Al Otro Lado, Inc. v. McAleenan

          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 ...