United States District Court, N.D. California
For Marco Antonio Alfaro Garcia, on behalf of themselves and all others similarly situated, Credy Madrid Calderon, on behalf of themselves and all others similarly situated, Claudia Rodriguez De La Torre, on behalf of themselves and all others similarly situated, Gustavo Ortega, on behalf of themselves and all others similarly situated, Nancy Bardalez Serpa, on behalf of themselves and all others similarly situated, Plaintiffs: Ahilan Thevanesan Arulanantham, Carmen Gloria Iguina, LEAD ATTORNEYS, Michael Bryan Kaufman, ACLU of Southern California, Los Angeles, CA; James August Rolfes, LEAD ATTORNEY, Reed Smith LLP, Chicago, IL; Claudia Valenzuela, PRO HAC VICE, National Immigrant Justice Center, Chicago, IL; Julia Harumi Mass, Esq., American Civil Liberties Union of Northern California, Inc., San Francisco, CA; Timothy Robert Carraher, PRO HAC VICE, REED SMITH LLP, Chicago, IL; John Douglas Pingel, Reed Smith LLP, San Francisco, CA.
For Jeh Johnson, Secretary of Homeland Security, Lori Scialabba, Acting Director of U.S. Citizenship and Immigration Services, Joseph Langlois, Associate Director of Refugee, Asylum and International Operations, Defendants: Elizabeth J. Stevens, LEAD ATTORNEY, Office of Immigration Litigation, United States Department of Justice, Washington, DC; Rebekah Antoin Nahas, Washington, DC; Victor M. Mercado-Santana, US, Civil Division, Washington, DC.
ORDER DENYING MOTION
TO DISMISS; GRANTING MOTION FOR CLASS CERTIFICATION
YVONNE GONZALEZ ROGERS, UNITED STATES DISTRICT JUDGE.
Plaintiffs Marco Antonio Alfaro Garcia (" Alfaro"), Credy Madrid Calderon (" Madrid"), Gustavo Ortega (" Ortega"), and Claudia Rodriguez de la Torre (" Rodriguez") (collectively, " plaintiffs") bring this putative class action against Defendants Jeh Johnson, et al . (" defendants") seeking review of processes employed by the Asylum Division of the United States Citizenship and Immigration Services (" USCIS"). The gravamen of the complaint alleges a failure to conduct in a timely manner " reasonable fear" determinations under 8 C.F.R. section 208.31(b) (" Section 208.31(b)"). Plaintiffs contend that USCIS is required to complete such determinations within 10 days of referral to an asylum officer, but that the government has essentially abdicated its duty to comply with this mandate. As a result, plaintiffs allege that individuals are held for months in detention while they await hearings on their claims. Plaintiffs seek declaratory and mandamus relief on the following two causes of action: (1) violation of the Administrative Procedure Act (" APA"), 5 U.S.C. sections 555(b) (requiring agency action in a " reasonable time") and 706(1) (providing that a reviewing court shall . . . " compel agency action unlawfully withheld or unreasonably delayed"); and (2) violation of Section 208.31, which requires that the USCIS complete these reasonable fear determinations within 10 days of referral to an asylum officer. (Dkt. No. 1 (" Complaint") at ¶ ¶ 71-79.)
Now before the Court are two motions: defendants' motion to dismiss on the grounds that this Court lacks jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and that plaintiffs have failed to state a claim under Federal Rule of Civil Procedure 12(b)(6) (Dkt. No. 43), and plaintiffs' motion for class certification under Federal Rule of Civil Procedure 23(b)(2) (Dkt. No. 12). On September 30, 2014, the Court heard argument on both motions.
Having carefully considered the papers submitted and the pleadings in this action, the arguments of counsel presented at the hearing, and for the reasons set forth below, the Court hereby Denies the motion to dismiss, and Grants plaintiffs' motion for class certification.
I. Factual Background
A. Statutory and Regulatory Structure
As a signatory to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (" CAT"), the United States has agreed not to " expel, return, (" refouler") or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture." Foreign Affairs Reform and Restructuring Act of 1998 § 2242, Pub. L. 105-277, 112 Stat. 2681, 2681-821; see also Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8, 478-01. By statute, an individual may seek withholding of removal if his or her " life or freedom would be threatened in that country because of [his/her] race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. section 1231(b)(3)(A). If an individual qualifies for protection, " withholding of removal is mandatory under the [CAT] implementing regulations." Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005).
On February 19, 1999, the Immigration and Naturalization Service (" INS") adopted interim regulations in an effort to comply with the United States' international obligations under the CAT. See Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8, 478 (Feb. 19, 1999). These regulations sought to provide fair and efficient procedures by which the United States would ensure that individuals who have a reasonable fear of torture and persecution are not returned to their countries of origin " within the overall regulatory framework for the issuance of removal orders and decisions about the execution of such order." 64 Fed. Reg. at 8, 479. " To this end, [the Agency] designed a system that will allow aliens subject to the various types of removal proceedings currently afforded by the immigration laws to seek, and where eligible, to be accorded protection under [the CAT]. At the same time, [the Agency] created mechanisms to quickly identify and resolve frivolous claims to protection so that the new procedures cannot be used as a delaying tactic by aliens who are not in fact at risk." Id.
Section 208.31 of the regulations applies to two types of individuals subject to removal: those who are subject to reinstatement of removal orders and those who are subject to final administrative orders of removal. If a person falling into either of those categories expresses a fear of return, he or she is subject to a two-part review process to determine if he or she qualifies for withholding of removal or relief. 8 C.F.R. § 208.31(a). The first step (at issue here) occurs " upon issuance" of the final administrative order or the notice of reinstatement of removal. An individual who expresses such fear is referred to an asylum officer for a reasonable fear determination. See 8 C.F.R. § 208.31(b). Of particular relevance to this case is the final sentence in Section 208.31(b):
(b) Initiation of reasonable fear determination process. Upon issuance of a Final Administrative Removal Order under § 238.1 of this chapter, or notice under § 241.8(b) of this chapter that an alien is subject to removal, an alien described in paragraph (a) of this section shall be referred to an asylum officer for a reasonable fear determination. In the absence of exceptional circumstances, this determination will be conducted within 10 days of the referral.
8 C.F.R. § 208.31(b) (emphasis supplied); see also Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478-01. The second step concerns what occurs after that initial determination has been rendered. Persons who are found to have a reasonable fear of persecution or torture are referred to an Immigration Judge for full consideration of their claims for withholding of removal under 8 U.S.C. section 1231(b)(3), or withholding or deferral of removal under 8 C.F.R. sections 208.16 and 208.17. 8 C.F.R. § 208.31(e). A person whom USCIS determines not to have a reasonable fear of persecution may request that an Immigration Judge review USCIS's determination. If the Immigration Judge disagrees with USCIS, the person may pursue full consideration of his or her reasonable fear claim before the Immigration Judge. 8 C.F.R. § 208.31(f)-(g).
Plaintiffs allege that the above regulatory process is designed to ensure that reasonable fear claims are heard in a fair and timely manner. ( See Compl. ¶ ¶ 19-22.) According to plaintiffs, Section 208.31 requires timely resolution of reasonable fear claims because plaintiffs and other similarly situated individuals are subject to imprisonment while they await reasonable fear determinations. (Compl. ¶ 23.) Despite Section 208.31's mandate, plaintiffs allege that defendants have " rarely" complied with the 10-day deadline, leaving plaintiffs and others similarly situated to " languish in detention for months and, in some cases, over a year" at great emotional, physical, and financial cost to these individuals and their families. ( See Compl. ¶ ¶ 7, 31-59 (describing harms caused by defendants' violations, including depression, despair, and financial and emotional deprivation).) According to the complaint, defendants have wholly abandoned any effort to comply with Section 208.31. Instead, defendants have developed a new, less demanding timeframe, effectively supplanting the timeframe set forth in Section 208.31.
Plaintiffs thus seek relief under the Administrative Procedure Act (" APA") and the Mandamus and Venue Act to compel defendants to comply with their mandatory legal obligations, and to cease their unreasonable delays in processing plaintiffs' claims for relief. ( See id . ¶ ¶ 8, 71-79.)
B. Individual Plaintiffs
1. Marco A. Alfaro Garcia
Plaintiff Alfaro Garcia is a native and citizen of El Salvador. (Compl. ¶ 9.) Mr. Alfaro Garcia first entered the United States on September 12, 2005, at or near Lukeville, Arizona. (Defs.' Mot. Ex. 1-B, Form I-205, Warrant of Removal/Deportation.) On September 28, 2005, the Immigration Judge ordered that Mr. Alfaro Garcia be removed to El Salvador and he was removed from the United States on September 29, 2005. (Id. Ex. 1-B.) On or about March 2007, Mr. Alfaro Garcia returned to the United States. On January 14, 2014, he was arrested in Los Angeles, California, for driving under the influence, and on January 16, 2014, ICE took him into custody. (Id. Ex. 1-A.) That same day, an ICE officer issued an order reinstating Mr. Alfaro Garcia's order of removal to El Salvador. (Id. Ex. 1-D, I-871, Notice of Intent/Decision to Reinstate Prior Order.) Mr. Alfaro Garcia promptly expressed his fear of returning to El Salvador shortly after being taken into immigration custody, and on January 28, 2014, Mr. Alfaro Garcia was referred to USCIS for a reasonable fear determination. (Id. Ex. 1-C, Record of Sworn Statement in Administrative Proceedings; Ex. 1-E, Email from Michael McDaniel.) USCIS interviewed Mr. Alfaro Garcia on or about February 11, 2014. (Id. Ex. 1-F, Form I-899, Record of Determination/Reasonable Fear Worksheet.) USCIS issued a decision on April 25, 2014, concluding that Mr. Alfaro Garcia did not have a reasonable fear of persecution in El Salvador. (Id. Ex. 1-F, Form I-898, Record of Negative Reasonable Finding and Request for Review by Immigration Judge.)
Mr. Alfaro Garcia alleges that defendants' failure to provide him a reasonable fear determination within the prescribed 10-day period, instead delaying such determination for almost three months, has harmed him by prolonging his detention and delaying his right to be heard on his claims for relief.
2. Credy Madrid Calderon
Plaintiff Madrid Calderon is a native and citizen of Honduras. (Compl. ¶ 10.) Mr. Madrid Calderon first entered the United States on November 28, 2004 at or near Laredo, Texas. (Defs.' Mot. Ex. 2-A.) On May 25, 2005, he was ordered removed to Honduras. (Id. Ex. 2-B, Memorandum and Order.) Mr. Madrid Calderon was removed to Honduras on or about September 27, 2013. (Id. Ex. 2-C, Form I-871; Notice of Intent/Decision to Reinstate Prior Order.) Subsequently, on or about March 2, 2014, Mr. Madrid Calderon attempted to reenter the United States at or near Laredo, Texas, and on March 6, 2014, ICE issued an order reinstating Mr. Madrid Calderon's order of removal. (Id. Exs. 2-C, 2-D.) On or about April 3, 2014, USCIS notified Mr. Madrid Calderon that he was scheduled for a reasonable fear interview, which was conducted or about May 12, 2014. (Id. Ex. 2-E, Form M-488, Information about Reasonable Fear Interview; Ex. 2-F, Form I-899, Record of Determination/Reasonable Fear Worksheet.) On May 29, 2014, USCIS determined that Mr. Madrid Calderon had a reasonable fear of persecution or torture. (Id. Ex. 2-G, Form I-863, Notice of Referral to the Immigration Judge.)
Mr. Madrid Calderon alleges that because he did not receive a reasonable fear determination in his case for well in excess of 10 days after being referred for a reasonable fear interview, he was harmed by his prolonged detention and delayed right to be heard on his claim.
3. Gustavo Ortega
Plaintiff Ortega is a native and citizen of Mexico. (Compl. ¶ 11.) Mr. Ortega first entered the United States in September 2009 at or near Arizona. (Defs.' Mot. Ex. 3-A.) On January 23, 2014, Mr. Ortega was convicted of an aggravated felony, to wit, assault with a deadly weapon likely to cause great bodily injury, in violation of section 245(a)(1) of the California Penal Code. (Id. Ex. 3-B, Waiver on Plea of Guilty/No Contest, People v. Ortega .) On February 27, 2014, ICE issued a final administrative order of removal against Mr. Ortega. (Id. Ex. 3-C, Form I-851 and Form I-851A.) On or about February 26, 2014, Mr. Ortega expressed a fear of return to Mexico. (Id. Exs. 3-A; 3-C.)
On or about February 28, 2014, USCIS provided notice to Mr. Ortega that he was scheduled for a reasonable fear interview. (Id. Ex. 3-D, Form G-56, Notice of Reasonable Fear Interview; Ex. 3-E, Form M-488, Information About Reasonable Fear Interview.) USCIS interviewed Mr. Ortega on or about March 25, 2014. (Id. Ex. 3-F, Form I-899, Record of Determination/Reasonable Fear Worksheet.) Just over two months later, USCIS issued a decision on April 29, 2014, concluding that Mr. Ortega did not have a reasonable fear of persecution. (Id. Ex. 3-G, Form I-898, Record of Negative Reasonable Fear Finding.) Mr. Ortega claims that defendants' failure to provide him a reasonable fear determination within the prescribed 10-day period prolonged his detention and delayed his right to be heard on his claims for relief.
4. Claudia Rodriguez de la Torre
Plaintiff Rodriguez is a native and citizen of Mexico. (Compl. ¶ 12.) In 1998, Ms. Rodriguez first entered the United States at or near San Luis, Arizona. (Defs.' Mot. Ex. 4-A.) On January 2, 2014, Ms. Rodriguez was convicted of an aggravated felony, to wit, possession of a controlled substance for sale in violation of title 40, section 453.337 of the Nevada Revised Statutes. (Id. Ex. 4-B, Judgment, State v. Rodriguez-de la Torre, No. CR13-1802 (Washoe Cnty. Dist. Ct Jan. 2, 2014).) On January 21, 2014, Ms. Rodriguez was issued a final administrative order of removal. (Id. Ex. 4-C, Form I-851; Ex. 4-D, Form I-851A.) That same day, Ms. Rodriguez expressed a fear of return to Mexico. (Id. Ex. 4-C.)
On or about January 31, 2014, Ms. Rodriguez was referred to USCIS for a reasonable fear determination. (Id. Ex. 4-E, Email from Justin Smith.) USCIS interviewed Ortega on or about February 6, 2014. (Id. Ex. 4-F, Form I-899.) Approximately three months later, USCIS issued a decision on April 23, 2014, concluding that Ms. Rodriguez established that she had a reasonable fear of persecution in Mexico. (Id. Ex. 4-G, Form I-863.) Ms. Rodriguez claims that defendants' failure to provide her a reasonable fear determination within the prescribed 10-day period prolonged her detention and delayed her right to be heard on her claims for relief.
II. Motion to Dismiss for Lack of Jurisdiction
A. Legal Standard
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a complaint may be dismissed for lack of subject matter jurisdiction. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). The Court may consider affidavits and other evidence in order to be satisfied that jurisdiction exists. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040 n.2 (9th Cir. 2003). As the party asserting subject matter jurisdiction, the plaintiff bears the burden of establishing ...