United States District Court, S.D. California
ORDER GRANTING MOTION FOR CLASSWIDE PRELIMINARY
DANA M. SABRAW UNITED STATES DISTRICT JUDGE
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
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.
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.
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.).
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
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.
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 and Article 3 of the Convention Against
Torture,  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.).
to DHS policy, asylum seekers cannot communicate with
retained counsel prior to or during non-refoulement
interviews. 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).
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.)
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
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).
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'
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, ...