Doe v. Wolf

          ORDER GRANTING MOTION FOR CLASS CERTIFICATION

          Hon. Dana M. Sabraw United States District Judge

         Pending 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.

         On 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.

         I.

         DISCUSSION ^[1]

         Petitioners 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. (Id.).

         Pursuant 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).

         Petitioners 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).

         Petitioners, 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 lawyers.

(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.^[2] Petitioners' pending motion for classwide preliminary injunction is addressed in a separate order.

         A. Legal Standard

         “The 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).

         Federal 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.

         Rule 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).

         The 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.

         Before turning to the requirements of Rule 23(a), the Court addresses Respondents' arguments that Petitioners lack standing, and that Petitioners' claim is moot.

         B. Article III Standing

         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).

         Respondents 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).

         The 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, 397 (1980)).

         As 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 ...