Doe v. Wolf

          ORDER GRANTING MOTION FOR CLASSWIDE PRELIMINARY INJUNCTION

          HON. DANA M. SABRAW UNITED STATES DISTRICT JUDGE

         On November 5, 2019, Petitioners filed a motion for class certification and a motion for temporary restraining order (“TRO”) to allow Petitioners access to their retained counsel prior to and during Petitioners' non-refoulement interviews under the Government's Migrant Protection Protocols Program (“MPP” or “Remain in Mexico”). Pursuant to the MPP, asylum seekers arriving at the United States Border by land from Mexico are returned to Mexico to await the outcome of their immigration proceedings. Bound by the duty of non-refoulement, however, Respondents may not return an asylum seeker to Mexico if the individual can show he or she faces persecution or torture in Mexico. Instead, the asylum seeker is taken out of the MPP and paroled or detained in the United States to await their removal proceedings.

         On November 12, 2019, the Court granted Petitioners' motion for TRO and ordered Respondents to allow Petitioners access to their retained counsel prior to and during their non-refoulement interviews. Doe v. McAleenan, __ F.Supp.3d __, 2019 WL 6605880, at *5 (S.D. Cal. Nov. 12, 2019). Petitioner Cristian Doe was interviewed two days later by an U.S. Citizenship and Immigration Services (“USCIS”) Asylum Officer. Three attorneys for Doe were present telephonically. The Asylum Officer found it is more likely than not that Petitioners will be persecuted or tortured if they are returned to Mexico. Consequently, the Doe family was taken out of the MPP and released from Customs and Border Patrol (“CBP”) custody. They are still awaiting the remainder of their immigration case.

         The Court has certified a class action to include similarly situated asylum seekers. Petitioners now request classwide injunctive relief to allow for access to retained counsel prior to and during their non-refoulement interviews. The matter has been fully briefed and argued. For the reasons set forth below, the Court reaffirms its conclusion that Petitioners have met their burden and that the Administrative Procedures Act (“APA”), specifically 5 U.S.C. § 555(b), provides a right to retained counsel in these circumstances.

         I.

         BACKGROUND

         Petitioners' and Respondents' declarations provide the following background facts. Petitioners are the parents of a family of five children that fled their home country of Guatemala after suffering extortion, death threats, and rape. (Mot. for TRO, Declaration of Cristian Doe (“Cristian Doe Decl.”), at ¶¶ 2, 4). Like many families, Petitioners traveled through Mexico to seek asylum in the United States. (Id. at ¶ 7). While in Mexico, Petitioners and their children were threatened at gun point, assaulted, robbed, and stripped of their clothing. (Mot. for TRO at 14). Their attackers, masked men clothed in what appeared to be Mexican government uniforms, threatened to kill Petitioners if they reported the incident. (Id.). Petitioners and their children were left terrified. (Id.). Upon reaching the United States, Petitioners immediately requested asylum. (Id.).

         Prior to the MPP, asylum seekers arriving at the Southern border were usually placed in expedited removal proceedings. 8 U.S.C. § 1225(b)(1). If they expressed a fear of persecution or torture upon removal to their country of origin, the asylum seekers were given a credible fear interview (“CFI”) to determine whether there was a significant possibility they would establish eligibility for asylum. 8 U.S.C. § 1225(b)(1)(A)(i). Before such interviews, asylum seekers had a right to consult with counsel. 8 C.F.R. §§ 208.30(d), 208.31(c). If the asylum seekers passed their CFIs, they were placed in full removal proceedings before an Immigration Judge (“IJ”) to present their asylum claims. 8 U.S.C. §§ 1229a(c)(4), 1225(b)(1)(B)(ii); 8 C.F.R. §§ 208.30, 235.3. While awaiting their removal proceedings, the asylum seekers were often paroled into the United States.

         The process changed in January of 2019 when the Department of Homeland Security (“DHS”) instituted the MPP: “an unprecedented action” meant to “address the urgent humanitarian and security crisis at the Southern border.” (Resp. in Opp'n to TRO, Ex. 2 at 4). Pursuant to the MPP, “individuals arriving in or entering the United States from Mexico-illegally or without proper documentation-may be returned to Mexico for the duration of their immigration proceedings.” (Id., Ex. 1 at 1). Asylum seekers within the MPP are given “Notice[s] to Appear” for their immigration court hearings and await such hearings in Mexico. (Id. at 2). In effect, the MPP replaces expedited removal proceedings and CFIs for certain asylum seekers. (Id., Ex. 2 at 7). The MPP is authorized by the Immigration and Nationality Act (“INA”), which provides that asylum seekers “arriving on land . . . from a foreign territory contiguous to the United States” may be returned “to that territory pending [their immigration] proceeding[s.]” 8 U.S.C. § 1225(b)(2)(C).

         In implementing the MPP, DHS officials must act consistent with the principle of non-refoulement. (Resp. in Opp'n to TRO, Ex. 3 at 11). This principle, contained in both Article 33 of the 1951 Convention Relating to the Status of Refugees^[1] and Article 3 of the Convention Against Torture, ^[2] prohibits the return of an individual to a country in which he or she would more likely than not be persecuted or tortured. (Id. at 10-11). As applied to the MPP, asylum seekers must first express a fear of returning to Mexico, and those that do are then detained by CBP pending a non-refoulement interview with USCIS Asylum Officers. (Id. at 11 n.4). During this interview, the Asylum Officer “elicit[s] all relevant and useful information” regarding the likelihood the asylum seeker will face persecution and torture upon his or her return to Mexico. (Id., Ex. 4 at 15). The interview “can last up to several hours, during which time the [asylum seeker] is often handcuffed.” (Mot. for TRO at 16; Cristian Doe Decl. at ¶¶ 25-26). If the asylum seeker passes the non-refoulement interview, he or she is removed from the MPP and is either released on parole or detained in the United States pending removal proceedings. (Mot. for TRO at 17). If the asylum seeker does not pass, he or she must await the outcome of their removal proceedings in Mexico. (Id.).

         Pursuant to DHS policy, asylum seekers cannot communicate with retained counsel prior to or during non-refoulement interviews.^[3] In practice, asylum seekers are given sporadic access to counsel-prior to their interviews, asylum seekers may have monitored calls with their attorneys if the phones are working, and during their interviews, asylum seekers are “sometimes” given access to counsel “on an ad hoc basis.” (Id. at 18; Resp. in Opp'n to Prelim. Inj., Declaration of Ashley B. Caudill-Mirillo (“Caudill-Mirillo Decl.”), at ¶ 3). DHS maintains, however, that providing asylum seekers with access to retained counsel is not required by law. (Resp. in Opp'n to Prelim. Inj. at 18-19).

         In accordance with the MPP, Petitioners and their children were returned to Mexico to await their immigration proceedings. (Mot. for TRO at 14). At their first immigration court hearing, Petitioners articulated a fear of return to Mexico and were given separate non-refoulement interviews. They did not have counsel present. (Caudill-Mirillo Decl. at ¶ 5; Cristian Doe Decl. at ¶ 26; Rep. in Supp. of Mot. for Prelim. Inj. at 9). Petitioners did not pass their interviews and were returned to Mexico. (Caudill-Mirillo Decl. at ¶ 5). Petitioners again articulated their fear of returning to Mexico at their third immigration court hearing, in which retained counsel was present. (Mot. for TRO at 19). The family was then detained by CBP to await a second non-refoulement interview. (Id.). Petitioners were not given confidential access to retained counsel. (Id.)

         Petitioners filed suit the same day on which they expressed a fear of returning to Mexico in immigration court. Petitioners sought a temporary restraining order to enjoin Respondents from prohibiting access to retained counsel and moved for class certification. The Court granted Petitioners' motion for a temporary restraining order and thereafter certified the class. The Court now determines whether Petitioners are entitled to a classwide preliminary injunction that requires Respondents to provide asylum seekers access to retained counsel prior to and during non-refoulement interviews.

         II.

         DISCUSSION

         Before addressing the merits of injunctive relief, the Court considers Respondents' jurisdictional arguments, including that the INA forecloses judicial review of Petitioners' claims and that the rule of non-inquiry bars judicial review of non-refoulement procedures. The INA prohibits judicial review of a “decision or action” that is “in the discretion of the Attorney General or the Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii). Respondents assert this jurisdictional bar extends not only to decisions to return asylum seekers to Mexico pending removal proceedings-which this case does not concern-but also extends to “the procedures used to arrive at those decisions.” (Resp. in Opp'n to Prelim. Inj. at 13). In support, Respondents cite Gebhardt v. Nielsen, in which the Ninth Circuit held it did not have jurisdiction to review the plaintiff's statutory claim attacking the USCIS's denial of his I-130 petition because of the INA's jurisdictional bar. Gebhardt v. Nielsen, 879 F.3d 980, 987 (9th Cir. 2018). In that case, the Ninth Circuit noted that it did not matter whether the plaintiff “characterize[d] his claims as challenges to the substantive standards that the Secretary [of DHS] use[d]” or as challenges to the Secretary's ultimate decision. Id. Either way, the Court lacked jurisdiction to review the claim because “[t]he standards by which the Secretary reaches a decision within his or her ‘sole and unreviewable discretion'-and the methods by which the Secretary adopts those standards-are just as unreviewable as the Secretary's ultimate decisions themselves.” Id. (citing Ortiz v. Meissner, 179 F.3d 718, 722 (9th Cir. 1999)). Respondents argue the same logic applies here: Petitioners' claims attack “the procedures used to arrive at the ultimate decisions to return [asylum seekers] to Mexico” and those procedures are not subject to judicial review. (Resp. in Opp'n to Prelim. Inj. at 14).

         Respondents' argument distorts Petitioners' claim. Petitioners are not challenging Respondents' decisions to return asylum seekers to Mexico or the substantive standards used to determine whether an asylum seeker will face persecution or torture upon return to Mexico. Petitioners' claim is narrow in its attack on Respondents' policy prohibiting access to retained counsel prior to and during non-refoulement interviews-an issue that is collateral to the outcome of the interview, and therefore within the Court's jurisdiction. See Gebhardt, 879 F.3d at 987 (“[W]e can review a claim in this context only if it challenges a genuinely collateral action”) (emphasis in original); Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017) (“[Section] 1252(a)(2)(B)(ii) restricts jurisdiction only with respect to the executive's exercise of discretion.”); Make the Road N.Y. v. McAleenan, 405 F.Supp.3d 1, 31 (D.D.C. 2019) (“[S]ection 1252(a)(2)(B)(ii) relates to judicial review of ‘denials of discretionary relief[, ]' . . . and nothing about Plaintiffs' claims challenges relief at all, much less discretionary relief or denials thereof.”) (internal citations omitted). To hold otherwise, as Petitioners argue, would be to grant Respondents the unreviewable freedom to determine the results of non-refoulement interviews with a “Ouija board” or “prevent persons from speaking” or “bind and gag” asylum seekers during the interview. (Rep. in Supp. of Mot. for Prelim. Inj. at 3). The Court, therefore, has jurisdiction over Petitioners' claim.

         As to Respondents' argument that the rule of non-inquiry bars judicial review of Petitioners' claim, the Court reaffirms its conclusion that the rule of non-inquiry does not apply because Petitioners are not challenging extradition or return decisions. (Order Granting TRO at 5-6 n.2). Petitioners seek to vindicate rights provided to them under federal law, ...