Case3:14-cv-01775 Document1 Filed04/17/14 Page1 of 19

1 MICHAEL KAUFMAN (State Bar No. 254575)
mkaufman@aclu-sc.org
2 CARMEN G. IGUINA (State Bar No. 277369) *
ciguina@aclu-sc.org
3 AHILAN T. ARULANANTHAM (State Bar No. 237841) *
aarulanantham@aclu-sc.org
4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA
1313 West 8th Street
5 Los Angeles, California 90017
Telephone: (213) 977-5211
6 Facsimile: (213) 417-2211

7 CHARLES ROTH *
croth@heartlandalliance.org
8 CLAUDIA VALENZUELA *
cvalenzuela@heartlandalliance.org
9 National Immigrant Justice Center
A Heartland Alliance Partner
10 208 South LaSalle, Suite 1300
Chicago, Illinois 60604
11 Telephone: (312) 660-1308
Facsimile: (312) 660-1505
12

13 Counsel for Plaintiffs (Additional counsel listed on following page)

UNITED STATES DISTRICT COURT
14

FOR THE NORTHERN DISTRICT OF CALIFORNIA
15

16

MARCO ANTONIO ALFARO GARCIA, CREDY MADRID

) )

17

CALDERON, GUSTAVO ORTEGA, CLAUDIA RODRIGUEZ DE LA

) )

18

TORRE, and NANCY BARDALEZ SERPA, on behalf of themselves and all

) )

19 others similarly situated,

) )

20 Plaintiffs,

) )

21 v.

) )

22

JEH JOHNSON, Secretary of Homeland Security, LORI SCIALABBA, Acting

) )

23

Director of U.S. Citizenship and Immigration Services, and JOSEPH

) )

24

LANGLOIS, Associate Director of Refugee, Asylum and International

) )

25 Operations,

) )

26 Defendants.

) )

Case No.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CLASS ACTION

27

28

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1

JULIA HARUMI MASS (State Bar No. 189649) jmass@aclunc.org

2

JINGNI (JENNY) ZHAO (State Bar No. 284684) jzhao@aclunc.org

3

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA

4

39 Drumm Street San Francisco, California 94111

5

Telephone: (415) 621-2493 Facsimile: (415) 255-8437

6 JAMES A. ROLFES*

7

jrolfes@reedsmith.com DAVID Z. SMITH*

8

dzsmith@reedsmith.com JOSEPH B. PRATER*

9

jprater@reedsmith.com TIMOTHY R. CARRAHER*

10

tcarraher@reedsmith.com REED SMITH LLP

11

10 South Wacker Drive, 40th Floor Chicago, Illinois 60606

12

Telephone: (312) 207-1000 Facsimile: (312) 207-6400

13 JOHN D. PINGEL (State Bar No. 267310)

14

jpingel@reedsmith.com REED SMITH LLP

15

101 Second Street, Suite 1800 San Francisco, California 94105-3659

16

Telephone: (415) 543-8700 Facsimile: (415) 391-8269

17 Counsel for Plaintiffs 18 * pro hac vice or admission application forthcoming

19

20

21

22

23

24

25

26

27

28

COMPLAINT

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1

JURISDICTION AND VENUE

2

1.

Plaintiffs challenge the government’s failure to process and complete their

3 reasonable fear interviews and make reasonable fear determinations in compliance with the

4 applicable immigration regulations.

5

2. Congress has provided this Court with subject matter jurisdiction over this case

6 pursuant to the Administrative Procedure Act, 5 U.S.C. § 701, et seq., the Mandamus and Venue

7 Act of 1962, 28 U.S.C. § 1361, and the general federal question jurisdiction provided pursuant to

8 28 U.S.C. § 1331.

9

3. Personal jurisdiction exists over the Defendants in this case, owing to, among

10 other things, the nationwide nature of Defendants’ conduct.

11

4. Venue is proper in the Northern District of California under 28 U.S.C.

12 § 1391(b)(2) and (e)(1) because a significant number of the events relevant to this action took

13 place in this District, particularly with respect to Plaintiffs Credy Madrid Calderon and Gustavo

14 Ortega, for whom the majority of their prolonged detention took place in this District, and

15 because numerous witnesses reside in this District.

16

PRELIMINARY STATEMENT

17

5.

Every day, people who fear persecution and torture in their home countries flee

18 to the United States in search of protection from harm and violence inflicted because of their

19 race, religious beliefs, nationality, social group or political opinions. By statute and treaty, the

20 United States government has committed that this nation will not expel, extradite or otherwise

21 effect the involuntary return of any person to a country that would subject that person to

22 persecution for any of those reasons, or to torture.

23

6.

To live up to these commitments, the United States government has developed

24 administrative processes to ensure that noncitizens identified for removal have an adequate

25 opportunity to seek protection if they express fear of persecution or torture upon removal to their

26 countries of origin. For certain individuals—those who are subject to “reinstatement” of a prior

27 removal order and those who have been issued an “administrative” removal order based on their

28 criminal and immigration history—that process begins with an interview where an asylum

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1 officer determines whether the individual has articulated a reasonable fear of persecution or

2 torture. Although the government imprisons these individuals while their claims are processed, it

3 has committed to each of them that, within 10 days of his or her case being referred to an asylum

4 officer, the officer will make a reasonable fear determination, and by doing so, initiate the

5 process by which an immigration judge will consider his or her claim. That commitment is made

6 manifest in a duly promulgated regulation. See 8 C.F.R. § 208.31(b).

7

7.

The United States government, however, has broken that promise. Rarely if ever

8 do the administrative agencies tasked with initiating and conducting the reasonable fear

9 interviews, and assessing the claims made, accomplish those tasks within the prescribed 10 days.

10 Instead, the government leaves immigrants to languish in detention for months and, in some

11 cases, over a year before referring their cases to the immigration courts for a hearing on their

12 claims.

13

8.

Pursuant to the Administrative Procedure Act and the Mandamus and Venue Act

14 of 1962, the named Plaintiffs here seek, on behalf of themselves and a class of similarly-situated

15 immigrants, an order requiring the government to refer reasonable fear interview requests,

16 conduct reasonable fear interviews, and issue reasonable fear determinations within the

17 mandated 10 days and without unreasonable delay. By ordering the government to comply with

18 its non-discretionary obligation to provide reasonable fear interviews and determinations in a

19 timely manner, this Court will hold the United States to the promise made to all immigrants who

20 seek refuge in this country, end improperly extended detentions, and give hope to the many who

21 seek a new life free of persecution and torture.

22

PARTIES

23 Plaintiffs

24

9. Plaintiff Marco Antonio Alfaro Garcia is a native and citizen of El Salvador. He

25 has been in the custody of the U.S. Immigrations and Customs Enforcement (“ICE”) at the

26 Adelanto Detention Facility in Adelanto, California, since on or about January 16, 2014. Mr.

27 Alfaro Garcia promptly expressed his fear of returning to El Salvador shortly after being taken

28 into immigration custody, but has not received a reasonable fear determination for well in excess

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1 of 10 days after being referred for a reasonable fear interview. Defendants’ failure to provide Mr.

2 Alfaro Garcia a reasonable fear determination within the prescribed 10-day period has harmed,

3 and will continue to harm, Mr. Alfaro Garcia by prolonging his detention and delaying his right to

4 be heard on his claims for relief.

5

10. Plaintiff Credy Madrid Calderon is a native and citizen of Honduras. He was first

6 detained by the U.S. Customs and Border Protection (“CBP”) on or about March 3, 2014, and

7 transferred to ICE custody on or about March 6, 2014. He remains in ICE custody at West County

8 Detention Center in Richmond, California. Mr. Madrid Calderon has not received a reasonable

9 fear determination in his case for well in excess of 10 days after being referred for a reasonable

10 fear interview. Defendants’ failure to provide Mr. Madrid Calderon a reasonable fear

11 determination within the prescribed 10-day period has harmed, and will continue to harm, Mr.

12 Madrid Calderon by prolonging his detention and delaying his right to be heard on his claims for

13 relief.

14

11. Plaintiff Gustavo Ortega is a native and citizen of Mexico. He has been detained

15 at the West County Detention Center in Richmond, California, since on or about February 27,

16 2014. Mr. Ortega was referred for a reasonable fear interview after he expressed his fears of

17 return to Mexico, but he has not received a reasonable fear determination for more than 10 days

18 after the referral. Defendants’ failure to provide Mr. Ortega a reasonable fear determination

19 within the prescribed 10-day period has harmed, and will continue to harm, Mr. Ortega by

20 prolonging his detention and delaying his right to be heard on his claims for relief.

21

12. Plaintiff Claudia Rodriguez De La Torre is a native and citizen of Mexico. She

22 has been detained by ICE since on or about mid-January 2014 at the Eloy Detention Center in

23 Eloy, Arizona. Ms. Rodriguez De La Torre has not received a reasonable fear determination in her

24 case for well in excess of 10 days after being referred for a reasonable fear interview. Defendants’

25 failure to provide Ms. Rodriguez De La Torre a reasonable fear determination within the

26 prescribed 10-day period has harmed, and will continue to harm, Ms. Rodriguez De La Torre by

27 prolonging her detention and delaying her right to be heard on her claims for relief.

28

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1

13. Plaintiff Nancy Bardalez Serpa is a native and citizen of Peru. She has been

2 detained at the Eloy Detention Center in Eloy, Arizona, since on or about February 13, 2014. Ms.

3 Bardalez Serpa has not received a reasonable fear determination in her case for well in excess of

4 10 days after being referred for a reasonable fear interview. Defendants’ failure to provide Ms.

5 Bardalez Serpa a reasonable fear determination within the prescribed 10-day period has harmed,

6 and will continue to harm, Ms. Bardalez Serpa by prolonging her detention and delaying her right

7 to be heard on her claims for relief.

8 Defendants

9

14. Defendant Jeh Johnson is the Secretary of Homeland Security and the highest-

10 ranking member of the Department of Homeland Security (“DHS”), the arm of the U.S.

11 Government responsible for enforcement of the immigration laws. Mr. Johnson is sued in his

12 official capacity.

13

15. Defendant Lori Scialabba is the Acting Director of the U.S. Citizenship and

14 Immigration Services (“USCIS”), the arm of DHS charged with overseeing the Asylum Offices

15 which process and complete reasonable fear determinations for noncitizens who express a fear of

16 return to their country of origin. Ms. Scialabba is sued in her official capacity.

17

16. Defendant Joseph Langlois is the Associate Director of the Refugee, Asylum and

18 International Operations Directorate, the office within USCIS that oversees the Asylum Division

19 and Asylum Offices that conduct reasonable fear determinations for noncitizens who express a

20 fear of return to their country of origin. Mr. Langlois is sued in his official capacity.

21

STATEMENT OF FACTS

22 Reasonable Fear Determination Process

23

17. The vast majority of individuals who undergo the reasonable fear process are

24 individuals who have prior removal orders but have returned to the United States seeking refuge.

25 Many of these individuals returned to their countries of origin after being removed from the

26 United States, only to find that they are now the targets of violence and persecution. In some

27 cases, it was that same violence and persecution that forced them to leave their homes in the first

28 place, only such conditions have worsened in their absence. These individuals are forced to once

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1 again abandon their home countries and make the journey to the United States seeking protection.

2 Some of these individuals have already tried to seek asylum once, were summarily deported

3 without a hearing after immigration officers ignored or discouraged their requests, yet return

4 again because of the continued persecution or torture they face in their home countries. When

5 apprehended by ICE or CBP, these individuals are held in an immigration detention center,

6 subject to “reinstatement” of the prior removal order and subject to removal on that basis. See 8

7 U.S.C. § 1231(a)(5).

8

18. The reasonable fear process also applies to a second category of individuals:

9 those who are subject to administrative removal pursuant to 8 U.S.C. § 1228 and 8 C.F.R. §

10 238.1, but who fear violence and persecution if returned to their countries of origin. The

11 government can detain and remove these individuals pursuant to this administrative removal

12 process without seeing an immigration judge if an immigration officer determines that the

13 noncitizen is not a lawful permanent resident, does not have conditional permanent residence, and

14 has been convicted of certain criminal offenses.

15

19. However, if an individual subject to reinstatement of removal or to

16 administrative removal fears return to his or her country of origin, the immigration laws require

17 that he or she have an opportunity to request protection in the United States through “withholding

18 of removal” and relief under the United Nations Convention Against Torture and Other Cruel,

19 Inhuman or Degrading Treatment or Punishment (“CAT”). Under 8 U.S.C. § 1231(b)(3), a person

20 may seek withholding of removal if his “life or freedom would be threatened in that country

21 because of [his] race, religion, nationality, membership in a particular social group, or political

22 opinion.” The availability of withholding of removal stems from the Refugee Act of 1980,

23 through which the United States sought to bring its laws into conformity with the 1967 United

24 Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, under which

25 countries committed not to “expel or return (‘refouler’) a refugee in any manner whatsoever to the

26 frontiers of territories where his life or freedom would be threatened on account of his race,

27 religion, nationality, membership of a particular social group or political opinion.” 19 U.S.T. at

28 6276.

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1

20. Additionally, as a signatory to the CAT, the United States has committed “not to

2 expel, extradite, or otherwise effect the involuntary return of any person to a country in which

3 there are substantial grounds for believing the person would be in danger of being subjected to

4 torture . . . .” Foreign Affairs Reform and Restructuring Act of 1998 § 2242, Pub. L. 105-277, 112

5 Stat. 2681, 2681-821.

6

21. “Withholding of removal” and CAT relief are mandatory, not discretionary—by

7 law the United States cannot remove someone who qualifies for protection under these

8 provisions. See Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005) (“If an alien meets his

9 burden of proof regarding future torture, withholding of removal is mandatory under the [CAT]

10 implementing regulations, just as it is in the case of a well-founded fear of persecution”).

11

22. For a noncitizen subject to “reinstatement of removal” or “administrative

12 removal” who expresses a fear of return, the federal government has implemented a two-stage

13 process to determine whether the individual qualifies for withholding of removal or relief under

14 the CAT. See 8 C.F.R. § 208.31. After an individual expresses a fear of return, ICE and CBP are

15 required to refer him or her to a USCIS asylum officer, who first conducts an interview and then

16 makes a determination as to whether the individual has a “reasonable” basis to fear persecution or

17 torture upon his or her return to the country of origin. See 8 C.F.R. § 208.31(c). If the asylum

18 officer determines that the individual’s fear is reasonable, USCIS then refers the case to an

19 immigration judge from the Executive Office for Immigration Review (“EOIR”) for full

20 consideration of the claim. See 8 C.F.R. § 208.31(e).

21

23. The government takes the position that noncitizens subject to reinstatement of

22 removal or an administrative removal order are not eligible for a bond hearing to determine

23 whether their detention is justified, regardless of whether they are determined to have a

24 reasonable fear. As a result, these individuals are generally imprisoned throughout the entire

25 period in which the government considers their claims for relief, including the reasonable fear

26 process, immigration court proceedings, and any appeals.

27

28

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1 Reasonable Fear Regulation and Internal Agency Guidelines

2

24. An immigration regulation sets forth a timeline for completion of reasonable fear

3 determinations. The regulation provides that upon issuance of the administrative removal order or

4 notice of reinstatement of an existing removal order, a noncitizen who expresses fear of return to

5 his or her home country “shall be referred to an asylum officer for a reasonable fear

6 determination.” 8 C.F.R. § 208.31(b). The regulation further provides: “In the absence of

7 exceptional circumstances, this determination will be conducted within 10 days of the referral.”

8 Id.

9

25. Although this regulation is binding on the agency, the USCIS Asylum

10 Division—the division responsible for making reasonable fear determinations—has foregone any

11 attempt to comply with this official timeframe to complete reasonable fear interviews, let alone

12 issue the reasonable fear determinations.

13

26. Instead, USCIS has implemented “goals” for the completion of reasonable fear

14 interviews that simply ignore the mandated 10 days for reasonable fear determinations, and

15 instead “encourage” applicant interviews within 45 days, adjudication of 85 percent of cases

16 within 90 days, and monthly reports on cases still pending after 150 days.

17

27. In keeping with this position, the Asylum Division has not advised asylum

18 officers of any binding timeframe for completion of reasonable fear determinations.

19 Reasonable Fear Determinations Delays

20

28. Defendants routinely fail to meet the 10-day mandated timeframe for reasonable

21 fear determinations.

22

29. The delays in providing reasonable fear determinations—which can range from

23 several weeks and months in some locations to over a year in southern states such as Arizona and

24 Texas—are common. Data from the USCIS Asylum Division reveal that the average wait time

25 from the time a person is taken into custody to the time that a reasonable fear determination is

26 finally served on an applicant is on average about 111 days. This includes an average of 49 days

27 that individuals wait for USCIS to accept jurisdiction of a case. Even after USCIS accepts

28 jurisdiction, individuals must wait an average of over 60 days for the Asylum Division to conduct

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1 the interviews and make reasonable fear determinations before their cases can reach an

2 immigration judge.

3

30. The reasonable fear determination constitutes only the first stage in the process

4 that a noncitizen must endure to obtain a final decision on his or her claims for relief. Once an

5 applicant secures a hearing before an immigration judge, his or her case may take anywhere from

6 several months to over a year, depending on whether the individual or the agency appeal decisions

7 to the Board of Immigration Appeals or the federal appellate courts.

8

31. These delays have had drastic human consequences on the named Plaintiffs, as

9 their individual cases make clear:

10 Plaintiff Marco Antonio Alfaro Garcia

11

32. Plaintiff Marco Antonio Alfaro Garcia, a native and citizen of El Salvador, has

12 resided in the United States continuously since 2007.

13

33. Shortly after coming to the United States in 2007, Mr. Alfaro Garcia met his

14 current partner, Yeni Gomez. Mr. Alfaro Garcia has built a life with Ms. Gomez in the United

15 States. Together, they have three children: two girls, ages four and three, and one boy, three

16 months old. Ms. Gomez and all three children are United States citizens. Prior to his detention,

17 Mr. Alfaro Garcia worked as a welder and was the sole provider for his family.

18

34. Mr. Alfaro Garcia has been previously deported from the United States. In 2005,

19 Mr. Alfaro Garcia attempted to enter the country but was caught by immigration authorities.

20 Instead of staying in detention, he decided to accept a removal order back to El Salvador.

21

35. Upon his return to El Salvador, Mr. Alfaro Garcia was subjected to several acts

22 of violence, threats and harassment, including at the hands of the local police. In addition, Mr.

23 Alfaro Garcia provided information to local prosecutors about the members of a local criminal

24 group who were trying to extort money from him. He has since learned from friends in El

25 Salvador that the members of the criminal group have been released from prison and have asked

26 about his whereabouts. Mr. Alfaro Garcia fears that the members of this criminal group intend to

27 harm him, and that the local police in El Salvador will be unable or unwilling to protect him. In

28

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1 approximately 2007, as a result of the persecution that he suffered, Mr. Alfaro Garcia fled to the

2 United States where he thought he would be safe.

3

36. On or about January 16, 2014, Mr. Alfaro Garcia was transferred to ICE custody

4 after being arrested for driving under the influence. He has never been convicted of any other

5 crime, aside from driving without a license. Shortly after Mr. Alfaro Garcia was taken to a

6 processing center in downtown Los Angeles, an immigration officer informed him that he would

7 be removed from the United States due to his previous deportation order from 2005. During that

8 interview, Mr. Alfaro Garcia informed the immigration officer that he feared returning to El

9 Salvador.

10

37. On that same date, on or about January 16, 2014, Mr. Alfaro Garcia was

11 transferred to ICE custody at the Adelanto Detention Facility in Adelanto, California. A few

12 weeks later, Mr. Alfaro Garcia met with another immigration officer, and again informed the

13 officer that he feared returning to El Salvador. On or about February 11, 2014, Mr. Alfaro Garcia

14 was interviewed by an asylum officer about his fear of returning to El Salvador. He has yet to

15 receive a determination from that reasonable fear interview. Mr. Alfaro Garcia submitted a

16 request to ICE inquiring about the status of his case, and was informed that it would take between

17 four to six months for a reasonable fear determination in his case.

18

38. Mr. Alfaro Garcia’s prolonged detention has been very difficult for him and his

19 family. As a result of his detention, Mr. Alfaro Garcia could not be present for the birth of his

20 youngest child. He has also been unable to provide financial support for his family since his

21 detention, forcing Ms. Gomez to try to support her family by taking part-time work selling food

22 on the weekends. The children cry almost daily because Mr. Alfaro Garcia is incarcerated.

23 Plaintiff Credy Madrid Calderon

24

39. Plaintiff Credy Madrid Calderon, a native and citizen of Honduras, came to the

25 United States when he was approximately seventeen years old. When Mr. Madrid Calderon was

26 four years old, his father passed away and his mother left for the United States to find work. In his

27 parents’ absence, Mr. Madrid Calderon suffered physical, sexual, and emotional abuse while

28 growing up in Honduras.

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1

40. After coming to the United Sates, Mr. Madrid Calderon met his wife, Valentina,

2 with whom he has a son. In addition, Mr. Madrid Calderon has two other children from a previous

3 relationship. Mr. Madrid Calderon’s wife and children are all United States citizens.

4

41. In or around June 2013, Mr. Madrid Calderon was stopped for driving without a

5 license. He has no other criminal history. At that time, Mr. Madrid Calderon first learned that he

6 had a removal order from 2005, which was issued in his absence after he entered the United

7 States as a minor. He was deported to Honduras on or about September 2013 on the basis of that

8 prior removal order.

9

42. After Mr. Madrid Calderon was deported to Honduras he suffered intense

10 persecution at the hands of a group of local men. The men demanded money from him, severely

11 beat him, fired shots at him, and threatened to kill him. Fearing for his life, Mr. Madrid Calderon

12 fled Honduras in approximately January 2014.

13

43. On or about March 3, 2014, Mr. Madrid Calderon was apprehended by border

14 patrol officers after attempting to reenter the United States. Immigration officers informed him

15 that he would be deported without seeing an immigration judge based on his prior removal order.

16 He spent three days in a holding facility near the border and was then transferred to the South

17 Texas Detention Facility in Pearsall, Texas. A few days after arriving at Pearsall, on or about

18 March 10, 2014, Mr. Madrid Calderon submitted a detainee request form stating that he feared

19 returning to Honduras. On or about March 12, 2014, he received a written response stating that

20 his case had been forwarded to the Asylum Office. However, at this time, he still has not received

21 a reasonable fear interview or determination in his case.

22

44. Mr. Madrid Calderon was subsequently transferred to the West County

23 Detention Facility in Richmond, California, where he remains detained by ICE. His detention has

24 created several hardships for his family as Mr. Madrid Calderon has been unable to provide

25 financial or emotional support to his wife and children.

26 Plaintiff Gustavo Ortega

27

45. Plaintiff Gustavo Ortega, a native and citizen of Mexico, entered the United

28 States in 2000 near Phoenix, Arizona, and has resided in the United States continuously since that

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1 time. He has two United States citizen children, ages eight and four. Prior to his detention, Mr.

2 Ortega worked in construction and as a handyman, and he helped care for and financially support

3 his children.

4

46. On or around January 23, 2014, Mr. Ortega pled guilty to assault with a deadly

5 weapon and was sentenced to one year with “half time” good conduct credits. This is Mr.

6 Ortega’s only criminal conviction, other than citations for driving without a license. Mr. Ortega

7 received an administrative order of removal pursuant to 8 U.S.C. § 1228(b).

8

47. On or about February 27, 2014, Mr. Ortega was transferred to ICE custody at the

9 West County Detention Facility in Richmond, California, where he remains detained. The

10 following day, Mr. Ortega was transferred to San Francisco to meet with an immigration officer,

11 to whom he expressed a fear of returning to Mexico. Mr. Ortega fears returning to Mexico

12 because his brother was brutally murdered by a drug cartel in Michoacan, Mexico. A video of the

13 murder has been posted on YouTube.

14

48. On or about March 25, 2014, Mr. Ortega was interviewed by an asylum officer

15 about his fear of returning to Mexico. He has still not received a determination pursuant to that

16 interview.

17 Plaintiff Claudia Rodriguez De La Torre

18

49. Plaintiff Claudia Rodriguez De La Torre, a native and citizen of Mexico, has

19 resided in the United States since approximately 1998, with the exception of a short four-month

20 visit to Mexico in 2001. Most of that time, she has lived in Reno, Nevada, where she worked

21 primarily cleaning houses, taking care of children, and in restaurants. Ms. Rodriguez De La Torre

22 has three children, ages ten, eight, and five, all of whom are United States citizens.

23

50. On or about January 12, 2014, Ms. Rodriguez De La Torre pled guilty to

24 possession with intent to distribute heroin. While in criminal custody, on approximately January

25 14, 2014, an ICE officer informed Ms. Rodriguez De La Torre that due to her conviction, she was

26 ineligible to see an immigration judge. She stated, however, that she feared returning to Mexico.

27 The following day, on approximately January 15, 2014, Ms. Rodriguez De La Torre was

28

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1 transferred to ICE custody. She is currently detained at the Eloy Detention Center in Eloy,

2 Arizona.

3

51. Ms. Rodriguez De La Torre fears being deported to Mexico because the father of

4 her children, who had subjected her to domestic violence over a period of years, and who has

5 been deported to Mexico on this basis, has become aware of her detention by ICE. Ms. Rodriguez

6 De La Torre’s former partner has asked her family about the status of her case. She fears that this

7 man will find her and possibly kill her because he blames her for his deportation to Mexico.

8

52. In or about late January or early February 2014, Ms. Rodriguez De La Torre was

9 interviewed about her fear of returning to Mexico. Ms. Rodriguez De La Torre has still not

10 received a determination from that reasonable fear interview.

11

53. Ms. Rodriguez De La Torre is gravely concerned for her young children who are

12 currently residing with relatives. She worries about their well-being should she continue to be

13 separated from them while her immigration claims remain pending.

14 Plaintiff Nancy Bardalez Serpa

15

54. Plaintiff Nancy Bardalez Serpa, a native and citizen of Peru, was forced to flee

16 her home country because of gender-based persecution she suffered there. Ms. Bardalez Serpa is a

17 university graduate and enjoyed a stable, settled life in Peru. In approximately 2010 her life was

18 torn apart by a man associated with cartels who targeted her for persecution.

19

55. Ms. Bardalez Serpa fled Peru in approximately 2012 and sought protection

20 within the United States. Shortly after entering the United States in Arizona, she was apprehended

21 by immigration authorities and taken to a detention center in Atlanta, Georgia. While in detention,

22 Mr. Bardalez Serpa told an immigration officer that she feared returning to Peru due to the

23 persecution she had suffered, but the officer told her that there was nothing to be done. She was

24 subsequently deported.

25

56. Although Ms. Baldalez Serpa tried to continue her life in her native country

26 again after this deportation, her persecutor located her and began his persecution of her anew.

27

57. On or about February 12, 2014, Ms. Bardalez Serpa was apprehended while

28 attempting to enter the United States again. When apprehended, Ms. Baraldez Serpa suffered a

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1 severe asthma attack and had to be taken to a hospital immediately. The next day, she was taken

2 to the Eloy Detention Center, in Eloy, Arizona, where she has been detained since.

3

58. Shortly after her apprehension, Mr. Bardalez Serpa was informed by an

4 immigration officer that she would be deported based on her prior removal order. Mr. Bardalez

5 Serpa told the immigration officer that she greatly feared returning to Peru due to the abuse she

6 had suffered there. Approximately a month later, on or about March 10, 2014, she was

7 interviewed about her fear of returning to Peru. Ms. Bardalez Serpa has still not received a

8 determination pursuant to her reasonable fear interview.

9

59. On approximately April 14, 2014, Ms. Bardalez Serpa, who has experienced

10 depression while in ICE custody, sought to withdraw her request for a reasonable fear

11 determination, but she subsequently decided to wait for a decision despite the despair that

12 detention causes her.

13

CLASS ACTION ALLEGATIONS

14

60. Pursuant to Federal Rule Civil Procedure 23, Plaintiffs bring this action on

15 behalf of themselves and all other similarly-situated individuals. Plaintiffs do not seek claims for

16 compensatory relief. Instead, Plaintiffs seek only injunctive relief broadly applicable to members

17 of the Plaintiff Class, as defined below. The requirements of Rule 23, and in particular Rule

18 23(b)(2), are met with respect to the Plaintiff Class defined below.

19

61. The plaintiff-class (“Plaintiff Class”) consists of: All individuals who: (1) are or

20 will be subject to removal pursuant to 8 U.S.C. § 1231(a)(5) or 8 U.S.C. § 1228; (2) who have

21 expressed, or in the future express, a fear of returning to their country of removal; and (3) who

22 have not received, or do not receive, a reasonable fear determination pursuant to 8 C.F.R. §

23 208.31 within 10 days of referral to the U.S. Citizenship and Immigration Services.

24

62. The members of the Plaintiff Class are so numerous that joinder is impracticable.

25 The number of individuals ICE and CBP have detained for more than 10 days pending a USCIS

26 reasonable fear determination is not known with precision. The January 2014 USCIS Asylum

27 Division data, however, shows that on any given day the number of members of the Plaintiff

28 Class is likely in the hundreds.

13
COMPLAINT

Case3:14-cv-01775 Document1 Filed04/17/14 Page16 of 19

1

63. Members of the Plaintiff Class reside in various DHS detention facilities across

2 the United States. Joinder of the members of the Plaintiff Class in one case would create

3 significant challenges to the efficient administration of justice that make such joinder

4 impracticable.

5

64. Further, there are questions of law and fact common to the members of the

6 Plaintiff Class. Common questions of law include but are not limited to the following:

7

a. Whether the immigration regulations require that USCIS make all reasonable

8

fear determinations within 10 days of referral;

9

b. Whether USCIS has unreasonably delayed agency action within the meaning of

10

the Administrative Procedure Act by not completing reasonable fear determinations

11

within 10 days of referral.

12

65. The claims of the named Plaintiffs are typical of the claims of the Plaintiff Class.

13 Plaintiffs know of no conflict between their interests and those of the Plaintiff Class they seek to

14 represent.

15

66. The members of the Plaintiff Class can be readily identified through notice and

16 discovery.

17

67. In defending their own rights, the individual Plaintiffs will defend the rights of

18 all proposed Plaintiff Class members.

19

68. Plaintiffs have retained counsel experienced in class litigation and in

20 immigration law to represent them and the Plaintiff Class for the purpose of this litigation.

21

69. Defendants have acted, or refused to act, on grounds generally applicable to each

22 member of the Plaintiff Class, insofar as they have failed to make a determination on their

23 reasonable fear cases within 10 days of referral to USCIS.

24

70. A class action is superior to other methods available for the fair and efficient

25 adjudication of this controversy because joinder of all members of the Plaintiff Class is

26 impracticable.

27

28

14
COMPLAINT

Case3:14-cv-01775 Document1 Filed04/17/14 Page17 of 19

1

FIRST CAUSE OF ACTION

2

Administrative Procedure Act, 5 U.S.C. § 706(1)

3

71. Plaintiffs reallege and incorporate by reference each and every allegation

4 contained in the preceding paragraphs as if set forth fully herein.

5

72. The Administrative Procedure Act (“APA”) requires that an agency conclude

6 matters presented to it within a “reasonable time.” 5 U.S.C. § 555(b). The APA provides that a

7 “reviewing court shall . . . compel agency action unlawfully withheld or unreasonably delayed.” 5

8 U.S.C. § 706(1) (emphasis added).

9

73. Under the APA, whenever the law requires that the agency act within a certain

10 amount of time, a court is obligated to compel the agency to act if it fails to comply within the

11 mandated deadline. See Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1177-78 & n.11 (9th

12 Cir. 2002) (issuing injunction for agency to comply with statutory deadline); see also Norton v.

13 South Utah Wilderness Alliance, 542 U.S. 55, 65 (2004) (noting that “when an agency is

14 compelled by law to act within a certain time period, but the manner of its action is left to the

15 agency’s discretion, a court can compel the agency to act, but has no power to specify what the

16 action must be”).

17

74. In compliance with immigration regulation 8 C.F.R. § 208.31(b), the period for

18 completion of reasonable fear determinations is mandated to be within 10 days of referral to

19 USCIS.

20

75. Defendants have failed to comply with this mandatory directive, and in fact, as a

21 matter of policy and procedure, do not even attempt to complete reasonable fear determinations

22 within the mandated 10-day period.

23

76. Plaintiffs and the Plaintiff Class have suffered and will imminently suffer

24 irreparable injury as a proximate result of this conduct, have no adequate remedy at law, and are

25 entitled to injunctive relief to avoid that injury.

26

SECOND CAUSE OF ACTION

27

Violation of 8 C.F.R. § 208.31(b)

28

15
COMPLAINT

Case3:14-cv-01775 Document1 Filed04/17/14 Page18 of 19

1

77. Plaintiffs reallege and incorporate by reference each and every allegation

2 contained in the preceding paragraphs as if set forth fully herein.

3

78. Under the Mandamus and Venue Act of 1962, the court may order the

4 Government to complete Plaintiffs and the Plaintiffs’ Class’s reasonable fear determinations

5 within a reasonable time and in compliance with immigration regulation 8 C.F.R. § 208.31(b),

6 which requires completion of reasonable fear determinations within 10 days of referral to USCIS.

7

79. Plaintiffs and the Plaintiff Class have suffered and will imminently suffer

8 irreparable injury as a proximate cause of this failure to act, have no adequate remedy at law, and

9 are entitled to injunctive relief to avoid any injury.

10

PRAYER FOR RELIEF

11

WHEREFORE, Plaintiffs, on behalf of themselves and the Plaintiff Class,

12 respectfully request that the Court grant the following relief:

13

a. Certify a class pursuant to Federal Rule of Civil Procedure 23 in

14

accordance with the allegations of this Complaint and the forthcoming class certification

15

motion;

16

b. Declare that Defendants’ failure to complete Plaintiffs’ and other class

17

members’ reasonable fear determinations within 10 days of referral violates federal law;

18

c. Order the Government to complete all of Plaintiffs’ and class members’

19

reasonable fear determinations within 10 days of referral to USCIS; and

20

d. Grant such other relief as the Court deems just and equitable, including

21

but not limited to fees under the Equal Access to Justice Act, and any other applicable

22

statute or regulation.

23

24

25

26

27

28

16
COMPLAINT

Case3:14-cv-01775 Document1 Filed04/17/14 Page19 of 19

1 Dated: April 17, 2014

Respectfully

submitted,

2

3

By:

___/s/ John D. Pingel_____

4

One of Plaintiffs’ Attorneys

5

6

Michael Kaufman Carmen G. Iguina*

Ahilan T. Arulanantham*
7 ACLU FOUNDATION OF

8

SOUTHERN CALIFORNIA 1313 West 8th Street

9

Los Angeles, CA 90017 mkaufman@aclu-sc.org

10

ciguina@aclu-sc.org aarulanantham@aclu-sc.org

11

Telephone: (213) 977-5211 Facsimile: (213) 417-2211

Charles Roth * Claudia Valenzuela * NATIONAL IMMIGRANT JUSTICE CENTER A HEARTLAND ALLIANCE PARTNER 208 South LaSalle, Suite 1300 Chicago, Illinois 60604 croth@heartlandalliance.org cvalenzuela@heartlandalliance.org Telephone: (312) 660-1308 Facsimile: (312) 660-1505

12 Julia Harumi Mass

13

Jingni (Jenny) Zhao ACLU FOUNDATION

14

OF NORTHERN CALIFORNIA 39 Drumm Street

15

San Francisco, CA 94111 jmass@aclunc.org

16

jzhao@aclunc.org Telephone: (415) 621-2493

17 Facsimile: (415) 255-8437

18

Attorneys for the Plaintiffs

19 * pro hac vice or admission application forthcoming

James A. Rolfes* David Z. Smith* Joseph B. Prater* Timothy R. Carraher* REED SMITH LLP 10 South Wacker Drive Chicago, Illinois 60606 jrolfes@reedsmith.com dzsmith@reedsmith.com jprater@reedsmith.com tcarraher@reedsmith.com Telephone: (312) 207-1000 Facsimile: (312) 207-6400
John D. Pingel REED SMITH LLP 101 Second St., Suite 1800 San Francisco, CA 94105 jpingel@reedsmith.com Telephone: (415) 543-8700 Facsimile: (415) 391-8269

20

21

22

23

24

25

26

27

28

17
COMPLAINT

 
 Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page1 of 27

STUART F. DELERY 1 Assistant Attorney General

2 COLIN A. KISOR Acting Director, District Court Section
3 Office of Immigration Litigation

ELIZABETH J. STEVENS 4 Assistant Director, District Court Section

5 VICTOR M. MERCADO-SANTANA (Pa. 312116) Trial Attorney
6 Civil Division, Office of Immigration Litigation

7

United States Department of Justice P.O. Box 868, Ben Franklin Station

8 Washington, DC 20044

Telephone: (202) 305-7001

9 Facsimile: (202) 616 -8962

10 E-mail: victor.m.mercado-santana@usdoj.gov Counsel for Defendants

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION
13

14 MARCO ANTONIO ALFARO GARCIA, 15 CREDY MADRID CALDERON, GUSTAVO
ORTEGA, CLAUDIA RODRIGUEZ DE LA 16 TORRE, and NANCY BARDALEZ SERPA, 17 on behalf of themselves and all others similarly
situated,
18
Plaintiffs,
19

20

v.

Case No. 4:14-cv-1775-YGR
DEFENDANTS’ MOTION TO DISMISS Hon. Yvonne Gonzalez Rogers Date: September 23, 2014 Time: 2:00 pm Courtroom 5, 2d Floor Oakland Courthouse

21 JEH JOHNSON, Secretary of Homeland Security, LEON RODRIGUEZ, Director of U.S.
22 Citizenship and Immigration Services,1 and 23 JOSEPH LANGLOIS, Associate Director of
Refugee, Asylum and International Operations,
24
Defendants.
25

26

27

1
28

Leon Rodriguez, as the new director of U.S. Citizenship and Immigration Services, is

substituted by Lori Scialabba. See Fed. R. Civ. P. 25(d).

1

Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page2 of 27

1

NOTICE OF MOTION AND

2

DEFENDANTS’ MOTION TO DISMISS

3
PLEASE TAKE NOTICE that on September 23, 2014, at 2:00 pm, or as soon thereafter 4 as the parties may be heard, Defendants will bring a motion to dismiss pursuant to Rule 12 of the 5 Federal Rules of Civil Procedure. The hearing will take place before the Honorable Yvonne

6 Gonzalez Rogers in Courtroom 5, Second Floor, at 1301 Clay St, Oakland, California.

7

This motion is based on the Memorandum of Law In Support of Defendant’s Motion to

8 Dismiss, as well as all pleadings, papers, and files in this action, and any oral argument as may

9 be presented at the hearing on this motion. Defendants respectfully request that this Court grant 10 Defendants’ motion and dismiss all claims in Plaintiff’s complaint.

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page3 of 27

1

TABLE OF CONTENTS

2
3 I. INTRODUCTION AND SUMMARY OF ARGUMENT.................................. 1

4 II. FACTUAL BACKGROUND ............................................................................. 2

5
A. Marco A. Alfaro Garcia ................................................................. 2
6

7

B.

Credy Madrid Calderon.................................................................. 2

8

C.

Gustavo Ortega............................................................................... 3

9
D. Claudia Rodriguez de la Torre ....................................................... 3
10

11

E.

Nancy Bardalez Serpa .................................................................... 4

12 III. LEGAL BACKGROUND................................................................................... 4
13
A. Motion to dismiss under Rule 12(b)(1).......................................... 4
14

15

B. Motion to dismiss under Rule 12(b)(6) 4

16
17
18 IV.

C. Reasonable fear determination procedures .................................... 5 ARGUMENT ...................................................................................................... 6

19

20

A. Plaintiff’s individual claims should be dismissed because they are

moot ............................................................................................... 6

21

22

B. The Regulation does not mandate adjudication within 10 days, as

there is no penalty provided in the 10-day goal is not met ............ 6

23

24

C. Exceptional circumstances is not defined in the Regulation, and is

discretionary determination not subject to APA review .............. 11

25

26

D. Lastly, Plaintiffs have failed to state a claim that USCIS violated 8

C.F.R. § 208.31(b).

27

28

1. Rule of reason ................................................................... 14

i

Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page4 of 27

1

2.

Statutory scheme ............................................................ 15

2

3.

Implications for health or human welfare and interests

3
prejudiced by the delay. .................................................. 15
4

5

4.

Effect of expediting agency action. ................................ 16

6

5.

Evidence of impropriety behind the delay. .................... 17

7

8 V. CONC LUSION ................................................................................................. 18
9
CERTIFICATE OF SERVICE
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ii

Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page5 of 27

1

TABLE OF AUTHORITIES

2

CASES

3
American Farm Lines v. Black Ball Freight Service,

4

397 U.S. 538-39 (1970) ...................................................................................... 8

5

Ass’n of Am. Physicians & Surgs. v. United States HHS,

6

224 F. Supp. 2d 1115 (S.D. Tex. 2002).............................................................. 8

7

Ashcroft v. Iqbal,

8

556 U.S. 662 (2009) ........................................................................................... 4

9

Barnhart v. Peabody Coal Co.,

10

537 U.S. 149 (2003) ........................................................................................... 8

11

Biodiversity Legal Found v. Badgley,

12

309 F.3d 1166 (9th Cir. 2002) .......................................................................... 12

13

Borck v. Pierce County,

14

476 U.S. 253 (1986) ..................................................................................... 8, 11

15
16 Brower v. Evans, 257 F.3d 1058 (9th Cir. 2001) .......................................................................... 13
17

18 Center for Food Safety v. Hamburg, 954 F. Supp. 2d 965 (N.D. Cal. 2013) .............................................................. 14
19

20 Dipeppe v. Quarantillo, 337 F.3d 326 (3rd Cir. 2003) ............................................................................ 10
21

22

French v. Edwards,

23

80 U.S. 506 (1872) .............................................................................................. 8

24

GATX/Airlog Corp. v. U.S. Dist. Ct. for the N. Dist. Of Cal.,

25

192 F.3d 1304 (9th Cir. 1999) ............................................................................. 7

26

Gelfer v. Chertoff,

27

2007 WL 902382 (N.D. Cal. 2007) .................................................................. 14

28

iii

Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page6 of 27

1 Giddings v. Chandler, 979 F.2d 1104 (5th Cir. 1992) .......................................................................... 11
2
3 Health Sys. Agency of Okla. v. Norman, 589 F.2d 486 (10th Cir. 1978) ............................................................................ 8
4
5 Heckler v. Chaney, 470 U.S. 821 (1985) .......................................................................................... 11
6
7 Henderickson v. FDIC, 113 F.3d 98 (7th Cir. 1997) ................................................................................ 9
8
9 Kashkool v. Chertoff, 553 F. Supp. 2d 1131 (D. Ariz. 2008) .............................................................. 15
10
11 Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014) ............................................................................. 4
12
13 Lincoln v. Vigil, 508 U.S. 182 (1993) .......................................................................................... 12
14

15 Manzarek v. St. Paul Fire & Marine Ins. Co.,

16

1025 F.3d 1025 (9th Cir. 2008) ........................................................................... 5

17 Martinez-Rosas v. Gonzales,

18

424 F.3d 926 (9th Cir. 2005) ............................................................................ 12

19 Mashpee Wampanoag Tribal Council, Inc. v. Norton,

20

336 F.3d 1094, 1100 (D.D.C. 2003) ........................................................... 13, 16

21 Moralez-Izquierdo v. Gonzales,

22

486 F.3d 484 (9th Cir. 2007) ............................................................................... 6

23 Newman v. Apfel,

24

232 F.3d 937, 943 (9th Cir. 2005) .................................................................... 12

25 Office of Pers. Management v. Richmond,

26

496 U.S. 414 (1990) ............................................................................................ 8

27 Pinnacle Armor, Inc. v. U.S.,

28

648 F.3d 708 (9th Cir. 2011) ............................................................................ 12

iv

Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page7 of 27

1 Regions Hospital v. Shalala, 522 U.S. 448 (1998) ........................................................................................... 8
2
3 Research and Action Center v. FCC(“TRAC”), 750 F.2d 70 (D.D.C. 1984) ............................................................................... 13
4
5 Santos v. Sabol, 2014 WL 2532491 (M.D. Pa. 2014) ................................................................. 15
6
7 Savage v. Glendale Union High School, 343 F. 3d 1036 (9th Cir. 2003) ............................................................................ 4
8
9 Spencer v. Kemma, 523 U.S. 1 (1998) ................................................................................................ 6
10
11 Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir. 2008) .......................................................................... 12
12
13 Tellabs, Inc v. Makor Issues & Rights, Ltd, 55 U.S. 308 (2007) .............................................................................................. 5
14

15 Tor v. YouTube, Inc.,

16

562 F.3d 1212 (9th Cir. 2009) ............................................................................ 5

17 Toyo Tire Holdings of Am. v. Cont’l Tire of N. Am, Inc.,

18

609 F.3d 975 (9th Cir. 2010) .............................................................................. 7

19 Urbina-Mauricio v. INS,

20

989 F.2d 1085 (9th Cir. 1993) .......................................................................... 11

21 U.S. v. Hernandez-Vermudez,

22

356 F.3d 1011 (9th Cir. 2004) ............................................................................ 5

23 United States v. James Daniel Good Real Property,

24

510 U.S. 43, 63 (1993) ....................................................................................... 9

25 United States v. Montalvo-Murillo,

26

479 U.S. 711 (1990) ..................................................................................... 9, 10

27 U.S. Parole Comm’n v. Geraghty,

28

445 U.S. 388 (1980) ............................................................................................ 7

v

Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page8 of 27

1

FEDERAL STATUTES

2 5 U.S.C. § 701(A)(2) ................................................................................................... 11

3
8 U.S.C. § 1186a ........................................................................................................... 5
4
5 8 U.S.C. § 1228(a)-(c) ............................................................................................. 5, 10

6 8 U.S.C. § 1228(a)(1) .................................................................................................. 10
7
8 U.S.C. § 1229(d)(2) .................................................................................................. 10
8
9 8 U.S.C. § 1229(b)(1)(d) ............................................................................................. 12

10 8 U.S.C. § 1231(a)(5) ............................................................................................... 5, 10
11
8 U.S.C. § 1231(b)(3) ............................................................................................... 6, 10
12
13 8 U.S.C. § 1231(h) ...................................................................................................... 10

14 8 U.S.C. § 1252(i) ....................................................................................................... 11

15

16

FEDERAL REGULATIONS

17 8 C.F.R. § 208.17 ........................................................................................................... 6

18
8 C.F.R. § 208.31 .............................................................................................. 5, passim
19
20 8 C.F.R. § 208.31(a) ....................................................................................................6,8

21 8 C.F.R. § 208.31(b) ..........................................................................................9, passim
22
8 C.F.R. § 208.31(c) .....................................................................................................14
23
24 8 C.F.R. § 208.31(e)-(g) ................................................................................................ 6

25 8 C.F.R. § 238.1(b)-(d)................................................................................................. 14
26
8 C.F.R. § 241.8(a)-(b) ..............................................................................................6,14
27

28

vi

Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page9 of 27

MEMORANDUM OF LAW IN SUPPORT OF

1

DEFENDANTS’ MOTION TO DISMISS

2
I. INTRODUCTION
3
Plaintiffs, Marco A. Alfaro-Garcia (“Alfaro”), Credy Madrid Calderon (“Madrid”),
4 Gustavo Ortega (“Ortega”), Claudia Rodriguez de la Torre (“Rodriguez”), and Nancy Bardalez

5 Serpa (“Bardalez”), filed a Complaint on their behalf and on behalf of those similarly situated

6 seeking review of United States Citizenship and Immigration Services’ (“USCIS”) timeliness in

7 reaching “reasonable fear” determinations under 8 C.F.R. § 208.31(b). See Compl., ECF No. 1.

8 This regulation states that “upon issuance of a Final Administrative Removal Order under

9 § 238.1 of this chapter, or notice under § 241.8(b) of this chapter that an alien is subject to

10 removal, an alien described in paragraph (a) of this section shall be referred to an asylum officer

for a reasonable fear determination. In the absence of exceptional circumstances, this
11
determination will be conducted within 10 days of the referral.” 8 C.F.R. § 208.31(b). Plaintiffs
12
allege that USCIS violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1), by not
13
rendering reasonable fear determinations within 10 days. See Compl. ¶¶ 71-79.

14

As a preliminary matter, Plaintiffs’ Complaint should be dismissed in part under Rule

15 12(b)(1) of the Federal Rules of Civil Procedure because Plaintiffs’ individual claims are moot.

16 Because USCIS has already made reasonable fear determinations as to all five Plaintiffs, their

17 individual claims as to any delay in USCIS action are moot. Therefore, this Court lacks subject

18 matter jurisdiction as to Plaintiffs’ individual claims, and should dismiss the complaint in part.

19

Additionally, this Court should dismiss Plaintiffs’ Complaint under Rules 12(b)(1) and

20 12(b)(6) because the determination of whether “exceptional circumstances” exist is a

discretionary determination not reviewable under the APA and the regulations contain no
21
meaningful standard to determine “exceptional circumstances.” Moreover, as the regulation
22
does not state a penalty for failure to adjudicate within the 10-day period, the 10-day
23
adjudication represents only a non-binding internal processing goal, not a mandatory deadline

24 that confers enforceable rights on aliens. Lastly, Plaintiffs failed to state a claim that any delay

25 by USCIS violates the APA because Plaintiffs failed to show that USCIS’s delay is unreasonable

26 as a matter of law. Therefore, this Court should dismiss Plaintiffs’ Complaint.

27

28

1

Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page10 of 27

II. FACTUAL BACKGROUND
1

A.
2

Marco A. Alfaro Garcia. Plaintiff Alfaro is a native and citizen of El Salvador. Ex. 1-A, Form I-213, Record of

3 Deportable/Inadmissible Alien.2 Alfaro first entered the United States on September 12, 2005, at

4 or near Lukeville, Arizona. Ex. 1-B, Form I-205, Warrant of Removal/Deportation. On

5 September 28, 2005, the Immigration Judge ordered that Alfaro be removed to El Salvador. Ex.

6 3, Order of the Immigration Judge. Immigration and Customs Enforcement (“ICE”) executed

7 Alfaro’s removal order on September 29, 2005. Ex. 1-B. However, on or about March of 2007,

8 Alfaro unlawfully returned to the United States at or near Laredo, Texas, without being admitted

9 or paroled. Ex. 1-A. On January 14, 2014, Alfaro was arrested in Los Angeles, California, for

10 driving under the influence. Ex. 1-A. Two days later, on January 16, 2014, ICE took Alfaro into

custody. Ex. 1-A. On January 16, 2014, an ICE officer issued an order reinstating Alfaro’s
11
order of removal to El Salvador. Ex. 1-C, I-871, Notice of Intent/Decision to Reinstate Prior
12
Order. While in ICE custody, Alfaro expressed a fear of return to El Salvador. Ex. 1-D, Record
13
of Sworn Statement in Administrative Proceedings.

14

On or about January 28, 2014, ICE referred Alfaro’s case to USCIS for a reasonable fear

15 determination. Ex. 1-E, Email from Michael McDaniel. USCIS interviewed Alfaro on or about

16 February 11, 2014. Ex. 1-F, Form I-899, Record of Determination/Reasonable Fear Worksheet.

17 USCIS issued a decision on April 25, 2014, concluding that Alfaro did not have a reasonable fear

18 of persecution or torture in El Salvador. Ex. 1-G, Form I-898, Record of Negative Reasonable

19 Finding and Request for Review by Immigration Judge.
20 B. Credy Madrid Calderon.
Plaintiff Madrid is a native and citizen of Honduras. Ex. 2-A, Form I-862, Notice to
21
Appear. Madrid first entered the United States on November 28, 2004 at or near Laredo, Texas,
22
without being admitted or paroled. Ex. 2-A. On May 25, 2005, Madrid was ordered removed to
23
Honduras. Ex. 2-B, Memorandum and Order of the Immigration Judge. Madrid was removed to 24 Honduras on or about September 27, 2013. Ex. 2-C, Form I-871; Notice of Intent/Decision to
25 Reinstate Prior Order; Ex. 2-D, Form I-215B, Record of Sworn Statement in Affidavit Form.

26 However, on or about March 2, 2014, Madrid illegally reentered the United States at or near

27

2
28

Exhibits 1 to 5 are attached to the Declaration of Victor M. Mercado-Santana

accompanying this response. See L.R. 7-2(d), 7-5(a).

2

Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page11 of 27

Laredo, Texas. Exs. 2-C, 2-D. On March 6, 2014, ICE issued an order reinstating Madrid’s
1
2005 order of removal. Ex. 2-C.
2
On or about April 3, 2014, USCIS notified Madrid that he was scheduled for a reasonable
3
fear interview, which was conducted or about May 12, 2014. Ex. 2-E, Form M-488, Information
4 about Reasonable Fear Interview; Ex. 2-F, Form I-899, Record of Determination/Reasonable
5 Fear Worksheet. USCIS issued a decision on May 29, 2014, finding that Madrid had a

6 reasonable fear of persecution or torture. Ex. 2-G, Form I-863, Notice of Referral to the

7 Immigration Judge.

8 C. Gustavo Ortega.

9

Plaintiff Ortega is a native and citizen of Mexico. Ex. 3-A, Form I-213, Record of

10 Deportable/Inadmissible Alien. Ortega first entered the United States in September 2009 at or

near Arizona without being admitted or paroled. Ex. 3-A. On January 23, 2014, Ortega was
11
convicted of an aggravated felony, to wit, assault with a deadly weapon likely to cause great
12
bodily injury, in violation of section 245(a)(1) of the California Penal Code. Ex. 3-B, Waiver on
13
Plea of Guilty/No Contest, People v. Ortega. On February 27, 2014, ICE issued a final

14 administrative order of removal against Ortega. Ex. 3-C, Form I-851; Ex. 3-D, Form I-851A.

15 On or about February 26, 2014, Ortega expressed a fear of return to Mexico. Exs. 3-A; 3-C.

16

On or about February 28, 2014, USCIS provided notice to Ortega that he was scheduled

17 for a reasonable fear interview. Ex. 3-D, Form G-56, Notice of Reasonable Fear Interview; Ex.

18 3-E, Form M-488, Information About Reasonable Fear Interview. USCIS interviewed Ortega on

19 or about March 25, 2014. Ex. 3-F, Form I-899, Record of Determination/Reasonable Fear
20 Worksheet. USCIS issued a decision on April 29, 2014, concluding that Ortega does not have a
reasonable fear of persecution or torture. Ex. 3-G, Form I-898, Record of Negative Reasonable
21
Fear Finding.
22
D. Claudia Rodriguez de la Torre
23
Plaintiff Rodriguez is a native and citizen of Mexico. Ex. 4-A, Form I-213. In 1998, 24 Rodriguez first entered the United States at or near San Luis, Arizona, without being admitted or
25 paroled. Ex. 4-A. On January 2, 2014, Rodriguez was convicted of an aggravated felony, to wit,

26 possession of a controlled substance for sale in violation of title 40, section 453.337 of the

27 Nevada Revised Statutes. Ex. 4-B, Judgment, State v. Rodriguez-de la Torre, No. CR13-1802

28 (Washoe Cnty. Dist. Ct. Jan. 2, 2014). On January 21, 2014, Rodriguez was issued a final

3

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administrative order of removal. Ex. 4-C, Form I-851; Ex. 4-D, Form I-851A. That same day,
1
Rodriguez expressed a fear of return to Mexico. Ex. 4-B.
2
On or about January 31, 2014, Rodriguez was referred to USCIS for a reasonable fear
3
determination. Ex. 4-E, Email from Justin Smith. USCIS interviewed Rodriguez on or about
4 February 6, 2014. Ex. 4-F, Form I-899. USCIS issued a decision on April 23, 2014, concluding
5 that Rodriguez established that she had a reasonable fear of persecution in Mexico. Ex. 4-G,

6 Form I-863.

7 E. Nancy Bardalez Serpa

8

Plaintiff Bardalez is a native and citizen of Peru. Ex. 5-A, Form I-213. On June 27,

9 2012, Bardalez was ordered removed from the United States, and was subsequently removed.
10 Ex. 5-B, Form I-860; Ex. 5-C, Form I-296. On February 11, 2014, Bardalez unlawfully
reentered the United States at or near Douglas, Arizona. Ex. 5-B; 5-D, Form I-871. ICE
11
reinstated Bardalez’s order of removal on February 12, 2014. Ex. 5-D.
12
On or about February 14, 2014, Bardalez was referred to USCIS for a reasonable fear
13
determination. Ex. 5-E, Email from Justin M. Laub. USCIS interviewed Bardalez on or about 14 March 10, 2014. Ex. 5-F, Form I-899. USCIS issued a decision on April 16, 2014, concluding
15 that Bardalez established a reasonable fear of persecution. Ex. 5-G, Form I-863.

16

II. LEGAL BACKGROUND

17 A. Motion to dismiss under Rule 12(b)(1).

18

A complaint may be dismissed under Rule 12(b)(1) of the Federal Rules of Civil

19 Procedure for lack of subject matter jurisdiction. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th

20 Cir. 2014). The Court may consider affidavits and other evidence in order to be satisfied that

jurisdiction exists. Savage v. Glendale Union High School, 343 F.3d 1036, 1040 n.2 (9th Cir.
21
2003). As the party asserting subject matter jurisdiction, the plaintiff bears the burden of
22
establishing that jurisdiction exists. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 376-78
23
(1994).

24 B. Motion to dismiss under Rule 12(b)(6).

25

A complaint may be dismissed for “failure to state a claim upon which relief can be

26 granted.” Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss under Rule 12(b)(6),

27 the Court must accept as true all well-pleaded facts and allegations in the complaint. Ashcroft v.

28 Iqbal, 556 U.S. 662, 678 (2009). In addition to the pleadings, the Court may consider “materials

4

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embraced by the pleadings, exhibits attached to the pleadings, and matters subject to judicial
1
notice. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030-31 (9th Cir. 2008);
2
see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (stating that
3
courts “must consider the complaint in its entirety, as well as other sources courts ordinarily
4 examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated
5 into the complaint by reference, and matters of which a court may take judicial notice”).

6 However, the Court is not required to accept a plaintiff’s legal conclusions. Iqbal, 556 U.S. at

7 678. Furthermore, “only a complaint that states a plausible claim for relief survives a motion to

8 dismiss.” Id. at 679.

9 C. Reasonable fear determination procedures.

10

On February 19, 1999, the legacy Immigration and Naturalization Service (“INS”)3

adopted interim regulations as part of the Government’s efforts to comply with its international
11

obligations under the United Nations Convention Against Torture (“CAT”). See Regulations
12
Concerning the Convention Against Torture, 64 Fed. Reg. 8,478 (Feb. 19, 1999). The

13
regulations sought to create fair and efficient procedures by which the United States would

14 comply with its CAT obligations “within the overall regulatory framework for the issuance of

15 removal orders and decisions about the execution of such order.” 64 Fed. Reg. at 8,479. Certain

16 aliens (including the Plaintiffs in this case) may seek protection from removal in accordance with

17 the regulation at 8 C.F.R. § 208.31. This regulation covers aliens who are subject to final

18 administrative orders of removal as well as aliens who are subject to removal under reinstated 19 orders of removal.4 8 C.F.R. § 208.31(a).

20

21 3

On March 1, 2003, the functions of the former INS were transferred from the Department

22 of Justice to three distinct components (United States Immigration and Customs Enforcement, United States Customs and Border Protection, and USCIS) in the newly formed Department of

23 Homeland Security (“DHS”). See Homeland Security Act of 2002, Pub. L. No. 107-296, 116

Stat. 2135 (Nov. 25, 2002).
24

4
25

An administrative order of removal may be entered by ICE if the alien 1) was not

lawfully admitted for permanent residence, or had only been admitted conditionally for

26 permanent residence under 8 U.S.C. § 1186a; and 2) was convicted of an aggravated felony. 8

27

U.S.C. § 1228(a)-(c); 8 C.F.R. § 238.1(b)(1); see U.S. v. Hernandez-Vermudez, 356 F.3d 1011, 1013 (9th Cir. 2004) (discussing the applicability of expedited removal to unadmitted aliens

28 convicted of aggravated felonies). An alien is subject to removal under a reinstated order of

removal if he or she 1) is subject to a prior order of removal; 2) was previously removed or

5

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If an alien is subject to either a final administrative order of removal or reinstatement of a
1
prior removal order, and he or she expresses a fear of return to the country of removal, then the
2
alien is referred to USCIS for a reasonable fear determination. See 8 C.F.R. § 208.31(a)-(b).
3
The alien is not referred to USCIS at the moment that he or she expresses a fear of return, but
4 instead the referral happens “upon issuance” of the final administrative order or the notice of
5 reinstatement of removal. See 8 C.F.R. § 208.31(b) (“Upon issuance of a Final Administrative

6 Removal Order [] or notice [] that an alien is subject to removal, an alien [] shall be referred to

7 an asylum officer for a reasonable fear determination.”). The regulations do provide that the

8 reasonable fear determination will be conducted within 10 days of the referral. Id. However,

9 this deadline does not apply when “exceptional circumstances” are present. Id.

10

Aliens who are found to have a reasonable fear of persecution or torture are referred to an

Immigration Judge for full consideration of their claims for withholding of removal under 8
11
U.S.C. § 1231(b)(3), or withholding or deferral of removal under CAT under 8 C.F.R. § 208.16
12
and 8 C.F.R. § 208.17. 8 C.F.R. § 208.31(e). However, an alien whom USCIS determines not to
13
have a reasonable fear of persecution may request that an Immigration Judge review USCIS’s

14 determination, and if the Immigration Judge disagrees with USCIS, the alien may pursue full

15 consideration of his or her claim before the Immigration Judge. 8 C.F.R. § 208.31(f)-(g).

16

The regulation at 8 C.F.R. § 208.31 seeks to strike a balance between the need for prompt

17 execution of removals and the Government’s international obligations. The regulation “is

18 intended to provide for the fair resolution of claims both to withholding under section 241(b)(3)

19 of the act [8 U.S.C. § 1231(b)(3)], and to protection under [CAT] without unduly disrupting the

20 operation of these special administrative removal processes.” 69 Fed. Reg. at 8,485.

ARGUMENT
21

A.
22

Plaintiff’s individual claims should be dismissed because they are moot. Article III of the Constitution limits the jurisdiction of the federal courts to the

23
consideration of actual cases or controversies. Spencer v. Kemna, 523 U.S. 1, 7 (1998). Under

24 this requirement, “throughout the litigation, the plaintiff must have suffered, or be threatened

25 with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial

26 decision.” Spencer, 523 U.S. at 7. A case is moot “when the issues presented are no longer

27

28 departed voluntarily; and 3) unlawfully reentered the United States. 8 U.S.C. § 1231(a)(5); 8 C.F.R. § 241.8(a); Moralez-Izquierdo v. Gonzales, 486 F.3d 484, 491 (9th Cir. 2007).

6

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‘live’ or the parties lack a legally cognizable interest in the outcome.” Toyo Tire Holdings of
1
Am. v. Cont’l Tire of N. Am., Inc., 609 F.3d 975, 982-83 (9th Cir. 2010) (quoting Murphy v.
2
Hunt, 455 U.S. 478, 481 (1984)). A court must dismiss a case as moot if the court can no longer
3
provide the petitioner with “effective relief.” GATX/Airlog Corp. v. U.S. Dist. Ct. for the N.
4 Dist. of Cal., 192 F.3d 1304, 1306 (9th Cir. 1999). An actual controversy must exist “at all
5 stages of proceedings, not merely at the time when the complaint is filed.” Id. If a case becomes

6 moot, then the Court lacks jurisdiction because mootness is jurisdictional. Tor v. YouTube, Inc.,

7 562 F.3d 1212, 1214 (9th Cir. 2009).

8

In the case of Bardalez, she received her reasonable fear determination on April 16, 2014

9 – the day before Plaintiffs filed their complaint seeking adjudication of their reasonable fear
10 determinations. See Ex. 5-G. Any claim that Bardalez may have had relating to the adjudication of her reasonable fear determination was moot by the time she filed her complaint. See
11
GATX/Airlog, 192 F.3d at 1306. Therefore, Plaintiffs’ complaint should be dismissed as it
12
relates to Bardalez for lack of subject matter jurisdiction.5 See Fed. R. Civ. P. 12(b)(1).
13
As for the remaining Plaintiffs, all four have already received their reasonable fear 14 determinations. See Exs. 1-G (Alfaro’s April 25, 2014, reasonable fear determination), 2-G
15 (Madrid’s May 29, 2014, reasonable fear determination); 3-G (Ortega’s April 29, 2014,

16 reasonable fear determination); 4-G (Rodriguez’s April 23, 2014, reasonable fear determination).

17 Any claims that the remaining Plaintiffs may have in their individual capacity are moot and no

18 longer present a case or controversy. See GATX/Airlog, 192 F.3d at 1306. Therefore, Plaintiffs’

19 complaint should be dismissed as it relates to their individual claims for lack of subject matter

20 jurisdiction.6 See Fed. R. Civ. P. 12(b)(1).

B.
21

The Regulation does not mandate adjudication within 10 days, as there is no penalty provided if the 10-day goal is not met.

22

The individual claims should also be dismissed because they fail to state a claim for

23 relief. Simply put, Plaintiffs have failed to identify a non-discretionary duty that they are owed.

24

25
5

Plaintiffs have stated that Bardalez will voluntarily dismiss her claim. See Pls’ Reply in

26 Support of Mot. for Class Cert., ECF No. 40, at 3 n.1.

27 6

Defendants recognize that with the exception of Plaintiff Bardalez, dismissal of

28 Plaintiffs’ individual claims does not necessarily mean that their class allegations are dismissed.

U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397-401 (1980).

7

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The regulation at issue, 8 C.F.R. 208.31(b), is an internal administrative processing guideline
1
that does not create a mandatory timeline for agency action and moreover does not create a
2
procedural right enforceable by an alien.
3
First, there is no basis to compel agency compliance with the 10-day time limitation.
4 Generally, Congressional deadlines to Government agencies are interpreted as hortatory and “do
5 not limit their power or render its exercise in disregard of the requisitions ineffectual.” French v.

6 Edwards, 80 U.S. 506, 511 (1872). As the Supreme Court observed: “It ignores reality to expect

7 that the Government will be able to secure perfect performance from its hundreds of thousands

8 of employees scattered throughout the continent.” Office of Pers. Management v. Richmond, 496

9 U.S. 414, 433 (1990). The Supreme Court does not expect perfection and directs that statutory
10 deadlines, when applied to the Government, should be interpreted as advisory deadlines meant to
prod the Government to expeditious action. See Barnhart v. Peabody Coal Co., 537 U.S. 149,
11
162 (2003) (“It is impossible to believe that Congress meant its Herculean effort to resolve the
12
coal industry benefit crisis to come to absolutely nothing if trustees were designated late.”);
13
Regions Hospital v. Shalala, 522 U.S. 448, 460 n.3 (1998) (finding that Secretary’s failure to 14 meet a deadline to promulgate regulations did not mean that official lacked power to act beyond
15 it). Likewise, “an administrative agency is not a slave of its rules” and agencies may waive

16 compliance with their own procedural rules in certain instances. Health Sys. Agency of Okla. v.

17 Norman, 589 F.2d 486, 790 n.5 (10th Cir. 1978) (internal quotations and citation omitted); see

18 American Farm Lines v. Black Ball Freight Service, 397 U.S. 538-39 (1970) (“It is always

19 within the discretion of . . . an administrative agency to relax or modify its procedural rules

20 adopted for the orderly transaction of business before it when in a given case the ends of justice

require it.”); Ass’n of Am. Physicians & Surgs. v. United States HHS, 224 F. Supp. 2d 1115,
21
1127-1128 (S.D. Tex. 2002) (“Agency delays, particularly in the face of huge administrative
22
burdens, are common, and in this case such delays do not result in the invalidation of HHS’s
23
authority to promulgate the Privacy Rule.”).

24

Second, there are no grounds to sanction the Government for alleged noncompliance with

25 the regulation. A statutory or regulatory time limitation is not mandatory unless it both 1)

26 “expressly requires an agency or public official to act within a particular time period” and 2)

27 “specifies a consequence for failure to comply with the provision.” Brock v. Pierce County, 476

28 U.S. 253, 259 (1986) (internal citation and quotations omitted); see United States v. James

8

Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page17 of 27

Daniel Good Real Property, 510 U.S. 43, 63 (1993) (“If a statute does not specify a consequence
1
for noncompliance with statutory timing provisions, the federal courts will not in the ordinary
2
course impose their own coercive sanction.”); United States v. Montalvo-Murillo, 495 U.S. 711,
3
711-12 (1990) (“There is no presumption or rule that for every mandatory duty imposed upon the
4 . . . Government . . . there must exist some corollary punitive sanction for departures or
5 omissions, even if negligent.”); Hendrickson v. FDIC, 113 F.3d 98, 102 (7th Cir. 1997) (“absent

6 a clear indication to the contrary, regulatory deadlines, like statutory deadlines, provide no

7 remedy for their own violation.”).

8

In Brock, Congress imposed a requirement that the Department of Labor audit certain

9 grant recipients within 120 days of receiving a complaint, but the agency audited a recipient after
10 that deadline had passed. 476 U.S. at 255-56. The Court rejected respondent’s argument that the
Secretary was precluded from acting after the 120-day statutory period. Id. at 257-60. The
11
Court found no basis to create and apply a sanction for “every failure of an agency to observe a
12
procedural requirement” where Congress did not specify a consequence for failing to comply
13
with the time period. Id. at 260. The Court further rejected the respondent’s claim that the 14 Secretary’s own regulations – which provided a timetable for the resolution of complaints and
15 audits – precluded the Secretary from acting after the time limitation. Id. at 265. The Court held

16 that “even if it were possible for the Secretary to create a jurisdictional limitation not contained

17 in the statute,” there was no sanction for violating the regulation because it did not specify a

18 consequence of failing to meet the deadline. Id.

19

The regulation at issue is not mandatory because it neither requires the agency to act

20 within a particular time period nor specifies a consequence for failing to comply with the time

period. While the regulation states that the agency should conduct the reasonable fear
21
determination within 10 days, this time period only applies in the “absence of exceptional
22
circumstances.” 8 C.F.R. § 208.31(b). In other words, the 10-day time period set out in the
23
regulation is not absolute. Notably, the regulation itself contemplates deviations from the

24 aspirational 10-day goal by specifically authorizing the Government, within its discretion, to take

25 additional time to complete the reasonable fear determination where the Government believes

26 exceptional circumstances prevent a speedier determination. In addition, the regulation does not

27 specify a consequence for failing to meet the 10-day time frame. See 8 C.F.R. § 208.31. And

28 the courts may not “invent a remedy to satisfy some perceived need to coerce the . . .

9

Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page18 of 27

Government into complying with the statutory time limits.” U.S. v. Montalvo-Murillo, 495 U.S.
1
711, 717 (1990).
2
Moreover, the agency cannot create a mandatory time limitation by regulation where it
3
does not exist in the statute. Brock, 476 U.S. at 265 (stating that “even if it were possible for the
4 Secretary to create a jurisdictional limitation not contained in the statute,” violation of the time
5 limitation was not sanctionable). Notably, none of the applicable statutes sets a time limitation

6 for conducting reasonable fear determinations, let alone specifies a consequence for failure to

7 reach a determination within 10 days. See 8 U.S.C. § 1231(b)(3) (prohibiting removal of certain

8 aliens to a country if USCIS determines that “the alien’s life or freedom would be threatened in

9 that country” but failing to set any timelines for such determinations); 8 U.S.C. § 1231(a)(5)
10 (failing to mention reasonable fear determinations in provision governing reinstatement of prior
removal orders); 8 U.S.C. § 1228(b) (failing to mention reasonable fear determinations in
11
provision governing final administrative of removal of aggravated felons).
12
What is more, Congress declared in relation to both final administrative orders of
13
removal and reinstatement proceedings: “[n]othing in this section shall be construed to create 14 any substantive or procedural right or benefit that is legally enforceable by any party against the
15 United States or its agencies or officers or any other person.” 8 U.S.C. §§ 1228(a)(1), 1231(h).

16 By extension, the regulation at issue – which relates to the final administrative orders of removal

17 provision under section 1228 and the reinstatement provision under section 1231 – also does not

18 create any legally enforceable right or benefit. See 8 C.F.R. § 208.31(a) (“This section shall

19 apply to any alien . . . whose deportation, exclusion or removal order is reinstated under [8
20 U.S.C. § 1231(a)(5)].”). Because Congress did not intend for any statutory timelines relating to
final administrative orders of removal and reinstatement to create causes of action for aliens, the
21
related regulation cannot create a mandatory time limitation. See Dipeppe v. Quarantillo, 337
22
F.3d 326, 333-34 (3d Cir. 2003) (finding failure to comply with statute requiring Attorney
23
General to begin removal proceedings “as expeditiously as possible” is not actionable where 24 former 8 U.S.C. § 1229(d)(2) provided that “nothing in this subsection shall be construed to
25 create any substantive or procedural right or benefit that is legally enforceable”).

26

To create a sanction, where it does not exist in statute or regulation, is also inconsistent

27 with agency intent. By providing an expedited process under 8 C.F.R. § 208.31(b), the legacy

28 INS intended to ensure that aliens do not use the reasonable fear process to delay their removal

10

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by making frivolous claims. See 64 Fed. Reg. at 8,479 (“[W]e have created mechanisms to
1
quickly identify and resolve frivolous claims to protection so that the new procedures cannot be
2
used as a delaying tactic by aliens who are not in fact at risk.”). In other words, the 10-day
3
provision was intended to “spur [adjudicating officers] to action, not to limit [the agency’s]
4 scope of authority” by creating a duty owed to aliens. See Brock v. Pierce County, 476 U.S. 253,
5 259, 265 (1986); Urbina-Mauricio v. INS, 989 F.2d 1085, 1088 (9th Cir. 1993) (finding no cause

6 of action where the Government delayed initiation of deportation proceedings in violation of

7 former 8 U.S.C. § 1252(i) because legislative history showed that “Congress enacted it out of

8 concern, not with the rights of aliens, but with prison overcrowding”). There is simply no basis

9 to conclude that the 10-day provision created a legally enforceable right or benefit for the alien.

10 See Giddings v. Chandler, 979 F.2d 1104, 1110 (5th Cir. 1992) (finding alien lacked standing to

compel commencement of proceedings because while “[w]e read § 1252(i) as imposing a duty
11
on the Attorney General to deport criminal aliens, [] we stop short of concluding that this creates
12
a duty owed to the alien.”) (emphasis in original). Thus, this Court should dismiss Plaintiffs’
13
complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief

14 may be granted. See Fed. R. Civ. P. 12(b)(1), (b)(6).

15 C.
16

Exceptional circumstances is not defined in the Regulation, and is a discretionary determination not subject to APA review.

This Court should dismiss all individual and class claims because there is no standard
17
against which this Court can determine whether “exceptional circumstances” as contemplated in
18
8 C.F.R. § 208.31(b) excuse USCIS’s longer adjudication periods. The regulation itself does not
19
define “exceptional circumstances,” and Plaintiffs have not pointed to any outside authority
20 cabining the agency’s authority to determine what constitutes an “exceptional circumstance.”

21 Consequently, whether “exceptional circumstances” exist remains a determination left to the

22 agency’s broad discretion. In the absence of meaningful standards to apply to the agency action,

23 this Court lacks jurisdiction to review APA challenges to agency action..

24

Under the APA, this Court lacks jurisdiction to review “agency action committed to the

25 agency discretion by law.” 5 U.S.C. § 701(A)(2). As the Supreme Court stated:

26

[R]eview is not to be had if the statute is drawn so that a court would have no

meaningful standard against which to judge the agency’s exercise of discretion.

27

In such a case, the statute (“law”) can be taken to have “committed” the decision

making to the agency’s judgment absolutely. . . . [I]f no judicially manageable

28

standards are available for judging how and when an agency should exercise its

11

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discretion, then it is impossible to evaluate agency action for “abuse of

1

discretion.”

2 Heckler v. Chaney, 470 U.S. 821, 830 (1985). Courts examine the language and structure of the

3 law at issue, as well as the nature of the agency action at issue, to determine whether the agency

4 action is committed to the agency’s discretion. See Pinnacle Armor, Inc. v. U.S., 648 F.3d 708,

5 719 (9th Cir. 2011). “The absence of any statutory factors to guide the agency’s decision-

6 making process, in combination with the open-ended nature of the inquiry, generally supports the

conclusion that the agency action is committed to agency discretion by law.” Tamenut v.
7

Mukasey, 521 F.3d 1000, 1004 (8th Cir. 2008) (internal quotations omitted). Thus, review is
8
unavailable where there is insufficient “law to apply” in reviewing the agency’s action. Newman

9
v. Apfel, 232 F.3d 937, 943 (9th Cir. 2000).

10

This court lacks jurisdiction to review USCIS’s compliance with 8 C.F.R. § 208.31(b)’s

11 10-day adjudication goal because the determination of whether there are exceptional

12 circumstances is a discretionary determination. As the regulation states, USCIS does not need to

13 make a reasonable fear determination within 10 days when there are exceptional circumstances.

14 8 C.F.R. § 208.31(b). However, the determination that exceptional circumstances exist is

15 discretionary, because there is no meaningful legal standard by which to measure this
16 determination. The regulation does not define what constitutes an “exceptional circumstance.”
See 8 C.F.R. § 208.31. Even more, Plaintiffs do not put forward in their complaint a standard by
17
which to measure whether exceptional circumstances exist. The explanatory comments do not
18
explain, define, or contemplate what was considered an “exceptional circumstance.” See 64 Fed.
19
Reg. at 8,485. The discretionary nature of the “exceptional circumstances” determination is 20 further reinforced by the immigration statute that treats provisions similar to “exceptional
21 circumstances” as discretionary. See, e.g., Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30

22 (9th Cir. 2005) (stating that the phrase “exceptional and extremely unusual hardship” at 8 U.S.C.

23 § 1229b(b)(1)(D) is discretionary). Thus, this regulation “is drawn so that a court would have no

24 meaningful standard against which to judge the agency’s exercise of discretion.” Lincoln v.

25 Vigil, 508 U.S. 182, 191 (1993).

26

The regulatory language clearly shows that USCIS’s determination regarding whether

exceptional circumstances are present is discretionary. Even more, neither the statute nor the
27

regulations provide a legal standard by which to measure USCIS’s discretion. Therefore, this
28
Court lacks jurisdiction under the APA to review whether USCIS has complied with the

12

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regulation. Because this Court lacks jurisdiction over Plaintiffs’ claims, this Court should
1

dismiss the complaint for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1)

2

D. Lastly, Plaintiffs have failed to state a claim that USCIS violated 8 C.F.R.

3

§ 208.31(b).

4

Lastly, Plaintiffs failed to state a claim upon which relief may be granted because

5 Plaintiffs have failed to plead that any delay by USCIS is unreasonable as a matter of law. In

6 evaluating a claim of unreasonable delay under the APA, this Court considers the following

factors:
7

(1) the time agencies take to make decisions must be governed by a rule of

8

reason[;] (2) where Congress has provided a timetable or other indication of the

9

speed with which it expects the agency to proceed in the enabling statute, that

statutory scheme may supply content for this rule of reason [;] (3) delays that

10

might be reasonable in the sphere of economic regulation are less tolerable when

human health and welfare are at stake [;] (4) the court should consider the effect

11

of expediting delayed action on agency activities of a higher or competing

12

priority[;] (5) the court should also take into account the nature and extent of the

interests prejudiced by the delay[;] and (6) the court need not find any impropriety

13

lurking behind agency lassitude in order to hold that agency action is

unreasonably delayed.
14

15 Brower v. Evans, 257 F.3d 1058, 1068-69 (9th Cir. 2001) (quoting Telecommunications

16 Research and Action Center v. FCC (“TRAC”), 750 F.2d 70, 80 (D.D.C. 1984)) (internal

citations and quotations omitted) (“TRAC factors”). The analysis of an unreasonable delay claim
17

is a “complicated and nuanced task” because this Court needs to consider the particular facts and
18
circumstances of the delay. See Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d

19
1094, 1100 (D.D.C. 2003).

20

As a preliminary matter, this Court should apply the TRAC factors because the 10-day

21 timeframe at 8 C.F.R. § 208.31(b) is neither a statutory deadline nor a firm deadline. See

22 Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1177 (9th Cir. 2002). While the Ninth

23 Circuit has declined to apply the TRAC factors where a congressionally-imposed statutory

24 deadline is present, see Biodiversity Legal Found., 309 F.3d at 1177 n.11, the 10-day timeframe

25 on 8 C.F.R. § 208.31(b) is regulatory. More importantly, however, the 10-day timeframe in the

26 regulation is not an absolute deadline imposed by the regulation, and one that USCIS aspires to
abide by when “exceptional circumstances” are not present. See 8 C.F.R. § 208.31(b). Thus, the
27
10-day regulatory timeframe is not demanded by law in such a way that it automatically results
28
in a breach when the deadline is not met. Cf. Biodiversity Legal Found., 309 F.3d at 1177;

13

Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page22 of 27

Center for Food Safety v. Hamburg, 954 F. Supp. 2d 965, 968 (N.D. Cal. 2013). Therefore, the
1
TRAC factors are appropriate to review USCIS’s compliance with 8 C.F.R. § 208.31(b).
2
1. Rule of reason
3
The “rule of reason” factor weighs heavily in favor of USCIS because, due to exceptional 4 circumstances, a delay of more than 10 days is not unreasonable as a matter of law. Plaintiffs 5 allege that USCIS renders reasonable fear determinations in about 60 days7 and that such delay
6 violates 8 C.F.R. § 208.31(b) because it is more than 10 days. Compl. ¶¶ 29, 71-79. The length
7 of a delay alone is not dispositive, but it is a fact-specific inquiry that depends on the complexity
8 of each case. See Gelfer v. Chertoff, 2007 WL 902382, at * 2 (N.D. Cal. 2007). USCIS
9 currently faces high volumes of cases in which it needs to render a reasonable fear determination. 10 See Mura Decl., Tbl. 3; Lafferty Decl. ¶¶ 25-28. For example, between fiscal year 2009 and
2013, USCIS has seen reasonable fear referrals increase from 1,109 to 7,735 – an increase of 597
11
percent. Mura Decl., Tbl. 3. Furthermore, delays beyond 10 days are caused by multiple reasons
12
including an alien’s request for an attorney, availability of interview space and interpreters, and
13
the number of Asylum Officers available. Mora Decl. Tbl. 2; Lafferty Decl. ¶¶ 8-28. Even 14 more, the large volume of cases referred to USCIS, delays attributable to the aliens, and lack of 15 resources amount to exceptional circumstances that justify USCIS’s adjudication periods. See 8
16 C.F.R. § 208.31(b). Further, as required by the regulations, USCIS relies on Asylum Officers to
17 conduct reasonable fear determinations and, due to these officers’ specialized training and
18 expertise, USCIS cannot allocate other employees to conduct the Asylum Officers’ duties.
19 Lafferty Decl. ¶¶ 3, 9, 16; see 8 C.F.R. § 208.31(b)-(c). Plaintiffs make no allegation in their

20

21 7

Plaintiffs allege in their complaint that it takes an average of 111 days from the moment a

22 person is taken into custody until a reasonable fear determination is issued, and 49 days for USCIS “to accept jurisdiction” over a case. Compl ¶ 29. The time ICE detains an alien before

23 referral to USCIS and the time ICE takes before a case is referred to USCIS are irrelevant to the

analysis of whether USCIS has unreasonably delayed adjudication of reasonable fear 24 determinations. A case cannot be referred to USCIS for a reasonable fear determination until a

25 final administrative removal order or notice of reinstatement of a prior removal order is issued. 8 C.F.R. § 208.31(b). During such time, ICE must comply with its own regulations to determine if

26 an alien is subject to a final administrative order of removal or reinstatement of a prior removal

27

order, including notice and an opportunity to contest the determination. See 8 C.F.R. §§ 238.1(b)-(d); 241.8(a)-(b). Thus, the only relevant period to Plaintiffs’ claim of unreasonable

28 delay is the period between when ICE refers the alien’s case to USCIS and when USCIS renders

its reasonable fear determination.

14

Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page23 of 27

complaint that in spite of the vast increase in reasonable fear referrals to USCIS and the multiple
1
reasons causing delays, including lack of agency resources, USCIS’s delays are unreasonable.
2
See Compl. Given these circumstances, a delay of 60 days as alleged by Plaintiffs in their
3
complaint is not unreasonable, and the rule of reason factor weighs in favor of the Government.

4 2.

Statutory scheme

5

Under the second TRAC factor, this Court must consider whether Congress intended to

6 impose a timetable. TRAC, 750 F.2d at 80. However, because the statute imposes no timetable

7 for USCIS’s reasonable fear determination, this factor also weighs in the Government’s favor.

8

3. Implications for health or human welfare and interests prejudiced by the

delay.

9
The third and fifth TRAC factors consider the impact of agency action on health and

10 human welfare, and the nature and extent of the interest prejudiced by the agency’ action.

11 TRAC, 750 F.2d at 80. These two factors generally overlap. See Kashkool v. Chertoff¸ 553 F.

12 Supp. 2d 1131, 1145 (D. Ariz. 2008). The Government does not contest that health or human

13 welfare factors are implicated in USCIS’s reasonable fear determinations. Cf. Kashkool, 553 F.

14 Supp. 2d at 1145 (finding that adjustment of status applications implicate health or human

15 welfare). However, given the nature of Plaintiffs’ claims, a delay of an average of 60 days as
16 pleaded by Plaintiffs is not unreasonable.
First, while aliens may be detained while reasonable fear determinations are pending,
17
such detention is not per se improper. As such, the aliens are immediately subject to mandatory
18
post-order detention under 8 U.S.C. 1231(a)(2). See, e.g., Santos v. Sabol, 2014 WL 2532491, at
19
*3-6 (M.D. Pa. 2014) (stating that reinstated removal orders are final administrative orders from 20 the moment of reinstatement). Under section 1231(a)(2), post-order aliens may be detained for a
21 period of ninety days, which is well within the current adjudication period of 60 days pleaded by

22 Plaintiffs. Thus, any claim of detention as a harm is lessened by the fact that detention is

23 statutorily mandated for these aliens.

24

Second, there is an equally or more important competing interest in reaching accurate

25 reasonable fear determinations: avoiding erroneous return of aliens with valid claims to
26 countries where they may be subject to harm. Mindful of this task, USCIS implements procedural safeguards and review mechanisms to fulfill its mission to reach correct reasonable
27
fear determinations. See Lafferty Decl. ¶¶ 15-24. Even more, the task of adjudicating
28
reasonable fear determinations rests on Asylum Officers, and due to the Asylum Officers’

15

Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page24 of 27

specialized training, their tasks cannot be assigned to other USCIS employees. See Lafferty
1
Decl. ¶¶ 3, 9-10, 27-28. A moderate delay is preferable over ordering USCIS to utilize its scarce
2
resources to reach reasonable fear determinations within 10 days, which could in turn increase
3
the risk of erroneous determinations. Thus, the third and fifth TRAC factors favor the

4 Government.

5

4. Effect of expediting agency action.

6 The

fourth TRAC factor considers the effect of compelling expedited agency action on

7 other agency activities of a higher or competing priority. TRAC, 750 F.2d at 80. Traditionally,

8 courts avoid interfering with an agency’s operation and discretion in determining its priorities.

9 See In re Barr Laboratories, 930 F.2d 72, 74 (D.D.C. 1991) (“[R]espect for the autonomy and
10 comparative institutional advantage of the executive branch has traditionally made courts slow to
assume command over an agency’s choice of priorities.”). Courts also consider this factor
11
keeping in mind that the agency is in a “unique – and authoritative – position” to consider its
12
projects and resources. Mashpee Wampanoag Tribal Council, 336 F.3d at 1101. Here, the
13
effects of compelling USCIS to make reasonable fear determinations within 10 days would 14 hinder Asylum Office operations by taking resources away from other programs of the agency.
15 Lafferty Decl. ¶¶ 3, 9, 31. As discussed above, USCIS has seen an increase of 597 percent in

16 reasonable fear cases referred since 2009. Mura Decl. Tbl. 4. USCIS has also seen a similarly

17 dramatic increase in the number of cases that have been referred for credible fear determinations,

18 rising from 5,369 cases in fiscal year 2009 to 36,035 in fiscal year 2013 – a 571 percent increase.

19 Mura Decl. Tbl. 4. Furthermore, the agency is best positioned to balance its budget and
20 resources in order to determine how to best address these dramatic increases in cases. See
Mashpee Wampanoag Tribal Council, 336 F.3d at 1101. Any order requiring USCIS to
21
adjudicate reasonable fear determinations within 10 days would seriously hinder USCIS’s ability
22
to adjudicate credible fear determinations, as well as affirmative asylum applications. Lafferty
23
Decl. 3, 9, 31. This will cause precisely the impairment in other programs of the Asylum 24 Division that courts seek to avoid – programs that are equally as important as the reasonable fear
25 determinations that Plaintiffs seek to expedite. Therefore, this TRAC factor weighs in favor of

26 the Government.

27

28

16

Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page25 of 27

5. Evidence of impropriety behind the delay
1

The

last TRAC factor considers whether there is any impropriety behind the agency’s

2

delay. TRAC, 750 F.2d at 80. Plaintiffs have pleaded no fact to support any allegation that

3
USCIS engaged in bad faith or other impropriety against Plaintiffs or any putative class member.

4 Therefore, this factor weighs in favor of the Government.

5

When considered together, the TRAC factors weigh in favor of the conclusion that USCIS

6 has not engaged in an unreasonable delay. Plaintiffs have failed to plead facts sufficient to

7 support finding that the time that it takes USCIS to render reasonable fear determinations is an

8 unreasonable delay under the APA. See Fed. R. Civ. P. 12(b)(6). Therefore, Plaintiffs’

9 complaint should be dismissed for failure to state a claim upon which relief may be granted. 10 //

11
//
12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

17

Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page26 of 27

V. CONCLUSION
1
Plaintiffs’ complaint should be dismissed as it relates to their individual claims because
2
their claims are moot. Furthermore, the entire complaint, including Plaintiffs’ putative class
3
claims, should be dismissed because 8 C.F.R. § 208.31(b) does not create a mandatory 10-day
4 timeline or an enforceable right to adjudication within 10 days. Additionally, dismissal is
5 appropriate because USCIS’s discretionary determination of whether exceptional circumstances

6 exist is not subject to review under the APA. Lastly, a delay of 60 days in reaching reasonable

7 fear determinations as pleaded by Plaintiffs are not unreasonable as a matter of law. Therefore,

8 this Court should dismiss Plaintiffs’ Complaint.

9 DATED: July 14, 2014

Respectfully submitted.

10 STUART F. DELERY Assistant Attorney General
11 Civil Division

12
DOUGLAS E. GINSBURG COLIN

13 Assistant Director

Acting

14 Office of Immigration Litigation

A. KISOR Director, District Court Section Office of Immigration Litigation

15 ERIK QUICK

Trial Attorney Assistan

16

Office

17

REBEKAH NAHAS Trial Attorney

18

19

20

21

22

23

ELIZABETH

STEVENS t Director, District Court Section of Immigration Litigation

/s/ Victor M. Mercado-Santana VICTOR M. MERCADO-SANTANA Trial Attorney Civil Division, Office of Immigration Litigation United States Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-7001 Facsimile: (202) 616 -8962 victor.m.mercado-santana@usdoj.gov

24
Counsel for Defendants
25

26

27

28

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Case4:14-cv-01775-YGR Document43 Filed07/17/14 Page27 of 27

CERTIFICATE OF SERVICE
1

2

I hereby certify that on this date, I electronically filed the foregoing with the Clerk of

3 Court using the CM/ECF system. I certify that all participants are CM/ECF users and that

4 service will be accomplished by the CM/ECF system.

5

6 Dated: July 14, 2014

Respectfully submitted.

7

/s/ Victor M. Mercado-Santana

8

VICTOR M. MERCADO-SANTANA

Trial Attorney

9

Civil Division, Office of Immigration Litigation

10

United States Department of Justice

P.O. Box 868, Ben Franklin Station

11

Washington, DC 20044

Telephone: (202) 305-7001

12

Facsimile: (202) 616 -8962

13

victor.m.mercado-santana@usdoj.gov

14
Counsel for Defendants
15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

 
 Case4:14-cv-01775-YGR Document54 Filed08/18/14 Page1 of 26

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1 JOHN D. PINGEL jpingel@reedsmith.com
2 REED SMITH LLP 101 Second St., Suite 1800
3 San Francisco, CA 94105 Tel.: (415) 543-8700
4 Fax: (415) 391-8269

5 Attorneys for Plaintiffs Alfaro-Garcia, Madrid Calderon, Ortega, Rodriguez de
6 la Torre, and Bardalez Serpa

7 Additional Counsel listed on signature page

8

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

9

OAKLAND DIVISION

10 MARCO ANTONIO ALFARO GARCIA,
11 CREDY MADRID CALDERON, GUSTAVO ORTEGA, CLAUDIA RODRIGUEZ DE LA
12 TORRE, and NANCY BARDALEZ SERPA, on behalf of themselves and all others similarly
13 situated,

14

Plaintiffs,

15

v.

16 JEH JOHNSON, Secretary of Homeland Security, LEON RODRIGUEZ, Director of U.S.
17 Citizenship and Immigration Services,1 and JOSEPH LANGLOIS, Associate Director of
18 Refugee, Asylum and International Operations,

19

Defendants.

20

Case No. 4:14-cv-1775-YGR
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS Hon. Yvonne Gonzalez Rogers Date: September 23, 2014 Time: 2:00 pm Courtroom 5, 2d Floor Oakland Courthouse

21

22

23

24

25

26

27 1 Leon Rodriguez, as the new Director of U.S. Citizenship and Immigration Services, is substituted 28 for Lori Scialabba. See Fed. R. Civ. P. 25(d).

US_ACTIVE-118872477

Case4:14-cv-01775-YGR Document54 Filed08/18/14 Page2 of 26

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1

2

Table of Contents

3

Page

4 INTRODUCTION .......................................................................................................................... 1

5 BACKGROUND AND STANDARD OF REVIEW ..................................................................... 2

6 ARGUMENT ................................................................................................................................. 3

7 I. As Plaintiffs Seek to Represent an Inherently Transitory Class, the Court has Jurisdiction to Hear Their Claims. ..........................................................................................3

8 II. The Defendants’ Duty to Follow the Mandatory Regulation. ................................................5

9 A. The 10-Day Time Limitation Is Not Merely “Hortatory.”..................................................5

10

B. Plaintiffs Seek Compliance With The Regulation, Not To Sanction The

11

Government. .......................................................................................................................9

12

C. The Agency Can Create A Mandatory Deadline Through Regulation.............................11

13

D. Plaintiffs Do Not Seek To Enforce Rights Precluded Under The INA. ...........................13

14

E. The “Exceptional Circumstances” Exception Does Not Preclude Judicial Review. ........14

15 III. Defendants’ Lengthy, Unjustified Delays are Not “Reasonable” As a Matter of Law. .......18

16

A. Defendants’ Presentation Of Matters Outside The Pleadings Is Improper. ......................19

17

B. The “Reasonableness” Of Defendants’ Delays Cannot Be Resolved On The Pleadings. ..........................................................................................................................20

18 CONCLUSION ............................................................................................................................ 21

19

20

21

22

23

24

25

26

27

28

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Case4:14-cv-01775-YGR Document54 Filed08/18/14 Page3 of 26

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1

Table of Authorities

2 Cases

3

American Farm Lines v. Black Ball Freight Services, 397 U.S. 532 (1970)...................................................................................................................... 6, 8

4 Ana Int'l v. Way, 393 F.3d 886 (9th Cir. 2004) .......................................................................................................... 17
5 Arteaga-De Alvarez v. Holder, 6 704 F.3d 730 (9th Cir. 2012) .......................................................................................................... 18
Ass'n of Am. Physicians & Surgs, Inc.. v. United States HHS, 7 224 F. Supp. 2d 1115 (S.D. Tx. 2002).............................................................................................. 9

8

Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003).................................................................................................................... 9, 10

9 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).................................................................................................................... 3, 20
10 Biodiversity Legal Found. v. Badgley, 11 309 F.3d 1166 (9th Cir. 2002) .................................................................................................... 6, 10
Brock v. Pierce County, 12 476 U.S. 253 (1986)........................................................................................................ 9, 10, 11, 12

13

County of Riverside v. McLaughlin, 500 U.S. 44 (1991)............................................................................................................................ 3

14 Daohua Chen v. Chertoff,, 2008 U.S. Dist. LEXIS 4891 (N.D. Cal. Jan. 23, 2008) ....................................................... 3, 18, 20
15 Delaney v. Aurora Loan Servicing,, 16 2009 U.S. Dist. LEXIS 122573 (N.D. Cal. 2009) .......................................................................... 19
Dipeppe v. Quarantillo, 17 337 F.3d 326 (3d Cir. 2003) ........................................................................................................... 14

18

Dong v. Chertoff, 513 F. Supp. 2d 1158 (N.D. Cal. 2007) ................................................................................... passim

19 Elmalky v. Upchurch, 2007 U.S. Dist. LEXIS 22353 (N.D. Tex. Mar. 28, 2007) ............................................................. 15
20 French v. Edwards, 21 80 U.S. 506 (1871)............................................................................................................................ 6
Ghahremani v. Gonzales, 22 498 F.3d 993 (9th Cir. 2007) .......................................................................................................... 17

23

Giddings v. Chandler, 979 F.2d 1104 (5th Cir. 1992) .......................................................................................................... 8

24 Health Systems Agency of Oklahoma, Inc. v. Norman, 589 F.2d 486 (10th Cir. 1978) .......................................................................................................... 9
25 Heckler v. Chaney, 26 470 U.S. 821 (1985).................................................................................................................. 17, 19
Hendrickson v. FDIC, 27 113 F.3d 98 (7th Cir. 1997) .............................................................................................................. 9

28

Houle v. Riding, 2008 U.S. Dist. LEXIS 8482 (E.D. Cal. 208).....................................................................................

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Case4:14-cv-01775-YGR Document54 Filed08/18/14 Page4 of 26

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1 Husyev v. Mukasey,
2 528 F.3d 1172 (9th Cir. 2008) .................................................................................................. 16, 17

3

Int'l Labor Mgmt. Corp. v. Perez,, 2014 U.S. Dist. LEXIS 57803 (M.D.N.C. Apr. 25, 2014) ................................................. 10, 11, 12

4 Kim v. Ashcroft, 340 F. Supp. 2d 384 (S.D.N.Y. 2004) ............................................................................................ 16
5 Liangda Feng v. Rand Beers,, 6 2014 U.S. Dist. LEXIS 33908 (E.D. Cal. 2014)......................................................................... 3, 20
Lin v. Chertoff, 7 2007 U.S. Dist. LEXIS 57964 (W.D. Okla. Aug. 8, 2007) ............................................................ 15

8

Marder v. Lopez, 450 F.3d 445 (9th Cir. 2006) .......................................................................................................... 19

9 Martinez-Rosas v. Gonzales, 424 F.3d 926 (9th Cir. 2005) .......................................................................................................... 18
10 Mazouchi v. Still,, 11 2007 U.S. Dist. LEXIS 53999 (N.D. Cal. July 10, 2007)............................................................... 16
Medina-Morales v. Ashcroft, 12 371 F.3d 520 (9th Cir. 2004) .................................................................................................... 14, 17

13

Morton v. Ruiz, 415 U.S. 199 (1974).................................................................................................................. 6, 7, 8

14 Norton v. South Utah Wilderness Alliance, 542 U.S. 55 (2004)................................................................................................................ 5, 11, 12
15 Office of Foreign Assets Control v. Voices in the Wilderness, 16 382 F. Supp. 2d 54 (D.D.C. 2005).................................................................................................. 12
Office of Personnel Management v. Richmond, 17 496 U.S. 414 (1990)........................................................................................................................ 10

18

Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011) .......................................................................................................... 4

19 Preap v. Johnson, Case No. 4:13-CV-5754-46R (N.D. May 15, 2014)....................................................................... 12
20 Ramadan v. Gonzales, 21 479 F.3d 646 (9th Cir. 2007) .......................................................................................................... 17
Regions Hospital v. Shalala, 22 522 U.S. 448 (1998).......................................................................................................................... 9

23

Roshandel v. Chertoff,, 2008 U.S. Dist. LEXIS 90899 (W.D. Wash. May 5, 2008)............................................................ 19

24 Saini v. United States Citizenship & Immigration Servs., 553 F. Supp. 2d 1170 (E.D. Cal. 2008) ...................................................................................... 3, 20
25 Service v. Dulles, 26 354 U.S. 363 (1957)........................................................................................................................ 11
Singh v. Holder, 27 656 F.3d 1047 (9th Cir. 2011) ........................................................................................................ 17

28

Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) ............................................................................................................ 3

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Case4:14-cv-01775-YGR Document54 Filed08/18/14 Page5 of 26

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1 Taslimi v. Holder, 590 F.3d 981 (9th Cir. 2010) .......................................................................................................... 16
2 Telecommunications Research Action Center v. FCC, 3 750 F.2d 70 (D.C. Cir. 1984).................................................................................................... 18, 20
United States ex rel. Accardi v. Shaughnessy, 4 347 U.S. 260 (1954)........................................................................................................................ 11

5

United States v. James Daniel Good Real Property, 510 U.S. 43 (1993).......................................................................................................................... 10

6 United States v. Montalvo-Murillo, 495 U.S. 711 (1990).......................................................................................................................... 9
7 United States v. Morgan, 8 193 F.3d 252 (4th Cir. 1999) .......................................................................................................... 11
Urbina-Mauricio v. INS, 9 989 F.2d 1085 (9th Cir. 1993) .......................................................................................................... 8

10

Wade v. Kirkland, 118 F.3d 667 (9th Cir. 1997) ............................................................................................................ 4

11 Yellin v. United States, 374 U.S. 109 (1963).......................................................................................................................... 8
12 Statutes

13 5 U.S.C. § 706(1) .................................................................................................................... 10, 12

14 8 U.S.C. § 1228............................................................................................................................. 13 8 U.S.C. § 1228(a)(1).............................................................................................................. 13, 14
15 8 U.S.C. § 1228(b) ........................................................................................................................ 14

16 8 U.S.C. § 1231............................................................................................................................. 13

17 8 U.S.C. § 1231(a)(5).............................................................................................................. 13, 14 8 U.S.C. § 1231(h) .................................................................................................................. 13, 14
18 148 U.S.C. § 1252(a)(2)(B)(ii) ............................................................................................... 14, 17
19 Rules

20 Fed. R. Civ. P. 12(b)(1)................................................................................................................. 21 Fed. R. Civ. P. 12(b)(6)............................................................................................................. 3, 20
21 Fed. R. Civ. P. 12(d) ............................................................................................................... 20, 21
22 Regulations

23 8 C.F.R. § 208 ............................................................................................................................... 14 8 C.F.R. § 208.31 ................................................................................................................ 7, 14, 15
24 8 C.F.R. § 208.31(b) .............................................................................................................. passim

25 8 C.F.R. § 238 ............................................................................................................................... 15

26 8 C.F.R. § 241 ............................................................................................................................... 15 8 C.F.R. § 241.15(g) ..................................................................................................................... 15
27

28

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Case4:14-cv-01775-YGR Document54 Filed08/18/14 Page6 of 26

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1

INTRODUCTION

2

Defendants Secretary Johnson, Director Rodriguez and Associate Director Langlois—the

3 U.S. officials tasked with implementing a fair and lawful immigration system—show a remarkable

4 disregard for the duties imposed on them by clear and mandatory regulatory language, and for the

5 people whose care and protection they are entrusted with by law. According to Defendants’ Motion

6 to Dismiss (“Motion”), Plaintiffs—noncitizens who fled their home countries and have expressed

7 fear of persecution or torture if they are returned—cannot be heard on their claims that the

8 Defendants willfully and systematically failed to adhere to a binding regulation requiring Defendants

9 to perform screening interviews, and bring Plaintiffs’ request for refuge to immigration judges

10 within a prescribed 10-day period. Instead, Defendants Johnson, Rodriguez and Langlois, and the

11 immigration agencies for which they hold ultimate responsibility, believe they can ignore this rule,

12 unilaterally extend the brief period allowed asylum officers to preliminarily assess protection claims,

13 and indefinitely detain those who have sought protection within our borders. By doing so, these

14 officials and the agencies they administrate cause those seeking protection from persecution and

15 torture to give up the hope that this nation’s ideals of freedom and the rule of law apply to them.

16

But the law, as interpreted and applied by a number of courts, does not give these Defendants

17 the unfettered discretion to disregard clear and mandatory regulatory language. Nor do these

18 Defendants stand immune from the Federal Rules of Civil Procedure, long established judicial

19 precedent regarding the viability of claims brought by an inherently transitory class, or the

20 requirements of the Administrative Procedure Act. Thus, their claims of mootness, challenges to

21 subject matter jurisdiction, and vague references to “exceptional circumstances” (never pled in the

22 complaint, nor even identified in the materials these Defendants improperly submit on a motion to

23 dismiss), do not provide a basis to dismiss the Plaintiffs’ complaint. Instead, this Court must deny

24 Defendants’ Motion for at least the following reasons:

25 First: Because this is an inherently transitory class, the class claims do not become moot

26

simply because the Defendants belatedly provided the Named Plaintiffs with

27

reasonable fear determinations after the class complaint was filed but prior to a ruling

28

on class certification (see Section I);

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Case4:14-cv-01775-YGR Document54 Filed08/18/14 Page7 of 26

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1 Second: As numerous other courts have held with respect to similar statutory and regulatory

2

deadlines, the Court can enforce 8 C.F.R. § 208.31(b) because this regulation bestows

3

important procedural protections on Class Members seeking protection under the

4

immigration laws (see Section II); and

5 Third: Even without the mandate of the 10-day rule, this Court must allow Plaintiffs’ claims

6

to proceed as the complaint alleges that the Defendants have “unreasonably” delayed

7

the issuance of reasonable fear determinations. In arguing to the contrary, Defendants

8

improperly rely on evidence outside the complaint—which the Court cannot consider

9

on a motion to dismiss. Moreover, that evidence in fact only substantiates the fact that

10

the Defendants systematically and openly delay conducting determinations, and

11

thereby unnecessarily prolong the detention of Class Members without justification

12

(see Section III).

13

14

BACKGROUND AND STANDARD OF REVIEW

15

This case concerns a putative class of noncitizens who seek refuge within the United States

16 because they fear persecution or torture in their home countries. U.S. law and the nation’s treaty

17 obligations require that Class Members have an adequate opportunity to seek protection within the

18 United States; this in turn has led the Defendant agencies to adopt certain regulatory processes to

19 ensure that Class Member claims are heard in a fair and timely manner. (See Compl. [Dkt. 1] ¶¶ 19-

20 22.) Among these is a regulatory provision allowing U.S. Citizen and Immigration Services

21 (“USCIS”) up to 10 days – and only 10 days in the absence of exceptional circumstances – to

22 determine whether an individual has expressed a “reasonable fear” of persecution or torture, and to

23 refer individuals determined to have a “reasonable fear” to an immigration law judge for a full

24 hearing on their claims for relief. 8 C.F.R. § 208.31(b). Yet despite this clear regulatory mandate,

25 Defendants have “rarely” complied with this obligation, leaving Class Members to “languish in

26 detention for months and, in some cases, over a year” at great emotional, physical, and financial cost

27 to Class Members and their families. (See id. ¶¶ 7, 31-59 (describing drastic human consequences”

28 caused by Defendants’ violations, including depression, despair, and financial and emotional

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1 deprivation).) To correct this persistent violation of duty, Plaintiffs seek relief under the

2 Administrative Procedure Act (“APA”) and the Mandamus and Venue Act to compel Defendants to

3 comply with their mandatory legal obligations, and to cease their “unreasonable” delays in

4 processing Plaintiffs’ claims for relief. (See id. ¶¶ 8, 71-79.)

5

To prevail on a motion to dismiss under FRCP 12(b)(6), Defendants must demonstrate that

6 Plaintiffs’ complaint does not set forth facts sufficient to establish a “plausible” right to relief. Bell

7 Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). In considering Defendants’ Motion, this

8 Court’s “[r]eview is limited to the contents of the complaint,” and it must accept all factual

9 allegations in the complaint as true and construe them in the light most favorable to Plaintiffs.

10 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

11

When considering challenges to delayed agency action in the immigration context, courts

12 generally will not dismiss claims that government officials “unreasonably” delayed acting on an

13 application for immigration relief under the APA “absent circumstances suggesting that Plaintiff’s

14 claim is frivolous.” Liangda Feng v. Rand Beers, 2014 U.S. Dist. LEXIS 33908, at *3-4 (E.D. Cal.

15 2014) (citing Houle v. Riding, 2008 U.S. Dist. LEXIS 8482, at *7 (E.D. Cal. 2008)). That is because

16 “[w]hat constitutes an unreasonable delay in the context of immigration applications depends to a

17 great extent on the facts of the particular case.” Daohua Chen v. Chertoff, 2008 U.S. Dist. LEXIS

18 4891, at *7 (N.D. Cal. Jan. 23, 2008); Saini v. United States Citizenship & Immigration Servs., 553

19 F. Supp. 2d 1170, 1177 (E.D. Cal. 2008).

20

Plaintiffs’ claims that Defendants’ lengthy, unjustified delays in conducting reasonable fear

21 determinations—in direct violation of a binding regulation—are “unreasonable” are clearly

22 plausible, and this Court must therefore deny Defendants’ motion to dismiss.

23

ARGUMENT

24 I. As Plaintiffs Seek to Represent an Inherently Tran sitory Cla ss, the Court has Jurisdiction to Hear Their Claims.
25 As the Defendants freely concede (Dkt. 38 at 7 n.6.),where an individual seeks to represent a
26 class with inherently transitory claims—as the Named Plaintiffs seek to do here—the resolution of
27 their individual claims on the merits does not moot the class action allegations. See County of
28

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1 Riverside v. McLaughlin, 500 U.S. 44, 52-53 (1991); Wade v. Kirkland, 118 F.3d 667, 670 (9th Cir.

2 1997). Even where “the class was not certified until after the named plaintiffs’ claims had

3 become moot,” mootness of their individual claims does “not deprive [the Court] of jurisdiction”

4 because “some claims are so inherently transitory that the trial court will not have even enough time

5 to rule on a motion for class certification before the proposed representative’s individual interest

6 expires.” McLaughlin, 500 U.S. at 52-53 (internal quotation marks and citations omitted). Thus, if

7 the claims in a class action case “are indeed ‘inherently transitory,’ then the action qualifies for an

8 exception to mootness even if there is no indication that [the named plaintiff] or other current class

9 members may again be subject to the acts that gave rise to the claims” as such “a constantly

10 changing putative class that will become subject to the[] allegedly unconstitutional conditions.”

11 Wade, 118 F.3d at 670 (internal citation omitted).

12

Here, the class the Named Plaintiffs seek to represent is inherently transitory. As Plaintiffs

13 explained in their class certification briefing, individuals will join the class as they express a fear of

14 returning to their home countries, and exit the class once the reasonable fear determination process is

15 completed in their cases. (Plaintiffs’ Reply in Support of Motion for Class Certification [Dkt. 40] at

16 4.) Just like the court considering the claims asserted in McLaughlin—where county detainees

17 sought timely probable cause determinations—this Court has not had time to reach the issue of class

18 certification before the Named Plaintiffs’ individual claims became moot. See McLaughlin, 500 U.S.

19 at 52. Nevertheless, “it is certain that other persons similarly situated will have the same complaint,”

20 Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1090 (9th Cir. 2011), that is, that Defendants will

21 continue to violate the mandatory regulation and fail to provide reasonable fear determinations

22 within the mandated 10-day period or within a reasonable amount of time. As with the Named

23 Plaintiffs, if individuals similarly aggrieved by Defendants’ unlawful conduct bring separate actions

24 in the future, their reasonable fear determinations—although issued months after the 10-day period

25 allotted for such government action, as in the case of the Named Plaintiffs—such individuals claims

26 would most certainly moot by the time the Court reached the class certification issue.

27

Because this case involves “a constantly changing putative class that will become subject to

28 these allegedly [unlawful practices],” Wade, 118 F.3d at 670, the case involves “inherently

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1 transitory” claims. Therefore, the Named Representatives can move forward with their class wide 2 claims, notwithstanding the mootness of their individual claims.2

3 II. The Defendants’ Duty to Follow the Mandatory Regulation.

4

The regulation at issue here, 8 C.F.R. § 208.31(b), creates an enforceable duty to adjudicate

5 reasonable fear determinations within 10 days because it bestows important procedural benefits on

6 Plaintiffs. The five arguments Defendants advance to the contrary are without merit (see Defs.’ Br.

7 [Dkt.43] at 7-11) and are easily refuted as follows:

8

A. The 10-Day Time Limitation Is Not Merely “Hortatory.”

9

Defendants take the remarkable position that the USCIS can simply “waive compliance” with

10 8 C.F.R. § 208.31(b) when compliance is inconvenient, even if doing so results in the prolonged,

11 unnecessary detention of Class Members. (See Defs.’ Br. [Dkt.43] at 8) Defendants dismiss the 10-

12 day deadline as, alternatively, “hortatory,” “advisory,” “aspirational,” or a “goal,” (see Defs.’ Br.

13 [Dkt.43] at 8, 9, 12), and ask this Court to completely read out of the regulation the plain language

14 mandating USCIS to conduct a reasonable fear determination within 10 days, absent exceptional

15 circumstances. See 8 C.F.R. § 208.31(b) (“In the absence of exceptional circumstances, this

16 determination will be conducted within 10 day of the referral.”) (emphasis added). Despite

17 Defendants’ protestations to the contrary, however, an agency cannot pick and choose when to abide

18 by a regulation whose plain terms make compliance mandatory, especially given that the Class 19 Members’ liberty is at stake.3

20

Defendants’ sweeping claim that statutory or regulatory deadlines, when applied to the

21 Government, are “advisory,” (Defs.’ Br. [Dkt.43] at 8), finds no support in the case law. To the

22 contrary, the Supreme Court has held that “when an agency is compelled by law to act within a

23 certain time period . . . a court can compel the agency to act . . .” Norton v. South Utah Wilderness

24

25

2 Although the government has never disputed that it continues to detain class members with live claims, Plaintiffs are prepared to offer evidence of the continued existence of such individuals

26 should the Court require it.

27

3 Defendants’ complaint that Plaintiffs seek to make them a “slave” to their own rules, (see Defs.’ Br. [Dkt.43] at 8.), is particularly ill-advised given that the rule serves only to protect Class Members

28 from being unnecessarily incarcerated by Defendants for months or longer.

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1 Alliance, 542 U.S. 55, 62 (2004) (“SUWA”). See also Biodiversity Legal Found. v. Badgley, 309

2 F.3d 1166, 1177-78 & n.11 (9th Cir. 2002) (issuing injunction for agency to comply with statutory

3 deadline); Dong v. Chertoff, 513 F. Supp. 2d 1158, 1169 (N.D. Cal. 2007) (ordering the government

4 to comply with specific procedures, including deadlines, for processing applications for adjustment

5 of status).

6

Defendants’ more limited argument that they need not comply with the regulation at issue

7 here “because it is an internal administrative processing guideline,” (Defs.’ Br. [Dkt.43] at 8.), also

8 fails. The 10-day regulation is enforceable because it confers important procedural rights upon the

9 Plaintiff Class by ensuring that the government’s desire to preliminarily assess a petitioner’s

10 reasonable fear will not impede a fair and timely hearing of her claims for relief. The Supreme Court

11 has long distinguished between regulations that “confer important procedural benefits upon

12 individuals,” with which agencies must comply, and regulations that are “mere aids to the exercise

13 of the agency’s independent discretion,” which the agency can “relax or modify.” American Farm

14 Lines v. Black Ball Freight Services, 397 U.S. 532, 538 (1970); French v. Edwards, 80 U.S. 506,

15 511 (1871) (holding that rules that provide for “the protection of the citizen, . . . and by a disregard

16 of which his rights might be and generally would be injuriously affected” are “mandatory”). As the

17 Supreme Court clearly explained in Morton v. Ruiz: “Where the rights of individuals are affected, it

18 is incumbent upon agencies to follow their own procedures. This is so even where the internal

19 procedures are possibly more rigorous than otherwise would be required.” 415 U.S. 199, 235 (1974).

20

Here, 8 C.F.R. § 208.31(b) confers important procedural benefits on Class Members by

21 ensuring that immigration judges hear their claims for protection in the United States in a timely

22 manner, and that they not suffer prolonged periods of detentions while immigration officers process

23 their claims. While Defendants argue that the regulations containing the 10-day limitation exist only

24 to benefit immigration authorities, i.e., that this regulation was “intended to ensure that [noncitizens]

25 do not use the reasonable fear process to delay their removal by making frivolous claims,” (Defs.’

26 Mot. at 10-11.), this claim cannot be reconciled with the fact that the regulation was enacted to

27 implement the Convention Against Torture, which plainly was established to provide protections to

28 those who fear torture. Indeed, Defendants themselves acknowledge, as they must, that the

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1 government adopted these regulations “as part of the Government’s efforts to comply with its

2 international obligations under the United Nations Convention Against Torture.” (Defs.’ Mot. at 5.)

3 Undisputedly these “regulations sought to create fair and efficient procedures by which the United

4 States would comply with its [Convention Against Torture (“CAT”)] obligations ‘within the overall

5 regulatory framework for the issuance of removal orders and decisions about the execution of such

6 order [sic].’” (Defs.’ Mot. at 5 (citing 64 Fed. Reg. 8478, 8479) (emphasis added).). See also 64 Fed.

7 Reg. at 8485 (stating that 8 C.F.R. § 208.31 “is intended to provide for the fair resolution of claims

8 both to withholding under section 241(b)(3) of the Act, and to protection under the Convention

9 Against Torture without unduly disrupting the operation of these special administrative removal

10 processes.”) (emphasis added). Given that Defendants acknowledge that the regulation at 8 C.F.R. §

11 208.31(b) protects “[c]ertain aliens (including the Plaintiffs in this case)” (Defs.’ Mot. at 5.), and that

12 the regulation itself was enacted to comply with the Convention Against Torture, there is no question

13 that the regulation “affect[s]” “the rights of individuals,” Morton, 415 U.S. at 235, by creating a

14 process to allow Plaintiffs and others like them to seek protection from persecution and torture that

15 limits the time immigration agencies can delay the adjudication of their reasonable fear claims.

16

In addition to ensuring the timely processing of Class Members’ claims for relief, the

17 regulation also protects each Class Member in another way—by safeguarding against the prolonged

18 deprivation of her liberty that results from government-imposed mandatory detention pending

19 adjudication of her claim. (See Defs.’ Mot. at 15 (noting the government’s position that noncitizens

20 in reasonable fear determination process are subject to mandatory detention)) Because any agency

21 delay in completing the reasonable fear determination process necessarily delays the rest of the

22 noncitizen’s immigration case, Defendants’ violation of the regulation results in months of

23 unnecessary detention even before a noncitizen has a chance to present his or her claim before the

24 immigration courts. The 10-day regulatory timeline, therefore, provides another important

25 procedural protection to the noncitizen, namely, a reduction in the overall amount of detention the

26 noncitizen must endure while his or her claims are fully adjudicated on the merits.

27

Because the regulation confers an important procedural right on the noncitizen, the cases

28 upon which Defendants rely are inapposite. In each of these cases, the court found that the plaintiffs

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1 did not receive any important procedural benefit from the rules at issue or alternatively could not

2 claim any prejudice from the government’s non-compliance with its procedures. See Am. Farm

3 Lines, 397 U.S. at 537 (finding that a rule requiring that a motor carrier applying for temporary

4 operating authority include certain information in its application was for the benefit of the

5 adjudicating agency, not competitors of the applicant); Urbina-Mauricio v. INS, 989 F.2d 1085,

6 1088 (9th Cir. 1993) (rejecting noncitizen’s claim that a statute requiring “expeditious” imposition of

7 removal proceedings for certain “criminal aliens” in criminal custody barred the government from

8 initiating removal proceedings against him because statute was intended to address prison

9 overcrowding, not create a benefit for noncitizens, and because noncitizen could not claim any 10 prejudice by delay); Giddings v. Chandler, 979 F.2d 1104, 1108-10 (5th Cir. 1992) (same).4 The

11 manifest purpose of the regulations at issue in these cases was not to benefit the individual seeking

12 to enforce them, and, unsurprisingly, none of those regulations had an enactment history anything

13 like this one. Here, in contrast, the regulatory history documents that the agency intended to create a

14 “fair” process for noncitizens and, as explained above, fairness for these noncitizens necessarily

15 means timely resolution of their claims while they are detained.

16

Even if the regulation serves a secondary purpose of benefit to the agency (insofar as any

17 deadline may aid the functioning of a complex system), that the regulation benefits both Defendants

18 and Class Members does not render the regulation unenforceable by Plaintiffs. See Yellin v. United

19 States, 374 U.S. 109, 120-24 (1963) (noting that rules of House Committee on Un-American

20 Activities could be enforced by petitioner because the rules “work for the witness’ benefit,” and not

21 “to provide guidance for the Committee alone”). Because “the rights of individuals are affected,” it

22 is therefore “incumbent upon [the agency] to follow [its] own procedures.” Morton, 415 U.S. at 235.

23

24

25

26 4 Defendants cite several other cases in support of their argument that the regulation is an

27

unenforceable “internal processing” deadline, but those cases concern whether a plaintiff can “sanction” the government for violating its procedures – a distinct question addressed in Section II.B

28 infra.

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1

B. Plaintiffs S eek Compl iance Wit h The Re gulation, Not To S anction Th e

Government.

2

Plaintiffs, as aggrieved parties, seek to compel the agency to comply with its own regulation,

3 not to “sanction” the government as Defendants claim. (See Defs.’ Mot. at 8-9.) Thus it is of no

4 moment that 8 C.F.R. §208.31(b) does not contain an express sanction for Defendants’ violations of

5 the regulation.

6

As an initial matter, there is an essential difference between seeking compliance with a

7 regulation, as the Plaintiffs do here, and cases in which a party seeks a sanction against the

8 government when the government violates a statutory or regulatory mandate, or otherwise engages

9 in misconduct. Defendants miss this point and thus wrongly rely on cases in which the courts

10 address whether the government’s failure to act within a statutory or regulatory deadline precludes it

11 from taking that action at a later date. See e.g., Barnhart v. Peabody Coal Co., 537 U.S. 149, 152,

12 158, 172 (2003) (assignment of retirement benefits responsibility to companies was valid despite the

13 fact that it was made after statutory deadline); United States v. Montalvo-Murillo, 495 U.S. 711, 722

14 (1990) (holding that “respondent was not, and is not, entitled to release as a sanction for the delay”

15 in holding a bail hearing); Regions Hospital v. Shalala, 522 U.S. 448, 460 n.3 (1998) (noting that

16 failure of Secretary of Health and Human Services to meet deadline regarding reaudit rule “does not

17 mean that official lacked the power to act”); Brock v. Pierce County, 476 U.S. 253, 266 (1986)

18 (holding that statutory requirement that the Secretary of Labor take action by a certain deadline

19 “does not, standing alone, divest the Secretary of jurisdiction to act after that time”); Hendrickson v.

20 FDIC, 113 F.3d 98, 102 (7th Cir. 1997) (holding that “agency does not lose jurisdiction for failure to

21 adhere to a regulatory deadline unless the regulation in question” expressly requires action by the

22 deadline and specifies the consequence of the failure to comply); Health Systems Agency of

23 Oklahoma, Inc. v. Norman, 589 F.2d 486, 489-90 (10th Cir. 1978) (government could not treat

24 deadline as jurisdictional, precluding its ability to take action on tardy application); Ass’n of Am.

25 Physicians & Surgs, Inc.. v. United States HHS, 224 F. Supp. 2d 1115, 1127-28 (S.D. Tx. 2002)

26 (delay in promulgating final rule did not deprive the agency of the power to act). Similarly, in the

27 other cases Defendants cite, the plaintiffs sought to impose a sanction—such as a waiver of a

28

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1 defense or dismissal—as a remedy for governmental error. United States v. James Daniel Good Real

2 Property, 510 U.S. 43, 47 (1993) (respondent sought to dismiss forfeiture action brought within

3 statute of limitations as a remedy for failure of government to comply with other timing

4 requirements); Office of Personnel Management v. Richmond, 496 U.S. 414, 418 (1990) (respondent

5 sought to make an estoppel claim for monetary damages against the government for misinformation

6 provided by a government agent).

7

But Plaintiffs here do not seek to limit the ability of any agency to take action, or its

8 jurisdiction in future cases, or a grant of automatic status in the United States, or any other sanction

9 for these Defendants failing to comply with the regulation. Rather, Plaintiffs seek compliance with

10 the 10-day regulation. The Supreme Court recognized this distinction in Brock, when it stated there

11 were “less drastic remedies available for failure to meet a statutory deadline” than the requested

12 sanction forbidding the government from ordering repayment of certain overpayments made to a

13 county, observing that “nothing in [the statute] appears to bar an action to enforce the 120-day

14 deadline” under the APA. Brock, 476 U.S. at 260 n.7. “Thus, it would appear that a complainant

15 adversely affected by the Secretary’s failure to act on a complaint could bring an action in the

16 district court,” and “[t]he court would have the authority to ‘compel agency action unlawfully

17 withheld or unreasonably delayed.’” Id. (citing 5 U.S.C. § 706(1)). See also Int'l Labor Mgmt. Corp.

18 v. Perez, 2014 U.S. Dist. LEXIS 57803, at * 21-22 (M.D.N.C. Apr. 25, 2014) (“providing equitable

19 relief to ensure the DOL abides by mandatory statutory limits is wholly divorced from an order

20 disallowing the DOL from acting once the statutorily-derived time limits have run. The latter is 21 precluded by Brock; the former is untouched.”).5 That is precisely what Plaintiffs have done here.

22 Consisten

t with Brock, numerous courts have recognized their authority to order compliance

23 with a statutory or regulatory deadline. See, e.g., Brodivercity Legal Found., 309 F.3d at 1177-78 &

24 n.11 (issuing injunction for agency to comply with statutory deadline); Dong, 513 F. Supp. 2d at

25 1169 (ordering the government to comply with specific procedures, including deadlines, for

26 5 Likewise, in Barnhart, the Court recognized that “the Commissioner had no discretion to choose

27

to” act outside the statutory deadline, and “that the [action] here represents a default on a statutory duty.” Id. at 157. Thus, the Court recognized that the government had a duty to act. The question in

28 the case, however, was “what the consequence of the tardiness should be.” Id.

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1 processing applications for adjustment of status); Int’l Labor Mgmt. Corp., 2014 U.S. Dist. LEXIS

2 57803, at *47 (ordering government to comply with statutory and regulatory deadlines for the

3 processing of employment visas); cf. SUWA, 542 U.S. at 65 (noting that “when an agency is

4 compelled by law to act within a certain time period . . . a court can compel the agency to act . . .”).

5 In another context, this Court has recently noted the difference between this “loss of authority” line

6 of cases and ones in which the government does not lose the ability to act through mandated

7 compliance with a statutory deadline. See Preap v. Johnson, Case No. 4:13-CV-5754-YGR, Order

8 Granting Petitioners’ Motion for Preliminary Injunction (May 15, 2014) at 22-23, citing Brock. As

9 Plaintiffs here similarly seek compliance, not a sanction, for Defendants’ violations of the law, the

10 Court can enforce 8 C.F.R. § 208.31(b) even though it does not expressly provide a sanction for the

11 government’s violations.

12

C. The Agency Can Create A Mandatory Deadline Through Regulation.

13

The Court should also reject Defendants’ argument that “the agency cannot create a

14 mandatory time limitation by regulation where one does not exist in the statute.” (Defs.’ Mot. at 10.)

15 Numerous courts have found just the opposite, recognizing that regulatory deadlines bind agency

16 conduct.

17

It is a longstanding rule of administrative law that agencies can create binding obligations

18 through regulation. In United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), the Court

19 found that the Attorney General violated immigration regulations having “the force and effect of

20 law” by interfering with a deportation determination that the regulations required be left to the Board

21 of Immigration Appeals’ (“BIA”) independent judgment. Id. at 265-68. The Court held that “as long

22 as the regulations [directing the BIA to exercise its discretion in adjudicating suspension of

23 deportation applications] remain operative, the Attorney General denies himself the right to sidestep

24 the Board or dictate its decision in any manner.” Id. at 267. This requirement that an agency comply

25 with its own regulations exists regardless of whether the obligations in the regulation are

26 constitutionally or statutorily mandated. See Service v. Dulles, 354 U.S. 363, 388 (1957) (“While it

27 is of course true that . . . the Secretary was not obligated to impose upon himself these more rigorous

28 substantive and procedural standards . . . having done so he could not, so long as the Regulations

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1 remained unchanged, proceed without regard to them.”); United States v. Morgan, 193 F.3d 252, 266

2 (4th Cir. 1999) (“The fact that a particular regulation or procedure is not mandated by the

3 Constitution or by statute is of no moment for purposes of an analysis under the Accardi doctrine.”).

4

Courts have therefore enforced deadlines contained only in regulations rather than in the

5 underlying statute. For instance, in Dong, the district court ordered that the government comply with

6 regulatory procedures, including specific time limitations set out in the regulation, in processing

7 plaintiffs’ applications for adjustment of status. 513 F. Supp. 2d at 1169. Likewise n International

8 Labor Management Corp., the court found that a deadline for accepting applications for H-2B visas

9 or notifying employers of a deficiency in the application, which was contained in a regulation, was

10 mandatory. 2014 U.S. Dist. LEXIS 57803, at *29. See also Office of Foreign Assets Control v.

11 Voices in the Wilderness, 382 F. Supp. 2d 54, 60 (D.D.C. 2005) (“The prevailing rule is that a claim

12 that an agency has failed to comply with a statutory or regulatory deadline can give rise to an action

13 to compel the agency to act under section 706(1) . . . .”) (emphasis added).

14

Defendants make no mention of Accardi, or the general principle underlying it that agencies

15 must follow their own rules, but instead again cite to Brock to support their position. (See Defs.’

16 Mot. at 10.) But, as explained supra, the Supreme Court there expressly acknowledged that an

17 aggrieved party could seek compliance with a regulatory deadline under the APA. See Brock, 476

18 U.S. at 260 n.7. While Brock held that the failure to abide by a statutory deadline did not limit the

19 jurisdiction of the agency to take action after that time, id. at 265, it simply did not state, or even

20 suggest, as Defendants contend here, that an agency cannot create a binding deadline through

21 regulation where one does not exist in the statute. Indeed, the Supreme Court has since held

22 explicitly that regulatory deadlines are enforceable under the APA. See SUWA, 542 U.S. at 65

23 (noting that “when an agency is compelled by law to act within a certain time period . . . a court can

24 compel the agency to act . . .” and that the term “law” “includes, of course, agency regulations that

25 have the force of law”).

26

Therefore, the regulation requiring completion of reasonable fear determinations within 10

27 days of referral to the agency can properly create a mandatory duty, even absent a similar deadline

28 imposed in the statute.

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1

D. Plaintiffs Do Not Seek To Enforce Rights Precluded Under The INA.

2

Defendants next argue that the Court cannot enforce 8 C.F.R. § 208.31(b) because 8 U.S.C. §

3 1228 (concerning administrative orders of removal) and § 1231 (concerning reinstatement of

4 removal orders) do not create legally enforceable substantive or procedural rights. (Defs.’ Mot. at 5 10.)6 But these provisions plainly do not apply to 8 C.F.R. § 208.31(b) because, as Defendants

6 acknowledge elsewhere in their brief, Plaintiffs do not seek to enforce their rights under § 1228(a) or

7 § 1231.

8

As discussed supra Section II.A, 8 C.F.R. § 208.31 sets forth the procedures through which

9 noncitizens can raise a claim that they have a fear of returning to their home countries, including

10 under the Convention Against Torture. As Defendants themselves explain, the “regulations sought to

11 create fair and efficient procedures by which the United States would comply with its CAT

12 obligations” and that “[c]ertain aliens (including the Plaintiffs in this case) may seek protection from

13 removal in accordance with the regulation at 8 C.F.R. § 208.31(b).” (Defs.’ Mot. at 5.) See also 64

14 Fed. Reg. at 8479 (stating the purpose of the rule was “to implement the United States’ Article 3 [of

15 the Convention Against Torture] obligations in the context of the removal of aliens by the Attorney

16 General”); id. at 8484 (“Section 208.31 creates a new screening process to evaluate torture claims

17 for aliens subject to streamlined administrative removal . . . under section [1228(b)] of the Act and

18 for [noncitizens] subject to reinstatement of a previous order under section [1231(a)(5)] of the

19 Act.”).

20

The regulation at issue here, 8 C.F.R. § 208.31, was therefore enacted to “evaluate torture

21 claims,” not to set out the procedures for entering either administrative removal orders (the subject

22 of Section 1228(b)) or reinstated orders (the subject of Section 1231(a)(5)). In keeping with this

23 purpose, the regulation is contained in Part 208 of the Code of Federal Regulations, entitled

24 “Asylum and Withholding of Removal.” By contrast, separate regulatory provisions deal with the

25 procedures for the implementation of 8 U.S.C. §§ 1228 and 1231. For instance, 8 C.F.R. § 238 deals

26

27

6 8 U.S.C. § 1228(a)(1) (“Nothing in this section shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its

28 agencies or officers or any other person”); 8 U.S.C. § 1231(h)(same).

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1 with, inter alia, the procedures for issuance of administrative orders of removal pursuant to 8 U.S.C.

2 § 1228, while 8 C.F.R. § 241 deals with, inter alia, the procedures for reinstatement of removal

3 orders pursuant to 8 U.S.C. § 1231.

4

Accordingly, Plaintiffs here do not seek to seek to enforce any “benefits or rights” under §

5 1228(a)(1) or §1231. Plaintiffs raise no complaint here about the process by which Defendants

6 issued their administrative removal orders under § 1228(b) or reinstated their removal orders under §

7 1231(a)(5). Rather, their complaint lies with the manner in which Defendants have processed their

8 claims for protection under 8 C.F.R. § 208.31 after completion of the § 1228(b) and § 1231(a)(5)

9 removal processes. As such, the bars within § 1228(a)(1) and § 1231(h) cannot apply to Plaintiffs’ 10 claims.7 Accordingly, no statute or regulation precludes Plaintiffs’ claims.8

11

E. The “Exceptional Circumstances” Exception Does Not Preclude Judicial Review.

12

The “exceptional circumstances” that would allow the government to exceed the 10-day

13 requirement in a particular case is exactly that—an exception—and the Court should reject the

14 Defendants’ attempt to make the exception completely swallow the rule.

15

As an initial matter, the Court cannot evaluate Defendants’ argument regarding “exceptional

16 circumstances” on this record. The complaint does not contain any allegations of “exceptional

17 7 The Sections 1228(a)(1) and 1231(h) bars are also inapplicable here for a separate reason—they

18

apply only to a right or benefits created by statute, whereas Plaintiffs here seek to vindicate their rights under a regulation. Courts have construed similar language in a separate bar on judicial

19

review, 8 U.S.C. § 1252(a)(2)(b)(ii), to apply only to statutory claims, not regulatory ones. Compare 8 U.S.C. § 1252(a)(2)(b)(ii) (discretion “specified under this subchapter”) with 8 U.S.C. § 1228(a)(1)

20

(right or benefit created “in this section”). See also Medina-Morales v. Ashcroft, 371 F.3d 520, 52829 (9th Cir. 2004) (because “the jurisdictional bar in § 1252(a) (2)(B)(ii) applies only to acts over

21

which a statute gives the Attorney General pure discretion” and because the discretion to grant a motion to reopen “derives solely from regulations” the court “decline[d] to interpret §

22

1252(a)(2)(B)(ii) as a jurisdictional bar to our review of Medina-Morales’ motion to reopen”) (emphasis in original) (internal quotation marks and citations omitted). Because Plaintiffs seek to

23

enforce a regulatory right under 8 C.F.R. § 208.31, the bars on enforcing statutory rights in Sections 1228(a)(1) and 1231(h) are inapplicable here. Notably, the regulation here, 8 C.F.R. § 208.31, does

24

not contain a limitation on the enforceability of the rights contained therein. When the agency wants to add such a limitation, it knows how to do so. See, e.g., 8 C.F.R. § 241.15(g) (specifying that

25 rights created under that particular subsection are not “legally enforceable”).

26

8 Defendants’ reliance on Dipeppe v. Quarantillo, 337 F.3d 326 (3d Cir. 2003), is misplaced for the reasons outlined above. The petitioner there sought to enforce a provision for completion of removal

27

proceedings “as expeditiously as possible” which was contained in the statute itself, rather than a separate regulation. Id. at 333-34. Here, in contrast, the limitation is contained in a regulation that is

28 entirely separate from the statutory bars cited by Defendants.

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1 circumstances” in the Named Plaintiffs’ cases, or for the class generally, that justify the delays at

2 issue here. That alone ends consideration of Defendants’ “exceptional circumstances” claim on a

3 motion to dismiss. It is of further note, however, that Defendants’ Motion conspicuously lacks any

4 indication that Defendants in fact made a determination that “exceptional circumstances” are present

5 here. Defendants merely claim that the presence of the exception in the regulation renders this Court

6 incapable of evaluating Defendants’ compliance with the regulation, regardless of whether they

7 believe such “exceptional circumstances” apply in any Class Member’s case. The Court should

8 therefore reject Defendants’ argument. See Dong, 513 F. Supp. 2d at 1168 (refusing to find

9 exception to visa adjudication timelines applicable because government failed to expressly invoke

10 exception, or provide evidence that exception applies); Elmalky v. Upchurch, 2007 U.S. Dist. LEXIS

11 22353 (N.D. Tex. Mar. 28, 2007) (same); Lin v. Chertoff, 2007U.S. Dist. LEXIS 57964 (W.D. Okla.

12 Aug. 8, 2007) (same). The absence of supporting evidence on this point is particularly glaring given

13 Plaintiffs’ allegation that Defendants have failed to comply with the regulatory deadline for years in

14 virtually every case. Based on the allegations in the complaint, Defendants only comply with the 15 deadline in “exceptional circumstances,” if ever.9

16

Defendants also wrongly rely on Heckler v. Chaney, 470 U.S. 821 (1985). In Heckler, several

17 death row inmates alleged that the use of certain drugs for lethal injunction violated the Federal

18 Food, Drug, and Cosmetic Act, and sought to compel the Food and Drug Administration to take

19 certain enforcement actions to prevent the violations under the APA. Id. at 823. The Supreme Court

20 held that the plaintiffs’ claims were barred by APA § 701(a)(2), which precludes judicial review

21 over actions committed to agency discretion by law. Id. at 832. The Court found that the decision to

22 initiate an enforcement action was unreviewable because there was “no meaningful standard against

23 which to judge the agency’s exercise of discretion”: “an agency decision not to enforce often

24 9 Defendants’ improperly submitted “evidence” in fact belies any suggestion that the delays

25

experienced by class members are “exceptional.” Defendants’ declarations reveal that Defendants have not complied with their obligation to conduct reasonable determinations for at least 14 years,

26

and that there is therefore nothing “exceptional” about the agencies’ current burdens. (See Declaration of Elizabeth E. Mura, Headquarters Asylum Officer, U.S. Citizenship and Immigration

27

Services (“Mura Decl.”), Table 3.) Moreover, while the agency has experienced an increase in cases, the increase has occurred at a gradual rate for the past 14 years—undermining any claim that the

28 agency could not predict, and plan for, its current caseload. (See id., Table 4.)

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1 involves a complicated balancing of a number of factors which are peculiarly within its expertise”

2 and the “agency is far better equipped than the courts to deal with the many variables involved in the

3 proper ordering of its priorities.” Id. at 830-32. Accordingly, the Court adopted a “presumption of

4 unreviewability” over an agency’s prosecutorial discretion in taking enforcement actions. Id. at 832-

5 33.

6

Heckler’s concerns regarding the practicality of judicial review over agency prosecutorial

7 discretion are clearly inapplicable here for at least three reasons. First, unlike the enforcement

8 actions at issue in Heckler, Defendants have a non-discretionary duty to conduct reasonable fear

9 determinations within a “reasonable” period under the APA. A regulation can establish what

10 constitutes such a “reasonable” period even if it involves some element of discretion. See Dong, 513

11 F. Supp. 2d at 1168 (rejecting argument that regulation providing immigration official discretion to

12 extend period of time to adjudicate visa divests court of jurisdiction to consider unreasonable delay

13 claim). See generally Mazouchi v. Still, 2007 U.S. Dist. LEXIS 53999, at *14 (N.D. Cal. July 10,

14 2007) (quoting Kim v. Ashcroft, 340 F. Supp. 2d 384, 393 (S.D.N.Y. 2004)) (rejecting argument that

15 Heckler precludes review of an unreasonable delay claim and holding that “[US]CIS simply does not

16 possess unfettered discretion to relegate aliens to a state of ‘limbo,’ leaving them to languish there

17 indefinitely”). Because the Court can look to the regulation in determining whether Defendants have

18 complied with their mandatory duty to conduct reasonable fear determinations within a “reasonable

19 period,” the application of that regulation is not wholly “committed to agency action by law.”

20

Second, the question of whether there are “exceptional circumstances” warranting delay in

21 conducting a reasonable fear determination is not the type of purely discretionary decision that is

22 immune from judicial review under Heckler. The Ninth Circuit has rejected Heckler’s applicability

23 and found that it has jurisdiction to review the application of similar terminology in the immigration

24 laws. See Husyev v. Mukasey, 528 F.3d 1172, 1181 (9th Cir. 2008) (whether petitioner filed for

25 asylum within a “reasonable period” after the expiration of his lawful status); Taslimi v. Holder, 590

26 F.3d 981, 985-986 (9th Cir. 2010) (whether petitioner filed for asylum within a “reasonable period”

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1 following changed circumstances relevant to claim).10 See also Singh v. Holder, 656 F.3d 1047,

2 1051 (9th Cir. 2011) (whether petitioner met “changed circumstances” and “extraordinary

3 circumstances” exceptions to asylum filing deadline) (citing Husyev and Ramadan v. Gonzales, 479

4 F.3d 646 (9th Cir. 2007)); Ghahremani v. Gonzales, 498 F.3d 993, 998-99 (9th Cir. 2007) (whether 5 petitioner met the “due diligence” requirement to reopen an immigration case).11 As the Ninth

6 Circuit explained in Ramadan, while terms such as “changed circumstances” “involve the exercise

7 of judgment,” they are not purely discretionary because they “do[] not depend upon the identity of

8 the person or entity examining the issue,” and are “less value-laden and do[] not reflect the decision

9 maker’s beliefs in and assessment of worth and principle” than determinations such as “the quality

10 of an alien’s moral character.” Ramadan, 479 F.3d at 656 (internal quotation marks omitted).

11

The determination of “exceptional circumstances” is no more discretionary than

12 determinations of “extraordinary circumstances,” “changed circumstances,” a “reasonable period” or

13 “due diligence.” Indeed, Defendants concede that this Court has jurisdiction to determine whether

14 the delays in conducting reasonable fear determinations are “reasonable,” (see Defs.’ Mot. at 13.),

15 and therefore acknowledge that there are sufficiently “meaningful standards” by which this Court

16 can review the timeliness of reasonable fear determinations. This Court can therefore review whether

17 there are “exceptional circumstances” that justify the lengthy delays at issue here because such

18 review does “depend upon the identity of the person or entity examining the issue” and does not

19 “reflect the decision maker’s beliefs in and assessment of worth and principle.” Ramadan, 479 F.3d

20 at 656.

21 10 While the regulations at issue in Husyev and Taslimi provided some additional guidance regarding

22

what constitutes a “reasonable period,” the Ninth Circuit did not limit its analysis to whether the agency followed these guidelines and instead determined whether the delay was “reasonable” as a

23 matter of law.

24

11 Singh, Ghahremani, and Ramadan concern the applicability of 8 U.S.C. § 1252(a)(2)(B)(ii), which bars judicial review of a “decision or action” which is “specified” as discretionary by the

25

immigration laws. That bar is more “powerful” than the APA bar on review of discretionary determinations, and thus “any determination that passes the more stringent [Section

26

1252(a)(2)(B)(ii)] test, remaining subject to judicial review, also passes the lower bar of the APA test.” Ana Int’l v. Way, 393 F.3d 886, 890-891 (9th Cir. 2004). Defendants have not claimed that

27

Section 1252(a)(2)(B)(ii) applies here—nor could they, as the Ninth Circuit has construed the bar to apply only to determinations specified as discretionary by statute. See Medina-Morales v. Ashcroft,

28 371 F.3d 520, 528 (9th Cir. 2004).

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1

Third, Heckler applies where an agency makes an individualized determination to exercise

2 purely discretionary authority. That is far different than the circumstances presented here, where

3 Defendants apparently take the position that they need not abide by the 10-day requirement as a 4 rule, regardless of individual circumstances in any given case.12 The existence of a safety valve to be

5 applied in individual cases does not preclude the court from enjoining Defendants’ policy and

6 practice of imposing systemic delays in violation of a binding regulation. To conclude otherwise

7 would eviscerate the Court’s authority under the APA as well as the clear meaning of the regulation.

8 III. Defendants’ Lengthy, Unjustified Delays are Not “Reasonable” As a Matter of Law.

9

Relying on hundreds of pages of “evidence” outside the pleadings, Defendants ask this Court

10 to declare that the prolonged delays experienced by class members are “reasonable” as a matter of

11 law under the six-factor, fact-intensive test established by Telecommunications Research Action

12 Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (“TRAC”). (See Defs’ Mot. at 13-17.) But Defendants’

13 attempt to litigate the reasonableness of their systemic violations of 8 C.F.R. § 208.31(b) now, at the

14 pleadings stage, is substantively and procedurally backwards. A motion to dismiss tests the

15 sufficiency of Plaintiffs’ complaint; it is not a vehicle for Defendants to introduce untested evidence

16 and argue the underlying merits of the dispute. Here, where the complaint challenges governmental

17 delays that have resulted in immigrants “languish[ing] in detention for months and, in some cases,

18 over a year,” Defendants’ motion to dismiss must be denied. (See Compl. ¶ 7.) See also Daohua

19 Chen v. Chertoff, 2008 U.S. Dist. LEXIS 4891, at *7 (N.D. Cal. Jan. 23, 2008) (denying motion to

20 dismiss because “[w]hat constitutes an unreasonable delay in the context of immigration applications

21 depends to a great extent on the facts of the particular case”).

22

23

12 Even when it comes to discretionary determinations, courts have jurisdiction to review “categorical rules” that constrain the exercise of that discretion. For example, the Ninth Circuit has

24

held that it has jurisdiction to consider the BIA’s “categorical rule” regarding the application of “exceptional and extremely unusual hardship” determinations, even though that determination is

25

generally committed to agency discretion. See Arteaga-De Alvarez v. Holder, 704 F.3d 730, 738-739 (9th Cir. 2012). For that reason, the Defendants’ reliance on Martinez-Rosas v. Gonzales, 424 F.3d

26

926, 929-30 (9th Cir. 2005) is completely unavailing. (See Deft. Br. [Dkt. 43] at 12 (citing MartinezRosas and claiming that “exceptional and extremely unusual hardship” determinations are

27

discretionary and not subject to judicial review)). Therefore, Defendants’ blanket characterization the “exceptional circumstances” language would constitute a categorical rule that is not “committed

28 to agency discretion by law.”

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1

A. Defendants’ Presentation Of Matters Outside The Pleadings Is Improper.

2

As a threshold matter, Defendants’ extensive reliance on declarations and “evidence” outside

3 of the pleadings dooms their Motion. Rule 12(d) states:

4

Result o f Presenting Matters Outside the Pleadings. If, on a m otion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by

5

the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be give n a reason able opport unity to pr esent all th e material t hat is

6

pertinent to the motion.

7 (emphasis added). Defendants attached to their Motion the Declaration of Elizabeth E. Mura of

8 USCIS and the Declaration of John L. Lafferty, the USCIS Asylum Division Chief (“Lafferty

9 Decl.”). (See Defs.’ Mot. at 14.) Ms. Mura purports to introduce fifteen years of agency statistics and

10 data that she compiled to support Defendants’ Motion (Mura Decl. ¶ 4); Mr. Lafferty, for his part,

11 testifies to the factual circumstances that he believes justify the agency’s delays. (See Lafferty Decl.)

12 The allegations laid out in these affidavits are central to Defendants’ arguments. (See Defs.’ Mot. at

13 12-17 (citing the affidavits in three of five relevant sections).) At this stage, Plaintiffs have had no

14 opportunity to present material in response to Defendants’ evidence or otherwise test it through the 15 discovery process.13

16

These documents are outside the pleadings and cannot be used to support a motion to

17 dismiss. See Fed. R. Civ. P. 12(d). Moreover, they are not referenced in the complaint and are not

18 central to Plaintiffs’ claims. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). Indeed, on their

19 own terms, these declarations were compiled and generated expressly for Defendants’ Motion. (See

20 Mura Decl. ¶ 4; Lafferty Decl.) Therefore, the Court either must ignore them or convert the

21 Defendants’ mislabeled Motion to Dismiss into a Motion for Summary Judgment and permit

22 Plaintiffs to proceed to discovery. See Delaney v. Aurora Loan Servicing, 2009 U.S. Dist. LEXIS

23 122573, at *5 (N.D. Cal. 2009) (converting motion to dismiss to a Rule 56 motion for summary

24 judgment); Roshandel v. Chertoff, 2008 U.S. Dist. LEXIS 90899, at *9-10 (W.D. Wash. May 5,

25 2008) (in class action challenging delays in processing naturalization applications, striking

26

27

13 Notably, these declarations were not introduced to advance Defendants’ Rule 12(b)(1) argument: the heading of the section where they are first introduced is titled “Lastly, Plaintiffs have failed to

28 state a claim that USCIS violated 8 C.F.R. § 208.31(b).” (Defs.’ Mot. at 13.)

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1 government declarations submitted in support of motion to dismiss because they “go to the merits of

2 Plaintiffs’ claims, in particular, whether the agency delay in processing name checks is ‘reasonable’”

3 and therefore “may only be considered in a separate motion for summary judgment.”)

4

B. The “Reaso nableness” Of De fendants’ Dela ys Cannot Be Resol ved On Th e

Pleadings. 5
Putting aside Defendants’ violations of the Federal Rules, Defendants have fallen far short of

6 meeting their burden of to show that Plaintiffs’ complaint does not establish a “plausible” claim that

7 the delays at issue here are not “reasonable” under TRAC. See Twombly, 550 U.S. at 556. The TRAC

8 test requires the Court to balance six heavily fact-dependent factors—a quintessentially factual

9 inquiry that should only be undertaken after the parties, and the Court, have the benefit of

10 considering the facts developed through the discovery process. See TRAC, 750 F.2d at 80

11 (articulating standard as “(1) the time agencies take to make decisions must be governed by a rule of

12 reason; (2) where Congress has provided a timetable or other indication of the speed with which it

13 expects the agency to proceed in the enabling statute, that statutory scheme may supply content for

14 this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less

15 tolerable when human health and welfare are at stake; (4) the court should consider the effect of

16 expediting delayed action on agency activities of a higher or competing priority; (5) the court should

17 also take into account the nature and extent of the interests prejudiced by delay; and (6) the court

18 need not find any impropriety lurking behind agency lassitude in order to hold that agency action is

19 unreasonably delayed”) (internal quotation marks and citations omitted). For this reason, courts have

20 generally not resolved “reasonableness” claims under the APA “absent circumstances suggesting

21 that Plaintiff’s claim is frivolous.” Feng, 2014 U.S. Dist. LEXIS 33908, at *3-4; Daohua Chen v.

22 Chertoff, 2008 U.S. Dist. LEXIS 4891, at *7 (N.D. Cal. Jan. 23, 2008); Saini v. United States

23 Citizenship & Immigration Servs., 553 F. Supp. 2d 1170 (E.D. Cal. 2008).

24 Here, even if the Court were to agree that the TRAC analysis should apply, the complaint

25 easily alleges sufficient facts to establish the unreasonableness of the delays. (See, e.g., Compl. ¶¶ 7,

26 29 (alleging that “rarely if ever” do the agencies provide timely determinations and that some class

27 members have been waiting in prison over a year); ¶¶ 24-30 (describing the role of the reasonable

28

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1 fear interviews in the statutory scheme and the cascading effect of delays so early in the process); ¶¶

2 31-59 (surveying the “drastic human consequences” on Plaintiffs and their families caused by

3 Defendants’ violations, including depression, despair, and financial and emotional deprivation).)

4 Defendants’ motion must therefore be denied.

5

CONCLUSION

6

For all the above stated reasons, Plaintiffs respectfully ask that the court deny the

7 Defendants’ Motion to Dismiss, and grant such other further relief to Plaintiffs as the Court deems

8 appropriate.

9 DATED: August 18, 2014
10

Respectfully submitted.

11 For Plaintiffs: /s/
12 Michael Kaufman
13 Carmen G. Iguina Ahilan T. Arulanantham
14 ACLU FOUNDATION OF SOUTHERN CALIFORNIA
15 1313 West 8th Street Los Angeles, CA 90017
16 mkaufman@aclu-sc.org ciguina@aclu-sc.org
17 aarulanantham@aclu-sc.org Tel.: (213) 977-5232
18 Fax: (213) 417-2232

John D. Pingel
Charles Roth Claudia Valenzuela NATIONAL IMMIGRANT JUSTICE CENTER A HEARTLAND ALLIANCE PARTNER 208 South LaSalle, Suite 1300 Chicago, Illinois 60604 croth@heartlandalliance.org cvalenzuela@heartlandalliance.org Tel.: (312) 660-1308 Fax: (312) 660-1505

19 Julia Harumi Mass AMERICAN CIVIL LIBERTIES
20 UNION FOUNDATION OF NORTHERN CALIFORNIA
21 39 Drumm Street San Francisco, CA 94111
22 jmass@aclunc.org Tel.: (415) 621-2493
23 Fax: (415) 255-8437

James A. Rolfes David Z. Smith Joseph B. Prater Timothy R. Carraher REED SMITH LLP 10 South Wacker Drive Chicago, Illinois 60606 jrolfes@reedsmith.com dzsmith@reedsmith.com jprater@reedsmith.com tcarraher@reedsmith.com Tel.: (312) 207-1000 Fax: (312) 207-6400
John D. Pingel REED SMITH LLP 101 Second St., Suite1800 San Francisco, CA 94105 jpingel@reedsmith.com Tel.: (415) 543-8700 Fax: (415) 391-8269

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UNITED STATES DISTRICT COURT

7

NORTHERN DISTRICT OF CALIFORNIA

8

MARCO ANTONIO ALFARO GARCIA, ET AL.,

9

Case No. 14-cv-01775-YGR

Plaintiffs,

10

v.

ORDER DENYING MOTION TO DISMISS;

11

GRANTING MOTION FOR CLASS

JEH JOHNSON, ET AL., 12

CERTIFICATION

Defendants.

13

United States District Court Northern District of California

14

15

Plaintiffs Marco Antonio Alfaro Garcia (“Alfaro”), Credy Madrid Calderon (“Madrid”),

16 Gustavo Ortega (“Ortega”), and Claudia Rodriguez de la Torre (“Rodriguez”) (collectively, 17 “plaintiffs”)1 bring this putative class action against Defendants Jeh Johnson, et al. (“defendants”)

18 seeking review of processes employed by the Asylum Division of the United States Citizenship

19 and Immigration Services (“USCIS”). The gravamen of the complaint alleges a failure to conduct

20 in a timely manner “reasonable fear” determinations under 8 C.F.R. section 208.31(b) (“Section

21 208.31(b)”). Plaintiffs contend that USCIS is required to complete such determinations within 10

22 days of referral to an asylum officer, but that the government has essentially abdicated its duty to

23 comply with this mandate. As a result, plaintiffs allege that individuals are held for months in

24 detention while they await hearings on their claims. Plaintiffs seek declaratory and mandamus

25 relief on the following two causes of action: (1) violation of the Administrative Procedure Act

26

27

1 One named plaintiff, Nancy Bardalez Serpa, is no longer a member of the defined class.

28

Accordingly, plaintiffs have represented they will voluntarily dismiss her claims. (Dkt. No. 40 at 3 n.1.)

1 (“APA”), 5 U.S.C. sections 555(b) (requiring agency action in a “reasonable time”) and 706(1)

2 (providing that a reviewing court shall . . . “compel agency action unlawfully withheld or

3 unreasonably delayed”); and (2) violation of Section 208.31, which requires that the USCIS

4 complete these reasonable fear determinations within 10 days of referral to an asylum officer.

5 (Dkt. No. 1 (“Complaint”) at ¶¶ 71-79.)

6

Now before the Court are two motions: defendants’ motion to dismiss on the grounds that

7 this Court lacks jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and that plaintiffs

8 have failed to state a claim under Federal Rule of Civil Procedure 12(b)(6) (Dkt. No. 43), and

9 plaintiffs’ motion for class certification under Federal Rule of Civil Procedure 23(b)(2) (Dkt. No.

10 12). On September 30, 2014, the Court heard argument on both motions.

11

Having carefully considered the papers submitted and the pleadings in this action, the

United States District Court Northern District of California

12 arguments of counsel presented at the hearing, and for the reasons set forth below, the Court

13 hereby DENIES the motion to dismiss, and GRANTS plaintiffs’ motion for class certification.

14

I.

FACTUAL BACKGROUND

15

A. Statutory and Regulatory Structure

16

As a signatory to the United Nations Convention Against Torture and Other Cruel,

17 Inhuman or Degrading Treatment or Punishment (“CAT”), the United States has agreed not to

18 “expel, return, (“refouler”) or extradite a person to another State where there are substantial

19 grounds for believing that he or she would be in danger of being subjected to torture.” Foreign

20 Affairs Reform and Restructuring Act of 1998 § 2242, Pub. L. 105-227, 112 Stat. 2681, 2681-821;

21 see also Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8,478-01. By

22 statute, an individual may seek withholding of removal if his or her “life or freedom would be

23 threatened in that country because of [his/her] race, religion, nationality, membership in a

24 particular social group, or political opinion.” 8 U.S.C. section 1231(b)(3)(A). If an individual

25 qualifies for protection, “withholding of removal is mandatory under the [CAT] implementing

26 regulations.” Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005).

27

28 2

1

On February 19, 1999, the Immigration and Naturalization Service (“INS”)2 adopted

2 interim regulations in an effort to comply with the United States’ international obligations under

3 the CAT. See Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8,478 (Feb.

4 19, 1999). These regulations sought to provide fair and efficient procedures by which the United

5 States would ensure that individuals who have a reasonable fear of torture and persecution are not

6 returned to their countries of origin “within the overall regulatory framework for the issuance of

7 removal orders and decisions about the execution of such order.” 64 Fed. Reg. at 8,479. “To this

8 end, [the Agency] designed a system that will allow aliens subject to the various types of removal

9 proceedings currently afforded by the immigration laws to seek, and where eligible, to be accorded

10 protection under [the CAT]. At the same time, [the Agency] created mechanisms to quickly

11 identify and resolve frivolous claims to protection so that the new procedures cannot be used as a

United States District Court Northern District of California

12 delaying tactic by aliens who are not in fact at risk.” Id.

13

Section 208.31 of the regulations applies to two types of individuals subject to removal:

14 those who are subject to reinstatement of removal orders and those who are subject to final

15 administrative orders of removal. If a person falling into either of those categories expresses a

16 fear of return, he or she is subject to a two-part review process to determine if he or she qualifies

17 for withholding of removal or relief. 8 C.F.R. § 208.31(a). The first step (at issue here) occurs

18 “upon issuance” of the final administrative order or the notice of reinstatement of removal. An

19 individual who expresses such fear is referred to an asylum officer for a reasonable fear

20 determination. See 8 C.F.R. § 208.31(b). Of particular relevance to this case is the final sentence

21 in Section 208.31(b):

22

23

(b) Initiation of reasonable fear determination process. Upon issuance of a Final Administrative Removal Order under §238.1 of

24

this chapter, or notice under §241.8(b) of this chapter that an alien is

25

26

2 On March 1, 2003, the functions of the former INS were transferred from the Department

of Justice to three distinct components (United States Immigration and Customs Enforcement, 27 United States Customs and Border Protection, and USCIS) in the newly formed Department of

28

Homeland Security (“DHS”). See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002).

3

subject to removal, an alien described in paragraph (a) of this

1

section shall be referred to an asylum officer for a reasonable fear

2

determination. In the absence of exceptional circumstances, this

determination will be conducted within 10 days of the referral.

3

4 8 C.F.R. § 208.31(b) (emphasis supplied); see also Regulations Concerning the Convention

5 Against Torture, 64 Fed. Reg. 8478-01. The second step concerns what occurs after that initial

6 determination has been rendered. Persons who are found to have a reasonable fear of persecution

7 or torture are referred to an Immigration Judge for full consideration of their claims for

8 withholding of removal under 8 U.S.C. section 1231(b)(3), or withholding or deferral of removal

9 under 8 C.F.R. sections 208.16 and 208.17. 8 C.F.R. § 208.31(e). A person whom USCIS

10 determines not to have a reasonable fear of persecution may request that an Immigration Judge

11 review USCIS’s determination. If the Immigration Judge disagrees with USCIS, the person may

12 pursue full consideration of his or her reasonable fear claim before the Immigration Judge. 8

United States District Court Northern District of California

13 C.F.R. § 208.31(f)-(g).

14

Plaintiffs allege that the above regulatory process is designed to ensure that reasonable fear

15 claims are heard in a fair and timely manner. (See Compl. ¶¶ 19- 22.) According to plaintiffs,

16 Section 208.31 requires timely resolution of reasonable fear claims because plaintiffs and other

17 similarly situated individuals are subject to imprisonment while they await reasonable fear

18 determinations. (Compl. ¶ 23.) Despite Section 208.31’s mandate, plaintiffs allege that

19 defendants have “rarely” complied with the 10-day deadline, leaving plaintiffs and others similarly

20 situated to “languish in detention for months and, in some cases, over a year” at great emotional,

21 physical, and financial cost to these individuals and their families. (See Compl. ¶¶ 7, 31-59

22 (describing harms caused by defendants’ violations, including depression, despair, and financial

23 and emotional deprivation).) According to the complaint, defendants have wholly abandoned any

24 effort to comply with Section 208.31. Instead, defendants have developed a new, less demanding

25 timeframe, effectively supplanting the timeframe set forth in Section 208.31.

26

Plaintiffs thus seek relief under the Administrative Procedure Act (“APA”) and the

27 Mandamus and Venue Act to compel defendants to comply with their mandatory legal obligations,

28 and to cease their unreasonable delays in processing plaintiffs’ claims for relief. (See id. ¶¶ 8, 71-

4

1 79.)

2

B. Individual Plaintiffs

3

1. Marco A. Alfaro Garcia

4

Plaintiff Alfaro Garcia is a native and citizen of El Salvador. (Compl. ¶ 9.) Mr. Alfaro

5 Garcia first entered the United States on September 12, 2005, at or near Lukeville, Arizona.

6 (Defs.’ Mot. Ex. 1-B, Form I-205, Warrant of Removal/Deportation.) On September 28, 2005,

7 the Immigration Judge ordered that Mr. Alfaro Garcia be removed to El Salvador and he was

8 removed from the United States on September 29, 2005. (Id. Ex. 1-B.) On or about March 2007,

9 Mr. Alfaro Garcia returned to the United States. On January 14, 2014, he was arrested in Los

10 Angeles, California, for driving under the influence, and on January 16, 2014, ICE took him into

11 custody. (Id. Ex. 1-A.) That same day, an ICE officer issued an order reinstating Mr. Alfaro

United States District Court Northern District of California

12 Garcia’s order of removal to El Salvador. (Id. Ex. 1-D, I-871, Notice of Intent/Decision to

13 Reinstate Prior Order.) Mr. Alfaro Garcia promptly expressed his fear of returning to El Salvador

14 shortly after being taken into immigration custody, and on January 28, 2014, Mr. Alfaro Garcia

15 was referred to USCIS for a reasonable fear determination. (Id. Ex. 1-C, Record of Sworn

16 Statement in Administrative Proceedings; Ex. 1-E, Email from Michael McDaniel.) USCIS

17 interviewed Mr. Alfaro Garcia on or about February 11, 2014. (Id. Ex. 1-F, Form I-899, Record

18 of Determination/Reasonable Fear Worksheet.) USCIS issued a decision on April 25, 2014,

19 concluding that Mr. Alfaro Garcia did not have a reasonable fear of persecution in El Salvador.

20 (Id. Ex. 1-F, Form I-898, Record of Negative Reasonable Finding and Request for Review by

21 Immigration Judge.)

22

Mr. Alfaro Garcia alleges that defendants’ failure to provide him a reasonable fear

23 determination within the prescribed 10-day period, instead delaying such determination for almost

24 three months, has harmed him by prolonging his detention and delaying his right to be heard on

25 his claims for relief.

26

2. Credy Madrid Calderon

27

Plaintiff Madrid Calderon is a native and citizen of Honduras. (Compl. ¶ 10.) Mr. Madrid

28 Calderon first entered the United States on November 28, 2004 at or near Laredo, Texas. (Defs.’ 5

1 Mot. Ex. 2-A.) On May 25, 2005, he was ordered removed to Honduras. (Id. Ex. 2-B,

2 Memorandum and Order.) Mr. Madrid Calderon was removed to Honduras on or about

3 September 27, 2013. (Id. Ex. 2-C, Form I-871; Notice of Intent/Decision to Reinstate Prior Order.)

4 Subsequently, on or about March 2, 2014, Mr. Madrid Calderon attempted to reenter the United

5 States at or near Laredo, Texas, and on March 6, 2014, ICE issued an order reinstating Mr.

6 Madrid Calderon’s order of removal. (Id. Exs. 2-C, 2-D.) On or about April 3, 2014, USCIS

7 notified Mr. Madrid Calderon that he was scheduled for a reasonable fear interview, which was

8 conducted or about May 12, 2014. (Id. Ex. 2-E, Form M-488, Information about Reasonable Fear

9 Interview; Ex. 2-F, Form I-899, Record of Determination/Reasonable Fear Worksheet.) On May

10 29, 2014, USCIS determined that Mr. Madrid Calderon had a reasonable fear of persecution or

11 torture. (Id. Ex. 2-G, Form I-863, Notice of Referral to the Immigration Judge.)

United States District Court Northern District of California

12

Mr. Madrid Calderon alleges that because he did not receive a reasonable fear

13 determination in his case for well in excess of 10 days after being referred for a reasonable fear

14 interview, he was harmed by his prolonged detention and delayed right to be heard on his claim.

15

3. Gustavo Ortega

16

Plaintiff Ortega is a native and citizen of Mexico. (Compl. ¶ 11.) Mr. Ortega first entered

17 the United States in September 2009 at or near Arizona. (Defs.’ Mot. Ex. 3-A.) On January 23,

18 2014, Mr. Ortega was convicted of an aggravated felony, to wit, assault with a deadly weapon

19 likely to cause great bodily injury, in violation of section 245(a)(1) of the California Penal Code.

20 (Id. Ex. 3-B, Waiver on Plea of Guilty/No Contest, People v. Ortega.) On February 27, 2014, ICE

21 issued a final administrative order of removal against Mr. Ortega. (Id. Ex. 3-C, Form I-851 and

22 Form I-851A.) On or about February 26, 2014, Mr. Ortega expressed a fear of return to Mexico.

23 (Id. Exs. 3-A; 3-C.)

24

On or about February 28, 2014, USCIS provided notice to Mr. Ortega that he was

25 scheduled for a reasonable fear interview. (Id. Ex. 3-D, Form G-56, Notice of Reasonable Fear

26 Interview; Ex. 3-E, Form M-488, Information About Reasonable Fear Interview.) USCIS

27 interviewed Mr. Ortega on or about March 25, 2014. (Id. Ex. 3-F, Form I-899, Record of

28 Determination/Reasonable Fear Worksheet.) Just over two months later, USCIS issued a decision 6

1 on April 29, 2014, concluding that Mr. Ortega did not have a reasonable fear of persecution. (Id.

2 Ex. 3-G, Form I-898, Record of Negative Reasonable Fear Finding.) Mr. Ortega claims that

3 defendants’ failure to provide him a reasonable fear determination within the prescribed 10-day

4 period prolonged his detention and delayed his right to be heard on his claims for relief.

5

4. Claudia Rodriguez de la Torre

6

Plaintiff Rodriguez is a native and citizen of Mexico. (Compl. ¶ 12.) In 1998, Ms.

7 Rodriguez first entered the United States at or near San Luis, Arizona. (Defs.’ Mot. Ex. 4-A.) On

8 January 2, 2014, Ms. Rodriguez was convicted of an aggravated felony, to wit, possession of a

9 controlled substance for sale in violation of title 40, section 453.337 of the Nevada Revised

10 Statutes. (Id. Ex. 4-B, Judgment, State v. Rodriguez-de la Torre, No. CR13-1802 (Washoe Cnty.

11 Dist. Ct Jan. 2, 2014).) On January 21, 2014, Ms. Rodriguez was issued a final administrative

United States District Court Northern District of California

12 order of removal. (Id. Ex. 4-C, Form I-851; Ex. 4-D, Form I-851A.) That same day, Ms.

13 Rodriguez expressed a fear of return to Mexico. (Id. Ex. 4-C.)

14

On or about January 31, 2014, Ms. Rodriguez was referred to USCIS for a reasonable fear

15 determination. (Id. Ex. 4-E, Email from Justin Smith.) USCIS interviewed Ortega on or about

16 February 6, 2014. (Id. Ex. 4-F, Form I-899.) Approximately three months later, USCIS issued a

17 decision on April 23, 2014, concluding that Ms. Rodriguez established that she had a reasonable

18 fear of persecution in Mexico. (Id. Ex. 4-G, Form I-863.) Ms. Rodriguez claims that defendants’

19 failure to provide her a reasonable fear determination within the prescribed 10-day period

20 prolonged her detention and delayed her right to be heard on her claims for relief.

21

II. MOTION TO DISMISS FOR LACK OF JURISDICTION

22

A. Legal Standard

23

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a complaint may be

24 dismissed for lack of subject matter jurisdiction. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th

25 Cir. 2014). The Court may consider affidavits and other evidence in order to be satisfied that

26 jurisdiction exists. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040 n.2 (9th Cir. 2003).

27 As the party asserting subject matter jurisdiction, the plaintiff bears the burden of establishing that

28 jurisdiction exists. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 376-78 (1994). 7

1

B. Jurisdiction under the APA and Mandamus Act

2

Plaintiffs premise the Court’s jurisdiction on the Administrative Procedure Act and the

3 mandamus statute, codified at 28 U.S.C. § 1361. Under the Mandamus and Venue Act of 1962,

4 “[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to

5 compel an officer or employee of the United States or any agency thereof to perform a duty owed

6 to the plaintiff.” Mandamus is available only when (1) the plaintiff’s claim is clear and certain; (2)

7 the defendant official’s duty is ministerial and so plainly prescribed as to be free from doubt; and

8 (3) no other adequate remedy is available. Johnson v. Reilly, 349 F.3d 1149, 1154 (9th Cir. 2003);

9 Lowry v. Barnhart, 329 F.3d 1019, 1021 (9th Cir. 2003). Even if this test is met, a district court

10 has discretion to deny relief. Johnson, 349 F.3d at 1154.

11

The Administrative Procedure Act (“APA”) “authorizes suit by ‘[a] person suffering legal

United States District Court Northern District of California

12 wrong because of agency action, or adversely affected or aggrieved by agency action within the

13 meaning of a relevant statute.’ ” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 61 (2004)

14 (quoting 5 U.S.C. § 702). “[A] claim under § 706(1) can proceed only where a plaintiff asserts

15 that an agency failed to take a discrete agency action that it is required to take.” Id. at 64

16 (emphasis in original). Although the APA does not provide an independent basis for subject

17 matter jurisdiction, see Califano v. Sanders, 430 U.S. 99, 107 (1977), the APA, in conjunction

18 with federal question jurisdiction under 28 U.S.C. section 1331, may vest a federal court with

19 jurisdiction to “compel agency action unlawfully withheld or unreasonably delayed.” See, e.g.,

20 Elmalky v. Upchurch, No. 06-cv-2359, 2007 WL 944330, at *2 (N.D. Tex. March 28, 2007); Yu v.

21 Brown, 36 F. Supp. 2d 922, 928–29 (D.N.M. 1999). Thus, “district courts have jurisdiction to

22 review agency action as part of their general federal question jurisdiction, 28 U.S.C. § 1331.”

23 Proyecto San Pablo v. I.N.S., 189 F.3d 1130, 1136 n. 5 (9th Cir. 1999).

24

The jurisdictional dimensions of the APA and the Mandamus Act are considered to be

25 coextensive for purposes of compelling agency action that has been unreasonably delayed.

26 Where, as here, the relief sought is identical under the APA and the mandamus statute, proceeding

27 under one as opposed to the other is not significant. See Dong v. Chertoff, 513 F. Supp. 2d 1158,

28 1161-62 (N.D. Cal. 2007) (citing Independence Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th 8

1 Cir.1997); Hernadez–Avalos v. I.N.S., 50 F.3d 842, 845 (10th Cir. 1995) (citation omitted) (“ ‘[a]

2 mandatory injunction [issued under the APA] . . . is essentially in the nature of mandamus’ ”)).

3 “Although the exact interplay between these two statutory schemes has not been thoroughly

4 examined by the courts, the Supreme Court has construed a claim seeking mandamus under the

5 MVA [Mandamus and Venue Act], ‘in essence,’ as one for relief under § 706 of the APA.”

6 Independence Mining, 105 F.3d at 507 (citing Japan Whaling Ass’n v. Am. Cetacean Soc'y, 478 7 U.S. 221, 230 n. 4 (1986)).3

United States District Court Northern District of California

8

9

3 Defendants argue that plaintiffs’ claims are precluded by statute. (Mot. at 10.) Defendants assert that the Immigration and Nationality Act, 8 U.S.C. sections 1228(a)(1) and

10 1231(h), precludes this case pursuant to the following provision: “nothing in this section shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any

11 party against the United States or its agencies or officers or any other person.” 8 U.S.C. §§

1228(a)(1); 1231(h). The Court finds this argument unpersuasive. Sections 1228 and 1231 relate 12 to the administrative removal and reinstatement proceedings. By its terms, the preclusion

13

provision in both of those sections relates to those sections specifically. See 8 U.S.C. § 1228(a)(1) (“Nothing in this section . . ..”); 8 U.S.C. §1231(h) (same). The regulation at issue here, however,

14 implements CAT and was enacted to evaluate torture claims. Although it exists and is implemented within the context of processing such removals, Section 208.31 operates

15 independently and for a unique purpose. The preclusion provision in Sections 1228 and 1231

relate to claims seeking to enforce those particular provisions. Section 208.31 simply does not fall 16 within that scope.

17

Defendants argue for the first time in their reply brief that this Court cannot entertain the

instant case because the Foreign Affairs Reform and Restructuring Act of 1989 (“FARRA”), Pub.

18 L. No. 105-277, § 2242, 112 Stat. 2681, 2681-822, limits review of claims arising under CAT or its implementing regulations to those involving a final order of removal. (Reply at 8.) FARRA

19 Section 2242(d) provides:

20

(d) REVIEW AND CONSTRUCTION.—Notwithstanding any

21

other provision of law, and except as provided in the regulations

described in subsection (b), no court shall have jurisdiction to

22

review the regulations adopted to implement this section, and

nothing in this section shall be construed as providing any court

23

jurisdiction to consider or review claims raised under the

24

Convention or this section, or any other determination made with respect to the application of the policy set forth in subsection (a),

25

except as part of the review of a final order of removal pursuant to

section 242 of the Immigration and Nationality Act (8 U.S.C. §

26

1252).

27 FARRA § 2242(d). Defendants argue that the FARRA provides that a court may review claims

28

under the Convention Against Torture only as part of review of a final order of removal and that therefore this case must be dismissed. (Reply at 8 (citing Hamoui v. Ashcroft, 389 F.3d 821, 826

9

1

C. Discussion

2

In Norton, 542 U.S. 55, the Supreme Court held that “the only agency action that can be

3 compelled under the APA is action legally required.” Id. at 63. It follows that an agency’s delay

4 in acting “cannot be unreasonable with respect to action that is not required.” Id. n.1.

5

In order to establish jurisdiction, plaintiffs must establish that defendants had a clear,

6 nondiscretionary duty to conduct reasonable fear determinations within the timeframe set forth in

7 Section 208.31. Defendants contend that Section 208.31 does not create such a duty. (Mot. at 7-

8 11.) The gravamen of defendants’ 12(b)(1) motion is that the time period set forth in Section

9 208.31 is subject to the agency’s discretion, and that therefore compliance with Section 208.31

10 falls outside the scope of the APA. Put differently, it is defendants’ argument that because Section

11 208.31 does not require the agency to conduct the reasonable fear determinations within the 10-

United States District Court Northern District of California

12 day timeframe, petitioner cannot ask this Court to compel it to do so.

13

Defendants offer various arguments in support of this position: (i) that Section 208.31

14 does not provide a legally cognizable, actionable right for plaintiffs or members of the class; (ii)

15 the implementation of Section 208.31 is committed to agency discretion by law; and (iii) that

16 Section 208.31 does not impose any mandatory deadline for agency action. Separately, defendants

17 argue that because each of the named plaintiffs has received reasonable fear determinations, their

18 individual claims are moot and must be dismissed. (Mot. at 6-7.)

19

The Court disagrees as to both of defendants’ arguments and finds that it properly has

20 jurisdiction over this case. The following discussion addresses first the question of whether a

21 violation of Section 208.31(b) falls within this Court’s jurisdiction, and second, the question of

22

23 (9th Cir. 2004) (citing FARRA, § 2242(d)).) Aside from the improper assertion of a new theory

24

for the first time in a reply brief, this argument is unavailing. Plaintiffs do not seek to enforce the United States’ obligations under the CAT generally. The question presented to the Court is

25 narrower: whether the regulation promulgated by the agency as a means of implementing CAT creates legally actionable rights for individuals such as plaintiffs. The import of this distinction is

26 made all the more apparent by the fact that Section 2242’s jurisdiction limiting provision contains

an exception that contemplates that regulations promulgated by the agencies may “provide” 27 jurisdiction for judicial review. See FARRA § 2242(b) and (d). Thus, FARRA does not bar the

28 Court’s jurisdiction in this case.

10

1 whether plaintiffs here qualify for an exception to the mootness doctrine.

2

i. The Meaning of Section 208.31

3

The central questions in this case are ones no other court has yet had occasion to consider:

4 Does Section 208.31(b) require agency action within a specified timeframe? Does Section

5 208.31(b) confer a benefit on individuals who await reasonable fear determinations such that the

6 agency is obligated to comply with its own regulation? For the reasons set forth below, the Court

7 finds that Section 208.31(b) does require the agency to complete reasonable fear determinations

8 within 10 days as a general matter, and that the agency is not free to undertake reasonable fear

9 determinations without regard to the timeframe specified in the regulation.

10

The interpretation of Section 208.31 properly begins with the plain language.

United States District Court Northern District of California

11

(b) Initiation of reasonable fear determination process. Upon

12

issuance of a Final Administrative Removal Order under §238.1 of

13

this chapter, or notice under §241.8(b) of this chapter that an alien is

subject to removal, an alien described in paragraph (a) of this

14

section shall be referred to an asylum officer for a reasonable fear

determination. In the absence of exceptional circumstances, this

15

determination will be conducted within 10 days of the referral.

16 8 C.F.R. § 208.31(emphasis supplied). A straightforward reading of Section 208.31 demonstrates
17 that the agency is required to take an action: “upon issuance” of an administrative order of
18 removal or reinstatement of removal, the agency “will [] conduct[]” a reasonable fear
19 determination. Id. Section 208.31 then sets forth a timeline for that action: the determination
20 “will” occur within “10 days of the referral” “[i]n the absence of exceptional circumstances.” Id.
21 There is nothing in Section 208.31 to suggest that that the agency has discretion to avoid making
22 the determinations, nor is there any support for the notion that the agency has unlimited discretion
23 to delay these determinations. Quite to the contrary, the regulation evinces a strong preference
24 that the agency conduct these proceedings expeditiously – only “exceptional circumstances” can
25 justify delays longer than 10 days. Thus, the regulation requires that generally, the agency will
26 conduct reasonable fear determinations within the 10 day timeframe.
27 That Section 208.31 imposes a non-discretionary duty on the USCIS to conduct these
28

11

1 determinations within 10 days in the ordinary course makes sense given the policy purpose of the

2 regulatory scheme. The United States has agreed not to “expel, return, (“refouler”) or extradite a

3 person to another State where there are substantial grounds for believing that he or she would be in

4 danger of being subjected to torture.” See Foreign Affairs Reform and Restructuring Act of 1998

5 § 2242, Pub. L. 105-227, 112 Stat. 2681, 2681-821; see also Regulations Concerning the

6 Convention Against Torture, 64 Fed. Reg. 8,478-01. Accordingly, an individual may seek

7 withholding of removal if his or her “life or freedom would be threatened in that country because

8 of [his/her] race, religion, nationality, membership in a particular social group, or political

9 opinion.” 8 U.S.C. section 1231(b)(3)(A). “Withholding of removal is mandatory under the

10 [CAT] implementing regulations” if an individual is found to have a reasonable fear of return.

11 Nuru, 404 F.3d at 1216.

United States District Court Northern District of California

12

The regulatory scheme of which Section 208.31 is a part was intended to balance the

13 United States’ obligations under the CAT, while also accommodating the nation’s interest in

14 having effective immigration laws. To that end, the regulations were designed to provide “fair and

15 efficient procedures” to ensure compliance with the CAT obligations “within the overall

16 regulatory framework for the issuance of removal orders and decisions about the execution of such

17 order.” 64 Fed. Reg. at 8,479. The Federal Register reflects that the INS had “designed a system

18 that will allow aliens subject to the various types of removal proceedings currently afforded by the

19 immigration laws to seek, and where eligible, to be accorded protection under Article 3. At the

20 same time, [the INS] created mechanisms to identify quickly and resolve frivolous claims to

21 protection so that the new procedures cannot be used as a delaying tactic by aliens who are not in

22 fact at risk.” Id.

23

In light of both the purpose and language of Section 208.31, it is apparent that the

24 regulation at issue here confers benefits on both the individuals and the agency. The regulations

25 created a process to guarantee that the United States would not return individuals to their countries

26 of origin where doing so could result in torture or persecution. Given the context in which the

27 regulations were promulgated, it is apparent that the right of individuals not to be subjected to

28 such treatment was of paramount importance. As part of that regulatory scheme, Section 12

1 208.31(b) provides a mechanism and process to ensure that individuals who reasonably fear

2 torture and persecution can be protected. Moreover, one objective of the regulations was to

3 provide such individuals “fair” process and timely opportunity to be heard. 64 Fed. Reg. at 8,479.

4 Finally, while they await hearings on their reasonable fear claims, individuals are held in

5 detention; functionally, the regulation ensures that such detention is limited unless exceptional

6 circumstances warrant a delay.

7

Section 208.31, read in a straightforward manner, properly recognizes the vital liberty

8 interest at play in these reasonable fear determinations. It thus limits the deprivation of that liberty

9 interest both for the individuals who do possess a reasonable fear of return and for whom

10 withholding of removal is mandatory, see Nuru, 404 F.3d at 1216, and for the individuals who do

11 not and are therefore subject to removal. At the same time, the regulation ensures that the agency

United States District Court Northern District of California

12 expeditiously resolves reasonable fear claims, which as a practical matter conserves resources, and

13 ensures that the agency is able to continue to remove individuals who are not found to have

14 reasonable fears of return. See 64 Fed. Reg. at 8,479. Thus, Section 208.31 balances various

15 competing interests: the liberty interest of the individuals, and the interest of the agency in

16 efficiently managing its processing of removals.

17

Defendants assert four arguments to contest jurisdiction. The first is procedural.

18 Defendants’ position that the regulation is merely “hortatory,” a “procedural rule,” or an “internal

19 administrative processing guideline” and does not confer any right on the individual detained or

20 create any mandatory duty for the agency fails. (Mot. at 8-11.) As set forth above, Section 208.31

21 is not merely a procedural rule assisting the orderly transaction of business. Cf. Am. Farm Lines v.

22 Black Ball Freight Servs., 397 U.S. 532, 539 (1970) (finding that an administrative agency has

23 discretion to relax or modify its procedural rules adopted for the orderly transaction of business

24 before it); Health Sys. Agency of Oklahoma v. Norman, 589 F.2d 486, 489-90 (10th Cir. 1978)

25 (finding that agencies may waive compliance with their own procedural rules in certain instances,

26 for example, where the purpose of the rule is for “the orderly transaction of business before it”).

27 Rather, Section 208.31 impacts the liberty right of individuals and sets in place limitations on the

28 agency’s deprivation of that right. Where, as here, “the rights of individuals are affected, it is 13

1 incumbent upon agencies to follow their own procedures. This is so even where the internal

2 procedures are possibly more rigorous than otherwise would be required.” Morton v. Ruiz, 415

3 U.S. 199, 235 (1974). The Court therefore finds that the agency cannot unilaterally disregard the

4 requirements in Section 208.31, as plaintiffs allege has happened here.

5

Second, defendants further argue that Section 208.31 does not create an enforceable

6 obligation on the agency because neither the regulation nor the statute provides a penalty in the

7 event that the Agency does not provide the reasonable fear determination within 10 days. (Mot. at

8 8-10 (citing various cases involving government deadlines, including Barnhart v. Peabody Coal

9 Co., 537 U.S. 149, 158 (2003) (determining that act was valid even though it was made after

10 statutory deadline has passed); United States v. James Daniel Good Real Property, 510 U.S. 43,

11 63 (1993) (declining to require dismissal of forefeiture action where agency failed to comply with

United States District Court Northern District of California

12 regulatory timing requirements); Brock v. Pierce County, 476 U.S. 253, 263 (1986) (holding the

13 failure of an agency to take action by a statutory deadline does not divest the agency of

14 jurisdiction to act after that deadline); United States v. Montalvo-Murillo, 495 U.S. 711, 711-12

15 (1990) (declining to require release of a respondent as sanction for the agency’s delay in holding a

16 bail hearing)).) Defendants thus contend that the agency does not lose its power to act in cases of

17 noncompliance unless the statute specifies a sanction for missing the deadline. (Mot. at 9.) This

18 argument, however, fails to appreciate the nature of the relief requested in this case. Plaintiffs do

19 not pray that defendants be precluded from conducting reasonable fear determinations after the 10

20 day period elapses, nor are plaintiffs requesting that the Court fashion a sanction in response to the

21 agency’s alleged noncompliance with Section 208.31. Plaintiffs merely ask the Court to require

22 the agency to comply with its rule.

23

Defendants next argue that because the agency cannot create a binding regulation where a

24 statute does not impose a corresponding duty, the Court cannot enforce the same. (Mot. at 10.)

25 This argument is unpersuasive. Procedures in a regulation, or a requirement to act in a regulation,

26 can be enforceable even where the statute preceding the regulation does not create a similar duty.

27 See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267 (1954) (finding procedures

28 set forth in a regulation binding as a limit on the Attorney General’s authority because “as long as 14

1 the regulations remain operative, the Attorney General denies himself the right to sidestep the

2 Board or dictate its decision in any manner.”); Service v. Dulles, 354 U.S. 363, 388 (1957)

3 (“While it is of course true that . . . the Secretary was not obligated to impose upon himself these

4 more rigorous substantive and procedural standards, neither was he prohibited from doing so . . .

5 and having done so he could not, so long as the Regulations remained unchanged, proceed without

6 regard to them.”); Dong, 513 F. Supp. 2d at 1166 (finding a regulation created a duty to act

7 pursuant to a particular timeframe even though statute did not create a deadline). Where, as here,

8 a regulation creates a duty to act within a particular timeframe, the agency does not have the

9 freedom to abdicate its responsibility.

10

Finally, defendants argue that because the contours of “exceptional circumstances” is

11 undefined in the regulation, the timing of reasonable fear determinations is “committed to agency

United States District Court Northern District of California

12 discretion by law.” (Mot. at 11-12.) The Court disagrees.

13

Under APA section 701(a), judicial review of agency action is foreclosed where the

14 “agency action is committed to agency discretion by law.” Heckler v. Chaney, 470 U.S. 821, 828,

15 830 (1985). As the Supreme Court has stated, “this is a very narrow exception . . . The legislative

16 history of the Administrative Procedure Act indicates that it is applicable in those rare instances

17 where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ S.Rep.

18 No. 752, 79th Cong., 1st Sess., 26 (1945).” Heckler, 470 U.S. at 830 (citing Citizens to Preserve

19 Overton Park v. Volpe, 401 U.S. 402, 410 (1971)). The exception applies where a “statute is

20 drawn so that a court would have no meaningful standard against which to judge the agency’s

21 exercise of discretion. In such a case, the statute (“law”) can be taken to have “committed” the

22 decision-making to the agency’s judgment absolutely.” Id. In determining whether judicial

23 review is precluded on Section 701(a)(2) grounds, courts consider “the language of the statute and

24 whether the general purposes of the statute would be endangered by judicial review.” Pinnacle

25 Armor, Inc. v. United States, 648 F.3d 708, 719 (9th Cir. 2011) (quoting Cnty. of Esmeralda v.

26 Dep’t of Energy, 925 F.2d 1216, 1218 (9th Cir. 1991) (citing Webster v. Doe, 486 U.S. 592, 599–

27 601 (1988).)). A court may also look to “regulations, established agency policies, or judicial

28 decisions” for a meaningful standard to review. Mendez–Gutierrez v. Ashcroft, 340 F.3d 865, 868 15

1 (9th Cir. 2003). “[T]he mere fact that a statute contains discretionary language does not make

2 agency action unreviewable.” Pinnacle Armor, Inc., 648 F.3d at 719 (quoting Beno v. Shalala, 30

3 F.3d 1057, 1066 (9th Cir. 1994)).

4

The Court finds that Section 208.31 does not present one of “those rare instances where

5 statutes are drawn in such broad terms that in a given case there is no law to apply.” See Webster,

6 486 U.S. at 599 (quoting Overton Park, 401 U.S. at 410). Defendants argue strenuously that

7 because the term “exceptional” is not defined expressly elsewhere in the regulation or statute, the

8 agency retains essentially unfettered discretion as to what justifies a departure from the 10 day

9 timeframe. This argument ignores the plain meaning of “exceptional,” which provides some

10 limiting principle to the bounds of agency discretion and a meaningful guide for judicial review.

11

The plain meaning of the term “exceptional” establishes that the reasons for the agency’s

United States District Court Northern District of California

12 delay of longer than 10 days must be “rare” or “deviating from the norm.” MERRIAM-WEBSTER’S

13 NINTH NEW COLLEGIATE DICTIONARY 432 (9th ed. 1988). Although what may constitute

14 “exceptional circumstances” in the context of the agency’s operations admits of some discretion,

15 there is an obvious limit to that discretion. The contours of the term “exceptional circumstances”

16 are made more clear when one considers circumstances that would not qualify as exceptional.

17 Ordinary, insignificant, normal circumstances cannot, by definition, qualify. To hold otherwise

18 would allow the exception to swallow the rule. See, e.g., 5 U.S.C. § 552(a)(6)(C)(ii) (“[T]he term

19 “exceptional circumstances” does not include a delay that results from a predictable agency

20 workload . . ..”); Gov’t Accountability Project v. HHS, 568 F. Supp. 2d 55, 60-61 (D.D.C. 2008)

21 (holding that “allowing a mere showing of a normal backlog of request to constitute ‘exceptional

22 circumstances’ would render the concept and its underlying Congressional intent meaningless”;

23 finding that where requests had increased for the last four years, “by this point, [the requests]

24 appear to be more of a predictable agency workload than a deluge of unanticipated

25 responsibility.”); Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 259

26 n.4 (D.D.C. 2005) (“An agency must show more than a great number of requests to establish [. . .]

27 exceptional circumstances under the FOIA.”); Donham v. DOE, 192 F. Supp. 2d 877, 882 (S.D.

28 Ill. 2002) (refusing to accept agency’s argument that its backlog qualifies as “exceptional 16

1 circumstances” because “then the ‘exceptional circumstances’ provision would render

2 meaningless the [deadline].”) Notably, defendants have offered no persuasive argument that a

3 court would be ill-advised to adjudge the agency’s determination of circumstances that qualify as

4 “exceptional.” Defendants do not assert that “exceptional circumstances” is a term of art, or that

5 the interpretation of the term necessarily requires any experience or understanding unique to the

6 agency. (See Mot. at 11-13.) Nor have defendants argued that the agency action at issue in this

7 case is so specialized or complex that a court could not adjudicate whether the agency’s delay was

8 due to reasons of an “exceptional” nature. (See id.) These deficiencies counsel against finding

9 that the limited discretion afforded the agency in Section 208.31 insulates its actions from judicial 10 review entirely.4

11

To be sure, what qualifies as “exceptional” in this context carries with it broad discretion,

United States District Court Northern District of California

12 and deference to the agency is therefore required in the ordinary course. As the Supreme Court

13 noted in Norton, a principle purpose of the APA is to protect agencies against “undue judicial

14 interference with their lawful discretion, and to avoid judicial entanglement in abstract policy

15 disagreements which courts lack both expertise and information to resolve.” Norton, 542 U.S. at

16 66. This case, however, presents the rare instance where an agency is alleged to have failed

17 entirely, for a length of several years, to comply with a timeframe set forth in a regulation in the

18

19

4 Defendants cite Martinez–Rosas v. Gonzales, 424 F.3d 926 (9th Cir. 2005) to suggest that

20

the Ninth Circuit has held the phrase “exceptional and extremely unusual hardship” is so broad that judicial review is barred under APA Section 701(a)(2). (Mot. at 12.) The basis for the Ninth

21 Circuit’s holding in that case, however, was not that the phrase there at issue was wanting for a meaningful legal standard on judicial review. Rather, the Ninth Circuit found that it did not have

22 jurisdiction over the agency’s discretionary judgment due to the enactment of 8 U.S.C. section

1252(a)(2)(B)(i), which barred judicial review of certain discretionary agency decisions. See 23 Martinez-Rosas, 424 F.3d at 929-930 (noting that Section 1252(a)(2)(B)(i) states that

24

“notwithstanding any other provision of law, no court shall have jurisdiction to review (i) any judgment regarding the granting of relief under section . . . 1229b [cancellation of removal].”) ;

25 Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir. 2003) (concluding that the “exceptional and extremely unusual hardship” determination is discretionary and thus “carved out of our

26 appellate jurisdiction” pursuant to Section 1252(a)(2)(B)(i)). The Ninth Circuit did not determine

conclusively that the phrase “exceptional and extremely unusual hardship” was so broad as to 27 satisfy the separate, narrower standard under APA Section 701(a)(2), and defendants do not claim

28 that Section 1252(a)(2)(B) applies in this case.

17

1 great majority of all reasonable fear determinations, and where there is no end to such

2 noncompliance in sight. The agency is alleged to have “foregone any attempt to comply” with

3 Section 208.31, and to have instead implemented different, more relaxed “goals” for the

4 completion of reasonable fear interviews. (Compl. ¶¶ 25, 26.)

5

The exhibits provided by defendants in support of their motion reinforce these allegations.5

6 (See Dkt. No. 58-1 (“Mercado-Santana Decl.”); Dkt. No. 43-7 (“Mura Decl.); Dkt. No. 43-8

7 (“Lafferty Decl.”).) These declarations illustrate that the exceptional appears to have become the

8 norm such that nothing about the agency’s delay is due to anything of a “rare” or “unusual” nature.

9 Rather, the fact of noncompliance in the majority of reasonable fear determinations appears to be

10 part of an ongoing and expected trend. For example, of the 2,583 reasonable fear determinations

11 rendered in the first half of 2014, only 78 were completed without a delay. (Dkt. No. 43-7 at 7.)

United States District Court Northern District of California

12 In contrast, 1,824 were delayed for “lack of resources,” and 498 were delayed for no stated reason.

13 (Id.) Likewise, in 2013, 2,711 reasonable fear determinations were delayed for lack of resources,

14 and 856 were delayed for no stated reason. (Id.) In 2012, of the 2,036 total determinations, 1,124

15 were delayed for lack of resources, and 732 were delayed for no stated reason. (Id.) Records from

16 between 2006 to 2014 show marked increases in the number of reasonable fear determinations and

17 document that the agency was well aware of this ever-increasing trend. (Id.) Thus, although the

18 agency maintains that the increases were unpredictable, uncontrollable, and unanticipated (see

19 Lafferty Decl. at ¶¶ 8-10), the evidence provided suggests that for the last eight years, the agency

20 was faced with an obvious and persistent trend. Although a dramatic increase in caseload could be

21 fairly considered an “exceptional” circumstance for a time, here the steady increase in referrals for

22 the last eight years demonstrates that the current caseload appears to be more of a “predictable

23 agency workload than a deluge of unanticipated responsibility.” See Gov’t Accountability Project,

24 568 F. Supp. 2d at 60-61.

25

The agency maintains that compliance with the timeframe put forth in Section 208.31 is

26

27

5 The evidence proffered may be appropriately considered in the context of resolving

28

defendants’ 12(b)(1) motion. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040 n.2 (9th Cir. 2003).

18

1 impracticable. “[M]ultiple constraints” impede compliance, “many of which are beyond the

2 control of the agency and were not anticipated, and thus not accounted for, at the time the

3 applicable regulations were drafted,” and the “availability of staff” has not been sufficiently

4 adjusted to meet the requirements of Section 208.31 given the “exponentially” increasing

5 caseload. (Lafferty Decl. ¶¶ 8,9.) In 2011, faced with the rising tide of reasonable fear referrals,

6 the agency undertook to “recommend” new “reasonable fear performance goals.” (Dkt. No. 58-1

7 Ex. A (“Langlois Memo”).) Rather than seek to implement a strategy to achieve compliance with

8 Section 208.31’s 10-day requirement, the agency appears to have ignored the regulatory deadline

9 altogether. It expanded the timeframe for completion of reasonable fear determinations to 90 days

10 for 85% of cases, with 95% of the determinations to be completed within at least 150 days. (Id. at

11 1.) According to the Langlois Memo, only the “exceptional case” would fall outside the 150 day

United States District Court Northern District of California

12 limit. (See id.) In arriving at these new timeframes, the agency identified and considered practical 13 and logistical barriers to timely completing reasonable fear determinations.6 (Id. at 2.) Regardless

14 of the stated reasons for adjusting its deadlines, however, having promulgated a binding regulation

15 governing the timeliness for processing reasonable fear referrals, the agency was not free to 16 disregard that regulation.7 See Service, 354 U.S. at 388 (“While it is of course true that . . . the

17 Secretary was not obligated to impose upon himself these more rigorous substantive and

18 procedural standards, neither was he prohibited from doing so . . . and having done so he could

19 not, so long as the Regulations remained unchanged, proceed without regard to them.”).

20

Although whether exceptional circumstances exist is a determination largely left to agency

21 discretion in the first instance, here plaintiffs allege – and evidence of record suggests – that far

22 from exercising that discretion, defendants have abdicated their obligation to comply with the

23 6 Notably, the 10 day requirement in the agency’s own regulations does not appear to have
24 figured as a factor considered in developing the new timeframes. (See generally, Langlois 25 Memo.)

26

7 Indeed, although it has played no part in the instant analysis, the Court notes that at

argument, counsel for plaintiffs argued that despite the agency’s protestations that it is unable to

27 complete these determinations in a timely manner, the government is able to complete credible

28

fear determinations, a process bearing marked similarity to the reasonable fear determination process, in approximately two weeks. (Dkt. No. 67 (“Tr.”) at 15-18.)

19

1 regulatory timeframe in the vast majority of cases. Under the APA, a court shall “compel agency

2 action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). “[T]he mere fact that a

3 statute contains discretionary language does not make agency action unreviewable.” Pinnacle

4 Armor, Inc., 648 F.3d at 719 (quoting Beno, 30 F.3d at 1066). Where a party alleges that the

5 agency has failed to act consistently with a regulation, the Court has jurisdiction to hear the party’s

6 claim and to compel action pursuant to the APA and federal question jurisdiction. See, e.g., Dong

7 v. Chertoff, 513 F. Supp. 2d 1158, 1167 (N.D. Cal. 2007) (finding that violation of a non-

8 discretionary duty to act pursuant to regulation conferred subject matter jurisdiction under the

9 APA in conjunction with federal question jurisdiction); Elmalky, 2007 WL 944330, at *4 (same).

10 As a practical matter, it may well be that resolving these reasonable fear determinations within 10

11 days is exceedingly difficult, indeed, even disadvantageous for the person seeking a favorable

United States District Court Northern District of California

12 reasonable fear determination. Nonetheless, given the express command in Section 208.31,

13 neither the Court nor the agency is free to disregard it. Where, as here, an agency is alleged to

14 have foregone any attempt entirely to comply with a binding regulation, its non-compliance is

15 properly subject to review in the federal courts.

16

ii. Mootness

17

Defendants contend that because all named plaintiffs have received their reasonable fear

18 determinations (albeit, not within 10 days of referral), their individual claims are moot. (Dkt. No.

19 43 at 9.) The Court finds an exception to the mootness doctrine appropriate in this case.

20 Plaintiffs’ claims, as well as those of their class members, are inherently transitory, and capable of

21 repetition yet evading review. To impose the mootness doctrine would thus enable defendants to

22 avoid review of the claims presented here. Accordingly, as class representatives, plaintiffs qualify

23 for an exception to the mootness doctrine, even if they have received reasonable fear

24 determinations, and even if there is no indication that they may again be subject to the acts that

25 gave rise to their claims. See Wade v. Kirkland, 118 F.3d 667, 670 (9th Cir. 1997).

26

Moreover, the Supreme Court has recognized that “[s]ome claims are so inherently

27 transitory that the trial court will not have even enough time to rule on a motion for class

28 certification before the proposed representative’s individual interest expires.” Cnty. of Riverside v. 20

1 McLaughlin, 500 U.S. 44, 51-52 (1991) (citing U.S. Parole Comm’n v. Geraghty, 445 U.S. 388,

2 399 (1980) (citations omitted)). In such cases, the “relation back” doctrine is properly invoked to

3 preserve the merits of the case for judicial resolution. See id. (citing Swisher v. Brady, 438 U.S.

4 204, 213–214 n. 11 (1978); Sosna v. Iowa, 419 U.S. 393, 402 n. 11 (1975)).

5

Accordingly, plaintiffs may represent the class and pursue this action despite having had

6 reasonable fear determinations.8

7

For these reasons, defendants’ motion to dismiss under Rule 12(b)(1) is DENIED.

8

III. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

9

A. Legal Standard

10

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in

11 the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). “Dismissal can be

United States District Court Northern District of California

12 based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a

13 cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

14 All allegations of material fact are taken as true and construed in the light most favorable to the

15 plaintiff. Johnson v. Lucent Techs., Inc., 653 F.3d 1000, 1010 (9th Cir. 2011). To survive a

16 motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a

17 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

18 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

19

B. Discussion

20

Under section 706(1) of the APA, a court may “compel agency action unlawfully withheld

21 or unreasonably delayed.” 5 U.S.C. § 706(1). The APA further provides that agencies must

22 conclude matters before them “within a reasonable time.” 5 U.S.C. § 555(b). In Norton, 542 U.S.

23 at 64, the Supreme Court held that a plaintiff states a claim for relief under section 706(1) when he

24 “asserts that an agency failed to take a discrete agency action that it is required to take.” “[W]hen

25 an agency is compelled by law to act within a certain time period, but the manner of its action is

26 left to the agency's discretion, a court can compel the agency to act, but has no power to specify

27

28

8 Defendants do not seriously contest plaintiffs’ status as class representatives as part of their motion for class certification.

21

1 what the action must be.” Id. at 65.

2

To invoke the APA, plaintiffs must show that (1) the agency had a nondiscretionary duty

3 to act, and (2) the agency unreasonably delayed in acting on that duty. Gelfer v. Chertoff, No. 06-

4 6724, 2007 WL 902382, at *1 (N.D. Cal. 2007) (citing Norton, 542 U.S. at 63-65; 5 U.S.C. §§

5 555(b), 701(a)(2)). Defendants urge that in evaluating whether the delay at issue here is

6 unreasonable, the Court should apply the six-factor test set forth in Telecomms. Research & Action

7 Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984):

United States District Court Northern District of California

8

(1) the time agencies take to make decisions must be governed by a

9

“rule of reason”[;] (2) where Congress has provided a timetable or

other indication of the speed with which it expects the agency to

10

proceed in the enabling statute, that statutory scheme may supply

content for this rule of reason [;] (3) delays that might be reasonable

11

in the sphere of economic regulation are less tolerable when human

12

health and welfare are at stake [;] (4) the court should consider the effect of expediting delayed action on agency activities of a higher

13

or competing priority[;] (5) the court should also take into account

the nature and extent of the interests prejudiced by the delay[;] and

14

(6) the court need not “find any impropriety lurking behind agency

lassitude in order to hold that agency action is unreasonably

15

delayed.”

16 Independence Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) (citing TRAC, 750 F.2d at
17 80 (citations omitted)). As an initial matter, the Court notes that none of the cases cited by
18 defendants in support of their argument apply the TRAC factors in circumstances analogous to the
19 instant case – where an agency regulation confers a right to resolution generally in a defined
20 timeframe, and where the agency has essentially abdicated any effort to comply with that
21 regulatory deadline. Indeed, Ninth Circuit authority suggests that where a firm deadline exists, the
22 Court need not undertake TRAC’s six-factor balancing inquiry. Biodiversity Legal Found. v.
23 Badgley, 309 F.3d 1166, 1177 n.11 (9th Cir. 2002); see also Brower v. Evans, 257 F.3d 1058,
24 1068-69 (9th Cir. 2001) (affirming district court’s application of TRAC factors at summary
25 judgment where there was no statutory or regulatory deadline or timeframe).
26 Regardless, if the TRAC factors are to apply, the Court cannot resolve at this juncture
27 whether plaintiffs have met this fact-intensive test. (See Mot. at 13-17; Reply at 12-14.) See
28

22

1 Independence Mining Co., 105 F.3d 502 (evaluating district court’s application of TRAC factors

2 on cross-motions for summary judgment); Gelfer, 2007 WL 902382, at *2 (denying motion to

3 dismiss in context where no statutory or regulatory deadline was present and noting that “[w]hat

4 constitutes an unreasonable delay in the context of immigration applications depends to a great

5 extent on the facts of the particular case”) (quoting Yu, 36 F. Supp. 2d at 932); cf. Chen v.

6 Chertoff, No. 07-2816, 2008 WL 205279, at *3 (N.D. Cal. Jan. 23, 2008) (resolving summary 7 judgment in favor of plaintiff and finding the government’s delay unreasonable).9 Indeed,

8 defendants concede that the analysis of an unreasonable delay claim under the TRAC factors is a

9 “complicated and nuanced task” because the Court needs to consider the particular facts and

10 circumstances of the delay. (Mot. at 13 (citing Mashpee Wampanoag Tribal Council, Inc. v.

11 Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003) (concerning a district court’s summary judgment

United States District Court Northern District of California

12 application of the TRAC factors).)

13

The Court finds that plaintiffs have alleged facts sufficient to state a plausible claim for

14 relief under the APA. Contrary to defendants’ argument that plaintiffs have failed to allege that

15 Section 208.31(b) was violated because they have not specifically alleged that no “exceptional

16 circumstances” exist to justify the current level of delays (see Reply at 12), the Court finds that

17 plaintiffs’ complaint, fairly construed, alleges precisely that – and more. The gravamen of

18 plaintiffs’ complaint is that the agency has abdicated its responsibility to comply with Section

19 208.31 entirely. This necessarily includes a failure to comply with the exception to the general 10-

20 day deadline. Taking full view of plaintiffs’ theory and construing all facts alleged in plaintiffs’

21 favor, as is required in the context of a 12(b)(6) motion, the Court finds that plaintiffs have alleged

22

23

9 Defendants appear to insist that the evidence submitted in support of their 12(b)(1)

24

jurisdictional arguments can and should be considered in the context of their 12(b)(6) motion. (See Mot. at 14-17 (relying heavily on evidence outside the complaint in support of argument that

25 plaintiffs cannot prevail on the merits applying the TRAC factors).) Reliance on such evidence in the context of the instant motion is improper. Defendants rely on this evidence to dispute the

26 merits of plaintiffs’ claims, specifically, whether the agency delay in resolving reasonable fear
determinations is reasonable. This evidence has no place in the context of defendants’ 12(b)(6) 27 motion; it may properly be considered only on a motion for summary judgment. Fed. R. Civ. P.

28

12(d). Accordingly, the evidence cited has played no part in the Court’s consideration of defendants’ 12(b)(6) motion.

23

1 facts sufficient to state a claim under the APA and in light of the TRAC factors. (See Compl. ¶¶ 7,

2 29 (alleging that “rarely if ever” does the agency timely resolve reasonable fear claims); ¶¶ 24-30

3 (describing the functional role of reasonable fear determinations in the statutory and regulatory

4 scheme and the effects of delays at the reasonable fear determination stage; alleging that the

5 agency “has foregone any attempt to comply with the timeframe” and has instead implemented

6 different “goals” for the completion of reasonable fear interviews that ignore the requirement in

7 Section 208.31(b).)

8

For all these reasons, defendants’ motion to dismiss under Rule 12(b)(6) is DENIED.

9

IV. MOTION FOR CLASS CERTIFICATION

10

Plaintiffs have moved to certify a class of all individuals who:

United States District Court Northern District of California

11

(1) are or will be subject to removal pursuant to 8 U.S.C. §

12

1231(a)(5) or 8 U.S.C. § 1228(b);

13

(2) who have expressed, or in the future express, a fear of returning to their country of removal; and

14

(3) who have not received, or do not receive, a reasonable fear

15

determination pursuant to 8 C.F.R. § 208.31 within ten days of referral to the U.S. Citizenship and Immigration Services.

16

The defined class does not include individuals who have received their reasonable fear

17 determinations. (Dkt. No. 40 (“Reply”) at 4.)

18

A. Legal Standard

19

A party seeking class certification must satisfy the four prerequisites of Rule 23(a): “(1)

20 numerosity of plaintiffs; (2) common questions of law or fact predominate; (3) the named

21 plaintiff’s claims and defenses are typical; and (4) the named plaintiff can adequately protect the

22 interests of the class.” Arnott, et al. v. U.S. Citizenship & Immigration Servs., 290 F.R.D. 579,

23 583 (C.D. Cal. 2012) (citing Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992))

24 (internal quotation marks omitted). In addition to meeting the requirements set forth in Rule

25 23(a), the proposed class must also qualify under Rule 23(b)(1), (2), or (3). Zinser v. Accufix

26 Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). Here, Petitioners ask the Court to

27 certify a class under Rule 23(b)(2). (Compl. ¶¶ 60-70; Mot. at 12-13.) Rule 23(b)(2) permits class

28 actions for declaratory or injunctive relief where “the party opposing the class has acted or refused 24

1 to act on grounds that generally apply to the class.” Fed. R. Civ. P. 23(b)(2).

2

The party seeking class certification bears the burden of proof in demonstrating that it has

3 satisfied all four Rule 23(a) prerequisites and that their class lawsuit falls within one of the three

4 types of actions permitted under Rule 23(b). Zinser, 253 F.3d at 1186. The failure to meet “any

5 one of Rule 23’s requirements destroys the alleged class action.” Rutledge v. Elec. Hose &

6 Rubber Co., 511 F.2d 668, 673 (9th Cir. 1975). The Supreme Court has held that “actual, not

7 presumed, conformance with Rule 23(a) [is] indispensable.” Gen. Tel. Co. v. Falcon, 457 U.S.

8 147, 160 (1982). Consequently, a district court must conduct a rigorous analysis to determine

9 whether plaintiffs met their burden to pursue their claims as a class action. Id. at 161. If a court is

10 not fully satisfied, the class cannot be certified. Id. Even when all of Rule 23’s requirements are

11 met, the district court retains “broad discretion” to determine whether a class should be certified.

United States District Court Northern District of California

12 Zinser, 253 F.3d at 1186. When reviewing a motion for class certification, a court should only

13 analyze the portions of the merits of a claim that overlap with Rule 23’s requirements. See Eisen

14 v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974).

15

B. Discussion

16

Defendants essentially concede that class certification in this case is proper. With two

17 minor exceptions,10 they “do not otherwise contest class certification under Rule 23(a) or 23(b).”

18 (Dkt. No. 38 (“Opp.”) at 9 n.4.) Instead, defendants limit their opposition to the scope of the class

19 that this Court should certify. Nonetheless, as set forth below, the Court has undertaken the

20 requisite “rigorous analysis” and finds the Rule 23(a) factors and the requirements of Rule 23(b)

21 are both met. The Court next explains why a nationwide class is appropriate in this case.

22

23

24

10 Both of these arguments have been rendered either moot or immaterial. Defendants first

25 argue that plaintiff Bardalez is not a proper class representative, but plaintiffs have represented that they will seek leave to voluntarily dismiss Bardalez’s claims. (See Footnote 1, supra.) Next,

26 Defendants argue that the class as defined includes individuals who have already received

reasonable fear determinations. (Opp. at 9-12.) The Court disagrees; the class definition as set 27 forth by plaintiffs does not include individuals who have already received their reasonable fear

28

determinations. Nonetheless, for purposes of clarity, the Court expressly limits the class to only those individuals who have not received these determinations. (See also Reply at 5.)

25

1

1. Rule 23(a)

2

First, publicly available data and materials provided in conjunction with the defendants’

3 motion to dismiss confirms that the proposed class members are so numerous that joinder of all is

4 impracticable. Harris v. Palm Springs Alpine Est., Inc., 329 F.2d 909, 913-14 (9th Cir. 1964);

5 Asylum Division Quarterly Stakeholder Meeting, January 2014, Credible Fear and Reasonable

6 Fear FY 2014 - Q1, http://1.usa.gov/1sDqaa3; see also Dkt. No. 43-7 (statistics on reasons for

7 delay of reasonable fear determinations from 1999 to 2014).

8

Second, the class presents common questions of law and fact, namely, whether the agency

9 has in fact abdicated any attempt to comply with the requirements of Section 208.31(b), and

10 whether this violates the APA. Here, the common question of law is fairly straightforward: Have

11 Defendants violated the law by foregoing any attempt to comply with Section 208.31(b) and not

United States District Court Northern District of California

12 providing class members reasonable fear determinations within ten days of referral to USCIS in

13 the general course? Thus, the putative class members’ claims “depend upon a common

14 contention” that is “of such a nature that it is capable of classwide resolution—which means that

15 determination of its truth or falsity will resolve an issue that is central to the validity of each one of

16 the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011). Thus,

17 here the “capacity of a class wide proceeding to generate common answers apt to drive the

18 resolution of the litigation.” Id. (internal citation and quotation marks omitted).

19

Third, the claims of the named plaintiffs are typical of the claims of the proposed class.

20 Like each and every one of the members of the proposed class, the plaintiffs have been subjected

21 to prolonged detention upon “expressing a fear of return,” thus prompting the reasonable fear

22 determination process. See Pls.’ Mot. Ex. A, Decl. of Marco Antonio Alfaro Garcia, at ¶ 14; Ex.

23 B, Decl. of Credy Madrid Calderon, at ¶ 10; Ex. C., Decl. of Gustavo Ortega at ¶ 8; Ex. D, Decl.

24 of Claudia Rodriguez de la Torre, at ¶ 8; Ex. E, Decl. of Nancy Bardalez Serpa, at ¶ 6. And, like

25 the members of the proposed class, the agency should have timely provided plaintiffs with their

26 reasonable fear determinations pursuant to the timeframe set forth in Section 208.31. Thus,

27 plaintiffs seek relief identical to that which the members of the proposed class would seek: the

28 timely provision of a reasonable fear determination. 26

1

Fourth, the Court finds that the class representatives’ interests coincide with those of the

2 proposed class and that counsel for the class is adequate. Plaintiffs are represented by the ACLU

3 Foundation of Southern California, the American Civil Liberties Union Foundation of Northern

4 California, the National Immigrant Justice Center, and Reed Smith LLP (collectively, “Class

5 Counsel”). Class Counsel are experienced in protecting the interests of noncitizens and handling

6 complex and class action litigation, including litigation on behalf of immigration detainees. (Mot.

7 Exs. F-I.)

8

2. Rule 23(b)(2)

9

Plaintiffs also must meet one of the requirements of Rule 23(b) for a class action to be

10 certified. That requirement is satisfied here, because the action meets the Rule 23(b)(2)

11 requirement that “the party opposing the class has acted or refused to act on grounds that apply

United States District Court Northern District of California

12 generally to the class, so that final injunctive relief or corresponding declaratory relief is

13 appropriate respecting the class as a whole.” Zinser, 253 F.3d at 1195 (finding certification under

14 Rule 23(b)(2) appropriate “where the primary relief sought is declaratory or injunctive”). A class

15 may properly be certified under Rule 23(b)(2) if the opposing party’s “[a]ction or inaction is

16 directed to a class . . . even if it has taken effect or is threatened only as to one or a few members

17 of the class, provided it is based on grounds which have general application to the class.” Fed. R.

18 Civ. P. 23(b)(2) Advisory Committee’s Note (1966). It is sufficient that plaintiffs here allege a

19 pattern of activity that is “central to the claims of all class members irrespective of their individual

20 circumstances and the disparate effects of the conduct.” Baby Neal for & by Kanter v. Casey, 43

21 F.3d 48, 57 (3d Cir. 1994). Judicial economy also favors certification. Indeed, even assuming

22 that all of the putative class members could either be joined to this action or litigate each of their

23 cases individually, doing so would constitute an inefficient use of judicial resources.

24

Accordingly, all of the requirements of Rule 23 are met. The Court therefore finds

25 certification of plaintiffs’ proposed class appropriate so that all similarly situated individuals may

26 benefit from the injunctive relief sought in this action.

27

3. Scope of the Class

28

As stated above, defendants do not substantively dispute that class certification is

27

1 appropriate under Rule 23(a) and (b). Defendants’ sole substantive argument in opposition to

2 plaintiffs’ motion for class certification is directed to the question of whether the Court should

3 certify a nationwide or geographically confined class.

4

There is no per se prohibition against certification of a nationwide class, although the

5 Supreme Court has cautioned that nationwide class actions “may have a detrimental effect by

6 foreclosing adjudication by a number of different courts and judges.” Califano v. Yamasaki, 442

7 U.S. 682, 702 (1979) (affirming certification of a nationwide class). Accordingly, “a federal court

8 when asked to certify a nationwide class should take care to ensure that nationwide relief is indeed

9 appropriate in the case before it, and that certification of such a class would not improperly

10 interfere with the litigation of similar issues in other judicial districts.” Id.

11

Mindful of this instruction, the Court finds that certification of a nationwide class is

United States District Court Northern District of California

12 appropriate in this context. This case addresses the government’s failure to abide by a mandatory

13 regulation designed to ensure the nation’s compliance with its obligations under international

14 agreements and statutory law. The chief complaint is that defendants, who are charged with

15 enforcing and executing the nation’s immigration laws, are uniformly violating a federal

16 regulation promulgated to implement the United States’ obligations under an international

17 agreement and statutory law. In this unique context, national uniformity is of paramount

18 importance.

19

Although defendants argue that the Court should refrain from certifying a nationwide class,

20 they present no compelling factual or legal argument as to why their legal obligations might vary

21 state to state or region to region. Cf. Arizona v. United States, 132 S.Ct. 2492, 2498 (2012)

22 (recognizing that, when it comes to immigration matters, the government must act as “one national

23 sovereign, not the 50 separate States.”) Indeed, the practical consequences of not certifying a

24 geographically limited class weigh in favor of nationwide certification. An order requiring the

25 government to comply with the regulatory deadline in some parts of the country, but not others,

26 could lead to the government electing to comply merely by shifting its resources, leading to

27 greater delays in parts of the country outside the scope of any ultimate ruling in this case.

28

Accordingly, courts have certified nationwide classes that challenge the government’s

28

1 actions in enforcing the country’s immigration laws. See, e.g., Santillan v. Ashcroft, No. C 04-

2 2686 MHP, 2004 WL 2297990, at *12 (N.D. Cal. Oct. 12, 2004) (certifying nationwide class of

3 lawful permanent residents challenging delays in receiving documentation of their status); Ali v.

4 Ashcroft, 213 F.R.D. 390, 409-10 (W.D. Wash. 2003), aff’d, 346 F.3d 873, 886 (9th Cir. 2003),

5 vacated on other grounds, 421 F.3d 795 (9th Cir. 2005) (certifying nationwide class of Somalis

6 challenging legality of removal to Somalia in the absence of a functioning government); Perez-

7 Funez v. District Director, I.N.S., 611 F. Supp. 990, 1005 (C.D. Cal. 1984) (certifying nationwide

8 class of minors who are now or will be taken into custody by the INS for possible deportation).

9 Thus, a nationwide class is appropriate here. Plaintiffs’ motion for class certification is GRANTED.

10

V. CONCLUSION

11

For the reasons stated above, defendants’ motion to dismiss under Rules 12(b)(1) and

United States District Court Northern District of California

12 12(b)(6) is DENIED. Plaintiffs’ motion for class certification is GRANTED. The Court hereby

13 CERTIFIES a nationwide class of all individuals who:

14

(1) are or will be subject to removal pursuant to 8 U.S.C. §

15

1231(a)(5) or 8 U.S.C. § 1228(b);

16

(2) who have expressed, or in the future express, a fear of returning

to their country of removal; and

17

18

(3) who have not received, or do not receive, a reasonable fear determination pursuant to 8 C.F.R. § 208.31 within ten days of

19

referral to the U.S. Citizenship and Immigration Services.

20

The defined class does not include individuals who have received their reasonable fear

21 determinations.

22

This Order terminates Docket Numbers 12 and 43.

23

IT IS SO ORDERED.

24 Dated: November 21, 2014

25

______________________________________

YVONNE GONZALEZ ROGERS

26

UNITED STATES DISTRICT COURT

27

28 29

 
 Case 4:14-cv-01775-YGR Document 133 Filed 10/27/15 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

MARCO ANTONIO ALFARO GARCIA, CREDY )

MADRID CALDERON, GUSTAVO ORTEGA, )

AND CLAUDIA RODRIGUEZ DE LA TORRE, , )

on behalf of themselves and all others similarly

)

situated,

)

)

Plaintiffs,

)

)

v.

)

)

)

JEH JOHNSON, Secretary of Homeland Security, )

LEON RODRIGUEZ, Director of U.S. Citizenship )

and Immigration Services, and JOSEPH

)

LANGLOIS, Associate Director of Refugee,

)

Asylum and International Operations,

)

Defendants.

)

Case No. 4:14-cv-01775-YGR
[PROPOSED] FINAL ORDER APPROVING SETTLEMENT *AS MODIFIED BY THE COURT*
Honorable Yvonne Gonzalez Rogers
Complaint Filed: April 17, 2014

Case No. 4:14-cv-01775-YGR FINAL ORDER APPROVING SETTLEMENT

Case 4:14-cv-01775-YGR Document 133 Filed 10/27/15 Page 2 of 6

1

WHEREAS Plaintiffs Marco Antonio Alfaro Garcia, Credy Madrid Calderon, Gustavo

2 Ortega, and Claudia Rodriguez De La Torre, on behalf of themselves and all class members

3 (collectively, “Plaintiff Class”), by and through their counsel of record, have asserted claims for

4 Declaratory and Injunctive Relief against Defendants Jeh Johnson, in his official capacity as

5 Secretary of Homeland Security; Leon Rodriguez, in his official capacity as Director of U.S.

6 Citizenship and Immigration Services (“USCIS”); and Joseph Langlois, in his official capacity

7 as Associate Director of USCIS Refugee, Asylum and International Operations (collectively, the

8 “Defendants”), alleging violations of 5 U.S.C. § 706(1) and 8 C.F.R. § 208.31(b);

9

WHEREAS the Plaintiff Class and Defendants entered into a settlement of the above-

10 captioned matter (the “Settlement”) and executed a Settlement Agreement and Release (the

11 “Settlement Agreement”), which is attached hereto as Exhibit 1; and

12

WHEREAS, the Court held a hearing on August 11, 2015 where the Court found the

13 Settlement reasonable and fair; and

14

WHEREAS, the Court preliminarily approved the Settlement in an Order dated

15 August 20, 2015 (see Dkt. No. 104); and

16

WHEREAS, it appears notice of the Settlement has been adequately provided to the Class

17 as provided for by the Court’s Order Granting Preliminary Approval; and

18

WHEREAS, the Plaintiff Class has filed with the Court a Motion for Final Approval of

19 the Settlement, together with supporting documents; and

20

WHEREAS, the Court has considered the Settlement between the Plaintiff Class and the

21 Defendants, and the pleadings and documents submitted in connection with the parties’ request

22 for final approval of the Settlement, and good cause appearing therefore; and

Case No. 4:14-cv-01775-YGR
FINAL ORDER APPROVING SETTLEMENT
- 2 -

Case 4:14-cv-01775-YGR Document 133 Filed 10/27/15 Page 3 of 6

1

WHEREAS, the Court held a hearing on October 20, 2015 to consider the final approval

2 of the Settlement, and any objections to the foregoing filed before or at the time of the hearing;

3

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED:

4

1. This Court has jurisdiction over this action and each of the parties in this action.

5

2. The Court finds that the Settlement appears to have resulted from arm’s-length

6 negotiations by and among counsel for the parties who were reasonably skilled and prepared and

7 who represented the best interests of their respective clients in negotiating the Settlement. The

8 settlement negotiations that led to the Settlement took place in mediation sessions supervised by

9 Magistrate Judge Laurel Beeler. This provides the Court with further assurance that the

10 negotiations leading to the Settlement were good faith, arm’s-length negotiations, based on a

11 sufficiently developed record, and which appropriately considered the risks of trial, the potential

12 resolution, and all other relevant factors leading to the Settlement.

13

3. Based on all of the facts and circumstances, the Court finds that Settlement is fair,

14 reasonable, adequate, and in the best interests of the members of the Plaintiff Class.

15

4. The Court further finds that the attorneys’ fees and costs provision in the

16 Settlement Agreement was the result of arm’s-length and good faith negotiations supervised by

17 Magistrate Judge Laurel Beeler. The attorney’s fees and costs provision appears to have taken

18 into consideration the right of Plaintiffs to seek an award of fees that would be substantially

19 higher than the amount agreed to, the risks of trial, and all other relevant factors. The Court

20 therefore approves the provisions for attorney’s fees and costs contained in the Settlement

21 Agreement in accordance with the Equal Access to Justice Act, 28 U.S.C. § 2412, and 28 U.S.C.

22 § 1920.

Case No. 4:14-cv-01775-YGR
FINAL ORDER APPROVING SETTLEMENT
- 3 -

Case 4:14-cv-01775-YGR Document 133 Filed 10/27/15 Page 4 of 6

1

5. The Court further finds the Notice to the Class was reasonably calculated to

2 apprise the Class of the pendency of this action and all material elements of the proposed

3 settlement, constituted the best notice practicable under the circumstances, and constituted due

4 and sufficient notice.

5

WHEREFORE, IT IS HEREBY ORDERED AS FOLLOWS:

6

1. The Court has jurisdiction over the subject matter of this action under 28 U .S.C.

7 § 1331 (federal question), 5 U.S.C. § 701 et seq. (Administrative Procedure Act), and 28 U.S.C.

8 § 1361 (the Mandamus and Venue Act of 1962). The Court has personal jurisdiction over the

9 Plaintiff Class (as defined in the Court’s order granting Plaintiffs’ Motion for Class Certification

10 (Dkt. 70 at 24)), the Settlement Class (as defined in paragraph 5 herein), and Defendants.

11

2. This Final Order adopts and incorporates by reference the terms and definitions of

12 the Settlement Agreement, attached hereto as Exhibit 1.

13

3. Under Federal Rule of Civil Procedure 23(e), the Settlement as set forth in the

14 Settlement Agreement is approved as fair, reasonable, and in the best interests of the Class.

15

4. The parties are directed to implement the Settlement Agreement in accordance

16 with its terms and provisions.

17

5. By its Preliminary Approval Order, dated August 20, 2015 (Dkt. No. 104), the

18 Court preliminarily certified the following Settlement Class:

19

All persons who, during the term of the Settlement Agreement:

20

a. are or will be subject to a reinstated order of removal under 8 U.S.C.

21

§ 1231(a)(5) or an administrative removal order under 8 U.S.C. § 1228(b);

22

b. have expressed, or in the future express, a fear of returning to his or her country

23

of removal;

24

c. are detained in the custody of the Department of Homeland Security (“DHS”);

25

and

26

d. have not received, or do not receive, an initial reasonable fear determination by

27

USCIS under 8 C.F.R. § 208.31 within ten (10) days of referral to USCIS; but

Case No. 4:14-cv-01775-YGR
FINAL ORDER APPROVING SETTLEMENT
- 4 -

Case 4:14-cv-01775-YGR Document 133 Filed 10/27/15 Page 5 of 6

1

e. the Settlement Class does not include any person who would otherwise be in the

2

class if such individual receives his or her reasonable fear determination.

3

4

6. The Court finds that this Settlement Class satisfies the requirements of Rule 23 of

5 the Federal Rules of Civil Procedure, including the requirements of numerosity, commonality,

6 typicality and adequacy pursuant to Rule 23(a) and the requirements of Rule 23(b)(2). The Court

7 hereby certifies the Settlement Class as described in Paragraph 5 of this Final Order.

8

7. The Court approves Marco Antonio Alfaro Garcia, Credy Madrid Calderon,

9 Gustavo Ortega, and Claudia Rodriguez De La Torre as Class Representatives of the Settlement

10 Class.

11

8. The Court finds that American Civil Liberties Union Foundation Of Southern

12 California, The National Immigrant Justice Center (A Heartland Alliance Partner), American

13 Civil Liberties Union Foundation Of Northern California and Reed Smith LLP, (collectively,

14 “Class Counsel”), have fairly and adequately represented the interests of the Plaintiff Class and

15 satisfied all the requirements of Rule 23(g) of the Federal Rules of Civil Procedure.

16

9. The Court, having approved the provision for attorney’s fees and costs in the

17 Settlement Agreement, hereby orders that these fees and costs be paid in accordance with the

18 Settlement Agreement.

19

10. In accordance with the Settlement Agreement, this action is hereby dismissed

20 with prejudice and the Plaintiff Class is barred from future prosecution of the Settled Claims (as

21 defined in the Settlement Agreement). Without in any way affecting the finality of this Final

22 Order, this Court has continuing jurisdiction for the purposes of enforcing the Settlement and as

23 to all matters relating to the interpretation and enforcement of the Settlement Agreement for the

24 term described therein, not to exceed five years.

Case No. 4:14-cv-01775-YGR
FINAL ORDER APPROVING SETTLEMENT
- 5 -

Case 4:14-cv-01775-YGR Document 133 Filed 10/27/15 Page 6 of 6

1

11. Under Rule 54 of the Federal Rules of Civil Procedure, the Court, in the interests

2 of justice, and there being no just reason for delay, expressly directs the Clerk of the Court to

3 enter this Final Approval Order.

4

This Order terminates Docket Number 129.

5 IT IS SO ORDERED.

6 Dated: October 27, 2015

____________________________ YVONNE GONZALEZ ROGERS U.S. DISTRICT COURT JUDGE

Case No. 4:14-cv-01775-YGR
FINAL ORDER APPROVING SETTLEMENT
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 Case 4:14-cv-01775-YGR Document 132 Filed 10/27/15 Page 1 of 2

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

2

OAKLAND DIVISION

3

4 MARCO ANTONIO ALFARO GARCIA, CREDY )

MADRID CALDERON, GUSTAVO ORTEGA, )

5 AND CLAUDIA RODRIGUEZ DE LA TORRE, ,

6

on behalf of themselves and all others similarly situated,

) ) ) )

7

)

Plaintiffs,

)

8

)

v.

)

9

)

)

10 JEH JOHNSON, Secretary of Homeland Security, 11 LEON RODRIGUEZ, Director of U.S. Citizenship

) ) )

and Immigration Services, and JOSEPH

)

12 LANGLOIS, Associate Director of Refugee,

)

Asylum and International Operations,

13 Defendants.

Case No. 4:14-cv-01775-YGR
[PROPOSED] ORDER APPROVING AWARD OF ATTORNEYS’ FEES AND COSTS
Honorable Yvonne Gonzalez Rogers
Complaint Filed: April 17, 2014

14 [PROPOSED] ORDER APPROVING AWARD OF ATTORNEYS’ FEES AND COSTS

15

THIS CAUSE, coming to be heard on the Motion for Award of Reasonable Attorneys’ Fees

16 and Costs by Plaintiffs Marco Antonio Alfaro Garcia, Credy Madrid Calderon, Gustavo Ortega, and
17

Claudia Rodriguez De La Torre, on behalf of themselves and all class members (collectively, 18

19 “Plaintiffs”), by and through their counsel of record, proper notice having been given, and the Court

20 being fully advised thereon, it is HEREBY ORDERED:

21

1. Plaintiffs’ Motion for Award of Reasonable Attorneys’ Fees and Costs (“Motion”) is

22 GRANTED;

23 2. The Court finds that the negotiated and agreed-upon award of $325,000.00 in

24
attorneys’ fees and the agreed-upon award of $2,047.66 in costs is fair and reasonable; 25

26

3. The Court further finds that the hourly rates and costs set forth in Plaintiffs’ Motion

27 are reasonable and appropriate.

28

Case No. 4:14-cv-01775- YGR ORDER APPROVING AWARD OF ATTORNEYS’ FEES AND COSTS

Case 4:14-cv-01775-YGR Document 132 Filed 10/27/15 Page 2 of 2

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1

This Order terminates Docket Number 109.

2 IT IS SO ORDERED. 3 Dated: October 2, 2015 4
5
6

_________________________________________ HONORABLE YVONNE GONZALEZ ROGERS U.S. DISTRICT COURT JUDGE

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
Case No. 4:14-cv-01775- YGR
ORDER APPROVING AWARD OF ATTORNEYS’ FEES AND COSTS
- 2 -

 
 Case: 4:14-cv-1775 As of: 10/25/2016 05:12 AM PDT 1 of 18
ADRMOP,CLOSED,PROTO,REFSET−LB
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:14−cv−01775−YGR

Garcia−V−Johnson Assigned to: Hon. Yvonne Gonzalez Rogers Referred to: Magistrate Judge Laurel Beeler (Settlement) Cause: 15:53(b) − Prelim & Perm Inj Relief & other Equitable Relief
Plaintiff

Date Filed: 04/17/2014 Date Terminated: 10/27/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Marco Antonio Alfaro Garcia on behalf of themselves and all others similarly situated

represented by Ahilan Thevanesan Arulanantham ACLU of Southern California 1313 West 8th Street Los Angeles, CA 90017 213−977−5211 Fax: 213−977−5297 Email: aarulanantham@aclusocal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carmen Gloria Iguina ACLU of Southern California 1313 West 8th Street Los Angeles, CA 90017 213−977−5284 Fax: 213−977−5297 Email: ciguina@aclusocal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

James August Rolfes Reed Smith LLP 10 South Wacker Drive Chicago, IL 60606 Cook (312) 207−3872 Fax: (312) 207−6400 Email: jrolfes@reedsmith.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claudia Valenzuela National Immigrant Justice Center 208 South LaSalle Street Suite 1300 Chicago, IL 60604 (312) 660−1308 Email: cvalenzuela@heartlandalliance.org PRO HAC VICE ATTORNEY TO BE NOTICED

Jingni Zhao ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−1478 Email: jzhao@aclunc.org TERMINATED: 07/30/2014

Julia Harumi Mass , Esq.

Case: 4:14-cv-1775 As of: 10/25/2016 05:12 AM PDT 2 of 18

American Civil Liberties Union of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: jmass@aclunc.org ATTORNEY TO BE NOTICED

Michael Bryan Kaufman ACLU of Southern California 1313 West 8th Street Los Angeles, CA 90017 213−977−5284 Fax: 213−977−5297 Email: mkaufman@aclusocal.org ATTORNEY TO BE NOTICED

Timothy Robert Carraher REED SMITH LLP 10 South Wacker Dr. Suite 4000 Chicago, IL 60606 312−207−1000 Fax: 312−207−6400 Email: tcarraher@reedsmith.com PRO HAC VICE ATTORNEY TO BE NOTICED

John Douglas Pingel Reed Smith LLP 101 Second Street, Suite 1800 San Francisco, CA 94015 415−659−5683 Fax: 415−391−8269 Email: jpingel@reedsmith.com ATTORNEY TO BE NOTICED

Plaintiff
Credy Madrid Calderon on behalf of themselves and all others similarly situated

represented by Ahilan Thevanesan Arulanantham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carmen Gloria Iguina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James August Rolfes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claudia Valenzuela (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jingni Zhao (See above for address) TERMINATED: 07/30/2014

Julia Harumi Mass , Esq.

Case: 4:14-cv-1775 As of: 10/25/2016 05:12 AM PDT 3 of 18

(See above for address) ATTORNEY TO BE NOTICED

Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED

Timothy Robert Carraher (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

John Douglas Pingel (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Claudia Rodriguez De La Torre on behalf of themselves and all others similarly situated

represented by Ahilan Thevanesan Arulanantham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carmen Gloria Iguina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James August Rolfes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claudia Valenzuela (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jingni Zhao (See above for address) TERMINATED: 07/30/2014

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED

Timothy Robert Carraher (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

John Douglas Pingel (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Gustavo Ortega on behalf of themselves and all others similarly situated

represented by Ahilan Thevanesan Arulanantham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:14-cv-1775 As of: 10/25/2016 05:12 AM PDT 4 of 18

Carmen Gloria Iguina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James August Rolfes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claudia Valenzuela (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jingni Zhao (See above for address) TERMINATED: 07/30/2014

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED

Timothy Robert Carraher (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

John Douglas Pingel (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Nancy Bardalez Serpa on behalf of themselves and all others similarly situated TERMINATED: 12/05/2014

represented by Ahilan Thevanesan Arulanantham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carmen Gloria Iguina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James August Rolfes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claudia Valenzuela (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jingni Zhao (See above for address) TERMINATED: 07/30/2014

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Case: 4:14-cv-1775 As of: 10/25/2016 05:12 AM PDT 5 of 18

Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
Timothy Robert Carraher (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Douglas Pingel (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Jeh Johnson Secretary of Homeland Security
Defendant Lori Scialabba Acting Director of U.S. Citizenship and Immigration Services
Defendant

represented by Elizabeth J. Stevens Office of Immigration Litigation United States Department of Justice P.O. Box 868, Ben Franklin Station 450 5th Street NW Washington, DC 20044 (202) 616−9752 Fax: (202) 305−7000 Email: Elizabeth.Stevens@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebekah Antoin Nahas PO Box 878 Ben Franklin Station Washington, DC 20044 305−302−7854 Email: rebekah.nahas2@usdoj.gov ATTORNEY TO BE NOTICED
Victor M. Mercado−Santana US DOJ Civil Division PO Box 878 Ben Franklin Station Washington, DC 20044 202−305−7001 Email: victor.m.mercado−santana@usdoj.gov ATTORNEY TO BE NOTICED
represented by Elizabeth J. Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebekah Antoin Nahas (See above for address) ATTORNEY TO BE NOTICED
Victor M. Mercado−Santana (See above for address) ATTORNEY TO BE NOTICED

Case: 4:14-cv-1775 As of: 10/25/2016 05:12 AM PDT 6 of 18

Joseph Langlois Associate Director of Refugee, Asylum and International Operations

represented by Elizabeth J. Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebekah Antoin Nahas (See above for address) ATTORNEY TO BE NOTICED

Victor M. Mercado−Santana (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/17/2014
04/17/2014 04/17/2014
04/17/2014 04/17/2014 04/17/2014 04/17/2014 04/17/2014 04/17/2014 04/17/2014 04/17/2014

# Docket Text
1 Class Action COMPLAINT for Declaratory and Injunctive Relief against All Defendants ( Filing fee $ 400, receipt number 0971−8541535.). Filed by Marco Antonio Alfaro Garcia, Credy Madrid Calderon, Claudia Rodriguez De La Torre, Gustavo Ortega, Nancy Bardalez Serpa. (Attachments: # 1 Civil Cover Sheet)(Pingel, John) (Filed on 4/17/2014) Modified on 4/17/2014 (cjlS, COURT STAFF). (Entered: 04/17/2014)
2 Certificate of Interested Entities by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa re 1 Complaint, (Pingel, John) (Filed on 4/17/2014) (Entered: 04/17/2014)
3 Case assigned to Magistrate Judge Kandis A. Westmore.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (svS, COURT STAFF) (Filed on 4/17/2014) (Entered: 04/17/2014)
4 Proposed Summons. (Pingel, John) (Filed on 4/17/2014) (Entered: 04/17/2014)
5 Proposed Summons. (Pingel, John) (Filed on 4/17/2014) (Entered: 04/17/2014)
6 Proposed Summons. (Pingel, John) (Filed on 4/17/2014) (Entered: 04/17/2014)
7 Notice of Pendency of Other Action or Proceeding by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa. (Pingel, John) (Filed on 4/17/2014) Modified on 4/17/2014 (cjlS, COURT STAFF). (Entered: 04/17/2014)
8 NOTICE of Appearance by Julia Harumi Mass, Esq (Mass, Julia) (Filed on 4/17/2014) (Entered: 04/17/2014)
9 NOTICE of Appearance by Jingni Zhao (Zhao, Jingni) (Filed on 4/17/2014) (Entered: 04/17/2014)
10 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 7/8/2014. Case Management Conference set for 7/15/2014 01:30 PM in Courtroom 4, 3rd Floor, Oakland. (cjlS, COURT STAFF) (Filed on 4/17/2014) (Entered: 04/17/2014)
11 Summons Issued as to Jeh Johnson, Joseph Langlois, Lori Scialabba. (Attachments: # 1 Summons, # 2 Summons)(cjlS, COURT STAFF) (Filed on 4/17/2014) (Entered: 04/17/2014)

Case: 4:14-cv-1775 As of: 10/25/2016 05:12 AM PDT 7 of 18

04/18/2014
04/22/2014
04/22/2014 04/23/2014 04/23/2014 04/23/2014
04/23/2014 04/23/2014 04/29/2014 04/29/2014 04/30/2014 05/01/2014
05/01/2014 05/01/2014

12 Plaintiffs Notice of Motion and Motion and [Proposed] Order for Class Certification; Memorandum of Points and Authorities In Support of Motion for Class Certification filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa. Motion Hearing set for 6/19/2014 11:00 AM in Courtroom 4, 3rd Floor, Oakland before Magistrate Judge Kandis A. Westmore. Responses due by 5/2/2014. Replies due by 5/9/2014. (Attachments: # 1 Exhibit A−I, # 2 Proposed Order)(Pingel, John) (Filed on 4/18/2014) Modified on 4/21/2014 (cjlS, COURT STAFF). Modified on 6/11/2014 (cpS, COURT STAFF). (Entered: 04/18/2014)
13 MOTION for leave to appear in Pro Hac Vice Re: James A. Rolfes (Filing fee $305, receipt number 0971−8555154) filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa. NO CERTIFICATE OF GOOD STANDING ATTACHED. (Rolfes, James) (Filed on 4/22/2014) Modified on 4/23/2014 (cjlS, COURT STAFF). (Entered: 04/22/2014)
14 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa.. (Pingel, John) (Filed on 4/22/2014) (Entered: 04/22/2014)
15 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (sisS, COURT STAFF) (Filed on 4/23/2014) (Entered: 04/23/2014)
16 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Yvonne Gonzalez Rogers for all further proceedings. Magistrate Judge Kandis A. Westmore no longer assigned to the case. Signed by the Executive Committee on April 23, 2014. (cjlS, COURT STAFF) (Filed on 4/23/2014) (Entered: 04/23/2014)
17 MOTION for leave to appear in Pro Hac Vice of James A. Rolfes ( Filing fee $ 305, receipt number 0971−8555154.) Filing fee previously paid on 04−22−2014 filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa. (Rolfes, James) (Filed on 4/23/2014) (Entered: 04/23/2014)
18 ORDER by Judge Yvonne Gonzalez Rogers granting 17 Motion for Pro Hac Vice as to James A. Rolfes representing Plaintiffs. (fs, COURT STAFF) (Filed on 4/23/2014) (Entered: 04/23/2014)
19 NOTICE of Appearance by Michael Bryan Kaufman (Kaufman, Michael) (Filed on 4/23/2014) (Entered: 04/23/2014)
20 Application for Refund re 1 Complaint,, Receipt Number 25FAUD8S Duplicate payment by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa. (Attachments: # 1 Receipts 1 and 2 (duplicate payment))(Pingel, John) (Filed on 4/29/2014) (Entered: 04/29/2014)
21 NOTICE OF ERRATA by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa. (Attachments: # 1 Corrected Exhibit A)(Kaufman, Michael) (Filed on 4/29/2014) Modified on 4/30/2014 (cpS, COURT STAFF). (Entered: 04/29/2014)
22 NOTICE of Appearance by Elizabeth J. Stevens on behalf of Defendants (Stevens, Elizabeth) (Filed on 4/30/2014) (Entered: 04/30/2014)
23 STIPULATION WITH PROPOSED ORDER (Joint Stipulation to Extend Schedule Re: Plaintiffs' Motion for Class Certification) filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa, Jeh Johnson, et al. (Attachments: # 1 Proposed Order)(Kaufman, Michael) (Filed on 5/1/2014) Modified on 5/2/2014 (cpS, COURT STAFF). (Entered: 05/01/2014)
24 NOTICE of Appearance by Victor M. Mercado−Santana (Mercado−Santana, Victor) (Filed on 5/1/2014) (Entered: 05/01/2014)
25 ORDER by Judge Yvonne Gonzalez Rogers granting AS MODIFIED 23 Stipulation to Extend Schedule (fs, COURT STAFF) (Filed on 5/1/2014) (Entered: 05/01/2014)

Case: 4:14-cv-1775 As of: 10/25/2016 05:12 AM PDT 8 of 18

05/01/2014
05/02/2014
05/05/2014 05/06/2014
05/08/2014 05/09/2014 05/12/2014 05/12/2014 05/12/2014 05/13/2014 05/16/2014 05/16/2014 05/29/2014 06/10/2014
06/26/2014 07/01/2014

Set/Reset Deadlines as to 12 MOTION to Certify Class Plaintiffs Notice of Motion and Motion for Class Certification; Memorandum of Points and Authorities In Support of Motion for Class Certification. Responses due by 6/10/2014. Replies due by 7/1/2014. Motion Hearing set for 7/22/2014 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. (fs, COURT STAFF) (Filed on 5/1/2014) (Entered: 05/01/2014)
26 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971−8584400.) filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa. (Attachments: # 1 Certificate of Good Standing)(Valenzuela, Claudia) (Filed on 5/2/2014) (Entered: 05/02/2014)
27 ORDER by Judge Yvonne Gonzalez Rogers granting 26 Motion for Pro Hac Vice as to Claudia Valenzuela representing Plaintiffs. (fs, COURT STAFF) (Filed on 5/5/2014) (Entered: 05/05/2014)
28 CLERKS NOTICE SETTING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 8/18/2014. Initial Case Management Conference set for Monday, 8/25/2014 02:00 PM before Judge Yvonne Gonzalez Rogers in Courtroom 1, 4th Floor, Oakland. (Attachments: # 1 Standing Order) (fs, COURT STAFF) (Filed on 5/6/2014) (Entered: 05/06/2014)
29 DENIED re 20 Application for Refund. (cpS, COURT STAFF) (Filed on 5/8/2014) (Entered: 05/08/2014)
30 Application for Refund re 1 Complaint,, Receipt Number 0971−854 1290 by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa. (Attachments: # 1 Receipts)(Pingel, John) (Filed on 5/9/2014) (Entered: 05/09/2014)
31 CERTIFICATE OF SERVICE by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa re 1 Complaint, (Pingel, John) (Filed on 5/12/2014) (Entered: 05/12/2014)
32 CERTIFICATE OF SERVICE by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa re 1 Complaint, (Pingel, John) (Filed on 5/12/2014) (Entered: 05/12/2014)
33 CERTIFICATE OF SERVICE by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa re 1 Complaint, (Pingel, John) (Filed on 5/12/2014) (Entered: 05/12/2014)
34 CERTIFICATE OF SERVICE by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa (Kaufman, Michael) (Filed on 5/13/2014) (Entered: 05/13/2014)
35 NOTICE of Appearance by Ahilan Thevanesan Arulanantham (Arulanantham, Ahilan) (Filed on 5/16/2014) (Entered: 05/16/2014)
36 NOTICE of Appearance by Carmen Gloria Iguina (Iguina, Carmen) (Filed on 5/16/2014) (Entered: 05/16/2014)
37 Approving re 30 Application for Refund (cpS, COURT STAFF) (Filed on 5/29/2014) (Entered: 05/29/2014)
38 RESPONSE (re 12 MOTION to Certify Class filed byJeh Johnson, Joseph Langlois, Lori Scialabba. (Attachments: # 1 Affidavit Declaration of Victor M. Mercado−Santana, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5)(Mercado−Santana, Victor) (Filed on 6/10/2014) Modified on 6/11/2014 (cpS, COURT STAFF). (Entered: 06/10/2014)
39 MOTION for Extension of Time to File Answer re 1 Complaint, filed by Jeh Johnson, Joseph Langlois, Lori Scialabba. (Attachments: # 1 Proposed Order)(Mercado−Santana, Victor) (Filed on 6/26/2014) (Entered: 06/26/2014)
40 REPLY (re 12 MOTION to Certify Class ) Plaintiffs' Reply Memorandum of Points and Authorities In Support of Motion for Class Certification filed byCredy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo

Case: 4:14-cv-1775 As of: 10/25/2016 05:12 AM PDT 9 of 18

07/09/2014 07/14/2014
07/17/2014
07/18/2014
07/18/2014
07/22/2014 07/22/2014 07/30/2014
07/30/2014 08/05/2014 08/15/2014 08/18/2014 08/18/2014

Ortega, Nancy Bardalez Serpa. (Pingel, John) (Filed on 7/1/2014) (Entered: 07/01/2014)
41 ORDER by Judge Yvonne Gonzalez Rogers granting 39 Motion for Extension of Time to Answer Complaint to 7/14/2014. (fs, COURT STAFF) (Filed on 7/9/2014) (Entered: 07/09/2014)
42 First MOTION to Dismiss filed by Jeh Johnson, Joseph Langlois, Lori Scialabba. Motion Hearing set for 9/23/2014 02:00 PM in Courtroom 5, 2nd Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 7/28/2014. Replies due by 8/4/2014. (Attachments: # 1 Affidavit Declaration of Victor Mercado, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Affidavit Declaration of Elizabeth E. Mura, # 8 Affidavit Declaration of John Lafferty, # 9 Proposed Order)(Mercado−Santana, Victor) (Filed on 7/14/2014) (Entered: 07/14/2014)
43 First MOTION to Dismiss CORRECTION OF DOCKET # 42 filed by Jeh Johnson, Joseph Langlois, Lori Scialabba. Motion Hearing set for 9/23/2014 02:00 PM in Courtroom 5, 2nd Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 7/28/2014. Replies due by 8/4/2014. (Attachments: # 1 Affidavit Victor M. Mercado−Santana, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Affidavit Elizabeth Mura, # 8 Affidavit John Lafferty, # 9 Proposed Order)(Mercado−Santana, Victor) (Filed on 7/17/2014) Modified on 7/21/2014 (cpS, COURT STAFF). (Entered: 07/17/2014)
44 CLERKS NOTICE Continuing Motion Hearing as to 12 MOTION to Certify Class. Motion set for 7/22/2014 is CONTINUED to 9/23/2014 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. (This is a text only docket entry, there is no document associated with this notice.) (cpS, COURT STAFF) (Filed on 7/18/2014) (Entered: 07/18/2014)
45 JOINT STIPULATION WITH PROPOSED ORDER to Extend Briefing Schdule re 43 First MOTION to Dismiss filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa, Jeh Johnson, et al. (Attachments: # 1 Proposed Order)(Kaufman, Michael) (Filed on 7/18/2014) Modified on 7/21/2014 (cpS, COURT STAFF). (Entered: 07/18/2014)
46 ORDER by Judge Yvonne Gonzalez Rogers granting 45 Joint Stipulation to Extend Briefing Schedule (fs, COURT STAFF) (Filed on 7/22/2014) (Entered: 07/22/2014)
Set/Reset Deadlines as to 43 First MOTION to Dismiss. Responses due by 8/18/2014. Replies due by 9/5/2014. (fs, COURT STAFF) (Filed on 7/22/2014) (Entered: 07/22/2014)
47
***FILED IN ERROR, INCORRECT CASE NUMBER***
NOTICE of Change In Counsel by Jingni Zhao (Zhao, Jingni) (Filed on 7/30/2014) Modified on 7/31/2014 (cpS, COURT STAFF). (Entered: 07/30/2014)
48 NOTICE of Change In Counsel by Jingni Zhao (Zhao, Jingni) (Filed on 7/30/2014) Modified on 7/31/2014 (cpS, COURT STAFF). (Entered: 07/30/2014)
49 ADR Clerks Notice re: Non−Compliance with Court Order. (tjs, COURT STAFF) (Filed on 8/5/2014) (Entered: 08/05/2014)
50 Letter from John D. Pingel Request to Court for Telephonic Appearance. (Pingel, John) (Filed on 8/15/2014) (Entered: 08/15/2014)
51 NOTICE of Appearance by Rebekah Antoin Nahas (Nahas, Rebekah) (Filed on 8/18/2014) (Entered: 08/18/2014)
52 JOINT CASE MANAGEMENT STATEMENT filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa, Jeh Johnson, Joseph Langlois. (Pingel, John) (Filed on 8/18/2014) Modified on 8/19/2014 (cpS, COURT STAFF). Modified on 8/19/2014 (cpS, COURT STAFF). (Entered: 08/18/2014)

Case: 4:14-cv-1775 As of: 10/25/2016 05:12 AM PDT 10 of 18

08/18/2014 08/18/2014 08/19/2014
08/20/2014

53 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Pingel, John) (Filed on 8/18/2014) (Entered: 08/18/2014)
54 RESPONSE (re 43 First MOTION to Dismiss ) filed byCredy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa. (Pingel, John) (Filed on 8/18/2014) (Entered: 08/18/2014)
55 ADR Clerks Notice Setting ADR Phone Conference on Thursday, August 21, 2014 at 11:00 AM Pacific time. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (af, COURT STAFF) (Filed on 8/19/2014) (Entered: 08/19/2014)
56 CLERKS NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. Case Management Conference set for 8/25/2014 is CONTINUED to Monday, 10/27/2014 02:00 PM in Courtroom 1, 4th Floor, Oakland. Case Management Statement due by 10/20/2014.

(This is a text only docket entry, there is no document associated with this notice.)

08/21/2014 08/28/2014 09/04/2014
09/05/2014 09/26/2014

(fs, COURT STAFF) (Filed on 8/20/2014) (Entered: 08/20/2014)
ADR Remark: The ADR Phone Conference previously scheduled on August 21, 2014, has been rescheduled to August 28, 2014 at 10:00 AM Pacific time. The call−in information remains the same. (af, COURT STAFF) (Filed on 8/21/2014) (Entered: 08/21/2014)
ADR Remark: ADR Phone Conference held 8/28/2014 with Howard Herman, Director, ADR Program. (cmf, COURT STAFF) (Filed on 8/28/2014) (Entered: 08/28/2014)
57 STIPULATION WITH PROPOSED ORDER TO REFER CASE TO MAGISTRATE JUDGE FOR EARLY SETTLEMENT CONFERENCE filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa, Jeh Johnson, Lori Scialabba, Joseph Langlois. (Attachments: # 1 Proposed Order)(Kaufman, Michael) (Filed on 9/4/2014) Modified on 9/5/2014 (cpS, COURT STAFF). (Entered: 09/04/2014)
58 REPLY (re 43 First MOTION to Dismiss ) filed byJeh Johnson, Joseph Langlois, Lori Scialabba. (Attachments: # 1 Exhibit)(Mercado−Santana, Victor) (Filed on 9/5/2014) (Entered: 09/05/2014)
59 CLERK'S NOTICE Continuing Motion Hearing. Set/Reset Deadlines as to 12 MOTION to Certify Class, 43 First MOTION to Dismiss. Motions Hearing that had been previously set for 9/23/2014 is now set for Tuesday, 10/7/2014 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers.

(This is a text only docket entry, there is no document associated with this notice.)

09/29/2014 09/30/2014 10/07/2014
10/10/2014

(fs, COURT STAFF) (Filed on 9/26/2014) (Entered: 09/26/2014)
60 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971−8956259.) filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa. (Carraher, Timothy) (Filed on 9/29/2014) (Entered: 09/29/2014)
61 ORDER by Judge Yvonne Gonzalez Rogers granting 60 Motion for Pro Hac Vice as to Timothy Carraher representing Plaintiff (fs, COURT STAFF) (Filed on 9/30/2014) (Entered: 09/30/2014)
62 Minute Entry: Motion Hearing held and submitted on 10/7/2014 before Yvonne Gonzalez Rogers.(Date Filed: 10/7/2014) re 43 First MOTION to Dismiss filed by Jeh Johnson, Joseph Langlois, Lori Scialabba, 12 MOTION to Certify Class filed by Credy Madrid Calderon, Marco Antonio Alfaro Garcia, Claudia Rodriguez De La Torre, Gustavo Ortega, Nancy Bardalez Serpa. (Court Reporter Diane Skillman.) (fs, COURT STAFF) (Date Filed: 10/7/2014) (Entered: 10/08/2014)
63 TRANSCRIPT ORDER by Jeh Johnson, Joseph Langlois, Lori Scialabba for Court Reporter Diane Skillman. (Mercado−Santana, Victor) (Filed on 10/10/2014) (Entered:

Case: 4:14-cv-1775 As of: 10/25/2016 05:12 AM PDT 11 of 18

10/10/2014 10/20/2014 10/21/2014 10/21/2014
10/21/2014 11/13/2014
11/21/2014 12/04/2014 12/05/2014 12/08/2014 12/09/2014 12/09/2014

10/10/2014)
64 TRANSCRIPT ORDER by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa for Court Reporter Diane Skillman. (Pingel, John) (Filed on 10/10/2014) (Entered: 10/10/2014)
65 REVISED JOINT CASE MANAGEMENT STATEMENT filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa., Jeh Johnson, Joseph Langlois (Kaufman, Michael) (Filed on 10/20/2014) Modified on 10/21/2014 (cpS, COURT STAFF). (Entered: 10/20/2014)
66 ENOTICE OF ERRATA re 65 Case Management Statement by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa. (Attachments: # 1 Corrected Revised Joint Case Management Statement)(Iguina, Carmen) (Filed on 10/21/2014) Modified on 10/22/2014 (cpS, COURT STAFF). (Entered: 10/21/2014)
67 Transcript of Proceedings held on October 7, 2014, before Judge Yvonne Gonzalez Rogers. Court Reporter Diane E. Skillman, Telephone number 510−451−2930, Diane_Skillman@cand.uscourts.gov, diane.transcripts@aol.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 63 Transcript Order ) Release of Transcript Restriction set for 1/20/2015. (Related documents(s) 63 ) (Skillman, Diane) (Filed on 10/21/2014) (Entered: 10/21/2014)
68 ORDER CONTINUING CASE MANAGEMENT CONFERENCE to 11/17/2014 at 2:00 PM.. Signed by Judge Yvonne Gonzalez Rogers on 10/21/2014. (cpS, COURT STAFF) (Filed on 10/21/2014) (Entered: 10/21/2014)
69 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. Case Management Conference set for 11/17/14 is CONTINUED to Monday, 12/15/2014 02:00 PM in Courtroom 1, 4th Floor, Oakland. Case Management Statement due by 12/8/2014.
(This is a text only docket entry, there is no document associated with this notice.)
(fs, COURT STAFF) (Filed on 11/13/2014) (Entered: 11/13/2014)
70 ORDER by Judge Yvonne Gonzalez Rogers denying 43 Motion to Dismiss; granting 12 Motion to Certify Class (fs, COURT STAFF) (Filed on 11/21/2014) (Entered: 11/21/2014)
71 MOTION for Extension of Time to File Answer re 1 Complaint, filed by Jeh Johnson, Joseph Langlois, Lori Scialabba. (Attachments: # 1 Proposed Order)(Mercado−Santana, Victor) (Filed on 12/4/2014) (Entered: 12/04/2014)
72 NOTICE of Voluntary Dismissal for Plaintiff Nancy Bardalez Serpa by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa (Kaufman, Michael) (Filed on 12/5/2014) (Entered: 12/05/2014)
73 CASE MANAGEMENT STATEMENT (Second Revised Joint Case Management Statement) filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa, Jeh Johnson, Joseph Langlois. (Kaufman, Michael) (Filed on 12/8/2014) Modified on 12/9/2014 (cpS, COURT STAFF). (Entered: 12/08/2014)
74 ORDER by Judge Yvonne Gonzalez Rogers granting 71 Motion for Extension of Time to Answer Complaint to 1/16/15. (fs, COURT STAFF) (Filed on 12/9/2014) (Entered: 12/09/2014)
75 ORDER REFERRING CASE to Magistrate Judge Laurel Beeler for Settlement Conference to be held no later than 60 days from date of this Order. Signed by Judge Yvonne Gonzalez Rogers on 12/9/14. (fs, COURT STAFF) (Filed on

Case: 4:14-cv-1775 As of: 10/25/2016 05:12 AM PDT 12 of 18

12/10/2014 12/10/2014 12/15/2014
12/19/2014 01/16/2015 01/28/2015 01/29/2015 01/30/2015 02/04/2015 02/09/2015
02/10/2015 02/11/2015

12/9/2014) (Entered: 12/09/2014)
CASE REFERRED to Magistrate Judge Laurel Beeler for Settlement (ahm, COURT STAFF) (Filed on 12/10/2014) (Entered: 12/10/2014)
76 NOTICE AND ORDER REGARDING SETTLEMENT CONFERENCE before Magistrate Judge Laurel Beeler. Settlement Conference set for 2/11/2015 at 10:00 AM in Courtroom C, 15th Floor, San Francisco. Signed by Magistrate Judge Laurel Beeler on 12/10/2014. (lsS, COURT STAFF) (Filed on 12/10/2014) (Entered: 12/10/2014)
77 Minute Entry for proceedings held before Hon. Yvonne Gonzalez Rogers: Initial Case Management Conference held on 12/15/2014. Non−Expert Discovery due by 5/8/2015. Dispositive Motions filed by 6/12/2015. Dispositive Motion Hearing set for 7/14/2015 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers.Court Reporter Name or FTR Time Diane Skillman. Plaintiff Attorney Michael Kaufman; Julia Mass and John Pingel. Defendant Attorney Victor Mercado−Santana. Attachment Minutes.(fs, COURT STAFF) (Date Filed: 12/15/2014) (Entered: 12/19/2014)
78 CASE MANAGEMENT AND PRETRIAL ORDER. Signed by Judge Yvonne Gonzalez Rogers on 12/18/14. (fs, COURT STAFF) (Filed on 12/19/2014) (Entered: 12/19/2014)
79 ANSWER to Complaint byJeh Johnson, Joseph Langlois, Lori Scialabba. (Mercado−Santana, Victor) (Filed on 1/16/2015) (Entered: 01/16/2015)
80 MOTION (Request for Non−Appearance of Named Plaintiffs at Settlement Conference) filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Nancy Bardalez Serpa. Responses due by 2/11/2015. Replies due by 2/18/2015. (Attachments: # 1 Proposed Order)(Kaufman, Michael) (Filed on 1/28/2015) (Entered: 01/28/2015)
81 ORDER GRANTING THE NON−APPEARANCE OF NAMED PLAINTFFS AT THE SETTLEMENT CONFERENCE by Magistrate Judge Laurel Beeler: Granting 80 Motion. (lsS, COURT STAFF) (Filed on 1/29/2015) (Entered: 01/29/2015)
82 STIPULATION WITH PROPOSED ORDER for protective order filed by Jeh Johnson, Joseph Langlois, Lori Scialabba. (Attachments: # 1 Proposed Order)(Mercado−Santana, Victor) (Filed on 1/30/2015) (Entered: 01/30/2015)
83 STIPULATED PROTECTIVE ORDER re 82 STIPULATION WITH PROPOSED ORDER for protective order filed by Jeh Johnson, Joseph Langlois, Lori Scialabba. Signed by Judge Yvonne Gonzalez Rogers on 2/4/15. (fs, COURT STAFF) (Filed on 2/4/2015) (Entered: 02/04/2015)
84 ORDER REQUIRING PLAINTIFFS' TO PROVIDE ADDITIONAL SETTLEMENT CONFERENCE INFORMATION. Plaintiffs are directed to provide the court with their (1) attorney's fees and litigation costs to date and (2) additional attorney's fees and costs projected to trial. They may email them to the court's proposed orders email address (lbpo@cand.uscourts.gov) and may do so confidentially if they so desire. The deadline for doing so is 12:00 p.m. (noon) PST on Tuesday, February 10, 2015. Signed by Judge Laurel Beeler on 2/9/2015. (This is a docket text entry order by the court. There is no document associated with this entry.) (lblc2, COURT STAFF) (Filed on 2/9/2015) Modified on 2/10/2015 (lsS, COURT STAFF). (Entered: 02/09/2015)
85 CLERK'S NOTICE RESETTING HEARING TIME ONLY: Settlement Conference reset to 2/11/2015 at 9:30 AM in Courtroom C, 15th Floor, San Francisco. (This is a docket text entry only. There is no document associated with this entry.) (lsS, COURT STAFF) (Filed on 2/10/2015) (Entered: 02/10/2015)
86 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference held on 2/11/2015. The government is to update the parties and the court by email on Thursday, February 19, 2015 about the two issues discussed. The email to the court may be to lbpo@cand.uscourts.gov. The parties must discuss the issues on Friday, February 20, 2015, or any other date that they

Case: 4:14-cv-1775 As of: 10/25/2016 05:12 AM PDT 13 of 18

02/25/2015 02/26/2015 02/27/2015 03/09/2015
03/16/2015 04/01/2015
04/02/2015 04/03/2015

agree upon, and then schedule a further meeting or telephone conference with the court by calling courtroom deputy, Lashanda Scott at 415−522−3140. (lsS, COURT STAFF) (Date Filed: 2/11/2015) (Entered: 02/12/2015)
87 CLERK'S NOTICE: Telephonic Settlement Conference set for 2/26/2015 at 11:45 A.M. Counsel to provide the court and parties with a dial−in phone number. (This is a docket text entry only. There is no document associated with this entry.) (lsS, COURT STAFF) (Filed on 2/25/2015) (Entered: 02/25/2015)
88 CLERK'S NOTICE VACATING TELEPHONIC SETTLEMENT CONFERENCE on 2/26/2015 before Magistrate Judge Laurel Beeler due to a scheduling conflict. Settlement Conference reset to 2/27/2015 at 1:30 P.M. Counsel will provide the court and parties with a dial−in phone number. (This is a docket text entry only. There is no document associated with this entry.) (lsS, COURT STAFF) (Filed on 2/26/2015) (Entered: 02/26/2015)
89 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Further Telephonic Settlement Conference held on 2/27/2015. Further settlement conference call set for Monday, March 9, 2015, at 1:00 p.m. PST. Government to circulate a call−in number. (lsS, COURT STAFF) (Date Filed: 2/27/2015) Modified on 3/9/2015 (lsS, COURT STAFF). (Entered: 03/02/2015)
90 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Further Telephonic Settlement Conference held on 3/9/2015. The government will circulate a red−line draft later today. The parties must confer thereafter about the next settlement conference and who must be there and must contact the court with their proposal (including participants and the time needed for the conference) by Thursday, March 12, 2015. The court suggests an email to the court's orders box that day with a follow−up scheduling call on Friday, March 13, 2015 with courtroom deputy Lashanda Scott at 415−522−3140. (The court sets this process because settlement conferences get scheduled out months in advance and the court might need to do some adjusting of its schedule to fit the parties in.) (Not Reported)(lsS, COURT STAFF) (Date Filed: 3/9/2015) (Entered: 03/09/2015)
91 CLERK'S NOTICE: Settlement Conference set for 4/1/2015 at 10:00 AM in Courtroom C, 15th Floor, San Francisco. Updated Settlement Conference Statements due March 25, 2015. The Settlement Order issued on December 10, 2014, ECF No. 76 remains in affect. (This is a docket text entry only. There is no document associated with this entry.) (lsS, COURT STAFF) (Filed on 3/16/2015) (Entered: 03/16/2015)
92 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference held on 4/1/2015. Case settled subject to finalizing written settlement agreement (red−lines exchanged and substantially final) and subject to the ordinary contingencies of approval. Fees issue is outstanding. Government to circulate its red−lined update by Monday, April 6, 2015. Plaintiffs to circulate their edits as soon thereafter as feasible and in any event no later than Wednesday, April 8, 2015. In aid of the fees issue, Plaintiffs will provide a letter with their fees information and updated position as discussed as soon as is feasible and in any event no later than Thursday, April 9, 2015 at 11 a.m. PST. The court sets a scheduling call for Thursday, April 9, 2015 at 12:00 p.m. PST to discuss the government's timeline for responding to it and the timing of a further settlement conference call. The court asks Reed Smith to circulate a call−in number. Copies of all circulated documents must be cc'd to the court's orders box at: lbpo@cand.uscourts.gov. Given the procedural posture of the case, including the pending deadline for fact discovery of mid−May 2015, the parties will submit a stipulation and order to the assigned district judge to ask for an extension or stay of the pending deadlines. (Not Reported)(lsS, COURT STAFF) (Date Filed: 4/1/2015) (Entered: 04/02/2015)
Set/Reset Hearing: Re 92 Settlement Conference − Telephonic Settlement Conference set for 4/9/2015 at 12:00 P.M. (lsS, COURT STAFF) (Filed on 4/2/2015) (Entered: 04/02/2015)
93 STIPULATION WITH PROPOSED ORDER to stay discovery pending final settlement filed by Jeh Johnson, Joseph Langlois, Lori Scialabba, Marco Antonio Alfaro Garcia. (Attachments: # 1 Proposed Order)(Stevens, Elizabeth) (Filed on 4/3/2015) Modified on 4/3/2015 (cpS, COURT STAFF). (Entered: 04/03/2015)

Case: 4:14-cv-1775 As of: 10/25/2016 05:12 AM PDT 14 of 18

04/09/2015
04/10/2015 04/16/2015 04/17/2015 04/20/2015 04/21/2015 04/23/2015

94 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference held on 4/9/2015. Plaintiffs' counsel to consider language in order that court circulated. Government's counsel to seek approval for language discussed in paragraph. Government's counsel to circulate redline of change to paragraph 3h. Government to consult regarding paragraph 9 issues and update court by email to the court's orders box or by arranging a call through courtroom deputy Lashanda Scott about its desired next steps. Deadline for update: 1 week. (Not Reported) (lsS, COURT STAFF) (Date Filed: 4/9/2015) (Entered: 04/09/2015)
95 ORDER by Judge Yvonne Gonzalez Rogers granting 93 Stipulation to Stay Discovery Pending Final Settlement (fs, COURT STAFF) (Filed on 4/10/2015) (Entered: 04/10/2015)
96 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Telephonic Settlement Conference held on 4/16/2015. Call with government and follow−up call with plaintiffs. Plaintiffs to schedule call with the court. (Not Reported) (lsS, COURT STAFF) (Date Filed: 4/16/2015) (Entered: 04/17/2015)
97 CLERK'S NOTICE Setting Telephonic Settlement Conference with plaintiff's counsel only for 4/20/2015 at 3:00 P.M. Counsel are to phone in directly to chambers with all parties on one line. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lsS, COURT STAFF) (Filed on 4/17/2015) (Entered: 04/17/2015)
98 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement call held with ACLU and follow−up email to government counsel. Government counsel to schedule time for another call with the court preferably on Thursday, April 23, 2015. (Not Reported) (lsS, COURT STAFF) (Date Filed: 4/20/2015) (Entered: 04/21/2015)
99 CLERK'S NOTICE: Telephonic Settlement Conference (government counsel) set for 4/23/2015 at 12:00 P.M. Counsel to phone in directly to chambers (415−522−4660). (This is a text−only entry generated by the court. There is no document associated with this entry.) (lsS, COURT STAFF) (Filed on 4/21/2015) (Entered: 04/21/2015)
100 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement conference calls held with Defendant (Ms. Stevens) and Plaintiff (Mr. Kaufman) on 4/23/2015. Plaintiff to respond by email as soon as possible and in any event by Monday, April 27, 2015, by email to the court's orders box at lbpo@cand.uscourts.gov if the proposal is satisfactory. Thereafter, Defendant will respond (if possible) by Thursday, April 30, 2015. Communications may be to the court's orders box at lbpo@cand.uscourts.gov. (Not Reported)

Plaintiff Attorney: Michael Kaufman (tele).

Defendant Attorney: Elizabeth Stevens (tele).

05/01/2015

This is a text only Minute Entry. (lsS, COURT STAFF) (Date Filed: 4/23/2015) (Entered: 04/24/2015)
101 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Further settlement communications with all counsel. Case settled as to all material times. Parties are finalizing their settlement agreement and the motion for preliminary approval. (Not Reported)

Plaintiff Attorney: Michael Kaufman.

Defendant Attorney: Elizabeth Stevens.

07/07/2015

This is a text only Minute Entry. (lsS, COURT STAFF) (Date Filed: 5/1/2015) (Entered: 05/01/2015)
102 MOTION for (1) Preliminary Approval of Class Action Settlement; (2) Preliminary Certification of the Settlement Class; and (3) Order Directing Notice to the Class and Scheduling a Fairness Hearing. Memorandum of Points and Authorities in Support thereof; Declaration of Michael Kaufman in Support Thereof filed by Credy Madrid

Case: 4:14-cv-1775 As of: 10/25/2016 05:12 AM PDT 15 of 18

08/11/2015
08/20/2015 08/20/2015 09/09/2015 09/09/2015 09/10/2015 09/14/2015 09/15/2015
09/15/2015 09/15/2015 09/15/2015

Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega. Motion Hearing set for 8/11/2015 02:00 PM in Courtroom 4, 3rd Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 7/21/2015. Replies due by 7/28/2015. (Attachments: # 1 Declaration, # 2 Exhibit 1, # 3 Exhibit A to Exhibit 1, # 4 Exhibit B to Exhibit 1, # 5 Exhibit C to Exhibit 1, # 6 Exhibit 2, # 7 Exhibit 3, # 8 Proposed Order)(Pingel, John) (Filed on 7/7/2015) Modified on 7/8/2015 (cpS, COURT STAFF). (Entered: 07/07/2015)
103 Minute Entry for proceedings held before Hon. Yvonne Gonzalez Rogers: Motion Hearing held and submitted on 8/11/2015 re 102 MOTION for (1) Preliminary Approval of Class Action Settlement; (2) Preliminary Certification of the Settlement Class; and (3) Order Directing Notice to the Class and Scheduling a Fairness Hearing filed by Credy Madrid Calderon, Marco Antonio Alfaro Garcia, Claudia Rodriguez De La Torre, Gustavo Ortega.Court Reporter Name Diane Skillman. Plaintiff Attorney John Pingel and Michael Kaufman. Defendant Attorney Victor M. Mercado−Santana and Elizabeth Stevens. Attachment Minutes.(fs, COURT STAFF) (Date Filed: 8/11/2015) (Entered: 08/12/2015)
104 ORDER by Judge Yvonne Gonzalez Rogers granting 102 Motion for Preliminary Approval of Class Action Settlement (Attachments: # 1 Exhibit One: Settlement Agreement, # 2 Exhibit Two: Notice of Proposed Class Action Settlement) (fs, COURT STAFF) (Filed on 8/20/2015) (Entered: 08/20/2015)
Set/Reset Hearing re 104 Order on Motion for Miscellaneous Relief, Fairness Hearing set for 10/20/2015 02:00 PM. (fs, COURT STAFF) (Filed on 8/20/2015) (Entered: 09/28/2015)
105 Agreement to Proposed Settlement Agreement filed by Dennis Jerome Reid (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 9/9/2015) (Entered: 09/09/2015)
106 OBJECTION to Proposed Settlement Agreement filed by Johnny DeLuis Morelo. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 9/9/2015) (Entered: 09/09/2015)
107 Joint Status Report re Notice to Class of Settlement and Fairness Hearing by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega, Jeh Johnson, et al (Mass, Julia) (Filed on 9/10/2015) Modified on 9/11/2015 (cpS, COURT STAFF). (Entered: 09/10/2015)
108 OBJECTIONS to Proposed Settlement Agreement filed by Rezzik Karim. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 9/14/2015) (Entered: 09/14/2015)
109 Notice of Motion and Motion for Award of Reasonable Attorneys' Fees and Costs filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega. Motion Hearing set for 10/20/2015 02:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 9/29/2015. Replies due by 10/6/2015. (Attachments: # 1 Proposed Order)(Pingel, John) (Filed on 9/15/2015) Modified on 9/16/2015 (kcS, COURT STAFF). (Entered: 09/15/2015)
110 Declaration of Michael Kaufman in Support of 109 MOTION for Award of Reasonable Attorneys' Fees and Costs filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega. (Attachments: # 1 Exhibit 1)(Related document(s) 109 ) (Pingel, John) (Filed on 9/15/2015) Modified on 9/16/2015 (kcS, COURT STAFF). (Entered: 09/15/2015)
111 Declaration of James A. Rolfes in Support of 109 MOTION for Award of Reasonable Attorneys' Fees and Costs filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega. (Related document(s) 109 ) (Pingel, John) (Filed on 9/15/2015) Modified on 9/16/2015 (kcS, COURT STAFF). (Entered: 09/15/2015)
112 Declaration of Claudia Valenzuela in Support of 109 MOTION for Award of Reasonable Attorneys' Fees and Costs filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega. (Related

Case: 4:14-cv-1775 As of: 10/25/2016 05:12 AM PDT 16 of 18

09/15/2015
09/21/2015 09/23/2015 09/28/2015 09/28/2015 10/05/2015 10/06/2015 10/07/2015

document(s) 109 ) (Pingel, John) (Filed on 9/15/2015) Modified on 9/16/2015 (kcS, COURT STAFF). (Entered: 09/15/2015)
113 Declaration of Julia Harumi in Support of 109 MOTION for Award of Reasonable Attorneys' Fees and Costs filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega. (Related document(s) 109 ) (Pingel, John) (Filed on 9/15/2015) Modified on 9/16/2015 (kcS, COURT STAFF). (Entered: 09/15/2015)
114 OBJECTIONS to Proposed Settlement Agreement filed by Rafeek Yussef. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 9/21/2015) (Entered: 09/22/2015)
115 OBJECTIONS to Proposed Settlement Agreement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 9/23/2015) (Entered: 09/23/2015)
116 OBJECTIONS to Proposed Settlement Agreement filed by Alvin Lalta. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 9/28/2015) (Entered: 09/29/2015)
117 OBJECTIONS to Proposed Settlement Agreement filed by Yeifrin R. Ozuma Cabrera. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 9/28/2015) (Entered: 09/29/2015)
118 OBJECTIONS to Proposed Settlement Agreement filed by Patrick Wafula Simiyu. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 10/5/2015) (Entered: 10/06/2015)
119 OBJECTIONS to Proposed Settlement Agreement filed by Brian Fulljames. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 10/6/2015) (Entered: 10/06/2015)
120

***FILED IN ERROR, MISSING PAGES. RE−FILED AT DOCUMENT # 126 ***

10/07/2015 10/07/2015 10/07/2015

MOTION for Final Approval of Class Action Settlement and Final Certification of Settlement Class; Memorandum of Points and Authorities in Support Thereof filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega. Motion Hearing set for 10/20/2015 02:00 PM in Courtroom 4, 3rd Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 10/21/2015. Replies due by 10/28/2015. (Attachments: # 1 Proposed Order, # 2 Exhibit Exhibit 1 to Proposed Order)(Pingel, John) (Filed on 10/7/2015) Modified on 10/8/2015 (cpS, COURT STAFF). Modified on 10/9/2015 (cpS, COURT STAFF). (Entered: 10/07/2015)
121 Declaration of Michael Kaufman in Support of 129 MOTION for Final Approval of Class Action Settlement and Final Certification of Settlement Class filed byCredy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega. (Related document(s) 129 ) (Pingel, John) (Filed on 10/7/2015) Modified on 10/8/2015 (cpS, COURT STAFF). Modified on 10/9/2015 (cpS, COURT STAFF). Modified on 10/9/2015 (cpS, COURT STAFF). (Entered: 10/07/2015)
122 Declaration of Claudia Valenzuela in Support of 129 MOTION for Final Approval of Class Action Settlement and Final Certification of Settlement Class filed byCredy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega. (Related document(s) 129 ) (Pingel, John) (Filed on 10/7/2015) Modified on 10/8/2015 (cpS, COURT STAFF). Modified on 10/9/2015 (cpS, COURT STAFF). Modified on 10/9/2015 (cpS, COURT STAFF). (Entered: 10/07/2015)
123 Declaration of Julia Harumi Mass in Support of 129 MOTION for Final Approval of Class Action Settlement and Final Certification of Settlement Class filed byCredy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega. (Related document(s) 129 ) (Pingel, John) (Filed on 10/7/2015) Modified on 10/8/2015 (cpS, COURT STAFF). Modified on 10/9/2015 (cpS, COURT STAFF). Modified on 10/9/2015 (cpS, COURT STAFF). (Entered: 10/07/2015)

Case: 4:14-cv-1775 As of: 10/25/2016 05:12 AM PDT 17 of 18

10/07/2015 10/07/2015 10/08/2015 10/08/2015

124 Declaration of James W. Cain in Support of 129 MOTION for Final Approval of Class Action Settlement and Final Certification of Settlement Class filed byCredy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega. (Related document(s) 129 ) (Pingel, John) (Filed on 10/7/2015) Modified on 10/8/2015 (cpS, COURT STAFF). Modified on 10/9/2015 (cpS, COURT STAFF). Modified on 10/9/2015 (cpS, COURT STAFF). (Entered: 10/07/2015)
125 Declaration of Christopher Rue Gossett in Support of 129 MOTION for Final Approval of Class Action Settlement and Final Certification of Settlement Class filed byCredy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega. (Related document(s) 129 ) (Pingel, John) (Filed on 10/7/2015) Modified on 10/8/2015 (cpS, COURT STAFF). Modified on 10/9/2015 (cpS, COURT STAFF). Modified on 10/9/2015 (cpS, COURT STAFF). (Entered: 10/07/2015)
126 MOTION for Final Approval of Class Action Settlement and Final Certification of Settlement Class; Memorandum of Points and Authorities in Support Thereof. (Correction of Document 120) filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega. Motion Hearing set for 10/20/2015 02:00 PM in Courtroom 4, 3rd Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 10/22/2015. Replies due by 10/29/2015. (Attachments: # 1 Proposed Order, # 2 Exhibit 1 to Proposed Order)(Pingel, John) (Filed on 10/8/2015) Modified on 10/9/2015 (cpS, COURT STAFF). (Entered: 10/08/2015)
127

***FILED IN ERROR***

10/08/2015

EXHIBITS re 126 MOTION for Settlement Correction of Document 120, Notice of Motion and Motion for Final Approval of Class Action Settlement and Final Certification of Settlement Class; Memorandum of Points and Authorities in Support Thereof Exhibit A−1 Objections with Redactions Bates PLNT 0001−0150 filed byCredy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega. (Related document(s) 126 ) (Pingel, John) (Filed on 10/8/2015) Modified on 10/9/2015 (cpS, COURT STAFF). (Entered: 10/08/2015)
128

***FILED IN ERROR***

10/09/2015

EXHIBITS re 126 MOTION for Settlement Correction of Document 120, Notice of Motion and Motion for Final Approval of Class Action Settlement and Final Certification of Settlement Class; Memorandum of Points and Authorities in Support Thereof Exhibit A−2 Objections with Redactions Bates PLNT0151−0313 filed byCredy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega. (Related document(s) 126 ) (Pingel, John) (Filed on 10/8/2015) Modified on 10/9/2015 (cpS, COURT STAFF). (Entered: 10/08/2015)
Electronic filing error. Exhibits e−filed separately and not as an attachment, require a title page. Please refer to Civil Local Rules 3−4 re first page requirement.

10/09/2015

Please re−file in its entirety. Re: 128 Exhibits, 127 Exhibits, filed by Credy Madrid Calderon, Marco Antonio Alfaro Garcia, Claudia Rodriguez De La Torre, Gustavo Ortega (cpS, COURT STAFF) (Filed on 10/9/2015) (Entered: 10/09/2015)
129 Amended MOTION for Settlement Amended Motion for Final Approval of Class Action Settlement and Final Certification of Settlement Class; Memorandum of Points and Authorities in Support Thereof filed by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega. Motion Hearing set for 10/20/2015 02:00 PM in Courtroom 4, 3rd Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 10/23/2015. Replies due by 10/30/2015. (Attachments: # 1 Exhibit A Part 1, # 2 Exhibit A Part 2, # 3 Exhibit A Part 3, # 4 Exhibit A Part 4, # 5 Exhibit A Part 5, # 6 Exhibit A Part 6, # 7 Exhibit A Part 7, # 8 Proposed Order, # 9 Exhibit 1)(Pingel, John) (Filed on 10/9/2015) Modified on 10/13/2015 (cpS, COURT STAFF). (Entered: 10/09/2015)

Case: 4:14-cv-1775 As of: 10/25/2016 05:12 AM PDT 18 of 18

10/20/2015
10/27/2015 10/27/2015 10/27/2015 11/02/2015
04/27/2016 05/09/2016

130 Minute Entry for proceedings held before Hon. Yvonne Gonzalez Rogers: Motion Hearing held and submitted on 10/20/2015. re 109 MOTION for Award of Reasonable Attorneys' Fees and Costs filed by Credy Madrid Calderon, Marco Antonio Alfaro Garcia, Claudia Rodriguez De La Torre, Gustavo Ortega, 129 Amended MOTION for Settlement Amended Motion for Final Approval of Class Action Settlement and Final Certification of Settlement Class; Memorandum of Points and Authorities in Support Thereof filed by Credy Madrid Calderon, Marco Antonio Alfaro Garcia, Claudia Rodriguez De La Torre, Gustavo Ortega Court Reporter Name Kathy Wyatt. Plaintiff Attorney John Pingel. Defendant Attorney Victor M. Mercado−Santana. Attachment Minutes.(fs, COURT STAFF) (Date Filed: 10/20/2015) (Entered: 10/26/2015)
131 TRANSCRIPT ORDER by Credy Madrid Calderon, Claudia Rodriguez De La Torre, Marco Antonio Alfaro Garcia, Gustavo Ortega for Court Reporter Katherine Wyatt. (Pingel, John) (Filed on 10/27/2015) (Entered: 10/27/2015)
132 ORDER by Judge Yvonne Gonzalez Rogers granting 109 Motion for Award of Attorney Fees and Costs (fs, COURT STAFF) (Filed on 10/27/2015) (Entered: 10/27/2015)
133 FINAL ORDER APPROVING SETTLEMENT [*AS MODIFIED BY THE COURT*] by Judge Yvonne Gonzalez Rogers re 129 Motion for Settlement (Attachments: # 1 Exhibit One ) (fs, COURT STAFF) (Filed on 10/27/2015) (Entered: 10/27/2015)
134 Transcript of Proceedings held on 10−20−15, before Judge Yvonne Gonzalez Rogers. Court Reporter/Transcriber Katherine Wyatt, telephone number 925−212−5224. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 131 Transcript Order ) Release of Transcript Restriction set for 2/1/2016. (Related documents(s) 131 ) (kpw, COURT STAFF) (Filed on 11/2/2015) (Entered: 11/02/2015)
135 OBJECTION to Proposed Settlement Agreement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 4/27/2016) (Entered: 04/28/2016)
136 OBJECTIONS to Proposed Settlement Agreement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 5/9/2016) (Entered: 05/12/2016)