Case 1:19-cv-00534-JB-SCY Document 29 Filed 03/31/20 Page 1 of 115
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF NEW MEXICO
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`Plaintiffs,
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` No. CIV 19-0534 JB\SCY
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`STATE OF NEW MEXICO and THE
`CITY OF ALBUQUERQUE,
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`vs.
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`KEVIN MCALEENAN, Acting
`Secretary of the Department of
`Homeland Security, in his official
`capacity; MARK A. MORGAN,
`Acting Director, U.S. Immigration
`and Customs Enforcement, in his
`official capacity; MATTHEW T.
`ALBENCE, Deputy Director, U.S.
`Immigration and Customs
`Enforcement, in his official capacity;
`NATHALIE R. ASHER, Executive
`Associate Director for Enforcement
`and Removal Operations, U.S.
`Immigrations and Customs
`Enforcement, in her official capacity;
`and CARLA L. PROVOST, Chief of
`Border Patrol, in her official capacity,
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`Defendants.
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`THIS MATTER comes before the Court on the Defendants’ Motion to Dismiss and
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`MEMORANDUM OPINION AND ORDER
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`Opposition to Plaintiffs Motion For Preliminary Injunction and Supporting Memorandum, filed
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`August 12, 2019 (Doc. 10)(“MTD”). The Court held a hearing on December 11, 2019. See Clerk’s
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`Minutes at 1, filed December 11, 2019 (Doc. 28). The primary issues are: (i) whether Plaintiffs
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`State of New Mexico and City of Albuquerque have Article III standing to bring their action to
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`enjoin Defendants Kevin McAleenan, Mark A. Morgan, Matthew T. Albence, Nathalie R. Asher,
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`and Carla L. Provost’s practice of abandoning parole asylees in cities and towns throughout New
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`Mexico; (ii) whether sovereign immunity under the Administrative Procedure Act (“APA”),
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`5 U.S.C. §§ 551-559, protects the Defendants; (iii) whether the challenged agency action is
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`reviewable under the APA; (iv) whether the State of New Mexico and the City of Albuquerque
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`have alleged a property or liberty interest that the Due Process Clause of the Fifth Amendment to
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`the Constitution of the United States of America protects; (v) whether the Court should grant New
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`Mexico and Albuquerque’s oral motion to amend the Complaint for Declaratory and Injunctive
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`Relief and Damages, filed June 10, 2019 (Doc. 1)(“Complaint”); and (vi) whether the Court should
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`grant a preliminary injunction. The Court concludes that: (i) New Mexico and Albuquerque have
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`Article III standing; (ii) sovereign immunity protects the Defendants against New Mexico and
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`Albuquerque’s APA claim; (iii) the challenged agency action is unreviewable under the APA;
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`(iv) New Mexico and Albuquerque have not alleged a property or liberty interest that the Due
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`Process Clause protects; (v) amending the Complaint would be futile; and (vi) because the Court
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`lacks subject-matter jurisdiction for New Mexico and Albuquerque’s APA claim, and because
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`New Mexico and Albuquerque do not state a constitutional claim for which relief can be granted,
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`the Court will not grant the requested preliminary injunction. The Court accordingly dismisses
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`the Complaint without prejudice as to New Mexico and Albuquerque’s APA claims, and with
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`prejudice as to New Mexico and Albuquerque’s constitutional claims.
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`FACTUAL BACKGROUND
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`In the summer of 2019, the State of New Mexico and the City of Albuquerque filed this
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`challenge to the federal government’s decision to stop aiding asylum seekers trying to reach their
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`final destinations. See Complaint at 1. Recently, an influx of adults and children from Central
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`and South American countries have sought asylum in the United States of America. See Complaint
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`¶ 16, at 5. Immigration agencies typically interview and process these asylum seekers at their
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`Ports of Entry. See Complaint ¶¶ 17-18, at 5. If immigration officers determine that the asylum
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`seeker has presented a facially valid claim, the asylum seekers may be released from custody with
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`a Notice to Appear in immigration court, or they are detained pending a credible fear interview.1
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`See Complaint ¶ 19, at 5-6.
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`About ten years before the lawsuit’s filing, the United States implemented a policy known
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`as “Safe Release” that “assisted asylum seekers by confirming travel plans, coordinating assistance
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`to them from [non-governmental organizations], facilitating communication with family members,
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`often providing food, water, and healthcare, and otherwise ensuring that asylum seekers had a
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`means to reach their final destinations.” Complaint ¶ 20, at 6. Many asylum seekers have family
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`members or sponsors in the United States but cannot communicate with them before seeking
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`asylum. See Complaint ¶ 20, at 6. Under this policy, immigration agencies transported asylum
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`seekers to bus stations, train stations, and airports near their ports of entry. See Complaint ¶ 20, at
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`6. Asylum seekers “would generally arrive at their final destination within three days of their
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`initial detention.” Complaint ¶ 22, at 6.
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`The federal government ended the Safe Release policy in October, 2018, without warning,
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`notice, or consultation with potentially affected entities. See Complaint ¶ 23, at 6. In April and
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`May, 2019, immigration agencies began releasing asylum seekers in New Mexico towns near the
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`1A noncitizen arriving at a United States Port of Entry is subject to expedited removal
`proceedings if a Customs & Border Patrol officers concludes that the noncitizen “is inadmissible
`for misrepresenting a material fact or lacking necessary documentation.”
` 8 U.S.C.
`§ 1225(b)(1)(A)(i). The Department of Homeland Security may remove the noncitizen “without
`further hearing or review,” unless the noncitizen “indicates an intention to apply for asylum . . . or
`a fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(i). When a noncitizen indicates an intent to apply
`for asylum, “the officer shall refer the [noncitizen] for an interview with an asylum officer. . . .” 8
`U.S.C. § 1225(b)(1)(A)(ii). A noncitizen will be removed if “the officer determines that [a
`noncitizen] does not have a credible fear of persecution. . . .” 8 U.S.C. § 1125(b)(1)(B)(iii).
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`United Mexican States border without food, healthcare, or any mode of transportation to their final
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`destination. See Complaint ¶ 24, at 7. The federal government released approximately 9,000
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`asylum seekers into Las Cruces, New Mexico, in 2019, which has a population of around 100,000.
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`See Complaint ¶ 24, at 7. Approximately 4,700 asylum seekers were released into Deming, New
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`Mexico, in 2019, which has a population of about 14,000. See Complaint ¶ 25, at 7. “Albuquerque
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`has also realized a dramatic influx of asylum seekers” and receives about 150 to 250 asylum
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`seekers per week. Complaint ¶ 26, at 7. It expects this flow to continue. See Complaint ¶ 27, at 7.
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`New Mexico and the City of Albuquerque “have been obligated to devote significant
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`resources to fill the vacuum created by the federal government’s derogation of its duty to
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`administer the immigration system and asylum claims.” Complaint ¶ 28, at 7. New Mexico alleges
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`that it “has been forced to dedicate significant resources to addressing the substantial and
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`predictable humanitarian and public health consequences of the federal government’s abrupt
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`termination of or change to its Safe Release policy.” Complaint ¶ 29, at 7-8. Various New Mexico
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`government agencies have provided resources and staff to address problems arising out of Safe
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`Release’s end. See Complaint ¶ 30, at 8. New Mexico has provided $750,000.00 in grants to local
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`governments to help mitigate the effects of the United States’ decision to end the Safe Release
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`program. See Complaint ¶ 31, at 8.
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`Albuquerque alleges that “[a] vast array of Albuquerque individuals and entities have also
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`responded to the Defendants’ termination of the Safe Release policy and taken on Defendants’
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`federal responsibilities without federal funding to support such efforts.” Complaint ¶ 32, at 8.
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`Albuquerque has assisted coordination efforts to handle the flow of asylum seekers. See
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`Complaint ¶ 33, at 9. Albuquerque has also issued a $250,000.00 special appropriation to help
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`asylum seekers. See Complaint ¶ 34, at 9.
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`The Defendants ask the Court to dismiss the Complaint for lack of standing, lack of
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`PROCEDURAL BACKGROUND
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`subject-matter jurisdiction, and for failure to state a claim. See MTD at 1. New Mexico and
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`Albuquerque argue that they have standing, the Court has subject-matter jurisdiction, and they
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`have established a procedural due process claim. See Response to Defendants’ Motion to Dismiss
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`and Opposition to Plaintiffs’ Motion for Preliminary Injunction at 2-3, filed September 20, 2019
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`(Doc. 16)(“Response”). They also seek leave to add substantive due process and equal protections
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`claims. See Response at 3.
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`1.
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` The MTD.
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`The Defendants first argue that New Mexico and Albuquerque lack Article III standing.
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`See MTD at 12. They argue that the New Mexico and Albuquerque “lack a judicially cognizable
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`injury,” because the challenged action “does not command the State or its Cities to take, or refrain
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`from taking, any action” and is instead injury from the United States’ lack of regulation “‘of
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`someone else.’” MTD at 12-13 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 562
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`(1992)(emphasis in Lujan v. Defenders of Wildlife)). The Defendants further argue that New
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`Mexico and Albuquerque’s arguments “would seem to conflict with the general principle that a
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`plaintiff ‘lacks standing to contest the policies of the prosecuting authority when he himself is
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`neither prosecuted nor threatened with prosecution.’” MTD at 13 (quoting Linda R.S. v. Richard
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`D., 410 U.S. 614, 619 (1973), and citing Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984)). They
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`also argue that the Complaint “ignores the legal implications of dual sovereignty,” MTD at 13, and
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`that it is inconsistent with the Constitution that “a State (or City) has a legally-protected interest in
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`avoiding effects flowing from the federal government’s actions regarding individuals who happen
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`to be in that State or City . . . ,” MTD at 14.
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`The Defendants next argue that the Court should dismiss New Mexico and Albuquerque’s
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`APA claims, because they are not “‘arguably within the zone of interests to be protected or
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`regulated by the statute . . . in question.’” MTD at 15 (quoting Clarke v. Sec. Indus. Ass’n, 479
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`U.S. 388, 396 (1987)(emphasis in MTD)). They argue that neither New Mexico nor Albuquerque
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`is subjected to any regulatory action. See MTD at 16. They also contend that the Immigration
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`and Nationality Act (“INA”) does not protect local governments “from the incidental costs
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`stemming from the exercise of discretion to temporarily parole migrants, including asylum seekers,
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`into the United States.” MTD at 16 (quoting Fed’n for Am. Immigration Reform, Inc. v. Reno, 93
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`F.3d 897, 899, 904 (D.C. Cir. 1996)).
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`Next, the Defendants argue that they are entitled to sovereign immunity under 5 U.S.C.
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`§ 701(a)(1) and (a)(2) of the APA. See MTD at 17. Section 701(a)(1) states that sovereign
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`immunity applies to the extent that “statutes preclude judicial review,” while § 701(a)(2) states
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`that sovereign immunity applies to the extent that “agency action is committed to agency discretion
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`by law.” 5 U.S.C. § 701(a)(1)-(2). They argue that the INA precludes judicial review, because
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`ending the Safe Release policy was a discretionary decision the Attorney General made, see MTD
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`at 18, and 8 U.S.C. § 1252(a)(2)(B)(ii) bars judicial review of “‘any other decision or action of the
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`Attorney General or the Secretary of Homeland Security the authority for which is specified under
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`this subchapter to be in [their] discretion . . . ,’” MTD at 18 (quoting 8 U.S.C. § 1252(a)(2)(B)(ii)).
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`They argue that the decision to end the Safe Release policy is committed to agency
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`discretion by law, because the Department of Homeland Security has discretion to temporarily
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`parole aliens, and the statute authorizing parole “does not itself provide a meaningful standard
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`against which to judge the agency’s exercise of discretion.” MTD at 19 (citing 8 U.S.C. §
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`1182(d)(5)(A); Heckler v. Chaney, 470 U.S. 821, 830, 831 (1985)). The Defendants further assert
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`that “the express statutory grant of discretion to DHS to temporarily parole aliens into the United
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`States does not at all require DHS to provide travel assistance to parolees,” suggesting that there
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`is “no standard at all” to judge the Department of Homeland Security’s exercise of discretion.
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`MTD at 20. They also note that “the express grant of discretion to DHS to temporarily parole
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`migrants, including asylum seekers, into the United States generally necessarily includes the
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`discretion to parole them into New Mexico and Albuquerque in particular.” MTD at 20 (emphasis
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`in original).
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`The Defendants then argue that ending the Safe Release program is unreviewable under
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`the APA, because it is not a final agency action. See MTD at 21 (citing 5 U.S.C. § 704). They
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`contend that it “is not a definitive statement of the agency’s position; it does not have the status of
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`law; and the question it raises is not a legal one.” MTD at 21-22. The Defendants argue that it is
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`therefore not, as New Mexico and Albuquerque allege, a “rule” subject to review. MTD at 22.
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`The Defendants next argue that New Mexico and Albuquerque have not identified a
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`procedural due process violation. See MTD at 22. They argue that New Mexico and Albuquerque
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`do not have constitutional liberty or property interests in “‘expenses [they have] incurred and will
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`incur, and funds that [they have] been forced to expend and will expend.’” MTD at 22 (quoting
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`Complaint ¶ 59, at 14). They contrast this case with County of Santa Clara v. Trump, 250 F. Supp.
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`3d 497 (N.D. Cal. 2017)(Orrick, J.), in which the Honorable William Orrick, United States District
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`Judge for the Northern District of California, concluded that two counties had a property interest
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`in federal funds that Congress had already appropriated and the counties had already accepted --
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`despite an executive order purporting to make the counties ineligible to receive them. See MTD at
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`23; 250 F. Supp. 3d at 536. The Defendants argue that, in contrast, New Mexico and Albuquerque
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`do not allege that they have any “legitimate claim of entitlement to any particular federal funds or
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`funding.” MTD at 23-24.
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`Finally, the Defendants argue that the Court should not grant a preliminary injunction. See
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`MTD at 24. They note that, “[w]here a movant seeks a mandatory rather than a prohibitory
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`injunction, which would alter rather than preserve the status quo, he is generally subject to a higher
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`burden.” MTD at 26 (citing SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1097 (10th Cir.
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`1991)). The Defendants state that, because a preliminary injunction “is an extraordinary remedy,
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`‘it is the exception rather than the rule.’” MTD at 26 (citing GTE Corp. v. Williams, 731 F.2d
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`676, 678 (10th Cir. 1984)).
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`2.
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` The Response.
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`New Mexico and Albuquerque respond and request that the Court deny the MTD. See
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`Response at 1. They first argue that they “meet all elements of Article III standing by any
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`conventional measure.” Response at 6. They assert that New Mexico is entitled to “special
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`solicitude” in the standing analysis, Response at 6 (citing New Mexico v. Dep’t of the Interior,
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`854 F.3d 1207, 1219 (10th Cir. 2017); Massachusetts v. EPA, 549 U.S. 497, 518, 520 n.17 (2007)),
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`and jurisdiction is appropriate “‘in cases directly affecting the property rights and interests of a
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`State’ and when the ‘substantial impairment of the health and prosperity of the towns and cities of
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`the state’ are at stake,” Response at 7 (quoting Massachusetts v. EPA, 549 U.S. at 520 n.17). They
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`contend that this affect is present here, because the federal government’s decision has “caused
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`imminent public health and safety crises in towns and cities in New Mexico, which have in turn
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`forced the State to redirect finite resources and tap into its funds.” Response at 7. New Mexico
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`and Albuquerque next discuss Texas v. United States, 809 F.3d 134, 151-55 (2015) aff’d by an
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`equally divided court sub nom. United States v. Texas, 136 S. Ct. 2271, 2272 (2016), in which the
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`United States Court of Appeals for the Fifth Circuit granted Texas special solicitude and held that
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`Texas had standing to challenge “sudden, unlawful immigration rule changes.” Response at 8.
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`They assert that Albuquerque’s “‘proprietary interests’” also give Albuquerque standing.
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`Response at 9 (quoting Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest Serv., 140 F. Supp. 3d
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`1123, 1176 (D.N.M. 2015)(Browning, J.)(“Jarita Mesa”)). They argue that, as in Jarita Mesa and
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`Catron County Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429, 1433-34
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`(10th Cir. 1996), the Court should find standing, because “the federal government’s acts and
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`omissions implicated interests crucial to local entities.” Response at 9.
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`New Mexico and Albuquerque then argue that they have alleged an injury sufficient for
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`standing analysis purposes. See Response at 10. They cite the “staff time and resources” each has
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`expended and argue they have “also been injured by the capricious shifts in federal government
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`policies on asylum seekers.” Response at 10. They argue that “[f]ederal courts have routinely
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`held that the injury in fact requirement is satisfied by state and local authorities asserting financial
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`injuries like Plaintiffs’ injuries in this case,” Response at 11, and discuss Texas v. United States,
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`809 F.3d 134, and Texas v. United States, 328 F. Supp. 3d 662 (S.D. Tex. 2018)(Hanen, J.), in
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`which courts found Texas had standing where it would incur significant costs as a result of the
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`federal government’s immigration policies, see Response at 11. In addition to these direct injuries,
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`New Mexico and Albuquerque also argue that they have established procedural injuries. See
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`Response at 11. According to New Mexico and Albuquerque, they suffered procedural injury,
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`because the Defendants failed to follow procedures that the APA and Constitution require before
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`ending the Safe Release program. Response at 12.
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`New Mexico and Albuquerque also argue that they satisfy standing’s causation and
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`redressability requirements. See Response at 12. They say causation is satisfied, because:
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`The end or change of Safe Release was directly responsible for an influx of asylum
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`seekers who were left in Plaintiffs’ jurisdictions without a means of traveling to
`their destinations and without basic necessities or services. Compl. ¶¶ 24-28.
`Plaintiffs were -- and are -- compelled to assist the asylum seekers to avoid potential
`humanitarian, public safety, and public health crises that could result from stranding
`large groups of migrants throughout New Mexico. Plaintiffs’ expenditures to assist
`these individuals and prevent a crisis are the inevitable consequence of Defendants’
`decision to end or alter Safe Release without notice or consultation and, thereby,
`effectively abandon paroled asylum seekers in Plaintiffs’ jurisdictions.
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`Response at 13. They argue that the Defendants’ failure to follow APA procedure also caused
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`procedural injuries. See Response at 13-14. New Mexico and Albuquerque state that
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`redressability is satisfied, because their “imminent economic harm” “can be redressed by an order
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`enjoining the end of Safe Release” and requiring proper procedures for future changes to the
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`program. Response at 14.
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`New Mexico and Albuquerque then argue that the Defendants did not “raise an availing
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`argument against Plaintiffs’ standing.” Response at 14. They distinguish Lujan v. Defenders of
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`Wildlife by arguing that they have shown “concrete and easily ascertainable harms.” Response at
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`15. They also argue that, contrary to the MTD, they are not challenging prosecutorial decisions
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`but a decision to “foist” a federal program’s responsibilities on state and local governments.
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`Response at 15. Finally, New Mexico and Albuquerque note that they are not challenging
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`individual asylum or parole decisions and argue that Virginia ex rel. Cuccinelli v. Sebelius, 656
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`F.3d 253 (4th Cir. 2011), is inapposite, because they are alleging that the Defendants violated
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`federal law. Response at 15-16.
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`Next, New Mexico and Albuquerque argue that they are within the zone of interests that
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`the INA protects. See Response at 16 (citing Clarke v. Sec. Indus. Ass’n, 479 U.S. at 399). They
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`contend that they are within this zone, because the “Plaintiffs’ interest in this case are at least
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`arguably related to several INA provisions, particularly those pertaining to asylum procedures.”
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`Response at 17. Citing 8 U.S.C. § 1158(d)(1) and 8 U.S.C. § 1182(d)(5)(A), they argue that the
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`INA “must mean that paroled asylum seekers: (a) may require humanitarian assistance; and (b)
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`may need to be provided with the means to efficiently reach and be returned from the place to
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`which they have been paroled.” Response at 18. They argue that, “[i]f the federal government
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`exercises its right to parole individuals over which it effectively has custody for ‘humanitarian’
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`reasons, a corresponding abdication of any humanitarian assistance leaves state and local
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`governments responsible for individuals who have been paroled into their jurisdictions.” Response
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`at 19. They also note that courts have found the zone of interest test satisfied in analogous cases.
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`See Response at 19-20 (citing East Bay Sanctuary Covenant v. Trump, 909 F.3d 1219, 1244 (9th
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`Cir. 2018); Hawaii v. Trump, 859 F.3d 741, 766 (9th Cir. 2017)).
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`New Mexico and Albuquerque then rebut the Defendants’ arguments concerning the zone
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`of interest. See Response at 20. They argue that the Defendants have mischaracterized their claim
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`as a challenge to the Department of Homeland Security’s decision to parole individual asylum
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`seekers rather than contesting “the federal government’s established obligation to provide
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`humanitarian assistance to paroled asylum seekers” and the improper procedures the United States
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`followed in ending the Safe Release program. Response at 20. They also distinguish one of the
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`Defendants’ cases, Federation for American Immigration Reform v. Reno. See Response at 21-
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`22. Unlike that case, New Mexico and Albuquerque argue that they are not challenging a decision
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`to admit or parole individuals or groups of individuals. See Response at 21. Instead, they say that
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`they are challenging whether the United States may stop providing humanitarian assistance to
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`asylum seekers without warning, forcing state and local governments to provide the same relief.
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`See Response at 21. This interest, they contend, is concrete. See Response at 21.
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`New Mexico and Albuquerque also argue that they are entitled to APA review. See
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`Response at 22. They argue that 5 U.S.C. § 701(a)(1) does not bar review, because, rather than
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`challenging the Attorney General’s parole power or the outcome for an individual alien, “they are
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`asserting their own rights to procedural protections under the APA.” Response at 23. They also
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`argue that 5 U.S.C. § 1252(a)(2)(B), which precludes review for any immigration “decision or
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`action” involving some discretion is “not intended to preclude structural or constitutional
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`challenges to the manner in which the parole system has been arranged.” Response at 23-24 (citing
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`McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 490-94 (1991); Reno v. Am.-Arab Anti-
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`Discrimination Comm., 525 U.S. 471, 482 (1999); Iddir v. INS, 166 F. Supp. 2d 1250, 1255 (N.D.
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`Ill. 2001)(Gottschall, J.)). New Mexico and Albuquerque assert that 5 U.S.C. § 1252(a)(2)(D)
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`permits review for challenges involving “‘constitutional claims or questions of law’ in individual
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`removal decisions or actions.” Response at 24 (quoting 5 U.S.C. § 1252(a)(2)(D) and citing Tuong
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`Huan Van Dinh v. Reno, 197 F.3d 427, 431-32 (10th Cir. 1999)). They distinguish the Defendants’
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`case on this subject, Mohsenzadeh v. Kelly, 276 F. Supp. 3d 1007 (S.D. Cal. 2017), as challenging
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`“a discrete decision related to an individual removal case.” Response at 24.
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`Next, New Mexico and Albuquerque argue that 5 U.S.C. § 701(a)(2) does not bar their
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`APA claims either. See Response at 25. They assert that INA provides “at least one meaningful
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`standard against which to measure the termination or alteration of Safe Release: ‘Urgent
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`Humanitarian Reasons.’” Response at 25 (quoting 8 U.S.C. § 1182(d)(5)(A)). They argue that,
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`“even if Defendants established Safe release outside the auspices of traditional notice and comment
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`rulemaking,” ending Safe Release is still reviewable as an agency’s broad or general enforcement
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`based on a legal interpretation. See Response at 26 (citing Casa de Md. v. U.S. Dep’t of Homeland
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`Sec., 924 F.3d 684, 699 (4th Cir. 2019)). The Defendants’ “utter silence,” New Mexico and
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`Albuquerque argue, favor such a finding. Response at 26 (citing FCC v. Fox TV Stations, Inc.,
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`Case 1:19-cv-00534-JB-SCY Document 29 Filed 03/31/20 Page 13 of 115
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`556 U.S. 502, 515 (2009); NAACP v. Trump, 298 F. Supp. 3d 209, 238 (D.D.C. 2018)(Bates, J.)).
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`Next, New Mexico and Albuquerque argue that ending Safe Release is reviewable “‘final
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`agency action.’” Response at 26 (quoting 5 U.S.C. § 704). They argue that the Defendants “do
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`not cite any facts or examples from case law” to support their contrary argument and that they have
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`met their own pleading burden. Response at 26. They note that the Defendants do not deny that
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`they created the Safe Release program and then changed its rules, and they assert that the rule
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`change has had direct effects on their interests and has “the status of law because legal
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`consequences flowed to both the State and the City.” Response at 27. Further, “immediate
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`compliance was expected because, as the federal government ceded its responsibilities, other
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`governmental instrumentalities had to instead carry those burdens.” Response at 28.
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`New Mexico and Albuquerque then argue that they have pled a viable due process claim.
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`See Response at 28. They cite the expenses that they have and will expend after Safe Release’s
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`termination, as well as “their sovereignty and home rule,” as their constitutionally protected
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`interests. Response at 28. They argue that the consequences of ending Safe Release without
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`warning “blurs the lines of political accountability” in a way that implicates anti-commandeering
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`concerns. Response at 29 (citing Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 677-78
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`(2012)). New Mexico and Albuquerque also seek leave to amend the Complaint to add substantive
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`due process and equal protection claims. See Response at 29. They also note that, while they
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`requested preliminary and permanent injunctions in the Complaint, they have not yet filed a motion
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`seeking any injunctive relief, and “the Court need not decide a motion that has not been filed.”
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`Response at 30.
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`3.
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` The Reply.
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`The Defendants reply. See Reply to Plaintiff’s Response to Motion to Dismiss at 1 (Doc.
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`16), filed October 18, 2019 (Doc. 20)(“Reply”). They first argue that, because “the alleged
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`discontinuation of assistance to paroled migrant[] . . . was not directed at” New Mexico and
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`Albuquerque “or their residents,” Albuquerque and New Mexico have suffered no injury in fact.
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`Reply at 2. The Defendants accordingly assert that New Mexico and Albuquerque are not the
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`object of the Department of Homeland Security’s “action or inaction,” rendering New Mexico and
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`Albuquerque’s standing “‘substantially more difficult’ to establish.” Reply at 2 (quoting Lujan v.
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`Defs. of Wildlife, 504 U.S. at 562). The Defendants assert that New Mexico and Albuquerque
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`have not “overcome this significant hurdle,” because the “Supreme Court [of the United States of
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`America] has made clear that ‘self-inflicted’ injuries to a State’s fisc cannot form the basis of
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`Article III standing.” Reply at 2-3 (quoting Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976)
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`and citing Clapper v. Amnesty Int’l USA, 568 U.S. 398, 418 (2013)). The Defendants state that
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`New Mexico and Albuquerque have not identified any legal requirement that forced them to
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`continue the Safe Release program’s work, and assert that their argument that they were compelled
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`to offer these services to stave off future harms is too speculative to constitute an injury. See
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`Reply at 3 (citing S.W. Env’t Ctr. v. Sessions, 355 F. Supp. 3d 1121, 1133 (D.N.M. 2018)(Johnson,
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`C.J.). Any potential harm “due to future influxes of migrants,” the Defendants argue, is caused
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`not by the Defendants’ policies but rather “is the result of the surge of migrants at the border.”
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`Reply at 3.
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`The Defendants next seek to distinguish Texas v. United States. See Reply at 4. The
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`Defendants contend that, in that case, a preexisting state law necessitated that Texas incur costs in
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`response to federal policy, and Texas could avoid those costs only if it repealed the law. See Reply
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`at 4 (citing Texas v. United States, 809 F.3d at 159). This legal mandate, the Defendants argue,
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`rendered Texas’ asserted injury “not self-inflicted.” Reply at 4 (citing California v. Azar, 911 F.3d
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`Case 1:19-cv-00534-JB-SCY Document 29 Filed 03/31/20 Page 15 of 115
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`558 (9th Cir. 2018)). The Defendants also say that, in subsequent litigation, the United States
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`District Court for the Southern District of Texas concluded that Texas had standing “based on the
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`costs of state-provided social services ‘required by federal law.’” Reply at 4 (quoting Texas v.
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`United States, 328 F. Supp. 3d at 700 (Texas II)(emphasis in Reply and not in Texas v. United
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`States). The Defendants aver that, in contrast, New Mexico and Albuquerque voluntarily assist
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`migrants paroled in New Mexico, which is “precisely the manufactured standing that did not exist
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`in Texas I [and] Texas II.” Reply at 4.
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`The Defendants next argue that New Mexico and Albuquerque have suffered no procedural
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`injury. See Reply at 5. The Defendants contend that the APA does not afford New Mexico and
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`Albuquerque a procedural right, because the APA “requires rule making only for substantive
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`rules,” of which the “so-Called Safe Release policy” is not one. Reply at 5 (citing 5 U.S.C. § 553).
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`The Defendants say that New Mexico and Albuquerque “have identified no substantive rule,
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`memorandum, or directive memorializing” the Safe Release policy “or otherwise explained why
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`any change in practice would require formal notice and comment rule making under the APA.”
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`Reply at 5. The Defendants also argue that, even if New Mexico and Albuquerque have established
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`a procedural right, they have no “interest in the DHS’s discretionary parole decisions regarding
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`migrants,” because their expenditures are voluntary. Reply at 5 (citing Summers v. Earth Island
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`Inst., 555 U.S. 488, 496 (2009)). The Defendants contend that, because there is not procedural
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`injury, New Mexico and Albuquerque are not entitled to any relaxed standard for redressability.
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`See Reply at 5 (citing Comm. to Save the Rio Hondo v. Lucero,