United States District Court, S.D. California
ORDER: (1) GRANTING PLAINTIFFS' MOTION FOR
PROVISIONAL CLASS CERTIFICATION (ECF No. 293); AND (2)
GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
(ECF No. 294)
HON.
CYNTHIA BASHANT, UNITED STATES DISTRICT JUDGE
Before
the Court are Plaintiffs' Motion for Provisional Class
Certification and Plaintiffs' Motion for a Preliminary
Injunction. (Mot. for Provisional Class Certification, ECF
No. 293; Mot. for Prelim. Inj., ECF No. 294.) These Motions
identify a subclass of asylum-seekers caught in the legal
bind created by Defendants' previous policies at the
southern border and a newly-promulgated regulation known as
the Asylum Ban. The Asylum Ban requires non-Mexican nationals
who enter, attempt to enter, or arrive at a port of entry
(“POE”) at the southern border on or after July
16, 2019 to first seek asylum in Mexico, subject to narrow
exceptions. Plaintiffs ask the Court to prevent the
Government Defendants from applying the Asylum Ban to a class
of non-Mexican nationals who were prevented from making
direct claims for asylum at POEs before July 16, 2019 and
instructed to instead wait in Mexico pursuant to the
Government's own policies and practices.
The
putative class members in this case did exactly what the
Government told them to do: they did not make direct claims
for asylum at a POE and instead returned to Mexico to wait
for an opportunity to access the asylum process in the United
States. Now, the Government is arguing that these class
members never attempted to enter, entered, or arrived at a
POE before July 16, 2019, and, therefore, the newly
promulgated Asylum Ban is applicable to them.
The
Court disagrees. Because the Court finds that members of the
putative class attempted to enter a POE or arrived at a POE
before July 16, 2019, and that as such, the Asylum Ban by its
terms does not apply to them, the Court
GRANTS Plaintiffs' Motions.
I.
BACKGROUND
Plaintiffs
filed their initial complaint in the underlying action on
July 12, 2017 in the Central District of California. (Compl.,
ECF No. 1.) The case was subsequently transferred to the
Southern District of California. (ECF Nos. 113, 114.) The
Court provides a brief overview of the action's lengthy
litigation history below.
A.
Overview of the Litigation
Plaintiffs'
putative class action complaint alleges that Customs and
Border Protection (“CBP”) uses various unlawful
tactics, “including misrepresentation, threats and
intimidation, verbal abuse and physical force, and
coercion” to systematically deny asylum seekers access
to the asylum process. (Compl. ¶ 2.) Defendants moved to
dismiss the Complaint on December 14, 2017. (ECF No. 135.) In
its order on the motion, the Court found that organizational
Plaintiff Al Otro Lado had standing to bring the case and
that the case was not moot, even though some named Plaintiffs
had received an asylum hearing. See Al Otro Lado, Inc. v.
Nielsen, 327 F.Supp.3d 1284, 1296-1304 (S.D. Cal. 2018).
The Court further denied requests to dismiss the lawsuit
based on sovereign immunity and held that Plaintiffs had
adequately alleged a claim under the Administrative Procedure
Act (“APA”), 5 U.S.C. § 706(1), to
“compel agency action unlawfully withheld.”
(Id. at 1304-05, 1309-10.)
However,
the Court dismissed the § 706(1) claims brought by
Plaintiffs Abigail Doe, Beatrice Doe and Carolina Doe to the
extent they sought to compel relief under 8 C.F.R. §
235.4 for allegedly being coerced into withdrawing their
applications for admission. Id. at 1314-15
(concluding that § 235.4 did not require CBP to take
“discrete agency action” to determine whether a
withdrawal was made voluntarily). The Court also dismissed
Plaintiffs' § 706(2) claims based on an alleged
“pattern or practice” because Plaintiffs had not
alleged facts to plausibly “support [] the inference
that there is an overarching policy” to deny access to
the asylum process, and thus had not identified a
“final agency action” reviewable under this
provision of the APA. Id. at 1320. The Court granted
Plaintiffs leave to amend their § 706(2) claims.
Id. at 1321.
Plaintiffs
then filed a First Amended Complaint (“FAC”) on
October 12, 2018, followed by a Second Amended Complaint
(“SAC”) on November 13, 2018. (ECF Nos. 176,
189). The amended complaints added allegations regarding the
Government's purported “Turnback Policy, ”
which included a “metering” or
“waitlist” system in which asylum seekers were
instructed “to wait on the bridge, in the
pre-inspection area, or at a shelter”-or were simply
told that “they [could not] be processed because the
[POE] is ‘full' or ‘at
capacity[.]'” (SAC ¶ 3.) Plaintiffs contend
that CBP officials “routinely tell asylum seekers
approaching POEs that in order to apply for asylum, they must
get on a list or get a number” and that CBP prevents
asylum-seekers from coming to the POE “until their
number is called which can take days, weeks or longer.”
(Id. ¶ 100.) Some individuals are prevented
from registering on the lists due to discrimination based on
race, sexual orientation, or gender identity by the Mexican
officials or third parties managing the lists. (Id.)
Plaintiffs allege that CBP's rationale for this
system-that the POEs did not have the capacity to process the
asylum claims-is a pretext to serve “the Trump
administration's broader, public proclaimed goal of
deterring individuals from seeking access to the asylum
process.” (Id. ¶¶ 3, 5; see also
Id. ¶¶ 72-83.)
Defendants
moved to dismiss the SAC on November 29, 2018. (ECF No. 192.)
Following briefing-including six amicus briefs filed in
support of Plaintiffs' arguments[1]-and oral argument,
the Court largely denied Defendants' motion to dismiss
the SAC. See Al Otro Lado v. McAleenan, 394
F.Supp.3d 1168 (S.D. Cal. 2019). First, the Court denied
Defendants' Motion to Dismiss the SAC with respect to the
amended § 706(2) allegations, finding that:
Unlike the original Complaint, the SAC now alleges that as
early as 2016, Defendants were implementing a policy to
restrict the flow of asylum seekers at the San Ysidro Port of
Entry. Plaintiffs allege that Defendants formalized this
policy in spring 2018 in the form of the border-wide Turnback
Policy, an alleged “formal policy to restrict access to
the asylum process at POEs by mandating that lower-level
officials directly or constructively turn back asylum seekers
at the border, ” including through pretextual
assertions that POEs lack capacity to process asylum seekers.
Id. at 1180 (citing SAC ¶¶ 3, 48-93).
The
Court also rejected, without prejudice, Defendants'
argument that the SAC raised issues barred by the political
question doctrine because they implicated
“Defendants' coordination with a foreign national
to regulate border crossings.” Id. at 1190-93.
The Court found that although some allegations “touch
on coordination with Mexican government officials[, ]”
this coordination was “merely an outgrowth of the
alleged underlying conduct by U.S. Officials.”
Id. at 1192
Finally,
the Court rejected Defendants' arguments that Plaintiffs
located on Mexican soil were not “arriving in”
the United States for purposes of asylum. Id. at
1199-1201 (citing 8 U.S.C. § 1158(a)(1) (applicants for
asylum include “[a]ny alien who is physically present
in the United States or who arrives in the United
States”) and 8 U.S.C. § 1225(b)(1)(A)(ii)
(requiring an immigration officer to refer for an asylum
interview certain individuals who are “arriving in the
United States”)). The Court found that the plain
language and legislative histories of these statutes
supported the conclusion that the statute applies to asylum
seekers in the process of arriving. Id. at
1199-1201. Furthermore, the Court concluded that the
allegations in the SAC plausibly showed that Plaintiffs were
in the process of arriving in the United States at the time
they attempted to raise their asylum claims at POEs.
Id. at 1203.
Defendants
then answered the Complaint on August 16, 2019. (ECF No.
283).
B.
The Asylum Ban
On July
16, 2019, the Government issued a joint interim final rule
entitled “Asylum Eligibility and Procedural
Modifications, ” widely known as the “Asylum
Ban.” 84 Fed. Reg. 33, 829 (July 16, 2019),
codified at 8 C.F.R. § 208.13(c)(4). In
relevant part, Asylum Ban provides the following:
(c) Mandatory denials-
(4) Additional limitation on eligibility for asylum.
Notwithstanding the provisions of § 208.15, any alien
who enters, attempts to enter, or arrives in the
United States across the southern land border on or after
July 16, 2019, after transiting through at least one
country outside the alien's country of citizenship,
nationality, or last lawful habitual residence en route to
the United States, shall be found ineligible for asylum
unless:
(i) The alien demonstrates that he or she applied for
protection from persecution or torture in at least one
country outside the alien's country of citizenship,
nationality, or last lawful habitual residence through which
the alien transited en route to the United States, and the
alien received a final judgment denying the alien protection
in such country.
Id. (emphasis added). Although the initial
implementation of this new regulation was enjoined by the
Northern District of California, the Supreme Court
subsequently stayed the district court's injunction of
the Asylum Ban on September 11, 2019, without explanation,
“pending disposition of the Government's appeal in
the United States Court of Appeals for the Ninth Circuit and
disposition of the Government's petition for a writ of
certiorari, if such a writ is sought.” Barr v. East
Bay Sanctuary Covenant, ____ S.Ct. ___, 2019 WL 4292781
(Sept. 11, 2019) (mem.). Thus, at present, non-Mexican
asylum-seekers who entered, attempted to enter, or arrived at
the United States-Mexico border after July 16, 2019 must
first seek and be denied asylum in Mexico to establish
eligibility for asylum in the United States.[2]
Due to
the Government's metering policies, these individuals
were prevented from crossing through POEs and were instead
instructed to “wait their turn” in Mexico for
U.S. asylum processing.[3] Many understood this to be a
necessary and sufficient way to legally seek asylum in the
United States.[4] Their understanding of the process,
under the law that existed at the time of they sought asylum
at the southern border, was correct.
Plaintiffs
argue the Asylum Ban would, if applied to non-Mexican
asylum-seekers who were metered at the border before
July 16, 2019, preclude these individuals from accessing any
asylum process altogether due to circumstances entirely of
the Government's making. Mexico's Commission to
Assist Refugees, the administrative agency responsible for
processing asylum claims, requires that applicants for asylum
submit their petitions within 30 days of entering Mexico.
(See Decl. of Alejandra Macias Delgadillo
¶¶ 34-37, Ex. 27 to Mot. for Prelim. Inj., ECF No.
294-27; Decl. of Michelle Brané ¶ 22, Ex. 28 to
Mot. for Prelim. Inj., ECF No. 294-28.) However, because the
Asylum Ban was not promulgated until after the time these
individuals were subject to metering, none of the members of
the putative class attempted to exhaust Mexico's asylum
procedures within the 30-day window. In short, should the
Asylum Ban apply to these individuals, the situation would
effectively be this: Based on representations of the
Government they need only “wait in line” to
access the asylum process in the United States, the members
of the putative class may have not filed an asylum petition
in Mexico within 30 days of entry, thus unintentionally and
irrevocably relinquishing their right to claim asylum in
Mexico and, due to the Asylum Ban, their right to claim
asylum in the United States.[5]
Thus,
Plaintiffs seek to provisionally certify a subclass of the
original class consisting of “all non-Mexican
noncitizens who were denied access to the U.S. asylum process
before July 16, 2019 as a result of the Government's
metering policy and continue to seek access to the U.S.
asylum process[.]” (Mot. for Provisional Class
Certification at 13.) Plaintiffs further request that the
Court preliminarily enjoin Defendants from applying the
Asylum Ban to provisional class members who were metered
prior to July 16, 2019. (Mot. for Prelim. Inj. at 24-25.)
Defendants
argue that this Court has no jurisdiction to issue the
requested relief in either Motion under a variety of
provisions in the Immigration and Nationality Act
(“INA”) and because the subject of
Plaintiffs' injunction is not of the same character as
the underlying lawsuit. As to the merits of Plaintiffs'
Motions, Defendants contend that Plaintiffs are not entitled
to an injunction because the Government's metering
policies are lawful, the balance of equities tips sharply in
favor of the Government, and Plaintiffs have failed to
satisfy any of the prerequisites to class certification under
Federal Rule of Civil Procedure 23. For the reasons explained
below, the Court rejects Defendants' arguments.
II.
JURISDICTION
Defendants
challenge the Court's jurisdiction to grant the requested
relief, citing to various provisions of 8 U.S.C. § 1252
that preclude jurisdiction in certain contexts. Before
turning to the specific subsections, it is necessary to
clarify the factual and legal framework within which this
Order operates. First, it is important to identify what
precise question the Court has been asked to decide-and what
it has not been asked to decide-on Plaintiffs'
two Motions. Plaintiffs ask that the Court enjoin the
Government from applying the Asylum Ban to them because they
arrived at POEs before July 16, 2019. Plaintiffs do not make
a facial challenge to the Asylum Ban's legality by asking
the Court to pass upon the constitutionality of the
regulation as an exercise of the Executive Branch's
powers. Plaintiffs' request also does not require the
Court to make any determinations about the merits of their
asylum claims, review removal proceedings (expedited or
otherwise), or determine the legitimacy of any orders of
removal.
Second,
Defendants' challenge to jurisdiction in this case calls
into question bars on courts' inherent powers of equity.
It is undisputed that Congress can restrict a federal
courts' traditional equitable discretion. Tennessee
Valley Auth. v. Hill, 437 U.S. 153, 194-95 (1978).
“However, because of the long and established history
of equity practice, ‘we do not lightly assume that
Congress has intended to depart from established principles
[of equitable discretion].'” Owner Operator
Indep. Drivers Ass'n, Inc. v. Swift Transp. Co.
(AZ), 367 F.3d 1108, 1112 (9th Cir. 2004) (quoting
Weinberger v. Romero-Barcelo, 456 U.S. 305, 313
(1982)). Therefore, “[u]nless a statute in so many
words, or by a necessary and inescapable inference, restricts
the court's jurisdiction in equity, the full scope of
that jurisdiction is to be recognized and applied.”
Porter v. Warner Holding Co., 328 U.S. 395, 398
(1946); see also United States v. Oakland Cannabis
Buyers' Coop., 532 U.S. 483, 496 (2001) (holding
that trial courts' equitable discretion “is
displaced only by a clear and valid legislative
command”) (internal quotations omitted); Rodriguez
v. Hayes, 591 F.3d 1105, 1120 (9th Cir. 2010)
(“[T]raditional equitable powers can be curtailed only
by an unmistakable legislative command.”).
Turning
to Defendants' specific challenges to the Court's
jurisdiction, Defendants make two arguments. First,
Defendants argue that various subsections of 8 U.S.C. §
1252 divest this Court of jurisdiction to review the
implementation of the Asylum Ban. (Opp'n to Prelim. Inj.
Mot. at 6-10, ECF No. 307.) Second, Defendants argue that the
requested injunction is improper because it is not of the
same character as the underlying lawsuit and deals with
matter lying wholly outside the issues in the suit.
(Id. at 10-11.) The Court rejects both arguments for
the reasons discussed below.
A.
Bars to Jurisdiction Under 8 U.S.C. § 1252
The
provisions of 8 U.S.C. § 1252 deprive this Court of
jurisdiction over certain cases. Defendants take a
scattershot approach, arguing that multiple subsections are
applicable to Plaintiffs' requests and thus the court has
no jurisdiction to reach the issues raised. The Court
disagrees.
1.
The relief requested does not arise from, pertain to, or
otherwise relate to pending removal proceedings or
removal orders.
Several
subsections of § 1252 limit judicial review of claims
and questions that relate to removal proceedings or existing
orders of removal. Defendants argue that §§
1252(a)(2)(A)(i), 1252(g), 1252(a)(5), and 1252(b)(9) all
strip this Court of jurisdiction.[6]
Section
1252(a)(2)(A)(i) prohibits “a direct challenge to an
expedited removal order.” Pena v. Lynch, 815
F.3d 452, 455 (9th Cir. 2016); see also Jennings v.
Rodriguez, 138 S.Ct. 830, 841 (2018) (§ 1252(b)(9)
did not apply where respondents were not asking for review of
an order of removal, challenging the decision to detain them
or seek removal, or challenging the process for determining
removability); M.M.M. on Behalf of J.M.A. v.
Sessions, 347 F.Supp.3d 526, 532 (S.D. Cal. 2018)
(§ 1252(a)(2)(A)(i) did not apply where plaintiffs did
not have final removal orders and where they were “not
challenging the Government's ultimate decision to detain
or remove them”).
Section
1252(g), by its terms, applies to only the three discrete
actions that the Attorney General may take-to commence
proceedings, adjudicate cases, or execute removal orders.
Reno v. American-Arab Anti-Discrimination Committee,
525 U.S. 471, 482 (1999). It does not refer to “all
claims arising from deportation proceedings.”
Id.
Finally,
the prohibitory language in § 1252(a)(5) and §
1252(b)(9) “mean[s] that any issue-whether legal or
factual-arising from any removal-related activity can be
reviewed only through the PFR [petition for review]
process.” J.E.F.M. v. Lynch, 837 F.3d 1026,
1031 (9th Cir. 2016) (emphasis omitted). However, §
1259(b)(9) “excludes from the PFR process any claim
that does not arise from removal proceedings. Accordingly,
claims that are independent of or collateral to the removal
process do not fall within the scope of §
1252(b)(9).” Id. at 1032; see also
Jennings, 138 S.Ct. at 841. The question is not whether
the challenged action “is an action taken to remove an
alien but whether the legal questions in this case arise from
such an action.” Jennings, 138 S.Ct. at 841
n.3.
The
Government does not allege that any Plaintiff is in removal
proceedings or that a final order of removal has been issued
as to any Plaintiff. Likewise, Plaintiffs do not request
review of an order of removal, challenge the decision to seek
removal, or contest any step that has been taken by the
Government to determine their removability, including a
decision to commence or adjudicate proceedings. (See
Mot. for Prelim. Inj. at 2 (stating that Plaintiffs did not
“file this motion to seek a specific outcome in
provisional class members' asylum cases”).) In
fact, the very relief Plaintiffs seek is to commence such
proceedings and have their asylum claims adjudicated by being
granted access to the asylum process.
Defendants
have not alleged that any final removal orders have been
issued as to any Plaintiff, or that Plaintiffs' requests
challenge any such orders per subsection (a)(2)(A), implicate
the discrete actions outlined in subsection (g), or arise
from actions taken to remove these aliens under subsections
(a)(5) and (b)(9). Thus, the Court finds that these
provisions do not preclude its jurisdiction over the claims
raised in Plaintiffs' Motions.
2.
The Asylum Ban does not implement the expedited removal
statute (8 U.S.C. § 1225(b)).
Two
subsections in § 1252 prohibit judicial review of
policies, regulations, or procedures issued or adopted by the
Attorney General “to implement 8 U.S.C. §
1225(b)(1).”[7] Defendants claim that §
1225(b)(1) is implicated because of the possibility that some
Plaintiffs “will be adjudicated in expedited removal
proceedings under section 1225(b)(1), and some in regular
removal proceedings under section 1229a.” (Opp'n to
Mot. for Prelim. Inj. at 6-7.)
Although
the Asylum Ban's limitation on eligibility requirements
may derivatively affect certain aspects of the expedited
removal process authorized in § 1225(b)(1), the Asylum
Ban does not implement § 1225(b)(1). See E.
Bay Sanctuary Covenant v. Trump, 354 F.Supp.3d 1094,
1118-19 (N.D. Cal. 2018), appeal filed, Nos.
18-17274, 18-17436 (9th Cir. Dec. 26, 2018). Rather, the
Asylum Ban implements the asylum eligibility requirements
stated in the asylum statute, 8 U.S.C. § 1158.
Section
1158 states that asylum may be granted “to an alien who
has applied for asylum in accordance with the requirements
and procedures established by the Secretary of Homeland
Security or the Attorney General under this section.” 8
U.S.C. § 1158(b)(1)(A). The Asylum Ban, housed in the
Code of Federal Regulations under Part 208 (“Procedures
for Asylum and Withholding of Removal”), Section 208.13
(“Establishing Asylum Eligibility”), appears to
be one such procedure. The Ban itself is characterized not as
an additional procedure for expedited removal, but as an
“Additional limitation on eligibility for
asylum.” See 8 C.F.R. § 208.13(c)(4).
Nothing in the language of the Ban discusses §
1225(b)(1), cites to § 1225(b)(1), or otherwise
indicates that it implements expedited removal under §
1225(b)(1). Thus, the Court sees no basis for concluding that
the Asylum Ban implements expedited removal. See Kucana
v. Holder, 558 U.S. 233, 252 (2010) (“[T]he
textual limitations upon a law's scope are no less a part
of its purpose than its substantive authorizations.”)
(quoting Rapanos v. United States, 547 U.S. 715, 752
(2006) (plurality op.)).
An
analysis of the relevant provisions of § 1252 leads to
the same conclusion. Nothing in the language of § 1252,
including in § 1252(a)(2)(A)(iv) and §
1252(e)(3)(A)(ii), precludes judicial review of regulations
implementing asylum eligibility requirements under 8 U.S.C.
§ 1158. Courts must interpret congressional language
barring jurisdiction precisely. Cheng Fan Kwok v.
INS, 392 U.S. 206, 212 (1968) (holding that a statute
affecting federal jurisdiction “must be construed both
with precision and with fidelity to the terms by which
Congress has expressed its wishes”). “[W]here
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”
Nken v. Holder, 556 U.S. 418, 430 (2009). Thus, in
these provisions, where Congress sought to limit judicial
review of policies, procedures, and regulations made under
only § 1225(b)(1), the Court must presume that Congress
intentionally excluded § 1158 from this jurisdictional
bar. See E. Bay Sanctuary Covenant, 354 F.Supp. at
1118- 19.
Further,
the regulatory scheme for immigration law already includes a
separate section discussing the implementation of the
expedited removal system. See 8 C.F.R. Part 235
(Inspection of Persons Applying for Admission). These
regulations specify the record an immigration officer must
create during the expedited removal process and the
advisements that the officer must give to individuals subject
to expedited removal. United States v.
Barajas-Alvarado, 655 F.3d 1077, 1081 (9th Cir. 2011)
(citing 8 C.F.R. §§ 235.3, 1235.3
(“Inadmissible aliens and expedited removal”));
see also Am. Immigration Lawyers Ass'n v. Reno,
18 F.Supp.2d 38, 43 (D.D.C. 1998) (Part 235
“regulate[s] how the inspecting officer is to determine
the validity of travel documents, how the officer should
provide information to and obtain information from the alien,
and how and when an expedited removal order should be
reviewed”), aff'd, 199 F.3d 1352 (D.C.
Cir. 2000). Courts have identified these regulations as the
“implementing regulations” for the expedited
removal system. See Id. at 43-45 (applying §
1252(e)(3) to bar claims challenging regulations in Part
235).
A
decision from the District Court for the District of Columbia
illustrates when a rule or policy implements §
1225(b)(1). In Grace v. Whitaker, asylum applicants
challenged new credible fear policies, established by the
Attorney General's decision in Matter of A-B-,
for asylum applications based on domestic or gang violence.
344 F.Supp.3d 96, 108-10 (D.D.C. 2018), appeal
docketed, No. 19-5013 (D.C. Cir. Jan. 30, 2019). In
finding that § 1252(e)(3)(A)(ii) conferred jurisdiction
on the D.C. District Court to hear the challenge, the court
focused on the fact that the Attorney General's decision
in Matter of A-B- “went beyond” asylum
and “explicitly address[ed] ‘the legal standard
to determine whether an alien has a credible fear of
persecution' under 8 U.S.C. § 1225(b).”
Id. at 116 (citing Matter of A-B-, 27 I.
& N. Decl. 316, 320 n.1 (A.G. 2018)). Further, in
Matter of A-B-, the Attorney General expressly
directed immigration judges and asylum officers to
“analyze the requirements as set forth” in the
decision and stated that generally, claims of domestic or
gang-related violence would often fail to satisfy the
credible fear standard. The District Court cited this
direction as evidence that the decision constituted a
“written policy directive” or “written
policy guidance” about expedited removal such that it
was ...