United States District Court, S.D. California
ORDER GRANTING MOTION FOR CLASS
Dana M. Sabraw United States District Judge
before the Court is Petitioners' motion for class
certification. Petitioners, on behalf of themselves and
putative class members, allege Respondents have a practice or
policy of prohibiting asylum seekers access to retained
counsel prior to and during non-refoulement
interviews. Petitioners seek to certify a class of similarly
situated individuals for whom injunctive relief can be
entered allowing for such access to retained counsel.
November 12, 2019, the Court granted Petitioners' motion
for temporary restraining order (“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). Since the issuance of that Order, the
parties have fully briefed the issue of class certification,
and the Court has heard the arguments of counsel. For the
reasons set forth below, the Court grants Petitioners'
motion for class certification.
Cristian and Diana Doe and their five children fled their
home country of Guatemala in April of 2019. (Mot. for TRO at
14). While traveling through Mexico, Petitioners and their
children were threatened at gun point, assaulted, robbed, and
stripped of their clothing. (Id.). Upon reaching the
United States, Petitioners immediately requested asylum.
to the Migrant Protection Protocols Program
(“MPP” or “Remain in Mexico”), a
program instituted in January of 2019, Respondents returned
Petitioners to Mexico to await their immigration proceedings.
(Id.). While in Tijuana, the family survived a
shoot-out that occurred outside their temporary shelter.
(Id. at 15). Because of this violence and the trauma
Petitioners experienced while traveling through Mexico,
Petitioners expressed a fear of returning to Mexico during an
immigration court proceeding. (Id. at 19).
Petitioners were given a non-refoulement
interview-which assesses whether there is a likelihood the
asylum seeker will face persecution or torture upon return to
Mexico-by a United States Citizenship and Immigration
Services (“USCIS”) Asylum Officer. (Resp. in
Opp'n to Prelim. Inj., Declaration of Ashley
Caudill-Mirillo (“Caudill-Mirillo Decl.”), at
¶ 5). Petitioners did not pass the
non-refoulement interview. (Id.).
Petitioners expressed a fear of returning to Mexico again at
a later immigration court hearing. (Id.). Pursuant
to Respondents' policy, Petitioners were denied access to
their retained counsel prior to and during their
non-refoulement interview. (Mot. for Class
Certification at 14).
filed suit against Respondents, alleging their policy
violated the Administrative Procedures Act
(“APA”), the Immigration and Nationality Act
(“INA”), and the First and Fifth Amendments to
the United States Constitution. (Class Action Compl. and
Petition for Writ of Habeas Corpus, ECF No. 1). Petitioners
also filed motions for TRO and class certification. The Court
granted Petitioners' motion for TRO, enjoining
Respondents from prohibiting Petitioners access to retained
counsel prior to and during their non-refoulement
interview. Doe, 2019 WL 6605880, at *1. With counsel
present, Petitioners ultimately passed their second
non-refoulement interview. (Caudill-Mirillo Decl.
¶ 5). Petitioners are still awaiting the outcome of
their asylum case but are no longer within the MPP. (Rep. in
Supp. of Prelim. Inj., Declaration of Stephanie Blumberg
(“Blumberg Decl.”), at ¶ 9).
on behalf of themselves and putative class members, request
certification of the following class:
All individuals who are detained in CBP custody in California
awaiting or undergoing non-refoulement interviews
pursuant to what the government calls the “Migrant
Protection Protocols” program and who have retained
(Mot. for Class Certification at 2). Petitioners argue this
proposed class meets the requirements of Federal Rules of
Civil Procedure 23(a) and 23(b)(2). Defendants argue these
requirements are not met, Petitioners lack standing, and the
class certification motion is moot. (Resp. in Opp'n to
Class Certification at 6). The only claim currently at issue
and subject to class certification is Petitioners' APA
claim. Petitioners' pending motion for
classwide preliminary injunction is addressed in a separate
class action is ‘an exception to the usual rule that
litigation is conducted by and on behalf of the individual
named parties only.'” Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 348 (2011) (quoting Califano v.
Yamasaki, 442 U.S. 682, 700-01 (1979)). To qualify for
the exception to individual litigation, the party seeking
class certification must provide facts sufficient to satisfy
the requirements of Federal Rule of Civil Procedure 23(a) and
(b). Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304,
1308-09 (9th Cir. 1977). “The Rule ‘does not set
forth a mere pleading standard.' ” Comcast
Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting
Dukes, 564 U.S. at 350). “Rather, a party must
not only ‘be prepared to prove that there are in fact
sufficiently numerous parties, common questions of law or
fact,' typicality of claims or defenses, and adequacy of
representation, as required by Rule 23(a). The party must
also satisfy through evidentiary proof at least one of the
provisions of Rule 23(b)[.]” Id. (quoting
Dukes, 564 U.S. at 350) (internal citation omitted).
Rule of Civil Procedure 23(a) sets out four requirements for
class certification-numerosity, commonality, typicality, and
adequacy of representation. A showing that these requirements
are met, however, does not warrant class certification. The
plaintiff also must show that one of the requirements of Rule
23(b) is met.
23(b)(2) allows class treatment when “the party
opposing the class has acted or refused to act on grounds
that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate
respecting the class as a whole[.]” Fed.R.Civ.P.
23(b)(2). Because the relief requested in a Rule 23(b)(2)
class is prophylactic, inures to the benefit of each class
member, and is based on accused conduct that applies
uniformly to the class, notice to absent class members and an
opportunity to opt out of the class are not required. See
Dukes, 564 U.S. at 361-62 (noting relief sought in a
Rule 23(b)(2) class “perforce affect[s] the entire
class at once” and thus, the class is
“mandatory” with no opportunity to opt out).
district court must conduct a rigorous analysis to determine
whether the prerequisites of Rule 23 have been met. Gen.
Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982). It is a
well-recognized precept that “the class determination
generally involves considerations that are ‘enmeshed in
the factual and legal issues comprising the plaintiff's
cause of action.' ” Coopers & Lybrand v.
Livesay, 437 U.S. 463, 469 (1978) (quoting
Mercantile Nat'l Bank v. Langdeau, 371 U.S. 555,
558 (1963)). However, “[a]lthough some inquiry into the
substance of a case may be necessary to ascertain
satisfaction of the commonality and typicality requirements
of Rule 23(a), it is improper to advance a decision on the
merits at the class certification stage.” Moore v.
Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir.
1983) (citation omitted); see also Nelson v. U.S. Steel
Corp., 709 F.2d 675, 680 (11th Cir. 1983)
(plaintiff's burden “entails more than the simple
assertion of [commonality and typicality] but less than a
prima facie showing of liability”) (citation omitted).
Rather, a court's review of the merits should be limited
to those aspects relevant to making the certification
decision on an informed basis. See Fed. R. Civ. P.
23 advisory committee's notes. If a court is not fully
satisfied that the requirements of Rule 23(a) and (b) have
been met, certification should be refused. Falcon,
457 U.S. at 161.
turning to the requirements of Rule 23(a), the Court
addresses Respondents' arguments that Petitioners lack
standing, and that Petitioners' claim is moot.
Article III Standing
is decided as of the “outset of the litigation.”
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 180 (2000). Thus, in
determining whether Petitioners have standing, the Court
“must look at the facts as they exist at the time the
complaint was filed.” Slayman v. FedEx Ground
Package Sys., Inc., 765 F.3d 1033, 1047 (9th Cir. 2014)
(internal quotation omitted). In a class action, like here,
standing is satisfied “if at least one named plaintiff
meets the requirements.” Bates v. United Parcel
Serv., 511 F.3d 974, 985 (9th Cir. 2007) (citing
Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir.
2001)). Standing requires Petitioners to show (1) they have
suffered injury-in-fact-“an invasion of a legally
protected interest which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural or hypothetical,
” (2) a causal connection between the injury and the
conduct complained of, and (3) redressability. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992).
contend Petitioners lack standing because Petitioners are no
longer at risk of being returned to Mexico under the MPP.
(Resp. in Opp'n to Class Certification at 12-13).
Petitioners argue Respondents' argument confuses two
separate doctrines: standing and mootness. (Rep. in Supp. of
Class Certification at 3).
doctrine of standing addresses whether the party invoking
federal court jurisdiction has “[t]he requisite
personal interest” in the outcome of the case “at
the commencement of the litigation.” Blair v.
Shanahan, 38 F.3d 1514, 1519 (9th Cir. 1994) (internal
quotations omitted). The doctrine of mootness addresses
whether the party's personal interests “continue[s]
throughout [the litigation's] existence.”
Id. (internal quotations omitted). In other words,
“mootness [is] ‘the doctrine of standing set in a
time frame.' ” Id. at 1518-19 (quoting
U.S. Parole Comm'n v. Geraghty, 445 U.S. 388,
applied here, standing asks whether Petitioners had a
personal stake in the outcome of the litigation at the time
they filed their Complaint. Clearly, Petitioners have
standing: Petitioners suffered the injury of being deprived
access to retained counsel prior to and during their
non-refoulement interview, the injury was caused by
Respondents' policy prohibiting access to counsel, and
the injury can be redressed by an injunction enjoining
Respondents from ...