettlement Support Center in Latin America - invited the child to come to the capital of the country where the child was located so that IOM could interview the child, take the child's biometric data and background information, prepare a case file, and initiate security checks. Third, USCIS verified the relationship between parent and child through documentary evidence and DNA tests. (The parent had to pay for DNA testing, but USCIS reimbursed the parent if the testing confirmed a parent-child relationship. ) Fourth, USCIS conducted an interview with the child in the country capital. Fifth, after confirming security-check results and DNA-test results, USCIS made a determination on the refugee application and notified beneficiaries of that determination by either a decision letter or a phone call. For beneficiaries who received letters, if refugee status was denied, the letter checked one of several boxes to explain the reason for the denial and outlined the process to request a review of the refugee determination. The letter then indicated whether the child was eligible for the CAM Parole Program.

If USCIS approved a beneficiary for the CAM Parole Program, the letter said:

You have been conditionally approved for parole into the United States. Final approval is conditioned upon successful completion of any remaining clearances that are required in the screening process. These clearances include medical examination by a U.S. approved panel physician, completion of security clearance procedures, and verification of family relationships. Please see attached information sheet for next steps that must be completed for you to be paroled into the United States.

If USCIS conditionally approved a beneficiary for parole, the beneficiary had to undergo a medical examination in the country capital at the parent's expense. USCIS told the beneficiary that "IOM will contact your relative in the United States to collect payment for the medical exam" and that "[a]fter receiving payment, IOM will contact you to arrange your exam." If the beneficiary cleared the examination, he or she received a medical clearance valid for six months.

Next, USCIS told the beneficiary that "[i]f the medical results clear, IOM will contact your relatives in the United States to arrange for your flight" and that "[a]fter IOM receives payment for your travel, [it] will submit the travel itinerary to USCIS." After receiving the travel-itinerary form from IOM, USCIS "will ... [p]erform final security checks, [e]nsure the medical exam results remain valid until date of travel, and [v]erify that your relative still has a qualifying legal presence in the United States." "[I]f we decide that you have met all requirements for parole under this program, we will issue Form I-512L, Authorization for Parole of an Alien Into the United States" and that "IOM will give you this document and your plane ticket the day you fly to the United States."

Finally, after travel arrangements were made, the beneficiary traveled to a U.S. port of entry, where DHS Customs and Border Protection could authorize parole for a period of up to two years. USCIS told the beneficiary that it "will consider CAM parole extension requests for the duration of the program."

During the approximately two-and-a-half years that the CAM Program was in operation, more than 13,000 people applied, at least 1,627 individuals were able to settle in the United States as refugees, and an additional 1,465 people were able to enter the United States as parolees.

2.3 2015-Present: Donald Trump's Statements Regarding Latinos

Donald Trump launched his 2016 presidential campaign with the claim that Latin America was "not sending their best" people to the United States: "They're sending people that have lots of problems, and they're bringing those problems with us. They're bringing drugs. They're bringing crime. They're rapists.... It's coming from all over ... Latin America." Candidate Trump continued to categorize Latinos as gang members, killers, and rapists in promising to deport and exclude Latinos from the country.

The complaint lists five examples of statements by Candidate Trump or President-Elect Trump before his inauguration:

1. "On August 21, 2015, when asked to respond to a report that two of his supporters had urinated on a sleeping Latino man and then beat him with a metal pole, Candidate Trump responded, 'people who are following me are passionate. They love this country and want this country to be great again. They are passionate.' "

2. "In May 2016, Candidate Trump referred to anti-Trump protestors who carried the Mexican flag on Twitter as 'criminals' and 'thugs.' "

3. "In June 2016, Candidate Trump stated that Judge Gonzalo Curiel [of the Southern District of California] could not be fair in presiding over a lawsuit because he was 'Hispanic.' "

4. "In October 2016, during a presidential debate, then-candidate Trump responded to a question about immigration by referring to Latino immigrants as 'bad hombres' and promising that 'we're going to get them out.' "

5. "In December 2016, President-Elect Trump referred to an article about a recent crime wave on Long Island and said 'They come from Central America. They're tougher than any people you've ever met.... They're killing and raping everybody out there. They're illegal. And they are finished.' "

The complaint lists eleven examples of statements by President Trump after his inauguration:

1. "On January 25, 2017, shortly after signing executive orders calling for immediate construction of a wall along the southern U.S. border and withholding federal funds from 'sanctuary' cities, President Trump condemned the 'unprecedented surge' of migrants from Central America for eroding safety in the United States, claiming that these two orders 'will save thousands of lives.' "

2. "On January 27, 2017, newly-inaugurated President Trump and Mexico's President Peña Nieto discussed President Trump's proposal for a border wall over the phone. During that transcribed conversation, President Trump once again referred to Mexicans as 'tough hombres.' "

3. "On February 3, 2017, during a visit to the Customs and Border Protection training center, President Trump said 'You know they're bad. They're pouring in from El Salvador, Guatemala, Honduras, Mexico, all over. They're just pouring into our country!' "

4. "In February 2017, President Trump said 'What has been allowed to come into our country, when you see gang violence that you've read about like never before, and all of the things - much of that is people that are here illegally ... They're rough and they're tough ... So we're getting them out.' "

5. "On June 21, 2017, President Trump implied that thousands of immigrants are members of the Central American gang MS-13. He said 'These are true animals. We are moving them out of the country by the thousands, by the thousands.' "

6. "Similarly, on June 28, 2017, President Trump suggested that the MS-13 gang had taken over swaths of U.S. territory, and said: 'They are bad people. And we've gotten many of them out already ... We're actually liberating towns, if you can believe that we have to do that in the United States of America. But we're doing it, and we're doing it fast.' "

7. "On August 25, 2017, President Trump pardoned former Maricopa County Sheriff Joe Arpaio, who was to be sentenced for criminal contempt for failing to comply with a federal judge's order to stop racially profiling Latinos. Before issuing the pardon, President Trump asked rhetorically, 'Was Sheriff Joe convicted for doing his job?' After issuing the pardon, President Trump sent a tweet calling Mr. Arpaio 'an American patriot.' "

8. "On September 5, 2017, in conjunction with the Administration's announcement of the termination of the DACA [Deferred Action for Childhood Arrivals] program, President Trump issued a statement decrying 'the massive surge of unaccompanied minors from Central America including, in some cases, young people who would become members of violent gangs throughout our country, such as MS-13.' "

9. "On January 11, 2018, President Trump infamously referred to El Salvador as a 'shithole country' during a meeting with lawmakers about immigration, asking 'Why are we having all these people from shithole countries come here?' He then suggested that the United States should bring more people from countries such as Norway, which has an overwhelmingly white population."

10. "In February 2018, President Trump claimed that immigrants from El Salvador, Guatemala, Honduras, and Mexico are 'just pouring into our country.... These countries are not our friends, you know. We think they're our friends, and we send them massive aid ... and they're pouring drugs into our country and they're laughing at us' - returning to his common refrain that Central Americans are somehow gaming the U.S. immigration system."

11. "In May 2018, President Trump said of people crossing the Mexican border into the United States: 'You wouldn't believe how bad these people are. These aren't people. These are animals.' "

2.4 January 2017: Executive Order 13,767

On January 20, 2017, Donald Trump was inaugurated as president of the United States.

On January 25, 2017, President Trump issued Executive Order 13,767, entitled Border Security and Immigration Enforcement Improvements. Exec. Order No. 13,767, 82 Fed. Reg. 8793 (2018). The Order stated in part:

Section 1.Purpose. Border security is critically important to the national security of the United States. Aliens who illegally enter the United States without inspection or admission present a significant threat to national security and public safety. Such aliens have not been identified or inspected by Federal immigration officers to determine their admissibility to the United States. The recent surge of illegal immigration at the southern border with Mexico has placed a significant strain on Federal resources and overwhelmed agencies charged with border security and immigration enforcement, as well as the local communities into which many of the aliens are placed.

....

Sec. 11.Parole, Asylum, and Removal. It is the policy of the executive branch to end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens.

(a) The Secretary [of Homeland Security] shall immediately take all appropriate action to ensure that the parole and asylum provisions of Federal immigration law are not illegally exploited to prevent the removal of otherwise removable aliens.

....

(d) The Secretary shall take appropriate action to ensure that parole authority under section 212(d)(5) of the INA ( 8 U.S.C. 1182(d)(5) ) is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.

Id. at 8793, 8795-96.

2.5 January 2017: The Alleged "Secret Shutdown" of the CAM Program

Shortly after President Trump took office in January 2017, the government took the following actions with respect to the CAM Program.

Interviews: USCIS stopped interviews of all CAM Program beneficiaries, thereby blocking all CAM Program applications at the interview stage from being processed. Within the first seven days of the Trump presidency, USCIS cancelled more than 2,000 CAM Program interviews that were scheduled to take place in January, February, and March 2017. The interviews were cancelled in anticipation of an Executive Order suspending the U.S. Refugee Admissions Program - what would later become Executive Order 13,769, Protecting the Nation from Foreign Terrorist Entry into the United States, issued on January 27, 2017. While the Order was enjoined in part on February 3, 2017, USCIS did not reinstate CAM Program interviews. Instead, USCIS confirmed on February 3, 2017, that all USCIS interviews in El Salvador, Honduras, and Guatemala through the end of March 2017 were cancelled.

Issuing determinations: The government stopped issuing decisions to CAM Program beneficiaries who had been interviewed. The government did not notify the public that it was doing so.

Medical examinations: The government stopped scheduling medical examinations for CAM Program beneficiaries who had been interviewed and received a determination before January 2017 that they were conditionally approved for parole. The government did not notify the public or CAM Program participants that it was doing so. IOM continued to solicit and accept funds from Program applicants during this time.

Travel to the United States: The government blocked travel to the United States for CAM Program beneficiaries who had been interviewed, received a determination that they were conditionally approved for parole, and cleared their medical examinations. On or about January 22, 2017 (two days after President Trump took office), an IOM employee told one of the plaintiffs in this case that IOM had received new orders that all CAM Program cases were frozen for 120 days and that no CAM Program case could be processed because the government had changed its position and IOM had to wait for orders from the new administration. IOM continued to solicit and accept payments for plane tickets from CAM Program applicants during this time.

The government did not notify the public that it was shutting down the CAM Parole Program. The USCIS program webpage for CAM Program participants stated that "[c]urrently there is no planned end date for the CAM parole program" and "[t]here is currently no filing deadline for this program." The USCIS program webpage for conditionally approved CAM Program beneficiaries stated, "[w]e encourage your relative to book the travel within the time period suggested by IOM to avoid additional processing delays and costs if the medical exam or security checks expire." A State Department website discussing the CAM Program expansion stated that "[a] qualifying, lawfully present parent who filed a CAM AOR [affidavit of relationship] from December 1, 2014, through November 30, 2016, and wishes to request access for expanded category relatives will need to file an amended DS-7699 prior to September 30, 2017" and that "[a]n amended AOR form filed on or before this date will be processed regardless of where the qualifying child is in the process as long as the relationships of the expanded category relatives can be verified through DNA testing." At least five webpages controlled by USCIS, the State Department, and the U.S. embassies in El Salvador and Honduras represented that the CAM Program continued to be in operation. IOM contacted at least one of the plaintiffs in this case after the government allegedly "shut down" the CAM Parole Program to tell her that she needed to send $2,500 for her daughter's and grandson's plane tickets and that they would be able to travel to the United States after payment was received. IOM may have accepted payments from other plaintiffs for plane tickets as well. These participants never received travel arrangements to the United States.

2.6 February 2017: The Kelly Memorandum

On February 17, 2017, then-Secretary of Homeland Security John Kelly issued a memorandum (the "Kelly Memo") to the Acting Commissioner of U.S. Customs and Border Protection, the Acting Director of U.S. Immigration and Customs Enforcement, the Acting Director of USCIS, the Acting General Counsel of DHS, the Acting Assistant Secretary for International Affairs, and the Acting Undersecretary for Management. The memorandum stated in part:

This memorandum implements the Executive Order entitled "Border Security and Immigration Enforcement Improvements," issued by the President on January 25, 2017, which establishes the President's policy regarding effective border security and immigration enforcement through faithful execution of the laws of the United States. It implements new policies designed to stem illegal immigration and facilitate the detection, apprehension, detention, and removal of aliens who have no lawful basis to enter or remain in the United States. It constitutes guidance to all Department personnel, and supersedes all existing conflicting policy, directives, memoranda, and other guidance regarding this subject matter, except as otherwise expressly stated in this memorandum.

....

K. Proper Use of Parole Authority Pursuant to Section 212(d)(5) of the INA

The authority to parole aliens into the United States is set forth in section 212(d)(5) of the INA [ 8 U.S.C. § 1182(d)(5) ], which provides that the Secretary may, in his discretion and on a case-by-case basis, temporarily parole into the United States any alien who is an applicant for admission for urgent humanitarian reasons or significant public benefit. Upon careful scrutiny, the statutory language appears to strongly counsel in favor of using the parole authority sparingly and only in individual cases where, after careful consideration of the circumstances, parole is necessary because of demonstrated urgent humanitarian reasons or significant public benefit.

The practice of granting parole to certain aliens in pre-designated categories in order to create immigration programs not established by Congress, has contributed to a border security crisis, undermined the integrity of the immigration laws and the parole process, and created an incentive for additional illegal immigration.

Therefore, the Director of USCIS, the Commissioner of CBP, and the Director of ICE shall ensure that, pending the issuance of final regulations clarifying the appropriate use of the parole power, appropriate written policy guidance and training is provided to employees within those agencies exercising parole authority, including advance parole, so that such employees are familiar with the proper exercise of parole under section 212(d)(5) of the INA and exercise such parole authority only on a case-by-case basis, consistent with the law and written policy guidance.

2.7 August 2017: Termination of the CAM Parole Program

On August 16, 2017, the government publicly announced the termination of the CAM Parole Program by publishing a notice in the Federal Register. The notice stated in part:

As of August 16, 2017, USCIS will no longer consider or authorize parole under the CAM Parole Program. In addition, USCIS will notify individuals who have been conditionally approved for parole under this program and who have not yet traveled that the program has been terminated and their conditional approval for parole has been rescinded....

Although DHS is terminating the CAM Parole Program, individuals who have been paroled into the United States under the CAM Parole program will maintain parole until the expiration of that period of parole unless there are other grounds for termination of parole under DHS regulations at 8 CFR 212.5(e).

Termination of the Central American Minors Parole Program , 82 Fed. Reg. 38,926, 38,927 (Aug. 16, 2017). The notice further stated:

This discretionary change in policy does not preclude such individuals from applying for parole consideration independent of the CAM program by filing USCIS Form I-131, Application for Travel Document, consistent with the instructions for that form. Parole will only be issued on a case-by-case basis and only where the applicant demonstrates an urgent humanitarian or a significant public benefit reason for parole and that applicant merits a favorable exercise of discretion. Any alien may request parole to travel to the United States, but an alien does not have a right to parole.

.... [Individuals who were conditionally approved for parole under the CAM Parole Program] may apply for parole consideration independent of the CAM program by filing USCIS Form I-131, Application for Travel Document, consistent with the instructions for that form.

Id. (emphasis in original).

After this announcement, "IOM told CAM Parole Program beneficiaries whose conditional approval for parole was rescinded - all of whom had been previously deemed ineligible for refugee resettlement under the CAM Refugee Program - that they could file a request for review ('RFR') of the denial of refugee status within 90 days of the notice of the rescission." Many affected CAM Parole Program beneficiaries filed RFRs, including several of the plaintiffs here. Many of those who filed RFRs in 2017 or early 2018 have not yet received decisions on their RFRs.

3. The Administrative Record

In connection with their motion to dismiss the plaintiffs' APA claims, the defendants filed the administrative record pursuant to 5 U.S.C. § 706. Among other things, the administrative record documents the following additional facts.

3.1 2014-2016: The Record Regarding the Operation of the CAM Parole Program

As noted above, the government began accepting applications for the CAM Program on December 1, 2014.

On December 5, 2014, the State Department issued press guidance regarding the CAM Program (the "December 2014 Guidance"). The guidance stated in part:

Key Messages:

• As part of the effort to address the underlying causes of this migration, the Administration has launched an "in-country" refugee and parole processing for certain minors in El Salvador, Guatemala, and Honduras. This program will allow parents who are lawfully present in the United States to request U.S. resettlement for children under the age of 21 who are still in one of these three countries.

• We are establishing in-country processing in El Salvador, Guatemala, and Honduras to provide a safe, legal, and orderly alternative to the dangerous journey that some children are currently undertaking to join parents in the United States.

• This program is part of the Administration's integrated and comprehensive approach to addressing the underlying economic and security challenges facing Central American countries with increased unlawful migration across the southwest U.S. border last summer.

• Our goal in the United States and in Central America is to extend protection to those with legitimate humanitarian claims while providing an effective deterrent for irregular migration driven by dangerous criminal smuggling networks.

• Taken together with the efforts of Central American leaders and other key stakeholders to address the underlying causes of migration , this measure will help end the practice of sending children on this dangerous journey.

....

• This program is one of many measures the United States is putting in place to help reduce the number of parents and others who are paying smugglers to lead minors on the dangerous journey to the United States. It offers a real alternative to children who may have legitimate claims to refugee status.

• The Departments of State and Homeland Security launched new public information campaigns, in coordination with the Central American governments, warning about the dangers of irregular migration and delivering the message that unaccompanied children are not given a "permiso" or permit to stay in the United States upon arrival at the border, and many will ultimately be returned to their country of origin.

In November 2015, the State Department issued additional press guidance regarding the CAM Program (the "November 2015 Guidance"). The guidance stated in part:

Key Messages:

• The Central American Minors program provides a safe, legal, and orderly alternative to the dangerous journey that some children have undertaken to join their parents in the United States.

• While the program launched 11 months ago, most of the approximately 5,000 applications received so far have come in the last three to four months.

....

Q: What is the goal of the Central American Minors Program?

• We established the program in 2014 to provide a safe, legal, and orderly alternative to the dangerous journey that some children are currently undertaking to join their parents in the United States.

• Our goal is to protect families with legitimate humanitarian claims while discouraging people from sending their children on the dangerous journey to the United States.

....

Q: What is the current status of application processing?

• The U.S. Department of Homeland Security recently completed its first round of 90 interviews in Central America and has conditionally approved approximately 12 percent for refugee admission; about 84 percent were recommended for parole. Approximately 1 percent were denied and approximately 2 percent are undergoing additional review.

....

Q. Will the Administration consider ending this program, given the low refugee approval rate?

• This program has just begun. No assumptions or conclusions should be made about longer-term trends and outcomes based on the limited sample of cases to date.

• We will continue the program in FY2016. This program was designed as a hybrid refugee/parole program, and 96% of the first set of applicants were approved for either refugee admission or parole.

In November 2015, USCIS issued an information sheet regarding the CAM Parole Program. The info sheet stated in part:

Individuals who applied for, but were denied, refugee status under the in-country refugee program in Guatemala, Honduras, or El Salvador, are considered for parole into the United States under the CAM parole program. This Fact Sheet describes key parts of the process of obtaining parole for conditionally approved applicants.

General Parole Information

The Secretary of Homeland Security may, in his or her discretion, parole any foreign national applying for admission to the United States into the United States temporarily for urgent humanitarian reasons or significant public benefit. (See Immigration and Nationality Act (INA) Section 212(d)(5) ). Parole allows an individual, who may be inadmissible or otherwise ineligible for a visa or refugee status, to come to and stay in the United States for a temporary period.

A person who has been paroled ("parolee") is not admitted into the United States for purposes of immigration law. Parole allows an individual to be lawfully present in the United States temporarily and to apply for work authorization. Although a parolee is lawfully present in the United States for the time period authorized, parole is by nature temporary and does not confer or lead to legal immigration status in the United States.

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Parole Termination or Expiration

Your parole status may be terminated if:

• You depart the United States;

• You violate any laws of the United States; or

• The DHS Secretary in his discretion decides to terminate parole.

In February 2016, the State Department issued additional press guidance regarding the CAM Program (the "February 2016 Guidance"). The guidance stated in part:

Key Messages:

• The Central American Minors program provides a safe, legal, and orderly alternative to the dangerous journey that some children have undertaken to join their parents in the United States.

• While the program launched 13 months ago, most of the approximately 6,500 applications received so far have come in the last six months. To date, the Department has performed its initial screening of nearly 3,000 of these applicants, and DHS has completed more than 600 final interviews.

• Forty-eight individuals have arrived in the United States via the program so far, 37 from El Salvador and 11 from Honduras.

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Q: What is the goal of the Central American Minors Program?

• We established the program in 2014 with the goal to protect families with legitimate humanitarian claims while discouraging people from sending their children on the dangerous journey to the United States.

• Ensuring the safety of people in the region and deterring the exploitation of undocumented migrants requires cooperation and partnership. Central American governments must take the lead on creating better economic, social, governance and security conditions in their countries, and we are commit[t]ed to helping them, as evidenced by Congress's FY 2016 appropriation of up to $750 million in foreign assistance.

Q. Will the Administration consider ending this program, given the low rates?

• We will continue the program in FY2016. No assumptions or conclusions should be made about long-term outcomes based on the limited sample of cases to date.

• This program was designed as a hybrid refugee/parole program, and 98 percent of applicants interviewed to date were approved for either refugee admission or parole.

In May 2016, the State Department issued additional press guidance regarding the CAM Program (the "May 2016 Guidance"). The guidance stated in part:

Key Messages:

• The Central American Minors program provides a safe, legal, and orderly alternative to the dangerous journey that some children have undertaken to join their parents in the United States.

• While the program launched in December 2014, most of the approximately 8,500 applications received so far have come in the last nine months. To date, the Department has performed its initial screening of more than 5,500 of these applicants, and DHS has completed more than 1,500 final interviews. The number of final interviews will increase significantly over the next six months.

• More than three hundred individuals have arrived in the United States via the program so far.

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Q: What is the goal of the Central American Minors Program?

• We established the program in December 2014 with the goal to protect families with legitimate humanitarian claims while discouraging people from sending their children on the dangerous journey to the United States.

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Q. Will the Administration consider ending this program, given the low rates?

• The Central American Minors pro[g]ram is an important part of our efforts to protect Central Americans at risk of harm and expand resettlement opportunities in the region. We have no plans to end the program.

• Although the program took some time to get started, we continue to receive a number of applications and more than 300 children have arrived to the United States via the program so far.

• This program was designed as a hybrid refugee/parole program, and 98 percent of applicants interviewed to date were approved for either refugee admission or parole.

In July 2016, the State Department issued additional press guidance regarding the CAM Program (the "July 2016 Guidance"). The guidance stated in part:

Q. What are the current statistics on CAM applications and arrivals?

• While the program launched in December 2014, most of the approximately 9,500 applications received so far have come in the last nine months.

• To date, the Department of State has performed its initial screening of more than 6,800 of these applicants, and the Department of Homeland Security has completed 2,900 final interviews and decisions.

• Out of these, 99% (2,884) have been approved either for refugee resettlement or for parole. We expect that the number of final interviews will increase significantly over the next six months.

• More than 600 individuals have arrived in the United States via the program so far and we expect the pace of arrivals to increase as those approved to come to the United States complete the necessary post-decision steps for arrival.

Q. How many individuals have qualified for refugee status under the existing program compared to parole?

• 267 have entered the US as refugees and another 400 have entered under parole.

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Q: What is the goal of the Central American Minors Program?

• We launched the program in December 2014 with the goal of protecting children with legitimate humanitarian claims while discouraging people from placing their children in the hands of smugglers for a dangerous journey to the United States.

• We also believe it is critical for Central American governments to take the lead on creating better economic, social, governance and security conditions in their countries, and we are commi[t]ted to helping them, as evidenced by Congress's FY 2016 appropriation of up to $750 million in foreign assistance to Central America, and our FY 2017 budget proposal.[ ]

In November 2016, the State Department issued additional press guidance about the CAM Program (the "November 2016 Guidance"). The guidance stated that 99% of CAM Program participants that had been interviewed were approved for either refugee resettlement or parole:

Q. What are the current statistics on CAM applications and arrivals?

• The program launched in December 2014 and has received approximately 10,400 applications.

• To date, the Department of State has performed its initial screening of nearly 9,000 of these applicants, and the Department of Homeland Security has interviewed more than 5,500 individuals.

• Out of these, 99 percent have been approved either for refugee resettlement or for parole.

• More than 1335 individuals have arrived in the United States via the program so far.

The guidance noted that there was no guarantee, and the State Department could not speculate, about whether the CAM Program would continue after President-Elect Trump was inaugurated.

3.2 August 2017: The Record Regarding the Termination of the CAM Parole Program

As noted above, the government announced the termination of the CAM Parole Program on August 16, 2017.

On August 15, 2017, the USCIS issued leadership guidance regarding the termination of the CAM Program ("2017 Leadership Guidance"). The guidance stated in part:

Termination of the Central American Minors (CAM) Parole Program

Effective Aug. 16, 2017, USCIS will no longer automatically consider or offer parole for individuals in El Salvador, Guatemala, and Honduras under the Central American Minor (CAM) Parole program. Individuals who have been conditionally approved for parole under this program and have not yet traveled will be notified that their conditional offer of parole has been rescinded. Refugee processing under the CAM Refugee program continues. DHS parole regulations at 8 CFR § 212.5 continue to apply.

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Reason for Termination

In accordance with section 11 of President Trump's Executive Order entitled Border Security and Immigration Enforcement Improvements , Acting Secretary of Homeland Security Elaine Duke has decided to rescind the program, which automatically considered for parole all individuals found ineligible for refugee status under the in-country refugee program in Guatemala, Honduras, or El Salvador. The CAM Parole program was implemented as part of an integrated strategy to address factors contributing to increases in migration from Central America to the United States. However, as indicated by the executive order, DHS is pursuing a new strategy to secure the U.S. southern border.

USCIS issued a contemporaneous document captioned "RTQ [response to queries]: Termination of CAM Parole Program" (the "2017 RTQ") setting out talking points for USCIS to respond to inquiries about the end of the CAM Program. The RTQ stated in part:

Talking points:

• Effective immediately, USCIS will no longer consider or offer parole under the CAM Parole program.

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• USCIS will issue notices to individuals conditionally offered parole under the CAM Parole program, who have not yet traveled, notifying them that the CAM Parole program has been terminated and their conditional offer of parole has been rescinded.

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If asked only:

Q1: Why did it take the government so long to notify these individuals that their conditional offer of parole was rescinded?

A1: Executive Order 13767, issued on Jan. 25, 2017, instructed DHS to take appropriate action to ensure that its parole policies are not illegally exploited and that parole is granted "only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole." Then-Secretary of Homeland Security John Kelly issued an implementing memorandum on Feb. 20, 2017, directing DHS to undertake a review of its various parole policies. Since that time, we conducted a careful review of the Central American Minors (CAM) Parole program, and Acting Secretary of Homeland Security Elaine Duke decided to terminate the program. As stated in the Federal Register notice, we are notifying the affected public, including individuals who were conditionally approved for parole but have not yet traveled or who have already been paroled into the United States.

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Q3: When did USCIS stop processing applications for parole?

A3: While the CAM program was under review, USCIS ceased considering or offering parole or further processing individuals who had been conditionally approved for parole under the program. The agency ceased these actions in February 2017.

Q3a: Why did DHS wait until August to terminate the program if it stopped processing individuals for the program back in February?

A3a: Following the issuance of the President's Executive Order, then-Secretary of Homeland Security John Kelly issued an implementing memorandum on Feb. 20, 2017, directing DHS to undertake a review of its various parole policies. Since that time, we conducted a careful review of the Central American Minors (CAM) Parole program, and Acting Secretary of Homeland Security Elaine Duke decided to terminate the program upon completion of that review.

Q4: What happened to individuals who received notification that they were conditionally approved for parole pending successful completion of background and medical checks? Will the process continue for them? How many people will this affect?

A4: All conditionally approved applicants for parole under the CAM Parole program without confirmed travel arrangements to the United States will be sent notices of the CAM Parole program's termination, including notification that they will not receive parole under the program. There are approximately 2,700 individuals currently conditionally approved. Any individual who received access to the CAM Refugee/Parole program for whom a final parole determination had not yet been issued is no longer being considered for parole under the program

Q5: Even though DHS is terminating the CAM Parole program, is parole still available to affected individuals?

A5: Potentially. This termination of the CAM Parole program does not preclude such individuals from applying for parole consideration independent of the CAM Parole program by filing USCIS Form I-131, Application for Travel Document, consistent with the instructions for that form. Parole will only be issued on a case-by-case basis and only where the applicant demonstrates an urgent humanitarian or a significant public benefit reason for parole and that applicant merits a favorable exercise of discretion. Any foreign national may request parole to travel to the United States, but a foreign national does not have a right to parole.

Q6: Why is the program being terminated?

A6: Executive Order 13767, Border Security and Immigration Enforcement Improvements , issued on Jan. 25, 2017, instructed DHS to take appropriate action to ensure that parole is granted "only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole." Former Secretary of Homeland Security John Kelly then issued an implementing memorandum on Feb. 20, 2017, directing DHS to undertake a review of its parole guidance. Since that time, DHS conducted a careful review of the Central American Minors (CAM) Parole program and has decided to terminate the program. The decision to terminate the program was made because the CAM Parole program provided parole very broadly and not in accordance with the statu[t]e and the President's Executive Order.

Q7: By eliminating this program, do you anticipate there will be an upswing in the number of UACs [unaccompanied alien children] who attempt to enter the United States illegally?

A7: The CAM Refugee program is unaffected by the termination of the CAM Parole program and will continue to provide a means through which vulnerable children in-country may be considered for resettlement to the United States. DHS continues to work with other Executive Branch agencies and the governments of the Northern Triangle countries and Mexico to discourage irregular migration and secure the U.S. southern border.

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Q10: What percentage of those approved under CAM were refugees vs parolees?

A10: As of July 13, 2017, 7,306 CAM applicants had been interviewed by USCIS. Of the cases that have been issued decisions, 30% have been approved as refugees, 69% have been recommended for parole, and 1% were denied for both refugee status and parole.

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Q14: How does eliminating the CAM Parole program contribute to the security and prosperity of the Northern Triangle? Or the United States?

A14: The decision to terminate the CAM Parole program was made by the Acting Secretary of Homeland Security as a result of the program review undertaken following issuance of Executive Order 13767, Border Security and Immigration Enforcement Improvements. DHS recognizes the need to make progress on economic and security priorities, and is currently working with U.S. interagency, foreign, and non-government counterparts on next steps for engagement to advance objectives and deliverables from the June 15-16 Conference on Prosperity and Security in Central America.

Q15: Are there any other meaningful routes of relief for these individuals? Is humanitarian parole a realistic option?

A15: The termination of CAM parole does not impact the CAM Refugee program, which continues to assist vulnerable children in-country who qualify as refugees. Additionally, the termination of the CAM Parole program does not preclude individuals from applying for parole consideration by following the standard parole application process. USCIS will still consider such applications for parole on a case-by-case basis and will authorize parole only where the applicant demonstrates an urgent humanitarian or a significant public benefit reason for parole and merits a favorable exercise of discretion.

Q16: For applicants who were conditionally approved, wasn't it determined that they are at significant risk? Does the United States believe that these children are no longer in danger?

A16: The review and subsequent termination of the CAM Parole Program is unrelated to the risk of harm that USCIS evaluates within each CAM Parole case. Additionally, the termination of the CAM Parole program does not preclude individuals from applying for parole consideration by following the standard parole application process. USCIS will still consider such applications for parole on a case-by-case basis and will authorize parole only where the applicant demonstrates an urgent humanitarian or a significant public benefit reason for parole and merits a favorable exercise of discretion.

USCIS told CAM Program participants that the termination of the CAM Parole Program did not preclude them from applying for parole independent of the Program by filing a USCIS Form I-131. USCIS told participants that "[p]arole will only be issued on a case-by-case basis and only where the applicant demonstrates by filing USCIS Form I-131, an urgent humanitarian or a significant public benefit reason for parole and that the applicant merits a favorable exercise of discretion." USCIS additionally told participants that they could submit a Request for Review of their denied refugee cases within 90 days of when their conditional offer of parole was rescinded, even if their RFRs would have otherwise been untimely. USCIS additionally told participants that it would refund them for any expenses they may have paid for travel arrangements or for medical exams that had not been completed (but not for medical exams that had been completed).

STANDARD OF REVIEW

1. Administrative Procedure Act Claims

The APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. The challenged agency action (if not made reviewable by statute) must be a "final agency action for which there is no other adequate remedy in a court[.]" 5 U.S.C. § 704 ; see Navajo Nation v. Dep't of the Interior , 876 F.3d 1144, 1171 (9th Cir. 2017) (" § 704's requirement that to proceed under the APA, agency action must be final or otherwise reviewable by statute is an independent element without which courts may not determine APA claims."). To constitute a "final agency action," two conditions must be met: " 'first, the action must mark the consummation of the agency's decision making process ... it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.' " Gallo Cattle Co. v. U.S. Dep't of Agric. , 159 F.3d 1194, 1198-99 (9th Cir. 1998) (ellipsis in original) (quoting W. Radio Servs. Co. v. Glickman , 123 F.3d 1189, 1196 (9th Cir. 1997) ).

The APA provides that "[t]he reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be - (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]" 5 U.S.C. § 706(2). " 'Review under the arbitrary and capricious standard is deferential[.]' " Friends of the Santa Clara River v. U.S. Army Corps. of Eng'rs , 887 F.3d 906, 920 (9th Cir. 2018) (quoting Nat'l Ass'n of Home Builders v. Defenders. of Wildlife , 551 U.S. 644, 658, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) ). "[A court's] proper role is simply to ensure that the agency made no 'clear error of judgment' that would render its action 'arbitrary and capricious,' and [courts] require only 'a rational connection between facts found and conclusions made' by the defendant agencies." Id. (some internal quotation marks and internal brackets omitted) (quoting Lands Council v. McNair , 537 F.3d 981, 993 (9th Cir. 2008) (en banc), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ; Conservation Congress v. Finley , 774 F.3d 611, 617 (9th Cir. 2014) ). "Accordingly, [courts] will not vacate an agency's decision unless the agency 'has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.' " Id. at 921 (some internal quotation marks and internal brackets omitted) (quoting Nat'l Ass'n of Home Builders , 551 U.S. at 658, 127 S.Ct. 2518 ); accord Sierra Club v. Bosworth , 510 F.3d 1016, 1