DAVID C. GUADERRAMA, UNITED STATES DISTRICT JUDGE.
Presently before the Court is Respondents Jefferson Sessions III, Kirstjen Nielsen, Thomas Homan, William Joyce, and United States Department of Homeland Security's "Motion to Dismiss, or in the Alternative, Motion for Summary Judgment" ("Motion") (ECF No. 22) filed on April 24, 2018. Therein, Respondents argue that the Court lacks jurisdiction over this matter and that Petitioners' constitutional and statutory claims are meritless. Mot. at 5-20. For the reasons that follow, the Court
Petitioners Emilio Gutierrez-Soto ("Mr. Gutierrez-Soto") and Oscar Gutierrez-Soto, Mr. Gutierrez-Soto's son, are citizens of Mexico who are currently being detained by Respondents in El Paso, Texas.
The circumstances that led Petitioners to the United States began with Mr. Gutierrez-Soto reporting on the misdeeds of the Mexican military while he worked as a reporter in Ciudad Juarez, Chihuahua, Mexico.
Thus, Petitioners presented themselves at the United States border and applied for admission on June 16, 2008.
Due to Petitioners not having valid entry documents when they appeared at the border, they were placed in removal proceedings and charged as inadmissible under the Immigration and Nationality Act.
Following the dismissal of their appeal, Petitioners filed an emergency motion to stay removal with the immigration judge, which was denied on November 17.
Nevertheless, despite the reinstatement of their appeal, Petitioners have remained in detention since ICE took them into custody on December 7, 2017.
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine dispute of fact exists when evidence is sufficient for a reasonable jury to return a verdict for the non-moving party, and a fact is material if it `might affect the outcome of the suit.'" Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986))). In deciding whether a genuine dispute as to any material fact exists, a trial court considers all of the evidence in the record and "draw[s] all reasonable inferences in favor of the nonmoving party" but "refrain[s] from making credibility determinations or weighing the evidence." Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citation and internal quotation marks omitted). Instead, the court "only `give[s] credence to the evidence favoring the nonmovant [and] that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.'" Orr v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016) (second alteration in original) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).
Procedurally, the party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014) (alterations in original) (quotation marks and citation omitted). When the nonmoving party will bear the burden of proof at trial, the moving party may satisfy this responsibility by "point[ing] out the absence of evidence supporting the nonmoving party's case." Latimer v. Smithkline & French Labs., 919 F.2d 301, 303 (5th Cir. 1990); see also Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544-45 (5th Cir. 2005).
If the moving party succeeds, "the onus shifts to the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." LHC Grp., 773 F.3d at 694 (internal quotation marks and citation
As a threshold matter, there is a dispute regarding whether the Court has jurisdiction over this case. Respondents allege that Petitioners are attempting to challenge a discretionary decision of the Attorney General, the revocation of Petitioners' humanitarian parole. Mot. at 6-10. See also 8 U.S.C. § 1182(d)(5)(A) (providing the Attorney General with the discretion to grant and revoke humanitarian parole). Respondents further contend that such a challenge is barred on jurisdictional grounds by statute. Mot. at 6-10. However, Petitioners contest Respondents' characterization of the case. Petitioners counter that the Court has jurisdiction because they are merely challenging the constitutionality of their detention. Resp. at 6-9, ECF No. 27. For the following reasons, the Court holds that it has jurisdiction over all of Petitioners' claims except for their APA and Procedural Due Process claims.
At the center of this dispute over jurisdiction are the statutory provisions precluding judicial review of the Attorney General's discretionary decisions. The first such statute, 8 U.S.C. § 1226(e), states:
In Demore v. Kim, the Supreme Court interpreted Section 1226(e) as not precluding habeas review because "Section 1226(e) contains no explicit provision barring habeas review." 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) ("[W]here a provision precluding review is claimed to bar habeas review, the Court has required a particularly clear statement that such is Congress' intent."). However, in 2005, Congress enacted the REAL ID Act, which used exactly the sort of explicit language demanded by Demore v. Kim to strip district courts of jurisdiction over habeas petitions challenging the Attorney General's discretionary decisions. See Nolos v. Mukasey, No. EP-08-CV-287-DB, 2008 WL 5351894, at *2 (W.D. Tex. Sept. 25, 2008) ("Congress enacted the REAL ID Act on May 11, 2005, which stripped district courts of jurisdiction over 28 U.S.C. § 2241 petitions attacking removal orders."). See also 8 U.S.C. § 1252(B)(ii) (supplying the language needed to strip habeas jurisdiction from district courts reviewing discretionary decisions of the Attorney General).
Nevertheless, when Congress strips courts of habeas jurisdiction, it must take care not to violate the Suspension Clause. See U.S. Const. art. I, § 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."). The Supreme Court has held that Congress stripping federal courts of habeas jurisdiction does not violate the Suspension Clause when it provides litigants with an adequate and effective substitutionary remedy. Swain v. Pressley, 430 U.S. 372, 381-82, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977). Further, "[u]nder the constitutional-avoidance canon, when statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may
In the instant case, Petitioners' Substantive Due Process claim is a challenge to the constitutionality of their detention. Pets.' Brief at 13-16, ECF No. 2. The Supreme Court has already held in Zadvydas that such a claim is not subject to Sections 1226(e) and 1252(B)(ii). Zadvydas, 533 U.S. at 688, 121 S.Ct. 2491. See also Baez v. Bureau of Immigration & Customs Enf't, 150 F. App'x 311, 312 (5th Cir. 2005) (per curiam) ("Section 106(a) of the [REAL ID] Act does not, however, preclude habeas review of challenges to detention that are independent of challenges to removal orders."). Thus, the Court holds that it has jurisdiction over Petitioners' Substantive Due Process claim.
However, Petitioners' Equal Protection and First Amendment claims stand on shakier grounds. On their face, these claims appear to challenge the Attorney General's discretionary decision to revoke Petitioners' humanitarian parole. See Pets.' Brief at 18-32. Nonetheless, appearances can be deceiving because the claims are actually challenging the extent of the Attorney General's authority. This is because the Attorney General does not have the discretion to violate the Constitution, so the Equal Protection and First Amendment claims charge the Attorney General with exceeding his lawful authority. See Kwai Fun Wong v. United States, 373 F.3d 952, 963 (9th Cir. 2004) ("[D]ecisions that violate the Constitution cannot be `discretionary'"); Myers & Myers, Inc. v. U. S. Postal Serv., 527 F.2d 1252, 1261 (2d Cir. 1975) ("It is, of course, a tautology that a federal official cannot have discretion to behave unconstitutionally"); El Badrawi v. Dep't of Homeland Sec., 579 F.Supp.2d 249, 270 (D. Conn. 2008) ("[S]ince ICE officials do not have discretion to violate the Constitution, a jurisdictional bar of this kind cannot preclude claims based on unconstitutional conduct by executive officials."). See also Oyelude v. Chertoff, 125 F. App'x 543, 546 (5th Cir. 2005) (Smith, J.) ("Section 1226(e) may strip us of jurisdiction to review judgments designated as discretionary under the pertinent language of the statute, but it does not deprive us of all authority to review statutory and constitutional challenges. We retain jurisdiction to review Oyelude's detention insofar as that detention presents constitutional issues, such as those raised in a habeas petition."). But see Loa-Herrera v. Trominski, 231 F.3d 984, 991 (5th Cir. 2000) (Smith, J.) ("In sum, `[t]he Attorney General's discretionary
Moreover, if the Court were to interpret Sections 1226(e) and 1252(B)(ii) as barring habeas jurisdiction with regard to Petitioners' Equal Protection and First Amendment claims, it would implicate constitutional concerns. Since Congress has not provided an alternate and effective substitutionary remedy as is mandated under the Suspension Clause, such an interpretation would throw the constitutionality of the REAL ID Act into question. See Swain, supra, 430 U.S. at 381-82, 97 S.Ct. 1224. However, the Court's preferred approach successfully adheres to the constitutional-avoidance canon and avoids implicating any concerns regarding the REAL ID Act's constitutionality. Therefore, the Court holds that it has jurisdiction over Petitioners' Equal Protection and First Amendment claims.
Alternatively, Petitioners' Procedural Due Process claim does not implicate the same concerns. Petitioners charge ICE with violating their constitutional rights by not following its internal policy, alleged to be U.S. Immigration and Customs Enforcement, ICE 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (2009). Pets.' Brief at 16-18. Petitioners allege that since they are not flight risks or dangers to the community, they should not have had their parole revoked. Id. at 16. However, Respondents affirm under oath that in exercising their discretionary authority, they weighed the factors in the policy and determined Petitioners to be flight risks because of their final order of removal. Mot., Ex. B ¶ 8. In essence, Petitioners ask the Court to review whether Respondents properly weighed the factors and determined them to be flight risks; Sections 1226(e) and 1252(B)(ii) bar exactly that sort of review. See Hernandez v. Sessions, 872 F.3d 976, 987-88 (9th Cir. 2017) ("A petitioner may not create the jurisdiction that Congress chose to remove simply by cloaking an abuse of discretion argument in constitutional garb." (internal quotation marks omitted)). Thus, the Court holds that it does not have jurisdiction to consider Petitioners' Procedural Due Process claim.
Similarly, Petitioners' APA claim does not implicate constitutional concerns. Thus, Sections 1226(e) and 1252(B)(ii) strip the Court of jurisdiction to hear the APA claim.
Next, Respondents move to dismiss Sessions, Nielsen, Homan, and DHS on the basis that they are improper parties under Rumsfeld v. Padilla, 542 U.S. 426, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004). Mot. at 5. However, Petitioners contest the dismissal of those four Respondents. Resp. at 13-16. For the following reasons, the Court declines to dismiss the four Respondents as improper parties.
Generally, a writ of habeas corpus "shall be directed to the person having custody of the person detained." 28 U.S.C. § 2243. Thus, the "default rule" is that the proper respondent is the party in charge of the facility where the petitioner is being detained, "not the Attorney General or some other remote supervisory official." Padilla, 542 U.S. at 435, 124 S.Ct. 2711. Nevertheless, in Padilla, the Court opted not to resolve the question of whether the Attorney General is a proper respondent to a habeas petition filed by an alien detained pending deportation. Padilla, 542 U.S. at 435 n.8, 124 S.Ct. 2711 ("In Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 S.Ct. 1898 (1948), we left open the question whether the Attorney General is a proper respondent to a habeas petition filed by an alien detained pending deportation. . . . Because the issue is not before us today, we again decline to resolve it."). There is currently a circuit court split on this issue, and the Fifth Circuit has not yet provided an answer. See Nken v. Napolitano, 607 F.Supp.2d 149, 158 (D.D.C. 2009) (collecting cases); Davis v. Gonzales, 482 F.Supp.2d 796, 799 (W.D. Tex. 2006) ("[T]he Supreme Court noted a circuit court split with respect to this very issue — a split on which the Fifth Circuit has not yet taken a position.").
Further, Respondents have not offered the Court any reason why it should dismiss the four Respondents beyond citing to Padilla. Mot. at 5. Padilla explicitly declined to decide this precise issue. 542 U.S. at 435 n.8, 124 S.Ct. 2711. The parties were likewise unable to offer a Fifth Circuit case addressing this precise issue. Respondents, as movants, have failed to carry their burden of proving that dismissal is proper. Therefore, the Court declines to dismiss the four Respondents at this time. Accordingly, the Court DENIES Respondents' Motion to Dismiss Sessions, Nielsen, Homan, and DHS as improper party respondents.
After resolving the jurisdictional issues in this matter, Petitioners' remaining claims are their Substantive Due Process, Equal Protection, Freedom of the Press, and Freedom of Speech claims. Respondents advance two main arguments in opposition
Petitioners assert that Respondents are violating their due process rights under the Fifth Amendment to the United States Constitution by detaining them without justification. Resp. at 17-19; Pets.' Brief at 13-16. "It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings." Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). "Substantive due process analysis must begin with a careful description of the asserted right." Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (internal quotation marks omitted). "Freedom from imprisonment — from government custody, detention, or other forms of physical restraint — lies at the heart of the liberty that Clause protects." Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491. Thus, the Court must determine whether the regulatory framework authorizes Petitioners' detention and if said regulatory framework meets constitutional muster as applied to the instant case.
The Attorney General's authority to detain and release aliens derives from 8 U.S.C. § 1182(d)(5)(A) and 8 U.S.C. §§ 1226(a)-(b). Sections 1182(d)(5)(A) and 1226(a)(2)(B) provide mechanisms whereby the Attorney General, in his discretion, may grant an alien parole. 8 U.S.C. § 1182(d)(5)(A) ("The Attorney General may . . . in his discretion parole into the United States temporarily under such conditions as 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. § 1226(a)(2)(B) ("On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General may release the alien on conditional parole"). However, Sections 1182(d)(5)(A) and 1226(b) also allow the Attorney General to revoke said parole and detain the alien. 8 U.S.C. § 1182(d)(5)(A) (". . . but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, 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."); 8 U.S.C. § 1226(b) ("The Attorney General at any time may revoke a bond or parole authorized under subsection (a), rearrest the alien under the original warrant, and detain the alien."). Moreover, the Supreme Court "has recognized detention during deportation proceedings as a constitutionally valid aspect of the deportation process." Demore, 538 U.S. at 523, 123 S.Ct. 1708. This is because "deportation proceedings `would be vain if those accused could not be held in custody pending the inquiry into their true character.'" Id. (quoting Wong Wing v. United States, 163 U.S. 228, 235, 16 S.Ct. 977, 41 S.Ct. 140 (1896)). Thus, detention during deportation proceedings is not unconstitutional on its face.
Petitioners allege that Respondents discriminated against them on the basis of their national origin in violation of the Equal Protection Clause under the Fifth and Fourteenth Amendments to the United States Constitution. Pets.' Brief at 18-25. Respondents contend that summary judgment is warranted because Petitioners have failed to provide evidence of discriminatory purpose. Mot. at 12-13. Petitioners counter that they have provided evidence of discriminatory purpose in the form of President Trump's statements, changes in DHS policy, and emails between members of the El Paso ICE Office. Resp. at 21-27.
The Equal Protection Clause "directs states to treat `all persons similarly situated' alike." Vera v. Tue, 73 F.3d 604, 609-10 (5th Cir. 1996) (quoting City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)). The equal protection guarantees of the Fourteenth Amendment are also applicable to the federal government through the Fifth Amendment's Due Process Clause. See, e.g., Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) ("The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. It is also true that the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously
In the instant case, Petitioners first ask the Court to consider President Trump's statements about Mexicans as evidence of his administration's discriminatory animus towards Petitioners. Resp. at 22-24. Petitioners cite Int'l Refugee Assistance Project v. Trump, 883 F.3d 233 (4th Cir. 2018) (hereinafter "IRAP") as support for their argument that the Court can consider President Trump's statements made both while campaigning and in office. Id. at 26. In IRAP, the Fourth Circuit considered President Trump's statements regarding his planned "Muslim ban" in evaluating whether his executive order violated the First Amendment. 883 F.3d at 263. The court determined that it could consider President Trump's statements and held that those statements revealed a constitutionally impermissible purpose behind the executive order at issue. Id. at 264 ("The President's own words — publicly stating a constitutionally impermissible reason for the Proclamation — distinguish this case from those in which courts have found that the Government had satisfied Mandel's `bona fide' prong."). However, IRAP is distinguishable from the instant case. In IRAP, President Trump made statements referring to a "Muslim ban" and then executed policies that were similar to the "Muslim ban" he discussed. Id. Here, the statements that Petitioners offer only show President Trump's criticisms of Mexicans; they do not include any statements from President Trump promising to revoke the parole of all Mexicans in the United States. See Pets.' Brief at 21-22; Resp. at 24. With that all said, out of an abundance of caution, the Court will adopt the Supreme Court's approach from Trump v. Hawaii, ___ U.S. ___, 138 S.Ct. 2392, ___ L.Ed.2d ___ (2018). In reviewing the same issue from IRAP, the plaintiffs asked the Supreme Court "to probe the sincerity of the stated justifications for the policy by reference to extrinsic statements — many of which were made before the President took the oath of office." Trump v. Hawaii, ___ U.S. ___, 138 S.Ct. 2392, 2418, ___ L.Ed.2d ___ (2018). In describing how it would consider such a challenge, the Court explained:
Trump v. Hawaii, ___ U.S. ___, 138 S.Ct. 2392, 2419, ___ L.Ed.2d ___ (2018) (internal citation omitted). Here, the Court considered Petitioners' extrinsic evidence, but it upholds Respondents' revocation of parole because it could be reasonably understood to result from a justification independent of unconstitutional grounds. This is because Petitioners' extrinsic evidence, President Trump's statements, lack anything more than a tenuous connection to Respondents' actions.
Petitioners next contend that DHS's changes to its policies and the emails between members of the El Paso ICE Office prove that Respondents were discriminating against Petitioners on the basis of their national origin when they revoked their parole. Pets.' Brief at 22-23; Resp. at 22-24. However, the changes in policy only show evidence of a harsher and more aggressive approach to immigration when compared to President Obama. This is not surprising because President Trump campaigned on enhanced border security and harsher and more aggressive enforcement of our nation's immigration laws, as Petitioners' statements from President Trump show. Pets.' Brief at 21-22. Significantly, while President Trump has taken steps to "secure the border" and target unauthorized aliens living in the United States, Petitioners have not offered evidence that he is targeting Mexicans specifically. For example, while "securing the border" has an adverse impact on Mexican immigrants, it also affects other immigrants coming from other nations in Central and South America. Further, the Court is reluctant to read discriminatory animus into an administration's discretionary decisions based solely upon the president attempting to
Finally, with respect to the emails between ICE officials, Petitioners again lack the necessary link for the Court to infer discriminatory intent. The emails reveal that ICE was targeting Petitioners before their asylum case was denied, but they do not show that Petitioners were being targeted because of their national origin. See Resp., Ex. 6, ECF No. 26. Without that link, the emails simply are not strong enough evidence to create a genuine issue of material fact as to whether Respondents violated Petitioners' equal protection rights. Accordingly, the Court GRANTS Respondents' Motion for Summary Judgment with regard to Petitioners' Equal Protection claim.
Petitioners allege that Respondents infringed upon their free press and free speech rights in violation of the First Amendment to the United States Constitution. Pets.' Brief at 25-31; Resp. at 27-32. See also U.S. Const. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (emphasis added)).
"Freedom of the press is a fundamental personal right which is not confined to newspapers and periodicals." Branzburg v. Hayes, 408 U.S. 665, 704, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (internal quotation marks omitted). "It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee." Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 390, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). Thus, one of the major purposes of the First Amendment is to protect the free discussion of governmental affairs. Mills v. State of Ala., 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). "This of course includes discussions of candidates, structures and forms of government, the manner in
The foundation of Petitioners' Freedom of the Press claim is built upon the emails between ICE officials, the temporal proximity between Mr. Gutierrez-Soto's criticism of ICE and the revocation of Petitioners' parole, and the comments from an ICE official directed at Bill McCarren. Pets.' Brief at 26-28; Resp. at 27-29. Respondents contend that they detained Petitioners based on a warrant issued after the removal order issued by the immigration judge became final in August 2017. Mot. at 15-16. However, the emails between ICE officials undermine Respondents' argument. The emails show that ICE officials were already targeting Mr. Gutierrez-Soto in February 2017. Resp., Ex. 6 (including Mr. Gutierrez-Soto on a list as a "candidate for arrest" in an email string titled "Non-Detained Target List"). This is significant because it is before the immigration judge issued the removal order in July 2017, which became final in August 2017. See Mot. at 15. Moreover, Mr. Gutierrez-Soto criticized ICE and the government in a very public manner while accepting a prestigious award from the National Press Club. Pets.' Brief at 28 (accusing United States immigration authorities of "bartering away international law" with regard to asylum seekers). His arrest occurred only a couple months later. Finally, William McCarren, the Executive Director of the National Press Club, affirms under oath that an ICE official told him to "tone it down" during a meeting regarding Mr. Gutierrez-Soto, and he interpreted the comment in the context of the conversation to mean that the media should stop attracting attention to Petitioners' cause. Writ, Ex. 47 ¶ 15, ECF No. 1-10.
Taking all of this evidence into account, Petitioners have offered enough evidence to create a genuine issue of material fact regarding whether Respondents violated their First Amendment rights. Petitioners have offered evidence that allows for an inference that they were targeted before their asylum case was denied and ICE officials did not approve of the negative press that Petitioners were generating. Drawing these inferences in favor of Petitioners, the nonmoving party, there is support for Petitioners' claim that Respondents retaliated against them for asserting their free press rights. This is also sufficient evidence for the trier of fact, drawing all reasonable inferences in favor of Petitioners, to conclude that Respondents' reason for detaining Petitioners is a pretext. Accordingly, the Court DENIES Respondents' Motion for Summary Judgment with respect to Petitioners' Freedom of the Press claim.
"[T]he First Amendment reflects a profound national commitment to
Petitioners allege that Respondents revoked their parole as retaliation for Mr. Gutierrez-Soto's comments criticizing United States immigration policy. Pets.' Brief at 29-32; Resp. at 30-32. Petitioners point to the temporal proximity between Mr. Gutierrez-Soto's criticism of the country's immigration policy and the revocation of Petitioners' parole, similar actions against other immigration activists who have spoken out, and the comments from an ICE official directed at Bill McCarren for support. Id. The Court previously discussed the significance of the temporal proximity between Mr. Gutierrez-Soto's criticism and the revocation of his parole as well as the comment from the ICE official directed at Bill McCarren. See, supra, Pets.' Brief at 28 (accusing United States immigration authorities of "bartering away international law" with regard to asylum seekers); Writ, Ex. 47 ¶ 15 (declaring under oath that an ICE official told him to "tone it down" in reference to press coverage of Petitioners' detention). Further bolstering Petitioners' case is evidence of Respondents' alleged pattern of conduct. Petitioners list five other vocal activists who, like Mr. Gutierrez-Soto, were allegedly targeted between December 2017 and January 2018 by ICE. Resp. at 30-31. Drawing all reasonable inferences in favor of Petitioners, the evidence could establish that Respondents retaliated against immigrant activists who criticized the government's policies. For example, the ICE official's comment towards Bill McCarren could be taken as evidence that ICE disapproves of negative publicity. When that is taken in conjunction with ICE's alleged pattern of targeting other immigration activists after they spoke out and Mr. Gutierrez-Soto being detained shortly after he spoke out, there is enough evidence to create a genuine issue of material fact regarding whether Respondents retaliated against Petitioners for Mr. Gutierrez-Soto's comments. If Respondents did retaliate against Petitioners for that reason, they restricted Petitioners' free speech rights because of the content and message of Mr. Gutierrez-Soto's political speech. See, supra, Mosley, 408 U.S. at 95, 92 S.Ct. 2286 ("Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."). Accordingly, the Court DENIES Respondents' Motion for Summary
Accordingly,
Washington v. Trump, 858 F.3d 1168, 1173-74 (9th Cir. 2017) (Kozinski, J., dissenting).