The opinion of the court was delivered by: Glasser, United States Senior District Judge
Plaintiffs National Council of La Raza ("NCLR"), New York Immigration Coalition ("NYIC"), American-Arab Anti-Discrimination Committee ("ADC"), Latin American Workers Project ("LAWP") and UNITE (collectively "Plaintiffs") bring this action against Alberto Gonzales, the Attorney General of the United States; Michael Chertoff, Secretary of Homeland Security; Robert Mueller, Director of the Federal Bureau of Investigation; Julie Myers, Assistant Secretary of Homeland Security in charge of Bureau of Immigration and Customs Enforcement;*fn1 the United States Department of Justice ("DOJ") and Department of Homeland Security ("DHS"), the Federal Bureau of Investigation ("FBI"), and Bureau of Immigration and Customs Enforcement ("ICE") (collectively "Defendants"), seeking a declaratory judgment and injunction against Defendants' policy and practice of entering and disseminating civil immigration information to state and local enforcement officials through the National Crime Information Center ("NCIC") database. Plaintiffs allege that this policy and practice violates the Administrative Procedures Act, 5 U.S.C. § 702, and wrongfully causes or induces state and local police to make immigration arrests that Congress has forbidden.
Before the Court is Defendants' motion to dismiss for lack of jurisdiction and failure to state a claim upon which relief may be granted.
NCLR is a private non-profit organization and the largest constituency-based Hispanic organization in the United States. Its mission is to reduce poverty and discrimination and to improve opportunities for Hispanic Americans. In connection with this mission, NCLR advocates for its members on federal immigration policy issues. NCLR has nearly 300 member organizations in forty states, including New York. Some organizations that are members of NCLR have individual members who pay dues and exercise voting and representation rights within their own organizations. Many of the organizations that are members of NCLR provide legal, medical, or other services to non-citizens. NCLR has its principal place of business in Washington, D.C.
ADC is a non-profit civil rights organization committed to defending the rights of all people of Arab descent in the United States and promoting their cultural heritage. Founded in 1980 by U.S. Senator Jim Abourzek, ADC is the largest Arab-American organization of its kind and has members and chapters in cities throughout the United States, including New York. Its individual members pay dues and exercise voting and representational rights. In connection with its mission, ADC advocates for its members on federal immigration policy issues. Its principal place of business is in Washington, D.C.
NYIC is a non-profit umbrella policy and advocacy organization for roughly 150 New York member groups that work with immigrants and refugees. Some of the organizations that are members of NYIC are themselves membership organizations, whose individual members pay dues and exercise voting and representational rights within their respective organizations. NYIC's office and principal place of business is located in New York County, New York.
LAWP is a non-profit civil rights organization incorporated under the laws of New York. Founded in 1997, the mission of LAWP is to secure better living and working conditions and respect for the labor and civil rights of immigrants. The principal program areas of LAWP include organizing day laborers, street vendors, factory workers, and other employees, providing educational and cultural programs, and working to improve access to health care. Members of LAWP pay dues and have voting and representational rights. LAWP's principal place of business is in Kings County, New York.
UNITE is an unincorporated labor union of approximately 250,000 members in the United States and Canada. Immigrant workers have been members of UNITE or its predecessor garment worker unions since their inception. UNITE's mission includes working to address the immigration issues that affect its members. In connection with this mission, UNITE advocates for its members on immigration policy issues. Members of UNITE pay dues and may run for leadership positions and vote in union elections. UNITE's principal place of business is in New York County, New York.
Alberto Gonzales is the Attorney General of the United States, sued in his official capacity, who bears responsibility for oversight of federal law enforcement programs including the NCIC database, and shares responsibility for the implementation of federal immigration policy. Michael Chertoff is Secretary of Homeland Security, sued in his official capacity, who shares responsibility for implementation of federal immigration policy and directs the Bureau of Immigration and Customs Enforcement ("ICE"). ICE is responsible for immigration enforcement functions formerly performed by the Department of Immigration and Naturalization Services ("INS"). Robert Mueller is the Director of the Federal Bureau of Investigation, sued in his official capacity. Pursuant to 28 U.S.C. § 534(c) and 28 C.F.R. § 0.85, the Attorney General designates the Director of the FBI to administer the NCIC database. Julie Garcia is the Assistant Secretary of Homeland Security, sued in her official capacity, who oversees ICE and ICE law enforcement functions.
DOJ is the federal agency authorized by statute to administer the NCIC database. DHS is the federal agency responsible for securing the nation's borders, in part by enforcing federal immigration laws and managing the immigration process. The FBI is the agency within DOJ responsible for administering the NCIC. ICE is the agency within DHS responsible for investigating violations of the criminal and administrative provisions of the Immigration and Nationality Act ("INA") and for ensuring the departure of removable aliens from the United States.
Plaintiffs allege that in 2003 Defendants began entering civil immigration records into the National Crime Information Center ("NCIC") Database. The newly entered records identify as "absconders" persons with outstanding immigration warrants or orders of deportation, exclusion or removal (collectively "immigration warrants"), and also identify individuals whom DHS believes have violated requirements of the National Security Entry-Exit Registration System ("NSEERS violators").*fn2 Plaintiffs allege that there are significant error rates in these entries and that many of the identified individuals did not receive notice of either the entry of a removal order against them or their NSEERS obligations.
The NCIC database is queried millions of times each day by state and local law enforcement officials who interact with the public during lawful stops. When a state or local police officer runs an NCIC check on an individual for whom an immigration warrant has been issued, an Immigration Violator File "hit" response advises the local law enforcement officer to contact the federal Law Enforcement Support Center, a division of DHS, for confirmation. Upon confirmation, DHS typically requests the police officer to arrest or detain the alleged immigration violator until DHS officials can arrive to take custody of the person.*fn3 Some local jurisdictions have resisted this request; others have adopted a policy or practice of arresting absconders and/or alleged NSEERS violators listed in the NCIC. Police in New York, Illinois, Minnesota, Connecticut, Florida have made arrests of immigrants in reliance on immigration warrants listed by Defendants in the NCIC. Moreover, the Immigration Violators File is a "hot file," meaning that private citizens and commercial enterprises can access its records or confirm the status of records under certain circumstances.
The thrust of Plaintiffs' Complaint is two-fold. First, Plaintiffs allege that the policy and practice of entering removal orders into the NCIC exceeds Defendants' statutory authority pursuant to 28 U.S.C. § 534 and 8 U.S.C. § 1252c(b). Second, Plaintiffs allege that because Congress has broadly preempted state and local law enforcement officials from enforcing immigration law, with some specific exceptions, Defendants are causing state and local officials to make unconstitutional arrests.
Plaintiffs allege that at least one member of each plaintiff organization, or of the associations that are members of each plaintiff organization (hereinafter, collectively, "plaintiff members"), has an outstanding immigration warrant or is not in compliance with an NSEERS requirement, and lives or works in a jurisdiction whose state or local police has a policy or practice of making immigration arrests in reliance on NCIC information. (¶ 68). Some of these plaintiff members regularly come into contact with state and local police, work in settings in which they are frequently questioned by police, or, based on their appearance as Arab, Muslim or South Asian, have been regularly questioned by police in the course of their daily lives. (¶¶ 70-72). These plaintiff members, who as a result of their immigration status may now be listed in the NCIC database, are allegedly at imminent risk of arrest by state or local law enforcement officials who stop or question them, and fear that if they contact state or local law enforcement officials to report a crime, or otherwise speak or communicate with government official, they may be arrested based on their presence in the NCIC database. (¶¶ 73-74). Moreover, their personal information placed in the NCIC "hot" files is available to neighbors, private citizens, or commercial enterprises. (¶ 75).
Plaintiffs also allege that the "misuse of the NCIC database to cause and induce expanded immigration enforcement by local police has created fear in immigrant communities." (¶ 65). "When any member of the community is afraid to communicate with law enforcement officials, police effectiveness is undermined and public safety is diminished for all." (¶ 61). Accordingly, Plaintiffs contend that the reduction in law ...